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Justice Stevens	dissenting	false	United States v. Sheffield Bd. of Comm'rs	1978-03-06T00:00:00	null	https://www.courtlistener.com/opinion/109810/united-states-v-sheffield-bd-of-commrs/	https://www.courtlistener.com/api/rest/v3/clusters/109810/	1,978	1977-045	2	6	3	The principal question presented by this case is whether the city of Sheffield, Ala., is covered by § 5 of the Voting Rights Act of 1965.[1] If that question could be answered solely by reference to the Act's broad remedial purposes, it might be an easy one. But on the basis of the statute as written, the question is not nearly as simple as the Court implies. I believe it requires two separate inquiries: First, whether the city of Sheffield is a "political subdivision" within the meaning of § 5; and second, even if that question is answered in the negative, whether action by the city should 141 be regarded as action of the State within the meaning of that section. I Briefly stated, § 5 provides that whenever a State or a political subdivision, designated pursuant to § 4, seeks to change a voting practice, it must obtain clearance for that change from either the United States District Court for the District of Columbia or the Attorney General of the United States.[2] This so-called "preclearance" requirement is one of the most extraordinary remedial provisions in an Act noted for its broad remedies. Even the Department of Justice has described it as a "substantial departure . . . from ordinary concepts of our federal system";[3] its encroachment on state sovereignty is significant and undeniable. The section must, therefore, be read and interpreted with care. As a starting point, it is clear that it applies only to actions taken by two types of political unitsStates or political subdivisions. Since Alabama is a designated State under § 4, "each and every political subdivision within that State" is covered by § 5. See H. R. Rep. No. 439, 89th Cong., 1st Sess., 25 (1965). This does not, however, mean that the city of Sheffield is a "political subdivision" of Alabama covered by § 5. For the Act specifically defines "political subdivision," and that definition does not even arguably include an entity such as Sheffield. Section 14 (c) (2) of the Act provides: "The term `political subdivision' shall mean any county or parish, except that where registration for voting is not 142 conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting." Sheffield is not a county or a parish, and it does not conduct registration for voting. Consequently, it is not a "political subdivision."[4] The legislative history of § 14 (c) (2) demonstrates that the term "political subdivision" was defined for the specific purpose of limiting the coverage of the Act. Because the term had not been defined in the bill as originally drafted, Senator Ervin, among others, recognized that it might be read to encompass minor, local governmental units. It was to allay this concern that the definition was included in the Act. "Senator ERVIN. This [an early version of the Voting Rights Act] not only applies to a State, but this would apply to any little election district in the State . . . . "Attorney General KATZENBACH. I do not believe so, Senator. There is a question as to what the term `political subdivision' means. I have taken the view in the other body and I would state it here that we are talking about the area in which people are registered, the appropriate unit for registering. I believe in every State 143 that comes within the provisions of this, we are talking about no area smaller than a county or a parish. "Senator ERVIN. Do you not think that you had better amend your bill to so provide, because in North Carolina, every municipality is a political subdivision of the State, even every sanitary district is a subdivision of the State. Also every election district is a subdivision of the State, every school district . . . every special bond, school-bond, district is a subdivision of the State. "Attorney General KATZENBACH. I think that might be done to define political subdivision here in the bill in that way, Senator. That is what I intended." Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 44 (1965) (1965 Senate Hearings). See also Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., 21 (1965) (1965 House Hearings). Later, during the Senate debate on the Voting Rights Act, Senator Ervin referred to the above dialogue with Attorney General Katzenbach and stated, without contradiction, that the term "political subdivision" had been defined to avoid a construction of the Act that would "confer jurisdiction upon the Federal Government to intervene in every ward of every city and town covered by the bill." 111 Cong. Rec. 9270 (1965). The Senate Report on the Voting Rights Act made the same point equally bluntly: "This definition makes clear that the term `political subdivision' is not intended to encompass precincts, election districts, or other similar units when they are within a county or parish which supervises registration for voting." S. Rep. No. 162, pt. 3, 89th Cong., 1st Sess., 31 (1965).[5] 144 In short, whatever other ambiguities there may be in the Act, the definition of "political subdivision" is not one of them. It was clearly intended to limit the reach of the Act, and the definition clearly excludes cities, such as Sheffield, that do not register voters. II The remaining question is whether a political unit that does not register voters may be regarded as the "State," as that term is used in § 5. If there were no contrary legislative history, it might be reasonable to treat the action of entities such as Sheffield, which are within the jurisdiction of a covered State, as "state action," just as such governmental action would be regarded as state action in a constitutional sense. However, such an interpretation of the word "State" would extend the reach of the statute to the same kind of purely local matters that Congress intended to exclude by defining the term "political subdivision." As is apparent from the comments of Senator Ervin, quoted supra, there was congressional concern over whether the Act would extend to governmental units below the county level. That concern was repeatedly expressed and was specifically addressed in § 14 (c) (2). Unquestionably, as the Court recognizes, ante, at 128-129, that section protects small political units, such as school boards, from being separately designated for coverage under § 4 (b). The concerns which motivated this exclusion from § 4 (b) apply equally to § 5.[6] Indeed, the 145 legislative history provides a perfectly logical explanation of why Congress deliberately limited the reach of § 5, as well as § 4 (b), to "political subdivisions," as defined by the Act. First, a preclearance requirement limited to governmental units engaged in the registration process would be in accord with the fact that the Act was principally concerned with literacy tests and other devices which were being used to prevent black citizens from registering to vote. As Attorney General Katzenbach repeatedly emphasized, the "bill really is aimed at getting people registered." See 1965 House Hearings 21.[7] 146 Second, the Act limits judicial review of an election change under § 5 to a three-judge District Court sitting in the District of Columbia. The opponents of the Act frequently expressed their outrage at this limitation, arguing that it was unfair to make people travel "250 or 1,000 or 3,000 miles in order to gain access to a court of justice." See, e. g., 1965 Senate Hearings 43 (remarks of Sen. Ervin); 111 Cong. Rec. 10371 (remarks of Sen. Ellender) (1965). Proponents of § 5 justified the provision on the ground that it would not be difficult or unusual for a State, county, or comparable body to have to make its arguments in Washington, D. C. See, e. g., Senate Hearing 44 (testimony of Attorney General Katzenbach). Senator Javits' comments on the floor of the Senate are typical of this line of argument. "Finally, it cannot be claimed that the bill is unfair to litigants other than the Federal Government because we are not dealing with litigants who are unable to pursue a legal remedy. We are not dealing with litigants who might find travel difficult or legal proceedings or appearances expensive. We are dealing with political subdivisions and States, which have county attorneys or State 147 attorneys general who come to Washington, D. C., for many things, and they would not be required to come to Washington merely to participate in litigation that might arise under the bill." 111 Cong. Rec. 10363 (1965). Obviously, this same argument does not apply to most townships, school boards, and the numerous other small, local units involved in the political process. Whether or not it would be "fair" to make these smaller political units argue their cases only in Washington, D. C., the drafters and supporters of the Act gave assurances that § 5 was not so intended. A broad definition of "State" would nullify those assurances just as surely as a loose interpretation of "political subdivision." Finally, the logistical and administrative problems inherent in reviewing all voting changes of all political units strongly suggest that Congress placed limits on the preclearance requirement. Statistics show that the Attorney General's staff is now processing requests for voting changes at the rate of over 1,000 per year.[8] and this rate is by no means indicative of the number of submissions involved if all covered States and political units fully complied with the preclearance requirement, as interpreted by the Attorney General.[9] Furthermore, under the statute each request must be passed upon within 60 days of its submission. This large and rapid volume 148 of work is a product, in part, of this Court's decision in Allen.[10] But even apart from Allen, it is certainly reasonable to believe that Congress, having placed a strict time limit on the Attorney General's consideration of submissions, also deliberately placed a limit on the number and importance of the submissions themselves.[11] This result was achieved by restricting the reach of § 5 to enactments of either the States themselves or their political subdivisions, as defined by § 14 (c) (2). Neither the "contemporaneous" construction of the Act by the Attorney General nor the subsequent amendments of § 5 by Congress, in my judgment, undermine the validity of this reading of the section. The Court asserts that the "Attorney General has, since the Act was adopted in 1965, interpreted § 5 as requiring all political units in designated jurisdictions to preclear proposed voting changes." Ante, at 131. The unambiguous historical evidence is to the contrary. The Department of Justice did not adopt regulations implementing § 5's preclearance provisions until September 1971, six years after the passage of the Act and nearly two years after this Court's decision in Allen. 36 Fed. Reg. 18186; see Georgia v. United States, 411 U.S. 526. And it was not until the Allen decision that the Department even attempted 149 to develop standards and procedures for enforcing § 5. See 1975 Senate Hearings 537 (testimony of Assistant Attorney General J. Stanley Pottinger). In short, there was no "contemporaneous" construction of the Act by the Attorney General. It may have been reasonable for the Attorney General, in promulgating regulations after the Allen decision, to have assumed that, since the section now covered all voting changes and not simply registration changes, all political units and not simply political subdivisions were also covered. But that assumption sheds no light on Congress' intention in passing the Act in 1965. Nor, in my judgment, are the subsequent amendments of the Act in 1970 and 1975 reliable guides to what Congress intended in 1965 when it drafted the relevant statutory language. The 1970 and 1975 extensions of the Act did not change the operative language in § 5 or alter the definition of the term "political subdivision." As I suggested a few years ago, "[a]n interpretation of a provision in [a] controversial and integrated statute . . . cannot fairly be predicated on unexplained inaction by different Congresses in subsequent years." Hodgson v. Lodge 851, Int'l Assn. of Mach. & Aerospace Workers, 454 F.2d 545, 562 (CA7 1971) (dissenting opinion).[12] 150 In sum, I am persuaded that the result the Court reaches today is not a faithful reflection of the actual intent of the Congress that enacted the statute. I therefore respectfully dissent.	The principal question presented by this case is whether the city of Sheffield, Ala., is covered by 5 of the Voting Rights Act of 1965.[1] If that question could be answered solely by reference to the Act's broad remedial purposes, it might be an easy one. But on the basis of the statute as written, the question is not nearly as simple as the Court implies. I believe it requires two separate inquiries: First, whether the city of Sheffield is a "political subdivision" within the meaning of 5; and second, even if that question is answered in the negative, whether action by the city should 141 be regarded as action of the State within the meaning of that section. I Briefly stated, 5 provides that whenever a State or a political subdivision, designated pursuant to 4, seeks to change a voting practice, it must obtain clearance for that change from either the United States District Court for the District of Columbia or the Attorney General of the United States.[2] This so-called "preclearance" requirement is one of the most extraordinary remedial provisions in an Act noted for its broad remedies. Even the Department of Justice has described it as a "substantial departure from ordinary concepts of our federal system";[3] its encroachment on state sovereignty is significant and undeniable. The section must, therefore, be read and interpreted with care. As a starting point, it is clear that it applies only to actions taken by two types of political unitsStates or political subdivisions. Since Alabama is a designated State under 4, "each and every political subdivision within that State" is covered by 5. See H. R. Rep. No. 439, 89th Cong., 1st Sess., 25 (1965). This does not, however, mean that the city of Sheffield is a "political subdivision" of Alabama covered by 5. For the Act specifically defines "political subdivision," and that definition does not even arguably include an entity such as Sheffield. Section 14 (c) (2) of the Act provides: "The term `political subdivision' shall mean any county or parish, except that where registration for voting is not 142 conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting." Sheffield is not a county or a parish, and it does not conduct registration for voting. Consequently, it is not a "political subdivision."[4] The legislative history of 14 (c) (2) demonstrates that the term "political subdivision" was defined for the specific purpose of limiting the coverage of the Act. Because the term had not been defined in the bill as originally drafted, Senator Ervin, among others, recognized that it might be read to encompass minor, local governmental units. It was to allay this concern that the definition was included in the Act. "Senator ERVIN. This [an early version of the Voting Rights Act] not only applies to a State, but this would apply to any little election district in the State "Attorney General KATZENBACH. I do not believe so, Senator. There is a question as to what the term `political subdivision' means. I have taken the view in the other body and I would state it here that we are talking about the area in which people are registered, the appropriate unit for registering. I believe in every State 143 that comes within the provisions of this, we are talking about no area smaller than a county or a parish. "Senator ERVIN. Do you not think that you had better amend your bill to so provide, because in North Carolina, every municipality is a political subdivision of the State, even every sanitary district is a subdivision of the State. Also every election district is a subdivision of the State, every school district every special bond, school-bond, district is a subdivision of the State. "Attorney General KATZENBACH. I think that might be done to define political subdivision here in the bill in that way, Senator. That is what I intended." Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 44 (1965) (1965 Senate Hearings). See also Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., 21 (1965) (1965 House Hearings). Later, during the Senate debate on the Voting Rights Act, Senator Ervin referred to the above dialogue with Attorney General Katzenbach and stated, without contradiction, that the term "political subdivision" had been defined to avoid a construction of the Act that would "confer jurisdiction upon the Federal Government to intervene in every ward of every city and town covered by the bill." 111 Cong. Rec. 9270 (1965). The Senate Report on the Voting Rights Act made the same point equally bluntly: "This definition makes clear that the term `political subdivision' is not intended to encompass precincts, election districts, or other similar units when they are within a county or parish which supervises registration for voting." S. Rep. No. 162, pt. 3, 89th Cong., 1st Sess., 31 (1965).[5] 144 In short, whatever other ambiguities there may be in the Act, the definition of "political subdivision" is not one of them. It was clearly intended to limit the reach of the Act, and the definition clearly excludes cities, such as Sheffield, that do not register voters. II The remaining question is whether a political unit that does not register voters may be regarded as the "State," as that term is used in 5. If there were no contrary legislative history, it might be reasonable to treat the action of entities such as Sheffield, which are within the jurisdiction of a covered State, as "state action," just as such governmental action would be regarded as state action in a constitutional sense. However, such an interpretation of the word "State" would extend the reach of the statute to the same kind of purely local matters that Congress intended to exclude by defining the term "political subdivision." As is apparent from the comments of Senator Ervin, there was congressional concern over whether the Act would extend to governmental units below the county level. That concern was repeatedly expressed and was specifically addressed in 14 (c) (2). Unquestionably, as the Court recognizes, ante, at 128-129, that section protects small political units, such as school boards, from being separately designated for coverage under 4 (b). The concerns which motivated this exclusion from 4 (b) apply equally to 5.[6] Indeed, the 145 legislative history provides a perfectly logical explanation of why Congress deliberately limited the reach of 5, as well as 4 (b), to "political subdivisions," as defined by the Act. First, a preclearance requirement limited to governmental units engaged in the registration process would be in accord with the fact that the Act was principally concerned with literacy tests and other devices which were being used to prevent black citizens from registering to vote. As Attorney General Katzenbach repeatedly emphasized, the "bill really is aimed at getting people registered." See 1965 House Hearings 21.[7] 146 Second, the Act limits judicial review of an election change under 5 to a three-judge District Court sitting in the District of Columbia. The opponents of the Act frequently expressed their outrage at this limitation, arguing that it was unfair to make people travel "250 or 1,000 or 3,000 miles in order to gain access to a court of justice." See, e. g., 1965 Senate Hearings 43 (remarks of Sen. Ervin); 111 Cong. Rec. 10371 (remarks of Sen. Ellender) (1965). Proponents of 5 justified the provision on the ground that it would not be difficult or unusual for a State, county, or comparable body to have to make its arguments in Washington, D. C. See, e. g., Senate Hearing 44 (testimony of Attorney General Katzenbach). Senator Javits' comments on the floor of the Senate are typical of this line of argument. "Finally, it cannot be claimed that the bill is unfair to litigants other than the Federal Government because we are not dealing with litigants who are unable to pursue a legal remedy. We are not dealing with litigants who might find travel difficult or legal proceedings or appearances expensive. We are dealing with political subdivisions and States, which have county attorneys or State 147 attorneys general who come to Washington, D. C., for many things, and they would not be required to come to Washington merely to participate in litigation that might arise under the bill." 111 Cong. Rec. 10363 (1965). Obviously, this same argument does not apply to most townships, school boards, and the numerous other small, local units involved in the political process. Whether or not it would be "fair" to make these smaller political units argue their cases only in Washington, D. C., the drafters and supporters of the Act gave assurances that 5 was not so intended. A broad definition of "State" would nullify those assurances just as surely as a loose interpretation of "political subdivision." Finally, the logistical and administrative problems inherent in reviewing all voting changes of all political units strongly suggest that Congress placed limits on the preclearance requirement. Statistics show that the Attorney General's staff is now processing requests for voting changes at the rate of over 1,000 per year.[8] and this rate is by no means indicative of the number of submissions involved if all covered States and political units fully complied with the preclearance requirement, as interpreted by the Attorney General.[9] Furthermore, under the statute each request must be passed upon within 60 days of its submission. This large and rapid volume 148 of work is a product, in part, of this Court's decision in Allen.[10] But even apart from Allen, it is certainly reasonable to believe that Congress, having placed a strict time limit on the Attorney General's consideration of submissions, also deliberately placed a limit on the number and importance of the submissions themselves.[11] This result was achieved by restricting the reach of 5 to enactments of either the States themselves or their political subdivisions, as defined by 14 (c) (2). Neither the "contemporaneous" construction of the Act by the Attorney General nor the subsequent amendments of 5 by Congress, in my judgment, undermine the validity of this reading of the section. The Court asserts that the "Attorney General has, since the Act was adopted in 1965, interpreted 5 as requiring all political units in designated jurisdictions to preclear proposed voting changes." Ante, at 131. The unambiguous historical evidence is to the contrary. The Department of Justice did not adopt regulations implementing 5's preclearance provisions until September six years after the passage of the Act and nearly two years after this Court's decision in Allen. ; see And it was not until the Allen decision that the Department even attempted 149 to develop standards and procedures for enforcing 5. See 1975 Senate Hearings 537 (testimony of Assistant Attorney General J. Stanley Pottinger). In short, there was no "contemporaneous" construction of the Act by the Attorney General. It may have been reasonable for the Attorney General, in promulgating regulations after the Allen decision, to have assumed that, since the section now covered all voting changes and not simply registration changes, all political units and not simply political subdivisions were also covered. But that assumption sheds no light on Congress' intention in passing the Act in 1965. Nor, in my judgment, are the subsequent amendments of the Act in 1970 and 1975 reliable guides to what Congress intended in 1965 when it drafted the relevant statutory language. The 1970 and 1975 extensions of the Act did not change the operative language in 5 or alter the definition of the term "political subdivision." As I suggested a few years ago, "[a]n interpretation of a provision in [a] controversial and integrated statute cannot fairly be predicated on unexplained inaction by different Congresses in subsequent years."[12] 150 In sum, I am persuaded that the result the Court reaches today is not a faithful reflection of the actual intent of the Congress that enacted the statute. I therefore respectfully dissent.
Justice Rehnquist	concurring	false	American Telephone & Telegraph Co. v. Central Office Telephone, Inc.	1998-06-15T00:00:00	null	https://www.courtlistener.com/opinion/118229/american-telephone-telegraph-co-v-central-office-telephone-inc/	https://www.courtlistener.com/api/rest/v3/clusters/118229/	1,998	1997-086	2	7	1	The Court concludes that respondent's tortious interference claim is "wholly derivative of the contract claim" and therefore barred by the filed rate doctrine. The Court accepts the Magistrate Judge's finding to that effect, ante, at 226, and I agree: The acts of tortious interference asserted 229 against AT&T amount to no more than an intentional refusal to provide services to respondent in an amount or manner contrary to the filed tariff. I write separately to note that this finding is necessary to the conclusion that respondent's state-law tort claim may not proceed. As the majority correctly states, the filed rate doctrine exists to protect the "antidiscriminatory policy which lies at `the heart of the common-carrier section of the Communications Act.' " Ante, at 223. Central to that antidiscriminatory policy is the notion that all purchasers of services covered by the tariff will pay the same rate. The filed rate doctrine furthers this policy by disallowing suits brought to enforce agreements to provide services on terms different from those listed in the tariff. This ensures that the tariff governs the terms by which the common carrier provides those services to its customers. It is crucial to note, however, that this is all the tariff governs. In order for the filed rate doctrine to serve its purpose, therefore, it need pre-empt only those suits that seek to alter the terms and conditions provided for in the tariff. This is how the doctrine has been applied in the past. In Chicago & Alton R. Co. v. Kirby, 225 U.S. 155 (1912), for example, respondent entered into a contract with petitioner to ship horses from Springfield, Illinois, to New York City via a special fast train. The tariff that the petitioner had filed "did not provide for an expedited service, nor for transportation by any particular train." Id., at 163. The Court ruled that respondent's suit to enforce the special arrangement could not proceed: "An advantage accorded by special agreement which affects the value of the service to the shipper and its cost to the carrier should be published in the tariffs, and for a breach of such a contract, relief will be denied, because its allowance without such publication is a violation of the act. It is also illegal because it is an undue advantage 230 in that it is not one open to all others in the same situation." Id., at 165. In Keogh v. Chicago & Northwestern R. Co., 260 U.S. 156, 163 (1922), the question was not whether a separate contract could be enforced, but rather whether petitioner could bring an antitrust complaint challenging the rate that respondents had filed in their tariff. The Court ruled that he could not: "The legal rights of shipper as against carrier in respect to a rate are measured by the published tariff. Unless and until suspended or set aside, this rate is made, for all purposes, the legal rate, as between carrier and shipper. The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier." Ibid. (emphasis added). In this case respondent's contract claim seeks to enforce side arrangements that it made with petitioner. Respondent contends that petitioner promised to provide it with services on terms different from those listed in the tariff. As the above cases make clear, the filed rate doctrine bars such a claim. Respondent's tort claim is entirely derivative of its contractual claim, and the Court is therefore correct in concluding that the doctrine also bars the tort claim. The tariff does not govern, however, the entirety of the relationship between the common carrier and its customers. For example, it does not affect whatever duties state law might impose on petitioner to refrain from intentionally interfering with respondent's relationships with its customers by means other than failing to honor unenforceable side agreements, or to refrain from engaging in slander or libel, or to satisfy other contractual obligations. The filed rate doctrine's purpose is to ensure that the filed rates are the exclusive source of the terms and conditions by which the common carrier provides to its customers the services covered by the tariff. It does not serve as a shield against all *231 actions based in state law. It is with this understanding that I join the Court's opinion.	The Court concludes that respondent's tortious interference claim is "wholly derivative of the contract claim" and therefore barred by the filed rate doctrine. The Court accepts the Magistrate Judge's finding to that effect, ante, at 226, and I agree: The acts of tortious interference asserted 229 against AT&T amount to no more than an intentional refusal to provide services to respondent in an amount or manner contrary to the filed tariff. I write separately to note that this finding is necessary to the conclusion that respondent's state-law tort claim may not proceed. As the majority correctly states, the filed rate doctrine exists to protect the "antidiscriminatory policy which lies at `the heart of the common-carrier section of the Communications Act.' " Ante, at 223. Central to that antidiscriminatory policy is the notion that all purchasers of services covered by the tariff will pay the same rate. The filed rate doctrine furthers this policy by disallowing suits brought to enforce agreements to provide services on terms different from those listed in the tariff. This ensures that the tariff governs the terms by which the common carrier provides those services to its customers. It is crucial to note, however, that this is all the tariff governs. In order for the filed rate doctrine to serve its purpose, therefore, it need pre-empt only those suits that seek to alter the terms and conditions provided for in the tariff. This is how the doctrine has been applied in the past. In Chicago & Alton R. for example, respondent entered into a contract with petitioner to ship horses from Springfield, Illinois, to New York City via a special fast train. The tariff that the petitioner had filed "did not provide for an expedited service, nor for transportation by any particular train." The Court ruled that respondent's suit to enforce the special arrangement could not proceed: "An advantage accorded by special agreement which affects the value of the service to the shipper and its cost to the carrier should be published in the tariffs, and for a breach of such a contract, relief will be denied, because its allowance without such publication is a violation of the act. It is also illegal because it is an undue advantage 230 in that it is not one open to all others in the same situation." In the question was not whether a separate contract could be enforced, but rather whether petitioner could bring an antitrust complaint challenging the rate that respondents had filed in their tariff. The Court ruled that he could not: "The legal rights of shipper as against carrier in respect to a rate are measured by the published tariff. Unless and until suspended or set aside, this rate is made, for all purposes, the legal rate, as between carrier and shipper. The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier." In this case respondent's contract claim seeks to enforce side arrangements that it made with petitioner. Respondent contends that petitioner promised to provide it with services on terms different from those listed in the tariff. As the above cases make clear, the filed rate doctrine bars such a claim. Respondent's tort claim is entirely derivative of its contractual claim, and the Court is therefore correct in concluding that the doctrine also bars the tort claim. The tariff does not govern, however, the entirety of the relationship between the common carrier and its customers. For example, it does not affect whatever duties state law might impose on petitioner to refrain from intentionally interfering with respondent's relationships with its customers by means other than failing to honor unenforceable side agreements, or to refrain from engaging in slander or libel, or to satisfy other contractual obligations. The filed rate doctrine's purpose is to ensure that the filed rates are the exclusive source of the terms and conditions by which the common carrier provides to its customers the services covered by the tariff. It does not serve as a shield against all *231 actions based in state law. It is with this understanding that I join the Court's opinion.
Justice Alito	dissenting	false	Walker v. Texas Div., Sons of Confederate Veterans, Inc.	2015-06-18T00:00:00	null	https://www.courtlistener.com/opinion/2809762/walker-v-texas-div-sons-of-confederate-veterans-inc/	https://www.courtlistener.com/api/rest/v3/clusters/2809762/	2,015	2014-058	1	5	4	The Court’s decision passes off private speech as gov- ernment speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing. Under our First Amendment cases, the dis- tinction between government speech and private speech is critical. The First Amendment “does not regulate gov- ernment speech,” and therefore when government speaks, it is free “to select the views that it wants to express.” Pleasant Grove City v. Summum, 555 U.S. 460, 467–468 (2009). By contrast, “[i]n the realm of private speech or expression, government regulation may not favor one speaker over another.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). Unfortunately, the Court’s decision categorizes private speech as government speech and thus strips it of all First Amendment protection. The Court holds that all the privately created messages on the many specialty plates issued by the State of Texas convey a government message rather than the message of the motorist displaying the plate. Can this possibly be correct? Here is a test. Suppose you sat by the side of a Texas 2 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting highway and studied the license plates on the vehicles passing by. You would see, in addition to the standard Texas plates, an impressive array of specialty plates. (There are now more than 350 varieties.) You would likely observe plates that honor numerous colleges and universi- ties. You might see plates bearing the name of a high school, a fraternity or sorority, the Masons, the Knights of Columbus, the Daughters of the American Revolution, a realty company, a favorite soft drink, a favorite burger restaurant, and a favorite NASCAR driver. As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Mon- day morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games— Notre Dame, Oklahoma State, the University of Okla- homa, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina)1 is the official favorite of the State government? The Court says that all of these messages are govern- ment speech. It is essential that government be able to express its own viewpoint, the Court reminds us, because otherwise, how would it promote its programs, like recy- cling and vaccinations? Ante, at 5–6. So when Texas issues a “Rather Be Golfing” plate, but not a “Rather Be —————— 1 Elliot, Shifting Gears, Forbes Life, Oct. 2013, pp. 55, 57. Cite as: 576 U. S. ____ (2015) 3 ALITO, J., dissenting Playing Tennis” or “Rather Be Bowling” plate, it is fur- thering a state policy to promote golf but not tennis or bowling. And when Texas allows motorists to obtain a Notre Dame license plate but not a University of South- ern California plate, it is taking sides in that long-time rivalry. This capacious understanding of government speech takes a large and painful bite out of the First Amendment. Specialty plates may seem innocuous. They make motor- ists happy, and they put money in a State’s coffers. But the precedent this case sets is dangerous. While all li- cense plates unquestionably contain some government speech (e.g., the name of the State and the numbers and/or letters identifying the vehicle), the State of Texas has converted the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards be- cause the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination. If the State can do this with its little mobile billboards, could it do the same with big, stationary billboards? Sup- pose that a State erected electronic billboards along its highways. Suppose that the State posted some govern- ment messages on these billboards and then, to raise money, allowed private entities and individuals to pur- chase the right to post their own messages. And suppose that the State allowed only those messages that it liked or found not too controversial. Would that be constitutional? What if a state college or university did the same thing with a similar billboard or a campus bulletin board or dorm list serve? What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty? 4 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but the future uses of today’s precedent remain to be seen. I A Specialty plates like those involved in this case are a recent development. License plates originated solely as a means of identifying vehicles. In 1901, New York became the first State to require automobiles to be licensed, but rather than issue license plates itself, New York required drivers to display their initials on their cars. J. Minard & T. Stentiford, A Moving History 50 (2004). Two years later, Massachusetts became the first State to issue li- cense plates. The plates said “Mass. Automobile Register” and displayed the vehicle’s registration number. Id., at 51. Plates of this type—featuring a registration number, the name of the State, and sometimes the date—were the standard for decades thereafter. See id., at 52–94; see also generally, J. Fox, License Plates of the United States 10– 99 (1997). Texas license plates initially followed this pattern. When the first official state plate appeared in 1917, it featured a number and the abbreviation “TEX.” Texas Department of Transportation, The History of Texas License Plates 9 (1999) (History). In 1925, the year of issue was added, and the State began issuing plates that identified certain vehicle types, e.g., “C-M” for commercial trucks (1925), id., at 14–15; “FARM” for farm trucks (1935), id., at 22; “Overwidth” (1949), id., at 32; “House Trailer” (1951), id., at 36. In 1936, a special plate with the word “CENTENNIAL” was created to mark the State’s 100th birthday, and the first plate identifying the owner as a “State Official” appeared two years later. Id., at 20, 25. Starting in the 1950’s, Texas began issuing plates to Cite as: 576 U. S. ____ (2015) 5 ALITO, J., dissenting identify some other registrants, such as “Amateur Radio Operator” (1954), id., at 38, “State Judge” (1970) id., at 64; and “Disabled Veteran,” (1972), id., at 79. A sesquicentennial plate appeared in 1985, and two years later, legislation was introduced to create a bronze license plate with 14-karat gold-plated lettering, available for a fee of $1,000. Id., at 81. The proposal aimed to make the State a profit, but it failed to pass. Ibid. It was not until 1989 that anything that might be con- sidered a message was featured regularly on Texas plates. The words “The Lone Star State” were added “as a means of bringing favorable recognition to Texas.” Id., at 82. Finally, in the late 1990’s, license plates containing a small variety of messages, selected by the State, became available for the first time. Id., at 101. These messages included slogans like “Read to Succeed,” “Keep Texas Beautiful,” “Animal Friendly,” “Big Bend National Park,” “Houston Livestock Show and Rodeo,” and “Lone Star Proud.” Id., at 101, 113. Also issued in the 1990’s were plates bearing the names of colleges and universities, and some plates (e.g., “State of the Arts,” “State Capitol Resto- ration”) were made available to raise funds for special purposes. Id., 101. Once the idea of specialty plates took hold, the number of varieties quickly multiplied, and today, we are told, Texas motorists can choose from more than 350 messages, including many designs proposed by nonprofit groups or by individuals and for-profit businesses through the State’s third-party vendor. Brief for Respondents at 2; see also Texas Department of Motor Vehicles, online at http:// www.txdmv.gov/motorists/license-plates/specialty-license- plates (all Internet materials as visited June 12, 2015, and available in Clerk of Court’s case file); http:// www.myplates.com. Drivers can select plates advertising organizations and causes like 4–H, the Boy Scouts, the American Legion, Be 6 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting a Blood Donor, the Girl Scouts, Insure Texas Kids, Moth- ers Against Drunk Driving, Marine Mammal Recovery, Save Texas Ocelots, Share the Road, Texas Reads, Texas Realtors (“I am a Texas Realtor”), the Texas State Rifle Association (“WWW.TSRA.COM”), the Texas Trophy Hunters Association, the World Wildlife Fund, the YMCA, and Young Lawyers.2 There are plates for fraternities and sororities and for in-state schools, both public (like Texas A & M and Texas Tech) and private (like Trinity University and Baylor). An even larger number of schools from out-of-state are hon- ored: Arizona State, Brigham Young, Florida State, Mich- igan State, Alabama, and South Carolina, to name only a few. There are political slogans, like “Come and Take It” and “Don’t Tread on Me,” and plates promoting the citrus industry and the “Cotton Boll.” Commercial businesses can have specialty plates, too. There are plates advertis- ing Remax (“Get It Sold with Remax”), Dr. Pepper (“Al- ways One of a Kind”), and Mighty Fine Burgers. B The Texas Division of Sons of Confederate Veterans (SCV) is an organization composed of descendants of Confederate soldiers. The group applied for a Texas spe- cialty license plate in 2009 and again in 2010. Their proposed design featured a controversial symbol, the Confederate battle flag, surrounded by the words “Sons of Confederate Veterans 1896” and a gold border. App. 29. The Texas Department of Motor Vehicles Board (or Board) invited public comments and considered the plate design at a meeting in April 2011. At that meeting, one board member was absent, and the remaining eight members —————— 2 The Appendix, infra, reproduces the available specialty plates men- tioned throughout this opinion in order of first reference. When catego- ries are referenced, examples from the category have been included. Cite as: 576 U. S. ____ (2015) 7 ALITO, J., dissenting deadlocked on whether to approve the plate. The Board thus reconsidered the plate at its meeting in November 2011. This time, many opponents of the plate turned out to voice objections. The Board then voted unanimously against approval and issued an order stating: “The Board has considered the information and finds it necessary to deny this plate design applica- tion, specifically the confederate flag portion of the de- sign, because public comments have shown that many members of the general public find the design offen- sive, and because such comments are reasonable. The Board finds that a significant portion of the public as- sociate the confederate flag with organizations advo- cating expressions of hate directed toward people or groups that is demeaning to those people or groups.” Id., at 64–65. The Board also saw “a compelling public interest in pro- tecting a conspicuous mechanism for identification, such as a license plate, from degrading into a possible public safety issue.” Id., at 65. And it thought that the public interest required rejection of the plate design because the controversy surrounding the plate was so great that “the design could distract or disturb some drivers to the point of being unreasonably dangerous.” Ibid. At the same meeting, the Board approved a Buffalo Soldiers plate design by a 5-to-3 vote. Proceeds from fees paid by motorists who select that plate benefit the Buffalo Soldier National Museum in Houston, which is “dedicated primarily to preserving the legacy and honor of the Afri- can American soldier.” Buffalo Soldier National Museum, online at http://www.buffalosoldiermuseum.com. “Buffalo Soldiers” is a nickname that was originally given to black soldiers in the Army’s 10th Cavalry Regiment, which was formed after the Civil War, and the name was later used to describe other black soldiers. W. Leckie & S. Leckie, 8 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting The Buffalo Soldiers: A Narrative of the Black Cavalry in the West 21, 26–27 (2003). The original Buffalo Soldiers fought with distinction in the Indian Wars, but the “Buf- falo Soldiers” plate was opposed by some Native Americans. One leader commented that he felt “ ‘the same way about the Buffalo Soldiers’ ” as African-Americans felt about the Confederate flag. Scharrer, Specialty License Plates can Bring in Revenue, But Some Stir Up Controversy, Hous- ton Chronicle, Nov. 26, 2011, P.B2. “ ‘When we see the U. S. Cavalry uniform,’ ” he explained, “ ‘we are forced to relive an American holocaust.’ ” Ibid. II A Relying almost entirely on one precedent—Pleasant Grove City v. Summum, 555 U.S. 460—the Court holds that messages that private groups succeed in placing on Texas license plates are government messages. The Court badly misunderstands Summum. In Summum, a private group claimed the right to erect a large stone monument in a small city park. Id., at 464. The 2.5-acre park contained 15 permanent displays, 11 of which had been donated by private parties. Ibid. The central question concerned the nature of the municipal government’s conduct when it accepted privately donated monuments for placement in its park: Had the city created a forum for private speech, or had it accepted donated monuments that expressed a government message? We held that the monuments represented government speech, and we identified several important factors that led to this conclusion. First, governments have long used monuments as a means of expressing a government message. As we put it, “[s]ince ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their sub- jects of their authority and power.” Id., at 470. Here in Cite as: 576 U. S. ____ (2015) 9 ALITO, J., dissenting the United States, important public monuments like the Statue of Liberty, the Washington Monument, and the Lincoln Memorial, express principles that inspire and bind the Nation together. Thus, long experience has led the public to associate public monuments with government speech. Second, there is no history of landowners allowing their property to be used by third parties as the site of large permanent monuments that do not express messages that the landowners wish to convey. See id., at 471. While “[a] great many of the monuments that adorn the Nation’s public parks were financed with private funds or donated by private parties,” “cities and other jurisdictions take some care in accepting donated monuments” and select those that “conve[y] a government message.” Id., at 471– 472. We were not presented in Summum with any exam- ples of public parks that had been thrown open for private groups or individuals to put up whatever monuments they desired. Third, spatial limitations played a prominent part in our analysis. See id., at 478–479. “[P]ublic parks can accom- modate only a limited number of permanent monuments,” and consequently permanent monuments “monopolize the use of the land on which they stand and interfere perma- nently with other uses of public space.” Ibid. Because only a limited number of monuments can be built in any given space, governments do not allow their parks to be cluttered with monuments that do not serve a government purpose, a point well understood by those who visit parks and view the monuments they contain. These characteristics, which rendered public monu- ments government speech in Summum, are not present in Texas’s specialty plate program. 10 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting B 1 I begin with history. As we said in Summum, govern- ments have used monuments since time immemorial to express important government messages, and there is no history of governments giving equal space to those wishing to express dissenting views. In 1775, when a large gilded equestrian statue of King George III dominated Bowling Green, a small park in lower Manhattan,3 the colonial governor surely would not have permitted the construction on that land of a monument to the fallen at Lexington and Concord. When the United States accepted the Third French Republic’s gift of the Statue of Liberty in 1877, see id., at 477, Congress, it seems safe to say, would not have welcomed a gift of a Statue of Authoritarianism if one had been offered by another country. Nor is it likely that the National Park Service today would be receptive if private groups, pointing to the Lincoln Memorial, the Martin Luther King, Jr., Memorial, and the Vietnam Veterans Memorial on the National Mall, sought permission to put up monuments to Jefferson Davis, Orval Faubus, or the North Vietnamese Army. Governments have always used public monuments to express a government message, and members of the public understand this. The history of messages on license plates is quite differ- ent. After the beginning of motor vehicle registration in 1917, more than 70 years passed before the proliferation of specialty plates in Texas. It was not until the 1990’s that motorists were allowed to choose from among 10 messages, such as “Read to Succeed” and “Keep Texas Beautiful.” History at 101. Up to this point, the words on the Texas plates can be considered government speech. The messages were created —————— 3 The Statue That Was Made Into Bullets, N. Y. Times Magazine, July 21, 1901, at p.6. Cite as: 576 U. S. ____ (2015) 11 ALITO, J., dissenting by the State, and they plausibly promoted state pro- grams.4 But when, at some point within the last 20 years or so, the State began to allow private entities to secure plates conveying their own messages, Texas crossed the line. The contrast between the history of public monuments, which have been used to convey government messages for centuries, and the Texas license plate program could not be starker. In an attempt to gather historical support for its posi- tion, the Court relies on plates with the mottos or symbols of other States. As the Court notes, some of these were issued well before “The Lone Star State” made its debut in Texas in 1991. Id., at 82. But this history is irrelevant for present purposes. Like the 1991 Texas plate, these out-of- state plates were created by the States that issued them, and motorists generally had no choice but to accept them. For example, the State of New Hampshire made it a crime to cover up the words “Live Free or Die” on its plates. See Wooley v. Maynard, 430 U.S. 705 (1977). The words and symbols on plates of this sort were and are government speech, but plates that are essentially commissioned by private entities (at a cost that exceeds $8,000) and that express a message chosen by those enti- ties are very different—and quite new. Unlike in Sum- mum, history here does not suggest that the messages at issue are government speech. 2 The Texas specialty plate program also does not exhibit the “selective receptivity” present in Summum. To the contrary, Texas’s program is not selective by design. The Board’s chairman, who is charged with approving designs, —————— 4 This opinion does not address whether the unique combination of letters and/or numbers assigned to each vehicle, even when selected by the motorist, is private speech. 12 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting explained that the program’s purpose is “to encourage private plates” in order to “generate additional revenue for the state.” Ibid., 58. And most of the time, the Board “base[s] [its] decisions on rules that primarily deal with reflectivity and readability.” Ibid. A Department bro- chure explains: “Q. Who provides the plate design? A. You do, though your design is subject to reflectivity, legi- bility, and design standards.” Id., at 67.b. Pressed to come up with any evidence that the State has exercised “selective receptivity,” Texas (and the Court) rely primarily on sketchy information not contained in the record, specifically that the Board’s predecessor (might have) rejected a “pro-life” plate and perhaps others on the ground that they contained messages that were offensive. See ante, at 11 (citing Reply Brief 10 and Tr. of Oral Arg. 49–51). But even if this happened, it shows only that the present case may not be the only one in which the State has exercised viewpoint discrimination. Texas’s only other (also extrarecord) evidence of selectiv- ity concerns a proposed plate that was thought to create a threat to the fair enforcement of the State’s motor vehicle laws. Reply Brief 9–10 (citing publicly avail- able Transcript of Texas Department of Motor Vehicles Board Meeting, Aug. 9, 2012, p. 112, online at http:// www.txdmv.gov/reports-and-data/doc_download/450–2012– tran-aug9). This proposed plate was a Texas DPS Troopers Foundation (Troopers) plate, proposed in 2012. The Board considered that proposed plate at an August 2012 meet- ing, at which it approved six other plate designs without discussion, but it rejected the Troopers plate in a dead- locked vote due to apparent concern that the plate could give the impression that those displaying it would receive favored treatment from state troopers. Id., at 109–112. The constitutionality of this Board action does not neces- sarily turn on whether approval of this plate would have made the message government speech. If, as I believe, the Cite as: 576 U. S. ____ (2015) 13 ALITO, J., dissenting Texas specialty plate program created a limited public forum, private speech may be excluded if it is inconsistent with the purpose of the forum. Rosenberger, 515 U.S., at 829. Thus, even if Texas’s extrarecord information is taken into account, the picture here is different from that in Summum. Texas does not take care to approve only those proposed plates that convey messages that the State supports. Instead, it proclaims that it is open to all pri- vate messages—except those, like the SCV plate, that would offend some who viewed them. The Court believes that messages on privately created plates are government speech because motorists want a seal of state approval for their messages and therefore prefer plates over bumper stickers. Ante, at 10–11. This is dangerous reasoning. There is a big difference between government speech (that is, speech by the government in furtherance of its programs) and governmental blessing (or condemnation) of private speech. Many private speak- ers in a forum would welcome a sign of government ap- proval. But in the realm of private speech, government regulation may not favor one viewpoint over another. Rosenberger, supra, at 828. 3 A final factor that was important in Summum was space. A park can accommodate only so many permanent monuments. Often large and made of stone, monuments can last for centuries and are difficult to move. License plates, on the other hand, are small, light, mobile, and designed to last for only a relatively brief time. The only absolute limit on the number of specialty plates that a State could issue is the number of registered vehicles. The variety of available plates is limitless, too. Today Texas offers more than 350 varieties. In 10 years, might it be 3,500? 14 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting In sum, the Texas specialty plate program has none of the factors that were critical in Summum, and the Texas program exhibits a very important characteristic that was missing in that case: Individuals who want to display a Texas specialty plate, instead of the standard plate, must pay an increased annual registration fee. See http://www.dmv.org/tx-texas/license-plates.php. How many groups or individuals would clamor to pay $8,000 (the cost of the deposit required to create a new plate) in order to broadcast the government’s message as opposed to their own? And if Texas really wants to speak out in support of, say, Iowa State University (but not the Univer- sity of Iowa) or “Young Lawyers” (but not old ones), why must it be paid to say things that it really wants to say? The fees Texas collects pay for much more than merely the administration of the program. States have not adopted specialty license plate programs like Texas’s because they are now bursting with things they want to say on their license plates. Those programs were adopted because they bring in money. Texas makes public the revenue totals generated by its specialty plate program, and it is apparent that the program brings in many millions of dollars every year. See http://www.txdmv.gov/reports-and-data/doc_download/5050– specialty-plates-revenue-fy-1994-2014. Texas has space available on millions of little mobile billboards. And Texas, in effect, sells that space to those who wish to use it to express a personal message— provided only that the message does not express a view- point that the State finds unacceptable. That is not gov- ernment speech; it is the regulation of private speech. III What Texas has done by selling space on its license plates is to create what we have called a limited public forum. It has allowed state property (i.e., motor vehicle Cite as: 576 U. S. ____ (2015) 15 ALITO, J., dissenting license plates) to be used by private speakers according to rules that the State prescribes. Cf. Good News Club v. Milford Central School, 533 U.S. 98, 106–107 (2001). Under the First Amendment, however, those rules cannot discriminate on the basis of viewpoint. See Rosenberger, 515 U.S., at 829 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985)). But that is exactly what Texas did here. The Board rejected Texas SCV’s design, “specifically the confederate flag portion of the design, because public comments have shown that many members of the general public find the design offensive, and because such comments are reason- able.” App. 64. These statements indisputably demon- strate that the Board denied Texas SCV’s design because of its viewpoint. The Confederate battle flag is a controversial symbol. To the Texas Sons of Confederate Veterans, it is said to evoke the memory of their ancestors and other soldiers who fought for the South in the Civil War. See id., at 15– 16. To others, it symbolizes slavery, segregation, and hatred. Whatever it means to motorists who display that symbol and to those who see it, the flag expresses a view- point. The Board rejected the plate design because it concluded that many Texans would find the flag symbol offensive. That was pure viewpoint discrimination. If the Board’s candid explanation of its reason for reject- ing the SCV plate were not alone sufficient to establish this point, the Board’s approval of the Buffalo Soldiers plate at the same meeting dispels any doubt. The propo- nents of both the SCV and Buffalo Soldiers plates saw them as honoring soldiers who served with bravery and honor in the past. To the opponents of both plates, the images on the plates evoked painful memories. The Board rejected one plate and approved the other. Like these two plates, many other specialty plates have the potential to irritate and perhaps even infuriate those 16 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting who see them. Texas allows a plate with the words “Choose Life,” but the State of New York rejected such a plate because the message “ ‘[is] so incredibly divisive,’ ” and the Second Circuit recently sustained that decision. Children First Foundation, Inc. v. Fiala, ___ F. 3d ___, ___, 2015 WL 2444501, 18 (CA2, May 22, 2015). Texas allows a specialty plate honoring the Boy Scouts, but the group’s refusal to accept gay leaders angers some. Virginia, an- other State with a proliferation of specialty plates, issues plates for controversial organizations like the National Rifle Association, controversial commercial enterprises (raising tobacco and mining coal), controversial sports (fox hunting), and a professional sports team with a controver- sial name (the Washington Redskins). Allowing States to reject specialty plates based on their potential to offend is viewpoint discrimination. The Board’s decision cannot be saved by its suggestion that the plate, if allowed, “could distract or disturb some drivers to the point of being unreasonably dangerous.” App. 65. This rationale cannot withstand strict scrutiny. Other States allow specialty plates with the Confederate Battle Flag,5 and Texas has not pointed to evidence that these plates have led to incidents of road rage or accidents. Texas does not ban bumper stickers bearing the image of the Confederate battle flag. Nor does it ban any of the many other bumper stickers that convey political messages and other messages that are capable of exciting the ire of those who loathe the ideas they express. Cf. Good News Club, supra, at 111–112. * * Messages that are proposed by private parties and placed on Texas specialty plates are private speech, not —————— 5 See http://www.dmv.virginia.gov/vehicles/#splates/category.asp? category=SCITTexas Cite as: 576 U. S. ____ (2015) 17 ALITO, J., dissenting government speech. Texas cannot forbid private speech based on its viewpoint. That is what it did here. Because the Court approves this violation of the First Amendment, I respectfully dissent. 18 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO Appendix to, J., dissenting opinion of ALITO, J. APPENDIX Sample Texas Specialty Plates Cite as: 576 U. S. ____ (2015) 19 ALITO Appendix to, J., dissenting opinion of ALITO, J. 20 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO Appendix to, J., dissenting opinion of ALITO, J. Cite as: 576 U. S. ____ (2015) 21 ALITO Appendix to, J., dissenting opinion of ALITO, J. 22 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO Appendix to, J., dissenting opinion of ALITO, J. Cite as: 576 U. S. ____ (2015) 23 ALITO Appendix to, J., dissenting opinion of ALITO, J. All found at http://txdmv.gov/motorists/license- plates/specialty-license-plate	The Court’s decision passes off private speech as gov- ernment speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing. Under our First Amendment cases, the dis- tinction between government speech and private speech is critical. The First Amendment “does not regulate gov- ernment speech,” and therefore when government speaks, it is free “to select the views that it wants to express.” Pleasant Grove 467–468 (2009). By contrast, “[i]n the realm of private speech or expression, government regulation may not favor one speaker over another.” Unfortunately, the Court’s decision categorizes private speech as government speech and thus strips it of all First Amendment protection. The Court holds that all the privately created messages on the many specialty plates issued by the State of Texas convey a government message rather than the message of the motorist displaying the plate. Can this possibly be correct? Here is a test. Suppose you sat by the side of a Texas 2 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting highway and studied the license plates on the vehicles passing by. You would see, in addition to the standard Texas plates, an impressive array of specialty plates. (There are now more than 350 varieties.) You would likely observe plates that honor numerous colleges and universi- ties. You might see plates bearing the name of a high school, a fraternity or sorority, the Masons, the Knights of Columbus, the Daughters of the American Revolution, a realty company, a favorite soft drink, a favorite burger restaurant, and a favorite NASCAR driver. As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Mon- day morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games— Notre Dame, Oklahoma State, the University of Okla- homa, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina)1 is the official favorite of the State government? The Court says that all of these messages are govern- ment speech. It is essential that government be able to express its own viewpoint, the Court reminds us, because otherwise, how would it promote its programs, like recy- cling and vaccinations? Ante, at 5–6. So when Texas issues a “Rather Be Golfing” plate, but not a “Rather Be —————— 1 Elliot, Shifting Gears, Forbes Life, Oct. 2013, pp. 55, 57. Cite as: 576 U. S. 3 ALITO, J., dissenting Playing Tennis” or “Rather Be Bowling” plate, it is fur- thering a state policy to promote golf but not tennis or bowling. And when Texas allows motorists to obtain a Notre Dame license plate but not a University of South- ern California plate, it is taking sides in that long-time rivalry. This capacious understanding of government speech takes a large and painful bite out of the First Amendment. Specialty plates may seem innocuous. They make motor- ists happy, and they put money in a State’s coffers. But the precedent this case sets is dangerous. While all li- cense plates unquestionably contain some government speech (e.g., the name of the State and the numbers and/or letters identifying the vehicle), the State of Texas has converted the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards be- cause the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination. If the State can do this with its little mobile billboards, could it do the same with big, stationary billboards? Sup- pose that a State erected electronic billboards along its highways. Suppose that the State posted some govern- ment messages on these billboards and then, to raise money, allowed private entities and individuals to pur- chase the right to post their own messages. And suppose that the State allowed only those messages that it liked or found not too controversial. Would that be constitutional? What if a state college or university did the same thing with a similar billboard or a campus bulletin board or dorm list serve? What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty? 4 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but the future uses of today’s precedent remain to be seen. I A Specialty plates like those involved in this case are a recent development. License plates originated solely as a means of identifying vehicles. In 1901, New York became the first State to require automobiles to be licensed, but rather than issue license plates itself, New York required drivers to display their initials on their cars. J. Minard & T. Stentiford, A Moving History 50 (2004). Two years later, Massachusetts became the first State to issue li- cense plates. The plates said “Mass. Automobile Register” and displayed the vehicle’s registration number. at 51. Plates of this type—featuring a registration number, the name of the State, and sometimes the date—were the standard for decades thereafter. See at 52–94; see also generally, J. Fox, License Plates of the United States 10– 99 (1997). Texas license plates initially followed this pattern. When the first official state plate appeared in 1917, it featured a number and the abbreviation “TEX.” Texas Department of Transportation, The History of Texas License Plates 9 (1999) (History). In 1925, the year of issue was added, and the State began issuing plates that identified certain vehicle types, e.g., “C-M” for commercial trucks (1925), at 14–15; “FARM” for farm trucks (1935), ; “Overwidth” (1949), ; “House Trailer” (1951), In 1936, a special plate with the word “CENTENNIAL” was created to mark the State’s 100th birthday, and the first plate identifying the owner as a “State Official” appeared two years later. 25. Starting in the 1950’s, Texas began issuing plates to Cite as: 576 U. S. 5 ALITO, J., dissenting identify some other registrants, such as “Amateur Radio Operator” (1954), “State Judge” (1970) ; and “Disabled Veteran,” (1972), A sesquicentennial plate appeared in 1985, and two years later, legislation was introduced to create a bronze license plate with 14-karat gold-plated lettering, available for a fee of $1,000. The proposal aimed to make the State a profit, but it failed to pass. It was not until 1989 that anything that might be con- sidered a message was featured regularly on Texas plates. The words “The Lone Star State” were added “as a means of bringing favorable recognition to Texas.” Finally, in the late 1990’s, license plates containing a small variety of messages, selected by the State, became available for the first time. These messages included slogans like “Read to Succeed,” “Keep Texas Beautiful,” “Animal Friendly,” “Big Bend National Park,” “Houston Livestock Show and Rodeo,” and “Lone Star Proud.” 113. Also issued in the 1990’s were plates bearing the names of colleges and universities, and some plates (e.g., “State of the Arts,” “State Capitol Resto- ration”) were made available to raise funds for special purposes. Once the idea of specialty plates took hold, the number of varieties quickly multiplied, and today, we are told, Texas motorists can choose from more than 350 messages, including many designs proposed by nonprofit groups or by individuals and for-profit businesses through the State’s third-party vendor. Brief for Respondents at 2; see also Texas Department of Motor Vehicles, online at http:// www.txdmv.gov/motorists/license-plates/specialty-license- plates (all Internet materials as visited June 12, and available in Clerk of Court’s case file); http:// www.myplates.com. Drivers can select plates advertising organizations and causes like 4–H, the Boy Scouts, the American Legion, Be 6 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting a Blood Donor, the Girl Scouts, Insure Texas Kids, Moth- ers Against Drunk Driving, Marine Mammal Recovery, Save Texas Ocelots, Share the Road, Texas Reads, Texas Realtors (“I am a Texas Realtor”), the Texas State Rifle Association (“WWW.TSRA.COM”), the Texas Trophy Hunters Association, the World Wildlife Fund, the YMCA, and Young Lawyers.2 There are plates for fraternities and sororities and for in-state schools, both public (like Texas A & M and Texas Tech) and private (like Trinity University and Baylor). An even larger number of schools from out-of-state are hon- ored: Arizona State, Brigham Young, Florida State, Mich- igan State, Alabama, and South Carolina, to name only a few. There are political slogans, like “Come and Take It” and “Don’t Tread on Me,” and plates promoting the citrus industry and the “Cotton Boll.” Commercial businesses can have specialty plates, too. There are plates advertis- ing Remax (“Get It Sold with Remax”), Dr. Pepper (“Al- ways One of a Kind”), and Mighty Fine Burgers. B The Texas Division of Sons of Confederate Veterans (SCV) is an organization composed of descendants of Confederate soldiers. The group applied for a Texas spe- cialty license plate in 2009 and again in 2010. Their proposed design featured a controversial symbol, the Confederate battle flag, surrounded by the words “Sons of Confederate Veterans 1896” and a gold border. App. 29. The Texas Department of Motor Vehicles Board (or Board) invited public comments and considered the plate design at a meeting in April 2011. At that meeting, one board member was absent, and the remaining eight members —————— 2 The Appendix, infra, reproduces the available specialty plates men- tioned throughout this opinion in order of first reference. When catego- ries are referenced, examples from the category have been included. Cite as: 576 U. S. 7 ALITO, J., dissenting deadlocked on whether to approve the plate. The Board thus reconsidered the plate at its meeting in November 2011. This time, many opponents of the plate turned out to voice objections. The Board then voted unanimously against approval and issued an order stating: “The Board has considered the information and finds it necessary to deny this plate design applica- tion, specifically the confederate flag portion of the de- sign, because public comments have shown that many members of the general public find the design offen- sive, and because such comments are reasonable. The Board finds that a significant portion of the public as- sociate the confederate flag with organizations advo- cating expressions of hate directed toward people or groups that is demeaning to those people or groups.” –65. The Board also saw “a compelling public interest in pro- tecting a conspicuous mechanism for identification, such as a license plate, from degrading into a possible public safety issue.” And it thought that the public interest required rejection of the plate design because the controversy surrounding the plate was so great that “the design could distract or disturb some drivers to the point of being unreasonably dangerous.” At the same meeting, the Board approved a Buffalo Soldiers plate design by a 5-to-3 vote. Proceeds from fees paid by motorists who select that plate benefit the Buffalo Soldier National Museum in Houston, which is “dedicated primarily to preserving the legacy and honor of the Afri- can American soldier.” Buffalo Soldier National Museum, online at http://www.buffalosoldiermuseum.com. “Buffalo Soldiers” is a nickname that was originally given to black soldiers in the Army’s 10th Cavalry Regiment, which was formed after the Civil War, and the name was later used to describe other black soldiers. W. Leckie & S. Leckie, 8 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting The Buffalo Soldiers: A Narrative of the Black Cavalry in the West 21, 26–27 (2003). The original Buffalo Soldiers fought with distinction in the Indian Wars, but the “Buf- falo Soldiers” plate was opposed by some Native Americans. One leader commented that he felt “ ‘the same way about the Buffalo Soldiers’ ” as African-Americans felt about the Confederate flag. Scharrer, Specialty License Plates can Bring in Revenue, But Some Stir Up Controversy, Hous- ton Chronicle, Nov. 26, 2011, P.B2. “ ‘When we see the U. S. Cavalry uniform,’ ” he explained, “ ‘we are forced to relive an American holocaust.’ ” II A Relying almost entirely on one precedent—Pleasant Grove —the Court holds that messages that private groups succeed in placing on Texas license plates are government messages. The Court badly misunderstands Summum. In Summum, a private group claimed the right to erect a large stone monument in a small city park. The 2.5-acre park contained 15 permanent displays, 11 of which had been donated by private parties. The central question concerned the nature of the municipal government’s conduct when it accepted privately donated monuments for placement in its park: Had the city created a forum for private speech, or had it accepted donated monuments that expressed a government message? We held that the monuments represented government speech, and we identified several important factors that led to this conclusion. First, governments have long used monuments as a means of expressing a government message. As we put it, “[s]ince ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their sub- jects of their authority and power.” Here in Cite as: 576 U. S. 9 ALITO, J., dissenting the United States, important public monuments like the Statue of Liberty, the Washington Monument, and the Lincoln Memorial, express principles that inspire and bind the Nation together. Thus, long experience has led the public to associate public monuments with government speech. Second, there is no history of landowners allowing their property to be used by third parties as the site of large permanent monuments that do not express messages that the landowners wish to convey. See While “[a] great many of the monuments that adorn the Nation’s public parks were financed with private funds or donated by private parties,” “cities and other jurisdictions take some care in accepting donated monuments” and select those that “conve[y] a government message.” – 472. We were not presented in Summum with any exam- ples of public parks that had been thrown open for private groups or individuals to put up whatever monuments they desired. Third, spatial limitations played a prominent part in our analysis. See at 478–479. “[P]ublic parks can accom- modate only a limited number of permanent monuments,” and consequently permanent monuments “monopolize the use of the land on which they stand and interfere perma- nently with other uses of public space.” Because only a limited number of monuments can be built in any given space, governments do not allow their parks to be cluttered with monuments that do not serve a government purpose, a point well understood by those who visit parks and view the monuments they contain. These characteristics, which rendered public monu- ments government speech in Summum, are not present in Texas’s specialty plate program. 10 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting B 1 I begin with history. As we said in Summum, govern- ments have used monuments since time immemorial to express important government messages, and there is no history of governments giving equal space to those wishing to express dissenting views. In 1775, when a large gilded equestrian statue of King George III dominated Bowling Green, a small park in lower Manhattan,3 the colonial governor surely would not have permitted the construction on that land of a monument to the fallen at Lexington and Concord. When the United States accepted the Third French Republic’s gift of the Statue of Liberty in 1877, see Congress, it seems safe to say, would not have welcomed a gift of a Statue of Authoritarianism if one had been offered by another country. Nor is it likely that the National Park Service today would be receptive if private groups, pointing to the Lincoln Memorial, the Martin Luther King, Jr., Memorial, and the Vietnam Veterans Memorial on the National Mall, sought permission to put up monuments to Jefferson Davis, Orval Faubus, or the North Vietnamese Army. Governments have always used public monuments to express a government message, and members of the public understand this. The history of messages on license plates is quite differ- ent. After the beginning of motor vehicle registration in 1917, more than 70 years passed before the proliferation of specialty plates in Texas. It was not until the 1990’s that motorists were allowed to choose from among 10 messages, such as “Read to Succeed” and “Keep Texas Beautiful.” History Up to this point, the words on the Texas plates can be considered government speech. The messages were created —————— 3 The Statue That Was Made Into Bullets, N. Y. Times Magazine, July 21, 1901, at p.6. Cite as: 576 U. S. 11 ALITO, J., dissenting by the State, and they plausibly promoted state pro- grams.4 But when, at some point within the last 20 years or so, the State began to allow private entities to secure plates conveying their own messages, Texas crossed the line. The contrast between the history of public monuments, which have been used to convey government messages for centuries, and the Texas license plate program could not be starker. In an attempt to gather historical support for its posi- tion, the Court relies on plates with the mottos or symbols of other States. As the Court notes, some of these were issued well before “The Lone Star State” made its debut in Texas in 1991. But this history is irrelevant for present purposes. Like the 1991 Texas plate, these out-of- state plates were created by the States that issued them, and motorists generally had no choice but to accept them. For example, the State of New Hampshire made it a crime to cover up the words “Live Free or Die” on its plates. See The words and symbols on plates of this sort were and are government speech, but plates that are essentially commissioned by private entities (at a cost that exceeds $8,000) and that express a message chosen by those enti- ties are very different—and quite new. Unlike in Sum- mum, history here does not suggest that the messages at issue are government speech. 2 The Texas specialty plate program also does not exhibit the “selective receptivity” present in Summum. To the contrary, Texas’s program is not selective by design. The Board’s chairman, who is charged with approving designs, —————— 4 This opinion does not address whether the unique combination of letters and/or numbers assigned to each vehicle, even when selected by the motorist, is private speech. 12 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting explained that the program’s purpose is “to encourage private plates” in order to “generate additional revenue for the state.” Ib 58. And most of the time, the Board “base[s] [its] decisions on rules that primarily deal with reflectivity and readability.” A Department bro- chure explains: “Q. Who provides the plate design? A. You do, though your design is subject to reflectivity, legi- bility, and design standards.”b. Pressed to come up with any evidence that the State has exercised “selective receptivity,” Texas (and the Court) rely primarily on sketchy information not contained in the record, specifically that the Board’s predecessor (might have) rejected a “pro-life” plate and perhaps others on the ground that they contained messages that were offensive. See ante, at 11 (citing Reply Brief 10 and Tr. of Oral Arg. 49–51). But even if this happened, it shows only that the present case may not be the only one in which the State has exercised viewpoint discrimination. Texas’s only other (also extrarecord) evidence of selectiv- ity concerns a proposed plate that was thought to create a threat to the fair enforcement of the State’s motor vehicle laws. Reply Brief 9–10 (citing publicly avail- able Transcript of Texas Department of Motor Vehicles Board Meeting, Aug. 9, 2012, p. 112, online at http:// www.txdmv.gov/reports-and-data/doc_download/450–2012– tran-aug9). This proposed plate was a Texas DPS Troopers Foundation (Troopers) plate, proposed in 2012. The Board considered that proposed plate at an August 2012 meet- ing, at which it approved six other plate designs without discussion, but it rejected the Troopers plate in a dead- locked vote due to apparent concern that the plate could give the impression that those displaying it would receive favored treatment from state troopers. at 109–112. The constitutionality of this Board action does not neces- sarily turn on whether approval of this plate would have made the message government speech. If, as I believe, the Cite as: 576 U. S. 13 ALITO, J., dissenting Texas specialty plate program created a limited public forum, private speech may be excluded if it is inconsistent with the purpose of the forum. 515 U.S., at 829. Thus, even if Texas’s extrarecord information is taken into account, the picture here is different from that in Summum. Texas does not take care to approve only those proposed plates that convey messages that the State supports. Instead, it proclaims that it is open to all pri- vate messages—except those, like the SCV plate, that would offend some who viewed them. The Court believes that messages on privately created plates are government speech because motorists want a seal of state approval for their messages and therefore prefer plates over bumper stickers. Ante, at 10–11. This is dangerous reasoning. There is a big difference between government speech (that is, speech by the government in furtherance of its programs) and governmental blessing (or condemnation) of private speech. Many private speak- ers in a forum would welcome a sign of government ap- proval. But in the realm of private speech, government regulation may not favor one viewpoint over another. at 3 A final factor that was important in Summum was space. A park can accommodate only so many permanent monuments. Often large and made of stone, monuments can last for centuries and are difficult to move. License plates, on the other hand, are small, light, mobile, and designed to last for only a relatively brief time. The only absolute limit on the number of specialty plates that a State could issue is the number of registered vehicles. The variety of available plates is limitless, too. Today Texas offers more than 350 varieties. In 10 years, might it be 3,500? 14 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting In sum, the Texas specialty plate program has none of the factors that were critical in Summum, and the Texas program exhibits a very important characteristic that was missing in that case: Individuals who want to display a Texas specialty plate, instead of the standard plate, must pay an increased annual registration fee. See http://www.dmv.org/tx-texas/license-plates.php. How many groups or individuals would clamor to pay $8,000 (the cost of the deposit required to create a new plate) in order to broadcast the government’s message as opposed to their own? And if Texas really wants to speak out in support of, say, Iowa State University (but not the Univer- sity of Iowa) or “Young Lawyers” (but not old ones), why must it be paid to say things that it really wants to say? The fees Texas collects pay for much more than merely the administration of the program. States have not adopted specialty license plate programs like Texas’s because they are now bursting with things they want to say on their license plates. Those programs were adopted because they bring in money. Texas makes public the revenue totals generated by its specialty plate program, and it is apparent that the program brings in many millions of dollars every year. See http://www.txdmv.gov/reports-and-data/doc_download/5050– specialty-plates-revenue-fy-1994-2014. Texas has space available on millions of little mobile billboards. And Texas, in effect, sells that space to those who wish to use it to express a personal message— provided only that the message does not express a view- point that the State finds unacceptable. That is not gov- ernment speech; it is the regulation of private speech. III What Texas has done by selling space on its license plates is to create what we have called a limited public forum. It has allowed state property 15 ALITO, J., dissenting license plates) to be used by private speakers according to rules that the State prescribes. Cf. Good News v. Milford Central School, Under the First Amendment, however, those rules cannot discriminate on the basis of viewpoint. See 515 U.S., 9 ). But that is exactly what Texas did here. The Board rejected Texas SCV’s design, “specifically the confederate flag portion of the design, because public comments have shown that many members of the general public find the design offensive, and because such comments are reason- able.” App. 64. These statements indisputably demon- strate that the Board denied Texas SCV’s design because of its viewpoint. The Confederate battle flag is a controversial symbol. To the Texas Sons of Confederate Veterans, it is said to evoke the memory of their ancestors and other soldiers who fought for the South in the Civil War. See at 15– 16. To others, it symbolizes slavery, segregation, and hatred. Whatever it means to motorists who display that symbol and to those who see it, the flag expresses a view- point. The Board rejected the plate design because it concluded that many Texans would find the flag symbol offensive. That was pure viewpoint discrimination. If the Board’s candid explanation of its reason for reject- ing the SCV plate were not alone sufficient to establish this point, the Board’s approval of the Buffalo Soldiers plate at the same meeting dispels any doubt. The propo- nents of both the SCV and Buffalo Soldiers plates saw them as honoring soldiers who served with bravery and honor in the past. To the opponents of both plates, the images on the plates evoked painful memories. The Board rejected one plate and approved the other. Like these two plates, many other specialty plates have the potential to irritate and perhaps even infuriate those 16 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO, J., dissenting who see them. Texas allows a plate with the words “Choose Life,” but the State of New York rejected such a plate because the message “ ‘[is] so incredibly divisive,’ ” and the Second Circuit recently sustained that decision. Children First Foundation, Texas allows a specialty plate honoring the Boy Scouts, but the group’s refusal to accept gay leaders angers some. Virginia, an- other State with a proliferation of specialty plates, issues plates for controversial organizations like the National Rifle Association, controversial commercial enterprises (raising tobacco and mining coal), controversial sports (fox hunting), and a professional sports team with a controver- sial name (the Washington Redskins). Allowing States to reject specialty plates based on their potential to offend is viewpoint discrimination. The Board’s decision cannot be saved by its suggestion that the plate, if allowed, “could distract or disturb some drivers to the point of being unreasonably dangerous.” App. 65. This rationale cannot withstand strict scrutiny. Other States allow specialty plates with the Confederate Battle Flag,5 and Texas has not pointed to evidence that these plates have led to incidents of road rage or accidents. Texas does not ban bumper stickers bearing the image of the Confederate battle flag. Nor does it ban any of the many other bumper stickers that convey political messages and other messages that are capable of exciting the ire of those who loathe the ideas they express. Cf. Good News at 111–112. * * * Messages that are proposed by private parties and placed on Texas specialty plates are private speech, not —————— 5 See http://www.dmv.virginia.gov/vehicles/#splates/category.asp? category=SCITTexas Cite as: 576 U. S. 17 ALITO, J., dissenting government speech. Texas cannot forbid private speech based on its viewpoint. That is what it did here. Because the Court approves this violation of the First Amendment, I respectfully dissent. 18 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO Appendix to, J., dissenting opinion of ALITO, J. APPENDIX Sample Texas Specialty Plates Cite as: 576 U. S. 19 ALITO Appendix to, J., dissenting opinion of ALITO, J. 20 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO Appendix to, J., dissenting opinion of ALITO, J. Cite as: 576 U. S. 21 ALITO Appendix to, J., dissenting opinion of ALITO, J. 22 WALKER v. TEXAS DIV., SONS OF CONFEDERATE VETERANS, INC. ALITO Appendix to, J., dissenting opinion of ALITO, J. Cite as: 576 U. S. 23 ALITO Appendix to, J., dissenting opinion of ALITO, J. All found at http://txdmv.gov/motorists/license- plates/specialty-license-plate
Justice Marshall	majority	false	Bolger v. Youngs Drug Products Corp.	1983-06-24T00:00:00	null	https://www.courtlistener.com/opinion/110992/bolger-v-youngs-drug-products-corp/	https://www.courtlistener.com/api/rest/v3/clusters/110992/	1,983	1982-135	2	8	0	Title 39 U.S. C. § 3001(e)(2) prohibits the mailing of unsolicited advertisements for contraceptives. The District Court held that, as applied to appellee's mailings, the statute violates the First Amendment. We affirm. I Section 3001(e)(2) states that "[a]ny unsolicited advertisement of matter which is designed, adapted, or intended for preventing conception is nonmailable matter, shall not be carried or delivered by mail, and shall be disposed of as the Postal Service directs . . . ."[1] As interpreted by Postal 62 Service regulations,[2] the statutory provision does not apply to unsolicited advertisements in which the mailer has no commercial interest. In addition to the civil consequences of a violation of § 3001(e)(2), 18 U.S. C. § 1461 makes it a crime knowingly to use the mails for anything declared by § 3001(e) to be nonmailable.[3] Appellee Youngs Drug Products Corp. (Youngs) is engaged in the manufacture, sale, and distribution of contraceptives. Youngs markets its products primarily through sales to chain warehouses and wholesale distributors, who in turn sell contraceptives to retail pharmacists, who then sell those products to individual customers. Appellee publicizes the availability and desirability of its products by various methods. This litigation resulted from Youngs' decision to undertake a campaign of unsolicited mass mailings to members of the public. In conjunction with its wholesalers and retailers, Youngs seeks to mail to the public on an unsolicited basis three types of materials: multi-page, multi-item flyers promoting a large variety of products available at a drugstore, including prophylactics; flyers exclusively or substantially devoted to promoting prophylactics; informational pamphlets discussing the desirability and availability of prophylactics in general or Youngs' products in particular.[4] 63 In 1979 the Postal Service traced to a wholesaler of Youngs' products an allegation of an unsolicited mailing of contraceptive advertisements. The Service warned the wholesaler that the mailing violated 39 U.S. C. § 3001(e)(2). Subsequently, Youngs contacted the Service and furnished it with copies of Youngs' three types of proposed mailings, stating its view that the statute could not constitutionally restrict the mailings. The Service rejected Youngs' legal argument and notified the company that the proposed mailings would violate § 3001(e)(2). Youngs then brought this action for declaratory and injunctive relief in the United States District Court for the District of Columbia. It claimed that the statute, as applied to its proposed mailings, violated the First Amendment and that Youngs and its wholesaler were refraining from distributing the advertisements because of the Service's warning. The District Court determined that § 3001(e)(2), by its plain language, prohibited all three types of proposed mailings. The court then addressed the constitutionality of the statute as applied to these mailings. Finding all three types of materials to be commercial solicitations, the court considered the constitutionality of the statute within the framework established by this Court for analyzing restrictions imposed on commercial speech. The court concluded that the statutory prohibition was more extensive than necessary to the interests asserted by the Government, and 64 it therefore held that the statute's absolute ban on the three types of mailings violated the First Amendment.[5] 526 F. Supp. 823 (1981). Appellants brought this direct appeal pursuant to 28 U.S. C. § 1252, see United States v. Darusmont, 449 U.S. 292, 293 (1981), and we noted probable jurisdiction, 456 U.S. 970 (1982). II Beginning with Bigelow v. Virginia, 421 U.S. 809 (1975), this Court extended the protection of the First Amendment to commercial speech.[6] Nonetheless, our decisions have recognized "the `common-sense' 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). Thus, we have held that the Constitution accords less protection to commercial speech than 65 to other constitutionally safeguarded forms of expression. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 562-563 (1980); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-772, n. 24 (1976). For example, as a general matter, "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 Department of Chicago v. Mosley, 408 U.S. 92, 95(1972). With respect to noncommercial speech, this Court has sustained content-based restrictions only in the most extraordinary circumstances.[7] See Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U.S. 530, 538-539 (1980); Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U. Chi. L. Rev. 81, 82 (1978). By contrast, regulation of commercial speech based on content is less problematic. In light of the greater potential for deception or confusion in the context of certain advertising messages, see In re R. M. J., 455 U.S. 191, 200 (1982), content-based restrictions on commercial speech may be permissible. See Friedman v. Rogers, 440 U.S. 1 (1979) (upholding prohibition on use of trade names by optometrists). Because the degree of protection afforded by the First Amendment depends on whether the activity sought to be regulated constitutes commercial or noncommercial speech, we must first determine the proper classification of the mailings at issue here. Appellee contends that its proposed mailings constitute "fully protected" speech, so that § 3001(e)(2) amounts to an impermissible content-based restriction 66 on such expression.[8] Appellants argue,[9] and the District Court held,[10] that the proposed mailings are all commercial speech. The application of § 3001(e)(2) to appellee's proposed mailings must be examined carefully to ensure that speech deserving of greater constitutional protection is not inadvertently suppressed.[11] Most of appellee's mailings fall within the core notion of commercial speech "speech which does `no more than propose a commercial transaction.' " Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., supra, at 762, quoting Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 385 (1973).[12] Youngs' informational pamphlets, however, cannot be characterized merely as proposals to engage in commercial transactions. Their proper classification as commercial or noncommercial speech thus presents a closer question. The mere fact that these pamphlets are conceded to be advertisements clearly does not compel the conclusion that they are commercial speech. See New York Times Co. v. Sullivan, 376 U.S. 254, 265-266 (1964). Similarly, the reference to a specific product does not by itself render the pamphlets commercial speech.[13] See Associated Students for Univ. of Cal. at Riverside v. Attorney General, 67 368 F. Supp. 11, 24 (CD Cal. 1973). Finally, the fact that Youngs has an economic motivation for mailing the pamphlets would clearly be insufficient by itself to turn the materials into commercial speech. See Bigelow v. Virginia, 421 U. S., at 818; Ginzburg v. United States, 383 U.S. 463, 474 (1966); Thornhill v. Alabama, 310 U.S. 88 (1940). The combination of all these characteristics, however, provides strong support for the District Court's conclusion that the informational pamphlets are properly characterized as commercial speech.[14] The mailings constitute commercial speech notwithstanding the fact that they contain discussions 68 of important public issues[15] such as venereal disease and family planning. We have made clear that advertising which "links a product to a current public debate" is not thereby entitled to the constitutional protection afforded noncommercial speech. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S., at 563, n. 5. A company has the full panoply of protections available to its direct comments on public issues,[16] so there is no reason for providing similar constitutional protection when such statements are made in the context of commercial transactions. See ibid. Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues. Cf. Metromedia, Inc. v. San Diego, 453 U.S. 490, 540 (1981) (BRENNAN, J., concurring in judgment). We conclude, therefore, that all of the mailings in this case are entitled to the qualified but nonetheless substantial protection accorded to commercial speech. III "The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation." Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S., at 563. In Central Hudson we adopted a four-part analysis for assessing the validity of restrictions on commercial speech. First, we determine whether the expression is constitutionally protected. For commercial speech to receive such protection, "it at least must concern lawful activity and not be misleading." Id., at 566. Second, we ask whether the governmental interest is 69 substantial. If so, we must then determine whether the regulation directly advances the government interest asserted, and whether it is not more extensive than necessary to serve that interest. Ibid. Applying this analysis, we conclude that § 3001(e)(2) is unconstitutional as applied to appellee's mailings. We turn first to the protection afforded by the First Amendment. The State may deal effectively with false, deceptive, or misleading sales techniques. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 771-772. The State may also prohibit commercial speech related to illegal behavior. Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S., at 388. In this case, however, appellants have never claimed that Youngs' proposed mailings fall into any of these categories. To the contrary, advertising for contraceptives not only implicates " `substantial individual and societal interests' " in the free flow of commercial information, but also relates to activity which is protected from unwarranted state interference. See Carey v. Population Services International, 431 U.S. 678, 700-701 (1977), quoting Virginia Pharmacy Board, supra, at 760, 763-766.[17] Youngs' proposed commercial speech is therefore clearly protected by the First Amendment. Indeed, where as in this case a speaker desires to convey truthful information relevant to important social issues such as family planning and the prevention of venereal disease, we have previously found the First Amendment interest served by such speech paramount. See Carey v. Population Services International, supra; Bigelow v. Virginia, supra.[18] 70 We must next determine whether the Government's interest in prohibiting the mailing of unsolicited contraceptive advertisements is a substantial one. The prohibition in § 3001(e)(2) originated in 1873 as part of the Comstock Act, a criminal statute designed "for the suppression of Trade in and Circulation of obscene Literature and Articles of immoral Use." Act of Mar. 3, 1873, ch. 258, § 2, 17 Stat. 599.[19] Appellants do not purport to rely on justifications for the 71 statute offered during the 19th century.[20] Instead, they advance interests that concededly were not asserted when the prohibition was enacted into law.[21] This reliance is permissible since the insufficiency of the original motivation does not diminish other interests that the restriction may now serve. See Ohralik v. Ohio State Bar Assn., 436 U. S., at 460. Cf. Doe v. Bolton, 410 U.S. 179, 190-191 (1973) (a State may readjust its views and emphases in light of modern knowledge). In particular, appellants assert that the statute (1) shields recipients of mail from materials that they are likely to find offensive and (2) aids parents' efforts to control the manner in which their children become informed about sensitive and important subjects such as birth control.[22] The first of these interests carries little weight. In striking down a state prohibition of contraceptive advertisements in Carey v. Population Services International, supra, we stated that offensiveness was "classically not [a] justificatio[n] validating the suppression of expression protected by the First Amendment. At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression." 431 U.S., at 701.[23] We specifically declined to recognize a distinction 72 between commercial and noncommercial speech that would render this interest a sufficient justification for a prohibition of commercial speech. Id., at 701, n. 28. Recognizing that their reliance on this interest is "problematic,"[24] appellants attempt to avoid the clear import of Carey by emphasizing that § 3001(e)(2) is aimed at the mailing of materials to the home. We have, of course, recognized the important interest in allowing addressees to give notice to a mailer that they wish no further mailings which, in their sole discretion, they believe to be erotically arousing or sexually provocative. See Rowan v. Post Office Department, 397 U.S. 728, 737 (1970) (upholding the constitutionality of 39 U.S. C. § 3008).[25] But we have never held that the Government itself can shut off the flow of mailings to protect those recipients who might potentially be offended. The First Amendment "does not permit the government to prohibit speech as intrusive unless the `captive' audience cannot avoid objectionable speech." Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U. S., at 542. Recipients of objectionable mailings, however, may " `effectively avoid further bombardment of their sensibilities simply by averting their eyes.' " Ibid., quoting Cohen v. California, 403 U.S. 15, 21 (1971). Consequently, the "short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned." Lamont v. Commissioner of Motor Vehicles, 269 F. Supp. 880, 883(SDNY), summarily aff'd, 386 F.2d 449 (CA2 1967), cert. denied, 391 U.S. 915 (1968). 73 The second interest asserted by appellants aiding parents' efforts to discuss birth control with their children is undoubtedly substantial. "[P]arents have an important `guiding role' to play in the upbringing of their children . . . which presumptively includes counseling them on important decisions." H. L. v. Matheson, 450 U.S. 398, 410 (1981), quoting Bellotti v. Baird, 443 U.S. 622, 637 (1979). As a means of effectuating this interest, however, § 3001(e)(2) fails to withstand scrutiny. To begin with, § 3001(e)(2) provides only the most limited incremental support for the interest asserted. We can reasonably assume that parents already exercise substantial control over the disposition of mail once it enters their mailboxes. Under 39 U.S. C. § 3008, parents can also exercise control over information that flows into their mailboxes. And parents must already cope with the multitude of external stimuli that color their children's perception of sensitive subjects.[26] Under these circumstances, a ban on unsolicited advertisements serves only to assist those parents who desire to keep their children from confronting such mailings, who are otherwise unable to do so, and whose children have remained relatively free from such stimuli. This marginal degree of protection is achieved by purging all mailboxes of unsolicited material that is entirely suitable for adults. We have previously made clear that a restriction of this scope is more extensive than the Constitution permits, for the government may not "reduce the adult population . . . to reading only what is fit for children." Butler v. Michigan, 74 352 U.S. 380, 383 (1957).[27] The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox. In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), this Court did recognize that the Government's interest in protecting the young justified special treatment of an afternoon broadcast heard by adults as well as children.[28] At the same time, the majority "emphasize[d] the narrowness of our holding," id., at 750, explaining that broadcasting is "uniquely pervasive" and that it is "uniquely accessible to children, even those too young to read." Id., at 748-749 (emphasis added). The receipt of mail is far less intrusive and uncontrollable. Our decisions have recognized that the special interest of the Federal Government in regulation of the broadcast media[29] does not readily translate into a justification for regulation of other means of communication. See Consolidated Edison Co. v. Public Service Comm'n of New York, supra, at 542-543; FCC v. Pacifica Foundation, supra, at 748 (broadcasting has received the most limited First Amendment protection). Section 3001(e)(2) is also defective because it denies to parents truthful information bearing on their ability to discuss birth control and to make informed decisions in this area.[30]75 See Associated Students for Univ. of Cal. at Riverside v. Attorney General, 368 F. Supp., at 21. Cf. Carey v. Population Services International, 431 U. S., at 708 (POWELL, J., concurring in part and concurring in judgment) (provision prohibiting parents from distributing contraceptives to children constitutes "direct interference with . . . parental guidance"). Because the proscribed information "may bear on one of the most important decisions" parents have a right to make, the restriction of "the free flow of truthful information" constitutes a "basic" constitutional defect regardless of the strength of the government's interest. Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 95-96 (1977). IV We thus conclude that the justifications offered by appellants are insufficient to warrant the sweeping prohibition on the mailing of unsolicited contraceptive advertisements. As applied to appellee's mailings, § 3001(e)(2) is unconstitutional. The judgment of the District Court is therefore Affirmed. JUSTICE BRENNAN took no part in the decision of this case. JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR joins, concurring in the judgment.	Title 39 U.S. C. 3001(e)(2) prohibits the mailig of usolicited advertisemets for cotraceptives. The District Court held that, as applied to appellee's mailigs, the statute violates the First Amedmet. We affirm. I Sectio 3001(e)(2) states that "[a]y usolicited advertisemet of matter which is desiged, adapted, or iteded for prevetig coceptio is omailable matter, shall ot be carried or delivered by mail, ad shall be disposed of as the Postal Service directs"[1] As iterpreted by Postal 62 Service regulatios,[2] the statutory provisio does ot apply to usolicited advertisemets i which the mailer has o commercial iterest. I additio to the civil cosequeces of a violatio of 3001(e)(2), 18 U.S. C. 1461 makes it a crime kowigly to use the mails for aythig declared by 3001(e) to be omailable.[3] Appellee Yougs Drug Products Corp. (Yougs) is egaged i the maufacture, sale, ad distributio of cotraceptives. Yougs markets its products primarily through sales to chai warehouses ad wholesale distributors, who i tur sell cotraceptives to retail pharmacists, who the sell those products to idividual customers. Appellee publicizes the availability ad desirability of its products by various methods. This litigatio resulted from Yougs' decisio to udertake a campaig of usolicited mass mailigs to members of the public. I cojuctio with its wholesalers ad retailers, Yougs seeks to mail to the public o a usolicited basis three types of materials: multi-page, multi-item flyers promotig a large variety of products available at a drugstore, icludig prophylactics; flyers exclusively or substatially devoted to promotig prophylactics; iformatioal pamphlets discussig the desirability ad availability of prophylactics i geeral or Yougs' products i particular.[4] 63 I 1979 the Postal Service traced to a wholesaler of Yougs' products a allegatio of a usolicited mailig of cotraceptive advertisemets. The Service wared the wholesaler that the mailig violated 39 U.S. C. 3001(e)(2). Subsequetly, Yougs cotacted the Service ad furished it with copies of Yougs' three types of proposed mailigs, statig its view that the statute could ot costitutioally restrict the mailigs. The Service rejected Yougs' legal argumet ad otified the compay that the proposed mailigs would violate 3001(e)(2). Yougs the brought this actio for declaratory ad ijuctive relief i the Uited States District Court for the District of Columbia. It claimed that the statute, as applied to its proposed mailigs, violated the First Amedmet ad that Yougs ad its wholesaler were refraiig from distributig the advertisemets because of the Service's warig. The District Court determied that 3001(e)(2), by its plai laguage, prohibited all three types of proposed mailigs. The court the addressed the costitutioality of the statute as applied to these mailigs. Fidig all three types of materials to be commercial solicitatios, the court cosidered the costitutioality of the statute withi the framework established by this Court for aalyzig restrictios imposed o commercial speech. The court cocluded that the statutory prohibitio was more extesive tha ecessary to the iterests asserted by the Govermet, ad 64 it therefore held that the statute's absolute ba o the three types of mailigs violated the First Amedmet.[5] Appellats brought this direct appeal pursuat to 28 U.S. C. 1252, see Uited ad we oted probable jurisdictio, II Begiig with this Court exteded the protectio of the First Amedmet to commercial speech.[6] Noetheless, our decisios have recogized "the `commo-sese' distictio betwee speech proposig a commercial trasactio, which occurs i a area traditioally subject to govermet regulatio, ad other varieties of speech." Thus, we have held that the Costitutio accords less protectio to commercial speech tha 65 to other costitutioally safeguarded forms of expressio. Cetral Hudso Gas & Electric ; Pharmacy For example, as a geeral matter, "the First Amedmet meas that govermet has o power to restrict expressio because of its message, its ideas, its subject matter, or its cotet." Police Departmet of With respect to ocommercial speech, this Court has sustaied cotet-based restrictios oly i the most extraordiary circumstaces.[7] See Cosolidated Ediso ; Stoe, Restrictios of Speech Because of its Cotet: The Peculiar Case of Subject-Matter Restrictios, By cotrast, regulatio of commercial speech based o cotet is less problematic. I light of the greater potetial for deceptio or cofusio i the cotext of certai advertisig messages, see I re R. M. J., cotet-based restrictios o commercial speech may be permissible. See Because the degree of protectio afforded by the First Amedmet depeds o whether the activity sought to be regulated costitutes commercial or ocommercial speech, we must first determie the proper classificatio of the mailigs at issue here. Appellee coteds that its proposed mailigs costitute "fully protected" speech, so that 3001(e)(2) amouts to a impermissible cotet-based restrictio 66 o such expressio.[8] Appellats argue,[9] ad the District Court held,[10] that the proposed mailigs are all commercial speech. The applicatio of 3001(e)(2) to appellee's proposed mailigs must be examied carefully to esure that speech deservig of greater costitutioal protectio is ot iadvertetly suppressed.[11] Most of appellee's mailigs fall withi the core otio of commercial speech "speech which does `o more tha propose a commercial trasactio.' " Pharmacy quotig Pittsburgh Press[12] Yougs' iformatioal pamphlets, however, caot be characterized merely as proposals to egage i commercial trasactios. Their proper classificatio as commercial or ocommercial speech thus presets a closer questio. The mere fact that these pamphlets are coceded to be advertisemets clearly does ot compel the coclusio that they are commercial speech. See New Times Similarly, the referece to a specific product does ot by itself reder the pamphlets commercial speech.[13] See Associated Studets for Uiv. of Cal. at Fially, the fact that Yougs has a ecoomic motivatio for mailig the pamphlets would clearly be isufficiet by itself to tur the materials ito commercial speech. See ; ; The combiatio of all these characteristics, however, provides strog support for the District Court's coclusio that the iformatioal pamphlets are properly characterized as commercial speech.[14] The mailigs costitute commercial speech otwithstadig the fact that they cotai discussios 68 of importat public issues[15] such as veereal disease ad family plaig. We have made clear that advertisig which "liks a product to a curret public debate" is ot thereby etitled to the costitutioal protectio afforded ocommercial speech. Cetral Hudso Gas & Electric 5. A compay has the full paoply of protectios available to its direct commets o public issues,[16] so there is o reaso for providig similar costitutioal protectio whe such statemets are made i the cotext of commercial trasactios. See Advertisers should ot be permitted to immuize false or misleadig product iformatio from govermet regulatio simply by icludig refereces to public issues. Cf. Metromedia, v. Sa Diego, We coclude, therefore, that all of the mailigs i this case are etitled to the qualified but oetheless substatial protectio accorded to commercial speech. III "The protectio available for particular commercial expressio turs o the ature both of the expressio ad of the govermetal iterests served by its regulatio." Cetral Hudso Gas & Electric I Cetral Hudso we adopted a four-part aalysis for assessig the validity of restrictios o commercial speech. First, we determie whether the expressio is costitutioally protected. For commercial speech to receive such protectio, "it at least must cocer lawful activity ad ot be misleadig." Secod, we ask whether the govermetal iterest is 69 substatial. If so, we must the determie whether the regulatio directly advaces the govermet iterest asserted, ad whether it is ot more extesive tha ecessary to serve that iterest. Applyig this aalysis, we coclude that 3001(e)(2) is ucostitutioal as applied to appellee's mailigs. We tur first to the protectio afforded by the First Amedmet. The State may deal effectively with false, deceptive, or misleadig sales techiques. Pharmacy -772. The State may also prohibit commercial speech related to illegal behavior. Pittsburgh Press I this case, however, appellats have ever claimed that Yougs' proposed mailigs fall ito ay of these categories. To the cotrary, advertisig for cotraceptives ot oly implicates " `substatial idividual ad societal iterests' " i the free flow of commercial iformatio, but also relates to activity which is protected from uwarrated state iterferece. See Carey v. Populatio Services Iteratioal, quotig Pharmacy[17] Yougs' proposed commercial speech is therefore clearly protected by the First Amedmet. Ideed, where as i this case a speaker desires to covey truthful iformatio relevat to importat social issues such as family plaig ad the prevetio of veereal disease, we have previously foud the First Amedmet iterest served by such speech paramout. See Carey v. Populatio Services Iteratioal, supra.[18] 70 We must ext determie whether the Govermet's iterest i prohibitig the mailig of usolicited cotraceptive advertisemets is a substatial oe. The prohibitio i 3001(e)(2) origiated i 1873 as part of the Comstock Act, a crimial statute desiged "for the suppressio of Trade i ad Circulatio of obscee Literature ad Articles of immoral Use." Act of Mar. 3, 1873, ch. 258, 2,[19] Appellats do ot purport to rely o justificatios for the 71 statute offered durig the 19th cetury.[20] Istead, they advace iterests that cocededly were ot asserted whe the prohibitio was eacted ito law.[] This reliace is permissible sice the isufficiecy of the origial motivatio does ot dimiish other iterests that the restrictio may ow serve. See Cf. Doe v. Bolto, (a State may readjust its views ad emphases i light of moder kowledge). I particular, appellats assert that the statute (1) shields recipiets of mail from materials that they are likely to fid offesive ad (2) aids parets' efforts to cotrol the maer i which their childre become iformed about sesitive ad importat subjects such as birth cotrol.[22] The first of these iterests carries little weight. I strikig dow a state prohibitio of cotraceptive advertisemets i Carey v. Populatio Services Iteratioal, we stated that offesiveess was "classically ot [a] justificatio[] validatig the suppressio of expressio protected by the First Amedmet. At least where obsceity is ot ivolved, we have cosistetly held that the fact that protected speech may be offesive to some does ot justify its suppressio."[23] We specifically declied to recogize a distictio 72 betwee commercial ad ocommercial speech that would reder this iterest a sufficiet justificatio for a prohibitio of commercial speech. at 701, 28. Recogizig that their reliace o this iterest is "problematic,"[] appellats attempt to avoid the clear import of Carey by emphasizig that 3001(e)(2) is aimed at the mailig of materials to the home. We have, of course, recogized the importat iterest i allowig addressees to give otice to a mailer that they wish o further mailigs which, i their sole discretio, they believe to be erotically arousig or sexually provocative. See Rowa v. Post Office Departmet, (upholdig the costitutioality of 39 U.S. C. 3008).[25] But we have ever held that the Govermet itself ca shut off the flow of mailigs to protect those recipiets who might potetially be offeded. The First Amedmet "does ot permit the govermet to prohibit speech as itrusive uless the `captive' audiece caot avoid objectioable speech." Cosolidated Ediso Recipiets of objectioable mailigs, however, may " `effectively avoid further bombardmet of their sesibilities simply by avertig their eyes.' " quotig Cohe v. Califoria, Cosequetly, the "short, though regular, jourey from mail box to trash ca is a acceptable burde, at least so far as the Costitutio is cocered." Lamot v. Commissioer of Motor Vehicles, (SDNY), summarily aff'd, cert. deied, 73 The secod iterest asserted by appellats aidig parets' efforts to discuss birth cotrol with their childre is udoubtedly substatial. "[P]arets have a importat `guidig role' to play i the upbrigig of their childre which presumptively icludes couselig them o importat decisios." H. L. v. Matheso, quotig As a meas of effectuatig this iterest, however, 3001(e)(2) fails to withstad scrutiy. To begi with, 3001(e)(2) provides oly the most limited icremetal support for the iterest asserted. We ca reasoably assume that parets already exercise substatial cotrol over the dispositio of mail oce it eters their mailboxes. Uder 39 U.S. C. 3008, parets ca also exercise cotrol over iformatio that flows ito their mailboxes. Ad parets must already cope with the multitude of exteral stimuli that color their childre's perceptio of sesitive subjects.[26] Uder these circumstaces, a ba o usolicited advertisemets serves oly to assist those parets who desire to keep their childre from cofrotig such mailigs, who are otherwise uable to do so, ad whose childre have remaied relatively free from such stimuli. This margial degree of protectio is achieved by purgig all mailboxes of usolicited material that is etirely suitable for adults. We have previously made clear that a restrictio of this scope is more extesive tha the Costitutio permits, for the govermet may ot "reduce the adult populatio to readig oly what is fit for childre." Butler v. Michiga, 74 (17).[27] The level of discourse reachig a mailbox simply caot be limited to that which would be suitable for a sadbox. I FCC v. Pacifica Foudatio, this Court did recogize that the Govermet's iterest i protectig the youg justified special treatmet of a afteroo broadcast heard by adults as well as childre.[28] At the same time, the majority "emphasize[d] the arrowess of our holdig," explaiig that broadcastig is "uiquely pervasive" ad that it is "uiquely accessible to childre, eve those too youg to read." The receipt of mail is far less itrusive ad ucotrollable. Our decisios have recogized that the special iterest of the Federal Govermet i regulatio of the broadcast media[29] does ot readily traslate ito a justificatio for regulatio of other meas of commuicatio. See Cosolidated Ediso ; FCC v. Pacifica Foudatio, (broadcastig has received the most limited First Amedmet protectio). Sectio 3001(e)(2) is also defective because it deies to parets truthful iformatio bearig o their ability to discuss birth cotrol ad to make iformed decisios i this area.[30]*75 See Associated Studets for Uiv. of Cal. at Riverside v. Attorey Geeral, 368 F. Supp., at Cf. Carey v. Populatio Services Iteratioal, (POWELL, J., cocurrig i part ad cocurrig i judgmet) (provisio prohibitig parets from distributig cotraceptives to childre costitutes "direct iterferece with paretal guidace"). Because the proscribed iformatio "may bear o oe of the most importat decisios" parets have a right to make, the restrictio of "the free flow of truthful iformatio" costitutes a "basic" costitutioal defect regardless of the stregth of the govermet's iterest. Limark Associates, v. Willigboro, -96 IV We thus coclude that the justificatios offered by appellats are isufficiet to warrat the sweepig prohibitio o the mailig of usolicited cotraceptive advertisemets. As applied to appellee's mailigs, 3001(e)(2) is ucostitutioal. The judgmet of the District Court is therefore Affirmed. JUSTICE BRENNAN took o part i the decisio of this case. JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR jois, cocurrig i the judgmet.
Justice Ginsburg	majority	false	Humana Inc. v. Forsyth	1999-01-20T00:00:00	null	https://www.courtlistener.com/opinion/118258/humana-inc-v-forsyth/	https://www.courtlistener.com/api/rest/v3/clusters/118258/	1,999	1998-017	2	9	0	This case concerns regulation of the business of insurance by the States, as secured by the McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U.S. C. § 1011 et seq., and the extent to which federal legislation, specifically, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. § 1961 et seq., is compatible with state regulation. The controversy before us stems from a scheme employed by petitioner Humana Health Insurance of Nevada, Inc. (Humana Insurance), a group health insurer, to gain discounts for hospital services which the insurer did not disclose and pass on to its policy beneficiaries. The scheme is alleged to violate both Nevada law and RICO. Under the McCarran- 303 Ferguson Act, the federal legislation may be applied if it does not "invalidate, impair, or supersede" the State's regulation. 15 U.S. C. § 1012(b). The federal law at issue, RICO, does not proscribe conduct that the State's laws governing insurance permit. But the federal and state remedial regimes differ. Both provide a private right of action. RICO authorizes treble damages; Nevada law permits recovery of compensatory and punitive damages. We hold that RICO can be applied in this case in harmony with the State's regulation. When federal law is applied in aid or enhancement of state regulation, and does not frustrate any declared state policy or disturb the State's administrative regime, the McCarran-Ferguson Act does not bar the federal action. I Plaintiffs in the District Court, respondents in this Court, are beneficiaries of group health insurance policies issued by Humana Insurance. Between 1985 and 1988, plaintiffsrespondents received medical care from the Humana Hospital-Sunrise, an acute care facility owned by codefendant (now copetitioner) Humana Inc. Humana Insurance agreed to pay 80% of the policy beneficiaries' hospital charges over a designated deductible. The beneficiaries bore responsibility for payment of the remaining 20%. But pursuant to a concealed agreement, the complaint in this action alleged, the hospital gave Humana Insurance large discounts on the insurer's portion of the hospital's charges for care provided to the policy beneficiaries.[1] As a result, 304 Humana Insurance paid significantly less than 80% of the hospital's actual charges for the care that policy beneficiaries received, and the beneficiaries paid significantly more than 20% of those charges.[2] The employee beneficiaries brought suit in the United States District Court for the District of Nevada,[3] alleging that Humana Insurance and Humana Inc. violated RICO through a pattern of racketeering activity consisting of mail, wire, radio, and television fraud.[4] Defendants Humana Insurance and Humana Inc. moved for summary judgment, citing § 2(b) of the McCarran-Ferguson Act, which provides: "No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance." 15 U.S. C. § 1012(b). The District Court granted the motion. In that court's view, RICO's private remedies, including the federal statute's treble damages provision, 18 U.S. C. § 1964(c), so exceeded Nevada's administrative penalties for insurance fraud, see infra, at 311-312, that applying RICO to the alleged conduct would have been "tantamount to allowing Congress to intercede in an area expressly left to the states under 305 the McCarran-Ferguson Act," 827 F. Supp. 1498, 1521-1522 (Nev. 1993).[5] The Ninth Circuit reversed in relevant part. See 114 F.3d 1467, 1482 (1997). In Merchants Home Delivery Serv., Inc. v. Frank B. Hall & Co., 50 F.3d 1486 (1995), a decision handed down after the District Court rejected the policy beneficiaries' right to sue under RICO in this case, the Court of Appeals adopted a "direct conflict" test for determining when a federal law "invalidate[s], impair[s], or supersede[s]" a state law governing insurance. As declared in Merchants Home, the McCarran-Ferguson Act does not preclude "application of a federal statute prohibiting acts which are also prohibited under a state's insurance laws." Id., at 1492. Guided by Merchants Home, and assuming that Nevada law provided for administrative remedies only, the Ninth Circuit held that the McCarran-Ferguson Act did not bar suit under RICO by the Humana Insurance policy beneficiaries. See 114 F.3d, at 1480. Circuit courts have divided on the question presented: Does a federal law, which proscribes the same conduct as state law, but provides materially different remedies, "impair" state law under the McCarran-Ferguson Act?[6] We granted certiorari to address that question. 524 U.S. 936 (1998). 306 II Prior to our decision in United States v. South-Eastern Underwriters Assn., 322 U.S. 533 (1944), we had consistently held that the business of insurance was not commerce. See, e. g., Paul v. Virginia, 8 Wall. 168, 183 (1869) ("Issuing a policy of insurance is not a transaction of commerce."); see also South-Eastern, 322 U. S., at 544, n. 18 (collecting cases relying on the Paul generalization). The business of insurance, in consequence, was largely immune from federal regulation. See St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 539 (1978) ("[T]he States enjoyed a virtually exclusive domain over the insurance industry."). In SouthEastern, we held for the first time that an insurance company doing business across state lines engages in interstate commerce. See 322 U.S., at 553. In accord with that holding, we further decided that the Sherman Act applied to the business of insurance. See id., at 553-562. Concerned that our decision might undermine state efforts to regulate insurance, Congress in 1945 enacted the McCarran-Ferguson Act. Section 1 of the Act provides that "continued regulation and taxation by the several States of the business of insurance is in the public interest," and that "silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States." 15 U.S. C. § 1011. In § 2(b) of the Actthe centerpiece of this caseCongress ensured that federal statutes not identified in the Act or not yet enacted would not automatically override state insurance regulation. Section 2(b) provides that when Congress enacts a law specifically relating to the business of insurance, that law controls. See § 1012(b). The subsection further provides that federal legislation general in character shall not be "construed to invalidate, impair, or supersede any law 307 enacted by any State for the purpose of regulating the business of insurance." Ibid.[7] The McCarran-Ferguson Act thus precludes application of a federal statute in face of state law "enacted . . . for the purpose of regulating the business of insurance," if the federal measure does not "specifically relat[e] to the business of insurance," and would "invalidate, impair, or supersede" the State's law. See Department of Treasury v. Fabe, 508 U.S. 491, 501 (1993). RICO is not a law that "specifically relates to the business of insurance." This case therefore turns on the question: Would RICO's application to the employee beneficiaries' claims at issue "invalidate, impair, or supersede" Nevada's laws regulating insurance? The term "invalidate" ordinarily means "to render ineffective, generally without providing a replacement rule or law." Brief for United States as Amicus Curiae 17, n. 6 (citing Carter v. Virginia, 321 U.S. 131, 139 (1944) (Black, J., concurring)). And the term "supersede" ordinarily means "to displace (and thus render ineffective) while providing a substitute rule." Brief for United States as Amicus Curiae 17, n. 6 (citing Illinois Commerce Comm'n v. Thomson, 318 U.S. 675, 682 (1943)). Under these standard definitions, RICO's 308 application to the policy beneficiaries' complaint would neither "invalidate" nor "supersede" Nevada law. The key question, then, is whether RICO's application to the scheme in which the Humana defendants are alleged to have collaborated, to the detriment of the plaintiff policy beneficiaries, would "impair" Nevada's law. The answer would be "no" were we to read "impair," as the policy beneficiaries suggest, to be "interchangeabl[e]" with "invalidate" and "supersede." Brief for Respondents 14; see Brief for United States as Amicus Curiae 17, n. 6 (describing the use of the three terms as an "instanc[e] of lawyerly iteration"). The answer would also be "no" if we understood "impair" to mean "the displacement of some portion of a statute or its preclusion in certain contexts." Id., at 14. This is so because insurers can comply with both RICO and Nevada's laws governing insurance. These laws do not directly conflict. The acts the policy beneficiaries identify as unlawful under RICO are also unlawful under Nevada law. See infra, at 311-313. On the other hand, the answer would be "yes" were we to agree with Humana Insurance and Humana Inc. that the word "impair," in the McCarran-Ferguson Act context, signals the federal legislators' intent "to withdraw Congress from the field [of insurance] absent an express congressional statement to the contrary." Brief for Petitioners 10. Under that reading, "impair" would convey "a very broad proscription against applying federal law where a state has regulated, or chosen not to regulate, in the insurance industry." Merchants Home, 50 F. 3d, at 1491 (emphasis in original). See also Reply Brief 4 (McCarran-Ferguson Act "precludes federal law that is at material variance with state insurance lawas to substantive prohibitions, procedures or remedies."). We reject any suggestion that Congress intended to cede the field of insurance regulation to the States, saving only instances in which Congress expressly orders otherwise. If 309 Congress had meant generally to preempt the field for the States, Congress could have said, as the Ninth Circuit noted: "No federal statute [that does not say so explicitly] shall be construed to apply to the business of insurance." Merchants Home, 50 F. 3d, at 1492 (emphasis in original) (internal quotation marks omitted); see Brief for United States as Amicus Curiae 24 ("The Act does not declare that `No Act of Congress shall apply to the business of insurance unless such Act specifically relates thereto.' "). Alternatively, Congress could have provided, as it did with respect to the Sherman, Clayton, and Federal Trade Commission Acts, see 15 U.S. C. § 1012(b), that federal legislation generally, or RICO in particular, would be "applicable to the business of insurance [only] to the extent that such business is not regulated by State Law," ibid. (emphasis added). Moreover, § 2(b)'s second prohibition bears attention in this regard. That proscription, barring construction of federal statutes to "invalidate, impair, or supersede" "any [state] law . . . which imposes a fee or tax upon [the business of insurance]," belies any congressional intent to preclude federal regulation merely because the regulation imposes liability additional to, or greater than, state law. Were this not so, federal law would "impair" state insurance laws imposing fees or taxes whenever federal law imposed additional fees or greater tax liability. Under our federal system of dual taxation, however, it is scarcely in doubt that "generally applicable federal fees and taxes do not `invalidate, impair, or supersede' state insurance taxes and fees within the meaning of Section 2(b) where nothing precludes insurers from paying both." Brief for United States as Amicus Curiae 26. While we reject any sort of field preemption, we also reject the polar opposite of that view, i. e., that Congress intended a green light for federal regulation whenever the federal law does not collide head on with state regulation. The dictionary definition of "impair" is "[t]o weaken, to make 310 worse, to lessen in power, diminish, or relax, or otherwise affect in an injurious manner." Black's Law Dictionary 752 (6th ed. 1990). The following formulation seems to us to capture that meaning and to construe, most sensibly, the text of § 2(b): When federal law does not directly conflict with state regulation, and when application of the federal law would not frustrate any declared state policy or interfere with a State's administrative regime, the McCarranFerguson Act does not preclude its application. See Brief for National Association of Insurance Commissioners as Amicus Curiae 6-7. Our decision in Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983), is similar in tenor. In that case, we considered whether a New York law forbidding discrimination in employee benefit plans on the basis of pregnancy was preempted by ERISA. State agencies and officials, appellants in Shaw, argued that the State's law was not preempted; they relied on ERISA § 514(d), which provides that ERISA's preemption clause shall not be "construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States." 29 U.S. C. § 1144(d). The state agencies and officials maintained that preempting the state law would impair the administration of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S. C. § 2000e et seq., as amended in 1978 by the Pregnancy Discrimination Act, 92 Stat. 2076, 42 U.S. C. § 2000e(k), for under the enforcement scheme Title VII accommodates, state remedies serve to promote compliance with federal antidiscrimination prescriptions. See 463 U.S., at 101-102. We held in Shaw that the New York law was preempted only to the extent it prohibited practices lawful under Title VII. See id., at 103. To the extent the New York law prohibited practices also prohibited under federal law, we explained, the New York law was not preempted; the blanket preemption urged by the employer appellees in Shaw, we pointed out, would "impair" Title VII by "frustrat[ing] the 311 goal of encouraging joint state/federal enforcement of [that federal measure]." Id., at 102. Shaw thus supports the view that to "impair" a law is to hinder its operation or "frustrate [a] goal" of that law. Our standard accords with SEC v. National Securities, Inc., 393 U.S. 453 (1969). In that case, we upheld, in face of a McCarran-Ferguson Act challenge, the Securities and Exchange Commission's authority to unwind an insurance company merger that the Arizona Director of Insurance had approved. Our opinion pointed to the absence of any "direct conflict": "Arizona has not commanded something which the Federal Government seeks to prohibit. It has permitted respondents to consummate the merger; it did not order them to do so." Id., at 463. But that statement did not stand alone. We also observed that "any `impairment' in [that] case [was] a most indirect one." Ibid. And we concluded: "The paramount federal interest in protecting shareholders [was] perfectly compatible with the paramount state interest in protecting policyholders." Ibid. There, as here, federal law did not "directly conflict with state regulation," application of federal law did not "frustrate any declared state policy," nor did it "interfere with a State's administrative regime." Supra, at 310. Applying the standard just announced to the facts of this case, we conclude that suit under RICO by policy beneficiaries would not "impair" Nevada law and therefore is not precluded by the McCarran-Ferguson Act. Nevada provides both statutory and common-law remedies to check insurance fraud. The Nevada Unfair Insurance Practices Act, Nev. Rev. Stat. § 686A.010 et seq. (1996), patterned substantially on the National Association of Insurance Commissioners' model Unfair Trade Practices Act,[8] is a comprehensive administrative scheme that prohibits various forms of insurance 312 fraud and misrepresentation.[9] Under this legislation, Nevada's Insurance Commissioner has the authority to issue charges if there is reason to believe the Act has been violated, see § 686A.160, and may issue cease and desist orders and administer fees, see § 686A.183. Victims of insurance fraud may also pursue private actions under Nevada law. The Unfair Insurance Practices Act authorizes a private right of action for violations of a number of unfair insurance practices, including "[m]isrepresenting to insureds or claimants pertinent facts or insurance policy provisions relating to any coverage," § 686A.310(1)(a). See § 686A.310(2) ("In addition to any rights or remedies available to the commissioner, an insurer is liable to its insured for any damages sustained by the insured as a result of the commission of any act set forth in subsection 1 as an unfair practice."). Moreover, the Act is not hermetically sealed; it does not exclude application of other state laws, statutory or decisional. Specifically, Nevada law provides that an insurer is under a common-law duty "to negotiate with its insureds in good faith and to deal with them fairly." Ainsworth v. Combined Ins. Co. of Am., 104 Nev. 587, 592, 763 P.2d 673, 676 (1988); see United States Fidelity & Guaranty Co. v. Peterson, 91 Nev. 617, 620, 540 P.2d 1070, 1071 (1975) (recognizing tort action against insurance company for breach of implied covenant of good faith and fair dealing).[10] 313 Furthermore, aggrieved insured parties may be awarded punitive damages if a jury finds clear and convincing evidence that the insurer is guilty of "oppression, fraud or malice." Nev. Rev. Stat. § 42.005(1) (1995). Nevada's punitive damages statute places certain limits on those damagesthree times the amount of compensatory damages if they are more than $100,000, and $300,000 if compensatories are less than $100,000. See §§ 42.005(1)(a), (b). But the same law adds that these limits do not apply to claims against "[a]n insurer who acts in bad faith regarding its obligations to provide insurance coverage." § 42.005(2)(b).[11] Accordingly, plaintiffs seeking relief under Nevada law may be eligible for damages exceeding the treble damages available under RICO.[12] In sum, we see no frustration of state policy in the RICO litigation at issue here. RICO's private right of action and treble damages provision appears to complement Nevada's statutory and common-law claims for relief. In this regard, we note that Nevada filed no brief at any stage of this lawsuit urging that application of RICO to the alleged conduct would frustrate any state policy, or interfere with the State's administrative regime. Cf. NAACP v. American Family 314 Mut. Ins. Co., 978 F.2d 287, 297 (CA7 1992) ("No official of Wisconsin has appeared in this litigation to say that a federal remedy under the Fair Housing Act would frustrate any state policy."). We further note that insurers, too, have relied on the statute when they were the fraud victims. See, e. g., Aetna Casualty Surety Co. v. P & B Autobody, 43 F.3d 1546, 1551 (CA1 1994); see also Brief for United Policyholders as Amicus Curiae 19-21. * * * Because RICO advances the State's interest in combating insurance fraud, and does not frustrate any articulated Nevada policy, we hold that the McCarran-Ferguson Act does not block the respondent policy beneficiaries' recourse to RICO in this case. Accordingly, for the reasons stated in this opinion, the judgment of the Court of Appeals for the Ninth Circuit is Affirmed.	This case concerns regulation of the business of insurance by the States, as secured by the McCarran-Ferguson Act, as amended, 15 U.S. C. 1011 et seq., and the extent to which federal legislation, specifically, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. 1961 et seq., is compatible with state regulation. The controversy before us stems from a scheme employed by petitioner Humana Health Insurance of Nevada, Inc. (Humana Insurance), a group health insurer, to gain discounts for hospital services which the insurer did not disclose and pass on to its policy beneficiaries. The scheme is alleged to violate both Nevada law and RICO. Under the McCarran- 303 Ferguson Act, the federal legislation may be applied if it does not "invalidate, impair, or supersede" the State's regulation. 15 U.S. C. 1012(b). The federal law at issue, RICO, does not proscribe conduct that the State's laws governing insurance permit. But the federal and state remedial regimes differ. Both provide a private right of action. RICO authorizes treble damages; Nevada law permits recovery of compensatory and punitive damages. We hold that RICO can be applied in this case in harmony with the State's regulation. When federal law is applied in aid or enhancement of state regulation, and does not frustrate any declared state policy or disturb the State's administrative regime, the McCarran-Ferguson Act does not bar the federal action. I Plaintiffs in the District Court, respondents in this Court, are beneficiaries of group health insurance policies issued by Humana Insurance. Between 1985 and plaintiffsrespondents received medical care from the Humana Hospital-Sunrise, an acute care facility owned by codefendant (now copetitioner) Humana Inc. Humana Insurance agreed to pay 80% of the policy beneficiaries' hospital charges over a designated deductible. The beneficiaries bore responsibility for payment of the remaining 20%. But pursuant to a concealed agreement, the complaint in this action alleged, the hospital gave Humana Insurance large discounts on the insurer's portion of the hospital's charges for care provided to the policy beneficiaries.[1] As a result, 304 Humana Insurance paid significantly less than 80% of the hospital's actual charges for the care that policy beneficiaries received, and the beneficiaries paid significantly more than 20% of those charges.[2] The employee beneficiaries brought suit in the United States District Court for the District of Nevada,[3] alleging that Humana Insurance and Humana Inc. violated RICO through a pattern of racketeering activity consisting of mail, wire, radio, and television fraud.[4] Defendants Humana Insurance and Humana Inc. moved for summary judgment, citing 2(b) of the McCarran-Ferguson Act, which provides: "No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance." 15 U.S. C. 1012(b). The District Court granted the motion. In that court's view, RICO's private remedies, including the federal statute's treble damages provision, 18 U.S. C. 1964(c), so exceeded Nevada's administrative penalties for insurance fraud, see infra, at 311-312, that applying RICO to the alleged conduct would have been "tantamount to allowing Congress to intercede in an area expressly left to the states under 305 the McCarran-Ferguson Act,"[5] The Ninth Circuit reversed in relevant part. See In Merchants Delivery Serv., a decision handed down after the District Court rejected the policy beneficiaries' right to sue under RICO in this case, the Court of Appeals adopted a "direct conflict" test for determining when a federal law "invalidate[s], impair[s], or supersede[s]" a state law governing insurance. As declared in Merchants the McCarran-Ferguson Act does not preclude "application of a federal statute prohibiting acts which are also prohibited under a state's insurance laws." Guided by Merchants and assuming that Nevada law provided for administrative remedies only, the Ninth Circuit held that the McCarran-Ferguson Act did not bar suit under RICO by the Humana Insurance policy beneficiaries. See Circuit courts have divided on the question presented: Does a federal law, which proscribes the same conduct as state law, but provides materially different remedies, "impair" state law under the McCarran-Ferguson Act?[6] We granted certiorari to address that question. 306 II Prior to our decision in United we had consistently held that the business of insurance was not commerce. See, e. g., ; see also n. 18 The business of insurance, in consequence, was largely immune from federal regulation. See St. Paul Fire & Marine Ins. In SouthEastern, we held for the first time that an insurance company doing business across state lines engages in interstate commerce. See In accord with that holding, we further decided that the Sherman Act applied to the business of insurance. See Concerned that our decision might undermine state efforts to regulate insurance, Congress in 1945 enacted the McCarran-Ferguson Act. Section 1 of the Act provides that "continued regulation and taxation by the several States of the business of insurance is in the public interest," and that "silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States." 15 U.S. C. 1011. In 2(b) of the Actthe centerpiece of this caseCongress ensured that federal statutes not identified in the Act or not yet enacted would not automatically override state insurance regulation. Section 2(b) provides that when Congress enacts a law specifically relating to the business of insurance, that law controls. See 1012(b). The subsection further provides that federal legislation general in character shall not be "construed to invalidate, impair, or supersede any law 307 enacted by any State for the purpose of regulating the business of insurance." [7] The McCarran-Ferguson Act thus precludes application of a federal statute in face of state law "enacted for the purpose of regulating the business of insurance," if the federal measure does not "specifically relat[e] to the business of insurance," and would "invalidate, impair, or supersede" the State's law. See Department of RICO is not a law that "specifically relates to the business of insurance." This case therefore turns on the question: Would RICO's application to the employee beneficiaries' claims at issue "invalidate, impair, or supersede" Nevada's laws regulating insurance? The term "invalidate" ordinarily means "to render ineffective, generally without providing a replacement rule or law." Brief for United States as Amicus Curiae 17, n. 6 ). And the term "supersede" ordinarily means "to displace (and thus render ineffective) while providing a substitute rule." Brief for United States as Amicus Curiae 17, n. 6 ). Under these standard definitions, RICO's 308 application to the policy beneficiaries' complaint would neither "invalidate" nor "supersede" Nevada law. The key question, then, is whether RICO's application to the scheme in which the Humana defendants are alleged to have collaborated, to the detriment of the plaintiff policy beneficiaries, would "impair" Nevada's law. The answer would be "no" were we to read "impair," as the policy beneficiaries suggest, to be "interchangeabl[e]" with "invalidate" and "supersede." Brief for Respondents 14; see Brief for United States as Amicus Curiae 17, n. 6 (describing the use of the three terms as an "instanc[e] of lawyerly iteration"). The answer would also be "no" if we understood "impair" to mean "the displacement of some portion of a statute or its preclusion in certain contexts." This is so because insurers can comply with both RICO and Nevada's laws governing insurance. These laws do not directly conflict. The acts the policy beneficiaries identify as unlawful under RICO are also unlawful under Nevada law. See infra, at 311-313. On the other hand, the answer would be "yes" were we to agree with Humana Insurance and Humana Inc. that the word "impair," in the McCarran-Ferguson Act context, signals the federal legislators' intent "to withdraw Congress from the field [of insurance] absent an express congressional statement to the contrary." Brief for Petitioners 10. Under that reading, "impair" would convey "a very broad proscription against applying federal law where a state has regulated, or chosen not to regulate, in the insurance industry." Merchants 50 F. 3d, 91 See also Reply Brief 4 (McCarran-Ferguson Act "precludes federal law that is at material variance with state insurance lawas to substantive prohibitions, procedures or remedies."). We reject any suggestion that Congress intended to cede the field of insurance regulation to the States, saving only instances in which Congress expressly orders otherwise. If 309 Congress had meant generally to preempt the field for the States, Congress could have said, as the Ninth Circuit noted: "No federal statute [that does not say so explicitly] shall be construed to apply to the business of insurance." Merchants 50 F. 3d, (internal quotation marks omitted); see Brief for United States as Amicus Curiae 24 ("The Act does not declare that `No Act of Congress shall apply to the business of insurance unless such Act specifically relates thereto.' "). Alternatively, Congress could have provided, as it did with respect to the Sherman, Clayton, and Federal Trade Commission Acts, see 15 U.S. C. 1012(b), that federal legislation generally, or RICO in particular, would be "applicable to the business of insurance [only] to the extent that such business is not regulated by State Law," Moreover, 2(b)'s second prohibition bears attention in this regard. That proscription, barring construction of federal statutes to "invalidate, impair, or supersede" "any [state] law which imposes a fee or tax upon [the business of insurance]," belies any congressional intent to preclude federal regulation merely because the regulation imposes liability additional to, or greater than, state law. Were this not so, federal law would "impair" state insurance laws imposing fees or taxes whenever federal law imposed additional fees or greater tax liability. Under our federal system of dual taxation, however, it is scarcely in doubt that "generally applicable federal fees and taxes do not `invalidate, impair, or supersede' state insurance taxes and fees within the meaning of Section 2(b) where nothing precludes insurers from paying both." Brief for United States as Amicus Curiae 26. While we reject any sort of field preemption, we also reject the polar opposite of that view, i. e., that Congress intended a green light for federal regulation whenever the federal law does not collide head on with state regulation. The dictionary definition of "impair" is "[t]o weaken, to make 310 worse, to lessen in power, diminish, or relax, or otherwise affect in an injurious manner." Black's Law Dictionary 752 (6th ed. 1990). The following formulation seems to us to capture that meaning and to construe, most sensibly, the text of 2(b): When federal law does not directly conflict with state regulation, and when application of the federal law would not frustrate any declared state policy or interfere with a State's administrative regime, the McCarranFerguson Act does not preclude its application. See Brief for National Association of Insurance Commissioners as Amicus Curiae 6-7. Our decision in is similar in tenor. In that case, we considered whether a New York law forbidding discrimination in employee benefit plans on the basis of pregnancy was preempted by ERISA. State agencies and officials, appellants in Shaw, argued that the State's law was not preempted; they relied on ERISA 514(d), which provides that ERISA's preemption clause shall not be "construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States." 29 U.S. C. 1144(d). The state agencies and officials maintained that preempting the state law would impair the administration of Title VII of the Civil Rights Act of 1964, 42 U.S. C. 2000e et seq., as amended in 1978 by the Pregnancy Discrimination Act, 42 U.S. C. 2000e(k), for under the enforcement scheme Title VII accommodates, state remedies serve to promote compliance with federal antidiscrimination prescriptions. See -102. We held in Shaw that the New York law was preempted only to the extent it prohibited practices lawful under Title VII. See To the extent the New York law prohibited practices also prohibited under federal law, we explained, the New York law was not preempted; the blanket preemption urged by the employer appellees in Shaw, we pointed out, would "impair" Title VII by "frustrat[ing] the 311 goal of encouraging joint state/federal enforcement of [that federal measure]." Shaw thus supports the view that to "impair" a law is to hinder its operation or "frustrate [a] goal" of that law. Our standard accords with In that case, we upheld, in face of a McCarran-Ferguson Act challenge, the Securities and Exchange Commission's authority to unwind an insurance company merger that the Arizona Director of Insurance had approved. Our opinion pointed to the absence of any "direct conflict": "Arizona has not commanded something which the Federal Government seeks to prohibit. It has permitted respondents to consummate the merger; it did not order them to do so." But that statement did not stand alone. We also observed that "any `impairment' in [that] case [was] a most indirect one." And we concluded: "The paramount federal interest in protecting shareholders [was] perfectly compatible with the paramount state interest in protecting policyholders." There, as here, federal law did not "directly conflict with state regulation," application of federal law did not "frustrate any declared state policy," nor did it "interfere with a State's administrative regime." Applying the standard just announced to the facts of this case, we conclude that suit under RICO by policy beneficiaries would not "impair" Nevada law and therefore is not precluded by the McCarran-Ferguson Act. Nevada provides both statutory and common-law remedies to check insurance fraud. The Nevada Unfair Insurance Practices Act, Nev. Rev. Stat. 686A.010 et seq. (1996), patterned substantially on the National Association of Insurance Commissioners' model Unfair Trade Practices Act,[8] is a comprehensive administrative scheme that prohibits various forms of insurance 312 fraud and misrepresentation.[9] Under this legislation, Nevada's Insurance Commissioner has the authority to issue charges if there is reason to believe the Act has been violated, see 686A.160, and may issue cease and desist orders and administer fees, see 686A. Victims of insurance fraud may also pursue private actions under Nevada law. The Unfair Insurance Practices Act authorizes a private right of action for violations of a number of unfair insurance practices, including "[m]isrepresenting to insureds or claimants pertinent facts or insurance policy provisions relating to any coverage," 686A.310(1)(a). See 686A.310(2) ("In addition to any rights or remedies available to the commissioner, an insurer is liable to its insured for any damages sustained by the insured as a result of the commission of any act set forth in subsection 1 as an unfair practice."). Moreover, the Act is not hermetically sealed; it does not exclude application of other state laws, statutory or decisional. Specifically, Nevada law provides that an insurer is under a common-law duty "to negotiate with its insureds in good faith and to deal with them fairly." ; see United States Fidelity & Guaranty[10] 313 Furthermore, aggrieved insured parties may be awarded punitive damages if a jury finds clear and convincing evidence that the insurer is guilty of "oppression, fraud or malice." Nev. Rev. Stat. 42.005(1) Nevada's punitive damages statute places certain limits on those damagesthree times the amount of compensatory damages if they are more than $100,000, and $300,000 if compensatories are less than $100,000. See 42.005(1)(a), (b). But the same law adds that these limits do not apply to claims against "[a]n insurer who acts in bad faith regarding its obligations to provide insurance coverage." 42.005(2)(b).[11] Accordingly, plaintiffs seeking relief under Nevada law may be eligible for damages exceeding the treble damages available under RICO.[12] In sum, we see no frustration of state policy in the RICO litigation at issue here. RICO's private right of action and treble damages provision appears to complement Nevada's statutory and common-law claims for relief. In this regard, we note that Nevada filed no brief at any stage of this lawsuit urging that application of RICO to the alleged conduct would frustrate any state policy, or interfere with the State's administrative regime. Cf. We further note that insurers, too, have relied on the statute when they were the fraud victims. See, e. g., Aetna Casualty Surety ; see also Brief for United Policyholders as Amicus Curiae 19-21. * * Because RICO advances the State's interest in combating insurance fraud, and does not frustrate any articulated Nevada policy, we hold that the McCarran-Ferguson Act does not block the respondent policy beneficiaries' recourse to RICO in this case. Accordingly, for the reasons stated in this opinion, the judgment of the Court of Appeals for the Ninth Circuit is Affirmed.
Justice Ginsburg	majority	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	In Skilling v. United States, decided today, ante, p. __, we vacated a conviction because the indictment rested, in part, on an improper construction of the “honest services” component of the federal ban on mail fraud, 18 U.S. C. §§1341, 1346. A similar infirmity is present in this case. Here, too, the Government and trial court advanced an interpretation of §1346 rejected by the Court’s opinion in Skilling. Nevertheless, the Government urges, the convic tions of the defendants below, petitioners here, should be affirmed for an independent reason. At trial, the Govern ment pursued alternative theories: (1) money-or-property fraud; and (2) honest-services fraud. To pinpoint whether the jury based its verdict on money-or-property fraud, or honest-services fraud, or both, the Government proposed special interrogatories to accompany the verdict. The defendants resisted, preferring an unelaborated general verdict, and the Government ultimately acquiesced in that standard form of submission. The Court of Appeals held that the defendants, by op posing the Government-suggested special interrogatories, 2 BLACK v. UNITED STATES Opinion of the Court forfeited their objection to the honest-services-fraud in structions given to the jury. 530 F.3d 596, 603 (CA7 2008). We reverse that ruling. A criminal defendant, we hold, need not request special interrogatories, nor need he acquiesce in the Government’s request for discrete find ings by the jury, in order to preserve in full a timely raised objection to jury instructions on an alternative theory of guilt. I Petitioners Conrad Black, John Boultbee, and Mark Kipnis, as well as Peter Atkinson,1 (collectively, Defen dants) were leading executives of Hollinger International, Inc. (Hollinger), a publicly held U. S. company that, through subsidiaries, owned newspapers here and abroad. In 2005, the Government indicted Defendants on multiple counts, of prime concern here, three counts of mail fraud in violation of §§1341 and 1346.2 Two theories were pur sued by the Government on each mail-fraud count. The Government charged that (1) Defendants stole millions from Hollinger by fraudulently paying themselves bogus “noncompetition fees”; and that (2) by failing to disclose their receipt of those fees, Defendants deprived Hollinger of their honest services as managers of the company. App. to Pet. for Cert. 24a–54a. At the close of the four-month trial, the U. S. District Court for the Northern District of Illinois instructed the jury, discretely, on the theft-of-money-or-property and —————— 1 Peter Atkinson is a respondent in support of petitioners who quali fies for relief under this Court’s Rule 12.6. See Letter from Michael S. Schachter to the Clerk of Court (July 29, 2009). 2 Section 1341 criminalizes use of the mails to further “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” Section 1346 defines the §1341 term “scheme or artifice to defraud” to include “a scheme or artifice to deprive another of the intangible right of honest services.” Cite as: 561 U. S. ____ (2010) 3 Opinion of the Court honest-services deprivation theories advanced by the Government. Id., at 235a. As to the latter, the District Court informed the jury, over Defendants’ objection, that a person commits honest-services fraud if he “misuse[s] his position for private gain for himself and/or a co-schemer” and “knowingly and intentionally breache[s] his duty of loyalty.” Id., at 235a–236a. Before jury deliberations began, the Government asked the District Court to employ a special-verdict form, which would reveal, in the event that the jury voted to convict on a mail-fraud count, the theory or theories accounting for the verdict—money-or-property fraud, honest-services fraud, or both. See App. 430a.3 Defendants opposed the Government-proposed special interrogatories and urged, instead, standard general-verdict forms. Id., at 432a. Comprehending, however, that in the event of a guilty verdict, “the jury’s specification of the [mail-]fraud theory might [aid] appellate review,” ibid., Defendants proposed an accommodation: Upon return of a guilty verdict on any mail-fraud count, jurors could be asked to specify the theory on which they relied, id., at 433a. The Government objected to special interrogatories presented to the jury postverdict, App. to Pet. for Cert. 222a, and the District Court declined to adopt that proce dure, id., at 225a.4 When the court rejected postverdict —————— 3 The Government proposed this language for each defendant on each mail-fraud count: “If you find the defendant . . . Guilty with respect to [this Count], you must answer the following question by checking the applicable lines. “With respect to [this Count], we, the jury, find the following has been proven beyond a reasonable doubt (check all that apply): “Defendant engaged in a scheme to defraud [Hollinger] and its shareholders of money or property ____ “Defendant engaged in a scheme to defraud [Hollinger] and its shareholders of their intangible right to honest services ____.” App. 430a. 4 In her years at the bar and on the bench, the trial judge commented, 4 BLACK v. UNITED STATES Opinion of the Court interrogatories, the Government represented that it would not object to submission of the mail-fraud counts for jury decision by general verdict. Id., at 228a. The jury re turned general verdicts of “guilty” on the three mail-fraud counts;5 it also found defendant Black guilty of obstruction of justice in violation of 18 U.S. C. §1512(c)(1), and it acquitted Defendants on all other charges. On appeal, Defendants urged the invalidity of the jury instructions on honest-services fraud. Under the rule declared by this Court in Yates v. United States, 354 U.S. 298, 312 (1957), a general verdict may be set aside “where the verdict is supportable on one ground, but not on an other, and it is impossible to tell which ground the jury selected.” Relying on that rule, Defendants urged reversal of their mail-fraud convictions. The Court of Appeals found no infirmity in the honest-services instructions, 530 F.3d, at 600–602, but further determined that Defendants could not prevail even if those instructions were wrong, id., at 602–603. For this determination, the court homed in on the Government’s special-verdict proposal. The challenge to the honest-services instructions would have become moot, the court observed, had the jury re ceived special-verdict forms separating money-or-property fraud from honest-services fraud, and reported on the forms that Defendants were not guilty of honest-services fraud. Defendants, the Court of Appeals reasoned, bore responsibility for the obscurity of the jury’s verdict. True, the court acknowledged, it was not incumbent on Defen dants to request special verdicts. But by resisting the Government’s proposal for separate findings on money-or property fraud and on honest-services fraud, and request —————— she had “absolutely” never seen the postverdict procedure used. App. to Pet. for Cert. 225a. 5 The District Court later granted Kipnis’ motion for judgment of acquittal on one of these counts. Cite as: 561 U. S. ____ (2010) 5 Opinion of the Court ing general verdicts instead, the Seventh Circuit con cluded, Defendants had “forfeited their objection to the [honest-services] instruction[s].” Id., at 603. Defendants’ suggestion of postverdict interrogatories did not, in the Court of Appeals’ view, overcome the forfeiture, for “[q]uestioning the jurors after they have handed down their verdict is not a good procedure and certainly not one that a district judge is required to employ.” Ibid.6 We granted certiorari in this case, 556 U. S. ___ (2009), along with Skilling v. United States, 558 U. S. ___ (2009), and Weyhrauch v. United States, 557 U. S. ___ (2009), to determine what conduct Congress rendered criminal by proscribing, in §1346, fraudulent deprivation of “the in tangible right of honest services.” We also agreed to con sider in this case the question whether Defendants for feited their objection to the honest-services jury instructions by opposing the Government’s request for special verdicts. II We decided in Skilling that §1346, properly confined, criminalizes only schemes to defraud that involve bribes or kickbacks. See ante, p. __. That holding renders the honest-services instructions given in this case incorrect,7 and brings squarely before us the question presented by the Seventh Circuit’s forfeiture ruling: Did Defendants, by failing to acquiesce in the Government’s request for spe cial verdicts, forfeit their objection, timely made at trial, to the honest-services instructions? —————— 6 See, e.g., Jacobs Mfg. Co. v. Sam Brown Co., 19 F.3d 1259, 1267 (CA8 1994) (“Postverdict interrogatories may imply the jury’s verdict is unjustified and cause the jury to answer the interrogatories in a man ner inconsistent with the verdict.”); cf. Yeager v. United States, 557 U. S. ___, ___ (2009) (slip op., at 11) (“Courts properly avoid . . . explora tions into the jury’s sovereign space.”). 7 The scheme to defraud alleged here did not involve any bribes or kickbacks. 6 BLACK v. UNITED STATES Opinion of the Court In addressing this issue, we note first the absence of any provision in the Federal Rules of Criminal Procedure for submission of special questions to the jury. See Stein v. New York, 346 U.S. 156, 178 (1953) (“Our own Rules of Criminal Procedure make no provision for anything but a general verdict.”), overruled on other grounds, Jackson v. Denno, 378 U.S. 368 (1964).8 The sole call for special findings in the Criminal Rules concerns nonjury trials. Rule 23(c) provides: “If a party [in a case tried without a jury] requests before the finding of guilty or not guilty, the court must state its specific findings of fact in open court or in a written decision or opinion.” In contrast, the Federal Rules of Civil Procedure provide for jury interrogatories of two kinds: special verdicts, which instruct the jury to return “a special written finding on each issue of fact,” Rule 49(a); and general verdicts with answers to “written questions on one or more issues of fact,” Rule 49(b).9 Although not dispositive,10 the ab sence of a Criminal Rule authorizing special verdicts counsels caution.11 —————— 8 The absence of a special verdict or interrogatory provision in the Criminal Rules is hardly accidental. See Skidmore v. Baltimore & Ohio R. Co., 167 F.2d 54, 70 (CA2 1948) (L. Hand, J., concurring) (“I should like to subject a verdict, as narrowly as was practical, to a review which should make it in fact, what we very elaborately pretend that it should be: a decision based upon law. In criminal prosecutions there may be, and in my judgment there are, other considerations which intervene to make such an attempt undesirable.”). 9 Although the special interrogatories requested by the Government in this case have been called “special verdicts” by the parties and the courts below, they more closely resemble what Civil Rule 49(b) de scribes as “general verdict[s] with answers to written questions.” (Capitalization omitted.) 10 See Fed. Rule Crim. Proc. 57(b) (when there is no controlling law, “[a] judge may regulate practice in any manner consistent with federal law, these rules, and the local rules of the district”). 11 By calling for caution, we do not mean to suggest that special ver dicts in criminal cases are never appropriate. See United States v. Cite as: 561 U. S. ____ (2010) 7 Opinion of the Court While the Criminal Rules are silent on special verdicts, they are informative on objections to instructions. Rule 30(d) “clarifies what . . . counsel must do to preserve a claim of error regarding an instruction.” Advisory Com mittee’s Notes on 2002 Amendment on Fed. Rule Crim. Proc. 30(d), 18 U.S. C. App., p. 915. The Rule provides: “A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate.” Defendants here, it is undisputed, complied with that requirement.12 The Court of Appeals, in essence, added a further re quirement for preservation of a meaningful objection to jury instructions. It devised a forfeiture sanction un moored to any federal statute or criminal rule. And it placed in the prosecutor’s hands authority to trigger the sanction simply by requesting a special verdict. See 530 —————— Ruggiero, 726 F.2d 913, 922–923 (CA2 1984) (in complex Racketeer Influenced and Corrupt Organizations Act cases, “it can be extremely useful for a trial judge to request the jury to record their specific dispositions of the separate predicate acts charged, in addition to their verdict of guilty or innocence”); id., at 927 (Newman, J., concurring in part and dissenting in part) (“[A] District Court should have the discre tion to use a jury interrogatory in cases where risk of prejudice to the defendant is slight and the advantage of securing particularized fact finding is substantial.”). 12 The Government asserts that Defendants’ opposition to a special verdict resulted in forfeiture not of their jury-instruction objection, but of their “Yates argument” that any instructional error may “requir[e] reversal.” Brief for United States 52, and n. 21 (internal quotation marks omitted). The Government thus appears to concede that Defen dants preserved their instructional challenge, but maintains that they are powerless to ask a court to assess the prejudicial effect of any error they may be able to demonstrate. See Reply Brief 29, n. 10 (on Gov ernment’s view, “[Defendants] could still ‘claim’ they were wrongly convicted, they just could not ask a court to do anything about it”). We see little merit in the Government’s attempt to divorce preservation of a claim from preservation of the right to redress should the claim succeed. 8 BLACK v. UNITED STATES Opinion of the Court F. 3d, at 603.13 To boot, the Court of Appeals applied the sanction to Defendants, although they lacked any notice that forfeiture would attend their resistance to the Gov ernment’s special-verdict request. There is a Rule de signed to ward off judicial invention of the kind present here. Federal Rule of Criminal Procedure 57(b) admon ishes: “No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law [or] federal rules . . . unless the alleged violator was fur nished with actual notice of the requirement before the noncompliance.” We hold, in short, that, by properly objecting to the honest-services jury instructions at trial, Defendants secured their right to challenge those instructions on appeal. They did not forfeit that right by declining to acquiesce in the Government-proposed special-verdict forms. Our decision in Skilling makes it plain that the honest-services instructions in this case were indeed incorrect. As in Skilling, ante, at 40–41, we express no opinion on the question whether the error was ultimately harmless, but leave that matter for consideration on remand.14 * * * For the reasons stated, we vacate the judgment of the Court of Appeals and remand the case for further proceed ings consistent with this opinion. It is so ordered. —————— 13 Renderingthe Seventh Circuit’s forfeiture ruling all the more anomalous, at the time the trial court settled on the general verdict form, the Government was no longer pressing its special-verdict re quest. See App. to Pet. for Cert. 228a. 14 Black contends that spillover prejudice from evidence introduced on the mail-fraud counts requires reversal of his obstruction-of-justice conviction. Brief for Petitioners 47–49. That question, too, is one on which we express no opinion. Cite as: 561 U. S. ____ (2010) 1 Opinion of SCALIA, 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 SCALIA, with whom JUSTICE THOMAS joins, concurring in part and concurring in the judgment.	In Skilling v. United States, decided today, ante, p. we vacated a conviction because the indictment rested, in part, on an improper construction of the “honest services” component of the federal ban on mail fraud, 18 U.S. C. 1346. A similar infirmity is present in this case. Here, too, the Government and trial court advanced an interpretation of rejected by the Court’s opinion in Skilling. Nevertheless, the Government urges, the convic tions of the defendants below, petitioners here, should be affirmed for an independent reason. At trial, the Govern ment pursued alternative theories: (1) money-or-property fraud; and (2) honest-services fraud. To pinpoint whether the jury based its verdict on money-or-property fraud, or honest-services fraud, or both, the Government proposed special interrogatories to accompany the verdict. The defendants resisted, preferring an unelaborated general verdict, and the Government ultimately acquiesced in that standard form of submission. The Court of Appeals held that the defendants, by op posing the Government-suggested special interrogatories, 2 BLACK v. UNITED STATES Opinion of the Court forfeited their objection to the honest-services-fraud in structions given to the jury. (CA7 2008). We reverse that ruling. A criminal defendant, we hold, need not request special interrogatories, nor need he acquiesce in the Government’s request for discrete find ings by the jury, in order to preserve in full a timely raised objection to jury instructions on an alternative theory of guilt. I Petitioners Conrad Black, John Boultbee, and Mark Kipnis, as well as Peter Atkinson,1 (collectively, Defen dants) were leading executives of Hollinger International, Inc. (Hollinger), a publicly held U. S. company that, through subsidiaries, owned newspapers here and abroad. In 2005, the Government indicted Defendants on multiple counts, of prime concern here, three counts of mail fraud in violation of and 1346.2 Two theories were pur sued by the Government on each mail-fraud count. The Government charged that (1) Defendants stole millions from Hollinger by fraudulently paying themselves bogus “noncompetition fees”; and that (2) by failing to disclose their receipt of those fees, Defendants deprived Hollinger of their honest services as managers of the company. App. to Pet. for Cert. 24a–54a. At the close of the four-month trial, the U. S. District Court for the Northern District of Illinois instructed the jury, discretely, on the theft-of-money-or-property and —————— 1 Peter Atkinson is a respondent in support of petitioners who quali fies for relief under this Court’s Rule 12.6. See Letter from Michael S. Schachter to the Clerk of Court (July 29, 2009). 2 Section 1341 criminalizes use of the mails to further “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” Section 1346 defines the term “scheme or artifice to defraud” to include “a scheme or artifice to deprive another of the intangible right of honest services.” Cite as: 561 U. S. (2010) 3 Opinion of the Court honest-services deprivation theories advanced by the Government. at 235a. As to the latter, the District Court informed the jury, over Defendants’ objection, that a person commits honest-services fraud if he “misuse[s] his position for private gain for himself and/or a co-schemer” and “knowingly and intentionally breache[s] his duty of loyalty.” at 235a–236a. Before jury deliberations began, the Government asked the District Court to employ a special-verdict form, which would reveal, in the event that the jury voted to convict on a mail-fraud count, the theory or theories accounting for the verdict—money-or-property fraud, honest-services fraud, or both. See App. 430a.3 Defendants opposed the Government-proposed special interrogatories and urged, instead, standard general-verdict forms. at 432a. Comprehending, however, that in the event of a guilty verdict, “the jury’s specification of the [mail-]fraud theory might [aid] appellate review,” ib Defendants proposed an accommodation: Upon return of a guilty verdict on any mail-fraud count, jurors could be asked to specify the theory on which they relied, at 433a. The Government objected to special interrogatories presented to the jury postverdict, App. to Pet. for Cert. 222a, and the District Court declined to adopt that proce dure, at 225a.4 When the court rejected postverdict —————— 3 The Government proposed this language for each defendant on each mail-fraud count: “If you find the defendant Guilty with respect to [this Count], you must answer the following question by checking the applicable lines. “With respect to [this Count], we, the jury, find the following has been proven beyond a reasonable doubt (check all that apply): “Defendant engaged in a scheme to defraud [Hollinger] and its shareholders of money or property “Defendant engaged in a scheme to defraud [Hollinger] and its shareholders of their intangible right to honest services” App. 430a. 4 In her years at the bar and on the bench, the trial judge commented, 4 BLACK v. UNITED STATES Opinion of the Court interrogatories, the Government represented that it would not object to submission of the mail-fraud counts for jury decision by general verdict. at 228a. The jury re turned general verdicts of “guilty” on the three mail-fraud counts;5 it also found defendant Black guilty of obstruction of justice in violation of 18 U.S. C. and it acquitted Defendants on all other charges. On appeal, Defendants urged the invalidity of the jury instructions on honest-services fraud. Under the rule declared by this Court in Yates v. United States, 354 U.S. 298, 312 (1957), a general verdict may be set aside “where the verdict is supportable on one ground, but not on an other, and it is impossible to tell which ground the jury selected.” Relying on that rule, Defendants urged reversal of their mail-fraud convictions. The Court of Appeals found no infirmity in the honest-services instructions, 530 F.3d, at 600–602, but further determined that Defendants could not prevail even if those instructions were wrong, at 602–. For this determination, the court homed in on the Government’s special-verdict proposal. The challenge to the honest-services instructions would have become moot, the court observed, had the jury re ceived special-verdict forms separating money-or-property fraud from honest-services fraud, and reported on the forms that Defendants were not guilty of honest-services fraud. Defendants, the Court of Appeals reasoned, bore responsibility for the obscurity of the jury’s verdict. True, the court acknowledged, it was not incumbent on Defen dants to request special verdicts. But by resisting the Government’s proposal for separate findings on money-or property fraud and on honest-services fraud, and request —————— she had “absolutely” never seen the postverdict procedure used. App. to Pet. for Cert. 225a. 5 The District Court later granted Kipnis’ motion for judgment of acquittal on one of these counts. Cite as: 561 U. S. (2010) 5 Opinion of the Court ing general verdicts instead, the Seventh Circuit con cluded, Defendants had “forfeited their objection to the [honest-services] instruction[s].” at Defendants’ suggestion of postverdict interrogatories did not, in the Court of Appeals’ view, overcome the forfeiture, for “[q]uestioning the jurors after they have handed down their verdict is not a good procedure and certainly not one that a district judge is required to employ.” Ibid.6 We granted certiorari in this case, 556 U. S. (2009), along with Skilling v. United States, 558 U. S. (2009), and Weyhrauch v. United States, 557 U. S. (2009), to determine what conduct Congress rendered criminal by proscribing, in fraudulent deprivation of “the in tangible right of honest services.” We also agreed to con sider in this case the question whether Defendants for feited their objection to the honest-services jury instructions by opposing the Government’s request for special verdicts. II We decided in Skilling that properly confined, criminalizes only schemes to defraud that involve bribes or kickbacks. See ante, p. That holding renders the honest-services instructions given in this case incorrect,7 and brings squarely before us the question presented by the Seventh Circuit’s forfeiture ruling: Did Defendants, by failing to acquiesce in the Government’s request for spe cial verdicts, forfeit their objection, timely made at trial, to the honest-services instructions? —————— 6 See, e.g., Jacobs Mfg. (CA8 1994) (“Postverdict interrogatories may imply the jury’s verdict is unjustified and cause the jury to answer the interrogatories in a man ner inconsistent with the verdict.”); cf. Yeager v. United States, 557 U. S. (2009) (slip op., at 11) (“Courts properly avoid explora tions into the jury’s sovereign space.”). 7 The scheme to defraud alleged here did not involve any bribes or kickbacks. 6 BLACK v. UNITED STATES Opinion of the Court In addressing this issue, we note first the absence of any provision in the Federal Rules of Criminal Procedure for submission of special questions to the jury. See Stein v. New York, (“Our own Rules of Criminal Procedure make no provision for anything but a general verdict.”), overruled on other grounds, Jackson v. Denno,8 The sole call for special findings in the Criminal Rules concerns nonjury trials. Rule 23(c) provides: “If a party [in a case tried without a jury] requests before the finding of guilty or not guilty, the court must state its specific findings of fact in open court or in a written decision or opinion.” In contrast, the Federal Rules of Civil Procedure provide for jury interrogatories of two kinds: special verdicts, which instruct the jury to return “a special written finding on each issue of fact,” Rule 49(a); and general verdicts with answers to “written questions on one or more issues of fact,” Rule 49(b).9 Although not dispositive,10 the ab sence of a Criminal Rule authorizing special verdicts counsels caution.11 —————— 8 The absence of a special verdict or interrogatory provision in the Criminal Rules is hardly accidental. See (“I should like to subject a verdict, as narrowly as was practical, to a review which should make it in fact, what we very elaborately pretend that it should be: a decision based upon law. In criminal prosecutions there may be, and in my judgment there are, other considerations which intervene to make such an attempt undesirable.”). 9 Although the special interrogatories requested by the Government in this case have been called “special verdicts” by the parties and the courts below, they more closely resemble what Civil Rule 49(b) de scribes as “general verdict[s] with answers to written questions.” (Capitalization omitted.) 10 See Fed. Rule Crim. Proc. 57(b) (when there is no controlling law, “[a] judge may regulate practice in any manner consistent with federal law, these rules, and the local rules of the district”). 11 By calling for caution, we do not mean to suggest that special ver dicts in criminal cases are never appropriate. See United States v. Cite as: 561 U. S. (2010) 7 Opinion of the Court While the Criminal Rules are silent on special verdicts, they are informative on objections to instructions. Rule 30(d) “clarifies what counsel must do to preserve a claim of error regarding an instruction.” Advisory Com mittee’s Notes on 2002 Amendment on Fed. Rule Crim. Proc. 30(d), 18 U.S. C. App., p. 915. The Rule provides: “A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate.” Defendants here, it is undisputed, complied with that requirement.12 The Court of Appeals, in essence, added a further re quirement for preservation of a meaningful objection to jury instructions. It devised a forfeiture sanction un moored to any federal statute or criminal rule. And it placed in the prosecutor’s hands authority to trigger the sanction simply by requesting a special verdict. See 530 —————— Ruggiero, (in complex Racketeer Influenced and Corrupt Organizations Act cases, “it can be extremely useful for a trial judge to request the jury to record their specific dispositions of the separate predicate acts charged, in addition to their verdict of guilty or innocence”); (Newman, J., concurring in part and dissenting in part) (“[A] District Court should have the discre tion to use a jury interrogatory in cases where risk of prejudice to the defendant is slight and the advantage of securing particularized fact finding is substantial.”). 12 The Government asserts that Defendants’ opposition to a special verdict resulted in forfeiture not of their jury-instruction objection, but of their “Yates argument” that any instructional error may “requir[e] reversal.” Brief for United States 52, and n. 21 (internal quotation marks omitted). The Government thus appears to concede that Defen dants preserved their instructional challenge, but maintains that they are powerless to ask a court to assess the prejudicial effect of any error they may be able to demonstrate. See Reply Brief 29, n. 10 (on Gov ernment’s view, “[Defendants] could still ‘claim’ they were wrongly convicted, they just could not ask a court to do anything about it”). We see little merit in the Government’s attempt to divorce preservation of a claim from preservation of the right to redress should the claim succeed. 8 BLACK v. UNITED STATES Opinion of the Court F. 3d, at13 To boot, the Court of Appeals applied the sanction to Defendants, although they lacked any notice that forfeiture would attend their resistance to the Gov ernment’s special-verdict request. There is a Rule de signed to ward off judicial invention of the kind present here. Federal Rule of Criminal Procedure 57(b) admon ishes: “No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law [or] federal rules unless the alleged violator was fur nished with actual notice of the requirement before the noncompliance.” We hold, in short, that, by properly objecting to the honest-services jury instructions at trial, Defendants secured their right to challenge those instructions on appeal. They did not forfeit that right by declining to acquiesce in the Government-proposed special-verdict forms. Our decision in Skilling makes it plain that the honest-services instructions in this case were indeed incorrect. As in Skilling, ante, at 40–41, we express no opinion on the question whether the error was ultimately harmless, but leave that matter for consideration on remand.14 * * * For the reasons stated, we vacate the judgment of the Court of Appeals and remand the case for further proceed ings consistent with this opinion. It is so ordered. —————— 13 Renderingthe Seventh Circuit’s forfeiture ruling all the more anomalous, at the time the trial court settled on the general verdict form, the Government was no longer pressing its special-verdict re quest. See App. to Pet. for Cert. 228a. 14 Black contends that spillover prejudice from evidence introduced on the mail-fraud counts requires reversal of his obstruction-of-justice conviction. Brief for Petitioners 47–49. That question, too, is one on which we express no opinion. Cite as: 561 U. S. (2010) 1 Opinion of SCALIA, 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 SCALIA, with whom JUSTICE THOMAS joins, concurring in part and concurring in the judgment.
Justice Blackmun	majority	false	Baldwin v. Alabama	1985-06-17T00:00:00	null	https://www.courtlistener.com/opinion/111473/baldwin-v-alabama/	https://www.courtlistener.com/api/rest/v3/clusters/111473/	1,985	1984-124	1	6	3	Between 1976 and 1981, an Alabama statute required a jury that convicted a defendant of any one of a number of specified crimes "with aggravation" to "fix the punishment at death." Ala. Code § 13-11-2(a) (1975).[1] The "sentence" 374 imposed by the jury, however, was not dispositive. Instead, "[n]otwithstanding the fixing of the punishment at death by the jury," § 13-11-4, the trial judge then was to hear evidence of aggravating and mitigating circumstances and, after weighing those circumstances, to sentence the defendant to death or to life imprisonment without parole. This case concerns the constitutionality of the peculiar and unusual requirement of the 1975 Alabama Act that the jury "shall fix the punishment at death," even though the trial judge is the actual sentencing authority.[2] The United States Court of Appeals for the Eleventh Circuit ruled that the scheme was facially unconstitutional. Ritter v. Smith, 726 F.2d 1505, 1515-1517, cert. denied, 469 U.S. 869 (1984). Shortly thereafter, however, the Supreme Court of Alabama, with two dissenting votes, ruled to the contrary in the present case. Ex parte Baldwin, 456 So. 2d 129, 138-139 (1984). We granted certiorari to resolve this significant conflict. 469 U.S. 1085 (1984). I A The facts are sordid, but a brief recital of them must be made. Petitioner Brian Keith Baldwin, then 18 years of age, escaped from a North Carolina prison camp on Saturday, March 12, 1977. That evening, he and a fellow escapee, Edward Horsley, came upon 16-year-old Naomi Rolon, who was having trouble with her automobile. The two forcibly took over her car and drove her to Charlotte, N. C. There, both men attempted to rape her, petitioner sodomized her, and the two attempted to choke her to death. They then ran over her with the car, locked her in its trunk, and left 375 her there while they drove through Georgia and Alabama. Twice, when they heard the young woman cry out, they stopped the car, opened the trunk, and stabbed her repeatedly. On Monday afternoon, they stole a pickup truck, drove both vehicles to a secluded spot, and, after again using the car to run over the victim, cut her throat with a hatchet. She died after this 40-hour ordeal. Petitioner was apprehended the following day driving the stolen truck. He was charged with theft. While in custody, he confessed to the victim's murder and led the police to her body. He was then indicted for "robbery . . . when the victim is intentionally killed," a capital offense, § 13-11-2(a)(2), and was tried before a jury in Monroe County. At the close of the evidence regarding guilt or innocence, the judge instructed the jury that if it found the petitioner guilty, "the Legislature of the State of Alabama has said this is a situation [in] which . . . the punishment would be death by electrocution," Tr. 244-245, and the jury therefore would be required to sentence petitioner to death. Id., at 242. The jury found petitioner guilty, in the terms of the statute, of robbery with the aggravated circumstance of intentionally killing the victim, and returned a verdict form that stated: "We, the Jury, find the defendant guilty as charged in the indictment and fix his punishment at death by electrocution." App. 4. B Under Alabama's 1975 Death Penalty Act, once a defendant was convicted of any one of 14 specified aggravated offenses, see Ala. Code § 13-11-2(a) (1975), and the jury returned the required death sentence, the trial judge was obligated to hold a sentencing hearing: "[T]he court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole. In the hearing, evidence may be presented as to any matter that the court deems relevant to 376 sentence and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13-11-6 and 13-11-7." § 13-11-3. The judge was then required to sentence the defendant to death or to life imprisonment without parole: "Notwithstanding the fixing of the punishment at death by the jury, the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole, which shall be served without parole; or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death." § 13-11-4. If the court imposed a death sentence, it was required to set forth in writing the factual findings from the trial and the sentencing hearing, including the aggravating and mitigating circumstances that formed the basis for the sentence. Ibid. The judgment of conviction and sentence of death were subject to automatic review by the Court of Criminal Appeals, and, if that court affirmed, by the Supreme Court of Alabama. §§ 13-11-5, XX-XX-XXX; Ala. Rule App. Proc. 39(c). See Beck v. State, 396 So. 2d 645, 664 (Ala. 1981); Evans v. Britton, 472 F. Supp. 707, 713-714, 723-724 (SD Ala. 1979), rev'd on other grounds, 628 F.2d 400 (CA5 1980), 639 F.2d 221 (1981), rev'd sub nom. Hopper v. Evans, 456 U.S. 605 (1982). C Following petitioner's conviction, the trial judge held the sentencing hearing required by § 13-11-3. The State reintroduced the evidence submitted at trial, and introduced petitioner's juvenile and adult criminal records, as well as Edward Horsley's statement regarding the crime. Petitioner then took the stand and testified that he had "a hard 377 time growing up"; that he left home at the age of 13 because his father did not like him to come home late at night; that he dropped out of school after the ninth grade; that he made a living by "street hustling"; that he had been arrested approximately 30 times; and that he was a drug addict. App. 8-10. At the conclusion of petitioner's testimony, the trial judge stated: "Brian Keith Baldwin, today is the day you have in court to tell this judge whatever is on your mind . . . , now is your time to tell the judge anything that you feel like might be helpful to you in the position that you find yourself in. I want to give you every opportunity in the world that I know about. . . . Anything you feel like you can tell this Judge that will help you in your present position." Id., at 12. Petitioner then complained about various aspects of his trial, and concluded: "I ain't saying I'm guilty but I might be guilty for murder but I ain't guilty for robbery down here. That's all I got to say." Id., at 13. The judge stated that "having considered the evidence presented at the trial and at said sentence hearing," id., at 17-18, the court found the following aggravating circumstances: the capital offense was committed while petitioner was under a sentence of imprisonment in the State of North Carolina from which he had escaped; petitioner previously had pleaded guilty to a felony involving the use of violence to the person; the capital offense was committed while petitioner was committing a robbery or in flight after the robbery; and the offense was especially heinous, atrocious, or cruel.[3] The judge found that petitioner's age 18 at the 378 time of the crime was the only mitigating circumstance. Id., at 18. He then stated: "The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted." Ibid. The Supreme Court of Alabama eventually affirmed the conviction and sentence. 456 So. 2d 129 (1984).[4] In his argument to that court, petitioner contended that the 1975 Act was facially invalid. Tracking the reasoning of the Eleventh Circuit in Ritter v. Smith, 726 F. 2d, at 1516-1517, he argued that the jury's mandatory sentence was unconstitutional because it was unguided, standardless, and reflected no consideration of the particular defendant or crime, and that the judge's sentence was unconstitutional because it was based in part upon consideration of the impermissible jury sentence and was infected by it. The court rejected petitioner's arguments, 379 holding that even though the jury had no discretion regarding the "sentence" it would impose, the sentencing procedure was saved by the fact that it was the trial judge who was the true sentencing authority, and he considered aggravating and mitigating circumstances before imposing sentence. 456 So. 2d, at 139.[5] II If the jury's "sentence" were indeed the dispositive sentence, the Alabama scheme would be unconstitutional under the principles announced in Woodson v. North Carolina, 428 U.S. 280 (1976) (plurality opinion), and Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1976) (plurality opinion). See 380 also Roberts (Harry) v. Louisiana, 431 U.S. 633 (1977). In Woodson, the Court held that North Carolina's sentencing scheme, which imposed a mandatory death sentence for a broad category of homicidal offenses, violated the Eighth and Fourteenth Amendments in three respects. First, such mandatory schemes offend contemporary standards of decency, as evidenced by the frequency with which jurors avoid the imposition of mandatory death sentences by disregarding their oaths and refusing to convict, and by the consistent movement of the States and Congress away from such schemes. 428 U.S., at 288-301. Second, by refusing to convict defendants who the jurors think do not deserve the death penalty, juries exercise unguided and unchecked discretion regarding who will be sentenced to death. Id., at 302-303. Third, such mandatory schemes fail to allow particularized consideration of the character and record of the defendant and the circumstances of the offense. Id., at 303-305. Alabama's requirement that the jury impose a mandatory sentence for a wide range of homicides, standing alone, would suffer each of those defects. The jury's mandatory "sentence," however, does not stand alone under the Alabama scheme. Instead, as has been described above, the trial judge thereafter conducts a separate hearing to receive evidence of aggravating and mitigating circumstances, and determines whether the aggravating circumstances outweigh the mitigating circumstances. The judge's discretion is guided by the requirement that the death penalty be imposed only if the judge finds the aggravating circumstance that serves to define the capital crime in this case the fact that the homicide took place during the commission of a robbery and only if the judge finds that the definitional aggravating circumstance, plus any other specified aggravating circumstance,[6] outweighs 381 any statutory and nonstatutory mitigating circumstances. § 13-11-4. Petitioner accordingly does not argue that the judge's discretion under § 13-11-4 is not "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action," Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). Nor is there any issue before this Court that the 1975 Act did not allow "the type of individualized consideration of mitigating factors" by the sentencing judge that has been held constitutionally indispensable in capital cases.[7]Lockett v. Ohio, 438 U.S. 586, 606 (1978) (plurality opinion); see also 382 Eddings v. Oklahoma, 455 U.S. 104 (1982); Woodson v. North Carolina, 428 U. S., at 304 (plurality opinion). Petitioner's challenge to the Alabama scheme rests instead on the provision of the 1975 Act that allows the judge to weigh "the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury" in determining whether death is the appropriate sentence. § 13-11-4. This Court has stated that a death sentence based upon consideration of "factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant," would violate the Constitution. Zant v. Stephens, 462 U.S. 862, 885 (1983). Relying upon Zant, petitioner contends that, because the jury's mandatory "sentence" would be unconstitutional standing alone, it is an impermissible factor for the trial judge to consider, as the statute appears to require, in the sentencing process. That argument conceivably might have merit if the judge actually were required to consider the jury's "sentence" as a recommendation as to the sentence the jury believed would be appropriate, cf. Proffitt v. Florida, 428 U.S. 242 (1976), and if the judge were obligated to accord some deference to it. The jury's verdict is not considered in that fashion, however, as the Alabama appellate courts' construction of the Act, as well as the judge's statements regarding the process by which he arrived at the sentence, so definitely indicates. A The language of § 13-11-4, to be sure, in so many words does not preclude the sentencing judge from considering the jury's "sentence" in determining whether the death penalty is appropriate. The first clause of the section "the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment 383 without parole" does not authorize or require the court to weigh the jury's "sentence" in determining whether to refuse to impose the death penalty. The second clause "or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death" does seem to authorize consideration of the jury's "sentence." It is not clear whether the second clause allows consideration of the jury's "sentence" only if the weighing of the aggravating and mitigating circumstances authorized in the first clause has indicated that the "sentence" should not be rejected, or whether the second clause allows the judge to ignore the first clause and count the jury's "sentence" as a factor, similar to an aggravating circumstance, weighing in favor of the death penalty. We therefore look to the Alabama courts' construction of § 13-11-4. See Proffitt v. Florida, supra; Jurek v. Texas, 428 U.S. 262, 272-273 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). The Alabama appellate courts have interpreted the 1975 Act expressly to mean that the sentencing judge is to impose a sentence without regard to the jury's mandatory "sentence." The Alabama Court of Criminal Appeals has stated: "The jury's function is only to find guilt or innocence. The jury is not the sentencing authority." Jacobs v. State, 361 So. 2d 607, 631 (1977), aff'd, 361 So. 2d 640 (Ala. 1978), cert. denied, 439 U.S. 1122 (1979). Indeed, the court has gone so far as to state: "No sentence exists until the pronouncement by the trial judge at the conclusion of the sentence hearing. It is for this reason the court cannot be said to be commuting a sentence of death imposed by the jury, but, in truth and in fact, it is sentencing the accused after a jury's finding of guilt." Beck v. State, 365 So. 2d 985, 1005, aff'd, 365 So. 2d 1006 (Ala. 1978), rev'd on other grounds, 447 U.S. 625 (1980). 384 The court further has described the judge's role as follows: "The sentencing hearing is one of the most important and critical stages under Alabama's death penalty law. The guilt stage has passed. Now an experienced trial judge must consider the particularized circumstances surrounding the offense and the offender and determine if the accused is to die or be sentenced to life imprisonment without parole. . . . The trial evidence must be reviewed to determine all of the aggravating circumstances leading up to and culminating in the death of the victim and then all the mitigating circumstances must be considered in determining if any outweigh the aggravating circumstances so found in the trial court's findings of fact." Richardson v. State, 376 So. 2d 205, 224 (1978), aff'd, 376 So. 2d. 228 (Ala. 1979). Conspicuously absent from the court's description of the judge's duty is any mention of according weight or deference to the jury's "sentence." The Supreme Court of Alabama agrees that "the jury is not the sentencing authority in . . . Alabama," and has described the sentencing judge not as a reviewer of the jury's "sentence," but as the sentencer: "In Alabama, the jury is not the body which finally determines which murderers must die and which must not. In fact, Alabama's statute mandatorily requires the court to `hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole,' and specifically provides that the court may refuse to accept the death penalty as fixed by the jury and may `sentence' the defendant to death or life without parole. Code of Ala. 1975, § 13-11-4. That section provides that if the court imposes a `sentence of death' it must set forth, in writing, the basis for the sentence." Jacobs v. State, 361 So. 2d, at 644 (emphasis in original; footnote omitted). 385 See also Ritter v. State, 429 So. 2d 928, 935-936 (Ala. 1983); Beck v. State, 396 So. 2d, at 659. B In this case, moreover, it is clear that the sentencing judge did not interpret the statute as requiring him to consider the jury's "sentence," because he never described the "sentence" as a factor in his deliberations. After the jury returned its verdict, the trial judge informed petitioner: "Let me say this: The jury has found you guilty of the crime of robbery with the aggravated circumstances of intentionally killing the victim . . . and set your punishment at death by electrocution but the law of this state provides first that there will be an additional hearing in this case at which time the Court will consider aggravating circumstances, extenuating and all other circumstances, concerning the commission of this particular offense" (emphasis added). Tr. 249. In addition, in imposing the sentence, the judge stated: "The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted" (emphasis added). App. 18. None of these statement indicates that the judge considered the jury's verdict to be a factor that he added, or that he was required to add, to the scale in determining the appropriateness of the death penalty, or that he believed the jury's verdict was entitled to a presumption of correctness. The judge, of course, knew the Alabama system and all that it signified, knew that the jury's "sentence" was mandatory, and knew that it did not reflect consideration of any mitigating circumstance. The judge logically, therefore, would not 386 have thought that he owed any deference to the jury's "sentence" on the issue whether the death penalty was appropriate for petitioner.[8] III Petitioner contends, nevertheless, that a judge's decision to impose the death penalty must be swayed by the fact that the jury returned a "sentence" of death. He points to this Court's opinion in Beck v. Alabama, 447 U.S. 625, 645 (1980), which expressed some skepticism about the influence the jury's "sentence" would have on a judge. Beck held unconstitutional the provision of the 1975 Act that precluded the jury from considering lesser included noncapital offenses. The Court reasoned that the provision violated due process, because where the jury's only choices were to convict a defendant of the capital offense and "sentence" him to death, or to acquit him, but the evidence would have supported a lesser included offense verdict, the factfinding process was tainted with irrelevant considerations. On the one hand, the Court reasoned, the unavailability of the option of convicting on a lesser included offense may encourage the jury to convict the defendant of a capital crime because it believes that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage the jury to acquit because it believes the defendant does not deserve the death penalty. The unavailability of the lesser included offense option, when it is warranted by the evidence, thus "introduce[s] a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case." Id., at 642-643. In so holding, this Court rejected Alabama's argument that, even if the unavailability of a lesser included offense 387 led a jury erroneously to convict a defendant, the fact that the judge was the true sentencer would ensure that the defendant was not improperly sentenced to death. It reasoned: "[I]t is manifest that the jury's verdict must have a tendency to motivate the judge to impose the same sentence that the jury did. Indeed, according to statistics submitted by the State's Attorney General, it is fair to infer that the jury verdict will ordinarily be followed by the judge even though he must hold a separate hearing in aggravation and mitigation before he imposes sentence. Under these circumstances, we are unwilling to presume that a post-trial hearing will always correct whatever mistakes have occurred in the performance of the jury's factfinding function." Id., at 645-646 (footnote omitted). This Court's concern in Beck was that the judge would be inclined to accept the jury's factual finding that the defendant was guilty of a capital offense, not that the judge would be influenced by the jury's "sentence" of death. To "correct" an erroneous guilty verdict, the sentencing judge would have to determine that death was an inappropriate punishment, not because mitigating circumstances outweighed aggravating circumstances, but because the defendant had not been proved guilty beyond a reasonable doubt. Obviously, a judge will think hard about the jury's guilty verdict before basing a sentence on the belief that the defendant was not proved guilty of the capital offense. Indeed, the judge should think hard before rejecting the guilty verdict, because the determination of guilt is properly within the province of the jury, and the jury heard the same evidence regarding guilt as the judge. It does not follow, however, that the judge will be swayed to impose a sentence of death merely because the jury returned a mandatory death "sentence," when it had no opportunity to consider mitigating circumstances. The judge 388 knows that determination of the appropriate sentence is not within the jury's province, and that the jury does not consider evidence in mitigation in arriving at its "sentence." The jury's "sentence" means only that the jury found the defendant guilty of a capital crime that is, that it found the fact of intentional killing in the course of a robbery and that if the judge finds that the aggravating circumstances outweigh the mitigating circumstances, the judge is authorized to impose a sentence of death. The "sentence" thus conveys nothing more than the verdict of guilty, when it is read in conjunction with the provisions of the 1975 Act making the offense a capital crime, would convey. It defies logic to assume that a judge will be swayed to impose the death penalty by a "sentence" that has so little meaning. Despite its misdescribed label, it is not a sentence of death. Petitioner also argues that the requirement that the jury return a "sentence" of death "blurs" the issue of guilt with the issue whether death is the appropriate punishment, and may cause the jury arbitrarily to nullify the mandatory death penalty by acquitting a defendant who is proved guilty, but who the jury, without any guidance, finds undeserving of the death penalty. Petitioner's argument stems from Woodson, where the plurality opinion noted that American juries "persistently" have refused to convict "a significant portion" of those charged with first-degree murder in order to avoid mandatory death-penalty statutes, and expressed concern that the unguided exercise of the power to nullify a mandatory sentence would lead to the same "wanton" and "arbitrary" imposition of the death penalty that troubled the Court in Furman. 428 U. S., at 302-303. The Alabama scheme, however, has not resulted in such arbitrariness. Juries deliberating under the 1975 statute did not act to nullify the mandatory "sentence" by refusing to convict in a significant number of cases; indeed, only 2 of the first 50 defendants tried for capital crimes during the time the 1975 Act was in effect were acquitted. See Beck v. Alabama, 447 U. S., at 641, n. 18. Thus, while the specter of a mandatory 389 death sentence may have made juries more prone to acquit, thereby benefiting the two defendants acquitted, it did not render Alabama's scheme unconstitutionally arbitrary. IV The wisdom and phraseology of Alabama's curious 1975 statute surely are open to question, as Alabama's abandonment of the statutory scheme in 1981 perhaps indicates.[9] This Court has made clear, however, that "we are unwilling to say that there is any one right way for a State to set up its capital-sentencing scheme." Spaziano v. Florida, 468 U.S. 447, 464 (1984). See also Zant v. Stephens, 462 U. S., at 884; Gregg v. Georgia, 428 U. S., at 195 (opinion of Stewart, POWELL, and STEVENS, JJ.). Alabama's requirement that the jury return a "sentence" of death along with its guilty verdict, while unusual, did not render unconstitutional the death sentence the trial judge imposed after independently considering petitioner's background and character and the circumstances of his crime. *390 The judgment of the Supreme Court of Alabama is affirmed. It is so ordered. CHIEF JUSTICE BURGER, concurring in the judgment.	Between 1976 and an statute required a jury that convicted a defendant of any one of a number of specified crimes "with aggravation" to "fix the punishment at death." (a) (1975).[1] The "sentence" 374 imposed by the jury, however, was not dispositive. Instead, "[n]otwithstanding the fixing of the punishment at death by the jury," 13-11-4, the trial judge then was to hear evidence of aggravating and mitigating circumstances and, after weighing those circumstances, to sentence the defendant to death or to life imprisonment without parole. This case concerns the constitutionality of the peculiar and unusual requirement of the 1975 Act that the jury "shall fix the punishment at death," even though the trial judge is the actual sentencing authority.[2] The United s Court of Appeals for the Eleventh Circuit ruled that the scheme was facially unconstitutional. Shortly thereafter, however, the Supreme Court of with two dissenting votes, ruled to the contrary in the present case. Ex parte Baldwin, We granted certiorari to resolve this significant conflict. I A The facts are sordid, but a brief recital of them must be made. Petitioner Brian Keith Baldwin, then 18 years of age, escaped from a North prison camp on Saturday, March 12, That evening, he and a fellow escapee, Edward Horsley, came upon 16-year-old Naomi Rolon, who was having trouble with her automobile. The two forcibly took over her car and drove her to Charlotte, N. C. There, both men attempted to rape her, petitioner sodomized her, and the two attempted to choke her to death. They then ran over her with the car, locked her in its trunk, and left 375 her there while they drove through and Twice, when they heard the young woman cry out, they stopped the car, opened the trunk, and stabbed her repeatedly. On Monday afternoon, they stole a pickup truck, drove both vehicles to a secluded spot, and, after again using the car to run over the victim, cut her throat with a hatchet. She died after this 40-hour ordeal. Petitioner was apprehended the following day driving the stolen truck. He was charged with theft. While in custody, he confessed to the victim's murder and led the police to her body. He was then indicted for "robbery when the victim is intentionally killed," a capital offense, 13-11-2(a)(2), and was tried before a jury in Monroe County. At the close of the evidence regarding guilt or innocence, the judge instructed the jury that if it found the petitioner guilty, "the Legislature of the of has said this is a situation [in] which the punishment would be death by electrocution," Tr. 244-245, and the jury therefore would be required to sentence petitioner to death. The jury found petitioner guilty, in the terms of the statute, of robbery with the aggravated circumstance of intentionally killing the victim, and returned a verdict form that stated: "We, the Jury, find the defendant guilty as charged in the indictment and fix his punishment at death by electrocution." App. 4. B Under 's 1975 Death Penalty Act, once a defendant was convicted of any one of 14 specified aggravated offenses, see (a) (1975), and the jury returned the required death sentence, the trial judge was obligated to hold a sentencing hearing: "[T]he court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole. In the hearing, evidence may be presented as to any matter that the court deems relevant to 376 sentence and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13-11-6 and 13-11-7." 13-11-3. The judge was then required to sentence the defendant to death or to life imprisonment without parole: "Notwithstanding the fixing of the punishment at death by the jury, the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole, which shall be served without parole; or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death." 13-11-4. If the court imposed a death sentence, it was required to set forth in writing the factual findings from the trial and the sentencing hearing, including the aggravating and mitigating circumstances that formed the basis for the sentence. The judgment of conviction and sentence of death were subject to automatic review by the Court of Criminal Appeals, and, if that court affirmed, by the Supreme Court of 13-11-5, XX-XX-XXX; Ala. Rule App. Proc. 39(c). See ; rev'd on other grounds, rev'd sub nom. C Following petitioner's conviction, the trial judge held the sentencing hearing required by 13-11-3. The reintroduced the evidence submitted at trial, and introduced petitioner's juvenile and adult criminal records, as well as Edward Horsley's statement regarding the crime. Petitioner then took the stand and testified that he had "a hard 377 time growing up"; that he left home at the age of 13 because his father did not like him to come home late at night; that he dropped out of school after the ninth grade; that he made a living by "street hustling"; that he had been arrested approximately 30 times; and that he was a drug addict. App. 8-10. At the conclusion of petitioner's testimony, the trial judge stated: "Brian Keith Baldwin, today is the day you have in court to tell this judge whatever is on your mind now is your time to tell the judge anything that you feel like might be helpful to you in the position that you find yourself in. I want to give you every opportunity in the world that I know about. Anything you feel like you can tell this Judge that will help you in your present position." Petitioner then complained about various aspects of his trial, and concluded: "I ain't saying I'm guilty but I might be guilty for murder but I ain't guilty for robbery down here. That's all I got to say." The judge stated that "having considered the evidence presented at the trial and at said sentence hearing," the court found the following aggravating circumstances: the capital offense was committed while petitioner was under a sentence of imprisonment in the of North from which he had escaped; petitioner previously had pleaded guilty to a felony involving the use of violence to the person; the capital offense was committed while petitioner was committing a robbery or in flight after the robbery; and the offense was especially heinous, atrocious, or cruel.[3] The judge found that petitioner's age 18 at the 378 time of the crime was the only mitigating circumstance. He then stated: "The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted." The Supreme Court of eventually affirmed the conviction and sentence.[4] In his argument to that court, petitioner contended that the 1975 Act was facially invalid. Tracking the reasoning of the Eleventh Circuit in 726 F. 2d, at 1516-1517, he argued that the jury's mandatory sentence was unconstitutional because it was unguided, standardless, and reflected no consideration of the particular defendant or crime, and that the judge's sentence was unconstitutional because it was based in part upon consideration of the impermissible jury sentence and was infected by it. The court rejected petitioner's arguments, 379 holding that even though the jury had no discretion regarding the "sentence" it would impose, the sentencing procedure was saved by the fact that it was the trial judge who was the true sentencing authority, and he considered aggravating and mitigating circumstances before imposing sentence. 456 So. 2d, 9.[5] II If the jury's "sentence" were indeed the dispositive sentence, the scheme would be unconstitutional under the principles announced in and Roberts See 380 also Roberts In Woodson, the Court held that North 's sentencing scheme, which imposed a mandatory death sentence for a broad category of homicidal offenses, violated the Eighth and Fourteenth Amendments in three respects. First, such mandatory schemes offend contemporary standards of decency, as evidenced by the frequency with which jurors avoid the imposition of mandatory death sentences by disregarding their oaths and refusing to convict, and by the consistent movement of the s and Congress away from such schemes. -301. Second, by refusing to convict defendants who the jurors think do not deserve the death penalty, juries exercise unguided and unchecked discretion regarding who will be sentenced to death. Third, such mandatory schemes fail to allow particularized consideration of the character and record of the defendant and the circumstances of the offense. 's requirement that the jury impose a mandatory sentence for a wide range of homicides, standing alone, would suffer each of those defects. The jury's mandatory "sentence," however, does not stand alone under the scheme. Instead, as has been described above, the trial judge thereafter conducts a separate hearing to receive evidence of aggravating and mitigating circumstances, and determines whether the aggravating circumstances outweigh the mitigating circumstances. The judge's discretion is guided by the requirement that the death penalty be imposed only if the judge finds the aggravating circumstance that serves to define the capital crime in this case the fact that the homicide took place during the commission of a robbery and only if the judge finds that the definitional aggravating circumstance, plus any other specified aggravating circumstance,[6] outweighs 381 any statutory and nonstatutory mitigating circumstances. 13-11-4. Petitioner accordingly does not argue that the judge's discretion under 13-11-4 is not "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action," Nor is there any issue before this Court that the 1975 Act did not allow "the type of individualized consideration of mitigating factors" by the sentencing judge that has been held constitutionally indispensable in capital ; see also 382 ; Petitioner's challenge to the scheme rests instead on the provision of the 1975 Act that allows the judge to weigh "the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury" in determining whether death is the appropriate sentence. 13-11-4. This Court has stated that a death sentence based upon consideration of "factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant," would violate the Constitution. Relying upon Zant, petitioner contends that, because the jury's mandatory "sentence" would be unconstitutional standing alone, it is an impermissible factor for the trial judge to consider, as the statute appears to require, in the sentencing process. That argument conceivably might have merit if the judge actually were required to consider the jury's "sentence" as a recommendation as to the sentence the jury believed would be appropriate, cf. and if the judge were obligated to accord some deference to it. The jury's verdict is not considered in that fashion, however, as the appellate courts' construction of the Act, as well as the judge's statements regarding the process by which he arrived at the sentence, so definitely indicates. A The language of 13-11-4, to be sure, in so many words does not preclude the sentencing judge from considering the jury's "sentence" in determining whether the death penalty is appropriate. The first clause of the section "the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment 383 without parole" does not authorize or require the court to weigh the jury's "sentence" in determining whether to refuse to impose the death penalty. The second clause "or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death" does seem to authorize consideration of the jury's "sentence." It is not clear whether the second clause allows consideration of the jury's "sentence" only if the weighing of the aggravating and mitigating circumstances authorized in the first clause has indicated that the "sentence" should not be rejected, or whether the second clause allows the judge to ignore the first clause and count the jury's "sentence" as a factor, similar to an aggravating circumstance, weighing in favor of the death penalty. We therefore look to the courts' construction of 13-11-4. See The appellate courts have interpreted the 1975 Act expressly to mean that the sentencing judge is to impose a sentence without regard to the jury's mandatory "sentence." The Court of Criminal Appeals has stated: "The jury's function is only to find guilt or innocence. The jury is not the sentencing authority." aff'd, cert. denied, Indeed, the court has gone so far as to state: "No sentence exists until the pronouncement by the trial judge at the conclusion of the sentence hearing. It is for this reason the court cannot be said to be commuting a sentence of death imposed by the jury, but, in truth and in fact, it is sentencing the accused after a jury's finding of guilt." rev'd on other grounds, 384 The court further has described the judge's role as follows: "The sentencing hearing is one of the most important and critical stages under 's death penalty law. The guilt stage has passed. Now an experienced trial judge must consider the particularized circumstances surrounding the offense and the offender and determine if the accused is to die or be sentenced to life imprisonment without parole. The trial evidence must be reviewed to determine all of the aggravating circumstances leading up to and culminating in the death of the victim and then all the mitigating circumstances must be considered in determining if any outweigh the aggravating circumstances so found in the trial court's findings of fact." aff'd, Conspicuously absent from the court's description of the judge's duty is any mention of according weight or deference to the jury's "sentence." The Supreme Court of agrees that "the jury is not the sentencing authority in" and has described the sentencing judge not as a reviewer of the jury's "sentence," but as the sentencer: "In the jury is not the body which finally determines which murderers must die and which must not. In fact, 's statute mandatorily requires the court to `hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole,' and specifically provides that the court may refuse to accept the death penalty as fixed by the jury and may `sentence' the defendant to death or life without parole. Code of Ala. 1975, 13-11-4. That section provides that if the court imposes a `sentence of death' it must set forth, in writing, the basis for the sentence." 385 See also Ritter v. ; B In this case, moreover, it is clear that the sentencing judge did not interpret the statute as requiring him to consider the jury's "sentence," because he never described the "sentence" as a factor in his deliberations. After the jury returned its verdict, the trial judge informed petitioner: "Let me say this: The jury has found you guilty of the crime of robbery with the aggravated circumstances of intentionally killing the victim and set your punishment at death by electrocution but the law of this state provides first that there will be an additional hearing in this case at which time the Court will consider aggravating circumstances, extenuating and all other circumstances, concerning the commission of this particular offense" (emphasis added). Tr. 249. In addition, in imposing the sentence, the judge stated: "The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted" (emphasis added). App. 18. None of these statement indicates that the judge considered the jury's verdict to be a factor that he added, or that he was required to add, to the scale in determining the appropriateness of the death penalty, or that he believed the jury's verdict was entitled to a presumption of correctness. The judge, of course, knew the system and all that it signified, knew that the jury's "sentence" was mandatory, and knew that it did not reflect consideration of any mitigating circumstance. The judge logically, therefore, would not 386 have thought that he owed any deference to the jury's "sentence" on the issue whether the death penalty was appropriate for petitioner.[8] III Petitioner contends, nevertheless, that a judge's decision to impose the death penalty must be swayed by the fact that the jury returned a "sentence" of death. He points to this Court's opinion in which expressed some skepticism about the influence the jury's "sentence" would have on a judge. Beck held unconstitutional the provision of the 1975 Act that precluded the jury from considering lesser included noncapital offenses. The Court reasoned that the provision violated due process, because where the jury's only choices were to convict a defendant of the capital offense and "sentence" him to death, or to acquit him, but the evidence would have supported a lesser included offense verdict, the factfinding process was tainted with irrelevant considerations. On the one hand, the Court reasoned, the unavailability of the option of convicting on a lesser included offense may encourage the jury to convict the defendant of a capital crime because it believes that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage the jury to acquit because it believes the defendant does not deserve the death penalty. The unavailability of the lesser included offense option, when it is warranted by the evidence, thus "introduce[s] a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case." In so holding, this Court rejected 's argument that, even if the unavailability of a lesser included offense 387 led a jury erroneously to convict a defendant, the fact that the judge was the true sentencer would ensure that the defendant was not improperly sentenced to death. It reasoned: "[I]t is manifest that the jury's verdict must have a tendency to motivate the judge to impose the same sentence that the jury did. Indeed, according to statistics submitted by the 's Attorney General, it is fair to infer that the jury verdict will ordinarily be followed by the judge even though he must hold a separate hearing in aggravation and mitigation before he imposes sentence. Under these circumstances, we are unwilling to presume that a post-trial hearing will always correct whatever mistakes have occurred in the performance of the jury's factfinding function." at -646 This Court's concern in Beck was that the judge would be inclined to accept the jury's factual finding that the defendant was guilty of a capital offense, not that the judge would be influenced by the jury's "sentence" of death. To "correct" an erroneous guilty verdict, the sentencing judge would have to determine that death was an inappropriate punishment, not because mitigating circumstances outweighed aggravating circumstances, but because the defendant had not been proved guilty beyond a reasonable doubt. Obviously, a judge will think hard about the jury's guilty verdict before basing a sentence on the belief that the defendant was not proved guilty of the capital offense. Indeed, the judge should think hard before rejecting the guilty verdict, because the determination of guilt is properly within the province of the jury, and the jury heard the same evidence regarding guilt as the judge. It does not follow, however, that the judge will be swayed to impose a sentence of death merely because the jury returned a mandatory death "sentence," when it had no opportunity to consider mitigating circumstances. The judge 388 knows that determination of the appropriate sentence is not within the jury's province, and that the jury does not consider evidence in mitigation in arriving at its "sentence." The jury's "sentence" means only that the jury found the defendant guilty of a capital crime that is, that it found the fact of intentional killing in the course of a robbery and that if the judge finds that the aggravating circumstances outweigh the mitigating circumstances, the judge is authorized to impose a sentence of death. The "sentence" thus conveys nothing more than the verdict of guilty, when it is read in conjunction with the provisions of the 1975 Act making the offense a capital crime, would convey. It defies logic to assume that a judge will be swayed to impose the death penalty by a "sentence" that has so little meaning. Despite its misdescribed label, it is not a sentence of death. Petitioner also argues that the requirement that the jury return a "sentence" of death "blurs" the issue of guilt with the issue whether death is the appropriate punishment, and may cause the jury arbitrarily to nullify the mandatory death penalty by acquitting a defendant who is proved guilty, but who the jury, without any guidance, finds undeserving of the death penalty. Petitioner's argument stems from Woodson, where the plurality opinion noted that American juries "persistently" have refused to convict "a significant portion" of those charged with first-degree murder in order to avoid mandatory death-penalty statutes, and expressed concern that the unguided exercise of the power to nullify a mandatory sentence would lead to the same "wanton" and "arbitrary" imposition of the death penalty that troubled the Court in 428 U. S., The scheme, however, has not resulted in such arbitrariness. Juries deliberating under the 1975 statute did not act to nullify the mandatory "sentence" by refusing to convict in a significant number of cases; indeed, only 2 of the first 50 defendants tried for capital crimes during the time the 1975 Act was in effect were acquitted. See n. 18. Thus, while the specter of a mandatory 389 death sentence may have made juries more prone to acquit, thereby benefiting the two defendants acquitted, it did not render 's scheme unconstitutionally arbitrary. IV The wisdom and phraseology of 's curious 1975 statute surely are open to question, as 's abandonment of the statutory scheme in perhaps indicates.[9] This Court has made clear, however, that "we are unwilling to say that there is any one right way for a to set up its capital-sentencing scheme." Spaziano v. See also ; 's requirement that the jury return a "sentence" of death along with its guilty verdict, while unusual, did not render unconstitutional the death sentence the trial judge imposed after independently considering petitioner's background and character and the circumstances of his crime. *390 The judgment of the Supreme Court of is affirmed. It is so ordered. CHIEF JUSTICE BURGER, concurring in the judgment.
Justice Thomas	majority	false	Patchak v. Zinke	2018-02-27T00:00:00	null	https://www.courtlistener.com/opinion/4471243/patchak-v-zinke/	https://www.courtlistener.com/api/rest/v3/clusters/4471243/	2,018	2017-017	1	6	3	Petitioner, David Patchak, sued the Secretary of the Interior for taking land into trust on behalf of an Indian Tribe. While his suit was pending in the District Court, Congress enacted the Gun Lake Trust Land Reaffirmation Act (Gun Lake Act or Act), Pub. L. 113–179, 128 Stat. 1913, which provides that suits relating to the land “shall not be filed or maintained in a Federal court and shall be promptly dismissed.” Patchak contends that, in enacting this statute, Congress impermissibly infringed the judicial power that Article III of the Constitution vests exclusively in the Judicial Branch. Because we disagree, we affirm the judgment of the United States Court of Appeals for the District of Columbia Circuit. I The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Band) resides in southwestern Michigan, near the township of Wayland. The Band traces its relation- ship with the United States back hundreds of years, point- 2 PATCHAK v. ZINKE Opinion of THOMAS, J. ing to treaties it negotiated with the Federal Government as early as 1795. But the Secretary of the Interior did not formally recognize the Band until 1999. See 63 Fed. Reg. 56936 (1998); 65 Fed. Reg. 13298 (2000). After obtaining formal recognition, the Band identified a 147-acre parcel of land in Wayland, known as the Bradley Property, where it wanted to build a casino. The Band asked the Secretary to invoke the Indian Reorganization Act, §5, 48 Stat. 985, 25 U.S. C. §5108, and take the Brad- ley Property into trust.1 In 2005, the Secretary agreed and posted a notice informing the public that the Bradley Property would be taken into trust for the Band. See 70 Fed. Reg. 25596 (2005). The Michigan Gambling Opposition (MichGO) sued, alleging that the Secretary’s decision violated federal environmental and gaming laws. After several years of litigation, the D. C. Circuit affirmed the dismissal of MichGo’s claims, and this Court denied certiorari. Michi- gan Gambling Opposition v. Kempthorne, 525 F.3d 23 (2008), cert. denied, 555 U.S. 1137 (2009). In January 2009, the Secretary formally took the Bradley Property into trust. And in February 2011, the Band opened its casino. Before the Secretary formally took the land into trust, a nearby landowner, David Patchak, filed another lawsuit challenging the Secretary’s decision. Invoking the Admin- istrative Procedure Act, 5 U.S. C. §§702, 706(2), Patchak alleged that the Secretary lacked statutory authority to take the Bradley Property into trust for the Band. The Indian Reorganization Act does not allow the Secretary to take land into trust for tribes that were not under federal —————— 1 Federal law allows Indian tribes to operate casinos on “Indian lands,” 25 U.S. C. §2710, which includes lands “held in trust by the United States for the benefit of any Indian tribe,” §2703(4)(B). Cite as: 583 U. S. ____ (2018) 3 Opinion of THOMAS, J. jurisdiction when the statute was enacted in 1934. See Carcieri v. Salazar, 555 U.S. 379, 382–383 (2009). The Band was not federally recognized until 1999, which Patchak argued was more than 65 years too late. Based on this alleged statutory violation, Patchak sought to reverse the Secretary’s decision to take the Bradley Prop- erty into trust. The Secretary raised preliminary objections to Patchak’s suit, contending that it was barred by sovereign immunity and that Patchak lacked prudential standing to bring it. The District Court granted the Secretary’s motion to dismiss, but the D. C. Circuit reversed. Patchak v. Sala- zar, 646 F. Supp. 2d 72 (DC 2009), rev’d, 632 F.3d 702 (2011). This Court granted certiorari and affirmed the D. C. Circuit. Match-E-Be-Nash-She-Wish Band of Potta- watomi Indians v. Patchak, 567 U.S. 209 (2012) (Patchak I ). This Court’s decision in Patchak I held that Congress had waived the Secretary’s sovereign immunity from suits like Patchak’s. Id., at 215–224. It also held that Patchak had prudential standing because his suit arguably fell within the “zone of interests” protected by the Indian Reorganization Act. Id., at 224–228. Because Patchak had standing and the Secretary lacked immunity, this Court concluded that “Patchak’s suit may proceed,” id., at 212, and remanded for further proceedings, id., at 228. In September 2014, while Patchak’s suit was back in the District Court, Congress enacted the Gun Lake Act, 128 Stat. 1913. Section 2(a) of the Act states that the Bradley Property “is reaffirmed as trust land, and the actions of the Secretary of the Interior in taking that land into trust are ratified and confirmed.” Section 2(b) then provides the following: “NO CLAIMS.—Notwithstanding any other provision of law, an action (including an action pending in a Fed- eral court as of the date of enactment of this Act) re- 4 PATCHAK v. ZINKE Opinion of THOMAS, J. lating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.” Based on §2(b), the District Court entered summary judg- ment against Patchak and dismissed his suit for lack of jurisdiction. 109 F. Supp. 3d 152 (DC 2015). The D. C. Circuit affirmed. Patchak v. Jewell, 828 F.3d 995 (2016). It held that “[t]he language of the Gun Lake Act makes plain that Congress has stripped federal courts of subject matter jurisdiction” over suits, like Patchak’s, that relate to the Bradley Property. Id., at 1001. The D. C. Circuit rejected Patchak’s argument that §2(b) vio- lates Article III of the Constitution. Id., at 1001–1003. Article III prohibits Congress from “direct[ing] the result of pending litigation,” the D. C. Circuit reasoned, but it does not prohibit Congress from “ ‘supply[ing] new law.’ ” Id., at 1002 (quoting Robertson v. Seattle Audubon Soc., 503 U.S. 429, 439 (1992)). Section 2(b) supplies new law: “[I]f an action relates to the Bradley Property, it must promptly be dismissed.” 828 F.3d, at 1003. We granted certiorari to review whether §2(b) violates Article III of the Constitution.2 See 581 U. S. ___ (2017). Because it does not, we now affirm. II A The Constitution creates three branches of Government and vests each branch with a different type of power. See Art. I, §1; Art. II, §1, cl. 1; Art. III, §1. “To the legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the —————— 2 Patchak does not challenge the constitutionality of §2(a) of the Gun Lake Act. See Reply Brief 7; Tr. of Oral Arg. 5. We thus limit our analysis to §2(b). Cite as: 583 U. S. ____ (2018) 5 Opinion of THOMAS, J. judiciary the duty of interpreting and applying them in cases properly brought before the courts.” Massachusetts v. Mellon, 262 U.S. 447, 488 (1923); see also Wayman v. Southard, 10 Wheat. 1, 46 (1825) (Marshall, C. J.) (“[T]he legislature makes, the executive executes, and the judici- ary construes the law”). By vesting each branch with an exclusive form of power, the Framers kept those powers separate. See INS v. Chadha, 462 U.S. 919, 946 (1983). Each branch “exercise[s] . . . the powers appropriate to its own department,” and no branch can “encroach upon the powers confided to the others.” Kilbourn v. Thompson, 103 U.S. 168, 191 (1881). This system prevents “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands,” The Federalist No. 47, p. 301 (C. Rossiter ed. 1961) (J. Madison)—an accumula- tion that would pose an inherent “threat to liberty,” Clin- ton v. City of New York, 524 U.S. 417, 450 (1998) (KENNEDY, J., concurring). The separation of powers, among other things, prevents Congress from exercising the judicial power. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995). One way that Congress can cross the line from legislative power to judicial power is by “usurp[ing] a court’s power to interpret and apply the law to the [circumstances] before it.” Bank Markazi v. Peterson, 578 U. S. ___, ___ (2016) (slip op., at 12). The simplest example would be a statute that says, “In Smith v. Jones, Smith wins.” See id., at ___–___, n. 17 (slip op., at 12–13, n. 17). At the same time, the legislative power is the power to make law, and Con- gress can make laws that apply retroactively to pending lawsuits, even when it effectively ensures that one side wins. See id., at ___–___ (slip op., at 15–19). To distinguish between permissible exercises of the legislative power and impermissible infringements of the judicial power, this Court’s precedents establish the fol- lowing rule: Congress violates Article III when it “com- 6 PATCHAK v. ZINKE Opinion of THOMAS, J. pel[s] . . . findings or results under old law.” Seattle Audubon, supra, at 438. But Congress does not violate Article III when it “changes the law.” Plaut, supra, at 218. B Section 2(b) changes the law. Specifically, it strips federal courts of jurisdiction over actions “relating to” the Bradley Property. Before the Gun Lake Act, federal courts had jurisdiction to hear these actions. See 28 U.S. C. §1331. Now they do not. This kind of legal change is well within Congress’ authority and does not violate Article III. 1 Section 2(b) strips federal jurisdiction over suits relating to the Bradley Property. The statute uses jurisdictional language. It states that an “action” relating to the Brad- ley Property “shall not be filed or maintained in a Federal court.” It imposes jurisdictional consequences: Actions relating to the Bradley Property “shall be promptly dis- missed.” See Ex parte McCardle, 7 Wall. 506, 514 (1869) (“[W]hen [jurisdiction] ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause”). Section 2(b) has no exceptions. Cf. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 165 (2010). And it applies “[n]otwithstanding any other provision of law,” including the general grant of federal-question juris- diction, 28 U.S. C. §1331. Although §2(b) does not use the word “jurisdiction,” this Court does not require jurisdic- tional statutes to “incant magic words.” Sebelius v. Au- burn Regional Medical Center, 568 U.S. 145, 153 (2013). Indeed, §2(b) uses language similar to other statutes that this Court has deemed jurisdictional. See, e.g., Gonzalez v. Thaler, 565 U.S. 134, 142 (2012) (“ ‘an appeal may not be taken’ ” (quoting 28 U.S. C. §2253(c)(1))); Keene Corp. v. United States, 508 U.S. 200, 208–209 (1993) (“ ‘[n]o person shall file or prosecute’ ” (quoting 36 Stat. 1138)); Wein- Cite as: 583 U. S. ____ (2018) 7 Opinion of THOMAS, J. berger v. Salfi, 422 U.S. 749, 756 (1975) (“ ‘[n]o action . . . shall be brought under [28 U.S. C. §1331]’ ” (quoting 42 U.S. C. §405(h))). Our conclusion that §2(b) is jurisdictional is bolstered by the fact that it cannot plausibly be read as anything else. Section 2(b) is not one of the nonjurisdictional rules that this Court’s precedents have identified as “important and mandatory” but not governing “a court’s adjudicatory capacity.” Henderson v. Shinseki, 562 U.S. 428, 435 (2011). Section 2(b) does not identify an “element of [the] plaintiff’s claim for relief” or otherwise define its “substan- tive adequacy.” Arbaugh v. Y & H Corp., 546 U.S. 500, 516, 504 (2006). Nor is it a “claim-processing rule,” like a filing deadline or an exhaustion requirement, that re- quires the parties to “take certain procedural steps at certain specified times.” Henderson, supra, at 435. In- stead, §2(b) completely prohibits actions relating to the Bradley Property. Because §2(b) addresses “a court’s competence to adjudicate a particular category of cases,” Wachovia Bank, N. A. v. Schmidt, 546 U.S. 303, 316 (2006), it is best read as a jurisdiction-stripping statute. 2 Statutes that strip jurisdiction “chang[e] the law” for the purpose of Article III, Plaut, supra, at 218, just as much as other exercises of Congress’ legislative authority. Article I permits Congress “[t]o constitute Tribunals inferior to the supreme Court,” §8, and Article III vests the judicial power “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and estab- lish,” §1. These provisions reflect the so-called Madison- ian Compromise, which resolved the Framers’ disagree- ment about creating lower federal courts by leaving that decision to Congress. See Printz v. United States, 521 U.S. 898, 907 (1997); 1 Records of the Federal Convention of 1787, p. 125 (M. Farrand ed. 1911). Congress’ greater 8 PATCHAK v. ZINKE Opinion of THOMAS, J. power to create lower federal courts includes its lesser power to “limit the jurisdiction of those Courts.” United States v. Hudson, 7 Cranch 32, 33 (1812); accord, Lockerty v. Phillips, 319 U.S. 182, 187 (1943). So long as Congress does not violate other constitutional provisions, its “control over the jurisdiction of the federal courts” is “plenary.” Trainmen v. Toledo, P. & W. R. Co., 321 U.S. 50, 63–64 (1944); see also Bowles v. Russell, 551 U.S. 205, 212 (2007) (“Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider”). Thus, when Congress strips federal courts of jurisdic- tion, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it. Indeed, this Court has held that Congress generally does not violate Article III when it strips federal jurisdic- tion over a class of cases.3 Shortly after the Civil War, for example, Congress repealed this Court’s appellate juris- diction over certain habeas corpus cases. See Act of Mar. 27, 1868, ch. 34, §2, 15 Stat. 44; see also U. S. Const., Art. III, §2 (permitting Congress to make “Exceptions” to this Court’s appellate jurisdiction). William McCardle, a military prisoner whose appeal was pending at the time, argued that the repealing statute was “an exercise by the Congress of judicial power.” 7 Wall., at 510. This Court disagreed. Jurisdiction-stripping statutes, the Court explained, do not involve “the exercise of judicial power” or “legislative interference with courts in the exercising of continuing jurisdiction.” Id., at 514. Because jurisdiction —————— 3 Jurisdiction-stripping statutes can violate other provisions of the Constitution. And, under our precedents, jurisdiction-stripping stat- utes can violate Article III if they “attemp[t] to direct the result” by effectively altering legal standards that Congress is “powerless to prescribe.” Bank Markazi v. Peterson, 578 U. S. ___, ___ (2016) (slip op., at 15) (citing United States v. Klein, 13 Wall. 128, 146–147 (1872)). Cite as: 583 U. S. ____ (2018) 9 Opinion of THOMAS, J. is the “power to declare the law” in the first place, “judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Con- stitution and the laws confer.” Id., at 514–515.4 This Court has reaffirmed these principles on many occasions. Congress generally does not infringe the judi- cial power when it strips jurisdiction because, with limited exceptions, a congressional grant of jurisdiction is a pre- requisite to the exercise of judicial power. See Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 94–95 (1998) (“The requirement that jurisdiction be established —————— 4 The dissent appears to disagree with McCardle, questions the mo- tives of the unanimous Court that decided it, asserts that it is “incon- sistent” with Klein, and distinguishes it on the ground that the statute there “did not foreclose all avenues of judicial review.” Post, at 12–13 (opinion of ROBERTS, C. J.). But the core holding of McCardle—that Congress does not exercise the judicial power when it strips jurisdiction over a class of cases—has never been questioned, has been repeatedly reaffirmed, and was reaffirmed in Klein itself. See 13 Wall., at 145 (“[T]here could be no doubt” that Congress can “den[y] the right of appeal in a particular class of cases”). And if there is any inconsistency between the two, this Court has said that it is Klein—not McCardle— that “cannot [be] take[n] . . . ‘at face value.’ ” Bank Markazi, 578 U. S., at ___ (slip op., at 15) (quoting R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 324 (7th ed. 2015)). Moreover, it is true that McCardle empha- sized that the statute there did not withdraw “the whole appellate power of the court, in cases of habeas corpus.” 7 Wall., at 515 (empha- sis added). But McCardle’s reservation, this Court later explained, was responding to a potential problem under the Suspension Clause, not a potential problem under Article III. See Ex parte Yerger, 8 Wall. 85, 102–103 (1869) (“We agree that [jurisdiction] is given subject to excep- tion and regulation by Congress; but it is too plain for argument that the denial to this court of appellate jurisdiction in this class of cases must greatly weaken the efficacy of the writ”); id., at 96 (“It would have been . . . a remarkable anomaly if this court . . . had been denied, under a constitution which absolutely prohibits suspension of the writ, except under extraordinary exigencies, that power in cases of alleged unlawful restraint”). 10 PATCHAK v. ZINKE Opinion of THOMAS, J. as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States’ ” (quoting Mans- field, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382 (1884))); Cary v. Curtis, 3 How. 236, 245 (1845) (“[T]he judicial power of the United States . . . is (except in enu- merated instances, applicable exclusively to this court) dependent . . . entirely upon the action of Congress”); Hudson, supra, at 33 (similar). “To deny this position” would undermine the separation of powers by “elevat[ing] the judicial over the legislative branch.” Cary, supra, at 245. Congress’ power over federal jurisdiction is “an es- sential ingredient of separation and equilibration of pow- ers, restraining the courts from acting at certain times, and even restraining them from acting permanently re- garding certain subjects.” Steel Co., supra, at 101. In sum, §2(b) strips jurisdiction over suits relating to the Bradley Property. It is a valid exercise of Congress’ legislative power. And because it changes the law, it does not infringe the judicial power. The constitutionality of jurisdiction-stripping statutes like this one is well established. III Patchak does not dispute Congress’ power to withdraw jurisdiction from the federal courts. He instead raises two arguments why §2(b) violates Article III, even if it strips jurisdiction. First, relying on United States v. Klein, 13 Wall. 128 (1872), Patchak argues that §2(b) flatly directs federal courts to dismiss lawsuits without allowing them to interpret or apply any new law. Second, relying on Plaut, 514 U.S. 211, Patchak argues that §2(b) attempts to interfere with this Court’s decision in Patchak I— specifically, its conclusion that his suit “may proceed,” 567 U.S., at 212. We reject both arguments. Cite as: 583 U. S. ____ (2018) 11 Opinion of THOMAS, J. A Section 2(b) does not flatly direct federal courts to dis- miss lawsuits under old law. It creates new law for suits relating to the Bradley Property, and the District Court interpreted and applied that new law in Patchak’s suit. Section 2(b)’s “relating to” standard effectively guaranteed that Patchak’s suit would be dismissed. But “a statute does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts.” Bank Markazi, 578 U. S., at ___ (slip op., at 17). “[I]t is not any the less a case or controversy upon which a court pos- sessing the federal judicial power may rightly give judg- ment” when the arguments before the court are “uncon- tested or incontestable.” Pope v. United States, 323 U.S. 1, 11 (1944). Patchak argues that the last four words of §2(b)—“shall be promptly dismissed”—direct courts to reach a particu- lar outcome. But a statute does not violate Article III merely because it uses mandatory language. See Seattle Audubon, 503 U.S., at 439. Instead of directing outcomes, the mandatory language in §2(b) “simply imposes the consequences” of a court’s determination that it lacks jurisdiction because a suit relates to the Bradley Property. Miller v. French, 530 U.S. 327, 349 (2000); see McCardle, 7 Wall., at 514.5 Patchak compares §2(b) to the statute this Court held unconstitutional in Klein. In that case, the administrator —————— 5 To prove that it does not change the law, Patchak repeatedly asserts that §2(b) does not amend any “generally applicable” statute. Brief for Petitioner 11; Reply Brief 1, 4, 9. But this Court rejected that same argument in Seattle Audubon. Congress can change a law “directly,” or it can change a law indirectly by passing “an entirely separate statute.” 503 U.S., at 439–440. Either way, it changes the law. The same is true for jurisdictional statutes. See Insurance Co. v. Ritchie, 5 Wall. 541 (1867). 12 PATCHAK v. ZINKE Opinion of THOMAS, J. of the estate of V. F. Wilson, a former Confederate soldier, sued to recover the value of some cotton that the Govern- ment had seized during the war. 13 Wall., at 132. The relevant statute required claimants to prove their loyalty in order to reclaim their property. Ch. 120, §3, 12 Stat. 820. Wilson had received a pardon before he died, 13 Wall., at 132, and this Court had held that pardons con- clusively prove loyalty under the statute, see United States v. Padelford, 9 Wall. 531, 543 (1870). But after Wilson’s administrator secured a judgment in his favor, 13 Wall., at 132, Congress passed a statute making pardons proof of disloyalty and declaring that, if a claimant had accepted one, “the jurisdiction of the court in the case shall cease, and the court shall forthwith dismiss the suit of such claimant.” Act of July 12, 1870, 16 Stat. 235. If the court had already entered judgment in favor of a pardoned claimant and the Government had appealed, the statute instructed this Court to dismiss the whole suit for lack of jurisdiction. See ibid. Klein held that this statute in- fringed the executive power by attempting to “change the effect of . . . a pardon.” Id., at 148. Klein also held that the statute infringed the judicial power, see id., at 147, although its reasons for this latter holding were not en- tirely clear. This Court has since explained that “the statute in Klein infringed the judicial power, not because it left too little for courts to do, but because it attempted to direct the result without altering the legal standards governing the effect of a pardon—standards Congress was powerless to prescribe.” Bank Markazi, supra, at ___ (slip op., at 15). Congress had no authority to declare that pardons are not evidence of loyalty, so it could not achieve the same result by stripping jurisdiction whenever claimants cited pardons as evidence of loyalty. See Klein, 13 Wall., at 147–148. Nor could Congress confer jurisdiction to a federal court but then strip jurisdiction from that same court once the Cite as: 583 U. S. ____ (2018) 13 Opinion of THOMAS, J. court concluded that a pardoned claimant should prevail under the statute. See id., at 146–147. Patchak’s attempts to compare §2(b) to the statute in Klein are unpersuasive. Section 2(b) does not attempt to exercise a power that the Constitution vests in another branch. And unlike the selective jurisdiction-stripping statute in Klein, §2(b) strips jurisdiction over every suit relating to the Bradley Property. Indeed, Klein itself explained that statutes that do “nothing more” than strip jurisdiction over “a particular class of cases” are constitu- tional. Id., at 145. That is precisely what §2(b) does. B Section 2(b) does not unconstitutionally interfere with this Court’s decision in Patchak I. Article III, this Court explained in Plaut, prohibits Congress from “retroactively commanding the federal courts to reopen final judgments.” 514 U.S., at 219. But Patchak I did not finally conclude Patchak’s case. See Bradley v. School Bd. of Richmond, 416 U.S. 696, 711, n. 14 (1974). When this Court said that his suit “may proceed,” 567 U.S., at 212, it meant that the Secretary’s preliminary defenses lacked merit and that Patchak could return to the District Court for further proceedings. It did not mean that Congress was powerless to change the law that governs his case. As this Court emphasized in Plaut, Article III does not prohibit Con- gress from enacting new laws that apply to pending civil cases. See 514 U.S., at 226–227. When a new law clearly governs pending cases, Article III does not prevent courts from applying it because “each court, at every level, must ‘decide according to existing laws.’ ” Ibid. (quoting United States v. Schooner Peggy, 1 Cranch 103, 109 (1801)). This principle applies equally to statutes that strip jurisdiction. See Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994); Kline v. Burke Constr. Co., 260 U.S. 226, 234 (1922); Hallowell v. Commons, 239 U.S. 506, 509 (1916). 14 PATCHAK v. ZINKE Opinion of THOMAS, J. Because §2(b) expressly references “pending” cases, it applies to Patchak’s suit. And because Patchak’s suit is not final, applying §2(b) here does not offend Article III.6 Of course, we recognize that the Gun Lake Act was a response to this Court’s decision in Patchak I. The text of the Act, after all, cites both the administrative decision and the property at issue in that case. See §§2(a)–(b). And we understand why Patchak would view the Gun Lake Act as unfair. By all accounts, the Band exercised its political influence to persuade Congress to enact a narrow jurisdiction-stripping provision that effectively ends all lawsuits threatening its casino, including Patchak’s. But the question in this case is “[n]ot favoritism, nor even corruption, but power.” Plaut, supra, at 228; see also McCardle, 7 Wall., at 514 (“We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution”). Under this Court’s precedents, Congress has the power to “apply newly enacted, outcome-altering legislation in pending civil cases,” Bank Markazi, 578 U. S., at ___ (slip op., at 16), even when the legislation “govern[s] one or a very small number of specific subjects,” id., at ___ (slip op., at 21). For example, this Court has upheld narrow statutes that identified specific cases by caption and docket num- ber in their text. See id., at ___ (slip op., at 19); Seattle Audubon, 503 U.S., at 440. And this Court has approv- ingly cited a D. C. Circuit decision, which upheld a statute that retroactively stripped jurisdiction over suits challeng- ing “a single memorial.” Bank Markazi, supra, at ___ (slip —————— 6 Retroactivelegislation can violate other provisions of the Constitu- tion, such as the Ex Post Facto Clause and the Bills of Attainder Clause. See Bank Markazi, 578 U. S., at ___ (slip op., at 16). But Patchak’s Article III claim is the only challenge to §2(b) before us. Cite as: 583 U. S. ____ (2018) 15 Opinion of THOMAS, J. op., at 22) (citing National Coalition To Save Our Mall v. Norton, 269 F.3d 1092 (2001)). If these targeted statutes did not cross the line from legislative to judicial power, then §2(b) does not either. IV The dissent offers a different theory for why §2(b) vio- lates Article III. A statute impermissibly exercises the judicial power, the dissent contends, when it “targets” a particular suit and “manipulates” jurisdiction to direct the outcome, “practical[ly] operat[es]” to affect only one suit, and announces a legal standard that does not “imply some measure of generality” or “preserv[e] . . . an adjudicative role for the courts.” Post, at 8, 11. We doubt that the constitutional line separating the legislative and judicial powers turns on factors such as a court’s doubts about Congress’ unexpressed motives, the number of “cases [that] were pending when the provision was enacted,” or the time left on the statute of limitations. Post, at 8. But even if it did, we disagree with the dis- sent’s characterization of §2(b). Nothing on the face of §2(b) is limited to Patchak’s case, or even to his challenge under the Indian Reorganization Act. Instead, the text extends to all suits “relating to” the Bradley Property. Thus, §2(b) survives even under the dissent’s theory: It “prospectively govern[s] an open-ended class of disputes,” post, at 6, and its “relating to” standard “preserv[es] . . . an adjudicative role for the courts,” post, at 11. While §2(b)’s “relating to” standard is not difficult to interpret or apply, this Court’s precedents encourage Congress to draft juris- dictional statutes in this manner. See Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) (“[A]dministrative simplic- ity is a major virtue in a jurisdictional statute. . . . [C]ourts benefit from straightforward rules under which they can 16 PATCHAK v. ZINKE Opinion of THOMAS, J. readily assure themselves of their power to hear a case”).7 * * * We conclude that §2(b) of the Gun Lake Act does not violate Article III of the Constitution. The judgment of the Court of Appeals is, therefore, affirmed. It is so ordered. —————— 7 We also doubt that the statute this Court upheld in Bank Markazi would survive under the dissent’s theory. The dissent notes that the statute there affected “16 different actions,” while the statute here affects “a single pending case.” Post, at 8. But if the problem is Con- gress “pick[ing] winners and losers in pending litigation,” post, at 14, then it seems backwards to conclude that Congress is on stronger constitutional footing when it picks winners and losers in more pending cases. Cite as: 583 U. S. ____ (2018) 1 BREYER, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 16–498 _________________ DAVID PATCHAK, PETITIONER v. RYAN ZINKE, SECRETARY OF THE INTERIOR, ET AL.	Petitioner, David Patchak, sued the Secretary of the Interior for taking land into trust on behalf of an Indian Tribe. While his suit was pending in the District Court, Congress enacted the Gun Lake Trust Land Reaffirmation Act (Gun Lake Act or Act), Pub. L. 113–179, 128 Stat. 3, which provides that suits relating to the land “shall not be filed or maintained in a Federal court and shall be promptly dismissed.” Patchak contends that, in enacting this statute, Congress impermissibly infringed the judicial power that Article III of the Constitution vests exclusively in the Judicial Branch. Because we disagree, we affirm the judgment of the United States Court of Appeals for the District of Columbia Circuit. I The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Band) resides in southwestern Michigan, near the township of Wayland. The Band traces its relation- ship with the United States back hundreds of years, point- 2 PATCHAK v. ZINKE Opinion of THOMAS, J. ing to treaties it negotiated with the Federal Government as early as 1795. But the Secretary of the Interior did not formally recognize the Band until 1999. See 63 Fed. Reg. 56936 ; After obtaining formal recognition, the Band identified a 147-acre parcel of land in Wayland, known as the Bradley Property, where it wanted to build a casino. The Band asked the Secretary to invoke the Indian Reorganization Act, 25 U.S. C. and take the Brad- ley Property into trust.1 In 2005, the Secretary agreed and posted a notice informing the public that the Bradley Property would be taken into trust for the Band. See 70 Fed. Reg. 25596 (2005). The Michigan Gambling Opposition (MichGO) sued, alleging that the Secretary’s decision violated federal environmental and gaming laws. After several years of litigation, the D. C. Circuit affirmed the dismissal of MichGo’s claims, and this Court denied certiorari. Michi- gan Gambling (2008), cert. denied, In January the Secretary formally took the Bradley Property into trust. And in February 2011, the Band opened its casino. Before the Secretary formally took the land into trust, a nearby landowner, David Patchak, filed another lawsuit challenging the Secretary’s decision. Invoking the Admin- istrative Procedure Act, 5 U.S. C. 706(2), Patchak alleged that the Secretary lacked statutory authority to take the Bradley Property into trust for the Band. The Indian Reorganization Act does not allow the Secretary to take land into trust for tribes that were not under federal —————— 1 Federal law allows Indian tribes to operate casinos on “Indian lands,” 25 U.S. C. which includes lands “held in trust by the United States for the benefit of any Indian tribe,” Cite as: 583 U. S. (2018) 3 Opinion of THOMAS, J. jurisdiction when the statute was enacted in 1934. See The Band was not federally recognized until 1999, which Patchak argued was more than 65 years too late. Based on this alleged statutory violation, Patchak sought to reverse the Secretary’s decision to take the Bradley Prop- erty into trust. The Secretary raised preliminary objections to Patchak’s suit, contending that it was barred by sovereign immunity and that Patchak lacked prudential standing to bring it. The District Court granted the Secretary’s motion to dismiss, but the D. C. Circuit reversed. rev’d, (2011). This Court granted certiorari and affirmed the D. C. Circuit. Match-E-Be-Nash-She-Wish Band of Potta- watomi (Patchak I ). This Court’s decision in Patchak I held that Congress had waived the Secretary’s sovereign immunity from suits like Patchak’s. at 215–224. It also held that Patchak had prudential standing because his suit arguably fell within the “zone of interests” protected by the Indian Reorganization Act. at 224–228. Because Patchak had standing and the Secretary lacked immunity, this Court concluded that “Patchak’s suit may proceed,” at and remanded for further proceedings, In September 2014, while Patchak’s suit was back in the District Court, Congress enacted the Gun Lake Act, 128 Stat. 3. Section 2(a) of the Act states that the Bradley Property “is reaffirmed as trust land, and the actions of the Secretary of the Interior in taking that land into trust are ratified and confirmed.” Section 2(b) then provides the following: “NO CLAIMS.—Notwithstanding any other provision of law, an action (including an action pending in a Fed- eral court as of the date of enactment of this Act) re- 4 PATCHAK v. ZINKE Opinion of THOMAS, J. lating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.” Based on the District Court entered summary judg- ment against Patchak and dismissed his suit for lack of jurisdiction. The D. C. Circuit affirmed. Patchak v. Jewell, 828 F.3d 995 (2016). It held that “[t]he language of the Gun Lake Act makes plain that Congress has stripped federal courts of subject matter jurisdiction” over suits, like Patchak’s, that relate to the Bradley Property. The D. C. Circuit rejected Patchak’s argument that vio- lates Article III of the Constitution. –1003. Article III prohibits Congress from “direct[ing] the result of pending litigation,” the D. C. Circuit reasoned, but it does not prohibit Congress from “ ‘supply[ing] new law.’ ” ). Section 2(b) supplies new law: “[I]f an action relates to the Bradley Property, it must promptly be dismissed.” We granted certiorari to review whether violates Article III of the Constitution.2 See 581 U. S. (2017). Because it does not, we now affirm. II A The Constitution creates three branches of Government and vests each branch with a different type of power. See Art. I, Art. II, cl. 1; Art. III, “To the legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the —————— 2 Patchak does not challenge the constitutionality of of the Gun Lake Act. See Reply Brief 7; Tr. of Oral Arg. 5. We thus limit our analysis to Cite as: 583 U. S. (2018) 5 Opinion of THOMAS, J. judiciary the duty of interpreting and applying them in cases properly brought before the courts.” Massachusetts v. Mellon, ; see also Wayman v. Southard, (“[T]he legislature makes, the executive executes, and the judici- ary construes the law”). By vesting each branch with an exclusive form of power, the Framers kept those powers separate. See 2 U.S. 919, 9 Each branch “exercise[s] the powers appropriate to its own department,” and no branch can “encroach upon the powers confided to the others.” This system prevents “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands,” The Federalist No. 47, p. 301 (C. Rossiter ed. 1961) (J. Madison)—an accumula- tion that would pose an inherent “threat to liberty,” Clin- (KENNEDY, J., concurring). The separation of powers, among other things, prevents Congress from exercising the judicial power. See v. Spendthrift Farm, Inc., One way that Congress can cross the line from legislative power to judicial power is by “usurp[ing] a court’s power to interpret and apply the law to the [circumstances] before it.” Bank v. Peterson, 578 U. S. (2016) (slip op., at 12). The simplest example would be a statute that says, “In Smith v. Jones, Smith wins.” See at –, n. 17 (slip op., at 12–13, n. 17). At the same time, the legislative power is the power to make law, and Con- gress can make laws that apply retroactively to pending lawsuits, even when it effectively ensures that one side wins. See at – (slip op., at 15–19). To distinguish between permissible exercises of the legislative power and impermissible infringements of the judicial power, this Court’s precedents establish the fol- lowing rule: Congress violates Article III when it “com- 6 PATCHAK v. ZINKE Opinion of THOMAS, J. pel[s] findings or results under old law.” Seattle But Congress does not violate Article III when it “changes the law.” at B Section 2(b) changes the law. Specifically, it strips federal courts of jurisdiction over actions “relating to” the Bradley Property. Before the Gun Lake Act, federal courts had jurisdiction to hear these actions. See 28 U.S. C. Now they do not. This kind of legal change is well within Congress’ authority and does not violate Article III. 1 Section 2(b) strips federal jurisdiction over suits relating to the Bradley Property. The statute uses jurisdictional language. It states that an “action” relating to the Brad- ley Property “shall not be filed or maintained in a Federal court.” It imposes jurisdictional consequences: Actions relating to the Bradley Property “shall be promptly dis- missed.” See Ex parte (“[W]hen [jurisdiction] ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause”). Section 2(b) has no exceptions. Cf. Reed Elsevier, And it applies “[n]otwithstanding any other provision of law,” including the general grant of federal-question juris- diction, 28 U.S. C. Although does not use the word “jurisdiction,” this Court does not require jurisdic- tional statutes to “incant magic words.” Indeed, uses language similar to other statutes that this Court has deemed jurisdictional. See, e.g., Gonzalez v. Thaler, (“ ‘[n]o person shall file or prosecute’ ” (quoting )); Wein- Cite as: 583 U. S. (2018) 7 Opinion of THOMAS, J. (“ ‘[n]o action shall be brought under [28 U.S. C. ” (quoting 42 U.S. C. Our conclusion that is jurisdictional is bolstered by the fact that it cannot plausibly be read as anything else. Section 2(b) is not one of the nonjurisdictional rules that this Court’s precedents have identified as “important and mandatory” but not governing “a court’s adjudicatory capacity.” (2011). Section 2(b) does not identify an “element of [the] plaintiff’s claim for relief” or otherwise define its “substan- tive adequacy.” 5 U.S. 500, 516, 504 (2006). Nor is it a “claim-processing rule,” like a filing deadline or an exhaustion requirement, that re- quires the parties to “take certain procedural steps at certain specified times.” at In- stead, completely prohibits actions relating to the Bradley Property. Because addresses “a court’s competence to adjudicate a particular category of cases,” Wachovia Bank, N. 5 U.S. 303, (2006), it is best read as a jurisdiction-stripping statute. 2 Statutes that strip jurisdiction “chang[e] the law” for the purpose of Article III, at just as much as other exercises of Congress’ legislative authority. Article I permits Congress “[t]o constitute Tribunals inferior to the supreme Court,” and Article III vests the judicial power “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and estab- lish,” These provisions reflect the so-called Madison- ian Compromise, which resolved the Framers’ disagree- ment about creating lower federal courts by leaving that decision to Congress. See Printz v. United States, 521 U.S. 898, 907 (1997); 1 Records of the Federal Convention of 1787, p. 125 (M. Farrand ed. 1). Congress’ greater 8 PATCHAK v. ZINKE Opinion of THOMAS, J. power to create lower federal courts includes its lesser power to “limit the jurisdiction of those Courts.” United ; accord, Lockerty v. Phillips, So long as Congress does not violate other constitutional provisions, its “control over the jurisdiction of the federal courts” is “plenary.” 63–64 (14); see also (2007) (“Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider”). Thus, when Congress strips federal courts of jurisdic- tion, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it. Indeed, this Court has held that Congress generally does not violate Article III when it strips federal jurisdic- tion over a class of cases.3 Shortly after the Civil War, for example, Congress repealed this Court’s appellate juris- diction over certain habeas corpus cases. See Act of Mar. 27, 1868, ch. 34, ; see also U. S. Const., Art. III, (permitting Congress to make “Exceptions” to this Court’s appellate jurisdiction). William a military prisoner whose appeal was pending at the time, argued that the repealing statute was “an exercise by the Congress of judicial power.” This Court disagreed. Jurisdiction-stripping statutes, the Court explained, do not involve “the exercise of judicial power” or “legislative interference with courts in the exercising of continuing jurisdiction.” at Because jurisdiction —————— 3 Jurisdiction-stripping statutes can violate other provisions of the Constitution. And, under our precedents, jurisdiction-stripping stat- utes can violate Article III if they “attemp[t] to direct the result” by effectively altering legal standards that Congress is “powerless to prescribe.” Bank v. Peterson, 578 U. S. (2016) (slip op., at 15) (citing United 1–147 (2)). Cite as: 583 U. S. (2018) 9 Opinion of THOMAS, J. is the “power to declare the law” in the first place, “judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Con- stitution and the laws confer.” at –515.4 This Court has reaffirmed these principles on many occasions. Congress generally does not infringe the judi- cial power when it strips jurisdiction because, with limited exceptions, a congressional grant of jurisdiction is a pre- requisite to the exercise of judicial power. See Steel v. Citizens for Better Environment, –95 (“The requirement that jurisdiction be established —————— 4 The dissent appears to disagree with questions the mo- tives of the unanimous Court that decided it, asserts that it is “incon- sistent” with and distinguishes it on the ground that the statute there “did not foreclose all avenues of judicial review.” Post, at 12–13 (opinion of ROBERTS, C. J.). But the core holding of —that Congress does not exercise the judicial power when it strips jurisdiction over a class of cases—has never been questioned, has been repeatedly reaffirmed, and was reaffirmed in itself. See (“[T]here could be no doubt” that Congress can “den[y] the right of appeal in a particular class of cases”). And if there is any inconsistency between the two, this Court has said that it is —not — that “cannot [be] take[n] ‘at face value.’ ” Bank 578 U. S., at (slip op., at 15) ). Moreover, it is true that empha- sized that the statute there did not withdraw “the whole appellate power of the court, in cases of habeas corpus.” (empha- sis added). But ’s reservation, this Court later explained, was responding to a potential problem under the Suspension Clause, not a potential problem under Article III. See Ex parte Yerger, 102–103 (“We agree that [jurisdiction] is given subject to excep- tion and regulation by Congress; but it is too plain for argument that the denial to this court of appellate jurisdiction in this class of cases must greatly weaken the efficacy of the writ”); (“It would have been a remarkable anomaly if this court had been denied, under a constitution which absolutely prohibits suspension of the writ, except under extraordinary exigencies, that power in cases of alleged unlawful restraint”). 10 PATCHAK v. ZINKE Opinion of THOMAS, J. as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States’ ” (quoting Mans- field, C. & L. M. R. (1884))); (“[T]he judicial power of the United States is (except in enu- merated instances, applicable exclusively to this court) dependent entirely upon the action of Congress”); at “To deny this position” would undermine the separation of powers by “elevat[ing] the judicial over the legislative branch.” at Congress’ power over federal jurisdiction is “an es- sential ingredient of separation and equilibration of pow- ers, restraining the courts from acting at certain times, and even restraining them from acting permanently re- garding certain subjects.” Steel In sum, strips jurisdiction over suits relating to the Bradley Property. It is a valid exercise of Congress’ legislative power. And because it changes the law, it does not infringe the judicial power. The constitutionality of jurisdiction-stripping statutes like this one is well established. III Patchak does not dispute Congress’ power to withdraw jurisdiction from the federal courts. He instead raises two arguments why violates Article III, even if it strips jurisdiction. First, relying on United 13 Wall. 128 (2), Patchak argues that flatly directs federal courts to dismiss lawsuits without allowing them to interpret or apply any new law. Second, relying on Patchak argues that attempts to interfere with this Court’s decision in Patchak I— specifically, its conclusion that his suit “may proceed,” 567 U.S., at We reject both arguments. Cite as: 583 U. S. (2018) 11 Opinion of THOMAS, J. A Section 2(b) does not flatly direct federal courts to dis- miss lawsuits under old law. It creates new law for suits relating to the Bradley Property, and the District Court interpreted and applied that new law in Patchak’s suit. Section 2(b)’s “relating to” standard effectively guaranteed that Patchak’s suit would be dismissed. But “a statute does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts.” Bank 578 U. S., at (slip op., at 17). “[I]t is not any the less a case or controversy upon which a court pos- sessing the federal judicial power may rightly give judg- ment” when the arguments before the court are “uncon- tested or incontestable.” Pope v. United States, 323 U.S. 1, 11 (14). Patchak argues that the last four words of —“shall be promptly dismissed”—direct courts to reach a particu- lar outcome. But a statute does not violate Article III merely because it uses mandatory language. See Seattle 503 U.S., at Instead of directing outcomes, the mandatory language in “simply imposes the consequences” of a court’s determination that it lacks jurisdiction because a suit relates to the Bradley Property. ; see 7 Wall., at5 Patchak compares to the statute this Court held unconstitutional in In that case, the administrator —————— 5 To prove that it does not change the law, Patchak repeatedly asserts that does not amend any “generally applicable” statute. Brief for Petitioner 11; Reply Brief 1, 4, 9. But this Court rejected that same argument in Seattle Congress can change a law “directly,” or it can change a law indirectly by passing “an entirely separate statute.” 503 U.S., at –440. Either way, it changes the law. The same is true for jurisdictional statutes. See Insurance v. Ritchie, 5 Wall. 541 (1867). 12 PATCHAK v. ZINKE Opinion of THOMAS, J. of the estate of V. F. Wilson, a former Confederate soldier, sued to recover the value of some cotton that the Govern- ment had seized during the The relevant statute required claimants to prove their loyalty in order to reclaim their property. Ch. 120, 12 Stat. 820. Wilson had received a pardon before he died, 13 Wall., at 132, and this Court had held that pardons con- clusively prove loyalty under the statute, see United (0). But after Wilson’s administrator secured a judgment in his favor, 13 Wall., at 132, Congress passed a statute making pardons proof of disloyalty and declaring that, if a claimant had accepted one, “the jurisdiction of the court in the case shall cease, and the court shall forthwith dismiss the suit of such claimant.” Act of July 12, 0, If the court had already entered judgment in favor of a pardoned claimant and the Government had appealed, the statute instructed this Court to dismiss the whole suit for lack of jurisdiction. See held that this statute in- fringed the executive power by attempting to “change the effect of a pardon.” also held that the statute infringed the judicial power, see although its reasons for this latter holding were not en- tirely clear. This Court has since explained that “the statute in infringed the judicial power, not because it left too little for courts to do, but because it attempted to direct the result without altering the legal standards governing the effect of a pardon—standards Congress was powerless to prescribe.” Bank at (slip op., at 15). Congress had no authority to declare that pardons are not evidence of loyalty, so it could not achieve the same result by stripping jurisdiction whenever claimants cited pardons as evidence of loyalty. See 13 Wall., –148. Nor could Congress confer jurisdiction to a federal court but then strip jurisdiction from that same court once the Cite as: 583 U. S. (2018) 13 Opinion of THOMAS, J. court concluded that a pardoned claimant should prevail under the statute. See at 1–147. Patchak’s attempts to compare to the statute in are unpersuasive. Section 2(b) does not attempt to exercise a power that the Constitution vests in another branch. And unlike the selective jurisdiction-stripping statute in strips jurisdiction over every suit relating to the Bradley Property. Indeed, itself explained that statutes that do “nothing more” than strip jurisdiction over “a particular class of cases” are constitu- tional. That is precisely what does. B Section 2(b) does not unconstitutionally interfere with this Court’s decision in Patchak I. Article III, this Court explained in prohibits Congress from “retroactively commanding the federal courts to reopen final judgments.” U.S., at 219. But Patchak I did not finally conclude Patchak’s case. See When this Court said that his suit “may proceed,” 567 U.S., at it meant that the Secretary’s preliminary defenses lacked merit and that Patchak could return to the District Court for further proceedings. It did not mean that Congress was powerless to change the law that governs his case. As this Court emphasized in Article III does not prohibit Con- gress from enacting new laws that apply to pending civil cases. See U.S., at 226–227. When a new law clearly governs pending cases, Article III does not prevent courts from applying it because “each court, at every level, must ‘decide according to existing laws.’ ” ). This principle applies equally to statutes that strip jurisdiction. See (19); Kline v. Burke Constr. (1922); (6). 14 PATCHAK v. ZINKE Opinion of THOMAS, J. Because expressly references “pending” cases, it applies to Patchak’s suit. And because Patchak’s suit is not final, applying here does not offend Article III.6 Of course, we recognize that the Gun Lake Act was a response to this Court’s decision in Patchak I. The text of the Act, after all, cites both the administrative decision and the property at issue in that case. See §–(b). And we understand why Patchak would view the Gun Lake Act as unfair. By all accounts, the Band exercised its political influence to persuade Congress to enact a narrow jurisdiction-stripping provision that effectively ends all lawsuits threatening its casino, including Patchak’s. But the question in this case is “[n]ot favoritism, nor even corruption, but power.” ; see also 7 Wall., at (“We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution”). Under this Court’s precedents, Congress has the power to “apply newly enacted, outcome-altering legislation in pending civil cases,” Bank 578 U. S., at (slip op., at 16), even when the legislation “govern[s] one or a very small number of specific subjects,” at (slip op., at 21). For example, this Court has upheld narrow statutes that identified specific cases by caption and docket num- ber in their text. See at (slip op., at 19); Seattle And this Court has approv- ingly cited a D. C. Circuit decision, which upheld a statute that retroactively stripped jurisdiction over suits challeng- ing “a single memorial.” Bank at (slip —————— 6 Retroactivelegislation can violate other provisions of the Constitu- tion, such as the Ex Post Facto Clause and the Bills of Attainder Clause. See Bank 578 U. S., at (slip op., at 16). But Patchak’s Article III claim is the only challenge to before us. Cite as: 583 U. S. (2018) 15 Opinion of THOMAS, J. op., at 22) ). If these targeted statutes did not cross the line from legislative to judicial power, then does not either. IV The dissent offers a different theory for why vio- lates Article III. A statute impermissibly exercises the judicial power, the dissent contends, when it “targets” a particular suit and “manipulates” jurisdiction to direct the outcome, “practical[ly] operat[es]” to affect only one suit, and announces a legal standard that does not “imply some measure of generality” or “preserv[e] an adjudicative role for the courts.” Post, at 8, 11. We doubt that the constitutional line separating the legislative and judicial powers turns on factors such as a court’s doubts about Congress’ unexpressed motives, the number of “cases [that] were pending when the provision was enacted,” or the time left on the statute of limitations. Post, at 8. But even if it did, we disagree with the dis- sent’s characterization of Nothing on the face of is limited to Patchak’s case, or even to his challenge under the Indian Reorganization Act. Instead, the text extends to all suits “relating to” the Bradley Property. Thus, survives even under the dissent’s theory: It “prospectively govern[s] an open-ended class of disputes,” post, at 6, and its “relating to” standard “preserv[es] an adjudicative role for the courts,” post, at 11. While ’s “relating to” standard is not difficult to interpret or apply, this Court’s precedents encourage Congress to draft juris- dictional statutes in this manner. See Hertz Corp. v. Friend, (“[A]dministrative simplic- ity is a major virtue in a jurisdictional statute. [C]ourts benefit from straightforward rules under which they can 16 PATCHAK v. ZINKE Opinion of THOMAS, J. readily assure themselves of their power to hear a case”).7 * * * We conclude that of the Gun Lake Act does not violate Article III of the Constitution. The judgment of the Court of Appeals is, therefore, affirmed. It is so ordered. —————— 7 We also doubt that the statute this Court upheld in Bank would survive under the dissent’s theory. The dissent notes that the statute there affected “16 different actions,” while the statute here affects “a single pending case.” Post, at 8. But if the problem is Con- gress “pick[ing] winners and losers in pending litigation,” post, at 14, then it seems backwards to conclude that Congress is on stronger constitutional footing when it picks winners and losers in more pending cases. Cite as: 583 U. S. (2018) 1 BREYER, J., concurring SUPREME COURT OF THE UNITED STATES No. 16–498 DAVID PATCHAK, PETITIONER v. RYAN ZINKE, SECRETARY OF THE INTERIOR, ET AL.
Justice Alito	dissenting	false	Madison v. Alabama	2019-02-27T00:00:00	null	https://www.courtlistener.com/opinion/4595877/madison-v-alabama/	https://www.courtlistener.com/api/rest/v3/clusters/4595877/	2,019	2018-004	2	5	3	What the Court has done in this case makes a mockery of our Rules. Petitioner’s counsel convinced the Court to stay his client’s execution and to grant his petition for a writ of certiorari for the purpose of deciding a clear-cut constitu- tional question: Does the Eighth Amendment prohibit the execution of a murderer who cannot recall committing the murder for which the death sentence was imposed? The petition strenuously argued that executing such a person is unconstitutional. After persuading the Court to grant review of this ques- tion, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong, and he switched to an entirely different argument, namely, that the state court had rejected petitioner’s claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental condi- tions, cannot provide a basis for such a claim. See Brief for Petitioner 16. This was not a question that the Court agreed to hear; indeed, there is no mention whatsoever of this argument in the petition—not even a hint. Nor is this question 2 MADISON v. ALABAMA ALITO, J., dissenting fairly included within those on which the Court granted review. On the contrary, it is an entirely discrete and independent question. Counsel’s tactics flagrantly flouted our Rules. Our Rules make it clear that we grant certiorari to decide the specific question or questions of law set out in a petition for certiorari. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”). Our whole certiorari system would be thrown into turmoil if we allowed counsel to obtain review of one question and then switch to an entirely different question after review is granted. In the past when counsel have done this, we have dismissed the writ as improvidently granted. See, e.g., Visa, Inc. v. Osborn, 580 U. S. ___ (2016); City and County of San Francisco v. Sheehan, 575 U. S. ___ (2015). We should do that here. Instead, the majority rewards counsel’s trick. It vacates the judgment below because it is unsure whether the state court committed the error claimed in petitioner’s merits brief. But not only was there no trace of this argument in the petition, there is nothing in the record showing that the state court ever adopted the erroneous view that peti- tioner claims it took. I The question on which we granted review was an out- growth of our per curiam decision in Dunn v. Madison, 583 U. S. ___ (2017), which concerned an Eleventh Circuit decision granting petitioner federal habeas relief. Prior to that decision, this Court had held in Ford v. Wainwright, 477 U.S. 399 (1986), that the Eighth Amendment prohib- its the execution of a person who is “insane,” and in Panetti v. Quarterman, 551 U.S. 930 (2007), the Court elaborated on this rule, explaining that a person cannot be executed if he lacks a rational understanding of the reason for the Cite as: 586 U. S. ____ (2019) 3 ALITO, J., dissenting execution. The Eleventh Circuit interpreted those cases to mean that petitioner could not be executed because he did not remember killing his victim, Mobile, Alabama, police officer Julius Schulte. We summarily reversed. Under the relevant provision of the federal habeas statute, 28 U.S. C. §2254(d), which was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), petitioner could not obtain federal habeas relief unless the state court’s rejec- tion of his memory-loss claim represented an unreasonable application of federal law as clearly established at the time by decisions of this Court. We held that neither Ford nor Panetti clearly established that a person cannot be executed if he does not remember committing the crime for which the death sentence was imposed. Our opinion stated, however, that it “express[ed] no view on the merits of the underlying question outside of the AEDPA context.” Dunn, 583 U. S., at ___ (slip op., at 4). And a concurring opinion authored by JUSTICE GINSBURG and joined by JUSTICES BREYER and SOTOMAYOR teed up this question for review in a later case. Id., at ___ (slip op., at 1) (“The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet ad- dressed by the Court. Appropriately presented, the issue would warrant full airing”). Taking this cue, petitioner then sought relief in state court based on his inability to remember his crime, and when that effort failed, he filed the petition at issue now. II The centerpiece of the petition and petitioner’s 11th- hour application for a stay of execution1 was the argument —————— 1 Petitioner sought and obtained a stay of execution based on this 4 MADISON v. ALABAMA ALITO, J., dissenting that he could not constitutionally be executed because he did not remember killing Officer Schulte. The petition repeatedly noted petitioner’s inability to remember his crime. See Pet. for Cert. i, iii, 1, 2, 8, 10, 11, 12, 18, 22, 23, 25, 26, 27, 28. And the petition was very clear about the question on which review was sought: “[T]his case presents this Court with the appropriate vehicle to consider the substantial question of whether the execution of a prisoner with no memory of the un- derlying offense is consistent with the evolving stand- ards of decency inherent in this Court’s Eighth Amendment jurisprudence.” Id., at 2. This same point was made time and again: ● “[B]ecause [petitioner’s] disability renders him unable to remember the underlying offense for which he is to be punished, his execution does not comport with the evolving standards of decency required by this Court’s Eighth Amendment jurisprudence.” Id., at 18. ● “[I]mposing death on a prisoner, who, like Mr. Madi- son, suffers from substantial memory deficits by vir- tue of multiple stroke and resulting vascular dementia serves no retributive or deterrent purpose.” Id., at 22. ● “[E]xecuting an individual with no memory of the un- derlying offense serves no retributive purpose.” Ibid. ● “[W]here the person being punished has no memory of the commission of the offense for which he is to be ex- ecuted, the ‘moral quality’ of that punishment is less- ened and unable to match outrage over the offense.” Id., at 22–23. —————— same argument. See Application for Stay of Execution 2, 6 (moving the Court to stay petitioner’s execution so that it could address the “sub- stantial” and “critical” question whether executing petitioner, “whose severe cognitive dysfunction leaves him without memory of his commis- sion of the capital offense,” would violate the Eighth Amendment). Cite as: 586 U. S. ____ (2019) 5 ALITO, J., dissenting ● “Mr. Madison’s severe memory impairments as a re- sult of vascular dementia render him incompetent to be executed under the Eight Amendment.” Id., at 25 (quotation altered). In sum, the body of the petition makes it clear that review was sought on the question invited by the Dunn concurrence, and the thrust of the wording of the two questions was the same. They read as follows: “1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital of- fense? See Dunn v. Madison, [583 U. S. ___, ___ (2017) (GINSBURG, J., joined by BREYER and SOTOMAYOR, JJ., concurring).] “2. Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual pun- ishment bar the execution of a prisoner whose compe- tency has been compromised by vascular dementia and multiple strokes causing severe cognitive dys- function and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution? ” Pet. for Cert. iii. With the exception of the final phrase in question two (“or understanding the circumstances of his scheduled execution”), both questions solely concern the effect of memory loss on an Eighth Amendment analysis. The final phrase in question two and certain passages in the peti- tion, if read with an exceedingly generous eye, might be seen as a basis for considering whether the evidence in the state-court record shows that petitioner’s dementia ren- dered him incapable of having a rational understanding of the reason for his execution. But that is the sort of fact- bound question on which we rarely grant review, see this 6 MADISON v. ALABAMA ALITO, J., dissenting Court’s Rule 10, and it is questionable whether we did so here. But whether or not the petition may be fairly read to present that factbound question, it is a travesty to read it as challenging the state-court order on the ground that the state court erroneously believed that dementia cannot provide a basis for a Ford/Panetti claim. There is no ink- ling of that argument in the petition. Although the peti- tion described the state-court order at numerous places, the petition never claimed that the order was based on an impermissible distinction between dementia and other mental conditions. See, e.g., Pet. for Cert. ii, 2–3, 16. And in fact, there is a point in the petition where such an interpretation of the state-court order would surely have been mentioned if the petition had intended to raise it as a ground for review. The petition noted that “courts have recognized dementia and attendant cognitive decline and memory impairment as a basis for a finding of incompe- tency to be executed,” id., at 25, but the petition did not follow that statement by claiming that the state court in this case took a contradictory position. Because the petition did not raise—indeed, did not even hint at—the argument on which the Court now grants relief, the Court’s decision is insupportable.2 It violates our Rule that “[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court.” See Rule 14.1(a). III Even if it were proper for us to consider whether the order below was based on an erroneous distinction be- tween dementia and other mental conditions, there is little reason to think that it was. After a full evidentiary hear- —————— 2 The Court is unable to cite a single place in the petition that makes any reference to the argument that the state court failed to understand that dementia could satisfy the Ford/Panetti test. Cite as: 586 U. S. ____ (2019) 7 ALITO, J., dissenting ing in 2016, the state court rejected petitioner’s Ford/Panetti claim based on a correct statement of the holding of those decisions. It found that petitioner “ha[d] not carried his burden [of showing] by a preponderance of the evidence . . . that he . . . does not rationally understand the punishment he is about to suffer and why he is about to suffer it.” Order (Apr. 29, 2016), p. 10. The court’s order went on to say that it “specifically [found] that Mad- ison has a rationa[l] understanding, as required by Panetti, that he is going to be executed because of the murder he committed and a rationa[l] understanding that the State is seeking retribution and that he will die when he is executed.” Ibid. In concluding that the state court might have drawn a distinction between dementia and other mental conditions, the majority seizes upon the wording of the order issued after a subsequent hearing in 2018. Ante, at 14. In that order, the same judge wrote: “Defendant did not provide a substantial threshold showing of insanity, a requirement set out by the United States Supreme Court, sufficient to convince this Court to stay the execution.” Order (Jan. 16, 2018), p. 1 (emphasis added). The majority worries that the state-court judge might not have applied the same standard in 2018 as he had two years earlier and might have viewed “insanity” as something narrower than the standard mandated by Ford and Panetti. This concern is unfounded. Taken out of context, the term “insanity” might not be read to encompass dementia, but in context, it is apparent that the state court’s use of that term was based on the way in which it was used in Ford and Panetti. The state court did not simply refer to “insanity.” It referred to “insanity, a requirement set out by the United States Supreme Court.” Thus, it followed the term “insanity” with an appositive, which is a word or phrase that re- names the word or phrase that precedes it. In other 8 MADISON v. ALABAMA ALITO, J., dissenting words, what the state court clearly meant by “insanity” was what this Court termed insanity in Ford and Panetti. What was that? In Ford, the Court held that the Eighth Amendment prohibits the execution of a person who is “insane,” and in the portion of Justice Marshall’s lead opinion that was joined by a plurality, Justice Marshall equated insanity with a mental condition that “prevents [a person] from comprehending the reasons for the penalty or its implica- tions.” 477 U.S., at 417. Justice Powell, who provided the fifth vote for the decision, took a similar position. See id., at 422–423 (opinion concurring in part and concurring in judgment). In Panetti, which built on the holding in Ford, the Court used the term in a similar way. See 551 U.S., at 958–960. Accordingly, a defendant suffers from “insanity,” as the term is used in Ford and Panetti, if the prisoner does not understand the reason for his execution. Today’s decision does not reject this interpretation of the state-court order; it says only that it is vacating and re- manding because it is “at the least unsure” whether the state court used the term “insanity” in this way. Ante, at 14. The majority cites two reasons for its uncertainty, but both are weak. First, the majority attributes to the state court an inter- pretation of the term “insanity” that was advanced by the State in this Court in its brief in opposition to the petition for certiorari. Ante, at 15. In that submission, the State argued that certiorari should be denied because petitioner had sought relief in state court under the wrong provision of state law, namely, Ala. Code §15–16–23 (2011), which authorizes the suspension of the execution of an inmate who is “insane.” The State argued that petitioner’s memory loss did not render him “insane” within the mean- ing of this statute and that if he wished to argue that the Eighth Amendment bars the execution of an inmate who cannot remember his crime, he “should have filed a peti- Cite as: 586 U. S. ____ (2019) 9 ALITO, J., dissenting tion for post-conviction relief ” under Alabama Rule of Criminal Procedure 32.4. Brief in Opposition 11–12. The majority’s argument based on the State’s brief in opposition suffers from multiple defects. For one thing, nothing suggests that the state court rejected petitioner’s application on the ground that he invoked the wrong provision of state law; the State’s filing in the state court made no mention of the argument set out in its brief in opposition filed here. Moreover, if the state court had rejected petitioner’s application on the ground that he moved under the wrong provision of state law, it is doubt- ful that we could review that decision, for then it would appear to rest on an adequate and independent state-law ground. And to top things off, the majority’s argument distorts what the State’s brief in opposition attempted to say about the term “insane.” The State did not argue that a defendant who lacks a rational understanding of the reason for his execution due to dementia is not “insane” under Ala. Code §15–16–23. Instead, the State’s point was that a defendant is not “insane” in that sense merely because he cannot remember committing the crime for which he was convicted. The majority’s other proffered basis for doubt is that the State “repeatedly argued to the [state] court (over Madi- son’s objection) that only prisoners suffering from delu- sional disorders could qualify as incompetent under Panetti.” Ante, at 16. The majority, however, cites no place where the State actually made such an argument. To be sure, the State, in contending that petitioner was not entitled to relief under Ford and Panetti, argued strenuously that he was not delusional. (The State made this argument be- cause petitioner’s counsel claimed that petitioner was in fact delusional and fell within Ford and Panetti for that reason.3) But arguing, as the State did, that petitioner —————— 3 Petitioner’s papers emphasized again and again that he suffers from 10 MADISON v. ALABAMA ALITO, J., dissenting was not entitled to relief because the claim that he was delusional was untrue is not the same as arguing that petitioner could be executed even if his dementia rendered him incapable of understanding the reason for his execu- tion. The majority cites no place where the State made the latter argument in the state court.4 And even if the —————— delusions. See Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016), p. 1 (“Mr. Madison has long suffered from serious mental illness, marked by paranoid delusions and other disabil- ities”); id., at 5 (“At Mr. Madison’s trial, Dr. Barry Amyx established that Mr. Madison suffers from a delusional disorder that has existed since he was an adolescent”); ibid. (“This well-documented history of paranoia was one of the reasons Dr. Amyx concluded that Mr. Madison had a delusional disorder in a paranoid, really a persecutory type” (internal quotation marks omitted)); ibid. (“Dr. Amyx noted that Mr. Madison exhibited delusional thinking about . . . medication and believed that he was being used as a guinea pig in medical experi- ments”); id., at 6 (emphasizing a “more recent observation” that “ ‘Mr. Madison consistently presented with paranoid delusions’ ”); id., at 8 (“Mr. Madison exhibited delusional and disoriented behavior in June 2015”); id., at 14 (“decades of delusional thinking and psychotropic medications”); see also Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Dec. 18, 2017), pp. 6–7 (detailing similar statements). This line of argument fell apart when petitioner’s own expert testified that he found no indication that petitioner was “[e]ither delusional or psychotic.” Tr. 56 (Apr. 14, 2016). 4 Unable to cite any place where the State made this argument to the state court, the Court claims that the State did so in the Eleventh Circuit. Ante, at 6–7, n. 1. But even if that were so, it is hard to see what that would have to do with the question whether the state court thought that dementia could not satisfy the Ford/Panetti test. And in any event, the Court does not fairly describe the State’s argument in the Eleventh Circuit. The State’s Eleventh Circuit brief argued that merely suffering from a mental condition like dementia is not enough to render a prisoner incompetent to be executed; instead, the prisoner must also establish that he lacks a rational understanding of the reason for his execution. See Brief for Appellee in No. 16–12279 (CA11), pp. 37–38 (Brief for Appellee) (“The fairest reading of the state court’s opinion is that it assumed that dementia and memory loss caused by strokes is a mental illness and went straight to the rational understanding question. Thus, it is not that the trial court refused to Cite as: 586 U. S. ____ (2019) 11 ALITO, J., dissenting —————— consider Madison’s claims pertaining to dementia—Madison cannot point to any portion of the state court order that says this—it is that the trial court correctly noted that Madison failed to prove that any dementia interfered with Madison’s ability to have a rational under- standing of his execution, including the reasons therefor”); id., at 27 (“The Supreme Court has not held that a petitioner can show incompe- tence without demonstrating a mental illness or that dementia and memory loss definitively preclude rational understanding”); id., at 29 (“To the extent the state court followed the lead of the Supreme Court, this Court, and the ABA and required Madison to show that a mental illness prevented him from having a rational understanding of his punishment, doing so was not an unreasonable application of clearly established federal law”). It is true that the State’s brief, in addressing the standard for granting federal habeas relief under 28 U.S. C. §2254(d), stated that this Court “ha[d] never held that dementia or memory loss is sufficient to show a lack of rational understanding,” Brief for Appellee 29, but that was because a claim under §2254(d) must be based on a clearly established Supreme Court holding. See Recording of Oral Arg. in No. 16–12279 (CA11, June 23, 2016), at 32:37–33:30 (State rejecting a suggestion that Panetti holds “if you don’t remember committing the crime at all, and it is clear based on the medical testimony that you don’t remember committing this crime, then you don’t have a rational understanding of the factual basis for the imposition of the death penalty”: “First of all, under AEDPA deference, I think that that is not the holding of Panetti. . . . I think under AEDPA deference, it’s pretty clear that the holding of Panetti is very narrow. . . . I would say the holding in Panetti is that documented mental illness that results in a delusion has to be considered when talking about rational understand- ing”); id., at 36:00–36:30 (“I think the Supreme Court has never held that not remembering something is equivalent to not having a rational understanding. I think that is just undeniably true. And if AEDPA deference applies, then I don’t think the state court could have been unreasonable in rejecting the view that memory is required”). The State did not argue either that dementia cannot satisfy Ford and Panetti or that the state court based its decision on that ground. On the contrary, Alabama wrote that “even if the trial court had deter- mined that dementia and severe memory loss—or even total amnesia— are insufficient to meet the rational understanding test, that finding would not contradict clearly established federal law.” Brief for Appellee 29; see also id., at 30 (“Even assuming the state court held, as a matter of law, that amnesia is not sufficient to show a lack of rational under- standing, that determination was not unreasonable in light of clearly 12 MADISON v. ALABAMA ALITO, J., dissenting State had made such an argument, what matters is the basis for the state court’s decision, not what counsel for the State wrote or said. I add one more comment regarding the majority’s uncer- tainty about the basis for the state-court decision: Our decision two years ago in Dunn evinced no similar doubts. There, we said that the state court “held that, under this Court’s decisions in Ford and Panetti, Madison was en- titled to relief if he could show” that he lacks a rational understanding of the circumstances of his punishment. 583 U. S., at ___ (slip op., at 2) (quotation altered). And we said that the state court “determined that Madison is competent to be executed because—notwithstanding his memory loss—he recognizes that he will be put to death as punishment for the murder he was found to have commit- ted.” Id., at ___ (slip op., at 4); see also ibid. (referring to the state court’s “finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime”). Why the majority cannot now see what it under- stood without any apparent difficulty two years ago is hard to grasp. For all these reasons, what the Court has done in this case cannot be defended, and therefore it is hard to escape thinking that the real reason for today’s decision is doubt on the part of the majority regarding the correctness of the —————— established federal law”). The majority acknowledges that the State made this concededly correct habeas argument, but then oddly writes it off as an “additional” or alternative argument. Ante, at 7, n. 1. Yet, as the State’s brief and oral argument illustrate, the State’s core contention was that the state court did not unreasonably apply clearly established law under Panet- ti’s “very narrow” holding. (And as we later held in Dunn, the State was correct.) The majority simply cannot escape the inconvenient fact that the State never argued, as a non-AEDPA matter, that peti- tioner could be executed even if his dementia precluded a rational understanding. Cite as: 586 U. S. ____ (2019) 13 ALITO, J., dissenting state court’s factual finding on the question whether Mad- ison has a rational understanding of the reason for his execution. There is no question that petitioner suffers from severe physical and mental problems, and the ques- tion whether he is capable of understanding the reason for his execution was vigorously litigated below. But if the Court thinks it is proper for us to reach that question and to reverse the state court’s finding based on a cold record, it should own up to what it is doing. * * * Petitioner has abandoned the question on which he succeeded in persuading the Court to grant review, and it is highly improper for the Court to grant him relief on a ground not even hinted at in his petition. The writ should be dismissed as improvidently granted, and I therefore respectfully dissent	What the Court has done in this case makes a mockery of our Rules. Petitioner’s counsel convinced the Court to stay his client’s execution and to grant his petition for a writ of certiorari for the purpose of deciding a clear-cut constitu- tional question: Does the Eighth Amendment prohibit the execution of a murderer who cannot recall committing the murder for which the death sentence was imposed? The petition strenuously argued that executing such a person is unconstitutional. After persuading the Court to grant review of this ques- tion, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong, and he switched to an entirely different argument, namely, that the state court had rejected petitioner’s claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental condi- tions, cannot provide a basis for such a claim. See Brief for Petitioner 16. This was not a question that the Court agreed to hear; indeed, there is no mention whatsoever of this argument in the petition—not even a hint. Nor is this question 2 MADISON v. ALABAMA ALITO, J., dissenting fairly included within those on which the Court granted review. On the contrary, it is an entirely discrete and independent question. Counsel’s tactics flagrantly flouted our Rules. Our Rules make it clear that we grant certiorari to decide the specific question or questions of law set out in a petition for certiorari. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”). Our whole certiorari system would be thrown into turmoil if we allowed counsel to obtain review of one question and then switch to an entirely different question after review is granted. In the past when counsel have done this, we have dismissed the writ as improvidently granted. See, e.g., Visa, Inc. v. Osborn, 580 U. S. (2016); City and County of San Francisco v. Sheehan, 575 U. S. (2015). We should do that here. Instead, the majority rewards counsel’s trick. It vacates the judgment below because it is unsure whether the state court committed the error claimed in petitioner’s merits brief. But not only was there no trace of this argument in the petition, there is nothing in the record showing that the state court ever adopted the erroneous view that peti- tioner claims it took. I The question on which we granted review was an out- growth of our per curiam decision in Dunn v. Madison, 583 U. S. (2017), which concerned an Eleventh Circuit decision granting petitioner federal habeas relief. Prior to that decision, this Court had held in that the Eighth Amendment prohib- its the execution of a person who is “insane,” and in Panetti v. Quarterman, the Court elaborated on this rule, explaining that a person cannot be executed if he lacks a rational understanding of the reason for the Cite as: 586 U. S. (2019) 3 ALITO, J., dissenting execution. The Eleventh Circuit interpreted those cases to mean that petitioner could not be executed because he did not remember killing his victim, Mobile, Alabama, police officer Julius Schulte. We summarily reversed. Under the relevant provision of the federal habeas statute, 28 U.S. C. which was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), petitioner could not obtain federal habeas relief unless the state court’s rejec- tion of his memory-loss claim represented an unreasonable application of federal law as clearly established at the time by decisions of this Court. We held that neither Ford nor Panetti clearly established that a person cannot be executed if he does not remember committing the crime for which the death sentence was imposed. Our opinion stated, however, that it “express[ed] no view on the merits of the underlying question outside of the AEDPA context.” Dunn, 583 U. S., at (slip op., at 4). And a concurring opinion authored by JUSTICE GINSBURG and joined by JUSTICES BREYER and SOTOMAYOR teed up this question for review in a later case. at (slip op., at 1) (“The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet ad- dressed by the Court. Appropriately presented, the issue would warrant full airing”). Taking this cue, petitioner then sought relief in state court based on his inability to remember his crime, and when that effort failed, he filed the petition at issue now. II The centerpiece of the petition and petitioner’s 11th- hour application for a stay of execution1 was the argument —————— 1 Petitioner sought and obtained a stay of execution based on this 4 MADISON v. ALABAMA ALITO, J., dissenting that he could not constitutionally be executed because he did not remember killing Officer Schulte. The petition repeatedly noted petitioner’s inability to remember his crime. See Pet. for Cert. i, iii, 1, 2, 8, 10, 11, 12, 18, 22, 23, 25, 26, 27, 28. And the petition was very clear about the question on which review was sought: “[T]his case presents this Court with the appropriate vehicle to consider the substantial question of whether the execution of a prisoner with no memory of the un- derlying offense is consistent with the evolving stand- ards of decency inherent in this Court’s Eighth Amendment jurisprudence.” This same point was made time and again: ● “[B]ecause [petitioner’s] disability renders him unable to remember the underlying offense for which he is to be punished, his execution does not comport with the evolving standards of decency required by this Court’s Eighth Amendment jurisprudence.” ● “[I]mposing death on a prisoner, who, like Mr. Madi- son, suffers from substantial memory deficits by vir- tue of multiple stroke and resulting vascular dementia serves no retributive or deterrent purpose.” 2. ● “[E]xecuting an individual with no memory of the un- derlying offense serves no retributive purpose.” ● “[W]here the person being punished has no memory of the commission of the offense for which he is to be ex- ecuted, the ‘moral quality’ of that punishment is less- ened and unable to match outrage over the offense.” 2–23. —————— same argument. See Application for Stay of Execution 2, 6 (moving the Court to stay petitioner’s execution so that it could address the “sub- stantial” and “critical” question whether executing petitioner, “whose severe cognitive dysfunction leaves him without memory of his commis- sion of the capital offense,” would violate the Eighth Amendment). Cite as: 586 U. S. (2019) 5 ALITO, J., dissenting ● “Mr. Madison’s severe memory impairments as a re- sult of vascular dementia render him incompetent to be executed under the Eight Amendment.” 5 (quotation altered). In sum, the body of the petition makes it clear that review was sought on the question invited by the Dunn concurrence, and the thrust of the wording of the two questions was the same. They read as follows: “1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital of- fense? See Dunn v. Madison, [583 U. S. (2017) (GINSBURG, J., joined by BREYER and SOTOMAYOR, JJ., concurring).] “2. Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual pun- ishment bar the execution of a prisoner whose compe- tency has been compromised by vascular dementia and multiple strokes causing severe cognitive dys- function and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution? ” Pet. for Cert. iii. With the exception of the final phrase in question two (“or understanding the circumstances of his scheduled execution”), both questions solely concern the effect of memory loss on an Eighth Amendment analysis. The final phrase in question two and certain passages in the peti- tion, if read with an exceedingly generous eye, might be seen as a basis for considering whether the evidence in the state-court record shows that petitioner’s dementia ren- dered him incapable of having a rational understanding of the reason for his execution. But that is the sort of fact- bound question on which we rarely grant review, see this 6 MADISON v. ALABAMA ALITO, J., dissenting Court’s Rule 10, and it is questionable whether we did so here. But whether or not the petition may be fairly read to present that factbound question, it is a travesty to read it as challenging the state-court order on the ground that the state court erroneously believed that dementia cannot provide a basis for a Ford/Panetti claim. There is no ink- ling of that argument in the petition. Although the peti- tion described the state-court order at numerous places, the petition never claimed that the order was based on an impermissible distinction between dementia and other mental conditions. See, e.g., Pet. for Cert. ii, 2–3, 16. And in fact, there is a point in the petition where such an interpretation of the state-court order would surely have been mentioned if the petition had intended to raise it as a ground for review. The petition noted that “courts have recognized dementia and attendant cognitive decline and memory impairment as a basis for a finding of incompe- tency to be executed,” 5, but the petition did not follow that statement by claiming that the state court in this case took a contradictory position. Because the petition did not raise—indeed, did not even hint at—the argument on which the Court now grants relief, the Court’s decision is insupportable.2 It violates our Rule that “[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court.” See Rule 14.1(a). III Even if it were proper for us to consider whether the order below was based on an erroneous distinction be- tween dementia and other mental conditions, there is little reason to think that it was. After a full evidentiary hear- —————— 2 The Court is unable to cite a single place in the petition that makes any reference to the argument that the state court failed to understand that dementia could satisfy the Ford/Panetti test. Cite as: 586 U. S. (2019) 7 ALITO, J., dissenting ing in 2016, the state court rejected petitioner’s Ford/Panetti claim based on a correct statement of the holding of those decisions. It found that petitioner “ha[d] not carried his burden [of showing] by a preponderance of the evidence that he does not rationally understand the punishment he is about to suffer and why he is about to suffer it.” Order (Apr. 29, 2016), p. 10. The court’s order went on to say that it “specifically [found] that Mad- ison has a rationa[l] understanding, as required by Panetti, that he is going to be executed because of the murder he committed and a rationa[l] understanding that the State is seeking retribution and that he will die when he is executed.” In concluding that the state court might have drawn a distinction between dementia and other mental conditions, the majority seizes upon the wording of the order issued after a subsequent hearing in 2018. Ante, In that order, the same judge wrote: “Defendant did not provide a substantial threshold showing of insanity, a requirement set out by the United States Supreme Court, sufficient to convince this Court to stay the execution.” Order (Jan. 16, 2018), p. 1 (emphasis added). The majority worries that the state-court judge might not have applied the same standard in 2018 as he had two years earlier and might have viewed “insanity” as something narrower than the standard mandated by Ford and Panetti. This concern is unfounded. Taken out of context, the term “insanity” might not be read to encompass dementia, but in context, it is apparent that the state court’s use of that term was based on the way in which it was used in Ford and Panetti. The state court did not simply refer to “insanity.” It referred to “insanity, a requirement set out by the United States Supreme Court.” Thus, it followed the term “insanity” with an appositive, which is a word or phrase that re- names the word or phrase that precedes it. In other 8 MADISON v. ALABAMA ALITO, J., dissenting words, what the state court clearly meant by “insanity” was what this Court termed insanity in Ford and Panetti. What was that? In Ford, the Court held that the Eighth Amendment prohibits the execution of a person who is “insane,” and in the portion of Justice Marshall’s lead opinion that was joined by a plurality, Justice Marshall equated insanity with a mental condition that “prevents [a person] from comprehending the reasons for the penalty or its implica- tions.” Justice Powell, who provided the fifth vote for the decision, took a similar position. See at 422–423 (opinion concurring in part and concurring in judgment). In Panetti, which built on the holding in Ford, the Court used the term in a similar way. See 551 U.S., at 958–960. Accordingly, a defendant suffers from “insanity,” as the term is used in Ford and Panetti, if the prisoner does not understand the reason for his execution. Today’s decision does not reject this interpretation of the state-court order; it says only that it is vacating and re- manding because it is “at the least unsure” whether the state court used the term “insanity” in this way. Ante, at 14. The majority cites two reasons for its uncertainty, but both are weak. First, the majority attributes to the state court an inter- pretation of the term “insanity” that was advanced by the State in this Court in its brief in opposition to the petition for certiorari. Ante, at 15. In that submission, the State argued that certiorari should be denied because petitioner had sought relief in state court under the wrong provision of state law, namely, –16–23 (2011), which authorizes the suspension of the execution of an inmate who is “insane.” The State argued that petitioner’s memory loss did not render him “insane” within the mean- ing of this statute and that if he wished to argue that the Eighth Amendment bars the execution of an inmate who cannot remember his crime, he “should have filed a peti- Cite as: 586 U. S. (2019) 9 ALITO, J., dissenting tion for post-conviction relief ” under Alabama Rule of Criminal Procedure 32.4. Brief in Opposition 11–12. The majority’s argument based on the State’s brief in opposition suffers from multiple defects. For one thing, nothing suggests that the state court rejected petitioner’s application on the ground that he invoked the wrong provision of state law; the State’s filing in the state court made no mention of the argument set out in its brief in opposition filed here. Moreover, if the state court had rejected petitioner’s application on the ground that he moved under the wrong provision of state law, it is doubt- ful that we could review that decision, for then it would appear to rest on an adequate and independent state-law ground. And to top things off, the majority’s argument distorts what the State’s brief in opposition attempted to say about the term “insane.” The State did not argue that a defendant who lacks a rational understanding of the reason for his execution due to dementia is not “insane” under –16–23. Instead, the State’s point was that a defendant is not “insane” in that sense merely because he cannot remember committing the crime for which he was convicted. The majority’s other proffered basis for doubt is that the State “repeatedly argued to the [state] court (over Madi- son’s objection) that only prisoners suffering from delu- sional disorders could qualify as incompetent under Panetti.” Ante, at 16. The majority, however, cites no place where the State actually made such an argument. To be sure, the State, in contending that petitioner was not entitled to relief under Ford and Panetti, argued strenuously that he was not delusional. (The State made this argument be- cause petitioner’s counsel claimed that petitioner was in fact delusional and fell within Ford and Panetti for that reason.3) But arguing, as the State did, that petitioner —————— 3 Petitioner’s papers emphasized again and again that he suffers from 10 MADISON v. ALABAMA ALITO, J., dissenting was not entitled to relief because the claim that he was delusional was untrue is not the same as arguing that petitioner could be executed even if his dementia rendered him incapable of understanding the reason for his execu- tion. The majority cites no place where the State made the latter argument in the state court.4 And even if the —————— delusions. See Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016), p. 1 (“Mr. Madison has long suffered from serious mental illness, marked by paranoid delusions and other disabil- ities”); (“At Mr. Madison’s trial, Dr. Barry Amyx established that Mr. Madison suffers from a delusional disorder that has existed since he was an adolescent”); (“This well-documented history of paranoia was one of the reasons Dr. Amyx concluded that Mr. Madison had a delusional disorder in a paranoid, really a persecutory type” (internal quotation marks omitted)); (“Dr. Amyx noted that Mr. Madison exhibited delusional thinking about medication and believed that he was being used as a guinea pig in medical experi- ments”); (emphasizing a “more recent observation” that “ ‘Mr. Madison consistently presented with paranoid delusions’ ”); (“Mr. Madison exhibited delusional and disoriented behavior in June 2015”); (“decades of delusional thinking and psychotropic medications”); see also Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Dec. 18, 2017), pp. 6–7 (detailing similar statements). This line of argument fell apart when petitioner’s own expert testified that he found no indication that petitioner was “[e]ither delusional or psychotic.” Tr. 56 (Apr. 14, 2016). 4 Unable to cite any place where the State made this argument to the state court, the Court claims that the State did so in the Eleventh Circuit. Ante, –7, n. 1. But even if that were so, it is hard to see what that would have to do with the question whether the state court thought that dementia could not satisfy the Ford/Panetti test. And in any event, the Court does not fairly describe the State’s argument in the Eleventh Circuit. The State’s Eleventh Circuit brief argued that merely suffering from a mental condition like dementia is not enough to render a prisoner incompetent to be executed; instead, the prisoner must also establish that he lacks a rational understanding of the reason for his execution. See Brief for Appellee in No. 16–12279 (CA11), pp. 37–38 (Brief for Appellee) (“The fairest reading of the state court’s opinion is that it assumed that dementia and memory loss caused by strokes is a mental illness and went straight to the rational understanding question. Thus, it is not that the trial court refused to Cite as: 586 U. S. (2019) 11 ALITO, J., dissenting —————— consider Madison’s claims pertaining to dementia—Madison cannot point to any portion of the state court order that says this—it is that the trial court correctly noted that Madison failed to prove that any dementia interfered with Madison’s ability to have a rational under- standing of his execution, including the reasons therefor”); 7 (“The Supreme Court has not held that a petitioner can show incompe- tence without demonstrating a mental illness or that dementia and memory loss definitively preclude rational understanding”); 9 (“To the extent the state court followed the lead of the Supreme Court, this Court, and the ABA and required Madison to show that a mental illness prevented him from having a rational understanding of his punishment, doing so was not an unreasonable application of clearly established federal law”). It is true that the State’s brief, in addressing the standard for granting federal habeas relief under 28 U.S. C. stated that this Court “ha[d] never held that dementia or memory loss is sufficient to show a lack of rational understanding,” Brief for Appellee 29, but that was because a claim under must be based on a clearly established Supreme Court holding. See Recording of Oral Arg. in No. 16–12279 (CA11, June 23, 2016), at 32:37–33:30 (State rejecting a suggestion that Panetti holds “if you don’t remember committing the crime at all, and it is clear based on the medical testimony that you don’t remember committing this crime, then you don’t have a rational understanding of the factual basis for the imposition of the death penalty”: “First of all, under AEDPA deference, I think that that is not the holding of Panetti. I think under AEDPA deference, it’s pretty clear that the holding of Panetti is very narrow. I would say the holding in Panetti is that documented mental illness that results in a delusion has to be considered when talking about rational understand- ing”); at 36:00–36:30 (“I think the Supreme Court has never held that not remembering something is equivalent to not having a rational understanding. I think that is just undeniably true. And if AEDPA deference applies, then I don’t think the state court could have been unreasonable in rejecting the view that memory is required”). The State did not argue either that dementia cannot satisfy Ford and Panetti or that the state court based its decision on that ground. On the contrary, Alabama wrote that “even if the trial court had deter- mined that dementia and severe memory loss—or even total amnesia— are insufficient to meet the rational understanding test, that finding would not contradict clearly established federal law.” Brief for Appellee 29; see also (“Even assuming the state court held, as a matter of law, that amnesia is not sufficient to show a lack of rational under- standing, that determination was not unreasonable in light of clearly 12 MADISON v. ALABAMA ALITO, J., dissenting State had made such an argument, what matters is the basis for the state court’s decision, not what counsel for the State wrote or said. I add one more comment regarding the majority’s uncer- tainty about the basis for the state-court decision: Our decision two years ago in Dunn evinced no similar doubts. There, we said that the state court “held that, under this Court’s decisions in Ford and Panetti, Madison was en- titled to relief if he could show” that he lacks a rational understanding of the circumstances of his punishment. 583 U. S., at (slip op., ) (quotation altered). And we said that the state court “determined that Madison is competent to be executed because—notwithstanding his memory loss—he recognizes that he will be put to death as punishment for the murder he was found to have commit- ted.” at (slip op., at 4); see also (referring to the state court’s “finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime”). Why the majority cannot now see what it under- stood without any apparent difficulty two years ago is hard to grasp. For all these reasons, what the Court has done in this case cannot be defended, and therefore it is hard to escape thinking that the real reason for today’s decision is doubt on the part of the majority regarding the correctness of the —————— established federal law”). The majority acknowledges that the State made this concededly correct habeas argument, but then oddly writes it off as an “additional” or alternative argument. Ante, at 7, n. 1. Yet, as the State’s brief and oral argument illustrate, the State’s core contention was that the state court did not unreasonably apply clearly established law under Panet- ti’s “very narrow” holding. (And as we later held in Dunn, the State was correct.) The majority simply cannot escape the inconvenient fact that the State never argued, as a non-AEDPA matter, that peti- tioner could be executed even if his dementia precluded a rational understanding. Cite as: 586 U. S. (2019) 13 ALITO, J., dissenting state court’s factual finding on the question whether Mad- ison has a rational understanding of the reason for his execution. There is no question that petitioner suffers from severe physical and mental problems, and the ques- tion whether he is capable of understanding the reason for his execution was vigorously litigated below. But if the Court thinks it is proper for us to reach that question and to reverse the state court’s finding based on a cold record, it should own up to what it is doing. * * * Petitioner has abandoned the question on which he succeeded in persuading the Court to grant review, and it is highly improper for the Court to grant him relief on a ground not even hinted at in his petition. The writ should be dismissed as improvidently granted, and I therefore respectfully dissent
Justice Ginsburg	second_dissenting	false	Illinois v. Caballes	2005-01-24T00:00:00	null	https://www.courtlistener.com/opinion/137742/illinois-v-caballes/	https://www.courtlistener.com/api/rest/v3/clusters/137742/	2,005	2004-017	1	6	2	Illinois State Police Trooper Daniel Gillette stopped Roy Caballes for driving 71 miles per hour in a zone with a posted 418 speed limit of 65 miles per hour. Trooper Craig Graham of the Drug Interdiction Team heard on the radio that Trooper Gillette was making a traffic stop. Although Gillette requested no aid, Graham decided to come to the scene to conduct a dog sniff. Gillette informed Caballes that he was speeding and asked for the usual documents driver's license, car registration, and proof of insurance. Caballes promptly provided the requested documents but refused to consent to a search of his vehicle. After calling his dispatcher to check on the validity of Caballes' license and for outstanding warrants, Gillette returned to his vehicle to write Caballes a warning ticket. Interrupted by a radio call on an unrelated matter, Gillette was still writing the ticket when Trooper Graham arrived with his drug-detection dog. Graham walked the dog around the car, the dog alerted at Caballes' trunk, and, after opening the trunk, the troopers found marijuana. 207 Ill. 2d 504, 506-507, 802 N.E.2d 202, 203 (2003). The Supreme Court of Illinois held that the drug evidence should have been suppressed. Id., at 506, 802 N.E.2d, at 202. Adhering to its decision in People v. Cox, 202 Ill. 2d 462, 782 N.E.2d 275 (2002), the court employed a two-part test taken from Terry v. Ohio, 392 U.S. 1 (1968), to determine the overall reasonableness of the stop. 207 Ill. 2d, at 508, 802 N. E. 2d, at 204. The court asked first "whether the officer's action was justified at its inception," and second "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Ibid. (quoting People v. Brownlee, 186 Ill. 2d 501, 518-519, 713 N.E.2d 556, 565 (1999) (in turn quoting Terry, 392 U. S., at 19-20)). "[I]t is undisputed," the court observed, "that the traffic stop was properly initiated"; thus, the dispositive inquiry trained on the "second part of the Terry test," in which "[t]he State bears the burden of establishing that the conduct remained within the scope of the stop." 207 Ill. 2d, at 509, 802 N. E. 2d, at 204. 419 The court concluded that the State failed to offer sufficient justification for the canine sniff: "The police did not detect the odor of marijuana in the car or note any other evidence suggesting the presence of illegal drugs." Ibid. Lacking "specific and articulable facts" supporting the canine sniff, ibid. (quoting Cox, 202 Ill. 2d, at 470-471, 782 N.E.2d, at 281), the court ruled, "the police impermissibly broadened the scope of the traffic stop in this case into a drug investigation." 207 Ill. 2d, at 509, 802 N.E.2d, at 204.[1] I would affirm the Illinois Supreme Court's judgment and hold that the drug sniff violated the Fourth Amendment. In Terry v. Ohio, the Court upheld the stop and subsequent frisk of an individual based on an officer's observation of suspicious behavior and his reasonable belief that the suspect was armed. See 392 U.S., at 27-28. In a Terry-type investigatory stop, "the officer's action [must be] justified at its inception, and ... reasonably related in scope to the circumstances which justified the interference in the first place." Id., at 20. In applying Terry, the Court has several times indicated that the limitation on "scope" is not confined to the duration of the seizure; it also encompasses the manner in which the seizure is conducted. See, e. g., Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 188 (2004) (an officer's request that an individual identify himself "has an immediate relation to the purpose, rationale, and practical demands of a Terry stop"); United States v. Hensley, 469 U.S. 221, 235 (1985) (examining, under Terry, 420 both "the length and intrusiveness of the stop and detention"); Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion) ("[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop [and] the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion. . . ."). "A routine traffic stop," the Court has observed, "is a relatively brief encounter and `is more analogous to a so-called Terry stop . . . than to a formal arrest.'" Knowles v. Iowa, 525 U.S. 113, 117 (1998) (quoting Berkemer v. McCarty, 468 U.S. 420, 439 (1984)); see also ante, at 415 (SOUTER, J., dissenting) (The government may not "take advantage of a suspect's immobility to search for evidence unrelated to the reason for the detention.").[2] I would apply Terry's reasonable-relation test, as the Illinois Supreme Court did, to determine whether the canine sniff impermissibly expanded the scope of the initially valid seizure of Caballes. It is hardly dispositive that the dog sniff in this case may not have lengthened the duration of the stop. Cf. ante, at 407 ("A seizure ... can become unlawful if it is prolonged beyond the time reasonably required to complete [the initial] mission."). Terry, it merits repetition, instructs that any investigation must be "reasonably related in scope to the circumstances which justified the interference in the first place." 392 U.S., at 20 (emphasis added). The unwarranted 421 and nonconsensual expansion of the seizure here from a routine traffic stop to a drug investigation broadened the scope of the investigation in a manner that, in my judgment, runs afoul of the Fourth Amendment.[3] The Court rejects the Illinois Supreme Court's judgment and, implicitly, the application of Terry to a traffic stop converted, by calling in a dog, to a drug search. The Court so rules, holding that a dog sniff does not render a seizure that is reasonable in time unreasonable in scope. Ante, at 408. Dog sniffs that detect only the possession of contraband may be employed without offense to the Fourth Amendment, the Court reasons, because they reveal no lawful activity and hence disturb no legitimate expectation of privacy. Ante, at 408-409. In my view, the Court diminishes the Fourth Amendment's force by abandoning the second Terry inquiry (was the police action "reasonably related in scope to the circumstances [justifiying] the [initial] interference"). 392 U.S., at 20. A drug-detection dog is an intimidating animal. Cf. United States v. Williams, 356 F.3d 1268, 1276 (CA10 2004) (McKay, J., dissenting) ("drug dogs are not lap dogs"). Injecting such an animal into a routine traffic stop changes the character of the encounter between the police and the motorist. The stop becomes broader, more adversarial, and (in at least some cases) longer. Caballes who, as far as Troopers Gillette and Graham knew, was guilty solely of driving six miles per hour over the speed limit was exposed to the embarrassment and intimidation of being investigated, on a public thoroughfare, for drugs. Even if the drug sniff is not characterized as a Fourth Amendment "search," cf. Indianapolis 422 v. Edmond, 531 U.S. 32, 40 (2000); United States v. Place, 462 U.S. 696, 707 (1983), the sniff surely broadened the scope of the traffic-violation-related seizure. The Court has never removed police action from Fourth Amendment control on the ground that the action is well calculated to apprehend the guilty. See, e. g., United States v. Karo, 468 U.S. 705, 717 (1984) (Fourth Amendment warrant requirement applies to police monitoring of a beeper in a house even if "the facts [justify] believing that a crime is being or will be committed and that monitoring the beeper wherever it goes is likely to produce evidence of criminal activity."); see also Minnesota v. Carter, 525 U.S. 83, 110 (1998) (GINSBURG, J., dissenting) ("Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty."). Under today's decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population. The Illinois Supreme Court, it seems to me, correctly apprehended the danger in allowing the police to search for contraband despite the absence of cause to suspect its presence. Today's decision, in contrast, clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots. Compare, e. g., United States v. Ludwig, 10 F.3d 1523, 1526-1527 (CA10 1993) (upholding a search based on a canine drug sniff of a parked car in a motel parking lot conducted without particular suspicion), with United States v. Quinn, 815 F.2d 153, 159 (CA1 1987) (officers must have reasonable suspicion that a car contains narcotics at the moment a dog sniff is performed), and Place, 462 U. S., at 706-707 (Fourth Amendment not violated by a dog sniff of a piece of luggage that was seized, pre-sniff, based on suspicion of drugs). Nor would motorists have constitutional grounds for complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red signal to turn green. 423 Today's decision also undermines this Court's situation-sensitive balancing of Fourth Amendment interests in other contexts. For example, in Bond v. United States, 529 U.S. 334, 338-339 (2000), the Court held that a bus passenger had an expectation of privacy in a bag placed in an overhead bin and that a police officer's physical manipulation of the bag constituted an illegal search. If canine drug sniffs are entirely exempt from Fourth Amendment inspection, a sniff could substitute for an officer's request to a bus passenger for permission to search his bag, with this significant difference: The passenger would not have the option to say "No." The dog sniff in this case, it bears emphasis, was for drug detection only. A dog sniff for explosives, involving security interests not presented here, would be an entirely different matter. Detector dogs are ordinarily trained not as all-purpose sniffers, but for discrete purposes. For example, they may be trained for narcotics detection or for explosives detection or for agricultural products detection. See, e. g., U. S. Customs & Border Protection, Canine Enforcement Training Center Training Program Course Descriptions, http://www.cbp.gov/xp/cgov/border_security/canines/training_program.xml (all Internet materials as visited Dec. 16, 2004, and available in Clerk of Court's case file) (describing Customs training courses in narcotics detection); Transportation Security Administration, Canine and Explosives Program, http://www.tsa.gov/public/display?theme=32 (describing Transportation Security Administration's explosives detection canine program); U. S. Dept. of Agriculture, Animal and Plant Health Inspection Service, USDA's Detector Dogs: Protecting American Agriculture (Oct. 2001), available at http://www.aphis.usda.gov/oa/pubs/detdogs.pdf (describing USDA Beagle Brigade detector dogs trained to detect prohibited fruits, plants, and meat); see also Jennings, Origins and History of Security and Detector Dogs, in Canine Sports Medicine and Surgery 16, 18-19 (M. Bloomberg, J. Dee, & R. Taylor eds. 1998) (describing narcotics-detector 424 dogs used by Border Patrol and Customs, and bomb detector dogs used by the Federal Aviation Administration and the Secret Service, but noting the possibility in some circumstances of cross training dogs for multiple tasks); S. Chapman, Police Dogs in North America 64, 70-79 (1990) (describing narcotics- and explosives-detection dogs and noting the possibility of cross training). There is no indication in this case that the dog accompanying Trooper Graham was trained for anything other than drug detection. See 207 Ill. 2d, at 507, 802 N. E. 2d, at 203 ("Trooper Graham arrived with his drug-detection dog. . . ."); Brief for Petitioner 3 ("Trooper Graham arrived with a drug-detection dog. . . ."). This Court has distinguished between the general interest in crime control and more immediate threats to public safety. In Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), this Court upheld the use of a sobriety traffic checkpoint. Balancing the State's interest in preventing drunk driving, the extent to which that could be accomplished through the checkpoint program, and the degree of intrusion the stops involved, the Court determined that the State's checkpoint program was consistent with the Fourth Amendment. Id., at 455. Ten years after Sitz, in Indianapolis v. Edmond, 531 U.S. 32, this Court held that a drug interdiction checkpoint violated the Fourth Amendment. Despite the illegal narcotics traffic that the Nation is struggling to stem, the Court explained, a "general interest in crime control" did not justify the stops. Id., at 43-44 (internal quotation marks omitted). The Court distinguished the sobriety checkpoints in Sitz on the ground that those checkpoints were designed to eliminate an "immediate, vehicle-bound threat to life and limb." 531 U.S., at 43. The use of bomb-detection dogs to check vehicles for explosives without doubt has a closer kinship to the sobriety checkpoints in Sitz than to the drug checkpoints in Edmond. As the Court observed in Edmond: "[T]he Fourth Amendment would almost certainly permit an appropriately tailored 425 roadblock set up to thwart an imminent terrorist attack. . . ." 531 U.S., at 44. Even if the Court were to change course and characterize a dog sniff as an independent Fourth Amendment search, see ante, p. 410 (SOUTER, J., dissenting), the immediate, present danger of explosives would likely justify a bomb sniff under the special needs doctrine. See, e. g., ante, at 417, n. 7 (SOUTER, J., dissenting); Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (permitting exceptions to the warrant and probable-cause requirements for a search when "special needs, beyond the normal need for law enforcement," make those requirements impracticable (quoting New Jersey v. T. L. O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in judgment))). * * * For the reasons stated, I would hold that the police violated Caballes' Fourth Amendment rights when, without cause to suspect wrongdoing, they conducted a dog sniff of his vehicle. I would therefore affirm the judgment of the Illinois Supreme Court.	Illinois State Police Trooper Daniel Gillette stopped Roy Caballes for driving 71 miles per hour in a zone with a posted 418 speed limit of 65 miles per hour Trooper Craig Graham of the Drug Interdiction Team heard on the radio that Trooper Gillette was making a traffic Although Gillette requested no aid, Graham decided to come to the scene to conduct a dog sniff Gillette informed Caballes that he was speeding and asked for the usual documents driver's license, car registration, and proof of insurance Caballes promptly provided the requested documents but refused to consent to a search of his vehicle After calling his dispatcher to check on the validity of Caballes' license and for outstanding warrants, Gillette returned to his vehicle to write Caballes a warning ticket Interrupted by a radio call on an unrelated matter, Gillette was still writing the ticket when Trooper Graham arrived with his drug-detection dog Graham walked the dog around the car, the dog alerted at Caballes' trunk, and, after opening the trunk, the troopers found marijuana The Supreme Court of Illinois held that the drug evidence should have been suppressed Adhering to its decision in the court employed a two-part test taken from to determine the overall reasonableness of the The court asked first "whether the officer's action was justified at its inception," and second "whether it was reasonably related in scope to the circumstances which justified the interference in the first place" ) "[I]t is undisputed," the court observed, "that the traffic stop was properly initiated"; thus, the dispositive inquiry trained on the "second part of the test," in which "[t]he State bears the burden of establishing that the conduct remained within the scope of the " 419 The court concluded that the State failed to offer sufficient justification for the canine sniff: "The police did not detect the odor of marijuana in the car or note any other evidence suggesting the presence of illegal drugs" Lacking "specific and articulable facts" supporting the canine sniff, (quoting ), the court ruled, "the police impermissibly broadened the scope of the traffic stop in this case into a drug investigation" [1] I would affirm the Illinois Supreme Court's judgment and hold that the drug sniff violated the Fourth Amendment In the Court upheld the stop and subsequent frisk of an individual based on an officer's observation of suspicious behavior and his reasonable belief that the suspect was armed See -28 In a -type investigatory stop, "the officer's action [must be] justified at its inception, and reasonably related in scope to the circumstances which justified the interference in the first place" In applying the Court has several times indicated that the limitation on "scope" is not confined to the duration of the seizure; it also encompasses the manner in which the seizure is conducted See, e g, (an officer's request that an individual identify himself "has an immediate relation to the purpose, rationale, and practical demands of a stop"); United (examining, under 420 both "the length and intrusiveness of the stop and detention"); ("[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop [and] the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion ") "A routine traffic stop," the Court has observed, "is a relatively brief encounter and `is more analogous to a so-called stop than to a formal arrest'" ; see also ante, at 415 (SOUTER, J, dissenting) (The government may not "take advantage of a suspect's immobility to search for evidence unrelated to the reason for the detention")[2] I would apply 's reasonable-relation test, as the Illinois Supreme Court did, to determine whether the canine sniff impermissibly expanded the scope of the initially valid seizure of Caballes It is hardly dispositive that the dog sniff in this case may not have lengthened the duration of the Cf ante, at 7 ("A seizure can become unlawful if it is prolonged beyond the time reasonably required to complete [the initial] mission") it merits repetition, instructs that any investigation must be "reasonably related in scope to the circumstances which justified the interference in the first place" 392 US, The unwarranted 421 and nonconsensual expansion of the seizure here from a routine traffic stop to a drug investigation broadened the scope of the investigation in a manner that, in my judgment, runs afoul of the Fourth Amendment[3] The Court rejects the Illinois Supreme Court's judgment and, implicitly, the application of to a traffic stop converted, by calling in a dog, to a drug search The Court so rules, holding that a dog sniff does not render a seizure that is reasonable in time unreasonable in scope Ante, at 8 Dog sniffs that detect only the possession of contraband may be employed without offense to the Fourth Amendment, the Court reasons, because they reveal no lawful activity and hence disturb no legitimate expectation of privacy Ante, at 8-9 In my view, the Court diminishes the Fourth Amendment's force by abandoning the second inquiry (was the police action "reasonably related in scope to the circumstances [justifiying] the [initial] interference") 392 US, A drug-detection dog is an intimidating animal Cf United States v Williams, 356 F3d 1268, (McKay, J, dissenting) ("drug dogs are not lap dogs") Injecting such an animal into a routine traffic stop changes the character of the encounter between the police and the motorist The stop becomes broader, more adversarial, and (in at least some cases) longer Caballes who, as far as Troopers Gillette and Graham knew, was guilty solely of driving six miles per hour over the speed limit was exposed to the embarrassment and intimidation of being investigated, on a public thoroughfare, for drugs Even if the drug sniff is not characterized as a Fourth Amendment "search," cf Indianapolis 422 v Edmond, 531 US 32, ; United States v 462 US 696, the sniff surely broadened the scope of the traffic-violation-related seizure The Court has never removed police action from Fourth Amendment control on the ground that the action is well calculated to apprehend the guilty See, e g, United States v Karo, 468 US 705, (Fourth Amendment warrant requirement applies to police monitoring of a beeper in a house even if "the facts [justify] believing that a crime is being or will be committed and that monitoring the beeper wherever it goes is likely to produce evidence of criminal activity"); see also Minnesota v Carter, 525 US 83, (GINSBURG, J, dissenting) ("Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty") Under today's decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population The Illinois Supreme Court, it seems to me, correctly apprehended the danger in allowing the police to search for contraband despite the absence of cause to suspect its presence Today's decision, in contrast, clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots Compare, e g, United States v Ludwig, 10 F3d 1523, with United States v Quinn, 815 F2d 153, and 462 U S, at 706- Nor would motorists have constitutional grounds for complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red signal to turn green 423 Today's decision also undermines this Court's situation-sensitive balancing of Fourth Amendment interests in other contexts For example, in Bond v United States, 529 US 334, the Court held that a bus passenger had an expectation of privacy in a bag placed in an overhead bin and that a police officer's physical manipulation of the bag constituted an illegal search If canine drug sniffs are entirely exempt from Fourth Amendment inspection, a sniff could substitute for an officer's request to a bus passenger for permission to search his bag, with this significant difference: The passenger would not have the option to say "No" The dog sniff in this case, it bears emphasis, was for drug detection only A dog sniff for explosives, involving security interests not presented here, would be an entirely different matter Detector dogs are ordinarily trained not as all-purpose sniffers, but for discrete purposes For example, they may be trained for narcotics detection or for explosives detection or for agricultural products detection See, e g, U S Customs & Border Protection, Canine Enforcement Training Center Training Program Course Descriptions, http://wwwcbpgov/xp/cgov/border_security/canines/training_programxml (all Internet materials as visited Dec 16, and available in Clerk of Court's case file) (describing Customs training courses in narcotics detection); Transportation Security Administration, Canine and Explosives Program, http://wwwtsagov/public/display?theme=32 (describing Transportation Security Administration's explosives detection canine program); U S Dept of Agriculture, Animal and Plant Health Inspection Service, USDA's Detector Dogs: Protecting American Agriculture (Oct 2001), available at http://wwwaphisusdagov/oa/pubs/detdogspdf (describing USDA Beagle Brigade detector dogs trained to detect prohibited fruits, plants, and meat); see also Jennings, Origins and History of Security and Detector Dogs, in Canine Sports Medicine and Surgery 16, 18-19 (describing narcotics-detector 424 dogs used by Border Patrol and Customs, and bomb detector dogs used by the Federal Aviation Administration and the Secret Service, but noting the possibility in some circumstances of cross training dogs for multiple tasks); S Chapman, Police Dogs in North America 64, 70-79 (describing narcotics- and explosives-detection dogs and noting the possibility of cross training) There is no indication in this case that the dog accompanying Trooper Graham was trained for anything other than drug detection See 207 Ill 2d, at 507, 802 N E 2d, at ("Trooper Graham arrived with his drug-detection dog "); Brief for Petitioner 3 ("Trooper Graham arrived with a drug-detection dog ") This Court has distinguished between the general interest in crime control and more immediate threats to public safety In Michigan Dept of State Police v Sitz, 496 US 444 this Court upheld the use of a sobriety traffic checkpoint Balancing the State's interest in preventing drunk driving, the extent to which that could be accomplished through the checkpoint program, and the degree of intrusion the stops involved, the Court determined that the State's checkpoint program was consistent with the Fourth Amendment Ten years after Sitz, in Indianapolis v Edmond, 531 US 32, this Court held that a drug interdiction checkpoint violated the Fourth Amendment Despite the illegal narcotics traffic that the Nation is struggling to stem, the Court explained, a "general interest in crime control" did not justify the stops The Court distinguished the sobriety checkpoints in Sitz on the ground that those checkpoints were designed to eliminate an "immediate, vehicle-bound threat to life and limb" 531 US, at 43 The use of bomb-detection dogs to check vehicles for explosives without doubt has a closer kinship to the sobriety checkpoints in Sitz than to the drug checkpoints in Edmond As the Court observed in Edmond: "[T]he Fourth Amendment would almost certainly permit an appropriately tailored 425 roadblock set up to thwart an imminent terrorist attack " 531 US, at 44 Even if the Court were to change course and characterize a dog sniff as an independent Fourth Amendment search, see ante, p 410 (SOUTER, J, dissenting), the immediate, present danger of explosives would likely justify a bomb sniff under the special needs doctrine See, e g, ante, at 417, n 7 (SOUTER, J, dissenting); Griffin v Wisconsin, 483 US 868, (Blackmun, J, concurring in judgment))) * * * For the reasons stated, I would hold that the police violated Caballes' Fourth Amendment rights when, without cause to suspect wrongdoing, they conducted a dog sniff of his vehicle I would therefore affirm the judgment of the Illinois Supreme Court
Justice Ginsburg	majority	false	Sole v. Wyner	2007-06-04T00:00:00	null	https://www.courtlistener.com/opinion/145724/sole-v-wyner/	https://www.courtlistener.com/api/rest/v3/clusters/145724/	2,007	2006-051	1	9	0	For private actions brought under 42 U.S.C. § 1983 and other specified measures designed to secure civil rights, Congress established an exception to the "American Rule" that "the prevailing litigant is ordinarily not entitled to collect [counsel fees] from the loser." Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975). That exception, codified in 42 U.S.C. § 1988(b), authorizes federal district courts, in their discretion, to "allow the prevailing party . . . a reasonable attorney's fee as part of the costs." This case presents a sole question: Does a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, qualify as a "prevailing party" within the compass of § 1988(b)? Viewing the two stages of the litigation as discrete episodes, plaintiffs below, respondents here, maintain that they prevailed at the preliminary injunction stage, 2192 and therefore qualify for a fee award for their counsels' efforts to obtain that interim relief. Defendants below, petitioners here, regard the case as a unit; they urge that a preliminary injunction holds no sway once fuller consideration yields rejection of the provisional order's legal or factual underpinnings. We agree with the latter position and hold that a final decision on the merits denying permanent injunctive relief ordinarily determines who prevails in the action for purposes of § 1988(b). A plaintiff who achieves a transient victory at the threshold of an action can gain no award under that fee-shifting provision if, at the end of the litigation, her initial success is undone and she leaves the courthouse emptyhanded. I In mid-January 2003, plaintiff-respondent T.A. Wyner notified the Florida Department of Environmental Protection (DEP) of her intention to create on Valentine's Day, February 14, 2003, within John D. MacArthur Beach State Park, an antiwar artwork. The work would consist of nude individuals assembled into a peace sign. By letter dated February 6, DEP informed Wyner that her peace sign display would be lawful only if the participants complied with the "Bathing Suit Rule" set out in Florida Administrative Code § 62D-2.014(7)(b) (2005). That rule required patrons, in all areas of Florida's state parks, to wear, at a minimum, a thong and, if female, a bikini top.[1] To safeguard the Valentine's Day display, and future expressive activities of the same order, against police interference, Wyner filed suit in the United States District Court for the Southern District of Florida on February 12, 2003. She invoked the First Amendment's protection of expressive conduct, and named as defendants the Secretary of DEP and the Manager of MacArthur Beach Park.[2] Her complaint requested immediate injunctive relief against interference with the peace sign display, App. 18, and permanent injunctive relief against interference with "future expressive activities that may include non-erotic displays of nude human bodies," id., at 19. An exhibit attached to the complaint set out a May 12, 1995 Stipulation for Settlement with DEP. Id., at 22-23. That settlement had facilitated a February 19, 1996 play Wyner coordinated at MacArthur Beach, a production involving nude performers. A term of the settlement provided that Wyner would "arrange for placement of a bolt of cloth in a semi-circle around the area where the play [would] be performed," id., at 23, so that beachgoers who did not wish to see the play would be shielded from the nude performers. The day after the complaint was filed, on February 13, 2003, the District Court heard Wyner's emergency motion for a preliminary injunction. Although disconcerted by the hurried character of the proceeding, see id., at 37, 93, 95, the court granted the preliminary injunction. "The choice," the court explained, "need not be either/or." Wyner v. Struhs, 254 F. Supp. 2d 1297, 1303 (S.D.Fla.2003). Pointing to the May 1995 settlement laying out "agreed-upon manner restrictions," the 2193 court determined that "[p]laintiff['s] desired expression and the interests of the state may both be satisfied simultaneously." Ibid. In this regard, the court had inquired of DEP's counsel at the preliminary injunction hearing: "Why wouldn't the curtain or screen solve the problem of somebody [who] doesn't want to see . . . nudity? Seems like that would solve [the] problem, wouldn't it?" App. 86. Counsel for DEP responded: "That's an option. I don't think necessarily [defendants] would be opposed to that . . . ." Ibid.; see id., at 74 (testimony of Chief of Operations for Florida Park Service at the preliminary injunction hearing that the Service's counsel, on prior occasions, had advised: "[I]f they go behind the screen and they liv[e] up to the agreement then it's okay. If they don't go behind the screen and they don't live up to the agreement then it's not okay."). The peace symbol display took place at MacArthur Beach the next day. A screen was put up, apparently by the State, as the District Court anticipated. See id., at 108. See also id., at 94 (District Judge's statement at the conclusion of the preliminary injunction hearing: "I want to make it clear . . . that the [preliminary] injunction doesn't preclude the department, if it chooses, from using . . . some sort of barrier.. . ."). But the display was set up outside the barrier, and participants, once disassembled from the peace symbol formation, went into the water in the nude. See id., at 108; Deposition of T.A. Wyner in Civ. Action No. 03-80103 (SD Fla., Nov. 14, 2003), pp. 99-100. Thereafter, Wyner pursued her demand for a permanent injunction. Her counsel represented that on February 14, 2004, Wyner intended to put on another production at MacArthur Beach, again involving nudity. See App. 107. After discovery, both sides moved for summary judgment. At the hearing on the motions, held January 21, 2004, the District Court asked Wyner's counsel about the screen put up around the preceding year's peace symbol display. Counsel acknowledged that the participants in that display ignored the barrier and set up in front of the screen. Id., at 108. A week later, having unsuccessfully urged the parties to resolve the case as "[they] did before in [the 1995] settlement," id., at 143, the court denied plaintiff's motion for summary judgment and granted defendants' motion for summary final judgment. The deliberate failure of Wyner and her coparticipants to remain behind the screen at the 2003 Valentine's Day display, the court concluded, demonstrated that the Bathing Suit Rule's prohibition of nudity was "no greater than is essential . . . to protect the experiences of the visiting public." Wyner v. Struhs, Case No. 03-80103-CIV (SD Fla., Jan. 28, 2004) (Summary Judgment Order), App. to Pet. for Cert. 42a. While Wyner ultimately failed to prevail on the merits, the court added, she did obtain a preliminary injunction prohibiting police interference with the Valentine's Day 2003 temporary art installation, id., at 45a, and therefore qualified as a prevailing party to that extent, see Wyner v. Struhs, Case No. 03-80103-CIV (SD Fla., Aug. 16, 2004) (Omnibus Order), App. to Brief in Opposition 5a-13a. The preliminary injunction could not be revisited at the second stage of the litigation, the court noted, for it had "expired on its own terms." Id., at 4a. So reasoning, the court awarded plaintiff counsel fees covering the first phase of the litigation. The Florida officials appealed, challenging both the order granting a preliminary injunction and the award of counsel fees. Wyner, however, pursued no appeal from the final order denying a permanent injunction. The Court of Appeals for the 2194 Eleventh Circuit held first that defendants' challenges to the preliminary injunction were moot because they addressed "a finite event that occurred and ended on a specific, past date." Wyner v. Struhs, 179 Fed.Appx. 566, 567, n. 1 (2006) (per curiam). The court then affirmed the counsel fees award, reasoning that plaintiff had gained through the preliminary injunction "the primary relief [she] sought," i.e., the preliminary order allowed her to present the peace symbol display unimpeded by adverse state action. Id., at 569. Wyner would not have qualified for an award of counsel fees, the court recognized, had the preliminary injunction rested on a mistake of law. Id., at 568, 569-570. But it was "new developments," the court said, id., at 569, not any legal error, that accounted for her failure "to achieve actual success on the merits at the permanent injunction stage," id., at 569, n. 7. Plaintiff and others participating in the display, as Wyner's counsel admitted, did not stay behind the barrier at the peace symbol display, id., at 569; further, the court noted, "a fair reading of the record show[ed] that [p]laintif[f] had no intention of remaining behind a [barrier] during future nude expressive works," ibid. The likelihood of success shown at the preliminary injunction stage, the court explained, id., at 569, n. 7, had been overtaken by the subsequent "demonstrat[ion] that the less restrictive alternative," i.e., a cloth screen or other barrier, "was not sufficient to protect the government's interest," id., at 569. But that demonstration, the court concluded, did not bar an award of fees, because the "new facts" emerged only at the summary judgment stage. Ibid. We granted certiorari, Struhs v. Wyner, 549 U.S. ___, 127 S. Ct. 1055, 166 L. Ed. 2d 797 (2007), and now reverse. II "The touchstone of the prevailing party inquiry," this Court has stated, is "the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute." Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782, 792-793, 109 S. Ct. 1486, 103 L. Ed. 2d 866 (1989). See Hewitt v. Helms, 482 U.S. 755, 760, 107 S. Ct. 2672, 96 L. Ed. 2d 654 (1987) (plaintiff must "receive at least some relief on the merits of his claim before he can be said to prevail"); Maher v. Gagne, 448 U.S. 122, 129, 100 S. Ct. 2570, 65 L. Ed. 2d 653 (1980) (upholding fees where plaintiffs settled and obtained a consent decree); cf. Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 605, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001) (precedent "counsel[s] against holding that the term `prevailing party' authorizes an award of attorney's fees without a corresponding alteration in the legal relationship of the parties").[3]2195 The petitioning state officials maintain that plaintiff here does not satisfy that standard for, as a consequence of the final summary judgment, "[t]he state law whose constitutionality [Wyner] attacked [i.e., the Bathing Suit Rule,] remains valid and enforceable today." Brief for Petitioners 3. The District Court left no doubt on that score, the state officials emphasize; ordering final judgment for defendants, the court expressed, in the bottom line of its opinion, its "hope" that plaintiff would continue to use the park, "albeit not in the nude." Summary Judgment Order, App. to Pet. for Cert. 46a. Wyner, on the other hand, urges that despite the denial of a permanent injunction, she got precisely what she wanted when she commenced this litigation: permission to create the nude peace symbol without state interference. That fleeting success, however, did not establish that she prevailed on the gravamen of her plea for injunctive relief, i.e., her charge that the state officials had denied her and other participants in the peace symbol display "the right to engage in constitutionally protected expressive activities." App. 18. Prevailing party status, we hold, does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.[4] At the preliminary injunction stage, the court is called upon to assess the probability of the plaintiff's ultimate success on the merits. See, e.g., Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666, 124 S. Ct. 2783, 159 L. Ed. 2d 690 (2004); Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 95 S. Ct. 2561, 45 L. Ed. 2d 648 (1975). The foundation for that assessment will be more or less secure depending on the thoroughness of the exploration undertaken by the parties and the court. In some cases, the proceedings prior to a grant of temporary relief are searching; in others, little time and resources are spent on the threshold contest. In this case, the preliminary injunction hearing was necessarily hasty and abbreviated. Held one day after the complaint was filed and one day before the event, the timing afforded the state officer defendants little opportunity to oppose Wyner's emergency motion. Counsel for the state defendants appeared only by telephone. App. 36. The emergency proceeding allowed no time for discovery, nor for adequate review of documents or preparation and presentation of witnesses. See id., at 38-39. The provisional relief immediately granted expired before appellate review could be gained, and the court's threshold ruling would have no preclusive effect in the continuing litigation. Both the District Court and the Court of Appeals considered the preliminary injunction a moot issue, not fit for reexamination or review, once the display took place. See Summary Judgment Order, App. to Pet. for Cert. 34a; Omnibus Order, App. to Brief in Opposition 3a-4a; 179 Fed. Appx., at 567, n. 1; cf. Lewis v. Continental Bank Corp., 494 U.S. 472, 477-479, 110 S. Ct. 1249, 108 L. Ed. 2d 400 (1990). In short, the provisional relief granted terminated only the parties' opening engagement. Its tentative character, in view of the continuation of the litigation to definitively resolve the controversy, would have made a fee request at the initial stage premature. Of controlling importance to our decision, the eventual ruling on the merits for defendants, after both sides considered the case fit for final adjudication, superseded 2196 the preliminary ruling. Wyner's temporary success rested on a premise the District Court ultimately rejected. That court granted preliminary relief on the understanding that a curtain or screen would adequately serve Florida's interest in shielding the public from nudity that recreational beach users did not wish to see. See supra, at 2192-2193; 254 F.Supp.2d, at 1303 (noting that the parties had previously agreed upon "a number of . . . manner restrictions that are far less restrictive than the total ban on nudity"). At the summary judgment stage, with the benefit of a fuller record, the District Court recognized that its initial assessment was incorrect. Participants in the peace symbol display were in fact unwilling to stay behind a screen that separated them from other park visitors. See Summary Judgment Order, App. to Pet. for Cert. 42a. See also App. 108 (acknowledgment by Wyner's counsel that participants in the February 14, 2003 protest "in effec[t] ignored the screen"). In light of the demonstrated inadequacy of the screen to contain the nude display, the District Court determined that enforcement of the Bathing Suit Rule was necessary to "preserv[e] park aesthetics" and "protect the experiences of the visiting public." Summary Judgment Order, App. to Pet. for Cert. 41a, 42a. Wyner contends that the preliminary injunction was not undermined by the subsequent adjudication on the merits because the decision to grant preliminary relief was an "as applied" ruling. In developing this argument, she asserts that the officials engaged in impermissible content-based administration of the Bathing Suit Rule. But the District Court assumed, "for the purposes of [its initial] order," the content neutrality of the state officials' conduct. See 254 F.Supp.2d, at 1302. See also 179 Fed. Appx., at 568, and n. 4 (reiterating that, "for the sake of the preliminary injunction order," the District Court "assumed content neutrality"). That specification is controlling. See Fed. Rule Civ. Proc. 65(d) (requiring every injunction to "set forth the reasons for its issuance" and "be specific in terms"). See also Schmidt v. Lessard, 414 U.S. 473, 476, 94 S. Ct. 713, 38 L. Ed. 2d 661 (1974) (per curiam) (Rule 65(d) "was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders."). The final decision in Wyner's case rejected the same claim she advanced in her preliminary injunction motion: that the state law banning nudity in parks was unconstitutional as applied to expressive, nonerotic nudity. At the end of the fray, Florida's Bathing Suit Rule remained intact, and Wyner had gained no enduring "chang[e][in] the legal relationship" between herself and the state officials she sued. See Texas State Teachers Assn., 489 U.S., at 792, 109 S. Ct. 1486. III Wyner is not a prevailing party, we conclude, for her initial victory was ephemeral. A plaintiff who "secur[es] a preliminary injunction, then loses on the merits as the case plays out and judgment is entered against [her]," has "[won] a battle but los[t] the war." Watson v. County of Riverside, 300 F.3d 1092, 1096 (C.A.9 2002). We are presented with, and therefore decide, no broader issue in this case. We express no view on whether, in the absence of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction may sometimes warrant an award of counsel fees. We decide only that a plaintiff who gains a preliminary injunction does not qualify for an award of counsel fees under § 1988(b) if the merits of the case are ultimately decided against her. 2197 * * * For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.	For private actions brought under and other specified measures designed to secure civil rights, Congress established an exception to the "American Rule" that "the prevailing litigant is ordinarily not entitled to collect [counsel fees] from the loser." Alyeska Pipeline Service That exception, codified in (b), authorizes federal district courts, in their discretion, to "allow the prevailing party a reasonable attorney's fee as part of the costs." This case presents a sole question: Does a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, qualify as a "prevailing party" within the compass of 1988(b)? Viewing the two stages of the litigation as discrete episodes, plaintiffs below, respondents here, maintain that they prevailed at the preliminary injunction stage, 2192 and therefore qualify for a fee award for their counsels' efforts to obtain that interim relief. Defendants below, petitioners here, regard the case as a unit; they urge that a preliminary injunction holds no sway once fuller consideration yields rejection of the provisional order's legal or factual underpinnings. We agree with the latter position and hold that a final decision on the merits denying permanent injunctive relief ordinarily determines who prevails in the action for purposes of 1988(b). A plaintiff who achieves a transient victory at the threshold of an action can gain no award under that fee-shifting provision if, at the end of the litigation, her initial success is undone and she leaves the courthouse emptyhanded. I In mid-January 2003, plaintiff-respondent T.A. Wyner notified the Florida Department of Environmental Protection (DEP) of her intention to create on Valentine's Day, February 14, 2003, within John D. MacArthur Beach State Park, an antiwar artwork. The work would consist of nude individuals assembled into a peace sign. By letter dated February 6, DEP informed Wyner that her peace sign display would be lawful only if the participants complied with the "Bathing Suit Rule" set out in Florida Administrative Code 62D-2.014(7)(b) (2005). That rule required patrons, in all areas of Florida's state parks, to wear, at a minimum, a thong and, if female, a bikini top.[1] To safeguard the Valentine's Day display, and future expressive activities of the same order, against police interference, Wyner filed suit in the United States District Court for the Southern District of Florida on February 12, 2003. She invoked the First Amendment's protection of expressive conduct, and named as defendants the Secretary of DEP and the Manager of MacArthur Beach Park.[2] Her complaint requested immediate injunctive relief against interference with the peace sign display, App. 18, and permanent injunctive relief against interference with "future expressive activities that may include non-erotic displays of nude human bodies," An exhibit attached to the complaint set out a May 12, 1995 Stipulation for Settlement with DEP. That settlement had facilitated a February 19, 1996 play Wyner coordinated at MacArthur Beach, a production involving nude performers. A term of the settlement provided that Wyner would "arrange for placement of a bolt of cloth in a semi-circle around the area where the play [would] be performed," so that beachgoers who did not wish to see the play would be shielded from the nude performers. The day after the complaint was filed, on February 13, 2003, the District Court heard Wyner's emergency motion for a preliminary injunction. Although disconcerted by the hurried character of the proceeding, see the court granted the preliminary injunction. "The choice," the court explained, "need not be either/or." (S.D.Fla.2003). Pointing to the May 1995 settlement laying out "agreed-upon manner restrictions," the 2193 court determined that "[p]laintiff['s] desired expression and the interests of the state may both be satisfied simultaneously." In this regard, the court had inquired of DEP's counsel at the preliminary injunction hearing: "Why wouldn't the curtain or screen solve the problem of somebody [who] doesn't want to see nudity? ms like that would solve [the] problem, wouldn't it?" App. 86. Counsel for DEP responded: "That's an option. I don't think necessarily [defendants] would be opposed to that" ; see (testimony of Chief of Operations for Florida Park Service at the preliminary injunction hearing that the Service's counsel, on prior occasions, had advised: "[I]f they go behind the screen and they liv[e] up to the agreement then it's okay. If they don't go behind the screen and they don't live up to the agreement then it's not okay."). The peace symbol display took place at MacArthur Beach the next day. A screen was put up, apparently by the State, as the District Court anticipated. But the display was set up outside the barrier, and participants, once disassembled from the peace symbol formation, went into the water in the nude. ; Deposition of T.A. Wyner in Civ. Action No. 03-80103 (SD Fla., Nov. 14, 2003), pp. 99-100. Thereafter, Wyner pursued her demand for a permanent injunction. Her counsel represented that on February 14, Wyner intended to put on another production at MacArthur Beach, again involving nudity. App. 107. After discovery, both sides moved for summary judgment. At the hearing on the motions, held January 21, the District Court asked Wyner's counsel about the screen put up around the preceding year's peace symbol display. Counsel acknowledged that the participants in that display ignored the barrier and set up in front of the screen. A week later, having unsuccessfully urged the parties to resolve the case as "[they] did before in [the 1995] settlement," the court denied plaintiff's motion for summary judgment and granted defendants' motion for summary final judgment. The deliberate failure of Wyner and her coparticipants to remain behind the screen at the 2003 Valentine's Day display, the court concluded, demonstrated that the Bathing Suit Rule's prohibition of nudity was "no greater than is essential to protect the experiences of the visiting public." Case No. 03-80103-CIV (Summary Judgment Order), App. to Pet. for Cert. 42a. While Wyner ultimately failed to prevail on the merits, the court added, she did obtain a preliminary injunction prohibiting police interference with the Valentine's Day 2003 temporary art installation, at 45a, and therefore qualified as a prevailing party to that extent, see Case No. 03-80103-CIV (Omnibus Order), App. to Brief in Opposition 5a-13a. The preliminary injunction could not be revisited at the second stage of the litigation, the court noted, for it had "expired on its own terms." at 4a. So reasoning, the court awarded plaintiff counsel fees covering the first phase of the litigation. The Florida officials appealed, challenging both the order granting a preliminary injunction and the award of counsel fees. Wyner, however, pursued no appeal from the final order denying a permanent injunction. The Court of Appeals for the 2194 Eleventh Circuit held first that defendants' challenges to the preliminary injunction were moot because they addressed "a finite event that occurred and ended on a specific, past date." The court then affirmed the counsel fees award, reasoning that plaintiff had gained through the preliminary injunction "the primary relief [she] sought," i.e., the preliminary order allowed her to present the peace symbol display unimpeded by adverse state action. Wyner would not have qualified for an award of counsel fees, the court recognized, had the preliminary injunction rested on a mistake of law. But it was "new developments," the court said, not any legal error, that accounted for her failure "to achieve actual success on the merits at the permanent injunction stage," n. 7. Plaintiff and others participating in the display, as Wyner's counsel admitted, did not stay behind the barrier at the peace symbol display, ; further, the court noted, "a fair reading of the record show[ed] that [p]laintif[f] had no intention of remaining behind a [barrier] during future nude expressive works," The likelihood of success shown at the preliminary injunction stage, the court explained, n. 7, had been overtaken by the subsequent "demonstrat[ion] that the less restrictive alternative," i.e., a cloth screen or other barrier, "was not sufficient to protect the government's interest," But that demonstration, the court concluded, did not bar an award of fees, because the "new facts" emerged only at the summary judgment stage. We granted certiorari, and now reverse. II "The touchstone of the prevailing party inquiry," this Court has stated, is "the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute." Texas State Teachers ; ; cf. Buckhannon Board & Care Home,[3]2195 The petitioning state officials maintain that plaintiff here does not satisfy that standard for, as a consequence of the final summary judgment, "[t]he state law whose constitutionality [Wyner] attacked [i.e., the Bathing Suit Rule,] remains valid and enforceable today." Brief for Petitioners 3. The District Court left no doubt on that score, the state officials emphasize; ordering final judgment for defendants, the court expressed, in the bottom line of its opinion, its "hope" that plaintiff would continue to use the park, "albeit not in the nude." Summary Judgment Order, App. to Pet. for Cert. 46a. Wyner, on the other hand, urges that despite the denial of a permanent injunction, she got precisely what she wanted when she commenced this litigation: permission to create the nude peace symbol without state interference. That fleeting success, however, did not establish that she prevailed on the gravamen of her plea for injunctive relief, i.e., her charge that the state officials had denied her and other participants in the peace symbol display "the right to engage in constitutionally protected expressive activities." App. 18. Prevailing party status, we hold, does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.[4] At the preliminary injunction stage, the court is called upon to assess the probability of the plaintiff's ultimate success on the merits. e.g., ; The foundation for that assessment will be more or less secure depending on the thoroughness of the exploration undertaken by the parties and the court. In some cases, the proceedings prior to a grant of temporary relief are searching; in others, little time and resources are spent on the threshold contest. In this case, the preliminary injunction hearing was necessarily hasty and abbreviated. Held one day after the complaint was filed and one day before the event, the timing afforded the state officer defendants little opportunity to oppose Wyner's emergency motion. Counsel for the state defendants appeared only by telephone. App. 36. The emergency proceeding allowed no time for discovery, nor for adequate review of documents or preparation and presentation of witnesses. The provisional relief immediately granted expired before appellate review could be gained, and the court's threshold ruling would have no preclusive effect in the continuing litigation. Both the District Court and the Court of Appeals considered the preliminary injunction a moot issue, not fit for reexamination or review, once the display took place. Summary Judgment Order, App. to Pet. for Cert. 34a; Omnibus Order, App. to Brief in Opposition 3a-4a; 179 Fed. Appx., at ; cf. In short, the provisional relief granted terminated only the parties' opening engagement. Its tentative character, in view of the continuation of the litigation to definitively resolve the controversy, would have made a fee request at the initial stage premature. Of controlling importance to our decision, the eventual ruling on the merits for defendants, after both sides considered the case fit for final adjudication, superseded 2196 the preliminary ruling. Wyner's temporary success rested on a premise the District Court ultimately rejected. That court granted preliminary relief on the understanding that a curtain or screen would adequately serve Florida's interest in shielding the public from nudity that recreational beach users did not wish to see. ; 254 F.Supp.2d, at At the summary judgment stage, with the benefit of a fuller record, the District Court recognized that its initial assessment was incorrect. Participants in the peace symbol display were in fact unwilling to stay behind a screen that separated them from other park visitors. Summary Judgment Order, App. to Pet. for Cert. 42a. App. 108 (acknowledgment by Wyner's counsel that participants in the February 14, 2003 protest "in effec[t] ignored the screen"). In light of the demonstrated inadequacy of the screen to contain the nude display, the District Court determined that enforcement of the Bathing Suit Rule was necessary to "preserv[e] park aesthetics" and "protect the experiences of the visiting public." Summary Judgment Order, App. to Pet. for Cert. 41a, 42a. Wyner contends that the preliminary injunction was not undermined by the subsequent adjudication on the merits because the decision to grant preliminary relief was an "as applied" ruling. In developing this argument, she asserts that the officials engaged in impermissible content-based administration of the Bathing Suit Rule. But the District Court assumed, "for the purposes of [its initial] order," the content neutrality of the state officials' conduct. and n. 4 (reiterating that, "for the sake of the preliminary injunction order," the District Court "assumed content neutrality"). That specification is controlling. Fed. Rule Civ. Proc. 65(d) (requiring every injunction to "set forth the reasons for its issuance" and "be specific in terms"). (Rule 65(d) "was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders."). The final decision in Wyner's case rejected the same claim she advanced in her preliminary injunction motion: that the state law banning nudity in parks was unconstitutional as applied to expressive, nonerotic nudity. At the end of the fray, Florida's Bathing Suit Rule remained intact, and Wyner had gained no enduring "chang[e][in] the legal relationship" between herself and the state officials she sued. Texas State Teachers III Wyner is not a prevailing party, we conclude, for her initial victory was ephemeral. A plaintiff who "secur[es] a preliminary injunction, then loses on the merits as the case plays out and judgment is entered against [her]," has "[won] a battle but los[t] the war." We are presented with, and therefore decide, no broader issue in this case. We express no view on whether, in the absence of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction may sometimes warrant an award of counsel fees. We decide only that a plaintiff who gains a preliminary injunction does not qualify for an award of counsel fees under 1988(b) if the merits of the case are ultimately decided against her. 2197 * * * For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.
per_curiam	per_curiam	true	United States v. Hopkins	1976-06-24T00:00:00	null	https://www.courtlistener.com/opinion/109507/united-states-v-hopkins/	https://www.courtlistener.com/api/rest/v3/clusters/109507/	1,976	1975-148	1	8	1	This case involves a suit by respondent's decedent,[1] a civilian employee of the Army and Air Force Exchange Service (AAFES), claiming wrongful discharge from his employment. He asserted jurisdiction under the Tucker Act, 28 U.S. C. § 1491, which provides for suits in the Court of Claims upon any express or implied contract with such military exchanges. The Government moved to dismiss for lack of jurisdiction. The Court of Claims concluded that it had jurisdiction because respondent's decedent's relationship with the AAFES was based upon an implied contract of employment and such a contract is covered, since 1970, by the Tucker Act. 206 Ct. Cl. 303, 513 F.2d 1360. We granted certiorari to resolve a conflict between this decision and a contrary holding of the United States Court of Appeals for the Fifth Circuit in Young v. United States, 498 F.2d 1211 (1974). 423 U.S. 821. The status of claims against military post exchanges has been in some doubt since the decision of this Court in Standard Oil Co. v. Johnson, 316 U.S. 481 (1942). There the Court, in striking down a state tax on the distribution of motor fuel by Army post exchanges, held that such exchanges "are arms of the Government deemed by it essential for the performance of governmental functions. They are integral parts of the War Department. . . ." However, the Court also observed that the "Government assumes none of the financial obligations of the exchange." Id., at 485. 125 The latter observation was the basis of a series of decisions by the Court of Claims to the effect that it lacked jurisdiction over claims concerning the activities of non-appropriated fund instrumentalities.[2] That court held that it could not entertain suits based on a contract for services with such an entity, because, since the Government had assumed no liability for the entity's financial obligations it could not be said to have consented to a suit designed to vindicate such obligations. Therefore, no "claim against the United States" existed under the Tucker Act which is the source of Court of Claims jurisdiction, Borden v. United States, 126 Ct. Cl. 902, 116 F. Supp. 873 (1953); Pulaski Cab Co. v. United States, 141 Ct. Cl. 160, 157 F. Supp. 955 (1958); Kyer v. United States, 177 Ct. Cl. 747, 369 F.2d 714 (1966), cert. denied, 387 U.S. 929 (1967). The Court of Claims, while denying jurisdiction, recognized the harsh consequences of this result since it could leave claimants against the exchanges with no forum in which to seek relief. However, the court recognized that "it is up to Congress to remedy this apparent harsh result . . . . [T]he courts should refrain from legislating by judicial fiat." Keetz v. United States, 168 Ct. Cl. 205, 207 (1964). In 1970 Congress amended the Tucker Act and provided: "For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service . . . shall be considered an express or implied contract with the United States." Pub. L. 91-350, 84 Stat. 449. 126 The purpose of this amendment, as the reports of both Houses made clear, was to afford contractors a federal forum in which to sue nonappropriated fund instrumentalities by doing away with the inequitable "loophole" in the Tucker Act. S. Rep. No. 91-268, p. 2 (1969); H. R. Rep. No. 91-933, p. 2 (1970). Borden, supra; Pulaski, supra; Keetz, supra; and Kyer, supra, were cited as examples of the "harsh result" which the amendment would correct. The purpose of the bill was clearly to provide a remedy to "contractors" with non-appropriated fund instrumentalities, e. g., S. Rep. No. 91-268, pp. 4-5, and there is nothing in the legislative history to indicate, as the Government contends, that "contractors" did not include anyone who had formed a contractual employment relationship. Since the statute applies, by its terms, to "any express or implied contract" we hold that it is applicable to employment contracts as well as those for goods or other services. The fact that Congress has dealt specifically with exchange employees when it wanted to bring them within or leave them without the provisions of a law dealing with federal employees generally (e. g., 5 U.S. C. § 8171 (b)) is not of controlling weight here. This statute deals with those who have a contractual relationship with military exchanges rather than with different classes of federal employees. If employees of military exchanges are within its general language, they are not removed from its effect by congressional practices in enacting other kinds of statutes. The Government alternatively contends that AAFES employees do not have a contractual relationship with their employer, and that like orthodox federal employees they serve by "appointment" to a particular position. While there is some ambiguity in the opinion of the Court of Claims, that court apparently agreed that plaintiff 127 and others like him did have a contractual employment relationship with the AAFES. We think it would be both unnecessary and unwise for us to decide the question at this stage of the case, and we think that the Court of Claims gave insufficient attention to applicable administrative regulations when it undertook to decide the question. The exchange services are created and administered pursuant to the general authority granted the Secretary of the Army and the Secretary of the Air Force by 10 U.S. C. §§ 3012 and 8012. The nonappropriated-fund status of the exchanges places them in a position whereby the Federal Government, absent special legislation, does not assume the obligations of those exchanges in the manner that contracts entered into by appropriated fund agencies are assumed. Standard Oil Co. v. Johnson, 316 U. S., at 485. The nonappropriated-fund status of the exchanges, however, does not alter the fact that the Secretaries of the Army and the Air Force may engage employees by "appointment," in the same manner as other personnel hired by the Secretaries may be employed. See Standard Oil Co. v. Johnson, supra; Crenshaw v. United States, 134 U.S. 99 (1890); Butler v. Pennsylvania, 10 How. 402 (1851). The regulations governing the AAFES, state that ordinary employees are deemed employees of an instrumentality of the United States, and hold their positions by appointment. AR 60-21/AFR 147-15, c. 1, § I, ¶ 1-7; c. 2, § I (Nov. 12, 1974).[3] There is congressional recognition 128 of the power of the Secretaries to employ exchange employees by appointment. The House and Senate Reports on Pub. L. 91-350 explicitly recognized that employees of nonappropriated-fund activities, when performing their official duties, are employees of the United States. S. Rep. No. 91-268, supra, at 2; H. R. Rep. No. 91-933, supra, at 2. Further, Congress has specifically granted exchange employees certain rights afforded only appointed employees, and, more important, has specifically excluded them from the coverage of certain statutes granting rights to appointed federal employees. See statutes cited in AR 60-21/AFR 147-15, c. 1, § I, ¶ 1-8. Of particular import is their exclusion, through the operation of 5 U.S. C. § 2105 (c), from the provisions of the Back Pay Act, 5 U.S. C. § 5596. The Back Pay Act is the means by which appointed employees subjected to unjustified personnel action are given a cause of action against the United States. The Act is made necessary by the fact that, absent specific command of statute or authorized regulation, an appointed employee subjected to unwarranted personnel action does not have a cause of action against the United States. Keim v. United States, 177 U.S. 290, 293-296 (1900); Sampson v. Murray, 415 U.S. 61, 69-70 (1974); United States v. Testan, 424 U.S. 392, 405-407 (1976). Since the Act deals only with appointees, the specific exclusion of AAFES employees from the coverage of the Act would seem to indicate a congressional recognition that they may be appointed, but that appointed AAFES employees should not be allowed to sue under the Act. This is not to say that an exchange may never employ a person pursuant to a contract of employment. The Secretaries have provided, by separate regulation, for a process under which a person may be employed by contract. AR 60-20/AFR 147-14, c. 4, §§ II and III 129 (Mar. 21, 1974). Such employment is subject to different procedures for negotiation, approval, and administrative remedies from those applicable to employment under AR 60-21/AFR 147-15. The regulation governing contracts defines "service contract" as including contracts both for services performed off a military installation and "direct services such as janitorial and window cleaning service." AR 60-20/AFR 147-14, App. A, ¶ A-6e. Under the regulation in effect at the time of plaintiff's discharge, it was specifically provided that exchanges "will not enter into [a service contract] with military personnel on active duty, civil service employees, or exchange employees." AR 60-20/AFR 147-14, § XIX, ¶ 88b (Apr. 14, 1965) (emphasis added). The regulation thus clearly distinguished between employment pursuant to appointment and employment pursuant to contract, a distinction that existed prior to plaintiff's hiring and continues today in the use of separate regulations for "contracting" and "appointment." When Congress enacted Pub. L. 91-350, making contracts entered into by the post exchanges cognizable in the Court of Claims, it did not change in any way the other provisions of the United States Code dealing with exchange employees, nor did it purport to require that the exchanges employ all persons pursuant to contract. The Court of Claims, in reaching its conclusion that plaintiff held his position by virtue of an express or implied contract assumed that once it was determined he was not an appointed federal employee this result followed as a matter of course. It concluded that in such event his employment status was governed by a series of cases from the private sector of the economy holding that the typical employee-employer relationship was contractual in nature. While we do not question the relevance of these cases by way of analogy should plaintiff 130 be determined not to have been an appointee we hold that the Court of Claims erred in its threshold determination that AAFES employees could never serve by appointment. Rather, the question depends upon an analysis of the statutes and regulations previously described in light of whatever evidence is adduced on remand as to plaintiff's particular status in this case. It is thus apparent that the question of whether plaintiff was employed by virtue of a contract or by appointment is not susceptible of determination at this time. Rather, the issue is one which must receive additional consideration from the Court of Claims after development of a fuller record. Respondent in her brief in this Court advanced a second theory upon which the jurisdiction of the Court of Claims in this case could be sustained. She urged that plaintiff's discharge in violation of executive regulations constituted a claim enforceable under the Tucker Act, and that his discharge without due process constituted a claim founded on the Constitution and therefore enforceable under the Tucker Act. Brief for Respondent 51. At oral argument, counsel conceded that our decision in United States v. Testan, supra, which had been handed down between the time of the filing of his brief and the oral argument, foreclosed such a claim. Plaintiff's allegation that his discharge constituted a breach of a contract of employment was sufficient, under the provisions of Pub. L. 91-350, to withstand the Government's motion to dismiss the complaint on the grounds of lack of jurisdiction in the Court of Claims, and the judgment of the court so holding is therefore affirmed. That portion of its judgment deciding that plaintiff held his employment position by virtue of an express or implied contract, rather than by appointment, *131 is vacated and the cause remanded for further proceedings on that question. It is so ordered. MR. JUSTICE POWELL dissents from the opinion of the Court substantially for the reasons stated by Judge Skelton in his dissenting opinion in the Court of Claims. 206 Ct. Cl. 303, 314, 513 F.2d 1360, 1366 (1975).	This case involves a suit by respondent's decedent,[1] a civilian employee of the Army and Air Force Exchange Service (AAFES), claiming wrongful discharge from his employment. He asserted jurisdiction under the Tucker Act, 28 U.S. C. 1491, which provides for suits in the Court of Claims upon any express or implied contract with such military exchanges. The Government moved to dismiss for lack of jurisdiction. The Court of Claims concluded that it had jurisdiction because respondent's decedent's relationship with the AAFES was based upon an implied contract of employment and such a contract is covered, since 1970, by the Tucker Act. The status of claims against military post exchanges has been in some doubt since the decision of this Court in Standard Oil There the Court, in striking down a state tax on the distribution of motor fuel by Army post exchanges, held that such exchanges "are arms of the Government deemed by it essential for the performance of governmental functions. They are integral parts of the War Department." However, the Court also observed that the "Government assumes none of the financial obligations of the exchange." 125 The latter observation was the basis of a series of decisions by the Court of Claims to the effect that it lacked jurisdiction over claims concerning the activities of non-appropriated fund instrumentalities.[2] That court held that it could not entertain suits based on a contract for services with such an entity, because, since the Government had assumed no liability for the entity's financial obligations it could not be said to have consented to a suit designed to vindicate such obligations. Therefore, no "claim against the United States" existed under the Tucker Act which is the source of Court of Claims jurisdiction, ; Cab ; cert. denied, The Court of Claims, while denying jurisdiction, recognized the harsh consequences of this result since it could leave claimants against the exchanges with no forum in which to seek relief. However, the court recognized that "it is up to Congress to remedy this apparent harsh result [T]he courts should refrain from legislating by judicial fiat." In 1970 Congress amended the Tucker Act and provided: "For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service shall be considered an express or implied contract with the United States." Stat. 449. 126 The purpose of this amendment, as the reports of both Houses made clear, was to afford contractors a federal forum in which to sue nonappropriated fund instrumentalities by doing away with the inequitable "loophole" in the Tucker Act. S. Rep. No. p. 2 (1969); H. R. Rep. No. p. 2 (1970). and were cited as examples of the "harsh result" which the amendment would correct. The purpose of the bill was clearly to provide a remedy to "contractors" with non-appropriated fund instrumentalities, e. g., S. Rep. No. pp. 4-5, and there is nothing in the legislative history to indicate, as the Government contends, that "contractors" did not include anyone who had formed a contractual employment relationship. Since the statute applies, by its terms, to "any express or implied contract" we hold that it is applicable to employment contracts as well as those for goods or other services. The fact that Congress has dealt specifically with exchange employees when it wanted to bring them within or leave them without the provisions of a law dealing with federal employees generally (e. g., 5 U.S. C. 8171 (b)) is not of controlling weight here. This statute deals with those who have a contractual relationship with military exchanges rather than with different classes of federal employees. If employees of military exchanges are within its general language, they are not removed from its effect by congressional practices in enacting other kinds of statutes. The Government alternatively contends that AAFES employees do not have a contractual relationship with their employer, and that like orthodox federal employees they serve by "appointment" to a particular position. While there is some ambiguity in the opinion of the Court of Claims, that court apparently agreed that plaintiff 127 and others like him did have a contractual employment relationship with the AAFES. We think it would be both unnecessary and unwise for us to decide the question at this stage of the case, and we think that the Court of Claims gave insufficient attention to applicable administrative regulations when it undertook to decide the question. The exchange services are created and administered pursuant to the general authority granted the Secretary of the Army and the Secretary of the Air Force by 10 U.S. C. 3012 and 8012. The nonappropriated-fund status of the exchanges places them in a position whereby the Federal Government, absent special legislation, does not assume the obligations of those exchanges in the manner that contracts entered into by appropriated fund agencies are assumed. Standard Oil 316 U. S., The nonappropriated-fund status of the exchanges, however, does not alter the fact that the Secretaries of the Army and the Air Force may engage employees by "appointment," in the same manner as other personnel hired by the Secretaries may be employed. See Standard Oil ; The regulations governing the AAFES, state that ordinary employees are deemed employees of an instrumentality of the United States, and hold their positions by appointment. AR 60-21/AFR 147-15, c. 1, I, ¶ 1-7; c. 2, I[3] There is congressional recognition 128 of the power of the Secretaries to employ exchange employees by appointment. The House and Senate Reports on explicitly recognized that employees of nonappropriated-fund activities, when performing their official duties, are employees of the United States. S. Rep. No. ; H. R. Rep. No. Further, Congress has specifically granted exchange employees certain rights afforded only appointed employees, and, more important, has specifically excluded them from the coverage of certain statutes granting rights to appointed federal employees. See statutes cited in AR 60-21/AFR 147-15, c. 1, I, ¶ 1-8. Of particular import is their exclusion, through the operation of 5 U.S. C. 2105 (c), from the provisions of the Back Pay Act, 5 U.S. C. 5596. The Back Pay Act is the means by which appointed employees subjected to unjustified personnel action are given a cause of action against the United States. The Act is made necessary by the fact that, absent specific command of statute or authorized regulation, an appointed employee subjected to unwarranted personnel action does not have a cause of action against the United States. ; ; United Since the Act deals only with appointees, the specific exclusion of AAFES employees from the coverage of the Act would seem to indicate a congressional recognition that they may be appointed, but that appointed AAFES employees should not be allowed to sue under the Act. This is not to say that an exchange may never employ a person pursuant to a contract of employment. The Secretaries have provided, by separate regulation, for a process under which a person may be employed by contract. AR 60-20/AFR 147-14, c. 4, II and III 129 Such employment is subject to different procedures for negotiation, approval, and administrative remedies from those applicable to employment under AR 60-21/AFR 147-15. The regulation governing contracts defines "service contract" as including contracts both for services performed off a military installation and "direct services such as janitorial and window cleaning service." AR 60-20/AFR 147-14, App. A, ¶ A-6e. Under the regulation in effect at the time of plaintiff's discharge, it was specifically provided that exchanges "will not enter into [a service contract] with military personnel on active duty, civil service employees, or exchange employees." AR 60-20/AFR 147-14, XIX, ¶ 88b (Apr. 14, 1965) (emphasis added). The regulation thus clearly distinguished between employment pursuant to appointment and employment pursuant to contract, a distinction that existed prior to plaintiff's hiring and continues today in the use of separate regulations for "contracting" and "appointment." When Congress enacted making contracts entered into by the post exchanges cognizable in the Court of Claims, it did not change in any way the other provisions of the United States Code dealing with exchange employees, nor did it purport to require that the exchanges employ all persons pursuant to contract. The Court of Claims, in reaching its conclusion that plaintiff held his position by virtue of an express or implied contract assumed that once it was determined he was not an appointed federal employee this result followed as a matter of course. It concluded that in such event his employment status was governed by a series of cases from the private sector of the economy holding that the typical employee-employer relationship was contractual in nature. While we do not question the relevance of these cases by way of analogy should plaintiff 130 be determined not to have been an appointee we hold that the Court of Claims erred in its threshold determination that AAFES employees could never serve by appointment. Rather, the question depends upon an analysis of the statutes and regulations previously described in light of whatever evidence is adduced on remand as to plaintiff's particular status in this case. It is thus apparent that the question of whether plaintiff was employed by virtue of a contract or by appointment is not susceptible of determination at this time. Rather, the issue is one which must receive additional consideration from the Court of Claims after development of a fuller record. Respondent in her brief in this Court advanced a second theory upon which the jurisdiction of the Court of Claims in this case could be sustained. She urged that plaintiff's discharge in violation of executive regulations constituted a claim enforceable under the Tucker Act, and that his discharge without due process constituted a claim founded on the Constitution and therefore enforceable under the Tucker Act. Brief for Respondent 51. At oral argument, counsel conceded that our decision in United which had been handed down between the time of the filing of his brief and the oral argument, foreclosed such a claim. Plaintiff's allegation that his discharge constituted a breach of a contract of employment was sufficient, under the provisions of to withstand the Government's motion to dismiss the complaint on the grounds of lack of jurisdiction in the Court of Claims, and the judgment of the court so holding is therefore affirmed. That portion of its judgment deciding that plaintiff held his employment position by virtue of an express or implied contract, rather than by appointment, *131 is vacated and the cause remanded for further proceedings on that question. It is so ordered. MR. JUSTICE POWELL dissents from the opinion of the Court substantially for the reasons stated by Judge Skelton in his dissenting opinion in the Court of Claims.
Justice Scalia	concurring	false	United States v. Gaubert	1991-03-26T00:00:00	null	https://www.courtlistener.com/opinion/112567/united-states-v-gaubert/	https://www.courtlistener.com/api/rest/v3/clusters/112567/	1,991	1990-053	2	9	0	I concur in the judgment and in much of the opinion of the Court. I write separately because I do not think it necessary to analyze individually each of the particular actions challenged by Gaubert, nor do I think an individualized analysis necessarily leads to the results the Court obtains. 335 I The so-called discretionary function exception to the Federal Tort Claims Act (FTCA) does not protect all governmental activities involving an element of choice. Berkovitz v. United States, 486 U.S. 531, 536-537 (1988). The choice must be "grounded in social, economic, [or] political policy," United States v. Varig Airlines, 467 U.S. 797, 814 (1984), or, more briefly, must represent a "policy judgment," Berkovitz, supra, at 537. Unfortunately, lower courts have had difficulty in applying this test. The Court of Appeals in this case concluded that a choice involves policy judgment (in the relevant sense) if it is made at a planning rather than an operational level within the agency. 885 F.2d 1284, 1287 (CA5 1989). I agree with the Court that this is wrong. I think, however, that the level at which the decision is made is often relevant to the discretionary function inquiry, since the answer to that inquiry turns on both the subject matter and the office of the decision-maker. In my view a choice is shielded from liability by the discretionary function exception if the choice is, under the particular circumstances, one that ought to be informed by considerations of social, economic, or political policy and is made by an officer whose official responsibilities include assessment of those considerations. This test, by looking not only to the decision but also to the officer who made it, recognizes that there is something to the planning vs. operational dichotomythough the "something" is not precisely what the Court of Appeals believed. Ordinarily, an employee working at the operational level is not responsible for policy decisions, even though policy considerations may be highly relevant to his actions. The dock foreman's decision to store bags of fertilizer in a highly compact fashion is not protected by this exception because, even if he carefully calculated considerations of cost to the Government vs. safety, it was not his responsibility to ponder such things; the Secretary of Agriculture's decision to the same 336 effect is protected, because weighing those considerations is his task. Cf. Dalehite v. United States, 346 U.S. 15 (1953). In Indian Towing Co. v. United States, 350 U.S. 61 (1955), the United States was held liable for, among other things, the failure of Coast Guard maintenance personnel adequately to inspect electrical equipment in a lighthouse; though there could conceivably be policy reasons for conducting only superficial inspections, the decisions had been made by the maintenance personnel, and it was assuredly not their responsibility to ponder such things. This same factor explains why it is universally acknowledged that the discretionary function exception never protects against liability for the negligence of a vehicle driver. See ante, at 325, n. 7. The need for expedition vs. the need for safety may well represent a policy choice, cf. Dalehite, supra, but the Government does not expect its drivers to make that choice on a case-by-case basis. Moreover, not only is it necessary for application of the discretionary function exception that the decisionmaker be an official who possesses the relevant policy responsibility, but also the decisionmaker's close identification with policymaking can be strong evidence that the other half of the test is meti. e., that the subject matter of the decision is one that ought to be informed by policy considerations. I am much more inclined to believe, for example, that the manner of storing fertilizer raises economic policy concerns if the decision on that subject has been reserved to the Secretary of Agriculture himself. That it is proper to take the level of the decisionmaker into account is supported by the phrase of the FTCA immediately preceding the discretionary function exception, which excludes governmental liability for acts taken, "`exercising due care, in the execution of a . . . regulation, whether or not such . . . regulation be valid.'" Dalehite, 346 U. S., at 18. We have taken this to mean that regulations "[can]not be attacked by claimants under the Act." Id., at 42. This immunity represents an absolute statutory presumption, 337 so to speak, that all regulations involve policy judgments that must not be interfered with. I think there is a similar presumption, though not an absolute one, that decisions reserved to policymaking levels involve such judgmentsand the higher the policymaking level, the stronger the presumption. II Turning to the facts of the present case, I find it difficult to say that the particular activities of which Gaubert complains are necessarily discretionary functions, so that a motion to dismiss could properly be granted on that ground. To take but one example, Gaubert alleges that the regulators acted negligently in selecting consultants to advise the bank. The Court argues that such a decision, even though taken in the course of "day-to-day" management, surely involves an element of choice. But that answers only the first half of the Berkovitz inquiry. It remains to be determined whether the choice is of a policymaking nature. Perhaps one can imagine a relatively high-level Government official, authorized generally to manage the bank in such fashion as to further applicable Government policies, who hires consultants and other employees with those policy objectives in mind. The discretionary function exception arguably would protect such a hiring choice. But one may also imagine a federal officer of relatively low level, authorized to hire a bank consultant by applying ordinary standards of business judgment, and not authorized to consider matters of Government policy in the process. That hiring decision would not be protected by the discretionary function exception, even though some element of choice is involved. I do not think it advances the argument to observe, ante, at 333, that "[t]here are no allegations that the regulators gave anything other than the kind of advice that was within the purview of the policies behind the statutes." An official may act "within the purview" of the relevant policy without himself making policy decisionsin which case, if the action is 338 negligent (and was not specifically mandated by the relevant policy, see Dalehite, supra, at 36), the discretionary function exception does not bar United States liability. Contrariwise, action "outside the purview" of the relevant policy does not necessarily fail to qualify for the discretionary function defense. If the action involves policy discretion, and the officer is authorized to exercise that discretion, the defense applies even if the discretion has been exercised erroneously, so as to frustrate the relevant policy. See 28 U.S. C. § 2680(a) (discretionary function exception applies "whether or not the discretion involved be abused"). In other words, action "within the purview" of the relevant policy is neither a necessary nor a sufficient condition for invoking the discretionary function exception. The present case comes to us on a motion to dismiss. Lacking any sort of factual record, we can do little more than speculate as to whether the officers here exercised policymaking responsibility with respect to the individual acts in question. Without more, the motion would have to be denied. I think, however, that the Court's conclusion to the contrary is properly reached under a slightly different approach. The alleged misdeeds complained of here were not actually committed by federal officers. Rather, federal officers "recommended" that such actions be taken, making it clear that if the recommendations were not followed the bank would be seized and operated directly by the regulators. In effect, the Federal Home Loan Bank Board (FHLBB) imposed the advice which Gaubert challenges as a condition of allowing the bank to remain independent. But surely the decision whether or not to take over a bank is a policy-based decision to which liability may not attacha decision that ought to be influenced by considerations of "social, economic, [or] political policy," Varig Airlines, 467 U. S., at 814, and that in the nature of things can only be made by FHLBB officers responsible for weighing such considerations. I think a corollary is that setting the conditions under which the *339 FHLBB will or will not take over a bank is an exercise of policymaking discretion. By establishing such a list of conditions, as was done here, the Board in effect announces guidelines pursuant to which it will exercise its discretionary function of taking over the bank. Establishing guidelines for the exercise of a discretionary function is unquestionably a discretionary function. Thus, without resort to item-by-item analysis, I would find each of Gaubert's challenges barred by the discretionary function exception.	I concur in the judgment and in much of the opinion of the Court. I write separately because I do not think it necessary to analyze individually each of the particular actions challenged by Gaubert, nor do I think an individualized analysis necessarily leads to the results the Court obtains. 335 I The so-called discretionary function exception to the Federal Tort Claims Act (FTCA) does not protect all governmental activities involving an element of choice. The choice must be "grounded in social, economic, [or] political policy," United or, more briefly, must represent a "policy judgment," Unfortunately, lower courts have had difficulty in applying this test. The Court of Appeals in this case concluded that a choice involves policy judgment (in the relevant sense) if it is made at a planning rather than an operational level within the agency. I agree with the Court that this is wrong. I think, however, that the level at which the decision is made is often relevant to the discretionary function inquiry, since the answer to that inquiry turns on both the subject matter and the office of the decision-maker. In my view a choice is shielded from liability by the discretionary function exception if the choice is, under the particular circumstances, one that ought to be informed by considerations of social, economic, or political policy and is made by an officer whose official responsibilities include assessment of those considerations. This test, by looking not only to the decision but also to the officer who made it, recognizes that there is something to the planning vs. operational dichotomythough the "something" is not precisely what the Court of Appeals believed. Ordinarily, an employee working at the operational level is not responsible for policy decisions, even though policy considerations may be highly relevant to his actions. The dock foreman's decision to store bags of fertilizer in a highly compact fashion is not protected by this exception because, even if he carefully calculated considerations of cost to the Government vs. safety, it was not his responsibility to ponder such things; the Secretary of Agriculture's decision to the same 336 effect is protected, because weighing those considerations is his task. Cf. In Indian Towing the United States was held liable for, among other things, the failure of Coast Guard maintenance personnel adequately to inspect electrical equipment in a lighthouse; though there could conceivably be policy reasons for conducting only superficial inspections, the decisions had been made by the maintenance personnel, and it was assuredly not their responsibility to ponder such things. This same factor explains why it is universally acknowledged that the discretionary function exception never protects against liability for the negligence of a vehicle driver. See ante, at 325, n. 7. The need for expedition vs. the need for safety may well represent a policy choice, cf. but the Government does not expect its drivers to make that choice on a case-by-case basis. Moreover, not only is it necessary for application of the discretionary function exception that the decisionmaker be an official who possesses the relevant policy responsibility, but also the decisionmaker's close identification with policymaking can be strong evidence that the other half of the test is meti. e., that the subject matter of the decision is one that ought to be informed by policy considerations. I am much more inclined to believe, for example, that the manner of storing fertilizer raises economic policy concerns if the decision on that subject has been reserved to the Secretary of Agriculture himself. That it is proper to take the level of the decisionmaker into account is supported by the phrase of the FTCA immediately preceding the discretionary function exception, which excludes governmental liability for acts taken, "`exercising due care, in the execution of a regulation, whether or not such regulation be valid.'" We have taken this to mean that regulations "[can]not be attacked by claimants under the Act." This immunity represents an absolute statutory presumption, 337 so to speak, that all regulations involve policy judgments that must not be interfered with. I think there is a similar presumption, though not an absolute one, that decisions reserved to policymaking levels involve such judgmentsand the higher the policymaking level, the stronger the presumption. II Turning to the facts of the present case, I find it difficult to say that the particular activities of which Gaubert complains are necessarily discretionary functions, so that a motion to dismiss could properly be granted on that ground. To take but one example, Gaubert alleges that the regulators acted negligently in selecting consultants to advise the bank. The Court argues that such a decision, even though taken in the course of "day-to-day" management, surely involves an element of choice. But that answers only the first half of the inquiry. It remains to be determined whether the choice is of a policymaking nature. Perhaps one can imagine a relatively high-level Government official, authorized generally to manage the bank in such fashion as to further applicable Government policies, who hires consultants and other employees with those policy objectives in mind. The discretionary function exception arguably would protect such a hiring choice. But one may also imagine a federal officer of relatively low level, authorized to hire a bank consultant by applying ordinary standards of business judgment, and not authorized to consider matters of Government policy in the process. That hiring decision would not be protected by the discretionary function exception, even though some element of choice is involved. I do not think it advances the argument to observe, ante, at 333, that "[t]here are no allegations that the regulators gave anything other than the kind of advice that was within the purview of the policies behind the statutes." An official may act "within the purview" of the relevant policy without himself making policy decisionsin which case, if the action is 338 negligent (and was not specifically mandated by the relevant policy, see ), the discretionary function exception does not bar United States liability. Contrariwise, action "outside the purview" of the relevant policy does not necessarily fail to qualify for the discretionary function defense. If the action involves policy discretion, and the officer is authorized to exercise that discretion, the defense applies even if the discretion has been exercised erroneously, so as to frustrate the relevant policy. See 28 U.S. C. 2680(a) (discretionary function exception applies "whether or not the discretion involved be abused"). In other words, action "within the purview" of the relevant policy is neither a necessary nor a sufficient condition for invoking the discretionary function exception. The present case comes to us on a motion to dismiss. Lacking any sort of factual record, we can do little more than speculate as to whether the officers here exercised policymaking responsibility with respect to the individual acts in question. Without more, the motion would have to be denied. I think, however, that the Court's conclusion to the contrary is properly reached under a slightly different approach. The alleged misdeeds complained of here were not actually committed by federal officers. Rather, federal officers "recommended" that such actions be taken, making it clear that if the recommendations were not followed the bank would be seized and operated directly by the regulators. In effect, the Federal Home Loan Bank Board (FHLBB) imposed the advice which Gaubert challenges as a condition of allowing the bank to remain independent. But surely the decision whether or not to take over a bank is a policy-based decision to which liability may not attacha decision that ought to be influenced by considerations of "social, economic, [or] political policy," Varig Airlines, 467 U. S., at and that in the nature of things can only be made by FHLBB officers responsible for weighing such considerations. I think a corollary is that setting the conditions under which the *339 FHLBB will or will not take over a bank is an exercise of policymaking discretion. By establishing such a list of conditions, as was done here, the Board in effect announces guidelines pursuant to which it will exercise its discretionary function of taking over the bank. Establishing guidelines for the exercise of a discretionary function is unquestionably a discretionary function. Thus, without resort to item-by-item analysis, I would find each of Gaubert's challenges barred by the discretionary function exception.
Justice Stevens	concurring	false	FCC v. NextWave Personal Communications Inc.	2003-01-27T00:00:00	null	https://www.courtlistener.com/opinion/122257/fcc-v-nextwave-personal-communications-inc/	https://www.courtlistener.com/api/rest/v3/clusters/122257/	2,003	2002-018	2	8	1	Because these are such close cases, it seems appropriate to identify the considerations that have persuaded me to join the majority. When I first read 11 U.S.C. § 525(a), I thought it was not intended to apply to cases in which the licensor was also a creditor, but rather, as JUSTICE BREYER persuasively argues, was merely intended to protect the debtor from discriminatory license terminations. I remain persuaded that that is the principal purpose of the provision. It is significant, however, that the first words in the section describe three exceptions for statutes, one of which contains language remarkably similar to the language in the security 309 agreements executed by respondents in these cases.[1] Those exceptions introduce an ambiguity. On the one hand, they indicate that Congress did not intend § 525(a) to limit the Executive's right to condition the retaining of a federal license on considerations similar to those on which a creditor relies. The reasons for making an exception for licenses to deal in perishable commodities would seem equally applicable to licenses to exploit the public airwaves. Indeed, there is probably a greater public interest in allowing prompt cancellation of spectrum licenses than of commodities dealers' licenses because of the importance of facilitating development of the broadcast spectrum. On the other hand, the exceptions demonstrate that Congress realized the breadth of the language in § 525(a). Rather than make a categorical exception that would have accommodated not only the three cases expressly covered by the text, but also cases like the ones before the Court today, the drafters retained the broad language that the Court finds decisive. That language endorses a general rule that gives priority to the debtor's interest in preserving control of an important asset of the estate pending the completion of bankruptcy proceedings. I do not believe that the application of that general rule to these cases will be unfair to the Federal Communications Commission either as a regulator or as a creditor. If the 310 bankrupt licensee is unable to fulfill other conditions of its license, the regulator may cancel the licenses for reasons that are not covered by § 525(a).[2] Moreover, given the fact that the Commission has a secured interest in the license, if the licensee can obtain the financing that will enable it to perform its obligations in full, the debt will ultimately be paid. In sum, even though I agree with JUSTICE BREYER'S view that the literal text of a statute is not always a sufficient basis for determining the actual intent of Congress, in these cases I believe it does produce the correct answer.	Because these are such close cases, it seems appropriate to identify the considerations that have persuaded me to join the majority. When I first read (a), I thought it was not intended to apply to cases in which the licensor was also a creditor, but rather, as JUSTICE BREYER persuasively argues, was merely intended to protect the debtor from discriminatory license terminations. I remain persuaded that that is the principal purpose of the provision. It is significant, however, that the first words in the section describe three exceptions for statutes, one of which contains language remarkably similar to the language in the security 309 agreements executed by respondents in these cases.[1] Those exceptions introduce an ambiguity. On the one hand, they indicate that Congress did not intend 525(a) to limit the Executive's right to condition the retaining of a federal license on considerations similar to those on which a creditor relies. The reasons for making an exception for licenses to deal in perishable commodities would seem equally applicable to licenses to exploit the public airwaves. Indeed, there is probably a greater public interest in allowing prompt cancellation of spectrum licenses than of commodities dealers' licenses because of the importance of facilitating development of the broadcast spectrum. On the other hand, the exceptions demonstrate that Congress realized the breadth of the language in 525(a). Rather than make a categorical exception that would have accommodated not only the three cases expressly covered by the text, but also cases like the ones before the Court today, the drafters retained the broad language that the Court finds decisive. That language endorses a general rule that gives priority to the debtor's interest in preserving control of an important asset of the estate pending the completion of bankruptcy proceedings. I do not believe that the application of that general rule to these cases will be unfair to the Federal Communications Commission either as a regulator or as a creditor. If the 310 bankrupt licensee is unable to fulfill other conditions of its license, the regulator may cancel the licenses for reasons that are not covered by 525(a).[2] Moreover, given the fact that the Commission has a secured interest in the license, if the licensee can obtain the financing that will enable it to perform its obligations in full, the debt will ultimately be paid. In sum, even though I agree with JUSTICE BREYER'S view that the literal text of a statute is not always a sufficient basis for determining the actual intent of Congress, in these cases I believe it does produce the correct answer.
Justice Souter	majority	false	Illinois v. Kentucky	1991-05-28T00:00:00	null	https://www.courtlistener.com/opinion/112602/illinois-v-kentucky/	https://www.courtlistener.com/api/rest/v3/clusters/112602/	1,991	1990-086	3	9	0	In this case we return again to the history and geography of the Ohio River valley, as we consider the location of the boundary of the Commonwealth of Kentucky with the State of Illinois. We hold it to be the line of the low-water mark along the river's northerly shore as it was in 1792. 382 I In July 1986, Illinois sought leave to file a bill of complaint against Kentucky, invoking this Court's original jurisdiction to resolve a disagreement about the location of the common boundary of the two States. See U. S. Const., Art. III, § 2. Illinois asked the Court to declare "the boundary line . . . to be the low-water mark on the northerly shore of the Ohio River as it existed in 1792," Report of Special Master 1-2, and to enjoin Kentucky "from disturbing in any manner the State of Illinois or its citizens from the peaceful use, and enjoyment of all land, water and jurisdiction within the boundaries of Illinois as established by the Court," id., at 2. We granted leave to file the bill of complaint, 479 U.S. 879 (1986), and appointed the Honorable Robert Van Pelt as Special Master.[] In its answer to the complaint, Kentucky denied that the boundary was the 1792 line and claimed it to be the river's northerly low-water mark "as it exists from time to time." The answer raised the "affirmative defenses" of acquiescence and laches, and invoked certain "principles of riparian boundaries." Report of Special Master 2. The parties spent the next three years in discovery and, after submitting evidence to the Special Master in January 1990, were granted additional time to develop the evidentiary record on Kentucky's claim of prescription and acquiescence. After receiving this evidence in April 1990, the Special Master submitted a report to this Court, which was ordered filed. 498 U.S. 803 (1990). The Special Master recommended that we (1) determine the boundary between Illinois and Kentucky to be the "low-water mark on the northerly side of the Ohio River as it existed in the year 1792"; (2) find that the record fails to "support 383 the Commonwealth of Kentucky's affirmative defenses"; (3) find that the construction of dams on the Ohio River has caused "the present low-water mark on the Illinois side of the river [to be] farther north than it was in 1792"; and (4) order the two States' common boundary to be determined, "as nearly as [the 1792 line] can now be ascertained, . . . either (a) by agreement of the parties, (b) by joint survey agreed upon by both parties, or (c) in the absence of such an agreement or survey, [by the Court] after hearings conducted by the Special Master and the submission by him to the Court of proposed findings and conclusions." Report of Special Master 48-49. Kentucky has filed exceptions to the Special Master's report. While Kentucky challenges many of the factual findings, its primary dispute is with the conclusion that Kentucky has failed to prove its claim, styled as an affirmative defense, that under the doctrine of prescription and acquiescence the boundary is the low-water mark as it may be from time to time. II A We agree in large measure with the Special Master's report. The threshold issue presented in this case was resolved in Ohio v. Kentucky, 444 U.S. 335 (1980), in which we held that Kentucky's boundary with Ohio was the northerly low-water mark of the Ohio River as it was in 1792. We based that holding on the history of Virginia's 1784 cession to the United States of the lands "northwest of the river Ohio" and Kentucky's succession to Virginia's northwest boundary upon reaching statehood in 1792. Id., at 337-338. We relied on the prior opinion in Indiana v. Kentucky, 136 U.S. 479, 518-519 (1890), in which Justice Field, for a unanimous Court, reviewed this history and held that Kentucky's boundary with Indiana followed the low-water mark on the northerly shore of the Ohio River "when Kentucky became a State." Ibid. The same history and precedent that supplied 384 the general rule for determining the boundary separating Kentucky from its neighboring States of Ohio and Indiana on the Ohio River also govern the determination of Kentucky's historical boundary on that river with Illinois. Kentucky has, indeed, conceded that "if this case were before the Court simply as a matter of law, Ohio v. Kentucky. . . would be controlling precedent." Exceptions of Commonwealth of Kentucky 9 (emphasis in original). Kentucky's exceptions assume, rather, that the case does not turn on the issue of law decided in Ohio v. Kentucky, but on the "factual issue of acquiescence which Kentucky has raised as an affirmative defense on the question of its boundary with Illinois." Exceptions of Commonwealth of Kentucky 9-10. Kentucky contends that it has long asserted, and Illinois has acquiesced in the assertion, that the common boundary of the two States is the low-water mark of the Ohio River, not as it was in 1792, but as it may be from time to time. Although Kentucky has styled its acquiescence claim an affirmative defense, this "defense," if successfully proved, would not only counter Illinois' boundary claim but also establish Kentucky's own position. To do this on a theory of prescription and acquiescence, Kentucky would need to show by a preponderance of the evidence, first, a long and continuous possession of, and assertion of sovereignty over, the territory delimited by the transient low-water mark. Longstanding "[p]ossession and dominion are essential elements of a claim of sovereignty by prescription and acquiescence." Georgia v. South Carolina, 497 U.S. 376, 389 (1990). Kentucky would then have the burden to prove Illinois' long acquiescence in those acts of possession and jurisdiction. As we stated in Oklahoma v. Texas, 272 U.S. 21, 47 (1926), there is a "general principle of public law" that, as between States, a "long acquiescence in the possession of territory under a claim of right and in the exercise of dominion and sovereignty over it, is conclusive of the rightful authority." See also Georgia v. South Carolina, supra, at 389 ("[L]ong 385 acquiescence in the practical location of an interstate boundary, and possession in accordance therewith, often has been used as an aid in resolving boundary disputes" between States). The record developed before the Special Master in this case fails to support Kentucky's claim of sovereignty by prescription and acquiescence. After a thorough review of the voluminous evidence presented by both States, the Special Master concluded that Kentucky had proved neither long and continuous action in support of its claim to a boundary at the northerly low-water mark as it might be from time to time, nor Illinois' acquiescence in that claim. While Kentucky's many exceptions to the extensive factual findings on these issues do not merit discussion seriatim, an examination of a few will indicate the evidentiary support generally for the Special Master's conclusions. The Special Master first assessed the evidence bearing on Kentucky's exercise of dominion. According to Kentucky's view of the boundary, for example, any permanent structure extending out over the water from the river's northern bank would be within Kentucky's territory and subject to its taxing power, one of the primary indicia of sovereignty. The record in this case, however, shows that Kentucky has imposed a property tax on only 3 of the 15 structures that extend out, into, or over the water from the Illinois shoreline. Of the three affected taxpayers, one who received a Kentucky tax bill for property extending south into the river was also taxed on the same structure by Illinois, and another paid the Kentucky bill only under protest, "claiming that the property [taxed was] within the State of Illinois." Report of Special Master 37. The remaining 12 structures extending south into the river from Illinois have never been taxed by Kentucky. Kentucky advanced what it took to be a stronger claim to having exercised exclusive taxing jurisdiction right up to the transient low-water mark by offering evidence of its ad valorem 386 taxation of barges and other watercraft traveling on the river. But this evidence simply fails to speak directly to the boundary issue in this case. Vessels traveling the river usually follow a sailing line charted by the United States Army Corps of Engineers which, for most of the stretch in question, is either close to the center of the river or near the Kentucky shore. Illinois does not dispute that the sailing line, like most of the river, is within the boundary and jurisdiction of Kentucky. Id., at 38. The territory in question, rather, is thought to be a comparatively narrow sliver of the Ohio along its northerly shore, where barges and watercraft would rarely venture. As to the sliver, Kentucky's acts of taxation have been, at best, equivocal, and the Special Master was accordingly correct when he observed that the fact of Kentucky's taxation of barges "traveling on the Ohio River within the acknowledged jurisdiction of Kentucky, does not support Kentucky's claim of exclusive jurisdiction of the entire breadth of the river." Ibid. This evidence of Kentucky's failure to engage in consistent and unequivocal acts of occupation and dominion does not stand alone, however, for we are concerned not only with what its officers have done, but with what they have said, as well. And what they have said has, in several instances, supported Illinois' claim. The Legislative Research Commission of the Kentucky General Assembly and the Attorney General of Kentucky have each taken the position in the recent past that Kentucky's northern border is the 1792 low-water mark. An Information Bulletin issued by the Legislative Research Commission in December 1972 states that "`Kentucky's North and Western boundary, to-wit, the low-water mark on the North shore of the Ohio River as of 1792 has been recognized as the boundary based upon the fact that Kentucky was created from what was then Virginia.'" Id., at 15. An earlier opinion by the Commonwealth's Attorney General issued in 1963 asserted that the "`law, of course is that the boundary line between the states of Indiana and 387 Kentucky is the low-water [mark] on the north shore of the Ohio as it existed when Kentucky became a state in 1792.'" Id., at 12. These statements came to our attention in Kentucky's last boundary case in this Court, where we found it "of no little interest" in deciding Ohio v. Kentucky, 444 U. S., at 340-341, that these "Kentucky sources themselves, in recent years, have made reference to the 1792 low-water mark as the boundary." It is hardly of less interest this time. Just as this representative evidence fails to indicate any longstanding exercise of occupation and dominion of the disputed area by Kentucky, the record is equally unsupportive of the claim of Illinois' acquiescence. It is true that the Illinois Constitution of 1818 described the State's boundary with Kentucky on the Ohio River simply as following "along its north-western shore," Ill. Const., Preamble (1818), and the same description was employed in the State Constitutions of 1848 and 1870, see Ill. Const., Art. I (1848), Ill. Const., Art. I (1870). But these are verbatim recitations of the congressional language describing Illinois' boundary in the State's Enabling Act of April 18, 1818, ch. 67, 3 Stat. 428, and the Special Master correctly reasoned that "[w]hat Congress intended to be the southern boundary of Illinois, was the same southern boundary granted the states of Ohio and Indiana when they were formed. . . . Illinois, like Ohio and Indiana, was created from the territory ceded by Virginia to the United States. . . ." Report of Special Master 28. Although the current version of the Illinois Constitution, adopted in 1970, omits any description of the State's boundaries, the 1870 Constitution's language remained the reference point in the most recent Illinois case dealing with the State's river boundary that has come to our attention. See People ex rel. Scott v. Dravo Corp., 10 Ill. App. 3d 944, 944-945, 295 N.E.2d 284, 285 (1973), cert. denied, 416 U.S. 951 (1974). 388 The courts of Illinois, indeed, for some time took an even less hospitable view of Kentucky's interests than the Illinois Constitution did. In Joyce-Watkins Co. v. Industrial Comm'n, 325 Ill. 378, 381, 156 N.E. 346, 348 (1927), the State Supreme Court adopted a theory that would have ratchetted the boundary line forever southward toward the deepest point of the river, by holding the boundary to be the low-water mark on the northerly shore of the river at the "point to which the water receded at its lowest stage." This description of the boundary was followed by Illinois courts until at least 1973, see People ex rel. Scott v. Dravo Corp., supra, and while it plainly conflicts with our decisions in Indiana v. Kentucky, 136 U.S. 479 (1890), and Ohio v. Kentucky, supra, its use over nearly 50 years shows that Illinois did not acquiesce in any claim by Kentucky to a low-water mark that might edge northward over time. Such was the force of the evidence adduced, and such was its failure to support Kentucky's claim of prescription and acquiescence. B Kentucky's other affirmative defenses are likewise unavailing. The Special Master correctly observed that the laches defense is generally inapplicable against a State. See Block v. North Dakota ex rel. Bd. of Univ. and School Lands, 461 U.S. 273, 294 (1983) (O'CONNOR, J., dissenting) (collecting authorities); Guaranty Trust Co. v. United States, 304 U.S. 126, 132-133 (1938); cf. Weber v. Board of Harbor Comm'rs, 18 Wall. 57, 70 (1873) (statutes of limitations generally not applicable to State). Although the law governing interstate boundary disputes takes account of the broad policy disfavoring the untimely assertion of rights that underlies the defense of laches and statutes of limitations, it does so through the doctrine of prescription and acquiescence, see generally Georgia v. South Carolina, supra, which Kentucky has failed to satisfy. 389 Kentucky's affirmative defenses based on the "principles of riparian boundaries, including accretion, erosion and avulsion," require no extended consideration, for Kentucky concedes that these would affect the ultimate boundary determination only if it prevailed on the issues of prescription and acquiescence. Exceptions of Commonwealth of Kentucky 48-49 ("It is Kentucky's position that if it prevails on its affirmative defense of acquiescence, then the well-recognized principles of accretion, erosion and avulsion would obviously apply to a current shoreline boundary as it may change from time to time"). We have previously held as much, concluding that "the well-recognized and accepted rules of accretion and avulsion attendant upon a wandering river" have no application to Kentucky's Ohio River boundary because of the "historical factors" stemming from the cession by Virginia of the land northwest of the river to the United States. Ohio v. Kentucky, supra, at 337. Kentucky's final exception to the Special Master's report goes to the finding in Part III.C. that construction of dams on the river has permanently raised its level above that of 1792, consequently placing the present low-water mark on the Illinois side farther north than it was in 1792. Kentucky calls any question about the relative locations of the 1792 line and today's low-water mark premature, and we agree. Indeed, the Special Master himself suggested that this issue might, if necessary, "be determined at a later date," Report of Special Master 47, after he had made further recommendations to resolve any disputes the parties may have about the exact location of the 1792 line. III The exception of the Commonwealth of Kentucky to Part III.C. and Recommendation (3) of the report of the Special Master, as to the effect of modern dams on the level of the Ohio River, is sustained. Kentucky's other exceptions are overruled. The report, save for Part III.C. and Recommendation (3), is adopted, and the case is remanded to the Special 390 Master for such further proceedings as may be necessary to prepare and submit an appropriate decree for adoption by the Court, locating the 1792 line. It is so ordered.	In this case we return again to the history and geography of the Ohio River valley, as we consider the location of the boundary of the Commonwealth of with the State of Illinois. We hold it to be the line of the low-water mark along the river's northerly shore as it was in 1792. 382 I In July 1986, Illinois sought leave to file a bill of complaint against invoking this Court's original jurisdiction to resolve a disagreement about the location of the common boundary of the two States. See U. S. Const., Art. III, 2. Illinois asked the Court to declare "the boundary line to be the low-water mark on the northerly shore of the Ohio River as it existed in 1792," Report of Special Master 1-2, and to enjoin "from disturbing in any manner the State of Illinois or its citizens from the peaceful use, and enjoyment of all land, water and jurisdiction within the boundaries of Illinois as established by the Court," We granted leave to file the bill of complaint, and appointed the Honorable Robert Van Pelt as Special Master.[] In its answer to the complaint, denied that the boundary was the 1792 line and claimed it to be the river's northerly low-water mark "as it exists from time to time." The answer raised the "affirmative defenses" of acquiescence and laches, and invoked certain "principles of riparian boundaries." Report of Special Master 2. The parties spent the next three years in discovery and, after submitting evidence to the Special Master in January 1990, were granted additional time to develop the evidentiary record on 's claim of prescription and acquiescence. After receiving this evidence in April 1990, the Special Master submitted a report to this Court, which was ordered filed. The Special Master recommended that we (1) determine the boundary between Illinois and to be the "low-water mark on the northerly side of the Ohio River as it existed in the year 1792"; (2) find that the record fails to "support 383 the Commonwealth of 's affirmative defenses"; (3) find that the construction of dams on the Ohio River has caused "the present low-water mark on the Illinois side of the river [to be] farther north than it was in 1792"; and (4) order the two States' common boundary to be determined, "as nearly as [the 1792 line] can now be ascertained, either (a) by agreement of the parties, (b) by joint survey agreed upon by both parties, or (c) in the absence of such an agreement or survey, [by the Court] after hearings conducted by the Special Master and the submission by him to the Court of proposed findings and conclusions." Report of Special Master 48-49. has filed exceptions to the Special Master's report. While challenges many of the factual findings, its primary dispute is with the conclusion that has failed to prove its claim, styled as an affirmative defense, that under the doctrine of prescription and acquiescence the boundary is the low-water mark as it may be from time to time. II A We agree in large measure with the Special Master's report. The threshold issue presented in this case was resolved in in which we held that 's boundary with Ohio was the northerly low-water mark of the Ohio River as it was in 1792. We based that holding on the history of Virginia's 1784 cession to the United States of the lands "northwest of the river Ohio" and 's succession to Virginia's northwest boundary upon reaching statehood in 1792. We relied on the prior opinion in in which Justice Field, for a unanimous Court, reviewed this history and held that 's boundary with Indiana followed the low-water mark on the northerly shore of the Ohio River "when became a State." The same history and precedent that supplied 384 the general rule for determining the boundary separating from its neighboring States of Ohio and Indiana on the Ohio River also govern the determination of 's historical boundary on that river with Illinois. has, indeed, conceded that "if this case were before the Court simply as a matter of law, would be controlling precedent." Exceptions of Commonwealth of 9 (emphasis in original). 's exceptions assume, rather, that the case does not turn on the issue of law decided in but on the "factual issue of acquiescence which has raised as an affirmative defense on the question of its boundary with Illinois." Exceptions of Commonwealth of 9-10. contends that it has long asserted, and Illinois has acquiesced in the assertion, that the common boundary of the two States is the low-water mark of the Ohio River, not as it was in 1792, but as it may be from time to time. Although has styled its acquiescence claim an affirmative defense, this "defense," if successfully proved, would not only counter Illinois' boundary claim but also establish 's own position. To do this on a theory of prescription and acquiescence, would need to show by a preponderance of the evidence, first, a long and continuous possession of, and assertion of sovereignty over, the territory delimited by the transient low-water mark. Longstanding "[p]ossession and dominion are essential elements of a claim of sovereignty by prescription and acquiescence." would then have the burden to prove Illinois' long acquiescence in those acts of possession and jurisdiction. As we stated in there is a "general principle of public law" that, as between States, a "long acquiescence in the possession of territory under a claim of right and in the exercise of dominion and sovereignty over it, is conclusive of the rightful authority." See also at The record developed before the Special Master in this case fails to support 's claim of sovereignty by prescription and acquiescence. After a thorough review of the voluminous evidence presented by both States, the Special Master concluded that had proved neither long and continuous action in support of its claim to a boundary at the northerly low-water mark as it might be from time to time, nor Illinois' acquiescence in that claim. While 's many exceptions to the extensive factual findings on these issues do not merit discussion seriatim, an examination of a few will indicate the evidentiary support generally for the Special Master's conclusions. The Special Master first assessed the evidence bearing on 's exercise of dominion. According to 's view of the boundary, for example, any permanent structure extending out over the water from the river's northern bank would be within 's territory and subject to its taxing power, one of the primary indicia of sovereignty. The record in this case, however, shows that has imposed a property tax on only 3 of the 15 structures that extend out, into, or over the water from the Illinois shoreline. Of the three affected taxpayers, one who received a tax bill for property extending south into the river was also taxed on the same structure by Illinois, and another paid the bill only under protest, "claiming that the property [taxed was] within the State of Illinois." Report of Special Master 37. The remaining 12 structures extending south into the river from Illinois have never been taxed by advanced what it took to be a stronger claim to having exercised exclusive taxing jurisdiction right up to the transient low-water mark by offering evidence of its ad valorem 386 taxation of barges and other watercraft traveling on the river. But this evidence simply fails to speak directly to the boundary issue in this case. Vessels traveling the river usually follow a sailing line charted by the United States Army Corps of Engineers which, for most of the stretch in question, is either close to the center of the river or near the shore. Illinois does not dispute that the sailing line, like most of the river, is within the boundary and jurisdiction of The territory in question, rather, is thought to be a comparatively narrow sliver of the Ohio along its northerly shore, where barges and watercraft would rarely venture. As to the sliver, 's acts of taxation have been, at best, equivocal, and the Special Master was accordingly correct when he observed that the fact of 's taxation of barges "traveling on the Ohio River within the acknowledged jurisdiction of does not support 's claim of exclusive jurisdiction of the entire breadth of the river." This evidence of 's failure to engage in consistent and unequivocal acts of occupation and dominion does not stand alone, however, for we are concerned not only with what its officers have done, but with what they have said, as well. And what they have said has, in several instances, supported Illinois' claim. The Legislative Research Commission of the General Assembly and the Attorney General of have each taken the position in the recent past that 's northern border is the 1792 low-water mark. An Information Bulletin issued by the Legislative Research Commission in December 1972 states that "`'s North and Western boundary, to-wit, the low-water mark on the North shore of the Ohio River as of 1792 has been recognized as the boundary based upon the fact that was created from what was then Virginia.'" An earlier opinion by the Commonwealth's Attorney General issued in 1963 asserted that the "`law, of course is that the boundary line between the states of Indiana and 387 is the low-water [mark] on the north shore of the Ohio as it existed when became a state in 1792.'" These statements came to our attention in 's last boundary case in this Court, where we found it "of no little interest" in deciding -341, that these " sources themselves, in recent years, have made reference to the 1792 low-water mark as the boundary." It is hardly of less interest this time. Just as this representative evidence fails to indicate any longstanding exercise of occupation and dominion of the disputed area by the record is equally unsupportive of the claim of Illinois' acquiescence. It is true that the Illinois Constitution of 1818 described the State's boundary with on the Ohio River simply as following "along its north-western shore," Ill. Const., Preamble (1818), and the same description was employed in the State Constitutions of 1848 and 18, see Ill. Const., Art. I (1848), Ill. Const., Art. I (18). But these are verbatim recitations of the congressional language describing Illinois' boundary in the State's Enabling Act of April 18, 1818, ch. 67, and the Special Master correctly reasoned that "[w]hat Congress intended to be the southern boundary of Illinois, was the same southern boundary granted the states of Ohio and Indiana when they were formed. Illinois, like Ohio and Indiana, was created from the territory ceded by Virginia to the United States." Report of Special Master 28. Although the current version of the Illinois Constitution, adopted in 19, omits any description of the State's boundaries, the 18 Constitution's language remained the reference point in the most recent Illinois case dealing with the State's river boundary that has come to our attention. See People ex rel. cert. denied, 388 The courts of Illinois, indeed, for some time took an even less hospitable view of 's interests than the Illinois Constitution did. In Joyce-Watkins the State Supreme Court adopted a theory that would have ratchetted the boundary line forever southward toward the deepest point of the river, by holding the boundary to be the low-water mark on the northerly shore of the river at the "point to which the water receded at its lowest stage." This description of the boundary was followed by Illinois courts until at least see People ex rel. and while it plainly conflicts with our decisions in and its use over nearly 50 years shows that Illinois did not acquiesce in any claim by to a low-water mark that might edge northward over time. Such was the force of the evidence adduced, and such was its failure to support 's claim of prescription and acquiescence. B 's other affirmative defenses are likewise unavailing. The Special Master correctly observed that the laches defense is generally inapplicable against a State. See (collecting authorities); Guaranty Trust ; cf. Although the law governing interstate boundary disputes takes account of the broad policy disfavoring the untimely assertion of rights that underlies the defense of laches and statutes of limitations, it does so through the doctrine of prescription and acquiescence, see generally which has failed to satisfy. 's affirmative defenses based on the "principles of riparian boundaries, including accretion, erosion and avulsion," require no extended consideration, for concedes that these would affect the ultimate boundary determination only if it prevailed on the issues of prescription and acquiescence. Exceptions of Commonwealth of 48-49 ("It is 's position that if it prevails on its affirmative defense of acquiescence, then the well-recognized principles of accretion, erosion and avulsion would obviously apply to a current shoreline boundary as it may change from time to time"). We have previously held as much, concluding that "the well-recognized and accepted rules of accretion and avulsion attendant upon a wandering river" have no application to 's Ohio River boundary because of the "historical factors" stemming from the cession by Virginia of the land northwest of the river to the United States. 's final exception to the Special Master's report goes to the finding in Part III.C. that construction of dams on the river has permanently raised its level above that of 1792, consequently placing the present low-water mark on the Illinois side farther north than it was in 1792. calls any question about the relative locations of the 1792 line and today's low-water mark premature, and we agree. Indeed, the Special Master himself suggested that this issue might, if necessary, "be determined at a later date," Report of Special Master after he had made further recommendations to resolve any disputes the parties may have about the exact location of the 1792 line. III The exception of the Commonwealth of to Part III.C. and Recommendation (3) of the report of the Special Master, as to the effect of modern dams on the level of the Ohio River, is sustained. 's other exceptions are overruled. The report, save for Part III.C. and Recommendation (3), is adopted, and the case is remanded to the Special *390 Master for such further proceedings as may be necessary to prepare and submit an appropriate decree for adoption by the Court, locating the 1792 line. It is so ordered.
Justice Marshall	dissenting	false	Ross v. Oklahoma	1988-08-25T00:00:00	null	https://www.courtlistener.com/opinion/112119/ross-v-oklahoma/	https://www.courtlistener.com/api/rest/v3/clusters/112119/	1,988	1987-129	1	5	4	A man's life is at stake. We should not be playing games. In this case, everyone concedes that the trial judge could not arbitrarily take away one of the defendant's peremptory challenges. 92 Yet, that is in effect exactly what happened here. I respectfully dissent. Neither the State nor this Court disputes that the trial court "erred" when it refused to strike juror Huling for cause from the jury that sentenced petitioner Bobby Lynn Ross to death. Huling twice stated during voir dire that if he were to find Ross guilty of murder, he would automatically vote to impose the death penalty; there is no question that Huling was not the fair and impartial juror guaranteed to petitioner by the Sixth Amendment. The Court concludes, however, that the trial court's error does not require resentencing because it was "cure[d]" by the defense's use of one of a limited number of peremptory challenges to remove the biased juror. Ante, at 88. I believe that this conclusion is irreconcilable with this Court's holding just last Term that a similar Sixth Amendment error in capital jury selection requires resentencing if " `the composition of the jury panel as a whole could possibly have been affected by the trial court's error.' " Gray v. Mississippi, 481 U.S. 648, 665 (1987), quoting Moore v. Estelle, 670 F.2d 56, 58 (CA5) (specially concurring opinion), cert. denied, 458 U.S. 1111 (1982). The Court's attempt to distinguish Gray not only fails to persuade, but also fails to protect petitioner's Sixth Amendment right to an impartial jury by condoning a scheme that penalizes the assertion of that right. I am convinced that application of Gray's per se resentencing rule in this case is the only course consistent with the Sixth Amendment. In Gray, the trial court granted the State's motion to strike for cause a juror who expressed some reservations about capital punishment, but nonetheless stated that she could vote to impose the death penalty in appropriate circumstances. The trial court's exclusion of this qualified juror was Sixth Amendment error under Witherspoon v. Illinois, 391 U.S. 510 (1968), and Wainwright v. Witt, 469 U.S. 412 (1985). The Gray Court refused the State's invitation to apply harmless-error analysis to such an error. Specifically, 93 the Court rejected the argument that the State's retention of unexercised peremptory challenges at the end of jury selection indicated that the error was harmless because the State would have removed the juror by peremptory challenge if the trial court had denied its for-cause motion. In addition, the Court rejected the argument that the error was an isolated incident without prejudicial effect because the ultimate panel fairly represented the community. The Court explained that the contingent nature of the jury selection process "defies any attempt to establish that an erroneous Witherspoon-Witt exclusion of a juror is harmless." 481 U.S., at 665. According to the Court, "the relevant inquiry is `whether the composition of the jury panel as a whole could possibly have been affected by the trial court's error.' " Ibid. (citation omitted). The Court recognized that its decision established a per se rule requiring the vacation of a death sentence imposed by a jury whose composition was affected by Witherspoon error. 481 U.S., at 660, 668. The Court today unaccountably refuses to apply this per se rule in a case involving a similar Sixth Amendment error. Here the trial court, rather than excusing a qualified juror, refused to excuse a biased juror. The defense's attempt to correct the court's error and preserve its Sixth Amendment claim deprived it of a peremptory challenge. That deprivation "could possibly have . . . affected" the composition of the jury panel under the Gray standard, because the defense might have used the extra peremptory to remove another juror and because the loss of a peremptory might have affected the defense's strategic use of its remaining peremptories. See id., at 665 ("A prosecutor with fewer peremptory challenges in hand may be willing to accept certain jurors whom he would not accept given a larger reserve of peremptories"). Even the Court acknowledges that the defense's loss of a peremptory meets the Gray test. See ante, at 87 ("[T]he failure to remove Huling may have resulted in a 94 jury panel different from that which would otherwise have decided the case"). Indeed, the loss of a peremptory challenge in this case affected the composition of the jury panel in precisely the same way as the trial court's error in Gray itself. In Gray, the defendant was deprived of a juror who, although inexcusable for cause, seemed to be sympathetic to the defense in that she had expressed reservations about the death penalty. The defense in the instant case was deprived of an opportunity to remove an otherwise qualified juror whom it perceived to be sympathetic to the prosecution. The defense's loss of a peremptory challenge thus resulted in a " `tribunal organized to return a verdict of death' " in exactly the fashion we rejected so recently in Gray. 481 U. S., at 668, quoting Witherspoon, supra, at 521. The Court attempts to distinguish Gray in two ways. First, the Court dismissively declares that the Gray standard is "too sweeping to be applied literally." Ante, at 87. The Court offers only one reason for narrowing Gray's broad language: if any Sixth Amendment error that "could possibly have . . . affected" the composition of the jury requires reversal, a trial court could never dismiss the venire and start anew, because the jury resulting from the new venire would necessarily be different from the one that would have been empaneled in the absence of the original error. Ante, at 87, n. 2. This argument misses the point of the Gray decision. The Gray Court did not hold that a defendant has the right to any particular venire or panel; rather, the Court held that a defendant has a right to a jury selection procedure untainted by constitutional error. Because it is impossible to be sure that an erroneous ruling by the trial court did not tilt the panel against the defendant, a death sentence returned by such a panel cannot stand. A wholly new venire does not pose the same problem of "tilting" as the result of constitutional error. Thus, the Court is simply wrong that the Gray standard would prevent a trial court from correcting an erroneous 95 ruling by starting anew. The Court's unwillingness to apply the Gray standard "literally" is without foundation. Second, the Court attempts to limit Gray by distinguishing it factually from the instant case. The Court correctly notes that "[o]ne of the principal concerns animating the decision in Gray was the inability to know to a certainty whether the prosecution could and would have used a peremptory challenge to remove the erroneously excused juror." Ante, at 88, citing 481 U.S., at 670, n. 2 (Powell, J., concurring in part and concurring in judgment). The Court then attempts to distinguish the instant case as follows: "In the instant case, there is no need to speculate whether Huling would have been removed absent the erroneous ruling by the trial court; Huling was in fact removed and did not sit." Ante, at 88. The Court again misses the point of the Gray Court's reasoning. Gray did not indicate that the use of peremptory challenges always "cures" erroneous for-cause rulings. Rather, the Gray Court reasoned that if it could be sure that the prosecution would have excused the erroneously excused juror by use of a peremptory challenge, and if it could be sure that the composition of the jury panel would thereby be identical to the jury that was empaneled as a result of the error, then there would be no need for reversal. Because the Court could not be certain of the former point, reversal was required. In the instant case, although the Court can be sure that a peremptory challenge was in fact employed in an attempt to cure the erroneous for-cause ruling, the Court cannot be sure that the composition of the jury panel was thereby unaffected as the Court itself acknowledges. See ante, at 87. Reversal is therefore required in the instant case as well, as the very portion of Justice Powell's concurrence in Gray that is quoted by the Court clearly establishes: "the only question is whether there is a reasonable doubt that the composition of the venire would have been different as a result." 481 U.S., at 670, n. 2. 96 The only argument that might successfully distinguish the instant case from Gray is implicit in the Court's holding, although not expressly made. The Court leaves undisturbed Gray's rule that constitutional error in jury selection requires reversal if it changes the composition of the jury, but the Court holds that reversal is not required if state law requires a party to attempt to correct such error and this attempt leads to a change in jury composition. Under this view, any change in the composition of the jury wrought by the loss of a defense peremptory in the instant case was the result not of the trial court's error, but of the defense's attempt to cure that error pursuant to state law; the defense's use of a peremptory challenge was an intervening cause that broke the causal link between the trial court's error and the change in jury composition. This "intervening cause" argument does distinguish the instant case from Gray, but it engenders serious constitutional problems of its own. The State's requirement that a defendant employ a peremptory challenge in order to preserve a Sixth Amendment claim arising from a trial court's erroneous for-cause ruling burdens the defendant's exercise of his Sixth Amendment right to a impartial jury. It is undisputed that petitioner had a Sixth Amendment right to be sentenced by a jury on which juror Huling did not sit. Yet the only way for petitioner to preserve this right under state law was to give up one of a limited number of peremptory challenges. We have emphasized that the ability to exercise peremptory challenges is "one of the most important of the rights secured to the accused," Pointer v. United States, 151 U.S. 396, 408 (1894), and that it "long has served the selection of an impartial jury," Batson v. Kentucky, 476 U.S. 79, 99, n. 22 (1986). It cannot seriously be questioned that the loss of a peremptory challenge vis-a-vis the prosecution burdens the defense in pretrial proceedings. A venerable line of this Court's precedents has held that legislative schemes that unnecessarily burden the exercise of 97 federal constitutional rights cannot stand. Just a few examples from the criminal context suffice to establish this principle. In United States v. Jackson, 390 U.S. 570 (1968), the Court struck down a provision of the Federal Kidnapping Act that rendered eligible for the death penalty only defendants who invoked their right to trial by jury. The Court recognized that Congress' goal in enacting the provision was legitimate, but held that "[w]hatever might be said of Congress' objectives, they cannot be pursued by means that needlessly chill the exercise of basic constitutional rights." Id., at 582. And in Brooks v. Tennessee, 406 U.S. 605 (1972), the Court struck down a state law that required a defendant who wished to testify on his own behalf to be the first defense witness presented. We noted that the state law at issue "exacts a price for [the defendant's] silence by keeping him off the stand entirely unless he chooses to testify first," id., at 610, and that it therefore "casts a heavy burden on a defendant's otherwise unconditional right not to take the stand," id., at 610-611. The Court today ignores the clear dictates of these and other similar cases by condoning a scheme in which a defendant must surrender procedural parity with the prosecution in order to preserve his Sixth Amendment right to an impartial jury. The Court notes that "there is nothing arbitrary or irrational" about the State's rule that a defendant must use a peremptory challenge to cure an erroneous for-cause ruling, because the State has an interest in preventing needless or frivolous appeals. Ante, at 90. But the existence of a rational rather than a punitive reason for a burdensome requirement is of little significance under our cases. In Brooks, the State's interest in preventing the defendant's testimony from being influenced by the testimony of other defense witnesses was rational, but we found it insufficient to override the defendant's right to remain silent at trial. 406 U.S., at 611. And in Jackson, we struck down a federal statutory provision that was motivated by the legitimate interest *98 of permitting the death penalty to be imposed only upon the recommendation of a jury, because Congress had other means available to achieve that goal without burdening the exercise of constitutional rights. 390 U.S., at 582-583. In the instant case, the State's desire to prevent needless or frivolous appeals is insufficient to overcome the right to an impartial adjudicator, which "goes to the very integrity of the legal system." Gray, 481 U. S., at 668. Moreover, the State's concerns obviously could be addressed in numerous other ways. See, e. g., Oklahoma Supreme Court Code of Professional Responsibility, DR 1-102(A)(4) ("A lawyer shall not . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation"). The burden on petitioner's Sixth Amendment rights is thus both heavy and avoidable. Our cases accordingly mandate the conclusion that the Oklahoma scheme cannot stand. The Court's failure to apply Gray's rule of per se reversal in this case is not justified by any of the Court's attempts to distinguish Gray. The only argument that might distinguish the instant case from Gray must condone an impermissible burden on the exercise of petitioner's Sixth Amendment right to an impartial jury. Because I am convinced that the Court's decision today cannot be squared with the Sixth Amendment either under our recent analysis in Gray or our other precedents, I dissent. I would reverse the judgment of the Oklahoma Court of Criminal Appeals to the extent that it left undisturbed the sentence of death.	A man's life is at stake. We should not be playing games. In this case, everyone concedes that the trial judge could not arbitrarily take away one of the defendant's peremptory challenges. 92 Yet, that is in effect exactly what happened here. I respectfully dissent. Neither the State nor this Court disputes that the trial court "erred" when it refused to strike juror Huling for cause from the jury that sentenced petitioner Bobby Lynn Ross to death. Huling twice stated during voir dire that if he were to find Ross guilty of murder, he would automatically vote to impose the death penalty; there is no question that Huling was not the fair and impartial juror guaranteed to petitioner by the Sixth Amendment. The Court concludes, however, that the trial court's error does not require resentencing because it was "cure[d]" by the defense's use of one of a limited number of peremptory challenges to remove the biased juror. Ante, at 88. I believe that this conclusion is irreconcilable with this Court's holding just last Term that a similar Sixth Amendment error in capital jury selection requires resentencing if " `the composition of the jury panel as a whole could possibly have been affected by the trial court's ' " quoting (CA5) (specially concurring opinion), cert. denied, 4 U.S. 1111 The Court's attempt to distinguish not only fails to persuade, but also fails to protect petitioner's Sixth Amendment right to an impartial jury by condoning a scheme that penalizes the assertion of that right. I am convinced that application of 's per se resentencing rule in this case is the only course consistent with the Sixth Amendment. In the trial court granted the State's motion to strike for cause a juror who expressed some reservations about capital punishment, but nonetheless stated that she could vote to impose the death penalty in appropriate circumstances. The trial court's exclusion of this qualified juror was Sixth Amendment error under and The Court refused the State's invitation to apply harmless-error analysis to such an Specifically, 93 the Court rejected the argument that the State's retention of unexercised peremptory challenges at the end of jury selection indicated that the error was harmless because the State would have removed the juror by peremptory challenge if the trial court had denied its for-cause motion. In addition, the Court rejected the argument that the error was an isolated incident without prejudicial effect because the ultimate panel fairly represented the community. The Court explained that the contingent nature of the jury selection process "defies any attempt to establish that an erroneous -Witt exclusion of a juror is harmless." 481 U.S., at According to the Court, "the relevant inquiry is `whether the composition of the jury panel as a whole could possibly have been affected by the trial court's ' " The Court recognized that its decision established a per se rule requiring the vacation of a death sentence imposed by a jury whose composition was affected by 668. The Court today unaccountably refuses to apply this per se rule in a case involving a similar Sixth Amendment Here the trial court, rather than excusing a qualified juror, refused to excuse a biased juror. The defense's attempt to correct the court's error and preserve its Sixth Amendment claim deprived it of a peremptory challenge. That deprivation "could possibly have affected" the composition of the jury panel under the standard, because the defense might have used the extra peremptory to remove another juror and because the loss of a peremptory might have affected the defense's strategic use of its remaining peremptories. See at Even the Court acknowledges that the defense's loss of a peremptory meets the test. See ante, at 87 ("[T]he failure to remove Huling may have resulted in a 94 jury panel different from that which would otherwise have decided the case"). Indeed, the loss of a peremptory challenge in this case affected the composition of the jury panel in precisely the same way as the trial court's error in itself. In the defendant was deprived of a juror who, although inexcusable for cause, seemed to be sympathetic to the defense in that she had expressed reservations about the death penalty. The defense in the instant case was deprived of an opportunity to remove an otherwise qualified juror whom it perceived to be sympathetic to the prosecution. The defense's loss of a peremptory challenge thus resulted in a " `tribunal organized to return a verdict of death' " in exactly the fashion we rejected so recently in quoting The Court attempts to distinguish in two ways. First, the Court dismissively declares that the standard is "too sweeping to be applied literally." Ante, at 87. The Court offers only one reason for narrowing 's broad language: if any Sixth Amendment error that "could possibly have affected" the composition of the jury requires reversal, a trial court could never dismiss the venire and start anew, because the jury resulting from the new venire would necessarily be different from the one that would have been empaneled in the absence of the original Ante, at 87, n. 2. This argument misses the point of the decision. The Court did not hold that a defendant has the right to any particular venire or panel; rather, the Court held that a defendant has a right to a jury selection procedure untainted by constitutional Because it is impossible to be sure that an erroneous ruling by the trial court did not tilt the panel against the defendant, a death sentence returned by such a panel cannot stand. A wholly new venire does not pose the same problem of "tilting" as the result of constitutional Thus, the Court is simply wrong that the standard would prevent a trial court from correcting an erroneous 95 ruling by starting anew. The Court's unwillingness to apply the standard "literally" is without foundation. Second, the Court attempts to limit by distinguishing it factually from the instant case. The Court correctly notes that "[o]ne of the principal concerns animating the decision in was the inability to know to a certainty whether the prosecution could and would have used a peremptory challenge to remove the erroneously excused juror." Ante, at 88, citing n. 2 The Court then attempts to distinguish the instant case as follows: "In the instant case, there is no need to speculate whether Huling would have been removed absent the erroneous ruling by the trial court; Huling was in fact removed and did not sit." Ante, at 88. The Court again misses the point of the Court's reasoning. did not indicate that the use of peremptory challenges always "cures" erroneous for-cause rulings. Rather, the Court reasoned that if it could be sure that the prosecution would have excused the erroneously excused juror by use of a peremptory challenge, and if it could be sure that the composition of the jury panel would thereby be identical to the jury that was empaneled as a result of the error, then there would be no need for reversal. Because the Court could not be certain of the former point, reversal was required. In the instant case, although the Court can be sure that a peremptory challenge was in fact employed in an attempt to cure the erroneous for-cause ruling, the Court cannot be sure that the composition of the jury panel was thereby unaffected as the Court itself acknowledges. See ante, at 87. Reversal is therefore required in the instant case as well, as the very portion of Justice Powell's concurrence in that is quoted by the Court clearly establishes: "the only question is whether there is a reasonable doubt that the composition of the venire would have been different as a result." n. 2. 96 The only argument that might successfully distinguish the instant case from is implicit in the Court's holding, although not expressly made. The Court leaves undisturbed 's rule that constitutional error in jury selection requires reversal if it changes the composition of the jury, but the Court holds that reversal is not required if state law requires a party to attempt to correct such error and this attempt leads to a change in jury composition. Under this view, any change in the composition of the jury wrought by the loss of a defense peremptory in the instant case was the result not of the trial court's error, but of the defense's attempt to cure that error pursuant to state law; the defense's use of a peremptory challenge was an intervening cause that broke the causal link between the trial court's error and the change in jury composition. This "intervening cause" argument does distinguish the instant case from but it engenders serious constitutional problems of its own. The State's requirement that a defendant employ a peremptory challenge in order to preserve a Sixth Amendment claim arising from a trial court's erroneous for-cause ruling burdens the defendant's exercise of his Sixth Amendment right to a impartial jury. It is undisputed that petitioner had a Sixth Amendment right to be sentenced by a jury on which juror Huling did not sit. Yet the only way for petitioner to preserve this right under state law was to give up one of a limited number of peremptory challenges. We have emphasized that the ability to exercise peremptory challenges is "one of the most important of the rights secured to the accused," and that it "long has served the selection of an impartial jury," It cannot seriously be questioned that the loss of a peremptory challenge vis-a-vis the prosecution burdens the defense in pretrial proceedings. A venerable line of this Court's precedents has held that legislative schemes that unnecessarily burden the exercise of 97 federal constitutional rights cannot stand. Just a few examples from the criminal context suffice to establish this principle. In United the Court struck down a provision of the Federal Kidnapping Act that rendered eligible for the death penalty only defendants who invoked their right to trial by jury. The Court recognized that Congress' goal in enacting the provision was legitimate, but held that "[w]hatever might be said of Congress' objectives, they cannot be pursued by means that needlessly chill the exercise of basic constitutional " at 2. And in the Court struck down a state law that required a defendant who wished to testify on his own behalf to be the first defense witness presented. We noted that the state law at issue "exacts a price for [the defendant's] silence by keeping him off the stand entirely unless he chooses to testify first," and that it therefore "casts a heavy burden on a defendant's otherwise unconditional right not to take the stand," -611. The Court today ignores the clear dictates of these and other similar cases by condoning a scheme in which a defendant must surrender procedural parity with the prosecution in order to preserve his Sixth Amendment right to an impartial jury. The Court notes that "there is nothing arbitrary or irrational" about the State's rule that a defendant must use a peremptory challenge to cure an erroneous for-cause ruling, because the State has an interest in preventing needless or frivolous appeals. Ante, at 90. But the existence of a rational rather than a punitive reason for a burdensome requirement is of little significance under our cases. In Brooks, the State's interest in preventing the defendant's testimony from being influenced by the testimony of other defense witnesses was rational, but we found it insufficient to override the defendant's right to remain silent at trial. And in Jackson, we struck down a federal statutory provision that was motivated by the legitimate interest *98 of permitting the death penalty to be imposed only upon the recommendation of a jury, because Congress had other means available to achieve that goal without burdening the exercise of constitutional 390 U.S., at 2-3. In the instant case, the State's desire to prevent needless or frivolous appeals is insufficient to overcome the right to an impartial adjudicator, which "goes to the very integrity of the legal system." Moreover, the State's concerns obviously could be addressed in numerous other ways. See, e. g., Oklahoma Supreme Court Code of Professional Responsibility, DR 1-102(A)(4) ("A lawyer shall not [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation"). The burden on petitioner's Sixth Amendment rights is thus both heavy and avoidable. Our cases accordingly mandate the conclusion that the Oklahoma scheme cannot stand. The Court's failure to apply 's rule of per se reversal in this case is not justified by any of the Court's attempts to distinguish The only argument that might distinguish the instant case from must condone an impermissible burden on the exercise of petitioner's Sixth Amendment right to an impartial jury. Because I am convinced that the Court's decision today cannot be squared with the Sixth Amendment either under our recent analysis in or our other precedents, I dissent. I would reverse the judgment of the Oklahoma Court of Criminal Appeals to the extent that it left undisturbed the sentence of death.
Justice Rehnquist	majority	false	Jefferson v. Hackney	1972-10-10T00:00:00	null	https://www.courtlistener.com/opinion/108548/jefferson-v-hackney/	https://www.courtlistener.com/api/rest/v3/clusters/108548/	1,972	1971-120	1	5	4	Appellants in this case challenge certain computation procedures that the State of Texas uses in its federally assisted welfare program. Believing that neither the Constitution nor the federal welfare statute prohibits the State from adopting these policies, we affirm the judgment of the three-judge court below upholding the state procedures. I Appellants are Texas recipients of Aid to Families With Dependent Children (AFDC). They brought two class 537 actions, which were consolidated in the United States District Court for the Northern District of Texas, seeking injunctive and declaratory relief against state welfare officials. A three-judge court was convened pursuant to 28 U.S. C. § 2281. The Texas State Constitution provides a ceiling on the amount the State can spend on welfare assistance grants.[1] In order to allocate this fixed pool of welfare money among the numerous individuals with acknowledged need, the State has adopted a system of percentage grants. Under this system, the State first computes the monetary needs of individuals eligible for relief under each of the federally aided categorical assistance programs.[2] Then, since the constitutional ceiling on welfare is insufficient to bring each recipient up to this full standard of need, the State applies a percentage reduction factor[3] in order to arrive at a reduced standard of need in each category that the State can guarantee. Appellants challenge the constitutionality of applying a lower percentage reduction factor to AFDC than to 538 the other categorical assistance programs. They claim a violation of equal protection because the proportion of AFDC recipients who are black or Mexican-American is higher than the proportion of the aged, blind, or disabled welfare recipients who fall within these minority groups. Appellants claim that the distinction between the programs is not rationally related to the purposes of the Social Security Act, and violates the Fourteenth Amendment for that reason as well. In their original complaint, appellants also argued that any percentage-reduction system violated § 402 (a) (23) of the Social Security Act of 1935, as amended, 81 Stat. 898, 42 U.S. C. § 602 (a) (23), which required each State to make certain cost-of-living adjustments to its standard of need. The three-judge court rejected appellants' constitutional arguments, finding that the Texas system is neither racially discriminatory nor unconstitutionally arbitrary. The court did, however, accept the statutory claim that Texas' percentage reductions in the AFDC program violate the congressional command of § 402 (a) (23). 304 F. Supp. 1332 (ND Tex. 1969). Subsequent to that judgment, this Court decided Rosado v. Wyman, 397 U.S. 397 (1970). Rosado held that, although § 402 (a) (23) required States to make cost-of-living adjustments in their standard-of-need calculations, it did not prohibit use of percentage-reduction systems that limited the amount of welfare assistance actually paid. 397 U.S., at 413. This Court then vacated and remanded the first Jefferson judgment for further proceedings consistent with Rosado. 397 U.S. 821 (1970). On remand, the District Court entered a new judgment, denying all relief. Then, in a motion to amend the judgment, appellants raised a new statutory claim. They argued for the first time that although a percentage-reduction system may be consistent with the statute, the 539 specific procedures that Texas uses for computing that reduction violate the congressional enactment. The District Court rejected this argument and denied without opinion appellants' motion to amend the judgment. This appeal under 28 U.S. C. § 1253 then followed, and we noted probable jurisdiction. 404 U.S. 820 (1971). II Appellants' statutory argument relates to the method that the State uses to compute the percentage reduction when the recipient also has some outside income. Texas, like many other States,[4] first applies the percentage-reduction factor to the recipient's standard of need, thus arriving at a reduced standard of need that the State can guarantee for each recipient within the present budgetary restraints. After computing this reduced standard of need, the State then subtracts any nonexempt[5] income in order to arrive at the level of benefits that the recipient needs in order to reach his reduced standard of need. This is the amount of welfare the recipient is given. Under an alternative system used by other States, the order of computation is reversed. First, the outside income is subtracted from the standard of need, in order to determine the recipient's "unmet need." Then, the percentage-reduction factor is applied to the unmet need, in order to determine the welfare benefits payable. The two systems of accounting for outside income yield different results.[6] Under the Texas system all 540 welfare recipients with the same needs have the same amount of money available each month, whether or not they have outside income. Since the outside income is applied dollar for dollar to the reduced standard of need, which the welfare department would otherwise pay in full, it does not result in a net improvement in the financial position of the recipient. Under the alternative system, on the other hand, any welfare recipient who also has outside income is in a better financial position because of it. The reason is that the percentage-reduction factor there is applied to the "unmet need," after the income has been subtracted. Thus, in effect, the income-earning recipient is able to "keep" all his income, while he receives only a percentage of the remainder of his standard of need.[7] 541 Each of the two systems has certain advantages. Appellants note that under the alternative system there is a financial incentive for welfare recipients to obtain outside income. The Texas computation method eliminates any such financial incentive, so long as the outside income remains less than the recipient's reduced standard of need.[8] However, since Texas' pool of available welfare funds is fixed, any increase in benefits paid to the working poor would have to be offset by reductions elsewhere. Thus, if Texas were to switch to the alternative system of recognizing outside income, it would be forced to lower its percentage-reduction factor, in order to keep down its welfare budget. Lowering the percentage would result in less money for those who need the welfare benefits the mostthose with no outside incomeand the State has been unwilling to do this. Striking the proper balance between these competing policy considerations is, of course, not the function of this Court. "There is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program." King v. Smith, 392 U.S. 309, 318-319 (1968) (footnotes omitted).[9] So long as the State's actions are not in violation of any specific provision of the Constitution or the Social Security Act, appellants' policy arguments must be addressed to a different forum. 542 Appellants assert, however, that the Texas computation procedures are contrary to § 402 (a) (23): "(a) A State plan for aid and services to needy families with children must ..... "(23) provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any maximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted." Recognizing that this statutory language, by its terms, hardly provides much support for their theory, appellants seek to rely on what they perceive to have been the broad congressional purpose in enacting the provision. In Rosado v. Wyman, supra, the Court reviewed the history of this section and rejected the argument that it had worked any radical shift in the AFDC program. Id., at 414 and n. 17. AFDC has long been referred to as a "scheme of cooperative federalism," King v. Smith, 392 U. S., at 316, and the Rosado Court dismissed as "adventuresome" any interpretation of § 402 (a) (23) that would deprive the States of their traditional discretion to set the levels of payments. 397 U.S., at 414-415 and n. 17. Instead, the statute was meant to require the States to make cost-of-living adjustments to their standards of need, thereby serving "two broad purposes": "First, to require States to face up realistically to the magnitude of the public assistance requirement and lay bare the extent to which their programs fall short of fulfilling actual need; second, to prod the States to apportion their payments on a more equitable basis." Id., at 412-413. 543 Texas has complied with these two requirements. Effective May 1, 1969, the standard of need for AFDC recipients was raised 11% to reflect the rise in the cost of living, and the State shifted from a maximum-grant system to its present percentage-reduction system. In this way, the State has fairly recognized and exposed the precise level of unmet need, and by using a percentage-reduction system it has attempted to apportion the State's limited benefits more equitably. Although Texas has thus responded to the "two broad purposes" of § 402 (a) (23), appellants argue that Congress also intended that statute to increase the total number of recipients of AFDC, so that more people would qualify for the subsidiary benefits that are dependent on receipt of AFDC cash assistance.[10] The Texas computation procedures are thought objectionable since they do not increase the welfare rolls to quite the same extent as would the alternative method of recognizing outside income. We do not agree that Congress intended § 402 (a) (23) to invalidate any state computation procedures that do not absolutely maximize individual eligibility for subsidiary benefits. The cost-of-living increase that Congress mandated would, of course, generally tend to increase eligibility,[11] but there is nothing in the legislative history 544 indicating that this was part of the statutory purpose. Indeed, at the same time Congress enacted § 402 (a) (23) it included another section designed to induce States to reduce the number of individuals eligible for the AFDC program.[12] Thus, what little legislative history there is on the point, see Rosado v. Wyman, 397 U. S., at 409-412, tends to undercut appellants' theory. See Lampton v. Bonin, 304 F. Supp. 1384, 1391-1392 (ED La. 1969) (Cassibry, J., dissenting). See generally Note, 58 Geo. L. J. 591 (1970). Appellants also argue that the Texas system should be held invalid because the alternative computation method results in greater work incentives for welfare recipients.[13] The history and purpose of the Social Security Act do indicate Congress' desire to help those on welfare become self-sustaining. Indeed, Congress has specifically mandated certain work incentives in § 402 (a) (8). There is no dispute here, however, about Texas' compliance with these very detailed provisions for work incentives. Neither their inclusion in the Act nor the language used by Congress in other sections of the Act supports the inference that Congress mandated the States to change their income-computation procedures in other, completely unmentioned areas. Nor are appellants aided by their reference to Social Security Act § 402 (a) (10), 42 U.S. C. § 602 (a) (10), which provides that AFDC benefits must "be furnished 545 with reasonable promptness to all eligible individuals." That section was enacted at a time when persons whom the State had determined to be eligible for the payment of benefits were placed on waiting lists, because of the shortage of state funds. The statute was intended to prevent the States from denying benefits, even temporarily, to a person who has been found fully qualified for aid. See H. R. Rep. No. 1300, 81st Cong., 1st Sess., 48, 148 (1949); 95 Cong. Rec. 13934 (remarks of Rep. Forand). Section 402 (a) (10) also prohibits a State from creating certain exceptions to standards specifically enunciated in the federal Act. See, e. g., Townsend v. Swank, 404 U.S. 282 (1971). It does not, however, enact by implication a generalized federal criterion to which States must adhere in their computation of standards of need, income, and benefits.[14] Such an interpretation would be an intrusion into an area in which Congress has given the States broad discretion, and we cannot accept appellants' invitation to change this longstanding statutory scheme simply for policy consideration reasons of which we are not the arbiter. III We turn, then, to appellants' claim that the Texas system of percentage reductions violates the Fourteenth Amendment. Appellants believe that once the State has computed a standard of need for each recipient, it is arbitrary and discriminatory to provide only 75% of that standard to AFDC recipients, while paying 100% of recognized need to the aged, and 95% to the disabled and the blind. They argue that if the State adopts a 546 percentage-reduction system, it must apply the same percentage to each of its welfare programs. This claim was properly rejected by the court below. It is clear from the statutory framework that, although the four categories of public assistance found in the Social Security Act have certain common elements, the States were intended by Congress to keep their AFDC plans separate from plans under the other titles of the Act.[15] A State is free to participate in one, several, or all of the categorical assistance programs, as it chooses. It is true that each of the programs is intended to assist the needy, but it does not follow that there is only one constitutionally permissible way for the State to approach this important goal. This Court emphasized only recently, in Dandridge v. Williams, 397 U.S. 471, 485 (1970), that in "the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect." A legislature may address a problem "one step at a time," or even "select one phase of one field and apply a remedy there, neglecting the others." Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955). So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket. The very complexity of the problems suggests that there will be more 547 than one constitutionally permissible method of solving them. The standard of judicial review is not altered because of appellants' unproved allegations of racial discrimination. The three-judge court found that the "payment by Texas of a lesser percentage of unmet needs to the recipients of the AFDC than to the recipients of other welfare programs is not the result of racial or ethnic prejudice and is not violative of the federal Civil Rights Act or the Equal Protection Clause of the 14th Amendment." The District Court obviously gave careful consideration to this issue, and we are cited by its opinion to a number of subsidiary facts to support its principal finding quoted above. There has never been a reduction in the amount of money appropriated by the legislature to the AFDC program, and between 1943 and the date of the opinion below there had been five increases in the amount of money appropriated by the legislature for the program, two of them having occurred since 1959.[16] The overall percentage increase in appropriation for the programs between 1943 and the time of the District Court's hearing in this case was 410% for AFDC, as opposed to 211% for OAA and 200% for AB. The court further concluded: "The depositions of Welfare officials conclusively establish that the defendants did not know the racial make-up of the various welfare assistance categories prior to or at the time when the orders here under attack were issued." Appellants in their brief in effect abandon any effort 548 to show that these findings of fact were clearly erroneous, and we hold they were not. Appellants are thus left with their naked statistical argument: that there is a larger percentage of Negroes and Mexican-Americans in AFDC than in the other programs,[17] and that the AFDC is funded at 75% whereas the other programs are funded at 95% and 100% of recognized need. As the statistics cited in the footnote demonstrate, the number of minority members in all categories is substantial. The basic outlines of eligibility for the various categorical grants are established by Congress, not by the States; given the heterogeneity of the Nation's population, it would be only an infrequent coincidence that the racial composition of each grant class was identical to that of the others. The acceptance of appellants' constitutional theory would render suspect each difference in treatment among the grant classes, however lacking in racial motivation and however otherwise rational the treatment might be. Few legislative efforts to deal with the difficult problems posed by current welfare programs could survive 549 such scrutiny, and we do not find it required by the Fourteenth Amendment.[18] Applying the traditional standard of review under that amendment, we cannot say that Texas' decision to provide somewhat lower welfare benefits for AFDC recipients is invidious or irrational. Since budgetary constraints do not allow the payment of the full standard of need for all welfare recipients, the State may have concluded that the aged and infirm are the least able of the categorical grant recipients to bear the hardships of an inadequate standard of living. While different policy judgments are of course possible, it is not irrational for the State to believe that the young are more adaptable than the sick and elderly, especially because the latter have less hope of improving their situation in the years remaining to them. Whether or not one agrees with this state determination, there is nothing in the Constitution that forbids it.[19] Similarly, we cannot accept the argument in MR. 550 JUSTICE MARSHALL's dissent that the Social Security Act itself requires equal percentages for each categorical assistance program. The dissent concedes that a State might simply refuse to participate in the AFDC program, while continuing to receive federal money for the other categorical programs. See post, at 577. Nevertheless, it is argued that Congress intended to prohibit any middle groundonce the State does participate in a program it must do so on the same basis as it participates in every other program. Such an all-or-nothing policy judgment may well be defensible, and the dissenters may be correct that nothing in the statute expressly rejects it. But neither does anything in the statute approve or require it.[20] *551 In conclusion, we re-emphasize what the Court said in Dandridge v. Williams, 397 U. S., at 487: "We do not decide today that the [state law] is wise, that it best fulfills the relevant social and economic objectives that [the State] might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. . . . [T]he Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients." Affirmed. MR. JUSTICE STEWART joins in Part III of the Court's opinion. MR. JUSTICE DOUGLAS, with whom MR.	Appellants in this case challenge certain computation procedures that the State of Texas uses in its federally assisted welfare program. Believing that neither the Constitution nor the federal welfare statute prohibits the State from adopting these policies, we affirm the judgment of the three-judge court below upholding the state procedures. I Appellants are Texas recipients of Aid to Families With Dependent Children (AFDC). They brought two class 537 actions, which were consolidated in the United States District Court for the Northern District of Texas, seeking injunctive and declaratory relief against state welfare officials. A three-judge court was convened pursuant to 28 U.S. C. 2281. The Texas State Constitution provides a ceiling on the amount the State can spend on welfare assistance grants.[1] In order to allocate this fixed pool of welfare money among the numerous individuals with acknowledged need, the State has adopted a system of percentage grants. Under this system, the State first computes the monetary needs of individuals eligible for relief under each of the federally aided categorical assistance programs.[2] Then, since the constitutional ceiling on welfare is insufficient to bring each recipient up to this full standard of need, the State applies a percentage reduction factor[3] in order to arrive at a reduced standard of need in each category that the State can guarantee. Appellants challenge the constitutionality of applying a lower percentage reduction factor to AFDC than to 538 the other categorical assistance programs. They claim a violation of equal protection because the proportion of AFDC recipients who are black or Mexican-American is higher than the proportion of the aged, blind, or disabled welfare recipients who fall within these minority groups. Appellants claim that the distinction between the programs is not rationally related to the purposes of the Social Security Act, and violates the Fourteenth Amendment for that reason as well. In their original complaint, appellants also argued that any percentage-reduction system violated 402 (a) (23) of the Social Security Act of 1935, as amended, 42 U.S. C. 602 (a) (23), which required each State to make certain cost-of-living adjustments to its standard of need. The three-judge court rejected appellants' constitutional arguments, finding that the Texas system is neither racially discriminatory nor unconstitutionally arbitrary. The court did, however, accept the statutory claim that Texas' percentage reductions in the AFDC program violate the congressional command of 402 (a) (23). Subsequent to that judgment, this Court decided Rosado held that, although 402 (a) (23) required States to make cost-of-living adjustments in their standard-of-need calculations, it did not prohibit use of percentage-reduction systems that limited the amount of welfare assistance actually This Court then vacated and remanded the first Jefferson judgment for further proceedings consistent with Rosado. On remand, the District Court entered a new judgment, denying all relief. Then, in a motion to amend the judgment, appellants raised a new statutory claim. They argued for the first time that although a percentage-reduction system may be consistent with the statute, the 539 specific procedures that Texas uses for computing that reduction violate the congressional enactment. The District Court rejected this argument and denied without opinion appellants' motion to amend the judgment. This appeal under 28 U.S. C. 1253 then followed, and we noted probable jurisdiction. II Appellants' statutory argument relates to the method that the State uses to compute the percentage reduction when the recipient also has some outside income. Texas, like many other States,[4] first applies the percentage-reduction factor to the recipient's standard of need, thus arriving at a reduced standard of need that the State can guarantee for each recipient within the present budgetary restraints. After computing this reduced standard of need, the State then subtracts any nonexempt[5] income in order to arrive at the level of benefits that the recipient needs in order to reach his reduced standard of need. This is the amount of welfare the recipient is given. Under an alternative system used by other States, the order of computation is reversed. First, the outside income is subtracted from the standard of need, in order to determine the recipient's "unmet need." Then, the percentage-reduction factor is applied to the unmet need, in order to determine the welfare benefits payable. The two systems of accounting for outside income yield different results.[6] Under the Texas system all 540 welfare recipients with the same needs have the same amount of money available each month, whether or not they have outside income. Since the outside income is applied dollar for dollar to the reduced standard of need, which the welfare department would otherwise pay in full, it does not result in a net improvement in the financial position of the recipient. Under the alternative system, on the other hand, any welfare recipient who also has outside income is in a better financial position because of it. The reason is that the percentage-reduction factor there is applied to the "unmet need," after the income has been subtracted. Thus, in effect, the income-earning recipient is able to "keep" all his income, while he receives only a percentage of the remainder of his standard of need.[7] 541 Each of the two systems has certain advantages. Appellants note that under the alternative system there is a financial incentive for welfare recipients to obtain outside income. The Texas computation method eliminates any such financial incentive, so long as the outside income remains less than the recipient's reduced standard of need.[8] However, since Texas' pool of available welfare funds is fixed, any increase in benefits paid to the working poor would have to be offset by reductions elsewhere. Thus, if Texas were to switch to the alternative system of recognizing outside income, it would be forced to lower its percentage-reduction factor, in order to keep down its welfare budget. Lowering the percentage would result in less money for those who need the welfare benefits the mostthose with no outside incomeand the State has been unwilling to do this. Striking the proper balance between these competing policy considerations is, of course, not the function of this Court. "There is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program."[9] So long as the State's actions are not in violation of any specific provision of the Constitution or the Social Security Act, appellants' policy arguments must be addressed to a different forum. 542 Appellants assert, however, that the Texas computation procedures are contrary to 402 (a) (23): "(a) A State plan for aid and services to needy families with children must "(23) provide that by July 1, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any maximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted." Recognizing that this statutory language, by its terms, hardly provides much support for their theory, appellants seek to rely on what they perceive to have been the broad congressional purpose in enacting the provision. In the Court reviewed the history of this section and rejected the argument that it had worked any radical shift in the AFDC program. at 414 and n. 17. AFDC has long been referred to as a "scheme of cooperative federalism," and the Rosado Court dismissed as "adventuresome" any interpretation of 402 (a) (23) that would deprive the States of their traditional discretion to set the levels of -415 and n. 17. Instead, the statute was meant to require the States to make cost-of-living adjustments to their standards of need, thereby serving "two broad purposes": "First, to require States to face up realistically to the magnitude of the public assistance requirement and lay bare the extent to which their programs fall short of fulfilling actual need; second, to prod the States to apportion their payments on a more equitable basis." 543 Texas has complied with these two requirements. Effective May 1, the standard of need for AFDC recipients was raised 11% to reflect the rise in the cost of living, and the State shifted from a maximum-grant system to its present percentage-reduction system. In this way, the State has fairly recognized and exposed the precise level of unmet need, and by using a percentage-reduction system it has attempted to apportion the State's limited benefits more equitably. Although Texas has thus responded to the "two broad purposes" of 402 (a) (23), appellants argue that Congress also intended that statute to increase the total number of recipients of AFDC, so that more people would qualify for the subsidiary benefits that are dependent on receipt of AFDC cash assistance.[10] The Texas computation procedures are thought objectionable since they do not increase the welfare rolls to quite the same extent as would the alternative method of recognizing outside income. We do not agree that Congress intended 402 (a) (23) to invalidate any state computation procedures that do not absolutely maximize individual eligibility for subsidiary benefits. The cost-of-living increase that Congress mandated would, of course, generally tend to increase eligibility,[11] but there is nothing in the legislative history 544 indicating that this was part of the statutory purpose. Indeed, at the same time Congress enacted 402 (a) (23) it included another section designed to induce States to reduce the number of individuals eligible for the AFDC program.[12] Thus, what little legislative history there is on the point, see -412, tends to undercut appellants' theory. See See generally Note, 58 Geo. L. J. 591 Appellants also argue that the Texas system should be held invalid because the alternative computation method results in greater work incentives for welfare recipients.[13] The history and purpose of the Social Security Act do indicate Congress' desire to help those on welfare become self-sustaining. Indeed, Congress has specifically mandated certain work incentives in 402 (a) (8). There is no dispute here, however, about Texas' compliance with these very detailed provisions for work incentives. Neither their inclusion in the Act nor the language used by Congress in other sections of the Act supports the inference that Congress mandated the States to change their income-computation procedures in other, completely unmentioned areas. Nor are appellants aided by their reference to Social Security Act 402 (a) (10), 42 U.S. C. 602 (a) (10), which provides that AFDC benefits must "be furnished 545 with reasonable promptness to all eligible individuals." That section was enacted at a time when persons whom the State had determined to be eligible for the payment of benefits were placed on waiting lists, because of the shortage of state funds. The statute was intended to prevent the States from denying benefits, even temporarily, to a person who has been found fully qualified for aid. See H. R. Rep. No. 1300, 81st Cong., 1st Sess., 48, 148 (1949); 95 Cong. Rec. 13934 (remarks of Rep. Forand). Section 402 (a) (10) also prohibits a State from creating certain exceptions to standards specifically enunciated in the federal Act. See, e. g., It does not, however, enact by implication a generalized federal criterion to which States must adhere in their computation of standards of need, income, and benefits.[14] Such an interpretation would be an intrusion into an area in which Congress has given the States broad discretion, and we cannot accept appellants' invitation to change this longstanding statutory scheme simply for policy consideration reasons of which we are not the arbiter. III We turn, then, to appellants' claim that the Texas system of percentage reductions violates the Fourteenth Amendment. Appellants believe that once the State has computed a standard of need for each recipient, it is arbitrary and discriminatory to provide only 75% of that standard to AFDC recipients, while paying 100% of recognized need to the aged, and 95% to the disabled and the blind. They argue that if the State adopts a 546 percentage-reduction system, it must apply the same percentage to each of its welfare programs. This claim was properly rejected by the court below. It is clear from the statutory framework that, although the four categories of public assistance found in the Social Security Act have certain common elements, the States were intended by Congress to keep their AFDC plans separate from plans under the other titles of the Act.[15] A State is free to participate in one, several, or all of the categorical assistance programs, as it chooses. It is true that each of the programs is intended to assist the needy, but it does not follow that there is only one constitutionally permissible way for the State to approach this important goal. This Court emphasized only recently, in that in "the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect." A legislature may address a problem "one step at a time," or even "select one phase of one field and apply a remedy there, neglecting the others." So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket. The very complexity of the problems suggests that there will be more 547 than one constitutionally permissible method of solving them. The standard of judicial review is not altered because of appellants' unproved allegations of racial discrimination. The three-judge court found that the "payment by Texas of a lesser percentage of unmet needs to the recipients of the AFDC than to the recipients of other welfare programs is not the result of racial or ethnic prejudice and is not violative of the federal Civil Rights Act or the Equal Protection Clause of the 14th Amendment." The District Court obviously gave careful consideration to this issue, and we are cited by its opinion to a number of subsidiary facts to support its principal finding quoted above. There has never been a reduction in the amount of money appropriated by the legislature to the AFDC program, and between 1943 and the date of the opinion below there had been five increases in the amount of money appropriated by the legislature for the program, two of them having occurred since 1959.[16] The overall percentage increase in appropriation for the programs between 1943 and the time of the District Court's hearing in this case was 410% for AFDC, as opposed to 211% for OAA and 200% for AB. The court further concluded: "The depositions of Welfare officials conclusively establish that the defendants did not know the racial make-up of the various welfare assistance categories prior to or at the time when the orders here under attack were issued." Appellants in their brief in effect abandon any effort 548 to show that these findings of fact were clearly erroneous, and we hold they were not. Appellants are thus left with their naked statistical argument: that there is a larger percentage of Negroes and Mexican-Americans in AFDC than in the other programs,[17] and that the AFDC is funded at 75% whereas the other programs are funded at 95% and 100% of recognized need. As the statistics cited in the footnote demonstrate, the number of minority members in all categories is substantial. The basic outlines of eligibility for the various categorical grants are established by Congress, not by the States; given the heterogeneity of the Nation's population, it would be only an infrequent coincidence that the racial composition of each grant class was identical to that of the others. The acceptance of appellants' constitutional theory would render suspect each difference in treatment among the grant classes, however lacking in racial motivation and however otherwise rational the treatment might be. Few legislative efforts to deal with the difficult problems posed by current welfare programs could survive 549 such scrutiny, and we do not find it required by the Fourteenth Amendment.[18] Applying the traditional standard of review under that amendment, we cannot say that Texas' decision to provide somewhat lower welfare benefits for AFDC recipients is invidious or irrational. Since budgetary constraints do not allow the payment of the full standard of need for all welfare recipients, the State may have concluded that the aged and infirm are the least able of the categorical grant recipients to bear the hardships of an inadequate standard of living. While different policy judgments are of course possible, it is not irrational for the State to believe that the young are more adaptable than the sick and elderly, especially because the latter have less hope of improving their situation in the years remaining to them. Whether or not one agrees with this state determination, there is nothing in the Constitution that forbids it.[19] Similarly, we cannot accept the argument in MR. 550 JUSTICE MARSHALL's dissent that the Social Security Act itself requires equal percentages for each categorical assistance program. The dissent concedes that a State might simply refuse to participate in the AFDC program, while continuing to receive federal money for the other categorical programs. See post, at 577. Nevertheless, it is argued that Congress intended to prohibit any middle groundonce the State does participate in a program it must do so on the same basis as it participates in every other program. Such an all-or-nothing policy judgment may well be defensible, and the dissenters may be correct that nothing in the statute expressly rejects it. But neither does anything in the statute approve or require it.[20] *551 In conclusion, we re-emphasize what the Court said in : "We do not decide today that the [state law] is wise, that it best fulfills the relevant social and economic objectives that [the State] might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. [T]he Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients." Affirmed. MR. JUSTICE STEWART joins in Part III of the Court's opinion. MR. JUSTICE DOUGLAS, with whom MR.
Justice Rehnquist	dissenting	false	Keyes v. School Dist. No. 1, Denver	1973-10-09T00:00:00	null	https://www.courtlistener.com/opinion/108844/keyes-v-school-dist-no-1-denver/	https://www.courtlistener.com/api/rest/v3/clusters/108844/	1,973	1972-164	2	7	1	I The Court notes at the outset of its opinion the differences between the claims made by the plaintiffs in this case and the classical "de jure" type of claims made by plaintiffs in cases such as Brown v. Board of Education, 347 U.S. 483 (1954), and its progeny. I think the similarities and differences, not only in the claims, but in the nature of the constitutional violation, deserve somewhat more attention than the Court gives them. In Brown, the Court held unconstitutional statutes then prevalent in Southern and border States mandating that Negro children and white children attend separate schools. Under such a statute, of course, every child in the school system is segregated by race, and there is no racial mixing whatever in the population of any particular school. It is conceded that the State of Colorado and the city of Denver have never had a statute or ordinance of that description. The claim made by these plaintiffs, as described in the Court's opinion, is that the School Board by "use of various techniques such as the manipulation of student attendance zones, schoolsite selection and a neighborhood school policy" took race into account in making school assignments in such a way as to lessen that mixing of races which would have resulted from a racially neutral policy of school assignment. If such claims are proved, those minority students who as a result of such manipulative techniques are forced to attend schools other than those that they would have attended had attendance zones been neutrally drawn are undoubtedly deprived of their constitutional right to equal protection of the laws just as surely as were the plaintiffs in Brown v. Board of Education by the statutorily required segregation in that case. But the fact that invidious 255 racial discrimination is prohibited by the Constitution in the North as well as the South must not be allowed to obscure the equally important fact that the consequences of manipulative drawing of attendance zones in a school district the size of Denver does not necessarily result in denial of equal protection to all minority students within that district. There are significant differences between the proof which would support a claim such as that alleged by plaintiffs in this case, and the total segregation required by statute which existed in Brown. The Court's opinion obscures these factual differences between the situation shown by the record to have existed in Denver and the situations dealt with in earlier school desegregation opinions of the Court. The Court states, ante, at 200, that "[w]e have never suggested that plaintiffs in school desegregation cases must bear the burden of proving the elements of de jure segregation as to each and every school or each and every student within the school system. Rather, we have held that where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), the State automatically assumes an affirmative duty `to effectuate a transition to a racially nondiscriminatory school system,' Brown v. Board of Education, 349 U.S. 294, 301 (1955) (Brown II). . . ." That statement is, of course, correct in the Brown context, but in the Brown cases and later ones that have come before the Court the situation which had invariably obtained at one time was a "dual" school system mandated by law, by a law which prohibited Negroes and whites from attending the same schools. Since under Brown such a law deprived each Negro child of the equal protection of the laws, there was no need to prove "the 256 elements of de jure segregation as to each and every school," since the law itself had required just that sort of segregation. But in a school district the size of Denver's, it is quite conceivable that the School Board might have engaged in the racial gerrymandering of the attendance boundary between two particular schools in order to keep one largely Negro and Hispano, and the other largely Anglo, as the District Court found to have been the fact in this case. Such action would have deprived affected minority students who were the victims of such gerrymandering of their constitutional right to equal protection of the laws. But if the school board had been evenhanded in its drawing of the attendance lines for other schools in the district, minority students required to attend other schools within the district would have suffered no such deprivation. It certainly would not reflect normal English usage to describe the entire district as "segregated" on such a state of facts, and it would be a quite unprecedented application of principles of equitable relief to determine that if the gerrymandering of one attendance zone were proved, particular racial mixtures could be required by a federal district court for every school in the district. It is quite possible, of course, that a school district purporting to adopt racially neutral boundary zones might, with respect to every such zone, invidiously discriminate against minorities, so as to produce substantially the same result as was produced by the statutorily decreed segregation involved in Brown. If that were the case, the consequences would necessarily have to be the same as were the consequences in Brown. But, in the absence of a statute requiring segregation, there must necessarily be the sort of factual inquiry which was unnecessary in those jurisdictions where racial mixing in the schools was forbidden by law. 257 Underlying the Court's entire opinion is its apparent thesis that a district judge is at least permitted to find that if a single attendance zone between two individual schools in the large metropolitan district is found by him to have been "gerrymandered," the school district is guilty of operating a "dual" school system, and is apparently a candidate for what is in practice a federal receivership. Not only the language of the Court in the opinion, but its reliance on the case of Green v. County School Board, 391 U.S. 430, 437-438 (1968), indicates that such would be the case. It would therefore presumably be open to the District Court to require, inter alia, that pupils be transported great distances throughout the district to and from schools whose attendance zones have not been gerrymandered. Yet, unless the Equal Protection Clause of the Fourteenth Amendment now be held to embody a principle of "taint," found in some primitive legal systems but discarded centuries ago in ours, such a result can only be described as the product of judicial fiat. Green, supra, represented a marked extension of the principles of Brown v. Board of Education, supra. The Court in Green said: "It is of course true that for the time immediately after Brown II [349 U.S. 294] the concern was with making an initial break in a long-established pattern of excluding Negro children from schools attended by white children. . . . Under Brown II that immediate goal was only the first step, however. The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about . . . ." 391 U.S., at 435-436. Brown II was a call for the dismantling of wellentrenched dual systems tempered by an awareness that complex and multifaceted problems would arise 258 which would require time and flexibility for a successful resolution. School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Id., at 437-438. The drastic extension of Brown which Green represented was barely, if at all, explicated in the latter opinion. To require that a genuinely "dual" system be disestablished, in the sense that the assignment of a child to a particular school is not made to depend on his race, is one thing. To require that school boards affirmatively undertake to achieve racial mixing in schools where such mixing is not achieved in sufficient degree by neutrally drawn boundary lines is quite obviously something else. The Court's own language in Green makes it unmistakably clear that this significant extension of Brown's prohibition against discrimination, and the conversion of that prohibition into an affirmative duty to integrate, was made in the context of a school system which had for a number of years rigidly excluded Negroes from attending the same schools as were attended by whites. Whatever may be the soundness of that decision in the context of a genuinely "dual" school system, where segregation of the races had once been mandated by law, I can see no constitutional justification for it in a situation such as that which the record shows to have obtained in Denver. II The Court's opinion gives lip service to the notion that the inquiry as to whether or not the Denver school district was "segregated" is a factual one, though it refers 259 in various critical language to the District Court's refusal to find that minority concentration in the core area schools was the result of discriminatory action on the part of the school board. The District Court is said to have "fractionated" the district, ante, at 193, and to have "held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city," ibid. It is difficult to know what the Court means by the first of these references, and even more difficult to justify the second in the light of the District Court's opinion. If by "fractionating" the district, the Court means that the District Court treated together events that occurred during the same time period, and that it treated those events separately from events that occurred during another time span, this is undoubtedly correct. This is the approach followed by most experienced and careful finders of fact. In commencing that part of its comprehensive opinion which dealt with the "core area" schools, the District Court observed: "The evidentiary as well as the legal approach to the remaining schools is quite different from that which has been outlined above. For one thing, the concentrations of minorities occurred at an earlier date and, in some instances, prior to the Brown decision by the Supreme Court. Community attitudes were different, including the attitudes of the School Board members. Furthermore, the transitions were much more gradual and less perceptible than they were in the Park Hill schools." 313 F. Supp. 61, 69. (Emphasis supplied.) The District Court noted, in its opinion of July 31, 1969, the differentiation that the plaintiffs themselves had made between the so-called "Park Hill" schools and 260 the "core area" schools. The plaintiffs had sought a preliminary injunction prohibiting the school board from rescinding three resolutions which had been adopted by a differently composed school board earlier in 1969 and which would have redrawn school boundary lines in the Park Hill area to achieve greater integration. In its opinion granting that injunction, the District Court said: "Attention at this hearing has focused primarily on the schools in northeast Denver, and particularly on the area which is commonly called Park Hill. The alleged segregated schools, elementary and junior high schools in this area, have acquired their character as such during the past ten years. The primary reason for this has been the migration of the Negro community eastward from a confined community surrounding what is commonly called `Five Points.' Before 1950 the Negroes all lived in a community bounded roughly by 20th Avenue on the south, 20th Street on the west, York Street on the east, and 38th Avenue on the north. The schools in this area were, and are now, largely Negro schools. However, we are not presently concerned with the validity of this condition. During this period the Negro population was relatively small, and this condition had developed over a long period of time. However, by 1960 and, indeed, at the present time this population is sizeable. As the population has expanded the move has been to the east, first to Colorado Boulevard, a natural dividing line, and later beyond Colorado Boulevard, but within a narrow corridormore or less fixed north-south boundaries. The migration caused these areas to become substantially Negro and segregated." 303 F. Supp. 279, 282. Further reference to the District Court's several opinions 261 shows that the allegedly discriminatory acts of the School Board in the Park Hill area occurred between 1960 and 1969, in the context of a steadily expanding Negro school population in the Park Hill area and heightened sensitivity on the part of the community to the problems raised by integration and segregation. The allegedly discriminatory acts with respect to the "core area" schoolsNew Manual High School, Cole Junior High School, Morey Junior High School, and Boulevard and Columbine Elementary Schoolstook place between the years 1952 and 1961. They took place, as indicated by the references to the District Court's opinion noted above, not in a context of a rapidly expanding Negro population, but in a context of a relatively fixed area of the city that had for an indefinite period of time been predominantly Negro. Thus, quite contrary to the intimation of virtual arbitrariness contained in the Court's opinion, the District Court's separate treatment of the claims respecting these two separate areas was absolutely necessary if a careful factual determination, rather than a jumbled hash of unrelated events, was to emerge from the factfinding process. The "intent" with which a public body performs an official act is difficult enough to ascertain under the most favorable circumstances. See Palmer v. Thompson, 403 U.S. 217 (1971); McGinnis v. Royster, 410 U.S. 263 (1973). Far greater difficulty is encountered if we are to assess the intentions with which official acts of a school board are performed over a period of years. Not only does the board consist of a number of members, but the membership customarily turns over as a result of frequent periodic elections. Indeed, it was as a result of the 1969 election for membership on the Denver School Board that the Board's policy which had previously favored the correction of racial imbalance by 262 implementation of resolutions was reversed by the election of new members to the Board. These difficulties obviously do not mean that the inquiry must be abandoned, but they do suggest that the care with which the District Court conducted it in this case is an absolutely essential ingredient to its successful conclusion. The Court's bald statement that the District Court "held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city" is flatly belied by the following statement in the District Court's opinion: "Although past discriminatory acts may not be a substantial factor contributing to present segregation, they may nevertheless be probative on the issue of the segregative purpose of other discriminatory acts which are in fact a substantial factor in causing a present segregated situation." 313 F. Supp., at 74-75, n. 18. Thus, it is apparent that the District Court was fully aware that it might take into consideration the intention with which it found the School Board to have performed one act in assessing its intention in performing another act. This is the most that the references in the Court's opinion to evidentiary treatises such as Wigmore and McCormick support. And it should be noted that the cases cited by the Court, and by the authors of the treatises, almost invariably deal with the intention of a particular individual or individuals, and not with the "intention" of a public body whose membership is constantly changing. The Court's opinion totally confuses the concept of a permissible inference in such a situation, of which the District Court indicated it was well aware, with what 263 the Court calls a "presumption," which apparently "shifts . . . the burden of proving" to the defendant school authority. No case from this Court has ever gone further in this area than to suggest that a finding of intent in one factual situation may support a finding of fact in another related factual situation involving the same factor, a principle with which, as indicated above, the District Court was thoroughly familiar. The District Court cases cited by the Court represent almost entirely the opinions of judges who were themselves finders of fact, concluding as a part of the factfinding process that intent with respect to one act may support a conclusion of a like intent with respect to another. This is but a restatement of the principle of which the District Court showed it was aware. And, obviously, opinions of courts of appeals upholding such findings of the District Court do not themselves support any broader proposition than do the opinions of the District Court in question. Chambers v. Hendersonville City Board of Education, 364 F.2d 189 (CA4 1966), and North Carolina Teachers Assn. v. Asheboro City Board of Education, 393 F.2d 736 (CA4 1968), involved a background of segregation by a law in the State of North Carolina and "the failure of the public school system to desegregate in compliance with the mandate of Brown until forced to do so by litigation." 364 F.2d, at 192. The courts held that the decimation in the ranks of the Negro teachers while white teachers were unaffected, raised an inference of discrimination which cast upon the school board the burden of justifying such decimation. In each case, the school board had offered virtually no evidence supporting any nondiscriminatory basis for the result reached. The cases are thus wholly different in their factual background from the case now before the Court. 264 Also worthy of note is the fact that neither in Chambers nor in Asheboro did the Court of Appeals remand for a further hearing, but in effect ordered judgments for the appellants on the issues considered. This amounted to a determination that the factual finding of the District Court on that issue was "clearly erroneous," and the statement as to presumption was a statement as to the appellate court's method of evaluating the factual finding. This Court is in quite a different position in reviewing this case, with the factual finding of the District Court having been affirmed by the Court of Appeals for the Tenth Circuit, than was the Court of Appeals for the Fourth Circuit in reviewing the factual findings of the District Courts that were before it in Chambers and in Asheboro. Indeed, it would be contrary to settled principles for this Court to upset a factual finding sustained by the Court of Appeals. "A seasoned and wise rule of this Court makes concurrent findings of two courts below final here in the absence of very exceptional showing of error." Comstock v. Group of Institutional Investors, 335 U.S. 211, 214 (1948). The Court, doubtless realizing the difficulty of justifying an outright reversal, instead remands for further factual determination under newly enunciated standards governing the evidentiary treatment of the finding as to Park Hill by the District Court. These standards call in some parts of the opinion for establishing a presumption, in other parts for shifting the burden of proof, and in other parts for recognizing a prima facie case. Quite apart from my disagreement with the majority on its constitutional law, I cannot believe it is a service to any of the parties to this litigation to require further factual determination under such a vague and imprecise mandate. But, more fundamentally, I believe that a District Judge thoroughly sympathetic to the plaintiffs' claims gave them the full evidentiary hearing to which *265 they were entitled and carefully considered all of the evidence before him. He showed full awareness of the evidentiary principle that he might infer from the "segregative intent" with which he found the Board to have acted in the Park Hill area a like intent with respect to the core area, but he deliberately declined to do so. This was his prerogative as the finder of fact, and his conclusion upon its affirmance by the Court of Appeals is binding upon us. III The Court has taken a long leap in this area of constitutional law in equating the district-wide consequences of gerrymandering individual attendance zones in a district where separation of the races was never required by law with statutes or ordinances in other jurisdictions which did so require. It then adds to this potpourri a confusing enunciation of evidentiary rules in order to make it more likely that the trial court will on remand reach the result which the Court apparently wants it to reach. Since I believe neither of these steps is justified by prior decisions of this Court, I dissent.	I The Court notes at the outset of its opinion the differences between the claims made by the plaintiffs in this case and the classical "de jure" type of claims made by plaintiffs in cases such as and its progeny I think the similarities and differences, not only in the claims, but in the nature of the constitutional violation, deserve somewhat more attention than the Court gives them In Brown, the Court held unconstitutional statutes then prevalent in Southern and border States mandating that Negro children and white children attend separate schools Under such a statute, of course, every child in the school system is segregated by race, and there is no racial mixing whatever in the population of any particular school It is conceded that the State of Colorado and the city of Denver have never had a statute or ordinance of that description The claim made by these plaintiffs, as described in the Court's opinion, is that the School Board by "use of various techniques such as the manipulation of student attendance zones, schoolsite selection and a neighborhood school policy" took race into account in making school assignments in such a way as to lessen that mixing of races which would have resulted from a racially neutral policy of school assignment If such claims are proved, those minority students who as a result of such manipulative techniques are forced to attend schools other than those that they would have attended had attendance zones been neutrally drawn are undoubtedly deprived of their constitutional right to equal protection of the laws just as surely as were the plaintiffs in by the statutorily required segregation in that case But the fact that invidious 255 racial discrimination is prohibited by the Constitution in the North as well as the South must not be allowed to obscure the equally important fact that the consequences of manipulative drawing of attendance zones in a school district the size of Denver does not necessarily result in denial of equal protection to all minority students within that district There are significant differences between the proof which would support a claim such as that alleged by plaintiffs in this case, and the total segregation required by statute which existed in Brown The Court's opinion obscures these factual differences between the situation shown by the record to have existed in Denver and the situations dealt with in earlier school desegregation opinions of the Court The Court states, ante, at 200, that "[w]e have never suggested that plaintiffs in school desegregation cases must bear the burden of proving the elements of de jure segregation as to each and every school or each and every student within the school system Rather, we have held that where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in the State automatically assumes an affirmative duty `to effectuate a transition to a racially nondiscriminatory school system,' " That statement is, of course, correct in the Brown context, but in the Brown cases and later ones that have come before the Court the situation which had invariably obtained at one time was a "dual" school system mandated by law, by a law which prohibited Negroes and whites from attending the same schools Since under Brown such a law deprived each Negro child of the equal protection of the laws, there was no need to prove "the 256 elements of de jure segregation as to each and every school," since the law itself had required just that sort of segregation But in a school district the size of Denver's, it is quite conceivable that the School Board might have engaged in the racial gerrymandering of the attendance boundary between two particular schools in order to keep one largely Negro and Hispano, and the other largely Anglo, as the District Court found to have been the fact in this case Such action would have deprived affected minority students who were the victims of such gerrymandering of their constitutional right to equal protection of the laws But if the school board had been evenhanded in its drawing of the attendance lines for other schools in the district, minority students required to attend other schools within the district would have suffered no such deprivation It certainly would not reflect normal English usage to describe the entire district as "segregated" on such a state of facts, and it would be a quite unprecedented application of principles of equitable relief to determine that if the gerrymandering of one attendance zone were proved, particular racial mixtures could be required by a federal district court for every school in the district It is quite possible, of course, that a school district purporting to adopt racially neutral boundary zones might, with respect to every such zone, invidiously discriminate against minorities, so as to produce substantially the same result as was produced by the statutorily decreed segregation involved in Brown If that were the case, the consequences would necessarily have to be the same as were the consequences in Brown But, in the absence of a statute requiring segregation, there must necessarily be the sort of factual inquiry which was unnecessary in those jurisdictions where racial mixing in the schools was forbidden by law 257 Underlying the Court's entire opinion is its apparent thesis that a district judge is at least permitted to find that if a single attendance zone between two individual schools in the large metropolitan district is found by him to have been "gerrymandered," the school district is guilty of operating a "dual" school system, and is apparently a candidate for what is in practice a federal receivership Not only the language of the Court in the opinion, but its reliance on the case of indicates that such would be the case It would therefore presumably be open to the District Court to require, inter alia, that pupils be transported great distances throughout the district to and from schools whose attendance zones have not been gerrymandered Yet, unless the Equal Protection Clause of the Fourteenth Amendment now be held to embody a principle of "taint," found in some primitive legal systems but discarded centuries ago in ours, such a result can only be described as the product of judicial fiat represented a marked extension of the principles of The Court in said: "It is of course true that for the time immediately after Brown II [] the concern was with making an initial break in a long-established pattern of excluding Negro children from schools attended by white children Under Brown II that immediate goal was only the first step, however The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about " -436 Brown II was a call for the dismantling of wellentrenched dual systems tempered by an awareness that complex and multifaceted problems would arise 258 which would require time and flexibility for a successful resolution School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch" Id, at The drastic extension of Brown which represented was barely, if at all, explicated in the latter opinion To require that a genuinely "dual" system be disestablished, in the sense that the assignment of a child to a particular school is not made to depend on his race, is one thing To require that school boards affirmatively undertake to achieve racial mixing in schools where such mixing is not achieved in sufficient degree by neutrally drawn boundary lines is quite obviously something else The Court's own language in makes it unmistakably clear that this significant extension of Brown's prohibition against discrimination, and the conversion of that prohibition into an affirmative duty to integrate, was made in the context of a school system which had for a number of years rigidly excluded Negroes from attending the same schools as were attended by whites Whatever may be the soundness of that decision in the context of a genuinely "dual" school system, where segregation of the races had once been mandated by law, I can see no constitutional justification for it in a situation such as that which the record shows to have obtained in Denver II The Court's opinion gives lip service to the notion that the inquiry as to whether or not the Denver school district was "segregated" is a factual one, though it refers 259 in various critical language to the District Court's refusal to find that minority concentration in the core area schools was the result of discriminatory action on the part of the school board The District Court is said to have "fractionated" the district, ante, at 193, and to have "held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city," ibid It is difficult to know what the Court means by the first of these references, and even more difficult to justify the second in the light of the District Court's opinion If by "fractionating" the district, the Court means that the District Court treated together events that occurred during the same time period, and that it treated those events separately from events that occurred during another time span, this is undoubtedly correct This is the approach followed by most experienced and careful finders of fact In commencing that part of its comprehensive opinion which dealt with the "core area" schools, the District Court observed: "The evidentiary as well as the legal approach to the remaining schools is quite different from that which has been outlined above For one thing, the concentrations of minorities occurred at an earlier date and, in some instances, prior to the Brown decision by the Supreme Court Community attitudes were different, including the attitudes of the School Board members Furthermore, the transitions were much more gradual and less perceptible than they were in the Park Hill schools" 313 F Supp 61, (Emphasis supplied) The District Court noted, in its opinion of July 31, 19, the differentiation that the plaintiffs themselves had made between the so-called "Park Hill" schools and 260 the "core area" schools The plaintiffs had sought a preliminary injunction prohibiting the school board from rescinding three resolutions which had been adopted by a differently composed school board earlier in 19 and which would have redrawn school boundary lines in the Park Hill area to achieve greater integration In its opinion granting that injunction, the District Court said: "Attention at this hearing has focused primarily on the schools in northeast Denver, and particularly on the area which is commonly called Park Hill The alleged segregated schools, elementary and junior high schools in this area, have acquired their character as such during the past ten years The primary reason for this has been the migration of the Negro community eastward from a confined community surrounding what is commonly called `Five Points' Before 1950 the Negroes all lived in a community bounded roughly by 20th Avenue on the south, 20th Street on the west, York Street on the east, and 38th Avenue on the north The schools in this area were, and are now, largely Negro schools However, we are not presently concerned with the validity of this condition During this period the Negro population was relatively small, and this condition had developed over a long period of time However, by 1960 and, indeed, at the present time this population is sizeable As the population has expanded the move has been to the east, first to Colorado Boulevard, a natural dividing line, and later beyond Colorado Boulevard, but within a narrow corridormore or less fixed north-south boundaries The migration caused these areas to become substantially Negro and segregated" 303 F Supp 279, Further reference to the District Court's several opinions 261 shows that the allegedly discriminatory acts of the School Board in the Park Hill area occurred between 1960 and 19, in the context of a steadily expanding Negro school population in the Park Hill area and heightened sensitivity on the part of the community to the problems raised by integration and segregation The allegedly discriminatory acts with respect to the "core area" schoolsNew Manual High School, Cole Junior High School, Morey Junior High School, and Boulevard and Columbine Elementary Schoolstook place between the years 1952 and 1961 They took place, as indicated by the references to the District Court's opinion noted above, not in a context of a rapidly expanding Negro population, but in a context of a relatively fixed area of the city that had for an indefinite period of time been predominantly Negro Thus, quite contrary to the intimation of virtual arbitrariness contained in the Court's opinion, the District Court's separate treatment of the claims respecting these two separate areas was absolutely necessary if a careful factual determination, rather than a jumbled hash of unrelated events, was to emerge from the factfinding process The "intent" with which a public body performs an official act is difficult enough to ascertain under the most favorable circumstances See Palmer v US 217 ; McGinnis v Royster, 410 US 263 Far greater difficulty is encountered if we are to assess the intentions with which official acts of a school board are performed over a period of years Not only does the board consist of a number of members, but the membership customarily turns over as a result of frequent periodic elections Indeed, it was as a result of the 19 election for membership on the Denver School Board that the Board's policy which had previously favored the correction of racial imbalance by 262 implementation of resolutions was reversed by the election of new members to the Board These difficulties obviously do not mean that the inquiry must be abandoned, but they do suggest that the care with which the District Court conducted it in this case is an absolutely essential ingredient to its successful conclusion The Court's bald statement that the District Court "held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city" is flatly belied by the following statement in the District Court's opinion: "Although past discriminatory acts may not be a substantial factor contributing to present segregation, they may nevertheless be probative on the issue of the segregative purpose of other discriminatory acts which are in fact a substantial factor in causing a present segregated situation" 313 F Supp, at 74-75, n 18 Thus, it is apparent that the District Court was fully aware that it might take into consideration the intention with which it found the School Board to have performed one act in assessing its intention in performing another act This is the most that the references in the Court's opinion to evidentiary treatises such as Wigmore and McCormick support And it should be noted that the cases cited by the Court, and by the authors of the treatises, almost invariably deal with the intention of a particular individual or individuals, and not with the "intention" of a public body whose membership is constantly changing The Court's opinion totally confuses the concept of a permissible inference in such a situation, of which the District Court indicated it was well aware, with what 263 the Court calls a "presumption," which apparently "shifts the burden of proving" to the defendant school authority No case from this Court has ever gone further in this area than to suggest that a finding of intent in one factual situation may support a finding of fact in another related factual situation involving the same factor, a principle with which, as indicated above, the District Court was thoroughly familiar The District Court cases cited by the Court represent almost entirely the opinions of judges who were themselves finders of fact, concluding as a part of the factfinding process that intent with respect to one act may support a conclusion of a like intent with respect to another This is but a restatement of the principle of which the District Court showed it was aware And, obviously, opinions of courts of appeals upholding such findings of the District Court do not themselves support any broader proposition than do the opinions of the District Court in question Chambers v Hendersonville City Board of 364 F2d 189 and North Carolina Teachers Assn v Asheboro City Board of 393 F2d 736 involved a background of segregation by a law in the State of North Carolina and "the failure of the public school system to desegregate in compliance with the mandate of Brown until forced to do so by litigation" 364 F2d, at 192 The courts held that the decimation in the ranks of the Negro teachers while white teachers were unaffected, raised an inference of discrimination which cast upon the school board the burden of justifying such decimation In each case, the school board had offered virtually no evidence supporting any nondiscriminatory basis for the result reached The cases are thus wholly different in their factual background from the case now before the Court 264 Also worthy of note is the fact that neither in Chambers nor in Asheboro did the Court of Appeals remand for a further hearing, but in effect ordered judgments for the appellants on the issues considered This amounted to a determination that the factual finding of the District Court on that issue was "clearly erroneous," and the statement as to presumption was a statement as to the appellate court's method of evaluating the factual finding This Court is in quite a different position in reviewing this case, with the factual finding of the District Court having been affirmed by the Court of Appeals for the Tenth Circuit, than was the Court of Appeals for the Fourth Circuit in reviewing the factual findings of the District Courts that were before it in Chambers and in Asheboro Indeed, it would be contrary to settled principles for this Court to upset a factual finding sustained by the Court of Appeals "A seasoned and wise rule of this Court makes concurrent findings of two courts below final here in the absence of very exceptional showing of error" Comstock v Group of Institutional Investors, 335 US 211, The Court, doubtless realizing the difficulty of justifying an outright reversal, instead remands for further factual determination under newly enunciated standards governing the evidentiary treatment of the finding as to Park Hill by the District Court These standards call in some parts of the opinion for establishing a presumption, in other parts for shifting the burden of proof, and in other parts for recognizing a prima facie case Quite apart from my disagreement with the majority on its constitutional law, I cannot believe it is a service to any of the parties to this litigation to require further factual determination under such a vague and imprecise mandate But, more fundamentally, I believe that a District Judge thoroughly sympathetic to the plaintiffs' claims gave them the full evidentiary hearing to which *265 they were entitled and carefully considered all of the evidence before him He showed full awareness of the evidentiary principle that he might infer from the "segregative intent" with which he found the Board to have acted in the Park Hill area a like intent with respect to the core area, but he deliberately declined to do so This was his prerogative as the finder of fact, and his conclusion upon its affirmance by the Court of Appeals is binding upon us III The Court has taken a long leap in this area of constitutional law in equating the district-wide consequences of gerrymandering individual attendance zones in a district where separation of the races was never required by law with statutes or ordinances in other jurisdictions which did so require It then adds to this potpourri a confusing enunciation of evidentiary rules in order to make it more likely that the trial court will on remand reach the result which the Court apparently wants it to reach Since I believe neither of these steps is justified by prior decisions of this Court, I dissent
Justice Breyer	dissenting	false	Patent and Trademark Office v. Booking.com B. V.	2020-06-30T00:00:00	null	https://www.courtlistener.com/opinion/4764769/patent-and-trademark-office-v-bookingcom-b-v/	https://www.courtlistener.com/api/rest/v3/clusters/4764769/	2,020	null	null	null	null	What is Booking.com? To answer this question, one need only consult the term itself. Respondent provides an online booking service. The company’s name informs the con- sumer of the basic nature of its business and nothing more. Therein lies the root of my disagreement with the majority. Trademark law does not protect generic terms, meaning terms that do no more than name the product or service it- self. This principle preserves the linguistic commons by preventing one producer from appropriating to its own ex- clusive use a term needed by others to describe their goods or services. Today, the Court holds that the addition of “.com” to an otherwise generic term, such as “booking,” can yield a protectable trademark. Because I believe this result is inconsistent with trademark principles and sound trade- mark policy, I respectfully dissent. I A Trademark law protects those “ ‘distinctive marks— words, names, symbols, and the like’ ” that “ ‘distinguish a particular artisan’s goods from those of others.’ ” Matal v. Tam, 582 U. S. ___, ___ (2017) (slip op., at 2) (quoting B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. 138, 142 (2015)). To determine whether a given term is sufficiently 2 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting distinctive to serve as a trademark, courts generally place it in one of five categories. The first four kinds of terms are eligible for federal trademark registration. The fifth is not. I list the first three only to give context and allow com- parisons. They are: (1) “ ‘fanciful’ ” terms, such as “Kodak” (film); (2) “ ‘arbitrary’ ” terms, such as “Camel” (cigarettes); and (3) “ ‘suggestive’ ” terms, such as “Tide” (laundry deter- gent). Ante, at 3. These kinds of terms are “ ‘inherently distinctive.’ ” Ibid. The public can readily understand that they identify and distinguish the goods or services of one firm from those of all others. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992). By preventing oth- ers from copying a distinctive mark, trademark law “pro- tect[s] the ability of consumers to distinguish among com- peting producers” and “secure[s] to the owner of the mark the goodwill of his business.” Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 198 (1985). Ultimately, the purpose of trademark law is to “foster competition” and “suppor[t] the free flow of commerce.” Matal, 582 U. S., at ___ (slip op., at 3) (internal quotation marks omitted). This case concerns two further categories. There are “de- scriptive” terms, such as “Best Buy” (electronics) or “First National Bank” (banking services), that “immediately conve[y] information concerning a feature, quality, or char- acteristic” of the producer’s goods or services. In re North Carolina Lottery, 866 F.3d 1363, 1367 (CA Fed. 2017). A descriptive term can be registered as a trademark only if it acquires “secondary meaning”—i.e., the public has come to associate it with a particular firm or its product. Two Pesos, 505 U.S., at 769. There are also “generic” terms, such as “wine” or “hair- cuts.” They do nothing more than inform the consumer of the kind of product that the firm sells. We have called ge- neric terms “descriptive of a class of goods.” Goodyear’s In- dia Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U.S. 598, 602 (1888). And we have said that they simply Cite as: 591 U. S. ____ (2020) 3 BREYER, J., dissenting convey the “genus of which the particular product is a spe- cies.” Park ’N Fly, 469 U.S., at 196. A generic term is not eligible for use as a trademark. That principle applies even if a particular generic term “ha[s] become identified with a first user” in the minds of the consuming public. CES Pub- lishing Corp. v. St. Regis Publications, Inc., 531 F.2d 11, 13 (CA2 1975) (Friendly, J.). The reason is simple. To hold otherwise “would grant the owner of the mark a monopoly, since a competitor could not describe his goods as what they are.” Ibid. Courts have recognized that it is not always easy to dis- tinguish generic from descriptive terms. See, e.g., Aber- crombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (CA2 1976) (Friendly, J.). It is particularly difficult to do so when a firm wishes to string together two or more generic terms to create a compound term. Despite the generic na- ture of its component parts, the term as a whole is not nec- essarily generic. In such cases, courts must determine whether the combination of generic terms conveys some dis- tinctive, source-identifying meaning that each term, indi- vidually, lacks. See 2 J. McCarthy, Trademarks and Unfair Competition §12:39 (5th ed. June 2020 update) (McCarthy). If the meaning of the whole is no greater than the sum of its parts, then the compound is itself generic. See Princeton Vanguard, LLC v. Frito-Lay North Am., Inc., 786 F.3d 960, 966–967 (CA Fed. 2015); In re Gould Paper Corp., 834 F.2d 1017, 1018 (CA Fed. 1987) (registration is properly denied if “the separate words joined to form a compound have a meaning identical to the meaning common usage would as- cribe to those words as a compound”); see also 2 McCarthy §12:39 (collecting examples of compound terms held to be generic). In Goodyear, 128 U.S. 598, we held that appending the word “ ‘Company’ ” to the generic name for a class of goods does not yield a protectable compound term. Id., at 602– 603. The addition of a corporate designation, we explained, 4 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting “only indicates that parties have formed an association or partnership to deal in such goods.” Id., at 602. For in- stance, “parties united to produce or sell wine, or to raise cotton or grain,” may well “style themselves Wine Com- pany, Cotton Company, or Grain Company.” Ibid. But they would not thereby gain the right to exclude others from the use of those terms “for the obvious reason that all persons have a right to deal in such articles, and to publish the fact to the world.” Id., at 603. “[I]ncorporation of a company in the name of an article of commerce, without other specifica- tion,” we concluded, does not “create any exclusive right to the use of the name.” Ibid. I cannot agree with respondent that the 1946 Lanham Act “repudiate[d] Goodyear and its ilk.” Brief for Respond- ent 39. It is true that the Lanham Act altered the common law in certain important respects. Most significantly, it ex- tended trademark protection to descriptive marks that have acquired secondary meaning. See Qualitex Co. v. Ja- cobson Products Co., 514 U.S. 159, 171 (1995). But it did not disturb the basic principle that generic terms are ineli- gible for trademark protection, and nothing in the Act sug- gests that Congress intended to overturn Goodyear. We normally assume that Congress did not overturn a common- law principle absent some indication to the contrary. See Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U.S. 104, 108 (1991). I can find no such indication here. Perhaps that is why the lower courts, the Trademark Trial and Appeal Board (TTAB), the U. S. Patent and Trademark Office’s (PTO) Trademark Manual of Examining Procedure (TMEP), and leading treatises all recognize Goodyear’s con- tinued validity. See, e.g., In re Detroit Athletic Co., 903 F.3d 1297, 1304 (CA Fed. 2018); In re Katch, LLC, 2019 WL 2560528, 10 (TTAB 2019); TMEP §§1209.03(d) (Oct. 2018); 2 McCarthy §12:39; 4 L. Altman & M. Pollack, Callmann on Unfair Competition, Trademarks and Monopolies §18:11 (4th ed., June 2020 update). Cite as: 591 U. S. ____ (2020) 5 BREYER, J., dissenting More fundamentally, the Goodyear principle is sound as a matter of law and logic. Goodyear recognized that desig- nations such as “Company,” “Corp.,” and “Inc.” merely indi- cate corporate form and therefore do nothing to distinguish one firm’s goods or services from all others’. 128 U.S., at 602. It follows that the addition of such a corporate desig- nation does not “magically transform a generic name for a product or service into a trademark, thereby giving a right to exclude others.” 2 McCarthy §12:39. In other words, where a compound term consists simply of a generic term plus a corporate designation, the whole is necessarily no greater than the sum of its parts. B This case requires us to apply these principles in the novel context of internet domain names. Respondent seeks to register a term, “Booking.com,” that consists of a generic term, “booking” (known as the second-level domain) plus “.com” (known as the top-level domain). The question at issue here is whether a term that takes the form “generic.com” is generic in the ordinary course. In my view, appending “.com” to a generic term ordinarily yields no meaning beyond that of its constituent parts. Because the term “Booking.com” is just such an ordinary “generic.com” term, in my view, it is not eligible for trademark registra- tion. Like the corporate designations at issue in Goodyear, a top-level domain such as “.com” has no capacity to identify and distinguish the source of goods or services. It is merely a necessary component of any web address. See 1 McCar- thy §7:17.50. When combined with the generic name of a class of goods or services, “.com” conveys only that the owner operates a website related to such items. Just as “Wine Company” expresses the generic concept of a com- pany that deals in wine, “wine.com” connotes only a website that does the same. The same is true of “Booking.com.” The 6 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting combination of “booking” and “.com” does not serve to “iden- tify a particular characteristic or quality of some thing; it connotes the basic nature of that thing”—the hallmark of a generic term. Blinded Veterans Assn. v. Blinded Am. Vet- erans Foundation, 872 F.2d 1035, 1039 (CADC 1989) (Gins- burg, J. for the court) (emphasis added; internal quotation marks omitted). When a website uses an inherently distinctive second- level domain, it is obvious that adding “.com” merely de- notes a website associated with that term. Any reasonably well-informed consumer would understand that “post- it.com” is the website associated with Post-its. See Minne- sota Min. & Mfg. Co. v. Taylor, 21 F. Supp. 2d 1003, 1005 (Minn. 1998). Likewise, “plannedparenthood.com” is obvi- ously just the website of Planned Parenthood. See Planned Parenthood Federation of Am., Inc. v. Bucci, 1997 WL 133313, 8 (SDNY, Mar. 24, 1997). Recognizing this feature of domain names, courts generally ignore the top-level do- main when analyzing likelihood of confusion. See Brookfield Communications, Inc. v. West Coast Entertain- ment Corp., 174 F.3d 1036, 1055 (CA9 1999). Generic second-level domains are no different. The meaning conveyed by “Booking.com” is no more and no less than a website associated with its generic second-level do- main, “booking.” This will ordinarily be true of any generic term plus “.com” combination. The term as a whole is just as generic as its constituent parts. See 1 McCarthy §7:17.50; 2 id., §12:39.50. There may be exceptions to this rule in rare cases where the top-level domain interacts with the generic second-level domain in such a way as to produce meaning distinct from that of the terms taken individually. See ante, at 8, n. 4. Likewise, the principles discussed above may apply differ- ently to the newly expanded universe of top-level domains, such as “.guru,” “.club,” or “.vip,” which may “conve[y] infor- mation concerning a feature, quality, or characteristic” of Cite as: 591 U. S. ____ (2020) 7 BREYER, J., dissenting the website at issue. In re North Carolina Lottery, 866 F.3d, at 1367; see also Brief for International Trademark Association as Amicus Curiae 10–11; TMEP § 1209.03(m). These scenarios are not presented here, as “Booking.com” conveys only a website associated with booking. C The majority believes that Goodyear is inapposite be- cause of the nature of the domain name system. Because only one entity can hold the contractual rights to a particu- lar domain name at a time, it contends, consumers may in- fer that a “generic.com” domain name refers to some specific entity. Ante, at 9. That fact does not distinguish Goodyear. A generic term may suggest that it is associated with a specific entity. That does not render it nongeneric. For example, “Wine, Inc.” implies the existence of a specific legal entity incorpo- rated under the laws of some State. Likewise, consumers may perceive “The Wine Company” to refer to some specific company rather than a genus of companies. But the addi- tion of the definite article “the” obviously does not trans- form the generic nature of that term. See In re The Com- puter Store, Inc., 211 U.S.P.Q. (BNA) 72, 74–75 (TTAB 1981). True, these terms do not carry the exclusivity of a domain name. But that functional exclusivity does not negate the principle animating Goodyear: Terms that merely convey the nature of the producer’s business should remain free for all to use. See 128 U.S., at 603. This case illustrates the difficulties inherent in the ma- jority’s fact-specific approach. The lower courts determined (as the majority highlights), that consumers do not use the term “Booking.com” to refer to the class of hotel reservation websites in ordinary speech. 915 F.3d 171, 181–183 (CA4 2019); ante, at 7. True, few would call Travelocity a “Book- ing.com.” Ibid. But literal use is not dispositive. See 915 F.3d, at 182; H. Marvin Ginn Corp. v. International Assn. 8 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting of Fire Chiefs, Inc., 782 F.2d 987, 989–990 (CA Fed. 1986). Consumers do not use the term “Wine, Incs.” to refer to pur- veyors of wine. Still, the term “Wine, Inc.” is generic be- cause it signifies only a company incorporated for that pur- pose. See Goodyear, 128 U.S., at 602–603. Similarly, “Booking, Inc.” may not be trademarked because it signifies only a booking company. The result should be no different for “Booking.com,” which signifies only a booking website. More than that, many of the facts that the Court sup- poses may distinguish some “generic.com” marks as de- scriptive and some as generic are unlikely to vary from case to case. There will never be evidence that consumers liter- ally refer to the relevant class of online merchants as “generic.coms.” Nor are “generic.com” terms likely to ap- pear in dictionaries. And the key fact that, in the majority’s view, distinguishes this case from Goodyear—that only one entity can own the rights to a particular domain name at a time—is present in every “generic.com” case. See ante, at 9. What, then, stands in the way of automatic trademark eligibility for every “generic.com” domain? Much of the time, that determination will turn primarily on survey evi- dence, just as it did in this case. See 915 F.3d, at 183–184. However, survey evidence has limited probative value in this context. Consumer surveys often test whether consum- ers associate a term with a single source. See 2 McCarthy §12:14–12:16 (describing types of consumer surveys). But it is possible for a generic term to achieve such an associa- tion—either because that producer has enjoyed a period of exclusivity in the marketplace, e.g., Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 118–119 (1938), or because it has invested money and effort in securing the public’s identifi- cation, e.g., Abercrombie, 537 F.2d, at 9. Evidence of such an association, no matter how strong, does not negate the generic nature of the term. Ibid. For that reason, some courts and the TTAB have concluded that survey evidence Cite as: 591 U. S. ____ (2020) 9 BREYER, J., dissenting is generally of little value in separating generic from de- scriptive terms. See Schwan’s IP, LLC v. Kraft Pizza Co., 460 F.3d 971, 975–976 (CA8 2006); Hunt Masters, Inc. v. Landry’s Seafood Restaurant, Inc., 240 F.3d 251, 254–255 (CA4 2001); A. J. Canfield Co. v. Honickman, 808 F.2d 291, 301–303 (CA3 1986); Miller Brewing Co. v. Jos. Schlitz Brewing Co., 605 F.2d 990, 995 (CA7 1979); In re Hikari Sales USA, Inc., 2019 WL 1453259, 13 (TTAB 2019). Alt- hough this is the minority viewpoint, see 2 McCarthy §12:17.25, I nonetheless find it to be the more persuasive one. Consider the survey evidence that respondent introduced below. Respondent’s survey showed that 74.8% of partici- pants thought that “Booking.com” is a brand name, whereas 23.8% believed it was a generic name. App. 66. At the same time, 33% believed that “Washingmachine.com”— which does not correspond to any company—is a brand, and 60.8% thought it was generic. Ibid. What could possibly account for that difference? “Book- ing.com” is not inherently more descriptive than “Washingmachine.com” or any other “generic.com.” The survey participants who identified “Booking.com” as a brand likely did so because they had heard of it, through advertising or otherwise. If someone were to start a com- pany called “Washingmachine.com,” it could likely secure a similar level of consumer identification by investing heavily in advertising. Would that somehow transform the nature of the term itself? Surely not. This hypothetical shows that respondent’s survey tested consumers’ association of “Book- ing.com” with a particular company, not anything about the term itself. But such association does not establish that a term is nongeneric. See Kellogg, 305 U.S., at 118–119; Abercrombie, 537 F.2d, at 9. Under the majority’s approach, a “generic.com” mark’s el- igibility for trademark protection turns primarily on survey 10 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting data, which, as I have explained, may be an unreliable in- dicator of genericness. As the leading treatise writer in this field has observed, this approach “[d]iscard[s] the predicta- ble and clear line rule of the [PTO] and the Federal Circuit” in favor of “a nebulous and unpredictable zone of generic name and top level domain combinations that somehow be- come protectable marks when accompanied by favorable survey results.” 1 McCarthy §7:17.50. I would heed this criticism. In my view, a term that takes the form “generic.com” is not eligible for federal trademark registra- tion, at least not ordinarily. There being no special circum- stance here, I believe that “Booking.com” is a generic term not eligible for federal registration as a trademark. II In addition to the doctrinal concerns discussed above, granting trademark protection to “generic.com” marks threatens serious anticompetitive consequences in the online marketplace. The owners of short, generic domain names enjoy all the advantages of doing business under a generic name. These advantages exist irrespective of the trademark laws. Ge- neric names are easy to remember. Because they immedi- ately convey the nature of the business, the owner needs to expend less effort and expense educating consumers. See Meystedt, What Is My URL Worth? Placing a Value on Pre- mium Domain Names, 19 Valuation Strategies 10, 12 (2015) (Meystedt) (noting “ability to advertise a single URL and convey exactly what business a company operates”); cf. Folsom & Teply, Trademarked Generic Words, 89 Yale L. J. 1323, 1337–1338 (1980) (Folsom & Teply) (noting “ ‘free ad- vertising’ effect”). And a generic business name may create the impression that it is the most authoritative and trust- worthy source of the particular good or service. See Meystedt 12 (noting that generic domain names inspire “[i]nstant trust and credibility” and “[a]uthority status in Cite as: 591 U. S. ____ (2020) 11 BREYER, J., dissenting an industry”); cf. Folsom & Teply 1337, n. 79 (noting that consumers may believe that “no other product is the ‘real thing’ ”). These advantages make it harder for distinctively named businesses to compete. Owners of generic domain names enjoy additional com- petitive advantages unique to the internet—again, regard- less of trademark protection. Most importantly, domain name ownership confers automatic exclusivity. Multiple brick-and-mortar companies could style themselves “The Wine Company,” but there can be only one “wine.com.” And unlike the trademark system, that exclusivity is world- wide. Generic domains are also easier for consumers to find. A consumer who wants to buy wine online may perform a key- word search and be directed to “wine.com.” Or he may simply type “wine.com” into his browser’s address bar, ex- pecting to find a website selling wine. See Meystedt 12 (not- ing “ability to rank higher on search engines” and “ability to use existing type-in traffic to generate additional sales”); see also 915 F.3d, at 189 (Wynn, J., concurring in part and dissenting in part). The owner of a generic domain name enjoys these benefits not because of the quality of her prod- ucts or the goodwill of her business, but because she was fortunate (or savvy) enough to be the first to appropriate a particularly valuable piece of online real estate. Granting trademark protection to “generic.com” marks confers additional competitive benefits on their owners by allowing them to exclude others from using similar domain names. Federal registration would allow respondent to threaten trademark lawsuits against competitors using do- mains such as “Bookings.com,” “eBooking.com,” “Booker.com,” or “Bookit.com.” Respondent says that it would not do so. See Tr. of Oral Arg. 55–56. But other firms may prove less restrained. Indeed, why would a firm want to register its domain name as a trademark unless it wished to extend its area of 12 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting exclusivity beyond the domain name itself? The domain name system, after all, already ensures that competitors cannot appropriate a business’s actual domain name. And unfair-competition law will often separately protect busi- nesses from passing off and false advertising. See Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 149 (CA2 1997); 2 McCarthy §12:2. Under the majority’s reasoning, many businesses could obtain a trademark by adding “.com” to the generic name of their product (e.g., pizza.com, flowers.com, and so forth). As the internet grows larger, as more and more firms use it to sell their products, the risk of anticompetitive consequences grows. Those consequences can nudge the economy in an anticompetitive direction. At the extreme, that direction points towards one firm per product, the opposite of the competitive multifirm marketplace that our basic economic laws seek to achieve. Not to worry, the Court responds, infringement doctrines such as likelihood of confusion and fair use will restrict the scope of protection afforded to “generic.com” marks. Ante, at 12–13. This response will be cold comfort to competitors of “generic.com” brands. Owners of such marks may seek to extend the boundaries of their marks through litigation, and may, at times succeed. See, e.g., Advertise.com v. AOL, LLC, 2010 WL 11507594 (CD Cal.) (owner of “Advertis- ing.com” obtained preliminary injunction against competi- tor’s use of “Advertise.com”), vacated in part, 616 F.3d 974 (CA9 2010). Even if ultimately unsuccessful, the threat of costly litigation will no doubt chill others from using vari- ants on the registered mark and privilege established firms over new entrants to the market. See Brief for Electronic Frontier Foundation as Amicus Curiae 19–20. * * In sum, the term “Booking.com” refers to an internet Cite as: 591 U. S. ____ (2020) 13 BREYER, J., dissenting booking service, which is the generic product that respond- ent and its competitors sell. No more and no less. The same is true of “generic.com” terms more generally. By making such terms eligible for trademark protection, I fear that to- day’s decision will lead to a proliferation of “generic.com” marks, granting their owners a monopoly over a zone of use- ful, easy-to-remember domains. This result would tend to inhibit, rather than to promote, free competition in online commerce. I respectfully dissent	What is Booking.com? To answer this question, one need only consult the term itself. Respondent provides an online booking service. The company’s name informs the con- sumer of the basic nature of its business and nothing more. Therein lies the root of my disagreement with the majority. Trademark law does not protect generic terms, meaning terms that do no more than name the product or service it- self. This principle preserves the linguistic commons by preventing one producer from appropriating to its own ex- clusive use a term needed by others to describe their goods or services. Today, the Court holds that the addition of “.com” to an otherwise generic term, such as “booking,” can yield a protectable trademark. Because I believe this result is inconsistent with trademark principles and sound trade- mark policy, I respectfully dissent. I A Trademark law protects those “ ‘distinctive marks— words, names, symbols, and the like’ ” that “ ‘distinguish a particular artisan’s goods from those of others.’ ” Matal v. Tam, 582 U. S. (slip op., at 2) (quoting B&B Hardware, (2015)). To determine whether a given term is sufficiently 2 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting distinctive to serve as a trademark, courts generally place it in one of five categories. The first four kinds of terms are eligible for federal trademark registration. The fifth is not. I list the first three only to give context and allow com- parisons. They are: (1) “ ‘fanciful’ ” terms, such as “Kodak” (film); (2) “ ‘arbitrary’ ” terms, such as “Camel” (cigarettes); and (3) “ ‘suggestive’ ” terms, such as “Tide” (laundry deter- gent). Ante, at 3. These kinds of terms are “ ‘inherently distinctive.’ ” The public can readily understand that they identify and distinguish the goods or services of one firm from those of all others. See Two Pesos, By preventing oth- ers from copying a distinctive mark, trademark law “pro- tect[s] the ability of consumers to distinguish among com- peting producers” and “secure[s] to the owner of the mark the goodwill of his business.” Park ’N Ultimately, the purpose of trademark law is to “foster competition” and “suppor[t] the free flow of commerce.” Matal, 582 U. S., at (slip op., at 3) (internal quotation marks omitted). This case concerns two further categories. There are “de- scriptive” terms, such as “Best Buy” (electronics) or “First National Bank” (banking services), that “immediately conve[y] information concerning a feature, quality, or char- acteristic” of the producer’s goods or services. In re North Carolina Lottery, A descriptive term can be registered as a trademark only if it acquires “secondary meaning”—i.e., the public has come to associate it with a particular firm or its product. Two Pesos, There are “generic” terms, such as “wine” or “hair- cuts.” They do nothing more than inform the consumer of the kind of product that the firm sells. We have called ge- neric terms “descriptive of a class of goods.” ’s In- dia Rubber Glove Mfg. Co. v. Rubber Co., 128 U.S. 58, 602 (1888). And we have said that they simply Cite as: 51 U. S. (2020) 3 BREYER, J., dissenting convey the “genus of which the particular product is a spe- cies.” Park ’N A generic term is not eligible for use as a trademark. That principle applies even if a particular generic term “ha[s] become identified with a first user” in the minds of the consuming public. CES Pub- lishing (CA2 175) (Friendly, J.). The reason is simple. To hold otherwise “would grant the owner of the mark a monopoly, since a competitor could not describe his goods as what they are.” Courts have recognized that it is not always easy to dis- tinguish generic from descriptive terms. See, e.g., Aber- crombie & Fitch (CA2 176) (Friendly, J.). It is particularly difficult to do so when a firm wishes to string together two or more generic terms to create a compound term. Despite the generic na- ture of its component parts, the term as a whole is not nec- essarily generic. In such cases, courts must determine whether the combination of generic terms conveys some dis- tinctive, source-identifying meaning that each term, indi- vidually, lacks. See 2 J. McCarthy, Trademarks and Unfair Competition 12:3 (5th ed. June 2020 update) (McCarthy). If the meaning of the whole is no greater than the sum of its parts, then the compound is itself generic. See Princeton Vanguard, 786 F.3d 60, 66–67 (CA Fed. 2015); In re Gould Paper Corp., 834 F.2d 1017, 1018 (CA Fed. 7) (registration is properly denied if “the separate words joined to form a compound have a meaning identical to the meaning common usage would as- cribe to those words as a compound”); see 2 McCarthy 12:3 (collecting examples of compound terms held to be generic). In 128 U.S. 58, we held that appending the word “ ‘Company’ ” to the generic name for a class of goods does not yield a protectable compound term. – 603. The addition of a corporate designation, we explained, 4 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting “only indicates that parties have formed an association or partnership to deal in such goods.” For in- stance, “parties united to produce or sell wine, or to raise cotton or grain,” may well “style themselves Wine Com- pany, Cotton Company, or Grain Company.” But they would not thereby gain the right to exclude others from the use of those terms “for the obvious reason that all persons have a right to deal in such articles, and to publish the fact to the world.” “[I]ncorporation of a company in the name of an article of commerce, without other specifica- tion,” we concluded, does not “create any exclusive right to the use of the name.” I cannot agree with respondent that the 146 Lanham Act “repudiate[d] and its ilk.” Brief for Respond- ent 3. It is true that the Lanham Act altered the common law in certain important respects. Most significantly, it ex- tended trademark protection to descriptive marks that have acquired secondary meaning. See Qualitex 514 U.S. 15, (15). But it did not disturb the basic principle that generic terms are ineli- gible for trademark protection, and nothing in the Act sug- gests that Congress intended to overturn We normally assume that Congress did not overturn a common- law principle absent some indication to the contrary. See Astoria Fed. Sav. & Loan 108 (11). I can find no such indication here. Perhaps that is why the lower courts, the Trademark Trial and Appeal Board (TTAB), the U. S. Patent and Trademark Office’s (PTO) Trademark Manual of Examining Procedure (TMEP), and leading treatises all recognize ’s con- tinued validity. See, e.g., In re Detroit Athletic Co., 03 F.3d 127, 04 (CA Fed. 2018); In re Katch, LLC, 201 WL 2560528, 10 (TTAB 201); TMEP 120.03(d) (Oct. 2018); 2 McCarthy 12:3; 4 L. Altman & M. Pollack, Callmann on Unfair Competition, Trademarks and Monopolies (4th ed., June 2020 update). Cite as: 51 U. S. (2020) 5 BREYER, J., dissenting More fundamentally, the principle is sound as a matter of law and logic. recognized that desig- nations such as “Company,” “Corp.,” and “Inc.” merely indi- cate corporate form and therefore do nothing to distinguish one firm’s goods or services from all others’. 128 U.S., at 602. It follows that the addition of such a corporate desig- nation does not “magically transform a generic name for a product or service into a trademark, thereby giving a right to exclude others.” 2 McCarthy 12:3. In other words, where a compound term consists simply of a generic term plus a corporate designation, the whole is necessarily no greater than the sum of its parts. B This case requires us to apply these principles in the novel context of internet domain names. Respondent seeks to register a term, “Booking.com,” that consists of a generic term, “booking” (known as the second-level domain) plus “.com” (known as the top-level domain). The question at issue here is whether a term that takes the form “generic.com” is generic in the ordinary course. In my view, appending “.com” to a generic term ordinarily yields no meaning beyond that of its constituent parts. Because the term “Booking.com” is just such an ordinary “generic.com” term, in my view, it is not eligible for trademark registra- tion. Like the corporate designations at issue in a top-level domain such as “.com” has no capacity to identify and distinguish the source of goods or services. It is merely a necessary component of any web address. See 1 McCar- thy When combined with the generic name of a class of goods or services, “.com” conveys only that the owner operates a website related to such items. Just as “Wine Company” expresses the generic concept of a com- pany that deals in wine, “wine.com” connotes only a website that does the same. The same is true of “Booking.com.” The 6 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting combination of “booking” and “.com” does not serve to “iden- tify a particular characteristic or quality of some thing; it connotes the basic nature of that thing”—the hallmark of a generic term. Blinded Veterans 103 (CADC ) (Gins- burg, J. for the court) (emphasis added; internal quotation marks omitted). When a website uses an inherently distinctive second- level domain, it is obvious that adding “.com” merely de- notes a website associated with that term. Any reasonably well-informed consumer would understand that “post- it.com” is the website associated with Post-its. See Minne- sota Min. & Mfg. (Minn. 18). Likewise, “plannedparenthood.com” is obvi- ously just the website of Planned Parenthood. See Planned Parenthood Federation of Am., Inc. v. Bucci, 17 WL 33, 8 (SDNY, Mar. 24, 17). Recognizing this feature of domain names, courts generally ignore the top-level do- main when analyzing likelihood of confusion. See Brookfield Communications, (CA 1). Generic second-level domains are no different. The meaning conveyed by “Booking.com” is no more and no less than a website associated with its generic second-level do- main, “booking.” This will ordinarily be true of any generic term plus “.com” combination. The term as a whole is just as generic as its constituent parts. See 1 McCarthy 2 12:3.50. There may be exceptions to this rule in rare cases where the top-level domain interacts with the generic second-level domain in such a way as to produce meaning distinct from that of the terms taken individually. See ante, at 8, n. 4. Likewise, the principles discussed above may apply differ- ently to the newly expanded universe of top-level domains, such as “.guru,” “.club,” or “.vip,” which may “conve[y] infor- mation concerning a feature, quality, or characteristic” of Cite as: 51 U. S. (2020) 7 BREYER, J., dissenting the website at issue. In re North Carolina Lottery, 866 F.3d, at ; see Brief for International Trademark Association as Amicus Curiae 10–11; TMEP 120.03(m). These scenarios are not presented here, as “Booking.com” conveys only a website associated with booking. C The majority believes that is inapposite be- cause of the nature of the domain name system. Because only one entity can hold the contractual rights to a particu- lar domain name at a time, it contends, consumers may in- fer that a “generic.com” domain name refers to some specific entity. Ante, at That fact does not distinguish A generic term may suggest that it is associated with a specific entity. That does not render it nongeneric. For example, “Wine, Inc.” implies the existence of a specific legal entity incorpo- rated under the laws of some State. Likewise, consumers may perceive “The Wine Company” to refer to some specific company rather than a genus of companies. But the addi- tion of the definite article “the” obviously does not trans- form the generic nature of that term. See In re The Com- puter Store, Inc., (TTAB 1). True, these terms do not carry the exclusivity of a domain name. But that functional exclusivity does not negate the principle animating : Terms that merely convey the nature of the producer’s business should remain free for all to use. See 128 U.S., This case illustrates the difficulties inherent in the ma- jority’s fact-specific approach. The lower courts determined (as the majority highlights), that consumers do not use the term “Booking.com” to refer to the class of hotel reservation websites in ordinary speech. 15 F.3d 181–183 (CA4 201); ante, at 7. True, few would call Travelocity a “Book- ing.com.” But literal use is not dispositive. See 15 F.3d, at 182; H. Marvin Ginn Corp. v. International Assn. 8 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting of Fire Chiefs, Inc., 782 F.2d 87, 8–0 (CA Fed. 6). Consumers do not use the term “Wine, Incs.” to refer to pur- veyors of wine. Still, the term “Wine, Inc.” is generic be- cause it signifies only a company incorporated for that pur- pose. See 128 U.S., –603. Similarly, “Booking, Inc.” may not be trademarked because it signifies only a booking company. The result should be no different for “Booking.com,” which signifies only a booking website. More than that, many of the facts that the Court sup- poses may distinguish some “generic.com” marks as de- scriptive and some as generic are unlikely to vary from case to case. There will never be evidence that consumers liter- ally refer to the relevant class of online merchants as “generic.coms.” Nor are “generic.com” terms likely to ap- pear in dictionaries. And the key fact that, in the majority’s view, distinguishes this case from —that only one entity can own the rights to a particular domain name at a time—is present in every “generic.com” case. See ante, at What, then, stands in the way of automatic trademark eligibility for every “generic.com” domain? Much of the time, that determination will turn primarily on survey evi- dence, just as it did in this case. See 15 F.3d, at 183–184. However, survey evidence has limited probative value in this context. Consumer surveys often test whether consum- ers associate a term with a single source. See 2 McCarthy 12:14–12:16 (describing types of consumer surveys). But it is possible for a generic term to achieve such an associa- tion—either because that producer has enjoyed a period of exclusivity in the marketplace, e.g., 118–11 (138), or because it has invested money and effort in securing the public’s identifi- cation, e.g., 537 F.2d, at Evidence of such an association, no matter how strong, does not negate the generic nature of the term. For that reason, some courts and the TTAB have concluded that survey evidence Cite as: 51 U. S. (2020) BREYER, J., dissenting is generally of little value in separating generic from de- scriptive terms. See Schwan’s IP, 460 F.3d 71, 75–76 ; Hunt Masters, Inc. v. Landry’s Seafood Restaurant, Inc., 254–255 (CA4 2001); A. J. Canfield 808 F.2d 21, 301–303 (CA3 6); Miller Brewing 605 F.2d 0, 5 (CA7 17); In re Hikari Sales USA, Inc., 201 WL 145325, * (TTAB 201). Alt- hough this is the minority viewpoint, see 2 McCarthy 12:17.25, I nonetheless find it to be the more persuasive one. Consider the survey evidence that respondent introduced below. Respondent’s survey showed that 74.8% of partici- pants thought that “Booking.com” is a brand name, whereas 23.8% believed it was a generic name. App. 66. At the same time, 33% believed that “Washingmachine.com”— which does not correspond to any company—is a brand, and 60.8% thought it was generic. What could possibly account for that difference? “Book- ing.com” is not inherently more descriptive than “Washingmachine.com” or any other “generic.com.” The survey participants who identified “Booking.com” as a brand likely did so because they had heard of it, through advertising or otherwise. If someone were to start a com- pany called “Washingmachine.com,” it could likely secure a similar level of consumer identification by investing heavily in advertising. Would that somehow transform the nature of the term itself? Surely not. This hypothetical shows that respondent’s survey tested consumers’ association of “Book- ing.com” with a particular company, not anything about the term itself. But such association does not establish that a term is nongeneric. See –11; 537 F.2d, at Under the majority’s approach, a “generic.com” mark’s el- igibility for trademark protection turns primarily on survey 10 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting data, which, as I have explained, may be an unreliable in- dicator of genericness. As the leading treatise writer in this field has observed, this approach “[d]iscard[s] the predicta- ble and clear line rule of the [PTO] and the Federal Circuit” in favor of “a nebulous and unpredictable zone of generic name and top level domain combinations that somehow be- come protectable marks when accompanied by favorable survey results.” 1 McCarthy I would heed this criticism. In my view, a term that takes the form “generic.com” is not eligible for federal trademark registra- tion, at least not ordinarily. There being no special circum- stance here, I believe that “Booking.com” is a generic term not eligible for federal registration as a trademark. II In addition to the doctrinal concerns discussed above, granting trademark protection to “generic.com” marks threatens serious anticompetitive consequences in the online marketplace. The owners of short, generic domain names enjoy all the advantages of doing business under a generic name. These advantages exist irrespective of the trademark laws. Ge- neric names are easy to remember. Because they immedi- ately convey the nature of the business, the owner needs to expend less effort and expense educating consumers. See Meystedt, What Is My URL Worth? Placing a Value on Pre- mium Domain Names, 1 Valuation Strategies 10, 12 (2015) (Meystedt) (noting “ability to advertise a single URL and convey exactly what business a company operates”); cf. Folsom & Teply, Trademarked Generic Words, 8 Yale L. J. 23, 37–38 (0) (Folsom & Teply) (noting “ ‘free ad- vertising’ effect”). And a generic business name may create the impression that it is the most authoritative and trust- worthy source of the particular good or service. See Meystedt 12 (noting that generic domain names inspire “[i]nstant trust and credibility” and “[a]uthority status in Cite as: 51 U. S. (2020) 11 BREYER, J., dissenting an industry”); cf. Folsom & Teply 37, n. 7 (noting that consumers may believe that “no other product is the ‘real thing’ ”). These advantages make it harder for distinctively named businesses to compete. Owners of generic domain names enjoy additional com- petitive advantages unique to the internet—again, regard- less of trademark protection. Most importantly, domain name ownership confers automatic exclusivity. Multiple brick-and-mortar companies could style themselves “The Wine Company,” but there can be only one “wine.com.” And unlike the trademark system, that exclusivity is world- wide. Generic domains are easier for consumers to find. A consumer who wants to buy wine online may perform a key- word search and be directed to “wine.com.” Or he may simply type “wine.com” into his browser’s address bar, ex- pecting to find a website selling wine. See Meystedt 12 (not- ing “ability to rank higher on search engines” and “ability to use existing type-in traffic to generate additional sales”); see 15 F.3d, at 18 (Wynn, J., concurring in part and dissenting in part). The owner of a generic domain name enjoys these benefits not because of the quality of her prod- ucts or the goodwill of her business, but because she was fortunate (or savvy) enough to be the first to appropriate a particularly valuable piece of online real estate. Granting trademark protection to “generic.com” marks confers additional competitive benefits on their owners by allowing them to exclude others from using similar domain names. Federal registration would allow respondent to threaten trademark lawsuits against competitors using do- mains such as “Bookings.com,” “eBooking.com,” “Booker.com,” or “Bookit.com.” Respondent says that it would not do so. See Tr. of Oral Arg. 55–56. But other firms may prove less restrained. Indeed, why would a firm want to register its domain name as a trademark unless it wished to extend its area of 12 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting exclusivity beyond the domain name itself? The domain name system, after all, already ensures that competitors cannot appropriate a business’s actual domain name. And unfair-competition law will often separately protect busi- nesses from passing off and false advertising. See Genesee Brewing 124 F.3d 7, 14 (CA2 17); 2 McCarthy 12:2. Under the majority’s reasoning, many businesses could obtain a trademark by adding “.com” to the generic name of their product (e.g., pizza.com, flowers.com, and so forth). As the internet grows larger, as more and more firms use it to sell their products, the risk of anticompetitive consequences grows. Those consequences can nudge the economy in an anticompetitive direction. At the extreme, that direction points towards one firm per product, the opposite of the competitive multifirm marketplace that our basic economic laws seek to achieve. Not to worry, the Court responds, infringement doctrines such as likelihood of confusion and fair use will restrict the scope of protection afforded to “generic.com” marks. Ante, at 12–. This response will be cold comfort to competitors of “generic.com” brands. Owners of such marks may seek to extend the boundaries of their marks through litigation, and may, at times succeed. See, e.g., 2010 WL 1150754 (CD Cal.) (owner of “Advertis- ing.com” obtained preliminary injunction against competi- tor’s use of “Advertise.com”), vacated in part, 616 F.3d 74 (CA 2010). Even if ultimately unsuccessful, the threat of costly litigation will no doubt chill others from using vari- ants on the registered mark and privilege established firms over new entrants to the market. See Brief for Electronic Frontier Foundation as Amicus Curiae 1–20. * * * In sum, the term “Booking.com” refers to an internet Cite as: 51 U. S. (2020) BREYER, J., dissenting booking service, which is the generic product that respond- ent and its competitors sell. No more and no less. The same is true of “generic.com” terms more generally. By making such terms eligible for trademark protection, I fear that to- day’s decision will lead to a proliferation of “generic.com” marks, granting their owners a monopoly over a zone of use- ful, easy-to-remember domains. This result would tend to inhibit, rather than to promote, free competition in online commerce. I respectfully dissent
Justice Marshall	dissenting	false	Minnesota v. Murphy	1984-02-22T00:00:00	null	https://www.courtlistener.com/opinion/111105/minnesota-v-murphy/	https://www.courtlistener.com/api/rest/v3/clusters/111105/	1,984	1983-040	1	6	3	The opinion of the Court helpfully clarifies the scope of the privilege against self-incrimination that may be asserted by a probationer when asked questions by an officer of the State. As the majority points out, two principles shape the probationer's constitutional rights. First, because probation revocation proceedings are not criminal in nature, Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), and because the Fifth Amendment ban on compelled self-incrimination applies only to criminal proceedings, the possibility that a truthful answer to a question might result in the revocation of his probation does not accord the probationer a constitutional right to refuse to respond. Ante, at 435-436, n. 7. Second, a probationer retains the privilege enjoyed by all citizens to refuse "to answer official questions put to him in any . . . proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings," Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). Ante, at 426. From the foregoing propositions, it follows that the power of a State to compel a probationer to answer a given question varies depending upon the manner in which the probationer's answer might incriminate him. If a truthful response might reveal that he has violated a condition of his probation but would not subject him to criminal prosecution, the State may insist that he respond and may penalize him for refusing to do so.[1] See ante, at 435-436, n. 7. By contrast, if there is a chance that a truthful answer to a given question would expose the probationer to liability for a crime different from the crime for which he has already been convicted, he has a right to refuse to answer and the State may not attempt to coerce 442 him to forgo that right.[2] See ante, at 435. As the majority points out, if the answer to a question might lead both to criminal sanctions and to probation revocation, the State has the option of insisting that the probationer respond, in return for an express guarantee of immunity from criminal liability.[3]Ante, at 436, n. 7. Unless it exercises that option, however, the State may not interfere with the probationer's right "to remain silent unless he chooses to speak in the unfettered exercise of his own will," Malloy v. Hogan, 378 U.S. 1, 8 (1964). The flaw in the opinion of the Court lies not in its analysis of the constitutional rights available to a probationer, but in its finding that those rights were not violated in this case. The majority concludes that, "since Murphy revealed incriminating information instead of timely asserting his Fifth Amendment privilege, his disclosures were not compelled incriminations." Ante, at 440. In my view, that conclusion is inconsistent with our prior cases dealing with invocations of the Fifth Amendment. For two independent reasons, Murphy's failure to claim his privilege against self-incrimination before responding to his probation officer's inquiry regarding his participation in the 1974 murder did not result in the forfeiture of his right to object to the use of his admissions in a subsequent criminal prosecution. First, the State of Minnesota 443 had threatened Murphy with a penalty for refusing to respond to questions; our decisions make clear that such a threat relieves its target of the duty to claim the benefit of the Fifth Amendment. Second, under the circumstances of this case, the State was obliged to prove that Murphy was aware of his constitutional rights and freely waived them; by showing nothing more than that Murphy failed to assert his privilege before answering, the State failed to carry its burden. I As the majority acknowledges, if an officer of a State asks a person a question under circumstances that deprive him of a " `free choice to admit, to deny, or to refuse to answer,' " and he answers the question without attempting to assert his privilege against self-incrimination, his response will be deemed to have been "compelled" and will be inadmissible as evidence against him. Garner v. United States, 424 U.S. 648, 656-657 (1976) (quoting Lisenba v. California, 314 U.S. 219, 241 (1941)); see ante, at 429. Our cases make clear that the State will be found to have deprived the person of such a "free choice" if it threatens him with a substantial sanction if he refuses to respond. Lefkowitz v. Turley, 414 U. S., at 82-83. Two rules flow from the foregoing principle: If the State presents a person with the "Hobson's choice" of incriminating himself or suffering a penalty, and he nevertheless refuses to respond, the State cannot constitutionally make good on its threat to penalize him. Id., at 77; Sanitation Men v. Commissioner of Sanitation, 392 U.S. 280, 284 (1968); Gardner v. Broderick, 392 U.S. 273, 277-278 (1968). Conversely, if the threatened person decides to talk instead of asserting his privilege, the State cannot use his admissions against him in a subsequent criminal prosecution. Garrity v. New Jersey, 385 U.S. 493, 500 (1967). It might appear that these two rules would defeat one another. A person presented with what appears to be a Hobson's choice could be charged with the knowledge that, 444 under this Court's precedents, he may choose either option with impunity. His awareness that the State can use neither his silence nor his confessions against him would seem to eliminate the "compulsion" supposedly inherent in the situation.[4] More specifically, it might be argued that, because it is now settled that a person cannot be penalized for asserting his Fifth Amendment privilege, if he decides to talk rather than assert his constitutional right to remain silent, his statements should be deemed voluntary. This Court has consistently refused to allow the two rules to undercut each other in this way.[5] Our refusal derives from two considerations. First, many probably most of the persons threatened with sanctions if they refuse to answer official questions lack sufficient knowledge of this Court's decisions to be aware that the State's threat is idle. Second, the State's attempt to coerce self-incriminating statements by promising to penalize silence is itself constitutionally offensive, and the mere possibility that the State profited from the attempt is sufficient to forbid it to make use of the admissions it elicited. See Gardner v. Broderick, supra, at 279. For similar reasons, when a person who has been threatened with a penalty makes self-incriminating statements, we 445 have declined to inquire whether his decision to speak was the proximate result of the threat. In most cases, it would be difficult for the person to prove that, but for the threat, he would have held his peace and that no other intervening causes (such as pangs of conscience) induced him to confess.[6] The State, having exerted pressures repugnant to the Constitution, should not be allowed to profit from the uncertainty whether those pressures had their intended effect. Sensitivity to the foregoing concerns is reflected in our decision in Garrity v. New Jersey, supra. The petitioners in that case had never argued that their confessions were in fact induced by the State's warning that they might be fired if they refused to answer, and the lower courts had not so found.[7] Nevertheless, the Court concluded that the petitioners' statements "were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary." Id., at 497-498 (footnote omitted). In sum, the majority errs when it suggests that, to claim the benefit of the Fifth Amendment, a person who made self-incriminating statements after being threatened with a penalty if he remained silent must show that his apprehension that the State would carry out its promise was objectively "reasonable," ante, at 438. Our decisions make clear that the 446 threat alone is sufficient to render all subsequent testimony "compelled." See supra, at 443-444.[8] Likewise, the majority errs when it implies that a defendant has a duty to prove that the State's threat, and not some other motivation, prompted his confession, see ante, at 437-438. Under our precedents, the defendant need only prove that the State presented him with a constitutionally impermissible choice and that he thereupon incriminated himself. See supra, at 444-445. When the foregoing principles are applied to this case, it becomes clear that Murphy's confession to the 1974 murder must be deemed to have been "compelled." When Murphy was placed on probation, he was given a letter setting forth the conditions under which he was discharged. The pertinent portions of the letter provide: "For the present you are only conditionally released. If you comply with the conditions of your probation you may expect to be discharged at the expiration of the period stated. If you fail to comply with the requirements you may be returned to Court at any time for further hearing or commitment. . . . "It will be necessary for you to obey strictly the following conditions: "BE TRUTHFUL to your Probation Officer in all matters." App. to Pet. for Cert. C-33 C-34 (emphasis in original). Murphy was required to sign the letter, attesting that he had read and understood the instructions. Id., at C-35. 447 The majority contends that the foregoing passages merely required Murphy to answer nonincriminating questions and forbade him to make false statements to his probation officer. Ante, at 437. The majority's interpretation, which is essential to its result, is simply incredible. A reasonable layman would interpret the imperative, "be truthful . . . in all matters," as a command to answer honestly all questions presented. Any ambiguity inherent in the language of the directive is dispelled by its context. The duty to be truthful in dealings with the probation officer is listed as the first term of the conditions of probation. The critical phrase is capitalized. And the injunction is immediately preceded by an instruction "to obey strictly the following conditions."[9] In short, the State of Minnesota presented Murphy with a set of official instructions that a reasonable man would have interpreted to require him, upon pain of the revocation of his probation, to answer truthfully all questions asked by his probation officer.[10] Probation revocation surely constitutes a 448 "substantial sanction."[11] Under our precedents, therefore, by threatening Murphy with that sanction if he refused to answer, Minnesota deprived itself of constitutional authority to use Murphy's subsequent answers in a criminal prosecution against him. The majority's efforts to avoid that conclusion are unpersuasive. First, the majority faults Murphy for failing to ask his probation officer for a "clarification" of the terms of his probation. Ante, at 437. The letter by which the State informed Murphy of the terms of his probation contained no suggestion that he was entitled to such a "clarification"; on the contrary, the letter informed Murphy that he was required to "obey strictly" the conditions enumerated and that failure to do so might result in his "commitment." More importantly, as indicated above, our decisions establish that a 449 person told by the State that he may be penalized for refusing to answer does not bear the responsibility to determine whether the State would or could make good on its threat. See supra, at 443-444. Second, the majority relies on the absence of "direct evidence that Murphy confessed because he feared that his probation would be revoked if he remained silent." Ante, at 437. Under our precedents, no such "direct evidence" of a causal link between the threat and the response is required in order to prevent the use in a criminal prosecution of Murphy's confession. See supra, at 444-445. In conclusion, because the terms of Murphy's probation deprived him of "a free choice to admit, to deny, or to refuse to answer" when his probation officer confronted him with the allegation that he had committed the 1974 murder, our decisions forbid the introduction into evidence against him of his confession. II Even if Minnesota had not impaired Murphy's freedom to respond or to refuse to respond to incriminating questions regarding the 1974 murder, I would hold his confession inadmissible because, in view of the circumstances under which he was interrogated, the State had a duty to prove that Murphy waived his privilege against self-incrimination, and it has not made such a showing. A It is now settled that, in most contexts, the privilege against self-incrimination is not self-executing. "[I]n the ordinary case," if a person questioned by an officer of the State makes damaging disclosures instead of asserting his privilege, he forfeits his right to object to subsequent use of his admissions against him. Garner v. United States, 424 U. S., at 654. This forfeiture occurs even if the person is subject to a general legal duty to respond to the officer's questions. See United States v. Washington, 431 U.S. 181 (1977); ante, at 427. And it occurs regardless of whether the 450 person's failure to claim the privilege was founded upon a knowing and intelligent decision to waive his constitutional right not to answer those questions that might incriminate him. Garner v. United States, supra, at 654, n. 9; see also ante, at 427-428. At first blush, this harsh doctrine seems incompatible with our repeated assertions of the importance of the Fifth Amendment privilege in our constitutional scheme. Twenty years ago, we observed: "[T]he American system of criminal prosecution is accusatorial, not inquisitorial, and . . . the Fifth Amendment privilege is its essential mainstay. . . . Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth." Malloy v. Hogan, 378 U. S., at 7-8 (citation omitted). In view of our continued adherence to the foregoing principles,[12] it appears anomalous that, in most contexts, we allow governments to take advantage of witnesses' failure, sometimes as a result of ignorance or momentary inattention, to claim the benefit of the privilege in a "timely" fashion. The explanation for our seemingly callous willingness to countenance forfeitures of Fifth Amendment rights must be sought in a combination of three factors. First and most importantly, we presume that most people are aware that they need not answer an official question when a truthful answer might expose them to criminal prosecution. "At this point in our history virtually every schoolboy is familiar with the concept, if not the language," of the constitutional ban on compelled self-incrimination. Michigan v. Tucker, 417 U.S. 433, 439 (1974). We thus take for granted that, in most instances, when a person discloses damaging information 451 in response to an official inquiry, he has made an intelligent decision to waive his Fifth Amendment rights. Second, in the vast majority of situations in which an officer of the State asks a citizen a question, the officer has no reason to know that a truthful response would reveal that the citizen has committed a crime. Under such circumstances, one of the central principles underlying the Fifth Amendment that governments should not "deliberately see[k] to avoid the burdens of independent investigation by compelling self-incriminating disclosures" has little relevance. Garner v. United States, supra, at 655-656. Thus, in the ordinary case, few constitutional values are threatened when the government fails to preface an inquiry with an explicit reminder that a response is not required if it might expose the respondent to prosecution. Third, a general requirement that government officials preface all questions with such reminders would be highly burdensome. Our concern with the protection of constitutional rights should not blind us to the fact that, in general, governments have the right to everyone's testimony. E. g., Branzburg v. Hayes, 408 U.S. 665, 688 (1972). A rule requiring officials, before asking citizens for information, to tell them that they need not reveal incriminating evidence would unduly impede the capacity of government to gather the data it needs to function effectively.[13] 452 In sum, a general rule requiring the prosecution, before introducing a confession, to prove that the defendant intelligently and voluntarily waived his right not to incriminate himself would protect few persons (because most know their legal rights), would do little to promote the values that underlie the Fifth Amendment, and would substantially impair the information-gathering capacity of government.[14] It should be apparent that these considerations do not apply with equal force in all contexts. Until today, the Court has been sensitive to variations in their relevance and strength. Accordingly, we have adhered to the general principle that a defendant forfeits his privilege if he fails to assert it before making incriminating statements only in situations implicating several of the factors that support the principle. More specifically, we have applied the principle only in cases in which at least two of the following statements have been true: (a) At the time the damaging disclosures were made, the defendant's constitutional right not to make them was clearly established. (b) The defendant was given sufficient warning that he would be asked potentially incriminating 453 questions to be able to secure legal advice and to reflect upon how he would respond. (c) The environment in which the questions were asked did not impair the defendant's ability intelligently to exercise his rights. (d) The questioner had no reason to assume that truthful responses would be self-incriminating. A review of a few of the leading cases should suffice to establish the point.[15] In United States v. Kordel, 397 U.S. 1 (1970), the Government submitted interrogatories to the defendant in a civil suit. Though the defendant (a corporate officer) was aware that the Government was planning to bring a criminal action against him, he answered the questions instead of asserting his privilege against self-incrimination. The Court ruled that his answers could be admitted in the ensuing prosecution. In so holding, the Court emphasized the facts that established law made clear that the defendant had a constitutional right to refuse to answer the interrogatories, that he was free to consult with counsel before responding, and that nothing in the circumstances under which the questions were presented impaired the defendant's ability to appreciate the consequences of his actions. Id., at 7, 9-10. The defendant in Garner v. United States, 424 U.S. 648 (1976), was a professional gambler who made incriminating disclosures on his Form 1040 income tax returns. The Court held that he could be prosecuted partly on the basis of his admissions. Though the defendant's constitutional right to refuse to provide the requested information was perhaps less clear and straightforward than the right of the usual defendant, the Court stressed that other factors rendered inexcusable his failure to learn and assert his entitlements. Thus, 454 the Court pointed out that the defendant was free to consult with a lawyer and could fill out the tax return at his leisure in an environment of his choosing. Id., at 658. Moreover, every taxpayer is required to fill out a Form 1040; the Government, in imposing that duty, has no reason to assume that any given taxpayer's responses will be self-incriminating.[16] Thus, the United States in Garner could not be faulted for requesting the information that the defendant provided. Finally, in United States v. Washington, 431 U.S. 181 (1977), the Court confirmed the proposition that a witness called to testify before a grand jury must claim the benefit of the privilege or forfeit it.[17] The Court acknowledged that "the grand jury room engenders an atmosphere conducive to truthtelling" and thus might have exerted some pressure on the defendant not to assert his rights. Id., at 187. In addition, the Court recognized that the Government was not blameless insofar as a criminal investigation had focused on the defendant and thus the questioners had ample reason to believe that truthful answers by the defendant would be self-incriminating.[18] But, the Court reasoned, the situation contained 455 other safeguards that warranted adherence to the principle that a privilege not asserted is lost. First, the defendant's right to refuse to respond had been perfectly clear; indeed, at the outset of the proceeding, the defendant had been explicitly warned of his right not to answer questions if his responses might incriminate him. Id., at 186, 188.[19] Second, not only had the defendant been afforded an opportunity before appearing to seek legal advice, but also, at the start of the hearing, he was told that a lawyer would be provided for him if he wished and could not afford one. Id., at 183-184. Under those circumstances, the Court concluded that it was inconceivable that the defendant's decision not to assert his privilege was uninformed or involuntary.[20] 456 By contrast, in cases in which only one of the statements enumerated above, see supra, at 452-453, has been true, the Court has refused to adhere to the general rule that a privilege not claimed is lost, and instead has insisted upon a showing that the defendant made a knowing and intelligent decision to forgo his constitutional right not to incriminate himself. The classic situation of this sort is custodial interrogation. In Miranda v. Arizona, 384 U.S. 436 (1966), the Court acknowledged that the right of a suspect in police custody not to answer questions is well established. However, we stressed that other aspects of the situation impair the ability of the suspect to exercise his rights and threaten the values underlying the Fifth Amendment: the suspect is unable to consult with counsel regarding how he should respond to questions; the environment in which the questions are presented (the police station, from which the suspect is forbidden to leave) "work[s] to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely," id., at 467; and the interrogators are well aware that truthful answers to their questions are likely to incriminate the suspect. In short, only one of the four circumstances favoring application of the general principle exist in the context of custodial interrogation. To mitigate the risk that suspects would ignorantly or involuntarily fail to claim their privilege against self-incrimination under these circumstances, the Court in Miranda imposed a requirement 457 that they be shown to have freely waived their rights after being fully apprised of them. Id., at 475-479.[21] B If we remain sensitive to the concerns implicit in the foregoing pattern of cases, we should insist that the State, in the instant case, demonstrate that Murphy intelligently waived his right to remain silent. None of the four conditions that favor application of the principle that a defendant forfeits his privilege if he fails to claim it before confessing can be found in the circumstances under which Murphy was interrogated. First, the existence and scope of Murphy's constitutional right to refuse to testify were at best unclear when he appeared 458 in the probation officer's office. It is undisputed that the conditions of Murphy's probation imposed on him a duty to answer all questions presented by his probation officer except those implicating his Fifth Amendment rights.[22] What exactly those rights were was far from apparent. The majority opinion in this case constitutes the first authoritative analysis of the privilege against self-incrimination available to a probationer. The ambiguity of scope of that privilege prior to today is suggested by the fact the Solicitor General, appearing for the United States as amicus curiae, seriously misconceived the rights that might have been asserted by Murphy when examined by his probation officer.[23] If, after being afforded substantial opportunity for research and reflection, the lawyers who represent the Nation err in their explication of the relevant constitutional principles, Murphy surely cannot be charged with knowledge of his entitlements.[24] 459 Second, contrary to the suggestion of the majority, ante, at 432, Murphy was given no warning that he would be asked potentially incriminating questions. The letter in which Murphy's probation officer instructed him to make an appointment informed him that the purpose of the meeting was "[t]o further discuss a treatment plan for the remainder of [his] probation." App. to Pet. for Cert. C-36. In view of the fact that Murphy remained under a legal obligation to attend treatment sessions,[25] there was no reason why he should have assumed from the letter that the officer planned to question him regarding prior criminal activity.[26] In short, prior to the moment he was asked whether he had committed the murder, Murphy had no reason to suspect that he would be obliged to respond to incriminating questions. He thus had no opportunity to consult a lawyer, or even to consider how he should proceed. Third, the environment in which the questioning occurred impaired Murphy's ability to recognize and claim his constitutional rights. It is true, as the majority points out, that the discussion between a probation officer and a probationer is likely to be less coercive and intimidating than a discussion between a police officer and a suspect in custody. Ante, at 433. But it is precisely in that fact that the danger lies. In contrast to the inherently adversarial relationship between a suspect and a policeman, the relationship between a probationer and the officer to whom he reports is likely to incorporate elements of confidentiality, even friendship. Indeed, many probation officers deliberately cultivate such bonds 460 with their charges.[27] The point should not be overstated; undoubtedly, few probationers are entirely blind to the fact that their probation officers are "peace officer[s], . . . allied, to a greater or lesser extent, with [their] fellow peace officers." Fare v. Michael C., 442 U.S. 707, 720 (1979). On the other hand, many probationers develop "relationship[s] of trust and cooperation" with their officers. Id., at 722.[28] Through abuse of that trust, a probation officer can elicit admissions from a probationer that the probationer would be unlikely to make to a hostile police interrogator. The instant case aptly illustrates the danger. Before she sent her letter to Murphy asking him to make an appointment, the probation officer had decided to try to induce him to confess to the 1974 killing and to turn over that information to the police. She was aware that, if she were successful, Murphy would soon be arrested and tried for murder.[29] There was thus no prospect whatsoever that the information she elicited would be used to design a treatment program to be followed by Murphy during the remainder of his probation. Yet, in her letter, she described the purpose of the meeting as that of "discuss[ing] a treatment plan." When Murphy arrived at the meeting, she persisted in the deceit; instead of informing him at once what she intended to do with his anticipated confession to the 1974 murder, she told him 461 that "her main concern was to talk to him about the relationship of the prior crime and the one of which he was convicted and about his need for treatment under the circumstances." 324 N.W.2d 340, 341 (Minn. 1982). That Murphy succumbed to the deception is apparent from the sequence of his responses. Instead of denying responsibility for the 1974 killing, he admitted his guilt but sought to explain that extenuating circumstances accounted for that crime. Because those circumstances no longer existed, he argued, he had no need for further treatment. Only after Murphy had made his confession did the officer inform him of her intent to transmit that information to the police. In short, the environment in which the interview was conducted afforded the probation officer opportunities to reinforce and capitalize on Murphy's ignorance that he had a right to refuse to answer incriminating questions, and the officer deliberately and effectively exploited those opportunities. Finally, it is indisputable that the probation officer had reason to know that truthful responses to her questions would expose Murphy to criminal liability. This case does not arise out of a spontaneous confession to a routine question innocently asked by a government official. Rather, it originates in precisely the sort of situation the Fifth Amendment was designed to prevent in which a government, instead of establishing a defendant's guilt through independent investigation, seeks to induce him, against his will, to convict himself out of his own mouth. In sum, none of the factors that, in most contexts, justify application of the principle that a defendant loses his Fifth Amendment privilege unless he claims it in a timely fashion are present in this case. Accordingly, the State should be obliged to demonstrate that Murphy knew of his constitutional rights and freely waived them. Because the State has made no such showing, I would hold his confession inadmissible. *462 III The criminal justice system contains safeguards that should minimize the damage done by the Court's decision today. In the future, responsible criminal defense attorneys whose clients are given probation will inform those clients, in their final interviews, that they may disregard probation conditions insofar as those conditions are inconsistent with probationers' Fifth Amendment rights. The attorneys will then carefully instruct their clients on the nuances of those rights as we have now explicated them.[30] Armed with this knowledge, few probationers will succumb to the sort of pressure and deceit that overwhelmed Murphy. Because Murphy himself had the benefit of none of the safeguards just described, I would affirm the judgment of the Supreme Court of Minnesota that the admission into evidence of the disclosures he made to his probation officer violated the Constitution. I respectfully dissent.	The opinion of the Court helpfully clarifies the scope of the privilege against self-incrimination that may be asserted by a probationer when asked questions by an officer of the State. As the majority points out, two principles shape the probationer's constitutional rights. First, because probation revocation proceedings are not criminal in nature, and because the Fifth Amendment ban on compelled self-incrimination applies only to criminal proceedings, the possibility that a truthful answer to a question might result in the revocation of his probation does not accord the probationer a constitutional right to refuse to respond. Ante, at 435-436, n. 7. Second, a probationer retains the privilege enjoyed by all citizens to refuse "to answer official questions put to him in any proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings," Ante, at 426. From the foregoing propositions, it follows that the power of a State to compel a probationer to answer a given question varies depending upon the manner in which the probationer's answer might incriminate him. If a truthful response might reveal that he has violated a condition of his probation but would not subject him to criminal prosecution, the State may insist that he respond and may penalize him for refusing to do so.[1] See ante, at 435-436, n. 7. By contrast, if there is a chance that a truthful answer to a given question would expose the probationer to liability for a crime different from the crime for which he has already been convicted, he has a right to refuse to answer and the State may not attempt to coerce 442 him to forgo that right.[2] See ante, at 435. As the majority points out, if the answer to a question might lead both to criminal sanctions and to probation revocation, the State has the option of insisting that the probationer respond, in return for an express guarantee of immunity from criminal liability.[3]Ante, at 436, n. 7. Unless it exercises that option, however, the State may not interfere with the probationer's right "to remain silent unless he chooses to speak in the unfettered exercise of his own will," The flaw in the opinion of the Court lies not in its analysis of the constitutional rights available to a probationer, but in its finding that those rights were not violated in this case. The majority concludes that, "since Murphy revealed incriminating information instead of timely asserting his Fifth Amendment privilege, his disclosures were not compelled incriminations." Ante, at 440. In my view, that conclusion is inconsistent with our prior cases dealing with invocations of the Fifth Amendment. For two independent reasons, Murphy's failure to claim his privilege against self-incrimination before responding to his probation officer's inquiry regarding his participation in the 1974 murder did not result in the forfeiture of his right to object to the use of his admissions in a subsequent criminal prosecution. First, the State of Minnesota 443 had threatened Murphy with a penalty for refusing to respond to questions; our decisions make clear that such a threat relieves its target of the duty to claim the benefit of the Fifth Amendment. Second, under the circumstances of this case, the State was obliged to prove that Murphy was aware of his constitutional rights and freely waived them; by showing nothing more than that Murphy failed to assert his privilege before answering, the State failed to carry its burden. I As the majority acknowledges, if an officer of a State asks a person a question under circumstances that deprive him of a " `free choice to admit, to deny, or to refuse to answer,' " and he answers the question without attempting to assert his privilege against self-incrimination, his response will be deemed to have been "compelled" and will be inadmissible as evidence against him. 424 U.S. 64, ; see ante, at 429. Our cases make clear that the State will be found to have deprived the person of such a "free choice" if it threatens him with a substantial sanction if he refuses to respond. 414 U. S., at 2-3. Two rules flow from the foregoing principle: If the State presents a person with the "Hobson's choice" of incriminating himself or suffering a penalty, and he nevertheless refuses to respond, the State cannot constitutionally make good on its threat to penalize him. at ; Sanitation 392 U.S. 20, 24 (196); 2-27 (196). Conversely, if the threatened person decides to talk instead of asserting his privilege, the State cannot use his admissions against him in a subsequent criminal prosecution. 35 U.S. 493, It might appear that these two rules would defeat one another. A person presented with what appears to be a Hobson's choice could be charged with the knowledge that, 444 under this Court's precedents, he may choose either option with impunity. His awareness that the State can use neither his silence nor his confessions against him would seem to eliminate the "compulsion" supposedly inherent in the situation.[4] More specifically, it might be argued that, because it is now settled that a person cannot be penalized for asserting his Fifth Amendment privilege, if he decides to talk rather than assert his constitutional right to remain silent, his statements should be deemed voluntary. This Court has consistently refused to allow the two rules to undercut each other in this way.[5] Our refusal derives from two considerations. First, many probably most of the persons threatened with sanctions if they refuse to answer official questions lack sufficient knowledge of this Court's decisions to be aware that the State's threat is idle. Second, the State's attempt to coerce self-incriminating statements by promising to penalize silence is itself constitutionally offensive, and the mere possibility that the State profited from the attempt is sufficient to forbid it to make use of the admissions it elicited. See For similar reasons, when a person who has been threatened with a penalty makes self-incriminating statements, we 445 have declined to inquire whether his decision to speak was the proximate result of the threat. In most cases, it would be difficult for the person to prove that, but for the threat, he would have held his peace and that no other intervening causes (such as pangs of conscience) induced him to confess.[6] The State, having exerted pressures repugnant to the Constitution, should not be allowed to profit from the uncertainty whether those pressures had their intended effect. Sensitivity to the foregoing concerns is reflected in our decision in The petitioners in that case had never argued that their confessions were in fact induced by the State's warning that they might be fired if they refused to answer, and the lower courts had not so found.[7] Nevertheless, the Court concluded that the petitioners' statements "were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary." at 497-49 In sum, the majority errs when it suggests that, to claim the benefit of the Fifth Amendment, a person who made self-incriminating statements after being threatened with a penalty if he remained silent must show that his apprehension that the State would carry out its promise was objectively "reasonable," ante, at 43. Our decisions make clear that the 446 threat alone is sufficient to render all subsequent testimony "compelled." See[] Likewise, the majority errs when it implies that a defendant has a duty to prove that the State's threat, and not some other motivation, prompted his confession, see ante, at 437-43. Under our precedents, the defendant need only prove that the State presented him with a constitutionally impermissible choice and that he thereupon incriminated himself. See When the foregoing principles are applied to this case, it becomes clear that Murphy's confession to the 1974 murder must be deemed to have been "compelled." When Murphy was placed on probation, he was given a letter setting forth the conditions under which he was discharged. The pertinent portions of the letter provide: "For the present you are only conditionally released. If you comply with the conditions of your probation you may expect to be discharged at the expiration of the period stated. If you fail to comply with the requirements you may be returned to Court at any time for further hearing or commitment. "It will be necessary for you to obey strictly the following conditions: "BE TRUTHFUL to your Probation Officer in all matters." App. to Pet. for Cert. C-33 C-34 (emphasis in original). Murphy was required to sign the letter, attesting that he had read and understood the instructions. at C-35. 447 The majority contends that the foregoing passages merely required Murphy to answer nonincriminating questions and forbade him to make false statements to his probation officer. Ante, at 437. The majority's interpretation, which is essential to its result, is simply incredible. A reasonable layman would interpret the imperative, "be truthful in all matters," as a command to answer honestly all questions presented. Any ambiguity inherent in the language of the directive is dispelled by its context. The duty to be truthful in dealings with the probation officer is listed as the first term of the conditions of probation. The critical phrase is capitalized. And the injunction is immediately preceded by an instruction "to obey strictly the following conditions."[9] In short, the State of Minnesota presented Murphy with a set of official instructions that a reasonable man would have interpreted to require him, upon pain of the revocation of his probation, to answer truthfully all questions asked by his probation officer.[10] Probation revocation surely constitutes a 44 "substantial sanction."[11] Under our precedents, therefore, by threatening Murphy with that sanction if he refused to answer, Minnesota deprived itself of constitutional authority to use Murphy's subsequent answers in a criminal prosecution against him. The majority's efforts to avoid that conclusion are unpersuasive. First, the majority faults Murphy for failing to ask his probation officer for a "clarification" of the terms of his probation. Ante, at 437. The letter by which the State informed Murphy of the terms of his probation contained no suggestion that he was entitled to such a "clarification"; on the contrary, the letter informed Murphy that he was required to "obey strictly" the conditions enumerated and that failure to do so might result in his "commitment." More importantly, as indicated above, our decisions establish that a 449 person told by the State that he may be penalized for refusing to answer does not bear the responsibility to determine whether the State would or could make good on its threat. See Second, the majority relies on the absence of "direct evidence that Murphy confessed because he feared that his probation would be revoked if he remained silent." Ante, at 437. Under our precedents, no such "direct evidence" of a causal link between the threat and the response is required in order to prevent the use in a criminal prosecution of Murphy's confession. See In conclusion, because the terms of Murphy's probation deprived him of "a free choice to admit, to deny, or to refuse to answer" when his probation officer confronted him with the allegation that he had committed the 1974 murder, our decisions forbid the introduction into evidence against him of his confession. II Even if Minnesota had not impaired Murphy's freedom to respond or to refuse to respond to incriminating questions regarding the 1974 murder, I would hold his confession inadmissible because, in view of the circumstances under which he was interrogated, the State had a duty to prove that Murphy waived his privilege against self-incrimination, and it has not made such a showing. A It is now settled that, in most contexts, the privilege against self-incrimination is not self-executing. "[I]n the ordinary case," if a person questioned by an officer of the State makes damaging disclosures instead of asserting his privilege, he forfeits his right to object to subsequent use of his admissions against him. This forfeiture occurs even if the person is subject to a general legal duty to respond to the officer's questions. See United v. Washington, 431 U.S. 11 (19); ante, at 427. And it occurs regardless of whether the 450 person's failure to claim the privilege was founded upon a knowing and intelligent decision to waive his constitutional right not to answer those questions that might incriminate him. ; see also ante, at 427-42. At first blush, this harsh doctrine seems incompatible with our repeated assertions of the importance of the Fifth Amendment privilege in our constitutional scheme. Twenty years ago, we observed: "[T]he American system of criminal prosecution is accusatorial, not inquisitorial, and the Fifth Amendment privilege is its essential mainstay. Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth." 37 U. S., at 7- In view of our continued adherence to the foregoing principles,[12] it appears anomalous that, in most contexts, we allow governments to take advantage of witnesses' failure, sometimes as a result of ignorance or momentary inattention, to claim the benefit of the privilege in a "timely" fashion. The explanation for our seemingly callous willingness to countenance forfeitures of Fifth Amendment rights must be sought in a combination of three factors. First and most importantly, we presume that most people are aware that they need not answer an official question when a truthful answer might expose them to criminal prosecution. "At this point in our history virtually every schoolboy is familiar with the concept, if not the language," of the constitutional ban on compelled self-incrimination. We thus take for granted that, in most instances, when a person discloses damaging information 451 in response to an official inquiry, he has made an intelligent decision to waive his Fifth Amendment rights. Second, in the vast majority of situations in which an officer of the State asks a citizen a question, the officer has no reason to know that a truthful response would reveal that the citizen has committed a crime. Under such circumstances, one of the central principles underlying the Fifth Amendment that governments should not "deliberately see[k] to avoid the burdens of independent investigation by compelling self-incriminating disclosures" has little relevance. Thus, in the ordinary case, few constitutional values are threatened when the government fails to preface an inquiry with an explicit reminder that a response is not required if it might expose the respondent to prosecution. Third, a general requirement that government officials preface all questions with such reminders would be highly burdensome. Our concern with the protection of constitutional rights should not blind us to the fact that, in general, governments have the right to everyone's testimony. E. g., 40 U.S. 665, 6 A rule requiring officials, before asking citizens for information, to tell them that they need not reveal incriminating evidence would unduly impede the capacity of government to gather the data it needs to function effectively.[13] 452 In sum, a general rule requiring the prosecution, before introducing a confession, to prove that the defendant intelligently and voluntarily waived his right not to incriminate himself would protect few persons (because most know their legal rights), would do little to promote the values that underlie the Fifth Amendment, and would substantially impair the information-gathering capacity of government.[14] It should be apparent that these considerations do not apply with equal force in all contexts. Until today, the Court has been sensitive to variations in their relevance and strength. Accordingly, we have adhered to the general principle that a defendant forfeits his privilege if he fails to assert it before making incriminating statements only in situations implicating several of the factors that support the principle. More specifically, we have applied the principle only in cases in which at least two of the following statements have been true: (a) At the time the damaging disclosures were made, the defendant's constitutional right not to make them was clearly established. (b) The defendant was given sufficient warning that he would be asked potentially incriminating 453 questions to be able to secure legal advice and to reflect upon how he would respond. (c) The environment in which the questions were asked did not impair the defendant's ability intelligently to exercise his rights. (d) The questioner had no reason to assume that truthful responses would be self-incriminating. A review of a few of the leading cases should suffice to establish the point.[15] In United v. Kordel, the Government submitted interrogatories to the defendant in a civil suit. Though the defendant (a corporate officer) was aware that the Government was planning to bring a criminal action against him, he answered the questions instead of asserting his privilege against self-incrimination. The Court ruled that his answers could be admitted in the ensuing prosecution. In so holding, the Court emphasized the facts that established law made clear that the defendant had a constitutional right to refuse to answer the interrogatories, that he was free to consult with counsel before responding, and that nothing in the circumstances under which the questions were presented impaired the defendant's ability to appreciate the consequences of his actions. The defendant in 424 U.S. 64 was a professional gambler who made incriminating disclosures on his Form 1040 income tax returns. The Court held that he could be prosecuted partly on the basis of his admissions. Though the defendant's constitutional right to refuse to provide the requested information was perhaps less clear and straightforward than the right of the usual defendant, the Court stressed that other factors rendered inexcusable his failure to learn and assert his entitlements. Thus, 454 the Court pointed out that the defendant was free to consult with a lawyer and could fill out the tax return at his leisure in an environment of his choosing. at 65. Moreover, every taxpayer is required to fill out a Form 1040; the Government, in imposing that duty, has no reason to assume that any given taxpayer's responses will be self-incriminating.[16] Thus, the United in Garner could not be faulted for requesting the information that the defendant provided. Finally, in United v. Washington, 431 U.S. 11 (19), the Court confirmed the proposition that a witness called to testify before a grand jury must claim the benefit of the privilege or forfeit it.[17] The Court acknowledged that "the grand jury room engenders an atmosphere conducive to truthtelling" and thus might have exerted some pressure on the defendant not to assert his rights. at 17. In addition, the Court recognized that the Government was not blameless insofar as a criminal investigation had focused on the defendant and thus the questioners had ample reason to believe that truthful answers by the defendant would be self-incriminating.[1] But, the Court reasoned, the situation contained 455 other safeguards that warranted adherence to the principle that a privilege not asserted is lost. First, the defendant's right to refuse to respond had been perfectly clear; indeed, at the outset of the proceeding, the defendant had been explicitly warned of his right not to answer questions if his responses might incriminate him. at 16, 1.[19] Second, not only had the defendant been afforded an opportunity before appearing to seek legal advice, but also, at the start of the hearing, he was told that a lawyer would be provided for him if he wished and could not afford one. at 13-14. Under those circumstances, the Court concluded that it was inconceivable that the defendant's decision not to assert his privilege was uninformed or involuntary.[20] 456 By contrast, in cases in which only one of the statements enumerated above, see has been true, the Court has refused to adhere to the general rule that a privilege not claimed is lost, and instead has insisted upon a showing that the defendant made a knowing and intelligent decision to forgo his constitutional right not to incriminate himself. The classic situation of this sort is custodial interrogation. In 34 U.S. 436 the Court acknowledged that the right of a suspect in police custody not to answer questions is well established. However, we stressed that other aspects of the situation impair the ability of the suspect to exercise his rights and threaten the values underlying the Fifth Amendment: the suspect is unable to consult with counsel regarding how he should respond to questions; the environment in which the questions are presented (the police station, from which the suspect is forbidden to leave) "work[s] to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely," ; and the interrogators are well aware that truthful answers to their questions are likely to incriminate the suspect. In short, only one of the four circumstances favoring application of the general principle exist in the context of custodial interrogation. To mitigate the risk that suspects would ignorantly or involuntarily fail to claim their privilege against self-incrimination under these circumstances, the Court in Miranda imposed a requirement 457 that they be shown to have freely waived their rights after being fully apprised of them.[21] B If we remain sensitive to the concerns implicit in the foregoing pattern of cases, we should insist that the State, in the instant case, demonstrate that Murphy intelligently waived his right to remain silent. None of the four conditions that favor application of the principle that a defendant forfeits his privilege if he fails to claim it before confessing can be found in the circumstances under which Murphy was interrogated. First, the existence and scope of Murphy's constitutional right to refuse to testify were at best unclear when he appeared 45 in the probation officer's office. It is undisputed that the conditions of Murphy's probation imposed on him a duty to answer all questions presented by his probation officer except those implicating his Fifth Amendment rights.[22] What exactly those rights were was far from apparent. The majority opinion in this case constitutes the first authoritative analysis of the privilege against self-incrimination available to a probationer. The ambiguity of scope of that privilege prior to today is suggested by the fact the Solicitor General, appearing for the United as amicus curiae, seriously misconceived the rights that might have been asserted by Murphy when examined by his probation officer.[23] If, after being afforded substantial opportunity for research and reflection, the lawyers who represent the Nation err in their explication of the relevant constitutional principles, Murphy surely cannot be charged with knowledge of his entitlements.[24] 459 Second, contrary to the suggestion of the majority, ante, at 432, Murphy was given no warning that he would be asked potentially incriminating questions. The letter in which Murphy's probation officer instructed him to make an appointment informed him that the purpose of the meeting was "[t]o further discuss a treatment plan for the remainder of [his] probation." App. to Pet. for Cert. C-36. In view of the fact that Murphy remained under a legal obligation to attend treatment sessions,[25] there was no reason why he should have assumed from the letter that the officer planned to question him regarding prior criminal activity.[26] In short, prior to the moment he was asked whether he had committed the murder, Murphy had no reason to suspect that he would be obliged to respond to incriminating questions. He thus had no opportunity to consult a lawyer, or even to consider how he should proceed. Third, the environment in which the questioning occurred impaired Murphy's ability to recognize and claim his constitutional rights. It is true, as the majority points out, that the discussion between a probation officer and a probationer is likely to be less coercive and intimidating than a discussion between a police officer and a suspect in custody. Ante, at 433. But it is precisely in that fact that the danger lies. In contrast to the inherently adversarial relationship between a suspect and a policeman, the relationship between a probationer and the officer to whom he reports is likely to incorporate elements of confidentiality, even friendship. Indeed, many probation officers deliberately cultivate such bonds 460 with their charges.[27] The point should not be overstated; undoubtedly, few probationers are entirely blind to the fact that their probation officers are "peace officer[s], allied, to a greater or lesser extent, with [their] fellow peace officers." On the other hand, many probationers develop "relationship[s] of trust and cooperation" with their officers.[2] Through abuse of that trust, a probation officer can elicit admissions from a probationer that the probationer would be unlikely to make to a hostile police interrogator. The instant case aptly illustrates the danger. Before she sent her letter to Murphy asking him to make an appointment, the probation officer had decided to try to induce him to confess to the 1974 killing and to turn over that information to the police. She was aware that, if she were successful, Murphy would soon be arrested and tried for murder.[29] There was thus no prospect whatsoever that the information she elicited would be used to design a treatment program to be followed by Murphy during the remainder of his probation. Yet, in her letter, she described the purpose of the meeting as that of "discuss[ing] a treatment plan." When Murphy arrived at the meeting, she persisted in the deceit; instead of informing him at once what she intended to do with his anticipated confession to the 1974 murder, she told him 461 that "her main concern was to talk to him about the relationship of the prior crime and the one of which he was convicted and about his need for treatment under the circumstances." (Minn. 192). That Murphy succumbed to the deception is apparent from the sequence of his responses. Instead of denying responsibility for the 1974 killing, he admitted his guilt but sought to explain that extenuating circumstances accounted for that crime. Because those circumstances no longer existed, he argued, he had no need for further treatment. Only after Murphy had made his confession did the officer inform him of her intent to transmit that information to the police. In short, the environment in which the interview was conducted afforded the probation officer opportunities to reinforce and capitalize on Murphy's ignorance that he had a right to refuse to answer incriminating questions, and the officer deliberately and effectively exploited those opportunities. Finally, it is indisputable that the probation officer had reason to know that truthful responses to her questions would expose Murphy to criminal liability. This case does not arise out of a spontaneous confession to a routine question innocently asked by a government official. Rather, it originates in precisely the sort of situation the Fifth Amendment was designed to prevent in which a government, instead of establishing a defendant's guilt through independent investigation, seeks to induce him, against his will, to convict himself out of his own mouth. In sum, none of the factors that, in most contexts, justify application of the principle that a defendant loses his Fifth Amendment privilege unless he claims it in a timely fashion are present in this case. Accordingly, the State should be obliged to demonstrate that Murphy knew of his constitutional rights and freely waived them. Because the State has made no such showing, I would hold his confession inadmissible. *462 III The criminal justice system contains safeguards that should minimize the damage done by the Court's decision today. In the future, responsible criminal defense attorneys whose clients are given probation will inform those clients, in their final interviews, that they may disregard probation conditions insofar as those conditions are inconsistent with probationers' Fifth Amendment rights. The attorneys will then carefully instruct their clients on the nuances of those rights as we have now explicated them.[30] Armed with this knowledge, few probationers will succumb to the sort of pressure and deceit that overwhelmed Murphy. Because Murphy himself had the benefit of none of the safeguards just described, I would affirm the judgment of the Supreme Court of Minnesota that the admission into evidence of the disclosures he made to his probation officer violated the Constitution. I respectfully dissent.
Justice Stewart	dissenting	true	Estelle v. Dorrough	1975-04-14T00:00:00	null	https://www.courtlistener.com/opinion/109213/estelle-v-dorrough/	https://www.courtlistener.com/api/rest/v3/clusters/109213/	1,975	1974-065	1	5	4	If the shortcomings of the challenged Texas statute were only those addressed by the Court, I could join the Court's opinion. For I agree that Art. 44.09 is not rendered unconstitutional by its more lenient treatment of escaped felons under sentence of death or life imprisonment, nor by its asserted "underinclusive" inapplicability to a felon who escapes and is returned to custody involuntarily before his appeal is filed. But I think the Court has failed to come to grips with the real constitutional defect in the challenged statute. 543 In summarily reversing the judgment before us the Court relies upon decisions establishing the long-settled "practice of declining to review the convictions of escaped criminal defendants." Ante, at 537. See Smith v. United States, 94 U.S. 97 (1876); Bonahan v. Nebraska, 125 U.S. 692 (1887); Molinaro v. New Jersey, 396 U.S. 365 (1970). See also Allen v. Georgia, 166 U.S. 138 (1897). But these decisions have universally been understood to mean only that a court may properly dismiss an appeal of a fugitive convict when, and because, he is not within the custody and control of the court. Until today, this Court has never intimated that under the rule of Smith, Bonahan, and Molinaro a court might dismiss an appeal of an escaped criminal defendant at a time when he has been returned to custody, and thus to the court's power and control.[] The rationale for the dismissal of an appeal when the appellant is at large is clearly stated in the Smith decision: "It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render. In this case it is admitted that the plaintiff in error 544 has escaped, and is not within the control of the court below, either actually, by being in custody, or constructively, by being out on bail. If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case." 94 U.S., at 97. See also Bonahan v. Nebraska, 125 U.S. 692 (1887). Here, as the Court notes, Dorrough was recaptured two days after his flight. And, as the Court also notes, his appeal was dismissed after his recapture. In this situation, the rule of Smith-Bonahan-Molinaro provides no support whatever for the Texas law that deprived Dorrough of his right to appeal. If the challenged statute can be sustained, it must rest upon the alternative ground advanced by the Court that, as a punitive and deterrent measure enacted in the exercise of the State's police power, it "discourages the felony of escape and encourages voluntary surrenders." But the statute imposes totally irrational punishments upon those subject to its application. If an escaped felon has been convicted in violation of law, the loss of his right to appeal results in his serving a sentence that under law was erroneously imposed. If, on the other hand, his trial was free of reversible error, the loss of his right to appeal results in no punishment at all. And those whose convictions would have been reversed if their appeals had not been dismissed serve totally disparate sentences, dependent not upon the circumstances of their escape, but upon whatever sentences may have been meted out under their invalid convictions. In my view, this random pattern of punishment cannot be considered a rational means of enforcing the State's interest 545 in deterring and punishing escapes. Cf. McLaughlin v. Florida, 379 U.S. 184, 191 (1964); Rinaldi v. Yeager, 384 U.S. 305, 309 (1966); U. S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 538 (1973). A closely analogous case was considered by the Supreme Court of Idaho in In re Mallon, 16 Idaho 737, 740-741, 102 P. 374 (1909). There the court considered a statute providing: " `. . . Every state prisoner confined in the state prison for a term less than for life, who escapes therefrom, is punishable by imprisonment in the state prison for a term equal in length to the term he was serving at the time of such escape; said second term of imprisonment to commence from the time he would otherwise have been discharged from said prison.' " The court concluded that the statute at issue was unconstitutional. Similarly the Supreme Court of Kansas in State v. Lewin, 53 Kan. 679, 37 P. 168 (1894), held unconstitutional a statute providing that upon escape a convict was to be punished by imposition of the full term of the sentence under which he had initially been imprisoned, without credit for any time served before the escape. Under these Idaho and Kansas statutes, two men escaping at the same time and in the same manner could receive wholly different sentences, not related at all to the gravity of the offense of escape. That is precisely the vice of the Texas statute at issue in the present case. I would affirm the judgment of the Court of Appeals.	If the shortcomings of the challenged Texas statute were only those addressed by the Court, I could join the Court's opinion. For I agree that Art. 44.09 is not rendered unconstitutional by its more lenient treatment of escaped felons under sentence of death or life imprisonment, nor by its asserted "underinclusive" inapplicability to a felon who escapes and is returned to custody involuntarily before his appeal is filed. But I think the Court has failed to come to grips with the real constitutional defect in the challenged statute. 543 In summarily reversing the judgment before us the Court relies upon decisions establishing the long-settled "practice of declining to review the convictions of escaped criminal defendants." Ante, at 537. See ; ; See also But these decisions have universally been understood to mean only that a court may properly dismiss an appeal of a fugitive convict when, and because, he is not within the custody and control of the court. Until today, this Court has never intimated that under the rule of Smith, Bonahan, and Molinaro a court might dismiss an appeal of an escaped criminal defendant at a time when he has been returned to custody, and thus to the court's power and control.[] The rationale for the dismissal of an appeal when the appellant is at large is clearly stated in the Smith decision: "It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render. In this case it is admitted that the plaintiff in error 544 has escaped, and is not within the control of the court below, either actually, by being in custody, or constructively, by being out on bail. If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case." See also Here, as the Court notes, Dorrough was recaptured two days after his flight. And, as the Court also notes, his appeal was dismissed after his recapture. In this situation, the rule of Smith-Bonahan-Molinaro provides no support whatever for the Texas law that deprived Dorrough of his right to appeal. If the challenged statute can be sustained, it must rest upon the alternative ground advanced by the Court that, as a punitive and deterrent measure enacted in the exercise of the State's police power, it "discourages the felony of escape and encourages voluntary surrenders." But the statute imposes totally irrational punishments upon those subject to its application. If an escaped felon has been convicted in violation of law, the loss of his right to appeal results in his serving a sentence that under law was erroneously imposed. If, on the other hand, his trial was free of reversible error, the loss of his right to appeal results in no punishment at all. And those whose convictions would have been reversed if their appeals had not been dismissed serve totally disparate sentences, dependent not upon the circumstances of their escape, but upon whatever sentences may have been meted out under their invalid convictions. In my view, this random pattern of punishment cannot be considered a rational means of enforcing the State's interest 545 in deterring and punishing escapes. Cf. ; ; U. S. Dept. of A closely analogous case was considered by the Supreme Court of Idaho in In re Mallon, There the court considered a statute providing: " `. Every state prisoner confined in the state prison for a term less than for life, who escapes therefrom, is punishable by imprisonment in the state prison for a term equal in length to the term he was serving at the time of such escape; said second term of imprisonment to commence from the time he would otherwise have been discharged from said prison.' " The court concluded that the statute at issue was unconstitutional. Similarly the Supreme Court of Kansas in held unconstitutional a statute providing that upon escape a convict was to be punished by imposition of the full term of the sentence under which he had initially been imprisoned, without credit for any time served before the escape. Under these Idaho and Kansas statutes, two men escaping at the same time and in the same manner could receive wholly different sentences, not related at all to the gravity of the offense of escape. That is precisely the vice of the Texas statute at issue in the present case. I would affirm the judgment of the Court of Appeals.
Justice O'Connor	majority	false	Maryland v. Craig	1990-06-27T00:00:00	null	https://www.courtlistener.com/opinion/112489/maryland-v-craig/	https://www.courtlistener.com/api/rest/v3/clusters/112489/	1,990	1989-141	1	5	4	This case requires us to decide whether the Confrontation Clause of the Sixth Amendment categorically prohibits a child witness in a child abuse case from testifying against a defendant at trial, outside the defendant's physical presence, by one-way closed circuit television. I In October 1986, a Howard County grand jury charged respondent, Sandra Ann Craig, with child abuse, first and second degree sexual offenses, perverted sexual practice, assault, and battery. The named victim in each count was a 6-year-old girl who, from August 1984 to June 1986, had attended a kindergarten and prekindergarten center owned and operated by Craig. In March 1987, before the case went to trial, the State sought to invoke a Maryland statutory procedure that permits a judge to receive, by one-way closed circuit television, the testimony of a child witness who is alleged to be a victim of child abuse.[1] To invoke the procedure, the 841 trial judge must first "determin[e] that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate." Md. Cts. & Jud. Proc. Code Ann. § 9-102(a)(1)(ii) (1989). Once the procedure is invoked, the child witness, prosecutor, and defense counsel withdraw to a separate room; the judge, jury, and defendant remain in the courtroom. The child witness is then examined and cross-examined in the separate room, while a video monitor records and displays the witness' testimony to those in the courtroom. During this time the witness cannot see the defendant. 842 The defendant remains in electronic communication with defense counsel, and objections may be made and ruled on as if the witness were testifying in the courtroom. In support of its motion invoking the one-way closed circuit television procedure, the State presented expert testimony that the named victim, as well as a number of other children who were alleged to have been sexually abused by Craig, would suffer "serious emotional distress such that [they could not] reasonably communicate," § 9-102(a)(1)(ii), if required to testify in the courtroom. App. 7-59. The Maryland Court of Appeals characterized the evidence as follows: "The expert testimony in each case suggested that each child would have some or considerable difficulty in testifying in Craig's presence. For example, as to one child, the expert said that what `would cause him the most anxiety would be to testify in front of Mrs. Craig. . . .' The child `wouldn't be able to communicate effectively.' As to another, an expert said she `would probably stop talking and she would withdraw and curl up.' With respect to two others, the testimony was that one would `become highly agitated, that he may refuse to talk or if he did talk, that he would choose his subject regardless of the questions' while the other would `become extremely timid and unwilling to talk.'" 316 Md. 551, 568-569, 560 A.2d 1120, 1128-1129 (1989). Craig objected to the use of the procedure on Confrontation Clause grounds, but the trial court rejected that contention, concluding that although the statute "take[s] away the right of the defendant to be face to face with his or her accuser," the defendant retains the "essence of the right of confrontation," including the right to observe, cross-examine, and have the jury view the demeanor of the witness. App. 65-66. The trial court further found that, "based upon the evidence presented . . . the testimony of each of these children in a courtroom will result in each child suffering serious emotional distress . . . such that each of these children cannot reasonably 843 communicate." Id., at 66. The trial court then found the named victim and three other children competent to testify and accordingly permitted them to testify against Craig via the one-way closed circuit television procedure. The jury convicted Craig on all counts, and the Maryland Court of Special Appeals affirmed the convictions, 76 Md. App. 250, 544 A.2d 784 (1988). The Court of Appeals of Maryland reversed and remanded for a new trial. 316 Md. 551, 560 A.2d 1120 (1989). The Court of Appeals rejected Craig's argument that the Confrontation Clause requires in all cases a face-to-face courtroom encounter between the accused and his accusers, id., at 556-562, 560 A.2d, at 1122-1125, but concluded: "[U]nder § 9-102(a)(1)(ii), the operative `serious emotional distress' which renders a child victim unable to `reasonably communicate' must be determined to arise, at least primarily, from face-to-face confrontation with the defendant. Thus, we construe the phrase `in the courtroom' as meaning, for sixth amendment and [state constitution] confrontation purposes, `in the courtroom in the presence of the defendant.' Unless prevention of `eyeball-to-eyeball' confrontation is necessary to obtain the trial testimony of the child, the defendant cannot be denied that right." Id., at 566, 560 A.2d, at 1127. Reviewing the trial court's finding and the evidence presented in support of the § 9-102 procedure, the Court of Appeals held that, "as [it] read Coy [v. Iowa, 487 U.S. 1012 (1988)], the showing made by the State was insufficient to reach the high threshold required by that case before § 9-102 may be invoked." Id., at 554-555, 560 A.2d, at 1121 (footnote omitted). We granted certiorari to resolve the important Confrontation Clause issues raised by this case. 493 U.S. 104 (1990). 844 II The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." We observed in Coy v. Iowa that "the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." 487 U.S., at 1016 (citing Kentucky v. Stincer, 482 U.S. 730, 748, 749-750 (1987) (MARSHALL, J., dissenting)); see also Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987) (plurality opinion); California v. Green, 399 U.S. 149, 157 (1970); Snyder v. Massachusetts, 291 U.S. 97, 106 (1934); Dowdell v. United States, 221 U.S. 325, 330 (1911); Kirby v. United States, 174 U.S. 47, 55 (1899); Mattox v. United States, 156 U.S. 237, 244 (1895). This interpretation derives not only from the literal text of the Clause, but also from our understanding of its historical roots. See Coy, supra, at 1015-1016; Mattox, supra, at 242 (Confrontation Clause intended to prevent conviction by affidavit); Green, supra, at 156 (same); cf. 3 J. Story, Commentaries on the Constitution § 1785, p. 662 (1833). We have never held, however, that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial. Indeed, in Coy v. Iowa, we expressly "le[ft] for another day. . . the question whether any exceptions exist" to the "irreducible literal meaning of the Clause: `a right to meet face to face all those who appear and give evidence at trial.'" 487 U.S., at 1021 (quoting Green, supra, at 175 (Harlan, J., concurring)). The procedure challenged in Coy involved the placement of a screen that prevented two child witnesses in a child abuse case from seeing the defendant as they testified against him at trial. See 487 U.S., at 1014-1015. In holding that the use of this procedure violated the defendant's right to confront witnesses against him, we suggested that 845 any exception to the right "would surely be allowed only when necessary to further an important public policy"i. e., only upon a showing of something more than the generalized, "legislatively imposed presumption of trauma" underlying the statute at issue in that case. Id., at 1021; see also id., at 1025 (O'CONNOR, J., concurring). We concluded that "[s]ince there ha[d] been no individualized findings that these particular witnesses needed special protection, the judgment [in the case before us] could not be sustained by any conceivable exception." Id., at 1021. Because the trial court in this case made individualized findings that each of the child witnesses needed special protection, this case requires us to decide the question reserved in Coy. The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. The word "confront," after all, also means a clashing of forces or ideas, thus carrying with it the notion of adversariness. As we noted in our earliest case interpreting the Clause: "The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Mattox, supra, at 242-243. As this description indicates, the right guaranteed by the Confrontation Clause includes not only a "personal examination," 156 U.S., at 242, but also "(1) insures that the witness will give his statements under oaththus impressing him with 846 the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the `greatest legal engine ever invented for the discovery of truth'; [and] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility." Green, supra, at 158 (footnote omitted). The combined effect of these elements of confrontation physical presence, oath, cross-examination, and observation of demeanor by the trier of fact serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings. See Stincer, supra, at 739 ("[T]he right to confrontation is a functional one for the purpose of promoting reliability in a criminal trial"); Dutton v. Evans, 400 U.S. 74, 89 (1970) (plurality opinion) ("[T]he mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that `the trier of fact [has] a satisfactory basis for evaluating the truth of the [testimony]"); Lee v. Illinois, 476 U.S. 530, 540 (1986) (confrontation guarantee serves "symbolic goals" and "promotes reliability"); see also Faretta v. California, 422 U.S. 806, 818 (1975) (Sixth Amendment "constitutionalizes the right in an adversary criminal trial to make a defense as we know it"); Strickland v. Washington, 466 U.S. 668, 684-685 (1984). We have recognized, for example, that face-to-face confrontation enhances the accuracy of factfinding by reducing the risk that a witness will wrongfully implicate an innocent person. See Coy, supra, at 1019-1020 ("It is always more difficult to tell a lie about a person `to his face' than `behind his back.'. . . That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or 847 reveal the child coached by a malevolent adult"); Ohio v. Roberts, 448 U.S. 56, 63, n. 6 (1980); see also 3 W. Blackstone, Commentaries 373-374. We have also noted the strong symbolic purpose served by requiring adverse witnesses at trial to testify in the accused's presence. See Coy, 487 U. S., at 1017 ("[T]here is something deep in human nature that regards face-to-face confrontation between accused and accuser as `essential to a fair trial in a criminal prosecution'") (quoting Pointer v. Texas, 380 U.S. 400, 404 (1965)). Although face-to-face confrontation forms "the core of the values furthered by the Confrontation Clause," Green, 399 U. S., at 157, we have nevertheless recognized that it is not the sine qua non of the confrontation right. See Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (per curiam) ("[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony"); Roberts, supra, at 69 (oath, cross-examination, and demeanor provide "all that the Sixth Amendment demands: `substantial compliance with the purposes behind the confrontation requirement'") (quoting Green, supra, at 166); see also Stincer, 482 U. S., at 739-744 (confrontation right not violated by exclusion of defendant from competency hearing of child witnesses, where defendant had opportunity for full and effective cross-examination at trial); Davis v. Alaska, 415 U.S. 308, 315-316 (1974); Douglas v. Alabama, 380 U.S. 415, 418 (1965); Pointer, supra, at 406-407; 5 J. Wigmore, Evidence § 1395, p. 150 (J. Chadbourn rev. 1974). For this reason, we have never insisted on an actual face-to-face encounter at trial in every instance in which testimony is admitted against a defendant. Instead, we have repeatedly held that the Clause permits, where necessary, the admission of certain hearsay statements against a defendant despite 848 the defendant's inability to confront the declarant at trial. See, e. g., Mattox, 156 U. S., at 243 ("[T]here could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations"); Pointer, supra, at 407 (noting exceptions to the confrontation right for dying declarations and "other analogous situations"). In Mattox, for example, we held that the testimony of a Government witness at a former trial against the defendant, where the witness was fully cross-examined but had died after the first trial, was admissible in evidence against the defendant at his second trial. See 156 U.S., at 240-244. We explained: "There is doubtless reason for saying that . . . if notes of [the witness'] testimony are permitted to be read, [the defendant] is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused." Id., at 243. We have accordingly stated that a literal reading of the Confrontation Clause would "abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme." Roberts, 448 U. S., at 63. Thus, in certain narrow circumstances, "competing interests, if `closely examined,' may warrant dispensing with confrontation at trial." Id., at 64 (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973), and citing Mattox, supra). We have recently held, 849 for example, that hearsay statements of nontestifying co-conspirators may be admitted against a defendant despite the lack of any face-to-face encounter with the accused. See Bourjaily v. United States, 483 U.S. 171 (1987); United States v. Inadi, 475 U.S. 387 (1986). Given our hearsay cases, the word "confronted," as used in the Confrontation Clause, cannot simply mean face-to-face confrontation, for the Clause would then, contrary to our cases, prohibit the admission of any accusatory hearsay statement made by an absent declarant a declarant who is undoubtedly as much a "witness against" a defendant as one who actually testifies at trial. In sum, our precedents establish that "the Confrontation Clause reflects a preference for face-to-face confrontation at trial," Roberts, supra, at 63 (emphasis added; footnote omitted), a preference that "must occasionally give way to considerations of public policy and the necessities of the case," Mattox, supra, at 243. "[W]e have attempted to harmonize the goal of the Clauseplacing limits on the kind of evidence that may be received against a defendant with a societal interest in accurate factfinding, which may require consideration of out-of-court statements." Bourjaily, supra, at 182. We have accordingly interpreted the Confrontation Clause in a manner sensitive to its purposes and sensitive to the necessities of trial and the adversary process. See, e. g., Kirby, 174 U. S., at 61 ("It is scarcely necessary to say that to the rule that an accused is entitled to be confronted with witnesses against him the admission of dying declarations is an exception which arises from the necessity of the case"); Chambers, supra, at 295 ("Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process"). Thus, though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendment's guarantee 850 of the right to confront one's accusers. Indeed, one commentator has noted that "[i]t is all but universally assumed that there are circumstances that excuse compliance with the right of confrontation." Graham, The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8 Crim. L. Bull. 99, 107-108 (1972). This interpretation of the Confrontation Clause is consistent with our cases holding that other Sixth Amendment rights must also be interpreted in the context of the necessities of trial and the adversary process. See, e. g., Illinois v. Allen, 397 U.S. 337, 342-343 (1970) (right to be present at trial not violated where trial judge removed defendant for disruptive behavior); Ritchie, 480 U. S., at 51-54 (plurality opinion) (right to cross-examination not violated where State denied defendant access to investigative files); Taylor v. Illinois, 484 U.S. 400, 410-416 (1988) (right to compulsory process not violated where trial judge precluded testimony of a surprise defense witness); Perry v. Leeke, 488 U.S. 272, 280-285 (1989) (right to effective assistance of counsel not violated where trial judge prevented testifying defendant from conferring with counsel during a short break in testimony). We see no reason to treat the face-to-face component of the confrontation right any differently, and indeed we think it would be anomalous to do so. That the face-to-face confrontation requirement is not absolute does not, of course, mean that it may easily be dispensed with. As we suggested in Coy, our precedents confirm that a defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured. See 487 U.S., at 1021 (citing Roberts, supra, at 64; Chambers, supra, at 295); Coy, supra, at 1025 (O'CONNOR, J., concurring). 851 III Maryland's statutory procedure, when invoked, prevents a child witness from seeing the defendant as he or she testifies against the defendant at trial. We find it significant, however, that Maryland's procedure preserves all of the other elements of the confrontation right: The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies. Although we are mindful of the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontationoath, cross-examination, and observation of the witness' demeanoradequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony. These safeguards of reliability and adversariness render the use of such a procedure a far cry from the undisputed prohibition of the Confrontation Clause: trial by ex parte affidavit or inquisition, see Mattox, 156 U. S., at 242; see also Green, 399 U. S., at 179 (Harlan, J., concurring) ("[T]he Confrontation Clause was meant to constitutionalize a barrier against flagrant abuses, trials by anonymous accusers, and absentee witnesses"). Rather, we think these elements of effective confrontation not only permit a defendant to "confound and undo the false accuser, or reveal the child coached by a malevolent adult," Coy, supra, at 1020, but may well aid a defendant in eliciting favorable testimony from the child witness. Indeed, to the extent the child witness' testimony may be said to be technically given out of court (though we do not so hold), these assurances of reliability and adversariness are far greater than those required for admission of hearsay testimony under the Confrontation Clause. See Roberts, 448 852 U. S., at 66. We are therefore confident that use of the one-way closed circuit television procedure, where necessary to further an important state interest, does not impinge upon the truth-seeking or symbolic purposes of the Confrontation Clause. The critical inquiry in this case, therefore, is whether use of the procedure is necessary to further an important state interest. The State contends that it has a substantial interest in protecting children who are allegedly victims of child abuse from the trauma of testifying against the alleged perpetrator and that its statutory procedure for receiving testimony from such witnesses is necessary to further that interest. We have of course recognized that a State's interest in "the protection of minor victims of sex crimes from further trauma and embarrassment" is a "compelling" one. Globe Newspaper Co. v. Superior Court of Norfolk County, 457 U.S. 596, 607 (1982); see also New York v. Ferber, 458 U.S. 747, 756-757 (1982); FCC v. Pacifica Foundation, 438 U.S. 726, 749-750 (1978); Ginsberg v. New York, 390 U.S. 629, 640 (1968); Prince v. Massachusetts, 321 U.S. 158, 168 (1944). "[W]e have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights." Ferber, supra, at 757. In Globe Newspaper, for example, we held that a State's interest in the physical and psychological well-being of a minor victim was sufficiently weighty to justify depriving the press and public of their constitutional right to attend criminal trials, where the trial court makes a case-specific finding that closure of the trial is necessary to protect the welfare of the minor. See 457 U.S., at 608-609. This Term, in Osborne v. Ohio, 495 U.S. 103 (1990), we upheld a state statute that proscribed the possession and viewing of child pornography, reaffirming that "`[i]t is evident beyond the need for elaboration that a State's interest in "safeguarding the physical and 853 psychological well-being of a minor" is "compelling.""' Id., at 109 (quoting Ferber, supra, at 756-757). We likewise conclude today that a State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court. That a significant majority of States have enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy. See Coy, 487 U. S., at 1022-1023 (O'CONNOR, J., concurring) ("Many States have determined that a child victim may suffer trauma from exposure to the harsh atmosphere of the typical courtroom and have undertaken to shield the child through a variety of ameliorative measures"). Thirty-seven States, for example, permit the use of videotaped testimony of sexually abused children;[2] 24 States have authorized the use of one-way 854 closed circuit television testimony in child abuse cases;[3] and 8 States authorize the use of a two-way system in which the child witness is permitted to see the courtroom and the defendant on a video monitor and in which the jury and judge are permitted to view the child during the testimony.[4] The statute at issue in this case, for example, was specifically intended "to safeguard the physical and psychological well-being of child victims by avoiding, or at least minimizing, the emotional trauma produced by testifying." Wildermuth v. State, 310 Md. 496, 518, 530 A.2d 275, 286 (1987). The Wildermuth court noted: "In Maryland, the Governor's Task Force on Child Abuse in its Interim Report (Nov. 1984) documented the existence of the [child abuse] problem in our State. Interim Report at 1. It brought the picture up to date in its Final Report (Dec. 1985). In the first six months of 1985, investigations of child abuse were 12 percent more numerous than during the same period of 1984. In 1979 4,615 cases of child abuse were investigated; in 1984, 855 8,321. Final Report at iii. In its Interim Report at 2, the Commission proposed legislation that, with some changes, became § 9-102. The proposal was `aimed at alleviating the trauma to a child victim in the courtroom atmosphere by allowing the child's testimony to be obtained outside of the courtroom.' Id., at 2. This would both protect the child and enhance the public interest by encouraging effective prosecution of the alleged abuser." Id., at 517, 530 A.2d, at 285. Given the State's traditional and "`transcendent interest in protecting the welfare of children,'" Ginsberg, 390 U. S., at 640 (citation omitted), and buttressed by the growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court, see Brief for American Psychological Association as Amicus Curiae 7-13; G. Goodman et al., Emotional Effects of Criminal Court Testimony on Child Sexual Assault Victims, Final Report to the National Institute of Justice (presented as conference paper at annual convention of American Psychological Assn., Aug. 1989), we will not second-guess the considered judgment of the Maryland Legislature regarding the importance of its interest in protecting child abuse victims from the emotional trauma of testifying. Accordingly, we hold that, if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant. The requisite finding of necessity must of course be a case-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. See Globe Newspaper Co., 457 U. S., at 608-609 (compelling interest in protecting 856 child victims does not justify a mandatory trial closure rule); Coy, 487 U. S., at 1021; id., at 1025 (O'CONNOR, J., concurring); see also Hochheiser v. Superior Court, 161 Cal. App. 3d 777, 793, 208 Cal. Rptr. 273, 283 (1984). The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. See, e. g., State v. Wilhite, 160 Ariz. 228, 772 P.2d 582 (1989); State v. Bonello, 210 Conn. 51, 554 A.2d 277 (1989); State v. Davidson, 764 S.W.2d 731 (Mo. App. 1989); Commonwealth v. Ludwig, 366 Pa. Super. 361, 531 A.2d 459 (1987). Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. In other words, if the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present. Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i. e., more than "mere nervousness or excitement or some reluctance to testify," Wildermuth, supra, at 524, 530 A.2d, at 289; see also State v. Mannion, 19 Utah 505, 511-512, 57 P. 542, 543-544 (1899). We need not decide the minimum showing of emotional trauma required for use of the special procedure, however, because the Maryland statute, which requires a determination that the child witness will suffer "serious emotional distress such that the child cannot reasonably communicate," § 9-102(a)(1)(ii), clearly suffices to meet constitutional standards. To be sure, face-to-face confrontation may be said to cause trauma for the very purpose of eliciting truth, cf. Coy, supra, at 1019-1020, but we think that the use of Maryland's special procedure, where necessary to further the important state interest in preventing trauma to child witnesses in child 857 abuse cases, adequately ensures the accuracy of the testimony and preserves the adversary nature of the trial. See supra, at 851-852. Indeed, where face-to-face confrontation causes significant emotional distress in a child witness, there is evidence that such confrontation would in fact disserve the Confrontation Clause's truth-seeking goal. See, e. g., Coy, supra, at 1032 (BLACKMUN, J., dissenting) (face-to-face confrontation "may so overwhelm the child as to prevent the possibility of effective testimony, thereby undermining the truth-finding function of the trial itself"); Brief for American Psychological Association as Amicus Curiae 18-24; State v. Sheppard, 197 N. J. Super. 411, 416, 484 A.2d 1330, 1332 (1984); Goodman & Helgeson, Child Sexual Assault: Children's Memory and the Law, 40 U. Miami L. Rev. 181, 203-204 (1985); Note, Videotaping Children's Testimony: An Empirical View, 85 Mich. L. Rev. 809, 813-820 (1987). In sum, we conclude that where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child's ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation. Because there is no dispute that the child witnesses in this case testified under oath, were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified, we conclude that, to the extent that a proper finding of necessity has been made, the admission of such testimony would be consonant with the Confrontation Clause. IV The Maryland Court of Appeals held, as we do today, that although face-to-face confrontation is not an absolute constitutional requirement, it may be abridged only where there 858 is a "`case-specific finding of necessity.'" 316 Md., at 564, 560 A. 2d, at 1126 (quoting Coy, supra, at 1025 (O'CONNOR, J., concurring)). Given this latter requirement, the Court of Appeals reasoned that "[t]he question of whether a child is unavailable to testify ... should not be asked in terms of inability to testify in the ordinary courtroom setting, but in the much narrower terms of the witness's inability to testify in the presence of the accused." 316 Md., at 564, 560 A.2d, at 1126 (footnote omitted). "[T]he determinative inquiry required to preclude face-to-face confrontation is the effect of the presence of the defendant on the witness or the witness's testimony." Id., at 565, 560 A.2d, at 1127. The Court of Appeals accordingly concluded that, as a prerequisite to use of the § 9-102 procedure, the Confrontation Clause requires the trial court to make a specific finding that testimony by the child in the courtroom in the presence of the defendant would result in the child suffering serious emotional distress such that the child could not reasonably communicate. Id., at 566, 560 A.2d, at 1127. This conclusion, of course, is consistent with our holding today. In addition, however, the Court of Appeals interpreted our decision in Coy to impose two subsidiary requirements. First, the court held that "§ 9-102 ordinarily cannot be invoked unless the child witness initially is questioned (either in or outside the courtroom) in the defendant's presence." Id., at 566, 560 A.2d, at 1127; see also Wildermuth, 310 Md., at 523-524, 530 A.2d, at 289 (personal observation by the judge should be the rule rather than the exception). Second, the court asserted that, before using the one-way television procedure, a trial judge must determine whether a child would suffer "severe emotional distress" if he or she were to testify by two-way closed circuit television. 316 Md., at 567, 560 A. 2d, at 1128. Reviewing the evidence presented to the trial court in support of the finding required under § 9-102(a)(1)(ii), the Court of Appeals determined that "the finding of necessity required 859 to limit the defendant's right of confrontation through invocation of § 9-102 ... was not made here." Id., at 570-571, 560 A.2d, at 1129. The Court of Appeals noted that the trial judge "had the benefit only of expert testimony on the ability of the children to communicate; he did not question any of the children himself, nor did he observe any child's behavior on the witness stand before making his ruling. He did not explore any alternatives to the use of one-way closed-circuit television." Id., at 568, 560 A.2d, at 1128 (footnote omitted). The Court of Appeals also observed that "the testimony in this case was not sharply focused on the effect of the defendant's presence on the child witnesses." Id., at 569, 560 A.2d, at 1129. Thus, the Court of Appeals concluded: "Unable to supplement the expert testimony by responses to questions put by him, or by his own observations of the children's behavior in Craig's presence, the judge made his § 9-102 finding in terms of what the experts had said. He ruled that `the testimony of each of these children in a courtroom will [result] in each child suffering serious emotional distress ... such that each of these children cannot reasonably communicate.' He failed to find indeed, on the evidence before him, could not have found that this result would be the product of testimony in a courtroom in the defendant's presence or outside the courtroom but in the defendant's televised presence. That, however, is the finding of necessity required to limit the defendant's right of confrontation through invocation of § 9-102. Since that finding was not made here, and since the procedures we deem requisite to the valid use of § 9-102 were not followed, the judgment of the Court of Special Appeals must be reversed and the case remanded for a new trial." Id., at 570-571, 560 A.2d, at 1129 (emphasis added). The Court of Appeals appears to have rested its conclusion at least in part on the trial court's failure to observe the children's behavior in the defendant's presence and its failure to 860 explore less restrictive alternatives to the use of the one-way closed circuit television procedure. See id., at 568-571, 560 A.2d, at 1128-1129. Although we think such evidentiary requirements could strengthen the grounds for use of protective measures, we decline to establish, as a matter of federal constitutional law, any such categorical evidentiary prerequisites for the use of the one-way television procedure. The trial court in this case, for example, could well have found, on the basis of the expert testimony before it, that testimony by the child witnesses in the courtroom in the defendant's presence "will result in [each] child suffering serious emotional distress such that the child cannot reasonably communicate," § 9-102(a)(1)(ii). See id., at 568-569, 560 A.2d, at 1128-1129; see also App. 22-25, 39, 41, 43, 44-45, 54-57. So long as a trial court makes such a case-specific finding of necessity, the Confrontation Clause does not prohibit a State from using a one-way closed circuit television procedure for the receipt of testimony by a child witness in a child abuse case. Because the Court of Appeals held that the trial court had not made the requisite finding of necessity under its interpretation of "the high threshold required by [Coy] before § 9-102 may be invoked," 316 Md., at 554-555, 560 A.2d, at 1121 (footnote omitted), we cannot be certain whether the Court of Appeals would reach the same conclusion in light of the legal standard we establish today. We therefore vacate the judgment of the Court of Appeals of Maryland and remand the case for further proceedings not inconsistent with this opinion. It is so ordered.	This case requires us to decide whether the Confrontation Clause of the Sixth Amendment categorically prohibits a child witness in a child abuse case from testifying against a defendant at trial, outside the defendant's physical presence, by one-way closed circuit television. I In October 1986, a Howard County grand jury charged respondent, Sandra Ann Craig, with child abuse, first and second degree sexual offenses, perverted sexual practice, assault, and battery. The named victim in each count was a 6-year-old girl who, from August to June 1986, had attended a kindergarten and prekindergarten center owned and operated by Craig. In March before the case went to trial, the State sought to invoke a Maryland statutory procedure that permits a judge to receive, by one-way closed circuit television, the testimony of a child witness who is alleged to be a victim of child abuse.[1] To invoke the procedure, the 841 trial judge must first "determin[e] that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate." Md. Cts. & Jud. Proc. Code Ann. 9-102(a)(1)(ii) Once the procedure is invoked, the child witness, prosecutor, and defense counsel withdraw to a separate room; the judge, jury, and defendant remain in the courtroom. The child witness is then examined and cross-examined in the separate room, while a video monitor records and displays the witness' testimony to those in the courtroom. During this time the witness cannot see the defendant. 842 The defendant remains in electronic communication with defense counsel, and objections may be made and ruled on as if the witness were testifying in the courtroom. In support of its motion invoking the one-way closed circuit television procedure, the State presented expert testimony that the named victim, as well as a number of other children who were alleged to have been sexually abused by Craig, would suffer "serious emotional distress such that [they could not] reasonably communicate," 9-102(a)(1)(ii), if required to testify in the courtroom. App. 7-59. The Maryland Court of Appeals characterized the evidence as follows: "The expert testimony in each case suggested that each child would have some or considerable difficulty in testifying in Craig's presence. For example, as to one child, the expert said that what `would cause him the most anxiety would be to testify in front of Mrs. Craig.' The child `wouldn't be able to communicate effectively.' As to another, an expert said she `would probably stop talking and she would withdraw and curl up.' With respect to two others, the testimony was that one would `become highly agitated, that he may refuse to talk or if he did talk, that he would choose his subject regardless of the questions' while the other would `become extremely timid and unwilling to talk.'" Craig objected to the use of the procedure on Confrontation Clause grounds, but the trial court rejected that contention, concluding that although the statute "take[s] away the right of the defendant to be face to face with his or her accuser," the defendant retains the "essence of the right of confrontation," including the right to observe, cross-examine, and have the jury view the demeanor of the witness. App. 65-66. The trial court further found that, "based upon the evidence presented the testimony of each of these children in a courtroom will result in each child suffering serious emotional distress such that each of these children cannot reasonably 843 communicate." The trial court then found the named victim and three other children competent to testify and accordingly permitted them to testify against Craig via the one-way closed circuit television procedure. The jury convicted Craig on all counts, and the Maryland Court of Special Appeals affirmed the convictions, The Court of Appeals of Maryland reversed and remanded for a new trial. The Court of Appeals rejected Craig's argument that the Confrontation Clause requires in all cases a face-to-face courtroom encounter between the accused and his accusers, -1125, but concluded: "[U]nder 9-102(a)(1)(ii), the operative `serious emotional distress' which renders a child victim unable to `reasonably communicate' must be determined to arise, at least primarily, from face-to-face confrontation with the defendant. Thus, we construe the phrase `in the courtroom' as meaning, for sixth amendment and [state constitution] confrontation purposes, `in the courtroom in the presence of the defendant.' Unless prevention of `eyeball-to-eyeball' confrontation is necessary to obtain the trial testimony of the child, the defendant cannot be denied that right." Reviewing the trial court's finding and the evidence presented in support of the 9-102 procedure, the Court of Appeals held that, "as [it] read [v. Iowa, ], the showing made by the State was insufficient to reach the high threshold required by that case before 9-102 may be invoked." We granted certiorari to resolve the important Confrontation Clause issues raised by this case. 844 II The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him." We observed in that "the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." ); see also ; ; ; ; ; This interpretation derives not only from the literal text of the Clause, but also from our understanding of its historical roots. See ; ; ; cf. 3 J. Story, Commentaries on the Constitution 1785, p. 662 (1833). We have never held, however, that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial. Indeed, in we expressly "le[ft] for another day. the question whether any exceptions exist" to the "irreducible literal meaning of the Clause: `a right to meet face to face all those who appear and give evidence at trial.'" (quoting ). The procedure challenged in involved the placement of a screen that prevented two child witnesses in a child abuse case from seeing the defendant as they testified against him at trial. See -1015. In holding that the use of this procedure violated the defendant's right to confront witnesses against him, we suggested that 845 any exception to the right "would surely be allowed only when necessary to further an important public policy"i. e., only upon a showing of something more than the generalized, "legislatively imposed presumption of trauma" underlying the statute at issue in that case. ; see also We concluded that "[s]ince there ha[d] been no individualized findings that these particular witnesses needed special protection, the judgment [in the case before us] could not be sustained by any conceivable exception." Because the trial court in this case made individualized findings that each of the child witnesses needed special protection, this case requires us to decide the question reserved in The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. The word "confront," after all, also means a clashing of forces or ideas, thus carrying with it the notion of adversariness. As we noted in our earliest case interpreting the Clause: "The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." -243. As this description indicates, the right guaranteed by the Confrontation Clause includes not only a "personal examination," 156 U.S., but also "(1) insures that the witness will give his statements under oaththus impressing him with 846 the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the `greatest legal engine ever invented for the discovery of truth'; [and] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility." The combined effect of these elements of confrontation physical presence, oath, cross-examination, and observation of demeanor by the trier of fact serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings. See ; ("[T]he mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that `the trier of fact [has] a satisfactory basis for evaluating the truth of the [testimony]"); ; see also ; We have recognized, for example, that face-to-face confrontation enhances the accuracy of factfinding by reducing the risk that a witness will wrongfully implicate an innocent person. See ("It is always more difficult to tell a lie about a person `to his face' than `behind his back.'. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or 847 reveal the child coached by a malevolent adult"); ; see also 3 W. Blackstone, Commentaries 373-374. We have also noted the strong symbolic purpose served by requiring adverse witnesses at trial to testify in the accused's presence. See ). Although face-to-face confrontation forms "the core of the values furthered by the Confrontation Clause," 399 U. S., at we have nevertheless recognized that it is not the sine qua non of the confrontation right. See ("[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony"); (quoting ); see also 482 U. S., -744 ; ; ; ; 5 J. Wigmore, Evidence 1395, p. 150 For this reason, we have never insisted on an actual face-to-face encounter at trial in every instance in which testimony is admitted against a defendant. Instead, we have repeatedly held that the Clause permits, where necessary, the admission of certain hearsay statements against a defendant despite 848 the defendant's inability to confront the declarant at trial. See, e. g., ; In for example, we held that the testimony of a Government witness at a former trial against the defendant, where the witness was fully cross-examined but had died after the first trial, was admissible in evidence against the defendant at his second trial. See -. We explained: "There is doubtless reason for saying that if notes of [the witness'] testimony are permitted to be read, [the defendant] is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused." We have accordingly stated that a literal reading of the Confrontation Clause would "abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme." Thus, in certain narrow circumstances, "competing interests, if `closely examined,' may warrant dispensing with confrontation at trial." and citing We have recently held, 849 for example, that hearsay statements of nontestifying co-conspirators may be admitted against a defendant despite the lack of any face-to-face encounter with the accused. See ; United Given our hearsay cases, the word "confronted," as used in the Confrontation Clause, cannot simply mean face-to-face confrontation, for the Clause would then, contrary to our cases, prohibit the admission of any accusatory hearsay statement made by an absent declarant a declarant who is undoubtedly as much a "witness against" a defendant as one who actually testifies at trial. In sum, our precedents establish that "the Confrontation Clause reflects a preference for face-to-face confrontation at trial," a preference that "must occasionally give way to considerations of public policy and the necessities of the case," "[W]e have attempted to harmonize the goal of the Clauseplacing limits on the kind of evidence that may be received against a defendant with a societal interest in accurate factfinding, which may require consideration of out-of-court statements." We have accordingly interpreted the Confrontation Clause in a manner sensitive to its purposes and sensitive to the necessities of trial and the adversary process. See, e. g., ; at Thus, though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendment's guarantee 850 of the right to confront one's accusers. Indeed, one commentator has noted that "[i]t is all but universally assumed that there are circumstances that excuse compliance with the right of confrontation." Graham, The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, This interpretation of the Confrontation Clause is consistent with our cases holding that other Sixth Amendment rights must also be interpreted in the context of the necessities of trial and the adversary process. See, e. g., ; 480 U. S., at -54 (right to cross-examination not violated where State denied defendant access to investigative files); ; We see no reason to treat the face-to-face component of the confrontation right any differently, and indeed we think it would be anomalous to do so. That the face-to-face confrontation requirement is not absolute does not, of course, mean that it may easily be dispensed with. As we suggested in our precedents confirm that a defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured. See (citing ; at ); 8 III Maryland's statutory procedure, when invoked, prevents a child witness from seeing the defendant as he or she testifies against the defendant at trial. We find it significant, however, that Maryland's procedure preserves all of the other elements of the confrontation right: The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies. Although we are mindful of the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontationoath, cross-examination, and observation of the witness' demeanoradequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony. These safeguards of reliability and adversariness render the use of such a procedure a far cry from the undisputed prohibition of the Confrontation Clause: trial by ex parte affidavit or inquisition, see 156 U. S., ; see also ("[T]he Confrontation Clause was meant to constitutionalize a barrier against flagrant abuses, trials by anonymous accusers, and absentee witnesses"). Rather, we think these elements of effective confrontation not only permit a defendant to "confound and undo the false accuser, or reveal the child coached by a malevolent adult," but may well aid a defendant in eliciting favorable testimony from the child witness. Indeed, to the extent the child witness' testimony may be said to be technically given out of court (though we do not so hold), these assurances of reliability and adversariness are far greater than those required for admission of hearsay testimony under the Confrontation Clause. See 448 852 U. S., We are therefore confident that use of the one-way closed circuit television procedure, where necessary to further an important state interest, does not impinge upon the truth-seeking or symbolic purposes of the Confrontation Clause. The critical inquiry in this case, therefore, is whether use of the procedure is necessary to further an important state interest. The State contends that it has a substantial interest in protecting children who are allegedly victims of child abuse from the trauma of testifying against the alleged perpetrator and that its statutory procedure for receiving testimony from such witnesses is necessary to further that interest. We have of course recognized that a State's interest in "the protection of minor victims of sex crimes from further trauma and embarrassment" is a "compelling" one. Globe Newspaper ; see also New ; ; ; "[W]e have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights." In Globe Newspaper, for example, we held that a State's interest in the physical and psychological well-being of a minor victim was sufficiently weighty to justify depriving the press and public of their constitutional right to attend criminal trials, where the trial court makes a case-specific finding that closure of the trial is necessary to protect the welfare of the minor. See -609. This Term, in we upheld a state statute that proscribed the possession and viewing of child pornography, reaffirming that "`[i]t is evident beyond the need for elaboration that a State's interest in "safeguarding the physical and 853 psychological well-being of a minor" is "compelling.""' (quoting at ). We likewise conclude today that a State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court. That a significant majority of States have enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy. See 487 U. S., at 10-1023 ("Many States have determined that a child victim may suffer trauma from exposure to the harsh atmosphere of the typical courtroom and have undertaken to shield the child through a variety of ameliorative measures"). Thirty-seven States, for example, permit the use of videotaped testimony of sexually abused children;[2] 24 States have authorized the use of one-way 854 closed circuit television testimony in child abuse cases;[3] and 8 States authorize the use of a two-way system in which the child witness is permitted to see the courtroom and the defendant on a video monitor and in which the jury and judge are permitted to view the child during the testimony.[4] The statute at issue in this case, for example, was specifically intended "to safeguard the physical and psychological well-being of child victims by avoiding, or at least minimizing, the emotional trauma produced by testifying." 8, The court noted: "In Maryland, the Governor's Task Force on Child Abuse in its Interim Report documented the existence of the [child abuse] problem in our State. Interim Report at 1. It brought the picture up to date in its Final Report In the first six months of 1985, investigations of child abuse were 12 percent more numerous than during the same period of In 1979 4,615 cases of child abuse were investigated; in 8 8,321. Final Report at iii. In its Interim Report the Commission proposed legislation that, with some changes, became 9-102. The proposal was `aimed at alleviating the trauma to a child victim in the courtroom atmosphere by allowing the child's testimony to be obtained outside of the courtroom.' This would both protect the child and enhance the public interest by encouraging effective prosecution of the alleged abuser." at 7, 530 A.2d, 85. Given the State's traditional and "`transcendent interest in protecting the welfare of children,'" 390 U. S., 0 and buttressed by the growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court, see Brief for American Psychological Association as Amicus Curiae 7-13; G. Goodman et al., Emotional Effects of Criminal Court Testimony on Child Sexual Assault Victims, Final Report to the National Institute of Justice we will not second-guess the considered judgment of the Maryland Legislature regarding the importance of its interest in protecting child abuse victims from the emotional trauma of testifying. Accordingly, we hold that, if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant. The requisite finding of necessity must of course be a case-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. See Globe Newspaper -609 ; 487 U. S., ; ; see also The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. See, e. g., 160 Ariz. 8, ; 210 Conn. 4 A.2d 277 ; ; Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. In other words, if the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present. Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i. e., more than "mere nervousness or excitement or some reluctance to testify," 530 A.2d, ; see also 1-2, We need not decide the minimum showing of emotional trauma required for use of the special procedure, however, because the Maryland statute, which requires a determination that the child witness will suffer "serious emotional distress such that the child cannot reasonably communicate," 9-102(a)(1)(ii), clearly suffices to meet constitutional standards. To be sure, face-to-face confrontation may be said to cause trauma for the very purpose of eliciting truth, cf. but we think that the use of Maryland's special procedure, where necessary to further the important state interest in preventing trauma to child witnesses in child 857 abuse cases, adequately ensures the accuracy of the testimony and preserves the adversary nature of the trial. See at 8-852. Indeed, where face-to-face confrontation causes significant emotional distress in a child witness, there is evidence that such confrontation would in fact disserve the Confrontation Clause's truth-seeking goal. See, e. g., (face-to-face confrontation "may so overwhelm the child as to prevent the possibility of effective testimony, thereby undermining the truth-finding function of the trial itself"); Brief for American Psychological Association as Amicus Curiae 18-24; 484 A.2d 1, ; Goodman & Helgeson, Child Sexual Assault: Children's Memory and the Law, ; Note, Videotaping Children's Testimony: An Empirical View, In sum, we conclude that where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child's ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation. Because there is no dispute that the child witnesses in this case testified under oath, were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified, we conclude that, to the extent that a proper finding of necessity has been made, the admission of such testimony would be consonant with the Confrontation Clause. IV The Maryland Court of Appeals held, as we do today, that although face-to-face confrontation is not an absolute constitutional requirement, it may be abridged only where there 858 is a "`case-specific finding of necessity.'" (quoting ). Given this latter requirement, the Court of Appeals reasoned that "[t]he question of whether a child is unavailable to testify should not be asked in terms of inability to testify in the ordinary courtroom setting, but in the much narrower terms of the witness's inability to testify in the presence of the accused." "[T]he determinative inquiry required to preclude face-to-face confrontation is the effect of the presence of the defendant on the witness or the witness's testimony." The Court of Appeals accordingly concluded that, as a prerequisite to use of the 9-102 procedure, the Confrontation Clause requires the trial court to make a specific finding that testimony by the child in the courtroom in the presence of the defendant would result in the child suffering serious emotional distress such that the child could not reasonably communicate. This conclusion, of course, is consistent with our holding today. In addition, however, the Court of Appeals interpreted our decision in to impose two subsidiary requirements. First, the court held that " 9-102 ordinarily cannot be invoked unless the child witness initially is questioned (either in or outside the courtroom) in the defendant's presence." ; see also -, 530 A.2d, Second, the court asserted that, before using the one-way television procedure, a trial judge must determine whether a child would suffer "severe emotional distress" if he or she were to testify by two-way closed circuit television. Reviewing the evidence presented to the trial court in support of the finding required under 9-102(a)(1)(ii), the Court of Appeals determined that "the finding of necessity required 859 to limit the defendant's right of confrontation through invocation of 9-102 was not made here." The Court of Appeals noted that the trial judge "had the benefit only of expert testimony on the ability of the children to communicate; he did not question any of the children himself, nor did he observe any child's behavior on the witness stand before making his ruling. He did not explore any alternatives to the use of one-way closed-circuit television." The Court of Appeals also observed that "the testimony in this case was not sharply focused on the effect of the defendant's presence on the child witnesses." Thus, the Court of Appeals concluded: "Unable to supplement the expert testimony by responses to questions put by him, or by his own observations of the children's behavior in Craig's presence, the judge made his 9-102 finding in terms of what the experts had said. He ruled that `the testimony of each of these children in a courtroom will [result] in each child suffering serious emotional distress such that each of these children cannot reasonably communicate.' He failed to find indeed, on the evidence before him, could not have found that this result would be the product of testimony in a courtroom in the defendant's presence or outside the courtroom but in the defendant's televised presence. That, however, is the finding of necessity required to limit the defendant's right of confrontation through invocation of 9-102. Since that finding was not made here, and since the procedures we deem requisite to the valid use of 9-102 were not followed, the judgment of the Court of Special Appeals must be reversed and the case remanded for a new trial." The Court of Appeals appears to have rested its conclusion at least in part on the trial court's failure to observe the children's behavior in the defendant's presence and its failure to *860 explore less restrictive alternatives to the use of the one-way closed circuit television procedure. See -571, 560 A.2d, at Although we think such evidentiary requirements could strengthen the grounds for use of protective measures, we decline to establish, as a matter of federal constitutional law, any such categorical evidentiary prerequisites for the use of the one-way television procedure. The trial court in this case, for example, could well have found, on the basis of the expert testimony before it, that testimony by the child witnesses in the courtroom in the defendant's presence "will result in [each] child suffering serious emotional distress such that the child cannot reasonably communicate," 9-102(a)(1)(ii). See at 560 A.2d, at ; see also App. -25, 39, 41, 43, 44-45, 54-57. So long as a trial court makes such a case-specific finding of necessity, the Confrontation Clause does not prohibit a State from using a one-way closed circuit television procedure for the receipt of testimony by a child witness in a child abuse case. Because the Court of Appeals held that the trial court had not made the requisite finding of necessity under its interpretation of "the high threshold required by [] before 9-102 may be invoked," 316 Md., we cannot be certain whether the Court of Appeals would reach the same conclusion in light of the legal standard we establish today. We therefore vacate the judgment of the Court of Appeals of Maryland and remand the case for further proceedings not inconsistent with this opinion. It is so ordered.
Justice Kennedy	majority	false	McCleskey v. Zant	1991-04-16T00:00:00	null	https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/	https://www.courtlistener.com/api/rest/v3/clusters/112573/	1,991	1990-059	1	6	3	The doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus. Petitioner Warren McCleskey in a second federal habeas petition presented a claim under Massiah v. United States, 377 U.S. 201 (1964), that he failed to include in his first federal petition. The Court of Appeals for the Eleventh Circuit held that assertion of the Massiah claim in this manner abused the writ. Though our analysis differs from that of the Court of Appeals, we agree that the petitioner here abused the writ, and we affirm the judgment. I McCleskey and three other men, all armed, robbed a Georgia furniture store in 1978. One of the robbers shot and killed an off duty policeman who entered the store in the midst of the crime. McCleskey confessed to the police that he participated in the robbery. When on trial for both the robbery and the murder, however, McCleskey renounced his confession after taking the stand with an alibi denying all involvement. To rebut McCleskey's testimony, the prosecution called Offie Evans, who had occupied a jail cell next to McCleskey's. Evans testified that McCleskey admitted shooting the officer during the robbery and boasted that he would have shot his way out of the store even in the face of a dozen policemen. Although no one witnessed the shooting, further direct and circumstantial evidence supported McCleskey's guilt of the murder. An eyewitness testified that someone ran from the store carrying a pearl-handled pistol soon after the robbery. Other witnesses testified that McCleskey earlier had stolen a pearl-handled pistol of the same caliber as the bullet that killed the officer. Ben Wright, one of McCleskey's accomplices, confirmed that during the crime McCleskey carried a white-handled handgun matching the caliber of the fatal bullet. 471 Wright also testified that McCleskey admitted shooting the officer. Finally, the prosecutor introduced McCleskey's confession of participation in the robbery. In December 1978, the jury convicted McCleskey of murder and sentenced him to death. Since his conviction, McCleskey has pursued direct and collateral remedies for more than a decade. We describe this procedural history in detail, both for a proper understanding of the case and as an illustration of the context in which allegations of abuse of the writ arise. On direct appeal to the Supreme Court of Georgia, McCleskey raised six grounds of error. A summary of McCleskey's claims on direct appeal, as well as those he asserted in each of his four collateral proceedings, is set forth in the Appendix to this opinion, infra, at 503. The portion of the appeal relevant for our purposes involves McCleskey's attack on Evans' rebuttal testimony. McCleskey contended that the trial court "erred in allowing evidence of [McCleskey's] oral statement admitting the murder made to [Evans] in the next cell, because the prosecutor had deliberately withheld such statement" in violation of Brady v. Maryland, 373 U.S. 83 (1963). McClesky v. State, 245 Ga. 108, 112, 263 S.E.2d 146, 149 (1980). A unanimous Georgia Supreme Court acknowledged that the prosecutor did not furnish Evans' statement to the defense, but ruled that because the undisclosed evidence was not exculpatory, McCleskey suffered no material prejudice and was not denied a fair trial under Brady. 245 Ga., at 112-113, 263 S.E.2d, at 149. The court noted, moreover, that the evidence McCleskey wanted to inspect was "introduced to the jury in its entirety" through Evans' testimony, and that McCleskey's argument that "the evidence was needed in order to prepare a proper defense or impeach other witnesses ha[d] no merit because the evidence requested was statements made by [McCleskey] himself." Ibid. The court rejected McCleskey's other contentions and 472 affirmed his conviction and sentence. Ibid. We denied certiorari. McClesky v. Georgia, 449 U.S. 891 (1980). McCleskey then initiated postconviction proceedings. In January 1981, he filed a petition for state habeas corpus relief. The amended petition raised 23 challenges to his murder conviction and death sentence. See Appendix, infra, at 503. Three of the claims concerned Evans' testimony. First, McCleskey contended that the State violated his due process rights under Giglio v. United States, 405 U.S. 150 (1972), by its failure to disclose an agreement to drop pending escape charges against Evans in return for his cooperation and testimony. App. 20. Second, McCleskey reasserted his Brady claim that the State violated his due process rights by the deliberate withholding of the statement he made to Evans while in jail. App. 21. Third, McCleskey alleged that admission of Evans' testimony violated the Sixth Amendment right to counsel as construed in Massiah v. United States, supra. On this theory, "[t]he introduction into evidence of [his] statements to [Evans], elicited in a situation created to induce [McCleskey] to make incriminating statements without the assistance of counsel, violated [McCleskey's] right to counsel under the Sixth Amendment to the Constitution of the United States." App. 22. At the state habeas corpus hearing, Evans testified that one of the detectives investigating the murder agreed to speak a word on his behalf to the federal authorities about certain federal charges pending against him. The state habeas court ruled that the ex parte recommendation did not implicate Giglio, and it denied relief on all other claims. The Supreme Court of Georgia denied McCleskey's application for a certificate of probable cause, and we denied his second petition for a writ of certiorari. McCleskey v. Zant, 454 U.S. 1093 (1981). In December 1981, McCleskey filed his first federal habeas corpus petition in the United States District Court for the Northern District of Georgia, asserting 18 grounds for relief. 473 See Appendix, infra, at 504-505. The petition failed to allege the Massiah claim, but it did reassert the Giglio and Brady claims. Following extensive hearings in August and October 1983, the District Court held that the detective's statement to Evans was a promise of favorable treatment, and that failure to disclose the promise violated Giglio. McCleskey v. Zant, 580 F. Supp. 338, 380-384 (ND Ga. 1984). The District Court further held that Evans' trial testimony may have affected the jury's verdict on the charge of malice murder. On these premises it granted relief. Id., at 384. The Court of Appeals reversed the District Court's grant of the writ. McCleskey v. Kemp, 753 F.2d 877 (CAll 1985). The court held that the State had not made a promise to Evans of the kind contemplated by Giglio, and that in any event the Giglio error would be harmless. 753 F.2d, at 884-885. The court affirmed the District Court on all other grounds. We granted certiorari limited to the question whether Georgia's capital sentencing procedures were constitutional, and denied relief. McCleskey v. Kemp, 481 U.S. 279 (1987). McCleskey continued his postconviction attacks by filing a second state habeas corpus action in 1987 which, as amended, contained five claims for relief. See Appendix, infra, at 505. One of the claims again centered on Evans' testimony, alleging that the State had an agreement with Evans that it had failed to disclose. The state trial court held a hearing and dismissed the petition. The Supreme Court of Georgia denied McCleskey's application for a certificate of probable cause. In July 1987, McCleskey filed a second federal habeas action, the one we now review. In the District Court, McCleskey asserted seven claims, including a Massiah challenge to the introduction of Evans' testimony. See Appendix, infra, at 506. McCleskey had presented a Massiah claim, it will be recalled, in his first state habeas action when he alleged that the conversation recounted by Evans at trial had been "elicited 474 in a situation created to induce" him to make an incriminating statement without the assistance of counsel. The first federal petition did not present a Massiah claim. The proffered basis for the Massiah claim in the second federal petition was a 21-page signed statement that Evans made to the Atlanta Police Department on August 1, 1978, two weeks before the trial began. The department furnished the document to McCleskey one month before he filed his second federal petition. The statement related pretrial jailhouse conversations that Evans had with McCleskey and that Evans overheard between McCleskey and Bernard Dupree. By the statement's own terms, McCleskey participated in all the reported jail-cell conversations. Consistent with Evans' testimony at trial, the statement reports McCleskey admitting and boasting about the murder. It also recounts that Evans posed as Ben Wright's uncle and told McCleskey he had talked with Wright about the robbery and the murder. In his second federal habeas petition, McCleskey asserted that the statement proved Evans "was acting in direct concert with State officials" during the incriminating conversations with McCleskey, and that the authorities "deliberately elicited" inculpatory admissions in violation of McCleskey's Sixth Amendment right to counsel. Massiah v. United States, 377 U. S., at 206. 1 Tr. Exh. 1, pp. 11-12. Among other responses, the State of Georgia contended that McCleskey's presentation of a Massiah claim for the first time in the second federal petition was an abuse of the writ. 28 U.S. C. § 2244(b); Rule 9(b) of the Rules Governing § 2254 Cases. The District Court held extensive hearings in July and August 1987 focusing on the arrangement the jailers had made for Evans' cell assignment in 1978. Several witnesses denied that Evans had been placed next to McCleskey by desigu or instructed to overhear conversations or obtain statements from McCleskey. McCleskey's key witness was Ulysses 475 Worthy, a jailer at the Fulton County Jail during the summer of 1978. McCleskey's lawyers contacted Worthy after a detective testified that the 1978 Evans statement was taken in Worthy's office. The District Court characterized Worthy's testimony as "often confused and self-contradictory." McCleskey v. Kemp, No. C87-1517A (ND Ga., Dec. 23, 1987), App. 81. Worthy testified that someone at some time requested permission to move Evans near McCleskey's cell. He contradicted himself, however, concerning when, why, and by whom Evans was moved, and about whether he overheard investigators urging Evans to engage McCleskey in conversation. Id., at 76-81. On December 23, 1987, the District Court granted McCleskey relief based upon a violation of Massiah. Id., at 63-97. The court stated that the Evans statement "contains strong indication of an ab initio relationship between Evans and the authorities." Id., at 84. In addition, the court credited Worthy's testimony suggesting that the police had used Evans to obtain incriminating information from McCleskey. Based on the Evans statement and portions of Worthy's testimony, the District Court found that the jail authorities had placed Evans in the cell adjoining McCleskey's "for the purpose of gathering incriminating information"; that "Evans was probably coached in how to approach McCleskey and given critical facts unknown to the general public"; that Evans talked with McCleskey and eavesdropped on McCleskey's conversations with others; and that Evans reported what he had heard to the authorities. Id., at 83. These findings, in the District Court's view, established a Massiah violation. In granting habeas relief, the District Court rejected the State's argument that McCleskey's assertion of the Massiah claim for the first time in the second federal petition constituted an abuse of the writ. The court ruled that McCleskey did not deliberately abandon the claim after raising it in his first state habeas petition. "This is not a case," the District 476 Court reasoned, "where petitioner has reserved his proof or deliberately withheld his claim for a second petition." Id., at 84. The District Court also determined that when McCleskey filed his first federal petition, he did not know about either the 21-page Evans document or the identity of Worthy, and that the failure to discover the evidence for the first federal petition "was not due to [McCleskey's] inexcusable neglect." Id., at 85. The Eleventh Circuit reversed, holding that the District Court abused its discretion by failing to dismiss McCleskey's Massiah claim as an abuse of the writ. 890 F.2d 342 (1989). The Court of Appeals agreed with the District Court that the petitioner must "show that he did not deliberately abandon the claim and that his failure to raise it [in the first federal habeas proceeding] was not due to inexcusable neglect." Id., at 346-347. Accepting the District Court's findings that at the first petition stage McCleskey knew neither the existence of the Evans statement nor the identity of Worthy, the court held that the District Court "misconstru[ed] the meaning of deliberate abandonment." Id., at 348-349. Because McCleskey included a Massiah claim in his first state petition, dropped it in his first federal petition, and then reasserted it in his second federal petition, he "made a knowing choice not to pursue the claim after having raised it previously" that constituted a prima facie showing of "deliberate abandonment." 890 F.2d, at 349. The court further found the State's alleged concealment of the Evans statement irrelevant because it "was simply the catalyst that caused counsel to pursue the Massiah claim more vigorously" and did not itself "demonstrate the existence of a Massiah violation." Id., at 350. The court concluded that McCleskey had presented no reason why counsel could not have discovered Worthy earlier. Ibid. Finally, the court ruled that McCleskey's claim did not fall within the ends of justice exception to the abuse-of-the-writ doctrine because any 477 Massiah violation that may have been committed would have been harmless error. 890 F.2d, at 350-351. McCleskey petitioned this Court for a writ of certiorari, alleging numerous errors in the Eleventh Circuit's abuse-of-the-writ analysis. In our order granting the petition, we requested the parties to address the following additional question: "Must the State demonstrate that a claim was deliberately abandoned in an earlier petition for a writ of habeas corpus in order to establish that inclusion of that claim in a subsequent habeas petition constitutes abuse of the writ?" 496 U.S. 904 (1990). II The parties agree that the government has the burden of pleading abuse of the writ, and that once the government makes a proper submission, the petitioner must show that he has not abused the writ in seeking habeas relief. See Sanders v. United States, 373 U.S. 1, 10-11 (1963); Price v. Johnston, 334 U.S. 266, 292 (1948). Much confusion exists though, on the standard for determining when a petitioner abuses the writ. Although the standard is central to the proper determination of many federal habeas corpus actions, we have had little occasion to define it. Indeed, there is truth to the observation that we have defined abuse of the writ in an oblique way, through dicta and denials of certiorari petitions or stay applications. See Witt v. Wainwright, 470 U.S. 1039, 1043 (1985) (MARSHALL, J., dissenting). Today we give the subject our careful consideration. We begin by tracing the historical development of some of the substantive and procedural aspects of the writ, and then consider the standard for abuse that district courts should apply in actions seeking federal habeas corpus relief. A The Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 81-82, empowered federal courts to issue writs of habeas corpus to prisoners "in custody, under or by colour of the authority of 478 the United States." In the early decades of our new federal system, English common law defined the substantive scope of the writ. Ex parte Watkins, 3 Pet. 193, 201-203 (1830). Federal prisoners could use the writ to challenge confinement imposed by a court that lacked jurisdiction, ibid., or detention by the Executive without proper legal process, see Ex parte Wells, 18 How. 307 (1856). The common-law limitations on the scope of the writ were subject to various expansive forces, both statutory and judicial. See generally Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 463-499 (1963). The major statutory expansion of the writ occurred in 1867, when Congress extended federal habeas corpus to prisoners held in state custody. Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385. For the most part, however, expansion of the writ has come through judicial decisionmaking. As then-JUSTICE REHNQUIST explained in Wainwright v. Sykes, 433 U.S. 72, 79 (1977), the Court began by interpreting the concept of jurisdictional defect with generosity to include sentences imposed without statutory authorization, Ex parte Lange, 18 Wall. 163, 176 (1874), and convictions obtained under an unconstitutional statute, Ex parte Siebold, 100 U.S. 371, 376-377 (1880). Later, we allowed habeas relief for confinement under a state conviction obtained without adequate procedural protections for the defendant. Frank v. Mangum, 237 U.S. 309 (1915); Moore v. Dempsey, 261 U.S. 86 (1923). Confronting this line of precedents extending the reach of the writ, in Waley v. Johnston, 316 U.S. 101 (1942), "the Court openly discarded the concept of jurisdiction by then more a fiction than anything else as a touchstone of the availability of federal habeas review, and acknowledged that such review is available for claims of `disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights.'" Wainwright v. Sykes, supra, at 79 (quoting Waley v. Johnston, supra, at 479 104-105). With the exception of Fourth Amendment violations that a petitioner has been given a full and fair opportunity to litigate in state court, Stone v. Powell, 428 U.S. 465, 495 (1976), the writ today appears to extend to all dispositive constitutional claims presented in a proper procedural manner. See Brown v. Allen, 344 U.S. 443 (1953); Wainwright v. Sykes, supra, at 79. One procedural requisite is that a petition not lead to an abuse of the writ. We must next consider the origins and meaning of that rule. B At common law, res judicata did not attach to a court's denial of habeas relief. "[A] refusal to discharge on one writ [was] not a bar to the issuance of a new writ." 1 W. Bailey, Habeas Corpus and Special Remedies 206 (1913) (citing cases). "[A] renewed application could be made to every other judge or court in the realm, and each court or judge was bound to consider the question of the prisoner's right to a discharge independently, and not to be influenced by the previous decisions refusing discharge." W. Church, Writ of Habeas Corpus § 386, p. 570 (2d ed. 1893) (hereinafter Church). See, e. g., Ex parte Kaine, 14 F. Cas. 78, 80 (No. 7,597) (CC SDNY 1853); In re Kopel, 148 F. 505, 506 (SDNY 1906). The rule made sense because at common law an order denying habeas relief could not be reviewed. Church 570; L. Yackle, Postconviction Remedies § 151, p. 551 (1981); Goddard, A Note on Habeas Corpus, 65 L. Q. Rev. 30, 32 (1949). Successive petitions served as a substitute for appeal. See W. Duker, A Constitutional History of Habeas Corpus 5-6 (1980); Church 570; Goddard, supra, at 35. As appellate review became available from a decision in habeas refusing to discharge the prisoner, courts began to question the continuing validity of the common-law rule allowing endless successive petitions. Church 602. Some courts rejected the common-law rule, holding a denial of habeas relief 480 res judicata. See, e. g., Perry v. McLendon, 62 Ga. 598, 603-605 (1879); McMahon v. Mead, 30 S. D. 515, 518, 139 N.W. 122, 123 (1912); Ex parte Heller, 146 Wis. 517, 524, 131 N.W. 991, 994 (1911). Others adopted a middle position between the extremes of res judicata and endless successive petitions. Justice Field's opinion on circuit in Ex parte Cuddy, 40 F. 62 (CC SD Cal. 1889), exemplifies this balance. "[W]hile the doctrine of res judicata does not apply, . . . the officers before whom the second application is made may take into consideration the fact that a previous application had been made to another officer and refused; and in some instances that fact may justify a refusal of the second. The action of the court or justice on the second application will naturally be affected to some degree by the character of the court or officer to whom the first application was made, and the fullness of the consideration given to it. . . . In what I have said I refer, of course, to cases where a second application is made upon the same facts presented, or which might have been presented, on the first. The question is entirely different when subsequent occurring events have changed the situation of the petitioner so as in fact to present a new case for consideration. In the present application there are no new facts which did not exist when the first was presented. . . . I am of the opinion that in such a case a second application should not be heard. . . ." Id., at 65-66. Cf. Ex parte Moebus, 148 F. 39, 40-41 (NH 1906) (second petition disallowed "unless some substantial change in the circumstances had intervened"). We resolved the confusion over the continuing validity of the common-law rule, at least for federal courts, in Salinger v. Loisel, 265 U.S. 224 (1924), and Wong Doo v. United States, 265 U.S. 239 (1924). These decisions reaffirmed that res judicata does not apply "to a decision on habeas corpus refusing to discharge the prisoner." Salinger v. Loisel, 481 supra, at 230; see Wong Doo v. United States, supra, at 240. They recognized, however, that the availability of appellate review required a modification of the common-law rule allowing endless applications. As we explained in Salinger: "In early times when a refusal to discharge was not open to appellate review, courts and judges were accustomed to exercise an independent judgment on each successive application, regardless of the number. But when a right to an appellate review was given the reason for that practice ceased and the practice came to be materially changed . . . ." 265 U.S., at 230-231. Relying on Justice Field's opinion in Ex parte Cuddy, we announced that second and subsequent petitions should be "disposed of in the exercise of a sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the propriety of the discharge sought. Among the matters which may be considered, and even given controlling weight, are (a) the existence of another remedy, such as a right in ordinary course to an appellate review in the criminal case, and (b) a prior refusal to discharge on a like application." 265 U.S., at 231. Because the lower court in Salinger had not disposed of the subsequent application for habeas corpus by reliance on dismissal of the prior application, the decision did not present an opportunity to apply the doctrine of abuse of the writ. 265 U.S., at 232. Wong Doo did present the question. There, the District Court had dismissed on res judicata grounds a second petition containing a due process claim that was raised, but not argued, in the first federal habeas petition. The petitioner "had full opportunity to offer proof of [his due process claim] at the hearing on the first petition," and he offered "[n]o reason for not presenting the proof at the outset. . . ." Wong Doo, 265 U.S., at 241. The record of the first petition did not contain proof of the due process claim, 482 but "what [was] said of it there and in the briefs show[ed] that it was accessible all the time." Ibid. In these circumstances, we upheld the dismissal of the second petition. We held that "according to a sound judicial discretion, controlling weight must have been given to the prior refusal." Ibid. So while we rejected res judicata in a strict sense as a basis for dismissing a later habeas action, we made clear that the prior adjudication bore vital relevance to the exercise of the court's discretion in determining whether to consider the petition. Price v. Johnston, 334 U.S. 266 (1948), the next decision in this line, arose in a somewhat different context from Salinger or Wong Doo. In Price, the petitioner's fourth habeas petition alleged a claim that, arguably at least, was neither the explicit basis of a former petition nor inferable from the facts earlier alleged. The District Court and Court of Appeals dismissed the petition without hearing on the sole ground that the claim was not raised in one of the earlier habeas actions. We reversed and remanded, reasoning that the dismissal "precluded a proper development of the issue of the allegedly abusive use of the habeas corpus writ." 334 U.S., at 293. We explained that the State must plead an abuse of the writ with particularity, and that the burden then shifts to petitioner to show that presentation of the new claim does not constitute abuse. Id., at 292. The District Court erred because it dismissed the petition without affording the petitioner an opportunity to explain the basis for raising his claim late. We gave directions for the proper inquiry in the trial court. If the explanation "is inadequate, the court may dismiss the petition without further proceedings." Ibid. But if a petitioner "present[s] adequate reasons for not making the allegation earlier, reasons which make it fair and just for the trial court to overlook the delay," he must be given the opportunity to develop these matters in a hearing. Id., at 291-292. Without considering whether the petitioner had abused the writ, we remanded the case. 483 Although Price recognized that abuse-of-the-writ principles limit a petitioner's ability to file repetitive petitions, it also contained dicta touching on the standard for abuse that appeared to contradict this point. Price stated that "the three prior refusals to discharge petitioner can have no bearing or weight on the disposition to be made of the new matter raised in the fourth petition." Id., at 289. This proposition ignored the significance of appellate jurisdictional changes, see supra, at 479-480, as well as the general disfavor we had expressed in Salinger and Wong Doo toward endless repetitive petitions. It did not even comport with language in Price itself which recognized that in certain circumstances new claims raised for the first time in a second or subsequent petition should not be entertained. As will become clear, the quoted portion of Price has been ignored in our later decisions. One month after the Price decision, Congress enacted legislation, which for the first time addressed the issue of repetitive federal habeas corpus petitions: "No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States, or of any State, if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry." 28 U.S. C. § 2244 (1964 ed.). Because § 2244 allowed a district court to dismiss a successive petition that "present[ed] no new ground not theretofore presented and determined," one might have concluded, by negative implication, that Congress denied permission to dismiss any petition that alleged new grounds for relief. Such an interpretation would have superseded the judicial principles 484 recognizing that claims not raised or litigated in a prior petition could, when raised in a later petition, constitute abuse. But the Reviser's Note to the 1948 statute made clear that as a general matter Congress did not intend the new section to disrupt the judicial evolution of habeas principles, 28 U.S. C. § 2244 (1964 ed.) (Reviser's Note), and we confirmed in Sanders v. United States, 373 U. S., at 11-12, that Congress' silence on the standard for abuse of the writ involving a new claim was "not intended to foreclose judicial application of the abuse-of-writ principle as developed in Wong Doo and Price." Sanders also recognized our special responsibility in the development of habeas corpus with respect to another provision of the 1948 revision of the judicial code, 28 U.S. C. § 2255 (1964 ed.). The statute created a new postconviction remedy for federal prisoners with a provision for repetitive petitions different from the one found in § 2244. While § 2244 permitted dismissal of subsequent habeas petitions that "present[ed] no new ground not theretofore presented and determined," § 2255 allowed a federal district court to refuse to entertain a subsequent petition seeking "similar relief." On its face, § 2255 appeared to announce a much stricter abuse-of-the-writ standard than its counterpart in § 2244. We concluded in Sanders, however, that the language in § 2255 "cannot be taken literally," and construed it to be the "material equivalent" of the abuse standard in § 2244. Sanders v. United States, 373 U. S., at 13-14. In addition to answering these questions, Sanders undertook a more general "formulation of basic rules to guide the lower federal courts" concerning the doctrine of abuse of the writ. Id., at 15. After reiterating that the government must plead abuse of the writ and the petitioner must refute a well-pleaded allegation, Sanders addressed the definition of and rationale for the doctrine. It noted that equitable principles governed abuse of the writ, including "the principle that a suitor's conduct in relation to the matter at hand may 485 disentitle him to the relief he seeks," and that these principles must be applied within the sound discretion of district courts. Id., at 17-18. The Court furnished illustrations of writ abuse: "Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong Doo, the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless, piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." Id., at 18. The Court also cited Fay v. Noia, 372 U.S. 391, 438-440 (1963), and Townsend v. Sain, 372 U.S. 293, 317 (1963), for further guidance on the doctrine of abuse of the writ, stating that the principles of those cases "govern equally here." 373 U.S., at 18. Finally, Sanders established that federal courts must reach the merits of an abusive petition if "the ends of justice demand." Ibid. Three years after Sanders, Congress once more amended the habeas corpus statute. The amendment was an attempt to alleviate the increasing burden on federal courts caused by successive and abusive petitions by "introducing a greater degree of finality of judgments in habeas corpus proceedings." S. Rep. No. 1797, 89th Cong., 2d Sess., 2 (1966); see also H. R. Rep. No. 1892, 89th Cong., 2d Sess., 5-6 (1966). The amendment recast § 2244 into three subparagraphs. Subparagraph (a) deletes the reference to state prisoners in the old § 2244 but left the provision otherwise intact. 28 U.S. C. § 2244(a). Subparagraph (c) states that where a state prisoner seeks relief for an alleged denial of a federal 486 constitutional right before this Court, any decision rendered by the Court shall be "conclusive as to all issues of fact or law with respect to an asserted denial of a Federal right . . . ." 28 U.S. C. § 2244(c). Congress added subparagraph (b) to address repetitive applications by state prisoners: "(b) When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States or a justice or judge of the United States release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus on behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ." 28 U.S. C. § 2244(b). Subparagraph (b) establishes a "qualified application of the doctrine of res judicata." S. Rep. No. 1797, supra, at 2. It states that a federal court "need not entertain" a second or subsequent habeas petition "unless" the petitioner satisfies two conditions. First, the subsequent petition must allege a new ground, factual or otherwise. Second, the applicant must satisfy the judge that he did not deliberately withhold the ground earlier or "otherwise abus[e] the writ." See Smith v. Yeager, 393 U.S. 122, 125 (1968) ("essential question [under § 2244(b)] is whether the petitioner `deliberately withheld the newly asserted ground' in the prior proceeding, or `otherwise abused the writ'"). If the petitioner meets these conditions, the court must consider the subsequent petition 487 as long as other habeas errors, such as nonexhaustion, 28 U.S. C. § 2254(b), or procedural default, Wainwright v. Sykes, 433 U.S. 72 (1977), are not present. Section 2244(b) raises, but does not answer, other questions. It does not state whether a district court may overlook a deliberately withheld or otherwise abusive claim to entertain the petition in any event. That is, it does not state the limits on the district court's discretion to entertain abusive petitions. Nor does the statute define the term "abuse of the writ." As was true of similar silences in the original 1948 version of § 2244, however, see supra, at 484, Congress did not intend § 2244(b) to foreclose application of the court-announced principles defining and limiting a district court's discretion to entertain abusive petitions. See Delo v. Stokes, 495 U.S. 320, 321-322 (1990) (District Court abused discretion in entertaining a new claim in a fourth federal petition that was an abuse of the writ). Rule 9(b) of the Rules Governing Habeas Corpus Proceedings, promulgated in 1976, also speaks to the problem of new grounds for relief raised in subsequent petitions. It provides: "A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." 28 U.S. C. § 2254 Rule 9(b). Like 28 U.S. C. § 2244(b), Rule 9(b) "incorporates the judge-made principle governing the abuse of the writ set forth in Sanders." Rose v. Lundy, 455 U.S. 509, 521 (1982) (plurality opinion); id., at 533 (Brennan, J., concurring in part and dissenting in part) (same). The Advisory Committee Notes make clear that a new claim in a subsequent petition should not be entertained if the judge finds the failure to raise it earlier "inexcusable." Advisory Committee Notes to 488 Rule 9, 28 U.S. C., pp. 426-427. The Notes also state that a retroactive change in the law and newly discovered evidence represent acceptable excuses for failing to raise the claim earlier. Id., at 427. In recent years we have applied the abuse-of-the-writ doctrine in various contexts. In Woodard v. Hutchins, 464 U.S. 377 (1984) (per curiam), the petitioner offered no explanation for asserting three claims in a second federal habeas petition not raised in the first. Five Justices inferred from the lack of explanation that the three claims "could and should have been raised in" the first petition, and that the failure to do so constituted abuse of the writ. Id., at 378-379, and n. 3 (Powell, J., joined by four Justices, concurring in grant of application to vacate stay). Similarly, in Antone v. Dugger, 465 U.S. 200 (1984) (per curiam), we upheld the Court of Appeals' judgment that claims presented for the first time in a second federal petition constituted an abuse of the writ. We rejected petitioner's argument that he should be excused from his failure to raise the claims in the first federal petition because his counsel during first federal habeas prepared the petition in haste and did not have time to become familiar with the case. Id., at 205-206, and n. 4. And just last Term, we held that claims raised for the first time in a fourth federal habeas petition abused the writ because they "could have been raised" or "could have been developed" in the first federal habeas petition. Delo v. Stokes, supra, at 321-322. See also Kuhlmann v. Wilson, 477 U.S. 436, 444, n. 6 (1986) (plurality opinion) (petition that raises grounds "available but not relied upon in a prior petition" is an example of abuse of the writ); Straight v. Wainwright, 476 U.S. 1132, 1133 (1986) (Powell, J., joined by three Justices, concurring in denial of stay) (new arguments in second petition that "plainly could have been raised earlier" constitute abuse of the writ); Rose v. Lundy, supra, at 521 (plurality opinion) (prisoner who proceeds with exhausted claims in first federal 489 petition and deliberately sets aside his unexhausted claims risks dismissal of subsequent federal petitions). III Our discussion demonstrates that the doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions. Because of historical changes and the complexity of the subject, the Court has not "always followed an unwavering line in its conclusions as to the availability of the Great Writ." Fay v. Noia, 372 U. S., at 411-412. Today we attempt to define the doctrine of abuse of the writ with more precision. Although our decisions on the subject do not all admit of ready synthesis, one point emerges with clarity: Abuse of the writ is not confined to instances of deliberate abandonment. Sanders mentioned deliberate abandonment as but one example of conduct that disentitled a petitioner to relief. Sanders cited a passage in Townsend v. Sain, 372 U. S., at 317, which applied the principle of inexcusable neglect, and noted that this principle also governs in the abuse-of-the-writ context, Sanders v. United States, 373 U. S., at 18. As Sanders' reference to Townsend demonstrates, as many Courts of Appeals recognize, see, e. g., 890 F. 2d, at 346-347 (case below); Hall v. Lockhart, 863 F.2d 609, 610 (CA8 1988); Jones v. Estelle, 722 F.2d 159, 163 (CA5 1983); Miller v. Bordenkircher, 764 F.2d 245, 250-252 (CA4 1985), and as McCleskey concedes, Brief for Petitioner 39-40, 45-48, a petitioner may abuse the writ by failing to raise a claim through inexcusable neglect. Our recent decisions confirm that a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice. See, e. g., Delo v. Stokes, 495 U. S., at 321-322; Antone v. Dugger, supra, at 205-206. See also 28 U.S. C. § 2244(b) (recognizing that a petitioner 490 can abuse the writ in a fashion that does not constitute deliberate abandonment). The inexcusable neglect standard demands more from a petitioner than the standard of deliberate abandonment. But we have not given the former term the content necessary to guide district courts in the ordered consideration of allegedly abusive habeas corpus petitions. For reasons we explain below, a review of our habeas corpus precedents leads us to decide that the same standard used to determine whether to excuse state procedural defaults should govern the determination of inexcusable neglect in the abuse-of-the-writ context. The prohibition against adjudication in federal habeas corpus of claims defaulted in state court is similar in purpose and desigu to the abuse-of-the-writ doctrine, which in general prohibits subsequent habeas consideration of claims not raised, and thus defaulted, in the first federal habeas proceeding. The terms "abuse of the writ" and "inexcusable neglect," on the one hand, and "procedural default," on the other, imply a background norm of procedural regularity binding on the petitioner. This explains the presumption against habeas adjudication both of claims defaulted in state court and of claims defaulted in the first round of federal habeas. A federal habeas court's power to excuse these types of defaulted claims derives from the court's equitable discretion. See Reed v. Ross, 468 U.S. 1, 9 (1984) (procedural default); Sanders v. United States, 373 U. S., at 17-18 (abuse of the writ). In habeas, equity recognizes that "a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." Id., at 17. For these reasons, both the abuse-of-the-writ doctrine and our procedural default jurisprudence concentrate on a petitioner's acts to determine whether he has a legitimate excuse for failing to raise a claim at the appropriate time. The doctrines of procedural default and abuse of the writ implicate nearly identical concerns flowing from the significant 491 costs of federal habeas corpus review. To begin with, the writ strikes at finality. One of the law's very objects is the finality of its judgments. Neither innocence nor just punishment can be vindicated until the final judgment is known. "Without finality, the criminal law is deprived of much of its deterrent effect." Teague v. Lane, 489 U.S. 288, 309 (1989). And when a habeas petitioner succeeds in obtaining a new trial, the "`erosion of memory' and `dispersion of witnesses' that occur with the passage of time," Kuhlmann v. Wilson, supra, at 453, prejudice the government and diminish the chances of a reliable criminal adjudication. Though Fay v. Noia, supra, may have cast doubt upon these propositions, since Fay we have taken care in our habeas corpus decisions to reconfirm the importance of finality. See, e. g., Teague v. Lane, supra, at 308-309; Murray v. Carrier, 477 U.S. 478, 487 (1986); Reed v. Ross, supra, at 10; Engle v. Isaac, 456 U.S. 107, 127 (1982). Finality has special importance in the context of a federal attack on a state conviction. Murray v. Carrier, supra, at 487; Engle v. Isaac, supra, at 128. Reexamination of state convictions on federal habeas "frustrate[s] . . . `both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.'" Murray v. Carrier, supra, at 487 (quoting Engle, supra, at 128). Our federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of a State to pass laws means little if the State cannot enforce them. Habeas review extracts further costs. Federal collateral litigation places a heavy burden on scarce federal judicial resources, and threatens the capacity of the system to resolve primary disputes. Schneckloth v. Bustamonte, 412 U.S. 218, 260 (1973) (Powell, J., concurring). Finally, habeas corpus review may give litigants incentives to withhold claims for manipulative purposes and may establish disincentives to 492 present claims when evidence is fresh. Reed v. Ross, supra, at 13; Wainwright v. Sykes, 433 U. S., at 89. Far more severe are the disruptions when a claim is presented for the first time in a second or subsequent federal habeas petition. If "[c]ollateral review of a conviction extends the ordeal of trial for both society and the accused," Engle v. Isaac, supra, at 126-127, the ordeal worsens during subsequent collateral proceedings. Perpetual disrespect for the finality of convictions disparages the entire criminal justice system. "A procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude implies a lack of confidence about the possibilities of justice that cannot but war with the effectiveness of underlying substantive commands. . . . There comes a point where a procedural system which leaves matters perpetually open no longer reflects humane concern but merely anxiety and a desire for immobility." Bator, 76 Harv. L. Rev., at 452-453 (footnotes omitted). If reexamination of a conviction in the first round of federal habeas stretches resources, examination of new claims raised in a second or subsequent petition spreads them thinner still. These later petitions deplete the resources needed for federal litigants in the first instance, including litigants commencing their first federal habeas action. The phenomenon calls to mind Justice Jackson's admonition that "[i]t must prejudice the occasional meritorious application to be buried in a flood of worthless ones." Brown v. Allen, 344 U. S., at 537 (opinion concurring in result). And if reexamination of convictions in the first round of habeas offends federalism and comity, the offense increases when a State must defend its conviction in a second or subsequent habeas proceeding on grounds not even raised in the first petition. The federal writ of habeas corpus overrides all these considerations, essential as they are to the rule of law, when a petitioner raises a meritorious constitutional claim in a 493 proper manner in a habeas petition. Our procedural default jurisprudence and abuse-of-the-writ jurisprudence help define this dimension of procedural regularity. Both doctrines impose on petitioners a burden of reasonable compliance with procedures designed to discourage baseless claims and to keep the system open for valid ones; both recognize the law's interest in finality; and both invoke equitable principles to define the court's discretion to excuse pleading and procedural requirements for petitioners who could not comply with them in the exercise of reasonable care and diligence. It is true that a habeas court's concern to honor state procedural default rules rests in part on respect for the integrity of procedures "employed by a coordinate jurisdiction within the federal system," Wainwright v. Sykes, supra, at 88, and that such respect is not implicated when a petitioner defaults a claim by failing to raise it in the first round of federal habeas review. Nonetheless, the doctrines of procedural default and abuse of the writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have the opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State's interest in the finality of its criminal judgments. We conclude from the unity of structure and purpose in the jurisprudence of state procedural defaults and abuse of the writ that the standard for excusing a failure to raise a claim at the appropriate time should be the same in both contexts. We have held that a procedural default will be excused upon a showing of cause and prejudice. Wainwright v. Sykes, supra. We now hold that the same standard applies to determine if there has been an abuse of the writ through inexcusable neglect. In procedural default cases, the cause standard requires the petitioner to show that "some objective factor external to the defense impeded counsel's efforts" to raise the claim in state court. Murray v. Carrier, 477 U. S., at 488. Objective 494 factors that constitute cause include "`interference by officials'" that makes compliance with the State's procedural rule impracticable, and "a showing that the factual or legal basis for a claim was not reasonably available to counsel." Ibid. In addition, constitutionally "[i]neffective assistance of counsel . . . is cause." Ibid. Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default. Id., at 486-488. Once the petitioner has established cause, he must show "`actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 168 (1982). Federal courts retain the authority to issue the writ of habeas corpus in a further, narrow class of cases despite a petitioner's failure to show cause for a procedural default. These are extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime. We have described this class of cases as implicating a fundamental miscarriage of justice. Murray v. Carrier, supra, at 485. The cause and prejudice analysis we have adopted for cases of procedural default applies to an abuse-of-the-writ inquiry in the following manner. When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner's. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner's opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. If petitioner cannot show cause, the failure to raise the claim in an earlier petition may 495 nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. Application of the cause and prejudice standard in the abuse-of-the-writ context does not mitigate the force of Teague v. Lane, 489 U.S. 288 (1989), which prohibits, with certain exceptions, the retroactive application of new law to claims raised in federal habeas. Nor does it imply that there is a constitutional right to counsel in federal habeas corpus. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("[T]he right to appointed counsel extends to the first appeal of right, and no further"). Although the cause and prejudice standard differs from some of the language in Price v. Johnston, 334 U.S. 266 (1948), it is consistent with Cuddy, Salinger, Wong Doo, and Sanders, as well as our modern abuse-of-the-writ decisions, including Antone, Woodard, and Delo. In addition, the exception to cause for fundamental miscarriages of justice gives meaningful content to the otherwise unexplained "ends of justice" inquiry mandated by Sanders. Sanders drew the phrase "ends of justice" from the 1948 version of § 2244. 28 U.S. C. § 2244 (1964 ed.) (judge need not entertain subsequent application if he is satisfied that "the ends of justice will not be served by such inquiry"). Sanders v. United States, 373 U. S., at 15-17. Although the 1966 revision to the habeas statute eliminated any reference to an "ends of justice" inquiry, a plurality of the Court in Kuhlmann v. Wilson, 477 U. S., at 454, held that this inquiry remained appropriate, and required federal courts to entertain successive petitions when a petitioner supplements a constitutional claim with a "colorable showing of factual innocence." The miscarriage of justice exception to cause serves as "an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty," Stone v. Powell, 428 U. S., at 492-493, n. 31, guaranteeing that the ends of justice will be served in full. 496 Considerations of certainty and stability in our discharge of the judicial function support adoption of the cause and prejudice standard in the abuse-of-the-writ context. Well defined in the case law, the standard will be familiar to federal courts. Its application clarifies the imprecise contours of the term "inexcusable neglect." The standard is an objective one, and can be applied in a manner that comports with the threshold nature of the abuse-of-the-writ inquiry. See Price v. Johnston, 334 U. S., at 287 (abuse of the writ is "preliminary as well as collateral to a decision as to the sufficiency or merits of the allegation itself"). Finally, the standard provides "a sound and workable means of channeling the discretion of federal habeas courts." Murray v. Carrier, 477 U. S., at 497. "[I]t is important, in order to preclude individualized enforcement of the Constitution in different parts of the Nation, to lay down as specifically as the nature of the problem permits the standards or directions that should govern the District Judges in the disposition of applications for habeas corpus by prisoners under sentence of State Courts." Brown v. Allen, 344 U. S., at 501-502 (opinion of Frankfurter, J.). The cause and prejudice standard should curtail the abusive petitions that in recent years have threatened to undermine the integrity of the habeas corpus process. "Federal courts should not continue to tolerate even in capital cases this type of abuse of the writ of habeas corpus." Woodard v. Hutchins, 464 U. S., at 380. The writ of habeas corpus is one of the centerpieces of our liberties. "But the writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly administration of justice and therefore weaken the forces of authority that are essential for civilization." Brown v. Allen, supra, at 512 (opinion of Frankfurter, J.). Adoption of the cause and prejudice standard acknowledges the historic purpose and function of the writ in our constitutional system, and, by preventing its abuse, assures its continued efficacy. 497 We now apply these principles to the case before us. IV McCleskey based the Massiah claim in his second federal petition on the 21-page Evans document alone. Worthy's identity did not come to light until the hearing. The District Court found, based on the document's revelation of the tactics used by Evans in engaging McCleskey in conversation (such as his pretending to be Ben Wright's uncle and his claim that he was supposed to participate in the robbery), that the document established an ab initio relationship between Evans and the authorities. It relied on the finding and on Worthy's later testimony to conclude that the State committed a Massiah violation. This ruling on the merits cannot come before us or any federal court if it is premised on a claim that constitutes an abuse of the writ. We must consider, therefore, the preliminary question whether McCleskey had cause for failing to raise the Massiah claim in his first federal petition. The District Court found that neither the 21-page document nor Worthy were known or discoverable before filing the first federal petition. Relying on these findings, McCleskey argues that his failure to raise the Massiah claim in the first petition should be excused. For reasons set forth below, we disagree. That McCleskey did not possess, or could not reasonably have obtained, certain evidence fails to establish cause if other known or discoverable evidence could have supported the claim in any event. "[Clause . . . requires a showing of some external impediment preventing counsel from constructing or raising the claim." Murray v. Carrier, 477 U. S., at 492 (emphasis added). For cause to exist, the external impediment, whether it be government interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim. See id., at 488 (cause if "interference by officials . . . made compliance 498 impracticable"); Amadeo v. Zant, 486 U.S. 214, 222 (1988) (cause if unavailable evidence "was the reason" for default). Abuse-of-the-writ doctrine examines petitioner's conduct: The question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process, see 28 U.S. C. § 2254 Rule 6 (Discovery); Rule 7 (Expansion of Record); Rule 8 (Evidentiary Hearing). The requirement of cause in the abuse-of-the-writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition. If what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim. In applying these principles, we turn first to the 21-page signed statement. It is essential at the outset to distinguish between two issues: (1) Whether petitioner knew about or could have discovered the 21-page document; and (2) whether he knew about or could have discovered the evidence the document recounted, namely, the jail-cell conversations. The District Court's error lies in its conflation of the two inquiries, an error petitioner would have us perpetuate here. The 21-page document unavailable to McCleskey at the time of the first petition does not establish that McCleskey had cause for failing to raise the Massiah claim at the outset.[] Based on testimony and questioning at trial, McCleskey 499 knew that he had confessed the murder during jail-cell conversations with Evans, knew that Evans claimed to be a relative of Ben Wright during the conversations, and knew that Evans told the police about the conversations. Knowledge of these facts alone would put McCleskey on notice to pursue the Massiah claim in his first federal habeas petition as he had done in the first state habeas petition. But there was more. The District Court's finding that the 21-page document established an ab initio relationship between Evans and the authorities rested in its entirety on conversations in which McCleskey himself participated. 500 Though at trial McCleskey denied the inculpatory conversations, his current arguments presuppose them. Quite apart from the inequity in McCleskey's reliance on that which he earlier denied under oath, the more fundamental point remains that because McCleskey participated in the conversations reported by Evans, he knew everything in the document that the District Court relied upon to establish the ab initio connection between Evans and the police. McCleskey has had at least constructive knowledge all along of the facts he now claims to have learned only from the 21-page document. The unavailability of the document did not prevent McCleskey from raising the Massiah claim in the first federal petition and is not cause for his failure to do so. And of course, McCleskey cannot contend that his false representations at trial constitute cause for the omission of a claim from the first federal petition. The District Court's determination that jailer Worthy's identity and testimony could not have been known prior to the first federal petition does not alter our conclusion. It must be remembered that the 21-page statement was the only new evidence McCleskey had when he filed the Massiah claim in the second federal petition in 1987. Under McCleskey's own theory, nothing was known about Worthy even then. If McCleskey did not need to know about Worthy and his testimony to press the Massiah claim in the second petition, neither did he need to know about him to assert it in the first. Ignorance about Worthy did not prevent McCleskey from raising the Massiah claim in the first federal petition and will not excuse his failure to do so. Though this reasoning suffices to show the irrelevance of the District Court's finding concerning Worthy, the whole question illustrates the rationale for requiring a prompt investigation and the full pursuit of habeas claims in the first petition. At the time of the first federal petition, written logs and records with prison staff names and assignments existed. By the time of the second federal petition officials had 501 destroyed the records pursuant to normal retention schedules. Worthy's inconsistent and confused testimony in this case demonstrates the obvious proposition that factfinding processes are impaired when delayed. Had McCleskey presented this claim in the first federal habeas proceeding when official records were available, he could have identified the relevant officers and cell assignment sheets. The critical facts for the Massiah claim, including the reason for Evans' placement in the cell adjacent to McCleskey's and the precise conversation that each officer had with Evans before he was put there, likely would have been reconstructed with greater precision than now can be achieved. By failing to raise the Massiah claim in 1981, McCleskey foreclosed the procedures best suited for disclosure of the facts needed for a reliable determination. McCleskey nonetheless seeks to hold the State responsible for his omission of the Massiah claim in the first petition. His current strategy is to allege that the State engaged in wrongful conduct in withholding the 21-page document. This argument need not detain us long. When all is said and done, the issue is not presented in the case, despite all the emphasis upon it in McCleskey's brief and oral argument. The Atlanta police turned over the 21-page document upon request in 1987. The District Court found no misrepresentation or wrongful conduct by the State in failing to hand over the document earlier, and our discussion of the evidence in the record concerning the existence of the statement, see n., supra, as well as the fact that at least four courts have considered and rejected petitioner's Brady claim, belies McCleskey's characterization of the case. And as we have taken care to explain, the document is not critical to McCleskey's notice of a Massiah claim anyway. Petitioner's reliance on the procedural default discussion in Amadeo v. Zant, 486 U.S. 214 (1988), is misplaced. In Amadeo the Court mentioned that government concealment of evidence could be cause for a procedural default if it "was 502 the reason for the failure of a petitioner's lawyers to raise the jury challenge in the trial court." Id., at 222. This case differs from Amadeo in two crucial respects. First, there is no finding that the State concealed evidence. And second, even if the State intentionally concealed the 21-page document, the concealment would not establish cause here because, in light of McCleskey's knowledge of the information in the document, any initial concealment would not have prevented him from raising the claim in the first federal petition. As McCleskey lacks cause for failing to raise the Massiah claim in the first federal petition, we need not consider whether he would be prejudiced by his inability to raise the alleged Massiah violation at this late date. See Murray v. Carrier, 477 U. S., at 494 (rejecting proposition that showing of prejudice permits relief in the absence of cause). We do address whether the Court should nonetheless exercise its equitable discretion to correct a miscarriage of justice. That narrow exception is of no avail to McCleskey. The Massiah violation, if it be one, resulted in the admission at trial of truthful inculpatory evidence which did not affect the reliability of the guilt determination. The very statement McCleskey now seeks to embrace confirms his guilt. As the District Court observed: "After having read [the Evans statement], the court has concluded that nobody short of William Faulkner could have contrived that statement, and as a consequence finds the testimony of Offie Evans absolutely to be true, and the court states on the record that it entertains absolutely no doubt as to the guilt of Mr. McCleskey." 4 Tr. 4. We agree with this conclusion. McCleskey cannot demonstrate that the alleged Massiah violation caused the conviction of an innocent person. Murray v. Carrier, supra, at 496. The history of the proceedings in this case, and the burden upon the State in defending against allegations made for the 503 first time in federal court some nine years after the trial, reveal the necessity for the abuse-of-the-writ doctrine. The cause and prejudice standard we adopt today leaves ample room for consideration of constitutional errors in a first federal habeas petition and in a later petition under appropriate circumstances. Petitioner has not satisfied this standard for excusing the omission of the Massiah claim from his first petition. The judgment of the Court of Appeals is Affirmed. APPENDIX TO OPINION OF THE COURT Petitioner's Claims for Relief at Various Stages of the Litigation 1. Direct Appeal. On direct appeal, McCleskey raised the following claims: (1) the death penalty was administered in a discriminatory fashion because of prosecutorial discretion; (2) the prosecutor conducted an illegal postindictment lineup; (3) the trial court erred in admitting at trial the statement McCleskey made to the police; (4) the trial court erred in allowing Evans to testify about McCleskey's jail-house confession; (5) the prosecutor failed to disclose certain impeachment evidence; and (6) the trial court erred in admitting evidence of McCleskey's prior criminal acts. McClesky v. State, 245 Ga. 108, 112-114, 263 S.E.2d 146, 149-151 (1980). 2. First State Habeas Corpus Petition. McCleskey's first state habeas petition alleged the following constitutional violations: (1) the Georgia death penalty is administered arbitrarily, capriciously, and whimsically; (2) Georgia officials imposed McCleskey's capital sentence pursuant to a pattern and practice of discrimination on the basis of race, sex, and poverty; (3) the death penalty lacks theoretical or factual justification and fails to serve any rational interest; (4) McCleskey's death sentence is cruel and unusual punishment in light of all mitigating factors; (5) McCleskey received inadequate notice and opportunity to be heard; (6) the jury did not constitute a fair cross section of the community; (7) the jury was biased 504 in favor of the prosecution; (8) the trial court improperly excused two jurors who were opposed to the death penalty; (9) McCleskey's postarrest statement should have been excluded because it was obtained after an allegedly illegal arrest; (10) the postarrest statement was extracted involuntarily; (11) the State failed to disclose an "arrangement" with one of its key witnesses, Evans; (12) the State deliberately withheld a statement made by McCleskey to Evans; (13) the trial court erred in failing to grant McCleskey funds to employ experts in aid of his defense; (14) three witnesses for the State witnessed a highly suggestive lineup involving McCleskey prior to trial; (15) the trial court's jury instructions concerning intent impermissibly shifted the burden of persuasion to McCleskey; (16) the prosecution impermissibly referred to the appellate process during the sentencing phase; (17) the trial court improperly admitted evidence of other crimes for which McCleskey had not been convicted; (18) the trial court's instructions concerning evidence of McCleskey's other bad acts was overbroad; (19) the appellate review procedures of Georgia denied McCleskey effective assistance of counsel, a fair hearing, and the basic tools of an adequate defense; (20) the means by which the death penalty is administered inflicts wanton and unnecessary torture; (21) McCleskey was denied effective assistance of counsel in numerous contexts; (22) introduction of statements petitioner made to Evans were elicited in a situation created to induce McCleskey to make incriminating statements; and (23) the evidence was insufficient to convict McCleskey of capital murder. Petition, HC No. 4909, 2 Tr., Exh. H. 3. First Federal Habeas Corpus Petition. McCleskey raised the following claims in his first federal habeas petition: (1) the Georgia death penalty discriminated on the basis of race; (2) the State failed to disclose an "understanding" with Evans; (3) the trial court's instructions to the jury impermissibly shifted the burden to McCleskey; (4) the prosecutor improperly referred to the appellate process at the sentencing 505 phase; (5) the trial court impermissibly refused to grant McCleskey funds to employ experts in aid of his defense; (6) the trial court's instructions concerning evidence of McCleskey's other bad acts was overbroad; (7) the trial court's instructions gave the jury too much discretion to consider nonstatutory aggravating circumstances; (8) the trial court improperly admitted evidence of other crimes for which McCleskey had not been convicted; (9) three witnesses for the State witnessed a highly suggestive lineup involving McCleskey prior to trial; (10) McCleskey's postarrest statement should have been excluded because it was extracted involuntarily; (11) the trial court impermissibly excluded two jurors who were opposed to the death penalty; (12) the death penalty lacks theoretical or factual justification and fails to serve any rational interest; (13) the State deliberately withheld a statement made by McCleskey to Evans; (14) the evidence was insufficient to convict McCleskey of capital murder; (15) McCleskey's counsel failed to investigate the State's evidence adequately; (16) McCleskey's counsel failed to raise certain objections or make certain motions at trial; (17) McCleskey's counsel failed to undertake an independent investigation of possible mitigating circumstances prior to trial; and (18) after trial, McCleskey's counsel failed to review and correct the judge's sentence report. McCleskey v. Zant, 580 F. Supp. 338 (ND Ga. 1984). 4. Second State Habeas Petition. In his second state habeas petition, McCleskey alleged the following claims: (1) the prosecutor systematically excluded blacks from the jury; (2) the State of Georgia imposed the death penalty against McCleskey in a racially discriminatory manner; (3) the State failed to disclose its agreement with Evans; (4) the trial court impermissibly refused to grant McCleskey funds to employ experts in aid of his defense; and (5) the prosecutor improperly referred to the appellate process at the sentencing phase. Petition, 2 Tr., Exh. G. *506 5. Second Federal Habeas Corpus Petition. In his second federal habeas petition, McCleskey alleged the following claims: (1) Evans' testimony concerning his conversation with McCleskey was inadmissible because Evans acted as a state informant in a situation created to induce McCleskey to make incriminating statements; (2) the State failed to correct the misleading testimony of Evans; (3) the State failed to disclose "an arrangement" with Evans; (4) the prosecutor improperly referred to the appellate process at the sentencing phase; (5) the State systematically excluded blacks from McCleskey's jury; (6) the death penalty was imposed on McCleskey pursuant to a pattern and practice of racial discrimination by Georgia officials against black defendants; and (7) the trial court impermissibly refused to grant McCleskey funds to employ experts in aid of his defense. Federal Habeas Petition, 1 Tr., Exh. 1.	The doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus. Petitioner Warren McCleskey in a second federal habeas petition presented a claim under that he failed to include in his first federal petitio The Court of Appeals for the Eleventh Circuit held that assertion of the Massiah claim in this manner abused the Though our analysis differs from that of the Court of Appeals, we agree that the petitioner here abused the writ, and we affirm the judgment. I McCleskey and three other men, all armed, robbed a Georgia furniture store in 178. One of the robbers shot and killed an off duty policeman who entered the store in the midst of the crime. McCleskey confessed to the police that he participated in the robbery. When on trial for both the robbery and the murder, however, McCleskey renounced his confession after taking the stand with an alibi denying all involvement. To rebut McCleskey's testimony, the prosecution called Offie Evans, who had occupied a jail cell next to McCleskey's. Evans testified that McCleskey admitted shooting the officer during the robbery and boasted that he would have shot his way out of the store even in the face of a dozen policeme Although no one witnessed the shooting, further direct and circumstantial evidence supported McCleskey's guilt of the murder. An eyewitness testified that someone ran from the store carrying a pearl-handled pistol soon after the robbery. Other witnesses testified that McCleskey earlier had stolen a pearl-handled pistol of the same caliber as the bullet that killed the officer. Ben Wright, one of McCleskey's accomplices, confirmed that during the crime McCleskey carried a white-handled handgun matching the caliber of the fatal bullet. 471 Wright also testified that McCleskey admitted shooting the officer. Finally, the prosecutor introduced McCleskey's confession of participation in the robbery. In December 178, the jury convicted McCleskey of murder and sentenced him to death. Since his conviction, McCleskey has pursued direct and collateral remedies for more than a decade. We describe this procedural history in detail, both for a proper understanding of the case and as an illustration of the context in which allegations of abuse of the writ arise. On direct appeal to the Supreme Court of Georgia, McCleskey raised six grounds of A summary of McCleskey's claims on direct appeal, as well as those he asserted in each of his four collateral proceedings, is set forth in the Appendix to this opinion, infra, at 503. The portion of the appeal relevant for our purposes involves McCleskey's attack on Evans' rebuttal testimony. McCleskey contended that the trial court "erred in allowing evidence of [McCleskey's] oral statement admitting the murder made to [Evans] in the next cell, because the prosecutor had deliberately withheld such statement" in violation of A unanimous Georgia Supreme Court acknowledged that the prosecutor did not furnish Evans' statement to the defense, but ruled that because the undisclosed evidence was not exculpatory, McCleskey suffered no material prejudice and was not denied a fair trial under 245 Ga., at 263 S.E.2d, at The court noted, moreover, that the evidence McCleskey wanted to inspect was "introduced to the jury in its entirety" through Evans' testimony, and that McCleskey's argument that "the evidence was needed in order to prepare a proper defense or impeach other witnesses ha[d] no merit because the evidence requested was statements made by [McCleskey] himself." The court rejected McCleskey's other contentions and 472 affirmed his conviction and sentence. We denied certiorari. McCleskey then initiated postconviction proceedings. In January 181, he filed a petition for state habeas corpus relief. The amended petition raised 23 challenges to his murder conviction and death sentence. See Appendix, infra, at 503. Three of the claims concerned Evans' testimony. First, McCleskey contended that the State violated his due process rights under by its failure to disclose an agreement to drop pending escape charges against Evans in return for his cooperation and testimony. App. 20. Second, McCleskey reasserted his Brady claim that the State violated his due process rights by the deliberate withholding of the statement he made to Evans while in jail. App. 21. Third, McCleskey alleged that admission of Evans' testimony violated the Sixth Amendment right to counsel as construed in On this theory, "[t]he introduction into evidence of [his] statements to [Evans], elicited in a situation created to induce [McCleskey] to make incriminating statements without the assistance of counsel, violated [McCleskey's] right to counsel under the Sixth Amendment to the Constitution of the United" App. 22. At the state habeas corpus hearing, Evans testified that one of the detectives investigating the murder agreed to speak a word on his behalf to the federal authorities about certain federal charges pending against him. The state habeas court ruled that the ex parte recommendation did not implicate Giglio, and it denied relief on all other claims. The Supreme Court of Georgia denied McCleskey's application for a certificate of probable cause, and we denied his second petition for a writ of certiorari. In December 181, McCleskey filed his first federal habeas corpus petition in the United District Court for the Northern District of Georgia, asserting 18 grounds for relief. 473 See Appendix, infra, at 504-505. The petition failed to allege the Massiah claim, but it did reassert the Giglio and Brady claims. Following extensive hearings in August and October the District Court held that the detective's statement to Evans was a promise of favorable treatment, and that failure to disclose the promise violated Giglio. The District Court further held that Evans' trial testimony may have affected the jury's verdict on the charge of malice murder. On these premises it granted relief. The Court of Appeals reversed the District Court's grant of the The court held that the State had not made a promise to Evans of the kind contemplated by Giglio, and that in any event the Giglio error would be -885. The court affirmed the District Court on all other grounds. We granted certiorari limited to the question whether Georgia's capital sentencing procedures were constitutional, and denied relief. McCleskey continued his postconviction attacks by filing a second state habeas corpus action in 187 which, as amended, contained five claims for relief. See Appendix, infra, at 505. One of the claims again centered on Evans' testimony, alleging that the State had an agreement with Evans that it had failed to disclose. The state trial court held a hearing and dismissed the petitio The Supreme Court of Georgia denied McCleskey's application for a certificate of probable cause. In July 187, McCleskey filed a second federal habeas action, the one we now review. In the District Court, McCleskey asserted seven claims, including a Massiah challenge to the introduction of Evans' testimony. See Appendix, infra, at McCleskey had presented a Massiah claim, it will be recalled, in his first state habeas action when he alleged that the conversation recounted by Evans at trial had been "elicited 474 in a situation created to induce" him to make an incriminating statement without the assistance of counsel. The first federal petition did not present a Massiah claim. The proffered basis for the Massiah claim in the second federal petition was a 21-page signed statement that Evans made to the Atlanta Police Department on August 1, 178, two weeks before the trial bega The department furnished the document to McCleskey one month before he filed his second federal petitio The statement related pretrial jailhouse conversations that Evans had with McCleskey and that Evans overheard between McCleskey and Bernard Dupree. By the statement's own terms, McCleskey participated in all the reported jail-cell conversations. Consistent with Evans' testimony at trial, the statement reports McCleskey admitting and boasting about the murder. It also recounts that Evans posed as Ben Wright's uncle and told McCleskey he had talked with Wright about the robbery and the murder. In his second federal habeas petition, McCleskey asserted that the statement proved Evans "was acting in direct concert with State officials" during the incriminating conversations with McCleskey, and that the authorities "deliberately elicited" inculpatory admissions in violation of McCleskey's Sixth Amendment right to counsel. 1 Tr. Exh. 1, pp. 11-12. Among other responses, the State of Georgia contended that McCleskey's presentation of a Massiah claim for the first time in the second federal petition was an abuse of the 28 U.S. C. 2244(b); Rule (b) of the Rules Governing 2254 Cases. The District Court held extensive hearings in July and August 187 focusing on the arrangement the jailers had made for Evans' cell assignment in 178. Several witnesses denied that Evans had been placed next to McCleskey by desigu or instructed to overhear conversations or obtain statements from McCleskey. McCleskey's key witness was Ulysses 475 Worthy, a jailer at the Fulton County Jail during the summer of 178. McCleskey's lawyers contacted Worthy after a detective testified that the 178 Evans statement was taken in Worthy's office. The District Court characterized Worthy's testimony as "often confused and self-contradictory." No. C87-1517A App. 81. Worthy testified that someone at some time requested permission to move Evans near McCleskey's cell. He contradicted himself, however, concerning when, why, and by whom Evans was moved, and about whether he overheard investigators urging Evans to engage McCleskey in conversatio On December 23, 187, the District Court granted McCleskey relief based upon a violation of Massiah. The court stated that the Evans statement "contains strong indication of an ab initio relationship between Evans and the authorities." In addition, the court credited Worthy's testimony suggesting that the police had used Evans to obtain incriminating information from McCleskey. Based on the Evans statement and portions of Worthy's testimony, the District Court found that the jail authorities had placed Evans in the cell adjoining McCleskey's "for the purpose of gathering incriminating information"; that "Evans was probably coached in how to approach McCleskey and given critical facts unknown to the general public"; that Evans talked with McCleskey and eavesdropped on McCleskey's conversations with others; and that Evans reported what he had heard to the authorities. These findings, in the District Court's view, established a Massiah violatio In granting habeas relief, the District Court rejected the State's argument that McCleskey's assertion of the Massiah claim for the first time in the second federal petition constituted an abuse of the The court ruled that McCleskey did not deliberately abandon the claim after raising it in his first state habeas petitio "This is not a case," the District 476 Court reasoned, "where petitioner has reserved his proof or deliberately withheld his claim for a second petitio" The District Court also determined that when McCleskey filed his first federal petition, he did not know about either the 21-page Evans document or the identity of Worthy, and that the failure to discover the evidence for the first federal petition "was not due to [McCleskey's] inexcusable neglect." The Eleventh Circuit reversed, holding that the District Court abused its discretion by failing to dismiss McCleskey's Massiah claim as an abuse of the The Court of Appeals agreed with the District Court that the petitioner must "show that he did not deliberately abandon the claim and that his failure to raise it [in the first federal habeas proceeding] was not due to inexcusable neglect." Accepting the District Court's findings that at the first petition stage McCleskey knew neither the existence of the Evans statement nor the identity of Worthy, the court held that the District Court "misconstru[ed] the meaning of deliberate abandonment." Because McCleskey included a Massiah claim in his first state petition, dropped it in his first federal petition, and then reasserted it in his second federal petition, he "made a knowing choice not to pursue the claim after having raised it previously" that constituted a prima facie showing of "deliberate abandonment." The court further found the State's alleged concealment of the Evans statement irrelevant because it "was simply the catalyst that caused counsel to pursue the Massiah claim more vigorously" and did not itself "demonstrate the existence of a Massiah violatio" The court concluded that McCleskey had presented no reason why counsel could not have discovered Worthy earlier. Finally, the court ruled that McCleskey's claim did not fall within the ends of justice exception to the abuse-of-the-writ doctrine because any 477 Massiah violation that may have been committed would have been harmless 80 F.2d, -351. McCleskey petitioned this Court for a writ of certiorari, alleging numerous errors in the Eleventh Circuit's abuse-of-the-writ analysis. In our order granting the petition, we requested the parties to address the following additional question: "Must the State demonstrate that a claim was deliberately abandoned in an earlier petition for a writ of habeas corpus in order to establish that inclusion of that claim in a subsequent habeas petition constitutes abuse of the writ?" II The parties agree that the government has the burden of pleading abuse of the writ, and that once the government makes a proper submission, the petitioner must show that he has not abused the writ in seeking habeas relief. See Sanders v. United ; Much confusion exists though, on the standard for determining when a petitioner abuses the Although the standard is central to the proper determination of many federal habeas corpus actions, we have had little occasion to define it. Indeed, there is truth to the observation that we have defined abuse of the writ in an oblique way, through dicta and denials of certiorari petitions or stay applications. See Today we give the subject our careful consideratio We begin by tracing the historical development of some of the substantive and procedural aspects of the writ, and then consider the standard for abuse that district courts should apply in actions seeking federal habeas corpus relief. A The Judiciary Act of 178, ch. 20, 14, -82, empowered federal courts to issue writs of habeas corpus to prisoners "in custody, under or by colour of the authority of 478 the United" In the early decades of our new federal system, English common law defined the substantive scope of the Ex parte Watkins, Federal prisoners could use the writ to challenge confinement imposed by a court that lacked jurisdiction, ib or detention by the Executive without proper legal process, see Ex parte Wells, The common-law limitations on the scope of the writ were subject to various expansive forces, both statutory and judicial. See generally Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, The major statutory expansion of the writ occurred in 1867, when Congress extended federal habeas corpus to prisoners held in state custody. Act of Feb. 5, 1867, ch. 28, 1, For the most part, however, expansion of the writ has come through judicial decisionmaking. As then-JUSTICE REHNQUIST explained in the Court began by interpreting the concept of jurisdictional defect with generosity to include sentences imposed without statutory authorization, Ex parte Lange, and convictions obtained under an unconstitutional statute, Ex parte Siebold, Later, we allowed habeas relief for confinement under a state conviction obtained without adequate procedural protections for the defendant. ; Confronting this line of precedents extending the reach of the writ, in "the Court openly discarded the concept of jurisdiction by then more a fiction than anything else as a touchstone of the availability of federal habeas review, and acknowledged that such review is available for claims of `disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights.'" at (quoting at 4 104-105). With the exception of Fourth Amendment violations that a petitioner has been given a full and fair opportunity to litigate in state court, the writ today appears to extend to all dispositive constitutional claims presented in a proper procedural manner. See ; at One procedural requisite is that a petition not lead to an abuse of the We must next consider the origins and meaning of that rule. B At common law, res judicata did not attach to a court's denial of habeas relief. "[A] refusal to discharge on one writ [was] not a bar to the issuance of a new " 1 W. Bailey, Habeas Corpus and Special Remedies 206 (113) (citing cases). "[A] renewed application could be made to every other judge or court in the realm, and each court or judge was bound to consider the question of the prisoner's right to a discharge independently, and not to be influenced by the previous decisions refusing discharge." W. Church, Writ of Habeas Corpus 386, p. 570 (2d ed. 183) (hereinafter Church). See, e. g., Ex parte Kaine, (No. 7,57) (CC SDNY 1853); In re Kopel, The rule made sense because at common law an order denying habeas relief could not be reviewed. Church 570; L. Yackle, Postconviction Remedies 151, p. 551 ; A Note on Habeas Corpus, 65 L. Q. Rev. 30, 32 (14). Successive petitions served as a substitute for appeal. See W. Duker, A Constitutional History of Habeas Corpus 5-6 ; Church 570; As appellate review became available from a decision in habeas refusing to discharge the prisoner, courts began to question the continuing validity of the common-law rule allowing endless successive petitions. Church 602. Some courts rejected the common-law rule, holding a denial of habeas relief 4 res judicata. See, e. g., (18); ; Ex parte Heller, Others adopted a middle position between the extremes of res judicata and endless successive petitions. Justice Field's opinion on circuit in Ex parte Cuddy, exemplifies this balance. "[W]hile the doctrine of res judicata does not apply, the officers before whom the second application is made may take into consideration the fact that a previous application had been made to another officer and refused; and in some instances that fact may justify a refusal of the second. The action of the court or justice on the second application will naturally be affected to some degree by the character of the court or officer to whom the first application was made, and the fullness of the consideration given to it. In what I have said I refer, of course, to cases where a second application is made upon the same facts presented, or which might have been presented, on the first. The question is entirely different when subsequent occurring events have changed the situation of the petitioner so as in fact to present a new case for consideratio In the present application there are no new facts which did not exist when the first was presented. I am of the opinion that in such a case a second application should not be heard." Cf. Ex parte Moebus, We resolved the confusion over the continuing validity of the common-law rule, at least for federal courts, in and Wong Doo v. United These decisions reaffirmed that res judicata does not apply "to a decision on habeas corpus refusing to discharge the prisoner." 481 ; see Wong Doo v. United They recognized, however, that the availability of appellate review required a modification of the common-law rule allowing endless applications. As we explained in Salinger: "In early times when a refusal to discharge was not open to appellate review, courts and judges were accustomed to exercise an independent judgment on each successive application, regardless of the number. But when a right to an appellate review was given the reason for that practice ceased and the practice came to be materially changed" 265 U.S., -231. Relying on Justice Field's opinion in Ex parte Cuddy, we announced that second and subsequent petitions should be "disposed of in the exercise of a sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the propriety of the discharge sought. Among the matters which may be considered, and even given controlling weight, are (a) the existence of another remedy, such as a right in ordinary course to an appellate review in the criminal case, and (b) a prior refusal to discharge on a like applicatio" Because the lower court in Salinger had not disposed of the subsequent application for habeas corpus by reliance on dismissal of the prior application, the decision did not present an opportunity to apply the doctrine of abuse of the Wong Doo did present the questio There, the District Court had dismissed on res judicata grounds a second petition containing a due process claim that was raised, but not argued, in the first federal habeas petitio The petitioner "had full opportunity to offer proof of [his due process claim] at the hearing on the first petition," and he offered "[n]o reason for not presenting the proof at the outset." Wong Doo, The record of the first petition did not contain proof of the due process claim, 482 but "what [was] said of it there and in the briefs show[ed] that it was accessible all the time." In these circumstances, we upheld the dismissal of the second petitio We held that "according to a sound judicial discretion, controlling weight must have been given to the prior refusal." So while we rejected res judicata in a strict sense as a basis for dismissing a later habeas action, we made clear that the prior adjudication bore vital relevance to the exercise of the court's discretion in determining whether to consider the petitio the next decision in this line, arose in a somewhat different context from Salinger or Wong Doo. In Price, the petitioner's fourth habeas petition alleged a claim that, arguably at least, was neither the explicit basis of a former petition nor inferable from the facts earlier alleged. The District Court and Court of Appeals dismissed the petition without hearing on the sole ground that the claim was not raised in one of the earlier habeas actions. We reversed and remanded, reasoning that the dismissal "precluded a proper development of the issue of the allegedly abusive use of the habeas corpus " We explained that the State must plead an abuse of the writ with particularity, and that the burden then shifts to petitioner to show that presentation of the new claim does not constitute abuse. at The District Court erred because it dismissed the petition without affording the petitioner an opportunity to explain the basis for raising his claim late. We gave directions for the proper inquiry in the trial court. If the explanation "is inadequate, the court may dismiss the petition without further proceedings." But if a petitioner "present[s] adequate reasons for not making the allegation earlier, reasons which make it fair and just for the trial court to overlook the delay," he must be given the opportunity to develop these matters in a hearing. 1-. Without considering whether the petitioner had abused the writ, we remanded the case. 483 Although Price recognized that abuse-of-the-writ principles limit a petitioner's ability to file repetitive petitions, it also contained dicta touching on the standard for abuse that appeared to contradict this point. Price stated that "the three prior refusals to discharge petitioner can have no bearing or weight on the disposition to be made of the new matter raised in the fourth petitio" This proposition ignored the significance of appellate jurisdictional changes, see at 4-4, as well as the general disfavor we had expressed in Salinger and Wong Doo toward endless repetitive petitions. It did not even comport with language in Price itself which recognized that in certain circumstances new claims raised for the first time in a second or subsequent petition should not be entertained. As will become clear, the quoted portion of Price has been ignored in our later decisions. One month after the Price decision, Congress enacted legislation, which for the first time addressed the issue of repetitive federal habeas corpus petitions: "No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United or of any State, if it appears that the legality of such detention has been determined by a judge or court of the United on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry." 28 U.S. C. 2244 (164 ed.). Because 2244 allowed a district court to dismiss a successive petition that "present[ed] no new ground not theretofore presented and determined," one might have concluded, by negative implication, that Congress denied permission to dismiss any petition that alleged new grounds for relief. Such an interpretation would have superseded the judicial principles 484 recognizing that claims not raised or litigated in a prior petition could, when raised in a later petition, constitute abuse. But the Reviser's Note to the 148 statute made clear that as a general matter Congress did not intend the new section to disrupt the judicial evolution of habeas principles, 28 U.S. C. 2244 (164 ed.) (Reviser's Note), and we confirmed in Sanders v. United -12, that Congress' silence on the standard for abuse of the writ involving a new claim was "not intended to foreclose judicial application of the abuse-of-writ principle as developed in Wong Doo and Price." Sanders also recognized our special responsibility in the development of habeas corpus with respect to another provision of the 148 revision of the judicial code, 28 U.S. C. 2255 (164 ed.). The statute created a new postconviction remedy for federal prisoners with a provision for repetitive petitions different from the one found in 2244. While 2244 permitted dismissal of subsequent habeas petitions that "present[ed] no new ground not theretofore presented and determined," 2255 allowed a federal district court to refuse to entertain a subsequent petition seeking "similar relief." On its face, 2255 appeared to announce a much stricter abuse-of-the-writ standard than its counterpart in 2244. We concluded in Sanders, however, that the language in 2255 "cannot be taken literally," and construed it to be the "material equivalent" of the abuse standard in 2244. Sanders v. United -14. In addition to answering these questions, Sanders undertook a more general "formulation of basic rules to guide the lower federal courts" concerning the doctrine of abuse of the After reiterating that the government must plead abuse of the writ and the petitioner must refute a well-pleaded allegation, Sanders addressed the definition of and rationale for the doctrine. It noted that equitable principles governed abuse of the writ, including "the principle that a suitor's conduct in relation to the matter at hand may 485 disentitle him to the relief he seeks," and that these principles must be applied within the sound discretion of district courts. The Court furnished illustrations of writ abuse: "Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong Doo, the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless, piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." The Court also cited and for further guidance on the doctrine of abuse of the writ, stating that the principles of those cases "govern equally here." 373 U.S., Finally, Sanders established that federal courts must reach the merits of an abusive petition if "the ends of justice demand." Three years after Sanders, Congress once more amended the habeas corpus statute. The amendment was an attempt to alleviate the increasing burden on federal courts caused by successive and abusive petitions by "introducing a greater degree of finality of judgments in habeas corpus proceedings." S. Rep. No. 17, 8th Cong., 2d Sess., 2 (166); see also H. R. Rep. No. 182, 8th Cong., 2d Sess., 5-6 (166). The amendment recast 2244 into three subparagraphs. Subparagraph (a) deletes the reference to state prisoners in the old 2244 but left the provision otherwise intact. 28 U.S. C. 2244(a). Subparagraph (c) states that where a state prisoner seeks relief for an alleged denial of a federal 486 constitutional right before this Court, any decision rendered by the Court shall be "conclusive as to all issues of fact or law with respect to an asserted denial of a Federal right" 28 U.S. C. 2244(c). Congress added subparagraph (b) to address repetitive applications by state prisoners: "(b) When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United or a justice or judge of the United release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus on behalf of such person need not be entertained by a court of the United or a justice or judge of the United unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the " 28 U.S. C. 2244(b). Subparagraph (b) establishes a "qualified application of the doctrine of res judicata." S. Rep. No. 17, It states that a federal court "need not entertain" a second or subsequent habeas petition "unless" the petitioner satisfies two conditions. First, the subsequent petition must allege a new ground, factual or otherwise. Second, the applicant must satisfy the judge that he did not deliberately withhold the ground earlier or "otherwise abus[e] the " See ("essential question [under 2244(b)] is whether the petitioner `deliberately withheld the newly asserted ground' in the prior proceeding, or `otherwise abused the writ'"). If the petitioner meets these conditions, the court must consider the subsequent petition * as long as other habeas errors, such as nonexhaustion, 28 U.S. C. 2254(b), or procedural default, are not present. Section 2244(b) raises, but does not answer, other questions. It does not state whether a district court may overlook a deliberately withheld or otherwise abusive claim to entertain the petition in any event. That is, it does not state the limits on the district court's discretion to entertain abusive petitions. Nor does the statute define the term "abuse of the " As was true of similar silences in the original 148 version of 2244, however, see Congress did not intend 2244(b) to foreclose application of the court-announced principles defining and limiting a district court's discretion to entertain abusive petitions. See U.S. 320, Rule (b) of the Rules Governing Habeas Corpus Proceedings, promulgated in 176, also speaks to the problem of new grounds for relief raised in subsequent petitions. It provides: "A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the " 28 U.S. C. 2254 Rule (b). Like 28 U.S. C. 2244(b), Rule (b) "incorporates the judge-made principle governing the abuse of the writ set forth in Sanders." ; (same). The Advisory Committee Notes make clear that a new claim in a subsequent petition should not be entertained if the judge finds the failure to raise it earlier "inexcusable." Advisory Committee Notes to 488 Rule 28 U.S. C., pp. 426-427. The Notes also state that a retroactive change in the law and newly discovered evidence represent acceptable excuses for failing to raise the claim earlier. In recent years we have applied the abuse-of-the-writ doctrine in various contexts. In the petitioner offered no explanation for asserting three claims in a second federal habeas petition not raised in the first. Five Justices inferred from the lack of explanation that the three claims "could and should have been raised in" the first petition, and that the failure to do so constituted abuse of the at 378-3, and 3 (, J., joined by four Justices, concurring in grant of application to vacate stay). Similarly, in we upheld the Court of Appeals' judgment that claims presented for the first time in a second federal petition constituted an abuse of the We rejected petitioner's argument that he should be excused from his failure to raise the claims in the first federal petition because his counsel during first federal habeas prepared the petition in haste and did not have time to become familiar with the case. 05-206, and 4. And just last Term, we held that claims raised for the first time in a fourth federal habeas petition abused the writ because they "could have been raised" or "could have been developed" in the first federal habeas petitio at See also (petition that raises grounds "available but not relied upon in a prior petition" is an example of abuse of the writ); (new arguments in second petition that "plainly could have been raised earlier" constitute abuse of the writ); at (prisoner who proceeds with exhausted claims in first federal 48 petition and deliberately sets aside his unexhausted claims risks dismissal of subsequent federal petitions). III Our discussion demonstrates that the doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions. Because of historical changes and the complexity of the subject, the Court has not "always followed an unwavering line in its conclusions as to the availability of the Great Writ." -412. Today we attempt to define the doctrine of abuse of the writ with more precisio Although our decisions on the subject do not all admit of ready synthesis, one point emerges with clarity: Abuse of the writ is not confined to instances of deliberate abandonment. Sanders mentioned deliberate abandonment as but one example of conduct that disentitled a petitioner to relief. Sanders cited a passage in 372 U. S., at which applied the principle of inexcusable neglect, and noted that this principle also governs in the abuse-of-the-writ context, Sanders v. United 373 U. S., As Sanders' reference to Townsend demonstrates, as many Courts of Appeals recognize, see, e. g., 80 F. 2d, (case below); ; ; and as McCleskey concedes, Brief for Petitioner 3-40, 45-48, a petitioner may abuse the writ by failing to raise a claim through inexcusable neglect. Our recent decisions confirm that a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice. See, e. g., U. S., at ; 05-206. See also 28 U.S. C. 2244(b) (recognizing that a petitioner 40 can abuse the writ in a fashion that does not constitute deliberate abandonment). The inexcusable neglect standard demands more from a petitioner than the standard of deliberate abandonment. But we have not given the former term the content necessary to guide district courts in the ordered consideration of allegedly abusive habeas corpus petitions. For reasons we explain below, a review of our habeas corpus precedents leads us to decide that the same standard used to determine whether to excuse state procedural defaults should govern the determination of inexcusable neglect in the abuse-of-the-writ context. The prohibition against adjudication in federal habeas corpus of claims defaulted in state court is similar in purpose and desigu to the abuse-of-the-writ doctrine, which in general prohibits subsequent habeas consideration of claims not raised, and thus defaulted, in the first federal habeas proceeding. The terms "abuse of the writ" and "inexcusable neglect," on the one hand, and "procedural default," on the other, imply a background norm of procedural regularity binding on the petitioner. This explains the presumption against habeas adjudication both of claims defaulted in state court and of claims defaulted in the first round of federal habeas. A federal habeas court's power to excuse these types of defaulted claims derives from the court's equitable discretio See ; Sanders v. United 373 U. S., In habeas, equity recognizes that "a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." For these reasons, both the abuse-of-the-writ doctrine and our procedural default jurisprudence concentrate on a petitioner's acts to determine whether he has a legitimate excuse for failing to raise a claim at the appropriate time. The doctrines of procedural default and abuse of the writ implicate nearly identical concerns flowing from the significant 41 costs of federal habeas corpus review. To begin with, the writ strikes at finality. One of the law's very objects is the finality of its judgments. Neither innocence nor just punishment can be vindicated until the final judgment is know "Without finality, the criminal law is deprived of much of its deterrent effect." 48 U.S. 288, 30 And when a habeas petitioner succeeds in obtaining a new trial, the "`erosion of memory' and `dispersion of witnesses' that occur with the passage of time," prejudice the government and diminish the chances of a reliable criminal adjudicatio Though may have cast doubt upon these propositions, since Fay we have taken care in our habeas corpus decisions to reconfirm the importance of finality. See, e. g., at 308-30; ; ; Finality has special importance in the context of a federal attack on a state convictio at ; Reexamination of state convictions on federal habeas "frustrate[s] `both the ' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.'" at (quoting ). Our federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of a State to pass laws means little if the State cannot enforce them. Habeas review extracts further costs. Federal collateral litigation places a heavy burden on scarce federal judicial resources, and threatens the capacity of the system to resolve primary disputes. (173) Finally, habeas corpus review may give litigants incentives to withhold claims for manipulative purposes and may establish disincentives to 42 present claims when evidence is fresh. ; 433 U. S., at 8. Far more severe are the disruptions when a claim is presented for the first time in a second or subsequent federal habeas petitio If "[c]ollateral review of a conviction extends the ordeal of trial for both society and the accused," at 126-, the ordeal worsens during subsequent collateral proceedings. Perpetual disrespect for the finality of convictions disparages the entire criminal justice system. "A procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude implies a lack of confidence about the possibilities of justice that cannot but war with the effectiveness of underlying substantive commands. There comes a point where a procedural system which leaves matters perpetually open no longer reflects humane concern but merely anxiety and a desire for immobility." Bator, -453 If reexamination of a conviction in the first round of federal habeas stretches resources, examination of new claims raised in a second or subsequent petition spreads them thinner still. These later petitions deplete the resources needed for federal litigants in the first instance, including litigants commencing their first federal habeas actio The phenomenon calls to mind Justice Jackson's admonition that "[i]t must prejudice the occasional meritorious application to be buried in a flood of worthless ones." And if reexamination of convictions in the first round of habeas offends federalism and comity, the offense increases when a State must defend its conviction in a second or subsequent habeas proceeding on grounds not even raised in the first petitio The federal writ of habeas corpus overrides all these considerations, essential as they are to the rule of law, when a petitioner raises a meritorious constitutional claim in a 43 proper manner in a habeas petitio Our procedural default jurisprudence and abuse-of-the-writ jurisprudence help define this dimension of procedural regularity. Both doctrines impose on petitioners a burden of reasonable compliance with procedures designed to discourage baseless claims and to keep the system open for valid ones; both recognize the law's interest in finality; and both invoke equitable principles to define the court's discretion to excuse pleading and procedural requirements for petitioners who could not comply with them in the exercise of reasonable care and diligence. It is true that a habeas court's concern to honor state procedural default rules rests in part on respect for the integrity of procedures "employed by a coordinate jurisdiction within the federal system," and that such respect is not implicated when a petitioner defaults a claim by failing to raise it in the first round of federal habeas review. Nonetheless, the doctrines of procedural default and abuse of the writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have the opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State's interest in the finality of its criminal judgments. We conclude from the unity of structure and purpose in the jurisprudence of state procedural defaults and abuse of the writ that the standard for excusing a failure to raise a claim at the appropriate time should be the same in both contexts. We have held that a procedural default will be excused upon a showing of cause and prejudice. We now hold that the same standard applies to determine if there has been an abuse of the writ through inexcusable neglect. In procedural default cases, the cause standard requires the petitioner to show that "some objective factor external to the defense impeded counsel's efforts" to raise the claim in state court. Objective 44 factors that constitute cause include "`interference by officials'" that makes compliance with the State's procedural rule impracticable, and "a showing that the factual or legal basis for a claim was not reasonably available to counsel." In addition, constitutionally "[i]neffective assistance of counsel is cause." Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default. Once the petitioner has established cause, he must show "`actual prejudice' resulting from the errors of which he complains." United v. Frady, Federal courts retain the authority to issue the writ of habeas corpus in a further, narrow class of cases despite a petitioner's failure to show cause for a procedural default. These are extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime. We have described this class of cases as implicating a fundamental miscarriage of justice. The cause and prejudice analysis we have adopted for cases of procedural default applies to an abuse-of-the-writ inquiry in the following manner. When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the The government satisfies this burden if, with clarity and particularity, it notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the The burden to disprove abuse then becomes petitioner's. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner's opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. Application of the cause and prejudice standard in the abuse-of-the-writ context does not mitigate the force of 48 U.S. 288 which prohibits, with certain exceptions, the retroactive application of new law to claims raised in federal habeas. Nor does it imply that there is a constitutional right to counsel in federal habeas corpus. See Although the cause and prejudice standard differs from some of the language in it is consistent with Cuddy, Salinger, Wong Doo, and Sanders, as well as our modern abuse-of-the-writ decisions, including Antone, Woodard, and Delo. In addition, the exception to cause for fundamental miscarriages of justice gives meaningful content to the otherwise unexplained "ends of justice" inquiry mandated by Sanders. Sanders drew the phrase "ends of justice" from the 148 version of 2244. 28 U.S. C. 2244 (164 ed.) (judge need not entertain subsequent application if he is satisfied that "the ends of justice will not be served by such inquiry"). Sanders v. United 373 U. S., -17. Although the 166 revision to the habeas statute eliminated any reference to an "ends of justice" inquiry, a plurality of the Court in held that this inquiry remained appropriate, and required federal courts to entertain successive petitions when a petitioner supplements a constitutional claim with a "colorable showing of factual innocence." The miscarriage of justice exception to cause serves as "an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty," 428 U. S., at 42-43, 31, guaranteeing that the ends of justice will be served in full. 46 Considerations of certainty and stability in our discharge of the judicial function support adoption of the cause and prejudice standard in the abuse-of-the-writ context. Well defined in the case law, the standard will be familiar to federal courts. Its application clarifies the imprecise contours of the term "inexcusable neglect." The standard is an objective one, and can be applied in a manner that comports with the threshold nature of the abuse-of-the-writ inquiry. See 334 U. S., 87 Finally, the standard provides "a sound and workable means of channeling the discretion of federal habeas courts." 477 U. S., at 47. "[I]t is important, in order to preclude individualized enforcement of the Constitution in different parts of the Nation, to lay down as specifically as the nature of the problem permits the standards or directions that should govern the District Judges in the disposition of applications for habeas corpus by prisoners under sentence of State Courts." -502 The cause and prejudice standard should curtail the abusive petitions that in recent years have threatened to undermine the integrity of the habeas corpus process. "Federal courts should not continue to tolerate even in capital cases this type of abuse of the writ of habeas corpus." 464 U. S., at 3. The writ of habeas corpus is one of the centerpieces of our liberties. "But the writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly administration of justice and therefore weaken the forces of authority that are essential for civilizatio" Adoption of the cause and prejudice standard acknowledges the historic purpose and function of the writ in our constitutional system, and, by preventing its abuse, assures its continued efficacy. 47 We now apply these principles to the case before us. IV McCleskey based the Massiah claim in his second federal petition on the 21-page Evans document alone. Worthy's identity did not come to light until the hearing. The District Court found, based on the document's revelation of the tactics used by Evans in engaging McCleskey in conversation (such as his pretending to be Ben Wright's uncle and his claim that he was supposed to participate in the robbery), that the document established an ab initio relationship between Evans and the authorities. It relied on the finding and on Worthy's later testimony to conclude that the State committed a Massiah violatio This ruling on the merits cannot come before us or any federal court if it is premised on a claim that constitutes an abuse of the We must consider, therefore, the preliminary question whether McCleskey had cause for failing to raise the Massiah claim in his first federal petitio The District Court found that neither the 21-page document nor Worthy were known or discoverable before filing the first federal petitio Relying on these findings, McCleskey argues that his failure to raise the Massiah claim in the first petition should be excused. For reasons set forth below, we disagree. That McCleskey did not possess, or could not reasonably have obtained, certain evidence fails to establish cause if other known or discoverable evidence could have supported the claim in any event. "[Clause requires a showing of some external impediment preventing counsel from constructing or raising the claim." 477 U. S., at 42 For cause to exist, the external impediment, whether it be government interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim. See (cause if "interference by officials made compliance 48 impracticable"); Abuse-of-the-writ doctrine examines petitioner's conduct: The question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process, see 28 U.S. C. 2254 Rule 6 (Discovery); Rule 7 (Expansion of Record); Rule 8 (Evidentiary Hearing). The requirement of cause in the abuse-of-the-writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petitio If what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim. In applying these principles, we turn first to the 21-page signed statement. It is essential at the outset to distinguish between two issues: (1) Whether petitioner knew about or could have discovered the 21-page document; and (2) whether he knew about or could have discovered the evidence the document recounted, namely, the jail-cell conversations. The District Court's error lies in its conflation of the two inquiries, an error petitioner would have us perpetuate here. The 21-page document unavailable to McCleskey at the time of the first petition does not establish that McCleskey had cause for failing to raise the Massiah claim at the outset.[] Based on testimony and questioning at trial, McCleskey 4 knew that he had confessed the murder during jail-cell conversations with Evans, knew that Evans claimed to be a relative of Ben Wright during the conversations, and knew that Evans told the police about the conversations. Knowledge of these facts alone would put McCleskey on notice to pursue the Massiah claim in his first federal habeas petition as he had done in the first state habeas petitio But there was more. The District Court's finding that the 21-page document established an ab initio relationship between Evans and the authorities rested in its entirety on conversations in which McCleskey himself participated. 500 Though at trial McCleskey denied the inculpatory conversations, his current arguments presuppose them. Quite apart from the inequity in McCleskey's reliance on that which he earlier denied under oath, the more fundamental point remains that because McCleskey participated in the conversations reported by Evans, he knew everything in the document that the District Court relied upon to establish the ab initio connection between Evans and the police. McCleskey has had at least constructive knowledge all along of the facts he now claims to have learned only from the 21-page document. The unavailability of the document did not prevent McCleskey from raising the Massiah claim in the first federal petition and is not cause for his failure to do so. And of course, McCleskey cannot contend that his false representations at trial constitute cause for the omission of a claim from the first federal petitio The District Court's determination that jailer Worthy's identity and testimony could not have been known prior to the first federal petition does not alter our conclusio It must be remembered that the 21-page statement was the only new evidence McCleskey had when he filed the Massiah claim in the second federal petition in 187. Under McCleskey's own theory, nothing was known about Worthy even the If McCleskey did not need to know about Worthy and his testimony to press the Massiah claim in the second petition, neither did he need to know about him to assert it in the first. Ignorance about Worthy did not prevent McCleskey from raising the Massiah claim in the first federal petition and will not excuse his failure to do so. Though this reasoning suffices to show the irrelevance of the District Court's finding concerning Worthy, the whole question illustrates the rationale for requiring a prompt investigation and the full pursuit of habeas claims in the first petitio At the time of the first federal petition, written logs and records with prison staff names and assignments existed. By the time of the second federal petition officials had 501 destroyed the records pursuant to normal retention schedules. Worthy's inconsistent and confused testimony in this case demonstrates the obvious proposition that factfinding processes are impaired when delayed. Had McCleskey presented this claim in the first federal habeas proceeding when official records were available, he could have identified the relevant officers and cell assignment sheets. The critical facts for the Massiah claim, including the reason for Evans' placement in the cell adjacent to McCleskey's and the precise conversation that each officer had with Evans before he was put there, likely would have been reconstructed with greater precision than now can be achieved. By failing to raise the Massiah claim in 181, McCleskey foreclosed the procedures best suited for disclosure of the facts needed for a reliable determinatio McCleskey nonetheless seeks to hold the State responsible for his omission of the Massiah claim in the first petitio His current strategy is to allege that the State engaged in wrongful conduct in withholding the 21-page document. This argument need not detain us long. When all is said and done, the issue is not presented in the case, despite all the emphasis upon it in McCleskey's brief and oral argument. The Atlanta police turned over the 21-page document upon request in 187. The District Court found no misrepresentation or wrongful conduct by the State in failing to hand over the document earlier, and our discussion of the evidence in the record concerning the existence of the statement, see as well as the fact that at least four courts have considered and rejected petitioner's Brady claim, belies McCleskey's characterization of the case. And as we have taken care to explain, the document is not critical to McCleskey's notice of a Massiah claim anyway. Petitioner's reliance on the procedural default discussion in is misplaced. In Amadeo the Court mentioned that government concealment of evidence could be cause for a procedural default if it "was 502 the reason for the failure of a petitioner's lawyers to raise the jury challenge in the trial court." 22. This case differs from Amadeo in two crucial respects. First, there is no finding that the State concealed evidence. And second, even if the State intentionally concealed the 21-page document, the concealment would not establish cause here because, in light of McCleskey's knowledge of the information in the document, any initial concealment would not have prevented him from raising the claim in the first federal petitio As McCleskey lacks cause for failing to raise the Massiah claim in the first federal petition, we need not consider whether he would be prejudiced by his inability to raise the alleged Massiah violation at this late date. See 477 U. S., at 44 We do address whether the Court should nonetheless exercise its equitable discretion to correct a miscarriage of justice. That narrow exception is of no avail to McCleskey. The Massiah violation, if it be one, resulted in the admission at trial of truthful inculpatory evidence which did not affect the reliability of the guilt determinatio The very statement McCleskey now seeks to embrace confirms his guilt. As the District Court observed: "After having read [the Evans statement], the court has concluded that nobody short of William Faulkner could have contrived that statement, and as a consequence finds the testimony of Offie Evans absolutely to be true, and the court states on the record that it entertains absolutely no doubt as to the guilt of Mr. McCleskey." 4 Tr. 4. We agree with this conclusio McCleskey cannot demonstrate that the alleged Massiah violation caused the conviction of an innocent perso at 46. The history of the proceedings in this case, and the burden upon the State in defending against allegations made for the 503 first time in federal court some nine years after the trial, reveal the necessity for the abuse-of-the-writ doctrine. The cause and prejudice standard we adopt today leaves ample room for consideration of constitutional errors in a first federal habeas petition and in a later petition under appropriate circumstances. Petitioner has not satisfied this standard for excusing the omission of the Massiah claim from his first petitio The judgment of the Court of Appeals is Affirmed. APPENDIX TO OPINION OF THE COURT Petitioner's Claims for Relief at Various Stages of the Litigation 1. Direct Appeal. On direct appeal, McCleskey raised the following claims: (1) the death penalty was administered in a discriminatory fashion because of prosecutorial discretion; (2) the prosecutor conducted an illegal postindictment lineup; (3) the trial court erred in admitting at trial the statement McCleskey made to the police; (4) the trial court erred in allowing Evans to testify about McCleskey's jail-house confession; (5) the prosecutor failed to disclose certain impeachment evidence; and (6) the trial court erred in admitting evidence of McCleskey's prior criminal acts. -114, -151 2. First State Habeas Corpus Petitio McCleskey's first state habeas petition alleged the following constitutional violations: (1) the Georgia death penalty is administered arbitrarily, capriciously, and whimsically; (2) Georgia officials imposed McCleskey's capital sentence pursuant to a pattern and practice of discrimination on the basis of race, sex, and poverty; (3) the death penalty lacks theoretical or factual justification and fails to serve any rational interest; (4) McCleskey's death sentence is cruel and unusual punishment in light of all mitigating factors; (5) McCleskey received inadequate notice and opportunity to be heard; (6) the jury did not constitute a fair cross section of the community; (7) the jury was biased 504 in favor of the prosecution; (8) the trial court improperly excused two jurors who were opposed to the death penalty; () McCleskey's postarrest statement should have been excluded because it was obtained after an allegedly illegal arrest; (10) the postarrest statement was extracted involuntarily; (11) the State failed to disclose an "arrangement" with one of its key witnesses, Evans; (12) the State deliberately withheld a statement made by McCleskey to Evans; (13) the trial court erred in failing to grant McCleskey funds to employ experts in aid of his defense; (14) three witnesses for the State witnessed a highly suggestive lineup involving McCleskey prior to trial; (15) the trial court's jury instructions concerning intent impermissibly shifted the burden of persuasion to McCleskey; (16) the prosecution impermissibly referred to the appellate process during the sentencing phase; (17) the trial court improperly admitted evidence of other crimes for which McCleskey had not been convicted; (18) the trial court's instructions concerning evidence of McCleskey's other bad acts was overbroad; (1) the appellate review procedures of Georgia denied McCleskey effective assistance of counsel, a fair hearing, and the basic tools of an adequate defense; (20) the means by which the death penalty is administered inflicts wanton and unnecessary torture; (21) McCleskey was denied effective assistance of counsel in numerous contexts; (22) introduction of statements petitioner made to Evans were elicited in a situation created to induce McCleskey to make incriminating statements; and (23) the evidence was insufficient to convict McCleskey of capital murder. Petition, HC No. 40, 2 Tr., Exh. H. 3. First Federal Habeas Corpus Petitio McCleskey raised the following claims in his first federal habeas petition: (1) the Georgia death penalty discriminated on the basis of race; (2) the State failed to disclose an "understanding" with Evans; (3) the trial court's instructions to the jury impermissibly shifted the burden to McCleskey; (4) the prosecutor improperly referred to the appellate process at the sentencing 505 phase; (5) the trial court impermissibly refused to grant McCleskey funds to employ experts in aid of his defense; (6) the trial court's instructions concerning evidence of McCleskey's other bad acts was overbroad; (7) the trial court's instructions gave the jury too much discretion to consider nonstatutory aggravating circumstances; (8) the trial court improperly admitted evidence of other crimes for which McCleskey had not been convicted; () three witnesses for the State witnessed a highly suggestive lineup involving McCleskey prior to trial; (10) McCleskey's postarrest statement should have been excluded because it was extracted involuntarily; (11) the trial court impermissibly excluded two jurors who were opposed to the death penalty; (12) the death penalty lacks theoretical or factual justification and fails to serve any rational interest; (13) the State deliberately withheld a statement made by McCleskey to Evans; (14) the evidence was insufficient to convict McCleskey of capital murder; (15) McCleskey's counsel failed to investigate the State's evidence adequately; (16) McCleskey's counsel failed to raise certain objections or make certain motions at trial; (17) McCleskey's counsel failed to undertake an independent investigation of possible mitigating circumstances prior to trial; and (18) after trial, McCleskey's counsel failed to review and correct the judge's sentence report. 4. Second State Habeas Petitio In his second state habeas petition, McCleskey alleged the following claims: (1) the prosecutor systematically excluded blacks from the jury; (2) the State of Georgia imposed the death penalty against McCleskey in a racially discriminatory manner; (3) the State failed to disclose its agreement with Evans; (4) the trial court impermissibly refused to grant McCleskey funds to employ experts in aid of his defense; and (5) the prosecutor improperly referred to the appellate process at the sentencing phase. Petition, 2 Tr., Exh. G. 5. Second Federal Habeas Corpus Petitio In his second federal habeas petition, McCleskey alleged the following claims: (1) Evans' testimony concerning his conversation with McCleskey was inadmissible because Evans acted as a state informant in a situation created to induce McCleskey to make incriminating statements; (2) the State failed to correct the misleading testimony of Evans; (3) the State failed to disclose "an arrangement" with Evans; (4) the prosecutor improperly referred to the appellate process at the sentencing phase; (5) the State systematically excluded blacks from McCleskey's jury; (6) the death penalty was imposed on McCleskey pursuant to a pattern and practice of racial discrimination by Georgia officials against black defendants; and (7) the trial court impermissibly refused to grant McCleskey funds to employ experts in aid of his defense. Federal Habeas Petition, 1 Tr., Exh. 1.
Justice Ginsburg	dissenting	false	Sandin v. Conner	1995-06-19T00:00:00	null	https://www.courtlistener.com/opinion/117957/sandin-v-conner/	https://www.courtlistener.com/api/rest/v3/clusters/117957/	1,995	1994-080	1	5	4	Respondent DeMont Conner is a prisoner in a maximumsecurity Hawaii prison. After Conner reacted angrily to a strip search, a misconduct report charged him with obstructing the performance of a correctional officer's duties, using abusive language when talking to a staff member, and harassing a staff member. Conner received notice of the charges and had an opportunity, personally, to answer them. However, the disciplinary committee denied his request to call as witnesses staff members he said would attest to his innocence. Conner contested the misconduct charges, but, according to the report of the disciplinary committee, he admitted his hesitation to follow orders and his use of profanity during the search. Based on Conner's statement to the committee, and on written statements submitted by the officer who conducted the search and his supervisor, the committee found Conner guilty of all charges. Sentenced to 30 days in the prison's segregation unit, Conner pursued an administrative appeal, which ultimately resulted in reversal of the obstruction conviction. Unlike the Court, I conclude that Conner had a liberty interest, protected by the Fourteenth Amendment's Due Process Clause, in avoiding the disciplinary confinement he endured. As Justice Breyer details, Conner's prison punishment effected a severe alteration in the conditions of his incarceration. See post, at 494. Disciplinary confinement 489 as punishment for "high misconduct" not only deprives prisoners of privileges for protracted periods; unlike administrative segregation and protective custody, disciplinary confinement also stigmatizes them and diminishes parole prospects. Those immediate and lingering consequences should suffice to qualify such confinement as liberty depriving for purposes of Due Process Clause protection. See Meachum v. Fano, 427 U.S. 215, 234-235 (1976) (Stevens, J., dissenting).[1] I see the Due Process Clause itself, not Hawaii's prison code, as the wellspring of the protection due Conner. Deriving protected liberty interests from mandatory language in local prison codes would make of the fundamental right something more in certain States, something less in others. Liberty that may vary from Ossining, New York, to San Quentin, California, does not resemble the "Liberty" enshrined among "unalienable Rights" with which all persons are "endowed by their Creator." Declaration of Independence; see Meachum, 427 U. S., at 230 (Stevens, J., dissenting) ("[T]he Due Process Clause protects [the unalienable liberty recognized in the Declaration of Independence] rather 490 than the particular rights or privileges conferred by specific laws or regulations.").[2] Deriving the prisoner's due process right from the code for his prison, moreover, yields this practical anomaly: a State that scarcely attempts to control the behavior of its prison guards may, for that very laxity, escape constitutional accountability; a State that tightly cabins the discretion of its prison workers may, for that attentiveness, become vulnerable to constitutional claims. An incentive for ruleless prison management disserves the State's penological goals and jeopardizes the welfare of prisoners. To fit the liberty recognized in our fundamental instrument of government, the process due by reason of the Constitution similarly should not depend on the particularities of the local prison's code. Rather, the basic, universal requirements are notice of the acts of misconduct prison officials say the inmate committed, and an opportunity to respond to the charges before a trustworthy decisionmaker. See generally Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1278-1281 (1975) (an unbiased tribunal, notice of the proposed government action and the grounds asserted for it, and an opportunity to present reasons why the proposed action should not be taken are fundamental; additional safeguards depend on the importance of the private interest, the utility of the particular safeguards, and the burden of affording them). 491 For the reasons Justice Breyer cogently presents, see post, at 504, a return of this case to the District Court would be unavoidable if it were recognized that Conner was deprived of liberty within the meaning of the Due Process Clause. But upon such a return, a renewed motion for summary judgment would be in order, for the record, as currently composed, does not show that Conner was denied any procedural protection warranted in his case. In particular, a call for witnesses is properly refused when the projected testimony is not relevant to the matter in controversy. See Wolff v. McDonnell, 418 U.S. 539, 566 (1974) (justifications for a prison tribunal's refusing to hear witnesses are "irrelevance, lack of necessity, [and] the hazards [to institutional safety or correctional goals] presented in individual cases"). Unless Conner were to demonstrate, in face of the disciplinary committee's stated reliance on his own admissions, that an issue of material fact is genuinely in controversy, see Fed. Rules Civ. Proc. 56(c), (e), his due process claim would fail. * * Because I conclude that Conner was deprived of liberty within the meaning of the Due Process Clause, I dissent from the judgment of the Court. I would return the case for a precisely focused determination whether Conner received the process that was indeed due.	Respondent DeMont Conner is a prisoner in a maximumsecurity Hawaii prison. After Conner reacted angrily to a strip search, a misconduct report charged him with obstructing the performance of a correctional officer's duties, using abusive language when talking to a staff member, and harassing a staff member. Conner received notice of the charges and had an opportunity, personally, to answer them. However, the disciplinary committee denied his request to call as witnesses staff members he said would attest to his innocence. Conner contested the misconduct charges, but, according to the report of the disciplinary committee, he admitted his hesitation to follow orders and his use of profanity during the search. Based on Conner's statement to the committee, and on written statements submitted by the officer who conducted the search and his supervisor, the committee found Conner guilty of all charges. Sentenced to 30 days in the prison's segregation unit, Conner pursued an administrative appeal, which ultimately resulted in reversal of the obstruction conviction. Unlike the Court, I conclude that Conner had a liberty interest, protected by the Fourteenth Amendment's Due Process Clause, in avoiding the disciplinary confinement he endured. As Justice Breyer details, Conner's prison punishment effected a severe alteration in the conditions of his incarceration. See post, at 494. Disciplinary confinement 489 as punishment for "high misconduct" not only deprives prisoners of privileges for protracted periods; unlike administrative segregation and protective custody, disciplinary confinement also stigmatizes them and diminishes parole prospects. Those immediate and lingering consequences should suffice to qualify such confinement as liberty depriving for purposes of Due Process Clause protection. See[1] I see the Due Process Clause itself, not Hawaii's prison code, as the wellspring of the protection due Conner. Deriving protected liberty interests from mandatory language in local prison codes would make of the fundamental right something more in certain States, something less in others. Liberty that may vary from Ossining, New York, to San Quentin, California, does not resemble the "Liberty" enshrined among "unalienable Rights" with which all persons are "endowed by their Creator." Declaration of Independence; see ("[T]he Due Process Clause protects [the unalienable liberty recognized in the Declaration of Independence] rather 490 than the particular rights or privileges conferred by specific laws or regulations.").[2] Deriving the prisoner's due process right from the code for his prison, moreover, yields this practical anomaly: a State that scarcely attempts to control the behavior of its prison guards may, for that very laxity, escape constitutional accountability; a State that tightly cabins the discretion of its prison workers may, for that attentiveness, become vulnerable to constitutional claims. An incentive for ruleless prison management disserves the State's penological goals and jeopardizes the welfare of prisoners. To fit the liberty recognized in our fundamental instrument of government, the process due by reason of the Constitution similarly should not depend on the particularities of the local prison's code. Rather, the basic, universal requirements are notice of the acts of misconduct prison officials say the inmate committed, and an opportunity to respond to the charges before a trustworthy decisionmaker. See generally Friendly, "Some Kind of Hearing," (an unbiased tribunal, notice of the proposed government action and the grounds asserted for it, and an opportunity to present reasons why the proposed action should not be taken are fundamental; additional safeguards depend on the importance of the private interest, the utility of the particular safeguards, and the burden of affording them). 491 For the reasons Justice Breyer cogently presents, see post, at 504, a return of this case to the District Court would be unavoidable if it were recognized that Conner was deprived of liberty within the meaning of the Due Process Clause. But upon such a return, a renewed motion for summary judgment would be in order, for the record, as currently composed, does not show that Conner was denied any procedural protection warranted in his case. In particular, a call for witnesses is properly refused when the projected testimony is not relevant to the matter in controversy. See Unless Conner were to demonstrate, in face of the disciplinary committee's stated reliance on his own admissions, that an issue of material fact is genuinely in controversy, see Fed. Rules Civ. Proc. 56(c), (e), his due process claim would fail. * * Because I conclude that Conner was deprived of liberty within the meaning of the Due Process Clause, I dissent from the judgment of the Court. I would return the case for a precisely focused determination whether Conner received the process that was indeed due.
Justice O'Connor	majority	false	Bradshaw v. Stumpf	2005-06-13T00:00:00	null	https://www.courtlistener.com/opinion/799973/bradshaw-v-stumpf/	https://www.courtlistener.com/api/rest/v3/clusters/799973/	2,005	2004-058	1	9	0	This case concerns respondent John David Stumpf's conviction and death sentence for the murder of Mary Jane Stout. In adjudicating Stumpf's petition for a writ of habeas corpus, the United States Court of Appeals for the Sixth Circuit granted him relief on two grounds: that his guilty plea was not knowing, voluntary, and intelligent, and that his conviction and sentence could not stand because the State, in a later trial of Stumpf's accomplice, pursued a theory of the case inconsistent with the theory it had advanced 178 in Stumpf's case. We granted certiorari to review both holdings. 543 U.S. 1042 (2005). I On May 14, 1984, Stumpf and two other men, Clyde Daniel Wesley and Norman Leroy Edmonds, were traveling in Edmonds' car along Interstate 70 through Guernsey County, Ohio. Needing money for gas, the men stopped the car along the highway. While Edmonds waited in the car, Stumpf and Wesley walked to the home of Norman and Mary Jane Stout, about 100 yards away. Stumpf and Wesley, each concealing a gun, talked their way into the home by telling the Stouts they needed to use the phone. Their real object, however, was robbery: Once inside, Stumpf held the Stouts at gunpoint, while Wesley ransacked the house. When Mr. Stout moved toward Stumpf, Stumpf shot him twice in the head, causing Mr. Stout to black out. After he regained consciousness, Mr. Stout heard two male voices coming from another room, and then four gunshots the shots that killed his wife. Edmonds was arrested shortly afterward, and his statements led the police to issue arrest warrants for Stumpf and Wesley. Stumpf, who surrendered to the police, at first denied any knowledge of the crimes. After he was told that Mr. Stout had survived, however, Stumpf admitted to participating in the robbery and to shooting Mr. Stumpf. But he claimed not to have shot Mrs. Stout, and he has maintained that position ever since. The proceedings against Stumpf occurred while Wesley, who had been arrested in Texas, was still resisting extradition to Ohio. Stumpf was indicted for aggravated murder, attempted aggravated murder, aggravated robbery, and two counts of grand theft. With respect to the aggravated murder charge, the indictment listed four statutory "specifications" three of them aggravating circumstances making Stumpf eligible for the death penalty. See App. 117-118; 179 Ohio Rev. Code Ann. § 2929.03 (Anderson 1982).[] The case was assigned to a three-judge panel in the Court of Common Pleas. Rather than proceed to trial, however, Stumpf and the State worked out a plea agreement: Stumpf would plead guilty to aggravated murder and attempted aggravated murder, and the State would drop most of the other charges; with respect to the aggravated murder charge, Stumpf would plead guilty to one of the three capital specifications, with the State dropping the other two. The plea was accepted after a colloquy with the presiding judge, and after a hearing in which the panel satisfied itself as to the factual basis for the plea. Because the capital specification to which Stumpf pleaded guilty left him eligible for the death penalty, a contested penalty hearing was held before the same three-judge panel. Stumpf's mitigation case was based in part on his difficult childhood, limited education, dependable work history, youth, and lack of prior serious offenses. Stumpf's principal argument, however, was that he had participated in the plot only at the urging and under the influence of Wesley, that it was Wesley who had fired the fatal shots at Mrs. Stout, and that Stumpf's assertedly minor role in the murder counseled against the death sentence. See § 2929.04(B)(6) (directing the sentencer to consider as a potential mitigating circumstance, "[i]f the offender was a participant in the offense but not the principal offender, the degree of the offender's participation in the offense"). The State, on the other hand, argued that Stumpf had indeed shot Mrs. Stout. Still, while the prosecutor claimed Stumpf's allegedly primary role in the shooting as a special reason to reject Stumpf's mitigation argument, the prosecutor also noted that Ohio law did not restrict the death penalty to those who commit murder by their own hands an accomplice to murder could also receive 180 the death penalty, so long as he acted with the specific intent to cause death. As a result, the State argued, Stumpf deserved death even if he had not personally shot Mrs. Stout, because the circumstances of the robbery provided a basis from which to infer Stumpf's intent to cause death. The three-judge panel, agreeing with the State's first contention, specifically found that Stumpf "was the principal offender" in the aggravated murder of Mrs. Stout. App. 196. Determining that the aggravating factors in Stumpf's case outweighed any mitigating factors, the panel sentenced Stumpf to death. Afterward, Wesley was successfully extradited to Ohio to stand trial. His case was tried to a jury, before the same judge who had presided over the panel overseeing Stumpf's proceedings, and with the same prosecutor. This time, however, the prosecutor had new evidence: James Eastman, Wesley's cellmate after his extradition, testified that Wesley had admitted to firing the shots that killed Mrs. Stout. The prosecutor introduced Eastman's testimony in Wesley's trial, and in his closing argument he argued for Eastman's credibility and lack of motive to lie. The prosecutor claimed that Eastman's testimony, combined with certain circumstantial evidence and with the implausibility of Wesley's own account of events, proved that Wesley was the principal offender in Mrs. Stout's murder and that Wesley therefore deserved to be put to death. One way Wesley countered this argument was by noting that the prosecutor had taken a contrary position in Stumpf's trial, and that Stumpf had already been sentenced to death for the crime. Wesley also took the stand in his own defense, and testified that Stumpf had shot Mrs. Stout. In the end, the jury sentenced Wesley to life imprisonment with the possibility of parole after 20 years. After the Wesley trial, Stumpf, whose direct appeal was still pending in the Ohio Court of Appeals, returned to the Court of Common Pleas with a motion to withdraw his guilty plea or vacate his death sentence. Stumpf argued that 181 Eastman's testimony, and the prosecution's endorsement of that testimony in Wesley's trial, cast doubt upon Stumpf's conviction and sentence. The State (represented again by the same prosecutor who had tried both Wesley's case and Stumpf's original case) disagreed. According to the prosecutor, the court's first task was to decide whether the Eastman testimony was sufficient to alter the court's prior determination that Stumpf had been the shooter. Id., at 210. Contrary to the argument he had presented in the Wesley trial, however, the prosecutor now noted that Eastman's testimony was belied by certain other evidence (ballistics evidence and Wesley's testimony in his own defense) confirming Stumpf to have been the primary shooter. In the alternative, the State noted as it had before that an aider-and-abettor theory might allow the death sentence to be imposed against Stumpf even if he had not shot Mrs. Stout. Although one judge speculated during oral argument that the court's earlier conclusion about Stumpf's principal role in the killing "may very well have had an effect upon" the prior sentencing determination, ibid., the Court of Common Pleas denied Stumpf's motion in a brief summary order without explanation. That order was appealed together with the original judgment in Stumpf's case, and the Ohio Court of Appeals affirmed, as did the Ohio Supreme Court. State v. Stumpf, 32 Ohio St. 3d 95, 512 N.E.2d 598 (1987), cert. denied, 484 U.S. 1079 (1988). After a subsequent request for state postconviction relief was denied by the state courts, Stumpf filed this federal habeas petition in the United States District Court for the Southern District of Ohio in November 1995. The District Court denied Stumpf relief, but granted permission to appeal on four claims, including the two at issue here. The United States Court of Appeals for the Sixth Circuit reversed, concluding that habeas relief was warranted on "either or both" of "two alternative grounds." Stumpf v. Mitchell, 367 F.3d 594, 596 (2004). First, the court determined that Stumpf's 182 guilty plea was invalid because it had not been entered knowingly and intelligently. More precisely, the court concluded that Stumpf had pleaded guilty to aggravated murder without understanding that specific intent to cause death was a necessary element of the charge under Ohio law. See Ohio Rev. Code Ann. §§2903.01(B) and (D). Noting that Stumpf had all along denied shooting Mrs. Stout, and considering those denials inconsistent with an informed choice to plead guilty to aggravated murder, the Court of Appeals concluded that Stumpf must have entered his plea out of ignorance. Second, the court concluded that "Stumpf's due process rights were violated by the state's deliberate action in securing convictions of both Stumpf and Wesley for the same crime, using inconsistent theories." 367 F. 3d, at 596. This violation, the court held, required setting aside "both Stumpf's plea and his sentence." Id., at 616. One member of the panel dissented. II Because Stumpf filed his habeas petition before enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we review his claims under the standards of the pre-AEDPA habeas statute. See Lindh v. Murphy, 521 U.S. 320 (1997). Moreover, because petitioner has not argued that Stumpf's habeas claims were barred as requiring announcement of a new rule, we do not apply the rule of Teague v. Lane, 489 U.S. 288 (1989), to this case. See Schiro v. Farley, 510 U.S. 222, 229 (1994); Godinez v. Moran, 509 U.S. 389, 397, n. 8 (1993). A The Court of Appeals concluded that Stumpf's plea of guilty to aggravated murder was invalid because he was not aware of the specific intent element of the chargea determination we find unsupportable. Stumpf's guilty plea would indeed be invalid if he had not been aware of the nature of the charges against him, including 183 the elements of the aggravated murder charge to which he pleaded guilty. A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, "with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970). Where a defendant pleads guilty to a crime without having been informed of the crime's elements, this standard is not met and the plea is invalid. Henderson v. Morgan, 426 U.S. 637 (1976). But the Court of Appeals erred in finding that Stumpf had not been properly informed before pleading guilty. In Stumpf's plea hearing, his attorneys represented on the record that they had explained to their client the elements of the aggravated murder charge; Stumpf himself then confirmed that this representation was true. See App. 135, 137-138. While the court taking a defendant's plea is responsible for ensuring "a record adequate for any review that may be later sought," Boykin v. Alabama, 395 U.S. 238, 244 (1969) (footnote omitted), we have never held that the judge must himself explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel. Cf. Henderson, supra, at 647 (granting relief to a defendant unaware of the elements of his crime, but distinguishing that case from others where "the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused"). Where a defendant is represented by competent counsel, the court usually may rely on that counsel's assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty. Seeking to counter this natural inference, Stumpf argues, in essence, that his choice to plead guilty to the aggravated 184 murder charge was so inconsistent with his denial of having shot the victim that he could only have pleaded guilty out of ignorance of the charge's specific intent requirement. But Stumpf's asserted inconsistency is illusory. The aggravated murder charge's intent element did not require any showing that Stumpf had himself shot Mrs. Stout. Rather, Ohio law considers aiders and abettors equally in violation of the aggravated murder statute, so long as the aiding and abetting is done with the specific intent to cause death. See In re Washington, 81 Ohio St. 3d 337, 691 N.E.2d 285 (1998); State v. Scott, 61 Ohio St. 2d 155, 165, 400 N.E.2d 375, 382 (1980). As a result, Stumpf's steadfast assertion that he had not shot Mrs. Stout would not necessarily have precluded him from admitting his specific intent under the statute. That is particularly so given the other evidence in this case. Stumpf and Wesley had gone to the Stouts' home together, carrying guns and intending to commit armed robbery. Stumpf, by his own admission, shot Mr. Stout in the head at close range. Taken together, these facts could show that Wesley and Stumpf had together agreed to kill both of the Stouts in order to leave no witnesses to the crime. And that, in turn, could make both men guilty of aggravated murder regardless of who actually killed Mrs. Stout. See ibid., Stumpf also points to aspects of the plea hearing transcript which he says show that both he and his attorneys were confused about the relevance and timing of defenses Stumpf and his attorneys had planned to make. First, at one point during the hearing, the presiding judge stated that by pleading guilty Stumpf would waive his trial rights and his right to testify in his own behalf. Stumpf's attorney answered that Stumpf "was going to respond but we have informed him that there is, after the plea, a hearing or trial relative to the underlying facts so that he is of the belief that there will be [a] presentation of evidence." App. 140. The presiding judge responded that "[o]f course in the sentencing portion of this trial you do have those rights to speak in your own 185 behalf [and] to present evidence and testimony on your own behalf." Ibid. A few moments later, there was another exchange along similar lines, after the judge asked Stumpf whether he was "in fact guilty of" the aggravated murder charge and its capital specification: "[DEFENSE COUNSEL]: ... Your Honor, the defendant has asked me to explain his answer. His answer is yes. He will recite that with obviously his understanding of his right to present evidence at a later time relative to his conduct, but he'll respond to that. "JUDGE HENDERSON: At no time am I implying that the defendant will not have the right to present evidence in [the] mitigation hearing.... And I'm going to ask that the defendant, himself, respond to the question that I asked with that understanding that he has the right to present evidence in mitigation. I'm going to ask the defendant if he is in fact guilty of the charge set forth in Count one, including specification one... ? "THE DEFENDANT: Yes, sir." Id., at 142. Reviewing this exchange, the Court of Appeals concluded that Stumpf "obviously ... was reiterating his desire to challenge the [S]tate's account of his actions"that is, to show that he did not intend to kill Mrs. Stout. 367 F. 3d, at 607. But the desire to contest the State's version of events would not necessarily entail the desire to contest the aggravated murder charge or any of its elements. Rather, Stumpf's desire to put on evidence "relative to the underlying facts" and "relative to his conduct" could equally have meant that Stumpf was eager to make his mitigation casean interpretation bolstered by the attorney's and Stumpf's approving answers after the presiding judge confirmed that the defense could put on evidence "in mitigation" and in "the sentencing" phase. While Stumpf's mitigation case was premised on the argument that Stumpf had not shot Mrs. Stout, that was 186 fully consistent with his plea of guilty to aggravated murder. See supra, at 183-184. Finally, Stumpf, like the Court of Appeals, relies on the perception that he obtained a bad bargain by his pleathat the State's dropping several nonmurder charges and two of the three capital murder specifications was a bad tradeoff for Stumpf's guilty plea. But a plea's validity may not be collaterally attacked merely because the defendant made what turned out, in retrospect, to be a poor deal. See Brady, 397 U. S., at 757; Mabry v. Johnson, 467 U.S. 504, 508 (1984). Rather, the shortcomings of the deal Stumpf obtained cast doubt on the validity of his plea only if they show either that he made the unfavorable plea on the constitutionally defective advice of counsel, see Tollett v. Henderson, 411 U.S. 258, 267 (1973), or that he could not have understood the terms of the bargain he and Ohio agreed to. Though Stumpf did bring an independent claim asserting ineffective assistance of counsel, that claim is not before us in this case. And in evaluating the validity of Stumpf's plea, we are reluctant to accord much weight to his post hoc reevaluation of the wisdom of the bargain. Stumpf pleaded guilty knowing that the State had copious evidence against him, including the testimony of Mr. Stout; the plea eliminated two of the three capital specifications the State could rely on in seeking the death penalty; and the plea allowed Stumpf to assert his acceptance of responsibility as an argument in mitigation. Under these circumstances, the plea may well have been a knowing, voluntary, and intelligent reaction to a litigation situation that was difficult, to say the least. The Court of Appeals erred in concluding that Stumpf was uninformed about the nature of the charge he pleaded guilty to, and we reverse that portion of the judgment below. B The Court of Appeals was also wrong to hold that prosecutorial inconsistencies between the Stumpf and Wesley cases 187 required voiding Stumpf's guilty plea. Stumpf's assertions of inconsistency relate entirely to the prosecutor's arguments about which of the two men, Wesley or Stumpf, shot Mrs. Stout. For the reasons given above, see supra, at 183-184, the precise identity of the triggerman was immaterial to Stumpf's conviction for aggravated murder. Moreover, Stumpf has never provided an explanation of how the prosecution's postplea use of inconsistent arguments could have affected the knowing, voluntary, and intelligent nature of his plea. The prosecutor's use of allegedly inconsistent theories may have a more direct effect on Stumpf's sentence, however, for it is at least arguable that the sentencing panel's conclusion about Stumpf's principal role in the offense was material to its sentencing determination. The opinion below leaves some ambiguity as to the overlap between how the lower court resolved Stumpf's due process challenge to his conviction, and how it resolved Stumpf's challenge to his sentence. It is not clear whether the Court of Appeals would have concluded that Stumpf was entitled to resentencing had the court not also considered the conviction invalid. Likewise, the parties' briefing to this Court, and the question on which we granted certiorari, largely focused on the lower court's determination about Stumpf's conviction. See, e. g., Pet. for Cert. ii (requesting review of Stumpf's conviction, not sentence); Reply Brief for Petitioner 3 (challenge to Court of Appeals' decision is focused on issue of conviction); Brief for Respondent 15, n. 3 ("arguments regarding Stumpf's death sentence are not before this Court"). In these circumstances, it would be premature for this Court to resolve the merits of Stumpf's sentencing claim, and we therefore express no opinion on whether the prosecutor's actions amounted to a due process violation, or whether any such violation would have been prejudicial. The Court of Appeals should have the opportunity to consider, in the first instance, the question of how Eastman's testimony and the 188 prosecutor's conduct in the Stumpf and Wesley cases relate to Stumpf's death sentence in particular. Accordingly, we vacate the portion of the judgment below relating to Stumpf's prosecutorial inconsistency claim, and we remand the case for further proceedings consistent with this opinion. It is so ordered.	This case concerns respondent John David Stumpf's conviction and death sentence for the murder of Mary Jane In adjudicating Stumpf's petition for a writ of habeas corpus, the United States Court of Appeals for the Sixth Circuit granted him relief on two grounds: that his guilty plea was not knowing, voluntary, and intelligent, and that his conviction and sentence could not stand because the State, in a later trial of Stumpf's accomplice, pursued a theory of the case inconsistent with the theory it had advanced 178 in Stumpf's case. We granted certiorari to review both holdings. I On May 14, 1984, Stumpf and two other men, Clyde Daniel Wesley and Norman Leroy Edmonds, were traveling in Edmonds' car along Interstate 70 through Guernsey County, Ohio. Needing money for gas, the men stopped the car along the highway. While Edmonds waited in the car, Stumpf and Wesley walked to the home of Norman and Mary Jane Stout, about 100 yards away. Stumpf and Wesley, each concealing a gun, talked their way into the home by telling the Stouts they needed to use the phone. Their real object, however, was robbery: Once inside, Stumpf held the Stouts at gunpoint, while Wesley ransacked the house. When Mr. Stout moved toward Stumpf, Stumpf shot him twice in the head, causing Mr. Stout to black out. After he regained consciousness, Mr. Stout heard two male voices coming from another room, and then four gunshots the shots that killed his wife. Edmonds was arrested shortly afterward, and his statements led the police to issue arrest warrants for Stumpf and Wesley. Stumpf, who surrendered to the police, at first denied any knowledge of the crimes. After he was told that Mr. Stout had survived, however, Stumpf admitted to participating in the robbery and to shooting Mr. Stumpf. But he claimed not to have shot Mrs. Stout, and he has maintained that position ever since. The proceedings against Stumpf occurred while Wesley, who had been arrested in Texas, was still resisting extradition to Ohio. Stumpf was indicted for aggravated murder, attempted aggravated murder, aggravated robbery, and two counts of grand theft. With respect to the aggravated murder charge, the indictment listed four statutory "specifications" three of them aggravating circumstances making Stumpf eligible for the death penalty. See App. 117-118; 179 (Anderson 1982).[] The case was assigned to a three-judge panel in the Court of Common Pleas. Rather than proceed to trial, however, Stumpf and the State worked out a plea agreement: Stumpf would plead guilty to aggravated murder and attempted aggravated murder, and the State would drop most of the other charges; with respect to the aggravated murder charge, Stumpf would plead guilty to one of the three capital specifications, with the State dropping the other two. The plea was accepted after a colloquy with the presiding judge, and after a hearing in which the panel satisfied itself as to the factual basis for the plea. Because the capital specification to which Stumpf pleaded guilty left him eligible for the death penalty, a contested penalty hearing was held before the same three-judge panel. Stumpf's mitigation case was based in part on his difficult childhood, limited education, dependable work history, youth, and lack of prior serious offenses. Stumpf's principal argument, however, was that he had participated in the plot only at the urging and under the influence of Wesley, that it was Wesley who had fired the fatal shots at Mrs. Stout, and that Stumpf's assertedly minor role in the murder counseled against the death sentence. See 2929.04(B)(6) (directing the sentencer to consider as a potential mitigating circumstance, "[i]f the offender was a participant in the offense but not the principal offender, the degree of the offender's participation in the offense"). The State, on the other hand, argued that Stumpf had indeed shot Mrs. Still, while the prosecutor claimed Stumpf's allegedly primary role in the shooting as a special reason to reject Stumpf's mitigation argument, the prosecutor also noted that Ohio law did not restrict the death penalty to those who commit murder by their own hands an accomplice to murder could also receive 180 the death penalty, so long as he acted with the specific intent to cause death. As a result, the State argued, Stumpf deserved death even if he had not personally shot Mrs. Stout, because the circumstances of the robbery provided a basis from which to infer Stumpf's intent to cause death. The three-judge panel, agreeing with the State's first contention, specifically found that Stumpf "was the principal offender" in the aggravated murder of Mrs. App. 196. Determining that the aggravating factors in Stumpf's case outweighed any mitigating factors, the panel sentenced Stumpf to death. Afterward, Wesley was successfully extradited to Ohio to stand trial. His case was tried to a jury, before the same judge who had presided over the panel overseeing Stumpf's proceedings, and with the same prosecutor. This time, however, the prosecutor had new evidence: James Eastman, Wesley's cellmate after his extradition, testified that Wesley had admitted to firing the shots that killed Mrs. The prosecutor introduced Eastman's testimony in Wesley's trial, and in his closing argument he argued for Eastman's credibility and lack of motive to lie. The prosecutor claimed that Eastman's testimony, combined with certain circumstantial evidence and with the implausibility of Wesley's own account of events, proved that Wesley was the principal offender in Mrs. Stout's murder and that Wesley therefore deserved to be put to death. One way Wesley countered this argument was by noting that the prosecutor had taken a contrary position in Stumpf's trial, and that Stumpf had already been sentenced to death for the crime. Wesley also took the stand in his own defense, and testified that Stumpf had shot Mrs. In the end, the jury sentenced Wesley to life imprisonment with the possibility of parole after 20 years. After the Wesley trial, Stumpf, whose direct appeal was still pending in the Ohio Court of Appeals, returned to the Court of Common Pleas with a motion to withdraw his guilty plea or vacate his death sentence. Stumpf argued that 181 Eastman's testimony, and the prosecution's endorsement of that testimony in Wesley's trial, cast doubt upon Stumpf's conviction and sentence. The State (represented again by the same prosecutor who had tried both Wesley's case and Stumpf's original case) disagreed. According to the prosecutor, the court's first task was to decide whether the Eastman testimony was sufficient to alter the court's prior determination that Stumpf had been the shooter. Contrary to the argument he had presented in the Wesley trial, however, the prosecutor now noted that Eastman's testimony was belied by certain other evidence (ballistics evidence and Wesley's testimony in his own defense) confirming Stumpf to have been the primary shooter. In the alternative, the State noted as it had before that an aider-and-abettor theory might allow the death sentence to be imposed against Stumpf even if he had not shot Mrs. Although one judge speculated during oral argument that the court's earlier conclusion about Stumpf's principal role in the killing "may very well have had an effect upon" the prior sentencing determination, ibid., the Court of Common Pleas denied Stumpf's motion in a brief summary order without explanation. That order was appealed together with the original judgment in Stumpf's case, and the Ohio Court of Appeals affirmed, as did the Ohio Supreme Court. cert. denied, After a subsequent request for state postconviction relief was denied by the state courts, Stumpf filed this federal habeas petition in the United States District Court for the Southern District of Ohio in November 1995. The District Court denied Stumpf relief, but granted permission to appeal on four claims, including the two at issue here. The United States Court of Appeals for the Sixth Circuit reversed, concluding that habeas relief was warranted on "either or both" of "two alternative grounds." First, the court determined that Stumpf's 182 guilty plea was invalid because it had not been entered knowingly and intelligently. More precisely, the court concluded that Stumpf had pleaded guilty to aggravated murder without understanding that specific intent to cause death was a necessary element of the charge under Ohio law. See Ohio Rev. Code Ann. 2903.01(B) and (D). Noting that Stumpf had all along denied shooting Mrs. Stout, and considering those denials inconsistent with an informed choice to plead guilty to aggravated murder, the Court of Appeals concluded that Stumpf must have entered his plea out of ignorance. Second, the court concluded that "Stumpf's due process rights were violated by the state's deliberate action in securing convictions of both Stumpf and Wesley for the same crime, using inconsistent theories." 367 F. 3d, at This violation, the court held, required setting aside "both Stumpf's plea and his sentence." One member of the panel dissented. II Because Stumpf filed his habeas petition before enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we review his claims under the standards of the pre-AEDPA habeas statute. See Moreover, because petitioner has not argued that Stumpf's habeas claims were barred as requiring announcement of a new rule, we do not apply the rule of to this case. See ; A The Court of Appeals concluded that Stumpf's plea of guilty to aggravated murder was invalid because he was not aware of the specific intent element of the chargea determination we find unsupportable. Stumpf's guilty plea would indeed be invalid if he had not been aware of the nature of the charges against him, including 183 the elements of the aggravated murder charge to which he pleaded guilty. A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, "with sufficient awareness of the relevant circumstances and likely consequences." Where a defendant pleads guilty to a crime without having been informed of the crime's elements, this standard is not met and the plea is invalid. But the Court of Appeals erred in finding that Stumpf had not been properly informed before pleading guilty. In Stumpf's plea hearing, his attorneys represented on the record that they had explained to their client the elements of the aggravated murder charge; Stumpf himself then confirmed that this representation was true. See App. 135, 137-138. While the court taking a defendant's plea is responsible for ensuring "a record adequate for any review that may be later sought," we have never held that the judge must himself explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel. Cf. Henderson, (granting relief to a defendant unaware of the elements of his crime, but distinguishing that case from others where "the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused"). Where a defendant is represented by competent counsel, the court usually may rely on that counsel's assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty. Seeking to counter this natural inference, Stumpf argues, in essence, that his choice to plead guilty to the aggravated 184 murder charge was so inconsistent with his denial of having shot the victim that he could only have pleaded guilty out of ignorance of the charge's specific intent requirement. But Stumpf's asserted inconsistency is illusory. The aggravated murder charge's intent element did not require any showing that Stumpf had himself shot Mrs. Rather, Ohio law considers aiders and abettors equally in violation of the aggravated murder statute, so long as the aiding and abetting is done with the specific intent to cause death. See In re Washington, ; As a result, Stumpf's steadfast assertion that he had not shot Mrs. Stout would not necessarily have precluded him from admitting his specific intent under the statute. That is particularly so given the other evidence in this case. Stumpf and Wesley had gone to the Stouts' home together, carrying guns and intending to commit armed robbery. Stumpf, by his own admission, shot Mr. Stout in the head at close range. Taken together, these facts could show that Wesley and Stumpf had together agreed to kill both of the Stouts in order to leave no witnesses to the crime. And that, in turn, could make both men guilty of aggravated murder regardless of who actually killed Mrs. See ibid., Stumpf also points to aspects of the plea hearing transcript which he says show that both he and his attorneys were confused about the relevance and timing of defenses Stumpf and his attorneys had planned to make. First, at one point during the hearing, the presiding judge stated that by pleading guilty Stumpf would waive his trial rights and his right to testify in his own behalf. Stumpf's attorney answered that Stumpf "was going to respond but we have informed him that there is, after the plea, a hearing or trial relative to the underlying facts so that he is of the belief that there will be [a] presentation of evidence." App. 140. The presiding judge responded that "[o]f course in the sentencing portion of this trial you do have those rights to speak in your own 185 behalf [and] to present evidence and testimony on your own behalf." A few moments later, there was another exchange along similar lines, after the judge asked Stumpf whether he was "in fact guilty of" the aggravated murder charge and its capital specification: "[DEFENSE COUNSEL]: Your Honor, the defendant has asked me to explain his answer. His answer is yes. He will recite that with obviously his understanding of his right to present evidence at a later time relative to his conduct, but he'll respond to that. "JUDGE HENDERSON: At no time am I implying that the defendant will not have the right to present evidence in [the] mitigation hearing. And I'm going to ask that the defendant, himself, respond to the question that I asked with that understanding that he has the right to present evidence in mitigation. I'm going to ask the defendant if he is in fact guilty of the charge set forth in Count one, including specification one. ? "THE DEFENDANT: Yes, sir." Reviewing this exchange, the Court of Appeals concluded that Stumpf "obviously was reiterating his desire to challenge the [S]tate's account of his actions"that is, to show that he did not intend to kill Mrs. But the desire to contest the State's version of events would not necessarily entail the desire to contest the aggravated murder charge or any of its elements. Rather, Stumpf's desire to put on evidence "relative to the underlying facts" and "relative to his conduct" could equally have meant that Stumpf was eager to make his mitigation casean interpretation bolstered by the attorney's and Stumpf's approving answers after the presiding judge confirmed that the defense could put on evidence "in mitigation" and in "the sentencing" phase. While Stumpf's mitigation case was premised on the argument that Stumpf had not shot Mrs. Stout, that was 186 fully consistent with his plea of guilty to aggravated murder. See Finally, Stumpf, like the Court of Appeals, relies on the perception that he obtained a bad bargain by his pleathat the State's dropping several nonmurder charges and two of the three capital murder specifications was a bad tradeoff for Stumpf's guilty plea. But a plea's validity may not be collaterally attacked merely because the defendant made what turned out, in retrospect, to be a poor deal. See ; Rather, the shortcomings of the deal Stumpf obtained cast doubt on the validity of his plea only if they show either that he made the unfavorable plea on the constitutionally defective advice of counsel, see or that he could not have understood the terms of the bargain he and Ohio agreed to. Though Stumpf did bring an independent claim asserting ineffective assistance of counsel, that claim is not before us in this case. And in evaluating the validity of Stumpf's plea, we are reluctant to accord much weight to his post hoc reevaluation of the wisdom of the bargain. Stumpf pleaded guilty knowing that the State had copious evidence against him, including the testimony of Mr. Stout; the plea eliminated two of the three capital specifications the State could rely on in seeking the death penalty; and the plea allowed Stumpf to assert his acceptance of responsibility as an argument in mitigation. Under these circumstances, the plea may well have been a knowing, voluntary, and intelligent reaction to a litigation situation that was difficult, to say the least. The Court of Appeals erred in concluding that Stumpf was uninformed about the nature of the charge he pleaded guilty to, and we reverse that portion of the judgment below. B The Court of Appeals was also wrong to hold that prosecutorial inconsistencies between the Stumpf and Wesley cases 187 required voiding Stumpf's guilty plea. Stumpf's assertions of inconsistency relate entirely to the prosecutor's arguments about which of the two men, Wesley or Stumpf, shot Mrs. For the reasons given above, see the precise identity of the triggerman was immaterial to Stumpf's conviction for aggravated murder. Moreover, Stumpf has never provided an explanation of how the prosecution's postplea use of inconsistent arguments could have affected the knowing, voluntary, and intelligent nature of his plea. The prosecutor's use of allegedly inconsistent theories may have a more direct effect on Stumpf's sentence, however, for it is at least arguable that the sentencing panel's conclusion about Stumpf's principal role in the offense was material to its sentencing determination. The opinion below leaves some ambiguity as to the overlap between how the lower court resolved Stumpf's due process challenge to his conviction, and how it resolved Stumpf's challenge to his sentence. It is not clear whether the Court of Appeals would have concluded that Stumpf was entitled to resentencing had the court not also considered the conviction invalid. Likewise, the parties' briefing to this Court, and the question on which we granted certiorari, largely focused on the lower court's determination about Stumpf's conviction. See, e. g., Pet. for Cert. ii (requesting review of Stumpf's conviction, not sentence); Reply Brief for Petitioner 3 (challenge to Court of Appeals' decision is focused on issue of conviction); Brief for Respondent 15, n. 3 ("arguments regarding Stumpf's death sentence are not before this Court"). In these circumstances, it would be premature for this Court to resolve the merits of Stumpf's sentencing claim, and we therefore express no opinion on whether the prosecutor's actions amounted to a due process violation, or whether any such violation would have been prejudicial. The Court of Appeals should have the opportunity to consider, in the first instance, the question of how Eastman's testimony and the 188 prosecutor's conduct in the Stumpf and Wesley cases relate to Stumpf's death sentence in particular. Accordingly, we vacate the portion of the judgment below relating to Stumpf's prosecutorial inconsistency claim, and we remand the case for further proceedings consistent with this opinion. It is so ordered.
Justice Breyer	majority	false	County of Maui v. Hawaii Wildlife Fund	2020-04-23T00:00:00	null	https://www.courtlistener.com/opinion/4747780/county-of-maui-v-hawaii-wildlife-fund/	https://www.courtlistener.com/api/rest/v3/clusters/4747780/	2,020	null	null	null	null	The Clean Water Act forbids the “addition” of any pollu- tant from a “point source” to “navigable waters” without the appropriate permit from the Environmental Protection Agency (EPA). Federal Water Pollution Control Act, §§301(a), 502(12)(A), as amended by the Federal Water Pol- lution Control Act Amendments of 1972 (Clean Water Act) §2, 86 Stat. 844, 886, 33 U.S. C. §§1311(a), 1362(12)(A). The question presented here is whether the Act “requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source,” here, “groundwater.” Pet. for Cert. i. Suppose, for example, that a sewage treatment plant discharges polluted water into the ground where it mixes with groundwater, which, in turn, flows into a navigable river, or perhaps the ocean. Must the plant’s owner seek an EPA permit before emitting the pollutant? We conclude that the statutory provisions at issue require a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters. 2 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court I A Congress’ purpose as reflected in the language of the Clean Water Act is to “ ‘restore and maintain the . . . integ- rity of the Nation’s waters,’ ” §101(a), 86 Stat. 816. Prior to the Act, Federal and State Governments regulated water pollution in large part by setting water quality standards. See EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 202–203 (1976). The Act restructures federal regulation by insisting that a person wishing to dis- charge any pollution into navigable waters first obtain EPA’s permission to do so. See id., at 203–205; Milwaukee v. Illinois, 451 U.S. 304, 310–311 (1981). The Act’s provisions use specific definitional language to achieve this result. First, the Act defines “pollutant” broadly, including in its definition, for example, any solid waste, incinerator residue, “ ‘heat,’ ” “ ‘discarded equip- ment,’ ” or sand (among many other things). §502(6), 86 Stat. 886. Second, the Act defines a “point source” as “ ‘any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged,’ ” including, for example, any “ ‘container,’ ” “ ‘pipe, ditch, channel, tunnel, conduit,’ ” or “ ‘well.’ ” §502(14), id., at 887. Third, it defines the term “discharge of a pollutant” as “ ‘any addition of any pollutant to navigable waters [including navigable streams, rivers, the ocean, or coastal waters] from any point source.’ ” §502(12), id., at 886. The Act then sets forth a statutory provision that, using these terms, broadly states that (with certain exceptions) “ ‘the discharge of any pollutant by any person’ ” without an appropriate permit “ ‘shall be unlawful.’ ” §301, id., at 844. The question here, as we have said, is whether, or how, this statutory language applies to a pollutant that reaches nav- igable waters only after it leaves a “point source” and then travels through groundwater before reaching navigable wa- ters. In such an instance, has there been a “discharge of a Cite as: 590 U. S. ____ (2020) 3 Opinion of the Court pollutant,” that is, has there been “any addition of any pol- lutant to navigable waters from any point source? ” B The petitioner, the County of Maui, operates a wastewater reclamation facility on the island of Maui, Ha- waii. The facility collects sewage from the surrounding area, partially treats it, and pumps the treated water through four wells hundreds of feet underground. This ef- fluent, amounting to about 4 million gallons each day, then travels a further half mile or so, through groundwater, to the ocean. In 2012, several environmental groups, the respondents here, brought this citizens’ Clean Water Act lawsuit against Maui. See §505(a), id., at 888. They claimed that Maui was “discharg[ing]” a “pollutant” to “navigable waters,” namely, the Pacific Ocean, without the permit required by the Clean Water Act. The District Court, relying in part upon a de- tailed study of the discharges, found that a considerable amount of effluent from the wells ended up in the ocean (a navigable water). It wrote that, because the “path to the ocean is clearly ascertainable,” the discharge from Maui’s wells into the nearby groundwater was “functionally one into navigable water.” 24 F. Supp. 3d 980, 998 (Haw. 2014). And it granted summary judgment in favor of the environ- mental groups. See id., at 1005. The Ninth Circuit affirmed the District Court, but it de- scribed the relevant statutory standard somewhat differ- ently. The appeals court wrote that a permit is required when “the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable wa- ter.” 886 F.3d 737, 749 (2018) (emphasis added). The court left “for another day the task of determining when, if ever, the connection between a point source and a navigable wa- ter is too tenuous to support liability . . . .” Ibid. 4 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court Maui petitioned for certiorari. In light of the differences in the standards adopted by the different Courts of Appeals, we granted the petition. Compare, e.g., 886 F.3d, at 749 (“fairly traceable”), with Upstate Forever v. Kinder Morgan Energy Partners, L. P., 887 F.3d 637, 651 (CA4 2018) (“di- rect hydrological connection”), and Kentucky Waterways Al- liance v. Kentucky Util. Co., 905 F.3d 925, 932–938 (CA6 2018) (discharges through groundwater are excluded from the Act’s permitting requirements). II The linguistic question here concerns the statutory word “from.” Is pollution that reaches navigable waters only through groundwater pollution that is “from” a point source, as the statute uses the word? The word “from” is broad in scope, but context often imposes limitations. “Fin- land,” for example, is often not the right kind of answer to the question, “Where have you come from?” even if long ago you were born there. The parties here disagree dramatically about the scope of the word “from” in the present context. The environmental groups, the respondents, basically adopt the Ninth Circuit’s view—that the permitting requirement applies so long as the pollutant is “fairly traceable” to a point source even if it traveled long and far (through groundwater) before it reached navigable waters. They add that the release from the point source must be “a proximate cause of the addition of pollutants to navigable waters.” Brief for Respondents 20. Maui, on the other hand, argues that the statute creates a “bright-line test.” Brief for Petitioner 27–28. A point source or series of point sources must be “the means of de- livering pollutants to navigable waters.” Id., at 28. They add that, if “at least one nonpoint source (e.g., unconfined rainwater runoff or groundwater)” lies “between the point Cite as: 590 U. S. ____ (2020) 5 Opinion of the Court source and the navigable water,” then the permit require- ment “does not apply.” Id., at 54. A pollutant is “from” a point source only if a point source is the last “conveyance” that conducted the pollutant to navigable waters. The Solicitor General, as amicus curiae, supports Maui, at least in respect to groundwater. Reiterating the position taken in a recent EPA “Interpretive Statement,” see 84 Fed. Reg. 16810 (2019), he argues that, given the Act’s structure and history, “a release of pollutants to groundwater is not subject to” the Act’s permitting requirement “even if the pollutants subsequently migrate to jurisdictional surface waters,” such as the ocean. Brief for United States as Ami- cus Curiae 12 (capitalization omitted). We agree that statutory context limits the reach of the statutory phrase “from any point source” to a range of cir- cumstances narrower than that which the Ninth Circuit’s interpretation suggests. At the same time, it is signifi- cantly broader than the total exclusion of all discharges through groundwater described by Maui and the Solicitor General. III Virtually all water, polluted or not, eventually makes its way to navigable water. This is just as true for groundwa- ter. See generally 2 Van Nostrand’s Scientific Encyclopedia 2600 (10th ed. 2008) (defining “Hydrology”). Given the power of modern science, the Ninth Circuit’s limitation, “fairly traceable,” may well allow EPA to assert permitting authority over the release of pollutants that reach naviga- ble waters many years after their release (say, from a well or pipe or compost heap) and in highly diluted forms. See, e.g., Brief for Aquatic Scientists et al. as Amici Curiae 13–28. The respondents suggest that the standard can be nar- rowed by adding a “proximate cause” requirement. That is, to fall within the permitting provision, the discharge from 6 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court a point source must “proximately cause” the pollutants’ eventual addition to navigable waters. But the term “prox- imate cause” derives from general tort law, and it takes on its specific content based primarily on “policy” considera- tions. See CSX Transp., Inc. v. McBride, 564 U.S. 685, 701 (2011) (plurality opinion). In the context of water pollution, we do not see how it significantly narrows the statute be- yond the words “fairly traceable” themselves. Our view is that Congress did not intend the point source- permitting requirement to provide EPA with such broad au- thority as the Ninth Circuit’s narrow focus on traceability would allow. First, to interpret the word “from” in this lit- eral way would require a permit in surprising, even bizarre, circumstances, such as for pollutants carried to navigable waters on a bird’s feathers, or, to mention more mundane instances, the 100-year migration of pollutants through 250 miles of groundwater to a river. Second, and perhaps most important, the structure of the statute indicates that, as to groundwater pollution and non- point source pollution, Congress intended to leave substan- tial responsibility and autonomy to the States. See, e.g., §101(b), 86 Stat. 816 (stating Congress’ purpose in this re- gard). Much water pollution does not come from a readily identifiable source. See 3 Van Nostrand’s Scientific Ency- clopedia, at 5801 (defining “Water Pollution”). Rainwater, for example, can carry pollutants (say, as might otherwise collect on a roadway); it can pollute groundwater, and pol- lution collected by unchanneled rainwater runoff is not or- dinarily considered point source pollution. Over many dec- ades, and with federal encouragement, the States have developed methods of regulating nonpoint source pollution through water quality standards, and otherwise. See, e.g., Nonpoint Source Program, Annual Report (California) 6 (2016–2017) (discussing state timberland management pro- grams to address addition of sediment-pollutants to navi- Cite as: 590 U. S. ____ (2020) 7 Opinion of the Court gable waters); id., at 10–11 (discussing regulations of vine- yards to control water pollution); id. at 17–19 (discussing livestock grazing management, including utilization ratios and time restrictions); Nonpoint Source Management Pro- gram, Annual Report (Maine) 8–10 (2018) (discussing in- stallation of livestock fencing and planting of vegetation to reduce nonpoint source pollution); Oklahoma’s Nonpoint Source Management Program, Annual Report 5, 14 (2017) (discussing program to encourage voluntary no-till farming to reduce sediment pollution). The Act envisions EPA’s role in managing nonpoint source pollution and groundwater pollution as limited to studying the issue, sharing information with and collecting information from the States, and issuing monetary grants. See §§105, 208, 86 Stat. 825, 839; see also Water Quality Act of 1987, §316, 101 Stat. 52 (establishing Nonpoint Source Management Programs). Although the Act grants EPA specific authority to regulate certain point source pol- lution (it can also delegate some of this authority to the States acting under EPA supervision, see §402(b), 86 Stat. 880), these permitting provisions refer to “point sources” and “navigable waters,” and say nothing at all about non- point source regulation or groundwater regulation. We must doubt that Congress intended to give EPA the author- ity to apply the word “from” in a way that could interfere as seriously with States’ traditional regulatory authority—au- thority the Act preserves and promotes—as the Ninth Cir- cuit’s “fairly traceable” test would. Third, those who look to legislative history to help inter- pret a statute will find that this Act’s history strongly supports our conclusion that the permitting provision does not extend so far. Fifty years ago, when Congress was consid- ering the bills that became the Clean Water Act, William Ruckelshaus, the first EPA Administrator, asked Congress to grant EPA authority over “ground waters” to “assure that 8 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court we have control over the water table . . . so we can . . . main- tai[n] a control over all the sources of pollution, be they dis- charged directly into any stream or through the ground wa- ter table.” Water Pollution Control Legislation–1971 (Proposed Amendments to Existing Legislation): Hearings before the House Committee on Public Works, 92d Cong., 1st Sess., 230 (1971). Representative Les Aspin similarly pointed out that there were “conspicuou[s ]” references to groundwater in all sections of the bill except the permitting section at issue here. Water Pollution Control Legislation– 1971: Hearings before the House Committee on Public Works on H. R. 11896 and H. R. 11895, 92d Cong., 1st Sess., 727 (1972). The Senate Committee on Public Works “recog- nize[d] the essential link between ground and surface wa- ters.” S. Rep. No. 92–414, p. 73 (1971). But Congress did not accept these requests for general EPA authority over groundwater. It rejected Representa- tive Aspin’s amendment that would have extended the per- mitting provision to groundwater. Instead, Congress pro- vided a set of more specific groundwater-related measures such as those requiring States to maintain “affirmative con- trols over the injection or placement in wells” of “any pollu- tants that may affect ground water.” Ibid. These specific state-related programs were, in the words of the Senate Public Works Committee, “designed to protect ground wa- ters and eliminate the use of deep well disposal as an un- controlled alternative to toxic and pollution control.” Ibid. The upshot is that Congress was fully aware of the need to address groundwater pollution, but it satisfied that need through a variety of state-specific controls. Congress left general groundwater regulatory authority to the States; its failure to include groundwater in the general EPA permit- ting provision was deliberate. Finally, longstanding regulatory practice undermines the Ninth Circuit’s broad interpretation of the statute. EPA it- self for many years has applied the permitting provision to Cite as: 590 U. S. ____ (2020) 9 Opinion of the Court pollution discharges from point sources that reached navi- gable waters only after traveling through groundwater. See, e.g., United States Steel Corp. v. Train, 556 F.2d 822, 832 (CA7 1977) (permit for “deep waste-injection well” on the shore of navigable waters). But, in doing so, EPA fol- lowed a narrower interpretation than that of the Ninth Cir- cuit. See, e.g., In re Bethlehem Steel Corp., 2 E. A. D. 715, 718 (EAB 1989) (Act’s permitting requirement applies only to injection wells “that inject into ground water with a phys- ically and temporally direct hydrologic connection to sur- face water”). EPA has opposed applying the Act’s permit- ting requirements to discharges that reach groundwater only after lengthy periods. See McClellan Ecological Seep- age Situation (MESS) v. Cheney, 763 F. Supp. 431, 437 (ED Cal. 1989) (United States argued that permitting provisions do not apply when it would take “literally dozens, and per- haps hundreds, of years for any pollutants” to reach navi- gable waters); Greater Yellowstone Coalition v. Larson, 641 F. Supp. 2d 1120, 1139 (Idaho 2009) (same in respect to in- stances where it would take “between 60 and 420 years” for pollutants to travel “one to four miles” through groundwa- ter before reaching navigable waters). Indeed, in this very case (prior to its recent Interpretive Statement, see infra, at 12–13), EPA asked the Ninth Circuit to apply a more lim- ited “direct hydrological connection” test. See Brief for United States as Amicus Curiae in No. 15–17447 (CA9), pp. 13–20. The Ninth Circuit did not accept this suggestion. We do not defer here to EPA’s interpretation of the stat- ute embodied in this practice. Indeed, EPA itself has changed its mind about the meaning of the statutory provi- sion. See infra, at 12–14. But this history, by showing that a comparatively narrow view of the statute is administra- tively workable, offers some additional support for the view that Congress did not intend as broad a delegation of regu- latory authority as the Ninth Circuit test would allow. As we have said, the specific meaning of the word “from” 10 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court necessarily draws its meaning from context. The apparent breadth of the Ninth Circuit’s “fairly traceable” approach is inconsistent with the context we have just described. IV A Maui and the Solicitor General argue that the statute’s permitting requirement does not apply if a pollutant, hav- ing emerged from a “point source,” must travel through any amount of groundwater before reaching navigable waters. That interpretation is too narrow, for it would risk serious interference with EPA’s ability to regulate ordinary point source discharges. Consider a pipe that spews pollution directly into coastal waters. There is an “addition of ” a “pollutant to navigable waters from [a] point source.” Hence, a permit is required. But Maui and the Government read the permitting require- ment not to apply if there is any amount of groundwater between the end of the pipe and the edge of the navigable water. See Tr. of Oral Arg. 5–6, 24–25. If that is the correct interpretation of the statute, then why could not the pipe’s owner, seeking to avoid the permit requirement, simply move the pipe back, perhaps only a few yards, so that the pollution must travel through at least some groundwater before reaching the sea? Cf. Brief for State of Maryland et al. as Amici Curiae 9, n. 4. We do not see how Congress could have intended to create such a large and obvious loop- hole in one of the key regulatory innovations of the Clean Water Act. Cf. California ex rel. State Water Resources Con- trol Bd., 426 U.S., at 202–204 (basic purpose of Clean Wa- ter Act is to regulate pollution at its source); The Emily, 9 Wheat. 381, 390 (1824) (rejecting an interpretation that would facilitate “evasion of the law”). B Maui argues that the statute’s language requires its Cite as: 590 U. S. ____ (2020) 11 Opinion of the Court reading. That language requires a permit for a “discharge.” A “discharge” is “any addition” of a pollutant to navigable waters “from any point source.” And a “point source” is “any discernible, confined and discrete conveyance” (such as a pipe, ditch, well, etc.). Reading “from” and “conveyance” to- gether, Maui argues that the statutory meaning of “from any point source” is not about where the pollution origi- nated, but about how it got there. Under what Maui calls the means-of-delivery test, a permit is required only if a point source itself ultimately delivers the pollutant to nav- igable waters. Under this view, if the pollutant must travel through groundwater to reach navigable waters, then it is the groundwater, not the pipe, that is the conveyance. Congress sometimes adopts less common meanings of common words, but this esoteric definition of “from,” as con- noting a means, does not remotely fit in this context. The statute couples the word “from” with the word “to”—strong evidence that Congress was referring to a destination (“nav- igable waters”) and an origin (“any point source”). Further underscoring that Congress intended this every day mean- ing is that the object of “from” is a “point source”—a source, again, connoting an origin. That Maui’s proffered interpre- tation would also create a serious loophole in the permitting regime also indicates it is an unreasonable one. C The Solicitor General agrees that, as a general matter, the permitting requirement applies to at least some addi- tions of pollutants to navigable waters that come indirectly from point sources. See Brief for United States as Amicus Curiae 33–35. But the Solicitor General argues that the proper interpretation of the statute is the one reflected in EPA’s recent Interpretive Statement. After receiving more than 50,000 comments from the public, and after the Ninth Circuit released its opinion in this case, EPA wrote that 12 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court “the best, if not the only, reading” of the statutory provi- sions is that “all releases of pollutants to groundwater” are excluded from the scope of the permitting program, “even where pollutants are conveyed to jurisdictional surface wa- ters via groundwater.” 84 Fed. Reg. 16810, 16811. Neither the Solicitor General nor any party has asked us to give what the Court has referred to as Chevron deference to EPA’s interpretation of the statute. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). Even so, we often pay particular attention to an agency’s views in light of the agency’s expertise in a given area, its knowledge gained through practical experi- ence, and its familiarity with the interpretive demands of administrative need. See United States v. Mead Corp., 533 U.S. 218, 234–235 (2001); Skidmore v. Swift & Co., 323 U.S. 134, 139–140 (1944). But here, as we have explained, to follow EPA’s reading would open a loophole allowing easy evasion of the statutory provision’s basic purposes. Such an interpretation is neither persuasive nor reasonable. EPA correctly points out that Congress did not require a permit for all discharges to groundwater; rather, Congress authorized study and funding related to groundwater pol- lution. See Brief for United States as Amicus Curiae 15– 19. But there is quite a gap between “not all” and “none.” The statutory text itself alludes to no exception for dis- charges through groundwater. These separate provisions for study and funding that EPA points to would be a “sur- prisingly indirect route” to convey “an important and easily expressed message”—that the permit requirement simply does not apply if the pollutants travel through groundwa- ter. Landgraf v. USI Film Products, 511 U.S. 244, 262 (1994). In truth, the most these provisions show is that Congress thought that the problem of groundwater pollu- tion, as distinct from navigable water pollution, would pri- marily be addressed by the States or perhaps by other fed- eral statutes. Cite as: 590 U. S. ____ (2020) 13 Opinion of the Court EPA’s new interpretation is also difficult to reconcile with the statute’s reference to “any addition” of a pollutant to navigable waters. Cf. Milwaukee, 451 U.S., at 318 (“Every point source discharge is prohibited unless covered by a per- mit” (footnote omitted)). It is difficult to reconcile EPA’s in- terpretation with the statute’s inclusion of “wells” in the definition of “point source,” for wells most ordinarily would discharge pollutants through groundwater. And it is diffi- cult to reconcile EPA’s interpretation with the statutory provisions that allow EPA to delegate its permitting au- thority to a State only if the State (among other things) pro- vides “ ‘adequate authority’ ” to “ ‘control the disposal of pol- lutants into wells.’ ” §402(b), 86 Stat. 881. What need would there be for such a proviso if the federal permitting program the State replaces did not include such discharges (from wells through groundwater) in the first place? In short, EPA’s oblique argument about the statute’s ref- erences to groundwater cannot overcome the statute’s structure, its purposes, or the text of the provisions that ac- tually govern. D Perhaps, as the two dissents suggest, the language could be narrowed to similar effect by reading the statute to refer only to the pollutant’s immediate origin. See post, at 2–3 (opinion of THOMAS, J.); post, at 8 (opinion of ALITO, J.). But there is no linguistic basis here to so limit the statute in that way. Again, whether that is the correct reading turns on context. JUSTICE THOMAS insists that in the case of a discharge through groundwater, the pollutants are added “from the groundwater.” Post, at 2. Indeed, but that does not mean they are not also “from the point source.” Ibid. When John comes to the hotel, John might have come from the train station, from Baltimore, from Europe, from any two of those three places, or from all three. A sign that asks all persons who arrive from Baltimore to speak to the desk 14 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court clerk includes those who took a taxi from the train station. There is nothing unnatural about such a construction. As the plurality correctly noted in Rapanos v. United States, 547 U.S. 715 (2006), the statute here does not say “directly” from or “immediately” from. Id., at 743 (opinion of Scalia, J.). Indeed, the expansive language of the provision—any addition from any point source—strongly suggests its scope is not so limited. JUSTICE ALITO appears to believe that there are only two possible ways to read “from”: as referring either to the im- mediate source, or else to the original source. Post, at 5, 8. Because he agrees that the statute cannot reasonably be read always to reach the original source, he concludes the statute must refer only to the immediate origin. But as the foregoing example illustrates, context may indicate that “from” includes an intermediate stop—Baltimore, not Eu- rope or the train station. JUSTICE THOMAS relies on the word “addition,” but we fail to see how that word limits the statute to discharges di- rectly to navigable waters. Ordinary language abounds in counter examples: A recipe might instruct to “add the drip- pings from the meat to the gravy”; that instruction does not become incomprehensible, or even peculiar, simply because the drippings will have first collected in a pan or on a cut- ting board. And while it would be an unusual phrasing (as statutory phrasings often are), we do not see how the rec- ipe’s meaning would transform if it instead said to “add the drippings to the gravy from the meat.” To take another ex- ample: If Timmy is told to “add water to the bath from the well” he will know just what it means—even though he will have to use a bucket to complete the task. And although JUSTICE THOMAS resists the inevitable im- plications of his reading of the statute, post, at 5–6, that reading would create the same loopholes as those offered by the petitioner and the Government, and more. It would nec- essarily exclude a pipe that drains onto the beach next to Cite as: 590 U. S. ____ (2020) 15 Opinion of the Court navigable waters, even if the pollutants then flow to those waters. It also seems to exclude a pipe that hangs out over the water and adds pollutants to the air, through which the pollutants fall to navigable waters. The absurdity of such an interpretation is obvious enough. We therefore reject this reading as well: Like Maui’s and the Government’s, it is inconsistent with the statutory text and simultaneously creates a massive loophole in the per- mitting scheme that Congress established. E For the reasons set forth in Part III and in this Part, we conclude that, in light of the statute’s language, structure, and purposes, the interpretations offered by the parties, the Government, and the dissents are too extreme. V Over the years, courts and EPA have tried to find general language that will reflect a middle ground between these extremes. The statute’s words reflect Congress’ basic aim to provide federal regulation of identifiable sources of pol- lutants entering navigable waters without undermining the States’ longstanding regulatory authority over land and groundwater. We hold that the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge. We think this phrase best captures, in broad terms, those circumstances in which Congress in- tended to require a federal permit. That is, an addition falls within the statutory requirement that it be “from any point source” when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means. Time and distance are obviously important. Where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater 16 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court (or over the beach), the permitting requirement clearly ap- plies. If the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply. The object in a given scenario will be to advance, in a manner consistent with the statute’s language, the statu- tory purposes that Congress sought to achieve. As we have said (repeatedly), the word “from” seeks a “point source” origin, and context imposes natural limits as to when a point source can properly be considered the origin of pollu- tion that travels through groundwater. That context in- cludes the need, reflected in the statute, to preserve state regulation of groundwater and other nonpoint sources of pollution. Whether pollutants that arrive at navigable wa- ters after traveling through groundwater are “from” a point source depends upon how similar to (or different from) the particular discharge is to a direct discharge. The difficulty with this approach, we recognize, is that it does not, on its own, clearly explain how to deal with middle instances. But there are too many potentially relevant fac- tors applicable to factually different cases for this Court now to use more specific language. Consider, for example, just some of the factors that may prove relevant (depending upon the circumstances of a particular case): (1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pol- lution (at that point) has maintained its specific identity. Time and distance will be the most important factors in most cases, but not necessarily every case. Cite as: 590 U. S. ____ (2020) 17 Opinion of the Court At the same time, courts can provide guidance through decisions in individual cases. The Circuits have tried to do so, often using general language somewhat similar to the language we have used. And the traditional common-law method, making decisions that provide examples that in turn lead to ever more refined principles, is sometimes use- ful, even in an era of statutes. The underlying statutory objectives also provide guid- ance. Decisions should not create serious risks either of un- dermining state regulation of groundwater or of creating loopholes that undermine the statute’s basic federal regu- latory objectives. EPA, too, can provide administrative guidance (within statutory boundaries) in numerous ways, including through, for example, grants of individual permits, promul- gation of general permits, or the development of general rules. Indeed, over the years, EPA and the States have of- ten considered the Act’s application to discharges through groundwater. Both Maui and the Government object that to subject dis- charges to navigable waters through groundwater to the statute’s permitting requirements, as our interpretation will sometimes do, would vastly expand the scope of the statute, perhaps requiring permits for each of the 650,000 wells like petitioner’s or for each of the over 20 million sep- tic systems used in many Americans’ homes. Brief for Pe- titioner 44–48; Brief for United States as Amicus Curiae 24–25. Cf. Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324 (2014). But EPA has applied the permitting provision to some (but not to all) discharges through groundwater for over 30 years. See supra, at 8–9. In that time we have seen no evidence of unmanageable expansion. EPA and the States also have tools to mitigate those harms, should they arise, by (for example) developing general permits for recurring situations or by issuing permits based on best practices 18 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court where appropriate. See, e.g., 40 CFR §122.44(k) (2019). Judges, too, can mitigate any hardship or injustice when they apply the statute’s penalty provision. That provision vests courts with broad discretion to set a penalty that takes account of many factors, including “any good-faith ef- forts to comply” with the Act, the “seriousness of the viola- tion,” the “economic impact of the penalty on the violator,” and “such other matters as justice may require.” See 33 U.S. C. §1319(d). We expect that district judges will exer- cise their discretion mindful, as we are, of the complexities inherent to the context of indirect discharges through groundwater, so as to calibrate the Act’s penalties when, for example, a party could reasonably have thought that a per- mit was not required. In sum, we recognize that a more absolute position, such as the means-of-delivery test or that of the Government or that of the Ninth Circuit, may be easier to administer. But, as we have said, those positions have consequences that are inconsistent with major congressional objectives, as re- vealed by the statute’s language, structure, and purposes. We consequently understand the permitting requirement, §301, as applicable to a discharge (from a point source) of pollutants that reach navigable waters after traveling through groundwater if that discharge is the functional equivalent of a direct discharge from the point source into navigable waters. VI Because the Ninth Circuit applied a different standard, we vacate its judgment and remand the case for further pro- ceedings consistent with this opinion. It is so ordered. Cite as: 590 U. S. ____ (2020) 1 KAVANAUGH, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 18–260 _________________ COUNTY OF MAUI, HAWAII, PETITIONER v. HAWAII WILDLIFE FUND, ET AL.	The Clean Water Act forbids the “addition” of any pollu- tant from a “point source” to “navigable waters” without the appropriate permit from the Environmental Protection Agency (EPA). Federal Water Pollution Control Act, 502(12)(A), as amended by the Federal Water Pol- lution Control Act Amendments of 1972 (Clean Water Act) 886, 33 U.S. C. 1362(12)(A). The question presented here is whether the Act “requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source,” here, “groundwater.” Pet. for Cert. i. Suppose, for example, that a sewage treatment plant discharges polluted water into the ground where it mixes with groundwater, which, in turn, flows into a navigable river, or perhaps the ocean. Must the plant’s owner seek an EPA permit before emitting the pollutant? We conclude that the statutory provisions at issue require a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters. 2 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court I A Congress’ purpose as reflected in the language of the Clean Water Act is to “ ‘restore and maintain the integ- rity of the Nation’s waters,’ ” Prior to the Act, Federal and State Governments regulated water pollution in large part by setting water quality standards. See The Act restructures federal regulation by insisting that a person wishing to dis- charge any pollution into navigable waters first obtain EPA’s permission to do so. See at 203–205; v. Illinois, The Act’s provisions use specific definitional language to achieve this result. First, the Act defines “pollutant” broadly, including in its definition, for example, any solid waste, incinerator residue, “ ‘heat,’ ” “ ‘discarded equip- ment,’ ” or sand (among many other things). 86 Stat. 886. Second, the Act defines a “point source” as “ ‘any discernible, confined and discrete conveyance from which pollutants are or may be discharged,’ ” including, for example, any “ ‘container,’ ” “ ‘pipe, ditch, channel, tunnel, conduit,’ ” or “ ‘well.’ ” Third, it defines the term “discharge of a pollutant” as “ ‘any addition of any pollutant to navigable waters [including navigable streams, rivers, the ocean, or coastal waters] from any point source.’ ” The Act then sets forth a statutory provision that, using these terms, broadly states that (with certain exceptions) “ ‘the discharge of any pollutant by any person’ ” without an appropriate permit “ ‘shall be unlawful.’ ” The question here, as we have said, is whether, or how, this statutory language applies to a pollutant that reaches nav- igable waters only after it leaves a “point source” and then travels through groundwater before reaching navigable wa- ters. In such an instance, has there been a “discharge of a Cite as: 590 U. S. (2020) 3 Opinion of the Court pollutant,” that is, has there been “any addition of any pol- lutant to navigable waters from any point source? ” B The petitioner, the County of Maui, operates a wastewater reclamation facility on the island of Maui, Ha- waii. The facility collects sewage from the surrounding area, partially treats it, and pumps the treated water through four wells hundreds of feet underground. This ef- fluent, amounting to about 4 million gallons each day, then travels a further half mile or so, through groundwater, to the ocean. In 2012, several environmental groups, the respondents here, brought this citizens’ Clean Water Act lawsuit against Maui. See They claimed that Maui was “discharg[ing]” a “pollutant” to “navigable waters,” namely, the Pacific Ocean, without the permit required by the Clean Water Act. The District Court, relying in part upon a de- tailed study of the discharges, found that a considerable amount of effluent from the wells ended up in the ocean (a navigable water). It wrote that, because the “path to the ocean is clearly ascertainable,” the discharge from Maui’s wells into the nearby groundwater was “functionally one into navigable water.” And it granted summary judgment in favor of the environ- mental groups. See The Ninth Circuit affirmed the District Court, but it de- scribed the relevant statutory standard somewhat differ- ently. The appeals court wrote that a permit is required when “the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable wa- ter.” The court left “for another day the task of determining when, if ever, the connection between a point source and a navigable wa- ter is too tenuous to support liability” 4 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court Maui petitioned for certiorari. In light of the differences in the standards adopted by the different Courts of Appeals, we granted the petition. Compare, 886 F.3d, at (“fairly traceable”), with Upstate (“di- rect hydrological connection”), and Kentucky Waterways Al- 932–938 (discharges through groundwater are excluded from the Act’s permitting requirements). II The linguistic question here concerns the statutory word “from.” Is pollution that reaches navigable waters only through groundwater pollution that is “from” a point source, as the statute uses the word? The word “from” is broad in scope, but context often imposes limitations. “Fin- land,” for example, is often not the right kind of answer to the question, “Where have you come from?” even if long ago you were born there. The parties here disagree dramatically about the scope of the word “from” in the present context. The environmental groups, the respondents, basically adopt the Ninth Circuit’s view—that the permitting requirement applies so long as the pollutant is “fairly traceable” to a point source even if it traveled long and far (through groundwater) before it reached navigable waters. They add that the release from the point source must be “a proximate cause of the addition of pollutants to navigable waters.” Brief for Respondents 20. Maui, on the other hand, argues that the statute creates a “bright-line test.” Brief for Petitioner 27–28. A point source or series of point sources must be “the means of de- livering pollutants to navigable waters.” They add that, if “at least one nonpoint source (, unconfined rainwater runoff or groundwater)” lies “between the point Cite as: 590 U. S. (2020) 5 Opinion of the Court source and the navigable water,” then the permit require- ment “does not apply.” A pollutant is “from” a point source only if a point source is the last “conveyance” that conducted the pollutant to navigable waters. The Solicitor General, as amicus curiae, supports Maui, at least in respect to groundwater. Reiterating the position taken in a recent EPA “Interpretive Statement,” see 84 Fed. Reg. 16810 (2019), he argues that, given the Act’s structure and history, “a release of pollutants to groundwater is not subject to” the Act’s permitting requirement “even if the pollutants subsequently migrate to jurisdictional surface waters,” such as the ocean. Brief for United States as Ami- cus Curiae 12 (capitalization omitted). We agree that statutory context limits the reach of the statutory phrase “from any point source” to a range of cir- cumstances narrower than that which the Ninth Circuit’s interpretation suggests. At the same time, it is signifi- cantly broader than the total exclusion of all discharges through groundwater described by Maui and the Solicitor General. III Virtually all water, polluted or not, eventually makes its way to navigable water. This is just as true for groundwa- ter. See generally 2 Van Nostrand’s Scientific Encyclopedia 2600 (10th ed. 2008) (defining “Hydrology”). Given the power of modern science, the Ninth Circuit’s limitation, “fairly traceable,” may well allow EPA to assert permitting authority over the release of pollutants that reach naviga- ble waters many years after their release (say, from a well or pipe or compost heap) and in highly diluted forms. See, Brief for Aquatic Scientists et al. as Amici Curiae 13–28. The respondents suggest that the standard can be nar- rowed by adding a “proximate cause” requirement. That is, to fall within the permitting provision, the discharge from 6 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court a point source must “proximately cause” the pollutants’ eventual addition to navigable waters. But the term “prox- imate cause” derives from general tort law, and it takes on its specific content based primarily on “policy” considera- tions. See CSX Transp., (2011) (plurality opinion). In the context of water pollution, we do not see how it significantly narrows the statute be- yond the words “fairly traceable” themselves. Our view is that Congress did not intend the point source- permitting requirement to provide EPA with such broad au- thority as the Ninth Circuit’s narrow focus on traceability would allow. First, to interpret the word “from” in this lit- eral way would require a permit in surprising, even bizarre, circumstances, such as for pollutants carried to navigable waters on a bird’s feathers, or, to mention more mundane instances, the 100-year migration of pollutants through 250 miles of groundwater to a river. Second, and perhaps most important, the structure of the statute indicates that, as to groundwater pollution and non- point source pollution, Congress intended to leave substan- tial responsibility and autonomy to the States. See, (stating Congress’ purpose in this re- gard). Much water pollution does not come from a readily identifiable source. See 3 Van Nostrand’s Scientific Ency- clopedia, at 5801 (defining “Water Pollution”). Rainwater, for example, can carry pollutants (say, as might otherwise collect on a roadway); it can pollute groundwater, and pol- lution collected by unchanneled rainwater runoff is not or- dinarily considered point source pollution. Over many dec- ades, and with federal encouragement, the States have developed methods of regulating nonpoint source pollution through water quality standards, and otherwise. See, Nonpoint Source Program, Annual Report (California) 6 (2016–2017) (discussing state timberland management pro- grams to address addition of sediment-pollutants to navi- Cite as: 590 U. S. (2020) 7 Opinion of the Court gable waters); at 10–11 (discussing regulations of vine- yards to control water pollution); at 17–19 (discussing livestock grazing management, including utilization ratios and time restrictions); Nonpoint Source Management Pro- gram, Annual Report (Maine) 8–10 (discussing in- stallation of livestock fencing and planting of vegetation to reduce nonpoint source pollution); Oklahoma’s Nonpoint Source Management Program, Annual Report 5, 14 (2017) (discussing program to encourage voluntary no-till farming to reduce sediment pollution). The Act envisions EPA’s role in managing nonpoint source pollution and groundwater pollution as limited to studying the issue, sharing information with and collecting information from the States, and issuing monetary grants. See 208, 839; see also Water Quality Act of 1987, (establishing Nonpoint Source Management Programs). Although the Act grants EPA specific authority to regulate certain point source pol- lution (it can also delegate some of this authority to the States acting under EPA supervision, see 86 Stat. 880), these permitting provisions refer to “point sources” and “navigable waters,” and say nothing at all about non- point source regulation or groundwater regulation. We must doubt that Congress intended to give EPA the author- ity to apply the word “from” in a way that could interfere as seriously with States’ traditional regulatory authority—au- thority the Act preserves and promotes—as the Ninth Cir- cuit’s “fairly traceable” test would. Third, those who look to legislative history to help inter- pret a statute will find that this Act’s history strongly supports our conclusion that the permitting provision does not extend so far. Fifty years ago, when Congress was consid- ering the bills that became the Clean Water Act, William Ruckelshaus, the first EPA Administrator, asked Congress to grant EPA authority over “ground waters” to “assure that 8 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court we have control over the water table so we can main- tai[n] a control over all the sources of pollution, be they dis- charged directly into any stream or through the ground wa- ter table.” Water Pollution Control Legislation–1971 (Proposed Amendments to Existing Legislation): Hearings before the House Committee on Public Works, 92d Cong., 1st Sess., 230 (1971). Representative Les Aspin similarly pointed out that there were “conspicuou[s ]” references to groundwater in all sections of the bill except the permitting section at issue here. Water Pollution Control Legislation– 1971: Hearings before the House Committee on Public Works on H. R. 11896 and H. R. 11895, 92d Cong., 1st Sess., 727 (1972). The Senate Committee on Public Works “recog- nize[d] the essential link between ground and surface wa- ters.” S. Rep. No. 92–414, p. 73 (1971). But Congress did not accept these requests for general EPA authority over groundwater. It rejected Representa- tive Aspin’s amendment that would have extended the per- mitting provision to groundwater. Instead, Congress pro- vided a set of more specific groundwater-related measures such as those requiring States to maintain “affirmative con- trols over the injection or placement in wells” of “any pollu- tants that may affect ground water.” These specific state-related programs were, in the words of the Senate Public Works Committee, “designed to protect ground wa- ters and eliminate the use of deep well disposal as an un- controlled alternative to toxic and pollution control.” The upshot is that Congress was fully aware of the need to address groundwater pollution, but it satisfied that need through a variety of state-specific controls. Congress left general groundwater regulatory authority to the States; its failure to include groundwater in the general EPA permit- ting provision was deliberate. Finally, longstanding regulatory practice undermines the Ninth Circuit’s broad interpretation of the statute. EPA it- self for many years has applied the permitting provision to Cite as: 590 U. S. (2020) 9 Opinion of the Court pollution discharges from point sources that reached navi- gable waters only after traveling through groundwater. See, United States Steel 832 (CA7 1977) (permit for “deep waste-injection well” on the shore of navigable waters). But, in doing so, EPA fol- lowed a narrower interpretation than that of the Ninth Cir- cuit. See, In re Bethlehem Steel Corp., 2 E. A. D. 715, 718 (EAB 1989) (Act’s permitting requirement applies only to injection wells “that inject into ground water with a phys- ically and temporally direct hydrologic connection to sur- face water”). EPA has opposed applying the Act’s permit- ting requirements to discharges that reach groundwater only after lengthy periods. See McClellan Ecological Seep- age Situation (ED Cal. 1989) (United States argued that permitting provisions do not apply when it would take “literally dozens, and per- haps hundreds, of years for any pollutants” to reach navi- gable waters); Greater Yellowstone Coalition v. Larson, 641 F. Supp. 2d 1120, 1139 (Idaho 2009) (same in respect to in- stances where it would take “between 60 and 420 years” for pollutants to travel “one to four miles” through groundwa- ter before reaching navigable waters). Indeed, in this very case (prior to its recent Interpretive Statement, see infra, at 12–13), EPA asked the Ninth Circuit to apply a more lim- ited “direct hydrological connection” test. See Brief for United States as Amicus Curiae in No. 15–17447 (CA9), pp. 13–20. The Ninth Circuit did not accept this suggestion. We do not defer here to EPA’s interpretation of the stat- ute embodied in this practice. Indeed, EPA itself has changed its mind about the meaning of the statutory provi- sion. See infra, at 12–14. But this history, by showing that a comparatively narrow view of the statute is administra- tively workable, offers some additional support for the view that Congress did not intend as broad a delegation of regu- latory authority as the Ninth Circuit test would allow. As we have said, the specific meaning of the word “from” 10 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court necessarily draws its meaning from context. The apparent breadth of the Ninth Circuit’s “fairly traceable” approach is inconsistent with the context we have just described. IV A Maui and the Solicitor General argue that the statute’s permitting requirement does not apply if a pollutant, hav- ing emerged from a “point source,” must travel through any amount of groundwater before reaching navigable waters. That interpretation is too narrow, for it would risk serious interference with EPA’s ability to regulate ordinary point source discharges. Consider a pipe that spews pollution directly into coastal waters. There is an “addition of ” a “pollutant to navigable waters from [a] point source.” Hence, a permit is required. But Maui and the Government read the permitting require- ment not to apply if there is any amount of groundwater between the end of the pipe and the edge of the navigable water. See Tr. of Oral Arg. 5–6, 24–25. If that is the correct interpretation of the statute, then why could not the pipe’s owner, seeking to avoid the permit requirement, simply move the pipe back, perhaps only a few yards, so that the pollution must travel through at least some groundwater before reaching the sea? Cf. Brief for State of Maryland et al. as Amici Curiae 9, n. 4. We do not see how Congress could have intended to create such a large and obvious loop- hole in one of the key regulatory innovations of the Clean Water Act. Cf. California ex rel. State Water Resources Con- trol –204 (basic purpose of Clean Wa- ter Act is to regulate pollution at its source); The Emily, 9 Wheat. 381, 390 (1824) (rejecting an interpretation that would facilitate “evasion of the law”). B Maui argues that the statute’s language requires its Cite as: 590 U. S. (2020) 11 Opinion of the Court reading. That language requires a permit for a “discharge.” A “discharge” is “any addition” of a pollutant to navigable waters “from any point source.” And a “point source” is “any discernible, confined and discrete conveyance” (such as a pipe, ditch, well, etc.). Reading “from” and “conveyance” to- gether, Maui argues that the statutory meaning of “from any point source” is not about where the pollution origi- nated, but about how it got there. Under what Maui calls the means-of-delivery test, a permit is required only if a point source itself ultimately delivers the pollutant to nav- igable waters. Under this view, if the pollutant must travel through groundwater to reach navigable waters, then it is the groundwater, not the pipe, that is the conveyance. Congress sometimes adopts less common meanings of common words, but this esoteric definition of “from,” as con- noting a means, does not remotely fit in this context. The statute couples the word “from” with the word “to”—strong evidence that Congress was referring to a destination (“nav- igable waters”) and an origin (“any point source”). Further underscoring that Congress intended this every day mean- ing is that the object of “from” is a “point source”—a source, again, connoting an origin. That Maui’s proffered interpre- tation would also create a serious loophole in the permitting regime also indicates it is an unreasonable one. C The Solicitor General agrees that, as a general matter, the permitting requirement applies to at least some addi- tions of pollutants to navigable waters that come indirectly from point sources. See Brief for United States as Amicus Curiae 33–35. But the Solicitor General argues that the proper interpretation of the statute is the one reflected in EPA’s recent Interpretive Statement. After receiving more than 50,000 comments from the public, and after the Ninth Circuit released its opinion in this case, EPA wrote that 12 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court “the best, if not the only, reading” of the statutory provi- sions is that “all releases of pollutants to groundwater” are excluded from the scope of the permitting program, “even where pollutants are conveyed to jurisdictional surface wa- ters via groundwater.” 16811. Neither the Solicitor General nor any party has asked us to give what the Court has referred to as Chevron deference to EPA’s interpretation of the statute. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). Even so, we often pay particular attention to an agency’s views in light of the agency’s expertise in a given area, its knowledge gained through practical experi- ence, and its familiarity with the interpretive demands of administrative need. See United States v. Mead Corp., 533 U.S. 218, 234–235 (2001); Skidmore v. Swift & Co., 323 U.S. 134, 139–140 (1944). But here, as we have explained, to follow EPA’s reading would open a loophole allowing easy evasion of the statutory provision’s basic purposes. Such an interpretation is neither persuasive nor reasonable. EPA correctly points out that Congress did not require a permit for all discharges to groundwater; rather, Congress authorized study and funding related to groundwater pol- lution. See Brief for United States as Amicus Curiae 15– 19. But there is quite a gap between “not all” and “none.” The statutory text itself alludes to no exception for dis- charges through groundwater. These separate provisions for study and funding that EPA points to would be a “sur- prisingly indirect route” to convey “an important and easily expressed message”—that the permit requirement simply does not apply if the pollutants travel through groundwa- ter. (1994). In truth, the most these provisions show is that Congress thought that the problem of groundwater pollu- tion, as distinct from navigable water pollution, would pri- marily be addressed by the States or perhaps by other fed- eral statutes. Cite as: 590 U. S. (2020) 13 Opinion of the Court EPA’s new interpretation is also difficult to reconcile with the statute’s reference to “any addition” of a pollutant to navigable waters. Cf. (“Every point source discharge is prohibited unless covered by a per- mit” (footnote omitted)). It is difficult to reconcile EPA’s in- terpretation with the statute’s inclusion of “wells” in the definition of “point source,” for wells most ordinarily would discharge pollutants through groundwater. And it is diffi- cult to reconcile EPA’s interpretation with the statutory provisions that allow EPA to delegate its permitting au- thority to a State only if the State (among other things) pro- vides “ ‘adequate authority’ ” to “ ‘control the disposal of pol- lutants into wells.’ ” What need would there be for such a proviso if the federal permitting program the State replaces did not include such discharges (from wells through groundwater) in the first place? In short, EPA’s oblique argument about the statute’s ref- erences to groundwater cannot overcome the statute’s structure, its purposes, or the text of the provisions that ac- tually govern. D Perhaps, as the two dissents suggest, the language could be narrowed to similar effect by reading the statute to refer only to the pollutant’s immediate origin. See post, at 2–3 (opinion of THOMAS, J.); post, at 8 (opinion of ALITO, J.). But there is no linguistic basis here to so limit the statute in that way. Again, whether that is the correct reading turns on context. JUSTICE THOMAS insists that in the case of a discharge through groundwater, the pollutants are added “from the groundwater.” Post, at 2. Indeed, but that does not mean they are not also “from the point source.” When John comes to the hotel, John might have come from the train station, from Baltimore, from Europe, from any two of those three places, or from all three. A sign that asks all persons who arrive from Baltimore to speak to the desk 14 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court clerk includes those who took a taxi from the train station. There is nothing unnatural about such a construction. As the plurality correctly noted in the statute here does not say “directly” from or “immediately” from. (opinion of Scalia, J.). Indeed, the expansive language of the provision—any addition from any point source—strongly suggests its scope is not so limited. JUSTICE ALITO appears to believe that there are only two possible ways to read “from”: as referring either to the im- mediate source, or else to the original source. Post, at 5, 8. Because he agrees that the statute cannot reasonably be read always to reach the original source, he concludes the statute must refer only to the immediate origin. But as the foregoing example illustrates, context may indicate that “from” includes an intermediate stop—Baltimore, not Eu- rope or the train station. JUSTICE THOMAS relies on the word “addition,” but we fail to see how that word limits the statute to discharges di- rectly to navigable waters. Ordinary language abounds in counter examples: A recipe might instruct to “add the drip- pings from the meat to the gravy”; that instruction does not become incomprehensible, or even peculiar, simply because the drippings will have first collected in a pan or on a cut- ting board. And while it would be an unusual phrasing (as statutory phrasings often are), we do not see how the rec- ipe’s meaning would transform if it instead said to “add the drippings to the gravy from the meat.” To take another ex- ample: If Timmy is told to “add water to the bath from the well” he will know just what it means—even though he will have to use a bucket to complete the task. And although JUSTICE THOMAS resists the inevitable im- plications of his reading of the statute, post, at 5–6, that reading would create the same loopholes as those offered by the petitioner and the Government, and more. It would nec- essarily exclude a pipe that drains onto the beach next to Cite as: 590 U. S. (2020) 15 Opinion of the Court navigable waters, even if the pollutants then flow to those waters. It also seems to exclude a pipe that hangs out over the water and adds pollutants to the air, through which the pollutants fall to navigable waters. The absurdity of such an interpretation is obvious enough. We therefore reject this reading as well: Like Maui’s and the Government’s, it is inconsistent with the statutory text and simultaneously creates a massive loophole in the per- mitting scheme that Congress established. E For the reasons set forth in Part III and in this Part, we conclude that, in light of the statute’s language, structure, and purposes, the interpretations offered by the parties, the Government, and the dissents are too extreme. V Over the years, courts and EPA have tried to find general language that will reflect a middle ground between these extremes. The statute’s words reflect Congress’ basic aim to provide federal regulation of identifiable sources of pol- lutants entering navigable waters without undermining the States’ longstanding regulatory authority over land and groundwater. We hold that the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge. We think this phrase best captures, in broad terms, those circumstances in which Congress in- tended to require a federal permit. That is, an addition falls within the statutory requirement that it be “from any point source” when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means. Time and distance are obviously important. Where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater 16 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court (or over the beach), the permitting requirement clearly ap- plies. If the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply. The object in a given scenario will be to advance, in a manner consistent with the statute’s language, the statu- tory purposes that Congress sought to achieve. As we have said (repeatedly), the word “from” seeks a “point source” origin, and context imposes natural limits as to when a point source can properly be considered the origin of pollu- tion that travels through groundwater. That context in- cludes the need, reflected in the statute, to preserve state regulation of groundwater and other nonpoint sources of pollution. Whether pollutants that arrive at navigable wa- ters after traveling through groundwater are “from” a point source depends upon how similar to (or different from) the particular discharge is to a direct discharge. The difficulty with this approach, we recognize, is that it does not, on its own, clearly explain how to deal with middle instances. But there are too many potentially relevant fac- tors applicable to factually different cases for this Court now to use more specific language. Consider, for example, just some of the factors that may prove relevant (depending upon the circumstances of a particular case): (1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pol- lution (at that point) has maintained its specific identity. Time and distance will be the most important factors in most cases, but not necessarily every case. Cite as: 590 U. S. (2020) 17 Opinion of the Court At the same time, courts can provide guidance through decisions in individual cases. The Circuits have tried to do so, often using general language somewhat similar to the language we have used. And the traditional common-law method, making decisions that provide examples that in turn lead to ever more refined principles, is sometimes use- ful, even in an era of statutes. The underlying statutory objectives also provide guid- ance. Decisions should not create serious risks either of un- dermining state regulation of groundwater or of creating loopholes that undermine the statute’s basic federal regu- latory objectives. EPA, too, can provide administrative guidance (within statutory boundaries) in numerous ways, including through, for example, grants of individual permits, promul- gation of general permits, or the development of general rules. Indeed, over the years, EPA and the States have of- ten considered the Act’s application to discharges through groundwater. Both Maui and the Government object that to subject dis- charges to navigable waters through groundwater to the statute’s permitting requirements, as our interpretation will sometimes do, would vastly expand the scope of the statute, perhaps requiring permits for each of the 650,000 wells like petitioner’s or for each of the over 20 million sep- tic systems used in many Americans’ homes. Brief for Pe- titioner 44–48; Brief for United States as Amicus Curiae 24–25. Cf. Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324 But EPA has applied the permitting provision to some (but not to all) discharges through groundwater for over 30 years. See at 8–9. In that time we have seen no evidence of unmanageable expansion. EPA and the States also have tools to mitigate those harms, should they arise, by (for example) developing general permits for recurring situations or by issuing permits based on best practices 18 COUNTY OF MAUI v. HAWAII WILDLIFE FUND Opinion of the Court where appropriate. See, (k) (2019). Judges, too, can mitigate any hardship or injustice when they apply the statute’s penalty provision. That provision vests courts with broad discretion to set a penalty that takes account of many factors, including “any good-faith ef- forts to comply” with the Act, the “seriousness of the viola- tion,” the “economic impact of the penalty on the violator,” and “such other matters as justice may require.” See 33 U.S. C. We expect that district judges will exer- cise their discretion mindful, as we are, of the complexities inherent to the context of indirect discharges through groundwater, so as to calibrate the Act’s penalties when, for example, a party could reasonably have thought that a per- mit was not required. In sum, we recognize that a more absolute position, such as the means-of-delivery test or that of the Government or that of the Ninth Circuit, may be easier to administer. But, as we have said, those positions have consequences that are inconsistent with major congressional objectives, as re- vealed by the statute’s language, structure, and purposes. We consequently understand the permitting requirement, as applicable to a discharge (from a point source) of pollutants that reach navigable waters after traveling through groundwater if that discharge is the functional equivalent of a direct discharge from the point source into navigable waters. VI Because the Ninth Circuit applied a different standard, we vacate its judgment and remand the case for further pro- ceedings consistent with this opinion. It is so ordered. Cite as: 590 U. S. (2020) 1 KAVANAUGH, J., concurring SUPREME COURT OF THE UNITED STATES No. 18–260 COUNTY OF MAUI, HAWAII, PETITIONER v. HAWAII WILDLIFE FUND, ET AL.
Justice Brennan	majority	false	Wingo v. Wedding	1974-06-26T00:00:00	null	https://www.courtlistener.com/opinion/109094/wingo-v-wedding/	https://www.courtlistener.com/api/rest/v3/clusters/109094/	1,974	1973-165	2	7	2	The question here is whether federal magistrates are authorized to conduct evidentiary hearings in federal habeas corpus cases. In 1968, Congress enacted the 463 Federal Magistrates Act, 28 U.S. C. §§ 631-639, to upgrade and expand the former United States commissioner system. The Act authorizes magistrates to exercise all powers formerly exercised by United States commissioners,[1] and also, as a means of relieving the caseload burden of the federal district judges, empowers magistrates to try minor offenses when all parties consent,[2] and to perform such additional duties assigned by the district court as are "not inconsistent with the Constitution and laws of the United States."[3] Pursuant to 464 the Act, the Judges of the United States District Court for the Western District of Kentucky amended Local Rule 16 of that court to provide: "In addition to submitting such other reports and recommendations as may be required concerning petitions for writs of habeas corpus from state prisoners the full-time Magistrate is directed to schedule and hear evidentiary matters deemed by the Magistrate to be necessary and proper in the determination of each such petition, and to report thereon with an appropriate recommendation for the disposition thereof to the District Judge having jurisdiction of the case. The Magistrate shall cause the testimony of such hearing to be recorded on suitable electronic sound recording equipment. He shall submit his proposed findings of fact and conclusions of law to the proper Judge for his consideration, copies of which shall be provided at that time to the petitioner and respondent, and the Magistrate shall expeditiously transmit the proceedings, including the recording of the testimony, to the proper District Judge. Upon written request of either party, filed within ten days from the date such is so transmitted to the District Judge having jurisdiction thereof, the District Judge shall proceed to hear the recording of the testimony given at the evidentiary hearing and give it de novo consideration." 465 Respondent is a state prisoner whose petition for federal habeas corpus relief was assigned by the District Court to a full-time Magistrate for processing under the rule. The part of the rule challenged here is that which directs the full-time magistrate "to schedule and hear evidentiary matters [to be electronically recorded] deemed by the Magistrate to be necessary and proper in the determination of . . . such petition, and to report thereon with an appropriate recommendation for the disposition thereof to the District Judge [who] . . . [u]pon . . . request . . . shall proceed to hear the recording of the testimony . . . and give it de novo consideration." The question is whether this portion of the rule is invalid because "inconsistent with the . . . laws of the United States" within the meaning of the Federal Magistrates Act, 28 U.S. C. § 636 (b), or because § 636 (b) itself should be construed to preclude district courts from assigning such duties to magistrates. I Respondent, Carl James Wedding, is a prisoner in the Kentucky State Penitentiary serving a life sentence imposed in 1949 by the Webster Circuit Court, Commonwealth of Kentucky, after a plea of guilty to a charge of willful murder. Wedding filed this petition for habeas corpus in 1971. After the Court of Appeals for the Sixth Circuit reversed the initial dismissal of his petition, 456 F.2d 245 (1972), and remanded for an evidentiary hearing, the District Court invoked Local Rule 16 and assigned the case to a full-time Magistrate to hold the hearing. Wedding promptly moved that the Magistrate be disqualified and the hearing be reassigned to a District Judge, on the ground that the Federal Magistrates Act did not authorize district courts to assign to magistrates the duty to hold habeas corpus evidentiary hearings. When the District Court denied the motion, the Magistrate proceeded 466 with the hearing, and electronically recorded all testimonial evidence as required by Local Rule 16. Thereafter, the Magistrate transmitted the recording of the testimony to the District Judge and submitted written findings of fact and conclusions of law recommending that the petition be dismissed. Wedding moved that the District Court give the matter a de novo hearing. The District Judge's response was to listen, as authorized by Local Rule 16, to the recording of the hearing before the Magistrate. On this basis and the Magistrate's findings and conclusions, the District Court entered an order dismissing respondent's petition. On appeal, Wedding renewed his challenge to Local Rule 16, relying upon Holiday v. Johnston, 313 U.S. 342 (1941). Holiday was also a federal habeas corpus case. There, after determining that the petition for writ of habeas corpus alleged facts which, if proved, would entitle the petitioner to relief, the District Judge issued a writ compelling the respondent to produce the petitioner before a designated United States Commissioner. The Commissioner held an evidentiary hearing at which the petitioner testified and the respondent submitted the depositions of two witnesses. On the basis of the evidence received, the Commissioner made findings of fact and stated conclusions of law recommending that the writ be denied. After hearing oral argument on the Commissioner's report, the District Judge entered an order discharging the writ. This Court reversed, holding that the factfinding procedure employed failed to conform to Congress' express command in the Habeas Corpus Act that "[t]he court, or justice, or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require." Rev. Stat. § 761, 467 28 U.S. C. § 461 (1940 ed.) (emphasis added). The Court held that the statute plainly accords a prisoner the right of testifying before a judge, stating: "One of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony. Plainly it was intended that the prisoner might invoke the exercise of this appraisal by the judge himself. We cannot say that an appraisal of the truth of the prisoner's oral testimony by a master or commissioner is, in the light of the purpose and object of the proceeding, the equivalent of the judge's own exercise of the function of the trier of the facts. ..... "The District Judge should himself have heard the prisoner's testimony and, in the light of it and the other testimony, himself have found the facts and based his disposition of the cause upon his findings." Holiday v. Johnston, supra, at 352, 353-354. Wedding contended that neither the text nor legislative history of the Federal Magistrates Act evidences a congressional intent to overrule Holiday. The Court of Appeals agreed and accordingly "vacate[d] the judgment of dismissal and remand[ed] the case with instructions that the [District] Court itself hold an evidentiary hearing on [Wedding's] constitutional claims." 483 F.2d 1131, 1137 (CA6 1973). We granted certiorari, 414 U.S. 1157 (1974). We affirm.[4] 468 II Under our constitutional framework, the "great constitutional privilege" of habeas corpus, Ex parte Bollman 4 Cranch 75, 95 (1807) (Marshall, C. J.), has historically provided "a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release." Fay v. Noia, 372 U.S. 391, 401-402 (1963). More often than not, claims of unconstitutional detention turn upon the resolution of contested issues of fact. Accordingly, since the Judiciary Act of February 5, 1867, c. 28, § 1, 14 Stat. 385, Congress has expressly vested plenary power in the federal courts "for taking testimony and trying the facts anew in habeas hearings . . . ."[5]Fay v. Noia, supra, at 416. See also Townsend v. Sain, 372 U.S. 293, 312 (1963). In connection with the 1948 revision and recodification of the Judicial Code,[6] Rev. Stat. § 761, construed in Holiday, and other procedural provisions of the Habeas Corpus Act were consolidated into 28 U.S. C. § 2243. The pertinent portion covering habeas corpus evidentiary hearings provides that "[t]he court shall summarily hear and determine the facts, and dispose of the matter as law and justice require." The Revisers thus deleted some 469 words from Rev. Stat. § 761, but the Revisers' Notes accompanying § 2243, together with the reports of the Committee of the Judiciary of the Senate,[7] and of the House,[8] make abundantly clear that the word changes and omissions in Rev. Stat. § 761 were intended only as changes in form.[9] Accordingly, the construction of § 2243 has been that given § 761 in Holiday. United States v. Hayman, 342 U.S. 205, 213 n. 16 (1952); Brown v. Allen, 344 U.S. 443, 462-463 (1953). The Court held in the latter case: "A federal judge on a habeas corpus application is required to `summarily hear and determine the facts, and dispose of the matter as law and justice require,' 28 U.S. C. § 2243. This has long been the law. R. S. § 761, old 28 U.S. C. § 461." Ibid. (emphasis added). III Our inquiry is thus narrowed to the question whether the Federal Magistrates Act changed the requirement of § 2243 that federal judges personally conduct habeas corpus evidentiary hearings. Certainly nothing in the text 470 or legislative history of the Magistrates Act suggests that Congress meant to change that requirement.[10] Rather, both text and legislative history plainly reveal a congressional determination to retain the requirement. For, although the Act gives district judges broad authority to assign a wide range of duties to magistrates, Congress carefully circumscribed the permissible scope of assignment to only "such additional duties as are not inconsistent with the Constitution and laws of the United States." 28 U.S. C. § 636 (b) (emphasis added). And in defining assignable duties, Congress decreed that the duty of holding evidentiary hearings was not assignable. This clearly emerges from the legislative history of subsection (3) of § 636 (b), which provides: "(3) preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing." (Emphasis added.) That legislative history reveals that the Judicial Conference of the United States objected to successive phrasings of subsection (b) (3) until it was phrased to make clear that the authority given district courts to assign duties to magistrates did not include authority to hold evidentiary hearings on applications for posttrial relief.[11]471 The original draft of the subsection[12] had proposed that magistrates' duties include "(3) preliminary consideration of applications for post-trial relief made by individuals convicted of criminal offenses." But because that language was susceptible of the interpretation that magistrates might conduct evidentiary hearings, the Judicial Conference of the United States objected to it.[13] Accordingly, the subsection was rewritten to provide for "(3) preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case . . . ." The Committee on the Administration of the Criminal Law of the Judicial Conference objected that the revision did not "make it clear that it is the judge's responsibility to make the ultimate decisions and to hold hearings on such applications, rather than that of the 472 magistrate."[14] The Committee therefore recommended the addition of the phrase "as to whether there should be a hearing" immediately following the word "case."[15] The proposed addition was made,[16] and subsection (b) (3) in its present form was enacted. Thus, although § 636 (b) provides that "additional duties authorized by rule may include, but are not restricted to," duties defined in subsection (b) (3), the legislative history of the subsection compels the conclusion that Congress made a deliberate choice to preclude district courts from assigning magistrates the duty to hold evidentiary hearings. We conclude that, since § 2243 requires that the District Judge personally hold evidentiary hearings in federal habeas corpus cases, Local Rule 16, insofar as it authorizes the full-time magistrate to hold such hearings, is invalid because it is "inconsistent with the . . . laws of the United States" under § 636 (b). We conclude further that the Rule is to that extent invalid because, as we construe § 636 (b), that section itself precludes district judges from assigning magistrates the duty of conducting evidentiary hearings.[17] Review by magistrates of applications for post-trial relief is thus limited to review for the purpose of proposing, not holding, evidentiary 473 hearings.[18] In connection with the preliminary review whether or not to propose that the district judge hold an evidentiary hearing, we agree that magistrates may receive the state court record and all affidavits, stipulations, and other documents submitted by the parties.[19] Magistrates are prohibited only from conducting the actual evidentiary hearings.[20] The invalidity of Local Rule 16 is not cured by its provision that the "District Judge shall proceed to hear 474 the recording of the testimony given at the evidentiary hearing and give it de novo consideration." Holiday reasoned that the command of § 761, now § 2243, was designed by Congress in recognition that "[o]ne of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony." 313 U.S., at 352. "To experienced lawyers it is commonplace that the outcome of a lawsuitand hence the vindication of legal rightsdepends more often on how the factfinder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents. Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied." Speiser v. Randall, 357 U.S. 513, 520 (1958). Congress, Holiday held, "[p]lainly . . . intended that the prisoner might invoke . . . appraisal by the judge himself." In that circumstance, we "cannot say that an appraisal of the truth of the prisoner's oral testimony" based on listening to a recording of it, "is, in the light of the purpose and object of the proceeding, the equivalent of the judge's own exercise of the function of the trier of the facts." 313 U.S., at 352. Affirmed. MR. CHIEF JUSTICE BURGER, with whom MR.	The question here is whether federal magistrates are authorized to conduct evidentiary hearings in federal habeas corpus cases. In 1968, Congress enacted the 463 Federal Magistrates Act, 28 U.S. C. 631-639, to upgrade and expand the former United States commissioner system. The Act authorizes magistrates to exercise all powers formerly exercised by United States commissioners,[1] and also, as a means of relieving the caseload burden of the federal district judges, empowers magistrates to try minor offenses when all parties consent,[2] and to perform such additional duties assigned by the district court as are "not inconsistent with the Constitution and laws of the United States."[3] Pursuant to 464 the Act, the Judges of the United States District Court for the Western District of Kentucky amended Local Rule 16 of that court to provide: "In addition to submitting such other reports and recommendations as may be required concerning petitions for writs of habeas corpus from state prisoners the full-time Magistrate is directed to schedule and hear evidentiary matters deemed by the Magistrate to be necessary and proper in the determination of each such petition, and to report thereon with an appropriate recommendation for the disposition thereof to the District Judge having jurisdiction of the case. The Magistrate shall cause the testimony of such hearing to be recorded on suitable electronic sound recording equipment. He shall submit his proposed findings of fact and conclusions of law to the proper Judge for his consideration, copies of which shall be provided at that time to the petitioner and respondent, and the Magistrate shall expeditiously transmit the proceedings, including the recording of the testimony, to the proper District Judge. Upon written request of either party, filed within ten days from the date such is so transmitted to the District Judge having jurisdiction thereof, the District Judge shall proceed to hear the recording of the testimony given at the evidentiary hearing and give it de novo consideration." 465 Respondent is a state prisoner whose petition for federal habeas corpus relief was assigned by the District Court to a full-time Magistrate for processing under the rule. The part of the rule challenged here is that which directs the full-time magistrate "to schedule and hear evidentiary matters [to be electronically recorded] deemed by the Magistrate to be necessary and proper in the determination of such petition, and to report thereon with an appropriate recommendation for the disposition thereof to the District Judge [who] [u]pon request shall proceed to hear the recording of the testimony and give it de novo consideration." The question is whether this portion of the rule is invalid because "inconsistent with the laws of the United States" within the meaning of the Federal Magistrates Act, 28 U.S. C. 636 (b), or because 636 (b) itself should be construed to preclude district courts from assigning such duties to magistrates. I Respondent, Carl James Wedding, is a prisoner in the Kentucky State Penitentiary serving a life sentence imposed in 1949 by the Webster Circuit Court, Commonwealth of Kentucky, after a plea of guilty to a charge of willful murder. Wedding filed this petition for habeas corpus in 1971. After the Court of Appeals for the Sixth Circuit reversed the initial dismissal of his petition, and remanded for an evidentiary hearing, the District Court invoked Local Rule 16 and assigned the case to a full-time Magistrate to hold the hearing. Wedding promptly moved that the Magistrate be disqualified and the hearing be reassigned to a District Judge, on the ground that the Federal Magistrates Act did not authorize district courts to assign to magistrates the duty to hold habeas corpus evidentiary hearings. When the District Court denied the motion, the Magistrate proceeded 466 with the hearing, and electronically recorded all testimonial evidence as required by Local Rule 16. Thereafter, the Magistrate transmitted the recording of the testimony to the District Judge and submitted written findings of fact and conclusions of law recommending that the petition be dismissed. Wedding moved that the District Court give the matter a de novo hearing. The District Judge's response was to listen, as authorized by Local Rule 16, to the recording of the hearing before the Magistrate. On this basis and the Magistrate's findings and conclusions, the District Court entered an order dismissing respondent's petition. On appeal, Wedding renewed his challenge to Local Rule 16, relying upon Holiday was also a federal habeas corpus case. There, after determining that the petition for writ of habeas corpus alleged facts which, if proved, would entitle the petitioner to relief, the District Judge issued a writ compelling the respondent to produce the petitioner before a designated United States Commissioner. The Commissioner held an evidentiary hearing at which the petitioner testified and the respondent submitted the depositions of two witnesses. On the basis of the evidence received, the Commissioner made findings of fact and stated conclusions of law recommending that the writ be denied. After hearing oral argument on the Commissioner's report, the District Judge entered an order discharging the writ. This Court reversed, holding that the factfinding procedure employed failed to conform to Congress' express command in the Habeas Corpus Act that "[t]he court, or justice, or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require." Rev. Stat. 761, 467 28 U.S. C. 461 (1940 ed.) The Court held that the statute plainly accords a prisoner the right of testifying before a judge, stating: "One of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony. Plainly it was intended that the prisoner might invoke the exercise of this appraisal by the judge himself. We cannot say that an appraisal of the truth of the prisoner's oral testimony by a master or commissioner is, in the light of the purpose and object of the proceeding, the equivalent of the judge's own exercise of the function of the trier of the facts. "The District Judge should himself have heard the prisoner's testimony and, in the light of it and the other testimony, himself have found the facts and based his disposition of the cause upon his findings." Wedding contended that neither the text nor legislative history of the Federal Magistrates Act evidences a congressional intent to overrule Holiday. The Court of Appeals agreed and accordingly "vacate[d] the judgment of dismissal and remand[ed] the case with instructions that the [District] Court itself hold an evidentiary hearing on [Wedding's] constitutional claims." We granted certiorari, We affirm.[4] 468 II Under our constitutional framework, the "great constitutional privilege" of habeas corpus, Ex parte Bollman has historically provided "a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release." More often than not, claims of unconstitutional detention turn upon the resolution of contested issues of fact. Accordingly, since the Judiciary Act of February 5, 1867, c. 28, 1, Congress has expressly vested plenary power in the federal courts "for taking testimony and trying the facts anew in habeas hearings"[5], See also In connection with the 1948 revision and recodification of the Judicial Code,[6] Rev. Stat. 761, construed in Holiday, and other procedural provisions of the Habeas Corpus Act were consolidated into 28 U.S. C. 2243. The pertinent portion covering habeas corpus evidentiary hearings provides that "[t]he court shall summarily hear and determine the facts, and dispose of the matter as law and justice require." The Revisers thus deleted some 469 words from Rev. Stat. 761, but the Revisers' Notes accompanying 2243, together with the reports of the Committee of the Judiciary of the Senate,[7] and of the House,[8] make abundantly clear that the word changes and omissions in Rev. Stat. 761 were intended only as changes in form.[9] Accordingly, the construction of 2243 has been that given 761 in Holiday. United (12); (13). The Court held in the latter case: "A federal judge on a habeas corpus application is required to `summarily hear and determine the facts, and dispose of the matter as law and justice require,' 28 U.S. C. 2243. This has long been the law. R. S. 761, old 28 U.S. C. 461." III Our inquiry is thus narrowed to the question whether the Federal Magistrates Act changed the requirement of 2243 that federal judges personally conduct habeas corpus evidentiary hearings. Certainly nothing in the text 470 or legislative history of the Magistrates Act suggests that Congress meant to change that requirement.[10] Rather, both text and legislative history plainly reveal a congressional determination to retain the requirement. For, although the Act gives district judges broad authority to assign a wide range of duties to magistrates, Congress carefully circumscribed the permissible scope of assignment to only "such additional duties as are not inconsistent with the Constitution and laws of the United States." 28 U.S. C. 636 (b) And in defining assignable duties, Congress decreed that the duty of holding evidentiary hearings was not assignable. This clearly emerges from the legislative history of subsection (3) of 636 (b), which provides: "(3) preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing." (Emphasis added.) That legislative history reveals that the Judicial Conference of the United States objected to successive phrasings of subsection (b) (3) until it was phrased to make clear that the authority given district courts to assign duties to magistrates did not include authority to hold evidentiary hearings on applications for posttrial relief.[11]471 The original draft of the subsection[12] had proposed that magistrates' duties include "(3) preliminary consideration of applications for post-trial relief made by individuals convicted of criminal offenses." But because that language was susceptible of the interpretation that magistrates might conduct evidentiary hearings, the Judicial Conference of the United States objected to it.[13] Accordingly, the subsection was rewritten to provide for "(3) preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case" The Committee on the Administration of the Criminal Law of the Judicial Conference objected that the revision did not "make it clear that it is the judge's responsibility to make the ultimate decisions and to hold hearings on such applications, rather than that of the 472 magistrate."[14] The Committee therefore recommended the addition of the phrase "as to whether there should be a hearing" immediately following the word "case."[15] The proposed addition was made,[16] and subsection (b) (3) in its present form was enacted. Thus, although 636 (b) provides that "additional duties authorized by rule may include, but are not restricted to," duties defined in subsection (b) (3), the legislative history of the subsection compels the conclusion that Congress made a deliberate choice to preclude district courts from assigning magistrates the duty to hold evidentiary hearings. We conclude that, since 2243 requires that the District Judge personally hold evidentiary hearings in federal habeas corpus cases, Local Rule 16, insofar as it authorizes the full-time magistrate to hold such hearings, is invalid because it is "inconsistent with the laws of the United States" under 636 (b). We conclude further that the Rule is to that extent invalid because, as we construe 636 (b), that section itself precludes district judges from assigning magistrates the duty of conducting evidentiary hearings.[17] Review by magistrates of applications for post-trial relief is thus limited to review for the purpose of proposing, not holding, evidentiary 473 hearings.[18] In connection with the preliminary review whether or not to propose that the district judge hold an evidentiary hearing, we agree that magistrates may receive the state court record and all affidavits, stipulations, and other documents submitted by the parties.[19] Magistrates are prohibited only from conducting the actual evidentiary hearings.[20] The invalidity of Local Rule 16 is not cured by its provision that the "District Judge shall proceed to hear 474 the recording of the testimony given at the evidentiary hearing and give it de novo consideration." Holiday reasoned that the command of 761, now 2243, was designed by Congress in recognition that "[o]ne of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony." "To experienced lawyers it is commonplace that the outcome of a lawsuitand hence the vindication of legal rightsdepends more often on how the factfinder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents. Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied." (18). Congress, Holiday held, "[p]lainly intended that the prisoner might invoke appraisal by the judge himself." In that circumstance, we "cannot say that an appraisal of the truth of the prisoner's oral testimony" based on listening to a recording of it, "is, in the light of the purpose and object of the proceeding, the equivalent of the judge's own exercise of the function of the trier of the facts." Affirmed. MR. CHIEF JUSTICE BURGER, with whom MR.
Justice Stevens	majority	false	Mathews v. Diaz	1976-06-01T00:00:00	null	https://www.courtlistener.com/opinion/109463/mathews-v-diaz/	https://www.courtlistener.com/api/rest/v3/clusters/109463/	1,976	1975-107	1	9	0	The question presented by the Secretary's appeal is whether Congress may condition an alien's eligibility for participation in a federal medical insurance program on continuous residence in the United States for a five-year period and admission for permanent residence. The District Court held that the first condition was unconstitutional and that it could not be severed from the second. Since we conclude that both conditions are constitutional, we reverse. Each of the appellees is a resident alien who was lawfully admitted to the United States less than five years ago. Appellees Diaz and Clara are Cuban refugees who remain in this country at the discretion of the Attorney General; appellee Espinosa has been admitted for permanent 70 residence. All three are over 65 years old and have been denied enrollment in the Medicare Part B supplemental medical insurance program established by § 1831 et seq. of the Social Security Act of 1935, 49 Stat. 620, as added, 79 Stat. 301, and as amended, 42 U.S. C. § 1395j et seq. (1970 ed. and Supp. IV).[1] They brought this action to challenge the statutory basis for that denial. Specifically, they attack 42 U.S. C. § 1395o (2) (1970 ed., Supp. IV), which grants eligibility to resident citizents who are 65 or older but denies eligibility to comparable aliens unless they have been admitted for permanent residence and also have resided in the United States for at least five years.[2] Appellees Diaz and Clara meet neither requirement; appellee Espinosa meets only the first. On August 18, 1972, Diaz filed a class action complaint in the United States District Court for the Southern 71 District of Florida alleging that his application for enrollment had been denied on the ground that he was not a citizen and had neither been admitted for permanent residence nor resided in the United States for the immediately preceding five years. He further alleged that numerous other persons had been denied enrollment in the Medicare Part B program for the same reasons. He sought relief on behalf of a class of persons who have been or will denied enrollment in the Medicare insurance program for failure to meet the requirements of 42 U.S. C. § 1395o (2) (1970 ed., Supp. IV). Since the complaint prayed for a declaration that § 1395o (2) was unconstitutional and for an injunction requiring the Secretary to approve all applicants who had been denied eligibility solely for failure to comply with its requirements, a three-judge court was constituted. On September 28, 1972, the District Court granted leave to add Clara and Espinosa as plaintiffs and to file an amended complaint. That pleading alleged that Clara had been denied enrollment for the same reasons as Diaz, but explained that Espinosa, although a permanent resident since 1971, had not attempted to enroll because he could not meet the durational residence requirement, and therefore any attempt would have been futile. The amended complaint sought relief on behalf of a subclass represented by Espinosathat is, aliens admitted for permanent residence who have been or will be denied enrollment for failure to meet the five-year continuous residence requirementas well as relief on behalf of the class represented by Diaz and Clara.[3] 72 On October 24, 1972, the Secretary moved to dismiss the complaint on the ground, among others, that the District Court lacked jurisdiction over the subject matter because none of the plaintiffs had exhausted his administrative remedies under the Social Security Act. Two days later, on October 26, 1972, Espinosa filed his application for enrollment with the Secretary. He promptly brought this fact to the attention of the District Court, without formally supplementing the pleadings. None of the appellees completely exhausted available avenues for administrative review. Nevertheless, the 73 Secretary acknowledged that the applications of Diaz and Clara raised no disputed issues of fact and therefore the interlocutory denials of their applications should be treated as final for the purpose of this litigation. This satisfied the jurisdictional requirements of 42 U.S. C. § 405 (g). Weinberger v. Salfi, 422 U.S. 749, 763-767; Weinberger v. Wiesenfeld, 420 U.S. 636, 641 n. 8. The Secretary did not make an equally unambiguous concession with respect to Espinosa, but in colloquy with the court he acknowledged that Espinosa had filed an application which could not be allowed under the statute.[4] The District Court overruled the Secretary's motion to dismiss and decided the merits on cross-motions for summary judgment. The District Court held that the five-year residence requirement violated the Due Process Clause of the Fifth Amendment[5] and that since it could not be severed from the requirement of admission for permanent residence, the alien-eligibility provisions of § 1395o (2) (B) were entirely unenforceable. Diaz v. Weinberger, 361 F. Supp. 1 (1973). The District Court reasoned that "even though fourteenth amendment notions of equal protection are not entirely congruent with fifth amendment concepts of due process," id., at 9, the danger of unjustifiable discrimination against aliens in the enactment of welfare programs is so great, in view of their complete lack of representation in the political process, that this federal statute should be tested under the same pledge of equal protection as a state statute. So tested, the court concluded that the statute was invalid because it was not both rationally based and free from invidious discrimination. It rejected the desire to preserve the fiscal 74 integrity of the program, or to treat some aliens as less deserving than others, as adequate justification for the statute. Accordingly, the court enjoined the Secretary from refusing to enroll members of the class and subclass represented by appellees. The Secretary appealed directly to this Court.[6] We noted probable jurisdiction. Weinberger v. Diaz, 416 U.S. 980. After hearing argument last Term, we set the case for reargument. 420 U.S. 959. We now consider (1) whether the District Court had jurisdiction over Espinosa's claim; (2) whether Congress may discriminate in favor of citizens and against aliens in providing welfare benefits; and (3) if so, whether the specific discriminatory provisions in § 1395o (2) (B) are constitutional. I Espinosa's claim squarely raises the question whether the requirement of five years' continuous residence is constitutional, a question that is not necessarily presented by the claims of Diaz and Clara. For if the requirement of admission for permanent residence is valid, their applications were properly denied even if the durational residence requirement is ineffective.[7] We 75 must therefore decide whether the District Court had jurisdiction over Espinosa's claim. We have little difficulty with Espinosa's failure to file an application with the Secretary until after he was joined in the action. Although 42 U.S. C. § 405 (g) establishes filing of an application as a nonwaivable condition of jurisdiction, Mathews v. Eldridge, 424 U.S. 319, 328; Weinberger v. Salfi, 422 U. S., at 764, Espinosa satisfied this condition while the case was pending in the District Court. A supplemental complaint in the District Court would have eliminated this jurisdictional issue;[8] since the record discloses, both by affidavit and stipulation, that the jurisdictional condition was satisfied, it is not too late, even now, to supplement the complaint to allege this fact.[9] Under these circumstances, we treat the pleadings as properly supplemented by the Secretary's stipulation that Espinosa had filed an application. A further problem is presented by the absence of any formal administrative action by the Secretary denying Espinosa's application. Section 405 (g) requires a final decision by the Secretary after a hearing as a prerequisite of jurisdiction. Mathews v. Eldridge, supra, at 328-330; Weinberger v. Salfi, supra, at 763-765. However, 76 we held in Salfi that the Secretary could waive the exhaustion requirements which this provision contemplates and that he had done so in that case. Id., at 765-767; accord, Mathews v. Eldridge, supra, at 328-330 (dictum); Weinberger v. Wiesenfeld, 420 U. S., at 641 n. 8. We reach a similar conclusion here. The plaintiffs in Salfi alleged that their claims had been denied by the local and regional Social Security offices and that the only question was one of constitutional law, beyond the competence of the Secretary to decide. These allegations did not satisfy the exhaustion requirements of § 405 (g) or the Secretary's regulations, but the Secretary failed to challenge the sufficiency of the allegations on this ground. We interpreted this failure as a determination by the Secretary that exhaustion would have been futile and deferred to his judgment that the only issue presented was the constitutionality of a provision of the Social Security Act. The same reasoning applies to the present case. Although the Secretary moved to dismiss for failure to exhaust administrative remedies, at the hearing on the motion he stipulated that no facts were in dispute, that the case was ripe for disposition by summary judgment, and that the only issue before the District Court was the constitutionality of the statute.[10] As in Salfi, this constitutional question is beyond the Secretary's competence. Indeed, the Secretary has twice stated in this Court that he stipulated in the District Court that Espinosa's application would be denied for failure to meet the durational residence requirement.[11] For jurisdictional purposes, we 77 treat the stipulation in the District Court as tantamount to a decision denying the application and as a waiver of the exhaustion requirements. Cf. Weinberger v. Wiesenfeld, supra, at 640 n. 6, 641 n. 8. We conclude, as we did in Salfi, that the Secretary's submission of the question for decision on the merits by the District Court satisfied the statutory requirement of a hearing and final decision. We hold that Espinosa's claim, as well as the claims of Diaz and Clara, must be decided. II There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Wong Yang Sung v. McGrath, 339 U.S. 33, 48-51; Wong Wing v. United States, 163 U.S. 228, 238; see Russian Fleet v. United States, 282 U.S. 481, 489. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection. Wong Yang Sung, supra; Wong Wing, supra. 78 The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogeneous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other;[12] and the class of aliens is itself a heterogeneous 79 multitude of persons with a wide-ranging variety of ties to this country.[13] In the exercise of its broad power over naturalization 80 and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. The exclusion of aliens[14] and the reservation of the power to deport[15] have no permissible counterpart in the Federal Government's power to regulate the conduct of its own citizenry.[16] The fact that an Act of Congress treats aliens differently from citizens does not in itself imply that such disparate treatment is "invidious." In particular, the fact that Congress has provided some welfare benefits for citizens does not require it to provide like benefits for all aliens. Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests. The decision to share that bounty with our guests may take into account the character of the relationship between the alien and this country: Congress may decide that as the alien's tie grows stronger, so does the strength of his claim to an equal share of that munificence. The real question presented by this case is not whether discrimination between citizens and aliens is permissible; rather, it is whether the statutory discrimination within the class of aliensallowing benefits to some aliens but not to othersis permissible. We turn to that question. 81 III For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.[17] Since decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary. This very case illustrates the need for flexibility in policy choices rather than the rigidity often characteristic of constitutional adjudication. Appellees Diaz and Clara are but two of over 440,000 Cuban refugees who arrived in the United States between 1961 and 1972.[18] And the Cuban parolees are but one of several categories of aliens who have been admitted in order to make a humane response to a natural catastrophe or an international political situation.[19] Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution.[20] The reasons 82 that preclude judicial review of political questions[21] also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization. Since it is obvious that Congress has no constitutional duty to provide all aliens with the welfare benefits provided to citizens, the party challenging the constitutionality of the particular line Congress has drawn has the burden of advancing principled reasoning that will at once invalidate that line and yet tolerate a different line separating some aliens from others. In this case the appellees have challenged two requirementsfirst, that the alien be admitted as a permanent resident, and, second, that his residence be of a duration of at least five years. But if these requirements were eliminated, surely Congress would at least require that the alien's entry be lawful; even then, unless mere transients are to be held constitutionally entitled to benefits, some durational requirement would certainly be appropriate. In short, it 83 is unquestionably reasonable for Congress to make an alien's eligibility depend on both the character and the duration of his residence. Since neither requirement is wholly irrational, this case essentially involves nothing more than a claim that it would have been more reasonable for Congress to select somewhat different requirements of the same kind. We may assume that the five-year line drawn by Congress is longer than necessary to protect the fiscal integrity of the program.[22] We may also assume that unnecessary hardship is incurred by persons just short of qualifying. But it remains true that some line is essential, that any line must produce some harsh and apparently arbitrary consequences, and, of greatest importance, that those who qualify under the test Congress has chosen may reasonably be presumed to have a greater affinity with the United States than those who do not. In short, citizens and those who are most like citizens qualify. Those who are less like citizens do not. The task of classifying persons for medical benefits, like the task of drawing lines for federal tax purposes, inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line; the differences between the 84 eligible and the ineligible are differences in degree rather than differences in the character of their respective claims. When this kind of policy choice must be made, we are especially reluctant to question the exercise of congressional judgment.[23] In this case, since appellees have not identified a principled basis for prescribing a different standard than the one selected by Congress, they have, in effect, merely invited us to substitute our judgment for that of Congress in deciding which aliens shall be eligible to participate in the supplementary insurance program on the same conditions as citizens. We decline the invitation. IV The cases on which appellees rely are consistent with our conclusion that this statutory classification does not deprive them of liberty or property without due process of law. Graham v. Richardson, 403 U.S. 365, provides the strongest support for appellees' position. That case holds that state statutes that deny welfare benefits to resident aliens, or to aliens not meeting a requirement of durational residence within the United States, violate the Equal Protection Clause of the Fourteenth Amendment and encroach upon the exclusive federal power over the entrance and residence of aliens. Of course, the latter ground of decision actually supports our holding today that it is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens. The equal protection analysis also involves significantly different considerations because it concerns the relationship between 85 aliens and the States rather than between aliens and the Federal Government. Insofar as state welfare policy is concerned,[24] there is little, if any, basis for treating persons who are citizens of another State differently from persons who are citizens of another country. Both groups are noncitizens as far as the State's interests in administering its welfare programs are concerned. Thus, a division by a State of the category of persons who are not citizens of that State into subcategories of United States citizens and aliens has no apparent justification, whereas, a comparable classification by the Federal Government is a routine and normally legitimate part of its business. Furthermore, whereas the Constitution inhibits every State's power to restrict travel across its own borders, Congress is explicitly empowered to exercise that type of control over travel across the borders of the United States.[25] The distinction between the constitutional limits on state power and the constitutional grant of power to the Federal Government also explains why appellees' reliance on Memorial Hospital v. Maricopa County, 415 U.S. 250, is misplaced. That case involved Arizona's requirement of durational residence within a county in order to receive nonemergency medical care at the 86 county's expense. No question of alienage was involved. Since the sole basis for the classification between residents impinged on the constitutionally guaranteed right to travel within the United States, the holding in Shapiro v. Thompson, 394 U.S. 618, required that it be justified by a compelling state interest.[26] Finding no such justification, we held that the requirement violated the Equal Protection Clause. This case, however, involves no state impairment of the right to travelnor indeed any impairment whatever of the right to travel within the United States; the predicate for the equal protection analysis in those cases is simply not present. Contrary to appellees' characterization, it is not "political hypocrisy" to recognize that the Fourteenth Amendment's 87 limits on state powers are substantially different from the constitutional provisions applicable to the federal power over immigration and naturalization. Finally, we reject the suggestion that U. S. Dept. of Agriculture v. Moreno, 413 U.S. 528, lends relevant support to appellees' claim. No question involving alienage was presented in that case. Rather, we found that the denial of food stamps to households containing unrelated members was not only unsupported by any rational basis but actually was intended to discriminate against certain politically unpopular groups. This case involves no impairment of the freedom of association of either citizens or aliens. We hold that § 1395o (2) (B) has not deprived appellees of liberty or property without due process of law. The judgment of the District Court is Reversed.	The question presented by the Secretary's appeal is whether Congress may condition an alien's eligibility for participation in a federal medical insurance program on continuous residence in the United States for a five-year period and admission for permanent residence. The District Court held that the first condition was unconstitutional and that it could not be severed from the second. Since we conclude that both conditions are constitutional, we reverse. Each of the appellees is a resident alien who was lawfully admitted to the United States less than five years ago. Appellees Diaz and Clara are Cuban refugees who remain in this country at the discretion of the Attorney General; appellee Espinosa has been admitted for permanent 70 residence. All three are over 65 years old and have been denied enrollment in the Medicare Part B supplemental medical insurance program established by 1831 et seq. of the Social Security Act of 1935, as added, and as amended, 42 U.S. C. 1395j et seq. (1970 ed. and Supp. IV).[1] They brought this action to challenge the statutory basis for that denial. Specifically, they attack 42 U.S. C. 1395o (2) (1970 ed., Supp. IV), which grants eligibility to resident citizents who are 65 or older but denies eligibility to comparable aliens unless they have been admitted for permanent residence and also have resided in the United States for at least five years.[2] Appellees Diaz and Clara meet neither requirement; appellee Espinosa meets only the first. On August 18, 1972, Diaz filed a class action complaint in the United States District Court for the Southern 71 District of Florida alleging that his application for enrollment had been denied on the ground that he was not a citizen and had neither been admitted for permanent residence nor resided in the United States for the immediately preceding five years. He further alleged that numerous other persons had been denied enrollment in the Medicare Part B program for the same reasons. He sought relief on behalf of a class of persons who have been or will denied enrollment in the Medicare insurance program for failure to meet the requirements of 42 U.S. C. 1395o (2) (1970 ed., Supp. IV). Since the complaint prayed for a declaration that 1395o (2) was unconstitutional and for an injunction requiring the Secretary to approve all applicants who had been denied eligibility solely for failure to comply with its requirements, a three-judge court was constituted. On September 28, 1972, the District Court granted leave to add Clara and Espinosa as plaintiffs and to file an amended complaint. That pleading alleged that Clara had been denied enrollment for the same reasons as Diaz, but explained that Espinosa, although a permanent resident since 1971, had not attempted to enroll because he could not meet the durational residence requirement, and therefore any attempt would have been futile. The amended complaint sought relief on behalf of a subclass represented by Espinosathat is, aliens admitted for permanent residence who have been or will be denied enrollment for failure to meet the five-year continuous residence requirementas well as relief on behalf of the class represented by Diaz and Clara.[3] 72 On October 24, 1972, the Secretary moved to dismiss the complaint on the ground, among others, that the District Court lacked jurisdiction over the subject matter because none of the plaintiffs had exhausted his administrative remedies under the Social Security Act. Two days later, on October 26, 1972, Espinosa filed his application for enrollment with the Secretary. He promptly brought this fact to the attention of the District Court, without formally supplementing the pleadings. None of the appellees completely exhausted available avenues for administrative review. Nevertheless, the 73 Secretary acknowledged that the applications of Diaz and Clara raised no disputed issues of fact and therefore the interlocutory denials of their applications should be treated as final for the purpose of this litigation. This satisfied the jurisdictional requirements of 42 U.S. C. 405 (g). ; 641 n. 8. The Secretary did not make an equally unambiguous concession with respect to Espinosa, but in colloquy with the court he acknowledged that Espinosa had filed an application which could not be allowed under the statute.[4] The District Court overruled the Secretary's motion to dismiss and decided the merits on cross-motions for summary judgment. The District Court held that the five-year residence requirement violated the Due Process Clause of the Fifth Amendment[5] and that since it could not be severed from the requirement of admission for permanent residence, the alien-eligibility provisions of 1395o (2) (B) were entirely unenforceable. The District Court reasoned that "even though fourteenth amendment notions of equal protection are not entirely congruent with fifth amendment concepts of due process," the danger of unjustifiable discrimination against aliens in the enactment of welfare programs is so great, in view of their complete lack of representation in the political process, that this federal statute should be tested under the same pledge of equal protection as a state statute. So tested, the court concluded that the statute was invalid because it was not both rationally based and free from invidious discrimination. It rejected the desire to preserve the fiscal 74 integrity of the program, or to treat some aliens as less deserving than others, as adequate justification for the statute. Accordingly, the court enjoined the Secretary from refusing to enroll members of the class and subclass represented by appellees. The Secretary appealed directly to this Court.[6] We noted probable jurisdiction. After hearing argument last Term, we set the case for reargument. We now consider (1) whether the District Court had jurisdiction over Espinosa's claim; (2) whether Congress may discriminate in favor of citizens and against aliens in providing welfare benefits; and (3) if so, whether the specific discriminatory provisions in 1395o (2) (B) are constitutional. I Espinosa's claim squarely raises the question whether the requirement of five years' continuous residence is constitutional, a question that is not necessarily presented by the claims of Diaz and Clara. For if the requirement of admission for permanent residence is valid, their applications were properly denied even if the durational residence requirement is ineffective.[7] We 75 must therefore decide whether the District Court had jurisdiction over Espinosa's claim. We have little difficulty with Espinosa's failure to file an application with the Secretary until after he was joined in the action. Although 42 U.S. C. 405 (g) establishes filing of an application as a nonwaivable condition of jurisdiction, ; Espinosa satisfied this condition while the case was pending in the District Court. A supplemental complaint in the District Court would have eliminated this jurisdictional issue;[8] since the record discloses, both by affidavit and stipulation, that the jurisdictional condition was satisfied, it is not too late, even now, to supplement the complaint to allege this fact.[9] Under these circumstances, we treat the pleadings as properly supplemented by the Secretary's stipulation that Espinosa had filed an application. A further problem is presented by the absence of any formal administrative action by the Secretary denying Espinosa's application. Section 405 (g) requires a final decision by the Secretary after a hearing as a prerequisite of jurisdiction. at -330; However, 76 we held in that the Secretary could waive the exhaustion requirements which this provision contemplates and that he had done so in that case. ; accord, at -330 ; n. 8. We reach a similar conclusion here. The plaintiffs in alleged that their claims had been denied by the local and regional Social Security offices and that the only question was one of constitutional law, beyond the competence of the Secretary to decide. These allegations did not satisfy the exhaustion requirements of 405 (g) or the Secretary's regulations, but the Secretary failed to challenge the sufficiency of the allegations on this ground. We interpreted this failure as a determination by the Secretary that exhaustion would have been futile and deferred to his judgment that the only issue presented was the constitutionality of a provision of the Social Security Act. The same reasoning applies to the present case. Although the Secretary moved to dismiss for failure to exhaust administrative remedies, at the hearing on the motion he stipulated that no facts were in dispute, that the case was ripe for disposition by summary judgment, and that the only issue before the District Court was the constitutionality of the statute.[10] As in this constitutional question is beyond the Secretary's competence. Indeed, the Secretary has twice stated in this Court that he stipulated in the District Court that Espinosa's application would be denied for failure to meet the durational residence requirement.[11] For jurisdictional purposes, we 77 treat the stipulation in the District Court as tantamount to a decision denying the application and as a waiver of the exhaustion requirements. Cf. at 640 n. 6, 641 n. 8. We conclude, as we did in that the Secretary's submission of the question for decision on the merits by the District Court satisfied the statutory requirement of a hearing and final decision. We hold that Espinosa's claim, as well as the claims of Diaz and Clara, must be decided. II There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Wong Yang ; Wong ; see Russian Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection. Wong Yang Wong 78 The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogeneous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other;[12] and the class of aliens is itself a heterogeneous 79 multitude of persons with a wide-ranging variety of ties to this country.[13] In the exercise of its broad power over naturalization 80 and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. The exclusion of aliens[14] and the reservation of the power to deport[15] have no permissible counterpart in the Federal Government's power to regulate the conduct of its own citizenry.[16] The fact that an Act of Congress treats aliens differently from citizens does not in itself imply that such disparate treatment is "invidious." In particular, the fact that Congress has provided some welfare benefits for citizens does not require it to provide like benefits for all aliens. Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests. The decision to share that bounty with our guests may take into account the character of the relationship between the alien and this country: Congress may decide that as the alien's tie grows stronger, so does the strength of his claim to an equal share of that munificence. The real question presented by this case is not whether discrimination between citizens and aliens is permissible; rather, it is whether the statutory discrimination within the class of aliensallowing benefits to some aliens but not to othersis permissible. We turn to that question. 81 III For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.[17] Since decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary. This very case illustrates the need for flexibility in policy choices rather than the rigidity often characteristic of constitutional adjudication. Appellees Diaz and Clara are but two of over 440,000 Cuban refugees who arrived in the United States between 1961 and 1972.[18] And the Cuban parolees are but one of several categories of aliens who have been admitted in order to make a humane response to a natural catastrophe or an international political situation.[19] Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution.[20] The reasons 82 that preclude judicial review of political questions[21] also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization. Since it is obvious that Congress has no constitutional duty to provide all aliens with the welfare benefits provided to citizens, the party challenging the constitutionality of the particular line Congress has drawn has the burden of advancing principled reasoning that will at once invalidate that line and yet tolerate a different line separating some aliens from others. In this case the appellees have challenged two requirementsfirst, that the alien be admitted as a permanent resident, and, second, that his residence be of a duration of at least five years. But if these requirements were eliminated, surely Congress would at least require that the alien's entry be lawful; even then, unless mere transients are to be held constitutionally entitled to benefits, some durational requirement would certainly be appropriate. In short, it 83 is unquestionably reasonable for Congress to make an alien's eligibility depend on both the character and the duration of his residence. Since neither requirement is wholly irrational, this case essentially involves nothing more than a claim that it would have been more reasonable for Congress to select somewhat different requirements of the same kind. We may assume that the five-year line drawn by Congress is longer than necessary to protect the fiscal integrity of the program.[22] We may also assume that unnecessary hardship is incurred by persons just short of qualifying. But it remains true that some line is essential, that any line must produce some harsh and apparently arbitrary consequences, and, of greatest importance, that those who qualify under the test Congress has chosen may reasonably be presumed to have a greater affinity with the United States than those who do not. In short, citizens and those who are most like citizens qualify. Those who are less like citizens do not. The task of classifying persons for medical benefits, like the task of drawing lines for federal tax purposes, inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line; the differences between the 84 eligible and the ineligible are differences in degree rather than differences in the character of their respective claims. When this kind of policy choice must be made, we are especially reluctant to question the exercise of congressional judgment.[23] In this case, since appellees have not identified a principled basis for prescribing a different standard than the one selected by Congress, they have, in effect, merely invited us to substitute our judgment for that of Congress in deciding which aliens shall be eligible to participate in the supplementary insurance program on the same conditions as citizens. We decline the invitation. IV The cases on which appellees rely are consistent with our conclusion that this statutory classification does not deprive them of liberty or property without due process of law. provides the strongest support for appellees' position. That case holds that state statutes that deny welfare benefits to resident aliens, or to aliens not meeting a requirement of durational residence within the United States, violate the Equal Protection Clause of the Fourteenth Amendment and encroach upon the exclusive federal power over the entrance and residence of aliens. Of course, the latter ground of decision actually supports our holding today that it is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens. The equal protection analysis also involves significantly different considerations because it concerns the relationship between 85 aliens and the States rather than between aliens and the Federal Government. Insofar as state welfare policy is concerned,[24] there is little, if any, basis for treating persons who are citizens of another State differently from persons who are citizens of another country. Both groups are noncitizens as far as the State's interests in administering its welfare programs are concerned. Thus, a division by a State of the category of persons who are not citizens of that State into subcategories of United States citizens and aliens has no apparent justification, whereas, a comparable classification by the Federal Government is a routine and normally legitimate part of its business. Furthermore, whereas the Constitution inhibits every State's power to restrict travel across its own borders, Congress is explicitly empowered to exercise that type of control over travel across the borders of the United States.[25] The distinction between the constitutional limits on state power and the constitutional grant of power to the Federal Government also explains why appellees' reliance on Memorial is misplaced. That case involved Arizona's requirement of durational residence within a county in order to receive nonemergency medical care at the 86 county's expense. No question of alienage was involved. Since the sole basis for the classification between residents impinged on the constitutionally guaranteed right to travel within the United States, the holding in U.S. 618, required that it be justified by a compelling state interest.[26] Finding no such justification, we held that the requirement violated the Equal Protection Clause. This case, however, involves no state impairment of the right to travelnor indeed any impairment whatever of the right to travel within the United States; the predicate for the equal protection analysis in those cases is simply not present. Contrary to appellees' characterization, it is not "political hypocrisy" to recognize that the Fourteenth Amendment's 87 limits on state powers are substantially different from the constitutional provisions applicable to the federal power over immigration and naturalization. Finally, we reject the suggestion that U. S. Dept. of lends relevant support to appellees' claim. No question involving alienage was presented in that case. Rather, we found that the denial of food stamps to households containing unrelated members was not only unsupported by any rational basis but actually was intended to discriminate against certain politically unpopular groups. This case involves no impairment of the freedom of association of either citizens or aliens. We hold that 1395o (2) (B) has not deprived appellees of liberty or property without due process of law. The judgment of the District Court is Reversed.
Justice Souter	concurring	false	City of Sherrill v. Oneida Indian Nation of NY	2005-03-29T00:00:00	null	https://www.courtlistener.com/opinion/142882/city-of-sherrill-v-oneida-indian-nation-of-ny/	https://www.courtlistener.com/api/rest/v3/clusters/142882/	2,005	2004-034	1	8	1	I join the opinion of the Court with one qualification that goes to the appropriateness of considering the long dormancy of any claim to tribal authority over the parcels in question, as a basis to hold that the Oneida Indian Nation is not now immune from the taxing authority of local government. The Tribe's claim, whether affirmative or defensive, see ante, at 214, n. 7, is one of territorial sovereign status entitled to recognition by the territorial state sovereign and its subdivisions. The claim of present sovereign status turns not only on background law and the provisions of treaties, but also on the Tribe's behavior over a long period of time: the absence of the Tribe and tribal members from the particular lots of land, and the Tribe's failure to assert sovereignty over them. The Tribe's inaction cannot, therefore, be ignored here as affecting only a remedy to be considered later; it is, rather, central to the very claims of right made by the contending parties. Since the subject of inaction was not expressly raised as a separate question presented for review, see ante, at 214, n. 8, there is some question whether we should order reargument before dealing with it. I think that is unnecessary; the issue was addressed by each side in the argument prior to submission of the case, notwithstanding the terms of the questions on which review was granted.	I join the opinion of the Court with one qualification that goes to the appropriateness of considering the long dormancy of any claim to tribal authority over the parcels in question, as a basis to hold that the Oneida Indian Nation is not now immune from the taxing authority of local government. The Tribe's claim, whether affirmative or defensive, see ante, at 214, n. 7, is one of territorial sovereign status entitled to recognition by the territorial state sovereign and its subdivisions. The claim of present sovereign status turns not only on background law and the provisions of treaties, but also on the Tribe's behavior over a long period of time: the absence of the Tribe and tribal members from the particular lots of land, and the Tribe's failure to assert sovereignty over them. The Tribe's inaction cannot, therefore, be ignored here as affecting only a remedy to be considered later; it is, rather, central to the very claims of right made by the contending parties. Since the subject of inaction was not expressly raised as a separate question presented for review, see ante, at 214, n. 8, there is some question whether we should order reargument before dealing with it. I think that is unnecessary; the issue was addressed by each side in the argument prior to submission of the case, notwithstanding the terms of the questions on which review was granted.
Justice Rehnquist	dissenting	false	Supreme Court of NH v. Piper	1985-03-04T00:00:00	null	https://www.courtlistener.com/opinion/111363/supreme-court-of-nh-v-piper/	https://www.courtlistener.com/api/rest/v3/clusters/111363/	1,985	1984-040	2	8	1	Today the Court holds that New Hampshire cannot decide that a New Hampshire lawyer should live in New Hampshire. This may not be surprising to those who view law as just another form of business frequently practiced across state lines by interchangeable actors; the Privileges and Immunities Clause of Art. IV, § 2, has long been held to apply to States' attempts to discriminate against nonresidents who seek to ply their trade interstate. The decision will be surprising to many, however, because it so clearly disregards the fact that the practice of law is almost by definition fundamentally different from those other occupations that are practiced across state lines without significant deviation from State to State. The fact that each State is free, in a large number of areas, to establish independently of the other States its own laws for the governance of its citizens, is 290 a fundamental precept of our Constitution that, I submit, is of equal stature with the need for the States to form a cohesive union. What is at issue here is New Hampshire's right to decide that those people who in many ways will intimately deal with New Hampshire's self-governance should reside within that State. The Court's opinion states that the Privileges and Immunities Clause of Art. IV, § 2, "was intended to `fuse into one Nation a collection of independent, sovereign States.' " Ante, at 279 (quoting Toomer v. Witsell, 334 U.S. 385, 395 (1948)). To this end, we are told, the Clause has been construed to protect the fundamental "privilege" of citizens of one State to do business in another State on terms substantially equal with that State's citizens. This privilege must be protected to effectuate the Clause's purpose to "create a national economic union." Ante, at 280. And for the Court, the practice of law is no different from those occupations considered in earlier Privileges and Immunities Clause cases, because "the practice of law is important to the national economy." Ante, at 281. After concluding that the Clause applies to lawyers, the Court goes on to reject the many reasons the Supreme Court of New Hampshire advances for limiting the State's lawyers to those who reside in state. The Court either labels these reasons insubstantial, or it advances, with the assurance of an inveterate second-guesser, a "less restrictive means" for the State to attack the perceived problem. The Framers of our Constitution undoubtedly wished to ensure that the newly created Union did not revert to its component parts because of interstate jealousies and insular tendencies, and it seems clear that the Art. IV Privileges and Immunities Clause was one result of these concerns. But the Framers also created a system of federalism that deliberately allowed for the independent operation of many sovereign States, each with their own laws created by their own legislators and judges. The assumption from the beginning was that the various States' laws need not, and would not, 291 be the same; the lawmakers of each State might endorse different philosophies and would have to respond to differing interests of their constituents, based on various factors that were of inherently local character. Any student of our Nation's history is well aware of the differing interests of the various States that were represented at Philadelphia; despite the tremendous improvements in transportation and communication that have served to create a more homogeneous country the differences among the various States have hardly disappeared. It is but a small step from these facts to the recognition that a State has a very strong interest in seeing that its legislators and its judges come from among the constituency of state residents, so that they better understand the local interests to which they will have to respond. The Court does not contest this point; it recognizes that a State may require its lawmakers to be residents without running afoul of the Privileges and Immunities Clause of Art. IV, § 2. See ante, at 282, n. 13. Unlike the Court, I would take the next step, and recognize that the State also has a very "substantial" interest in seeing that its lawyers also are members of that constituency. I begin with two important principles that the Court seems to have forgotten: first, that in reviewing state statutes under this Clause "States should have considerable leeway in analyzing local evils and prescribing appropriate cures," United Building & Construction Trades Council v. Mayor & Council of Camden, 465 U.S. 208, 223 (1984) (citing Toomer, supra, at 396), and second, that regulation of the practice of law generally has been "left exclusively to the States . . . ." Leis v. Flynt, 439 U.S. 438, 442 (1979) (per curiam). My belief that the practice of law differs from other trades and businesses for Art. IV, § 2, purposes is not based on some notion that law is for some reason a superior profession. The reason that the practice of law should be treated differently is that law is one occupation that does not 292 readily translate across state lines.[1] Certain aspects of legal practice are distinctly and intentionally nonnational; in this regard one might view this country's legal system as the antithesis of the norms embodied in the Art. IV Privileges and Immunities Clause. Put simply, the State has a substantial interest in creating its own set of laws responsive to its own local interests, and it is reasonable for a State to decide that those people who have been trained to analyze law and policy are better equipped to write those state laws and adjudicate cases arising under them. The State therefore may decide that it has an interest in maximizing the number of resident lawyers, so as to increase the quality of the pool from which its lawmakers can be drawn.[2] A residency law such as the one at issue is the obvious way to accomplish these goals. Since at any given time within a State there is only enough legal work to support a certain number of lawyers, each out-of-state 293 lawyer who is allowed to practice necessarily takes legal work that could support an in-state lawyer, who would otherwise be available to perform various functions that a State has an interest in promoting.[3] Nor does the State's interest end with enlarging the pool of qualified lawmakers. A State similarly might determine that because lawyers play an important role in the formulation of state policy through their adversary representation, they should be intimately conversant with the local concerns that should inform such policies. And the State likewise might conclude that those citizens trained in the law are likely to bring their useful expertise to other important functions that benefit from such expertise and are of interest to state governments such as trusteeships, or directorships of corporations or charitable organizations, or school board positions, or merely the role of the interested citizen at a town meeting. Thus, although the Court suggests that state bars can require out-of-state members to "represent indigents and perhaps to participate in formal legal-aid work," ante, at 287, the Court ignores a host of other important functions that a State could find would likely be performed only by in-state bar members. States may find a substantial interest in members of their bar being residents, and this insular interest as with the opposing interest in interstate harmony represented by Art. IV, § 2 itself has its genesis in the language and structure of the Constitution.[4] 294 It is no answer to these arguments that many lawyers simply will not perform these functions, or that out-of-state lawyers can perform them equally well, or that the State can devise less restrictive alternatives for accomplishing these goals. Conclusory second-guessing of difficult legislative decisions, such as the Court resorts to today, is not an attractive way for federal courts to engage in judicial review. Thus, whatever the reality of how much New Hampshire can expect to gain from having the members of its bar reside within that State, the point is that New Hampshire is entitled to believe and hope that its lawyers will provide the various unique services mentioned above, just as it is entitled to believe that the residency requirement is the appropriate way to that end. As noted, some of these services can only be provided by lawyers who also are residents. With respect to the other services, the State can reasonably find that lawyers who reside in state are more likely to undertake them. In addition, I find the Court's "less restrictive means" analysis both ill-advised and potentially unmanageable. Initially I would note, as I and other Members of this Court have before, see Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 599-600 (1980) (REHNQUIST, J., dissenting) (citing Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 188-189 (1979) (BLACKMUN, J., concurring)); cf. Florida v. Royer, 460 U.S. 491, 528-529 (1983) (REHNQUIST, J., dissenting), that such an analysis, when carried too far, will ultimately lead to striking 295 down almost any statute on the ground that the Court could think of another "less restrictive" way to write it. This approach to judicial review, far more than the usual application of a standard of review, tends to place courts in the position of second-guessing legislators on legislative matters. Surely this is not a consequence to be desired. In any event, I find the less-restrictive-means analysis, which is borrowed from our First Amendment jurisprudence, to be out of place in the context of the Art. IV Privileges and Immunities Clause. Toomer v. Witsell, 334 U. S., at 396, and Hicklin v. Orbeck, 437 U.S. 518, 529-530 (1978), indicate that the means employed by the State should bear a "substantial" or "close relation" to the State's objectives, and they speak in terms of whether the State's approach is "tailored" to its stated goal. This approach perhaps has a place: to the extent that an obvious way to accomplish the State's proffered goal is apparent, the fact that the State did not follow that path may indicate that the State had another, less legitimate goal in mind. But I believe the challenge of a "less restrictive means" should be overcome if merely a legitimate reason exists for not pursuing that path. And in any event courts should not play the game that the Court has played here independently scrutinizing each asserted state interest to see if it could devise a better way than the State to accomplish that goal. Here the appellee primarily argues that if the State really was concerned about out-of-state lawyers it would not allow those who leave the State after joining the bar to remain members. The answer to this argument was well stated by the dissenting judges in the Court of Appeals for the First Circuit: "[T]he Supreme Court of New Hampshire might have concluded that not many New Hampshire lawyers will both pull up stakes and continue to practice in the state. And it might further believe that the bureaucracy required to keep track of such comings and goings would not be worth the trouble . . . ." 723 F.2d 110, 122, n. 4 (1983) (opinion of Campbell, C. J., and Breyer, J.). 296 There is yet another interest asserted by the State that I believe would justify a decision to limit membership in the state bar to state residents. The State argues that out-of-state bar members pose a problem in situations where counsel must be available on short notice to represent clients on unscheduled matters. The Court brushes this argument aside, speculating that "a high percentage of nonresident lawyers willing to take the state bar examination and pay the annual dues will reside in places reasonably convenient to New Hampshire," and suggesting that in any event the trial court could alleviate this problem by requiring the lawyer to retain local counsel. Ante, at 286-287. Assuming that the latter suggestion does not itself constitute unlawful discrimination under the Court's test, there nevertheless may be good reasons why a State or a trial court would rather not get into structuring attorney-client relationships by requiring the retention of local counsel for emergency matters. The situation would have to be explained to the client, and the allocation of responsibility between resident and nonresident counsel could cause as many problems as the Court's suggestion might cure. Nor do I believe that the problem can be confined to emergency matters. The Court admits that even in the ordinary course of litigation a trial judge will want trial lawyers to be available on short notice; the uncertainties of managing a trial docket are such that lawyers rarely are given a single date on which a trial will begin; they may be required to "stand by" or whatever the local terminology is for days at a time, and then be expected to be ready in a matter of hours, with witnesses, when the case in front of them suddenly settles. A State reasonably can decide that a trial court should not have added to its present scheduling difficulties the uncertainties and added delays fostered by counsel who might reside 1,000 miles from New Hampshire. If there is any single problem with state legal systems that this Court might consider "substantial," it is the problem of delay 297 in litigation a subject that has been profusely explored in the literature over the past several years. See, e. g., Attacking Litigation Costs and Delay, Final Report of the Action Commission to Reduce Court Costs and Delay (American Bar Association 1984); S. Wasby, T. Marvell, & A. Aikman, Volume and Delay in State Appellate Courts: Problems and Responses (1979). Surely the State has a substantial interest in taking steps to minimize this problem. Thus, I think that New Hampshire had more than enough "substantial reasons" to conclude that its lawyers should also be its residents. I would hold that the Rule of the New Hampshire Supreme Court does not violate the Privileges and Immunities Clause of Art. IV.	Today the Court holds that New Hampshire cannot decide that a New Hampshire lawyer should live in New Hampshire. This may not be surprising to those who view law as just another form of business frequently practiced across state lines by interchangeable actors; the Privileges and Immunities Clause of Art. IV, 2, has long been held to apply to States' attempts to discriminate against nonresidents who seek to ply their trade interstate. The decision will be surprising to many, however, because it so clearly disregards the fact that the practice of law is almost by definition fundamentally different from those other occupations that are practiced across state lines without significant deviation from State to State. The fact that each State is free, in a large number of areas, to establish independently of the other States its own laws for the governance of its citizens, is 290 a fundamental precept of our Constitution that, I submit, is of equal stature with the need for the States to form a cohesive union. What is at issue here is New Hampshire's right to decide that those people who in many ways will intimately deal with New Hampshire's self-governance should reside within that State. The Court's opinion states that the Privileges and Immunities Clause of Art. IV, 2, "was intended to `fuse into one Nation a collection of independent, sovereign States.' " Ante, at 279 ). To this end, we are told, the Clause has been construed to protect the fundamental "privilege" of citizens of one State to do business in another State on terms substantially equal with that State's citizens. This privilege must be protected to effectuate the Clause's purpose to "create a national economic union." Ante, at 280. And for the Court, the practice of law is no different from those occupations considered in earlier Privileges and Immunities Clause cases, because "the practice of law is important to the national economy." Ante, at 281. After concluding that the Clause applies to lawyers, the Court goes on to reject the many reasons the Supreme Court of New Hampshire advances for limiting the State's lawyers to those who reside in state. The Court either labels these reasons insubstantial, or it advances, with the assurance of an inveterate second-guesser, a "less restrictive means" for the State to attack the perceived problem. The Framers of our Constitution undoubtedly wished to ensure that the newly created Union did not revert to its component parts because of interstate jealousies and insular tendencies, and it seems clear that the Art. IV Privileges and Immunities Clause was one result of these concerns. But the Framers also created a system of federalism that deliberately allowed for the independent operation of many sovereign States, each with their own laws created by their own legislators and judges. The assumption from the beginning was that the various States' laws need not, and would not, 291 be the same; the lawmakers of each State might endorse different philosophies and would have to respond to differing interests of their constituents, based on various factors that were of inherently local character. Any student of our Nation's history is well aware of the differing interests of the various States that were represented at Philadelphia; despite the tremendous improvements in transportation and communication that have served to create a more homogeneous country the differences among the various States have hardly disappeared. It is but a small step from these facts to the recognition that a State has a very strong interest in seeing that its legislators and its judges come from among the constituency of state residents, so that they better understand the local interests to which they will have to respond. The Court does not contest this point; it recognizes that a State may require its lawmakers to be residents without running afoul of the Privileges and Immunities Clause of Art. IV, 2. See ante, at 282, n. 13. Unlike the Court, I would take the next step, and recognize that the State also has a very "substantial" interest in seeing that its lawyers also are members of that constituency. I begin with two important principles that the Court seems to have forgotten: first, that in reviewing state statutes under this Clause "States should have considerable leeway in analyzing local evils and prescribing appropriate cures," United Building & Construction Trades and second, that regulation of the practice of law generally has been "left exclusively to the States" My belief that the practice of law differs from other trades and businesses for Art. IV, 2, purposes is not based on some notion that law is for some reason a superior profession. The reason that the practice of law should be treated differently is that law is one occupation that does not 292 readily translate across state lines.[1] Certain aspects of legal practice are distinctly and intentionally nonnational; in this regard one might view this country's legal system as the antithesis of the norms embodied in the Art. IV Privileges and Immunities Clause. Put simply, the State has a substantial interest in creating its own set of laws responsive to its own local interests, and it is reasonable for a State to decide that those people who have been trained to analyze law and policy are better equipped to write those state laws and adjudicate cases arising under them. The State therefore may decide that it has an interest in maximizing the number of resident lawyers, so as to increase the quality of the pool from which its lawmakers can be drawn.[2] A residency law such as the one at issue is the obvious way to accomplish these goals. Since at any given time within a State there is only enough legal work to support a certain number of lawyers, each out-of-state 293 lawyer who is allowed to practice necessarily takes legal work that could support an in-state lawyer, who would otherwise be available to perform various functions that a State has an interest in promoting.[3] Nor does the State's interest end with enlarging the pool of qualified lawmakers. A State similarly might determine that because lawyers play an important role in the formulation of state policy through their adversary representation, they should be intimately conversant with the local concerns that should inform such policies. And the State likewise might conclude that those citizens trained in the law are likely to bring their useful expertise to other important functions that benefit from such expertise and are of interest to state governments such as trusteeships, or directorships of corporations or charitable organizations, or school board positions, or merely the role of the interested citizen at a town meeting. Thus, although the Court suggests that state bars can require out-of-state members to "represent indigents and perhaps to participate in formal legal-aid work," ante, at 287, the Court ignores a host of other important functions that a State could find would likely be performed only by in-state bar members. States may find a substantial interest in members of their bar being residents, and this insular interest as with the opposing interest in interstate harmony represented by Art. IV, 2 itself has its genesis in the language and structure of the Constitution.[4] 294 It is no answer to these arguments that many lawyers simply will not perform these functions, or that out-of-state lawyers can perform them equally well, or that the State can devise less restrictive alternatives for accomplishing these goals. Conclusory second-guessing of difficult legislative decisions, such as the Court resorts to today, is not an attractive way for federal courts to engage in judicial review. Thus, whatever the reality of how much New Hampshire can expect to gain from having the members of its bar reside within that State, the point is that New Hampshire is entitled to believe and hope that its lawyers will provide the various unique services mentioned above, just as it is entitled to believe that the residency requirement is the appropriate way to that end. As noted, some of these services can only be provided by lawyers who also are residents. With respect to the other services, the State can reasonably find that lawyers who reside in state are more likely to undertake them. In addition, I find the Court's "less restrictive means" analysis both ill-advised and potentially unmanageable. Initially I would note, as I and other Members of this Court have before, see Central Hudson Gas & Elec. ); cf. that such an analysis, when carried too far, will ultimately lead to striking 295 down almost any statute on the ground that the Court could think of another "less restrictive" way to write it. This approach to judicial review, far more than the usual application of a standard of review, tends to place courts in the position of second-guessing legislators on legislative matters. Surely this is not a consequence to be desired. In any event, I find the less-restrictive-means analysis, which is borrowed from our First Amendment jurisprudence, to be out of place in the context of the Art. IV Privileges and Immunities Clause. 334 U. S., and indicate that the means employed by the State should bear a "substantial" or "close relation" to the State's objectives, and they speak in terms of whether the State's approach is "tailored" to its stated goal. This approach perhaps has a place: to the extent that an obvious way to accomplish the State's proffered goal is apparent, the fact that the State did not follow that path may indicate that the State had another, less legitimate goal in mind. But I believe the challenge of a "less restrictive means" should be overcome if merely a legitimate reason exists for not pursuing that path. And in any event courts should not play the game that the Court has played here independently scrutinizing each asserted state interest to see if it could devise a better way than the State to accomplish that goal. Here the appellee primarily argues that if the State really was concerned about out-of-state lawyers it would not allow those who leave the State after joining the bar to remain members. The answer to this argument was well stated by the dissenting judges in the Court of Appeals for the First Circuit: "[T]he Supreme Court of New Hampshire might have concluded that not many New Hampshire lawyers will both pull up stakes and continue to practice in the state. And it might further believe that the bureaucracy required to keep track of such comings and goings would not be worth the trouble" 296 There is yet another interest asserted by the State that I believe would justify a decision to limit membership in the state bar to state residents. The State argues that out-of-state bar members pose a problem in situations where counsel must be available on short notice to represent clients on unscheduled matters. The Court brushes this argument aside, speculating that "a high percentage of nonresident lawyers willing to take the state bar examination and pay the annual dues will reside in places reasonably convenient to New Hampshire," and suggesting that in any event the trial court could alleviate this problem by requiring the lawyer to retain local counsel. Ante, at 286-287. Assuming that the latter suggestion does not itself constitute unlawful discrimination under the Court's test, there nevertheless may be good reasons why a State or a trial court would rather not get into structuring attorney-client relationships by requiring the retention of local counsel for emergency matters. The situation would have to be explained to the client, and the allocation of responsibility between resident and nonresident counsel could cause as many problems as the Court's suggestion might cure. Nor do I believe that the problem can be confined to emergency matters. The Court admits that even in the ordinary course of litigation a trial judge will want trial lawyers to be available on short notice; the uncertainties of managing a trial docket are such that lawyers rarely are given a single date on which a trial will begin; they may be required to "stand by" or whatever the local terminology is for days at a time, and then be expected to be ready in a matter of hours, with witnesses, when the case in front of them suddenly settles. A State reasonably can decide that a trial court should not have added to its present scheduling difficulties the uncertainties and added delays fostered by counsel who might reside 1,000 miles from New Hampshire. If there is any single problem with state legal systems that this Court might consider "substantial," it is the problem of delay 297 in litigation a subject that has been profusely explored in the literature over the past several years. See, e. g., Attacking Litigation Costs and Delay, Final Report of the Action Commission to Reduce Court Costs and Delay ; S. Wasby, T. Marvell, & A. Aikman, Volume and Delay in State Appellate Courts: Problems and Responses Surely the State has a substantial interest in taking steps to minimize this problem. Thus, I think that New Hampshire had more than enough "substantial reasons" to conclude that its lawyers should also be its residents. I would hold that the Rule of the New Hampshire Supreme Court does not violate the Privileges and Immunities Clause of Art. IV.
Justice Brennan	concurring	false	Hazelwood School Dist. v. United States	1977-06-27T00:00:00	null	https://www.courtlistener.com/opinion/109724/hazelwood-school-dist-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/109724/	1,977	1976-172	1	8	1	I join the Court's opinion. Similarly to our decision in Dayton Board of Education v. Brinkman, post, p. 406, today's opinion revolves around the relative factfinding roles of district courts and courts of appeals. It should be plain, however, that the liberal substantive standards for establishing a Title VII violation, including the usefulness of statistical proof, are reconfirmed. In the present case, the District Court had adopted a wholly inappropriate legal standard of discrimination, and therefore *314 did not evaluate the factual record before it in a meaningful way. This remand in effect orders it to do so. It is my understanding, as apparently it is MR. JUSTICE STEVENS', post, at 318 n. 5, that the statistical inquiry mentioned by the Court, ante, at 311 n. 17, and accompanying text, can be of no help to the Hazelwood School Board in rebutting the Government's evidence of discrimination. Indeed, even if the relative comparison market is found to be 5.7% rather than 15.4% black, the applicable statistical analysis at most will not serve to bolster the Government's case. This obviously is of no aid to Hazelwood in meeting its burden of proof. Nonetheless I think that the remand directed by the Court is appropriate and will allow the parties to address these figures and calculations with greater care and precision. I also agree that given the misapplication of governing legal principles by the District Court, Hazelwood reasonably should be given the opportunity to come forward with more focused and specific applicant-flow data in the hope of answering the Government's prima facie case. If, as presently seems likely, reliable applicant data are found to be lacking, the conclusion reached by my Brother STEVENS will inevitably be forthcoming. MR.	I join the Court's opinion. Similarly to our decision in Dayton Board of Education v. Brinkman, post, p. 406, today's opinion revolves around the relative factfinding roles of district courts and courts of appeals. It should be plain, however, that the liberal substantive standards for establishing a Title VII violation, including the usefulness of statistical proof, are reconfirmed. In the present case, the District Court had adopted a wholly inappropriate legal standard of discrimination, and therefore *314 did not evaluate the factual record before it in a meaningful way. This remand in effect orders it to do so. It is my understanding, as apparently it is MR. JUSTICE STEVENS', post, at 318 n. 5, that the statistical inquiry mentioned by the Court, ante, at 311 n. 17, and accompanying text, can be of no help to the Hazelwood School Board in rebutting the Government's evidence of discrimination. Indeed, even if the relative comparison market is found to be 5.7% rather than 15.4% black, the applicable statistical analysis at most will not serve to bolster the Government's case. This obviously is of no aid to Hazelwood in meeting its burden of proof. Nonetheless I think that the remand directed by the Court is appropriate and will allow the parties to address these figures and calculations with greater care and precision. I also agree that given the misapplication of governing legal principles by the District Court, Hazelwood reasonably should be given the opportunity to come forward with more focused and specific applicant-flow data in the hope of answering the Government's prima facie case. If, as presently seems likely, reliable applicant data are found to be lacking, the conclusion reached by my Brother STEVENS will inevitably be forthcoming. MR.
Justice Stevens	dissenting	false	Erie v. Pap's AM	2000-03-29T00:00:00	null	https://www.courtlistener.com/opinion/118353/erie-v-paps-am/	https://www.courtlistener.com/api/rest/v3/clusters/118353/	2,000	1999-044	1	6	3	Far more important than the question whether nude dancing is entitled to the protection of the First Amendment are the dramatic changes in legal doctrine that the Court endorses today. Until now, the "secondary effects" of commercial enterprises featuring indecent entertainment have justified only the regulation of their location. For the first time, the Court has now held that such effects may justify 318 the total suppression of protected speech. Indeed, the plurality opinion concludes that admittedly trivial advancements of a State's interests may provide the basis for censorship. The Court's commendable attempt to replace the fractured decision in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), with a single coherent rationale is strikingly unsuccessful; it is supported neither by precedent nor by persuasive reasoning. I As the preamble to Ordinance No. 75-1994 candidly acknowledges, the council of the city of Erie enacted the restriction at issue "for the purpose of limiting a recent increase in nude live entertainment within the City." Ante, at 290 (internal quotation marks omitted). Prior to the enactment of the ordinance, the dancers at Kandyland performed in the nude. As the Court recognizes, after its enactment they can perform precisely the same dances if they wear "pasties and G-strings." Ante, at 294; see also ante, at 313, n. 2 (Souter, J., concurring in part and dissenting in part). In both instances, the erotic messages conveyed by the dancers to a willing audience are a form of expression protected by the First Amendment. Ante, at 289.[1] Despite the similarity between the messages conveyed by the two forms of dance, they are not identical. If we accept Chief Judge Posner's evaluation of this art form, see Miller v. South Bend, 904 F.2d 1081, 1089-1104 (CA7 1990) (en banc), the difference between the two messages is significant. The plurality assumes, however, that the difference in the content of the message resulting from 319 the mandated costume change is "de minimis. " Ante, at 294. Although I suspect that the patrons of Kandyland are more likely to share Chief Judge Posner's view than the plurality's, for present purposes I shall accept the assumption that the difference in the message is small. The crucial point to remember, however, is that whether one views the difference as large or small, nude dancing still receives First Amendment protection, even if that protection lies only in the "outer ambit" of that Amendment. Ante, at 289. Erie's ordinance, therefore, burdens a message protected by the First Amendment. If one assumes that the same erotic message is conveyed by nude dancers as by those wearing miniscule costumes, one means of expressing that message is banned;[2] if one assumes that the messages are different, one of those messages is banned. In either event, the ordinance is a total ban. The plurality relies on the so-called "secondary effects" test to defend the ordinance. Ante, at 290-296. The present use of that rationale, however, finds no support whatsoever in our precedents. Never before have we approved the use of that doctrine to justify a total ban on protected First Amendment expression. On the contrary, we have been quite clear that the doctrine would not support that end. In Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), we upheld a Detroit zoning ordinance that placed special restrictions on the location of motion picture theaters that exhibited "adult" movies. The "secondary effects" of the adult theaters on the neighborhoods where they were locatedlower property values and increases in crime (especially prostitution) to name a fewjustified the burden imposed 320 by the ordinance. Id., at 54, 71, and n. 34 (plurality opinion). Essential to our holding, however, was the fact that the ordinance was "nothing more than a limitation on the place where adult films may be exhibited" and did not limit the size of the market in such speech. Id., at 71; see also id., at 61, 63, n. 18, 70, 71, n. 35. As Justice Powell emphasized in his concurrence: "At most the impact of the ordinance on [the First Amendment] interests is incidental and minimal. Detroit has silenced no message, has invoked no censorship, and has imposed no limitation upon those who wish to view them. The ordinance is addressed only to the places at which this type of expression may be presented, a restriction that does not interfere with content. Nor is there any significant overall curtailment of adult movie presentations, or the opportunity for a message to reach an audience." Id., at 78-79. See also id., at 81, n. 4 ("[A] zoning ordinance that merely specifies where a theater may locate, and that does not reduce significantly the number or accessibility of theaters presenting particular films, stifles no expression"). In Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), we upheld a similar ordinance, again finding that the "secondary effects of such theaters on the surrounding community" justified a restrictive zoning law. Id., at 47 (emphasis deleted). We noted, however, that "[t]he Renton ordinance, like the one in American Mini Theatres, does not ban adult theaters altogether," but merely "circumscribe[s] their choice as to location." Id., at 46, 48; see also id., at 54 ("In our view, the First Amendment requires . . . that Renton refrain from effectively denying respondents a reasonable opportunity to open and operate an adult theater within the city . . ."). Indeed, in both Renton and American Mini Theatres, the zoning ordinances were analyzed as mere "time, 321 place, and manner" regulations.[3] See Renton, 475 U. S., at 46; American Mini Theatres, 427 U. S., at 63, and n. 18; id., at 82, n. 6. Because time, place, and manner regulations must "leave open ample alternative channels for communication of the information," Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), a total ban would necessarily fail that test.[4] And we so held in Schad v. Mount Ephraim, 452 U.S. 61 (1981). There, we addressed a zoning ordinance that did not merely require the dispersal of adult theaters, but prohibited 322 them altogether. In striking down that law, we focused precisely on that distinction, holding that the secondary effects analysis endorsed in the past did not apply to an ordinance that totally banned nude dancing: "The restriction [in Young v. American Mini Theatres ] did not affect the number of adult movie theaters that could operate in the city; it merely dispersed them. The Court did not imply that a municipality could ban all adult theatersmuch less all live entertainment or all nude dancingfrom its commercial districts citywide." Id., at 71 (plurality opinion); see also id., at 76; id., at 77 (Blackmun, J., concurring) (joining plurality); id., at 79 (Powell, J., concurring) (same). The reason we have limited our secondary effects cases to zoning and declined to extend their reasoning to total bans is clear and straightforward: A dispersal that simply limits the places where speech may occur is a minimal imposition, whereas a total ban is the most exacting of restrictions. The State's interest in fighting presumed secondary effects is sufficiently strong to justify the former, but far too weak to support the latter, more severe burden.[5] Yet it is perfectly clear that in the present caseto use Justice Powell's metaphor in American Mini Theatres the city of Erie has totally silenced a message the dancers at Kandyland want to convey. The fact that this censorship may have a laudable ulterior purpose cannot mean that censorship is not censorship. For these reasons, the Court's holding rejects the explicit reasoning in American Mini Theatres and Renton and the express holding in Schad. The Court's use of the secondary effects rationale to permit a total ban has grave implications for basic free speech principles. Ordinarily, laws regulating the primary effects of speech, i. e., the intended persuasive effects caused by the 323 speech, are presumptively invalid. Under today's opinion, a State may totally ban speech based on its secondary effectswhich are defined as those effects that "happen to be associated" with speech, Boos v. Barry, 485 U.S. 312, 320 321 (1988); see ante, at 291yet the regulation is not presumptively invalid. Because the category of effects that "happen to be associated" with speech includes the narrower subset of effects caused by speech, today's holding has the effect of swallowing whole a most fundamental principle of First Amendment jurisprudence. II The plurality's mishandling of our secondary effects cases is not limited to its approval of a total ban. It compounds that error by dramatically reducing the degree to which the State's interest must be furthered by the restriction imposed on speech, and by ignoring the critical difference between secondary effects caused by speech and the incidental effects on speech that may be caused by a regulation of conduct. In what can most delicately be characterized as an enormous understatement, the plurality concedes that "requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects." Ante, at 301. To believe that the mandatory addition of pasties and a G-string will have any kind of noticeable impact on secondary effects requires nothing short of a titanic surrender to the implausible. It would be more accurate to acknowledge, as Justice Scalia does, that there is no reason to believe that such a requirement "will at all reduce the tendency of establishments such as Kandyland to attract crime and prostitution, and hence to foster sexually transmitted disease." Ante, at 310 (opinion concurring in judgment); see also ante, at 313, n. 2 (Souter, J., concurring in part and dissenting in part). Nevertheless, the plurality concludes that the "less stringent" test announced in United States v. O'Brien, 391 U.S. 367 (1968), "requires only that the regulation further the interest in 324 combating such effects," ante, at 301; see also ante, at 289. It is one thing to say, however, that O'Brien is more lenient than the "more demanding standard" we have imposed in cases such as Texas v. Johnson, 491 U.S. 397 (1989). See ante, at 289. It is quite another to say that the test can be satisfied by nothing more than the mere possibility of de minimis effects on the neighborhood. The plurality is also mistaken in equating our secondary effects cases with the "incidental burdens" doctrine applied in cases such as O'Brien; and it aggravates the error by invoking the latter line of cases to support its assertion that Erie's ordinance is unrelated to speech. The incidental burdens doctrine applies when "`speech' and `nonspeech' elements are combined in the same course of conduct," and the government's interest in regulating the latter justifies incidental burdens on the former. O'Brien, 391 U. S., at 376. Secondary effects, on the other hand, are indirect consequences of protected speech and may justify regulation of the places where that speech may occur. See American Mini Theatres, 427 U. S., at 71, n. 34 ("[A] concentration of `adult' movie theaters causes the area to deteriorate and become a focus of crime").[6] When a State enacts a regulation, it might focus on the secondary effects of speech as its aim, or it might concentrate on nonspeech related concerns, having no thoughts at all with respect to how its regulation will affect speechand only later, when the regulation is found to burden speech, justify the imposition as an unintended incidental consequence.[7] But those interests are not the 325 same, and the plurality cannot ignore their differences and insist that both aims are equally unrelated to speech simply because Erie might have "recogniz[ed]" that it could possibly have had either aim in mind. See ante, at 295.[8] One can think of an apple and an orange at the same time; that does not turn them into the same fruit. Of course, the line between governmental interests aimed at conduct and unrelated to speech, on the one hand, and interests arising out of the effects of the speech, on the other, may be somewhat imprecise in some cases. In this case, however, we need not wrestle with any such difficulty because Erie has expressly justified its ordinance with reference to secondary effects. Indeed, if Erie's concern with the effects of the message were unrelated to the message itself, it is strange that the only means used to combat those effects is the suppression of the message.[9] For these reasons, the plurality's argument that "this case is similar to O'Brien, " ante, at 291; see also ante, at 294, is quite wrong, as are its 326 citations to Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), and Ward v. Rock Against Racism, 491 U.S. 781 (1989), ante, at 293-295, neither of which involved secondary effects. The plurality cannot have its cake and eat it tooeither Erie's ordinance was not aimed at speech and the plurality may attempt to justify the regulation under the incidental burdens test, or Erie has aimed its law at the secondary effects of speech, and the plurality can try to justify the law under that doctrine. But it cannot conflate the two with the expectation that Erie's interests aimed at secondary effects will be rendered unrelated to speech by virtue of this doctrinal polyglot. Correct analysis of the issue in this case should begin with the proposition that nude dancing is a species of expressive conduct that is protected by the First Amendment. As Chief Judge Posner has observed, nude dancing fits well within a broad, cultural tradition recognized as expressive in nature and entitled to First Amendment protection. See 904 F.2d, at 1089-1104; see also Note, 97 Colum. L. Rev. 1844 (1997). The nudity of the dancer is both a component of the protected expression and the specific target of the ordinance. It is pure sophistry to reason from the premise that the regulation of the nudity component of nude dancing is unrelated to the message conveyed by nude dancers. Indeed, both the text of the ordinance and the reasoning in the plurality's opinion make it pellucidly clear that the city of Erie has prohibited nude dancing "precisely because of its communicative attributes." Barnes, 501 U. S., at 577 (Scalia, J.,concurring in judgment) (emphasis in original); see id., at 596 (White, J., dissenting). III The censorial purpose of Erie's ordinance precludes reliance on the judgment in Barnes as sufficient support for the Court's holding today. Several differences between the Erie ordinance and the statute at issue in Barnes belie the plurality's assertion that the two laws are "almost identical." 327 Ante, at 289. To begin with, the preamble to Erie's ordinance candidly articulates its agenda, declaring: "Council specifically wishes to adopt the concept of Public Indecency prohibited by the laws of the State of Indiana, which was approved by the U. S. Supreme Court in Barnes vs. Glen Theatre Inc., . .. for the purpose of limiting a recent increase in nude live entertainment within the City. " App. to Pet. for Cert. 42a (emphasis added); see also ante, at 290.[10] As its preamble forthrightly admits, the ordinance's "purpose" is to "limi[t]" a protected form of speech; its invocation of Barnes cannot obliterate that professed aim.[11] Erie's ordinance differs from the statute in Barnes in another respect. In Barnes, the Court expressly observed that the Indiana statute had not been given a limiting construction by the Indiana Supreme Court. As presented to this Court, there was nothing about the law itself that would confine its application to nude dancing in adult entertainment establishments. See 501 U.S., at 564, n. 1 (discussing Indiana Supreme Court's lack of a limiting construction); see also id., at 585, n. 2 (Souter, J., concurring in judgment). 328 Erie's ordinance, however, comes to us in a much different posture. In an earlier proceeding in this case, the Court of Common Pleas asked Erie's counsel "what effect would this ordinance have on theater . . . productions such as Equus, Hair, O[h!] Calcutta[!]? Under your ordinance would these things be prevented . .. ?" Counsel responded: "No, they wouldn't, Your Honor." App. 53.[12] Indeed, as stipulated in the record, the city permitted a production of Equus to proceed without prosecution, even after the ordinance was in effect, and despite its awareness of the nudity involved in the production. Id., at 84.[13] Even if, in light of its broad applicability, the statute in Barnes was not aimed at a particular form of speech, Erie's ordinance is quite different. As presented to us, the ordinance is deliberately targeted at Kandyland's type of nude dancing (to the exclusion of plays like Equus), in terms of both its applicable scope and the city's enforcement.[14] 329 This narrow aim is confirmed by the expressed views of the Erie City Councilmembers who voted for the ordinance. The four city councilmembers who approved the measure (of the six total councilmembers) each stated his or her view that the ordinance was aimed specifically at nude adult entertainment, and not at more mainstream forms of entertainment that include total nudity, nor even at nudity in general. One lawmaker observed: "We're not talking about nudity. We're not talking about the theater or art . . . . We're talking about what is indecent and immoral. . . . We're not prohibiting nudity, we're prohibiting nudity when it's used in a lewd and immoral fashion." App. 39. Though not quite as succinct, the other councilmembers expressed similar convictions. For example, one member illustrated his understanding of the aim of the law by contrasting it with his recollection about high school students swimming in the nude in the school's pool. The ordinance was not intended to cover those incidents of nudity: "But what I'm getting at is [the swimming] wasn't indecent, it wasn't an immoral thing, and 330 yet there was nudity." Id., at 42. The same lawmaker then disfavorably compared the nude swimming incident to the activities that occur in "some of these clubs" that exist in Erieclubs that would be covered by the law. Ibid.[15] Though such comments could be consistent with an interest in a general prohibition of nudity, the complete absence of commentary on that broader interest, and the councilmembers' exclusive focus on adult entertainment, is evidence of the ordinance's aim. In my view, we need not strain to find consistency with more general purposes when the most natural reading of the record reflects a near obsessive preoccupation with a single target of the law.[16] The text of Erie's ordinance is also significantly different from the law upheld in Barnes. In Barnes, the statute defined "nudity" as "the showing of the human male or female 331 genitals" (and certain other regions of the body) "with less than a fully opaque covering." 501 U.S., at 569, n. 2. The Erie ordinance duplicates that definition in all material respects, but adds the following to its definition of "[n]udity": "`[T]he exposure of any device, costume, or covering which gives the appearance of or simulates the genitals, pubic hair, natal cleft, perineum anal region or pubic hair region; or the exposure of any device worn as a cover over the nipples and/or areola of the female breast, which device simulates and gives the realistic appearance of nipples and/or areola.' " Ante, at 283 284, n. (emphasis added). Can it be doubted that this out-of-the-ordinary definition of "nudity" is aimed directly at the dancers in establishments such as Kandyland? Who else is likely to don such garments? [17] We should not stretch to embrace fanciful explanations when the most natural reading of the ordinance unmistakably identifies its intended target. It is clear beyond a shadow of a doubt that the Erie ordinance was a response to a more specific concern than nudity in general, namely, nude dancing of the sort found in Kandyland.[18] Given that the Court has not even tried to defend *332 the ordinance's total ban on the ground that its censorship of protected speech might be justified by an overriding state interest, it should conclude that the ordinance is patently invalid. For these reasons, as well as the reasons set forth in Justice White's dissent in Barnes, I respectfully dissent.	Far more important than the question whether nude dancing is entitled to the protection of the First Amendment are the dramatic changes in legal doctrine that the Court endorses today. Until now, the "secondary effects" of commercial enterprises featuring indecent entertainment have justified only the regulation of their location. For the first time, the Court has now held that such effects may justify 318 the total suppression of protected speech. Indeed, the plurality opinion concludes that admittedly trivial advancements of a State's interests may provide the basis for censorship. The Court's commendable attempt to replace the fractured decision in with a single coherent rationale is strikingly unsuccessful; it is supported neither by precedent nor by persuasive reasoning. I As the preamble to Ordinance No. 75-1994 candidly acknowledges, the council of the city of Erie enacted the restriction at issue "for the purpose of limiting a recent increase in nude live entertainment within the City." Ante, at 290 (internal quotation marks omitted). Prior to the enactment of the ordinance, the dancers at Kandyland performed in the nude. As the Court recognizes, after its enactment they can perform precisely the same dances if they wear "pasties and G-strings." Ante, at 294; see also ante, at 313, n. 2 (Souter, J., concurring in part and dissenting in part). In both instances, the erotic messages conveyed by the dancers to a willing audience are a form of expression protected by the First Amendment. Ante, at 289.[1] Despite the similarity between the messages conveyed by the two forms of dance, they are not identical. If we accept Chief Judge Posner's evaluation of this art form, see the difference between the two messages is significant. The plurality assumes, however, that the difference in the content of the message resulting from 319 the mandated costume change is "de minimis. " Ante, at 294. Although I suspect that the patrons of Kandyland are more likely to share Chief Judge Posner's view than the plurality's, for present purposes I shall accept the assumption that the difference in the message is small. The crucial point to remember, however, is that whether one views the difference as large or small, nude dancing still receives First Amendment protection, even if that protection lies only in the "outer ambit" of that Amendment. Ante, at 289. Erie's ordinance, therefore, burdens a message protected by the First Amendment. If one assumes that the same erotic message is conveyed by nude dancers as by those wearing miniscule costumes, one means of expressing that message is banned;[2] if one assumes that the messages are different, one of those messages is banned. In either event, the ordinance is a total ban. The plurality relies on the so-called "secondary effects" test to defend the ordinance. Ante, at 290-296. The present use of that rationale, however, finds no support whatsoever in our precedents. Never before have we approved the use of that doctrine to justify a total ban on protected First Amendment expression. On the contrary, we have been quite clear that the doctrine would not support that end. In we upheld a Detroit zoning ordinance that placed special restrictions on the location of motion picture theaters that exhibited "adult" movies. The "secondary effects" of the adult theaters on the neighborhoods where they were locatedlower property values and increases in crime (especially prostitution) to name a fewjustified the burden imposed 320 by the ordinance. and n. 34 Essential to our holding, however, was the fact that the ordinance was "nothing more than a limitation on the place where adult films may be exhibited" and did not limit the size of the market in such speech. ; see also As Justice Powell emphasized in his concurrence: "At most the impact of the ordinance on [the First Amendment] interests is incidental and minimal. Detroit has silenced no message, has invoked no censorship, and has imposed no limitation upon those who wish to view them. The ordinance is addressed only to the places at which this type of expression may be presented, a restriction that does not interfere with content. Nor is there any significant overall curtailment of adult movie presentations, or the opportunity for a message to reach an audience." See also In we upheld a similar ordinance, again finding that the "secondary effects of such theaters on the surrounding community" justified a restrictive zoning law. We noted, however, that "[t]he ordinance, like the one in American Mini does not ban adult theaters altogether," but merely "circumscribe[s] their choice as to location." ; see also Indeed, in both and American Mini the zoning ordinances were analyzed as mere "time, 321 place, and manner" regulations.[3] See ; American Mini and n. 18; Because time, place, and manner regulations must "leave open ample alternative channels for communication of the information," a total ban would necessarily fail that test.[4] And we so held in There, we addressed a zoning ordinance that did not merely require the dispersal of adult theaters, but prohibited 322 them altogether. In striking down that law, we focused precisely on that distinction, holding that the secondary effects analysis endorsed in the past did not apply to an ordinance that totally banned nude dancing: "The restriction [in Young v. American Mini ] did not affect the number of adult movie theaters that could operate in the city; it merely dispersed them. The Court did not imply that a municipality could ban all adult theatersmuch less all live entertainment or all nude dancingfrom its commercial districts citywide." ; see also ; (joining plurality); (same). The reason we have limited our secondary effects cases to zoning and declined to extend their reasoning to total bans is clear and straightforward: A dispersal that simply limits the places where speech may occur is a minimal imposition, whereas a total ban is the most exacting of restrictions. The State's interest in fighting presumed secondary effects is sufficiently strong to justify the former, but far too weak to support the latter, more severe burden.[5] Yet it is perfectly clear that in the present caseto use Justice Powell's metaphor in American Mini the city of Erie has totally silenced a message the dancers at Kandyland want to convey. The fact that this censorship may have a laudable ulterior purpose cannot mean that censorship is not censorship. For these reasons, the Court's holding rejects the explicit reasoning in American Mini and and the express holding in Schad. The Court's use of the secondary effects rationale to permit a total ban has grave implications for basic free speech principles. Ordinarily, laws regulating the primary effects of speech, i. e., the intended persuasive effects caused by the 323 speech, are presumptively invalid. Under today's opinion, a State may totally ban speech based on its secondary effectswhich are defined as those effects that "happen to be associated" with speech, ; see ante, at 291yet the regulation is not presumptively invalid. Because the category of effects that "happen to be associated" with speech includes the narrower subset of effects caused by speech, today's holding has the effect of swallowing whole a most fundamental principle of First Amendment jurisprudence. II The plurality's mishandling of our secondary effects cases is not limited to its approval of a total ban. It compounds that error by dramatically reducing the degree to which the State's interest must be furthered by the restriction imposed on speech, and by ignoring the critical difference between secondary effects caused by speech and the incidental effects on speech that may be caused by a regulation of conduct. In what can most delicately be characterized as an enormous understatement, the plurality concedes that "requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects." Ante, at 301. To believe that the mandatory addition of pasties and a G-string will have any kind of noticeable impact on secondary effects requires nothing short of a titanic surrender to the implausible. It would be more accurate to acknowledge, as Justice Scalia does, that there is no reason to believe that such a requirement "will at all reduce the tendency of establishments such as Kandyland to attract crime and prostitution, and hence to foster sexually transmitted disease." Ante, at 310 (opinion concurring in judgment); see also ante, at 313, n. 2 (Souter, J., concurring in part and dissenting in part). Nevertheless, the plurality concludes that the "less stringent" test announced in United "requires only that the regulation further the interest in 324 combating such effects," ante, at 301; see also ante, at 289. It is one thing to say, however, that O'Brien is more lenient than the "more demanding standard" we have imposed in cases such as See ante, at 289. It is quite another to say that the test can be satisfied by nothing more than the mere possibility of de minimis effects on the neighborhood. The plurality is also mistaken in equating our secondary effects cases with the "incidental burdens" doctrine applied in cases such as O'Brien; and it aggravates the error by invoking the latter line of cases to support its assertion that Erie's ordinance is unrelated to speech. The incidental burdens doctrine applies when "`speech' and `nonspeech' elements are combined in the same course of conduct," and the government's interest in regulating the latter justifies incidental burdens on the former. O'Brien, Secondary effects, on the other hand, are indirect consequences of protected speech and may justify regulation of the places where that speech may occur. See American Mini 427 U. S., n. 34[6] When a State enacts a regulation, it might focus on the secondary effects of speech as its aim, or it might concentrate on nonspeech related concerns, having no thoughts at all with respect to how its regulation will affect speechand only later, when the regulation is found to burden speech, justify the imposition as an unintended incidental consequence.[7] But those interests are not the 325 same, and the plurality cannot ignore their differences and insist that both aims are equally unrelated to speech simply because Erie might have "recogniz[ed]" that it could possibly have had either aim in mind. See ante, at 295.[8] One can think of an apple and an orange at the same time; that does not turn them into the same fruit. Of course, the line between governmental interests aimed at conduct and unrelated to speech, on the one hand, and interests arising out of the effects of the speech, on the other, may be somewhat imprecise in some cases. In this case, however, we need not wrestle with any such difficulty because Erie has expressly justified its ordinance with reference to secondary effects. Indeed, if Erie's concern with the effects of the message were unrelated to the message itself, it is strange that the only means used to combat those effects is the suppression of the message.[9] For these reasons, the plurality's argument that "this case is similar to O'Brien, " ante, at 291; see also ante, at 294, is quite wrong, as are its 326 citations to and ante, at 293-295, neither of which involved secondary effects. The plurality cannot have its cake and eat it tooeither Erie's ordinance was not aimed at speech and the plurality may attempt to justify the regulation under the incidental burdens test, or Erie has aimed its law at the secondary effects of speech, and the plurality can try to justify the law under that doctrine. But it cannot conflate the two with the expectation that Erie's interests aimed at secondary effects will be rendered unrelated to speech by virtue of this doctrinal polyglot. Correct analysis of the issue in this case should begin with the proposition that nude dancing is a species of expressive conduct that is protected by the First Amendment. As Chief Judge Posner has observed, nude dancing fits well within a broad, cultural tradition recognized as expressive in nature and entitled to First Amendment protection. See 904 F.2d, at ; see also Note, The nudity of the dancer is both a component of the protected expression and the specific target of the ordinance. It is pure sophistry to reason from the premise that the regulation of the nudity component of nude dancing is unrelated to the message conveyed by nude dancers. Indeed, both the text of the ordinance and the reasoning in the plurality's opinion make it pellucidly clear that the city of Erie has prohibited nude dancing "precisely because of its communicative attributes." (emphasis in original); see III The censorial purpose of Erie's ordinance precludes reliance on the judgment in as sufficient support for the Court's holding today. Several differences between the Erie ordinance and the statute at issue in belie the plurality's assertion that the two laws are "almost identical." 327 Ante, at 289. To begin with, the preamble to Erie's ordinance candidly articulates its agenda, declaring: "Council specifically wishes to adopt the concept of Public Indecency prohibited by the laws of the State of Indiana, which was approved by the U. S. Supreme Court in vs. Glen Theatre Inc., for the purpose of limiting a recent increase in nude live entertainment within the City. " App. to Pet. for Cert. 42a (emphasis added); see also ante, at 290.[10] As its preamble forthrightly admits, the ordinance's "purpose" is to "limi[t]" a protected form of speech; its invocation of cannot obliterate that professed aim.[11] Erie's ordinance differs from the statute in in another respect. In the Court expressly observed that the Indiana statute had not been given a limiting construction by the Indiana Supreme Court. As presented to this Court, there was nothing about the law itself that would confine its application to nude dancing in adult entertainment establishments. See n. 1 ; see also 328 Erie's ordinance, however, comes to us in a much different posture. In an earlier proceeding in this case, the Court of Common Pleas asked Erie's counsel "what effect would this ordinance have on theater productions such as Equus, Hair, O[h!] Calcutta[!]? Under your ordinance would these things be prevented ?" Counsel responded: "No, they wouldn't, Your Honor." App. 53.[12] Indeed, as stipulated in the record, the city permitted a production of Equus to proceed without prosecution, even after the ordinance was in effect, and despite its awareness of the nudity involved in the production.[13] Even if, in light of its broad applicability, the statute in was not aimed at a particular form of speech, Erie's ordinance is quite different. As presented to us, the ordinance is deliberately targeted at Kandyland's type of nude dancing (to the exclusion of plays like Equus), in terms of both its applicable scope and the city's enforcement.[14] 329 This narrow aim is confirmed by the expressed views of the Erie City Councilmembers who voted for the ordinance. The four city councilmembers who approved the measure (of the six total councilmembers) each stated his or her view that the ordinance was aimed specifically at nude adult entertainment, and not at more mainstream forms of entertainment that include total nudity, nor even at nudity in general. One lawmaker observed: "We're not talking about nudity. We're not talking about the theater or art We're talking about what is indecent and immoral. We're not prohibiting nudity, we're prohibiting nudity when it's used in a lewd and immoral fashion." App. 39. Though not quite as succinct, the other councilmembers expressed similar convictions. For example, one member illustrated his understanding of the aim of the law by contrasting it with his recollection about high school students swimming in the nude in the school's pool. The ordinance was not intended to cover those incidents of nudity: "But what I'm getting at is [the swimming] wasn't indecent, it wasn't an immoral thing, and 330 yet there was nudity." The same lawmaker then disfavorably compared the nude swimming incident to the activities that occur in "some of these clubs" that exist in Erieclubs that would be covered by the law. Ibid.[15] Though such comments could be consistent with an interest in a general prohibition of nudity, the complete absence of commentary on that broader interest, and the councilmembers' exclusive focus on adult entertainment, is evidence of the ordinance's aim. In my view, we need not strain to find consistency with more general purposes when the most natural reading of the record reflects a near obsessive preoccupation with a single target of the law.[16] The text of Erie's ordinance is also significantly different from the law upheld in In the statute defined "nudity" as "the showing of the human male or female 331 genitals" (and certain other regions of the body) "with less than a fully opaque covering." n. 2. The Erie ordinance duplicates that definition in all material respects, but adds the following to its definition of "[n]udity": "`[T]he exposure of any device, costume, or covering which gives the appearance of or simulates the genitals, pubic hair, natal cleft, perineum anal region or pubic hair region; or the exposure of any device worn as a cover over the nipples and/or areola of the female breast, which device simulates and gives the realistic appearance of nipples and/or areola.' " Ante, at 283 284, n. (emphasis added). Can it be doubted that this out-of-the-ordinary definition of "nudity" is aimed directly at the dancers in establishments such as Kandyland? Who else is likely to don such garments? [17] We should not stretch to embrace fanciful explanations when the most natural reading of the ordinance unmistakably identifies its intended target. It is clear beyond a shadow of a doubt that the Erie ordinance was a response to a more specific concern than nudity in general, namely, nude dancing of the sort found in Kandyland.[18] Given that the Court has not even tried to defend *332 the ordinance's total ban on the ground that its censorship of protected speech might be justified by an overriding state interest, it should conclude that the ordinance is patently invalid. For these reasons, as well as the reasons set forth in Justice White's dissent in I respectfully dissent.
Justice Scalia	majority	false	Smith v. United States	2013-01-09T00:00:00	null	https://www.courtlistener.com/opinion/815038/smith-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/815038/	2,013	2012-006	1	9	0	Upon joining a criminal conspiracy, a defendant’s mem- bership in the ongoing unlawful scheme continues until he withdraws. A defendant who withdraws outside the rele- vant statute-of-limitations period has a complete defense to prosecution. We consider whether, when the defend- ant produces some evidence supporting such a defense, the Government must prove beyond a reasonable doubt that he did not withdraw outside the statute-of-limitations period. I Petitioner Calvin Smith was indicted for crimes con- nected to his role in an organization that distributed cocaine, crack cocaine, heroin, and marijuana in Washing- ton, D. C., for about a decade. The 158-count indictment charged Smith and 16 alleged co-conspirators with con- spiring to run, and actually running, an illegal drug busi- ness, as well as with committing acts of violence, including 31 murders, to further their goals. Smith was tried along- side five codefendants. A jury of the United States Dis- trict Court for the District of Columbia convicted him of (1) conspiracy to distribute narcotics and to possess narcotics 2 SMITH v. UNITED STATES Opinion of the Court with the intent to distribute them, in violation of 21 U.S. C. §846; (2) Racketeer Influenced and Corrupt Or- ganizations Act (RICO) conspiracy, in violation of 18 U.S. C. §1962(d); (3) murder in connection with a contin- uing criminal enterprise, in violation of 21 U.S. C. §848(e)(1)(A); and (4) four counts of murder while armed, in violation of D. C. Code §§22–2401 and 22–3202 (1996).1 At issue here are Smith’s conspiracy convictions. Before trial, Smith moved to dismiss the conspiracy counts as barred by the applicable 5-year statute of limitations, 18 U.S. C. §3282, because he had spent the last six years of the charged conspiracies in prison for a felony conviction. The court denied his motion and Smith renewed his statute-of-limitations defense at trial. In the final jury charge, the court instructed the jury to convict Smith of each conspiracy count if the Government had proved beyond a reasonable doubt that the conspiracies existed, that Smith was a member of those conspiracies, and that the conspir- acies “continued in existence within five years” before the indictment. App. 289a, 300a. After it began deliberations, the jury asked the court what to do in the event that a defendant withdrew from the conspiracies outside the relevant limitations period.2 Smith had not yet raised an affirmative defense of with- drawal, so the court for the first time instructed the jury on the defense. The court explained that “[t]he relevant date for purposes of determining the statute of limitations —————— 1 On appeal, the D. C. Circuit remanded two of the murder counts for the District Court to conduct an evidentiary hearing regarding whether Smith received ineffective assistance of counsel as to those convictions. United States v. Moore, 651 F.3d 30, 89 (2011) (per curiam). 2 The note to the judge inquired: “ ‘If we find that the Narcotics or RICO conspiracies continued after the relevant date under the statute of limitations, but that a particular defendant left the conspiracy before the relevant date under the statute of limitations, must we find that defendant not guilty? ’ ” App. 174a. Cite as: 568 U. S. ____ (2013) 3 Opinion of the Court is the date, if any, on which a conspiracy concludes or a date on which that defendant withdrew from that conspir- acy.” Id., at 328a. It defined withdrawal as “affirmative acts inconsistent with the goals of the conspiracy” that “were communicated to the defendant’s coconspirators in a manner reasonably calculated to reach those conspira- tors.” “Withdrawal,” the court instructed, “must be un- equivocal.” Ibid. Over the defense’s objection, the court told the jury that “[o]nce the government has proven that a defendant was a member of a conspiracy, the burden is on the defendant to prove withdrawal from a conspiracy by a preponderance of the evidence.” Ibid. The jury then convicted Smith of the conspiracy crimes. As relevant here, the Court of Appeals affirmed Smith’s conspiracy convictions. Recognizing that the Circuits are divided on which party bears the burden of proving or dis- proving a defense of withdrawal prior to the limitations period, the court concluded that the defendant bears the burden of proof and that such a disposition does not vio- late the Due Process Clause. United States v. Moore, 651 F.3d 30, 89–90 (CADC 2011) (per curiam). We granted certiorari. 567 U. S. ___ (2012). II Petitioner’s claim lies at the intersection of a withdrawal defense and a statute-of-limitations defense. He asserts that once he presented evidence that he ended his mem- bership in the conspiracy prior to the statute-of- limitations period, it became the Government’s burden to prove that his individual participation in the conspiracy persisted within the applicable five-year window. This position draws support neither from the Constitution (as discussed in this Part II), nor from the conspiracy and limitations statutes at issue (as discussed in Part III, infra). Establishing individual withdrawal was a burden that rested firmly on the defendant regardless of when the 4 SMITH v. UNITED STATES Opinion of the Court purported withdrawal took place. Allocating to a defendant the burden of proving with- drawal does not violate the Due Process Clause. While the Government must prove beyond a reasonable doubt “every fact necessary to constitute the crime with which [the de- fendant] is charged,” In re Winship, 397 U.S. 358, 364 (1970), “[p]roof of the nonexistence of all affirmative de- fenses has never been constitutionally required,” Patterson v. New York, 432 U.S. 197, 210 (1977). The State is fore- closed from shifting the burden of proof to the defendant only “when an affirmative defense does negate an element of the crime.” Martin v. Ohio, 480 U.S. 228, 237 (1987) (Powell, J., dissenting). Where instead it “excuse[s] con- duct that would otherwise be punishable,” but “does not controvert any of the elements of the offense itself,” the Government has no constitutional duty to overcome the defense beyond a reasonable doubt. Dixon v. United States, 548 U.S. 1, 6 (2006). Withdrawal does not negate an element of the conspir- acy crimes charged here. The essence of conspiracy is “the combination of minds in an unlawful purpose.” United States v. Hirsch, 100 U.S. 33, 34 (1879). To convict a de- fendant of narcotics or RICO conspiracy, the Govern- ment must prove beyond a reasonable doubt that two or more people agreed to commit a crime covered by the specific conspiracy statute (that a conspiracy existed) and that the defendant knowingly and willfully participated in the agreement (that he was a member of the conspiracy).3 —————— 3 Narcoticsconspiracy under 21 U.S. C. §846 criminalizes “con- spir[ing] to commit any offense” under the Controlled Substances Act, including the knowing distribution of, or possession with intent to distribute, controlled substances, §841(a)(1). Section 1962(d) of Title 18 makes it unlawful to “conspire to violate” RICO, which makes it unlaw- ful, among other things, “for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the Cite as: 568 U. S. ____ (2013) 5 Opinion of the Court Far from contradicting an element of the offense, with- drawal presupposes that the defendant committed the offense. Withdrawal achieves more modest ends than exoneration. Since conspiracy is a continuing offense, United States v. Kissel, 218 U.S. 601, 610 (1910), a de- fendant who has joined a conspiracy continues to violate the law “through every moment of [the conspiracy’s] exist- ence,” Hyde v. United States, 225 U.S. 347, 369 (1912), and he becomes responsible for the acts of his co- conspirators in pursuit of their common plot, Pinkerton v. United States, 328 U.S. 640, 646 (1946). Withdrawal terminates the defendant’s liability for postwithdrawal acts of his co-conspirators, but he remains guilty of conspiracy. Withdrawal also starts the clock running on the time within which the defendant may be prosecuted, and pro- vides a complete defense when the withdrawal occurs beyond the applicable statute-of-limitations period.4 A complete defense, however, is not necessarily one that establishes the defendant’s innocence. For example, we have held that although self-defense may entirely excuse or justify aggravated murder, “the elements of aggravated murder and self-defense [do not] overlap in the sense that evidence to prove the latter will often tend to negate the former.” Martin, supra, at 234; see Leland v. Oregon, 343 U.S. 790, 794–796 (1952) (same for insanity defense). Likewise, although the statute of limitations may inhibit —————— conduct of such enterprise’s affairs through a pattern of racketeering activity,” §1962(c). 4 The conspiracy statutes at issue here do not contain their own limi- tations periods, but are governed by §3282(a), which provides: “Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” At the time petitioner was in- dicted, §3282 contained no subsections; what was the full text of the sec- tion is now subsection (a). 6 SMITH v. UNITED STATES Opinion of the Court prosecution, it does not render the underlying conduct noncriminal. Commission of the crime within the statute- of-limitations period is not an element of the conspiracy offense. See United States v. Cook, 17 Wall. 168, 180 (1872). The Government need not allege the time of the offense in the indictment, id., at 179–180, and it is up to the defendant to raise the limitations defense, Biddinger v. Commissioner of Police of City of New York, 245 U.S. 128, 135 (1917). A statute-of-limitations defense does not call the criminality of the defendant’s conduct into ques- tion, but rather reflects a policy judgment by the legis- lature that the lapse of time may render criminal acts ill suited for prosecution. See, e.g., Toussie v. United States, 397 U.S. 112, 114–115 (1970). Thus, although union of withdrawal with a statute-of-limitations defense can free the defendant of criminal liability, it does not place upon the prosecution a constitutional responsibility to prove that he did not withdraw. As with other affirmative defenses, the burden is on him. III Of course, Congress may choose to assign the Govern- ment the burden of proving the nonexistence of withdrawal, even if that is not constitutionally required. It did not do so here. “[T]he common-law rule was that affirmative defenses . . . were matters for the defendant to prove.” Martin, supra, at 235; see 4 W. Blackstone, Commentaries on the Laws of England 201 (1769). Because Congress did not address in 21 U.S. C. §846 or 18 U.S. C. §1962(d) the burden of proof for withdrawal, we presume that Con- gress intended to preserve the common-law rule. Dixon, 548 U. S., at 13–14. That Congress left the traditional burden of proof undis- turbed is both practical and fair. “ ‘[W]here the facts with regard to an issue lie peculiarly in the knowledge of a party,’ ” that party is best situated to bear the burden of Cite as: 568 U. S. ____ (2013) 7 Opinion of the Court proof. Id., at 9. On the matter of withdrawal, the in- formational asymmetry heavily favors the defendant. Pas- sive nonparticipation in the continuing scheme is not enough to sever the meeting of minds that constitutes the conspiracy. “[T]o avert a continuing criminality” there must be “affirmative action . . . to disavow or defeat the purpose” of the conspiracy. Hyde, supra, at 369. The defendant knows what steps, if any, he took to dissociate from his confederates. He can testify to his act of with- drawal or direct the court to other evidence substantiating his claim.5 It would be nearly impossible for the Gov- ernment to prove the negative that an act of with- drawal never happened. See 9 J. Wigmore, Evidence §2486, p. 288 (J. Chadbourn rev. 1981) (“It is often said that the burden is upon the party having in form the affirmative allegation”). Witnesses with the primary power to refute a withdrawal defense will often be beyond the Government’s reach: The defendant’s co-conspirators are likely to invoke their right against self-incrimination rather than explain their unlawful association with him. Here again, the analysis does not change when with- drawal is the basis for a statute-of-limitations defense. To be sure, we have held that the Government must prove the time of the conspiracy offense if a statute-of-limitations defense is raised. Grunewald v. United States, 353 U.S. 391, 396 (1957). But the Government satisfied that bur- den here when it proved that the conspiracy continued past the statute-of-limitations period. For the offense in these conspiracy prosecutions was not the initial act of agreement, but the banding-together against the law effected by that act, which continues until termination of —————— 5 Here, Smith introduced a stipulation of his dates spent incarcerated, as well as “testimonial evidence showing that he was no longer a member of the charged conspiracies during his incarceration.” Brief for Petitioner 3. The jury found that this did not establish by a preponder- ance of the evidence an affirmative act of withdrawal. 8 SMITH v. UNITED STATES Opinion of the Court the conspiracy or, as to a particular defendant, until that defendant’s withdrawal. And as we have discussed, the burden of establishing that withdrawal rests upon the defendant. Petitioner’s claim that assertion of a statute-of- limitations defense shifts that burden is incompatible with the established proposition that a defendant’s membership in the conspiracy, and his responsibility for its acts, en- dures even if he is entirely inactive after joining it. (“As he has started evil forces he must withdraw his support from them or incur the guilt of their continuance.” Hyde, 225 U. S., at 369–370.) For as a practical matter, the only way the Government would be able to establish a failure to withdraw would be to show active participation in the conspiracy during the limitations period. * * * Having joined forces to achieve collectively more evil than he could accomplish alone, Smith tied his fate to that of the group. His individual change of heart (assuming it occurred) could not put the conspiracy genie back in the bottle. We punish him for the havoc wreaked by the un- lawful scheme, whether or not he remained actively in- volved. It is his withdrawal that must be active, and it was his burden to show that. The judgment of the Court of Appeals is affirmed. It is so ordered	Upon joining a criminal conspiracy, a defendant’s mem- bership in the ongoing unlawful scheme continues until he withdraws. A defendant who withdraws outside the rele- vant statute-of-limitations period has a complete defense to prosecution. We consider whether, when the defend- ant produces some evidence supporting such a defense, the Government must prove beyond a reasonable doubt that he did not withdraw outside the statute-of-limitations period. I Petitioner Calvin Smith was indicted for crimes con- nected to his role in an organization that distributed cocaine, crack cocaine, heroin, and marijuana in Washing- ton, D. C., for about a decade. The 158-count indictment charged Smith and 1 alleged co-conspirators with con- spiring to run, and actually running, an illegal drug busi- ness, as well as with committing acts of violence, including 31 murders, to further their goals. Smith was tried along- side five codefendants. A jury of the United States Dis- trict Court for the District of Columbia convicted him of (1) conspiracy to distribute narcotics and to possess narcotics 2 SMITH v. UNITED STATES Opinion of the Court with the intent to distribute them, in violation of 21 U.S. C. (2) Racketeer Influenced and Corrupt Or- ganizations Act (RICO) conspiracy, in violation of 18 U.S. C. (3) murder in connection with a contin- uing criminal enterprise, in violation of 21 U.S. C. and (4) four counts of murder while armed, in violation of D. C. Code and 22–3202 (199).1 At issue here are Smith’s conspiracy convictions. Before trial, Smith moved to dismiss the conspiracy counts as barred by the applicable 5-year statute of limitations, 18 U.S. C. because he had spent the last six years of the charged conspiracies in prison for a felony conviction. The court denied his motion and Smith renewed his statute-of-limitations defense at trial. In the final jury charge, the court instructed the jury to convict Smith of each conspiracy count if the Government had proved beyond a reasonable doubt that the conspiracies existed, that Smith was a member of those conspiracies, and that the conspir- acies “continued in existence within five years” before the indictment. App. 2a, 300a. After it began deliberations, the jury asked the court what to do in the event that a defendant withdrew from the conspiracies outside the relevant limitations period.2 Smith had not yet raised an affirmative defense of with- drawal, so the court for the first time instructed the jury on the defense. The court explained that “[t]he relevant date for purposes of determining the statute of limitations —————— 1 On appeal, the D. C. Circuit remanded two of the murder counts for the District Court to conduct an evidentiary hearing regarding whether Smith received ineffective assistance of counsel as to those convictions. United 2 The note to the judge inquired: “ ‘If we find that the Narcotics or RICO conspiracies continued after the relevant date under the statute of limitations, but that a particular defendant left the conspiracy before the relevant date under the statute of limitations, must we find that defendant not guilty? ’ ” App. 174a. Cite as: 58 U. S. (2013) 3 Opinion of the Court is the date, if any, on which a conspiracy concludes or a date on which that defendant withdrew from that conspir- acy.” at 328a. It defined withdrawal as “affirmative acts inconsistent with the goals of the conspiracy” that “were communicated to the defendant’s coconspirators in a manner reasonably calculated to reach those conspira- tors.” “Withdrawal,” the court instructed, “must be un- equivocal.” Over the defense’s objection, the court told the jury that “[o]nce the government has proven that a defendant was a member of a conspiracy, the burden is on the defendant to prove withdrawal from a conspiracy by a preponderance of the evidence.” The jury then convicted Smith of the conspiracy crimes. As relevant here, the Court of Appeals affirmed Smith’s conspiracy convictions. Recognizing that the Circuits are divided on which party bears the burden of proving or dis- proving a defense of withdrawal prior to the limitations period, the court concluded that the defendant bears the burden of proof and that such a disposition does not vio- late the Due Process Clause. United 51 F.3d 30, –90 We granted certiorari. 57 U. S. (2012). II Petitioner’s claim lies at the intersection of a withdrawal defense and a statute-of-limitations defense. He asserts that once he presented evidence that he ended his mem- bership in the conspiracy prior to the statute-of- limitations period, it became the Government’s burden to prove that his individual participation in the conspiracy persisted within the applicable five-year window. This position draws support neither from the Constitution (as discussed in this Part II), nor from the conspiracy and limitations statutes at issue (as discussed in Part III, infra). Establishing individual withdrawal was a burden that rested firmly on the defendant regardless of when the 4 SMITH v. UNITED STATES Opinion of the Court purported withdrawal took place. Allocating to a defendant the burden of proving with- drawal does not violate the Due Process Clause. While the Government must prove beyond a reasonable doubt “every fact necessary to constitute the crime with which [the de- fendant] is charged,” In re Winship, “[p]roof of the nonexistence of all affirmative de- fenses has never been constitutionally required,” Patterson v. New York, The State is fore- closed from shifting the burden of proof to the defendant only “when an affirmative defense does negate an element of the crime.” (Powell, J., dissenting). Where instead it “excuse[s] con- duct that would otherwise be punishable,” but “does not controvert any of the elements of the offense itself,” the Government has no constitutional duty to overcome the defense beyond a reasonable doubt. Withdrawal does not negate an element of the conspir- acy crimes charged here. The essence of conspiracy is “the combination of minds in an unlawful purpose.” United To convict a de- fendant of narcotics or RICO conspiracy, the Govern- ment must prove beyond a reasonable doubt that two or more people agreed to commit a crime covered by the specific conspiracy statute (that a conspiracy existed) and that the defendant knowingly and willfully participated in the agreement (that he was a member of the conspiracy).3 —————— 3 Narcoticsconspiracy under 21 U.S. C. §84 criminalizes “con- spir[ing] to commit any offense” under the Controlled Substances Act, including the knowing distribution of, or possession with intent to distribute, controlled substances, Section 192(d) of Title 18 makes it unlawful to “conspire to violate” RICO, which makes it unlaw- ful, among other things, “for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the Cite as: 58 U. S. (2013) 5 Opinion of the Court Far from contradicting an element of the offense, with- drawal presupposes that the defendant committed the offense. Withdrawal achieves more modest ends than exoneration. Since conspiracy is a continuing offense, United 218 U.S. 01, 10 a de- fendant who has joined a conspiracy continues to violate the law “through every moment of [the conspiracy’s] exist- ence,” 225 U.S. 7, 39 and he becomes responsible for the acts of his co- conspirators in pursuit of their common plot, Pinkerton v. United States, 328 U.S. 40, 4 (194). Withdrawal terminates the defendant’s liability for postwithdrawal acts of his co-conspirators, but he remains guilty of conspiracy. Withdrawal also starts the clock running on the time within which the defendant may be prosecuted, and pro- vides a complete defense when the withdrawal occurs beyond the applicable statute-of-limitations period.4 A complete defense, however, is not necessarily one that establishes the defendant’s innocence. For example, we have held that although self-defense may entirely excuse or justify aggravated murder, “the elements of aggravated murder and self-defense [do not] overlap in the sense that evidence to prove the latter will often tend to negate the former.” at 2; see Leland v. Oregon, 3 U.S. 790, 794–79 (1952) (same for insanity defense). Likewise, although the statute of limitations may inhibit —————— conduct of such enterprise’s affairs through a pattern of racketeering activity,” §192(c). 4 The conspiracy statutes at issue here do not contain their own limi- tations periods, but are governed by which provides: “Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” At the time petitioner was in- dicted, contained no subsections; what was the full text of the sec- tion is now subsection (a). SMITH v. UNITED STATES Opinion of the Court prosecution, it does not render the underlying conduct noncriminal. Commission of the crime within the statute- of-limitations period is not an element of the conspiracy offense. See United 17 Wall. 18, (1872). The Government need not allege the time of the offense in the indictment, at 179–, and it is up to the defendant to raise the limitations defense, Biddinger v. Commissioner of Police of City of New York, 245 U.S. 128, 135 (1917). A statute-of-limitations defense does not call the criminality of the defendant’s conduct into ques- tion, but rather reflects a policy judgment by the legis- lature that the lapse of time may render criminal acts ill suited for prosecution. See, e.g., Thus, although union of withdrawal with a statute-of-limitations defense can free the defendant of criminal liability, it does not place upon the prosecution a constitutional responsibility to prove that he did not withdraw. As with other affirmative defenses, the burden is on him. III Of course, Congress may choose to assign the Govern- ment the burden of proving the nonexistence of withdrawal, even if that is not constitutionally required. It did not do so here. “[T]he common-law rule was that affirmative defenses were matters for the defendant to prove.” ; see 4 W. Blackstone, Commentaries on the Laws of England 201 (179). Because Congress did not address in 21 U.S. C. §84 or 18 U.S. C. §192(d) the burden of proof for withdrawal, we presume that Con- gress intended to preserve the common-law rule. Dixon, 548 U. S., at 13–14. That Congress left the traditional burden of proof undis- turbed is both practical and fair. “ ‘[W]here the facts with regard to an issue lie peculiarly in the knowledge of a party,’ ” that party is best situated to bear the burden of Cite as: 58 U. S. (2013) 7 Opinion of the Court proof. On the matter of withdrawal, the in- formational asymmetry heavily favors the defendant. Pas- sive nonparticipation in the continuing scheme is not enough to sever the meeting of minds that constitutes the conspiracy. “[T]o avert a continuing criminality” there must be “affirmative action to disavow or defeat the purpose” of the conspiracy. at 39. The defendant knows what steps, if any, he took to dissociate from his confederates. He can testify to his act of with- drawal or direct the court to other evidence substantiating his claim.5 It would be nearly impossible for the Gov- ernment to prove the negative that an act of with- drawal never happened. See 9 J. Wigmore, Evidence §248, p. 288 (J. Chadbourn rev. 1981) (“It is often said that the burden is upon the party having in form the affirmative allegation”). Witnesses with the primary power to refute a withdrawal defense will often be beyond the Government’s reach: The defendant’s co-conspirators are likely to invoke their right against self-incrimination rather than explain their unlawful association with him. Here again, the analysis does not change when with- drawal is the basis for a statute-of-limitations defense. To be sure, we have held that the Government must prove the time of the conspiracy offense if a statute-of-limitations defense is raised. Grunewald v. United States, 353 U.S. 391, 39 (1957). But the Government satisfied that bur- den here when it proved that the conspiracy continued past the statute-of-limitations period. For the offense in these conspiracy prosecutions was not the initial act of agreement, but the banding-together against the law effected by that act, which continues until termination of —————— 5 Here, Smith introduced a stipulation of his dates spent incarcerated, as well as “testimonial evidence showing that he was no longer a member of the charged conspiracies during his incarceration.” Brief for Petitioner 3. The jury found that this did not establish by a preponder- ance of the evidence an affirmative act of withdrawal. 8 SMITH v. UNITED STATES Opinion of the Court the conspiracy or, as to a particular defendant, until that defendant’s withdrawal. And as we have discussed, the burden of establishing that withdrawal rests upon the defendant. Petitioner’s claim that assertion of a statute-of- limitations defense shifts that burden is incompatible with the established proposition that a defendant’s membership in the conspiracy, and his responsibility for its acts, en- dures even if he is entirely inactive after joining it. (“As he has started evil forces he must withdraw his support from them or incur the guilt of their continuance.” 225 U. S., at 39–370.) For as a practical matter, the only way the Government would be able to establish a failure to withdraw would be to show active participation in the conspiracy during the limitations period. * * * Having joined forces to achieve collectively more evil than he could accomplish alone, Smith tied his fate to that of the group. His individual change of heart (assuming it occurred) could not put the conspiracy genie back in the bottle. We punish him for the havoc wreaked by the un- lawful scheme, whether or not he remained actively in- volved. It is his withdrawal that must be active, and it was his burden to show that. The judgment of the Court of Appeals is affirmed. It is so ordered
Justice Powell	majority	false	Michigan v. Payne	1973-05-21T00:00:00	null	https://www.courtlistener.com/opinion/108794/michigan-v-payne/	https://www.courtlistener.com/api/rest/v3/clusters/108794/	1,973	1972-121	1	6	3	A writ of certiorari was granted in this case, 409 U.S. 911 (1972), to decide whether the due process holding of North Carolina v. Pearce, 395 U.S. 711, 723-726 (1969), is to be given retroactive effect. For the reasons that follow, we hold today that this decision is nonretroactive. I Respondent, Leroy Payne, pleaded guilty in a county circuit court in Michigan to a charge of assault with intent to commit murder in connection with an armed 48 attack upon two sheriff's deputies. In March 1963 he was sentenced to a prison term of from 19 to 40 years. Several years later, respondent's conviction and sentence were set aside when a hearing, ordered by the Michigan Court of Appeals, disclosed that his confession and subsequent guilty plea were involuntary. Following a retrial, at which he exercised his rights to trial by jury and to plead innocent, respondent again was found guilty on the same assault charge. On August 30, 1967, he was resentenced to prison from 25 to 50 years with full credit for all time served under the prior sentence. During the resentencing hearing, the judge explained that the higher sentence was "based on the nature of the crime and on the impressions which I formed of [respondent] and of the crime." Respondent appealed to the Michigan Court of Appeals, which affirmed his conviction and approved the higher sentence. 18 Mich. App. 42, 170 N.W.2d 523 (1969). While the case was pending before the Michigan Supreme Court, the trial judge who had presided over respondent's second trial was requested to submit an affidavit detailing his reasons for imposing a higher sentence. The judge's affidavit stated that his sentencing determination was based primarily on (i) his personal belief that respondent's attitude since the first sentencing proceeding had changed from one of regret to remorselessness, (ii) his view that respondent's alibi defense, given under oath, was a "tissue of lies," and (iii) his heightened opportunity to learn of the details of the crime during the three-day trial.[1] 49 The Michigan Supreme Court, in a 4-to-3 decision, upheld the conviction but rejected the higher sentence as violative of the due process restrictions established in North Carolina v. Pearce, supra. 386 Mich. 84, 191 N.W.2d 375 (1971). The court recognized that this Court had not yet decided whether Pearce applied to resentencing proceedings which, as in this case, occurred prior to Pearce's date of decision.[2] While declining to predict how the retroactivity question would ultimately be resolved, the Michigan Supreme Court decided to apply Pearce to the case then before it "pending clarification" by this Court. Id., at 90 n. 3, 191 N.W.2d, at 378 n. 2. Before this Court, the State contends that Pearce should not be applied retrospectively, but that, even if applicable, the state supreme court erred in holding the higher sentence invalid under the Pearce test. Because we hold today that Pearce does not apply retroactively, we do not reach the State's second contention.[3] 50 II In Pearce, the Court emphasized that "[i]t can hardly be doubted" that, while "there exists no absolute constitutional bar to the imposition of a more severe sentence upon retrial," it would be entirely impermissible for judges to render harsher penalties as punishment for those defendants who have succeeded in getting their convictions reversed. 395 U.S., at 723. "[V]indictiveness" against a defendant for having exercised his rights to appeal or to attack his conviction collaterally, the Court held, "must play no part in the sentence [a defendant] receives after a new trial." Id., at 725. In so holding, the Court recognized that "fundamental notions of fairness embodied within the concept of due process" absolutely preclude the imposition of sentences based upon such a " `retaliatory motivation.' " Chaffin v. Stynchcombe, ante, at 25. No "new" constitutional rule was thereby established and it cannot be questioned that this basic due process protection articulated 51 in Pearce is available equally to defendants resentenced before and after the date of decision in that case. On this point the parties do not disagree. The dispute in this case centers, instead, around the "prophylactic"[4] limitations Pearce established to guard against the possibility of vindictiveness in the resentencing process. Those limitations, applicable "whenever a judge imposes a more severe sentence upon a defendant after a new trial," 395 U.S., at 726, require that the sentencing judge's reasons "must affirmatively appear," and that those reasons "must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Ibid. The question here is whether these restrictions govern resentencing proceedings predating Pearce. The contours of the retroactivity inquiry have been clearly delineated in numerous decisions over the last decade. The test utilized repeatedly by this Court to ascertain whether "new" constitutional protections in the area of criminal procedure are to be applied retroactively calls for the consideration of three criteria: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." Stovall v. Denno, 388 U.S. 293, 297 (1967). See also Linkletter v. Walker, 381 U.S. 618, 629, 636 (1965); Tehan v. Shott, 382 U.S. 406, 410-418 (1966); Johnson v. New Jersey, 384 U.S. 719, 726-727 (1966). The two purposes for the resentencing restrictions imposed by Pearce were to ensure (i) "that vindictiveness against a defendant for having successfully attacked his first conviction . . . [would] play no part in the sentence 52 he receives after a new trial . . ." and (ii) that apprehension of such vindictiveness would not "deter a defendant's exercise of the right to appeal or collaterally attack his first conviction. . . ." 395 U.S., at 725; Colten v. Kentucky, 407 U.S. 104, 116 (1972). The latter purpose is not pertinent to this case, since respondent was not deterred from exercising his right to challenge his first conviction. But, in any event, we think it clear that this function of the new resentencing rules could be served only in futuro: nothing in Pearce suggests that the Court contemplated that its decision might provide a ground for the untimely reopening of appeals by defendants who decided not to appeal prior to the date of decision in Pearce.[5] See James v. Copinger, 441 F.2d 23 (CA4 1971). The first-articulated purpose of the Pearce rulesto protect against the possibility that actual vindictiveness will infect a resentencing proceedingdeserves closer scrutiny. Unlike the purposes underlying many of the decisions heretofore accorded retrospective application,[6] this purpose does not implicate the " `fair determination' of . . . guilt or innocence." Roberts v. Russell, 392 U.S. 293, 294 (1968) (emphasis supplied). It does, however, involve questions touching on the "integrity" of one aspect of the judicial process. McConnell v. Rhay, 393 U.S. 2, 3 (1968). The Pearce restrictions serve to ensure 53 that resentencing decisions will not be based on improper considerations, such as a judge's unarticulated resentment at having been reversed on appeal, or his subjective institutional interest in discouraging meritless appeals. By eliminating the possibility that these factors might occasion enhanced sentences, the Pearce prophylactic rules assist in guaranteeing the propriety of the sentencing phase of the criminal process. In this protective role, Pearce is analogous to Miranda v. Arizona, 384 U.S. 436 (1966), in which the Court established rules to govern police practices during custodial interrogations in order to safeguard the rights of the accused and to assure the reliability of statements made during those interrogations. Thus, the prophylactic rules in Pearce and Miranda are similar in that each was designed to preserve the integrity of a phase of the criminal process. Because of this similarity, we find that Johnson v. New Jersey, 384 U.S. 719 (1966), which held Miranda nonretroactive, provides considerable guidance here. See also Jenkins v. Delaware, 395 U.S. 213 (1969). It is an inherent attribute of prophylactic constitutional rules, such as those established in Miranda and Pearce, that their retrospective application will occasion windfall benefits for some defendants who have suffered no constitutional deprivation. Miranda's well-known warning requirements provided a protection "against the possibility of unreliable statements in every instance of in-custody interrogation," and thereby covered many "situations in which the danger [was] not necessarily as great as when the accused is subjected to overt and obvious coercion." Johnson v. New Jersey, supra, at 730 (emphasis supplied). Thus, had Miranda been applied retroactively, it would have required the reversal of many convictions in which no serious constitutional violation had occurred. Id., at 731. Likewise, the retroactive application of Pearce would require the repudiation 54 of many sentences rendered under circumstances in which there was no genuine possibility that vindictiveness played a role. Judicial impropriety in the resentencing process, albeit intolerable wherever it happens, surely is not a common practice. Indeed, nothing in Pearce intimates that the Court regarded it as anything more than an infrequently appearing blemish on the sentencing process.[7] Absent countervailing considerations rooted in the purposes underlying a new rule, this factorthat retroactive application of such broadly protective rules would occasion reversals in many instances in which no actual prejudice has been sufferedpoints toward a ruling of prospectivity. Nonretroactivity is also suggested by the second similarity between Miranda and Pearce. While each created a protective umbrella serving to enhance a constitutional guarantee, neither conferred a constitutional right that had not existed prior to those decisions. The right against use of an involuntary confession long preceded Miranda just as the right to be free from fundamentally unfair sentencing considerations predated Pearce. Supra, at 50. Because these foundational rights remain available to defendants in pre-Miranda and pre-Pearce cases, a decision of nonretroactivity is less likely to result in the continued incarceration of those whose convictions or sentences rest on unconstitutional acts.[8]Linkletter v. Walker, 381 U. S., at 640 (Black, J., dissenting). 55 Of course, the question of the impact of particular decisions on the reliability and fairness of any aspect of a criminal proceeding is inherently a matter of balancing "probabilities." Johnson v. New Jersey, 384 U. S., at 729; Adams v. Illinois, 405 U.S. 278, 281 (1972). Yet in view of the fact that, if retroactive, Pearce would apply to innumerable cases in which no hint of vindictiveness appears, coupled with the consideration that due process claims may always be made in those prior cases in which some evidence of retaliatory motivation exists,[9] we have little doubt that the "probabilities" in this case preponderate in favor of a ruling of nonretroactivity.[10] Although the remaining factorsreliance and burden on the administration of justicehave been regarded as having controlling significance "only when the purpose of the rule in question did not clearly favor either retroactivity or prospectivity," Desist v. United States, 394 U.S. 244, 251 (1969), those considerations also support the nonretroactivity of Pearce. The result in Pearce was not "foreshadowed" by any prior decision of this Court.[11] Indeed, prior to Pearce, resentencing judges were bound by no requirement that they articulate their reasons and 56 generally enjoyed a wide discretion in terms of the factors they might legitimately consider. See Williams v. New York, 337 U.S. 241 (1949). Nor could it be said that the Court's decision was clearly forecast by any trend of lower court decisions. In Pearce itself the Court noted that lower federal and state courts were divided on all of the questions posed. 395 U.S., at 715 n. 5. Under these circumstances, judicial reliance on prior law was certainly justifiable.[12] Because of that reliance, it is fair to assume that in prior years few, if any, judges complied during resentencing with Pearce's recordation requirement, and that they often considered a variety of factors relating to the defendant and his crime which might or might not have fallen within the Pearce standard. We have been presented with no statistical indications as to how many persons received increased penalties after retrials.[13] We cannot say, however, that the potential interference with the administration of justice would be insubstantial if Pearce were applied retroactively. In order to comply with Pearce, a resentencing judgeassuming he is still on the bench or otherwise availablewould be required to make a factual determination as to the reasons for sentences he may have meted out years in the past. 57 Compliance with that requirement would present considerable difficulties, since judges, like witnesses in criminal trials, lack infallible memories and perfect records of their motivations.[14]Linkletter v. Walker, 381 U. S., at 637. While we would not shy from imposing these burdens were we persuaded that it was necessary to do so in order to effectuate the purposes underlying Pearce, we have found no such need here. In sum, upon application of the three-part test, we hold that the Pearce requirements are not to be accorded retroactive application.[15] III Since the resentencing hearing in this case took place approximately two years before Pearce was decided, we hold that the Michigan Supreme Court erred in applying its proscriptions here. Accordingly, the judgment of that court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. *58 MR.	A writ of certiorari was granted in this case, to decide whether the due process holding of North is to be given retroactive effect. For the reasons that follow, we hold today that this decision is nonretroactive. I Respondent, Leroy Payne, pleaded guilty in a county circuit court in Michigan to a charge of assault with intent to commit murder in connection with an armed 48 attack upon two sheriff's deputies. In March 196 he was sentenced to a prison term of from 19 to 40 years. Several years later, respondent's conviction and sentence were set aside when a hearing, ordered by the Michigan Court of Appeals, disclosed that his confession and subsequent guilty plea were involuntary. Following a retrial, at which he exercised his rights to trial by jury and to plead innocent, respondent again was found guilty on the same assault charge. On August 0, 1967, he was resentenced to prison from 25 to 50 years with full credit for all time served under the prior sentence. During the resentencing hearing, the judge explained that the higher sentence was "based on the nature of the crime and on the impressions which I formed of [respondent] and of the crime." Respondent appealed to the Michigan Court of Appeals, which affirmed his conviction and approved the higher sentence. While the case was pending before the Michigan Supreme Court, the trial judge who had presided over respondent's second trial was requested to submit an affidavit detailing his reasons for imposing a higher sentence. The judge's affidavit stated that his sentencing determination was based primarily on (i) his personal belief that respondent's attitude since the first sentencing proceeding had changed from one of regret to remorselessness, (ii) his view that respondent's alibi defense, given under oath, was a "tissue of lies," and (iii) his heightened opportunity to learn of the details of the crime during the three-day trial.[1] 49 The Michigan Supreme Court, in a 4-to- decision, upheld the conviction but rejected the higher sentence as violative of the due process restrictions established in North The court recognized that this Court had not yet decided whether applied to resentencing proceedings which, as in this case, occurred prior to 's date of decision.[2] While declining to predict how the retroactivity question would ultimately be resolved, the Michigan Supreme Court decided to apply to the case then before it "pending clarification" by this Court. at 90 n. n. 2. Before this Court, the State contends that should not be applied retrospectively, but that, even if applicable, the state supreme court erred in holding the higher sentence invalid under the test. Because we hold today that does not apply retroactively, we do not reach the State's second contention.[] 50 II In the Court emphasized that "[i]t can hardly be doubted" that, while "there exists no absolute constitutional bar to the imposition of a more severe sentence upon retrial," it would be entirely impermissible for judges to render harsher penalties as punishment for those defendants who have succeeded in getting their convictions reversed. 95 U.S., at 72. "[V]indictiveness" against a defendant for having exercised his rights to appeal or to attack his conviction collaterally, the Court held, "must play no part in the sentence [a defendant] receives after a new trial." In so holding, the Court recognized that "fundamental notions of fairness embodied within the concept of due process" absolutely preclude the imposition of sentences based upon such a " `retaliatory motivation.' " Chaffin v. Stynchcombe, ante, at 25. No "new" constitutional rule was thereby established and it cannot be questioned that this basic due process protection articulated 51 in is available equally to defendants resentenced before and after the date of decision in that case. On this point the parties do not disagree. The dispute in this case centers, instead, around the "prophylactic"[4] limitations established to guard against the possibility of vindictiveness in the resentencing process. Those limitations, applicable "whenever a judge imposes a more severe sentence upon a defendant after a new trial," 95 U.S., at 726, require that the sentencing judge's reasons "must affirmatively appear," and that those reasons "must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." The question here is whether these restrictions govern resentencing proceedings predating The contours of the retroactivity inquiry have been clearly delineated in numerous decisions over the last decade. The test utilized repeatedly by this Court to ascertain whether "new" constitutional protections in the area of criminal procedure are to be applied retroactively calls for the consideration of three criteria: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." 88 U.S. 29, See also 81 U.S. 618, 629, 66 ; 82 U.S. 406, ; 84 U.S. 719, The two purposes for the resentencing restrictions imposed by were to ensure (i) "that vindictiveness against a defendant for having successfully attacked his first conviction [would] play no part in the sentence 52 he receives after a new trial" and (ii) that apprehension of such vindictiveness would not "deter a defendant's exercise of the right to appeal or collaterally attack his first conviction." 95 U.S., ; The latter purpose is not pertinent to this case, since respondent was not deterred from exercising his right to challenge his first conviction. But, in any event, we think it clear that this function of the new resentencing rules could be served only in futuro: nothing in suggests that the Court contemplated that its decision might provide a ground for the untimely reopening of appeals by defendants who decided not to appeal prior to the date of decision in[5] See 441 F.2d 2 The first-articulated purpose of the rulesto protect against the possibility that actual vindictiveness will infect a resentencing proceedingdeserves closer scrutiny. Unlike the purposes underlying many of the decisions heretofore accorded retrospective application,[6] this purpose does not implicate the " `fair determination' of guilt or innocence." 92 U.S. 29, It does, however, involve questions touching on the "integrity" of one aspect of the judicial process. 9 U.S. 2, The restrictions serve to ensure 5 that resentencing decisions will not be based on improper considerations, such as a judge's unarticulated resentment at having been reversed on appeal, or his subjective institutional interest in discouraging meritless appeals. By eliminating the possibility that these factors might occasion enhanced sentences, the prophylactic rules assist in guaranteeing the propriety of the sentencing phase of the criminal process. In this protective role, is analogous to 84 U.S. 46 in which the Court established rules to govern police practices during custodial interrogations in order to safeguard the rights of the accused and to assure the reliability of statements made during those interrogations. Thus, the prophylactic rules in and Miranda are similar in that each was designed to preserve the integrity of a phase of the criminal process. Because of this similarity, we find that 84 U.S. 719 which held Miranda nonretroactive, provides considerable guidance here. See also 95 U.S. 21 It is an inherent attribute of prophylactic constitutional rules, such as those established in Miranda and that their retrospective application will occasion windfall benefits for some defendants who have suffered no constitutional deprivation. Miranda's well-known warning requirements provided a protection "against the possibility of unreliable statements in every instance of in-custody interrogation," and thereby covered many "situations in which the danger [was] not necessarily as great as when the accused is subjected to overt and obvious coercion." at 70 Thus, had Miranda been applied retroactively, it would have required the reversal of many convictions in which no serious constitutional violation had occurred. at 71. Likewise, the retroactive application of would require the repudiation 54 of many sentences rendered under circumstances in which there was no genuine possibility that vindictiveness played a role. Judicial impropriety in the resentencing process, albeit intolerable wherever it happens, surely is not a common practice. Indeed, nothing in intimates that the Court regarded it as anything more than an infrequently appearing blemish on the sentencing process.[7] Absent countervailing considerations rooted in the purposes underlying a new rule, this factorthat retroactive application of such broadly protective rules would occasion reversals in many instances in which no actual prejudice has been sufferedpoints toward a ruling of prospectivity. Nonretroactivity is also suggested by the second similarity between Miranda and While each created a protective umbrella serving to enhance a constitutional guarantee, neither conferred a constitutional right that had not existed prior to those decisions. The right against use of an involuntary confession long preceded Miranda just as the right to be free from fundamentally unfair sentencing considerations predated Because these foundational rights remain available to defendants in pre-Miranda and pre- cases, a decision of nonretroactivity is less likely to result in the continued incarceration of those whose convictions or sentences rest on unconstitutional acts.[8], 81 U. S., at 640 55 Of course, the question of the impact of particular decisions on the reliability and fairness of any aspect of a criminal proceeding is inherently a matter of balancing "probabilities." 84 U. S., at 729; Yet in view of the fact that, if retroactive, would apply to innumerable cases in which no hint of vindictiveness appears, coupled with the consideration that due process claims may always be made in those prior cases in which some evidence of retaliatory motivation exists,[9] we have little doubt that the "probabilities" in this case preponderate in favor of a ruling of nonretroactivity.[10] Although the remaining factorsreliance and burden on the administration of justicehave been regarded as having controlling significance "only when the purpose of the rule in question did not clearly favor either retroactivity or prospectivity," 94 U.S. 244, those considerations also support the nonretroactivity of The result in was not "foreshadowed" by any prior decision of this Court.[11] Indeed, prior to resentencing judges were bound by no requirement that they articulate their reasons and 56 generally enjoyed a wide discretion in terms of the factors they might legitimately consider. See 7 U.S. 241 Nor could it be said that the Court's decision was clearly forecast by any trend of lower court decisions. In itself the Court noted that lower federal and state courts were divided on all of the questions 95 U.S., at 715 n. 5. Under these circumstances, judicial reliance on prior law was certainly justifiable.[12] Because of that reliance, it is fair to assume that in prior years few, if any, judges complied during resentencing with 's recordation requirement, and that they often considered a variety of factors relating to the defendant and his crime which might or might not have fallen within the standard. We have been presented with no statistical indications as to how many persons received increased penalties after retrials.[1] We cannot say, however, that the potential interference with the administration of justice would be insubstantial if were applied retroactively. In order to comply with a resentencing judgeassuming he is still on the bench or otherwise availablewould be required to make a factual determination as to the reasons for sentences he may have meted out years in the past. 57 Compliance with that requirement would present considerable difficulties, since judges, like witnesses in criminal trials, lack infallible memories and perfect records of their motivations.[14], 81 U. S., at 67. While we would not shy from imposing these burdens were we persuaded that it was necessary to do so in order to effectuate the purposes underlying we have found no such need here. In sum, upon application of the three-part test, we hold that the requirements are not to be accorded retroactive application.[15] III Since the resentencing hearing in this case took place approximately two years before was decided, we hold that the Michigan Supreme Court erred in applying its proscriptions here. Accordingly, the judgment of that court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. *58 MR.
Justice Kagan	majority	false	Kloeckner v. Solis	2012-12-10T00:00:00	null	https://www.courtlistener.com/opinion/813289/kloeckner-v-solis/	https://www.courtlistener.com/api/rest/v3/clusters/813289/	2,012	2012-005	2	9	0	A federal employee subjected to an adverse personnel action such as a discharge or demotion may appeal her agency’s decision to the Merit Systems Protection Board (MSPB or Board). See 5 U.S. C. §§7512, 7701. In that challenge, the employee may claim, among other things, that the agency discriminated against her in violation of a federal statute. See §7702(a)(1). The question presented in this case arises when the MSPB dismisses an appeal alleging discrimination not on the merits, but on proce- dural grounds. Should an employee seeking judicial re- view then file a petition in the Court of Appeals for the Federal Circuit, or instead bring a suit in district court under the applicable antidiscrimination law? We hold she should go to district court. I A The Civil Service Reform Act of 1978 (CSRA), 5 U.S. C. §1101 et seq., establishes a framework for evaluating per- sonnel actions taken against federal employees. That statutory framework provides graduated procedural pro- 2 KLOECKNER v. SOLIS Opinion of the Court tections depending on an action’s severity. If (but only if ) the action is particularly serious—involving, for example, a removal from employment or a reduction in grade or pay—the affected employee has a right to appeal the agency’s decision to the MSPB, an independent adjudica- tor of federal employment disputes.1 See §§1204, 7512, 7701. Such an appeal may merely allege that the agency had insufficient cause for taking the action under the CSRA; but the appeal may also or instead charge the agency with discrimination prohibited by another federal statute, such as Title VII of the Civil Rights Act of 1964, 42 U.S. C. §2000e et seq., or the Age Discrimination in Employment Act of 1967, 29 U.S. C. §621 et seq. See 5 U.S. C. §7702(a)(1). When an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a “mixed case.” See 29 CFR §1614.302 (2012). The CSRA and regulations of the MSPB and Equal Employment Opportunity Commission (EEOC) set out special proce- dures to govern such a case—different from those used when the employee either challenges a serious personnel action under the CSRA alone or attacks a less serious action as discriminatory. See 5 U.S. C. §§7702, 7703(b)(2) (2006 ed. and Supp. V); 5 CFR pt. 1201, subpt. E (2012); 29 CFR pt. 1614, subpt. C. A federal employee bringing a mixed case may pro- ceed in a variety of ways. She may first file a discrim- ination complaint with the agency itself, much as an employee challenging a personnel practice not appealable to the MSPB could do. See 5 CFR §1201.154(a); 29 CFR —————— 1 Theactions entitling an employee to appeal a case to the MSPB include “(1) a removal; (2) a suspension for more than 14 days; (3) a reduction in grade; (4) a reduction in pay; and (5) a furlough.” 5 U.S. C. §7512. Cite as: 568 U. S. ____ (2012) 3 Opinion of the Court §1614.302(b). If the agency decides against her, the em- ployee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court. See 5 CFR §1201.154(b); 29 CFR §1614.302(d)(1)(i). Alternatively, the employee may initi- ate the process by bringing her case directly to the MSPB, forgoing the agency’s own system for evaluating discrimi- nation charges. See 5 CFR §1201.154(a); 29 CFR §1614.302(b). If the MSPB upholds the personnel action (whether in the first instance or after the agency has done so), the employee again has a choice: She may request additional administrative process, this time with the EEOC, or else she may seek judicial review. See 5 U.S. C. §§7702(a)(3), (b); 5 CFR §1201.161; 29 CFR §1614.303. The question in this case concerns where that judicial review should take place. Section 7703 of the CSRA governs judicial review of the MSPB’s decisions. Section 7703(b)(1) gives the basic rule: “Except as provided in paragraph (2) of this subsection, a petition to review a . . . final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit.” Section 7703(b)(2) then spells out the exception: “Cases of discrimination subject to the provisions of section 7702 of this title shall be filed under [the enforcement sections of the Civil Rights Act, Age Discrimination in Employment Act, and Fair Labor Standards Act], as applicable. Notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under such section 7702.” The enforcement provisions of the antidiscrimination statutes listed in this exception all authorize suit in fed- eral district court. See 42 U.S. C. §§2000e–16(c), 2000e– 4 KLOECKNER v. SOLIS Opinion of the Court 5(f ); 29 U.S. C. §633a(c); §216(b); see also Elgin v. De- partment of Treasury, 567 U.S. ___, ___ (2012) (slip op., at 9–10). Section 7702 describes and provides for the “cases of discrimination” referenced in §7703(b)(2)’s exception. In relevant part, §7702(a)(1) states: “[I]n the case of any employee . . . who— “(A) has been affected by an action which the em- ployee . . . may appeal to the Merit Systems Protec- tion Board, and “(B) alleges that a basis for the action was discrimi- nation prohibited by [specified antidiscrimination statutes], “the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate procedures.” The “cases of discrimination” in §7703(b)(2)’s exception, in other words, are mixed cases, in which an employee chal- lenges as discriminatory a personnel action appealable to the MSPB. The parties here dispute whether, in light of these in- terwoven statutory provisions, an employee should go to the Federal Circuit (pursuant to the general rule of §7703(b)(1)), or instead to a district court (pursuant to the exception in §7703(b)(2)), when the MSPB has dismissed her mixed case on procedural grounds. B Petitioner Carolyn Kloeckner used to work at the De- partment of Labor (DOL or agency). In June 2005, while still an employee, she filed a complaint with the agency’s civil rights office, alleging that DOL had engaged in un- lawful sex and age discrimination by subjecting her to a hostile work environment. At that point, Kloeckner’s case was not appealable to the MSPB because she had not Cite as: 568 U. S. ____ (2012) 5 Opinion of the Court suffered a sufficiently serious personnel action (e.g., a removal or demotion). See supra, at 1–2. Her claim thus went forward not under the special procedures for mixed cases, but under the EEOC’s regulations for all other charges of discrimination. See 29 CFR pt. 1614, subpts. A, D. In line with those rules, the agency completed an internal investigation and report in June 2006, and Kloeckner requested a hearing before an EEOC adminis- trative judge. The next month, DOL fired Kloeckner. A removal from employment is appealable to the MSPB, see supra, at 1–2, and Kloeckner believed the agency’s action was discrimi- natory; she therefore now had a mixed case. As permitted by regulation, see supra, at 3, she initially elected to file that case with the MSPB. Her claim of discriminatory removal, however, raised issues similar to those in her hostile work environment case, now pending before an EEOC judge; as a result, she became concerned that she would incur duplicative discovery expenses. To address that problem, she sought leave to amend her EEOC com- plaint to include her claim of discriminatory removal, and she asked the MSPB to dismiss her case without prejudice for four months to allow the EEOC process to go forward. See App. 13, 50–51. Both of those motions were granted. The EEOC judge accepted the amendment,2 and on Sep- tember 18, 2006, the MSPB dismissed her appeal “without prejudice to [her] right to refile . . . either (A) within 30 —————— 2 Neither the CSRA nor any regulation explicitly authorizes an EEOC judge to consider the legality of a removal or other serious personnel action before the Board has done so. See supra, at 2–3. Nonetheless, the EEOC has approved that approach when the issues the personnel action raises are “firmly enmeshed” in an ongoing EEOC proceeding in order to avoid “delay[ing] justice and creat[ing] unnecessary proce- dural complications.” Burton v. Espy, Appeal No. 01932449, 1994 WL 748214, 12 (EEOC, Oct. 28, 1994); see also Myvett v. Poteat, Appeal No. 0120103671, 2011 WL 6122516, 2 (EEOC, Nov. 21, 2011). We express no view on the propriety of this practice. 6 KLOECKNER v. SOLIS Opinion of the Court days after a decision is rendered in her EEOC case; or (B) by January 18, 2007—whichever occurs first.” Id., at 5. Discovery continued in the EEOC proceeding well past the MSPB’s January 18 deadline. In April, the EEOC judge found that Kloeckner had engaged in bad-faith conduct in connection with discovery. As a sanction, the judge terminated the EEOC proceeding and returned Kloeckner’s case to DOL for a final decision. Six months later, in October 2007, DOL issued a ruling rejecting all of Kloeckner’s claims. See id., at 10–49. Kloeckner appealed DOL’s decision to the Board in November 2007. That appeal was filed within 30 days, the usual window for seeking MSPB review of an agency’s determination of a mixed case. See 5 CFR §1201.154(a); 29 CFR §1614.302(d)(1)(ii). But the MSPB declined to treat Kloeckner’s filing as an ordinary appeal of such an agency decision. Instead, the Board viewed it as an effort to reopen her old MSPB case—many months after the January 18 deadline for doing so had expired. The Board therefore dismissed Kloeckner’s appeal as untimely. See App. 53–57. Kloeckner then brought this action against DOL in Federal District Court, alleging unlawful discrimination. The District Court dismissed the complaint for lack of jurisdiction. See Kloeckner v. Solis, Civ. Action No. 4:09CV804 (ED Mo., Feb. 18, 2010). Relying on the Eighth Circuit’s ruling in Brumley v. Levinson, 991 F.2d 801 (1993) (per curiam), the court held that because the MSPB had dismissed Kloeckner’s claims on procedural grounds, she should have sought review in the Federal Circuit under §7703(b)(1); in the court’s view, the only discrimination cases that could go to district court pursu- ant to §7703(b)(2) were those the MSPB had decided on the merits. The Eighth Circuit affirmed on the same reasoning. See 639 F.3d 834 (2011). We granted certiorari, 565 U. S. ___ (2012), to resolve a Cite as: 568 U. S. ____ (2012) 7 Opinion of the Court Circuit split on whether an employee seeking judicial review should proceed in the Federal Circuit or in a dis- trict court when the MSPB has dismissed her mixed case on procedural grounds.3 We now reverse the Eighth Cir- cuit’s decision. II As the above account reveals, the intersection of fed- eral civil rights statutes and civil service law has produced a complicated, at times confusing, process for resolving claims of discrimination in the federal workplace. But even within the most intricate and complex systems, some things are plain. So it is in this case, where two sections of the CSRA, read naturally, direct employees like Kloeck- ner to district court. Begin with §7703, which governs judicial review of the MSPB’s rulings. As already noted, see supra, at 3–4, §7703(b)(1) provides that petitions to review the Board’s final decisions should be filed in the Federal Circuit— “[e]xcept as provided in paragraph (2) of this subsection.” Paragraph (2), i.e., §7703(b)(2), then sets out a different rule for one category of cases—“[c]ases of discrimination subject to the provisions of section 7702 of this title.” Such a case, paragraph (2) instructs, “shall be filed under” the enforcement provision of an enumerated antidiscrimina- tion statute. And each of those enforcement provisions authorizes an action in federal district court. See supra, at 3–4. So “[c]ases of discrimination subject to the provi- sions of section 7702” shall be filed in district court. Turn next to §7702, which identifies the cases “subject to [its] provisions.” As also stated earlier, §7702(a)(1) de- scribes cases in which a federal employee “(A) has been —————— 3 Compare 639 F.3d 834 (CA8 2011) (case below) (Federal Circuit); Ballentine v. MSPB, 738 F.2d 1244 (CA Fed. 1984) (same), with Harms v. IRS, 321 F.3d 1001 (CA10 2003) (district court); Downey v. Runyon, 160 F.3d 139 (CA2 1998) (same). 8 KLOECKNER v. SOLIS Opinion of the Court affected by an action which [she] may appeal to the Merit Systems Protection Board, and (B) alleges that a basis for the action was discrimination prohibited by” a listed federal statute. The subsection thus describes what we (adopting the lingo of the applicable regulations) have called “mixed cases.” See 29 CFR §1614.302. Those are the “cases of discrimination subject to” the rest of §7702’s provisions. Now just put §7703 and §7702 together—say, in the form of a syllogism, to make the point obvious. Under §7703(b)(2), “cases of discrimination subject to [§7702]” shall be filed in district court. Under §7702(a)(1), the “cases of discrimination subject to [§7702]” are mixed cases—those appealable to the MSPB and alleging dis- crimination. Ergo, mixed cases shall be filed in district court. And so that is where Kloeckner’s case should have been filed (as indeed it was). No one here contests that Kloeck- ner brought a mixed case—that she was affected by an action (i.e., removal) appealable to the MSPB and that she alleged discrimination prohibited by an enumerated fed- eral law. And under the CSRA’s terms, that is all that matters. Regardless whether the MSPB dismissed her claim on the merits or instead threw it out as untimely, Kloeckner brought the kind of case that the CSRA routes, in crystalline fashion, to district court. III The Government offers an alternative view (as did the Eighth Circuit)—that the CSRA directs the MSPB’s merits decisions to district court, while channeling its procedural rulings to the Federal Circuit. According to the Govern- ment, that bifurcated scheme, though not prescribed in the CSRA in so many words, lies hidden in the statute’s timing requirements. But we return from the Govern- ment’s mazelike tour of the CSRA persuaded only that the Cite as: 568 U. S. ____ (2012) 9 Opinion of the Court merits-procedure distinction is a contrivance, found no- where in the statute’s provisions on judicial review. The Government’s argument has two necessary steps. First, the Government claims that §7703(b)(2)’s exception to Federal Circuit jurisdiction applies only when the MSPB’s decision in a mixed case is a “judicially review- able action” under §7702. Second, the Government asserts that the Board’s dismissal of a mixed case on procedural grounds does not qualify as such a “judicially reviewable action.” We describe in turn the way the Government arrives at each of these conclusions. The first step of the Government’s argument derives from §7703(b)(2)’s second sentence. Right after stating that “cases of discrimination subject to [§7702]” shall be filed under specified antidiscrimination statutes (i.e., shall be filed in district court), §7703(b)(2) provides: “Notwith- standing any other provision of law, any such case filed under any such [statute] must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under section 7702.” The Government reads that sentence to establish an ad- ditional prerequisite for taking a case to district court, instead of to the Federal Circuit. To fall within the §7703(b)(2) exception, the Government says, it is not enough that a case qualify as a “case of discrimination subject to [§7702]”; in addition, the MSPB’s decision must count as a “judicially reviewable action.” See Brief for United States 20–21. If the MSPB’s decision is not a “judicially reviewable action”—a phrase the Government characterizes as a “term of art in this context,” Tr. of Oral Arg. 28—the ruling still may be subject to judicial review (i.e., “judicially reviewable” in the ordinary sense), but only in the Federal Circuit. The Government’s second step—that the Board’s pro- cedural rulings are not “judicially reviewable actions”— begins with the language of §7702(a)(3). That provision, 10 KLOECKNER v. SOLIS Opinion of the Court the Government states, “defines for the most part which MSPB decisions qualify as ‘judicially reviewable ac- tions[s]’ ” by “providing that ‘[a]ny decision of the Board under paragraph (1) of this subsection shall be a judicially reviewable action as of’ the date of the decision.” Brief for Respondent 21 (quoting §7702(a)(3); emphasis and brackets added by Government). From there, the Govern- ment moves on to the cross-referenced paragraph— §7702(a)(1)—which states, among other things, that the Board “shall, within 120 days of [the employee’s filing], decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate proce- dures.” According to the Government, the Board only “decide[s] . . . the issue of discrimination” when it rules on the merits, rather than on procedural grounds. On that view, a procedural decision is not in fact a “decision of the Board under paragraph (1),” which means that it also is not a “judicially reviewable action” under §7702(a)(3). See Brief for Respondent 21–22. And so (returning now to the first step of the Government’s argument), judicial review of a procedural decision can occur only in the Federal Circuit, and not in district court. If you need to take a deep breath after all that, you’re not alone. It would be hard to dream up a more round- about way of bifurcating judicial review of the MSPB’s rulings in mixed cases. If Congress had wanted to send merits decisions to district court and procedural dismis- sals to the Federal Circuit, it could just have said so. The Government has offered no reason for Congress to have constructed such an obscure path to such a simple result. And taking the Government’s analysis one step at a time makes it no more plausible than as a gestalt. The Government’s initial move is to read §7703(b)(2)’s second sentence as adding a requirement for a case to fall within the exception to Federal Circuit jurisdiction. But that sentence does no such thing; it is nothing more than a Cite as: 568 U. S. ____ (2012) 11 Opinion of the Court filing deadline. Consider each sentence of §7703(b)(2) in turn. The first sentence defines which cases should be brought in district court, rather than in the Federal Cir- cuit; here, the full description is “[c]ases of discrimination subject to the provisions of section 7702”—to wit, mixed cases. The second sentence then states when those cases should be brought: “any such case . . . must be filed within 30 days” of the date the employee “received notice of the judicially reviewable action.” The reference to a “judicially reviewable action” in that sentence does important work: It sets the clock running for when a case that belongs in district court must be filed there. What it does not do is to further define which timely-brought cases belong in dis- trict court instead of in the Federal Circuit. Describing those cases is the first sentence’s role. Proof positive that the Government misreads §7703(b)(2) comes from considering what the phrase “ju- dicially reviewable action” would mean under its theory. In normal legal parlance, to say that an agency action is not “judicially reviewable” is to say simply that it is not subject to judicial review—that, for one or another reason, it cannot be taken to a court. But that ordinary under- standing will not work for the Government here, because it wants to use the phrase to help determine which of two courts should review a decision, rather than whether judicial review is available at all. In the Government’s alternate universe, then, to say that an agency action is not “judicially reviewable” is to say that it is subject to judicial review in the Federal Circuit (even though not in district court). Small wonder that the Government must call the phrase “judicially reviewable action” a “term of art,” supra, at 9: On a natural reading, the phrase defines cases amenable to judicial review, rather than routes those cases as between two courts. And even were we to indulge the Government that far, we could not accept the second step of its analysis. At that 12 KLOECKNER v. SOLIS Opinion of the Court stage, remember, the Government contends that under §7702 only decisions on the merits qualify as “judicially reviewable actions.” The language on which the Govern- ment principally relies, stated again, is as follows: “[T]he Board shall, within 120 days of [the employee’s filing], decide both the issue of discrimination and the appealable action.” But that provision, too, is only a timing require- ment; it is designed to ensure that the Board act promptly on employees’ complaints. We see no reason to think that embedded within that directive is a limitation on the class of “judicially reviewable actions.” Nor (even were we to indulge the Government on that point as well) can we find the particular restriction the Government urges. Accord- ing to the Government, the MSPB does not “decide . . . the issue of discrimination” when it dismisses a mixed case on procedural grounds. But that phrase cannot bear the weight the Government places on it. All the phrase signi- fies is that the Board should dispose of the issue in some way, whether by actually adjudicating it or by holding that it was not properly raised. Indeed, were the Government right, §7702(a)’s statement that the Board “shall” decide the issue of discrimination would appear to bar procedural dismissals, requiring the Board to resolve on the merits even untimely complaints. No one (least of all the Gov- ernment, which here is defending a procedural ruling) thinks that a plausible congressional command. Another section of the statute—§7702(e)(1)(B)—puts the final nail in the coffin bearing the Government’s argu- ment. That section states: “[I]f at any time after the 120th day following [an employee’s filing] with the Board . . . , there is no judicially reviewable action[,] . . . an employee shall be entitled to file a civil action” in district court under a listed antidiscrimination statute. That provision, as the Government notes, is designed “to save employees from being held in perpetual uncertainty by Board inac- tion.” Brief for Respondent 28. But if, as the Government Cite as: 568 U. S. ____ (2012) 13 Opinion of the Court insists, a procedural ruling is not a “judicially reviewable action,” then the provision would have another, surprising effect—essentially blowing up the Government’s argument from the inside. In that event, an employee whose suit the Board had dismissed on procedural grounds could bring suit in district court under 7702(e)(1)(B) (so long as 120 days had elapsed from her Board filing), because she would have received “no judicially reviewable action.” And what’s more, she could do so even many years later, be- cause the statute’s usual 30-day filing deadline begins to run only upon “notice of [a] judicially reviewable action.” §7703(b)(2). So an argument intended to keep employees like Kloeckner out of district court would paradoxically, and nonsensically, result in giving them all the time in the world to file suit there. Responding to this unwelcome outcome, the Govern- ment offers us an exit route: We should avoid “absurd results,” the Government urges, by applying §7702(e)(1)(B) only to “cases over which the Board continues to exert jurisdiction.” Brief for Respondent 27, 28, n. 4. But as the Government admits, that “gloss on the statute is not found in the text,” Tr. of Oral Arg. 50; the Government’s remedy requires our reading new words into the statute. We think a better option lies at hand. If we reject the Gov- ernment’s odd view of “judicially reviewable actions,” then no absurdity arises in the first place: §7702(e)(1)(B) would have no bearing on any case the MSPB dismissed within 120 days, whatever the grounds. It is the Govern- ment’s own misreading that creates the need to “fix” §7702(e)(1)(B); take that away and the provision serves, as it was intended, only as a remedy for Board inaction.4 —————— 4 The Government supplements its tortuous reading of the CSRA’s text with an appeal to one of the statute’s purposes—in its words, “ensuring that the Federal Circuit would develop a uniform body of case law governing federal personnel issues.” Brief for Respondent 32. We have previously recognized that Congress, through the CSRA, 14 KLOECKNER v. SOLIS Opinion of the Court IV A federal employee who claims that an agency action appealable to the MSPB violates an antidiscrimination statute listed in §7702(a)(1) should seek judicial review in district court, not in the Federal Circuit. That is so whether the MSPB decided her case on procedural grounds or instead on the merits. Kloeckner therefore brought her suit in the right place. We reverse the con- trary judgment of the Court of Appeals for the Eighth Circuit, and remand the case for further proceedings consistent with this opinion. It is so ordered. —————— sought to avoid “unnecessary layer[s] of judicial review in lower federal courts, and encourag[e] more consistent judicial decisions.” United States v. Fausto, 484 U.S. 439, 449 (1988) (internal quotation marks and some bracketing omitted). But in this case, the Government’s argument about the necessity of Federal Circuit review runs into an inconvenient fact: When Congress passed the CSRA, the Federal Circuit did not exist, and §7703(b)(1) thus provided, as the general rule, that a federal employee should appeal a Board decision to 1 of the 12 Courts of Appeals or the Court of Claims. See Civil Service Reform Act of 1978, 92 Stat. 1143. Moreover, the Government’s own approach would leave many cases involving federal employment issues in district court. If the MSPB rejects on the merits a complaint alleging that an agency violated the CSRA as well as an antidiscrimination law, the suit will come to district court for a decision on both questions. See Wil- liams v. Department of Army, 715 F.2d 1485, 1491 (CA Fed. 1983) (en banc). In any event, even the most formidable argument concerning the statute’s purposes could not overcome the clarity we find in the statute’s text	A federal employee subjected to an adverse personnel action such as a discharge or demotion may appeal her agency’s decision to the Merit Systems Protection Board (MSPB or Board). See 5 U.S. C. 7701. In that challenge, the employee may claim, among other things, that the agency discriminated against her in violation of a federal statute. See The question presented in this case arises when the MSPB dismisses an appeal alleging discrimination not on the merits, but on proce- dural grounds. Should an employee seeking judicial re- view then file a petition in the Court of Appeals for the Federal Circuit, or instead bring a suit in district court under the applicable antidiscrimination law? We hold she should go to district court. I A The Civil Service Reform Act of 1978 (CSRA), 5 U.S. C. et seq., establishes a framework for evaluating per- sonnel actions taken against federal employees. That statutory framework provides graduated procedural pro- 2 KLOECKNER v. SOLIS Opinion of the Court tections depending on an action’s severity. If (but only if ) the action is particularly serious—involving, for example, a removal from employment or a reduction in grade or pay—the affected employee has a right to appeal the agency’s decision to the MSPB, an independent adjudica- tor of federal employment disputes.1 See 7512, 7701. Such an appeal may merely allege that the agency had insufficient cause for taking the action under the CSRA; but the appeal may also or instead charge the agency with discrimination prohibited by another federal statute, such as Title VII of the Civil Rights Act of 1964, 42 U.S. C. et seq., or the Age Discrimination in Employment Act of 1967, 29 U.S. C. et seq. See 5 U.S. C. When an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a “mixed case.” See (2012). The CSRA and regulations of the MSPB and Equal Employment Opportunity Commission (EEOC) set out special proce- dures to govern such a case—different from those used when the employee either challenges a serious personnel action under the CSRA alone or attacks a less serious action as discriminatory. See 5 U.S. C. 7703(b)(2) (2006 ed. and Supp. V); 5 CFR pt. 1201, subpt. E (2012); 29 CFR pt. 1614, subpt. C. A federal employee bringing a mixed case may pro- ceed in a variety of ways. She may first file a discrim- ination complaint with the agency itself, much as an employee challenging a personnel practice not appealable to the MSPB could do. See (a); 29 CFR —————— 1 Theactions entitling an employee to appeal a case to the MSPB include “(1) a removal; (2) a suspension for more than 14 days; (3) a reduction in grade; (4) a reduction in pay; and (5) a furlough.” 5 U.S. C. Cite as: 568 U. S. (2012) 3 Opinion of the Court If the agency decides against her, the em- ployee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court. See (b); 29 CFR Alternatively, the employee may initi- ate the process by bringing her case directly to the MSPB, forgoing the agency’s own system for evaluating discrimi- nation charges. See (a); 29 CFR If the MSPB upholds the personnel action (whether in the first instance or after the agency has done so), the employee again has a choice: She may request additional administrative process, this time with the EEOC, or else she may seek judicial review. See 5 U.S. C. (b); ; The question in this case concerns where that judicial review should take place. Section 7703 of the CSRA governs judicial review of the MSPB’s decisions. Section 7703(b)(1) gives the basic rule: “Except as provided in paragraph (2) of this subsection, a petition to review a final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit.” Section 7703(b)(2) then spells out the exception: “Cases of discrimination subject to the provisions of section 7702 of this title shall be filed under [the enforcement sections of the Civil Rights Act, Age Discrimination in Employment Act, and Fair Labor Standards Act], as applicable. Notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under such section 7702.” The enforcement provisions of the antidiscrimination statutes listed in this exception all authorize suit in fed- eral district court. See 42 U.S. C. §–16(c), 2000e– 4 KLOECKNER v. SOLIS Opinion of the Court 5(f ); 29 U.S. C. see also Elgin v. De- partment of Treasury, 567 U.S. (2012) (slip op., at 9–10). Section 7702 describes and provides for the “cases of discrimination” referenced in exception. In relevant part, states: “[I]n the case of any employee who— “(A) has been affected by an action which the em- ployee may appeal to the Merit Systems Protec- tion Board, and “(B) alleges that a basis for the action was discrimi- nation prohibited by [specified antidiscrimination statutes], “the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate procedures.” The “cases of discrimination” in exception, in other words, are mixed cases, in which an employee chal- lenges as discriminatory a personnel action appealable to the MSPB. The parties here dispute whether, in light of these in- terwoven statutory provisions, an employee should go to the Federal Circuit (pursuant to the general rule of or instead to a district court (pursuant to the exception in when the MSPB has dismissed her mixed case on procedural grounds. B Petitioner Carolyn Kloeckner used to work at the De- partment of Labor (DOL or agency). In June 2005, while still an employee, she filed a complaint with the agency’s civil rights office, alleging that DOL had engaged in un- lawful sex and age discrimination by subjecting her to a hostile work environment. At that point, Kloeckner’s case was not appealable to the MSPB because she had not Cite as: 568 U. S. (2012) 5 Opinion of the Court suffered a sufficiently serious personnel action (e.g., a removal or demotion). See at 1–2. Her claim thus went forward not under the special procedures for mixed cases, but under the EEOC’s regulations for all other charges of discrimination. See 29 CFR pt. 1614, subpts. A, D. In line with those rules, the agency completed an internal investigation and report in June 2006, and Kloeckner requested a hearing before an EEOC adminis- trative judge. The next month, DOL fired Kloeckner. A removal from employment is appealable to the MSPB, see at 1–2, and Kloeckner believed the agency’s action was discrimi- natory; she therefore now had a mixed case. As permitted by regulation, see she initially elected to file that case with the MSPB. Her claim of discriminatory removal, however, raised issues similar to those in her hostile work environment case, now pending before an EEOC judge; as a result, she became concerned that she would incur duplicative discovery expenses. To address that problem, she sought leave to amend her EEOC com- plaint to include her claim of discriminatory removal, and she asked the MSPB to dismiss her case without prejudice for four months to allow the EEOC process to go forward. See App. 13, 50–51. Both of those motions were granted. The EEOC judge accepted the amendment,2 and on Sep- tember 18, 2006, the MSPB dismissed her appeal “without prejudice to [her] right to refile either (A) within 30 —————— 2 Neither the CSRA nor any regulation explicitly authorizes an EEOC judge to consider the legality of a removal or other serious personnel action before the Board has done so. See at 2–3. Nonetheless, the EEOC has approved that approach when the issues the personnel action raises are “firmly enmeshed” in an ongoing EEOC proceeding in order to avoid “delay[ing] justice and creat[ing] unnecessary proce- dural complications.” Burton v. Espy, Appeal No. 01932, 1994 WL 748214, *12 (EEOC, Oct. 28, 1994); see also We express no view on the propriety of this practice. 6 KLOECKNER v. SOLIS Opinion of the Court days after a decision is rendered in her EEOC case; or (B) by January 18, 2007—whichever occurs first.” Discovery continued in the EEOC proceeding well past the MSPB’s January 18 deadline. In April, the EEOC judge found that Kloeckner had engaged in bad-faith conduct in connection with discovery. As a sanction, the judge terminated the EEOC proceeding and returned Kloeckner’s case to DOL for a final decision. Six months later, in October 2007, DOL issued a ruling rejecting all of Kloeckner’s claims. See at 10–49. Kloeckner appealed DOL’s decision to the Board in November 2007. That appeal was filed within 30 days, the usual window for seeking MSPB review of an agency’s determination of a mixed case. See (a); (d)(1)(ii). But the MSPB declined to treat Kloeckner’s filing as an ordinary appeal of such an agency decision. Instead, the Board viewed it as an effort to reopen her old MSPB case—many months after the January 18 deadline for doing so had expired. The Board therefore dismissed Kloeckner’s appeal as untimely. See App. 53–57. Kloeckner then brought this action against DOL in Federal District Court, alleging unlawful discrimination. The District Court dismissed the complaint for lack of jurisdiction. See Kloeckner v. Solis, Civ. Action No. 4:09CV804 (ED Mo., Feb. 18, 2010). Relying on the Eighth Circuit’s ruling in Brumley v. Levinson, 991 F.2d 801 (1993) (per curiam), the court held that because the MSPB had dismissed Kloeckner’s claims on procedural grounds, she should have sought review in the Federal Circuit under in the court’s view, the only discrimination cases that could go to district court pursu- ant to were those the MSPB had decided on the merits. The Eighth Circuit affirmed on the same reasoning. See We granted certiorari, 565 U. S. (2012), to resolve a Cite as: 568 U. S. (2012) 7 Opinion of the Court Circuit split on whether an employee seeking judicial review should proceed in the Federal Circuit or in a dis- trict court when the MSPB has dismissed her mixed case on procedural grounds.3 We now reverse the Eighth Cir- cuit’s decision. II As the above account reveals, the intersection of fed- eral civil rights statutes and civil service law has produced a complicated, at times confusing, process for resolving claims of discrimination in the federal workplace. But even within the most intricate and complex systems, some things are plain. So it is in this case, where two sections of the CSRA, read naturally, direct employees like Kloeck- ner to district court. Begin with which governs judicial review of the MSPB’s rulings. As already noted, see –4, provides that petitions to review the Board’s final decisions should be filed in the Federal Circuit— “[e]xcept as provided in paragraph (2) of this subsection.” Paragraph (2), i.e., then sets out a different rule for one category of cases—“[c]ases of discrimination subject to the provisions of section 7702 of this title.” Such a case, paragraph (2) instructs, “shall be filed under” the enforcement provision of an enumerated antidiscrimina- tion statute. And each of those enforcement provisions authorizes an action in federal district court. See –4. So “[c]ases of discrimination subject to the provi- sions of section 7702” shall be filed in district court. Turn next to which identifies the cases “subject to [its] provisions.” As also stated earlier, de- scribes cases in which a federal employee “(A) has been —————— 3 Compare (Federal Circuit); with Harms v. IRS, ; 8 KLOECKNER v. SOLIS Opinion of the Court affected by an action which [she] may appeal to the Merit Systems Protection Board, and (B) alleges that a basis for the action was discrimination prohibited by” a listed federal statute. The subsection thus describes what we (adopting the lingo of the applicable regulations) have called “mixed cases.” See Those are the “cases of discrimination subject to” the rest of provisions. Now just put and together—say, in the form of a syllogism, to make the point obvious. Under “cases of discrimination subject to []” shall be filed in district court. Under the “cases of discrimination subject to []” are mixed cases—those appealable to the MSPB and alleging dis- crimination. Ergo, mixed cases shall be filed in district court. And so that is where Kloeckner’s case should have been filed (as indeed it was). No one here contests that Kloeck- ner brought a mixed case—that she was affected by an action (i.e., removal) appealable to the MSPB and that she alleged discrimination prohibited by an enumerated fed- eral law. And under the CSRA’s terms, that is all that matters. Regardless whether the MSPB dismissed her claim on the merits or instead threw it out as untimely, Kloeckner brought the kind of case that the CSRA routes, in crystalline fashion, to district court. III The Government offers an alternative view (as did the Eighth Circuit)—that the CSRA directs the MSPB’s merits decisions to district court, while channeling its procedural rulings to the Federal Circuit. According to the Govern- ment, that bifurcated scheme, though not prescribed in the CSRA in so many words, lies hidden in the statute’s timing requirements. But we return from the Govern- ment’s mazelike tour of the CSRA persuaded only that the Cite as: 568 U. S. (2012) 9 Opinion of the Court merits-procedure distinction is a contrivance, found no- where in the statute’s provisions on judicial review. The Government’s argument has two necessary steps. First, the Government claims that exception to Federal Circuit jurisdiction applies only when the MSPB’s decision in a mixed case is a “judicially review- able action” under Second, the Government asserts that the Board’s dismissal of a mixed case on procedural grounds does not qualify as such a “judicially reviewable action.” We describe in turn the way the Government arrives at each of these conclusions. The first step of the Government’s argument derives from second sentence. Right after stating that “cases of discrimination subject to []” shall be filed under specified antidiscrimination statutes (i.e., shall be filed in district court), provides: “Notwith- standing any other provision of law, any such case filed under any such [statute] must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under section 7702.” The Government reads that sentence to establish an ad- ditional prerequisite for taking a case to district court, instead of to the Federal Circuit. To fall within the exception, the Government says, it is not enough that a case qualify as a “case of discrimination subject to []”; in addition, the MSPB’s decision must count as a “judicially reviewable action.” See Brief for United States 20–21. If the MSPB’s decision is not a “judicially reviewable action”—a phrase the Government characterizes as a “term of art in this context,” Tr. of Oral Arg. 28—the ruling still may be subject to judicial review (i.e., “judicially reviewable” in the ordinary sense), but only in the Federal Circuit. The Government’s second step—that the Board’s pro- cedural rulings are not “judicially reviewable actions”— begins with the language of (a)(3). That provision, 10 KLOECKNER v. SOLIS Opinion of the Court the Government states, “defines for the most part which MSPB decisions qualify as ‘judicially reviewable ac- tions[s]’ ” by “providing that ‘[a]ny decision of the Board under paragraph (1) of this subsection shall be a judicially reviewable action as of’ the date of the decision.” Brief for Respondent 21 (quoting (a)(3); emphasis and brackets added by Government). From there, the Govern- ment moves on to the cross-referenced paragraph— —which states, among other things, that the Board “shall, within 120 days of [the employee’s filing], decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate proce- dures.” According to the Government, the Board only “decide[s] the issue of discrimination” when it rules on the merits, rather than on procedural grounds. On that view, a procedural decision is not in fact a “decision of the Board under paragraph (1),” which means that it also is not a “judicially reviewable action” under (a)(3). See Brief for Respondent 21–22. And so (returning now to the first step of the Government’s argument), judicial review of a procedural decision can occur only in the Federal Circuit, and not in district court. If you need to take a deep breath after all that, you’re not alone. It would be hard to dream up a more round- about way of bifurcating judicial review of the MSPB’s rulings in mixed cases. If Congress had wanted to send merits decisions to district court and procedural dismis- sals to the Federal Circuit, it could just have said so. The Government has offered no reason for Congress to have constructed such an obscure path to such a simple result. And taking the Government’s analysis one step at a time makes it no more plausible than as a gestalt. The Government’s initial move is to read second sentence as adding a requirement for a case to fall within the exception to Federal Circuit jurisdiction. But that sentence does no such thing; it is nothing more than a Cite as: 568 U. S. (2012) 11 Opinion of the Court filing deadline. Consider each sentence of in turn. The first sentence defines which cases should be brought in district court, rather than in the Federal Cir- cuit; here, the full description is “[c]ases of discrimination subject to the provisions of section 7702”—to wit, mixed cases. The second sentence then states when those cases should be brought: “any such case must be filed within 30 days” of the date the employee “received notice of the judicially reviewable action.” The reference to a “judicially reviewable action” in that sentence does important work: It sets the clock running for when a case that belongs in district court must be filed there. What it does not do is to further define which timely-brought cases belong in dis- trict court instead of in the Federal Circuit. Describing those cases is the first sentence’s role. Proof positive that the Government misreads comes from considering what the phrase “ju- dicially reviewable action” would mean under its theory. In normal legal parlance, to say that an agency action is not “judicially reviewable” is to say simply that it is not subject to judicial review—that, for one or another reason, it cannot be taken to a court. But that ordinary under- standing will not work for the Government here, because it wants to use the phrase to help determine which of two courts should review a decision, rather than whether judicial review is available at all. In the Government’s alternate universe, then, to say that an agency action is not “judicially reviewable” is to say that it is subject to judicial review in the Federal Circuit (even though not in district court). Small wonder that the Government must call the phrase “judicially reviewable action” a “term of art,” at 9: On a natural reading, the phrase defines cases amenable to judicial review, rather than routes those cases as between two courts. And even were we to indulge the Government that far, we could not accept the second step of its analysis. At that 12 KLOECKNER v. SOLIS Opinion of the Court stage, remember, the Government contends that under only decisions on the merits qualify as “judicially reviewable actions.” The language on which the Govern- ment principally relies, stated again, is as follows: “[T]he Board shall, within 120 days of [the employee’s filing], decide both the issue of discrimination and the appealable action.” But that provision, too, is only a timing require- ment; it is designed to ensure that the Board act promptly on employees’ complaints. We see no reason to think that embedded within that directive is a limitation on the class of “judicially reviewable actions.” Nor (even were we to indulge the Government on that point as well) can we find the particular restriction the Government urges. Accord- ing to the Government, the MSPB does not “decide the issue of discrimination” when it dismisses a mixed case on procedural grounds. But that phrase cannot bear the weight the Government places on it. All the phrase signi- fies is that the Board should dispose of the issue in some way, whether by actually adjudicating it or by holding that it was not properly raised. Indeed, were the Government right, (a)’s statement that the Board “shall” decide the issue of discrimination would appear to bar procedural dismissals, requiring the Board to resolve on the merits even untimely complaints. No one (least of all the Gov- ernment, which here is defending a procedural ruling) thinks that a plausible congressional command. Another section of the statute—(e)(1)(B)—puts the final nail in the coffin bearing the Government’s argu- ment. That section states: “[I]f at any time after the 120th day following [an employee’s filing] with the Board there is no judicially reviewable action[,] an employee shall be entitled to file a civil action” in district court under a listed antidiscrimination statute. That provision, as the Government notes, is designed “to save employees from being held in perpetual uncertainty by Board inac- tion.” Brief for Respondent 28. But if, as the Government Cite as: 568 U. S. (2012) 13 Opinion of the Court insists, a procedural ruling is not a “judicially reviewable action,” then the provision would have another, surprising effect—essentially blowing up the Government’s argument from the inside. In that event, an employee whose suit the Board had dismissed on procedural grounds could bring suit in district court under 7702(e)(1)(B) (so long as 120 days had elapsed from her Board filing), because she would have received “no judicially reviewable action.” And what’s more, she could do so even many years later, be- cause the statute’s usual 30-day filing deadline begins to run only upon “notice of [a] judicially reviewable action.” So an argument intended to keep employees like Kloeckner out of district court would paradoxically, and nonsensically, result in giving them all the time in the world to file suit there. Responding to this unwelcome outcome, the Govern- ment offers us an exit route: We should avoid “absurd results,” the Government urges, by applying (e)(1)(B) only to “cases over which the Board continues to exert jurisdiction.” Brief for Respondent 27, 28, n. 4. But as the Government admits, that “gloss on the statute is not found in the text,” Tr. of Oral Arg. 50; the Government’s remedy requires our reading new words into the statute. We think a better option lies at hand. If we reject the Gov- ernment’s odd view of “judicially reviewable actions,” then no absurdity arises in the first place: (e)(1)(B) would have no bearing on any case the MSPB dismissed within 120 days, whatever the grounds. It is the Govern- ment’s own misreading that creates the need to “fix” (e)(1)(B); take that away and the provision serves, as it was intended, only as a remedy for Board inaction.4 —————— 4 The Government supplements its tortuous reading of the CSRA’s text with an appeal to one of the statute’s purposes—in its words, “ensuring that the Federal Circuit would develop a uniform body of case law governing federal personnel issues.” Brief for Respondent 32. We have previously recognized that Congress, through the CSRA, 14 KLOECKNER v. SOLIS Opinion of the Court IV A federal employee who claims that an agency action appealable to the MSPB violates an antidiscrimination statute listed in should seek judicial review in district court, not in the Federal Circuit. That is so whether the MSPB decided her case on procedural grounds or instead on the merits. Kloeckner therefore brought her suit in the right place. We reverse the con- trary judgment of the Court of Appeals for the Eighth Circuit, and remand the case for further proceedings consistent with this opinion. It is so ordered. —————— sought to avoid “unnecessary layer[s] of judicial review in lower federal courts, and encourag[e] more consistent judicial decisions.” United (internal quotation marks and some bracketing omitted). But in this case, the Government’s argument about the necessity of Federal Circuit review runs into an inconvenient fact: When Congress passed the CSRA, the Federal Circuit did not exist, and thus provided, as the general rule, that a federal employee should appeal a Board decision to 1 of the 12 Courts of Appeals or the Court of Claims. See Civil Service Reform Act of 1978, Moreover, the Government’s own approach would leave many cases involving federal employment issues in district court. If the MSPB rejects on the merits a complaint alleging that an agency violated the CSRA as well as an antidiscrimination law, the suit will come to district court for a decision on both questions. See Wil- (en banc). In any event, even the most formidable argument concerning the statute’s purposes could not overcome the clarity we find in the statute’s text
Justice Stewart	majority	false	Washington v. Confederated Bands and Tribes of Yakima Nation	1979-02-26T00:00:00	null	https://www.courtlistener.com/opinion/109972/washington-v-confederated-bands-and-tribes-of-yakima-nation/	https://www.courtlistener.com/api/rest/v3/clusters/109972/	1,979	1978-030	1	7	2	In this case we are called upon to resolve a dispute between the State of Washington and the Yakima Indian Nation over the validity of the State's exercise of jurisdiction on the Yakima Reservation. In 1963 the Washington Legislature obligated the State to assume civil and criminal jurisdiction over Indians and Indian territory within the State, subject only to the condition that in all but eight subject-matter areas jurisdiction would not extend to Indians on trust or restricted lands without the request of the Indian tribe affected. Ch. 36, 1963 Wash. Laws.[1] The Yakima Nation 466 did not make such a request. State authority over Indians within the Yakima Reservation was thus made by Chapter 36 to depend on the title status of the property on which the offense or transaction occurred and upon the nature of the subject matter. The Yakima Nation brought this action in a Federal District Court challenging the statutory and constitutional validity of the State's partial assertion of jurisdiction on its Reservation. The Tribe contended that the federal statute upon which the State based its authority to assume jurisdiction over the Reservation, Pub. L. 280,[2] imposed certain procedural requirements, with which the State had not compliedmost notably, a requirement that Washington first amend its own constitutionand that in any event Pub. L. 280 did not 467 authorize the State to assert only partial jurisdiction within an Indian reservation. Finally, the Tribe contended that Chapter 36, even if authorized by Congress, violated the equal protection and due process guarantees of the Fourteenth Amendment. The District Court rejected both the statutory and constitutional claims and entered judgment for the State.[3] On appeal, the contention that Washington's assumption of only partial jurisdiction was not authorized by Congress was rejected by the Court of Appeals for the Ninth Circuit, sitting en banc. The en banc court then referred the case to the original panel for consideration of the remaining issues. Confederated Bands and Tribes of the Yakima Indian Nation v. Washington, 550 F.2d 443 (Yakima I).[4] The three-judge 468 panel, confining itself to consideration of the constitutional validity of Chapter 36, concluded that the "checkerboard" jurisdictional system it produced was without any rational foundation and therefore violative of the Equal Protection Clause of the Fourteenth Amendment. Finding no basis upon which to sever the offending portion of the legislation, the appellate court declared Chapter 36 unconstitutional in its entirety, and reversed the judgment of the District Court. Confederated Bands and Tribes of the Yakima Indian Nation v. Washington, 552 F.2d 1332 (Yakima II). The State then brought an appeal to this Court. In noting probable jurisdiction of the appeal, we requested the parties to address the issue whether the partial geographic and subject-matter jurisdiction ordained by Chapter 36 is authorized by federal law, as well as the Equal Protection Clause issue. 435 U.S. 903.[5] 469 I The Confederated Bands and Tribes of the Yakima Indian Nation comprise 14 originally distinct Indian tribes that joined together in the middle of the 19th century for purposes of their relationships with the United States. A treaty was signed with the United States in 1855, under which it was agreed that the various tribes would be considered "one nation" and that specified lands located in the Territory of Washington would be set aside for their exclusive use. The treaty was ratified by Congress in 1859. 12 Stat. 951. Since that time, the Yakima Nation has without interruption maintained its tribal identity. The Yakima Reservation is located in the southeastern part of the State of Washington and now consists of approximately 1,387,505 acres of land, of which some 80% is held in trust by the United States for the Yakima Nation or individual members of the Tribe. The remaining parcels of land are held in fee by Indian and non-Indian owners. Much of the trust acreage on the Reservation is forest. The Tribe receives the bulk of its income from timber, and over half of the Reservation is closed to permanent settlement in order to protect the forest area. The remaining lands are primarily agricultural. 470 There are three incorporated towns on the Reservation, the largest being Toppenish, with a population of under 6,000. The land held in fee is scattered throughout the Reservation, but most of it is concentrated in the northeastern portion close to the Yakima River and within the three towns of Toppenish, Wapato, and Harrah. Of the 25,000 permanent residents of the Reservation, 3,074 are members of the Yakima Nation, and tribal members live in all of the inhabited areas of the Reservation.[6] In the three townswhere over half of the non-Indian population residesmembers of the Tribe are substantially outnumbered by non-Indian residents occupying fee land. Before the enactment of the state law here in issue, the Yakima Nation was subject to the general jurisdictional principles that apply in Indian country in the absence of federal legislation to the contrary. Under those principles, which received their first and fullest expression in Worcester v. Georgia, 6 Pet. 515, 517, state law reaches within the exterior boundaries of an Indian reservation only if it would not infringe "on the right of reservation Indians to make their own laws and be ruled by them." Williams v. Lee, 358 U.S. 217, 219-220.[7] As a practical matter, this has meant that criminal offenses by or against Indians have been subject only to federal or tribal laws, Moe v. Salish & Kootenai Tribes, 425 U.S. 463, except where Congress in the exercise of its plenary and exclusive power over Indian affairs has "expressly 471 provided that State laws shall apply." McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 170-171. Public Law 280, upon which the State of Washington relied for its authority to assert jurisdiction over the Yakima Reservation under Chapter 36, was enacted by Congress in 1953 in part to deal with the "problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institutions for law enforcement." Bryan v. Itasca County, 426 U.S. 373, 379; H. R. Rep. No. 848, 83d Cong., 1st Sess., 5-6 (1953). The basic terms of Pub. L. 280, which was the first federal jurisdictional statute of general applicability to Indian reservation lands,[8] are well known.[9] To five States it effected 472 an immediate cession of criminal and civil jurisdiction over Indian country, with an express exception for the reservations of three tribes. Pub. L. 280, §§ 2 and 4.[10] To the remaining 473 States it gave an option to assume jurisdiction over criminal offenses and civil causes of action in Indian country without consulting with or securing the consent of the tribes that 474 would be affected. States whose constitutions or statutes contained organic law disclaimers of jurisdiction over Indian country were dealt with in § 6.[11] The people of those States were given permission to amend "where necessary" their state constitutions or existing statutes to remove any legal impediment to the assumption of jurisdiction under the Act. All others were covered in § 7.[12] The Washington Constitution contains a disclaimer of authority over Indian country,[13] and the State is, therefore, one of those covered by § 6 of Pub. L. 280. The State did not take any action under the purported authority of Pub. L. 280 until 1957. In that year its legislature enacted a statute which obligated the State to assume criminal and civil jurisdiction over any Indian reservation within the State at the request of the tribe affected.[14] Under this legislation state jurisdiction was requested by and extended to several Indian tribes within the State.[15] 475 In one of the first prosecutions brought under the 1957 jurisdictional scheme, an Indian defendant whose tribe had consented to the extension of jurisdiction challenged its validity on the ground that the disclaimer clause in the state constitution had not been amended in the manner allegedly required by § 6 of Pub. L. 280. State v. Paul, 53 Wash. 2d 789, 337 P.2d 33. The Washington Supreme Court rejected the argument, construing the state constitutional provision to mean that the barrier posed by the disclaimer could be lifted by the state legislature.[16] In 1963, Washington enacted Chapter 36, the law at issue in this litigation.[17] The most significant feature of the new statute was its provision for the extension of at least some jurisdiction over all Indian lands within the State, whether or not the affected tribe gave its consent. Full criminal and civil jurisdiction to the extent permitted by Pub. L. 280 was extended to all fee lands in every Indian reservation and to trust and allotted lands therein when non-Indians were involved. Except for eight categories of law, however, state jurisdiction was not extended to Indians on allotted and trust lands unless the affected tribe so requested. The eight jurisdictional categories of state law that were thus extended to all parts of every Indian reservation were in the areas of compulsory school attendance, public assistance, domestic relations, 476 mental illness, juvenile delinquency, adoption proceedings, dependent children, and motor vehicles.[18] The Yakima Indian Nation did not request the full measure of jurisdiction made possible by Chapter 36, and the Yakima Reservation thus became subject to the system of jurisdiction outlined at the outset of this opinion.[19] This litigation followed. II The Yakima Nation relies on three separate and independent grounds in asserting that Chapter 36 is invalid. First, it argues that under the terms of Pub. L. 280 Washington was not authorized to enact Chapter 36 until the state constitution had been amended by "the people" so as to eliminate its Art. XXVI which disclaimed state authority over Indian lands.[20]477 Second, it contends that Pub. L. 280 does not authorize a State to extend only partial jurisdiction over an Indian reservation. Finally, it asserts that Chapter 36, even if authorized 478 by Pub. L. 280, violates the Fourteenth Amendment of the Constitution. We turn now to consideration of each of these arguments. III We first address the contention that Washington was required to amend its constitution before it could validly legislate under the authority of Pub. L. 280. If the Tribe is correct, we need not consider the statutory and constitutional questions raised by the system of partial jurisdiction established in Chapter 36. The Tribe, supported by the United States as amicus curiae,[21] argues that a requirement for popular amendatory action is to be found in the express terms of § 6 of Pub. L. 280 or, if not there, in the terms of the Enabling Act that admitted Washington to the Union.[22] The 479 argument can best be understood in the context of the specific statutory provisions involved. A The Enabling Act under which Washington, along with the States of Montana, North Dakota, and South Dakota, gained entry into the Union, was passed in 1889.[23] Section 4 of that 480 Act required the constitutional conventions of the prospective new States to enact provisions by which the people disclaimed title to lands owned by Indians or Indian tribes and acknowledged that those lands were to remain "under the absolute jurisdiction and control of" Congress until the Indian or United States title had been extinguished. The disclaimers were to be made "by ordinances irrevocable without the consent of the United States and the people of said States." Washington's constitutional convention enacted the disclaimer of authority over Indian lands as part of Art. XXVI of the state constitution.[24] That Article, captioned "Compact with 481 the United States," is prefaced with the statementprecisely tracking the language of the admitting statutethat "the following ordinance shall be irrevocable without the consent of the United States and the people of [the State of Washington]." Its substantive terms mirror the language used in the enabling legislation. We have already noted that two distinct provisions of Pub. L. 280 are potentially applicable to States not granted an immediate cession of jurisdiction. The first, § 6, without question applies to Washington and the seven other States admitted into the Union under enabling legislation requiring organic law disclaimers similar to that just described. This much is clear from the legislative history of Pub. L. 280,[25] as well as from the express language of § 6. That section provides "Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act: Provided, That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be." All other States were covered by § 7. In that section Congress gave the consent of the United States "to any other State . . . to assume jurisdiction at such 482 time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof." These provisions appear to establish different modes of procedure by which an option State, depending on which section applies to it, is to accept the Pub. L. 280 jurisdictional offer. The procedure specified in § 7 is straightforward: affirmative legislative action by which the State obligates and binds itself to assume jurisdiction. Section 6, in contrast, is delphic. The only procedure mentioned is action by the people "to amend . . . their State constitutions or existing statutes, as the case may be" to remove any legal impediments to the assumption of jurisdiction. The phrase "where necessary" in the main clause suggests that a requirement for popular as opposed to legislativeaction must be found if at all in some source of law independent of Pub. L. 280. The proviso, however, has a different import. B The proper construction to be given to the single inartful sentence in § 6 has provoked chapters of argument from the parties. The Tribe and the United States urge that notwithstanding the phrase "where necessary," § 6 should be construed to mandate constitutional amendment by disclaimer States. It is their position that § 6 operates not only to grant the consent of the United States to state action inconsistent with the terms of the enabling legislation but also to establish a distinct procedure to be followed by Enabling Act States. To support their position, they rely on the language of the proviso and upon certain legislative history of § 6.[26] In the alternative, the Tribe and the United States argue that popular amendatory action, if not compelled by the terms of § 6, is mandated by the terms of the Enabling Act of 483 Feb. 22, 1889, ch. 180, § 4. Although they acknowledge that Congress in § 6 did grant the "consent of the United States" required under the Enabling Act before the State could remove the disclaimer, they contend that § 6 did not eliminate the need for the "consent of the people" specified in the Enabling Act. In their view, the 1889 Actif not Pub. L. 280dictates that constitutional amendment is the only valid procedure by which that consent can be given. The State draws an entirely different message from § 6. It contends that the section must be construed in light of the overall congressional purpose to facilitate a transfer of jurisdiction to those option States willing to accept the responsibility. Section 6 was designed, it says, not to establish but to remove legal barriers to state action under the authority of Pub. L. 280. The phrase "where necessary" in its view is consistent with this purpose. It would construe the word "appropriately" in the proviso to be synonymous with "where necessary" and the entire section to mean that constitutional amendment is required only if "necessary" as a matter of state law. The Washington Supreme Court having found that legislative action is sufficient to grant the "consent of the people" to removal of the disclaimer in Art. XXVI of the state constitution,[27] the State argues that the procedural 484 requirements of § 6 have been fully satisfied. It finds the Enabling Act irrelevant since in its view § 6 effectively repealed any federal-law impediments in that Act to state assertion of jurisdiction under Pub. L. 280.[28] C From our review of the statutory, legislative, and historical materials cited by the parties, we are persuaded that Washington's assumption of jurisdiction by legislative action fully complies with the requirements of § 6. Although we adhere to the principle that the procedural requirements of Pub. L. 280 must be strictly followed, Kennerly v. District Court of Montana, 400 U.S. 423, 427; McClanahan v. Arizona State Tax Comm'n, 411 U. S., at 180, and to the general rule that ambiguities in legislation affecting retained tribal sovereignty are to be construed in favor of the Indians, see, e. g., Bryan v. Itasca County, 426 U. S., at 392, those principles will not stretch so far as to permit us to find a federal requirement affecting the manner in which the States are to modify their organic legislation on the basis of materials that are essentially speculative. Cf. Board of County Comm'rs v. United States, 308 U.S. 343, 350-351. The language of § 6, its legislative 485 history, and its role in Pub. L. 280 all clearly point the other way. We turn first to the language of § 6. The main clause is framed in permissive, not mandatory, terms. Had the drafters intended by that clause to require popular amendatory action, it is unlikely that they would have included the words "where necessary." As written, the clause suggests that the substantive requirement for constitutional amendment must be found in some source of law independent of § 6. The basic question, then, is whether that requirement can be found in the language of the proviso to § 6 or alternatively in the terms of the Enabling Act. We are unable to find the procedural mandate missing from the main clause of § 6 in the language of the proviso. That language in the abstract could be read to suggest that constitutional amendment is a condition precedent to a valid assumption of jurisdiction by disclaimer States. When examined in its context, however, it cannot fairly be read to impose such a condition. Two considerations prevent this reading. First, it is doubtful that Congressin order to compel disclaimer States to amend their constitutions by popular vote would have done so in a provision the first clause of which consents to that procedure "where necessary" and the proviso to which indicates that the procedure is to be followed if "appropriate." Second, the reference to popular amendatory action in the proviso is not framed as a description of the procedure the States must follow to assume jurisdiction, but instead is written as a condition to the effectiveness of "the provisions of" Pub. L. 280. When it is recalled that the only substantive provisions of the Actother than those arguably to be found in § 7accomplish an immediate transfer of jurisdiction to specifically named States, it seems most likely that the proviso was included to ensure that § 6 would not be construed to effect an immediate transfer to the disclaimer group of option States. The main clause removes a federal-law barrier 486 to any new state jurisdiction over Indian country. The proviso suggests that disclaimer States are not automatically to receive jurisdiction by virtue of that removal. Without the proviso, in the event that state constitutional amendment were not found "necessary,"[29] § 6 could be construed as effecting an immediate cession. Congress clearly wanted all the option States to "obligate and bind" themselves to assume the jurisdiction offered in Pub. L. 280.[30] To 487 be sure, constitutional amendment was referred to as the process by which this might be accomplished in disclaimer States. But, given the distinction that Congress clearly drew between those States and automatic-transfer States, this reference can hardly be construed to require that process. Before turning to the legislative history, which, as we shall see, accords with this interpretation of § 6, we address the argument that popular amendatory action, if not a requirement of Pub. L. 280, is mandated by the legislation admitting Washington to the Union. This argument requires that two assumptions be made. The first is that § 6 eliminated some but preserved other Enabling Act barriers to a State's assertion of jurisdiction over Indian country. The second is that the phrase "where necessary" in the main clause of § 6 was intended to refer to those federal-law barriers that had been preserved. Only if each of these premises is accepted does the Enabling Act have any possible application. Since we find the first premise impossible to accept, we proceed no further. Admitting legislation is, to be sure, the only source of law mentioned in the main clause of § 6 and might therefore be looked to as a referent for the phrase "where necessary" in the clause. This reading, however, is not tenable. It supplies no satisfactory answer to the question why Congressin order to give the consent of the United States to the removal of state organic law disclaimerswould not also have by necessary implication consented to the removal of any procedural constraints on the States imposed by the Enabling Acts. The phrase "[n]otwithstanding the provisions of any Enabling Act" in § 6 is broadbroad enough to suggest that Congress when it referred to a possible necessity for state constitutional amendment did not intend thereby to perpetuate any such requirement in an Enabling Act. Even assuming that the phrase "consent of the people" in the Enabling Act must be construed to preclude consent by legislative actionand the Tribe and the United States have offered 488 no concrete authority to support this restrictive reading of the phrase[31] we think it obvious that in the "notwithstanding" clause of § 6 Congress meant to remove any federal impediments to state jurisdiction that may have been created by an Enabling Act. The legislative history of Pub. L. 280 supports the conclusion that § 6 did not of its own force establish a state constitutional amendment requirement and did not preserve any such requirement that might be found in an Enabling Act. Public Law 280 was the first jurisdictional bill of general applicability ever to be enacted by Congress. It reflected congressional concern over the law-and-order problems on Indian reservations and the financial burdens of continued federal jurisdictional responsibilities on Indian lands, Bryan v. Itasca County, 426 U.S. 373. It was also, however, without question reflective of the general assimilationist policy followed by Congress from the early 1950's through the late 1960's.[32]489 See H. R. Rep. No. 848, 83d Cong., 1st Sess. (1953). See also Hearings on H. R. 459, H. R. 3235, and H. R. 3624 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 82d Cong., 2d Sess. (1952) (hereinafter 1952 Hearings). The failure of Congress to write a tribal-consent provision into the transfer provision applicable to option States as well as its failure to consult with the tribes during the final deliberations on Pub. L. 280 provide ample evidence of this.[33] 490 Indeed, the circumstances surrounding the passage of Pub. L. 280 in themselves fully bear out the State's general thesis that Pub. L. 280 was intended to facilitate, not to impede, the transfer of jurisdictional responsibility to the States. Public Law 280 originated in a series of individual bills introduced in the 83d Congress to transfer jurisdiction to the five willing States which eventually were covered in §§ 2 and 4.[34] H. R. Rep. No. 848, supra. Those bills were consolidated into H. R. 1063, which was referred to the House Committee on Interior and Insular Affairs for consideration. Closed hearings on the bills were held before the Subcommittee on Indian Affairs on June 29 and before the Committee on July 15, 1953.[35] During the opening session on June 29, 491 Committee Members, counsel, and representatives of the Department of the Interior discussed various proposals designed to give H. R. 1063 general applicability. June 29 Hearings 1-22. It rapidly became clear that the Members favored a general bill. Ibid. At this point, Committee counsel noted that several States "have constitutional prohibitions against jurisdiction." Id., at 23. There followed some discussion of the manner in which these States should be treated. On July 15, a version of § 6 was proposed. July 15 Hearings 6. After further discussion of the disclaimer problem, the "notwithstanding" clause was added, id., at 9, and the language eventually enacted as § 6 was approved by the Committee that day. The speed and the context alone suggest that § 6 was designed to remove an obstacle to state jurisdiction, not to create one. And the discussion at the hearings, which in essence were markup sessions, makes this clear.[36] 492 While some Committee Members apparently thought that § 6 States, as a matter of state law, would have to amend their constitutions in order to remove the disclaimers found there,[37]493 there is no indication that the Committee intended to impose any such requirement.[38] We conclude that § 6 of Pub. L. 280 does not require disclaimer States to amend their constitutions to make an effective acceptance of jurisdiction. We also conclude that any Enabling Act requirement of this nature was effectively repealed by § 6. If as a matter of state law a constitutional amendment is required, that procedure mustas a matter of state lawbe followed. And if under state law a constitutional amendment is not required, disclaimer States must still take positive action before Pub. L. 280 jurisdiction can become effective. The Washington Supreme Court having determined that for purposes of the repeal of Art. XXVI of the Washington Constitution legislative action is sufficient,[39] and appropriate state legislation having been enacted, it follows that the State of Washington has satisfied the procedural requirements of § 6. IV We turn to the question whether the State was authorized under Pub. L. 280 to assume only partial subject-matter and geographic jurisdiction over Indian reservations within the State.[40] 494 The argument that Pub. L. 280 does not permit this scheme of partial jurisdiction relies primarily upon the text of the federal law. The main contention of the Tribe and the United States is that partial jurisdiction, because not specifically authorized, must therefore be forbidden. In addition, they assert that the interplay between the provisions of Pub. L. 280 demonstrates that § 6 States are required, if they assume any jurisdiction, to assume as much jurisdiction as was transferred to the mandatory States.[41] Pointing out that 18 U.S. C. § 1151 defines Indian country for purposes of federal jurisdiction as including an entire reservation notwithstanding "the issuance of any patent," they reason that when Congress in § 2 transferred to the mandatory States "criminal jurisdiction" over "offenses committed by or against Indians in the Indian country," it meant that all parts of Indian country were to be covered. Similarly, they emphasize that civil jurisdiction of comparable scope was transferred to the mandatory 495 States. They stress that in both §§ 2 and 4, the consequence of state assumption of jurisdiction is that the state "criminal laws" and "civil laws of . . . general application" are henceforth to "have the same force and effect within . . . Indian country as they have elsewhere within the State." Finally, the Tribe and the United States contend that the congressional purposes of eliminating the jurisdictional hiatus thought to exist on Indian reservations, of reducing the cost of the federal responsibility for jurisdiction on tribal lands, and of assimilating the Indian tribes into the general state population are disserved by the type of checkerboard arrangement permitted by Chapter 36. We agree, however, with the State of Washington that statutory authorization for the state jurisdictional arrangement is to be found in the very words of § 7. That provision permits option States to assume jurisdiction "in such manner" as the people of the State shall "by affirmative legislative action, obligate and bind the State to assumption thereof." Once the requirements of § 6 have been satisfied, the terms of § 7 appear to govern the scope of jurisdiction conferred upon disclaimer States. The phrase "in such manner" in § 7 means at least that any option State can condition the assumption of full jurisdiction on the consent of an affected tribe. And here Washington has done no more than refrain from exercising the full measure of allowable jurisdiction without consent of the tribe affected. Section 6, as we have seen, was placed in the Act to eliminate possible organic law barriers to the assumption of jurisdiction by disclaimer States. The Tribe and the United States acknowledge that it is a procedural, not a substantive, section. The clause contains only one reference of relevance to the partial-jurisdiction question. This is the phrase "assumption of civil and criminal jurisdiction in accordance with the provisions of this Act." As both parties recognize, this phrase necessarily leads to other "provisions" of the Act for 496 clarification of the substantive scope of the jurisdictional grant. The first question then is which other "provisions" of the Act govern. The second is what constraints those "provisions" place on the jurisdictional arrangements made by option States. The Tribe argues as an initial matter that § 7 is not one of the "provisions" referred to by § 6. It relies in part upon the contrast between the phrase "assumption of civil and criminal jurisdiction" in § 6 and the disjunctive phrase "criminal offenses or civil causes of action" in § 7. From this distinction between the "civil and criminal jurisdiction" language of § 6 and the optional language in § 7, we are asked to conclude that § 6 States must assume full jurisdiction in accord with the terms applicable to the mandatory States even though § 7 States are permitted more discretion. We are unable to accept this argument, not only because the statutory language does not fairly support it, but also because the legislative history is wholly to the contrary. It is clear from the Committee hearings that the States covered by § 6 were, except for the possible impediments contained in their organic laws, to be treated on precisely the same terms as option States.[42] Section 6, as we have seen, was essentially an afterthought designed to accomplish the limited purpose of removing any barrier to jurisdiction posed by state organic law disclaimers of jurisdiction over Indians. All option States were originally treated under the aegis of § 7.[43] The record of the Committee hearings makes clear that the sole purpose of § 6 was to resolve the disclaimer problem.[44] Indeed, to the extent that the Tribe and the United States suggest that disclaimer States stand on a different footing from all other option States, their argument makes no sense. It would ascribe to Congress an 497 intent to require States that by force of organic law barriers may have had only a limited involvement with Indian country to establish the most intrusive presence possible on Indian reservations, if any at all, and at the same time an intent to allow States with different traditions to exercise more restraint in extending the coverage of their law. The Tribe and the United States urge that even if, as we have concluded, all option States are ultimately governed by § 7, the reference in that section to assumption of jurisdiction "as provided for in [the] Act" should be construed to mean that the automatic-transfer provisions of §§ 2 and 4 must still apply. The argument would require a conclusion that the option States stand on the same footing as the mandatory States. This view is not persuasive. The mandatory States were consulted prior to the introduction of the single-state bills that were eventually to become Pub. L. 280. All had indicated their willingness to accept whatever jurisdiction Congress was prepared to transfer. This, however, was not the case with the option States. Few of those States had been consulted, and from the June 29 and July 15 hearings it is apparent that the drafters were primarily concerned with establishing a general transfer scheme that would facilitate, not impede, future action by other States willing to accept jurisdiction. It is clear that the all-or-nothing approach suggested by the Tribe would impede even the most responsible and sensitive jurisdictional arrangements designed by the States. To find that under Pub. L. 280 a State could not exercise partial jurisdiction, even if it were willing to extend full jurisdiction at tribal request, would be quite inconsistent with this basic history. The language of § 7, which we have found applicable here, provides, we believe, surer guidance to the issue before us.[45]498 The critical language in § 7 is the phrase permitting the assumption of jurisdiction "at such time and in such manner as the people of the State shall . . . obligate and bind the State to assumption thereof." Whether or not "in such manner" is fully synonymous with "to such extent," the phrase is at least broad enough to authorize a State to condition the extension of full jurisdiction over an Indian reservation on the consent of the tribe affected. The United States argues that a construction of Pub. L. 280 which permits selective extension of state jurisdiction allows a State to "pick and choose" only those subject-matter areas and geographical parts of reservations over which it would like to assume responsibility. Congress, we are told, passed Pub. L. 280 not as a measure to benefit the States, but to reduce the economic burdens associated with federal jurisdiction on reservations, to respond to a perceived hiatus in law enforcement protections available to tribal Indians, and to achieve an orderly assimilation of Indians into the general population. That these were the major concerns underlying the passage of Pub. L. 280 cannot be doubted. See Bryan v. Itasca County, 426 U. S., at 379. But Chapter 36 does not reflect an attempt to reap the benefits and to avoid the burdens of the jurisdictional offer made by Congress. To the contrary, the State must assume total jurisdiction whenever a tribal request is made that it do so. Moreover, the partial geographic and subject-matter jurisdiction that exists in the absence of tribal consent is responsive to the law enforcement concerns that underlay the adoption of Pub. L. 280. State jurisdiction is complete as to all non-Indians on reservations and is also complete as to Indians on nontrust lands. The law enforcement hiatus that preoccupied the 83d Congress has to that extent been eliminated. On trust and restricted lands within the reservations 499 whose tribes have not requested the coverage of state law, jurisdiction over crimes by Indians is, as it was when Pub. L. 280 was enacted, shared by the tribal and Federal Governments. To the extent that this shared federal and tribal responsibility is inadequate to preserve law and order, the tribes need only request and they will receive the protection of state law. The State of Washington in 1963 could have unilaterally extended full jurisdiction over crimes and civil causes of action in the entire Yakima Reservation without violating the terms of Pub. L. 280. We are unable to conclude that the State, in asserting a less intrusive presence on the Reservation while at the same time obligating itself to assume full jurisdictional responsibility upon request, somehow flouted the will of Congress. A State that has accepted the jurisdictional offer in Pub. L. 280 in a way that leaves substantial play for tribal self-government, under a voluntary system of partial jurisdiction that reflects a responsible attempt to accommodate the needs of both Indians and non-Indians within a reservation, has plainly taken action within the terms of the offer made by Congress to the States in 1953. For Congress surely did not deny an option State the power to condition its offer of full jurisdiction on tribal consent. V Having concluded that Chapter 36 violates neither the procedural nor the substantive terms of Pub. L. 280, we turn, finally, to the question whether the "checkerboard" pattern of jurisdiction applicable on the reservations of nonconsenting tribes is on its face invalid under the Equal Protection Clause of the Fourteenth Amendment.[46] The Court of Appeals 500 for the Ninth Circuit concluded that it is, reasoning that the land-title classification is too bizarre to meet "any formulation of the rational basis test." 552 F.2d, at 1335. The Tribe advances several different lines of argument in defense of this ruling. First, it argues that the classifications implicit in Chapter 36 are racial classifications, "suspect" under the test enunciated in McLaughlin v. Florida, 379 U.S. 184, and that they cannot stand unless justified by a compelling state interest. Second, it argues that its interest in self-government is a fundamental right, and that Chapter 36as a law abridging this rightis presumptively invalid. Finally, the Tribe argues that Chapter 36 is invalid even if reviewed under the more traditional equal protection criteria articulated in such cases as Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307.[47] We agree with the Court of Appeals to the extent that its opinion rejects the first two of these arguments and reflects a judgment that Chapter 36 must be sustained against an Equal Protection Clause attack if the classifications it employs "rationally furthe[r] the purpose identified by the State." Massachusetts Bd. of Retirement v. Murgia, supra, at 314. It is settled that "the unique legal status of Indian tribes under 501 federal law" permits the Federal Government to enact legislation singling out tribal Indians, legislation that might otherwise be constitutionally offensive. Morton v. Mancari, 417 U.S. 535, 551-552. States do not enjoy this same unique relationship with Indians, but Chapter 36 is not simply another state law. It was enacted in response to a federal measure explicitly designed to readjust the allocation of jurisdiction over Indians. The jurisdiction permitted under Chapter 36 is, as we have found, within the scope of the authorization of Pub. L. 280. And many of the classifications made by Chapter 36 are also made by Pub. L. 280. Indeed, classifications based on tribal status and land tenure inhere in many of the decisions of this Court involving jurisdictional controversies between tribal Indians and the States, see, e. g., United States v. McBratney, 104 U.S. 621. For these reasons, we find the argument that such classifications are "suspect" an untenable one. The contention that Chapter 36 abridges a "fundamental right" is also untenable. It is well established that Congress, in the exercise of its plenary power over Indian affairs, may restrict the retained sovereign powers of the Indian tribes. See, e. g., United States v. Wheeler, 435 U.S. 313. In enacting Chapter 36, Washington was legislating under explicit authority granted by Congress in the exercise of that federal power.[48] The question that remains, then, is whether the lines drawn by Chapter 36 fail to meet conventional Equal Protection Clause criteria, as the Court of Appeals held. Under those criteria, legislative classifications are valid unless they bear no rational relationship to the State's objectives. Massachusetts Bd. of Retirement v. Murgia, supra, at 314. State legislation "does not violate the Equal Protection Clause merely because the classifications [it makes] are imperfect." *502 Dandridge v. Williams, 397 U.S. 471, 485. Under these standards we have no difficulty in concluding that Chapter 36 does not offend the Equal Protection Clause. The lines the State has drawn may well be difficult to administer. But they are no more or less so than many of the classifications that pervade the law of Indian jurisdiction. See Seymour v. Superintendent, 368 U.S. 351; Moe v. Salish & Kootenai Tribes, 425 U.S. 463. Chapter 36 is fairly calculated to further the State's interest in providing protection to non-Indian citizens living within the boundaries of a reservation while at the same time allowing scope for tribal self-government on trust or restricted lands. The land-tenure classification made by the State is neither an irrational nor arbitrary means of identifying those areas within a reservation in which tribal members have the greatest interest in being free of state police power. Indeed, many of the rules developed in this Court's decisions in cases accommodating the sovereign rights of the tribes with those of the States are strikingly similar. See, e. g., United States v. McBratney, supra; Draper v. United States, 164 U.S. 240; Williams v. Lee, 358 U.S. 217; McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164. In short, checkerboard jurisdiction is not novel in Indian law, and does not, as such, violate the Constitution. For the reasons set out in this opinion, the judgment of the Court of Appeals is reversed. It is so ordered. MR. JUSTICE MARSHALL, with whom MR.	I this case we are called upo to resolve a dispute betwee the State of Washigto ad the Yakima Idia Natio over the validity of the State's exercise of jurisdictio o the Yakima Reservatio. I 1963 the Washigto Legislature obligated the State to assume civil ad crimial jurisdictio over Idias ad Idia territory withi the State, subject oly to the coditio that i all but eight subject-matter areas jurisdictio would ot exted to Idias o trust or restricted lads without the request of the Idia tribe affected. Ch. 36, 1963 Wash. Laws.[1] The Yakima Natio 466 did ot make such a request. State authority over Idias withi the Yakima Reservatio was thus made by Chapter 36 to deped o the title status of the property o which the offese or trasactio occurred ad upo the ature of the subject matter. The Yakima Natio brought this actio i a Federal District Court challegig the statutory ad costitutioal validity of the State's partial assertio of jurisdictio o its Reservatio. The Tribe coteded that the federal statute upo which the State based its authority to assume jurisdictio over the Reservatio, Pub. L. 280,[2] imposed certai procedural requiremets, with which the State had ot compliedmost otably, a requiremet that Washigto first amed its ow costitutioad that i ay evet Pub. L. 280 did ot 467 authorize the State to assert oly partial jurisdictio withi a Idia reservatio. Fially, the Tribe coteded that Chapter 36, eve if authorized by Cogress, violated the equal protectio ad due process guaratees of the Fourteeth Amedmet. The District Court rejected both the statutory ad costitutioal claims ad etered judgmet for the State.[3] O appeal, the cotetio that Washigto's assumptio of oly partial jurisdictio was ot authorized by Cogress was rejected by the Court of Appeals for the Nith Circuit, sittig e bac. The e bac court the referred the case to the origial pael for cosideratio of the remaiig issues. Cofederated Bads ad Tribes of the Yakima Idia (Yakima I).[4] The three-judge 468 pael, cofiig itself to cosideratio of the costitutioal validity of Chapter 36, cocluded that the "checkerboard" jurisdictioal system it produced was without ay ratioal foudatio ad therefore violative of the Equal Protectio Clause of the Fourteeth Amedmet. Fidig o basis upo which to sever the offedig portio of the legislatio, the appellate court declared Chapter 36 ucostitutioal i its etirety, ad reversed the judgmet of the District Court. Cofederated Bads ad Tribes of the Yakima Idia (Yakima II). The State the brought a appeal to this Court. I otig probable jurisdictio of the appeal, we requested the parties to address the issue whether the partial geographic ad subject-matter jurisdictio ordaied by Chapter 36 is authorized by federal law, as well as the Equal Protectio Clause issue.[5] 469 I The Cofederated Bads ad Tribes of the Yakima Idia Natio comprise 14 origially distict Idia tribes that joied together i the middle of the 19th cetury for purposes of their relatioships with the Uited States. A treaty was siged with the Uited States i 1855, uder which it was agreed that the various tribes would be cosidered "oe atio" ad that specified lads located i the Territory of Washigto would be set aside for their exclusive use. The treaty was ratified by Cogress i 1859. Sice that time, the Yakima Natio has without iterruptio maitaied its tribal idetity. The Yakima Reservatio is located i the southeaster part of the State of Washigto ad ow cosists of approximately 1,387,505 acres of lad, of which some 80% is held i trust by the Uited States for the Yakima Natio or idividual members of the Tribe. The remaiig parcels of lad are held i fee by Idia ad o-Idia owers. Much of the trust acreage o the Reservatio is forest. The Tribe receives the bulk of its icome from timber, ad over half of the Reservatio is closed to permaet settlemet i order to protect the forest area. The remaiig lads are primarily agricultural. 470 There are three icorporated tows o the Reservatio, the largest beig Toppeish, with a populatio of uder 6,000. The lad held i fee is scattered throughout the Reservatio, but most of it is cocetrated i the ortheaster portio close to the Yakima River ad withi the three tows of Toppeish, Wapato, ad Harrah. Of the 25,000 permaet residets of the Reservatio, 3,074 are members of the Yakima Natio, ad tribal members live i all of the ihabited areas of the Reservatio.[6] I the three towswhere over half of the o-Idia populatio residesmembers of the Tribe are substatially outumbered by o-Idia residets occupyig fee lad. Before the eactmet of the state law here i issue, the Yakima Natio was subject to the geeral jurisdictioal priciples that apply i Idia coutry i the absece of federal legislatio to the cotrary. Uder those priciples, which received their first ad fullest expressio i state law reaches withi the exterior boudaries of a Idia reservatio oly if it would ot ifrige "o the right of reservatio Idias to make their ow laws ad be ruled by them."[7] As a practical matter, this has meat that crimial offeses by or agaist Idias have bee subject oly to federal or tribal laws, except where Cogress i the exercise of its pleary ad exclusive power over Idia affairs has "expressly 471 provided that State laws shall apply." Public Law 280, upo which the State of Washigto relied for its authority to assert jurisdictio over the Yakima Reservatio uder Chapter 36, was eacted by Cogress i 1953 i part to deal with the "problem of lawlessess o certai Idia reservatios, ad the absece of adequate tribal istitutios for law eforcemet." The basic terms of Pub. L. 280, which was the first federal jurisdictioal statute of geeral applicability to Idia reservatio lads,[8] are well kow.[9] To five States it effected 472 a immediate cessio of crimial ad civil jurisdictio over Idia coutry, with a express exceptio for the reservatios of three tribes. Pub. L. 280, 2 ad 4.[10] To the remaiig 473 States it gave a optio to assume jurisdictio over crimial offeses ad civil causes of actio i Idia coutry without cosultig with or securig the coset of the tribes that 474 would be affected. States whose costitutios or statutes cotaied orgaic law disclaimers of jurisdictio over Idia coutry were dealt with i 6.[11] The people of those States were give permissio to amed "where ecessary" their state costitutios or existig statutes to remove ay legal impedimet to the assumptio of jurisdictio uder the Act. All others were covered i 7.[12] The Washigto Costitutio cotais a disclaimer of authority over Idia coutry,[13] ad the State is, therefore, oe of those covered by 6 of Pub. L. 280. The State did ot take ay actio uder the purported authority of Pub. L. 280 util 1957. I that year its legislature eacted a statute which obligated the State to assume crimial ad civil jurisdictio over ay Idia reservatio withi the State at the request of the tribe affected.[14] Uder this legislatio state jurisdictio was requested by ad exteded to several Idia tribes withi the State.[15] 475 I oe of the first prosecutios brought uder the 1957 jurisdictioal scheme, a Idia defedat whose tribe had coseted to the extesio of jurisdictio challeged its validity o the groud that the disclaimer clause i the state costitutio had ot bee ameded i the maer allegedly required by 6 of Pub. L. 280. The Washigto Supreme Court rejected the argumet, costruig the state costitutioal provisio to mea that the barrier posed by the disclaimer could be lifted by the state legislature.[16] I 1963, Washigto eacted Chapter 36, the law at issue i this litigatio.[17] The most sigificat feature of the ew statute was its provisio for the extesio of at least some jurisdictio over all Idia lads withi the State, whether or ot the affected tribe gave its coset. Full crimial ad civil jurisdictio to the extet permitted by Pub. L. 280 was exteded to all fee lads i every Idia reservatio ad to trust ad allotted lads therei whe o-Idias were ivolved. Except for eight categories of law, however, state jurisdictio was ot exteded to Idias o allotted ad trust lads uless the affected tribe so requested. The eight jurisdictioal categories of state law that were thus exteded to all parts of every Idia reservatio were i the areas of compulsory school attedace, public assistace, domestic relatios, 476 metal illess, juveile deliquecy, adoptio proceedigs, depedet childre, ad motor vehicles.[18] The Yakima Idia Natio did ot request the full measure of jurisdictio made possible by Chapter 36, ad the Yakima Reservatio thus became subject to the system of jurisdictio outlied at the outset of this opiio.[19] This litigatio followed. II The Yakima Natio relies o three separate ad idepedet grouds i assertig that Chapter 36 is ivalid. First, it argues that uder the terms of Pub. L. 280 Washigto was ot authorized to eact Chapter 36 util the state costitutio had bee ameded by "the people" so as to elimiate its Art. XXVI which disclaimed state authority over Idia lads.[20]477 Secod, it coteds that Pub. L. 280 does ot authorize a State to exted oly partial jurisdictio over a Idia reservatio. Fially, it asserts that Chapter 36, eve if authorized 478 by Pub. L. 280, violates the Fourteeth Amedmet of the Costitutio. We tur ow to cosideratio of each of these argumets. III We first address the cotetio that Washigto was required to amed its costitutio before it could validly legislate uder the authority of Pub. L. 280. If the Tribe is correct, we eed ot cosider the statutory ad costitutioal questios raised by the system of partial jurisdictio established i Chapter 36. The Tribe, supported by the Uited States as amicus curiae,[21] argues that a requiremet for popular amedatory actio is to be foud i the express terms of 6 of Pub. L. 280 or, if ot there, i the terms of the Eablig Act that admitted Washigto to the Uio.[22] The 479 argumet ca best be uderstood i the cotext of the specific statutory provisios ivolved. A The Eablig Act uder which Washigto, alog with the States of Motaa, North Dakota, ad South Dakota, gaied etry ito the Uio, was passed i 1889.[23] Sectio 4 of that 480 Act required the costitutioal covetios of the prospective ew States to eact provisios by which the people disclaimed title to lads owed by Idias or Idia tribes ad ackowledged that those lads were to remai "uder the absolute jurisdictio ad cotrol of" Cogress util the Idia or Uited States title had bee extiguished. The disclaimers were to be made "by ordiaces irrevocable without the coset of the Uited States ad the people of said States." Washigto's costitutioal covetio eacted the disclaimer of authority over Idia lads as part of Art. XXVI of the state costitutio.[24] That Article, captioed "Compact with 481 the Uited States," is prefaced with the statemetprecisely trackig the laguage of the admittig statutethat "the followig ordiace shall be irrevocable without the coset of the Uited States ad the people of [the State of Washigto]." Its substative terms mirror the laguage used i the eablig legislatio. We have already oted that two distict provisios of Pub. L. 280 are potetially applicable to States ot grated a immediate cessio of jurisdictio. The first, 6, without questio applies to Washigto ad the seve other States admitted ito the Uio uder eablig legislatio requirig orgaic law disclaimers similar to that just described. This much is clear from the legislative history of Pub. L. 280,[25] as well as from the express laguage of 6. That sectio provides "Notwithstadig the provisios of ay Eablig Act for the admissio of a State, the coset of the Uited States is hereby give to the people of ay State to amed, where ecessary, their State costitutio or existig statutes, as the case may be, to remove ay legal impedimet to the assumptio of civil ad crimial jurisdictio i accordace with the provisios of this Act: Provided, That the provisios of this Act shall ot become effective with respect to such assumptio of jurisdictio by ay such State util the people thereof have appropriately ameded their State costitutio or statutes as the case may be." All other States were covered by 7. I that sectio Cogress gave the coset of the Uited States "to ay other State to assume jurisdictio at such 482 time ad i such maer as the people of the State shall, by affirmative legislative actio, obligate ad bid the State to assumptio thereof." These provisios appear to establish differet modes of procedure by which a optio State, depedig o which sectio applies to it, is to accept the Pub. L. 280 jurisdictioal offer. The procedure specified i 7 is straightforward: affirmative legislative actio by which the State obligates ad bids itself to assume jurisdictio. Sectio 6, i cotrast, is delphic. The oly procedure metioed is actio by the people "to amed their State costitutios or existig statutes, as the case may be" to remove ay legal impedimets to the assumptio of jurisdictio. The phrase "where ecessary" i the mai clause suggests that a requiremet for popular as opposed to legislativeactio must be foud if at all i some source of law idepedet of Pub. L. 280. The proviso, however, has a differet import. B The proper costructio to be give to the sigle iartful setece i 6 has provoked chapters of argumet from the parties. The Tribe ad the Uited States urge that otwithstadig the phrase "where ecessary," 6 should be costrued to madate costitutioal amedmet by disclaimer States. It is their positio that 6 operates ot oly to grat the coset of the Uited States to state actio icosistet with the terms of the eablig legislatio but also to establish a distict procedure to be followed by Eablig Act States. To support their positio, they rely o the laguage of the proviso ad upo certai legislative history of 6.[26] I the alterative, the Tribe ad the Uited States argue that popular amedatory actio, if ot compelled by the terms of 6, is madated by the terms of the Eablig Act of 483 Feb. 22, 1889, ch. 180, 4. Although they ackowledge that Cogress i 6 did grat the "coset of the Uited States" required uder the Eablig Act before the State could remove the disclaimer, they coted that 6 did ot elimiate the eed for the "coset of the people" specified i the Eablig Act. I their view, the 1889 Actif ot Pub. L. 280dictates that costitutioal amedmet is the oly valid procedure by which that coset ca be give. The State draws a etirely differet message from 6. It coteds that the sectio must be costrued i light of the overall cogressioal purpose to facilitate a trasfer of jurisdictio to those optio States willig to accept the resposibility. Sectio 6 was desiged, it says, ot to establish but to remove legal barriers to state actio uder the authority of Pub. L. 280. The phrase "where ecessary" i its view is cosistet with this purpose. It would costrue the word "appropriately" i the proviso to be syoymous with "where ecessary" ad the etire sectio to mea that costitutioal amedmet is required oly if "ecessary" as a matter of state law. The Washigto Supreme Court havig foud that legislative actio is sufficiet to grat the "coset of the people" to removal of the disclaimer i Art. XXVI of the state costitutio,[27] the State argues that the procedural 484 requiremets of 6 have bee fully satisfied. It fids the Eablig Act irrelevat sice i its view 6 effectively repealed ay federal-law impedimets i that Act to state assertio of jurisdictio uder Pub. L. 280.[28] C From our review of the statutory, legislative, ad historical materials cited by the parties, we are persuaded that Washigto's assumptio of jurisdictio by legislative actio fully complies with the requiremets of 6. Although we adhere to the priciple that the procedural requiremets of Pub. L. 280 must be strictly followed, ; ad to the geeral rule that ambiguities i legislatio affectig retaied tribal sovereigty are to be costrued i favor of the Idias, see, e. g., those priciples will ot stretch so far as to permit us to fid a federal requiremet affectig the maer i which the States are to modify their orgaic legislatio o the basis of materials that are essetially speculative. Cf. Board of Couty Comm'rs v. Uited States, The laguage of 6, its legislative history, ad its role i Pub. L. 280 all clearly poit the other way. We tur first to the laguage of 6. The mai clause is framed i permissive, ot madatory, terms. Had the drafters iteded by that clause to require popular amedatory actio, it is ulikely that they would have icluded the words "where ecessary." As writte, the clause suggests that the substative requiremet for costitutioal amedmet must be foud i some source of law idepedet of 6. The basic questio, the, is whether that requiremet ca be foud i the laguage of the proviso to 6 or alteratively i the terms of the Eablig Act. We are uable to fid the procedural madate missig from the mai clause of 6 i the laguage of the proviso. That laguage i the abstract could be read to suggest that costitutioal amedmet is a coditio precedet to a valid assumptio of jurisdictio by disclaimer States. Whe examied i its cotext, however, it caot fairly be read to impose such a coditio. Two cosideratios prevet this readig. First, it is doubtful that Cogressi order to compel disclaimer States to amed their costitutios by popular vote would have doe so i a provisio the first clause of which cosets to that procedure "where ecessary" ad the proviso to which idicates that the procedure is to be followed if "appropriate." Secod, the referece to popular amedatory actio i the proviso is ot framed as a descriptio of the procedure the States must follow to assume jurisdictio, but istead is writte as a coditio to the effectiveess of "the provisios of" Pub. L. 280. Whe it is recalled that the oly substative provisios of the Actother tha those arguably to be foud i 7accomplish a immediate trasfer of jurisdictio to specifically amed States, it seems most likely that the proviso was icluded to esure that 6 would ot be costrued to effect a immediate trasfer to the disclaimer group of optio States. The mai clause removes a federal-law barrier 486 to ay ew state jurisdictio over Idia coutry. The proviso suggests that disclaimer States are ot automatically to receive jurisdictio by virtue of that removal. Without the proviso, i the evet that state costitutioal amedmet were ot foud "ecessary,"[29] 6 could be costrued as effectig a immediate cessio. Cogress clearly wated all the optio States to "obligate ad bid" themselves to assume the jurisdictio offered i Pub. L. 280.[30] To 487 be sure, costitutioal amedmet was referred to as the process by which this might be accomplished i disclaimer States. But, give the distictio that Cogress clearly drew betwee those States ad automatic-trasfer States, this referece ca hardly be costrued to require that process. Before turig to the legislative history, which, as we shall see, accords with this iterpretatio of 6, we address the argumet that popular amedatory actio, if ot a requiremet of Pub. L. 280, is madated by the legislatio admittig Washigto to the Uio. This argumet requires that two assumptios be made. The first is that 6 elimiated some but preserved other Eablig Act barriers to a State's assertio of jurisdictio over Idia coutry. The secod is that the phrase "where ecessary" i the mai clause of 6 was iteded to refer to those federal-law barriers that had bee preserved. Oly if each of these premises is accepted does the Eablig Act have ay possible applicatio. Sice we fid the first premise impossible to accept, we proceed o further. Admittig legislatio is, to be sure, the oly source of law metioed i the mai clause of 6 ad might therefore be looked to as a referet for the phrase "where ecessary" i the clause. This readig, however, is ot teable. It supplies o satisfactory aswer to the questio why Cogressi order to give the coset of the Uited States to the removal of state orgaic law disclaimerswould ot also have by ecessary implicatio coseted to the removal of ay procedural costraits o the States imposed by the Eablig Acts. The phrase "[]otwithstadig the provisios of ay Eablig Act" i 6 is broadbroad eough to suggest that Cogress whe it referred to a possible ecessity for state costitutioal amedmet did ot ited thereby to perpetuate ay such requiremet i a Eablig Act. Eve assumig that the phrase "coset of the people" i the Eablig Act must be costrued to preclude coset by legislative actioad the Tribe ad the Uited States have offered 488 o cocrete authority to support this restrictive readig of the phrase[31] we thik it obvious that i the "otwithstadig" clause of 6 Cogress meat to remove ay federal impedimets to state jurisdictio that may have bee created by a Eablig Act. The legislative history of Pub. L. 280 supports the coclusio that 6 did ot of its ow force establish a state costitutioal amedmet requiremet ad did ot preserve ay such requiremet that might be foud i a Eablig Act. Public Law 280 was the first jurisdictioal bill of geeral applicability ever to be eacted by Cogress. It reflected cogressioal cocer over the law-ad-order problems o Idia reservatios ad the fiacial burdes of cotiued federal jurisdictioal resposibilities o Idia lads, It was also, however, without questio reflective of the geeral assimilatioist policy followed by Cogress from the early 1950's through the late 1960's.[32]489 See H. R. Rep. No. 83d Cog., 1st Sess. See also Hearigs o H. R. 459, H. R. 3235, ad H. R. 3624 before the Subcommittee o Idia Affairs of the House Committee o Iterior ad Isular Affairs, 82d Cog., 2d Sess. (1952) (hereiafter 1952 Hearigs). The failure of Cogress to write a tribal-coset provisio ito the trasfer provisio applicable to optio States as well as its failure to cosult with the tribes durig the fial deliberatios o Pub. L. 280 provide ample evidece of this.[33] 490 Ideed, the circumstaces surroudig the passage of Pub. L. 280 i themselves fully bear out the State's geeral thesis that Pub. L. 280 was iteded to facilitate, ot to impede, the trasfer of jurisdictioal resposibility to the States. Public Law 280 origiated i a series of idividual bills itroduced i the 83d Cogress to trasfer jurisdictio to the five willig States which evetually were covered i 2 ad 4.[34] H. R. Rep. No. Those bills were cosolidated ito H. R. 1063, which was referred to the House Committee o Iterior ad Isular Affairs for cosideratio. Closed hearigs o the bills were held before the Subcommittee o Idia Affairs o Jue 29 ad before the Committee o July 15, 1953.[35] Durig the opeig sessio o Jue 29, 491 Committee Members, cousel, ad represetatives of the Departmet of the Iterior discussed various proposals desiged to give H. R. 1063 geeral applicability. Jue 29 Hearigs 1-22. It rapidly became clear that the Members favored a geeral bill. At this poit, Committee cousel oted that several States "have costitutioal prohibitios agaist jurisdictio." There followed some discussio of the maer i which these States should be treated. O July 15, a versio of 6 was proposed. July 15 Hearigs 6. After further discussio of the disclaimer problem, the "otwithstadig" clause was added, ad the laguage evetually eacted as 6 was approved by the Committee that day. The speed ad the cotext aloe suggest that 6 was desiged to remove a obstacle to state jurisdictio, ot to create oe. Ad the discussio at the hearigs, which i essece were markup sessios, makes this clear.[36] 492 While some Committee Members apparetly thought that 6 States, as a matter of state law, would have to amed their costitutios i order to remove the disclaimers foud there,[37]493 there is o idicatio that the Committee iteded to impose ay such requiremet.[38] We coclude that 6 of Pub. L. 280 does ot require disclaimer States to amed their costitutios to make a effective acceptace of jurisdictio. We also coclude that ay Eablig Act requiremet of this ature was effectively repealed by 6. If as a matter of state law a costitutioal amedmet is required, that procedure mustas a matter of state lawbe followed. Ad if uder state law a costitutioal amedmet is ot required, disclaimer States must still take positive actio before Pub. L. 280 jurisdictio ca become effective. The Washigto Supreme Court havig determied that for purposes of the repeal of Art. XXVI of the Washigto Costitutio legislative actio is sufficiet,[39] ad appropriate state legislatio havig bee eacted, it follows that the State of Washigto has satisfied the procedural requiremets of 6. IV We tur to the questio whether the State was authorized uder Pub. L. 280 to assume oly partial subject-matter ad geographic jurisdictio over Idia reservatios withi the State.[40] 494 The argumet that Pub. L. 280 does ot permit this scheme of partial jurisdictio relies primarily upo the text of the federal law. The mai cotetio of the Tribe ad the Uited States is that partial jurisdictio, because ot specifically authorized, must therefore be forbidde. I additio, they assert that the iterplay betwee the provisios of Pub. L. 280 demostrates that 6 States are required, if they assume ay jurisdictio, to assume as much jurisdictio as was trasferred to the madatory States.[41] Poitig out that 18 U.S. C. 1151 defies Idia coutry for purposes of federal jurisdictio as icludig a etire reservatio otwithstadig "the issuace of ay patet," they reaso that whe Cogress i 2 trasferred to the madatory States "crimial jurisdictio" over "offeses committed by or agaist Idias i the Idia coutry," it meat that all parts of Idia coutry were to be covered. Similarly, they emphasize that civil jurisdictio of comparable scope was trasferred to the madatory 495 States. They stress that i both 2 ad 4, the cosequece of state assumptio of jurisdictio is that the state "crimial laws" ad "civil laws of geeral applicatio" are heceforth to "have the same force ad effect withi Idia coutry as they have elsewhere withi the State." Fially, the Tribe ad the Uited States coted that the cogressioal purposes of elimiatig the jurisdictioal hiatus thought to exist o Idia reservatios, of reducig the cost of the federal resposibility for jurisdictio o tribal lads, ad of assimilatig the Idia tribes ito the geeral state populatio are disserved by the type of checkerboard arragemet permitted by Chapter 36. We agree, however, with the State of Washigto that statutory authorizatio for the state jurisdictioal arragemet is to be foud i the very words of 7. That provisio permits optio States to assume jurisdictio "i such maer" as the people of the State shall "by affirmative legislative actio, obligate ad bid the State to assumptio thereof." Oce the requiremets of 6 have bee satisfied, the terms of 7 appear to gover the scope of jurisdictio coferred upo disclaimer States. The phrase "i such maer" i 7 meas at least that ay optio State ca coditio the assumptio of full jurisdictio o the coset of a affected tribe. Ad here Washigto has doe o more tha refrai from exercisig the full measure of allowable jurisdictio without coset of the tribe affected. Sectio 6, as we have see, was placed i the Act to elimiate possible orgaic law barriers to the assumptio of jurisdictio by disclaimer States. The Tribe ad the Uited States ackowledge that it is a procedural, ot a substative, sectio. The clause cotais oly oe referece of relevace to the partial-jurisdictio questio. This is the phrase "assumptio of civil ad crimial jurisdictio i accordace with the provisios of this Act." As both parties recogize, this phrase ecessarily leads to other "provisios" of the Act for 496 clarificatio of the substative scope of the jurisdictioal grat. The first questio the is which other "provisios" of the Act gover. The secod is what costraits those "provisios" place o the jurisdictioal arragemets made by optio States. The Tribe argues as a iitial matter that 7 is ot oe of the "provisios" referred to by 6. It relies i part upo the cotrast betwee the phrase "assumptio of civil ad crimial jurisdictio" i 6 ad the disjuctive phrase "crimial offeses or civil causes of actio" i 7. From this distictio betwee the "civil ad crimial jurisdictio" laguage of 6 ad the optioal laguage i 7, we are asked to coclude that 6 States must assume full jurisdictio i accord with the terms applicable to the madatory States eve though 7 States are permitted more discretio. We are uable to accept this argumet, ot oly because the statutory laguage does ot fairly support it, but also because the legislative history is wholly to the cotrary. It is clear from the Committee hearigs that the States covered by 6 were, except for the possible impedimets cotaied i their orgaic laws, to be treated o precisely the same terms as optio States.[42] Sectio 6, as we have see, was essetially a afterthought desiged to accomplish the limited purpose of removig ay barrier to jurisdictio posed by state orgaic law disclaimers of jurisdictio over Idias. All optio States were origially treated uder the aegis of 7.[43] The record of the Committee hearigs makes clear that the sole purpose of 6 was to resolve the disclaimer problem.[44] Ideed, to the extet that the Tribe ad the Uited States suggest that disclaimer States stad o a differet footig from all other optio States, their argumet makes o sese. It would ascribe to Cogress a 497 itet to require States that by force of orgaic law barriers may have had oly a limited ivolvemet with Idia coutry to establish the most itrusive presece possible o Idia reservatios, if ay at all, ad at the same time a itet to allow States with differet traditios to exercise more restrait i extedig the coverage of their law. The Tribe ad the Uited States urge that eve if, as we have cocluded, all optio States are ultimately govered by 7, the referece i that sectio to assumptio of jurisdictio "as provided for i [the] Act" should be costrued to mea that the automatic-trasfer provisios of 2 ad 4 must still apply. The argumet would require a coclusio that the optio States stad o the same footig as the madatory States. This view is ot persuasive. The madatory States were cosulted prior to the itroductio of the sigle-state bills that were evetually to become Pub. L. 280. All had idicated their willigess to accept whatever jurisdictio Cogress was prepared to trasfer. This, however, was ot the case with the optio States. Few of those States had bee cosulted, ad from the Jue 29 ad July 15 hearigs it is apparet that the drafters were primarily cocered with establishig a geeral trasfer scheme that would facilitate, ot impede, future actio by other States willig to accept jurisdictio. It is clear that the all-or-othig approach suggested by the Tribe would impede eve the most resposible ad sesitive jurisdictioal arragemets desiged by the States. To fid that uder Pub. L. 280 a State could ot exercise partial jurisdictio, eve if it were willig to exted full jurisdictio at tribal request, would be quite icosistet with this basic history. The laguage of 7, which we have foud applicable here, provides, we believe, surer guidace to the issue before us.[45]498 The critical laguage i 7 is the phrase permittig the assumptio of jurisdictio "at such time ad i such maer as the people of the State shall obligate ad bid the State to assumptio thereof." Whether or ot "i such maer" is fully syoymous with "to such extet," the phrase is at least broad eough to authorize a State to coditio the extesio of full jurisdictio over a Idia reservatio o the coset of the tribe affected. The Uited States argues that a costructio of Pub. L. 280 which permits selective extesio of state jurisdictio allows a State to "pick ad choose" oly those subject-matter areas ad geographical parts of reservatios over which it would like to assume resposibility. Cogress, we are told, passed Pub. L. 280 ot as a measure to beefit the States, but to reduce the ecoomic burdes associated with federal jurisdictio o reservatios, to respod to a perceived hiatus i law eforcemet protectios available to tribal Idias, ad to achieve a orderly assimilatio of Idias ito the geeral populatio. That these were the major cocers uderlyig the passage of Pub. L. 280 caot be doubted. See 426 U. S., at But Chapter 36 does ot reflect a attempt to reap the beefits ad to avoid the burdes of the jurisdictioal offer made by Cogress. To the cotrary, the State must assume total jurisdictio wheever a tribal request is made that it do so. Moreover, the partial geographic ad subject-matter jurisdictio that exists i the absece of tribal coset is resposive to the law eforcemet cocers that uderlay the adoptio of Pub. L. 280. State jurisdictio is complete as to all o-Idias o reservatios ad is also complete as to Idias o otrust lads. The law eforcemet hiatus that preoccupied the 83d Cogress has to that extet bee elimiated. O trust ad restricted lads withi the reservatios 499 whose tribes have ot requested the coverage of state law, jurisdictio over crimes by Idias is, as it was whe Pub. L. 280 was eacted, shared by the tribal ad Federal Govermets. To the extet that this shared federal ad tribal resposibility is iadequate to preserve law ad order, the tribes eed oly request ad they will receive the protectio of state law. The State of Washigto i 1963 could have uilaterally exteded full jurisdictio over crimes ad civil causes of actio i the etire Yakima Reservatio without violatig the terms of Pub. L. 280. We are uable to coclude that the State, i assertig a less itrusive presece o the Reservatio while at the same time obligatig itself to assume full jurisdictioal resposibility upo request, somehow flouted the will of Cogress. A State that has accepted the jurisdictioal offer i Pub. L. 280 i a way that leaves substatial play for tribal self-govermet, uder a volutary system of partial jurisdictio that reflects a resposible attempt to accommodate the eeds of both Idias ad o-Idias withi a reservatio, has plaily take actio withi the terms of the offer made by Cogress to the States i 1953. For Cogress surely did ot dey a optio State the power to coditio its offer of full jurisdictio o tribal coset. V Havig cocluded that Chapter 36 violates either the procedural or the substative terms of Pub. L. 280, we tur, fially, to the questio whether the "checkerboard" patter of jurisdictio applicable o the reservatios of ocosetig tribes is o its face ivalid uder the Equal Protectio Clause of the Fourteeth Amedmet.[46] The Court of Appeals 500 for the Nith Circuit cocluded that it is, reasoig that the lad-title classificatio is too bizarre to meet "ay formulatio of the ratioal basis test." The Tribe advaces several differet lies of argumet i defese of this rulig. First, it argues that the classificatios implicit i Chapter 36 are racial classificatios, "suspect" uder the test euciated i McLaughli v. Florida, U.S. 184, ad that they caot stad uless justified by a compellig state iterest. Secod, it argues that its iterest i self-govermet is a fudametal right, ad that Chapter 36as a law abridgig this rightis presumptively ivalid. Fially, the Tribe argues that Chapter 36 is ivalid eve if reviewed uder the more traditioal equal protectio criteria articulated i such cases as Massachusetts Bd. of Retiremet v. U.S. 307.[47] We agree with the Court of Appeals to the extet that its opiio rejects the first two of these argumets ad reflects a judgmet that Chapter 36 must be sustaied agaist a Equal Protectio Clause attack if the classificatios it employs "ratioally furthe[r] the purpose idetified by the State." Massachusetts Bd. of Retiremet v. It is settled that "the uique legal status of Idia tribes uder 501 federal law" permits the Federal Govermet to eact legislatio siglig out tribal Idias, legislatio that might otherwise be costitutioally offesive. Morto v. Macari, States do ot ejoy this same uique relatioship with Idias, but Chapter 36 is ot simply aother state law. It was eacted i respose to a federal measure explicitly desiged to readjust the allocatio of jurisdictio over Idias. The jurisdictio permitted uder Chapter 36 is, as we have foud, withi the scope of the authorizatio of Pub. L. 280. Ad may of the classificatios made by Chapter 36 are also made by Pub. L. 280. Ideed, classificatios based o tribal status ad lad teure ihere i may of the decisios of this Court ivolvig jurisdictioal cotroversies betwee tribal Idias ad the States, see, e. g., Uited States v. McBratey, For these reasos, we fid the argumet that such classificatios are "suspect" a uteable oe. The cotetio that Chapter 36 abridges a "fudametal right" is also uteable. It is well established that Cogress, i the exercise of its pleary power over Idia affairs, may restrict the retaied sovereig powers of the Idia tribes. See, e. g., Uited I eactig Chapter 36, Washigto was legislatig uder explicit authority grated by Cogress i the exercise of that federal power.[48] The questio that remais, the, is whether the lies draw by Chapter 36 fail to meet covetioal Equal Protectio Clause criteria, as the Court of Appeals held. Uder those criteria, legislative classificatios are valid uless they bear o ratioal relatioship to the State's objectives. Massachusetts Bd. of Retiremet v. State legislatio "does ot violate the Equal Protectio Clause merely because the classificatios [it makes] are imperfect." *502 Dadridge v. Williams, Uder these stadards we have o difficulty i cocludig that Chapter 36 does ot offed the Equal Protectio Clause. The lies the State has draw may well be difficult to admiister. But they are o more or less so tha may of the classificatios that pervade the law of Idia jurisdictio. See Seymour v. Superitedet, ; Chapter 36 is fairly calculated to further the State's iterest i providig protectio to o-Idia citizes livig withi the boudaries of a reservatio while at the same time allowig scope for tribal self-govermet o trust or restricted lads. The lad-teure classificatio made by the State is either a irratioal or arbitrary meas of idetifyig those areas withi a reservatio i which tribal members have the greatest iterest i beig free of state police power. Ideed, may of the rules developed i this Court's decisios i cases accommodatig the sovereig rights of the tribes with those of the States are strikigly similar. See, e. g., Uited States v. McBratey, Draper v. Uited States, ; ; I short, checkerboard jurisdictio is ot ovel i Idia law, ad does ot, as such, violate the Costitutio. For the reasos set out i this opiio, the judgmet of the Court of Appeals is reversed. It is so ordered. MR. JUSTICE MARSHALL, with whom MR.
Justice Breyer	second_dissenting	false	United States v. Gonzales	1997-03-03T00:00:00	null	https://www.courtlistener.com/opinion/118091/united-states-v-gonzales/	https://www.courtlistener.com/api/rest/v3/clusters/118091/	1,997	1996-032	1	7	2	I believe that Justice Stevens is right. Section 924(c) concerns federal, not state, sentences. Hence Congress intended the words "other term of imprisonment" to refer to other federal, not other state, "terms." With respect to undischarged state sentences, therefore, 18 U.S. C. § 924(c) is permissive, not mandatory. That is, it permits the federal sentencing judge to make a § 924(c) sentence and an undischarged state sentence concurrent. Quite often, it will make little difference that, in this state/ federal circumstance, the consecutive/concurrent decision is permissive, not mandatory. That is because federal sentencing judges, understanding that § 924 requires consecutive sentencing where undischarged federal sentences are at issue, would normally treat undischarged state sentences the same way. They would make the § 924(c) sentence consecutive 15 to undischarged state sentences (even though § 924(c) would not force that result) in order to avoid treating similarly situated offenders differently. United States Sentencing Commission, Guidelines Manual § 5G1.3 (Nov. 1995). Ordinarily, the fact that the State, rather than the Federal Government, imposed an undischarged sentence is irrelevant in terms of any sentencing objective. In at least one circumstance, however, federal sentencing judges would probably not treat an undischarged state sentence as if it were federal. That is where the undischarged state sentence is a sentence under a state statute that itself simply mimics § 924(c). Such a situation cannot arise where the initial undischarged sentence is federal. Indeed, the Constitution would forbid any effort to apply § 924(c) twice to a single instance of gun possession. Brown v. Ohio, 432 U.S. 161, 165 (1977). But a State might have its own version of § 924(c), and a federal § 924(c) offender could be subject to an undischarged term of imprisonment imposed under such a statute. To run a § 924(c) sentence consecutively in such an instance (even if constitutionally permissible, cf. Abbate v. United States, 359 U.S. 187 (1959); Heath v. Alabama, 474 U.S. 82 (1985)) would treat the state offender differently, and far more harshly, than any possible federal counterpart. I am not inventing a purely hypothetical possibility. The State, in the very case before us, has punished respondents, in part, pursuant to a mandatory state sentence enhancement statute that has no counterpart in federal law but for § 924(c) itself, which the state statute, N. M. Stat. Ann. § 31-18-16(A) (Supp. 1994), very much resembles. But cf. Witte v. United States, 515 U.S. 389, 398-404 (1995). I understand that Congress wanted to guarantee that § 924(c)'s sentence would amount to an additional sentence. But I do not see why Congress would have wanted to pile Pelion on Ossa in this way, adding the § 924(c) sentence to another sentence that does the identical thing. Nor do I believe that 16 Congress would have intended potentially to create this kind of harsh distinction between those subject to undischarged state, and those subject to undischarged federal, sentences a likely practical result of the majority's holding. See id., at 404-406. This reason, along with those that Justice Stevens has discussed, makes me think that Congress did intend § 924(c) to refer to federal sentences alone, and lead me to dissent in this close case.	I believe that Justice Stevens is right. Section 924(c) concerns federal, not state, sentences. Hence Congress intended the words "other term of imprisonment" to refer to other federal, not other state, "terms." With respect to undischarged state sentences, therefore, 18 U.S. C. 924(c) is permissive, not mandatory. That is, it permits the federal sentencing judge to make a 924(c) sentence and an undischarged state sentence concurrent. Quite often, it will make little difference that, in this state/ federal circumstance, the consecutive/concurrent decision is permissive, not mandatory. That is because federal sentencing judges, understanding that 924 requires consecutive sentencing where undischarged federal sentences are at issue, would normally treat undischarged state sentences the same way. They would make the 924(c) sentence consecutive 15 to undischarged state sentences (even though 924(c) would not force that result) in order to avoid treating similarly situated offenders differently. United States Sentencing Commission, Guidelines Manual 5G1.3 Ordinarily, the fact that the State, rather than the Federal Government, imposed an undischarged sentence is irrelevant in terms of any sentencing objective. In at least one circumstance, however, federal sentencing judges would probably not treat an undischarged state sentence as if it were federal. That is where the undischarged state sentence is a sentence under a state statute that itself simply mimics 924(c). Such a situation cannot arise where the initial undischarged sentence is federal. Indeed, the Constitution would forbid any effort to apply 924(c) twice to a single instance of gun possession. But a State might have its own version of 924(c), and a federal 924(c) offender could be subject to an undischarged term of imprisonment imposed under such a statute. To run a 924(c) sentence consecutively in such an instance ; ) would treat the state offender differently, and far more harshly, than any possible federal counterpart. I am not inventing a purely hypothetical possibility. The State, in the very case before us, has punished respondents, in part, pursuant to a mandatory state sentence enhancement statute that has no counterpart in federal law but for 924(c) itself, which the state statute, N. M. Stat. Ann. 31-18-16(A) (Supp. 1994), very much resembles. But cf. I understand that Congress wanted to guarantee that 924(c)'s sentence would amount to an additional sentence. But I do not see why Congress would have wanted to pile Pelion on Ossa in this way, adding the 924(c) sentence to another sentence that does the identical thing. Nor do I believe that 16 Congress would have intended potentially to create this kind of harsh distinction between those subject to undischarged state, and those subject to undischarged federal, sentences a likely practical result of the majority's holding. See This reason, along with those that Justice Stevens has discussed, makes me think that Congress did intend 924(c) to refer to federal sentences alone, and lead me to dissent in this close case.
Justice Stevens	dissenting	false	Memphis Light, Gas & Water Div. v. Craft	1978-05-01T00:00:00	null	https://www.courtlistener.com/opinion/109855/memphis-light-gas-water-div-v-craft/	https://www.courtlistener.com/api/rest/v3/clusters/109855/	1,978	1977-076	2	6	3	In my judgment, the Court's holding confuses and trivializes the principle that the State may not deprive any person of life, liberty, or property without due process of law. I have no quarrel with the Court's conclusion that as a matter of Tennessee law a customer has a legitimate claim of entitlement to continued utility services as long as the undisputed portions of his utility bills are paid. For that reason, a municipality may not terminate utility service without giving the customer a fair opportunity to avoid termination either by paying the bill or questioning its accuracy. I do not agree, however, that this record discloses any constitutional defect in the termination procedures employed by the Light, Gas and Water Division of the city of Memphis (Division). The Court focuses on two aspects of the Division's collection procedures. First, according to the Court, the Division's standard form of termination notice did not adequately inform the customer of the availability of a procedure for protesting a proposed termination of service as unjustified. Ante, at 15. Second, the Division did not afford its customers an adequate 23 opportunity to meet with an employee who had the authority to settle billing disputes. Ante, at 18. Whether we consider the evidence describing the unusual dispute between the Crafts and the Division, or the evidence concerning the general operation of the Division's collection procedures, I find no basis for concluding that either of the Court's criticisms is justified; its conclusion that a constitutional violation has been proved is truly extraordinary. Although the details of the dispute between the Crafts and the Division are obscure, the record describes the Division's customary practices in some detail. Each month the Division terminates the service of about 2,000 customers.[1] Terminations are preceded by a written notice advising the customer of the date by which payment must be made to avoid a cutoff and requesting the customer to contact the credit and collections department if he is having difficulty paying the bill.[2] The notices contain a prominent legend:[3] "PHONE 523-0711 INFORMATION CENTER" Calls to the listed phone number are answered by 30 or 40 Division employees, all of whom are empowered to delay cutoffs for three days based on representations made by customers over the phone. These employees also direct callers to credit counselors who are authorized to resolve disputes on a more permanent basis and who can set up extended payment plans for customers in financial difficulty.[4] 24 The District Court did not find that the Division's notice was defective in any respect or that its regular practices were not adequate to handle the Crafts' unusual problems. The Crafts' dispute with the Division stemmed from the use of two sets of meters to measure utility consumption in different parts of the Crafts' home. Ante, at 4. The Crafts, believing they were being billed twice for the same utilities, did not pay on the second account. In fact, the two accounts were independent; because the Crafts refused to pay the balance on the second account, the Division terminated their service on several occasions.[5] The District Court expressly found that the Division sent a final notice before each termination. The District Court did not find that Mrs. Craft was unable to meet with credit department personnel possessing adequate authority to make an adjustment in her bill.[6] She was successful in working out a deferred-payment arrangement but apparently was unable to have the amount of the bills reduced. The record therefore indicates that Mrs. Craft did meet with 25 Division employees having adequate authority but simply failed to persuade any of them that there was any error in her bills.[7] I The Court's constitutional objection to the Division's notice rests entirely on the classic statement from Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314: "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." That statement identifies the two essential characteristics of adequate notice: It must inform the recipient of the impending loss; and it must be given in time to afford the recipient an opportunity to defend. These essentials must, of course, be expressed in terms which the layman can understand. The Division's notice unquestionably satisfied these two basic requirements.[8] No doubt there may be situations in which these two essentials 26 would not be sufficient to constitute fair notice. For example, if the notice describes a threatened loss which can only follow a prescheduled hearing, it must also inform the recipient of the time and place of the hearing. But I do not understand the Court to require municipal utilities to schedule a hearing before each termination notice is mailed. The Court seems to assume, as I do, that no hearing of any kind is necessary unless the customer has reason to believe he has been overcharged. Such a customer may protest his bill in either of two ways: He may communicate directly with the utility, or he may seek relief in court. In this case the Court finds the Division's notice constitutionally defective because it does not describe the former alternative. The Division must "advise the customer of the availability of a procedure for protesting a proposed termination of utility service as unjustified." Ante, at 15. That advice is much less valuable to the customer than an explanation of the legal remedies that are available if a wrongful termination should occur. Yet the Court wisely avoids holding that the customer must be given that sort of legal advice. The advice the Court does require is wholly unnecessary in all but the most unusual situations. For a homeowner surely need not be told how to complain about an error in a utility bill; it is, of course, helpful to include the telephone number and office address in the termination notice, but our democratic government would cease to function if, as the Court seems to assume, our citizenry were unable to find such information on their own initiative. The Court's holding that the Division's notice was constitutionally defective rests on a paternalistic predicate that I cannot accept. Even accepting the Court's predicate, a notice which advises customers to call the "information center" should be adequate; if not, it seems clear that advising customers to call, during normal business hours, a "dispute resolution center" manned by the same personnel would cure the constitutional 27 objection. Distinctions of this small magnitude are the appropriate concern of administrative rulemaking; they are too trivial to identify constitutional error. II The Court's pronouncement "that due process requires the provision of an opportunity for the presentation to a designated employee of a customer's complaint that he is being overcharged or charged for services not rendered," ante, at 16, is equally divorced from the facts of this case. The Division processes more than 30,000 complaints of excess charges each year, and it has designated scores of employees to hear and investigate those complaints. Except for the Crafts' troubles, there is nothing in the record to suggest that the Division's customers are denied access to these employees, or that the employees lack the power to deal appropriately with meritorious complaints. Indeed, as already noted, there is no finding by either of the courts below that the Crafts themselves did not meet with responsible officials empowered to resolve their dispute.[9] Although the Court's pronouncement in this case is therefore gratuitous, it cannot be dismissed as harmless. For it warns municipal utilities that unless they provide "some kind of hearing," ibid., they may be acting unconstitutionally. Just what, or why, additional procedural safeguards are constitutionally required is most difficult to discern.[10] 28 In deciding that more process is due, the Court relies on two quite different hypothetical considerations. First, the Court stresses the fact that disconnection of water or heating "may threaten health and safety." Ante, at 18. Second, the Court discounts the value of the protection afforded by the available judicial remedies because the "factual disputes typically [involve] sums of money too small to justify engaging counsel or bringing a lawsuit." Ante, at 21. Neither of these examples is disclosed by this record. The Crafts' dispute involved only a relatively small amount, but they did obtain counsel and thereafter they encountered no billing problems. Although the Division's terminations number about 2,000 each month, the record does not reveal any actual case of harm to health or safety. The District Court found that the Division does not discontinue service when there is illness in a home. Since a customer can always avoid termination by the simple expedient of paying the disputed bill and claiming a refund,[11] it is not surprising that the real emergency case is 29 rare, if indeed it exists at all.[12] When a true emergency does present a serious threat to health or safety, the customer will have ample motivation to take the important step of consulting counsel or filing suit even if the amount of his disputed bill is small. A potential loss of utility service sufficiently grievous to qualify as a constitutional deprivation can hardly be too petty to justify invoking the aid of counsel or the judiciary. Conversely, routine billing disputes too petty for the bench or the bar can hardly merit extraordinary constitutional protection. Even if the customer does not consult counsel in a specific case, the potential damages remedy nevertheless provides far more significant protection against an unjustified termination than does the vague requirement of "some kind of hearing." Without the threat of damages liability for mistakes, the informal procedures required today would neither qualify the utility's ultimate power to enforce collection by terminating service nor deter the exercise of that power. On the other hand, even without specific informal procedures, the danger of substantial liability will by itself ensure careful attention to genuine customer disputes. The utility's potential liability therefore provides customers with real pretermination protection even though damages may not be recovered until later. The need for a procedural innovation is not demonstrated 30 by the record in this judicial proceeding, but rather is justified on the basis of hypothetical examples, information gleaned from cases not before us, and legislative reports. See ante, at 18 nn. 20 and 21. These justifications suggest that the Court's new rule is the product of a policy determination rather than a traditional construction of the Constitution. As judges we have experience in appraising the fairness of legal remedies and judicial proceedings, but we have no similar ability to balance the cost of scheduling thousands of billing conferences against the benefit of providing additional protection to the occasional customer who may be unable to forestall an unjustified termination. It is an unfortunate fact that when the State assesses taxes or operates a utility, it occasionally overcharges the citizen. It is also unfortunate that effective collection procedures sometimes require the citizen to pay an unjust charge in order to forestall a serious deprivation of property. But if the State has given the citizen fair notice and afforded him procedural redress which is entirely adequate when invoked by his lawyer, the demands of the Due Process Clause are satisfied. I do not believe the Constitution requires the State to employ procedures that are so simple that every lay person can always act effectively without the assistance of counsel. I respectfully dissent.	In my judgment, the Court's holding confuses and trivializes the principle that the State may not deprive any person of life, liberty, or property without due process of law. I have no quarrel with the Court's conclusion that as a matter of Tennessee law a customer has a legitimate claim of entitlement to continued utility services as long as the undisputed portions of his utility bills are paid. For that reason, a municipality may not terminate utility service without giving the customer a fair opportunity to avoid termination either by paying the bill or questioning its accuracy. I do not agree, however, that this record discloses any constitutional defect in the termination procedures employed by the Light, Gas and Water Division of the city of Memphis (Division). The Court focuses on two aspects of the Division's collection procedures. First, according to the Court, the Division's standard form of termination notice did not adequately inform the customer of the availability of a procedure for protesting a proposed termination of service as unjustified. Ante, at 15. Second, the Division did not afford its customers an adequate 23 opportunity to meet with an employee who had the authority to settle billing disputes. Ante, at 18. Whether we consider the evidence describing the unusual dispute between the Crafts and the Division, or the evidence concerning the general operation of the Division's collection procedures, I find no basis for concluding that either of the Court's criticisms is justified; its conclusion that a constitutional violation has been proved is truly extraordinary. Although the details of the dispute between the Crafts and the Division are obscure, the record describes the Division's customary practices in some detail. Each month the Division terminates the service of about 2,000 customers.[1] Terminations are preceded by a written notice advising the customer of the date by which payment must be made to avoid a cutoff and requesting the customer to contact the credit and collections department if he is having difficulty paying the bill.[2] The notices contain a prominent legend:[3] "PHONE 523-0711 INFORMATION CENTER" Calls to the listed phone number are answered by 30 or 40 Division employees, all of whom are empowered to delay cutoffs for three days based on representations made by customers over the phone. These employees also direct callers to credit counselors who are authorized to resolve disputes on a more permanent basis and who can set up extended payment plans for customers in financial difficulty.[4] 24 The District Court did not find that the Division's notice was defective in any respect or that its regular practices were not adequate to handle the Crafts' unusual problems. The Crafts' dispute with the Division stemmed from the use of two sets of meters to measure utility consumption in different parts of the Crafts' home. Ante, at 4. The Crafts, believing they were being billed twice for the same utilities, did not pay on the second account. In fact, the two accounts were independent; because the Crafts refused to pay the balance on the second account, the Division terminated their service on several occasions.[5] The District Court expressly found that the Division sent a final notice before each termination. The District Court did not find that Mrs. Craft was unable to meet with credit department personnel possessing adequate authority to make an adjustment in her bill.[6] She was successful in working out a deferred-payment arrangement but apparently was unable to have the amount of the bills reduced. The record therefore indicates that Mrs. Craft did meet with 25 Division employees having adequate authority but simply failed to persuade any of them that there was any error in her bills.[7] I The Court's constitutional objection to the Division's notice rests entirely on the classic statement from 314: "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." That statement identifies the two essential characteristics of adequate notice: It must inform the recipient of the impending loss; and it must be given in time to afford the recipient an opportunity to defend. These essentials must, of course, be expressed in terms which the layman can understand. The Division's notice unquestionably satisfied these two basic requirements.[8] No doubt there may be situations in which these two essentials 26 would not be sufficient to constitute fair notice. For example, if the notice describes a threatened loss which can only follow a prescheduled hearing, it must also inform the recipient of the time and place of the hearing. But I do not understand the Court to require municipal utilities to schedule a hearing before each termination notice is mailed. The Court seems to assume, as I do, that no hearing of any kind is necessary unless the customer has reason to believe he has been overcharged. Such a customer may protest his bill in either of two ways: He may communicate directly with the utility, or he may seek relief in court. In this case the Court finds the Division's notice constitutionally defective because it does not describe the former alternative. The Division must "advise the customer of the availability of a procedure for protesting a proposed termination of utility service as unjustified." Ante, at 15. That advice is much less valuable to the customer than an explanation of the legal remedies that are available if a wrongful termination should occur. Yet the Court wisely avoids holding that the customer must be given that sort of legal advice. The advice the Court does require is wholly unnecessary in all but the most unusual situations. For a homeowner surely need not be told how to complain about an error in a utility bill; it is, of course, helpful to include the telephone number and office address in the termination notice, but our democratic government would cease to function if, as the Court seems to assume, our citizenry were unable to find such information on their own initiative. The Court's holding that the Division's notice was constitutionally defective rests on a paternalistic predicate that I cannot accept. Even accepting the Court's predicate, a notice which advises customers to call the "information center" should be adequate; if not, it seems clear that advising customers to call, during normal business hours, a "dispute resolution center" manned by the same personnel would cure the constitutional 27 objection. Distinctions of this small magnitude are the appropriate concern of administrative rulemaking; they are too trivial to identify constitutional error. II The Court's pronouncement "that due process requires the provision of an opportunity for the presentation to a designated employee of a customer's complaint that he is being overcharged or charged for services not rendered," ante, at 16, is equally divorced from the facts of this case. The Division processes more than 30,000 complaints of excess charges each year, and it has designated scores of employees to hear and investigate those complaints. Except for the Crafts' troubles, there is nothing in the record to suggest that the Division's customers are denied access to these employees, or that the employees lack the power to deal appropriately with meritorious complaints. Indeed, as already noted, there is no finding by either of the courts below that the Crafts themselves did not meet with responsible officials empowered to resolve their dispute.[9] Although the Court's pronouncement in this case is therefore gratuitous, it cannot be dismissed as harmless. For it warns municipal utilities that unless they provide "some kind of hearing," ibid., they may be acting unconstitutionally. Just what, or why, additional procedural safeguards are constitutionally required is most difficult to discern.[10] 28 In deciding that more process is due, the Court relies on two quite different hypothetical considerations. First, the Court stresses the fact that disconnection of water or heating "may threaten health and safety." Ante, at 18. Second, the Court discounts the value of the protection afforded by the available judicial remedies because the "factual disputes typically [involve] sums of money too small to justify engaging counsel or bringing a lawsuit." Ante, at 21. Neither of these examples is disclosed by this record. The Crafts' dispute involved only a relatively small amount, but they did obtain counsel and thereafter they encountered no billing problems. Although the Division's terminations number about 2,000 each month, the record does not reveal any actual case of harm to health or safety. The District Court found that the Division does not discontinue service when there is illness in a home. Since a customer can always avoid termination by the simple expedient of paying the disputed bill and claiming a refund,[11] it is not surprising that the real emergency case is 29 rare, if indeed it exists at all.[12] When a true emergency does present a serious threat to health or safety, the customer will have ample motivation to take the important step of consulting counsel or filing suit even if the amount of his disputed bill is small. A potential loss of utility service sufficiently grievous to qualify as a constitutional deprivation can hardly be too petty to justify invoking the aid of counsel or the judiciary. Conversely, routine billing disputes too petty for the bench or the bar can hardly merit extraordinary constitutional protection. Even if the customer does not consult counsel in a specific case, the potential damages remedy nevertheless provides far more significant protection against an unjustified termination than does the vague requirement of "some kind of hearing." Without the threat of damages liability for mistakes, the informal procedures required today would neither qualify the utility's ultimate power to enforce collection by terminating service nor deter the exercise of that power. On the other hand, even without specific informal procedures, the danger of substantial liability will by itself ensure careful attention to genuine customer disputes. The utility's potential liability therefore provides customers with real pretermination protection even though damages may not be recovered until later. The need for a procedural innovation is not demonstrated 30 by the record in this judicial proceeding, but rather is justified on the basis of hypothetical examples, information gleaned from cases not before us, and legislative reports. See ante, at 18 nn. 20 and 21. These justifications suggest that the Court's new rule is the product of a policy determination rather than a traditional construction of the Constitution. As judges we have experience in appraising the fairness of legal remedies and judicial proceedings, but we have no similar ability to balance the cost of scheduling thousands of billing conferences against the benefit of providing additional protection to the occasional customer who may be unable to forestall an unjustified termination. It is an unfortunate fact that when the State assesses taxes or operates a utility, it occasionally overcharges the citizen. It is also unfortunate that effective collection procedures sometimes require the citizen to pay an unjust charge in order to forestall a serious deprivation of property. But if the State has given the citizen fair notice and afforded him procedural redress which is entirely adequate when invoked by his lawyer, the demands of the Due Process Clause are satisfied. I do not believe the Constitution requires the State to employ procedures that are so simple that every lay person can always act effectively without the assistance of counsel. I respectfully dissent.
Justice Rehnquist	dissenting	false	Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources	1992-06-01T00:00:00	null	https://www.courtlistener.com/opinion/112741/fort-gratiot-sanitary-landfill-inc-v-michigan-dept-of-natural-resources/	https://www.courtlistener.com/api/rest/v3/clusters/112741/	1,992	1991-079	1	7	2	When confronted with a dormant Commerce Clause challenge "[t]he crucial inquiry . . . must be directed to determining whether [the challenged statute] is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental." Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978). Because I think the Michigan statute is at least arguably directed to legitimate local concerns, rather than improper economic protectionism, I would remand this case for further proceedings. The substantial environmental, esthetic, health, and safety problems flowing from this country's waste piles were already apparent at the time we decided Philadelphia. Those problems have only risen in the intervening years. Salisbury, Pollution Liability Insurance Coverage, The StandardForm Pollution Exclusion, and the Insurance Industry: A Case Study in Collective Amnesia, 21 Envtl. L. 357, 369-370 (1991). In part this is due to increased waste volumes, volumes that are expected to continue rising for the foreseeable future. See United States Environmental Protection Agency, Characterization of Municipal Solid Waste in the United States: 1990 Update 10 (municipal solid wastes have increased from 128.1 million tons in 1975 to 179.6 million tons in 1988, expected to rise to 216 million tons by the year 2000); id., at ES-3 (1988 waste was the equivalent of 4.0 pounds per person per day, expected to rise to 4.4 pounds per person by the year 2000). In part it is due to exhaustion of existing capacity. Id., at 55 (landfill disposals increased from 99.7 million tons in 1975 to 130.5 million in 1988); 56 Fed. Reg. 50980 (1991) (45% of solid waste landfills expected to reach 369 capacity by 1991). It is no secret why capacity is not expanding sufficiently to meet demandthe substantial risks attendant to waste sites make them extraordinarily unattractive neighbors. Swin Resource Systems, Inc. v. Lycoming Cty., 883 F.2d 245, 253 (CA3 1989), cert. denied, 493 U.S. 1077 (1990). The result, of course, is that while many are willing to generate wasteindeed, it is a practical impossibility to solve the waste problem by banning waste productionfew are willing to help dispose of it. Those locales that do provide disposal capacity to serve foreign waste effectively are affording reduced environmental and safety risks to the States that will not take charge of their own waste.[] The State of Michigan has stepped into this quagmire in order to address waste problems generated by its own populace. It has done so by adopting a comprehensive approach to the disposal of solid wastes generated within its borders. The legislation challenged today is simply one part of a broad package that includes a number of features: a state-mandated statewide effort to control and plan for waste disposal, Mich. Comp. Laws §§ 299.427 and 299.430 (1984 and Supp. 1991), requirements that local units of government participate in the planning process, ibid., and § 299.426 (Supp. 1991), restrictions to assure safe transport, § 299.431 (1984), a ban on the operation of waste disposal facilities unless various design and technical requirements are satisfied and appropriate permits obtained, ibid., and § 299.432a (Supp. 1991), and commitments to promote source separation, composting, and recycling, § 299.430a (Supp. 1991). The Michigan legislation is 370 thus quite unlike the simple outright ban that we confronted in Philadelphia. In adopting this legislation, the Michigan Legislature also appears to have concluded that, like the State, counties should reap as they have sownhardly a novel proposition. It has required counties within the State to be responsible for the waste created within the county. It has accomplished this by prohibiting waste facilities from accepting waste generated from outside the county, unless special permits are obtained. In the process, of course, this facially neutral restriction (i. e., it applies equally to both interstate and intrastate waste) also works to ban disposal from out-ofstate sources unless appropriate permits are procured. But I cannot agree that such a requirement, when imposed as one part of a comprehensive approach to regulating in this difficult field, is the stuff of which economic protectionism is made. If anything, the challenged regulation seems likely to work to Michigan's economic disadvantage. This is because, by limiting potential disposal volumes for any particular site, various fixed costs will have to be recovered across smaller volumes, increasing disposal costs per unit for Michigan consumers. 56 Fed. Reg. 50987 (1991). The regulation also will require some Michigan countiesthose that until now have been exporting their waste to other locations in the Stateto confront environmental and other risks that they previously have avoided. Commerce Clause concerns are at their nadir when a state Act works in this fashionraising prices for all the State's consumers, and working to the substantial disadvantage of other segments of the State's populationbecause in these circumstances "`a State's own political processes will serve as a check against unduly burdensome regulations.' " Kassel v. Consolidated Freightways Corp. of Del., 450 U.S. 662, 675 (1981) (quoting Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 444, n. 18 (1978)). In sum, the law simply incorporates the commonsense 371 notion that those responsible for a problem should be responsible for its solution to the degree they are responsible for the problem but not further. At a minimum, I think the facts just outlined suggest the State must be allowed to present evidence on the economic, environmental, and other effects of its legislation. The Court suggests that our decisions in Brimmer v. Rebman, 138 U.S. 78 (1891), and Dean Milk Co. v. Madison, 340 U.S. 349 (1951), foreclose the possibility that a statute attacked on Commerce Clause grounds may be defended by pointing to the statute's effects on intrastate commerce. But our decisions in those cases did not rest on such a broad proposition. Instead, as the passages quoted by the Court make clear, in both Brimmer and Dean Milk the Court simply rejected the notion that there could be a noneconomic protectionist reason for the bans at issue, because the objects being banned presented no health or environmental risk. See Brimmer, 138 U. S., at 83 ("[i]f the object of Virginia had been to obstruct the bringing into that State, for uses as human food, of all beef, veal and mutton, however wholesome " (emphasis added)); see also ibid. (comparing the statute to one that bans meat from other States "in whatever form, and although entirely sound and fit for human food" (emphasis added)); Dean Milk, 340 U. S., at 354 (the statute "excludes from distribution in Madison wholesome milk" (emphasis added)). It seems unlikely that the waste here is "wholesome" or "entirely sound and fit." It appears, instead, to be potentially dangerousat least the State has so concluded. Nor does the legislation appear to protect "a major local industry against competition from without the State." Ibid. Neither Dean Milk nor Brimmer prohibits a State from adopting health and safety regulations that are directed to legitimate local concerns. See Maine v. Taylor, 477 U.S. 131 (1986). I would remand this case to give the State an opportunity to show that this is such a regulation. 372 We confirmed in Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982), that a State's effort to adopt a comprehensive regime to address a major environmental threat or threat to natural resources need not run afoul of the Commerce Clause. In that case we noted that "[o]bviously, a State that imposes severe withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it seeks to prevent the uncontrolled transfer of water out of the State." Id., at 955-956. Substitute "attractive and safe environment" for "water" and one has the present case. Michigan has limited the ability of its own population to despoil the environment and to create health and safety risks by excessive and uncontrolled waste disposal. It does not thereby violate the Commerce Clause when it seeks to prevent this resource from being exportedthe effect if Michigan is forced to accept foreign waste in its disposal facilities. Rather, the "resource has some indicia of a good publicly produced and owned in which a State may favor its own citizens in times of shortage." Id., at 957. Of course the State may choose not to do this, and in fact, in this case Michigan does permit counties to decide on an individualized basis whether to accept out-of-county waste. But such a result is not constitutionally mandated. The modern landfill is a technically complex engineering exercise that comes replete with liners, leachate collection systems, and highly regulated operating conditions. As a result, siting a modern landfill can now proceed largely independent of the landfill location's particular geological characteristics. See 56 Fed. Reg. 51009 (1991) (Environmental Protection Agency approved "composite liner system is designed to be protective in all locations, including poor locations"); id., at 51004-51005 (outlining additional technical requirements for only those landfill sites (1) near airports, (2) on floodplains, (3) on wetlands, (4) on fault areas, (5) on seismic impact zones, or (6) on unstable areas). Given this, the laws of economics suggest that landfills will sprout in places 373 where land is cheapest and population densities least. See Alm, "Not in My Backyard:" Facing the Siting Question, 10 EPA J. 9 (1984) (noting the need for each county to accept a share of the overall waste stream equivalent to what it generates so that "less populated counties are protected against becoming the dumping ground of the entire region"). I see no reason in the Commerce Clause, however, that requires cheap-land States to become the waste repositories for their brethren, thereby suffering the many risks that such sites present. The Court today penalizes the State of Michigan for what to all appearances are its good-faith efforts, in turn encouraging each State to ignore the waste problem in the hope that another will pick up the slack. The Court's approach fails to recognize that the latter option isone that isquite real and quite attractive for many Statesand becomes even more so when the intermediate option of solving its own problems, but only its own problems, is eliminated. For the foregoing reasons, I respectfully dissent.	When confronted with a dormant Commerce Clause challenge "[t]he crucial inquiry must be directed to determining whether [the challenged statute] is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental." Because I think the Michigan statute is at least arguably directed to legitimate local concerns, rather than improper economic protectionism, I would remand this case for further proceedings. The substantial environmental, esthetic, health, and safety problems flowing from this country's waste piles were already apparent at the time we decided Philadelphia. Those problems have only risen in the intervening years. Salisbury, Pollution Liability Insurance Coverage, The StandardForm Pollution Exclusion, and the Insurance Industry: A Case Study in Collective Amnesia, In part this is due to increased waste volumes, volumes that are expected to continue rising for the foreseeable future. See United States Environmental Protection Agency, Characterization of Municipal Solid Waste in the United States: 1990 Update 10 (municipal solid wastes have increased from 128.1 million tons in 1975 to 179.6 million tons in 1988, expected to rise to 216 million tons by the year 2000); at ES-3 (1988 waste was the equivalent of 4.0 pounds per person per day, expected to rise to 4.4 pounds per person by the year 2000). In part it is due to exhaustion of existing capacity. ; It is no secret why capacity is not expanding sufficiently to meet demandthe substantial risks attendant to waste sites make them extraordinarily unattractive neighbors. Swin Resource Systems, cert. denied, The result, of course, is that while many are willing to generate wasteindeed, it is a practical impossibility to solve the waste problem by banning waste productionfew are willing to help dispose of it. Those locales that do provide disposal capacity to serve foreign waste effectively are affording reduced environmental and safety risks to the States that will not take charge of their own waste.[] The State of Michigan has stepped into this quagmire in order to address waste problems generated by its own populace. It has done so by adopting a comprehensive approach to the disposal of solid wastes generated within its borders. The legislation challenged today is simply one part of a broad package that includes a number of features: a state-mandated statewide effort to control and plan for waste disposal, and 299.430 requirements that local units of government participate in the planning process, ib and 299.426 restrictions to assure safe transport, 299.431 (1984), a ban on the operation of waste disposal facilities unless various design and technical requirements are satisfied and appropriate permits obtained, ib and 299.432a and commitments to promote source separation, composting, and recycling, 299.430a The Michigan legislation is 370 thus quite unlike the simple outright ban that we confronted in Philadelphia. In adopting this legislation, the Michigan Legislature also appears to have concluded that, like the State, counties should reap as they have sownhardly a novel proposition. It has required counties within the State to be responsible for the waste created within the county. It has accomplished this by prohibiting waste facilities from accepting waste generated from outside the county, unless special permits are obtained. In the process, of course, this facially neutral restriction (i. e., it applies equally to both interstate and intrastate waste) also works to ban disposal from out-ofstate sources unless appropriate permits are procured. But I cannot agree that such a requirement, when imposed as one part of a comprehensive approach to regulating in this difficult field, is the stuff of which economic protectionism is made. If anything, the challenged regulation seems likely to work to Michigan's economic disadvantage. This is because, by limiting potential disposal volumes for any particular site, various fixed costs will have to be recovered across smaller volumes, increasing disposal costs per unit for Michigan consumers. The regulation also will require some Michigan countiesthose that until now have been exporting their waste to other locations in the Stateto confront environmental and other risks that they previously have avoided. Commerce Clause concerns are at their nadir when a state Act works in this fashionraising prices for all the State's consumers, and working to the substantial disadvantage of other segments of the State's populationbecause in these circumstances "`a State's own political processes will serve as a check against unduly burdensome regulations.' " ). In sum, the law simply incorporates the commonsense 371 notion that those responsible for a problem should be responsible for its solution to the degree they are responsible for the problem but not further. At a minimum, I think the facts just outlined suggest the State must be allowed to present evidence on the economic, environmental, and other effects of its legislation. The Court suggests that our decisions in and Dean foreclose the possibility that a statute attacked on Commerce Clause grounds may be defended by pointing to the statute's effects on intrastate commerce. But our decisions in those cases did not rest on such a broad proposition. Instead, as the passages quoted by the Court make clear, in both and Dean the Court simply rejected the notion that there could be a noneconomic protectionist reason for the bans at issue, because the objects being banned presented no health or environmental risk. See ; see also ; Dean It seems unlikely that the waste here is "wholesome" or "entirely sound and fit." It appears, instead, to be potentially dangerousat least the State has so concluded. Nor does the legislation appear to protect "a major local industry against competition from without the State." Neither Dean nor prohibits a State from adopting health and safety regulations that are directed to legitimate local concerns. See I would remand this case to give the State an opportunity to show that this is such a regulation. 372 We confirmed in that a State's effort to adopt a comprehensive regime to address a major environmental threat or threat to natural resources need not run afoul of the Commerce Clause. In that case we noted that "[o]bviously, a State that imposes severe withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it seeks to prevent the uncontrolled transfer of water out of the State." Substitute "attractive and safe environment" for "water" and one has the present case. Michigan has limited the ability of its own population to despoil the environment and to create health and safety risks by excessive and uncontrolled waste disposal. It does not thereby violate the Commerce Clause when it seeks to prevent this resource from being exportedthe effect if Michigan is forced to accept foreign waste in its disposal facilities. Rather, the "resource has some indicia of a good publicly produced and owned in which a State may favor its own citizens in times of shortage." Of course the State may choose not to do this, and in fact, in this case Michigan does permit counties to decide on an individualized basis whether to accept out-of-county waste. But such a result is not constitutionally mandated. The modern landfill is a technically complex engineering exercise that comes replete with liners, leachate collection systems, and highly regulated operating conditions. As a result, siting a modern landfill can now proceed largely independent of the landfill location's particular geological characteristics. See ; Given this, the laws of economics suggest that landfills will sprout in places *373 where land is cheapest and population densities least. See Alm, "Not in My Backyard:" Facing the Siting Question, 10 EPA J. 9 (1984) (noting the need for each county to accept a share of the overall waste stream equivalent to what it generates so that "less populated counties are protected against becoming the dumping ground of the entire region"). I see no reason in the Commerce Clause, however, that requires cheap-land States to become the waste repositories for their brethren, thereby suffering the many risks that such sites present. The Court today penalizes the State of Michigan for what to all appearances are its good-faith efforts, in turn encouraging each State to ignore the waste problem in the hope that another will pick up the slack. The Court's approach fails to recognize that the latter option isone that isquite real and quite attractive for many Statesand becomes even more so when the intermediate option of solving its own problems, but only its own problems, is eliminated. For the foregoing reasons, I respectfully dissent.
Justice Stevens	dissenting	false	Metropolitan Stevedore Co. v. Rambo	1995-06-12T00:00:00	null	https://www.courtlistener.com/opinion/117949/metropolitan-stevedore-co-v-rambo/	https://www.courtlistener.com/api/rest/v3/clusters/117949/	1,995	1994-071	1	8	1	The statutory provision that the Court construes today was enacted in 1927. Although one 1985 case reached the result the Court adopts today, Fleetwood v. Newport News Shipbuilding & Dry Dock Co., 776 F.2d 1225 (CA4), over 60 years of otherwise consistent precedent accords with respondents' interpretation of the Act. For the reasons stated by Judge Warriner in his dissent in Fleetwood, I would not change this settled view of the law without an appropriate directive from Congress. Judge Warriner correctly observed: "Beginning with the first opinion dealing with the question, handed down in 1933, and continuing without wavering thereafter, the courts have uniformly interpreted 302 the term `change in conditions' in Section 22 of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S. C.§ 922 (1982), to refer exclusively to a change in the physical condition of the employee receiving compensation. This also was `the meaning generally attributed to similar phraseology in state workman's compensation acts' in existence before or shortly after the enactment of the LHWCA in 1927. See Atlantic Coast Shipping Co. v. Golubiewski, 9 F. Supp. 315, 317 (D. Md. 1934). "The majority's nice effort to distinguish this prior case law serves only to highlight the numerous and varied factual situations in which the federal courts have withstood temptation and have strictly adhered to this interpretation. In McCormick Steamship Co. v. United States Employees' Compensation Commission, 64 F.2d 84 (9th Cir. 1933), for example, the Court refused to allow the modification of a compensation order under Section 22 where the employee's earnings were diminished as a result of deteriorating economic conditions. Id., at 85. Conversely, the fact that an employee received higher wages because of better economic conditions in the 1940's was held not to constitute a `change in conditions' so as to allow a reduction in the employee's compensation award. Burley Welding Works v. Law- son, 141 F.2d 964, 966 (5th Cir. 1944). The courts have refused to find a `change in conditions' where the employee was imprisoned in a penitentiary for life, Atlantic Coast Shipping Co. v. Golubiewski, 9 F. Supp. at 316-19, or where the employee was committed to an insane asylum. Bay Ridge Operating Co. v. Lowe, 14 F. Supp. 280, 280-82 (S. D. N. Y. 1936). "In every one of these cases, decided soon after the effective date of the Act, the respective courts explicitly stated and held that the term `change in conditions' in Section 22 refers to the physical condition of the employee 303 receiving compensation. In a more recent case, General Dynamics, Inc. v. Director, Office of Workers' Compensation Programs, 673 F.2d 23 (1st Cir. 1982), the court reiterated this interpretation: `[c]ourts uniformly have held a "change in conditions" means a change in the employee's physical condition, not other conditions.' Id., at 25[, n. 6] (citing Burley Welding Works, Inc. v. Lawson, 141 F. 2d at 966). "Despite fifty years, and more, of precedent, the majority has overturned this established construction of the term `change in conditions' and has revised it to have it apply to changes in economic conditions occurring during the term of compensation. Such a departure from settled prior case law is not warranted absent any indication from the Congress that such a change in the statute is what is desired by the lawmakers. Congress, it should not be necessary to add, indicates its desires by adopting legislation. . . . . . "Fifty years is a long time. And perhaps it can be argued that the Board's, and the courts', and the Congress' erstwhile interpretation of the phrase was inhumane, or unenlightened, or an anachronism, or something else even more disparaging. But it cannot be argued, I submit, that the prior interpretation was not and is not the law." Id., at 1235-1236 (footnotes omitted). For those reasons, I would affirm the judgment of the Court of Appeals. Accordingly, I respectfully dissent.	The statutory provision that the Court construes today was enacted in 1927. Although one 1985 case reached the result the Court adopts today, (CA4), over 60 years of otherwise consistent precedent accords with respondents' interpretation of the Act. For the reasons stated by Judge Warriner in his dissent in Fleetwood, I would not change this settled view of the law without an appropriate directive from Congress. Judge Warriner correctly observed: "Beginning with the first opinion dealing with the question, handed down in 1933, and continuing without wavering thereafter, the courts have uniformly interpreted 302 the term `change in conditions' in Section 22 of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S. 922 to refer exclusively to a change in the physical condition of the employee receiving compensation. This also was `the meaning generally attributed to similar phraseology in state workman's compensation acts' in existence before or shortly after the enactment of the LHWCA in 1927. See Atlantic Coast Shipping "The majority's nice effort to distinguish this prior case law serves only to highlight the numerous and varied factual situations in which the federal courts have withstood temptation and have strictly adhered to this interpretation. In McCormick Steamship for example, the Court refused to allow the modification of a compensation order under Section 22 where the employee's earnings were diminished as a result of deteriorating economic conditions. Conversely, the fact that an employee received higher wages because of better economic conditions in the 1940's was held not to constitute a `change in conditions' so as to allow a reduction in the employee's compensation award. Burley Welding The courts have refused to find a `change in conditions' where the employee was imprisoned in a penitentiary for life, Atlantic Coast Shipping -19, or where the employee was committed to an insane asylum. Bay Ridge Operating "In every one of these cases, decided soon after the effective date of the Act, the respective courts explicitly stated and held that the term `change in conditions' in Section 22 refers to the physical condition of the employee 303 receiving compensation. In a more recent case, General Dynamics, the court reiterated this interpretation: `[c]ourts uniformly have held a "change in conditions" means a change in the employee's physical condition, not other conditions.' [, n. 6] (citing Burley Welding Works, Inc. v. Lawson, 141 F. 2d at ). "Despite fifty years, and more, of precedent, the majority has overturned this established construction of the term `change in conditions' and has revised it to have it apply to changes in economic conditions occurring during the term of compensation. Such a departure from settled prior case law is not warranted absent any indication from the Congress that such a change in the statute is what is desired by the lawmakers. Congress, it should not be necessary to add, indicates its desires by adopting legislation. "Fifty years is a long time. And perhaps it can be argued that the Board's, and the courts', and the Congress' erstwhile interpretation of the phrase was inhumane, or unenlightened, or an anachronism, or something else even more disparaging. But it cannot be argued, I submit, that the prior interpretation was not and is not the law." For those reasons, I would affirm the judgment of the Court of Appeals. Accordingly, I respectfully dissent.
Justice Rehnquist	majority	false	Zelman v. Simmons-Harris	2002-06-27T00:00:00	null	https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/	https://www.courtlistener.com/api/rest/v3/clusters/121168/	2,002	2001-080	1	5	4	The State of Ohio has established a pilot program designed to provide educational choices to families with children who 644 reside in the Cleveland City School District. The question presented is whether this program offends the Establishment Clause of the United States Constitution. We hold that it does not. There are more than 75,000 children enrolled in the Cleveland City School District. The majority of these children are from low-income and minority families. Few of these families enjoy the means to send their children to any school other than an inner-city public school. For more than a generation, however, Cleveland's public schools have been among the worst performing public schools in the Nation. In 1995, a Federal District Court declared a "crisis of magnitude" and placed the entire Cleveland school district under state control. See Reed v. Rhodes, No. 1:73 CV 1300 (ND Ohio, Mar. 3, 1995). Shortly thereafter, the state auditor found that Cleveland's public schools were in the midst of a "crisis that is perhaps unprecedented in the history of American education." Cleveland City School District Performance Audit 2-1 (Mar. 1996). The district had failed to meet any of the 18 state standards for minimal acceptable performance. Only 1 in 10 ninth graders could pass a basic proficiency examination, and students at all levels performed at a dismal rate compared with students in other Ohio public schools. More than two-thirds of high school students either dropped or failed out before graduation. Of those students who managed to reach their senior year, one of every four still failed to graduate. Of those students who did graduate, few could read, write, or compute at levels comparable to their counterparts in other cities. It is against this backdrop that Ohio enacted, among other initiatives, its Pilot Project Scholarship Program, Ohio Rev. Code Ann. §§ 3313.974-3313.979 (Anderson 1999 and Supp. 2000) (program). The program provides financial assistance to families in any Ohio school district that is or has been "under federal court order requiring supervision and operational 645 management of the district by the state superintendent." § 3313.975(A). Cleveland is the only Ohio school district to fall within that category. The program provides two basic kinds of assistance to parents of children in a covered district. First, the program provides tuition aid for students in kindergarten through third grade, expanding each year through eighth grade, to attend a participating public or private school of their parent's choosing. §§ 3313.975(B) and (C)(1). Second, the program provides tutorial aid for students who choose to remain enrolled in public school. § 3313.975(A). The tuition aid portion of the program is designed to provide educational choices to parents who reside in a covered district. Any private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school is located within the boundaries of a covered district and meets statewide educational standards. § 313.976(A)(3). Participating private schools must agree not to discriminate on the basis of race, religion, or ethnic background, or to "advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion." § 3313.976(A)(6). Any public school located in a school district adjacent to the covered district may also participate in the program. § 3313.976(C). Adjacent public schools are eligible to receive a $2,250 tuition grant for each program student accepted in addition to the full amount of per-pupil state funding attributable to each additional student. §§ 3313.976(C), 3317.03(I)(1).[1] All participating schools, 646 whether public or private, are required to accept students in accordance with rules and procedures established by the state superintendent. §§ 3313.977(A)(1)(a)(c). Tuition aid is distributed to parents according to financial need. Families with incomes below 200% of the poverty line are given priority and are eligible to receive 90% of private school tuition up to $2,250. §§ 3313.978(A) and (C)(1). For these lowest income families, participating private schools may not charge a parental copayment greater than $250. § 3313.976(A)(8). For all other families, the program pays 75% of tuition costs, up to $1,875, with no copayment cap. §§ 3313.976(A)(8), 3313.978(A). These families receive tuition aid only if the number of available scholarships exceeds the number of low-income children who choose to participate.[2] Where tuition aid is spent depends solely upon where parents who receive tuition aid choose to enroll their child. If parents choose a private school, checks are made payable to the parents who then endorse the checks over to the chosen school. § 3313.979. The tutorial aid portion of the program provides tutorial assistance through grants to any student in a covered district who chooses to remain in public school. Parents arrange for registered tutors to provide assistance to their children and then submit bills for those services to the State for payment. §§ 3313.976(D), 3313.979(C). Students from low-income families receive 90% of the amount charged for such assistance up to $360. All other students receive 75% of that amount. § 3313.978(B). The number of tutorial assistance grants offered to students in a covered district must equal the number of tuition aid scholarships provided to students 647 enrolled at participating private or adjacent public schools. § 3313.975(A). The program has been in operation within the Cleveland City School District since the 1996-1997 school year. In the 1999-2000 school year, 56 private schools participated in the program, 46 (or 82%) of which had a religious affiliation. None of the public schools in districts adjacent to Cleveland have elected to participate. More than 3,700 students participated in the scholarship program, most of whom (96%) enrolled in religiously affiliated schools. Sixty percent of these students were from families at or below the poverty line. In the 1998-1999 school year, approximately 1,400 Cleveland public school students received tutorial aid. This number was expected to double during the 1999-2000 school year. The program is part of a broader undertaking by the State to enhance the educational options of Cleveland's schoolchildren in response to the 1995 takeover. That undertaking includes programs governing community and magnet schools. Community schools are funded under state law but are run by their own school boards, not by local school districts. §§ 3314.01(B), 3314.04. These schools enjoy academic independence to hire their own teachers and to determine their own curriculum. They can have no religious affiliation and are required to accept students by lottery. During the 1999-2000 school year, there were 10 startup community schools in the Cleveland City School District with more than 1,900 students enrolled. For each child enrolled in a community school, the school receives state funding of $4,518, twice the funding a participating program school may receive. Magnet schools are public schools operated by a local school board that emphasize a particular subject area, teaching method, or service to students. For each student enrolled in a magnet school, the school district receives $7,746, including state funding of $4,167, the same amount received 648 per student enrolled at a traditional public school. As of 1999, parents in Cleveland were able to choose from among 23 magnet schools, which together enrolled more than 13,000 students in kindergarten through eighth grade. These schools provide specialized teaching methods, such as Montessori, or a particularized curriculum focus, such as foreign language, computers, or the arts. In 1996, respondents, a group of Ohio taxpayers, challenged the Ohio program in state court on state and federal grounds. The Ohio Supreme Court rejected respondents' federal claims, but held that the enactment of the program violated certain procedural requirements of the Ohio Constitution. Simmons-Harris v. Goff, 86 Ohio St. 3d 1, 8-9, 711 N.E.2d 203, 211 (1999). The state legislature immediately cured this defect, leaving the basic provisions discussed above intact. In July 1999, respondents filed this action in United States District Court, seeking to enjoin the reenacted program on the ground that it violated the Establishment Clause of the United States Constitution. In August 1999, the District Court issued a preliminary injunction barring further implementation of the program, 54 F. Supp. 2d 725 (ND Ohio), which we stayed pending review by the Court of Appeals, 528 U.S. 983 (1999). In December 1999, the District Court granted summary judgment for respondents. 72 F. Supp. 2d 834. In December 2000, a divided panel of the Court of Appeals affirmed the judgment of the District Court, finding that the program had the "primary effect" of advancing religion in violation of the Establishment Clause. 234 F.3d 945 (CA6). The Court of Appeals stayed its mandate pending disposition in this Court. App. to Pet. for Cert. in No. 00-1779, p. 151. We granted certiorari, 533 U.S. 976 (2001), and now reverse the Court of Appeals. The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the "purpose" 649 or "effect" of advancing or inhibiting religion. Agostini v. Felton, 521 U.S. 203, 222-223 (1997) ("[W]e continue to ask whether the government acted with the purpose of advancing or inhibiting religion [and] whether the aid has the `effect' of advancing or inhibiting religion" (citations omitted)). There is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system. Thus, the question presented is whether the Ohio program nonetheless has the forbidden "effect" of advancing or inhibiting religion. To answer that question, our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools, Mitchell v. Helms, 530 U.S. 793, 810-814 (2000) (plurality opinion); id., at 841-844 (O'Connor, J., concurring in judgment); Agostini, supra, at 225-227; Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 842 (1995) (collecting cases), and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals, Mueller v. Allen, 463 U.S. 388 (1983); Witters v. Washington Dept. of Servs. for Blind, 474 U.S. 481 (1986); Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993). While our jurisprudence with respect to the constitutionality of direct aid programs has "changed significantly" over the past two decades, Agostini, supra, at 236, our jurisprudence with respect to true private choice programs has remained consistent and unbroken. Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges. In Mueller, we rejected an Establishment Clause challenge to a Minnesota program authorizing tax deductions for various educational expenses, including private school tuition 650 costs, even though the great majority of the program's beneficiaries (96%) were parents of children in religious schools. We began by focusing on the class of beneficiaries, finding that because the class included "all parents," including parents with "children [who] attend nonsectarian private schools or sectarian private schools," 463 U.S., at 397 (emphasis in original), the program was "not readily subject to challenge under the Establishment Clause," id., at 399 (citing Widmar v. Vincent, 454 U.S. 263, 274 (1981) ("The provision of benefits to so broad a spectrum of groups is an important index of secular effect")). Then, viewing the program as a whole, we emphasized the principle of private choice, noting that public funds were made available to religious schools "only as a result of numerous, private choices of individual parents of school-age children." 463 U.S., at 399-400. This, we said, ensured that "no `imprimatur of state approval' can be deemed to have been conferred on any particular religion, or on religion generally." Id., at 399 (quoting Widmar, supra, at 274)). We thus found it irrelevant to the constitutional inquiry that the vast majority of beneficiaries were parents of children in religious schools, saying: "We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law." 463 U.S., at 401. That the program was one of true private choice, with no evidence that the State deliberately skewed incentives toward religious schools, was sufficient for the program to survive scrutiny under the Establishment Clause. In Witters, we used identical reasoning to reject an Establishment Clause challenge to a vocational scholarship program that provided tuition aid to a student studying at a religious institution to become a pastor. Looking at the program as a whole, we observed that "[a]ny aid . . .that ultimately 651 flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients." 474 U.S., at 487. We further remarked that, as in Mueller, "[the] program is made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited." 474 U.S., at 487 (internal quotation marks omitted). In light of these factors, we held that the program was not inconsistent with the Establishment Clause. Id., at 488-489. Five Members of the Court, in separate opinions, emphasized the general rule from Mueller that the amount of government aid channeled to religious institutions by individual aid recipients was not relevant to the constitutional inquiry. 474 U.S., at 490-491 (Powell, J., joined by Burger, C. J., and Rehnquist, J.,concurring) (citing Mueller, supra, at 398 399); 474 U.S., at 493 (O'Connor, J., concurring in part and concurring in judgment); id., at 490 (White, J., concurring). Our holding thus rested not on whether few or many recipients chose to expend government aid at a religious school but, rather, on whether recipients generally were empowered to direct the aid to schools or institutions of their own choosing. Finally, in Zobrest, we applied Mueller and Witters to reject an Establishment Clause challenge to a federal program that permitted sign-language interpreters to assist deaf children enrolled in religious schools. Reviewing our earlier decisions, we stated that "government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge." 509 U.S., at 8. Looking once again to the challenged program as a whole, we observed that the program "distributes benefits neutrally to any child qualifying as `disabled.' " Id., at 10. Its "primary beneficiaries," we said, were "disabled children, not sectarian schools." Id., at 12. 652 We further observed that "[b]y according parents freedom to select a school of their choice, the statute ensures that a government-paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents." Id., at 10. Our focus again was on neutrality and the principle of private choice, not on the number of program beneficiaries attending religious schools. Id., at 10-11. See, e. g., Agostini, 521 U. S., at 229 ("Zobrest did not turn on the fact that James Zobrest had, at the time of litigation, been the only child using a publicly funded sign-language interpreter to attend a parochial school"). Because the program ensured that parents were the ones to select a religious school as the best learning environment for their handicapped child, the circuit between government and religion was broken, and the Establishment Clause was not implicated. Mueller, Witters, and Zobrest thus make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits. As a plurality of this Court recently observed: "[I]f numerous private choices, rather than the single choice of a government, determine the distribution of aid, pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special 653 favors that might lead to a religious establishment." Mitchell, 530 U. S., at 810. See also id., at 843 (O'Connor, J., concurring in judgment) ("[W]hen government aid supports a school's religious mission only because of independent decisions made by numerous individuals to guide their secular aid to that school, `no reasonable observer is likely to draw from the facts . . . an inference that the State itself is endorsing a religious practice or belief' " (quoting Witters, 474 U. S., at 493 (O'Connor, J., concurring in part and concurring in judgment))). It is precisely for these reasons that we have never found a program of true private choice to offend the Establishment Clause. We believe that the program challenged here is a program of true private choice, consistent with Mueller, Witters, and Zobrest, and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion, i. e., any parent of a school-age child who resides in the Cleveland City School District. The program permits the participation of all schools within the district, religious or nonreligious. Adjacent public schools also may participate and have a financial incentive to do so. Program benefits are available to participating families on neutral terms, with no reference to religion. The only preference stated anywhere in the program is a preference for low-income families, who receive greater assistance and are given priority for admission at participating schools. There are no "financial incentive[s]" that "ske[w]" the program toward religious schools. Witters, supra, at 487-488. Such incentives "[are] not present . . . where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious 654 and secular beneficiaries on a nondiscriminatory basis." Agostini, supra, at 231. The program here in fact creates financial dis incentives for religious schools, with private schools receiving only half the government assistance given to community schools and one-third the assistance given to magnet schools. Adjacent public schools, should any choose to accept program students, are also eligible to receive two to three times the state funding of a private religious school. Families too have a financial disincentive to choose a private religious school over other schools. Parents that choose to participate in the scholarship program and then to enroll their children in a private school (religious or nonreligious) must copay a portion of the school's tuition. Families that choose a community school, magnet school, or traditional public school pay nothing. Although such features of the program are not necessary to its constitutionality, they clearly dispel the claim that the program "creates . . . financial incentive[s] for parents to choose a sectarian school." Zobrest, 509 U. S., at 10.[3] Respondents suggest that even without a financial incentive for parents to choose a religious school, the program creates a "public perception that the State is endorsing religious practices and beliefs." Brief for Respondents Simmons-Harris et al. 37-38. But we have repeatedly recognized 655 that no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement. Mueller, 463 U. S., at 399; Witters, supra, at 488-489; Zobrest, supra, at 10-11; e. g., Mitchell, supra, at 842-843 (O'Connor, J., concurring in judgment) ("In terms of public perception, a government program of direct aid to religious schools . . . differs meaningfully from the government distributing aid directly to individual students who, in turn, decide to use the aid at the same religious schools"). The argument is particularly misplaced here since "the reasonable observer in the endorsement inquiry must be deemed aware" of the "history and context" underlying a challenged program. Good News Club v. Milford Central School, 533 U.S. 98, 119 (2001) (internal quotation marks omitted). See also Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (O'Connor, J., concurring in part and concurring in judgment). Any objective observer familiar with the full history and context of the Ohio program would reasonably view it as one aspect of a broader undertaking to assist poor children in failed schools, not as an endorsement of religious schooling in general. There also is no evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options for their school-age children. Cleveland schoolchildren enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing 656 parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school. Justice Souter speculates that because more private religious schools currently participate in the program, the program itself must somehow discourage the participation of private nonreligious schools. Post, at 703-705 (dissenting opinion).[4] But Cleveland's preponderance of religiously affiliated 657 private schools certainly did not arise as a result of the program; it is a phenomenon common to many American cities. See U. S. Dept. of Ed., National Center for Education Statistics, Private School Universe Survey: 1999-2000, pp. 2-4 (NCES 2001-330, 2001) (hereinafter Private School Universe Survey) (cited in Brief for United States as Amicus Curiae 24). Indeed, by all accounts the program has captured a remarkable cross-section of private schools, religious and nonreligious. It is true that 82% of Cleveland's participating private schools are religious schools, but it is also true that 81% of private schools in Ohio are religious schools. See Brief for State of Florida et al. as Amici Curiae 16 (citing Private School Universe Survey). To attribute constitutional significance to this figure, moreover, would lead to the absurd result that a neutral school-choice program might be permissible in some parts of Ohio, such as Columbus, where a lower percentage of private schools are religious schools, see Ohio Educational Directory (Lodging of Respondents Gatton et al., available in Clerk of Court's case file), and Reply Brief for Petitioners in No. 00-1751, p. 12, n. 1, but not in inner-city Cleveland, where Ohio has deemed such programs most sorely needed, but where the preponderance of religious schools happens to be greater. Cf. Brief for State of Florida et al. as Amici Curiae 17 ("[T]he percentages of sectarian to nonsectarian private schools within Florida's 67 school districts . . . vary from zero to 100 percent"). Likewise, an identical private choice program might be constitutional in some States, such as Maine or Utah, where less 658 than 45% of private schools are religious schools, but not in other States, such as Nebraska or Kansas, where over 90% of private schools are religious schools. Id., at 15-16 (citing Private School Universe Survey). Respondents and Justice Souter claim that even if we do not focus on the number of participating schools that are religious schools, we should attach constitutional significance to the fact that 96% of scholarship recipients have enrolled in religious schools. They claim that this alone proves parents lack genuine choice, even if no parent has ever said so. We need not consider this argument in detail, since it was flatly rejected in Mueller, where we found it irrelevant that 96% of parents taking deductions for tuition expenses paid tuition at religious schools. Indeed, we have recently found it irrelevant even to the constitutionality of a direct aid program that a vast majority of program benefits went to religious schools. See Agostini, 521 U. S., at 229 ("Nor are we willing to conclude that the constitutionality of an aid program depends on the number of sectarian school students who happen to receive the otherwise neutral aid" (citing Mueller, 463 U. S., at 401)); see also Mitchell, 530 U. S., at 812, n. 6 (plurality opinion) ("[Agostini] held that the proportion of aid benefiting students at religious schools pursuant to a neutral program involving private choices was irrelevant to the constitutional inquiry"); id., at 848 (O'Connor, J., concurring in judgment) (same) (quoting Agostini, supra, at 229). The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school. As we said in Mueller, "[s]uch an approach would scarcely provide the certainty that this field stands in need of, nor can we perceive principled standards by which such statistical evidence might be evaluated." 463 U.S., at 401. 659 This point is aptly illustrated here. The 96% figure upon which respondents and Justice Souter rely discounts entirely (1) the more than 1,900 Cleveland children enrolled in alternative community schools, (2) the more than 13,000 children enrolled in alternative magnet schools, and (3) the more than 1,400 children enrolled in traditional public schools with tutorial assistance. See supra, at 647-648. Including some or all of these children in the denominator of children enrolled in nontraditional schools during the 1999 2000 school year drops the percentage enrolled in religious schools from 96% to under 20%. See also J. Greene, The Racial, Economic, and Religious Context of Parental Choice in Cleveland 11, Table 4 (Oct. 8, 1999), App. 217a (reporting that only 16.5% of nontraditional schoolchildren in Cleveland choose religious schools). The 96% figure also represents but a snapshot of one particular school year. In the 1997 1998 school year, by contrast, only 78% of scholarship recipients attended religious schools. See App. to Pet. for Cert. in No. 00-1751, p. 5a. The difference was attributable to two private nonreligious schools that had accepted 15% of all scholarship students electing instead to register as community schools, in light of larger per-pupil funding for community schools and the uncertain future of the scholarship program generated by this litigation. See App. 59a62a, 209a, 223a227a.[5] Many of the students enrolled in these schools 660 as scholarship students remained enrolled as community school students, id., at 145a146a, thus demonstrating the arbitrariness of counting one type of school but not the other to assess primary effect, e. g., Ohio Rev. Code Ann. § 3314.11 (Anderson 1999) (establishing a single "office of school options" to "provide services that facilitate the management of the community schools program and the pilot project scholarship program"). In spite of repeated questioning from the Court at oral argument, respondents offered no convincing justification for their approach, which relies entirely on such arbitrary classifications. Tr. of Oral Arg. 52-60.[6] 661 Respondents finally claim that we should look to Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973), to decide these cases. We disagree for two reasons. First, the program in Nyquist was quite different from the program challenged here. Nyquist involved a New York program that gave a package of benefits exclusively to private schools and the parents of private school enrollees. Although the program was enacted for ostensibly secular purposes, id., at 773-774, we found that its "function" was "unmistakably to provide desired financial support for nonpublic, sectarian institutions," id., at 783 (emphasis added). Its genesis, we said, was that private religious schools faced "increasingly grave fiscal problems." Id., at 795. The program thus provided direct money grants to religious schools. Id., at 762-764. It provided tax benefits "unrelated to the amount of money actually expended by any parent on tuition," ensuring a windfall to parents of children in religious schools. Id., at 790. It similarly provided tuition reimbursements designed explicitly to "offe[r] . . . an incentive to parents to send their children to sectarian schools." Id., at 786. Indeed, the program flatly prohibited the participation of any public school, or parent of any public school enrollee. Id., at 763-765. Ohio's program shares none of these features. Second, were there any doubt that the program challenged in Nyquist is far removed from the program challenged here, we expressly reserved judgment with respect to "a case involving some form of public assistance (e. g., scholarships) made available generally without regard to the sectariannonsectarian, or public-nonpublic nature of the institution benefited." Id., at 782-783, n. 38. That, of course, is the very question now before us, and it has since been answered, first in Mueller, 463 U. S., at 398-399 ("[A] program . . . that neutrally provides state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establishment Clause" (citing Nyquist, supra, at 782-783, n. 38)), 662 then in Witters, 474 U. S., at 487 ("Washington's program is `made available generally without regard to the sectariannonsectarian, or public-nonpublic nature of the institution benefited' " (quoting Nyquist, supra, at 782-783, n. 38)), and again in Zobrest, 509 U. S., at 12-13 ("[T]he function of the [program] is hardly `to provide desired financial support for nonpublic, sectarian institutions' " (quoting Nyquist, supra, at 782-783, n. 38)). To the extent the scope of Nyquist has remained an open question in light of these later decisions, we now hold that Nyquist does not govern neutral educational assistance programs that, like the program here, offer aid directly to a broad class of individual recipients defined without regard to religion.[7] In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of 663 decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause. The judgment of the Court of Appeals is reversed. It is so ordered.	The State of Ohio has established a pilot program designed to provide educational choices to families with children who 644 reside in the Cleveland City School District. The question presented is whether this program offends the Establishment Clause of the United States Constitution. We hold that it does not. There are more than 75,000 children enrolled in the Cleveland City School District. The majority of these children are from low-income and minority families. Few of these families enjoy the means to send their children to any school other than an inner-city public school. For more than a generation, however, Cleveland's public schools have been among the worst performing public schools in the Nation. In 1995, a Federal District Court declared a "crisis of magnitude" and placed the entire Cleveland school district under state control. See Reed v. Rhodes, No. 1:73 CV 1300 Shortly thereafter, the state auditor found that Cleveland's public schools were in the midst of a "crisis that is perhaps unprecedented in the history of American education." Cleveland City School District Performance Audit 2-1 (Mar. 1996). The district had failed to meet any of the 18 state standards for minimal acceptable performance. Only 1 in 10 ninth graders could pass a basic proficiency examination, and students at all levels performed at a dismal rate compared with students in other Ohio public schools. More than two-thirds of high school students either dropped or failed out before graduation. Of those students who managed to reach their senior year, one of every four still failed to graduate. Of those students who did graduate, few could read, write, or compute at levels comparable to their counterparts in other cities. It is against this backdrop that Ohio enacted, among other initiatives, its Pilot Project Scholarship Program, (program). The program provides financial assistance to families in any Ohio school district that is or has been "under federal court order requiring supervision and operational 645 management of the district by the state superintendent." 3313.975(A). Cleveland is the only Ohio school district to fall within that category. The program provides two basic kinds of assistance to parents of children in a covered district. First, the program provides tuition aid for students in kindergarten through third grade, expanding each year through eighth grade, to attend a participating public or private school of their parent's choosing. 3313.975(B) and (C)(1). Second, the program provides tutorial aid for students who choose to remain enrolled in public school. 3313.975(A). The tuition aid portion of the program is designed to provide educational choices to parents who reside in a covered district. Any private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school is located within the boundaries of a covered district and meets statewide educational standards. 313.976(A)(3). Participating private schools must agree not to discriminate on the basis of race, religion, or ethnic background, or to "advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion." 3313.976(A)(6). Any public school located in a school district adjacent to the covered district may also participate in the program. 3313.976(C). Adjacent public schools are eligible to receive a $2,250 tuition grant for each program student accepted in addition to the full amount of per-pupil state funding attributable to each additional student. 3313.976(C), 3317.03(I)(1).[1] All participating schools, 646 whether public or private, are required to accept students in accordance with rules and procedures established by the state superintendent. 3313.977(A)(1)(a)(c). Tuition aid is distributed to parents according to financial need. Families with incomes below 200% of the poverty line are given priority and are eligible to receive 90% of private school tuition up to $2,250. 3313.978(A) and (C)(1). For these lowest income families, participating private schools may not charge a parental copayment greater than $250. 3313.976(A)(8). For all other families, the program pays 75% of tuition costs, up to $1,875, with no copayment cap. 3313.976(A)(8), 3313.978(A). These families receive tuition aid only if the number of available scholarships exceeds the number of low-income children who choose to participate.[2] Where tuition aid is spent depends solely upon where parents who receive tuition aid choose to enroll their child. If parents choose a private school, checks are made payable to the parents who then endorse the checks over to the chosen school. 3313.979. The tutorial aid portion of the program provides tutorial assistance through grants to any student in a covered district who chooses to remain in public school. Parents arrange for registered tutors to provide assistance to their children and then submit bills for those services to the State for payment. 3313.976(D), 3313.979(C). Students from low-income families receive 90% of the amount charged for such assistance up to $360. All other students receive 75% of that amount. 3313.978(B). The number of tutorial assistance grants offered to students in a covered district must equal the number of tuition aid scholarships provided to students 647 enrolled at participating private or adjacent public schools. 3313.975(A). The program has been in operation within the Cleveland City School District since the 1996-1997 school year. In the -2000 school year, 56 private schools participated in the program, 46 (or 82%) of which had a religious affiliation. None of the public schools in districts adjacent to Cleveland have elected to participate. More than 3,700 students participated in the scholarship program, most of whom (96%) enrolled in religiously affiliated schools. Sixty percent of these students were from families at or below the poverty line. In the 1998- school year, approximately 1,400 Cleveland public school students received tutorial aid. This number was expected to double during the -2000 school year. The program is part of a broader undertaking by the State to enhance the educational options of Cleveland's schoolchildren in response to the 1995 takeover. That undertaking includes programs governing community and magnet schools. Community schools are funded under state law but are run by their own school boards, not by local school districts. 3314.01(B), 3314.04. These schools enjoy academic independence to hire their own teachers and to determine their own curriculum. They can have no religious affiliation and are required to accept students by lottery. During the -2000 school year, there were 10 startup community schools in the Cleveland City School District with more than 1,900 students enrolled. For each child enrolled in a community school, the school receives state funding of $4,518, twice the funding a participating program school may receive. Magnet schools are public schools operated by a local school board that emphasize a particular subject area, teaching method, or service to students. For each student enrolled in a magnet school, the school district receives $7,746, including state funding of $4,167, the same amount received 648 per student enrolled at a traditional public school. As of parents in Cleveland were able to choose from among 23 magnet schools, which together enrolled more than 13,000 students in kindergarten through eighth grade. These schools provide specialized teaching methods, such as Montessori, or a particularized curriculum focus, such as foreign language, computers, or the arts. In 1996, respondents, a group of Ohio taxpayers, challenged the Ohio program in state court on state and federal grounds. The Ohio Supreme Court rejected respondents' federal claims, but held that the enactment of the program violated certain procedural requirements of the Ohio Constitution. The state legislature immediately cured this defect, leaving the basic provisions discussed above intact. In July respondents filed this action in United States District Court, seeking to enjoin the reenacted program on the ground that it violated the Establishment Clause of the United States Constitution. In August the District Court issued a preliminary injunction barring further implementation of the program, (ND Ohio), which we stayed pending review by the Court of Appeals, In December the District Court granted summary judgment for respondents. In December 2000, a divided panel of the Court of Appeals affirmed the judgment of the District Court, finding that the program had the "primary effect" of advancing religion in violation of the Establishment Clause. (CA6). The Court of Appeals stayed its mandate pending disposition in this Court. App. to Pet. for Cert. in No. 00-1779, p. 151. We granted certiorari, and now reverse the Court of Appeals. The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the "purpose" 649 or "effect" of advancing or inhibiting religion. There is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system. Thus, the question presented is whether the Ohio program nonetheless has the forbidden "effect" of advancing or inhibiting religion. To answer that question, our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools, ; ; ; and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals, ; ; While our jurisprudence with respect to the constitutionality of direct aid programs has "changed significantly" over the past two decades, our jurisprudence with respect to true private choice programs has remained consistent and unbroken. Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges. In we rejected an Establishment Clause challenge to a Minnesota program authorizing tax deductions for various educational expenses, including private school tuition 650 costs, even though the great majority of the program's beneficiaries (96%) were parents of children in religious schools. We began by focusing on the class of beneficiaries, finding that because the class included "all parents," including parents with "children [who] attend nonsectarian private schools or sectarian private schools," the program was "not readily subject to challenge under the Establishment Clause," ). Then, viewing the program as a whole, we emphasized the principle of private choice, noting that public funds were made available to religious schools "only as a result of numerous, private choices of individual parents of school-age children." -400. This, we said, ensured that "no `imprimatur of state approval' can be deemed to have been conferred on any particular religion, or on religion generally." (quoting at )). We thus found it irrelevant to the constitutional inquiry that the vast majority of beneficiaries were parents of children in religious schools, saying: "We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law." That the program was one of true private choice, with no evidence that the State deliberately skewed incentives toward religious schools, was sufficient for the program to survive scrutiny under the Establishment Clause. In we used identical reasoning to reject an Establishment Clause challenge to a vocational scholarship program that provided tuition aid to a student studying at a religious institution to become a pastor. Looking at the program as a whole, we observed that "[a]ny aidthat ultimately 651 flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients." We further remarked that, as in "[the] program is made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited." In light of these factors, we held that the program was not inconsistent with the Establishment Clause. Five Members of the Court, in separate opinions, emphasized the general rule from that the amount of government aid channeled to religious institutions by individual aid recipients was not relevant to the constitutional -491 (citing at 398 399); ; Our holding thus rested not on whether few or many recipients chose to expend government aid at a religious school but, rather, on whether recipients generally were empowered to direct the aid to schools or institutions of their own choosing. Finally, in we applied and to reject an Establishment Clause challenge to a federal program that permitted sign-language interpreters to assist deaf children enrolled in religious schools. Reviewing our earlier decisions, we stated that "government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge." Looking once again to the challenged program as a whole, we observed that the program "distributes benefits neutrally to any child qualifying as `disabled.' " Its "primary beneficiaries," we said, were "disabled children, not sectarian schools." 652 We further observed that "[b]y according parents freedom to select a school of their choice, the statute ensures that a government-paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents." Our focus again was on neutrality and the principle of private choice, not on the number of program beneficiaries attending religious schools. -11. See, e. g., Because the program ensured that parents were the ones to select a religious school as the best learning environment for their handicapped child, the circuit between government and religion was broken, and the Establishment Clause was not implicated. and thus make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits. As a plurality of this Court recently observed: "[I]f numerous private choices, rather than the single choice of a government, determine the distribution of aid, pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special 653 favors that might lead to a religious establishment." See also ("[W]hen government aid supports a school's religious mission only because of independent decisions made by numerous individuals to guide their secular aid to that school, `no reasonable observer is likely to draw from the facts an inference that the State itself is endorsing a religious practice or belief' " (quoting )). It is precisely for these reasons that we have never found a program of true private choice to offend the Establishment Clause. We believe that the program challenged here is a program of true private choice, consistent with and and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion, i. e., any parent of a school-age child who resides in the Cleveland City School District. The program permits the participation of all schools within the district, religious or nonreligious. Adjacent public schools also may participate and have a financial incentive to do so. Program benefits are available to participating families on neutral terms, with no reference to religion. The only preference stated anywhere in the program is a preference for low-income families, who receive greater assistance and are given priority for admission at participating schools. There are no "financial incentive[s]" that "ske[w]" the program toward religious schools. Such incentives "[are] not present where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious 654 and secular beneficiaries on a nondiscriminatory basis." The program here in fact creates financial dis incentives for religious schools, with private schools receiving only half the government assistance given to community schools and one-third the assistance given to magnet schools. Adjacent public schools, should any choose to accept program students, are also eligible to receive two to three times the state funding of a private religious school. Families too have a financial disincentive to choose a private religious school over other schools. Parents that choose to participate in the scholarship program and then to enroll their children in a private school (religious or nonreligious) must copay a portion of the school's tuition. Families that choose a community school, magnet school, or traditional public school pay nothing. Although such features of the program are not necessary to its constitutionality, they clearly dispel the claim that the program "creates financial incentive[s] for parents to choose a sectarian school." 509 U. S.,[3] Respondents suggest that even without a financial incentive for parents to choose a religious school, the program creates a "public perception that the State is endorsing religious practices and beliefs." Brief for Respondents Simmons-Harris et al. 37-38. But we have repeatedly recognized 655 that no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement. 463 U. S., ; ; -11; e. g., at -843 ("In terms of public perception, a government program of direct aid to religious schools differs meaningfully from the government distributing aid directly to individual students who, in turn, decide to use the aid at the same religious schools"). The argument is particularly misplaced here since "the reasonable observer in the endorsement inquiry must be deemed aware" of the "history and context" underlying a challenged program. Good News See also Capitol Square Review and Advisory Any objective observer familiar with the full history and context of the Ohio program would reasonably view it as one aspect of a broader undertaking to assist poor children in failed schools, not as an endorsement of religious schooling in general. There also is no evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options for their school-age children. Cleveland schoolchildren enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing 656 parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school. Justice Souter speculates that because more private religious schools currently participate in the program, the program itself must somehow discourage the participation of private nonreligious schools. Post, at 703-705 (dissenting opinion).[4] But Cleveland's preponderance of religiously affiliated 657 private schools certainly did not arise as a result of the program; it is a phenomenon common to many American cities. See U. S. Dept. of Ed., National Center for Education Statistics, Private School Universe Survey: -2000, pp. 2-4 (hereinafter Private School Universe Survey) (cited in Brief for United States as Amicus Curiae 24). Indeed, by all accounts the program has captured a remarkable cross-section of private schools, religious and nonreligious. It is true that 82% of Cleveland's participating private schools are religious schools, but it is also true that 81% of private schools in Ohio are religious schools. See Brief for State of Florida et al. as Amici Curiae 16 (citing Private School Universe Survey). To attribute constitutional significance to this figure, moreover, would lead to the absurd result that a neutral school-choice program might be permissible in some parts of Ohio, such as Columbus, where a lower percentage of private schools are religious schools, see Ohio Educational Directory (Lodging of Respondents Gatton et al., available in Clerk of Court's case file), and Reply Brief for Petitioners in No. 00-1751, p. 12, n. 1, but not in inner-city Cleveland, where Ohio has deemed such programs most sorely needed, but where the preponderance of religious schools happens to be greater. Cf. Brief for State of Florida et al. as Amici Curiae 17 ("[T]he percentages of sectarian to nonsectarian private schools within Florida's 67 school districts vary from zero to 100 percent"). Likewise, an identical private choice program might be constitutional in some States, such as Maine or Utah, where less 658 than 45% of private schools are religious schools, but not in other States, such as Nebraska or Kansas, where over 90% of private schools are religious schools. at 15-16 (citing Private School Universe Survey). Respondents and Justice Souter claim that even if we do not focus on the number of participating schools that are religious schools, we should attach constitutional significance to the fact that 96% of scholarship recipients have enrolled in religious schools. They claim that this alone proves parents lack genuine choice, even if no parent has ever said so. We need not consider this argument in detail, since it was flatly rejected in where we found it irrelevant that 96% of parents taking deductions for tuition expenses paid tuition at religious schools. Indeed, we have recently found it irrelevant even to the constitutionality of a direct aid program that a vast majority of program benefits went to religious schools. See ("Nor are we willing to conclude that the constitutionality of an aid program depends on the number of sectarian school students who happen to receive the otherwise neutral aid" (citing )); see also n. 6 ("[] held that the proportion of aid benefiting students at religious schools pursuant to a neutral program involving private choices was irrelevant to the constitutional inquiry"); (same) (quoting ). The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school. As we said in "[s]uch an approach would scarcely provide the certainty that this field stands in need of, nor can we perceive principled standards by which such statistical evidence might be evaluated." 659 This point is aptly illustrated here. The 96% figure upon which respondents and Justice Souter rely discounts entirely (1) the more than 1,900 Cleveland children enrolled in alternative community schools, (2) the more than 13,000 children enrolled in alternative magnet schools, and (3) the more than 1,400 children enrolled in traditional public schools with tutorial assistance. See Including some or all of these children in the denominator of children enrolled in nontraditional schools during the 2000 school year drops the percentage enrolled in religious schools from 96% to under 20%. See also J. Greene, The Racial, Economic, and Religious Context of Parental Choice in Cleveland 11, Table 4 App. 217a (reporting that only 16.5% of nontraditional schoolchildren in Cleveland choose religious schools). The 96% figure also represents but a snapshot of one particular school year. In the 1997 1998 school year, by contrast, only 78% of scholarship recipients attended religious schools. See App. to Pet. for Cert. in No. 00-1751, p. 5a. The difference was attributable to two private nonreligious schools that had accepted 15% of all scholarship students electing instead to register as community schools, in light of larger per-pupil funding for community schools and the uncertain future of the scholarship program generated by this litigation. See App. 59a62a, 209a, 223a227a.[5] Many of the students enrolled in these schools 660 as scholarship students remained enrolled as community school students, at 145a146a, thus demonstrating the arbitrariness of counting one type of school but not the other to assess primary effect, e. g., Ohio Rev. Code Ann. 3314.11 In spite of repeated questioning from the Court at oral argument, respondents offered no convincing justification for their approach, which relies entirely on such arbitrary classifications. Tr. of Oral Arg. 52-60.[6] 661 Respondents finally claim that we should look to Committee for Public Ed. & Religious to decide these cases. We disagree for two reasons. First, the program in was quite different from the program challenged here. involved a New York program that gave a package of benefits exclusively to private schools and the parents of private school enrollees. Although the program was enacted for ostensibly secular purposes, we found that its "function" was "unmistakably to provide desired financial support for nonpublic, sectarian institutions," Its genesis, we said, was that private religious schools faced "increasingly grave fiscal problems." The program thus provided direct money grants to religious schools. It provided tax benefits "unrelated to the amount of money actually expended by any parent on tuition," ensuring a windfall to parents of children in religious schools. It similarly provided tuition reimbursements designed explicitly to "offe[r] an incentive to parents to send their children to sectarian schools." Indeed, the program flatly prohibited the participation of any public school, or parent of any public school enrollee. Ohio's program shares none of these features. Second, were there any doubt that the program challenged in is far removed from the program challenged here, we expressly reserved judgment with respect to "a case involving some form of public assistance (e. g., scholarships) made available generally without regard to the sectariannonsectarian, or public-nonpublic nature of the institution benefited." That, of course, is the very question now before us, and it has since been answered, first in -399 ("[A] program that neutrally provides state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establishment Clause" (citing )), 662 then in ("Washington's program is `made available generally without regard to the sectariannonsectarian, or public-nonpublic nature of the institution benefited' " (quoting )), and again in 509 U. S., -13 ("[T]he function of the [program] is hardly `to provide desired financial support for nonpublic, sectarian institutions' " (quoting )). To the extent the scope of has remained an open question in light of these later decisions, we now hold that does not govern neutral educational assistance programs that, like the program here, offer aid directly to a broad class of individual recipients defined without regard to religion.[7] In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of 663 decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause. The judgment of the Court of Appeals is reversed. It is so ordered.
Justice Kennedy	majority	false	Hernandez v. New York	1991-05-28T00:00:00	null	https://www.courtlistener.com/opinion/112601/hernandez-v-new-york/	https://www.courtlistener.com/api/rest/v3/clusters/112601/	1,991	1990-085	1	6	3	Petitioner Dionisio Hernandez asks us to review the New York state courts' rejection of his claim that the prosecutor in his criminal trial exercised peremptory challenges to exclude Latinos from the jury by reason of their ethnicity. If true, the prosecutor's discriminatory use of peremptory strikes would violate the Equal Protection Clause as interpreted by our decision in Batson v. Kentucky, 476 U.S. 79 (1986). We must determine whether the prosecutor offered a race-neutral basis for challenging Latino potential jurors and, if so, whether the state courts' decision to accept the prosecutor's explanation should be sustained. Petitioner and respondent both use the term "Latino" in their briefs to this Court. The amicus brief employs instead the term "Hispanic," and the parties referred to the excluded jurors by that term in the trial court. Both words appear in the state-court opinions. No attempt has been made at a distinction by the parties and we make no attempt to distinguish the terms in this opinion. We will refer to the excluded venirepersons as Latinos in deference to the terminology preferred by the parties before the Court. I The case comes to us on direct review of petitioner's convictions on two counts of attempted murder and two counts of criminal possession of a weapon. On a Brooklyn street, petitioner fired several shots at Charlene Calloway and her mother, Ada Saline. Calloway suffered three gunshot wounds. Petitioner missed Saline and instead hit two men in a nearby restaurant. The victims survived the incident. The trial was held in the New York Supreme Court, Kings County. We concern ourselves here only with the jury selection process and the proper application of Batson, which had been handed down before the trial took place. After 63 potential jurors had been questioned and 9 had been empaneled, 356 defense counsel objected that the prosecutor had used four peremptory challenges to exclude Latino potential jurors. Two of the Latino venirepersons challenged by the prosecutor had brothers who had been convicted of crimes, and the brother of one of those potential jurors was being prosecuted by the same District Attorney's office for a probation violation. Petitioner does not press his Batson claim with respect to those prospective jurors, and we concentrate on the other two excluded individuals. After petitioner raised his Batson objection, the prosecutor did not wait for a ruling on whether petitioner had established a prima facie case of racial discrimination. Instead, the prosecutor volunteered his reasons for striking the jurors in question. He explained: "Your honor, my reason for rejecting thethese two jurorsI'm not certain as to whether they're Hispanics. I didn't notice how many Hispanics had been called to the panel, but my reason for rejecting these two is I feel very uncertain that they would be able to listen and follow the interpreter." App. 3. After an interruption by defense counsel, the prosecutor continued: "We talked to them for a long time; the Court talked to them, I talked to them. I believe that in their heart they will try to follow it, but I felt there was a great deal of uncertainty as to whether they could accept the interpreter as the final arbiter of what was said by each of the witnesses, especially where there were going to be Spanish-speaking witnesses, and I didn't feel, when I asked them whether or not they could accept the interpreter's translation of it, I didn't feel that they could. They each looked away from me and said with some hesitancy that they would try, not that they could, but that they would try to follow the interpreter, and I feel that 357 in a case where the interpreter will be for the main witnesses, they would have an undue impact upon the jury." Id., at 3-4.[1] Defense counsel moved for a mistrial "based on the conduct of the District Attorney," and the prosecutor requested a chance to call a supervisor to the courtroom before the judge's ruling. Following a recess, defense counsel renewed his motion, which the trial court denied. Discussion of the objection continued, however, and the prosecutor explained that he would have no motive to exclude Latinos from the jury: "[T]his case, involves four complainants. Each of the complainants is Hispanic. All my witnesses, that is, civilian witnesses, are going to be Hispanic. I have absolutely no reasonthere's no reason for me to want to exclude Hispanics because all the parties involved are Hispanic, and I certainly would have no reason to do that." Id., at 5-6.[2] 358 After further interchange among the judge and attorneys, the trial court again rejected petitioner's claim. Id., at 12. On appeal, the New York Supreme Court, Appellate Division, noted that though the ethnicity of one challenged bilingual juror remained uncertain, the prosecutor had challenged the only three prospective jurors with definite Hispanic surnames. 140 A.D. 2d 543, 528 N. Y. S. 2d 625 (1986). The court ruled that this fact made out a prima facie showing of discrimination. The court affirmed the trial court's rejection of petitioner's Batson claim, however, on the ground that the prosecutor had offered race-neutral explanations for the peremptory strikes sufficient to rebut petitioner's prima facie case. The New York Court of Appeals also affirmed the judgment, holding that the prosecutor had offered a legitimate basis for challenging the individuals in question and deferring to the factual findings of the lower New York courts. 75 N.Y. 2d 350, 552 N.E.2d 621 (1990). Two judges dissented, concluding that on this record, analyzed in the light of standards they would adopt as a matter of state constitutional law, the prosecutor's exclusion of the bilingual potential jurors should not have been permitted. We granted certiorari, 498 U.S. 894 (1990), and now affirm. II In Batson, we outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. 476 U.S., at 96-98. The analysis set forth in Batson permits prompt rulings on objections to peremptory challenges without substantial disruption of the jury selection process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Id., at 96-97. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral 359 explanation for striking the jurors in question. Id., at 97-98. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Id., at 98. This three-step inquiry delimits our consideration of the arguments raised by petitioner. A The prosecutor defended his use of peremptory strikes without any prompting or inquiry from the trial court. As a result, the trial court had no occasion to rule that petitioner had or had not made a prima facie showing of intentional discrimination. This departure from the normal course of proceeding need not concern us. We explained in the context of employment discrimination litigation under Title VII of the Civil Rights Act of 1964 that "[w]here the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant." United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983). The same principle applies under Batson. Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. B Petitioner contends that the reasons given by the prosecutor for challenging the two bilingual jurors were not race neutral. In evaluating the race neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law. A court addressing this issue must keep in mind the fundamental principle that "official action will not be held unconstitutional solely because it results in a racially disproportionate 360 impact. . . . Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-265 (1977); see also Washington v. Davis, 426 U.S. 229, 239 (1976). "`Discriminatory purpose' . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected . . . a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (footnote and citation omitted); see also McCleskey v. Kemp, 481 U.S. 279, 297-299 (1987). A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral. Petitioner argues that Spanish-language ability bears a close relation to ethnicity, and that, as a consequence, it violates the Equal Protection Clause to exercise a peremptory challenge on the ground that a Latino potential juror speaks Spanish. He points to the high correlation between Spanish-language ability and ethnicity in New York, where the case was tried. We need not address that argument here, for the prosecutor did not rely on language ability without more, but explained that the specific responses and the demeanor of the two individuals during voir dire caused him to doubt their ability to defer to the official translation of Spanish-language testimony.[3] 361 The prosecutor here offered a race-neutral basis for these peremptory strikes. As explained by the prosecutor, the challenges rested neither on the intention to exclude Latino or bilingual jurors, nor on stereotypical assumptions about Latinos or bilinguals. The prosecutor's articulated basis for these challenges divided potential jurors into two classes: those whose conduct during voir dire would persuade him they might have difficulty in accepting the translator's rendition of Spanish-language testimony and those potential jurors who gave no such reason for doubt. Each category would include both Latinos and non-Latinos. While the prosecutor's criterion might well result in the disproportionate removal of prospective Latino jurors, that disproportionate impact does not turn the prosecutor's actions into a per se violation of the Equal Protection Clause. Petitioner contends that despite the prosecutor's focus on the individual responses of these jurors, his reason for the peremptory strikes has the effect of a pure, language-based 362 reason because "[a]ny honest bilingual juror would have answered the prosecutor in the exact same way." Brief for Petitioner 14. Petitioner asserts that a bilingual juror would hesitate in answering questions like those asked by the judge and prosecutor due to the difficulty of ignoring the actual Spanish-language testimony. In his view, no more can be expected than a commitment by a prospective juror to try to follow the interpreter's translation. But even if we knew that a high percentage of bilingual jurors would hesitate in answering questions like these and, as a consequence, would be excluded under the prosecutor's criterion, that fact alone would not cause the criterion to fail the race-neutrality test. As will be discussed below, disparate impact should be given appropriate weight in determining whether the prosecutor acted with a forbidden intent, but it will not be conclusive in the preliminary race-neutrality step of the Batson inquiry. An argument relating to the impact of a classification does not alone show its purpose. See Personnel Administrator of Mass. v. Feeney, supra, at 279. Equal protection analysis turns on the intended consequences of government classifications. Unless the government actor adopted a criterion with the intent of causing the impact asserted, that impact itself does not violate the principle of race neutrality. Nothing in the prosecutor's explanation shows that he chose to exclude jurors who hesitated in answering questions about following the interpreter because he wanted to prevent bilingual Latinos from serving on the jury. If we deemed the prosecutor's reason for striking these jurors a racial classification on its face, it would follow that a trial judge could not excuse for cause a juror whose hesitation convinced the judge of the juror's inability to accept the official translation of foreign-language testimony. If the explanation is not race neutral for the prosecutor, it is no more so for the trial judge. While the reason offered by the prosecutor for a peremptory strike need not rise to the level of a 363 challenge for cause, Batson, 476 U. S., at 97, the fact that it corresponds to a valid for-cause challenge will demonstrate its race-neutral character. C Once the prosecutor offers a race-neutral basis for his exercise of peremptory challenges, "[t]he trial court then [has] the duty to determine if the defendant has established purposeful discrimination." Id., at 98. While the disproportionate impact on Latinos resulting from the prosecutor's criterion for excluding these jurors does not answer the race-neutrality inquiry, it does have relevance to the trial court's decision on this question. "[A]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the [classification] bears more heavily on one race than another." Washington v. Davis, 426 U. S., at. 242. If a prosecutor articulates a basis for a peremptory challenge that results in the disproportionate exclusion of members of a certain race, the trial judge may consider that fact as evidence that the prosecutor's stated reason constitutes a pretext for racial discrimination. In the context of this trial, the prosecutor's frank admission that his ground for excusing these jurors related to their ability to speak and understand Spanish raised a plausible, though not a necessary, inference that language might be a pretext for what in fact were race-based peremptory challenges. This was not a case where by some rare coincidence a juror happened to speak the same language as a key witness, in a community where few others spoke that tongue. If it were, the explanation that the juror could have undue influence on jury deliberations might be accepted without concern that a racial generalization had come into play. But this trial took place in a community with a substantial Latino population, and petitioner and other interested parties were members of that ethnic group. It would be common knowledge in the locality that a significant percentage of the Latino 364 population speaks fluent Spanish, and that many consider it their preferred language, the one chosen for personal communication, the one selected for speaking with the most precision and power, the one used to define the self. The trial judge can consider these and other factors when deciding whether a prosecutor intended to discriminate. For example, though petitioner did not suggest the alternative to the trial court here, Spanish-speaking jurors could be permitted to advise the judge in a discreet way of any concerns with the translation during the course of trial. A prosecutor's persistence in the desire to exclude Spanish-speaking jurors despite this measure could be taken into account in determining whether to accept a race-neutral explanation for the challenge. The trial judge in this case chose to believe the prosecutor's race-neutral explanation for striking the two jurors in question, rejecting petitioner's assertion that the reasons were pretextual. In Batson, we explained that the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal: "In a recent Title VII sex discrimination case, we stated that `a finding of intentional discrimination is a finding of fact' entitled to appropriate deference by a reviewing court. Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). Since the trial judge's findings in the context under consideration here largely turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference. Id., at 575-576." Batson, supra, at 98, n. 21. Batson's treatment of intent to discriminate as a pure issue of fact, subject to review under a deferential standard, accords with our treatment of that issue in other equal protection cases. See Hunter v. Underwood, 471 U.S. 222, 229 (1985) (Court of Appeals correctly found that District Court committed clear error in concluding state constitutional provision 365 was not adopted out of racial animus); Rogers v. Lodge, 458 U.S. 613, 622-623 (1982) (clearly-erroneous standard applies to review of finding that at-large voting system was maintained for discriminatory purposes); Dayton Bd. of Ed. v. Brinkman, 443 U.S. 526, 534 (1979) (affirming Court of Appeals' conclusion that District Court's failure to find the intentional operation of a dual school system was clearly erroneous); Akins v. Texas, 325 U.S. 398, 401-402 (1945) (great respect accorded to findings of state court in discriminatory jury selection case); see also Miller v. Fenton, 474 U.S. 104, 113 (1985). As Batson's citation to Anderson suggests, it also corresponds with our treatment of the intent inquiry under Title VII. See Pullman-Standard v. Swint, 456 U.S. 273, 293 (1982). Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding "largely will turn on evaluation of credibility." 476 U.S., at 98, n. 21. In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies "peculiarly within a trial judge's province." Wainwright v. Witt, 469 U.S. 412, 428 (1985), citing Patton v. Yount, 467 U.S. 1025, 1038 (1984). The precise formula used for review of factfindings, of course, depends on the context. Anderson was a federal civil case, and we there explained that a federal appellate court reviews the finding of a district court on the question of intent to discriminate under Federal Rule of Civil Procedure 52(a), which permits factual findings to be set aside only if clearly erroneous. While no comparable rule exists for federal criminal cases, we have held that the same standard 366 should apply to review of findings in criminal cases on issues other than guilt. Maine v. Taylor, 477 U.S. 131, 145 (1986); Campbell v. United States, 373 U.S. 487, 493 (1963). See also 2 C. Wright, Federal Practice and Procedure § 374 (2d ed. 1982 and Supp. 1990). On federal habeas review of a state conviction, 28 U.S. C. § 2254(d) requires the federal courts to accord state-court factual findings a presumption of correctness. This case comes to us on direct review of the state-court judgment. No statute or rule governs our review of facts found by state courts in cases with this posture. The reasons justifying a deferential standard of review in other contexts, however, apply with equal force to our review of a state trial court's findings of fact made in connection with a federal constitutional claim. Our cases have indicated that, in the absence of exceptional circumstances, we would defer to state-court factual findings, even when those findings relate to a constitutional issue. See 324 Liquor Corp. v. Duffy, 479 U.S. 335, 351 (1987); California Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 111-112 (1980); see also Time, Inc. v. Firestone, 424 U.S. 448, 463 (1976); General Motors Corp. v. Washington, 377 U.S. 436, 441-442 (1964) (quoting Norton Co. v. Department of Revenue of Ill., 340 U.S. 534, 537-538 (1951)); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 68 (1963); Lloyd A. Fry Roofing Co. v. Wood, 344 U.S. 157, 160 (1952). Moreover, "an issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question." Miller v. Fenton, supra, at 113 (citing Dayton Bd. of Ed. v. Brinkman, supra). Petitioner advocates "independent" appellate review of a trial court's rejection of a Batson claim. We have difficulty understanding the nature of the review petitioner would have us conduct. Petitioner explains that "[i]ndependent review requires the appellate court to accept the findings of historical fact and credibility of the lower court unless they are 367 clearly erroneous. Then, based on these facts, the appellate court independently determines whether there has been discrimination." Reply Brief for Petitioner 17. But if an appellate court accepts a trial court's finding that a prosecutor's race-neutral explanation for his peremptory challenges should be believed, we fail to see how the appellate court nevertheless could find discrimination. The credibility of the prosecutor's explanation goes to the heart of the equal protection analysis, and once that has been settled, there seems nothing left to review. Petitioner seeks support for his argument in Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984), and Miller v. Fenton, supra. Bose Corp. dealt with review of a trial court's finding of "actual malice," a First Amendment precondition to liability in a defamation case, holding that an appellate court "must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity." 466 U.S., at 514. Miller accorded similar treatment to a finding that a confession was voluntary. 474 U.S., at 110. Those cases have no relevance to the matter before us. They turn on the Court's determination that findings of voluntariness or actual malice involve legal, as well as factual, elements. See Miller, supra, at 115-117; Bose Corp., supra, at 501-502; see also Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685 (1989) ("The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law"). Whether a prosecutor intended to discriminate on the basis of race in challenging potential jurors is, as Batson recognized, a question of historical fact. Petitioner also looks to a line of this Court's decisions reviewing state-court challenges to jury selection procedures. Many of these cases, following Norris v. Alabama, 294 U.S. 587 (1935), have emphasized this Court's duty to "analyze the facts in order that the appropriate enforcement of the federal 368 right may be assured," id., at 590, or to "make independent inquiry and determination of the disputed facts," Pierre v. Louisiana, 306 U.S. 354, 358 (1939). See, e. g., Whitus v. Georgia, 385 U.S. 545, 550 (1967); Avery v. Georgia, 345 U.S. 559, 561 (1953); Patton v. Mississippi, 332 U.S. 463, 466 (1947); Smith v. Texas, 311 U.S. 128, 130 (1940). The review provided for in those cases, however, leaves room for deference to state-court factual determinations, in particular on issues of credibility. For instance, in Akins v. Texas, 325 U.S. 398 (1945), we said: "[T]he transcript of the evidence presents certain inconsistencies and conflicts of testimony in regard to limiting the number of Negroes on the grand jury. Therefore, the trier of fact who heard the witnesses in full and observed their demeanor on the stand has a better opportunity than a reviewing court to reach a correct conclusion as to the existence of that type of discrimination. While our duty, in reviewing a conviction upon a complaint that the procedure through which it was obtained violates due process and equal protection under the Fourteenth Amendment, calls for our examination of evidence to determine for ourselves whether a federal constitutional right has been denied, expressly or in substance and effect, Norris v. Alabama, 294 U.S. 587, 589-90; Smith v. Texas, 311 U.S. 128, 130, we accord in that examination great respect to the conclusions of the state judiciary, Pierre v. Louisiana, 306 U.S. 354, 358. That respect leads us to accept the conclusion of the trier on disputed issues `unless it is so lacking in support in the evidence that to give it effect would work that fundamental unfairness which is at war with due process,' Lisenba v. California, 314 U.S. 219, 238, or equal protection. Cf. Ashcraft v. Tennessee, 322 U.S. 143, 152, 153; Malinski v. New York, 324 U.S. 401, 404." Id., at 401-402. 369 Other cases in the Norris line also express our respect for factual findings made by state courts. See Whitus, supra, at 550; Pierre, supra, at 358. In the case before us, we decline to overturn the state trial court's finding on the issue of discriminatory intent unless convinced that its determination was clearly erroneous. It "would pervert the concept of federalism," Bose Corp., supra, at 499, to conduct a more searching review of findings made in state trial court than we conduct with respect to federal district court findings. As a general matter, we think the Norris line of cases reconcilable with this clear error standard of review. In those cases, the evidence was such that a "reviewing court on the entire evidence [would be] left with the definite and firm conviction that a mistake ha[d] been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). For instance, in Norris itself, uncontradicted testimony showed that "no negro had served on any grand or petit jury in [Jackson County, Alabama,] within the memory of witnesses who had lived there all their lives." 294 U.S., at 591; see also Avery v. Georgia, supra, at 560-561; Patton v. Mississippi, supra, at 466; Smith v. Texas, supra, at 131. In circumstances such as those, a finding of no discrimination was simply too incredible to be accepted by this Court. We discern no clear error in the state trial court's determination that the prosecutor did not discriminate on the basis of the ethnicity of Latino jurors. We have said that "[w]here there are two permissible views of the evidence, the fact-finder's choice between them cannot be clearly erroneous." Anderson v. Bessemer City, 470 U.S. 564, 574 (1985). The trial court took a permissible view of the evidence in crediting the prosecutor's explanation. Apart from the prosecutor's demeanor, which of course we have no opportunity to review, the court could have relied on the facts that the prosecutor defended his use of peremptory challenges without being asked to do so by the judge, that he did not know which 370 jurors were Latinos, and that the ethnicity of the victims and prosecution witnesses tended to undercut any motive to exclude Latinos from the jury. Any of these factors could be taken as evidence of the prosecutor's sincerity. The trial court, moreover, could rely on the fact that only three challenged jurors can with confidence be identified as Latinos, and that the prosecutor had a verifiable and legitimate explanation for two of those challenges. Given these factors, that the prosecutor also excluded one or two Latino venirepersons on the basis of a subjective criterion having a disproportionate impact on Latinos does not leave us with a "definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., supra, at 395. D Language permits an individual to express both a personal identity and membership in a community, and those who share a common language may interact in ways more intimate than those without this bond. Bilinguals, in a sense, inhabit two communities, and serve to bring them closer. Indeed, some scholarly comment suggests that people proficient in two languages may not at times think in one language to the exclusion of the other. The analogy is that of a high-hurdler, who combines the ability to sprint and to jump to accomplish a third feat with characteristics of its own, rather than two separate functions. Grosjean, The Bilingual as a Competent but Specific Speaker-Hearer, 6 J. Multilingual & Multicultural Development 467 (1985). This is not to say that the cognitive processes and reactions of those who speak two languages are susceptible of easy generalization, for even the term "bilingual" does not describe a uniform category. It is a simple word for a more complex phenomenon with many distinct categories and subdivisions. Sánchez, Our Linguistic and Social Context, in Spanish in the United States 9, 12 (J. Amastae & L. Elfas-Olivares eds. 1982); Dodson, Second Language Acquisition and Bilingual Development: 371 A Theoretical Framework, 6 J. Multilingual & Multicultural Development 325, 326-327 (1985). Our decision today does not imply that exclusion of bilinguals from jury service is wise, or even that it is constitutional in all cases. It is a harsh paradox that one may become proficient enough in English to participate in trial, see, e. g., 28 U.S. C. §§ 1865(b)(2), (3) (English-language ability required for federal jury service), only to encounter disqualification because he knows a second language as well. As the Court observed in a somewhat related context: "Mere knowledge of [a foreign] language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable." Meyer v. Nebraska, 262 U.S. 390, 400 (1923). Just as shared language can serve to foster community, language differences can be a source of division. Language elicits a response from others, ranging from admiration and respect, to distance and alienation, to ridicule and scorn. Reactions of the latter type all too often result from or initiate racial hostility. In holding that a race-neutral reason for a peremptory challenge means a reason other than race, we do not resolve the more difficult question of the breadth with which the concept of race should be defined for equal protection purposes. We would face a quite different case if the prosecutor had justified his peremptory challenges with the explanation that he did not want Spanish-speaking jurors. It may well be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis. Cf. Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926) (law prohibiting keeping business records in other than specified languages violated equal protection rights of Chinese businessmen); Meyer v. Nebraska, supra (striking down law prohibiting grade schools from teaching languages other than English). And, as we make clear, a policy of striking all who speak a given language, *372 without regard to the particular circumstances of the trial or the individual responses of the jurors, may be found by the trial judge to be a pretext for racial discrimination. But that case is not before us. III We find no error in the application by the New York courts of the three-step Batson analysis. The standard inquiry into the objecting party's prima facie case was unnecessary given the course of proceedings in the trial court. The state courts came to the proper conclusion that the prosecutor offered a race-neutral basis for his exercise of peremptory challenges. The trial court did not commit clear error in choosing to believe the reasons given by the prosecutor. Affirmed. JUSTICE O'CONNOR, with whom JUSTICE SCALIA joins, concurring in the judgment.	Petitioner Dionisio Hernandez asks us to review the New York state courts' rejection of his claim that the prosecutor in his criminal trial exercised peremptory challenges to exclude Latinos from the jury by reason of their ethnicity. If true, the prosecutor's discriminatory use of peremptory strikes would violate the Equal Protection Clause as interpreted by our decision in We must determine whether the prosecutor offered a race-neutral basis for challenging Latino potential jurors and, if so, whether the state courts' decision to accept the prosecutor's explanation should be sustained. Petitioner and respondent both use the term "Latino" in their briefs to this Court. The amicus brief employs instead the term "Hispanic," and the parties referred to the excluded jurors by that term in the trial court. Both words appear in the state-court opinions. No attempt has been made at a distinction by the parties and we make no attempt to distinguish the terms in this opinion. We will refer to the excluded venirepersons as Latinos in deference to the terminology preferred by the parties before the Court. I The case comes to us on direct review of petitioner's convictions on two counts of attempted murder and two counts of criminal possession of a weapon. On a Brooklyn street, petitioner fired several shots at Charlene Calloway and her mother, Ada Saline. Calloway suffered three gunshot wounds. Petitioner missed Saline and instead hit two men in a nearby restaurant. The victims survived the incident. The trial was held in the New York Supreme Court, Kings County. We concern ourselves here only with the jury selection process and the proper application of which had been handed down before the trial took place. After 63 potential jurors had been questioned and 9 had been empaneled, 356 defense counsel objected that the prosecutor had used four peremptory challenges to exclude Latino potential jurors. Two of the Latino venirepersons challenged by the prosecutor had brothers who had been convicted of crimes, and the brother of one of those potential jurors was being prosecuted by the same District Attorney's office for a probation violation. Petitioner does not press his claim with respect to those prospective jurors, and we concentrate on the other two excluded individuals. After petitioner raised his objection, the prosecutor did not wait for a ruling on whether petitioner had established a prima facie case of racial discrimination. Instead, the prosecutor volunteered his reasons for striking the jurors in question. He explained: "Your honor, my reason for rejecting thethese two jurorsI'm not certain as to whether they're Hispanics. I didn't notice how many Hispanics had been called to the panel, but my reason for rejecting these two is I feel very uncertain that they would be able to listen and follow the interpreter." App. 3. After an interruption by defense counsel, the prosecutor continued: "We talked to them for a long time; the Court talked to them, I talked to them. I believe that in their heart they will try to follow it, but I felt there was a great deal of uncertainty as to whether they could accept the interpreter as the final arbiter of what was said by each of the witnesses, especially where there were going to be Spanish-speaking witnesses, and I didn't feel, when I asked them whether or not they could accept the interpreter's translation of it, I didn't feel that they could. They each looked away from me and said with some hesitancy that they would try, not that they could, but that they would try to follow the interpreter, and I feel that 357 in a case where the interpreter will be for the main witnesses, they would have an undue impact upon the jury."[1] Defense counsel moved for a mistrial "based on the conduct of the District Attorney," and the prosecutor requested a chance to call a supervisor to the courtroom before the judge's ruling. Following a recess, defense counsel renewed his motion, which the trial court denied. Discussion of the objection continued, however, and the prosecutor explained that he would have no motive to exclude Latinos from the jury: "[T]his case, involves four complainants. Each of the complainants is Hispanic. All my witnesses, that is, civilian witnesses, are going to be Hispanic. I have absolutely no reasonthere's no reason for me to want to exclude Hispanics because all the parties involved are Hispanic, and I certainly would have no reason to do that."[2] * After further interchange among the judge and attorneys, the trial court again rejected petitioner's claim. On appeal, the New York Supreme Court, Appellate Division, noted that though the ethnicity of one challenged bilingual juror remained uncertain, the prosecutor had challenged the only three prospective jurors with definite Hispanic surnames. The court ruled that this fact made out a prima facie showing of discrimination. The court affirmed the trial court's rejection of petitioner's claim, however, on the ground that the prosecutor had offered race-neutral explanations for the peremptory strikes sufficient to rebut petitioner's prima facie case. The New York Court of Appeals also affirmed the judgment, holding that the prosecutor had offered a legitimate basis for challenging the individuals in question and deferring to the factual findings of the lower New York courts. Two judges dissented, concluding that on this record, analyzed in the light of standards they would adopt as a matter of state constitutional law, the prosecutor's exclusion of the bilingual potential jurors should not have been permitted. We granted certiorari, and now affirm. II In we outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection -98. The analysis set forth in permits prompt rulings on objections to peremptory challenges without substantial disruption of the jury selection process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral 359 explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. This three-step inquiry delimits our consideration of the arguments raised by petitioner. A The prosecutor defended his use of peremptory strikes without any prompting or inquiry from the trial court. As a result, the trial court had no occasion to rule that petitioner had or had not made a prima facie showing of intentional discrimination. This departure from the normal course of proceeding need not concern us. We explained in the context of employment discrimination litigation under Title VII of the Civil Rights Act of 1964 that "[w]here the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant." United States Postal Service Bd. of The same principle applies under Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. B Petitioner contends that the reasons given by the prosecutor for challenging the two bilingual jurors were not race neutral. In evaluating the race neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law. A court addressing this issue must keep in mind the fundamental principle that "official action will not be held unconstitutional solely because it results in a racially disproportionate 360 impact. Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection " Arlington ; see also "`Discriminatory purpose' implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker selected a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Personnel Administrator of ; see also 481 U.S. A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral. Petitioner argues that Spanish-language ability bears a close relation to ethnicity, and that, as a consequence, it violates the Equal Protection Clause to exercise a peremptory challenge on the ground that a Latino potential juror speaks Spanish. He points to the high correlation between Spanish-language ability and ethnicity in New York, where the case was tried. We need not address that argument here, for the prosecutor did not rely on language ability without more, but explained that the specific responses and the demeanor of the two individuals during voir dire caused him to doubt their ability to defer to the official translation of Spanish-language testimony.[3] 361 The prosecutor here offered a race-neutral basis for these peremptory strikes. As explained by the prosecutor, the challenges rested neither on the intention to exclude Latino or bilingual jurors, nor on stereotypical assumptions about Latinos or bilinguals. The prosecutor's articulated basis for these challenges divided potential jurors into two classes: those whose conduct during voir dire would persuade him they might have difficulty in accepting the translator's rendition of Spanish-language testimony and those potential jurors who gave no such reason for doubt. Each category would include both Latinos and non-Latinos. While the prosecutor's criterion might well result in the disproportionate removal of prospective Latino jurors, that disproportionate impact does not turn the prosecutor's actions into a per se violation of the Equal Protection Petitioner contends that despite the prosecutor's focus on the individual responses of these jurors, his reason for the peremptory strikes has the effect of a pure, language-based 362 reason because "[a]ny honest bilingual juror would have answered the prosecutor in the exact same way." Brief for Petitioner 14. Petitioner asserts that a bilingual juror would hesitate in answering questions like those asked by the judge and prosecutor due to the difficulty of ignoring the actual Spanish-language testimony. In his view, no more can be expected than a commitment by a prospective juror to try to follow the interpreter's translation. But even if we knew that a high percentage of bilingual jurors would hesitate in answering questions like these and, as a consequence, would be excluded under the prosecutor's criterion, that fact alone would not cause the criterion to fail the race-neutrality test. As will be discussed below, disparate impact should be given appropriate weight in determining whether the prosecutor acted with a forbidden intent, but it will not be conclusive in the preliminary race-neutrality step of the inquiry. An argument relating to the impact of a classification does not alone show its purpose. See Personnel Administrator of at Equal protection analysis turns on the intended consequences of government classifications. Unless the government actor adopted a criterion with the intent of causing the impact asserted, that impact itself does not violate the principle of race neutrality. Nothing in the prosecutor's explanation shows that he chose to exclude jurors who hesitated in answering questions about following the interpreter because he wanted to prevent bilingual Latinos from serving on the jury. If we deemed the prosecutor's reason for striking these jurors a racial classification on its face, it would follow that a trial judge could not excuse for cause a juror whose hesitation convinced the judge of the juror's inability to accept the official translation of foreign-language testimony. If the explanation is not race neutral for the prosecutor, it is no more so for the trial judge. While the reason offered by the prosecutor for a peremptory strike need not rise to the level of a 363 challenge for cause, the fact that it corresponds to a valid for-cause challenge will demonstrate its race-neutral character. C Once the prosecutor offers a race-neutral basis for his exercise of peremptory challenges, "[t]he trial court then [has] the duty to determine if the defendant has established purposeful discrimination." While the disproportionate impact on Latinos resulting from the prosecutor's criterion for excluding these jurors does not answer the race-neutrality inquiry, it does have relevance to the trial court's decision on this question. "[A]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the [classification] bears more heavily on one race than another." 426 U. S., at. 242. If a prosecutor articulates a basis for a peremptory challenge that results in the disproportionate exclusion of members of a certain race, the trial judge may consider that fact as evidence that the prosecutor's stated reason constitutes a pretext for racial discrimination. In the context of this trial, the prosecutor's frank admission that his ground for excusing these jurors related to their ability to speak and understand Spanish raised a plausible, though not a necessary, inference that language might be a pretext for what in fact were race-based peremptory challenges. This was not a case where by some rare coincidence a juror happened to speak the same language as a key witness, in a community where few others spoke that tongue. If it were, the explanation that the juror could have undue influence on jury deliberations might be accepted without concern that a racial generalization had come into play. But this trial took place in a community with a substantial Latino population, and petitioner and other interested parties were members of that ethnic group. It would be common knowledge in the locality that a significant percentage of the Latino 364 population speaks fluent Spanish, and that many consider it their preferred language, the one chosen for personal communication, the one selected for speaking with the most precision and power, the one used to define the self. The trial judge can consider these and other factors when deciding whether a prosecutor intended to discriminate. For example, though petitioner did not suggest the alternative to the trial court here, Spanish-speaking jurors could be permitted to advise the judge in a discreet way of any concerns with the translation during the course of trial. A prosecutor's persistence in the desire to exclude Spanish-speaking jurors despite this measure could be taken into account in determining whether to accept a race-neutral explanation for the challenge. The trial judge in this case chose to believe the prosecutor's race-neutral explanation for striking the two jurors in question, rejecting petitioner's assertion that the reasons were pretextual. In we explained that the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal: "In a recent Title VII sex discrimination case, we stated that `a finding of intentional discrimination is a finding of fact' entitled to appropriate deference by a reviewing court. Since the trial judge's findings in the context under consideration here largely turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference." n. 21. 's treatment of intent to discriminate as a pure issue of fact, subject to review under a deferential standard, accords with our treatment of that issue in other equal protection cases. See ; ; Dayton Bd. of ; ; see also As 's citation to Anderson suggests, it also corresponds with our treatment of the intent inquiry under Title VII. See Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in the finding "largely will turn on evaluation of credibility." 476 U.S., n. 21. In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies "peculiarly within a trial judge's province." citing The precise formula used for review of factfindings, of course, depends on the context. Anderson was a federal civil case, and we there explained that a federal appellate court reviews the finding of a district court on the question of intent to discriminate under Federal Rule of Civil Procedure 52(a), which permits factual findings to be set aside only if clearly erroneous. While no comparable rule exists for federal criminal cases, we have held that the same standard 366 should apply to review of findings in criminal cases on issues other than guilt. ; See also 2 C. Wright, Federal Practice and Procedure 374 On federal habeas review of a state conviction, 28 U.S. C. 2254(d) requires the federal courts to accord state-court factual findings a presumption of correctness. This case comes to us on direct review of the state-court judgment. No statute or rule governs our review of facts found by state courts in cases with this posture. The reasons justifying a deferential standard of review in other contexts, however, apply with equal force to our review of a state trial court's findings of fact made in connection with a federal constitutional claim. Our cases have indicated that, in the absence of exceptional circumstances, we would defer to state-court factual findings, even when those findings relate to a constitutional issue. See 324 Liquor ; California Liquor Dealers ; see also Time, ; General Motors ); Bantam Books, ; Lloyd A. Fry Roofing Moreover, "an issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question." at Whether a prosecutor intended to discriminate on the basis of race in challenging potential jurors is, as recognized, a question of historical fact. Petitioner also looks to a line of this Court's decisions reviewing state-court challenges to jury selection procedures. Many of these cases, following have emphasized this Court's duty to "analyze the facts in order that the appropriate enforcement of the federal 3 right may be assured," or to "make independent inquiry and determination of the disputed facts," See, e. g., ; ; 332 U.S. ; The review provided for in those cases, however, leaves room for deference to state-court factual determinations, in particular on issues of credibility. For instance, in we said: "[T]he transcript of the evidence presents certain inconsistencies and conflicts of testimony in regard to limiting the number of Negroes on the grand jury. Therefore, the trier of fact who heard the witnesses in full and observed their demeanor on the stand has a better opportunity than a reviewing court to reach a correct conclusion as to the existence of that type of discrimination. While our duty, in reviewing a conviction upon a complaint that the procedure through which it was obtained violates due process and equal protection under the Fourteenth Amendment, calls for our examination of evidence to determine for ourselves whether a federal constitutional right has been denied, expressly or in substance and effect, ; we accord in that examination great respect to the conclusions of the state judiciary, That respect leads us to accept the conclusion of the trier on disputed issues `unless it is so lacking in support in the evidence that to give it effect would work that fundamental unfairness which is at war with due process,' or equal protection. Cf. ;" at 369 Other cases in the Norris line also express our respect for factual findings made by state courts. See at ; at In the case before us, we decline to overturn the state trial court's finding on the issue of discriminatory intent unless convinced that its determination was clearly erroneous. It "would pervert the concept of federalism," Bose to conduct a more searching review of findings made in state trial court than we conduct with respect to federal district court findings. As a general matter, we think the Norris line of cases reconcilable with this clear error standard of review. In those cases, the evidence was such that a "reviewing court on the entire evidence [would be] left with the definite and firm conviction that a mistake ha[d] been committed." United For instance, in Norris itself, uncontradicted testimony showed that "no negro had served on any grand or petit jury in [Jackson County, Alabama,] within the memory of witnesses who had lived there all their lives." ; see also at 560-; at ; In circumstances such as those, a finding of no discrimination was simply too incredible to be accepted by this Court. We discern no clear error in the state trial court's determination that the prosecutor did not discriminate on the basis of the ethnicity of Latino jurors. We have said that "[w]here there are two permissible views of the evidence, the fact-finder's choice between them cannot be clearly erroneous." The trial court took a permissible view of the evidence in crediting the prosecutor's explanation. Apart from the prosecutor's demeanor, which of course we have no opportunity to review, the court could have relied on the facts that the prosecutor defended his use of peremptory challenges without being asked to do so by the judge, that he did not know which 370 jurors were Latinos, and that the ethnicity of the victims and prosecution witnesses tended to undercut any motive to exclude Latinos from the jury. Any of these factors could be taken as evidence of the prosecutor's sincerity. The trial court, moreover, could rely on the fact that only three challenged jurors can with confidence be identified as Latinos, and that the prosecutor had a verifiable and legitimate explanation for two of those challenges. Given these factors, that the prosecutor also excluded one or two Latino venirepersons on the basis of a subjective criterion having a disproportionate impact on Latinos does not leave us with a "definite and firm conviction that a mistake has been committed." United at D Language permits an individual to express both a personal identity and membership in a community, and those who share a common language may interact in ways more intimate than those without this bond. Bilinguals, in a sense, inhabit two communities, and serve to bring them closer. Indeed, some scholarly comment suggests that people proficient in two languages may not at times think in one language to the exclusion of the other. The analogy is that of a high-hurdler, who combines the ability to sprint and to jump to accomplish a third feat with characteristics of its own, rather than two separate functions. Grosjean, The Bilingual as a Competent but Specific Speaker-Hearer, 6 J. Multilingual & Multicultural Development 467 This is not to say that the cognitive processes and reactions of those who speak two languages are susceptible of easy generalization, for even the term "bilingual" does not describe a uniform category. It is a simple word for a more complex phenomenon with many distinct categories and subdivisions. Sánchez, Our Linguistic and Social Context, in Spanish in the United States 9, 12 ; Dodson, Second Language Acquisition and Bilingual Development: 371 A Theoretical Framework, 6 J. Multilingual & Multicultural Development 325, 326-327 Our decision today does not imply that exclusion of bilinguals from jury service is wise, or even that it is constitutional in all cases. It is a harsh paradox that one may become proficient enough in English to participate in trial, see, e. g., 28 U.S. C. 1865(b)(2), (3) (English-language ability required for federal jury service), only to encounter disqualification because he knows a second language as well. As the Court observed in a somewhat related context: "Mere knowledge of [a foreign] language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable." Just as shared language can serve to foster community, language differences can be a source of division. Language elicits a response from others, ranging from admiration and respect, to distance and alienation, to ridicule and scorn. Reactions of the latter type all too often result from or initiate racial hostility. In holding that a race-neutral reason for a peremptory challenge means a reason other than race, we do not resolve the more difficult question of the breadth with which the concept of race should be defined for equal protection purposes. We would face a quite different case if the prosecutor had justified his peremptory challenges with the explanation that he did not want Spanish-speaking jurors. It may well be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis. Cf. Yu Cong ; And, as we make clear, a policy of striking all who speak a given language, 372 without regard to the particular circumstances of the trial or the individual responses of the jurors, may be found by the trial judge to be a pretext for racial discrimination. But that case is not before us. III We find no error in the application by the New York courts of the three-step analysis. The standard inquiry into the objecting party's prima facie case was unnecessary given the course of proceedings in the trial court. The state courts came to the proper conclusion that the prosecutor offered a race-neutral basis for his exercise of peremptory challenges. The trial court did not commit clear error in choosing to believe the reasons given by the prosecutor. Affirmed. JUSTICE O'CONNOR, with whom JUSTICE SCALIA joins, concurring in the judgment.
Justice Marshall	majority	false	NLRB v. Operating Engineers	1971-01-12T00:00:00	null	https://www.courtlistener.com/opinion/108222/nlrb-v-operating-engineers/	https://www.courtlistener.com/api/rest/v3/clusters/108222/	1,971	1970-016	1	7	2	In this cause we are asked to determine whether strikes by Operating Engineers at the site of the construction of a nuclear power generator plant at Oyster Creek, New Jersey, violated § 8 (b) (4) (B)[1] of the National Labor Relations Act. Although the National Labor Relations Board found the strikes to be in violation of this section, the Court of Appeals refused to enforce the Board's order.[2] We believe the Court of Appeals construed the Act too narrowly. Accordingly, we reverse and remand the case for consideration of the propriety of the Board's order. 300 The general contractor for the project, Burns & Roe, Inc., subcontracted all of the construction work to three companiesWhite Construction Co., Chicago Bridge & Iron Co., and Poirier & McLane Corp. All three employed operating engineers who were members of Local 825, International Union of Operating Engineers. But White, unlike Chicago Bridge and Poirier, did not have a collective-bargaining agreement with Local 825. In the latter part of September 1965, White installed an electric welding machine and assigned the job of pushing the buttons that operated the machine to members of the Ironworkers Union, who were to perform the actual welding. Upon learning of this work assignment, Local 825's job steward and its lead engineer threatened White with a strike if operating engineers were not given the work. White, however, refused to meet the demand. On September 29, 1965, the job steward and lead engineer met with the construction manager for Burns, the general contractor. They informed him that the members of Local 825 working at the jobsite had voted to strike unless Burns signed a contract, which would be binding[3] on all three subcontractors as well as Burns, giving Local 825 jurisdiction over all power equipment, including electric welding machines, operated on the job-site. On October 1, after White and Burns refused to 301 accede to the demands, the operating engineers employed by Chicago Bridge and Poirier as well as those employed by White walked off the job. They stayed out from 8 a. m. to 1 p. m., returning to work when negotiations over their demands started. On October 6, Burns submitted the work assignment dispute to the National Joint Board for the Settlement of Jurisdictional Disputes for the Construction Industry.[4] The same day, Local 825 threatened Burns and all the subcontractors with another work stoppage unless the contracts were signed and the work transferred to the operating engineers. The employers again refused, and the operating engineers walked off the project. This strike lasted from October 7 to October 11. On October 20, the Joint Board notified the parties that there was no reason to change the assignment of the disputed work. Local 825 did not accept this resolution; and when the welding machine was started on November 4, the operating engineers surrounded the machine and physically prevented its operation. On November 8, the NLRB Regional Director obtained from the United States District Court a temporary injunction under § 10 (l)[5] of the Act restraining the union from coercing a cessation of business on the project or to compel White to change the work assignment.[6] 302 An unfair labor practice proceeding against Local 825 subsequently ensued. The Board found that the union had violated § 8 (b) (4) (D)[7] of the Act by inducing employees of White, Chicago Bridge, and Poirier to strike to force White to take the disputed work away from the Ironworkers and assign it to the Operating Engineers. The Court of Appeals' approval of this finding is not questioned here. But the Board's finding that Local 825's encouragement of the Chicago Bridge and Poirier employees to strike and the union's coercion of Burns violated § 8 (b) (4) (B) of the Act was not approved by the Court of Appeals and is in issue here. I Congressional concern over the involvement of third parties in labor disputes not their own prompted § 8 (b) (4) (B). This concern was focused on the "secondary boycott,"[8] which was conceived of as pressure brought to 303 bear, not "upon the employer who alone is a party [to a dispute], but upon some third party who has no concern in it"[9] with the objective of forcing the third party to bring pressure on the employer to agree to the union's demands.[10] Section 8 (b) (4) (B) is, however, the product of legislative compromise and also reflects a concern with protecting labor organizations' right to exert legitimate pressure aimed at the employer with whom there is a primary dispute.[11] This primary activity is protected even though it may seriously affect neutral third parties. Steelworkers (Carrier Corp.) v. NLRB, 376 U.S. 492, 502 (1964); Electrical Workers (General Electric) v. NLRB, 366 U.S. 667, 673 (1961). Thus there are two threads to § 8 (b) (4) (B) that require disputed conduct to be classified as either "primary" or "secondary." And the tapestry that has been woven in classifying such conduct is among the labor law's most intricate. See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369 (1969). But here the normally difficult task of classifying union conduct is easy. As the Court of Appeals said, the "record amply justifies the conclusion that [Burns and the neutral subcontractors] were subjected to coercion in the 304 form of threats or walkouts, or both." 410 F.2d, at 9. And, as the Board said, it is clear that this coercion was designed "to achieve the assignment of [the] disputed work" to operating engineers. 162 N. L. R. B. 1617, 1621. Local 825's coercive activity was aimed directly at Burns and the subcontractors that were not involved in the dispute. The union engaged in a strike against these neutral employers for the specific, overt purpose of forcing them to put pressure on White to assign the job of operating the welding machine to operating engineers. Local 825 was not attempting to apply the full force of primary action by directing its efforts at all phases of Burns' normal operation as was the case in Steelworkers (Carrier) v. NLRB, 376 U.S. 492 (1964), and Electrical Workers (General Electric) v. NLRB, 366 U.S. 667 (1961). It was instead using a sort of pressure that was unmistakably and flagrantly secondary. NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675 (1951). The more difficult task is to determine whether one of Local 825's objectives was to force Burns and the other neutrals to "cease doing business" with White as § 8 (b) (4) (B) requires. The Court of Appeals concluded that the union's objective was to force Burns "to use its influence with the subcontractor to change the subcontractor's conduct, not to terminate their relationship" and that this was not enough. 410 F.2d, at 10. That court read the statute as requiring that the union demand nothing short of a complete termination of the business relationship between the neutral and the primary employer. Such a reading is too narrow. Some disruption of business relationships is the necessary consequence of the purest form of primary activity. These foreseeable disruptions are, however, clearly protected. Steelworkers (Carrier), 376 U.S., at 496; Electrical Workers (General Electric), 366 U.S., at 682. 305 Likewise, secondary activity could have such a limited goal and the foreseeable result of the conduct could be, while disruptive, so slight that the "cease doing business" requirement is not met. Local 825's goal was not so limited nor were the foreseeable consequences of its secondary pressure slight. The operating engineers sought to force Burns to bind all the subcontractors on the project to a particular form of job assignments. The clear implication of the demands was that Burns would be required either to force a change in White's policy or to terminate White's contract. The strikes shut down the whole project. If Burns was unable to obtain White's consent, Local 825 was apparently willing to continue disruptive conduct that would bring all the employers to their knees. Certainly, the union would have preferred to have the employers capitulate to its demands; it wanted to take the job of operating the welding machines away from the Ironworkers. It was willing, however, to try to obtain this capitulation by forcing neutrals to compel White to meet union demands. To hold that this flagrant secondary conduct with these most serious disruptive effects was not prohibited by § 8 (b) (4) (B) would be largely to ignore the original congressional concern. NLRB v. Carpenters Dist. Council, 407 F.2d 804, 806 (CA5 1969). II In addition to its argument that § 8 (b) (4) (B) does not cover its conduct, Local 825 argues that § 8 (b) (4) (D) provides the exclusive remedy. Clearly, § 8 (b) (4) (D) is, as the Board and Court of Appeals held, applicable. But that section is aimed at protecting "the employer trapped between the . . . claims" of rival unions. National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 625 (1967). Although § 8 (b) (4) (D) also *306 applies to neutrals, the basic purpose is different from that of § 8 (b) (4) (B). The practices here were unfair under both sections and there is no indication that Congress intended either section to have exclusive application. III Since the Court of Appeals did not believe that § 8 (b) (4) (B) was applicable, it did not consider the propriety of the portion of the Board's order relating to that section. But the order was not narrowly confined to the conduct involved here; so we must remand these cases for the Court of Appeals to consider whether the order is necessary to further the goals of the Act. See Communications Workers v. NLRB, 362 U.S. 479 (1960); NLRB v. Express Publishing Co., 312 U.S. 426 (1941). Reversed and remanded. MR. JUSTICE DOUGLAS, with whom MR.	In this cause we are asked to determine whether strikes by Operating Engineers at the site of the construction of a nuclear power generator plant at Oyster Creek, New Jersey, violated 8 (b) (4) (B)[1] of the National Labor Relations Act. Although the National Labor Relations Board found the strikes to be in violation of this section, the Court of Appeals refused to enforce the Board's order.[2] We believe the Court of Appeals construed the Act too narrowly. Accordingly, we reverse and remand the case for consideration of the propriety of the Board's order. 300 The general contractor for the project, Burns & Roe, Inc., subcontracted all of the construction work to three companiesWhite Construction Co., Chicago Bridge & Iron Co., and Poirier & McLane Corp. All three employed operating engineers who were members of Local 825, International Union of Operating Engineers. But White, unlike Chicago Bridge and Poirier, did not have a collective-bargaining agreement with Local 825. In the latter part of September 1965, White installed an electric welding machine and assigned the job of pushing the buttons that operated the machine to members of the Ironworkers Union, who were to perform the actual welding. Upon learning of this work assignment, Local 825's job steward and its lead engineer threatened White with a strike if operating engineers were not given the work. White, however, refused to meet the demand. On September 29, 1965, the job steward and lead engineer met with the construction manager for Burns, the general contractor. They informed him that the members of Local 825 working at the jobsite had voted to strike unless Burns signed a contract, which would be binding[3] on all three subcontractors as well as Burns, giving Local 825 jurisdiction over all power equipment, including electric welding machines, operated on the job-site. On October 1, after White and Burns refused to 301 accede to the demands, the operating engineers employed by Chicago Bridge and Poirier as well as those employed by White walked off the job. They stayed out from 8 a. m. to 1 p. m., returning to work when negotiations over their demands started. On October 6, Burns submitted the work assignment dispute to the National Joint Board for the Settlement of Jurisdictional Disputes for the Construction Industry.[4] The same day, Local 825 threatened Burns and all the subcontractors with another work stoppage unless the contracts were signed and the work transferred to the operating engineers. The employers again refused, and the operating engineers walked off the project. This strike lasted from October 7 to October 11. On October 20, the Joint Board notified the parties that there was no reason to change the assignment of the disputed work. Local 825 did not accept this resolution; and when the welding machine was started on November 4, the operating engineers surrounded the machine and physically prevented its operation. On November 8, the NLRB Regional Director obtained from the United States District Court a temporary injunction under 10 (l)[5] of the Act restraining the union from coercing a cessation of business on the project or to compel White to change the work assignment.[6] 302 An unfair labor practice proceeding against Local 825 subsequently ensued. The Board found that the union had violated 8 (b) (4) (D)[7] of the Act by inducing employees of White, Chicago Bridge, and Poirier to strike to force White to take the disputed work away from the Ironworkers and assign it to the Operating Engineers. The Court of Appeals' approval of this finding is not questioned here. But the Board's finding that Local 825's encouragement of the Chicago Bridge and Poirier employees to strike and the union's coercion of Burns violated 8 (b) (4) (B) of the Act was not approved by the Court of Appeals and is in issue here. I Congressional concern over the involvement of third parties in labor disputes not their own prompted 8 (b) (4) (B). This concern was focused on the "secondary boycott,"[8] which was conceived of as pressure brought to 303 bear, not "upon the employer who alone is a party [to a dispute], but upon some third party who has no concern in it"[9] with the objective of forcing the third party to bring pressure on the employer to agree to the union's demands.[10] Section 8 (b) (4) (B) is, however, the product of legislative compromise and also reflects a concern with protecting labor organizations' right to exert legitimate pressure aimed at the employer with whom there is a primary dispute.[11] This primary activity is protected even though it may seriously affect neutral third parties. Steelworkers (Carrier ; Electrical Workers (General Thus there are two threads to 8 (b) (4) (B) that require disputed conduct to be classified as either "primary" or "secondary." And the tapestry that has been woven in classifying such conduct is among the labor law's most intricate. See Brotherhood of Railroad But here the normally difficult task of classifying union conduct is easy. As the Court of Appeals said, the "record amply justifies the conclusion that [Burns and the neutral subcontractors] were subjected to coercion in the 304 form of threats or walkouts, or both." And, as the Board said, it is clear that this coercion was designed "to achieve the assignment of [the] disputed work" to operating engineers. 162 N. L. R. B. 1617, 1621. Local 825's coercive activity was aimed directly at Burns and the subcontractors that were not involved in the dispute. The union engaged in a strike against these neutral employers for the specific, overt purpose of forcing them to put pressure on White to assign the job of operating the welding machine to operating engineers. Local 825 was not attempting to apply the full force of primary action by directing its efforts at all phases of Burns' normal operation as was the case in Steelworkers and Electrical Workers The more difficult task is to determine whether one of Local 825's objectives was to force Burns and the other neutrals to "cease doing business" with White as 8 (b) (4) (B) requires. The Court of Appeals concluded that the union's objective was to force Burns "to use its influence with the subcontractor to change the subcontractor's conduct, not to terminate their relationship" and that this was not That court read the statute as requiring that the union demand nothing short of a complete termination of the business relationship between the neutral and the primary employer. Such a reading is too narrow. Some disruption of business relationships is the necessary consequence of the purest form of primary activity. These foreseeable disruptions are, however, clearly protected. Steelworkers (Carrier), ; Electrical Workers (General Electric), 305 Likewise, secondary activity could have such a limited goal and the foreseeable result of the conduct could be, while disruptive, so slight that the "cease doing business" requirement is not met. Local 825's goal was not so limited nor were the foreseeable consequences of its secondary pressure slight. The operating engineers sought to force Burns to bind all the subcontractors on the project to a particular form of job assignments. The clear implication of the demands was that Burns would be required either to force a change in White's policy or to terminate White's contract. The strikes shut down the whole project. If Burns was unable to obtain White's consent, Local 825 was apparently willing to continue disruptive conduct that would bring all the employers to their knees. Certainly, the union would have preferred to have the employers capitulate to its demands; it wanted to take the job of operating the welding machines away from the Ironworkers. It was willing, however, to try to obtain this capitulation by forcing neutrals to compel White to meet union demands. To hold that this flagrant secondary conduct with these most serious disruptive effects was not prohibited by 8 (b) (4) (B) would be largely to ignore the original congressional concern. II In addition to its argument that 8 (b) (4) (B) does not cover its conduct, Local 825 argues that 8 (b) (4) (D) provides the exclusive remedy. Clearly, 8 (b) (4) (D) is, as the Board and Court of Appeals held, applicable. But that section is aimed at protecting "the employer trapped between the claims" of rival unions. National Woodwork Mfrs. Although 8 (b) (4) (D) also *306 applies to neutrals, the basic purpose is different from that of 8 (b) (4) (B). The practices here were unfair under both sections and there is no indication that Congress intended either section to have exclusive application. III Since the Court of Appeals did not believe that 8 (b) (4) (B) was applicable, it did not consider the propriety of the portion of the Board's order relating to that section. But the order was not narrowly confined to the conduct involved here; so we must remand these cases for the Court of Appeals to consider whether the order is necessary to further the goals of the Act. See Communications ; Reversed and remanded. MR. JUSTICE DOUGLAS, with whom MR.
Justice Thomas	concurring	false	Microsoft Corp. v. Baker	2017-06-12T00:00:00	null	https://www.courtlistener.com/opinion/4403813/microsoft-corp-v-baker/	https://www.courtlistener.com/api/rest/v3/clusters/4403813/	2,017	2016-053	1	8	0	I agree with the Court that the Court of Appeals lacked jurisdiction over respondents’ appeal, but I would ground that conclusion in Article III of the Constitution instead of 28 U.S. C. §1291. I therefore concur only in the judgment. The plaintiffs in this case, respondents here, sued Mi- crosoft, petitioner here, to recover damages after they purchased allegedly faulty video game consoles that Mi- crosoft manufactured. The plaintiffs brought claims for themselves (individual claims) and on behalf of a putative class of similarly situated consumers (class allegations). Early in the litigation, the District Court granted Mi- crosoft’s motion to strike the class allegations, effectively declining to certify the class. The Court of Appeals denied permission to appeal that decision under Federal Rule of Civil Procedure 23(f ), which requires a party to obtain permission from the court of appeals before appealing a decision regarding class certification. The plaintiffs decided not to pursue their individual claims, instead stipulating to a voluntary dismissal of those claims with prejudice. They then filed a notice of appeal from the voluntary dismissal order. On appeal, they did not ask the Court of Appeals to reverse the Dis- trict Court’s dismissal of their individual claims. They 2 MICROSOFT CORP. v. BAKER THOMAS THOMAS , J., concurring , J., concurring in judgment instead asked the Court of Appeals to reverse the order striking their class allegations. The question presented in this case is whether the Court of Appeals had jurisdiction to hear the appeal under both §1291, which grants appel- late jurisdiction to the courts of appeals over “final deci- sions” by district courts, and under Article III of the Con- stitution, which limits the jurisdiction of federal courts to “cases” and “controversies.” The Court today holds that the Court of Appeals lacked jurisdiction under §1291 because the voluntary dismissal with prejudice did not result in a “final decision.” I dis- agree with that holding. A decision is “final” for purposes of §1291 if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). The order here dismissed all of the plaintiffs’ claims with prejudice and left nothing for the District Court to do but execute the judgment. See App. to Pet. for Cert. 39a (“direct[ing] the Clerk to enter Judgment . . . and close th[e] case”). The Court reaches the opposite conclusion, relying not on the text of §1291 or this Court’s precedents about final- ity, but on Rule 23(f ). Rule 23(f ) makes interlocutory orders regarding class certification appealable only with the permission of the court of appeals. The Court con- cludes that the plaintiffs’ “voluntary dismissal” “does not qualify as a ‘final decision’ ” because allowing the plain- tiffs’ appeal would “subvert the balanced solution Rule 23(f ) put in place for immediate review of class-action orders.” Ante, at 2. The Court’s conclusion does not follow from its reason- ing. Whether a dismissal with prejudice is “final” depends on the meaning of §1291, not Rule 23(f ). Rule 23(f ) says nothing about finality, much less about the finality of an order dismissing individual claims with prejudice. I agree with the Court that the plaintiffs are trying to avoid the Cite as: 582 U. S. ____ (2017) 3 THOMAS THOMAS , J., concurring , J., concurring in judgment requirements for interlocutory appeals under Rule 23(f ), but our view of the balance struck in that rule should not warp our understanding of finality under §1291. Although I disagree with the Court’s reading of §1291, I agree that the plaintiffs could not appeal in these circum- stances. In my view, they could not appeal because the Court of Appeals lacked jurisdiction under Article III of the Constitution. The “judicial Power” of the United States extends only to “Cases” and “Controversies.” Art. III, §2. This requirement limits the jurisdiction of the federal courts to issues presented “in an adversary con- text,” Flast v. Cohen, 392 U.S. 83, 95 (1968), in which the parties maintain an “actual” and “concrete” interest, Campbell-Ewald Co. v. Gomez, 577 U. S. ___, ___ (2016) (slip op., at 6) (internal quotation marks omitted). Put another way, “Article III denies federal courts the power to decide questions that cannot affect the rights of litigants in the case before them, and confines them to resolving real and substantial controversies admitting of specific relief through a decree of a conclusive character.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (inter- nal quotation marks, citation, and alteration omitted). The plaintiffs’ appeal from their voluntary dismissal did not satisfy this jurisdictional requirement. When the plaintiffs asked the District Court to dismiss their claims, they consented to the judgment against them and dis- avowed any right to relief from Microsoft. The parties thus were no longer adverse to each other on any claims, and the Court of Appeals could not “affect the[ir] rights” in any legally cognizable manner. Ibid. Indeed, it has long been the rule that a party may not appeal from the voluntary dismissal of a claim, since the party consented to the judgment against it. See, e.g., Evans v. Phillips, 4 Wheat. 73 (1819); Lord v. Veazie, 8 How. 251, 255–256 (1850); United States v. Babbitt, 104 U.S. 767 (1882); Deakins v. Monaghan, 484 U.S. 193, 199–200 (1988). 4 MICROSOFT CORP. v. BAKER THOMAS THOMAS , J., concurring , J., concurring in judgment The plaintiffs contend that their interest in reversing the order striking their class allegations is sufficient to satisfy Article III’s case-or-controversy requirement, but they misunderstand the status of putative class actions. Class allegations, without an underlying individual claim, do not give rise to a “case” or “controversy.” Those allega- tions are simply the means of invoking a procedural mechanism that enables a plaintiff to litigate his individ- ual claims on behalf of a class. See Shady Grove Orthope- dic Associates, P. A. v. Allstate Ins. Co., 559 U.S. 393, 408 (2010) (plurality opinion). Thus, because the Court of Appeals lacked Article III jurisdiction to adjudicate the individual claims, it could not hear the plaintiffs’ appeal of the order striking their class allegations. Plaintiffs’ representation that they hope to “revive their [individual] claims should they prevail” on the appeal of the order striking their class allegations does not under- mine this conclusion. Brief for Respondents 45. This Court has interpreted Article III “to demand that an ac- tual controversy be extant at all stages of review, not merely at the time the complaint is filed.” Campbell Ewald Co., supra, at ___ (slip op., at 6) (internal quotation marks and alterations omitted). And in any event, a favorable ruling on class certification would not “revive” their individual claims: A court’s decision about class allegations “in no way touch[es] the merits” of those claims. Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 482 (1978). * * * Because I would hold that the Court of Appeals lacked jurisdiction under Article III to consider respondents’ appeal, I concur in the judgment	I agree with the Court that the Court of Appeals lacked jurisdiction over respondents’ appeal, but I would ground that conclusion in Article III of the Constitution instead of 28 U.S. C. I therefore concur only in the judgment. The plaintiffs in this case, respondents here, sued Mi- crosoft, petitioner here, to recover damages after they purchased allegedly faulty video game consoles that Mi- crosoft manufactured. The plaintiffs brought claims for themselves (individual claims) and on behalf of a putative class of similarly situated consumers (class allegations). Early in the litigation, the District Court granted Mi- crosoft’s motion to strike the class allegations, effectively declining to certify the class. The Court of Appeals denied permission to appeal that decision under Federal Rule of Civil Procedure 23(f ), which requires a party to obtain permission from the court of appeals before appealing a decision regarding class certification. The plaintiffs decided not to pursue their individual claims, instead stipulating to a voluntary dismissal of those claims with prejudice. They then filed a notice of appeal from the voluntary dismissal order. On appeal, they did not ask the Court of Appeals to reverse the Dis- trict Court’s dismissal of their individual claims. They 2 MICROSOFT CORP. v. BAKER THOMAS THOMAS J., concurring J., concurring in judgment instead asked the Court of Appeals to reverse the order striking their class allegations. The question presented in this case is whether the Court of Appeals had jurisdiction to hear the appeal under both which grants appel- late jurisdiction to the courts of appeals over “final deci- sions” by district courts, and under Article III of the Con- stitution, which limits the jurisdiction of federal courts to “cases” and “controversies.” The Court today holds that the Court of Appeals lacked jurisdiction under because the voluntary dismissal with prejudice did not result in a “final decision.” I dis- agree with that holding. A decision is “final” for purposes of if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” The order here dismissed all of the plaintiffs’ claims with prejudice and left nothing for the District Court to do but execute the judgment. See App. to Pet. for Cert. 39a (“direct[ing] the Clerk to enter Judgment and close th[e] case”). The Court reaches the opposite conclusion, relying not on the text of or this Court’s precedents about final- ity, but on Rule 23(f ). Rule 23(f ) makes interlocutory orders regarding class certification appealable only with the permission of the court of appeals. The Court con- cludes that the plaintiffs’ “voluntary dismissal” “does not qualify as a ‘final decision’ ” because allowing the plain- tiffs’ appeal would “subvert the balanced solution Rule 23(f ) put in place for immediate review of class-action orders.” Ante, at 2. The Court’s conclusion does not follow from its reason- ing. Whether a dismissal with prejudice is “final” depends on the meaning of not Rule 23(f ). Rule 23(f ) says nothing about finality, much less about the finality of an order dismissing individual claims with prejudice. I agree with the Court that the plaintiffs are trying to avoid the Cite as: 582 U. S. (2017) 3 THOMAS THOMAS J., concurring J., concurring in judgment requirements for interlocutory appeals under Rule 23(f ), but our view of the balance struck in that rule should not warp our understanding of finality under Although I disagree with the Court’s reading of I agree that the plaintiffs could not appeal in these circum- stances. In my view, they could not appeal because the Court of Appeals lacked jurisdiction under Article III of the Constitution. The “judicial Power” of the United States extends only to “Cases” and “Controversies.” Art. III, This requirement limits the jurisdiction of the federal courts to issues presented “in an adversary con- text,” in which the parties maintain an “actual” and “concrete” interest, Campbell-Ewald Co. v. Gomez, 577 U. S. (2016) (slip op., at 6) (internal quotation marks omitted). Put another way, “Article III denies federal courts the power to decide questions that cannot affect the rights of litigants in the case before them, and confines them to resolving real and substantial controversies admitting of specific relief through a decree of a conclusive character.” Lewis v. Continental Bank Corp., (inter- nal quotation marks, citation, and alteration omitted). The plaintiffs’ appeal from their voluntary dismissal did not satisfy this jurisdictional requirement. When the plaintiffs asked the District Court to dismiss their claims, they consented to the judgment against them and dis- avowed any right to relief from Microsoft. The parties thus were no longer adverse to each other on any claims, and the Court of Appeals could not “affect the[ir] rights” in any legally cognizable manner. Indeed, it has long been the rule that a party may not appeal from the voluntary dismissal of a claim, since the party consented to the judgment against it. See, e.g., Evans v. Phillips, 4 Wheat. 73 (1819); ; United ; Deakins v. Monaghan, 4 MICROSOFT CORP. v. BAKER THOMAS THOMAS J., concurring J., concurring in judgment The plaintiffs contend that their interest in reversing the order striking their class allegations is sufficient to satisfy Article III’s case-or-controversy requirement, but they misunderstand the status of putative class actions. Class allegations, without an underlying individual claim, do not give rise to a “case” or “controversy.” Those allega- tions are simply the means of invoking a procedural mechanism that enables a plaintiff to litigate his individ- ual claims on behalf of a class. See Shady Grove Orthope- dic Associates, P. (2010) (plurality opinion). Thus, because the Court of Appeals lacked Article III jurisdiction to adjudicate the individual claims, it could not hear the plaintiffs’ appeal of the order striking their class allegations. Plaintiffs’ representation that they hope to “revive their [individual] claims should they prevail” on the appeal of the order striking their class allegations does not under- mine this conclusion. Brief for Respondents 45. This Court has interpreted Article III “to demand that an ac- tual controversy be extant at all stages of review, not merely at the time the complaint is filed.” Campbell Ewald Co., at (slip op., at 6) (internal quotation marks and alterations omitted). And in any event, a favorable ruling on class certification would not “revive” their individual claims: A court’s decision about class allegations “in no way touch[es] the merits” of those claims. Gardner v. Westinghouse Broadcasting Co., * * * Because I would hold that the Court of Appeals lacked jurisdiction under Article III to consider respondents’ appeal, I concur in the judgment
Justice Burger	concurring	false	Hicks v. Miranda	1975-06-24T00:00:00	null	https://www.courtlistener.com/opinion/109296/hicks-v-miranda/	https://www.courtlistener.com/api/rest/v3/clusters/109296/	1,975	1974-134	1	5	4	I join the opinion of the Court but I add a word about the composition of the three-judge District Court and the circumstances under which it was convened. Under 28 U.S. C. § 2284 (1) the district judge to whom the application for relief is presented, and who notifies the chief judge of the need to convene the three-judge court, "shall constitute one member of such court." It is well settled that "shall" means "must," cf. Merced Rosa v. Herrero, 423 F.2d 591, 593 n. 2 (CA1 1970), yet the judge who called for the three-judge court here was not named to the panel. However, appellants made no timely objection to the composition of the court. Ante, at 338 n. 5. Obviously occasions can arise rendering it impossible for the district judge who initiates the convening of such a court under § 2284 (1) to serve on the court, but, in light of the unqualified mandatory language of the statute, when that occurs there is an obligation to *353 see to it that the record reveal, at the very least, a statement of the circumstances accounting for the substitution. MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR.	I join the opinion of the Court but I add a word about the composition of the three-judge District Court and the circumstances under which it was convened. Under 28 U.S. C. 2284 (1) the district judge to whom the application for relief is presented, and who notifies the chief judge of the need to convene the three-judge court, "shall constitute one member of such court." It is well settled that "shall" means "must," cf. Merced yet the judge who called for the three-judge court here was not named to the panel. However, appellants made no timely objection to the composition of the court. Ante, at 338 n. 5. Obviously occasions can arise rendering it impossible for the district judge who initiates the convening of such a court under 2284 (1) to serve on the court, but, in light of the unqualified mandatory language of the statute, when that occurs there is an obligation to *353 see to it that the record reveal, at the very least, a statement of the circumstances accounting for the substitution. MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR.
Justice Scalia	dissenting	true	Youngblood v. West Virginia	2006-06-19T00:00:00	null	https://www.courtlistener.com/opinion/145639/youngblood-v-west-virginia/	https://www.courtlistener.com/api/rest/v3/clusters/145639/	2,006	2005-072	2	6	3	In Lawrence v. Chater, 516 U.S. 163 (1996) (per curiam), we greatly expanded our "no-fault V & R practice" (GVR) 871 beyond its traditional bounds. Id., at 179 (Scalia, J., dissenting). At the time, I remarked that "[t]he power to `revise and correct' for error has become a power to void for suspicion" of error, id., at 190 (quoting Marbury v. Madison, 1 Cranch 137, 175 (1803); alterations omitted). And I predicted that "`GVR'd for clarification of ___'" would "become a common form of order, drastically altering the role of this Court." 516 U.S., at 185. Today, by vacating the judgment of a state court simply because "[i]f this Court is to reach the merits of this case, it would be better to have the benefit of the views of the full Supreme Court of Appeals of West Virginia on the Brady issue," ante, at 870, the Court brings this prediction to fulfillment. In Lawrence, I identified three narrow circumstances in which this Court could, consistent with the traditional understanding of our appellate jurisdiction (or at least consistent with entrenched practice), justify vacating a lower court's judgment without first identifying error: "(1) where an intervening factor has arisen [e. g., new legislation or a recent judgment of this Court] that has a legal bearing upon the decision, (2) where, in a context not governed by Michigan v. Long, 463 U.S. 1032 (1983), clarification of the opinion below is needed to assure our jurisdiction, and (3) (in acknowledgment of established practice, though not necessarily in agreement with its validity) where the respondent or appellee confesses error in the judgment below." 516 U.S., at 191-192 (dissenting opinion). Needless to say, today's novel GVR order falls into none of these categories. There has been no intervening change in law that might bear upon the judgment. Our jurisdiction is not in doubt, see ante, at 870; State v. Frazier, 162 W. Va. 935, 942, n. 5, 253 S.E.2d 534, 538, n. 5 (1979) (petitioner's Brady claim was properly presented in his motion for a new trial). And the State has confessed no errornot even on the broadest and least supportable theory of what constitutes an error justifying vacatur. See, e. g., Alvarado v. United States, 497 U.S. 543, 545 872 (1990) (Rehnquist, C. J., dissenting) (vacating when the Solicitor General confessed error in the lower court's "`analysis,'" but not its judgment); Stutson v. United States, 516 U.S. 193 (1996) (per curiam) (vacating when the Solicitor General confessed error in a position taken before the Court of Appeals, on which the court might have relied; discussed in Lawrence, supra, at 184-185 (Scalia, J., dissenting)); Department of Interior v. South Dakota, 519 U.S. 919, 921 (1996) (Scalia, J., dissenting) (vacating when "the Government, having lost below, wishes to try out a new legal position"). Here, the Court vacates and remands in light of nothing. Instead, the Court remarks tersely that it would be "better" to have "the benefit" of the West Virginia court's views on petitioner's Brady claim, should we eventually decide to take the case. Ante, at 870. The Court thus purports to conscript the judges of the Supreme Court of Appeals of West Virginia to write what is essentially an amicus brief on the merits of an issue they have already decided, in order to facilitate our possible review of the merits at some later time. It is not at all clear why it would be so much "better" to have the full court below address the Brady claim. True, we often prefer to review reasoned opinions that facilitate our considerationthough we may review even a summary disposition. See Lawrence, supra, at 186 (Scalia, J., dissenting). But the dissenting judges in the case below discussed petitioner's Brady claim at some length (indeed, at greater length than appears in many of the decisions we agree to review), and argued that it was meritorious. See 217 W. Va. 535, 549-552, 618 S.E.2d 544, 558-561 (2005) (Davis, J., joined by Starcher, J., dissenting). Since we sometimes review judgments with no opinion, and often review judgments with opinion only on one side of the issue, it is not clear why we need opinions on both sides here. To tell the truth, there is only one obvious sense in which it might be "better" to have the West Virginia court revisit 873 the Brady issue: If the majority suspects that the court below erred, there is a chance that the GVR-in-light-of-nothing will induce it to change its mind on remand, sparing us the trouble of correcting the suspected error. It is noteworthy that, to justify its GVR order, the Court does not invoke even the flabby standard adopted in Lawrence, namely, whether there is "a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration," 516 U.S., at 167. That is because (there being no relevant intervening event to create such a probability) the only possibility that the West Virginia court will alter its considered judgment is created by this Court's GVR order itself. A case such as this, which meets none of the usual, outcome-neutral criteria for granting certiorari set forth in this Court's Rules 10(a)(c), could attract our notice only if we suspected that the judgment appealed from was in error. Those whose judgments we review have sometimes viewed even our legitimate, intervening-event GVR orders as polite directives that they reverse themselves. See, e. g., Sharpe v. United States, 712 F.2d 65, 67 (CA4 1983) (Russell, J., dissenting) ("Once again, I think the majority has mistaken gentleness in instruction for indefiniteness in command. The Supreme Court was seeking to be gentle with us but there is, I submit, no mistaking what they expected us to do"). How much more is that suspicion justified when the GVR order rests on nothing more than our statement that it would be "better" for the lower court to reconsider its decision (much as a mob enforcer might suggest that it would be "better" to make protection payments). Even when we suspect error, we may have many reasons not to grant certiorari outright in a case such as thisan overcrowded docket, a reluctance to correct "the misapplication of a properly stated rule of law," this Court's Rule 10, or (in this particular case) even a neo-Victorian desire to keep the lurid phrases of the "graphically explicit note," 874 ante, at 868, out of the U. S. Reports. But none of these reasons justifies "a tutelary remand, as to a schoolboy made to do his homework again." Lawrence, 516 U. S., at 185-186 (Scalia, J., dissenting). In "the nature of the appellate system created by the Constitution and laws of the United States," id., at 178, state courts and lower federal courts are constitutionally distinct tribunals, independently authorized to decide issues of federal law. They are not, as we treat them today, "the creatures and agents of this body," id., at 178-179. If we suspect that a lower court has erred and wish to correct its error, we should grant certiorari and decide the issue ourselves in accordance with the traditional exercise of our appellate jurisdiction. It is particularly ironic that the Court inaugurates its "GVR-in-light-of-nothing" practice by vacating the judgment of a state court. Our no-fault GVR practice had its origins "in situations calling forth the special deference owed to state law and state courts in our system of federalism." Id., at 179. We first used it to allow the state court to decide the effect of an intervening change in state law. Ibid. (citing Missouri ex rel. Wabash R. Co. v. Public Serv. Comm'n, 273 U.S. 126 (1927)). Likewise, our other legitimate category of no-fault GVRto ensure our own jurisdiction"originate[d] in the special needs of federalism." Lawrence, 516 U. S., at 181. In vacating the judgment of a state court for no better reason than our own convenience, we not only fail to observe, but positively flout the "special deference owed to . . . state courts," id., at 179. Like the Ouroboros swallowing its tail, our GVR practice has ingested its own original justification. Chief Justice Marshall wrote in Marbury v. Madison that "[i]t is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted . . . ." 1 Cranch, at 175. At best, today's unprecedented decision rests on a finding that the state court's "opinion, though arguably correct, [is] incomplete and unworkmanlike," *875 Lawrence, 516 U. S., at 189 (Scalia, J., dissenting)which all Members of the Court in Lawrence agreed was an illegitimate basis for a GVR, see id., at 173 (per curiam). At worst, it is an implied threat to the lower court, not backed by a judgment of our own, that it had "better" reconsider its holding. I suppose it would be available to the West Virginia Supreme Court of Appeals, on remand, simply to reaffirm its judgment without further elaboration. Or it could instead enter into a full discussion of the Brady issue, producing either a reaffirmance or a revision of its judgment. The latter course will of course encourage and stimulate our new "GVR-in-light-of-nothing" jurisprudence. Verb. sap. For these reasons, I respectfully dissent.	In we greatly expanded our "no-fault V & R practice" (GVR) 871 beyond its traditional bounds. At the time, I remarked that "[t]he power to `revise and correct' for error has become a power to void for suspicion" of error, ; alterations omitted). And I predicted that "`GVR'd for clarification of '" would "become a common form of order, drastically altering the role of this Court." Today, by vacating the judgment of a state court simply because "[i]f this Court is to reach the merits of this case, it would be better to have the benefit of the views of the full Supreme Court of Appeals of West Virginia on the Brady issue," ante, at 870, the Court brings this prediction to fulfillment. In I identified three narrow circumstances in which this Court could, consistent with the traditional understanding of our appellate jurisdiction (or at least consistent with entrenched practice), justify vacating a lower court's judgment without first identifying error: "(1) where an intervening factor has arisen [e. g., new legislation or a recent judgment of this Court] that has a legal bearing upon the decision, (2) where, in a context not governed by clarification of the opinion below is needed to assure our jurisdiction, and (3) (in acknowledgment of established practice, though not necessarily in agreement with its validity) where the respondent or appellee confesses error in the judgment below." -192 Needless to say, today's novel GVR order falls into none of these categories. There has been no intervening change in law that might bear upon the judgment. Our jurisdiction is not in doubt, see ante, at 870; And the State has confessed no errornot even on the broadest and least supportable theory of what constitutes an error justifying vacatur. See, e. g., (vacating when the Solicitor General confessed error in the lower court's "`analysis,'" but not its judgment); (vacating when the Solicitor General confessed error in a position taken before the Court of Appeals, on which the court might have relied; discussed in ); Department of (vacating when "the Government, having lost below, wishes to try out a new legal position"). Here, the Court vacates and remands in light of nothing. Instead, the Court remarks tersely that it would be "better" to have "the benefit" of the West Virginia court's views on petitioner's Brady claim, should we eventually decide to take the case. Ante, at 870. The Court thus purports to conscript the judges of the Supreme Court of Appeals of West Virginia to write what is essentially an amicus brief on the merits of an issue they have already decided, in order to facilitate our possible review of the merits at some later time. It is not at all clear why it would be so much "better" to have the full court below address the Brady claim. True, we often prefer to review reasoned opinions that facilitate our considerationthough we may review even a summary disposition. See But the dissenting judges in the case below discussed petitioner's Brady claim at some length (indeed, at greater length than appears in many of the decisions we agree to review), and argued that it was meritorious. See Since we sometimes review judgments with no opinion, and often review judgments with opinion only on one side of the issue, it is not clear why we need opinions on both sides here. To tell the truth, there is only one obvious sense in which it might be "better" to have the West Virginia court revisit 873 the Brady issue: If the majority suspects that the court below erred, there is a chance that the GVR-in-light-of-nothing will induce it to change its mind on remand, sparing us the trouble of correcting the suspected error. It is noteworthy that, to justify its GVR order, the Court does not invoke even the flabby standard adopted in namely, whether there is "a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration," That is because (there being no relevant intervening event to create such a probability) the only possibility that the West Virginia court will alter its considered judgment is created by this Court's GVR order itself. A case such as this, which meets none of the usual, outcome-neutral criteria for granting certiorari set forth in this Court's Rules 10(a)(c), could attract our notice only if we suspected that the judgment appealed from was in error. Those whose judgments we review have sometimes viewed even our legitimate, intervening-event GVR orders as polite directives that they reverse themselves. See, e. g., ("Once again, I think the majority has mistaken gentleness in instruction for indefiniteness in command. The Supreme Court was seeking to be gentle with us but there is, I submit, no mistaking what they expected us to do"). How much more is that suspicion justified when the GVR order rests on nothing more than our statement that it would be "better" for the lower court to reconsider its decision (much as a mob enforcer might suggest that it would be "better" to make protection payments). Even when we suspect error, we may have many reasons not to grant certiorari outright in a case such as thisan overcrowded docket, a reluctance to correct "the misapplication of a properly stated rule of law," this Court's Rule 10, or (in this particular case) even a neo-Victorian desire to keep the lurid phrases of the "graphically explicit note," 874 ante, at 868, out of the U. S. Reports. But none of these reasons justifies "a tutelary remand, as to a schoolboy made to do his homework again." -186 In "the nature of the appellate system created by the Constitution and laws of the United States," state courts and lower federal courts are constitutionally distinct tribunals, independently authorized to decide issues of federal law. They are not, as we treat them today, "the creatures and agents of this body," -179. If we suspect that a lower court has erred and wish to correct its error, we should grant certiorari and decide the issue ourselves in accordance with the traditional exercise of our appellate jurisdiction. It is particularly ironic that the Court inaugurates its "GVR-in-light-of-nothing" practice by vacating the judgment of a state court. Our no-fault GVR practice had its origins "in situations calling forth the special deference owed to state law and state courts in our system of federalism." We first used it to allow the state court to decide the effect of an intervening change in state law. ). Likewise, our other legitimate category of no-fault GVRto ensure our own jurisdiction"originate[d] in the special needs of federalism." In vacating the judgment of a state court for no better reason than our own convenience, we not only fail to observe, but positively flout the "special deference owed to state courts," Like the Ouroboros swallowing its tail, our GVR practice has ingested its own original justification. Chief Justice Marshall wrote in that "[i]t is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted" 1 Cranch, at At best, today's unprecedented decision rests on a finding that the state court's "opinion, though arguably correct, [is] incomplete and unworkmanlike," 875 which all Members of the Court in agreed was an illegitimate basis for a GVR, see At worst, it is an implied threat to the lower court, not backed by a judgment of our own, that it had "better" reconsider its holding. I suppose it would be available to the West Virginia Supreme Court of Appeals, on remand, simply to reaffirm its judgment without further elaboration. Or it could instead enter into a full discussion of the Brady issue, producing either a reaffirmance or a revision of its judgment. The latter course will of course encourage and stimulate our new "GVR-in-light-of-nothing" jurisprudence. Verb. sap. For these reasons, I respectfully dissent.
Justice Ginsburg	majority	false	Alabama v. Shelton	2002-05-20T00:00:00	null	https://www.courtlistener.com/opinion/118507/alabama-v-shelton/	https://www.courtlistener.com/api/rest/v3/clusters/118507/	2,002	2001-050	2	5	4	This case concerns the Sixth Amendment right of an indigent defendant charged with a misdemeanor punishable by imprisonment, fine, or both, to the assistance of courtappointed counsel. Two prior decisions control the Court's judgment. First, in Argersinger v. Hamlin, 407 U.S. 25 (1972), this Court held that defense counsel must be appointed in any criminal prosecution, "whether classified as petty, misdemeanor, or felony," id., at 37, "that actually leads to imprisonment even for a brief period," id., at 33. Later, in Scott v. Illinois, 440 U.S. 367, 373-374 (1979), the Court drew the line at "actual imprisonment," holding that counsel need not be appointed when the defendant is fined for the charged crime, but is not sentenced to a term of imprisonment. 658 Defendant-respondent LeReed Shelton, convicted of third-degree assault, was sentenced to a jail term of 30 days, which the trial court immediately suspended, placing Shelton on probation for two years. The question presented is whether the Sixth Amendment right to appointed counsel, as delineated in Argersinger and Scott, applies to a defendant in Shelton's situation. We hold that a suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged. Argersinger, 407 U. S., at 40 (internal quotation marks omitted). I After representing himself at a bench trial in the District Court of Etowah County, Alabama, Shelton was convicted of third-degree assault, a class A misdemeanor carrying a maximum punishment of one year imprisonment and a $2,000 fine, Ala. Code §§ 13A-6-22, 13A-5-7(a)(1), 13A-5-12(a)(1) (1994). He invoked his right to a new trial before a jury in Circuit Court, Ala. Code § 12-12-71 (1995), where he again appeared without a lawyer and was again convicted. The court repeatedly warned Shelton about the problems selfrepresentation entailed, see App. 9, but at no time offered him assistance of counsel at state expense. The Circuit Court sentenced Shelton to serve 30 days in the county prison. As authorized by Alabama law, however, Ala. Code § 15-22-50 (1995), the court suspended that sentence and placed Shelton on two years' unsupervised probation, conditioned on his payment of court costs, a $500 fine, reparations of $25, and restitution in the amount of $516.69. Shelton appealed his conviction and sentence on Sixth Amendment grounds, and the Alabama Court of Criminal 659 Appeals affirmed.[1] That court initially held that an indigent defendant who receives a suspended prison sentence has a constitutional right to state-appointed counsel and remanded for a determination whether Shelton had "made a knowing, intelligent, and voluntary waiver of his right." App. 7. When the case returned from remand, however, the appeals court reversed course: A suspended sentence, the court concluded, does not trigger the Sixth Amendment right to appointed counsel unless there is "evidence in the record that the [defendant] has actually been deprived of liberty." Id., at 13. Because Shelton remained on probation, the court held that he had not been denied any Sixth Amendment right at trial. Id., at 14. The Supreme Court of Alabama reversed the Court of Criminal Appeals in relevant part. Referring to this Court's decisions in Argersinger and Scott, the Alabama Supreme Court reasoned that a defendant may not be "sentenced to a term of imprisonment" absent provision of counsel. App. 37. In the Alabama high court's view, a suspended sentence constitutes a "term of imprisonment" within the meaning of Argersinger and Scott even though incarceration is not immediate or inevitable. And because the State is constitutionally barred from activating the conditional sentence, the Alabama court concluded, "`the threat itself is hollow and should be considered a nullity.' " App. 37 (quoting United States v. Reilley, 948 F.2d 648, 654 (CA10 1991)). Accordingly, the court affirmed Shelton's conviction and the monetary portion of his punishment, but invalidated "that aspect of his sentence imposing 30 days of 660 suspended jail time." App. 40. By reversing Shelton's suspended sentence, the State informs us, the court also vacated the two-year term of probation. See Brief for Petitioner 6.[2] Courts have divided on the Sixth Amendment question presented in this case. Some have agreed with the decision below that appointment of counsel is a constitutional prerequisite to imposition of a conditional or suspended prison sentence. See, e. g., Reilley, 948 F. 2d, at 654; United States v. Foster, 904 F.2d 20, 21 (CA9 1990); United States v. White, 529 F.2d 1390, 1394 (CA8 1976). Others have rejected that proposition. See, e. g., Cottle v. Wainwright, 477 F.2d 269, 274 (CA5), vacated on other grounds, 414 U.S. 895 (1973); Griswold v. Commonwealth, 252 Va. 113, 116-117, 472 S.E.2d 789, 791 (1996); State v. Hansen, 273 Mont. 321, 325, 903 P.2d 194, 197 (1995). We granted certiorari to resolve the conflict. 532 U.S. 1018 (2001). II Three positions are before us in this case. In line with the decision of the Supreme Court of Alabama, Shelton argues that an indigent defendant may not receive a suspended sentence unless he is offered or waives the assistance of state-appointed counsel. Brief for Respondent 5-27.[3] Alabama 661 now concedes that the Sixth Amendment bars activation of a suspended sentence for an uncounseled conviction, but maintains that the Constitution does not prohibit imposition of such a sentence as a method of effectuating probationary punishment. Reply Brief 4-13. To assure full airing of the question presented, we invited an amicus curiae (amicus) to argue in support of a third position, one Alabama has abandoned: Failure to appoint counsel to an indigent defendant "does not bar the imposition of a suspended or probationary sentence upon conviction of a misdemeanor, even though the defendant might be incarcerated in the event probation is revoked." 534 U.S. 987 (2001).[4] A In Gideon v. Wainwright, 372 U.S. 335, 344-345 (1963), we held that the Sixth Amendment's guarantee of the right to state-appointed counsel, firmly established in federal-court proceedings in Johnson v. Zerbst, 304 U.S. 458 (1938), applies to state criminal prosecutions through the Fourteenth Amendment. We clarified the scope of that right in Argersinger, holding that an indigent defendant must be offered counsel in any misdemeanor case "that actually leads to imprisonment." 407 U.S., at 33. Seven Terms later, Scott confirmed Argersinger `s "delimit[ation]," 440 U.S., at 373. Although the governing statute in Scott authorized a jail sentence of up to one year, see id., at 368, we held that the defendant had no right to state-appointed counsel because the sole sentence actually imposed on him was a $50 fine, id., at 373. "Even were the matter res nova, " we stated, "the central premise of Argersinger that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonmentis eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel" in nonfelony cases. Ibid. 662 Subsequent decisions have reiterated the Argersinger Scott "actual imprisonment" standard. See, e. g., Glover v. United States, 531 U.S. 198, 203 (2001) ("any amount of actual jail time has Sixth Amendment significance"); M. L. B. v. S. L. J., 519 U.S. 102, 113 (1996); Nichols v. United States, 511 U.S. 738, 746 (1994) (constitutional line is "between criminal proceedings that resulted in imprisonment, and those that did not"); id., at 750 (Souter, J., concurring in judgment) ("The Court in Scott, relying on Argersinger [,] drew a bright line between imprisonment and lesser criminal penalties."); Lassiter v. Department of Social Servs. of Durham Cty., 452 U.S. 18, 26 (1981). It is thus the controlling rule that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial." Argersinger, 407 U. S., at 37. B Applying the "actual imprisonment" rule to the case before us, we take up first the question we asked amicus to address: Where the State provides no counsel to an indigent defendant, does the Sixth Amendment permit activation of a suspended sentence upon the defendant's violation of the terms of probation? We conclude that it does not. A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense. The uncounseled conviction at that point "result[s] in imprisonment," Nichols, 511 U. S., at 746; it "end[s] up in the actual deprivation of a person's liberty," Argersinger, 407 U. S., at 40. This is precisely what the Sixth Amendment, as interpreted in Argersinger and Scott, does not allow. Amicus resists this reasoning primarily on two grounds. First, he attempts to align this case with our decisions in Nichols and Gagnon v. Scarpelli, 411 U.S. 778 (1973). See Brief for Amicus Curiae by Invitation of the Court 11-18 663 (hereinafter Fried Brief). We conclude that Shelton's case is not properly bracketed with those dispositions. Nichols presented the question whether the Sixth Amendment barred consideration of a defendant's prior uncounseled misdemeanor conviction in determining his sentence for a subsequent felony offense. 511 U.S., at 740. Nichols pleaded guilty to federal felony drug charges. Several years earlier, unrepresented by counsel, he was fined but not incarcerated for the state misdemeanor of driving under the influence (DUI). Including the DUI conviction in the federal Sentencing Guidelines calculation allowed the trial court to impose a sentence for the felony drug conviction "25 months longer than if the misdemeanor conviction had not been considered." Id., at 741. We upheld this result, concluding that "an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction." Id., at 749. In Gagnon, the question was whether the defendant, who was placed on probation pursuant to a suspended sentence for armed robbery, had a due process right to representation by appointed counsel at a probation revocation hearing. 411 U.S., at 783. We held that counsel was not invariably required in parole or probation revocation proceedings; we directed, instead, a "case-by-case approach" turning on the character of the issues involved. Id., at 788-791. Considered together, amicus contends, Nichols and Gagnon establish this principle: Sequential proceedings must be analyzed separately for Sixth Amendment purposes, Fried Brief 11-18, and only those proceedings "result[ing] in immediate actual imprisonment" trigger the right to stateappointed counsel, id., at 13 (emphasis added). Thus, the defendant in Nichols had no right to appointed counsel in the DUI proceeding because he was not immediately imprisoned at the conclusion of that proceeding. The uncounseled DUI, valid when imposed, did not later become invalid because 664 it was used to enhance the length of imprisonment that followed a separate and subsequent felony proceeding. Just so here, amicus contends: Shelton had no right to appointed counsel in the Circuit Court because he was not incarcerated immediately after trial; his conviction and suspended sentence were thus valid and could serve as proper predicates for actual imprisonment at a later hearing to revoke his probation. See Fried Brief 14, 23-24. Gagnon and Nichols do not stand for the broad proposition amicus would extract from them. The dispositive factor in those cases was not whether incarceration occurred immediately or only after some delay. Rather, the critical point was that the defendant had a recognized right to counsel when adjudicated guilty of the felony offense for which he was imprisoned. See Nichols, 511 U. S., at 743, n. 9 (absent waiver, right to appointed counsel in felony cases is absolute). Unlike this case, in which revocation of probation would trigger a prison term imposed for a misdemeanor of which Shelton was found guilty without the aid of counsel, the sentences imposed in Nichols and Gagnon were for felony convictionsa federal drug conviction in Nichols, and a state armed robbery conviction in Gagnon for which the right to counsel is unquestioned. See Nichols, 511 U. S., at 747 (relevant sentencing provisions punished only "the last offense committed by the defendant," and did not constitute or "change the penalty imposed for the earlier" uncounseled misdemeanor); Gagnon, 411 U. S., at 789 (distinguishing "the right of an accused to counsel in a criminal prosecution" from "the more limited due process right of one who is a probationer or parolee only because he has been convicted of a crime"). Thus, neither Nichols nor Gagnon altered or diminished Argersinger `s command that "no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial," 407 U.S., at 37 (emphasis added). Far from 665 supporting amicus ` position, Gagnon and Nichols simply highlight that the Sixth Amendment inquiry trains on the stage of the proceedings corresponding to Shelton's Circuit Court trial, where his guilt was adjudicated, eligibity for imprisonment established, and prison sentence determined. Nichols is further distinguishable for the related reason that the Court there applied a "less exacting" standard "consistent with the traditional understanding of the sentencing process." 511 U.S., at 747. Once guilt has been established, we noted in Nichols, sentencing courts may take into account not only "a defendant's prior convictions, but . . . also [his] past criminal behavior, even if no conviction resulted from that behavior." Ibid. Thus, in accord with due process, Nichols "could have been sentenced more severely based simply on evidence of the underlying conduct that gave rise" to his previous conviction, id., at 748 (emphasis added), even if he had never been charged with that conduct, Williams v. New York, 337 U.S. 241 (1949), and even if he had been acquitted of the misdemeanor with the aid of appointed counsel, United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam). That relaxed standard has no application in this case, where the question is whether the defendant may be jailed absent a conviction credited as reliable because the defendant had access to "the guiding hand of counsel," Argersinger, 407 U. S., at 40 (internal quotation marks omitted). Amicus also contends that "practical considerations clearly weigh against" the extension of the Sixth Amendment appointed-counsel right to a defendant in Shelton's situation. Fried Brief 23. He cites figures suggesting that although conditional sentences are commonly imposed, they are rarely activated. Id., at 20-22; Tr. of Oral Arg. 20-21 (speculating that "hundreds of thousands" of uncounseled defendants receive suspended sentences, but only "thousands" of that large number are incarcerated upon violating the terms of their probation). Based on these estimations, ami- 666 cus argues that a rule requiring appointed counsel in every case involving a suspended sentence would unduly hamper the States' attempts to impose effective probationary punishment. A more "workable solution," he contends, would permit imposition of a suspended sentence on an uncounseled defendant and require appointment of counsel, if at all, only at the probation revocation stage, when incarceration is imminent. Fried Brief 18, 23-24. Amicus observes that probation is "now a critical tool of law enforcement in low level cases." Id., at 22. Even so, it does not follow that preservation of that tool warrants the reduction of the Sixth Amendment's domain that would result from the regime amicus hypothesizes. Amicus does not describe the contours of the hearing that, he suggests, might precede revocation of a term of probation imposed on an uncounseled defendant. See id., at 24 (raising, but not endeavoring to answer, several potential questions about the nature of the revocation hearing amicus contemplates). In Alabama, however, the character of the probation revocation hearing currently afforded is not in doubt. The proceeding is an "informal" one, Buckelew v. State, 48 Ala. App. 418, 421, 265 So. 2d 202, 205 (Crim. App. 1972), at which the defendant has no right to counsel, and the court no obligation to observe customary rules of evidence, Martin v. State, 46 Ala. App. 310, 311, 241 So. 2d 339, 340 (Crim. App. 1970). More significant, the sole issue at the hearingapart from determinations about the necessity of confinement, see Ala. Code § 15-22-54(d)(4) (1975)is whether the defendant breached the terms of probation. See Martin, 46 Ala. App., at 312, 241 So. 2d, at 341 ("All that is required in a hearing of this character is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has violated a valid condition upon which the sentence was suspended." (internal quotation marks omitted)). The validity or reliability of the underlying conviction is beyond attack. See Buckelew, 48 Ala. App., at 421, 667 265 So. 2d, at 205 ("a probation hearing cannot entertain a collateral attack on a judgment of another circuit"). We think it plain that a hearing so timed and structured cannot compensate for the absence of trial counsel, for it does not even address the key Sixth Amendment inquiry: whether the adjudication of guilt corresponding to the prison sentence is sufficiently reliable to permit incarceration. Deprived of counsel when tried, convicted, and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton's circumstances faces incarceration on a conviction that has never been subjected to "the crucible of meaningful adversarial testing," United States v. Cronic, 466 U.S. 648, 656 (1984). The Sixth Amendment does not countenance this result. In a variation on amicus' position, the dissent would limit review in this case to the question whether the imposition of Shelton's suspended sentence required appointment of counsel, answering that question "plainly no" because such a step "does not deprive a defendant of his personal liberty." Post, at 676. Only if the sentence is later activated, the dissent contends, need the Court "ask whether the procedural safeguards attending the imposition of [Shelton's] sentence comply with the Constitution." Ibid. Severing the analysis in this manner makes little sense. One cannot assess the constitutionality of imposing a suspended sentence while simultaneously walling off the procedures that will precede its activation. The dissent imagines a set of safeguards Alabama might provide at the probation revocation stage sufficient to cure its failure to appoint counsel prior to sentencing, including, perhaps, "complete retrial of the misdemeanor violation with assistance of counsel," post, at 677. But there is no cause for speculation about Alabama's procedures; they are established by Alabama statute and decisional law, see supra, at 666 and this page, and they bear no resemblance to those the dissent invents in its effort to sanction the prospect of Shelton's imprisonment on 668 an uncounseled conviction.[5] Assessing the issue before us in light of actual circumstances, we do not comprehend how the procedures Alabama in fact provides at the probation revocation hearing could bring Shelton's sentence within constitutional bounds.[6] Nor do we agree with amicus or the dissent that our holding will "substantially limit the states' ability" to impose probation, Fried Brief 22, or encumber them with a "large, new burden," post, at 680. Most jurisdictions already provide a state-law right to appointed counsel more generous than that afforded by the Federal Constitution. See 669 Nichols, 511 U. S., at 748-749, n. 12. All but 16 States, for example, would provide counsel to a defendant in Shelton's circumstances, either because he received a substantial fine[7] or because state law authorized incarceration for the charged offense[8] or provided for a maximum prison term of one year.[9] See Ala. Code §§ 13A-6-22, 13A-5-7(a)(1), 13A 5-12(a)(1) (1994). There is thus scant reason to believe that a rule conditioning imposition of a suspended sentence on provision of appointed counsel would affect existing practice 670 in the large majority of the States.[10] And given the current commitment of most jurisdictions to affording courtappointed counsel to indigent misdemeanants while simultaneously preserving the option of probationary punishment, we do not share amicus' concern that other States may lack the capacity and resources to do the same. Moreover, even if amicus is correct that "some courts and jurisdictions at least [can]not bear" the costs of the rule we confirm today, Fried Brief 23, those States need not abandon probation or equivalent measures as viable forms of punishment. 671 Although they may not attach probation to an imposed and suspended prison sentence, States unable or unwilling routinely to provide appointed counsel to misdemeanants in Shelton's situation are not without recourse to another option capable of yielding a similar result. That option is pretrial probation, employed in some form by at least 23 States. See App. to Reply Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 1a2a (collecting state statutes). Under such an arrangement, the prosecutor and defendant agree to the defendant's participation in a pretrial rehabilitation program,[11] which includes conditions typical of post-trial probation. The adjudication of guilt and imposition of sentence for the underlying offense then occur only if and when the defendant breaches those conditions. Ibid.; see, e. g., Conn. Gen. Stat. § 54-56e (2001); Pa. Rules Crim. Proc. 310-320, 316 (2002) ("The conditions of the [pretrial rehabilitation] program may be such as may be imposed with respect to probation after conviction of a crime."); N. Y. Crim. Proc. Law § 170.55(3) (McKinney Supp. 2001) (pretrial "adjournment in contemplation of dismissal" may require defendant "to observe certain specified conditions of conduct").[12] Like the regime urged by amicus, this system reserves the appointed-counsel requirement for the "small percentage" 672 of cases in which incarceration proves necessary, Fried Brief 21, thus allowing a State to "supervise a course of rehabilitation" without providing a lawyer every time it wishes to pursue such a course, Gagnon, 411 U. S., at 784. Unlike amicus ` position, however, pretrial probation also respects the constitutional imperative that "no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial," Argersinger, 407 U. S., at 37. C Alabama concedes that activation of a suspended sentence results in the imprisonment of an uncounseled defendant "for a term that relates to the original offense" and therefore "crosses the line of `actual imprisonment' " established in Argersinger and Scott. Reply Brief to Amicus Curiae Professor Charles Fried 8. Shelton cannot be imprisoned, Alabama thus acknowledges, "unless the State has afforded him the right to assistance of appointed counsel in his defense," Scott, 440 U. S.,at 374; see Reply Brief 9. Alabama maintains, however, that there is no constitutional barrier to imposition of a suspended sentence that can never be enforced; the State therefore urges reversal of the Alabama Supreme Court's judgment insofar as it vacated the term of probation Shelton was ordered to serve. In effect, Alabama invites us to regard two years' probation for Shelton as a separate and independent sentence, which "the State would have the same power to enforce [as] a judgment of a mere fine." Tr. of Oral Arg. 6. Scott, Alabama emphasizes, squarely held that a fine-only sentence does not trigger a right to court-appointed counsel, Tr. of Oral Arg. 6; similarly, Alabama maintains, probation uncoupled from a prison sentence should trigger no immediate right to appointed counsel. Seen as a freestanding sentence, Alabama further asserts, probation could be enforced, as a criminal fine or restitution order could, in a contempt proceeding. 673 See Reply Brief 11-12; Reply Brief to Amicus Curiae Professor Charles Fried 10-13; Tr. of Oral Arg. 7. Alabama describes the contempt proceeding it envisions as one in which Shelton would receive "the full panoply of due process," including the assistance of counsel. Reply Brief 12. Any sanction imposed would be for "postconviction wrongdoing," not for the offense of conviction. Reply Brief to Amicus Curiae Professor Charles Fried 11. "The maximum penalty faced would be a $100 fine and five days' imprisonment," Reply Brief 12 (citing Ala. Code § 12 11-30(5) (1995)), not the 30 days ordered and suspended by the Alabama Circuit Court, see supra, at 658. There is not so much as a hint, however, in the decision of the Supreme Court of Alabama, that Shelton's probation term is separable from the prison term to which it was tethered. Absent any prior presentation of the position the State now takes,[13] we resist passing on it in the first instance. Our resistance to acting as a court of first view instead of one of review is heightened by the Alabama Attorney General's acknowledgment at oral argument that he did not know of any State that imposes, postconviction, on a par with a fine, a term of probation unattached to a suspended sentence. Tr. of Oral Arg. 8. The novelty of the State's current position is further marked by the unqualified statement in Alabama's opening brief that, "[b]y reversing Shelton's suspended sentence, the [Supreme Court of Alabama] correspondingly vacated the two-year probationary term." Brief for Petitioner 6. 674 In short, Alabama has developed its position late in this litigation and before the wrong forum. It is for the Alabama Supreme Court to consider before this Court does whether the suspended sentence alone is invalid, leaving Shelton's probation term freestanding and independently effective. See Hortonville Joint School Dist. No. 1 v. Hortonville Ed. Assn., 426 U.S. 482, 488 (1976) ("We are, of course, bound to accept the interpretation of [the State's] law by the highest court of the State."). We confine our review to the ruling the Alabama Supreme Court made in the case as presented to it: "[A] defendant who receives a suspended or probated sentence to imprisonment has a constitutional right to counsel." App. 40 (emphasis added); see Brief for Petitioner 6. We find no infirmity in that holding. * * Satisfied that Shelton is entitled to appointed counsel at the critical stage when his guilt or innocence of the charged crime is decided and his vulnerability to imprisonment is determined, we affirm the judgment of the Supreme Court of Alabama. It is so ordered.	This case concerns the Sixth Amendment right of an indigent defendant charged with a misdemeanor punishable by imprisonment, fine, or both, to the assistance of courtappointed counsel. Two prior decisions control the Court's judgment. First, in this Court held that defense counsel must be appointed in any criminal prosecution, "whether classified as petty, misdemeanor, or felony," "that actually leads to imprisonment even for a brief period," Later, in the Court drew the line at "actual imprisonment," holding that counsel need not be appointed when the defendant is fined for the charged crime, but is not sentenced to a term of imprisonment. 658 Defendant-respondent LeReed Shelton, convicted of third-degree assault, was sentenced to a jail term of 30 days, which the trial court immediately suspended, placing Shelton on probation for two years. The question presented is whether the Sixth Amendment right to appointed counsel, as delineated in and Scott, applies to a defendant in Shelton's situation. We hold that a suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged. I After representing himself at a bench trial in the District Court of Etowah County, Alabama, Shelton was convicted of third-degree assault, a class A misdemeanor carrying a maximum punishment of one year imprisonment and a $2,000 fine, Ala. Code 13A-6-22, 13A-5-7(a)(1), 13A-5-12(a)(1) He invoked his right to a new trial before a jury in Circuit Court, where he again appeared without a lawyer and was again convicted. The court repeatedly warned Shelton about the problems selfrepresentation entailed, see App. 9, but at no time offered him assistance of counsel at state expense. The Circuit Court sentenced Shelton to serve 30 days in the county prison. As authorized by Alabama law, however, the court suspended that sentence and placed Shelton on two years' unsupervised probation, conditioned on his payment of court costs, a $500 fine, reparations of $25, and restitution in the amount of $516.69. Shelton appealed his conviction and sentence on Sixth Amendment grounds, and the Alabama Court of Criminal 659 Appeals affirmed.[1] That court initially held that an indigent defendant who receives a suspended prison sentence has a constitutional right to state-appointed counsel and remanded for a determination whether Shelton had "made a knowing, intelligent, and voluntary waiver of his right." App. 7. When the case returned from remand, however, the appeals court reversed course: A suspended sentence, the court concluded, does not trigger the Sixth Amendment right to appointed counsel unless there is "evidence in the record that the [defendant] has actually been deprived of liberty." Because Shelton remained on probation, the court held that he had not been denied any Sixth Amendment right at trial. The Supreme Court of Alabama reversed the Court of Criminal Appeals in relevant part. Referring to this Court's decisions in and Scott, the Alabama Supreme Court reasoned that a defendant may not be "sentenced to a term of imprisonment" absent provision of counsel. App. 37. In the Alabama high court's view, a suspended sentence constitutes a "term of imprisonment" within the meaning of and Scott even though incarceration is not immediate or inevitable. And because the State is constitutionally barred from activating the conditional sentence, the Alabama court concluded, "`the threat itself is hollow and should be considered a nullity.' " App. 37 ). Accordingly, the court affirmed Shelton's conviction and the monetary portion of his punishment, but invalidated "that aspect of his sentence imposing 30 days of 660 suspended jail time." App. 40. By reversing Shelton's suspended sentence, the State informs us, the court also vacated the two-year term of probation. See Brief for Petitioner 6.[2] Courts have divided on the Sixth Amendment question presented in this case. Some have agreed with the decision below that appointment of counsel is a constitutional prerequisite to imposition of a conditional or suspended prison sentence. See, e. g., Reilley, 948 F. 2d, at ; United ; United Others have rejected that proposition. See, e. g., (CA5), vacated on other grounds, ; ; 273 Mont. 3, We granted certiorari to resolve the conflict. II Three positions are before us in this case. In line with the decision of the Supreme Court of Alabama, Shelton argues that an indigent defendant may not receive a suspended sentence unless he is offered or waives the assistance of state-appointed counsel. Brief for Respondent 5-27.[3] Alabama 661 now concedes that the Sixth Amendment bars activation of a suspended sentence for an uncounseled conviction, but maintains that the Constitution does not prohibit imposition of such a sentence as a method of effectuating probationary punishment. Reply Brief 4-13. To assure full airing of the question presented, we invited an amicus curiae (amicus) to argue in support of a third position, one Alabama has abandoned: Failure to appoint counsel to an indigent defendant "does not bar the imposition of a suspended or probationary sentence upon conviction of a misdemeanor, even though the defendant might be incarcerated in the event probation is revoked."[4] A In we held that the Sixth Amendment's guarantee of the right to state-appointed counsel, firmly established in federal-court proceedings in applies to state criminal prosecutions through the Fourteenth Amendment. We clarified the scope of that right in holding that an indigent defendant must be offered counsel in any misdemeanor case "that actually leads to imprisonment." 407 U.S., Seven Terms later, Scott confirmed `s "delimit[ation]," 440 U.S., 3. Although the governing statute in Scott authorized a jail sentence of up to one year, see we held that the defendant had no right to state-appointed counsel because the sole sentence actually imposed on him was a $50 fine, 3. "Even were the matter res nova, " we stated, "the central premise of that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonmentis eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel" in nonfelony cases. 662 Subsequent decisions have reiterated the Scott "actual imprisonment" standard. See, e. g., ; M. L. ; ; ("The Court in Scott, relying on [,] drew a bright line between imprisonment and lesser criminal penalties."); It is thus the controlling rule that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense unless he was represented by counsel at his trial." 407 U. S., B Applying the "actual imprisonment" rule to the case before us, we take up first the question we asked amicus to address: Where the State provides no counsel to an indigent defendant, does the Sixth Amendment permit activation of a suspended sentence upon the defendant's violation of the terms of probation? We conclude that it does not. A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying The uncounseled conviction at that point "result[s] in imprisonment," 511 U. S., at ; it "end[s] up in the actual deprivation of a person's liberty," This is precisely what the Sixth Amendment, as interpreted in and Scott, does not allow. Amicus resists this reasoning primarily on two grounds. First, he attempts to align this case with our decisions in and See Brief for Amicus Curiae by Invitation of the Court 11-18 663 (hereinafter Fried Brief). We conclude that Shelton's case is not properly bracketed with those dispositions. presented the question whether the Sixth Amendment barred consideration of a defendant's prior uncounseled misdemeanor conviction in determining his sentence for a subsequent felony pleaded guilty to federal felony drug charges. Several years earlier, unrepresented by counsel, he was fined but not incarcerated for the state misdemeanor of driving under the influence (DUI). Including the DUI conviction in the federal Sentencing Guidelines calculation allowed the trial court to impose a sentence for the felony drug conviction "25 months longer than if the misdemeanor conviction had not been considered." We upheld this result, concluding that "an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction." In the question was whether the defendant, who was placed on probation pursuant to a suspended sentence for armed robbery, had a due process right to representation by appointed counsel at a probation revocation We held that counsel was not invariably required in parole or probation revocation proceedings; we directed, instead, a "case-by-case approach" turning on the character of the issues involved. at 788-. Considered together, amicus contends, and establish this principle: Sequential proceedings must be analyzed separately for Sixth Amendment purposes, Fried Brief 11-18, and only those proceedings "result[ing] in immediate actual imprisonment" trigger the right to stateappointed counsel, Thus, the defendant in had no right to appointed counsel in the DUI proceeding because he was not immediately imprisoned at the conclusion of that proceeding. The uncounseled DUI, valid when imposed, did not later become invalid because 664 it was used to enhance the length of imprisonment that followed a separate and subsequent felony proceeding. Just so here, amicus contends: Shelton had no right to appointed counsel in the Circuit Court because he was not incarcerated immediately after trial; his conviction and suspended sentence were thus valid and could serve as proper predicates for actual imprisonment at a later hearing to revoke his probation. See Fried Brief 14, 23-24. and do not stand for the broad proposition amicus would extract from them. The dispositive factor in those cases was not whether incarceration occurred immediately or only after some delay. Rather, the critical point was that the defendant had a recognized right to counsel when adjudicated guilty of the felony offense for which he was imprisoned. See n. 9 Unlike this case, in which revocation of probation would trigger a prison term imposed for a misdemeanor of which Shelton was found guilty without the aid of counsel, the sentences imposed in and were for felony convictionsa federal drug conviction in and a state armed robbery conviction in for which the right to counsel is unquestioned. See ; Thus, neither nor altered or diminished `s command that "no person may be imprisoned for any offense unless he was represented by counsel at his trial," 407 U.S., Far from 665 supporting amicus ` position, and simply highlight that the Sixth Amendment inquiry trains on the stage of the proceedings corresponding to Shelton's Circuit Court trial, where his guilt was adjudicated, eligibity for imprisonment established, and prison sentence determined. is further distinguishable for the related reason that the Court there applied a "less exacting" standard "consistent with the traditional understanding of the sentencing process." Once guilt has been established, we noted in sentencing courts may take into account not only "a defendant's prior convictions, but also [his] past criminal behavior, even if no conviction resulted from that behavior." Thus, in accord with due process, "could have been sentenced more severely based simply on evidence of the underlying conduct that gave rise" to his previous conviction, even if he had never been charged with that conduct, and even if he had been acquitted of the misdemeanor with the aid of appointed counsel, United That relaxed standard has no application in this case, where the question is whether the defendant may be jailed absent a conviction credited as reliable because the defendant had access to "the guiding hand of counsel," Amicus also contends that "practical considerations clearly weigh against" the extension of the Sixth Amendment appointed-counsel right to a defendant in Shelton's situation. Fried Brief 23. He cites figures suggesting that although conditional sentences are commonly imposed, they are rarely activated. ; Tr. of Oral Arg. 20- (speculating that "hundreds of thousands" of uncounseled defendants receive suspended sentences, but only "thousands" of that large number are incarcerated upon violating the terms of their probation). Based on these estimations, ami- 666 cus argues that a rule requiring appointed counsel in every case involving a suspended sentence would unduly hamper the States' attempts to impose effective probationary punishment. A more "workable solution," he contends, would permit imposition of a suspended sentence on an uncounseled defendant and require appointment of counsel, if at all, only at the probation revocation stage, when incarceration is imminent. Fried Brief 18, 23-24. Amicus observes that probation is "now a critical tool of law enforcement in low level cases." Even so, it does not follow that preservation of that tool warrants the reduction of the Sixth Amendment's domain that would result from the regime amicus hypothesizes. Amicus does not describe the contours of the hearing that, he suggests, might precede revocation of a term of probation imposed on an uncounseled defendant. See In Alabama, however, the character of the probation revocation hearing currently afforded is not in doubt. The proceeding is an "informal" one, 4, 5 So. 2d 202, at which the defendant has no right to counsel, and the court no obligation to observe customary rules of evidence, (Crim. App. 0). More significant, the sole issue at the hearingapart from determinations about the necessity of confinement, see (d)(4) (5)is whether the defendant breached the terms of probation. See ("All that is required in a hearing of this character is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has violated a valid condition upon which the sentence was suspended." ). The validity or reliability of the underlying conviction is beyond attack. See 48 Ala. App., at 4, 5 So. 2d, at We think it plain that a hearing so timed and structured cannot compensate for the absence of trial counsel, for it does not even address the key Sixth Amendment inquiry: whether the adjudication of guilt corresponding to the prison sentence is sufficiently reliable to permit incarceration. Deprived of counsel when tried, convicted, and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton's circumstances faces incarceration on a conviction that has never been subjected to "the crucible of meaningful adversarial testing," United The Sixth Amendment does not countenance this result. In a variation on amicus' position, the dissent would limit review in this case to the question whether the imposition of Shelton's suspended sentence required appointment of counsel, answering that question "plainly no" because such a step "does not deprive a defendant of his personal liberty." Post, at 676. Only if the sentence is later activated, the dissent contends, need the Court "ask whether the procedural safeguards attending the imposition of [Shelton's] sentence comply with the Constitution." Severing the analysis in this manner makes little sense. One cannot assess the constitutionality of imposing a suspended sentence while simultaneously walling off the procedures that will precede its activation. The dissent imagines a set of safeguards Alabama might provide at the probation revocation stage sufficient to cure its failure to appoint counsel prior to sentencing, including, perhaps, "complete retrial of the misdemeanor violation with assistance of counsel," post, at 677. But there is no cause for speculation about Alabama's procedures; they are established by Alabama statute and decisional law, see at 666 and this page, and they bear no resemblance to those the dissent invents in its effort to sanction the prospect of Shelton's imprisonment on 668 an uncounseled conviction.[5] Assessing the issue before us in light of actual circumstances, we do not comprehend how the procedures Alabama in fact provides at the probation revocation hearing could bring Shelton's sentence within constitutional bounds.[6] Nor do we agree with amicus or the dissent that our holding will "substantially limit the states' ability" to impose probation, Fried Brief 22, or encumber them with a "large, new burden," post, at 680. Most jurisdictions already provide a state-law right to appointed counsel more generous than that afforded by the Federal Constitution. See 669 511 U. S., -749, n. 12. All but 16 States, for example, would provide counsel to a defendant in Shelton's circumstances, either because he received a substantial fine[7] or because state law authorized incarceration for the charged offense[8] or provided for a maximum prison term of one year.[9] See Ala. Code 13A-6-22, 13A-5-7(a)(1), 13A 5-12(a)(1) There is thus scant reason to believe that a rule conditioning imposition of a suspended sentence on provision of appointed counsel would affect existing practice 670 in the large majority of the States.[10] And given the current commitment of most jurisdictions to affording courtappointed counsel to indigent misdemeanants while simultaneously preserving the option of probationary punishment, we do not share amicus' concern that other States may lack the capacity and resources to do the same. Moreover, even if amicus is correct that "some courts and jurisdictions at least [can]not bear" the costs of the rule we confirm today, Fried Brief 23, those States need not abandon probation or equivalent measures as viable forms of punishment. 671 Although they may not attach probation to an imposed and suspended prison sentence, States unable or unwilling routinely to provide appointed counsel to misdemeanants in Shelton's situation are not without recourse to another option capable of yielding a similar result. That option is pretrial probation, employed in some form by at least 23 States. See App. to Reply Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 1a2a (collecting state statutes). Under such an arrangement, the prosecutor and defendant agree to the defendant's participation in a pretrial rehabilitation program,[11] which includes conditions typical of post-trial probation. The adjudication of guilt and imposition of sentence for the underlying offense then occur only if and when the defendant breaches those conditions. ; see, e. g., -56e ; Pa. Rules Crim. Proc. 310-320, 316 (2002) ("The conditions of the [pretrial rehabilitation] program may be such as may be imposed with respect to probation after conviction of a crime."); N. Y. Crim. Proc. Law 170.55(3) (pretrial "adjournment in contemplation of dismissal" may require defendant "to observe certain specified conditions of conduct").[12] Like the regime urged by amicus, this system reserves the appointed-counsel requirement for the "small percentage" 672 of cases in which incarceration proves necessary, Fried Brief thus allowing a State to "supervise a course of rehabilitation" without providing a lawyer every time it wishes to pursue such a course, Unlike amicus ` position, however, pretrial probation also respects the constitutional imperative that "no person may be imprisoned for any offense unless he was represented by counsel at his trial," 407 U. S., C Alabama concedes that activation of a suspended sentence results in the imprisonment of an uncounseled defendant "for a term that relates to the original offense" and therefore "crosses the line of `actual imprisonment' " established in and Scott. Reply Brief to Amicus Curiae Professor Charles Fried 8. Shelton cannot be imprisoned, Alabama thus acknowledges, "unless the State has afforded him the right to assistance of appointed counsel in his defense," Scott, 440 U. S.,4; see Reply Brief 9. Alabama maintains, however, that there is no constitutional barrier to imposition of a suspended sentence that can never be enforced; the State therefore urges reversal of the Alabama Supreme Court's judgment insofar as it vacated the term of probation Shelton was ordered to serve. In effect, Alabama invites us to regard two years' probation for Shelton as a separate and independent sentence, which "the State would have the same power to enforce [as] a judgment of a mere fine." Tr. of Oral Arg. 6. Scott, Alabama emphasizes, squarely held that a fine-only sentence does not trigger a right to court-appointed counsel, Tr. of Oral Arg. 6; similarly, Alabama maintains, probation uncoupled from a prison sentence should trigger no immediate right to appointed counsel. Seen as a freestanding sentence, Alabama further asserts, probation could be enforced, as a criminal fine or restitution order could, in a contempt proceeding. 673 See Reply Brief 11-12; Reply Brief to Amicus Curiae Professor Charles Fried 10-13; Tr. of Oral Arg. 7. Alabama describes the contempt proceeding it envisions as one in which Shelton would receive "the full panoply of due process," including the assistance of counsel. Reply Brief 12. Any sanction imposed would be for "postconviction wrongdoing," not for the offense of conviction. Reply Brief to Amicus Curiae Professor Charles Fried 11. "The maximum penalty faced would be a $100 fine and five days' imprisonment," Reply Brief 12 (citing Ala. Code 12 11-30(5) ), not the 30 days ordered and suspended by the Alabama Circuit Court, see There is not so much as a hint, however, in the decision of the Supreme Court of Alabama, that Shelton's probation term is separable from the prison term to which it was tethered. Absent any prior presentation of the position the State now takes,[13] we resist passing on it in the first instance. Our resistance to acting as a court of first view instead of one of review is heightened by the Alabama Attorney General's acknowledgment at oral argument that he did not know of any State that imposes, postconviction, on a par with a fine, a term of probation unattached to a suspended sentence. Tr. of Oral Arg. 8. The novelty of the State's current position is further marked by the unqualified statement in Alabama's opening brief that, "[b]y reversing Shelton's suspended sentence, the [Supreme Court of Alabama] correspondingly vacated the two-year probationary term." Brief for Petitioner 6. 674 In short, Alabama has developed its position late in this litigation and before the wrong forum. It is for the Alabama Supreme Court to consider before this Court does whether the suspended sentence alone is invalid, leaving Shelton's probation term freestanding and independently effective. See Hortonville Joint School Dist. No. 4 U.S. 482, We confine our review to the ruling the Alabama Supreme Court made in the case as presented to it: "[A] defendant who receives a suspended or probated sentence to imprisonment has a constitutional right to counsel." App. 40 ; see Brief for Petitioner 6. We find no infirmity in that holding. * * Satisfied that Shelton is entitled to appointed counsel at the critical stage when his guilt or innocence of the charged crime is decided and his vulnerability to imprisonment is determined, we affirm the judgment of the Supreme Court of Alabama. It is so ordered.
Justice Kennedy	majority	false	Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.	2015-06-25T00:00:00	null	https://www.courtlistener.com/opinion/2959750/texas-dept-of-housing-and-community-affairs-v-inclusive-communities/	https://www.courtlistener.com/api/rest/v3/clusters/2959750/	2,015	2014-040	2	5	4	The underlying dispute in this case concerns where housing for low-income persons should be constructed in Dallas, Texas—that is, whether the housing should be built in the inner city or in the suburbs. This dispute comes to the Court on a disparate-impact theory of liabil- ity. In contrast to a disparate-treatment case, where a “plaintiff must establish that the defendant had a discrim- inatory intent or motive,” a plaintiff bringing a disparate- impact claim challenges practices that have a “dispropor- tionately adverse effect on minorities” and are otherwise unjustified by a legitimate rationale. Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (internal quotation marks omit- ted). The question presented for the Court’s determina- tion is whether disparate-impact claims are cognizable under the Fair Housing Act (or FHA), 82 Stat. 81, as amended, 42 U.S. C. §3601 et seq. I A Before turning to the question presented, it is necessary 2 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court to discuss a different federal statute that gives rise to this dispute. The Federal Government provides low-income housing tax credits that are distributed to developers through designated state agencies. 26 U.S. C. §42. Con- gress has directed States to develop plans identifying selection criteria for distributing the credits. §42(m)(1). Those plans must include certain criteria, such as public housing waiting lists, §42(m)(1)(C), as well as certain preferences, including that low-income housing units “contribut[e] to a concerted community revitalization plan” and be built in census tracts populated predominantly by low-income residents. §§42(m)(1)(B)(ii)(III), 42(d)(5)(ii)(I). Federal law thus favors the distribution of these tax cred- its for the development of housing units in low-income areas. In the State of Texas these federal credits are distrib- uted by the Texas Department of Housing and Community Affairs (Department). Under Texas law, a developer’s application for the tax credits is scored under a point system that gives priority to statutory criteria, such as the financial feasibility of the development project and the income level of tenants. Tex. Govt. Code Ann. §§2306.6710(a)–(b) (West 2008). The Texas Attorney General has interpreted state law to permit the considera- tion of additional criteria, such as whether the housing units will be built in a neighborhood with good schools. Those criteria cannot be awarded more points than statu- torily mandated criteria. Tex. Op. Atty. Gen. No. GA– 0208, pp. 2–6 (2004), 2004 WL 1434796, 4–6. The Inclusive Communities Project, Inc. (ICP), is a Texas-based nonprofit corporation that assists low-income families in obtaining affordable housing. In 2008, the ICP brought this suit against the Department and its officers in the United States District Court for the Northern Dis- trict of Texas. As relevant here, it brought a disparate- impact claim under §§804(a) and 805(a) of the FHA. The Cite as: 576 U. S. ____ (2015) 3 Opinion of the Court ICP alleged the Department has caused continued segre- gated housing patterns by its disproportionate allocation of the tax credits, granting too many credits for housing in predominantly black inner-city areas and too few in pre- dominantly white suburban neighborhoods. The ICP contended that the Department must modify its selection criteria in order to encourage the construction of low- income housing in suburban communities. The District Court concluded that the ICP had estab- lished a prima facie case of disparate impact. It relied on two pieces of statistical evidence. First, it found “from 1999–2008, [the Department] approved tax credits for 49.7% of proposed non-elderly units in 0% to 9.9% Cauca- sian areas, but only approved 37.4% of proposed non- elderly units in 90% to 100% Caucasian areas.” 749 F. Supp. 2d 486, 499 (ND Tex. 2010) (footnote omitted). Second, it found “92.29% of [low-income housing tax credit] units in the city of Dallas were located in census tracts with less than 50% Caucasian residents.” Ibid. The District Court then placed the burden on the De- partment to rebut the ICP’s prima facie showing of dis- parate impact. 860 F. Supp. 2d 312, 322–323 (2012). After assuming the Department’s proffered interests were legitimate, id., at 326, the District Court held that a de- fendant—here the Department—must prove “that there are no other less discriminatory alternatives to advancing their proffered interests,” ibid. Because, in its view, the Department “failed to meet [its] burden of proving that there are no less discriminatory alternatives,” the District Court ruled for the ICP. Id., at 331. The District Court’s remedial order required the addi- tion of new selection criteria for the tax credits. For in- stance, it awarded points for units built in neighborhoods with good schools and disqualified sites that are located adjacent to or near hazardous conditions, such as high crime areas or landfills. See 2012 WL 3201401 (Aug. 7, 4 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court 2012). The remedial order contained no explicit racial targets or quotas. While the Department’s appeal was pending, the Secre- tary of Housing and Urban Development (HUD) issued a regulation interpreting the FHA to encompass disparate- impact liability. See Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11460 (2013). The regulation also established a burden-shifting framework for adjudicating disparate-impact claims. Under the regulation, a plaintiff first must make a prima facie showing of disparate impact. That is, the plaintiff “has the burden of proving that a challenged practice caused or predictably will cause a discriminatory effect.” 24 CFR §100.500(c)(1) (2014). If a statistical discrepancy is caused by factors other than the defendant’s policy, a plaintiff cannot establish a prima facie case, and there is no liability. After a plaintiff does establish a prima facie showing of disparate impact, the burden shifts to the defendant to “prov[e] that the challenged practice is neces- sary to achieve one or more substantial, legitimate, non- discriminatory interests.” §100.500(c)(2). HUD has clari- fied that this step of the analysis “is analogous to the Title VII requirement that an employer’s interest in an em- ployment practice with a disparate impact be job related.” 78 Fed. Reg. 11470. Once a defendant has satisfied its burden at step two, a plaintiff may “prevail upon proving that the substantial, legitimate, nondiscriminatory inter- ests supporting the challenged practice could be served by another practice that has a less discriminatory effect.” §100.500(c)(3). The Court of Appeals for the Fifth Circuit held, con- sistent with its precedent, that disparate-impact claims are cognizable under the FHA. 747 F.3d 275, 280 (2014). On the merits, however, the Court of Appeals reversed and remanded. Relying on HUD’s regulation, the Court of Appeals held that it was improper for the District Court to Cite as: 576 U. S. ____ (2015) 5 Opinion of the Court have placed the burden on the Department to prove there were no less discriminatory alternatives for allocating low- income housing tax credits. Id., at 282–283. In a concur- ring opinion, Judge Jones stated that on remand the District Court should reexamine whether the ICP had made out a prima facie case of disparate impact. She suggested the District Court incorrectly relied on bare statistical evidence without engaging in any analysis about causation. She further observed that, if the fed- eral law providing for the distribution of low-income hous- ing tax credits ties the Department’s hands to such an extent that it lacks a meaningful choice, then there is no disparate-impact liability. See id., at 283–284 (specially concurring opinion). The Department filed a petition for a writ of certiorari on the question whether disparate-impact claims are cognizable under the FHA. The question was one of first impression, see Huntington v. Huntington Branch, NAACP, 488 U.S. 15 (1988) (per curiam), and certiorari followed, 573 U. S. ___ (2014). It is now appropriate to provide a brief history of the FHA’s enactment and its later amendment. B De jure residential segregation by race was declared unconstitutional almost a century ago, Buchanan v. War- ley, 245 U.S. 60 (1917), but its vestiges remain today, intertwined with the country’s economic and social life. Some segregated housing patterns can be traced to condi- tions that arose in the mid-20th century. Rapid urbaniza- tion, concomitant with the rise of suburban developments accessible by car, led many white families to leave the inner cities. This often left minority families concentrated in the center of the Nation’s cities. During this time, various practices were followed, sometimes with govern- mental support, to encourage and maintain the separation 6 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court of the races: Racially restrictive covenants prevented the conveyance of property to minorities, see Shelley v. Krae- mer, 334 U.S. 1 (1948); steering by real-estate agents led potential buyers to consider homes in racially homogenous areas; and discriminatory lending practices, often referred to as redlining, precluded minority families from purchas- ing homes in affluent areas. See, e.g., M. Klarman, Unfin- ished Business: Racial Equality in American History 140– 141 (2007); Brief for Housing Scholars as Amici Curiae 22–23. By the 1960’s, these policies, practices, and preju- dices had created many predominantly black inner cities surrounded by mostly white suburbs. See K. Clark, Dark Ghetto: Dilemmas of Social Power 11, 21–26 (1965). The mid-1960’s was a period of considerable social un- rest; and, in response, President Lyndon Johnson estab- lished the National Advisory Commission on Civil Disor- ders, commonly known as the Kerner Commission. Exec. Order No. 11365, 3 CFR 674 (1966–1970 Comp.). After extensive factfinding the Commission identified residen- tial segregation and unequal housing and economic condi- tions in the inner cities as significant, underlying causes of the social unrest. See Report of the National Advisory Commission on Civil Disorders 91 (1968) (Kerner Com- mission Report). The Commission found that “[n]early two-thirds of all nonwhite families living in the central cities today live in neighborhoods marked by substandard housing and general urban blight.” Id., at 13. The Com- mission further found that both open and covert racial discrimination prevented black families from obtaining better housing and moving to integrated communities. Ibid. The Commission concluded that “[o]ur Nation is moving toward two societies, one black, one white— separate and unequal.” Id., at 1. To reverse “[t]his deep- ening racial division,” ibid., it recommended enactment of “a comprehensive and enforceable open-occupancy law making it an offense to discriminate in the sale or rental of Cite as: 576 U. S. ____ (2015) 7 Opinion of the Court any housing . . . on the basis of race, creed, color, or na- tional origin.” Id., at 263. In April 1968, Dr. Martin Luther King, Jr., was assassi- nated in Memphis, Tennessee, and the Nation faced a new urgency to resolve the social unrest in the inner cities. Congress responded by adopting the Kerner Commission’s recommendation and passing the Fair Housing Act. The statute addressed the denial of housing opportunities on the basis of “race, color, religion, or national origin.” Civil Rights Act of 1968, §804, 82 Stat. 83. Then, in 1988, Congress amended the FHA. Among other provisions, it created certain exemptions from liability and added “fa- milial status” as a protected characteristic. See Fair Housing Amendments Act of 1988, 102 Stat. 1619. II The issue here is whether, under a proper interpretation of the FHA, housing decisions with a disparate impact are prohibited. Before turning to the FHA, however, it is necessary to consider two other antidiscrimination stat- utes that preceded it. The first relevant statute is §703(a) of Title VII of the Civil Rights Act of 1964, 78 Stat. 255. The Court ad- dressed the concept of disparate impact under this statute in Griggs v. Duke Power Co., 401 U.S. 424 (1971). There, the employer had a policy requiring its manual laborers to possess a high school diploma and to obtain satisfactory scores on two intelligence tests. The Court of Appeals held the employer had not adopted these job requirements for a racially discriminatory purpose, and the plaintiffs did not challenge that holding in this Court. Instead, the plain- tiffs argued §703(a)(2) covers the discriminatory effect of a practice as well as the motivation behind the practice. Section 703(a), as amended, provides as follows: “It shall be an unlawful employer practice for an employer— 8 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court “(1) to fail or refuse to hire or to discharge any indi- vidual, or otherwise to discriminate against any indi- vidual with respect to his compensation, terms, condi- tions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or “(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employ- ment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S. C. §2000e–2(a). The Court did not quote or cite the full statute, but rather relied solely on §703(a)(2). Griggs, 401 U.S., at 426, n. 1. In interpreting §703(a)(2), the Court reasoned that disparate-impact liability furthered the purpose and de- sign of the statute. The Court explained that, in §703(a)(2), Congress “proscribe[d] not only overt discrimi- nation but also practices that are fair in form, but discrim- inatory in operation.” Id., at 431. For that reason, as the Court noted, “Congress directed the thrust of [§703(a)(2)] to the consequences of employment practices, not simply the motivation.” Id., at 432. In light of the statute’s goal of achieving “equality of employment opportunities and remov[ing] barriers that have operated in the past” to favor some races over others, the Court held §703(a)(2) of Title VII must be interpreted to allow disparate-impact claims. Id., at 429–430. The Court put important limits on its holding: namely, not all employment practices causing a disparate impact impose liability under §703(a)(2). In this respect, the Court held that “business necessity” constitutes a defense to disparate-impact claims. Id., at 431. This rule pro- vides, for example, that in a disparate-impact case, Cite as: 576 U. S. ____ (2015) 9 Opinion of the Court §703(a)(2) does not prohibit hiring criteria with a “mani- fest relationship” to job performance. Id., at 432; see also Ricci, 557 U.S., at 587–589 (emphasizing the importance of the business necessity defense to disparate-impact liability). On the facts before it, the Court in Griggs found a violation of Title VII because the employer could not establish that high school diplomas and general intelli- gence tests were related to the job performance of its manual laborers. See 401 U.S., at 431–432. The second relevant statute that bears on the proper interpretation of the FHA is the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602 et seq., as amended. Section 4(a) of the ADEA provides: “It shall be unlawful for an employer— “(1) to fail or refuse to hire or to discharge any indi- vidual or otherwise discriminate against any individ- ual with respect to his compensation, terms, condi- tions, or privileges of employment, because of such individual’s age; “(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or “(3) to reduce the wage rate of any employee in or- der to comply with this chapter.” 29 U.S. C. §623(a). The Court first addressed whether this provision allows disparate-impact claims in Smith v. City of Jackson, 544 U.S. 228 (2005). There, a group of older employees chal- lenged their employer’s decision to give proportionately greater raises to employees with less than five years of experience. Explaining that Griggs “represented the better reading of [Title VII’s] statutory text,” 544 U.S., at 235, a plurality of the Court concluded that the same reasoning pertained 10 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court to §4(a)(2) of the ADEA. The Smith plurality emphasized that both §703(a)(2) of Title VII and §4(a)(2) of the ADEA contain language “prohibit[ing] such actions that ‘deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s’ race or age.” 544 U.S., at 235. As the plural- ity observed, the text of these provisions “focuses on the effects of the action on the employee rather than the moti- vation for the action of the employer” and therefore com- pels recognition of disparate-impact liability. Id., at 236. In a separate opinion, JUSTICE SCALIA found the ADEA’s text ambiguous and thus deferred under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to an Equal Employment Opportunity Com- mission regulation interpreting the ADEA to impose disparate-impact liability, see 544 U.S., at 243–247 (opin- ion concurring in part and concurring in judgment). Together, Griggs holds and the plurality in Smith in- structs that antidiscrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose. These cases also teach that disparate- impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system. And before rejecting a business justification—or, in the case of a governmental entity, an analogous public interest—a court must deter- mine that a plaintiff has shown that there is “an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.” Ricci, supra, at 578. The cases interpreting Title VII and the ADEA pro- vide essential background and instruction in the case now before the Court. Turning to the FHA, the ICP relies on two provisions. Cite as: 576 U. S. ____ (2015) 11 Opinion of the Court Section 804(a) provides that it shall be unlawful: “To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S. C. §3604(a). Here, the phrase “otherwise make unavailable” is of cen- tral importance to the analysis that follows. Section 805(a), in turn, provides: “It shall be unlawful for any person or other entity whose business includes engaging in real estate- related transactions to discriminate against any per- son in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.” §3605(a). Applied here, the logic of Griggs and Smith provides strong support for the conclusion that the FHA encom- passes disparate-impact claims. Congress’ use of the phrase “otherwise make unavailable” refers to the conse- quences of an action rather than the actor’s intent. See United States v. Giles, 300 U.S. 41, 48 (1937) (explaining that the “word ‘make’ has many meanings, among them ‘[t]o cause to exist, appear or occur’ ” (quoting Webster’s New International Dictionary 1485 (2d ed. 1934))). This results-oriented language counsels in favor of recognizing disparate-impact liability. See Smith, supra, at 236. The Court has construed statutory language similar to §805(a) to include disparate-impact liability. See, e.g., Board of Ed. of City School Dist. of New York v. Harris, 444 U.S. 130, 140–141 (1979) (holding the term “discriminat[e]” encompassed disparate-impact liability in the context of a statute’s text, history, purpose, and structure). 12 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court A comparison to the antidiscrimination statutes exam- ined in Griggs and Smith is useful. Title VII’s and the ADEA’s “otherwise adversely affect” language is equiva- lent in function and purpose to the FHA’s “otherwise make unavailable” language. In these three statutes the opera- tive text looks to results. The relevant statutory phrases, moreover, play an identical role in the structure common to all three statutes: Located at the end of lengthy sen- tences that begin with prohibitions on disparate treat- ment, they serve as catchall phrases looking to conse- quences, not intent. And all three statutes use the word “otherwise” to introduce the results-oriented phrase. “Otherwise” means “in a different way or manner,” thus signaling a shift in emphasis from an actor’s intent to the consequences of his actions. Webster’s Third New Inter- national Dictionary 1598 (1971). This similarity in text and structure is all the more compelling given that Con- gress passed the FHA in 1968—only four years after pass- ing Title VII and only four months after enacting the ADEA. It is true that Congress did not reiterate Title VII’s exact language in the FHA, but that is because to do so would have made the relevant sentence awkward and unclear. A provision making it unlawful to “refuse to sell[,] . . . or otherwise [adversely affect], a dwelling to any person” because of a protected trait would be grammatically obtuse, difficult to interpret, and far more expansive in scope than Congress likely intended. Congress thus chose words that serve the same purpose and bear the same basic meaning but are consistent with the structure and objectives of the FHA. Emphasizing that the FHA uses the phrase “because of race,” the Department argues this language forecloses disparate-impact liability since “[a]n action is not taken ‘because of race’ unless race is a reason for the action.” Brief for Petitioners 26. Griggs and Smith, however, Cite as: 576 U. S. ____ (2015) 13 Opinion of the Court dispose of this argument. Both Title VII and the ADEA contain identical “because of ” language, see 42 U.S. C. §2000e–2(a)(2); 29 U.S. C. §623(a)(2), and the Court nonetheless held those statutes impose disparate-impact liability. In addition, it is of crucial importance that the existence of disparate-impact liability is supported by amendments to the FHA that Congress enacted in 1988. By that time, all nine Courts of Appeals to have addressed the question had concluded the Fair Housing Act encompassed disparate- impact claims. See Huntington Branch, NAACP v. Huntington, 844 F.2d 926, 935–936 (CA2 1988); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 146 (CA3 1977); Smith v. Clarkton, 682 F.2d 1055, 1065 (CA4 1982); Han- son v. Veterans Administration, 800 F.2d 1381, 1386 (CA5 1986); Arthur v. Toledo, 782 F.2d 565, 574–575 (CA6 1986); Metropolitan Housing Development Corp. v. Arling- ton Heights, 558 F.2d 1283, 1290 (CA7 1977); United States v. Black Jack, 508 F.2d 1179, 1184–1185 (CA8 1974); Halet v. Wend Investment Co., 672 F.2d 1305, 1311 (CA9 1982); United States v. Marengo Cty. Comm’n, 731 F.2d 1546, 1559, n. 20 (CA11 1984). When it amended the FHA, Congress was aware of this unanimous precedent. And with that understanding, it made a considered judgment to retain the relevant statu- tory text. See H. R. Rep. No. 100–711, p. 21, n. 52 (1988) (H. R. Rep.) (discussing suits premised on disparate- impact claims and related judicial precedent); 134 Cong. Rec. 23711 (1988) (statement of Sen. Kennedy) (noting unanimity of Federal Courts of Appeals concerning dis- parate impact); Fair Housing Amendments Act of 1987: Hearings on S. 558 before the Subcommittee on the Con- stitution of the Senate Committee on the Judiciary, 100th Cong., 1st Sess., 529 (1987) (testimony of Professor Robert Schwemm) (describing consensus judicial view that the FHA imposed disparate-impact liability). Indeed, Con- 14 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court gress rejected a proposed amendment that would have eliminated disparate-impact liability for certain zoning decisions. See H. R. Rep., at 89–93. Against this background understanding in the legal and regulatory system, Congress’ decision in 1988 to amend the FHA while still adhering to the operative language in §§804(a) and 805(a) is convincing support for the conclu- sion that Congress accepted and ratified the unanimous holdings of the Courts of Appeals finding disparate-impact liability. “If a word or phrase has been . . . given a uni- form interpretation by inferior courts . . . , a later version of that act perpetuating the wording is presumed to carry forward that interpretation.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012); see also Forest Grove School Dist. v. T. A., 557 U.S. 230, 244, n. 11 (2009) (“When Congress amended [the Act] without altering the text of [the relevant provision], it implicitly adopted [this Court’s] construction of the stat- ute”); Manhattan Properties, Inc. v. Irving Trust Co., 291 U.S. 320, 336 (1934) (explaining, where the Courts of Appeals had reached a consensus interpretation of the Bankruptcy Act and Congress had amended the Act with- out changing the relevant provision, “[t]his is persua- sive that the construction adopted by the [lower federal] courts has been acceptable to the legislative arm of the government”). Further and convincing confirmation of Congress’ un- derstanding that disparate-impact liability exists under the FHA is revealed by the substance of the 1988 amend- ments. The amendments included three exemptions from liability that assume the existence of disparate-impact claims. The most logical conclusion is that the three amendments were deemed necessary because Congress presupposed disparate impact under the FHA as it had been enacted in 1968. The relevant 1988 amendments were as follows. First, Cite as: 576 U. S. ____ (2015) 15 Opinion of the Court Congress added a clarifying provision: “Nothing in [the FHA] prohibits a person engaged in the business of fur- nishing appraisals of real property to take into considera- tion factors other than race, color, religion, national origin, sex, handicap, or familial status.” 42 U.S. C. §3605(c). Second, Congress provided: “Nothing in [the FHA] prohib- its conduct against a person because such person has been convicted by any court of competent jurisdiction of the illegal manufacture or distribution of a controlled sub- stance.” §3607(b)(4). And finally, Congress specified: “Nothing in [the FHA] limits the applicability of any rea- sonable . . . restrictions regarding the maximum number of occupants permitted to occupy a dwelling.” §3607(b)(1). The exemptions embodied in these amendments would be superfluous if Congress had assumed that disparate- impact liability did not exist under the FHA. See Gus- tafson v. Alloyd Co., 513 U.S. 561, 574 (1995) (“[T]he Court will avoid a reading which renders some words altogether redundant”). Indeed, none of these amend- ments would make sense if the FHA encompassed only disparate-treatment claims. If that were the sole ground for liability, the amendments merely restate black-letter law. If an actor makes a decision based on reasons other than a protected category, there is no disparate-treatment liability. See, e.g., Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). But the amendments do constrain disparate-impact liability. For instance, certain criminal convictions are correlated with sex and race. See, e.g., Kimbrough v. United States, 552 U.S. 85, 98 (2007) (discussing the racial disparity in convictions for crack cocaine offenses). By adding an exemption from liability for exclusionary practices aimed at individuals with drug convictions, Congress ensured disparate-impact liability would not lie if a landlord excluded tenants with such convictions. The same is true of the provision allow- ing for reasonable restrictions on occupancy. And the 16 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court exemption from liability for real-estate appraisers is in the same section as §805(a)’s prohibition of discriminatory practices in real-estate transactions, thus indicating Con- gress’ recognition that disparate-impact liability arose under §805(a). In short, the 1988 amendments signal that Congress ratified disparate-impact liability. A comparison to Smith’s discussion of the ADEA further demonstrates why the Department’s interpretation would render the 1988 amendments superfluous. Under the ADEA’s reasonable-factor-other-than-age (RFOA) provi- sion, an employer is permitted to take an otherwise pro- hibited action where “the differentiation is based on rea- sonable factors other than age.” 29 U.S. C. §623(f )(1). In other words, if an employer makes a decision based on a reasonable factor other than age, it cannot be said to have made a decision on the basis of an employee’s age. Accord- ing to the Smith plurality, the RFOA provision “plays its principal role” “in cases involving disparate-impact claims” “by precluding liability if the adverse impact was attribut- able to a nonage factor that was ‘reasonable.’ ” 544 U.S., at 239. The plurality thus reasoned that the RFOA provi- sion would be “simply unnecessary to avoid liability under the ADEA” if liability were limited to disparate-treatment claims. Id., at 238. A similar logic applies here. If a real-estate appraiser took into account a neighborhood’s schools, one could not say the appraiser acted because of race. And by embed- ding 42 U.S. C. §3605(c)’s exemption in the statutory text, Congress ensured that disparate-impact liability would not be allowed either. Indeed, the inference of disparate- impact liability is even stronger here than it was in Smith. As originally enacted, the ADEA included the RFOA pro- vision, see §4(f)(1), 81 Stat. 603, whereas here Congress added the relevant exemptions in the 1988 amendments against the backdrop of the uniform view of the Courts of Appeals that the FHA imposed disparate-impact liability. Cite as: 576 U. S. ____ (2015) 17 Opinion of the Court Recognition of disparate-impact claims is consistent with the FHA’s central purpose. See Smith, supra, at 235 (plurality opinion); Griggs, 401 U.S., at 432. The FHA, like Title VII and the ADEA, was enacted to eradicate discriminatory practices within a sector of our Nation’s economy. See 42 U.S. C. §3601 (“It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States”); H. R. Rep., at 15 (explaining the FHA “provides a clear national policy against discrimination in housing”). These unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any suffi- cient justification. Suits targeting such practices reside at the heartland of disparate-impact liability. See, e.g., Huntington, 488 U.S., at 16–18 (invalidating zoning law preventing construction of multifamily rental units); Black Jack, 508 F.2d, at 1182–1188 (invalidating ordinance prohibiting construction of new multifamily dwellings); Greater New Orleans Fair Housing Action Center v. St. Bernard Parish, 641 F. Supp. 2d 563, 569, 577–578 (ED La. 2009) (invalidating post-Hurricane Katrina ordinance restricting the rental of housing units to only “ ‘blood relative[s]’ ” in an area of the city that was 88.3% white and 7.6% black); see also Tr. of Oral Arg. 52–53 (discuss- ing these cases). The availability of disparate-impact liability, furthermore, has allowed private developers to vindicate the FHA’s objectives and to protect their prop- erty rights by stopping municipalities from enforcing arbi- trary and, in practice, discriminatory ordinances barring the construction of certain types of housing units. See, e.g., Huntington, supra, at 18. Recognition of disparate- impact liability under the FHA also plays a role in uncov- ering discriminatory intent: It permits plaintiffs to coun- teract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this 18 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping. But disparate-impact liability has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity. Disparate-impact liability man- dates the “removal of artificial, arbitrary, and unnecessary barriers,” not the displacement of valid governmental policies. Griggs, supra, at 431. The FHA is not an in- strument to force housing authorities to reorder their priorities. Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creating discriminatory effects or perpetuating segregation. Unlike the heartland of disparate-impact suits targeting artificial barriers to housing, the underlying dispute in this case involves a novel theory of liability. See Seicsh- naydre, Is Disparate Impact Having Any Impact? An Appellate Analysis of Forty Years of Disparate Impact Claims Under the Fair Housing Act, 63 Am. U. L. Rev. 357, 360–363 (2013) (noting the rarity of this type of claim). This case, on remand, may be seen simply as an attempt to second-guess which of two reasonable ap- proaches a housing authority should follow in the sound exercise of its discretion in allocating tax credits for low- income housing. An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private developers leeway to state and explain the valid interest served by their policies. This step of the analysis is analogous to the business necessity standard under Title VII and provides a defense against disparate-impact liability. See 78 Fed. Reg. 11470 (explaining that HUD did not use the phrase “business necessity” because that “phrase may not be easily under- Cite as: 576 U. S. ____ (2015) 19 Opinion of the Court stood to cover the full scope of practices covered by the Fair Housing Act, which applies to individuals, busi- nesses, nonprofit organizations, and public entities”). As the Court explained in Ricci, an entity “could be liable for disparate-impact discrimination only if the [challenged practices] were not job related and consistent with busi- ness necessity.” 557 U.S., at 587. Just as an employer may maintain a workplace requirement that causes a disparate impact if that requirement is a “reasonable measure[ment] of job performance,” Griggs, supra, at 436, so too must housing authorities and private developers be allowed to maintain a policy if they can prove it is neces- sary to achieve a valid interest. To be sure, the Title VII framework may not transfer exactly to the fair-housing context, but the comparison suffices for present purposes. It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapi- dated housing in our Nation’s cities merely because some other priority might seem preferable. Entrepreneurs must be given latitude to consider market factors. Zoning offi- cials, moreover, must often make decisions based on a mix of factors, both objective (such as cost and traffic patterns) and, at least to some extent, subjective (such as preserving historic architecture). These factors contribute to a com- munity’s quality of life and are legitimate concerns for housing authorities. The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in sub- urban communities. As HUD itself recognized in its re- cent rulemaking, disparate-impact liability “does not mandate that affordable housing be located in neighbor- hoods with any particular characteristic.” 78 Fed. Reg. 11476. In a similar vein, a disparate-impact claim that relies on 20 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity. A robust causality requirement ensures that “[r]acial imbalance . . . does not, without more, establish a prima facie case of disparate impact” and thus protects defend- ants from being held liable for racial disparities they did not create. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 653 (1989), superseded by statute on other grounds, 42 U.S. C. §2000e–2(k). Without adequate safeguards at the prima facie stage, disparate-impact liability might cause race to be used and considered in a pervasive way and “would almost inexorably lead” governmental or private entities to use “numerical quotas,” and serious constitutional questions then could arise. 490 U.S., at 653. The litigation at issue here provides an example. From the standpoint of determining advantage or disadvantage to racial minorities, it seems difficult to say as a general matter that a decision to build low-income housing in a blighted inner-city neighborhood instead of a suburb is discriminatory, or vice versa. If those sorts of judgments are subject to challenge without adequate safeguards, then there is a danger that potential defendants may adopt racial quotas—a circumstance that itself raises serious constitutional concerns. Courts must therefore examine with care whether a plaintiff has made out a prima facie case of disparate impact and prompt resolution of these cases is important. A plaintiff who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a causal con- nection cannot make out a prima facie case of disparate impact. For instance, a plaintiff challenging the decision of a private developer to construct a new building in one location rather than another will not easily be able to show this is a policy causing a disparate impact because such a one-time decision may not be a policy at all. It may also be difficult to establish causation because of the mul- Cite as: 576 U. S. ____ (2015) 21 Opinion of the Court tiple factors that go into investment decisions about where to construct or renovate housing units. And as Judge Jones observed below, if the ICP cannot show a causal connection between the Department’s policy and a dispar- ate impact—for instance, because federal law substantially limits the Department’s discretion—that should result in dismissal of this case. 747 F.3d, at 283–284 (specially concurring opinion). The FHA imposes a command with respect to disparate- impact liability. Here, that command goes to a state entity. In other cases, the command will go to a private person or entity. Governmental or private policies are not contrary to the disparate-impact requirement unless they are “artificial, arbitrary, and unnecessary barriers.” Griggs, 401 U.S., at 431. Difficult questions might arise if disparate-impact liability under the FHA caused race to be used and considered in a pervasive and explicit manner to justify governmental or private actions that, in fact, tend to perpetuate race-based considerations rather than move beyond them. Courts should avoid interpreting disparate- impact liability to be so expansive as to inject racial con- siderations into every housing decision. The limitations on disparate-impact liability discussed here are also necessary to protect potential defendants against abusive disparate-impact claims. If the specter of disparate-impact litigation causes private developers to no longer construct or renovate housing units for low-income individuals, then the FHA would have undermined its own purpose as well as the free-market system. And as to governmental entities, they must not be prevented from achieving legitimate objectives, such as ensuring compli- ance with health and safety codes. The Department’s amici, in addition to the well-stated principal dissenting opinion in this case, see post, at 1–2, 29–30 (opinion of ALITO, J.), call attention to the decision by the Court of Appeals for the Eighth Circuit in Gallagher v. Magner, 22 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court 619 F.3d 823 (2010). Although the Court is reluctant to approve or disapprove a case that is not pending, it should be noted that Magner was decided without the cautionary standards announced in this opinion and, in all events, the case was settled by the parties before an ultimate deter- mination of disparate-impact liability. Were standards for proceeding with disparate-impact suits not to incorporate at least the safeguards discussed here, then disparate-impact liability might displace valid governmental and private priorities, rather than solely “remov[ing] . . . artificial, arbitrary, and unnecessary barriers.” Griggs, 401 U.S., at 431. And that, in turn, would set our Nation back in its quest to reduce the sali- ence of race in our social and economic system. It must be noted further that, even when courts do find liability under a disparate-impact theory, their remedial orders must be consistent with the Constitution. Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice that “arbitrar[ily] . . . operate[s] invidiously to discriminate on the basis of rac[e].” Ibid. If additional measures are adopted, courts should strive to design them to eliminate racial disparities through race-neutral means. See Richmond v. J. A. Croson Co., 488 U.S. 469, 510 (1989) (plurality opinion) (“[T]he city has at its disposal a whole array of race- neutral devices to increase the accessibility of city con- tracting opportunities to small entrepreneurs of all races”). Remedial orders that impose racial targets or quotas might raise more difficult constitutional questions. While the automatic or pervasive injection of race into public and private transactions covered by the FHA has special dangers, it is also true that race may be considered in certain circumstances and in a proper fashion. Cf. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 789 (2007) (KENNEDY, J., con- curring in part and concurring in judgment) (“School Cite as: 576 U. S. ____ (2015) 23 Opinion of the Court boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; [and] drawing attendance zones with general recognition of the demographics of neighborhoods”). Just as this Court has not “question[ed] an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the [promotion] process,” Ricci, 557 U.S., at 585, it likewise does not impugn hous- ing authorities’ race-neutral efforts to encourage revitali- zation of communities that have long suffered the harsh consequences of segregated housing patterns. When setting their larger goals, local housing authorities may choose to foster diversity and combat racial isolation with race-neutral tools, and mere awareness of race in attempt- ing to solve the problems facing inner cities does not doom that endeavor at the outset. The Court holds that disparate-impact claims are cog- nizable under the Fair Housing Act upon considering its results-oriented language, the Court’s interpretation of similar language in Title VII and the ADEA, Congress’ ratification of disparate-impact claims in 1988 against the backdrop of the unanimous view of nine Courts of Appeals, and the statutory purpose. III In light of the longstanding judicial interpretation of the FHA to encompass disparate-impact claims and congres- sional reaffirmation of that result, residents and policy- makers have come to rely on the availability of disparate- impact claims. See Brief for Massachusetts et al. as Amici Curiae 2 (“Without disparate impact claims, States and others will be left with fewer crucial tools to combat the kinds of systemic discrimination that the FHA was in- tended to address”). Indeed, many of our Nation’s largest cities—entities that are potential defendants in disparate- 24 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court impact suits—have submitted an amicus brief in this case supporting disparate-impact liability under the FHA. See Brief for City of San Francisco et al. as Amici Curiae 3–6. The existence of disparate-impact liability in the substan- tial majority of the Courts of Appeals for the last several decades “has not given rise to . . . dire consequences.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 21). Much progress remains to be made in our Nation’s continuing struggle against racial isolation. In striving to achieve our “historic commitment to creating an integrated society,” Parents Involved, supra, at 797 (KENNEDY, J., concurring in part and concurring in judgment), we must remain wary of policies that reduce homeowners to noth- ing more than their race. But since the passage of the Fair Housing Act in 1968 and against the backdrop of disparate-impact liability in nearly every jurisdiction, many cities have become more diverse. The FHA must play an important part in avoiding the Kerner Commis- sion’s grim prophecy that “[o]ur Nation is moving toward two societies, one black, one white—separate and un- equal.” Kerner Commission Report 1. The Court acknowl- edges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society. The judgment of the Court of Appeals for the Fifth Circuit is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 576 U. S. ____ (2015) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 13–1371 _________________ TEXAS DEPARTMENT OF HOUSING AND COMMU- NITY AFFAIRS, ET AL., PETITIONERS v. THE IN- CLUSIVE COMMUNITIES PROJECT, INC., ET AL.	The underlying dispute in this case concerns where housing for low-income persons should be constructed in Dallas, Texas—that is, whether the housing should be built in the inner city or in the suburbs. This dispute comes to the Court on a disparate-impact theory of liabil- ity. In contrast to a disparate-treatment case, where a “plaintiff must establish that the defendant had a discrim- inatory intent or motive,” a plaintiff bringing a disparate- impact claim challenges practices that have a “dispropor- tionately adverse effect on minorities” and are otherwise unjustified by a legitimate rationale. (internal quotation marks omit- ted). The question presented for the Court’s determina- tion is whether disparate-impact claims are cognizable under the Fair Housing Act (or FHA), as amended, 42 U.S. C. et seq. I A Before turning to the question presented, it is necessary 2 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court to discuss a different federal statute that gives rise to this dispute. The Federal Government provides low-income housing tax credits that are distributed to developers through designated state agencies. 26 U.S. C. Con- gress has directed States to develop plans identifying selection criteria for distributing the credits. Those plans must include certain criteria, such as public housing waiting lists, as well as certain preferences, including that low-income housing units “contribut[e] to a concerted community revitalization plan” and be built in census tracts populated predominantly by low-income residents. 42(d)(5)(ii)(I). Federal law thus favors the distribution of these tax cred- its for the development of housing units in low-income areas. In the State of Texas these federal credits are distrib- uted by the Texas Department of Housing and Community Affairs (Department). Under Texas law, a developer’s application for the tax credits is scored under a point system that gives priority to statutory criteria, such as the financial feasibility of the development project and the income level of tenants. Tex. Govt. Code Ann. (West 2008). The Texas Attorney General has interpreted state law to permit the considera- tion of additional criteria, such as whether the housing units will be built in a neighborhood with good schools. Those criteria cannot be awarded more points than statu- torily mandated criteria. Tex. Op. Atty. Gen. No. GA– 0208, pp. 2–6 (2004), 4–6. The Inclusive Communities Project, Inc. (ICP), is a Texas-based nonprofit corporation that assists low-income families in obtaining affordable housing. In 2008, the ICP brought this suit against the Department and its officers in the United States District Court for the Northern Dis- trict of Texas. As relevant here, it brought a disparate- impact claim under and 805(a) of the FHA. The Cite as: 576 U. S. (2015) 3 Opinion of the Court ICP alleged the Department has caused continued segre- gated housing patterns by its disproportionate allocation of the tax credits, granting too many credits for housing in predominantly black inner-city areas and too few in pre- dominantly white suburban neighborhoods. The ICP contended that the Department must modify its selection criteria in order to encourage the construction of low- income housing in suburban communities. The District Court concluded that the ICP had estab- lished a prima facie case of disparate impact. It relied on two pieces of statistical evidence. First, it found “from 1999–2008, [the Department] approved tax credits for 49.7% of proposed non-elderly units in 0% to 9.9% Cauca- sian areas, but only approved 37.4% of proposed non- elderly units in 90% to 100% Caucasian areas.” 749 F. Supp. 2d 6, 499 (footnote omitted). Second, it found “92.29% of [low-income housing tax credit] units in the city of Dallas were located in census tracts with less than 50% Caucasian residents.” The District Court then placed the burden on the De- partment to rebut the ICP’s prima facie showing of dis- parate impact. After assuming the Department’s proffered interests were legitimate, the District Court held that a de- fendant—here the Department—must prove “that there are no other less discriminatory alternatives to advancing their proffered interests,” Because, in its view, the Department “failed to meet [its] burden of proving that there are no less discriminatory alternatives,” the District Court ruled for the ICP. The District Court’s remedial order required the addi- tion of new selection criteria for the tax credits. For in- stance, it awarded points for units built in neighborhoods with good schools and disqualified sites that are located adjacent to or near hazardous conditions, such as high crime areas or landfills. See WL 301 The remedial order contained no explicit racial targets or quotas. While the Department’s appeal was pending, the Secre- tary of Housing and Urban Development (HUD) issued a regulation interpreting the FHA to encompass disparate- impact liability. See Implementation of the Fair Housing Act’s Discriminatory Effects Standard, (2013). The regulation also established a burden-shifting framework for adjudicating disparate-impact claims. Under the regulation, a plaintiff first must make a prima facie showing of disparate impact. That is, the plaintiff “has the burden of proving that a challenged practice caused or predictably will cause a discriminatory effect.” (c)(1) If a statistical discrepancy is caused by factors other than the defendant’s policy, a plaintiff cannot establish a prima facie case, and there is no liability. After a plaintiff does establish a prima facie showing of disparate impact, the burden shifts to the defendant to “prov[e] that the challenged practice is neces- sary to achieve one or more substantial, legitimate, non- discriminatory interests.” HUD has clari- fied that this step of the analysis “is analogous to the Title VII requirement that an employer’s interest in an em- ployment practice with a disparate impact be job related.” Once a defendant has satisfied its burden at step two, a plaintiff may “prevail upon proving that the substantial, legitimate, nondiscriminatory inter- ests supporting the challenged practice could be served by another practice that has a less discriminatory effect.” The Court of Appeals for the Fifth Circuit held, con- sistent with its precedent, that disparate-impact claims are cognizable under the FHA. On the merits, however, the Court of Appeals reversed and remanded. Relying on HUD’s regulation, the Court of Appeals held that it was improper for the District Court to Cite as: 576 U. S. (2015) 5 Opinion of the Court have placed the burden on the Department to prove there were no less discriminatory alternatives for allocating low- income housing tax credits. at 282–283. In a concur- ring opinion, Judge Jones stated that on remand the District Court should reexamine whether the ICP had made out a prima facie case of disparate impact. She suggested the District Court incorrectly relied on bare statistical evidence without engaging in any analysis about causation. She further observed that, if the fed- eral law providing for the distribution of low-income hous- ing tax credits ties the Department’s hands to such an extent that it lacks a meaningful choice, then there is no disparate-impact liability. See at 283–284 (specially concurring opinion). The Department filed a petition for a writ of certiorari on the question whether disparate-impact claims are cognizable under the FHA. The question was one of first impression, see and certiorari followed, 573 U. S. It is now appropriate to provide a brief history of the FHA’s enactment and its later amendment. B De jure residential segregation by race was declared unconstitutional almost a century ago, but its vestiges remain today, intertwined with the country’s economic and social life. Some segregated housing patterns can be traced to condi- tions that arose in the mid-20th century. Rapid urbaniza- tion, concomitant with the rise of suburban developments accessible by car, led many white families to leave the inner cities. This often left minority families concentrated in the center of the Nation’s cities. During this time, various practices were followed, sometimes with govern- mental support, to encourage and maintain the separation 6 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court of the races: Racially restrictive covenants prevented the conveyance of property to minorities, see ; steering by real-estate agents led potential buyers to consider homes in racially homogenous areas; and discriminatory lending practices, often referred to as redlining, precluded minority families from purchas- ing homes in affluent areas. See, e.g., M. Klarman, Unfin- ished Business: Racial Equality in American History 140– 141 ; Brief for Housing Scholars as Amici Curiae 22–23. By the 1960’s, these policies, practices, and preju- dices had created many predominantly black inner cities surrounded by mostly white suburbs. See K. Clark, Dark Ghetto: Dilemmas of Social Power 11, 21–26 (1965). The mid-1960’s was a period of considerable social un- rest; and, in response, President Lyndon Johnson estab- lished the National Advisory Commission on Civil Disor- ders, commonly known as the Kerner Commission. Exec. Order No. 11365, 3 CFR 674 (1966–1970 Comp.). After extensive factfinding the Commission identified residen- tial segregation and unequal housing and economic condi- tions in the inner cities as significant, underlying causes of the social unrest. See Report of the National Advisory Commission on Civil Disorders 91 (1968) (Kerner Com- mission Report). The Commission found that “[n]early two-thirds of all nonwhite families living in the central cities today live in neighborhoods marked by substandard housing and general urban blight.” The Com- mission further found that both open and covert racial discrimination prevented black families from obtaining better housing and moving to integrated communities. The Commission concluded that “[o]ur Nation is moving toward two societies, one black, one white— separate and unequal.” To reverse “[t]his deep- ening racial division,” ib it recommended enactment of “a comprehensive and enforceable open-occupancy law making it an offense to discriminate in the sale or rental of Cite as: 576 U. S. (2015) 7 Opinion of the Court any housing on the basis of race, creed, color, or na- tional origin.” In April 1968, Dr. Martin Luther King, Jr., was assassi- nated in Memphis, Tennessee, and the Nation faced a new urgency to resolve the social unrest in the inner cities. Congress responded by adopting the Kerner Commission’s recommendation and passing the Fair Housing Act. The statute addressed the denial of housing opportunities on the basis of “race, color, religion, or national origin.” Civil Rights Act of 1968, Then, in Congress amended the FHA. Among other provisions, it created certain exemptions from liability and added “fa- milial status” as a protected characteristic. See Fair Housing Amendments Act of II The issue here is whether, under a proper interpretation of the FHA, housing decisions with a disparate impact are prohibited. Before turning to the FHA, however, it is necessary to consider two other antidiscrimination stat- utes that preceded it. The first relevant statute is of Title VII of the Civil Rights Act of 1964, The Court ad- dressed the concept of disparate impact under this statute in There, the employer had a policy requiring its manual laborers to possess a high school diploma and to obtain satisfactory scores on two intelligence tests. The Court of Appeals held the employer had not adopted these job requirements for a racially discriminatory purpose, and the plaintiffs did not challenge that holding in this Court. Instead, the plain- tiffs argued (2) covers the discriminatory effect of a practice as well as the motivation behind the practice. Section 703(a), as amended, provides as follows: “It shall be an unlawful employer practice for an employer— 8 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court “(1) to fail or refuse to hire or to discharge any indi- vidual, or otherwise to discriminate against any indi- vidual with respect to his compensation, terms, condi- tions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or “(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employ- ment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S. C. The Court did not quote or cite the full statute, but rather relied solely on (2). n. 1. In interpreting (2), the Court reasoned that disparate-impact liability furthered the purpose and de- sign of the statute. The Court explained that, in (2), Congress “proscribe[d] not only overt discrimi- nation but also practices that are fair in form, but discrim- inatory in operation.” For that reason, as the Court noted, “Congress directed the thrust of [(2)] to the consequences of employment practices, not simply the motivation.” In light of the statute’s goal of achieving “equality of employment opportunities and remov[ing] barriers that have operated in the past” to favor some races over others, the Court held (2) of Title VII must be interpreted to allow disparate-impact claims. at 429–430. The Court put important limits on its holding: namely, not all employment practices causing a disparate impact impose liability under (2). In this respect, the Court held that “business necessity” constitutes a defense to disparate-impact claims. This rule pro- vides, for example, that in a disparate-impact case, Cite as: 576 U. S. (2015) 9 Opinion of the Court (2) does not prohibit hiring criteria with a “mani- fest relationship” to job performance. ; see also –589 (emphasizing the importance of the business necessity defense to disparate-impact liability). On the facts before it, the Court in found a violation of Title VII because the employer could not establish that high school diplomas and general intelli- gence tests were related to the job performance of its manual laborers. See 401 U.S., –432. The second relevant statute that bears on the proper interpretation of the FHA is the Age Discrimination in Employment Act of 1967 (ADEA), et seq., as amended. Section 4(a) of the ADEA provides: “It shall be unlawful for an employer— “(1) to fail or refuse to hire or to discharge any indi- vidual or otherwise discriminate against any individ- ual with respect to his compensation, terms, condi- tions, or privileges of employment, because of such individual’s age; “(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or “(3) to reduce the wage rate of any employee in or- der to comply with this chapter.” 29 U.S. C. The Court first addressed whether this provision allows disparate-impact claims in v. City of son, 544 U.S. 228 (2005). There, a group of older employees chal- lenged their employer’s decision to give proportionately greater raises to employees with less than five years of experience. Explaining that “represented the better reading of [Title VII’s] statutory text,” a plurality of the Court concluded that the same reasoning pertained 10 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court to of the ADEA. The plurality emphasized that both (2) of Title VII and of the ADEA contain language “prohibit[ing] such actions that ‘deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s’ race or age.” As the plural- ity observed, the text of these provisions “focuses on the effects of the action on the employee rather than the moti- vation for the action of the employer” and therefore com- pels recognition of disparate-impact liability. In a separate opinion, JUSTICE SCALIA found the ADEA’s text ambiguous and thus deferred under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to an Equal Employment Opportunity Com- mission regulation interpreting the ADEA to impose disparate-impact liability, see –247 (opin- ion concurring in part and concurring in judgment). Together, holds and the plurality in in- structs that antidiscrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose. These cases also teach that disparate- impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system. And before rejecting a business justification—or, in the case of a governmental entity, an analogous public interest—a court must deter- mine that a plaintiff has shown that there is “an available alternative practice that has less disparate impact and serves the [entity’s] legitimate needs.” at 578. The cases interpreting Title VII and the ADEA pro- vide essential background and instruction in the case now before the Court. Turning to the FHA, the ICP relies on two provisions. Cite as: 576 U. S. (2015) 11 Opinion of the Court Section 804(a) provides that it shall be unlawful: “To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S. C. Here, the phrase “otherwise make unavailable” is of cen- tral importance to the analysis that follows. Section 805(a), in turn, provides: “It shall be unlawful for any person or other entity whose business includes engaging in real estate- related transactions to discriminate against any per- son in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.” Applied here, the logic of and provides strong support for the conclusion that the FHA encom- passes disparate-impact claims. Congress’ use of the phrase “otherwise make unavailable” refers to the conse- quences of an action rather than the actor’s intent. See United (explaining that the “word ‘make’ has many meanings, among them ‘[t]o cause to exist, appear or occur’ ” (quoting Webster’s New International Dictionary 15 (2d ed. 1934))). This results-oriented language counsels in favor of recognizing disparate-impact liability. See The Court has construed statutory language similar to to include disparate-impact liability. See, e.g., Board of Ed. of City School Dist. of New York v. Harris, 444 U.S. 130, 140–141 (1979) (holding the term “discriminat[e]” encompassed disparate-impact liability in the context of a statute’s text, history, purpose, and structure). 12 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court A comparison to the antidiscrimination statutes exam- ined in and is useful. Title VII’s and the ADEA’s “otherwise adversely affect” language is equiva- lent in function and purpose to the FHA’s “otherwise make unavailable” language. In these three statutes the opera- tive text looks to results. The relevant statutory phrases, moreover, play an identical role in the structure common to all three statutes: Located at the end of lengthy sen- tences that begin with prohibitions on disparate treat- ment, they serve as catchall phrases looking to conse- quences, not intent. And all three statutes use the word “otherwise” to introduce the results-oriented phrase. “Otherwise” means “in a different way or manner,” thus signaling a shift in emphasis from an actor’s intent to the consequences of his actions. Webster’s Third New Inter- national Dictionary 1598 This similarity in text and structure is all the more compelling given that Con- gress passed the FHA in 1968—only four years after pass- ing Title VII and only four months after enacting the ADEA. It is true that Congress did not reiterate Title VII’s exact language in the FHA, but that is because to do so would have made the relevant sentence awkward and unclear. A provision making it unlawful to “refuse to sell[,] or otherwise [adversely affect], a dwelling to any person” because of a protected trait would be grammatically obtuse, difficult to interpret, and far more expansive in scope than Congress likely intended. Congress thus chose words that serve the same purpose and bear the same basic meaning but are consistent with the structure and objectives of the FHA. Emphasizing that the FHA uses the phrase “because of race,” the Department argues this language forecloses disparate-impact liability since “[a]n action is not taken ‘because of race’ unless race is a reason for the action.” Brief for Petitioners 26. and however, Cite as: 576 U. S. (2015) 13 Opinion of the Court dispose of this argument. Both Title VII and the ADEA contain identical “because of ” language, see 42 U.S. C. 29 U.S. C. and the Court nonetheless held those statutes impose disparate-impact liability. In addition, it is of crucial importance that the existence of disparate-impact liability is supported by amendments to the FHA that Congress enacted in By that time, all nine Courts of Appeals to have addressed the question had concluded the Fair Housing Act encompassed disparate- impact claims. See Branch, NAACP v. ; Resident Advisory ; v. Clarkton, ; Han- (CA5 1986); –575 (CA6 1986); Metropolitan Housing Development ; United 1184–1185 (CA8 1974); ; United States v. Marengo Cty. Comm’n, 731 F.2d 1546, 1559, n. 20 (CA11 1984). When it amended the FHA, Congress was aware of this unanimous precedent. And with that understanding, it made a considered judgment to retain the relevant statu- tory text. See H. R. Rep. No. 100–711, p. 21, n. 52 (H. R. Rep.) (discussing suits premised on disparate- impact claims and related judicial precedent); 134 Cong. Rec. 23711 (statement of Sen. Kennedy) (noting unanimity of Federal Courts of Appeals concerning dis- parate impact); Fair Housing Amendments Act of 1987: Hearings on S. 558 before the Subcommittee on the Con- stitution of the Senate Committee on the Judiciary, 100th Cong., 1st Sess., 529 (1987) (testimony of Professor Robert Schwemm) (describing consensus judicial view that the FHA imposed disparate-impact liability). Indeed, Con- 14 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court gress rejected a proposed amendment that would have eliminated disparate-impact liability for certain zoning decisions. See H. R. Rep., at 89–93. Against this background understanding in the legal and regulatory system, Congress’ decision in to amend the FHA while still adhering to the operative language in and 805(a) is convincing support for the conclu- sion that Congress accepted and ratified the unanimous holdings of the Courts of Appeals finding disparate-impact liability. “If a word or phrase has been given a uni- form interpretation by inferior courts a later version of that act perpetuating the wording is presumed to carry forward that interpretation.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 322 ; see also Forest Grove School Dist. v. T. A., 557 U.S. 230, 244, n. 11 (“When Congress amended [the Act] without altering the text of [the relevant provision], it implicitly adopted [this Court’s] construction of the stat- ute”); Manhattan Properties, Inc. v. Irving Trust Co., 291 U.S. 320, 336 (1934) (explaining, where the Courts of Appeals had reached a consensus interpretation of the Bankruptcy Act and Congress had amended the Act with- out changing the relevant provision, “[t]his is persua- sive that the construction adopted by the [lower federal] courts has been acceptable to the legislative arm of the government”). Further and convincing confirmation of Congress’ un- derstanding that disparate-impact liability exists under the FHA is revealed by the substance of the amend- ments. The amendments included three exemptions from liability that assume the existence of disparate-impact claims. The most logical conclusion is that the three amendments were deemed necessary because Congress presupposed disparate impact under the FHA as it had been enacted in 1968. The relevant amendments were as follows. First, Cite as: 576 U. S. (2015) 15 Opinion of the Court Congress added a clarifying provision: “Nothing in [the FHA] prohibits a person engaged in the business of fur- nishing appraisals of real property to take into considera- tion factors other than race, color, religion, national origin, sex, handicap, or familial status.” 42 U.S. C. Second, Congress provided: “Nothing in [the FHA] prohib- its conduct against a person because such person has been convicted by any court of competent jurisdiction of the illegal manufacture or distribution of a controlled sub- stance.” And finally, Congress specified: “Nothing in [the FHA] limits the applicability of any rea- sonable restrictions regarding the maximum number of occupants permitted to occupy a dwelling.” The exemptions embodied in these amendments would be superfluous if Congress had assumed that disparate- impact liability did not exist under the FHA. See Gus- (“[T]he Court will avoid a reading which renders some words altogether redundant”). Indeed, none of these amend- ments would make sense if the FHA encompassed only disparate-treatment claims. If that were the sole ground for liability, the amendments merely restate black-letter law. If an actor makes a decision based on reasons other than a protected category, there is no disparate-treatment liability. See, e.g., Texas Dept. of Community Affairs v. Burdine, 450 U.S. 2, But the amendments do constrain disparate-impact liability. For instance, certain criminal convictions are correlated with sex and race. See, e.g., 98 (discussing the racial disparity in convictions for crack cocaine offenses). By adding an exemption from liability for exclusionary practices aimed at individuals with drug convictions, Congress ensured disparate-impact liability would not lie if a landlord excluded tenants with such convictions. The same is true of the provision allow- ing for reasonable restrictions on occupancy. And the 16 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court exemption from liability for real-estate appraisers is in the same section as ’s prohibition of discriminatory practices in real-estate transactions, thus indicating Con- gress’ recognition that disparate-impact liability arose under In short, the amendments signal that Congress ratified disparate-impact liability. A comparison to ’s discussion of the ADEA further demonstrates why the Department’s interpretation would render the amendments superfluous. Under the ADEA’s reasonable-factor-other-than-age (RFOA) provi- sion, an employer is permitted to take an otherwise pro- hibited action where “the differentiation is based on rea- sonable factors other than age.” 29 U.S. C. )(1). In other words, if an employer makes a decision based on a reasonable factor other than age, it cannot be said to have made a decision on the basis of an employee’s age. Accord- ing to the plurality, the RFOA provision “plays its principal role” “in cases involving disparate-impact claims” “by precluding liability if the adverse impact was attribut- able to a nonage factor that was ‘reasonable.’ ” 544 U.S., at 239. The plurality thus reasoned that the RFOA provi- sion would be “simply unnecessary to avoid liability under the ADEA” if liability were limited to disparate-treatment claims. A similar logic applies here. If a real-estate appraiser took into account a neighborhood’s schools, one could not say the appraiser acted because of race. And by embed- ding 42 U.S. C. exemption in the statutory text, Congress ensured that disparate-impact liability would not be allowed either. Indeed, the inference of disparate- impact liability is even stronger here than it was in As originally enacted, the ADEA included the RFOA pro- vision, see whereas here Congress added the relevant exemptions in the amendments against the backdrop of the uniform view of the Courts of Appeals that the FHA imposed disparate-impact liability. Cite as: 576 U. S. (2015) 17 Opinion of the Court Recognition of disparate-impact claims is consistent with the FHA’s central purpose. See ; 401 U.S., The FHA, like Title VII and the ADEA, was enacted to eradicate discriminatory practices within a sector of our Nation’s economy. See 42 U.S. C. (“It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States”); H. R. Rep., 5 (explaining the FHA “provides a clear national policy against discrimination in housing”). These unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any suffi- cient justification. Suits targeting such practices reside at the heartland of disparate-impact liability. See, e.g., 8 U.S., 6–18 (invalidating zoning law preventing construction of multifamily rental units); Black 508 F.2d, 182–1188 (invalidating ordinance prohibiting construction of new multifamily dwellings); Greater New Orleans Fair Housing Action –578 (invalidating post-Hurricane Katrina ordinance restricting the rental of housing units to only “ ‘blood relative[s]’ ” in an area of the city that was 88.3% white and 7.6% black); see also Tr. of Oral Arg. 52–53 (discuss- ing these cases). The availability of disparate-impact liability, furthermore, has allowed private developers to vindicate the FHA’s objectives and to protect their prop- erty rights by stopping municipalities from enforcing arbi- trary and, in practice, discriminatory ordinances barring the construction of certain types of housing units. See, e.g., 8. Recognition of disparate- impact liability under the FHA also plays a role in uncov- ering discriminatory intent: It permits plaintiffs to coun- teract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this 18 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping. But disparate-impact liability has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity. Disparate-impact liability man- dates the “removal of artificial, arbitrary, and unnecessary barriers,” not the displacement of valid governmental policies. The FHA is not an in- strument to force housing authorities to reorder their priorities. Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creating discriminatory effects or perpetuating segregation. Unlike the heartland of disparate-impact suits targeting artificial barriers to housing, the underlying dispute in this case involves a novel theory of liability. See Seicsh- naydre, Is Disparate Impact Having Any Impact? An Appellate Analysis of Forty Years of Disparate Impact Claims Under the Fair Housing Act, 63 Am. U. L. Rev. 357, 360–363 (2013) (noting the rarity of this type of claim). This case, on remand, may be seen simply as an attempt to second-guess which of two reasonable ap- proaches a housing authority should follow in the sound exercise of its discretion in allocating tax credits for low- income housing. An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private developers leeway to state and explain the valid interest served by their policies. This step of the analysis is analogous to the business necessity standard under Title VII and provides a defense against disparate-impact liability. See (explaining that HUD did not use the phrase “business necessity” because that “phrase may not be easily under- Cite as: 576 U. S. (2015) 19 Opinion of the Court stood to cover the full scope of practices covered by the Fair Housing Act, which applies to individuals, busi- nesses, nonprofit organizations, and public entities”). As the Court explained in an entity “could be liable for disparate-impact discrimination only if the [challenged practices] were not job related and consistent with busi- ness necessity.” Just as an employer may maintain a workplace requirement that causes a disparate impact if that requirement is a “reasonable measure[ment] of job performance,” so too must housing authorities and private developers be allowed to maintain a policy if they can prove it is neces- sary to achieve a valid interest. To be sure, the Title VII framework may not transfer exactly to the fair-housing context, but the comparison suffices for present purposes. It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapi- dated housing in our Nation’s cities merely because some other priority might seem preferable. Entrepreneurs must be given latitude to consider market factors. Zoning offi- cials, moreover, must often make decisions based on a mix of factors, both objective (such as cost and traffic patterns) and, at least to some extent, subjective (such as preserving historic architecture). These factors contribute to a com- munity’s quality of life and are legitimate concerns for housing authorities. The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in sub- urban communities. As HUD itself recognized in its re- cent rulemaking, disparate-impact liability “does not mandate that affordable housing be located in neighbor- hoods with any particular characteristic.” 78 Fed. Reg. 11476. In a similar vein, a disparate-impact claim that relies on 20 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity. A robust causality requirement ensures that “[r]acial imbalance does not, without more, establish a prima facie case of disparate impact” and thus protects defend- ants from being held liable for racial disparities they did not create. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 653 superseded by statute on other grounds, 42 U.S. C. Without adequate safeguards at the prima facie stage, disparate-impact liability might cause race to be used and considered in a pervasive way and “would almost inexorably lead” governmental or private entities to use “numerical quotas,” and serious constitutional questions then could The litigation at issue here provides an example. From the standpoint of determining advantage or disadvantage to racial minorities, it seems difficult to say as a general matter that a decision to build low-income housing in a blighted inner-city neighborhood instead of a suburb is discriminatory, or vice versa. If those sorts of judgments are subject to challenge without adequate safeguards, then there is a danger that potential defendants may adopt racial quotas—a circumstance that itself raises serious constitutional concerns. Courts must therefore examine with care whether a plaintiff has made out a prima facie case of disparate impact and prompt resolution of these cases is important. A plaintiff who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a causal con- nection cannot make out a prima facie case of disparate impact. For instance, a plaintiff challenging the decision of a private developer to construct a new building in one location rather than another will not easily be able to show this is a policy causing a disparate impact because such a one-time decision may not be a policy at all. It may also be difficult to establish causation because of the mul- Cite as: 576 U. S. (2015) 21 Opinion of the Court tiple factors that go into investment decisions about where to construct or renovate housing units. And as Judge Jones observed below, if the ICP cannot show a causal connection between the Department’s policy and a dispar- ate impact—for instance, because federal law substantially limits the Department’s discretion—that should result in dismissal of this –284 (specially concurring opinion). The FHA imposes a command with respect to disparate- impact liability. Here, that command goes to a state entity. In other cases, the command will go to a private person or entity. Governmental or private policies are not contrary to the disparate-impact requirement unless they are “artificial, arbitrary, and unnecessary barriers.” 401 U.S., Difficult questions might arise if disparate-impact liability under the FHA caused race to be used and considered in a pervasive and explicit manner to justify governmental or private actions that, in fact, tend to perpetuate race-based considerations rather than move beyond them. Courts should avoid interpreting disparate- impact liability to be so expansive as to inject racial con- siderations into every housing decision. The limitations on disparate-impact liability discussed here are also necessary to protect potential defendants against abusive disparate-impact claims. If the specter of disparate-impact litigation causes private developers to no longer construct or renovate housing units for low-income individuals, then the FHA would have undermined its own purpose as well as the free-market system. And as to governmental entities, they must not be prevented from achieving legitimate objectives, such as ensuring compli- ance with health and safety codes. The Department’s amici, in addition to the well-stated principal dissenting opinion in this case, see post, –2, 29–30 (opinion of ALITO, J.), call attention to the decision by the Court of Appeals for the Eighth Circuit in Gallagher v. Magner, 22 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court Although the Court is reluctant to approve or disapprove a case that is not pending, it should be noted that Magner was decided without the cautionary standards announced in this opinion and, in all events, the case was settled by the parties before an ultimate deter- mination of disparate-impact liability. Were standards for proceeding with disparate-impact suits not to incorporate at least the safeguards discussed here, then disparate-impact liability might displace valid governmental and private priorities, rather than solely “remov[ing] artificial, arbitrary, and unnecessary barriers.” 401 U.S., And that, in turn, would set our Nation back in its quest to reduce the sali- ence of race in our social and economic system. It must be noted further that, even when courts do find liability under a disparate-impact theory, their remedial orders must be consistent with the Constitution. Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice that “arbitrar[ily] operate[s] invidiously to discriminate on the basis of rac[e].” If additional measures are adopted, courts should strive to design them to eliminate racial disparities through race-neutral means. See 8 U.S. 469, (“[T]he city has at its disposal a whole array of race- neutral devices to increase the accessibility of city con- tracting opportunities to small entrepreneurs of all races”). Remedial orders that impose racial targets or quotas might raise more difficult constitutional questions. While the automatic or pervasive injection of race into public and private transactions covered by the FHA has special dangers, it is also true that race may be considered in certain circumstances and in a proper fashion. Cf. Parents in Community (KENNEDY, J., con- curring in part and concurring in judgment) (“School Cite as: 576 U. S. (2015) 23 Opinion of the Court boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; [and] drawing attendance zones with general recognition of the demographics of neighborhoods”). Just as this Court has not “question[ed] an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the [promotion] process,” it likewise does not impugn hous- ing authorities’ race-neutral efforts to encourage revitali- zation of communities that have long suffered the harsh consequences of segregated housing patterns. When setting their larger goals, local housing authorities may choose to foster diversity and combat racial isolation with race-neutral tools, and mere awareness of race in attempt- ing to solve the problems facing inner cities does not doom that endeavor at the outset. The Court holds that disparate-impact claims are cog- nizable under the Fair Housing Act upon considering its results-oriented language, the Court’s interpretation of similar language in Title VII and the ADEA, Congress’ ratification of disparate-impact claims in against the backdrop of the unanimous view of nine Courts of Appeals, and the statutory purpose. III In light of the longstanding judicial interpretation of the FHA to encompass disparate-impact claims and congres- sional reaffirmation of that result, residents and policy- makers have come to rely on the availability of disparate- impact claims. See Brief for Massachusetts et al. as Amici Curiae 2 (“Without disparate impact claims, States and others will be left with fewer crucial tools to combat the kinds of systemic discrimination that the FHA was in- tended to address”). Indeed, many of our Nation’s largest cities—entities that are potential defendants in disparate- 24 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC. Opinion of the Court impact suits—have submitted an amicus brief in this case supporting disparate-impact liability under the FHA. See Brief for City of San Francisco et al. as Amici Curiae 3–6. The existence of disparate-impact liability in the substan- tial majority of the Courts of Appeals for the last several decades “has not given rise to dire consequences.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. (slip op., at 21). Much progress remains to be made in our Nation’s continuing struggle against racial isolation. In striving to achieve our “historic commitment to creating an integrated society,” Parents (KENNEDY, J., concurring in part and concurring in judgment), we must remain wary of policies that reduce homeowners to noth- ing more than their race. But since the passage of the Fair Housing Act in 1968 and against the backdrop of disparate-impact liability in nearly every jurisdiction, many cities have become more diverse. The FHA must play an important part in avoiding the Kerner Commis- sion’s grim prophecy that “[o]ur Nation is moving toward two societies, one black, one white—separate and un- equal.” Kerner Commission Report 1. The Court acknowl- edges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society. The judgment of the Court of Appeals for the Fifth Circuit is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 576 U. S. (2015) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 13–1371 TEXAS DEPARTMENT OF HOUSING AND COMMU- NITY AFFAIRS, ET AL., PETITIONERS v. THE IN- CLUSIVE COMMUNITIES PROJECT, INC., ET AL.
per_curiam	per_curiam	true	Diffenderfer v. Central Baptist Church of Miami, Inc.	1972-01-10T00:00:00	null	https://www.courtlistener.com/opinion/108425/diffenderfer-v-central-baptist-church-of-miami-inc/	https://www.courtlistener.com/api/rest/v3/clusters/108425/	1,972	1971-035	1	6	1	This is an action for a declaratory judgment that Florida Stat. § 192.06 (4) (1967) violates the First Amendment to the Constitution of the United States 413 insofar as it authorizes a tax exemption for church property used, inter alia, as a commercial parking lot, and for an injunction requiring appropriate state and local officials to assess and collect taxes against such property. It is brought by citizens and taxpayers of Dade County, Florida, where the property in question is located. The crux of their complaint is that state aid in the form of a tax exemption for church property used primarily for commercial purposes amounts not only to an establishment of the one religion aided, but also to an inhibition on the free exercise of other religions. A three-judge District Court, convened pursuant to 28 U.S. C. §§ 2281, 2284, upheld the validity of the statute as applied to the property involved herein, 316 F. Supp. 1116 (1970), and plaintiffs appealed to this Court. 28 U.S. C. § 1253. We noted probable jurisdiction on March 1, 1971. 401 U.S. 934. The Central Baptist Church of Miami, Florida, Inc., is the owner of nearly a full square block of land in downtown Miami which is occupied by church buildings and an offstreet parking lot. The parking facilities are utilized by numerous persons pursuing a variety of church activities. These facilities are also used as a commercial parking lot every day except Sunday. At the time this suit was instituted and decided in the District Court, Fla. Stat. § 192.06 (4) provided for exemption from taxation of: "All houses of public worship and lots on which they are situated, and all pews or steps and furniture therein, every parsonage and all burying grounds not owned or held by individuals or corporations for speculative purposes, tombs and right of burial . . . ." Prior to the decision of the District Court, the Florida Supreme Court had held, in a case involving the same property as is involved here, that church parking lots 414 retain their full tax exemption under state law even though they may be used for commercial as well as church purposes. Central Baptist Church v. Dade County, 216 So. 2d 4 (1968). This led to the constitutional challenge in the District Court. At its 1971 Regular Session, the Florida Legislature repealed § 196.191 (the 1969 successor to § 192.06) and enacted new legislation, approved June 15, 1971, effective December 31, 1971, which provides, in relevant part, that church property is exempt from taxation only if the property is used predominantly for religious purposes and only "to the extent of the ratio that such predominant use bears to the non-exempt use." Fla. Stat. § 196.192 (2). We must review the judgment of the District Court in light of Florida law as it now stands, not as it stood when the judgment below was entered. Hall v. Beals, 396 U.S. 45, 48 (1969); United States v. Alabama, 362 U.S. 602, 604 (1960); cf. Thorpe v. Housing Authority, 393 U.S. 268, 281-282 (1969); Hines v. Davidowitz, 312 U.S. 52, 60 (1941). It is clear that the church parking lot that was the subject of the taxpayers' complaint is no longer fully exempt from taxation. If, in fact, it can be demonstrated that the lot is predominantly used for nonreligious purposes, it will receive no exemption whatever. "The case has therefore lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law." Hall v. Beals, supra, at 48. This is not a case that is "capable of repetition, yet evading review," Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911), nor is it the kind of case that may produce irreparable injury if not decided immediately, see, e. g., Moore v. Ogilvie, 394 U.S. 814 (1969); Gray v. Sanders, 372 U.S. 368 (1963). The only relief sought in the complaint was a declaratory judgment that *415 the now repealed Fla. Stat. § 192.06 (4) is unconstitutional as applied to a church parking lot used for commercial purposes and an injunction against its application to said lot. This relief is, of course, inappropriate now that the statute has been repealed. Because it is possible that appellants may wish to amend their complaint so as to demonstrate that the repealed statute retains some continuing force or to attack the newly enacted legislation, rather than remanding the case to the District Court for dismissal as is our usual practice when a case has become moot pending a decision by this Court, United States v. Munsingwear, Inc., 340 U.S. 36, 39, and n. 2 (1950), we vacate the judgment of the District Court and remand the case to the District Court with leave to the appellants to amend their pleadings. Bryan v. Austin, 354 U.S. 933 (1957). Judgment will be entered accordingly. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR.	This is an action for a declaratory judgment that Florida Stat. 192.06 (4) (1967) violates the First Amendment to the Constitution of the United States 413 insofar as it authorizes a tax exemption for church property used, inter alia, as a commercial parking lot, and for an injunction requiring appropriate state and local officials to assess and collect taxes against such property. It is brought by citizens and taxpayers of Dade County, Florida, where the property in question is located. The crux of their complaint is that state aid in the form of a tax exemption for church property used primarily for commercial purposes amounts not only to an establishment of the one religion aided, but also to an inhibition on the free exercise of other religions. A three-judge District Court, convened pursuant to 28 U.S. C. 2281, 2284, upheld the validity of the statute as applied to the property involved herein, and plaintiffs appealed to this Court. 28 U.S. C. 1253. We noted probable jurisdiction on March 1, 1971. The Central Baptist Church of Miami, Florida, Inc., is the owner of nearly a full square block of land in downtown Miami which is occupied by church buildings and an offstreet parking lot. The parking facilities are utilized by numerous persons pursuing a variety of church activities. These facilities are also used as a commercial parking lot every day except Sunday. At the time this suit was instituted and decided in the District Court, Fla. Stat. 192.06 (4) provided for exemption from taxation of: "All houses of public worship and lots on which they are situated, and all pews or steps and furniture therein, every parsonage and all burying grounds not owned or held by individuals or corporations for speculative purposes, tombs and right of burial" Prior to the decision of the District Court, the Florida Supreme Court had held, in a case involving the same property as is involved here, that church parking lots 414 retain their full tax exemption under state law even though they may be used for commercial as well as church purposes. Central Baptist This led to the constitutional challenge in the District Court. At its 1971 Regular Session, the Florida Legislature repealed 196.191 (the 1969 successor to 192.06) and enacted new legislation, approved June 15, 1971, effective December 31, 1971, which provides, in relevant part, that church property is exempt from taxation only if the property is used predominantly for religious purposes and only "to the extent of the ratio that such predominant use bears to the non-exempt use." Fla. Stat. 196.192 (2). We must review the judgment of the District Court in light of Florida law as it now stands, not as it stood when the judgment below was entered. ; United ; cf. ; It is clear that the church parking lot that was the subject of the taxpayers' complaint is no longer fully exempt from taxation. If, in fact, it can be demonstrated that the lot is predominantly used for nonreligious purposes, it will receive no exemption whatever. "The case has therefore lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law." at This is not a case that is "capable of repetition, yet evading review," Southern Pacific Terminal nor is it the kind of case that may produce irreparable injury if not decided immediately, see, e. g., ; The only relief sought in the complaint was a declaratory judgment that *415 the now repealed Fla. Stat. 192.06 (4) is unconstitutional as applied to a church parking lot used for commercial purposes and an injunction against its application to said lot. This relief is, of course, inappropriate now that the statute has been repealed. Because it is possible that appellants may wish to amend their complaint so as to demonstrate that the repealed statute retains some continuing force or to attack the newly enacted legislation, rather than remanding the case to the District Court for dismissal as is our usual practice when a case has become moot pending a decision by this Court, United we vacate the judgment of the District Court and remand the case to the District Court with leave to the appellants to amend their pleadings. Judgment will be entered accordingly. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR.
Justice White	majority	false	Montanye v. Haymes	1976-06-25T00:00:00	null	https://www.courtlistener.com/opinion/109511/montanye-v-haymes/	https://www.courtlistener.com/api/rest/v3/clusters/109511/	1,976	1975-152	1	6	3	On June 7, 1972, respondent Haymes was removed from his assignment as inmate clerk in the law library at the Attica Correctional Facility in the State of New York. That afternoon Haymes was observed circulating among other inmates a document prepared by him and at the time signed by 82 other prisoners. Among other things, each signatory complained that he had been deprived of legal assistance as the result of the removal of Haymes and another inmate from the prison law library.[1]238 The document, which was addressed to a federal judge but sought no relief, was seized and held by prison authorities. On June 8, Haymes was advised that he would be transferred to Clinton Correctional Facility, which, like Attica, was a maximum-security institution. The transfer was effected the next day. No loss of good time, segregated confinement, loss of privileges, or any other disciplinary measures accompanied the transfer. On August 3, Haymes filed a petition with the United States District Court which was construed by the judge to be an application under 42 U.S. C. § 1983 and 28 U.S. C. § 1343 seeking relief against petitioner Montanye, the then Superintendent at Attica. The petition complained that the seizure and retention of the document, despite requests for its return, not only violated Administrative Bulletin No. 20, which allegedly made any communication to a court privileged and confidential, but also infringed Haymes' federally guaranteed right to petition the court for redress of grievances. It further asserted that Haymes' removal to Clinton was to prevent him from pursuing his remedies and also was in reprisal for his having rendered legal assistance to various prisoners as well as having, along with others, sought to petition the court for redress. In response to a show-cause order issued by the court, petitioner Brady, the correctional officer at Attica in charge of the law library, stated in an affidavit that Haymes had been relieved from his assignment as an inmate clerk in the law library "because of his continual disregard for the rules governing inmates and the use of the law library" and that only one of the inmates who had signed the petition being circulated by Haymes had ever made an official request for legal assistance. The affidavit of Harold Smith, Deputy Superintendent of Attica, furnished the court with Paragraph 21 of the 239 Inmate's Rule Book,[2] which prohibited an inmate from furnishing legal assistance to another inmate without official permission and with a copy of a bulletin board notice directing inmates with legal problems to present them to Officer Bradyinmates were in no circumstances to set themselves up as legal counselors and receive pay for their services.[3] The affidavit asserted that the petition taken from Haymes was being circulated "in direct disregard of the above rule forbidding legal assistance except with the approval of the Superintendent" and that Haymes had been cautioned on several occasions about assisting other inmates without the required approval. Haymes responded by a motion to join Brady as a defendant, which was granted, and with a counteraffidavit denying that there was a rulebook at Attica, reasserting that the document seized was merely a letter to the court not within the scope of the claimed rule and alleging that his removal from the law library, the seizure of his petition, and his transfer to Clinton were acts of reprisal for his having attempted to furnish legal assistance to the other prisoners rather than merely hand out library books to them. 240 After retained counsel had submitted a memorandum on behalf of Haymes, the District Court dismissed the action. It held that the rule against giving legal assistance without consent was reasonable and that the seizure of Haymes' document was not in violation of the Constitution. The court also ruled that the transfer to Clinton did not violate Haymes' rights: "Although a general allegation is made that punishment was the motive for the transfer, there is no allegation that the facilities at [Clinton] are harsher or substantially different from those afforded to petitioner at Attica. . . . Petitioner's transfer was consistent with the discretion given to prison officials in exercising proper custody of inmates." App. 26a. The Court of Appeals for the Second Circuit reversed. 505 F.2d 977 (1974). Because the District Court had considered affidavits outside the pleadings, the dismissal was deemed to have been a summary judgment under Fed. Rule Civ. Proc. 56. The judgment was ruled erroneous because there were two unresolved issues of material fact: whether Haymes' removal to Clinton was punishment for a disobedience of prison rules and if so whether the effects of the transfer were sufficiently burdensome to require a hearing under the Due Process Clause of the Fourteenth Amendment. The court's legal theory was that Haymes should no more be punished by a transfer having harsh consequences than he should suffer other deprivations which under prison rules could not be imposed without following specified procedures. Disciplinary transfers, the Court of Appeals thought, were in a different category from "administrative" transfers. "When harsh treatment is meted out to reprimand, deter, or reform an individual, elementary fairness demands that the one punished be given a satisfactory opportunity to establish 241 that he is not deserving of such handling. . . . [T]he specific facts upon which a decision to punish are predicated can most suitably be ascertained at an impartial hearing to review the evidence of the alleged misbehavior, and to assess the effect which transfer will have on the inmate's future incarceration." 505 F.2d, at 980. The Court of Appeals found it difficult "to look upon the circumstances of the transfer as a mere coincidence," id., at 979; it was also convinced that Haymes might be able to demonstrate sufficiently burdensome consequences attending the transfer to trigger the protections of the Due Process Clause, even though Attica and Clinton were both maximum-security prisons.[4] The case was therefore remanded for further proceedings to the District 242 Court. We granted certiorari, 422 U.S. 1055 (1975), and heard the case with Meachum v. Fano, ante, p. 215. We reverse the judgment of the Court of Appeals. The Court of Appeals did not hold, as did the Court of Appeals in Meachum v. Fano, that every disadvantageous transfer must be accompanied by appropriate hearings. Administrative transfers, although perhaps having very similar consequences for the prisoner, were exempt from the Court of Appeals ruling. Only disciplinary transfers having substantial adverse impact on the prisoner were to call for procedural formalities. Even so, our decision in Meachum requires a reversal in this case. We held in Meachum v. Fano, that no Due Process Clause liberty interest of a duly convicted prison inmate is infringed when he is transferred from one prison to another within the State, whether with or without a hearing, absent some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the occurrence of other specified events. We therefore disagree with the Court of Appeals' general proposition that the Due Process Clause by its own force requires hearings whenever prison authorities transfer a prisoner to another institution because of his breach of prison rules, at least where the transfer may be said to involve substantially burdensome consequences. As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight. The Clause does not require hearings in connection with transfers whether or not they are the result of the inmate's misbehavior or may be labeled as disciplinary or punitive. 243 We also agree with the State of New York that under the law of that State Haymes had no right to remain at any particular prison facility and no justifiable expectation that he would not be transferred unless found guilty of misconduct. Under New York law, adult persons sentenced to imprisonment are not sentenced to particular institutions, but are committed to the custody of the Commissioner of Corrections. He receives adult, male felons at a maximum-security reception center for initial evaluation and then transfers them to specified institutions. N. Y. Correc. Law § 71 (1) (McKinney Supp. 1975-1976); 7 N.Y. C. R. R. § 103.10. Thereafter, the Commissioner is empowered by statute to "transfer inmates from one correctional facility to another." N. Y. Correc. Law § 23 (1) (McKinney Supp. 1975-1976). The Court of Appeals reasoned that because under the applicable state statutes and regulations, various specified punishments were reserved as sanctions for breach of prison rules and could not therefore be imposed without appropriate hearings, neither could the harsh consequences of a transfer be imposed as punishment for misconduct absent appropriate due process procedures. But under the New York law, the transfer of inmates is not conditional upon or limited to the occurrence of misconduct. The statute imposes no conditions on the discretionary power to transfer, and we are advised by the State that no such requirements have been promulgated. Transfers are not among the punishments which may be imposed only after a prison disciplinary hearing. 7 N.Y. C. R. R. § 253.5. Whatever part an inmate's behavior may play in a decision to transfer, there is no more basis in New York law for invoking the protections of the Due Process Clause than we found to be the case under the Massachusetts law in the Meachum case. *244 The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. So ordered. MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR.	On June 7, 1972, respondent Haymes was removed from his assignment as inmate clerk in the law library at the Attica Correctional Facility in the State of New York. That afternoon Haymes was observed circulating among other inmates a document prepared by him and at the time signed by 82 other prisoners. Among other things, each signatory complained that he had been deprived of legal assistance as the result of the removal of Haymes and another inmate from the prison law library.[1]238 The document, which was addressed to a federal judge but sought no relief, was seized and held by prison authorities. On June 8, Haymes was advised that he would be transferred to Clinton Correctional Facility, which, like Attica, was a maximum-security institution. The transfer was effected the next day. No loss of good time, segregated confinement, loss of privileges, or any other disciplinary measures accompanied the transfer. On August 3, Haymes filed a petition with the United States District Court which was construed by the judge to be an application under 42 U.S. C. 1983 and 28 U.S. C. 1343 seeking relief against petitioner Montanye, the then Superintendent at Attica. The petition complained that the seizure and retention of the document, despite requests for its return, not only violated Administrative Bulletin No. 20, which allegedly made any communication to a court privileged and confidential, but also infringed Haymes' federally guaranteed right to petition the court for redress of grievances. It further asserted that Haymes' removal to Clinton was to prevent him from pursuing his remedies and also was in reprisal for his having rendered legal assistance to various prisoners as well as having, along with others, sought to petition the court for redress. In response to a show-cause order issued by the court, petitioner Brady, the correctional officer at Attica in charge of the law library, stated in an affidavit that Haymes had been relieved from his assignment as an inmate clerk in the law library "because of his continual disregard for the rules governing inmates and the use of the law library" and that only one of the inmates who had signed the petition being circulated by Haymes had ever made an official request for legal assistance. The affidavit of Harold Smith, Deputy Superintendent of Attica, furnished the court with Paragraph 21 of the 239 Inmate's Rule Book,[2] which prohibited an inmate from furnishing legal assistance to another inmate without official permission and with a copy of a bulletin board notice directing inmates with legal problems to present them to Officer Bradyinmates were in no circumstances to set themselves up as legal counselors and receive pay for their services.[3] The affidavit asserted that the petition taken from Haymes was being circulated "in direct disregard of the above rule forbidding legal assistance except with the approval of the Superintendent" and that Haymes had been cautioned on several occasions about assisting other inmates without the required approval. Haymes responded by a motion to join Brady as a defendant, which was granted, and with a counteraffidavit denying that there was a rulebook at Attica, reasserting that the document seized was merely a letter to the court not within the scope of the claimed rule and alleging that his removal from the law library, the seizure of his petition, and his transfer to Clinton were acts of reprisal for his having attempted to furnish legal assistance to the other prisoners rather than merely hand out library books to them. 240 After retained counsel had submitted a memorandum on behalf of Haymes, the District Court dismissed the action. It held that the rule against giving legal assistance without consent was reasonable and that the seizure of Haymes' document was not in violation of the Constitution. The court also ruled that the transfer to Clinton did not violate Haymes' rights: "Although a general allegation is made that punishment was the motive for the transfer, there is no allegation that the facilities at [Clinton] are harsher or substantially different from those afforded to petitioner at Attica. Petitioner's transfer was consistent with the discretion given to prison officials in exercising proper custody of inmates." App. 26a. The Court of Appeals for the Second Circuit reversed. Because the District Court had considered affidavits outside the pleadings, the dismissal was deemed to have been a summary judgment under Fed. Rule Civ. Proc. 56. The judgment was ruled erroneous because there were two unresolved issues of material fact: whether Haymes' removal to Clinton was punishment for a disobedience of prison rules and if so whether the effects of the transfer were sufficiently burdensome to require a hearing under the Due Process Clause of the Fourteenth Amendment. The court's legal theory was that Haymes should no more be punished by a transfer having harsh consequences than he should suffer other deprivations which under prison rules could not be imposed without following specified procedures. Disciplinary transfers, the Court of Appeals thought, were in a different category from "administrative" transfers. "When harsh treatment is meted out to reprimand, deter, or reform an individual, elementary fairness demands that the one punished be given a satisfactory opportunity to establish 241 that he is not deserving of such handling. [T]he specific facts upon which a decision to punish are predicated can most suitably be ascertained at an impartial hearing to review the evidence of the alleged misbehavior, and to assess the effect which transfer will have on the inmate's future incarceration." The Court of Appeals found it difficult "to look upon the circumstances of the transfer as a mere coincidence," ; it was also convinced that Haymes might be able to demonstrate sufficiently burdensome consequences attending the transfer to trigger the protections of the Due Process Clause, even though Attica and Clinton were both maximum-security prisons.[4] The case was therefore remanded for further proceedings to the District 242 Court. We granted certiorari, and heard the case with Meachum v. Fano, ante, p. 215. We reverse the judgment of the Court of Appeals. The Court of Appeals did not hold, as did the Court of Appeals in Meachum v. Fano, that every disadvantageous transfer must be accompanied by appropriate hearings. Administrative transfers, although perhaps having very similar consequences for the prisoner, were exempt from the Court of Appeals ruling. Only disciplinary transfers having substantial adverse impact on the prisoner were to call for procedural formalities. Even so, our decision in Meachum requires a reversal in this case. We held in Meachum v. Fano, that no Due Process Clause liberty interest of a duly convicted prison inmate is infringed when he is transferred from one prison to another within the State, whether with or without a hearing, absent some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the occurrence of other specified events. We therefore disagree with the Court of Appeals' general proposition that the Due Process Clause by its own force requires hearings whenever prison authorities transfer a prisoner to another institution because of his breach of prison rules, at least where the transfer may be said to involve substantially burdensome consequences. As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight. The Clause does not require hearings in connection with transfers whether or not they are the result of the inmate's misbehavior or may be labeled as disciplinary or punitive. 243 We also agree with the State of New York that under the law of that State Haymes had no right to remain at any particular prison facility and no justifiable expectation that he would not be transferred unless found guilty of misconduct. Under New York law, adult persons sentenced to imprisonment are not sentenced to particular institutions, but are committed to the custody of the Commissioner of Corrections. He receives adult, male felons at a maximum-security reception center for initial evaluation and then transfers them to specified institutions. N. Y. Correc. Law 71 (1) (McKinney Supp. 1975-1976); 7 N.Y. C. R. R. 103.10. Thereafter, the Commissioner is empowered by statute to "transfer inmates from one correctional facility to another." N. Y. Correc. Law 23 (1) (McKinney Supp. 1975-1976). The Court of Appeals reasoned that because under the applicable state statutes and regulations, various specified punishments were reserved as sanctions for breach of prison rules and could not therefore be imposed without appropriate hearings, neither could the harsh consequences of a transfer be imposed as punishment for misconduct absent appropriate due process procedures. But under the New York law, the transfer of inmates is not conditional upon or limited to the occurrence of misconduct. The statute imposes no conditions on the discretionary power to transfer, and we are advised by the State that no such requirements have been promulgated. Transfers are not among the punishments which may be imposed only after a prison disciplinary hearing. 7 N.Y. C. R. R. 253.5. Whatever part an inmate's behavior may play in a decision to transfer, there is no more basis in New York law for invoking the protections of the Due Process Clause than we found to be the case under the Massachusetts law in the Meachum case. *244 The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. So ordered. MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR.
Justice Blackmun	dissenting	true	Zant v. Moore	1989-03-29T00:00:00	null	https://www.courtlistener.com/opinion/112229/zant-v-moore/	https://www.courtlistener.com/api/rest/v3/clusters/112229/	1,989	1988-064	1	8	1	I would dismiss the petition for certiorari as having been improvidently granted, rather than vacate and remand the *837 case for reconsideration in the light of Teague v. Lane, ante, p. 288. The Court's discussion of retroactivity in Teague, to be sure, could have some bearing on the issues in this case. But petitioner did not raise nonretroactivity as a defense to respondent's claim for federal habeas relief, and that defense therefore should be deemed waived. In Teague, the Court did not consider the claim of nonretroactivity to have been waived. Instead, it addressed retroactivity as a threshold matter. But that approach was dictated by the posture of the case. The petitioner in Teague sought the announcement of a new rule of constitutional law to be applied for the first time in his case. It was this Court's judgment that no new rule of law should be announced in the first instance in a habeas case if similarly situated habeas petitioners could not benefit from that rule because of established principles of nonretroactivity. The present litigation is in a different posture in that respondent here did not seek the announcement of a new rule of constitutional law in his case in the first instance. I see no reason to give petitioner a second opportunity to interject the issue of nonretroactivity as a defense. In any event, I must assume that it is not the thrust of this Court's order to prejudge the availability of a retroactivity defense. That issue is for the Court of Appeals on remand.	I would dismiss the petition for certiorari as having been improvidently granted, rather than vacate and remand the *837 case for reconsideration in the light of Teague v. Lane, ante, p. 288. The Court's discussion of retroactivity in Teague, to be sure, could have some bearing on the issues in this case. But petitioner did not raise nonretroactivity as a defense to respondent's claim for federal habeas relief, and that defense therefore should be deemed waived. In Teague, the Court did not consider the claim of nonretroactivity to have been waived. Instead, it addressed retroactivity as a threshold matter. But that approach was dictated by the posture of the case. The petitioner in Teague sought the announcement of a new rule of constitutional law to be applied for the first time in his case. It was this Court's judgment that no new rule of law should be announced in the first instance in a habeas case if similarly situated habeas petitioners could not benefit from that rule because of established principles of nonretroactivity. The present litigation is in a different posture in that respondent here did not seek the announcement of a new rule of constitutional law in his case in the first instance. I see no reason to give petitioner a second opportunity to interject the issue of nonretroactivity as a defense. In any event, I must assume that it is not the thrust of this Court's order to prejudge the availability of a retroactivity defense. That issue is for the Court of Appeals on remand.
Justice Stevens	dissenting	false	Business Electronics Corp. v. Sharp Electronics Corp.	1988-05-02T00:00:00	null	https://www.courtlistener.com/opinion/112051/business-electronics-corp-v-sharp-electronics-corp/	https://www.courtlistener.com/api/rest/v3/clusters/112051/	1,988	1987-074	1	6	2	In its opinion the majority assumes, without analysis, that the question presented by this case concerns the legality of a "vertical nonprice restraint." As I shall demonstrate, the restraint that results when one or more dealers threaten to boycott a manufacturer unless it terminates its relationship with a price-cutting retailer is more properly viewed as a "horizontal restraint." Moreover, an agreement to terminate a dealer because of its price cutting is most certainly not a "nonprice restraint." The distinction between "vertical nonprice restraints" and "vertical price restraints," on which the majority focuses its attention, is therefore quite irrelevant to the outcome of this case. Of much greater importance is the distinction between "naked restraints" and "ancillary restraints" that has been a part of our law since the landmark opinion written by Judge (later Chief Justice) Taft in United States v. Addyston Pipe & Steel Co., 85 F. 271 (CA6 1898), aff'd, 175 U.S. 211 (1899). I The plain language of § 1 of the Sherman Act prohibits "every" contract that restrains trade.[1] Because such a literal reading of the statute would outlaw the entire body of private contract law, and because Congress plainly intended 737 the Act to be interpreted in the light of its common-law background, the Court has long held that certain "ancillary" restraints of trade may be defended as reasonable. As we recently explained without dissent: "The Rule of Reason suggested by Mitchel v. Reynolds [1 P. Wms. 181, 24 Eng. Rep. 347 (1711)] has been regarded as a standard for testing the enforceability of covenants in restraint of trade which are ancillary to a legitimate transaction, such as an employment contract or the sale of a going business. Judge (later Mr. Chief Justice) Taft so interpreted the Rule in his classic rejection of the argument that competitors may lawfully agree to sell their goods at the same price as long as the agreed-upon price is reasonable. United States v. Addyston Pipe & Steel Co. . . . ." National Society of Professional Engineers v. United States, 435 U.S. 679, 689 (1978). Judge Taft's rejection of an argument that a price-fixing agreement could be defended as reasonable was based on a detailed examination of common-law precedents. He explained that in England there had been two types of objection to voluntary restraints on one's ability to transact business. "One was that by such contracts a man disabled himself from earning a livelihood with the risk of becoming a public charge, and deprived the community of the benefit of his labor. The other was that such restraints tended to give to the covenantee, the beneficiary of such restraints, a monopoly of the trade, from which he had thus excluded one competitor, and by the same means might exclude others." 85 F., at 279. Certain contracts, however, such as covenants not to compete in a particular business, for a certain period of time, within a defined geographical area, had always been considered reasonable when necessary to carry out otherwise procompetitive contracts, such as the sale of a business. Id., at 280-282. The difference between ancillary covenants that 738 may be justified as reasonable and those that are "void" because there is "nothing to justify or excuse the restraint," id., at 282-283, was described in the opinion's seminal discussion: "[T]he contract must be one in which there is a main purpose, to which the covenant in restraint of trade is merely ancillary. The covenant is inserted only to protect one of the parties from the injury which, in the execution of the contract or enjoyment of its fruits, he may suffer from the unrestrained competition of the other. The main purpose of the contract suggests the measure of protection needed, and furnishes a sufficiently uniform standard by which the validity of such restraints may be judicially determined. In such a case, if the restraint exceeds the necessity presented by the main purpose of the contract, it is void for two reasons: First, because it oppresses the covenantor, without any corresponding benefit to the covenantee; and, second, because it tends to a monopoly. But where the sole object of both parties in making the contract as expressed therein is merely to restrain competition, and enhance or maintain prices, it would seem that there was nothing to justify or excuse the restraint, that it would necessarily have a tendency to monopoly, and therefore would be void. In such a case there is no measure of what is necessary to the protection of either party, except the vague and varying opinion of judges as to how much, on principles of political economy, men ought to be allowed to restrain competition. There is in such contracts no main lawful purpose, to subserve which partial restraint is permitted, and by which its reasonableness is measured, but the sole object is to restrain trade in order to avoid the competition which it has always been the policy of the common law to foster." Ibid. Although Judge Taft was writing as a Circuit Judge, his opinion is universally accepted as authoritative. We affirmed 739 his decision without dissent, we have repeatedly cited it with approval,[2] and it is praised by a respected scholar as "one of the greatest, if not the greatest, antitrust opinions in the history of the law." R. Bork, The Antitrust Paradox 26 (1978). In accordance with the teaching in that opinion, it is therefore appropriate to look more closely at the character of the restraint of trade found by the jury in this case. II It may be helpful to begin by explaining why the agreement in this case does not fit into certain categories of agreement that are frequently found in antitrust litigation. First, despite the contrary implications in the majority opinion, this is not a case in which the manufacturer is alleged to have imposed any vertical nonprice restraints on any of its dealers. The term "vertical nonprice restraint," as used in Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977), and similar cases, refers to a contractual term that a dealer must accept in order to qualify for a franchise. Typically, the dealer must agree to meet certain standards in its advertising, promotion, product display, and provision of repair and maintenance services in order to protect the goodwill of the manufacturer's product. Sometimes a dealer must agree to sell only to certain classes of customers for example, wholesalers generally may only sell to retailers and may be required not to sell directly to consumers. In Sylvania, to take another example, we examined agreements between a manufacturer and its dealers that included "provisions barring the retailers from selling franchised products from locations other than those specified in agreements." Id., at 37. Restrictions of that kind, which are a part of, or ancillary to, 740 the basic franchise agreement, are perfectly lawful unless the "rule of reason" is violated. Although vertical nonprice restraints may have some adverse effect on competition, as long as they serve the main purpose of a procompetitive distribution agreement, the ancillary restraints may be defended under the rule of reason. And, of course, a dealer who violates such a restraint may properly be terminated by the manufacturer.[3] In this case, it does not appear that respondent imposed any vertical nonprice restraints upon either petitioner or Hartwell. Specifically, respondent did not enter into any "exclusive" agreement, as did the defendant in Sylvania. It is true that before Hartwell was appointed and after petitioner was terminated, the manufacturer was represented by only one retailer in the Houston market, but there is no evidence that respondent ever made any contractual commitment to give either of them any exclusive rights. This therefore is not a case in which a manufacturer's right to grant exclusive territories, or to change the identity of the dealer in an established exclusive territory, is implicated. The case is one in which one of two competing dealers entered into an agreement with the manufacturer to terminate a particular competitor without making any promise to provide better or more efficient services and without receiving any guarantee of exclusivity in the future. The contractual relationship between respondent and Hartwell was exactly 741 the same after petitioner's termination as it had been before that termination. Second, this case does not involve a typical vertical price restraint. As the Court of Appeals noted, there is some evidence in the record that may support the conclusion that respondent and Hartwell implicitly agreed that Hartwell's prices would be maintained at a level somewhat higher than petitioner had been charging before petitioner was terminated. 780 F.2d 1212, 1219 (CA5 1986). The illegality of the agreement found by the jury does not, however, depend on such evidence. For purposes of analysis, we should assume that no such agreement existed and that respondent was perfectly willing to allow its dealers to set prices at levels that would maximize their profits. That seems to have been the situation during the period when petitioner was the only dealer in Houston. Moreover, after respondent appointed Hartwell as its second dealer, it was Hartwell, rather than respondent, who objected to petitioner's pricing policies. Third, this is not a case in which the manufacturer acted independently. Indeed, given the jury's verdict, it is not even a case in which the termination can be explained as having been based on the violation of any distribution policy adopted by respondent. The termination was motivated by the ultimatum that respondent received from Hartwell and that ultimatum, in turn, was the culmination of Hartwell's complaints about petitioner's competitive price cutting. The termination was plainly the product of coercion by the stronger of two dealers rather than an attempt to maintain an orderly and efficient system of distribution.[4] 742 In sum, this case does not involve the reasonableness of any vertical restraint imposed on one or more dealers by a manufacturer in its basic franchise agreement. What the jury found was a simple and naked " `agreement between Sharp and Hartwell to terminate Business Electronics because of Business Electronics' price cutting.' " Ante, at 722. III Because naked agreements to restrain the trade of third parties are seldom identified with such stark clarity as in this case, there appears to be no exact precedent that determines the outcome here. There are, however, perfectly clear rules that would be decisive if the facts were changed only slightly. Thus, on the one hand, if it were clear that respondent had acted independently and decided to terminate petitioner because respondent, for reasons of its own, objected to petitioner's pricing policies, the termination would be lawful. See United States v. Parke, Davis & Co., 362 U.S. 29, 43-45 (1960). On the other hand, it is equally clear that if respondent had been represented by three dealers in the Houston market instead of only two, and if two of them had threatened to terminate their dealerships "unless respondent ended its relationship with petitioner within 30 days," ante, at 721, an agreement to comply with the ultimatum would be an obvious violation of the Sherman Act. See, e. g., United States v. General Motors Corp., 384 U.S. 127 (1966); Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207 (1959).[5] The 743 question then is whether the two-party agreement involved in this case is more like an illegal three-party agreement or a legal independent decision. For me, the answer is plain. The distinction between independent action and joint action is fundamental in antitrust jurisprudence.[6] Any attempt 744 to define the boundaries of per se illegality by the number of parties to different agreements with the same anticompetitive consequences can only breed uncertainty in the law and confusion for the businessman. More importantly, if instead of speculating about irrelevant vertical nonprice restraints, we focus on the precise character of the agreement before us, we can readily identify its anticompetitive nature. Before the agreement was made, there was price competition in the Houston retail market for respondent's products. The stronger of the two competitors was unhappy about that competition; it wanted to have the power to set the price level in the market and therefore it "complained to respondent on a number of occasions about petitioner's prices." Ante, at 721. Quite obviously, if petitioner had agreed with either Hartwell or respondent to discontinue its competitive pricing, there would have been no ultimatum from Hartwell and no termination by respondent. It is equally obvious that either of those agreements would have been illegal per se.[7] Moreover, it is also reasonable to assume that if respondent were to replace petitioner with another price-cutting dealer, there would soon be more complaints and another ultimatum from Hartwell. Although respondent has not granted Hartwell an exclusive dealership it retains the right to appoint multiple dealers its 745 agreement has protected Hartwell from price competition. Indeed, given the jury's finding and the evidence in the record, that is the sole function of the agreement found by the jury in this case. It therefore fits squarely within the category of "naked restraints of trade with no purpose except stifling of competition." White Motor Co. v. United States, 372 U.S. 253, 263 (1963). This is the sort of agreement that scholars readily characterize as "inherently suspect."[8] When a manufacturer responds to coercion from a dealer, instead of making an independent decision to enforce a predetermined distribution policy, the anticompetitive character of the response is evident.[9] As Professor Areeda has correctly noted, the fact that the agreement is between only one complaining dealer and the manufacturer does not prevent it from imposing a "horizontal" restraint.[10] If two critical facts are present a 746 naked purpose to eliminate price competition as such and coercion of the manufacturer[11] the conflict with antitrust policy is manifest.[12] 747 Indeed, since the economic consequences of Hartwell's ultimatum to respondent are identical to those that would result from a comparable ultimatum by two of three dealers in a market and since a two-party price-fixing agreement is just as unlawful as a three-party price-fixing agreement it is appropriate to employ the term "boycott" to characterize this agreement. In my judgment the case is therefore controlled by our decision in United States v. General Motors Corp., 384 U.S. 127 (1966). The majority disposes quickly of both General Motors and Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207 (1959), by concluding that "both cases involved horizontal combinations." Ante, at 734. But this distinction plainly will 748 not suffice. In General Motors, a group of Chevrolet dealers conspired with General Motors to eliminate sales from the manufacturer to discounting dealers. We held that "[e]limination, by joint collaborative action, of discounters from access to the market is a per se violation of the Act," 384 U.S., at 145, and explained that "inherent in the success of the combination in this case was a substantial restraint upon price competition a goal unlawful per se when sought to be effected by combination or conspiracy." Id., at 147. Precisely the same goal was sought and effected in this case the elimination of price competition at the dealer level. Moreover, the method of achieving that goal was precisely the same in both cases the manufacturer's refusal to sell to discounting dealers. The difference between the two cases is not a difference between horizontal and vertical agreements in both cases the critical agreement was between market actors at the retail level on the one hand and the manufacturer level on the other. Rather, the difference is simply a difference in the number of conspirators. Hartwell's coercion of respondent in order to eliminate petitioner because of its same-level price competition is not different in kind from the Chevrolet dealers' coercion of General Motors in order to eliminate other, price-cutting dealers; the only difference between the two cases one dealer seeking a naked price-based restraint in today's case, many dealers seeking the same end in General Motors is merely a difference in degree. Both boycotts lack any efficiency justification they are simply naked restraints on price competition, rather than integral, or ancillary, parts of the manufacturers' predetermined distribution policies. IV What is most troubling about the majority's opinion is its failure to attach any weight to the value of intrabrand competition. In Continental T. V., Inc. v. GTE Sylvania Inc., 749 433 U.S. 36 (1977), we correctly held that a demonstrable benefit to interbrand competition will outweigh the harm to intrabrand competition that is caused by the imposition of vertical nonprice restrictions on dealers. But we also expressly reaffirmed earlier cases in which the illegal conspiracy affected only intrabrand competition.[13] Not a word in the Sylvania opinion implied that the elimination of intrabrand competition could be justified as reasonable without any evidence of a purpose to improve interbrand competition. In the case before us today, the relevant economic market was the sale at retail in the Houston area of calculators manufactured by respondent.[14] There is no dispute that an agreement 750 to fix prices in that market, either horizontally between petitioner and Hartwell or vertically between respondent and either or both of the two dealers, would violate the Sherman Act. The "quite plausible" assumption, see ante, at 729, that such an agreement might enable the retailers to provide better services to their customers would not have avoided the strict rule against price fixing that this Court has consistently enforced in the past. 751 Under petitioner's theory of the case, an agreement between respondent and Hartwell to terminate petitioner because of its price cutting was just as indefensible as any of those price-fixing agreements. At trial the jury found the existence of such an agreement to eliminate petitioner's price competition. Respondent had denied that any agreement had been made and asked the jury to find that it had independently decided to terminate petitioner because of its poor sales performance,[15] but after hearing several days of testimony, the jury concluded that this defense was pretextual. Neither the Court of Appeals nor the majority questions the accuracy of the jury's resolution of the factual issues in this case. Nevertheless, the rule the majority fashions today is based largely on its concern that in other cases juries will be unable to tell the difference between truthful and pretextual defenses. Thus, it opines that "even a manufacturer that agrees with one dealer to terminate another for failure to provide contractually obligated services, exposes itself to the highly plausible claim that its real motivation was to terminate a price cutter." Ante, at 728. But such a "plausible" concern in a hypothetical case that is so different from this one should not be given greater weight than facts that can be established by hard evidence. If a dealer has, in fact, failed to provide contractually obligated services, and if the manufacturer has, in fact, terminated the dealer for that reason, both of those objective facts should be provable by admissible 752 evidence.[16] Both in its disposition of this case and in its attempt to justify a new approach to agreements to eliminate price competition, the majority exhibits little confidence in the judicial process as a means of ascertaining the truth.[17] 753 The majority fails to consider that manufacturers such as respondent will only be held liable in the rare case in which the following can be proved: First, the terminated dealer must overcome the high hurdle of Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 (1984). A terminated dealer must introduce "evidence that tends to exclude the possibility that the manufacturer and nonterminated distributors were acting independently." Id., at 764. Requiring judges to adhere to the strict test for agreement laid down in Monsanto, in their jury instructions or own findings of fact, goes a long way toward ensuring that many legitimate dealer termination decisions do not succumb improperly to antitrust liability.[18] Second, the terminated dealer must prove that the agreement was based on a purpose to terminate it because of its price cutting. Proof of motivation is another commonplace in antitrust litigation of which the majority appears apprehensive, but as we have explained or demonstrated many times, see, e. g., Aspen Skiing Co. v. Aspen Highlands Skiing 754 Corp., 472 U.S. 585, 610-611 (1985); McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 243 (1980); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224-226, n. 59 (1940); Chicago Board of Trade v. United States, 246 U.S. 231, 238 (1918); see also Piraino, The Case for Presuming the Legality of Quality Motivated Restrictions on Distribution, 63 Notre Dame L. Rev. 1, 4, 16-19 (1988), in antitrust, as in many other areas of the law, motivation matters and factfinders are able to distinguish bad from good intent. Third, the manufacturer may rebut the evidence tending to prove that the sole purpose of the agreement was to eliminate a price cutter by offering evidence that it entered the agreement for legitimate, nonprice-related reasons. Although in this case the jury found a naked agreement to terminate a dealer because of its price cutting, ante, at 721-722, the majority boldly characterizes the same agreement as "this nonprice vertical restriction." Ante, at 729. That characterization is surely an oxymoron when applied to the agreement the jury actually found. Nevertheless, the majority proceeds to justify it as "ancillary" to a "quite plausible purpose . . . to enable Hartwell to provide better services under the sales franchise agreement." Ibid. There are two significant reasons why that justification is unacceptable. First, it is not supported by the jury's verdict. Although it did not do so with precision, the District Court did instruct the jury that in order to hold respondent liable it had to find that the agreement's purpose was to eliminate petitioner because of its price cutting and that no valid vertical nonprice restriction existed to which the motivation to eliminate price competition at the dealership level was merely ancillary.[19] 755 Second, the "quite plausible purpose" the majority hypothesizes as salvation for the otherwise anticompetitive elimination of price competition "to enable Hartwell to provide better services under the sales franchise agreement," ibid., is simply not the type of concern we sought to protect in Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977). I have emphasized in this dissent the difference between restrictions imposed in pursuit of a manufacturer's structuring of its product distribution, and those imposed at the behest of retailers who care less about the general efficiency of a product's promotion than their own profit margins. Sylvania stressed the importance of the former, not the latter; we referred to the use that manufacturers can 756 make of vertical nonprice restraints, see id., at 54-57, and nowhere did we discuss the benefits of permitting dealers to structure intrabrand competition at the retail level by coercing manufacturers into essentially anticompetitive agreements. Thus, while Hartwell may indeed be able to provide better services under the sales franchise agreement with petitioner out of the way, one would not have thought, until today, that the mere possibility of such a result at the expense of the elimination of price competition and absent the salutary overlay of a manufacturer's distribution decision with the entire product line in mind would be sufficient to legitimate an otherwise purely anticompetitive restraint. See n. 14, supra. In fact, given the majority's total reliance on "economic analysis," see ante, at 735, it is hard to understand why, if such a purpose were sufficient to avoid the application of a per se rule in this context, the same purpose should not also be sufficient to trump the per se rule in all other price-fixing cases that arguably permit cartel members to "provide better services." If, however, we continue to accept the premise that competition in the relevant market is worthy of legal protection that we should not rely on competitive pressures exerted by sellers in other areas and purveyors of similar but not identical products and if we are faithful to the competitive philosophy that has animated our antitrust jurisprudence since Judge Taft's opinion in Addyston Pipe, we can agree that the elimination of price competition will produce wider gross profit margins for retailers, but we may not assume that the retailer's self-interest will result in a better marketplace for consumers. "The Sherman Act reflects a legislative judgment that ultimately competition will produce not only lower prices, but also better goods and services. `The heart of our national economic policy long has been faith in the value of competition.' Standard Oil Co. v. FTC, 340 U.S. 231, 248. The assumption that competition is the best 757 method of allocating resources in a free market recognizes that all elements of a bargain quality, service, safety, and durability and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers. Even assuming occasional exceptions to the presumed consequences of competition, the statutory policy precludes inquiry into the question whether competition is good or bad." National Society of Professional Engineers v. United States, 435 U. S., at 695. The "plausible purpose" posited by the majority as its sole justification for this mischaracterized "nonprice vertical restriction" is inconsistent with the legislative judgment that underlies the Sherman Act itself. Under the facts as found by the jury in this case, the agreement before us is one whose "sole object is to restrain trade in order to avoid the competition which it has always been the policy of the common law to foster." United States v. Addyston Pipe & Steel Co., 85 F., at 283. V In sum, this simply is not a case in which procompetitive vertical nonprice restraints have been imposed; in fact, it is not a case in which any procompetitive agreement is at issue.[20] The sole purpose of the agreement between respondent 758 and Hartwell was to eliminate price competition at Hartwell's level. As Judge Bork has aptly explained: "Since the naked boycott is a form of predatory behavior, there is little doubt that it should be a per se violation of the Sherman Act." Bork, The Antitrust Paradox, at 334. I respectfully dissent.	In its opinion the majority assumes, without analysis, that the question presented by this case concerns the legality of a "vertical nonprice restraint." As I shall demonstrate, the restraint that results when one or more dealers threaten to boycott a manufacturer unless it terminates its relationship with a price-cutting retailer is more properly viewed as a "horizontal restraint." Moreover, an agreement to terminate a dealer because of its price cutting is most certainly not a "nonprice restraint." The distinction between "vertical nonprice restraints" and "vertical price restraints," on which the majority focuses its attention, is therefore quite irrelevant to the outcome of this case. Of much greater importance is the distinction between "naked restraints" and "ancillary restraints" that has been a part of our law since the landmark opinion written by Judge (later Chief Justice) Taft in United aff'd, I The plain language of 1 of the Sherman Act prohibits "every" contract that restrains trade.[1] Because such a literal reading of the statute would outlaw the entire body of private contract law, and because Congress plainly intended 737 the Act to be interpreted in the light of its common-law background, the Court has long held that certain "ancillary" restraints of trade may be defended as reasonable. As we recently explained without dissent: "The Rule of Reason suggested by Mitchel v. Reynolds [1 P. Wms. 181, 24 Eng. Rep. 347 (1711)] has been regarded as a standard for testing the enforceability of covenants in restraint of trade which are ancillary to a legitimate transaction, such as an employment contract or the sale of a going business. Judge (later Mr. Chief Justice) Taft so interpreted the Rule in his classic rejection of the argument that competitors may lawfully agree to sell their goods at the same price as long as the agreed-upon price is reasonable. United" National Society of Professional Judge Taft's rejection of an argument that a price-fixing agreement could be defended as reasonable was based on a detailed examination of common-law precedents. He explained that in England there had been two types of objection to voluntary restraints on one's ability to transact business. "One was that by such contracts a man disabled himself from earning a livelihood with the risk of becoming a public charge, and deprived the community of the benefit of his labor. The other was that such restraints tended to give to the covenantee, the beneficiary of such restraints, a monopoly of the trade, from which he had thus excluded one competitor, and by the same means might exclude others." Certain contracts, however, such as covenants not to compete in a particular business, for a certain period of time, within a defined geographical area, had always been considered reasonable when necessary to carry out otherwise procompetitive contracts, such as the sale of a business. The difference between ancillary covenants that 738 may be justified as reasonable and those that are "void" because there is "nothing to justify or excuse the restraint," was described in the opinion's seminal discussion: "[T]he contract must be one in which there is a main purpose, to which the covenant in restraint of trade is merely ancillary. The covenant is inserted only to protect one of the parties from the injury which, in the execution of the contract or enjoyment of its fruits, he may suffer from the unrestrained competition of the other. The main purpose of the contract suggests the measure of protection needed, and furnishes a sufficiently uniform standard by which the validity of such restraints may be judicially determined. In such a case, if the restraint exceeds the necessity presented by the main purpose of the contract, it is void for two reasons: First, because it oppresses the covenantor, without any corresponding benefit to the covenantee; and, second, because it tends to a monopoly. But where the sole object of both parties in making the contract as expressed therein is merely to restrain competition, and enhance or maintain prices, it would seem that there was nothing to justify or excuse the restraint, that it would necessarily have a tendency to monopoly, and therefore would be void. In such a case there is no measure of what is necessary to the protection of either party, except the vague and varying opinion of judges as to how much, on principles of political economy, men ought to be allowed to restrain competition. There is in such contracts no main lawful purpose, to subserve which partial restraint is permitted, and by which its reasonableness is measured, but the sole object is to restrain trade in order to avoid the competition which it has always been the policy of the common law to foster." Although Judge Taft was writing as a Circuit Judge, his opinion is universally accepted as authoritative. We affirmed 739 his decision without dissent, we have repeatedly cited it with approval,[2] and it is praised by a respected scholar as "one of the greatest, if not the greatest, antitrust opinions in the history of the law." R. Bork, The Antitrust Paradox 26 In accordance with the teaching in that opinion, it is therefore appropriate to look more closely at the character of the restraint of trade found by the jury in this case. II It may be helpful to begin by explaining why the agreement in this case does not fit into certain categories of agreement that are frequently found in antitrust litigation. First, despite the contrary implications in the majority opinion, this is not a case in which the manufacturer is alleged to have imposed any vertical nonprice restraints on any of its dealers. The term "vertical nonprice restraint," as used in Continental T. V., and similar cases, refers to a contractual term that a dealer must accept in order to qualify for a franchise. Typically, the dealer must agree to meet certain standards in its advertising, promotion, product display, and provision of repair and maintenance services in order to protect the goodwill of the manufacturer's product. Sometimes a dealer must agree to sell only to certain classes of customers for example, wholesalers generally may only sell to retailers and may be required not to sell directly to consumers. In Sylvania, to take another example, we examined agreements between a manufacturer and its dealers that included "provisions barring the retailers from selling franchised products from locations other than those specified in agreements." Restrictions of that kind, which are a part of, or ancillary to, 740 the basic franchise agreement, are perfectly lawful unless the "rule of reason" is violated. Although vertical nonprice restraints may have some adverse effect on competition, as long as they serve the main purpose of a procompetitive distribution agreement, the ancillary restraints may be defended under the rule of reason. And, of course, a dealer who violates such a restraint may properly be terminated by the manufacturer.[3] In this case, it does not appear that respondent imposed any vertical nonprice restraints upon either petitioner or Hartwell. Specifically, respondent did not enter into any "exclusive" agreement, as did the defendant in Sylvania. It is true that before Hartwell was appointed and after petitioner was terminated, the manufacturer was represented by only one retailer in the Houston market, but there is no evidence that respondent ever made any contractual commitment to give either of them any exclusive rights. This therefore is not a case in which a manufacturer's right to grant exclusive territories, or to change the identity of the dealer in an established exclusive territory, is implicated. The case is one in which one of two competing dealers entered into an agreement with the manufacturer to terminate a particular competitor without making any promise to provide better or more efficient services and without receiving any guarantee of exclusivity in the future. The contractual relationship between respondent and Hartwell was exactly 741 the same after petitioner's termination as it had been before that termination. Second, this case does not involve a typical vertical price restraint. As the Court of Appeals noted, there is some evidence in the record that may support the conclusion that respondent and Hartwell implicitly agreed that Hartwell's prices would be maintained at a level somewhat higher than petitioner had been charging before petitioner was terminated. The illegality of the agreement found by the jury does not, however, depend on such evidence. For purposes of analysis, we should assume that no such agreement existed and that respondent was perfectly willing to allow its dealers to set prices at levels that would maximize their profits. That seems to have been the situation during the period when petitioner was the only dealer in Houston. Moreover, after respondent appointed Hartwell as its second dealer, it was Hartwell, rather than respondent, who objected to petitioner's pricing policies. Third, this is not a case in which the manufacturer acted independently. Indeed, given the jury's verdict, it is not even a case in which the termination can be explained as having been based on the violation of any distribution policy adopted by respondent. The termination was motivated by the ultimatum that respondent received from Hartwell and that ultimatum, in turn, was the culmination of Hartwell's complaints about petitioner's competitive price cutting. The termination was plainly the product of coercion by the stronger of two dealers rather than an attempt to maintain an orderly and efficient system of distribution.[4] 742 In sum, this case does not involve the reasonableness of any vertical restraint imposed on one or more dealers by a manufacturer in its basic franchise agreement. What the jury found was a simple and naked " `agreement between Sharp and Hartwell to terminate Business Electronics because of Business Electronics' price cutting.' " Ante, at 722. III Because naked agreements to restrain the trade of third parties are seldom identified with such stark clarity as in this case, there appears to be no exact precedent that determines the outcome here. There are, however, perfectly clear rules that would be decisive if the facts were changed only slightly. Thus, on the one hand, if it were clear that respondent had acted independently and decided to terminate petitioner because respondent, for reasons of its own, objected to petitioner's pricing policies, the termination would be lawful. See United On the other hand, it is equally clear that if respondent had been represented by three dealers in the Houston market instead of only two, and if two of them had threatened to terminate their dealerships "unless respondent ended its relationship with petitioner within 30 days," ante, at 721, an agreement to comply with the ultimatum would be an obvious violation of the Sherman Act. See, e. g., United ; Klor's,[5] The 743 question then is whether the two-party agreement involved in this case is more like an illegal three-party agreement or a legal independent decision. For me, the answer is plain. The distinction between independent action and joint action is fundamental in antitrust jurisprudence.[6] Any attempt 744 to define the boundaries of per se illegality by the number of parties to different agreements with the same anticompetitive consequences can only breed uncertainty in the law and confusion for the businessman. More importantly, if instead of speculating about irrelevant vertical nonprice restraints, we focus on the precise character of the agreement before us, we can readily identify its anticompetitive nature. Before the agreement was made, there was price competition in the Houston retail market for respondent's products. The stronger of the two competitors was unhappy about that competition; it wanted to have the power to set the price level in the market and therefore it "complained to respondent on a number of occasions about petitioner's prices." Ante, at 721. Quite obviously, if petitioner had agreed with either Hartwell or respondent to discontinue its competitive pricing, there would have been no ultimatum from Hartwell and no termination by respondent. It is equally obvious that either of those agreements would have been illegal per se.[7] Moreover, it is also reasonable to assume that if respondent were to replace petitioner with another price-cutting dealer, there would soon be more complaints and another ultimatum from Hartwell. Although respondent has not granted Hartwell an exclusive dealership it retains the right to appoint multiple dealers its 745 agreement has protected Hartwell from price competition. Indeed, given the jury's finding and the evidence in the record, that is the sole function of the agreement found by the jury in this case. It therefore fits squarely within the category of "naked restraints of trade with no purpose except stifling of competition." White Motor This is the sort of agreement that scholars readily characterize as "inherently suspect."[8] When a manufacturer responds to coercion from a dealer, instead of making an independent decision to enforce a predetermined distribution policy, the anticompetitive character of the response is evident.[9] As Professor Areeda has correctly noted, the fact that the agreement is between only one complaining dealer and the manufacturer does not prevent it from imposing a "horizontal" restraint.[10] If two critical facts are present a 746 naked purpose to eliminate price competition as such and coercion of the manufacturer[11] the conflict with antitrust policy is manifest.[12] 747 Indeed, since the economic consequences of Hartwell's ultimatum to respondent are identical to those that would result from a comparable ultimatum by two of three dealers in a market and since a two-party price-fixing agreement is just as unlawful as a three-party price-fixing agreement it is appropriate to employ the term "boycott" to characterize this agreement. In my judgment the case is therefore controlled by our decision in United The majority disposes quickly of both General Motors and Klor's, by concluding that "both cases involved horizontal combinations." Ante, at 734. But this distinction plainly will 748 not suffice. In General Motors, a group of Chevrolet dealers conspired with General Motors to eliminate sales from the manufacturer to discounting dealers. We held that "[e]limination, by joint collaborative action, of discounters from access to the market is a per se violation of the Act," and explained that "inherent in the success of the combination in this case was a substantial restraint upon price competition a goal unlawful per se when sought to be effected by combination or conspiracy." Precisely the same goal was sought and effected in this case the elimination of price competition at the dealer level. Moreover, the method of achieving that goal was precisely the same in both cases the manufacturer's refusal to sell to discounting dealers. The difference between the two cases is not a difference between horizontal and vertical agreements in both cases the critical agreement was between market actors at the retail level on the one hand and the manufacturer level on the other. Rather, the difference is simply a difference in the number of conspirators. Hartwell's coercion of respondent in order to eliminate petitioner because of its same-level price competition is not different in kind from the Chevrolet dealers' coercion of General Motors in order to eliminate other, price-cutting dealers; the only difference between the two cases one dealer seeking a naked price-based restraint in today's case, many dealers seeking the same end in General Motors is merely a difference in degree. Both boycotts lack any efficiency justification they are simply naked restraints on price competition, rather than integral, or ancillary, parts of the manufacturers' predetermined distribution policies. IV What is most troubling about the majority's opinion is its failure to attach any weight to the value of intrabrand competition. In Continental T. V., 749 we correctly held that a demonstrable benefit to interbrand competition will outweigh the harm to intrabrand competition that is caused by the imposition of vertical nonprice restrictions on dealers. But we also expressly reaffirmed earlier cases in which the illegal conspiracy affected only intrabrand competition.[13] Not a word in the Sylvania opinion implied that the elimination of intrabrand competition could be justified as reasonable without any evidence of a purpose to improve interbrand competition. In the case before us today, the relevant economic market was the sale at retail in the Houston area of calculators manufactured by respondent.[] There is no dispute that an agreement 750 to fix prices in that market, either horizontally between petitioner and Hartwell or vertically between respondent and either or both of the two dealers, would violate the Sherman Act. The "quite plausible" assumption, see ante, at 729, that such an agreement might enable the retailers to provide better services to their customers would not have avoided the strict rule against price fixing that this Court has consistently enforced in the past. 751 Under petitioner's theory of the case, an agreement between respondent and Hartwell to terminate petitioner because of its price cutting was just as indefensible as any of those price-fixing agreements. At trial the jury found the existence of such an agreement to eliminate petitioner's price competition. Respondent had denied that any agreement had been made and asked the jury to find that it had independently decided to terminate petitioner because of its poor sales performance,[15] but after hearing several days of testimony, the jury concluded that this defense was pretextual. Neither the Court of Appeals nor the majority questions the accuracy of the jury's resolution of the factual issues in this case. Nevertheless, the rule the majority fashions today is based largely on its concern that in other cases juries will be unable to tell the difference between truthful and pretextual defenses. Thus, it opines that "even a manufacturer that agrees with one dealer to terminate another for failure to provide contractually obligated services, exposes itself to the highly plausible claim that its real motivation was to terminate a price cutter." Ante, at 728. But such a "plausible" concern in a hypothetical case that is so different from this one should not be given greater weight than facts that can be established by hard evidence. If a dealer has, in fact, failed to provide contractually obligated services, and if the manufacturer has, in fact, terminated the dealer for that reason, both of those objective facts should be provable by admissible 752 evidence.[16] Both in its disposition of this case and in its attempt to justify a new approach to agreements to eliminate price competition, the majority exhibits little confidence in the judicial process as a means of ascertaining the truth.[17] 753 The majority fails to consider that manufacturers such as respondent will only be held liable in the rare case in which the following can be proved: First, the terminated dealer must overcome the high hurdle of Monsanto A terminated dealer must introduce "evidence that tends to exclude the possibility that the manufacturer and nonterminated distributors were acting independently." Requiring judges to adhere to the strict test for agreement laid down in Monsanto, in their jury instructions or own findings of fact, goes a long way toward ensuring that many legitimate dealer termination decisions do not succumb improperly to antitrust liability.[18] Second, the terminated dealer must prove that the agreement was based on a purpose to terminate it because of its price cutting. Proof of motivation is another commonplace in antitrust litigation of which the majority appears apprehensive, but as we have explained or demonstrated many times, see, e. g., Aspen Skiing ; ; United ; Chicago Board of ; see also Piraino, The Case for Presuming the Legality of Quality Motivated Restrictions on Distribution, in antitrust, as in many other areas of the law, motivation matters and factfinders are able to distinguish bad from good intent. Third, the manufacturer may rebut the evidence tending to prove that the sole purpose of the agreement was to eliminate a price cutter by offering evidence that it entered the agreement for legitimate, nonprice-related reasons. Although in this case the jury found a naked agreement to terminate a dealer because of its price cutting, ante, at 721-722, the majority boldly characterizes the same agreement as "this nonprice vertical restriction." Ante, at 729. That characterization is surely an oxymoron when applied to the agreement the jury actually found. Nevertheless, the majority proceeds to justify it as "ancillary" to a "quite plausible purpose to enable Hartwell to provide better services under the sales franchise agreement." There are two significant reasons why that justification is unacceptable. First, it is not supported by the jury's verdict. Although it did not do so with precision, the District Court did instruct the jury that in order to hold respondent liable it had to find that the agreement's purpose was to eliminate petitioner because of its price cutting and that no valid vertical nonprice restriction existed to which the motivation to eliminate price competition at the dealership level was merely ancillary.[19] 755 Second, the "quite plausible purpose" the majority hypothesizes as salvation for the otherwise anticompetitive elimination of price competition "to enable Hartwell to provide better services under the sales franchise agreement," ib is simply not the type of concern we sought to protect in Continental T. V., I have emphasized in this dissent the difference between restrictions imposed in pursuit of a manufacturer's structuring of its product distribution, and those imposed at the behest of retailers who care less about the general efficiency of a product's promotion than their own profit margins. Sylvania stressed the importance of the former, not the latter; we referred to the use that manufacturers can 756 make of vertical nonprice restraints, see and nowhere did we discuss the benefits of permitting dealers to structure intrabrand competition at the retail level by coercing manufacturers into essentially anticompetitive agreements. Thus, while Hartwell may indeed be able to provide better services under the sales franchise agreement with petitioner out of the way, one would not have thought, until today, that the mere possibility of such a result at the expense of the elimination of price competition and absent the salutary overlay of a manufacturer's distribution decision with the entire product line in mind would be sufficient to legitimate an otherwise purely anticompetitive restraint. See n. In fact, given the majority's total reliance on "economic analysis," see ante, at 735, it is hard to understand why, if such a purpose were sufficient to avoid the application of a per se rule in this context, the same purpose should not also be sufficient to trump the per se rule in all other price-fixing cases that arguably permit cartel members to "provide better services." If, however, we continue to accept the premise that competition in the relevant market is worthy of legal protection that we should not rely on competitive pressures exerted by sellers in other areas and purveyors of similar but not identical products and if we are faithful to the competitive philosophy that has animated our antitrust jurisprudence since Judge Taft's opinion in Addyston Pipe, we can agree that the elimination of price competition will produce wider gross profit margins for retailers, but we may not assume that the retailer's self-interest will result in a better marketplace for consumers. "The Sherman Act reflects a legislative judgment that ultimately competition will produce not only lower prices, but also better goods and services. `The heart of our national economic policy long has been faith in the value of competition.' Standard Oil The assumption that competition is the best 757 method of allocating resources in a free market recognizes that all elements of a bargain quality, service, safety, and durability and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers. Even assuming occasional exceptions to the presumed consequences of competition, the statutory policy precludes inquiry into the question whether competition is good or bad." National Society of Professional The "plausible purpose" posited by the majority as its sole justification for this mischaracterized "nonprice vertical restriction" is inconsistent with the legislative judgment that underlies the Sherman Act itself. Under the facts as found by the jury in this case, the agreement before us is one whose "sole object is to restrain trade in order to avoid the competition which it has always been the policy of the common law to foster." United V In sum, this simply is not a case in which procompetitive vertical nonprice restraints have been imposed; in fact, it is not a case in which any procompetitive agreement is at issue.[20] The sole purpose of the agreement between respondent *758 and Hartwell was to eliminate price competition at Hartwell's level. As Judge Bork has aptly explained: "Since the naked boycott is a form of predatory behavior, there is little doubt that it should be a per se violation of the Sherman Act." Bork, The Antitrust Paradox, at 334. I respectfully dissent.
Justice Stewart	majority	false	New York v. Belton	1981-09-23T00:00:00	null	https://www.courtlistener.com/opinion/110559/new-york-v-belton/	https://www.courtlistener.com/api/rest/v3/clusters/110559/	1,981	1980-147	1	6	3	When the occupant of an automobile is subjected to a lawful custodial arrest, does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding? That is the question at issue in the present case. I On April 9, 1978, Trooper Douglas Nicot, a New York State policeman driving an unmarked car on the New York Thruway, was passed by another automobile traveling at an excessive rate of speed. Nicot gave chase, overtook the speeding vehicle, and ordered its driver to pull it over to the side of the road and stop. There were four men in the car, one of whom was Roger Belton, the respondent in this case. The policeman asked to see the driver's license and automobile registration, and discovered that none of the men owned the vehicle or was related to its owner. Meanwhile, the policeman had smelled burnt marihuana and had seen on 456 the floor of the car an envelope marked "Supergold" that he associated with marihuana. He therefore directed the men to get out of the car, and placed them under arrest for the unlawful possession of marihuana. He patted down each of the men and "split them up into four separate areas of the Thruway at this time so they would not be in physical touching area of each other." He then picked up the envelope marked "Supergold" and found that it contained marihuana. After giving the arrestees the warnings required by Miranda v. Arizona, 384 U.S. 436, the state policeman searched each one of them. He then searched the passenger compartment of the car. On the back seat he found a black leather jacket belonging to Belton. He unzipped one of the pockets of the jacket and discovered cocaine. Placing the jacket in his automobile, he drove the four arrestees to a nearby police station. Belton was subsequently indicted for criminal possession of a controlled substance. In the trial court he moved that the cocaine the trooper had seized from the jacket pocket be suppressed. The court denied the motion. Belton then pleaded guilty to a lesser included offense, but preserved his claim that the cocaine had been seized in violation of the Fourth and Fourteenth Amendments. See Lefkowitz v. Newsome, 420 U.S. 283. The Appellate Division of the New York Supreme Court upheld the constitutionality of the search and seizure, reasoning that "[o]nce defendant was validly arrested for possession of marihuana, the officer was justified in searching the immediate area for other contraband." 68 A.D. 2d 198, 201, 416 N. Y. S. 2d 922, 925. The New York Court of Appeals reversed, holding that "[a] warrantless search of the zippered pockets of an unaccessible jacket may not be upheld as a search incident to a lawful arrest where there is no longer any danger that the arrestee or a confederate might gain access to the article." 50 N.Y. 2d 447, 449, 407 N.E.2d 420, 421. Two judges dissented. 457 They pointed out that the "search was conducted by a lone peace officer who was in the process of arresting four unknown individuals whom he had stopped in a speeding car owned by none of them and apparently containing an uncertain quantity of a controlled substance. The suspects were standing by the side of the car as the officer gave it a quick check to confirm his suspicions before attempting to transport them to police headquarters . . . ." Id., at 454, 407 N.E.2d, at 424. We granted certiorari to consider the constitutionally permissible scope of a search in circumstances such as these. 449 U.S. 1109. II It is a first principle of Fourth Amendment jurisprudence that the police may not conduct a search unless they first convince a neutral magistrate that there is probable cause to do so. This Court has recognized, however, that "the exigencies of the situation" may sometimes make exemption from the warrant requirement "imperative." McDonald v. United States, 335 U.S. 451, 456. Specifically, the Court held in Chimel v. California, 395 U.S. 752, that a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area. Such searches have long been considered valid because of the need "to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape" and the need to prevent the concealment or destruction of evidence. Id., at 763. The Court's opinion in Chimel emphasized the principle that, as the Court had said in Terry v. Ohio, 392 U.S. 1, 19, "[t]he scope of [a] search must be `strictly tied to and justified by' the circumstances which rendered its initiation permissible." Quoted in Chimel v. California, supra, at 762. Thus while the Court in Chimel found "ample justification" for a search of "the area from within which [an arrestee] 458 might gain possession of a weapon or destructible evidence," the Court found "no comparable justification . . . for routinely searching any room other than that in which an arrest occursor, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself." 395 U.S., at 763. Although the principle that limits a search incident to a lawful custodial arrest may be stated clearly enough, courts have discovered the principle difficult to apply in specific cases. Yet, as one commentator has pointed out, the protection of the Fourth and Fourteenth Amendments "can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement." LaFave, "Case-By-Case Adjudication" versus "Standardized Procedures": The Robinson Dilemma, 1974 S. Ct. Rev. 127, 142. This is because "Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be `literally impossible of application by the officer in the field.'" Id., at 141. In short, "[a] single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront." Dunaway v. New York, 442 U.S. 200, 213-214. 459 So it was that, in United States v. Robinson, 414 U.S. 218, the Court hewed to a straightforward rule, easily applied, and predictably enforced: "[I]n the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that Amendment." Id., at 235. In so holding, the Court rejected the suggestion that "there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest." Ibid. But no straightforward rule has emerged from the litigated cases respecting the question involved herethe question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants. The difficulty courts have had is reflected in the conflicting views of the New York judges who dealt with the problem in the present case, and is confirmed by a look at even a small sample drawn from the narrow class of cases in which courts have decided whether, in the course of a search incident to the lawful custodial arrest of the occupants of an automobile, police may search inside the automobile after the arrestees are no longer in it. On the one hand, decisions in cases such as United States v. Sanders, 631 F.2d 1309 (CA8 1980); United States v. Dixon, 558 F.2d 919 (CA9 1977); and United States v. Frick, 490 F.2d 666 (CA5 1973), have upheld such warrantless searches as incident to lawful arrests. On the other hand, in cases such as United States v. Benson, 631 F.2d 1336 (CA8 1980), and United States v. Rigales, 630 F.2d 364 (CA5 1980), such searches, in comparable factual circumstances, have been held constitutionally invalid.[1] When a person cannot know how a court will apply a 460 settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority. While the Chimel case established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, courts have found no workable definition of "the area within the immediate control of the arrestee" when that area arguably includes the interior of an automobile and the arrestee is its recent occupant. Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within "the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m]." Chimel, 395 U. S., at 763. In order to establish the workable rule this category of cases requires, we read Chimel's definition of the limits of the area that may be searched in light of that generalization. Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile,[2] he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.[3] It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.[4]United States v. Robinson, supra; Draper 461 v. United States, 358 U.S. 307. Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. Thus, while the Court in Chimel held that the police could not search all the drawers in an arrestee's house simply because the police had arrested him at home, the Court noted that drawers within an arrestee's reach could be searched because of the danger their contents might pose to the police. 395 U.S., at 763. It is true, of course, that these containers will sometimes be such that they could hold neither a weapon nor evidence of the criminal conduct for which the suspect was arrested. However, in United States v. Robinson, the Court rejected the argument that such a containerthere a "crumpled up cigarette package"located during a search of Robinson incident to his arrest could not be searched: "The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification." 414 U.S., at 235. The New York Court of Appeals relied upon United States v. Chadwick, 433 U.S. 1, and Arkansas v. Sanders, 442 U.S. 753, in concluding that the search and seizure in the present case were constitutionally invalid.[5] But neither of those 462 cases involved an arguably valid search incident to a lawful custodial arrest. As the Court pointed out in the Chadwick case: "Here the search was conducted more than an hour after federal agents had gained exclusive control of the foot-locker and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency." 433 U.S., at 15. And in the Sanders case, the Court explicitly stated that it did not "consider the constitutionality of searches of luggage incident to the arrest of its possessor. See, e. g., United States v. Robinson, 414 U.S. 218 (1973). The State has not argued that respondent's suitcase was searched incident to his arrest, and it appears that the bag was not within his `immediate control' at the time of the search." 442 U.S., at 764, n. 11. (The suitcase in question was in the trunk of the taxicab. See n. 4, supra.) III It is not questioned that the respondent was the subject of a lawful custodial arrest on a charge of possessing marihuana. The search of the respondent's jacket followed immediately upon that arrest. The jacket was located inside the passenger compartment of the car in which the respondent had been a passenger just before he was arrested. The jacket was thus within the area which we have concluded was "within the arrestee's immediate control" within the meaning of the Chimel case.[6] The search of the jacket, therefore, was a 463 search incident to a lawful custodial arrest, and it did not violate the Fourth and Fourteenth Amendments. Accordingly, the judgment is reversed. It is so ordered.	When the occupant of an automobile is subjected to a lawful custodial arrest, does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding? That is the question at issue in the present case. I On April 9, 78, Trooper Douglas Nicot, a New York State policeman driving an unmarked car on the New York Thruway, was passed by another automobile traveling at an excessive rate of speed. Nicot gave chase, overtook the speeding vehicle, and ordered its driver to pull it over to the side of the road and stop. There were four men in the car, one of whom was Roger Belton, the respondent in this case. The policeman asked to see the driver's license and automobile registration, and discovered that none of the men owned the vehicle or was related to its owner. Meanwhile, the policeman had smelled burnt marihuana and had seen on * the floor of the car an envelope marked "Supergold" that he associated with marihuana. He therefore directed the men to get out of the car, and placed them under arrest for the unlawful possession of marihuana. He patted down each of the men and "split them up into four separate areas of the Thruway at this time so they would not be in physical touching area of each other." He then picked up the envelope marked "Supergold" and found that it contained marihuana. After giving the arrestees the warnings required by the state policeman searched each one of them. He then searched the passenger compartment of the car. On the back seat he found a black leather jacket belonging to Belton. He unzipped one of the pockets of the jacket and discovered cocaine. Placing the jacket in his automobile, he drove the four arrestees to a nearby police station. Belton was subsequently indicted for criminal possession of a controlled substance. In the trial court he moved that the cocaine the trooper had seized from the jacket pocket be suppressed. The court denied the motion. Belton then pleaded guilty to a lesser included offense, but preserved his claim that the cocaine had been seized in violation of the Fourth and Fourteenth Amendments. See The Appellate Division of the New York Supreme Court upheld the constitutionality of the search and seizure, reasoning that "[o]nce defendant was validly arrested for possession of marihuana, the officer was justified in searching the immediate area for other contraband." 16 N. Y. S. 2d 922, 925. The New York Court of Appeals reversed, holding that "[a] warrantless search of the zippered pockets of an unaccessible jacket may not be upheld as a search incident to a lawful arrest where there is no longer any danger that the arrestee or a confederate might gain access to the article." Two judges dissented. 57 They pointed out that the "search was conducted by a lone peace officer who was in the process of arresting four unknown individuals whom he had stopped in a speeding car owned by none of them and apparently containing an uncertain quantity of a controlled substance. The suspects were standing by the side of the car as the officer gave it a quick check to confirm his suspicions before attempting to transport them to police headquarters" We granted certiorari to consider the constitutionally permissible scope of a search in circumstances such as these. U.S. 1109. II It is a first principle of Fourth Amendment jurisprudence that the police may not conduct a search unless they first convince a neutral magistrate that there is probable cause to do so. This Court has recognized, however, that "the exigencies of the situation" may sometimes make exemption from the warrant requirement "imperative." Specifically, the Court held in that a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area. Such searches have long been considered valid because of the need "to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape" and the need to prevent the concealment or destruction of evidence. The Court's opinion in Chimel emphasized the principle that, as the Court had said in "[t]he scope of [a] search must be `strictly tied to and justified by' the circumstances which rendered its initiation permissible." Quoted in Thus while the Court in Chimel found "ample justification" for a search of "the area from within which [an arrestee] 58 might gain possession of a weapon or destructible evidence," the Court found "no comparable justification for routinely searching any room other than that in which an arrest occursor, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself." 395 U.S., Although the principle that limits a search incident to a lawful custodial arrest may be stated clearly enough, courts have discovered the principle difficult to apply in specific cases. Yet, as one commentator has pointed out, the protection of the Fourth and Fourteenth Amendments "can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement." LaFave, "Case-By-Case Adjudication" versus "Standardized Procedures": The Dilemma, 7 S. Ct. Rev. 127, 12. This is because "Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be `literally impossible of application by the officer in the field.'" In short, "[a] single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront." 59 So it was that, in United the Court hewed to a straightforward rule, easily applied, and predictably enforced: "[I]n the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that Amendment." In so holding, the Court rejected the suggestion that "there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest." But no straightforward rule has emerged from the litigated cases respecting the question involved herethe question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants. The difficulty courts have had is reflected in the conflicting views of the New York judges who dealt with the problem in the present case, and is confirmed by a look at even a small sample drawn from the narrow class of cases in which courts have decided whether, in the course of a search incident to the lawful custodial arrest of the occupants of an automobile, police may search inside the automobile after the arrestees are no longer in it. On the one hand, decisions in cases such as United (CA8 80); United 558 F.2d 9 (CA9 77); and United (CA5 73), have upheld such warrantless searches as incident to lawful arrests. On the other hand, in cases such as United (CA8 80), and United (CA5 80), such searches, in comparable factual circumstances, have been held constitutionally invalid.[1] When a person cannot know how a court will apply a 60 settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority. While the Chimel case established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, courts have found no workable definition of "the area within the immediate control of the arrestee" when that area arguably includes the interior of an automobile and the arrestee is its recent occupant. Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within "the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m]." Chimel, 395 U. S., In order to establish the workable rule this category of cases requires, we read Chimel's definition of the limits of the area that may be searched in light of that generalization. Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile,[2] he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.[3] It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.[]United Draper Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. Thus, while the Court in Chimel held that the police could not search all the drawers in an arrestee's house simply because the police had arrested him at home, the Court noted that drawers within an arrestee's reach could be searched because of the danger their contents might pose to the police. 395 U.S., It is true, of course, that these containers will sometimes be such that they could hold neither a weapon nor evidence of the criminal conduct for which the suspect was arrested. However, in United the Court rejected the argument that such a containerthere a "crumpled up cigarette package"located during a search of incident to his arrest could not be searched: "The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification." 1 U.S., The New York Court of Appeals relied upon United and in concluding that the search and seizure in the present case were constitutionally invalid.[5] But neither of those 62 cases involved an arguably valid search incident to a lawful custodial arrest. As the Court pointed out in the Chadwick case: "Here the search was conducted more than an hour after federal agents had gained exclusive control of the foot-locker and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency." And in the Sanders case, the Court explicitly stated that it did not "consider the constitutionality of searches of luggage incident to the arrest of its possessor. See, e. g., United (73). The State has not argued that respondent's suitcase was searched incident to his arrest, and it appears that the bag was not within his `immediate control' at the time of the search." n. 11. (The suitcase in question was in the trunk of the taxicab. See n. III It is not questioned that the respondent was the subject of a lawful custodial arrest on a charge of possessing marihuana. The search of the respondent's jacket followed immediately upon that arrest. The jacket was located inside the passenger compartment of the car in which the respondent had been a passenger just before he was arrested. The jacket was thus within the area which we have concluded was "within the arrestee's immediate control" within the meaning of the Chimel case.[6] The search of the jacket, therefore, was a 63 search incident to a lawful custodial arrest, and it did not violate the Fourth and Fourteenth Amendments. Accordingly, the judgment is reversed. It is so ordered.
Justice White	dissenting	false	First Nat. Bank of Boston v. Bellotti	1978-06-26T00:00:00	null	https://www.courtlistener.com/opinion/109836/first-nat-bank-of-boston-v-bellotti/	https://www.courtlistener.com/api/rest/v3/clusters/109836/	1,978	1977-073	1	5	4	The Massachusetts statute challenged here forbids the use of corporate funds to publish views about referenda issues having no material effect on the business, property, or assets of 803 the corporation. The legislative judgment that the personal income tax issue, which is the subject of the referendum out of which this case arose, has no such effect was sustained by the Supreme Judicial Court of Massachusetts and is not disapproved by this Court today. Hence, as this case comes to us, the issue is whether a State may prevent corporate management from using the corporate treasury to propagate views having no connection with the corporate business. The Court commendably enough squarely faces the issue but unfortunately errs in deciding it. The Court invalidates the Massachusetts statute and holds that the First Amendment guarantees corporate managers the right to use not only their personal funds, but also those of the corporation, to circulate fact and opinion irrelevant to the business placed in their charge and necessarily representing their own personal or collective views about political and social questions. I do not suggest for a moment that the First Amendment requires a State to forbid such use of corporate funds, but I do strongly disagree that the First Amendment forbids state interference with managerial decisions of this kind. By holding that Massachusetts may not prohibit corporate expenditures or contributions made in connection with referenda involving issues having no material connection with the corporate business, the Court not only invalidates a statute which has been on the books in one form or another for many years, but also casts considerable doubt upon the constitutionality of legislation passed by some 31 States restricting corporate political activity,[1] as well as upon the Federal Corrupt Practices Act, 2 U.S. C. § 441b (1976 ed.). The Court's fundamental error is its failure to realize that the state regulatory interests in terms of which the alleged curtailment 804 of First Amendment rights accomplished by the statute must be evaluated are themselves derived from the First Amendment. The question posed by this case, as approached by the Court, is whether the State has struck the best possible balance, i. e., the one which it would have chosen, between competing First Amendment interests. Although in my view the choice made by the State would survive even the most exacting scrutiny, perhaps a rational argument might be made to the contrary. What is inexplicable, is for the Court to substitute its judgment as to the proper balance for that of Massachusetts where the State has passed legislation reasonably designed to further First Amendment interests in the context of the political arena where the expertise of legislators is at its peak and that of judges is at its very lowest.[2] Moreover, the result reached today in critical respects marks a drastic departure from the Court's prior decisions which have protected against governmental infringement the very First Amendment interests which the Court now deems inadequate to justify the Massachusetts statute. I There is now little doubt that corporate communications come within the scope of the First Amendment. This, however, is merely the starting point of analysis, because an examination of the First Amendment values that corporate expression furthers and the threat to the functioning of a free society it is capable of posing reveals that it is not fungible with communications emanating from individuals and is subject to restrictions which individual expression is not. Indeed, what some have considered to be the principal function of the First Amendment, the use of communication as a means of self-expression, self-realization, and self-fulfillment, is not at all 805 furthered by corporate speech.[3] It is clear that the communications of profitmaking corporations are not "an integral part of the development of ideas, of mental exploration and of the affirmation of self."[4] They do not represent a manifestation of individual freedom or choice. Undoubtedly, as this Court has recognized, see NAACP v. Button, 371 U.S. 415 (1963), there are some corporations formed for the express purpose of advancing certain ideological causes shared by all their members, or, as in the case of the press, of disseminating information and ideas. Under such circumstances, association in a corporate form may be viewed as merely a means of achieving effective self-expression. But this is hardly the case generally with corporations operated for the purpose of making profits. Shareholders in such entities do not share a common set of political or social views, and they certainly have not invested their money for the purpose of advancing political or social causes or in an enterprise engaged in the business of disseminating news and opinion. In fact, as discussed infra, the government has a strong interest in assuring that investment decisions are not predicated upon agreement or disagreement with the activities of corporations in the political arena. Of course, it may be assumed that corporate investors are united by a desire to make money, for the value of their investment to increase. Since even communications which have no purpose other than that of enriching the communicator have some First Amendment protection, activities such as advertising and other communications integrally related to the operation of the corporation's business may be viewed as a means of furthering the desires of individual shareholders.[5] This unanimity of purpose breaks down, however, when corporations make expenditures or undertake activities designed 806 to influence the opinion or votes of the general public on political and social issues that have no material connection with or effect upon their business, property, or assets. Although it is arguable that corporations make such expenditures because their managers believe that it is in the corporations' economic interest to do so, there is no basis whatsoever for concluding that these views are expressive of the heterogeneous beliefs of their shareholders whose convictions on many political issues are undoubtedly shaped by considerations other than a desire to endorse any electoral or ideological cause which would tend to increase the value of a particular corporate investment. This is particularly true where, as in this case, whatever the belief of the corporate managers may be, they have not been able to demonstrate that the issue involved has any material connection with the corporate business. Thus when a profitmaking corporation contributes to a political candidate this does not further the self-expression or self-fulfillment of its shareholders in the way that expenditures from them as individuals would.[6] The self-expression of the communicator is not the only value encompassed by the First Amendment. One of its functions, often referred to as the right to hear or receive information, is to protect the interchange of ideas. Any communication of ideas, and consequently any expenditure of funds which makes the communication of ideas possible, it 807 can be argued, furthers the purposes of the First Amendment. This proposition does not establish, however, that the right of the general public to receive communications financed by means of corporate expenditures is of the same dimension as that to hear other forms of expression. In the first place, as discussed supra, corporate expenditures designed to further political causes lack the connection with individual self-expression which is one of the principal justifications for the constitutional protection of speech provided by the First Amendment. Ideas which are not a product of individual choice are entitled to less First Amendment protection. Secondly, the restriction of corporate speech concerned with political matters impinges much less severely upon the availability of ideas to the general public than do restrictions upon individual speech. Even the complete curtailment of corporate communications concerning political or ideological questions not integral to day-to-day business functions would leave individuals, including corporate shareholders, employees, and customers, free to communicate their thoughts. Moreover, it is unlikely that any significant communication would be lost by such a prohibition. These individuals would remain perfectly free to communicate any ideas which could be conveyed by means of the corporate form. Indeed, such individuals could even form associations for the very purpose of promoting political or ideological causes.[7] I recognize that there may be certain communications undertaken by corporations which could not be restricted without impinging seriously upon the right to receive information. In the absence of advertising and similar promotional activities, for example, the ability of consumers to obtain information relating to products manufactured by corporations 808 would be significantly impeded. There is also a need for employees, customers, and shareholders of corporations to be able to receive communications about matters relating to the functioning of corporations. Such communications are clearly desired by all investors and may well be viewed as an associational form of self-expression. See United States v. CIO, 335 U.S. 106, 121-123 (1948). Moreover, it is unlikely that such information would be disseminated by sources other than corporations. It is for such reasons that the Court has extended a certain degree of First Amendment protection to activities of this kind.[8] None of these considerations, however, are implicated by a prohibition upon corporate expenditures relating to referenda concerning questions of general public concern having no connection with corporate business affairs. It bears emphasis here that the Massachusetts statute forbids the expenditure of corporate funds in connection with referenda but in no way forbids the board of directors of a corporation from formulating and making public what it represents as the views of the corporation even though the subject addressed has no material effect whatsoever on the business of the corporation. These views could be publicized at the individual 809 expense of the officers, directors, stockholders, or anyone else interested in circulating the corporate view on matters irrelevant to its business. The governmental interest in regulating corporate political communications, especially those relating to electoral matters, also raises considerations which differ significantly from those governing the regulation of individual speech. Corporations are artificial entities created by law for the purpose of furthering certain economic goals. In order to facilitate the achievement of such ends, special rules relating to such matters as limited liability, perpetual life, and the accumulation, distribution, and taxation of assets are normally applied to them. States have provided corporations with such attributes in order to increase their economic viability and thus strengthen the economy generally. It has long been recognized, however, that the special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process. Although Buckley v. Valeo, 424 U.S. 1 (1976), provides support for the position that the desire to equalize the financial resources available to candidates does not justify the limitation upon the expression of support which a restriction upon individual contributions entails,[9] the interest of Massachusetts and the many other States which have restricted corporate political activity is quite different. It is not one of equalizing the resources of opposing candidates or opposing positions, but rather of preventing institutions which have been permitted to amass wealth as a result of special advantages extended by the State for certain economic purposes from using that wealth to acquire an unfair advantage in the political process, especially where, as here, the issue involved has no material connection with the business of the corporation. The State need not permit its own creation to consume it. Massachusetts could 810 permissibly conclude that not to impose limits upon the political activities of corporations would have placed it in a position of departing from neutrality and indirectly assisting the propagation of corporate views because of the advantages its laws give to the corporate acquisition of funds to finance such activities. Such expenditures may be viewed as seriously threatening the role of the First Amendment as a guarantor of a free marketplace of ideas. Ordinarily, the expenditure of funds to promote political causes may be assumed to bear some relation to the fervency with which they are held. Corporate political expression, however, is not only divorced from the convictions of individual corporate shareholders, but also, because of the ease with which corporations are permitted to accumulate capital, bears no relation to the conviction with which the ideas expressed are held by the communicator.[10] The Court's opinion appears to recognize at least the possibility that fear of corporate domination of the electoral process would justify restrictions upon corporate expenditures and contributions in connection with referenda but brushes this interest aside by asserting that "there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts," ante, at 789, and by suggesting that the statute in issue represents an attempt to give an unfair advantage to those who hold views in opposition to positions which would otherwise be financed by corporations. Ante, at 785-786. It fails even to allude to the fact, however, that Massachusetts' most recent experience with unrestrained corporate expenditures in connection 811 with ballot questions establishes precisely the contrary. In 1972, a proposed amendment to the Massachusetts Constitution which would have authorized the imposition of a graduated income tax on both individuals and corporations was put to the voters. The Committee for Jobs and Government Economy, an organized political committee, raised and expended approximately $120,000 to oppose the proposed amendment, the bulk of it raised through large corporate contributions. Three of the present appellant corporations each contributed $3,000 to this committee. In contrast, the Coalition for Tax Reform, Inc., the only political committee organized to support the 1972 amendment, was able to raise and expend only approximately $7,000. App. to Jurisdictional Statement 41; App. to Record 48-84. Perhaps these figures reflect the Court's view of the appropriate role which corporations should play in the Massachusetts electoral process, but it nowhere explains why it is entitled to substitute its judgment for that of Massachusetts and other States,[11] as well as the United States, which have acted to correct or prevent similar domination of the electoral process by corporate wealth. This Nation has for many years recognized the need for measures designed to prevent corporate domination of the political process. The Corrupt Practices Act, first enacted in 1907, has consistently barred corporate contributions in connection 812 with federal elections. This Court has repeatedly recognized that one of the principal purposes of this prohibition is "to avoid the deleterious influences on federal elections resulting from the use of money by those who exercise control over large aggregations of capital." United States v. Automobile Workers, 352 U.S. 567, 585 (1957). See Pipefitters v. United States, 407 U.S. 385, 415-416 (1972); United States v. CIO, 335 U. S., at 113. Although this Court has never adjudicated the constitutionality of the Act, there is no suggestion in its cases construing it, cited supra, that this purpose is in any sense illegitimate or deserving of other than the utmost respect; indeed, the thrust of its opinions, until today, has been to the contrary. See Automobile Workers, supra, at 585; Pipefitters, supra, at 415-416. II There is an additional overriding interest related to the prevention of corporate domination which is substantially advanced by Massachusetts' restrictions upon corporate contributions: assuring that shareholders are not compelled to support and financially further beliefs with which they disagree where, as is the case here, the issue involved does not materially affect the business, property, or other affairs of the corporation.[12] The State has not interfered with the prerogatives of corporate management to communicate about matters that have material impact on the business affairs entrusted to them, however much individual stockholders may disagree on economic or ideological grounds. Nor has the State forbidden management from formulating and circulating its views at its own expense or at the expense of others, even where the subject at issue is irrelevant to corporate business affairs. But Massachusetts 813 has chosen to forbid corporate management from spending corporate funds in referenda elections absent some demonstrable effect of the issue on the economic life of the company. In short, corporate management may not use corporate monies to promote what does not further corporate affairs but what in the last analysis are the purely personal views of the management, individually or as a group. This is not only a policy which a State may adopt consistent with the First Amendment but one which protects the very freedoms that this Court has held to be guaranteed by the First Amendment. In Board of Education v. Barnette, 319 U.S. 624 (1943), the Court struck down a West Virginia statute which compelled children enrolled in public school to salute the flag and pledge allegiance to it on the ground that the First Amendment prohibits public authorities from requiring an individual to express support for or agreement with a cause with which he disagrees or concerning which he prefers to remain silent. Subsequent cases have applied this principle to prohibit organizations to which individuals are compelled to belong as a condition of employment from using compulsory dues to support candidates, political parties, or other forms of political expression which which members disagree or do not wish to support. In Machinists v. Street, 367 U.S. 740 (1961), the Court was presented with allegations that a union shop authorized by the Railway Labor Act, 45 U.S. C. § 152 Eleventh, had used the union treasury to which all employees were compelled to contribute "to finance the campaigns of candidates for federal and state offices whom [the petitioners] opposed, and to promote the propagation of political and economic doctrines, concepts and ideologies with which [they] disagreed." 367 U.S., at 744. The Court recognized that compelling contributions for such purposes presented constitutional "questions of the utmost gravity" and consequently construed the Act to prohibit the use of compulsory union dues for political purposes. Id., at 749-750. Last Term, 814 in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), we confronted these constitutional questions and held that a State may not, even indirectly, require an individual to contribute to the support of an ideological cause he may oppose as a condition of employment. At issue were political expenditures made by a public employees' union. Michigan law provided that unions and local government employers might agree to an agency-shop arrangement pursuant to which every employeeeven those not union membersmust pay to the union, as a condition of employment, union dues or a service fee equivalent in amount to union dues. The legislation itself was not coercive; it did not command that local governments employ only those workers who were willing to pay union dues, but left it to a bargaining representative democratically elected by a majority of the employees to enter or not enter into such a contractual arrangement through collective bargaining. In addition, of course, no one was compelled to work at a job covered by an agency-shop arrangement. Nevertheless, the Court ruled that under such circumstances the use of funds contributed by dissenting employees for political purposes impermissibly infringed their First Amendment right to adhere to their own beliefs and to refuse to defer to or support the beliefs of others. Presumably, unlike the situations presented by Street and Abood, the use of funds invested by shareholders with opposing views by Massachusetts corporations in connection with referenda or elections would not constitute state action and, consequently, would not violate the First Amendment. Until now, however, the States have always been free to adopt measures designed to further rights protected by the Constitution even when not compelled to do so. It could hardly be plausibly contended that just because Massachusetts' regulation of corporations is less extensive than Michigan's regulation of labor-management relations, Massachusetts may not constitutionally prohibit the very evil which Michigan may not constitutionally 815 permit. Yet this is precisely what the Court today holds. Although the Court places great stress upon the alleged infringement of the right to receive information produced by Massachusetts' ban on corporate expenditures which, for the reasons stated supra, I believe to be misconceived, it fails to explain why such an interest was not sufficient to compel a different weighing of First Amendment interests and, consequently, a different result in Abood. After all, even contributions for political causes coerced by labor unions would, under the Court's analysis, increase unions' ability to disseminate their views and, consequently, increase the amount of information available to the general public. The Court assumes that the interest in preventing the use of corporate resources in furtherance of views which are irrelevant to the corporate business and with which some shareholders may disagree is a compelling one, but concludes that the Massachusetts statute is nevertheless invalid because the State has failed to adopt the means best suited, in its opinion, for achieving this end. Ante, at 792-795. It proposes that the aggrieved shareholder assert his interest in preventing the expenditure of funds for nonbusiness causes he finds unconscionable through the channels provided by "corporate democracy" and purports to be mystified as to "why the dissenting shareholder's wishes are entitled to such greater solicitude in this context than in many others where equally important and controversial corporate decisions are made by management or by a predetermined percentage of the shareholders." Ante, at 794, and n. 34. It should be obvious that the alternative means upon the adequacy of which the majority is willing to predicate a constitutional adjudication is no more able to satisfy the State's interest than a ruling in Street and Abood leaving aggrieved employees to the remedies provided by union democracy would have satisfied the demands of the First Amendment. The interest which the State wishes to protect here is identical to that which the Court has previously held to be protected by 816 the First Amendment: the right to adhere to one's own beliefs and to refuse to support the dissemination of the personal and political views of others, regardless of how large a majority they may compose. In most contexts, of course, the views of the dissenting shareholder have little, if any, First Amendment significance. By purchasing interests in corporations shareholders accept the fact that corporations are going to make decisions concerning matters such as advertising integrally related to their business operations according to the procedures set forth in their charters and bylaws. Otherwise, corporations could not function. First Amendment concerns of stockholders are directly implicated, however, when a corporation chooses to use its privileged status to finance ideological crusades which are unconnected with the corporate business or property and which some shareholders might not wish to support. Once again, we are provided no explanation whatsoever by the Court as to why the State's interest is of less constitutional weight than that of corporations to participate financially in the electoral process and as to why the balance between two First Amendment interests should be struck by this Court. Moreover, the Court offers no reason whatsoever for constitutionally imposing its choice of means to achieve a legitimate goal and invalidating those chosen by the State.[13] 817 Abood cannot be distinguished, as the present Court attempts to do, ante, at 794-795, n. 34, on the ground that the Court there did not constitutionally prohibit expenditures by unions for the election of political candidates or for ideological causes so long as they are financed from assessments paid by employees who are not coerced into doing so against their will. In the first place, the Court did not purport to hold that all political or ideological expenditures not constitutionally prohibited were constitutionally protected. A State might well conclude that the most and perhaps, in its view, the only effective way of preventing unions or corporations from using funds contributed by differing members or shareholders to support political causes having no connection with the business of the organization is to absolutely ban such expenditures. 818 Secondly, unlike the remedies available to the Court in Street and Abood which required unions to refund the exacted funds in the proportion that union political expenditures with which a member disagreed bore to total union expenditures, no such alternative is readily available which would enable a corporate shareholder to maintain his investment in a corporation without supporting its electoral or political ventures other than prohibiting corporations from participating in such activities. There is no apparent way of segregating one shareholder's ownership interest in a corporation from another's. It is no answer to respond, as the Court does, that the dissenting "shareholder is free to withdraw his investment at any time and for any reason." Ante, at 794 n. 34. The employees in Street and Abood were also free to seek other jobs where they would not be compelled to finance causes with which they disagreed, but we held in Abood that First Amendment rights could not be so burdened. Clearly the State has a strong interest in assuring that its citizens are not forced to choose between supporting the propagation of views with which they disagree and passing up investment opportunities. Finally, even if corporations developed an effective mechanism for rebating to shareholders that portion of their investment used to finance political activities with which they disagreed, a State may still choose to restrict corporate political activity irrelevant to business functions on the grounds that many investors would be deterred from investing in corporations because of a wish not to associate with corporations propagating certain views. The State has an interest not only in enabling individuals to exercise freedom of conscience without penalty but also in eliminating the danger that investment decisions will be significantly influenced by the ideological views of corporations. While the latter concern may not be of the same constitutional magnitude as the former, it is far from trivial. Corporations, as previously noted, are created by the State as a means of furthering the public welfare. One of 819 their functions is to determine, by their success in obtaining funds, the uses to which society's resources are to be put. A State may legitimately conclude that corporations would not serve as economically efficient vehicles for such decisions if the investment preferences of the public were significantly affected by their ideological or political activities. It has long been recognized that such pursuits are not the proper business of corporations. The common law was generally interpreted as prohibiting corporate political participation.[14] Indeed, the Securities and Exchange Commission's rules permit corporations to refuse to submit for shareholder vote any proposal which concerns a general economic, political, racial, religious, or social cause that is not significantly related to the business of the corporation or is not within its control.[15] The necessity of prohibiting corporate political expenditures in order to prevent the use of corporate funds for purposes with which shareholders may disagree is not a unique perception of Massachusetts. This Court has repeatedly recognized that one of the purposes of the Corrupt Practices Act was to prevent the use of corporate or union funds for political purposes without the consent of the shareholders or union members and to protect minority interests from domination by corporate or union leadership.[16] Although the Court has never, as noted supra, adjudicated the constitutionality of the Act, it has consistently treated this objective with deference. Indeed, in United States v. CIO, 335 U.S. 106 (1948), the Court construed a previous version of the Corrupt Practices Act so as to 820 conform its prohibitions to those activities to which the Court believed union members or shareholders might object. After noting that if the statute "were construed to prohibit the publication, by corporations and unions in the regular course of conducting their affairs, of periodicals advising their members, stockholders or customers of danger or advantage to their interests from the adoption of measures, or the election to office of men espousing such measures, the gravest doubt would arise in our minds as to its constitutionality," id., at 121, the Court held that the statute did not prohibit such in-house publications. It was persuaded that the purposes of the Act would not be impeded by such an interpretation, because it "is unduly stretching language to say that the members or stockholders are unwilling participants in such normal organizational activities, including the advocacy thereby of governmental policies affecting their interests, and the support thereby of candidates thought to be favorable to their interests." Id., at 123. The Court today purports not to foreclose the possibility that the Corrupt Practices Act and state statutes which prohibit corporate expenditures only in the context of elections to public office may survive constitutional scrutiny because of the interest in preventing the corruption of elected representatives through the creation of political debts. Ante, at 788 n. 26. It does not choose to explain or even suggest, however, why the state interests which it so cursorily dismisses are less worthy than the interest in preventing corruption or the appearance of it. More importantly, the analytical framework employed by the Court clearly raises great doubt about the Corrupt Practices Act. The question in the present case, as viewed by the Court, "is whether the corporate identity of the speaker deprives this proposed speech of what otherwise would be its clear entitlement to protection," ante, at 778, which it answers in the negative. But the Court has previously held in Buckley v. Valeo that the interest in preventing corruption is insufficient to justify restrictions upon individual expenditures 821 relative to candidates for political office. If the corporate identity of the speaker makes no difference, all the Court has done is to reserve the formal interment of the Corrupt Practices Act and similar state statutes for another day. As I understand the view that has now become part of First Amendment jurisprudence, the use of corporate funds, even for causes irrelevant to the corporation's business, may be no more limited than that of individual funds. Hence, corporate contributions to and expenditures on behalf of political candidates may be no more limited than those of individuals. Individual contributions under federal law are limited but not entirely forbidden, and under Buckley v. Valeo expenditures may not constitutionally be limited at all. Most state corrupt practices Acts, like the federal Act, forbid any contributions or expenditures by corporations to or for a political candidate. In my view, the interests in protecting a system of freedom of expression, set forth supra, are sufficient to justify any incremental curtailment in the volume of expression which the Massachusetts statute might produce. I would hold that apart from corporate activities, such as those discussed in Part I, supra, and exempted from regulation in CIO, which are integrally related to corporate business operations, a State may prohibit corporate expenditures for political or ideological purposes. There can be no doubt that corporate expenditures in connection with referenda immaterial to corporate business affairs fall clearly into the category of corporate activities which may be barred. The electoral process, of course, is the essence of our democracy. It is an arena in which the public interest in preventing corporate domination and the coerced support by shareholders of causes with which they disagree is at its strongest and any claim that corporate expenditures are integral to the economic functioning of the corporation is at its weakest.[17] 822 I would affirm the judgment of the Supreme Judicial Court for the Commonwealth of Massachusetts. MR.	The Massachusetts statute challenged here forbids the use of corporate funds to publish views about referenda issues having no material effect on the business, property, or assets of 803 the corporation. The legislative judgment that the personal income tax issue, which is the subject of the referendum out of which this case arose, has no such effect was sustained by the Supreme Judicial Court of Massachusetts and is not disapproved by this Court today. Hence, as this case comes to us, the issue is whether a State may prevent corporate management from using the corporate treasury to propagate views having no connection with the corporate business. The Court commendably enough squarely faces the issue but unfortunately errs in deciding it. The Court invalidates the Massachusetts statute and holds that the First Amendment guarantees corporate managers the right to use not only their personal funds, but also those of the corporation, to circulate fact and opinion irrelevant to the business placed in their charge and necessarily representing their own personal or collective views about political and social questions. do not suggest for a moment that the First Amendment requires a State to forbid such use of corporate funds, but do strongly disagree that the First Amendment forbids state interference with managerial decisions of this kind. By holding that Massachusetts may not prohibit corporate expenditures or contributions made in connection with referenda involving issues having no material connection with the corporate business, the Court not only invalidates a statute which has been on the books in one form or another for many years, but also casts considerable doubt upon the constitutionality of legislation passed by some 31 States restricting corporate political activity,[1] as well as upon the Federal Corrupt Practices Act, 2 U.S. C. 441b (1976 ed.). The Court's fundamental error is its failure to realize that the state regulatory interests in terms of which the alleged curtailment 804 of First Amendment rights accomplished by the statute must be evaluated are themselves derived from the First Amendment. The question posed by this case, as approached by the Court, is whether the State has struck the best possible balance, i. e., the one which it would have chosen, between competing First Amendment interests. Although in my view the choice made by the State would survive even the most exacting scrutiny, perhaps a rational argument might be made to the contrary. What is inexplicable, is for the Court to substitute its judgment as to the proper balance for that of Massachusetts where the State has passed legislation reasonably designed to further First Amendment interests in the context of the political arena where the expertise of legislators is at its peak and that of judges is at its very lowest.[2] Moreover, the result reached today in critical respects marks a drastic departure from the Court's prior decisions which have protected against governmental infringement the very First Amendment interests which the Court now deems inadequate to justify the Massachusetts statute. There is now little doubt that corporate communications come within the scope of the First Amendment. This, however, is merely the starting point of analysis, because an examination of the First Amendment values that corporate expression furthers and the threat to the functioning of a free society it is capable of posing reveals that it is not fungible with communications emanating from individuals and is subject to restrictions which individual expression is not. ndeed, what some have considered to be the principal function of the First Amendment, the use of communication as a means of self-expression, self-realization, and self-fulfillment, is not at all 805 furthered by corporate speech.[3] t is clear that the communications of profitmaking corporations are not "an integral part of the development of ideas, of mental exploration and of the affirmation of self."[4] They do not represent a manifestation of individual freedom or choice. Undoubtedly, as this Court has recognized, see there are some corporations formed for the express purpose of advancing certain ideological causes shared by all their members, or, as in the case of the press, of disseminating information and ideas. Under such circumstances, association in a corporate form may be viewed as merely a means of achieving effective self-expression. But this is hardly the case generally with corporations operated for the purpose of making profits. Shareholders in such entities do not share a common set of political or social views, and they certainly have not invested their money for the purpose of advancing political or social causes or in an enterprise engaged in the business of disseminating news and opinion. n fact, as infra, the government has a strong interest in assuring that investment decisions are not predicated upon agreement or disagreement with the activities of corporations in the political arena. Of course, it may be assumed that corporate investors are united by a desire to make money, for the value of their investment to increase. Since even communications which have no purpose other than that of enriching the communicator have some First Amendment protection, activities such as advertising and other communications integrally related to the operation of the corporation's business may be viewed as a means of furthering the desires of individual shareholders.[5] This unanimity of purpose breaks down, however, when corporations make expenditures or undertake activities designed 806 to influence the opinion or votes of the general public on political and social issues that have no material connection with or effect upon their business, property, or assets. Although it is arguable that corporations make such expenditures because their managers believe that it is in the corporations' economic interest to do so, there is no basis whatsoever for concluding that these views are expressive of the heterogeneous beliefs of their shareholders whose convictions on many political issues are undoubtedly shaped by considerations other than a desire to endorse any electoral or ideological cause which would tend to increase the value of a particular corporate investment. This is particularly true where, as in this case, whatever the belief of the corporate managers may be, they have not been able to demonstrate that the issue involved has any material connection with the corporate business. Thus when a profitmaking corporation contributes to a political candidate this does not further the self-expression or self-fulfillment of its shareholders in the way that expenditures from them as individuals would.[6] The self-expression of the communicator is not the only value encompassed by the First Amendment. One of its functions, often referred to as the right to hear or receive information, is to protect the interchange of ideas. Any communication of ideas, and consequently any expenditure of funds which makes the communication of ideas possible, it 807 can be argued, furthers the purposes of the First Amendment. This proposition does not establish, however, that the right of the general public to receive communications financed by means of corporate expenditures is of the same dimension as that to hear other forms of expression. n the first place, as corporate expenditures designed to further political causes lack the connection with individual self-expression which is one of the principal justifications for the constitutional protection of speech provided by the First Amendment. deas which are not a product of individual choice are entitled to less First Amendment protection. Secondly, the restriction of corporate speech concerned with political matters impinges much less severely upon the availability of ideas to the general public than do restrictions upon individual speech. Even the complete curtailment of corporate communications concerning political or ideological questions not integral to day-to-day business functions would leave individuals, including corporate shareholders, employees, and customers, free to communicate their thoughts. Moreover, it is unlikely that any significant communication would be lost by such a prohibition. These individuals would remain perfectly free to communicate any ideas which could be conveyed by means of the corporate form. ndeed, such individuals could even form associations for the very purpose of promoting political or ideological causes.[7] recognize that there may be certain communications undertaken by corporations which could not be restricted without impinging seriously upon the right to receive information. n the absence of advertising and similar promotional activities, for example, the ability of consumers to obtain information relating to products manufactured by corporations 808 would be significantly impeded. There is also a need for employees, customers, and shareholders of corporations to be able to receive communications about matters relating to the functioning of corporations. Such communications are clearly desired by all investors and may well be viewed as an associational form of self-expression. See United Moreover, it is unlikely that such information would be disseminated by sources other than corporations. t is for such reasons that the Court has extended a certain degree of First Amendment protection to activities of this kind.[8] None of these considerations, however, are implicated by a prohibition upon corporate expenditures relating to referenda concerning questions of general public concern having no connection with corporate business affairs. t bears emphasis here that the Massachusetts statute forbids the expenditure of corporate funds in connection with referenda but in no way forbids the board of directors of a corporation from formulating and making public what it represents as the views of the corporation even though the subject addressed has no material effect whatsoever on the business of the corporation. These views could be publicized at the individual 809 expense of the officers, directors, stockholders, or anyone else interested in circulating the corporate view on matters irrelevant to its business. The governmental interest in regulating corporate political communications, especially those relating to electoral matters, also raises considerations which differ significantly from those governing the regulation of individual speech. Corporations are artificial entities created by law for the purpose of furthering certain economic goals. n order to facilitate the achievement of such ends, special rules relating to such matters as limited liability, perpetual life, and the accumulation, distribution, and taxation of assets are normally applied to them. States have provided corporations with such attributes in order to increase their economic viability and thus strengthen the economy generally. t has long been recognized, however, that the special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process. Although provides support for the position that the desire to equalize the financial resources available to candidates does not justify the limitation upon the expression of support which a restriction upon individual contributions entails,[9] the interest of Massachusetts and the many other States which have restricted corporate political activity is quite different. t is not one of equalizing the resources of opposing candidates or opposing positions, but rather of preventing institutions which have been permitted to amass wealth as a result of special advantages extended by the State for certain economic purposes from using that wealth to acquire an unfair advantage in the political process, especially where, as here, the issue involved has no material connection with the business of the corporation. The State need not permit its own creation to consume it. Massachusetts could 810 permissibly conclude that not to impose limits upon the political activities of corporations would have placed it in a position of departing from neutrality and indirectly assisting the propagation of corporate views because of the advantages its laws give to the corporate acquisition of funds to finance such activities. Such expenditures may be viewed as seriously threatening the role of the First Amendment as a guarantor of a free marketplace of ideas. Ordinarily, the expenditure of funds to promote political causes may be assumed to bear some relation to the fervency with which they are held. Corporate political expression, however, is not only divorced from the convictions of individual corporate shareholders, but also, because of the ease with which corporations are permitted to accumulate capital, bears no relation to the conviction with which the ideas expressed are held by the communicator.[10] The Court's opinion appears to recognize at least the possibility that fear of corporate domination of the electoral process would justify restrictions upon corporate expenditures and contributions in connection with referenda but brushes this interest aside by asserting that "there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts," ante, at 789, and by suggesting that the statute in issue represents an attempt to give an unfair advantage to those who hold views in opposition to positions which would otherwise be financed by corporations. Ante, at 785-786. t fails even to allude to the fact, however, that Massachusetts' most recent experience with unrestrained corporate expenditures in connection 811 with ballot questions establishes precisely the contrary. n 1972, a proposed amendment to the Massachusetts Constitution which would have authorized the imposition of a graduated income tax on both individuals and corporations was put to the voters. The Committee for Jobs and Government Economy, an organized political committee, raised and expended approximately $120,000 to oppose the proposed amendment, the bulk of it raised through large corporate contributions. Three of the present appellant corporations each contributed $3,000 to this committee. n contrast, the Coalition for Tax Reform, nc., the only political committee organized to support the 1972 amendment, was able to raise and expend only approximately $7,000. App. to Jurisdictional Statement 41; App. to Record 48-84. Perhaps these figures reflect the Court's view of the appropriate role which corporations should play in the Massachusetts electoral process, but it nowhere explains why it is entitled to substitute its judgment for that of Massachusetts and other States,[11] as well as the United States, which have acted to correct or prevent similar domination of the electoral process by corporate wealth. This Nation has for many years recognized the need for measures designed to prevent corporate domination of the political process. The Corrupt Practices Act, first enacted in 1907, has consistently barred corporate contributions in connection 812 with federal elections. This Court has repeatedly recognized that one of the principal purposes of this prohibition is "to avoid the deleterious influences on federal elections resulting from the use of money by those who exercise control over large aggregations of capital." United See ; United Although this Court has never adjudicated the constitutionality of the Act, there is no suggestion in its cases construing it, that this purpose is in any sense illegitimate or deserving of other than the utmost respect; indeed, the thrust of its opinions, until today, has been to the contrary. See Automobile at ; at There is an additional overriding interest related to the prevention of corporate domination which is substantially advanced by Massachusetts' restrictions upon corporate contributions: assuring that shareholders are not compelled to support and financially further beliefs with which they disagree where, as is the case here, the issue involved does not materially affect the business, property, or other affairs of the corporation.[12] The State has not interfered with the prerogatives of corporate management to communicate about matters that have material impact on the business affairs entrusted to them, however much individual stockholders may disagree on economic or ideological grounds. Nor has the State forbidden management from formulating and circulating its views at its own expense or at the expense of others, even where the subject at issue is irrelevant to corporate business affairs. But Massachusetts 813 has chosen to forbid corporate management from spending corporate funds in referenda elections absent some demonstrable effect of the issue on the economic life of the company. n short, corporate management may not use corporate monies to promote what does not further corporate affairs but what in the last analysis are the purely personal views of the management, individually or as a group. This is not only a policy which a State may adopt consistent with the First Amendment but one which protects the very freedoms that this Court has held to be guaranteed by the First Amendment. n Board of the Court struck down a West Virginia statute which compelled children enrolled in public school to salute the flag and pledge allegiance to it on the ground that the First Amendment prohibits public authorities from requiring an individual to express support for or agreement with a cause with which he disagrees or concerning which he prefers to remain silent. Subsequent cases have applied this principle to prohibit organizations to which individuals are compelled to belong as a condition of employment from using compulsory dues to support candidates, political parties, or other forms of political expression which which members disagree or do not wish to support. n the Court was presented with allegations that a union shop authorized by the Railway Labor Act, 45 U.S. C. 152 Eleventh, had used the union treasury to which all employees were compelled to contribute "to finance the campaigns of candidates for federal and state offices whom [the petitioners] opposed, and to promote the propagation of political and economic doctrines, concepts and ideologies with which [they] disagreed." The Court recognized that compelling contributions for such purposes presented constitutional "questions of the utmost gravity" and consequently construed the Act to prohibit the use of compulsory union dues for political purposes. Last Term, 814 in we confronted these constitutional questions and held that a State may not, even indirectly, require an individual to contribute to the support of an ideological cause he may oppose as a condition of employment. At issue were political expenditures made by a public employees' union. Michigan law provided that unions and local government employers might agree to an agency-shop arrangement pursuant to which every employeeeven those not union membersmust pay to the union, as a condition of employment, union dues or a service fee equivalent in amount to union dues. The legislation itself was not coercive; it did not command that local governments employ only those workers who were willing to pay union dues, but left it to a bargaining representative democratically elected by a majority of the employees to enter or not enter into such a contractual arrangement through collective bargaining. n addition, of course, no one was compelled to work at a job covered by an agency-shop arrangement. Nevertheless, the Court ruled that under such circumstances the use of funds contributed by dissenting employees for political purposes impermissibly infringed their First Amendment right to adhere to their own beliefs and to refuse to defer to or support the beliefs of others. Presumably, unlike the situations presented by Street and Abood, the use of funds invested by shareholders with opposing views by Massachusetts corporations in connection with referenda or elections would not constitute state action and, consequently, would not violate the First Amendment. Until now, however, the States have always been free to adopt measures designed to further rights protected by the Constitution even when not compelled to do so. t could hardly be plausibly contended that just because Massachusetts' regulation of corporations is less extensive than Michigan's regulation of labor-management relations, Massachusetts may not constitutionally prohibit the very evil which Michigan may not constitutionally 815 permit. Yet this is precisely what the Court today holds. Although the Court places great stress upon the alleged infringement of the right to receive information produced by Massachusetts' ban on corporate expenditures which, for the reasons believe to be misconceived, it fails to explain why such an interest was not sufficient to compel a different weighing of First Amendment interests and, consequently, a different result in Abood. After all, even contributions for political causes coerced by labor unions would, under the Court's analysis, increase unions' ability to disseminate their views and, consequently, increase the amount of information available to the general public. The Court assumes that the interest in preventing the use of corporate resources in furtherance of views which are irrelevant to the corporate business and with which some shareholders may disagree is a compelling one, but concludes that the Massachusetts statute is nevertheless invalid because the State has failed to adopt the means best suited, in its opinion, for achieving this end. Ante, at 792-795. t proposes that the aggrieved shareholder assert his interest in preventing the expenditure of funds for nonbusiness causes he finds unconscionable through the channels provided by "corporate democracy" and purports to be mystified as to "why the dissenting shareholder's wishes are entitled to such greater solicitude in this context than in many others where equally important and controversial corporate decisions are made by management or by a predetermined percentage of the shareholders." Ante, at 794, and n. 34. t should be obvious that the alternative means upon the adequacy of which the majority is willing to predicate a constitutional adjudication is no more able to satisfy the State's interest than a ruling in Street and Abood leaving aggrieved employees to the remedies provided by union democracy would have satisfied the demands of the First Amendment. The interest which the State wishes to protect here is identical to that which the Court has previously held to be protected by 816 the First Amendment: the right to adhere to one's own beliefs and to refuse to support the dissemination of the personal and political views of others, regardless of how large a majority they may compose. n most contexts, of course, the views of the dissenting shareholder have little, if any, First Amendment significance. By purchasing interests in corporations shareholders accept the fact that corporations are going to make decisions concerning matters such as advertising integrally related to their business operations according to the procedures set in their charters and bylaws. Otherwise, corporations could not function. First Amendment concerns of stockholders are directly implicated, however, when a corporation chooses to use its privileged status to finance ideological crusades which are unconnected with the corporate business or property and which some shareholders might not wish to support. Once again, we are provided no explanation whatsoever by the Court as to why the State's interest is of less constitutional weight than that of corporations to participate financially in the electoral process and as to why the balance between two First Amendment interests should be struck by this Court. Moreover, the Court offers no reason whatsoever for constitutionally imposing its choice of means to achieve a legitimate goal and invalidating those chosen by the State.[13] 817 Abood cannot be distinguished, as the present Court attempts to do, ante, at 794-795, n. 34, on the ground that the Court there did not constitutionally prohibit expenditures by unions for the election of political candidates or for ideological causes so long as they are financed from assessments paid by employees who are not coerced into doing so against their will. n the first place, the Court did not purport to hold that all political or ideological expenditures not constitutionally prohibited were constitutionally protected. A State might well conclude that the most and perhaps, in its view, the only effective way of preventing unions or corporations from using funds contributed by differing members or shareholders to support political causes having no connection with the business of the organization is to absolutely ban such expenditures. 818 Secondly, unlike the remedies available to the Court in Street and Abood which required unions to refund the exacted funds in the proportion that union political expenditures with which a member disagreed bore to total union expenditures, no such alternative is readily available which would enable a corporate shareholder to maintain his investment in a corporation without supporting its electoral or political ventures other than prohibiting corporations from participating in such activities. There is no apparent way of segregating one shareholder's ownership interest in a corporation from another's. t is no answer to respond, as the Court does, that the dissenting "shareholder is free to withdraw his investment at any time and for any reason." Ante, at 794 n. 34. The employees in Street and Abood were also free to seek other jobs where they would not be compelled to finance causes with which they disagreed, but we held in Abood that First Amendment rights could not be so burdened. Clearly the State has a strong interest in assuring that its citizens are not forced to choose between supporting the propagation of views with which they disagree and passing up investment opportunities. Finally, even if corporations developed an effective mechanism for rebating to shareholders that portion of their investment used to finance political activities with which they disagreed, a State may still choose to restrict corporate political activity irrelevant to business functions on the grounds that many investors would be deterred from investing in corporations because of a wish not to associate with corporations propagating certain views. The State has an interest not only in enabling individuals to exercise freedom of conscience without penalty but also in eliminating the danger that investment decisions will be significantly influenced by the ideological views of corporations. While the latter concern may not be of the same constitutional magnitude as the former, it is far from trivial. Corporations, as previously are created by the State as a means of furthering the public welfare. One of 819 their functions is to determine, by their success in obtaining funds, the uses to which society's resources are to be put. A State may legitimately conclude that corporations would not serve as economically efficient vehicles for such decisions if the investment preferences of the public were significantly affected by their ideological or political activities. t has long been recognized that such pursuits are not the proper business of corporations. The common law was generally interpreted as prohibiting corporate political participation.[14] ndeed, the Securities and Exchange Commission's rules permit corporations to refuse to submit for shareholder vote any proposal which concerns a general economic, political, racial, religious, or social cause that is not significantly related to the business of the corporation or is not within its control.[15] The necessity of prohibiting corporate political expenditures in order to prevent the use of corporate funds for purposes with which shareholders may disagree is not a unique perception of Massachusetts. This Court has repeatedly recognized that one of the purposes of the Corrupt Practices Act was to prevent the use of corporate or union funds for political purposes without the consent of the shareholders or union members and to protect minority interests from domination by corporate or union leadership.[16] Although the Court has never, as adjudicated the constitutionality of the Act, it has consistently treated this objective with deference. ndeed, in United the Court construed a previous version of the Corrupt Practices Act so as to 820 conform its prohibitions to those activities to which the Court believed union members or shareholders might object. After noting that if the statute "were construed to prohibit the publication, by corporations and unions in the regular course of conducting their affairs, of periodicals advising their members, stockholders or customers of danger or advantage to their interests from the adoption of measures, or the election to office of men espousing such measures, the gravest doubt would arise in our minds as to its constitutionality," the Court held that the statute did not prohibit such in-house publications. t was persuaded that the purposes of the Act would not be impeded by such an interpretation, because it "is unduly stretching language to say that the members or stockholders are unwilling participants in such normal organizational activities, including the advocacy thereby of governmental policies affecting their interests, and the support thereby of candidates thought to be favorable to their interests." The Court today purports not to foreclose the possibility that the Corrupt Practices Act and state statutes which prohibit corporate expenditures only in the context of elections to public office may survive constitutional scrutiny because of the interest in preventing the corruption of elected representatives through the creation of political debts. Ante, at 788 n. 26. t does not choose to explain or even suggest, however, why the state interests which it so cursorily dismisses are less worthy than the interest in preventing corruption or the appearance of it. More importantly, the analytical framework employed by the Court clearly raises great doubt about the Corrupt Practices Act. The question in the present case, as viewed by the Court, "is whether the corporate identity of the speaker deprives this proposed speech of what otherwise would be its clear entitlement to protection," ante, at 778, which it answers in the negative. But the Court has previously held in that the interest in preventing corruption is insufficient to justify restrictions upon individual expenditures 821 relative to candidates for political office. f the corporate identity of the speaker makes no difference, all the Court has done is to reserve the formal interment of the Corrupt Practices Act and similar state statutes for another day. As understand the view that has now become part of First Amendment jurisprudence, the use of corporate funds, even for causes irrelevant to the corporation's business, may be no more limited than that of individual funds. Hence, corporate contributions to and expenditures on behalf of political candidates may be no more limited than those of individuals. ndividual contributions under federal law are limited but not entirely forbidden, and under expenditures may not constitutionally be limited at all. Most state corrupt practices Acts, like the federal Act, forbid any contributions or expenditures by corporations to or for a political candidate. n my view, the interests in protecting a system of freedom of expression, set are sufficient to justify any incremental curtailment in the volume of expression which the Massachusetts statute might produce. would hold that apart from corporate activities, such as those in Part and exempted from regulation in which are integrally related to corporate business operations, a State may prohibit corporate expenditures for political or ideological purposes. There can be no doubt that corporate expenditures in connection with referenda immaterial to corporate business affairs fall clearly into the category of corporate activities which may be barred. The electoral process, of course, is the essence of our democracy. t is an arena in which the public interest in preventing corporate domination and the coerced support by shareholders of causes with which they disagree is at its strongest and any claim that corporate expenditures are integral to the economic functioning of the corporation is at its weakest.[17] 822 would affirm the judgment of the Supreme Judicial Court for the Commonwealth of Massachusetts. MR.
Justice Ginsburg	dissenting	false	Encino Motorcars, LLC v. Navarro	2018-04-02T00:00:00	null	https://www.courtlistener.com/opinion/4482893/encino-motorcars-llc-v-navarro/	https://www.courtlistener.com/api/rest/v3/clusters/4482893/	2,018	2017-040	1	5	4	Diverse categories of employees staff automobile dealer ships. Of employees so engaged, Congress explicitly ex empted from the Fair Labor Standards Act hours re quirements only three occupations: salesmen, partsmen, and mechanics. The Court today approves the exemption of a fourth occupation: automobile service advisors. In accord with the judgment of the Court of Appeals for the Ninth Circuit, I would not enlarge the exemption to in clude service advisors or other occupations outside Con gress’ enumeration. Respondents are service advisors at a Mercedes-Benz automobile dealership in the Los Angeles area. They work regular hours, 7 a.m. to 6 p.m., at least five days per week, on the dealership premises. App. 54. Their weekly mini mum is 55 hours. Maximum hours, for workers covered by the Fair Labor Standards Act (FLSA or Act), are 40 per week. 29 U.S. C. §207(a)(1). In this action, respondents seek time-and-a-half compensation for hours worked beyond the 40 per week maximum prescribed by the FLSA. The question presented: Are service advisors exempt from receipt of overtime compensation under 29 U.S. C. §213(b)(10)(A)? That exemption covers “any salesman, 2 ENCINO MOTORCARS, LLC v. NAVARRO GINSBURG, J., dissenting partsman, or mechanic primarily engaged in selling or servicing automobiles.” Service advisors, such as respond ents, neither sell automobiles nor service (i.e., repair or maintain) vehicles. Rather, they “meet and greet [car] owners”; “solicit and sugges[t]” repair services “to remedy the [owner’s] complaints”; “solicit and suggest . . . supple mental [vehicle] service[s]”; and provide owners with cost estimates. App. 55. Because service advisors neither sell nor repair automobiles, they should remain outside the exemption and within the Act’s coverage. I In 1961, Congress exempted all automobile-dealership employees from the Act’s overtime-pay requirements. See Fair Labor Standards Amendments of 1961, §9, 75 Stat. 73.1 Five years later, in 1966, Congress confined the dealership exemption to three categories of employees: automobile salesmen, mechanics, and partsmen. See Fair Labor Standards Amendments of 1966, §209, 80 Stat. 836. At the time, it was well understood that mechanics per form “preventive maintenance” and “repairs,” Dept. of Labor, Occupational Outlook Handbook 477 (1966–1967 ed.) (Handbook), while partsmen requisition parts, “suppl[y] [them] to mechanics,” id., at 312, and, at times, have “mechanical responsibilities in repairing parts,” Brief for International Association of Machinists and Aerospace Workers, AFL–CIO, as Amicus Curiae 30; see Handbook, at 312–313 (partsmen may “measure parts for inter changeability,” test parts for “defect[s],” and “repair —————— 1 The exemption further extended to all employees of establishments selling “trucks” and “farm implements.” Fair Labor Standards Amendments of 1961, §9, 75 Stat. 73. When Congress later narrowed the provision’s scope for automobile-dealership employees, it similarly diminished the exemption’s application to workers at truck and farm- implement dealerships. See, e.g., Fair Labor Standards Amendments of 1966, §209, 80 Stat. 836. Cite as: 584 U. S. ____ (2018) 3 GINSBURG, J., dissenting parts”). Congress did not exempt numerous other catego ries of dealership employees, among them, automobile painters, upholsterers, bookkeeping workers, cashiers, janitors, purchasing agents, shipping and receiving clerks, and, most relevant here, service advisors. These positions and their duties were well known at the time, as docu mented in U. S. Government catalogs of American jobs. See Handbook, at XIII, XV, XVI (table of contents); Brief for International Association of Machinists and Aerospace Workers, AFL–CIO, as Amicus Curiae 34 (noting “more than twenty distinct [job] classifications” in the service department alone). “Where Congress explicitly enumerates certain excep tions . . . , additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) (internal quotation marks omitted). The Court thus has no warrant to add to the three explicitly exempt categories (salesmen, partsmen, and mechanics) a fourth (service advisors) for which the Legislature did not provide. The reach of to day’s ruling is uncertain, troublingly so: By expansively reading the exemption to encompass all salesmen, parts- men, and mechanics who are “integral to the servicing process,” ante, at 6, the Court risks restoring much of what Congress intended the 1966 amendment to termi nate, i.e., the blanket exemption of all dealership employ ees from overtime-pay requirements. II Had the §213(b)(10)(A) exemption covered “any sales man or mechanic primarily engaged in selling or servicing automobiles,” there could be no argument that service advisors fit within it. Only “salesmen” primarily engaged in “selling” automobiles and “mechanics” primarily en gaged in “servicing” them would fall outside the Act’s coverage. Service advisors, defined as “salesmen primarily 4 ENCINO MOTORCARS, LLC v. NAVARRO GINSBURG, J., dissenting engaged in the selling of services,” Encino Motorcars, LLC v. Navarro, 579 U. S. ___, ___ (2016) (THOMAS, J., dissent ing) (slip op., at 2) (emphasis added), plainly do not belong in either category. Moreover, even if the exemption were read to reach “salesmen” “primarily engaged in servicing automobiles,” not just selling them, service advisors would not be exempt. The ordinary meaning of “servicing” is “the action of maintaining or repairing a motor vehicle.” Ante, at 6 (quoting 15 Oxford English Dictionary 39 (2d ed. 1989)). As described above, see supra, at 2, service advi sors neither maintain nor repair automobiles.2 Petitioner stakes its case on Congress’ addition of the “partsman” job to the exemption. See Reply Brief 6–10. That inclusion, petitioner urges, has a vacuum effect: It draws into the exemption job categories other than the three for which Congress provided, in particular, service advisors. Because partsmen, like service advisors, neither “sell” nor “service” automobiles in the conventional sense, petitioner reasons, Congress must have intended the word “service” to mean something broader than repair and maintenance. To begin with, petitioner’s premise is flawed. Unlike service advisors, partsmen “ ‘get their hands dirty’ by ‘working as a mechanic’s right-hand man or woman.’ ” Encino Motorcars, 579 U. S., at ___, n. 1 (GINSBURG, J., concurring) (slip op., at 1, n. 1) (quoting Brief for Respond ents in No. 15–415, p. 11; alterations omitted); see supra, —————— 2 Service advisors do not maintain or repair motor vehicles even if, as the Court concludes, they are “integral to the servicing process.” Ante, at 6. The Ninth Circuit provided an apt analogy: “[A] receptionist- scheduler at a dental office fields calls from patients, matching their needs (e.g., a broken tooth or jaw pain) with the appropriate provider, appointment time, and length of anticipated service. That work is integral to a patient’s obtaining dental services, but we would not say that the receptionist-scheduler is ‘primarily engaged in’ cleaning teeth or installing crowns.” 845 F.3d 925, 932 (2017). Cite as: 584 U. S. ____ (2018) 5 GINSBURG, J., dissenting at 2–3 (describing duties of partsmen). As the Solicitor General put it last time this case was before the Court, a mechanic “might be able to obtain the parts to complete a repair without the real-time assistance of a partsman by his side.” Brief for United States as Amicus Curiae in No. 15–415, p. 23. But dividing the “key [repair] tasks . . . between two individuals” only “reinforces” “that both the mechanic and the partsman are . . . involved in repairing (‘servicing’) the vehicle.” Ibid. Service advisors, in con trast, “sell . . . services [to customers] for their vehicles,” Encino Motorcars, 579 U. S., at ___ (slip op., at 2) (empha sis added)—services that are later performed by mechan ics and partsmen. Adding partsmen to the exemption, moreover, would be an exceptionally odd way for Congress to have indicated that “servicing” should be given a meaning deviating from its ordinary usage. There is a more straightforward ex planation for Congress’ inclusion of partsmen alongside salesmen and mechanics: Common features of the three enumerated jobs make them unsuitable for overtime pay. Both salesmen and mechanics work irregular hours, including nights and weekends, not uncommonly offsite, rendering time worked not easily tracked.3 As noted in the 1966 Senate floor debate, salesmen “go out at unusual hours, trying to earn commissions.” 112 Cong. Rec. 20504 —————— 3 In addition to practical difficulties in calculating hours, a core pur pose of overtime may not be served when employees’ hours regularly fluctuate. Enacted in the midst of the Great Depression, the FLSA overtime rules encourage employers to hire more individuals who work 40-hour weeks, rather than maintaining a staff of fewer employees who consistently work longer hours. See Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 577–578 (1942) (overtime rules apply “financial pressure” on employers to “spread employment”); 7 D. VanDeusen, Labor and Employment Law §176.02[1] (2018). But if a position’s working hours routinely ebb and flow, while averaging 40 each week, then it does not make sense to encourage employers to hire more workers for that position. 6 ENCINO MOTORCARS, LLC v. NAVARRO GINSBURG, J., dissenting (1966) (remarks of Sen. Bayh). See also ibid. (remarks of Sen. Yarborough) (“[T]he salesman . . . [can] sell an Oldsmobile, a Pontiac, or a Buick all day long and all night. He is not under any overtime.”). Mechanics’ work may involve similar “difficult[ies] [in] keeping regular hours.” Ibid. For example, mechanics may be required to “answe[r] calls in . . . rural areas,” ibid., or to “go out on the field where there is a harvesting of sugarbeets,” id., at 20505 (remarks of Sen. Clark).4 And, like salesmen, me chanics may be “subject to substantial seasonal variations in business.” Id., at 20502 (remarks of Sen. Hruska). Congress added “partsman” to the exemption because it believed that job, too, entailed irregular hours. See ibid. This is “especially true,” several Senators emphasized, “in the farm equipment business where farmers, during plant ing, cultivating and harvesting seasons, may call on their dealers for parts at any time during the day or evening and on weekends.” Ibid. (remarks of Sen. Bayh). See also id., at 20503 (remarks of Sen. Mansfield). In Senator Bayh’s experience, for instance, a mechanic who “could not find [a] necessary part” after hours might “call the parts- man, get him out of bed, and get him to come down to the store.” Id., at 20504. See also id., at 20503 (remarks of Sen. Hruska) (“Are we going to say to the farmer who needs a part . . . on Sunday: You cannot get a spark plug . . . because the partsman is not exempt, but you can have machinery repaired by a mechanic who is exempt[?]”). Although some Senators opposed adding partsmen to the exemption because, as they understood the job’s demands, partsmen did not work irregular hours, e.g., id., at 20505 (remarks of Sen. Clark), the crux of the debate under scores the exemption’s rationale. —————— 4 Recall that the exemption extends to salesmen, mechanics, and partsmen at dealerships selling farm implements and trucks, not just automobiles. See supra, at 2, n. 1. Cite as: 584 U. S. ____ (2018) 7 GINSBURG, J., dissenting That rationale has no application here. Unlike sales men, partsmen, and mechanics, service advisors “wor[k] ordinary, fixed schedules on-site.” Brief for Respondents 47 (citing Handbook, at 316). Respondents, for instance, work regular 11-hour shifts, at all times of the year, for a weekly minimum of 55 hours. See App. 54. Service advi sors thus do not implicate the concerns underlying the §213(b)(10)(A) exemption. Indeed, they are precisely the type of workers Congress intended the FLSA to shield “from the evil of overwork,” Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 739 (1981) (internal quotation marks omitted). I note, furthermore, that limiting the exemption to the three delineated jobs—salesman, partsman, and mechanic— does not leave the phrase “primarily engaged in selling or servicing,” §213(b)(10)(A), without utility. Congress included that language to ensure that only employees who actually perform the tasks commonly associated with the enumerated positions would be covered. Otherwise, for example, a worker who acts as a “salesman” in name only could lose the FLSA’s protections merely because of the formal title listed on the employer’s payroll records. See Bowers v. Fred Haas Toyota World, 2017 WL 5127289, 4 (SD Tex., June 21, 2017) (“[An employee’s] title alone is not dispositive of whether he meets the . . . exemption.”). Thus, by partsmen “primarily engaged in . . . servicing automobiles,” Congress meant nothing more than parts- men primarily engaged in the ordinary duties of a parts- man, i.e., requisitioning, supplying, and repairing parts. See supra, at 2–3, 4–5. The inclusion of “partsman” there fore should not result in the removal of service advisors from the Act’s protections. III Petitioner contends that “affirming the decision below would disrupt decades of settled expectations” while ex 8 ENCINO MOTORCARS, LLC v. NAVARRO GINSBURG, J., dissenting posing “employers to substantial retroactive liability.” Brief for Petitioner 51. “[M]any dealerships,” petitioner urges, “have offered compensation packages based primar ily on sales commissions,” in reliance on court decisions and agency guidance ranking service advisors as exempt. Id., at 51–52. Respondents here, for instance, are com pensated on a “pure commission basis.” App. 55. Award ing retroactive overtime pay to employees who were “fo cused on earning commissions,” not “working a set number of hours,” petitioner argues, would yield an “unjustified windfal[l].” Brief for Petitioner 53. Petitioner’s concerns are doubly overstated. As the Court previously acknowledged, see Encino Motorcars, 579 U. S., at ___ (slip op., at 11), the FLSA provides an affirm ative defense that explicitly protects regulated parties from retroactive liability for actions taken in good-faith reliance on superseded agency guidance. See 29 U.S. C. §259(a). Given the Department of Labor’s longstanding view that service advisors fit within the §213(b)(10)(A) exemption, see ante, at 2, the reliance defense would surely shield employers from retroactive liability were the Court to construe the exemption properly. Congress, moreover, has spoken directly to the treat ment of commission-based workers. The FLSA exempts from its overtime directives any employee of a “retail or service establishment” who receives more than half of his or her pay on commission, so long as the employee’s “regu lar rate of pay” is more than 1½ times the minimum wage. §207(i). Thus, even without the §213(b)(10)(A) exemption, many service advisors compensated on commission would remain ineligible for overtime remuneration.5 —————— 5 The current FLSA minimum wage, for example, is $7.25 per hour. See 29 U.S. C. §206(a)(1)(C). The only commission-based service advisors at retail or service establishments who are not already exempt under §207(i)—and who thus remain eligible for overtime—are those earning less than $10.88 per hour. Providing such workers time-and-a Cite as: 584 U. S. ____ (2018) 9 GINSBURG, J., dissenting In crafting the commission-pay exemption, Congress struck a deliberate balance: It exempted higher paid com missioned employees, perhaps in recognition of their potentially irregular hours, see Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d 1173, 1176–1177 (CA7 1987); cf. supra, at 5–7, but it maintained protection for lower paid employees, to vindicate the Act’s “principal . . . purpose” of shielding “workers from substandard wages and oppres sive working hours,” Barrentine, 450 U.S., at 739.6 By stretching the §213(b)(10)(A) exemption to encompass even the lowest income service advisors compensated on commission, the Court upsets Congress’ careful balance, while stripping away protection for the most vulnerable workers in this occupation. * * This Court once recognized that the “particularity” of FLSA exemptions “preclude[s] their enlargement by impli cation.” Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607, 617 (1944). Employees outside the Act’s “nar row and specific” exemptions, the Court affirmed, “remain within the Act.” Powell v. United States Cartridge Co., 339 U.S. 497, 517 (1950).7 The Court today, in adding an —————— half pay, as Congress directed, would confer, at most, $5.44 per over time hour. 6 Congress struck a similar balance in 29 U.S. C. §207(f), which ex empts employees whose duties “necessitate irregular hours of work,” but only if they receive specified minimum rates of pay. 7 This Court has long held that FLSA “exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those [cases] plainly and unmistakably within their terms and spirit.” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960). This principle is a well-grounded application of the general rule that an “exception to a general statement of policy is usually read . . . narrowly in order to preserve the primary operation of the provi sion.” Maracich v. Spears, 570 U.S. 48, 60 (2013) (internal quotation marks omitted). In a single paragraph, the Court “reject[s]” this longstanding principle as applied to the FLSA, ante, at 9, without even 10 ENCINO MOTORCARS, LLC v. NAVARRO GINSBURG, J., dissenting exemption of its own creation, veers away from that com prehension of the FLSA’s mission. I would instead resist, as the Ninth Circuit did, diminishment of the Act’s over time strictures. —————— acknowledging that it unsettles more than half a century of our prece dent	Diverse categories of employees staff automobile dealer ships. Of employees so engaged, Congress explicitly ex empted from the Fair Labor Standards Act hours re quirements only three occupations: salesmen, partsmen, and mechanics. The Court today approves the exemption of a fourth occupation: automobile service advisors. In accord with the judgment of the Court of Appeals for the Ninth Circuit, I would not enlarge the exemption to in clude service advisors or other occupations outside Con gress’ enumeration. Respondents are service advisors at a Mercedes-Benz automobile dealership in the Los Angeles area. They work regular hours, 7 a.m. to 6 p.m., at least five days per week, on the dealership premises. App. 54. Their weekly mini mum is 55 hours. Maximum hours, for workers covered by the Fair Labor Standards Act (FLSA or Act), are 40 per week. 29 U.S. C. In this action, respondents seek time-and-a-half compensation for hours worked beyond the 40 per week maximum prescribed by the FLSA. The question presented: Are service advisors exempt from receipt of overtime compensation under 29 U.S. C. That exemption covers “any salesman, 2 ENCINO MOTORCARS, LLC v. NAVARRO GINSBURG, J., dissenting partsman, or mechanic primarily engaged in selling or servicing automobiles.” Service advisors, such as respond ents, neither sell automobiles nor service (i.e., repair or maintain) vehicles. Rather, they “meet and greet [car] owners”; “solicit and sugges[t]” repair services “to remedy the [owner’s] complaints”; “solicit and suggest supple mental [vehicle] service[s]”; and provide owners with cost estimates. App. 55. Because service advisors neither sell nor repair automobiles, they should remain outside the exemption and within the Act’s coverage. I In 1961, Congress exempted all automobile-dealership employees from the Act’s overtime-pay requirements. See Fair Labor Standards Amendments of 1961, 75 Stat. 73.1 Five years later, in 1966, Congress confined the dealership exemption to three categories of employees: automobile salesmen, mechanics, and partsmen. See Fair Labor Standards Amendments of 1966, At the time, it was well understood that mechanics per form “preventive maintenance” and “repairs,” Dept. of Labor, Occupational Outlook Handbook 477 (1966–1967 ed.) (Handbook), while partsmen requisition parts, “suppl[y] [them] to mechanics,” and, at times, have “mechanical responsibilities in repairing parts,” Brief for International Association of Machinists and Aerospace Workers, AFL–CIO, as Amicus Curiae 30; see Handbook, –313 (partsmen may “measure parts for inter changeability,” test parts for “defect[s],” and “repair —————— 1 The exemption further extended to all employees of establishments selling “trucks” and “farm implements.” Fair Labor Standards Amendments of 1961, When Congress later narrowed the provision’s scope for automobile-dealership employees, it similarly diminished the exemption’s application to workers at truck and farm- implement dealerships. See, e.g., Fair Labor Standards Amendments of 1966, Cite as: 584 U. S. (2018) 3 GINSBURG, J., dissenting parts”). Congress did not exempt numerous other catego ries of dealership employees, among them, automobile painters, upholsterers, bookkeeping workers, cashiers, janitors, purchasing agents, shipping and receiving clerks, and, most relevant here, service advisors. These positions and their duties were well known at the time, as docu mented in U. S. Government catalogs of American jobs. See Handbook, at XIII, XV, XVI (table of contents); Brief for International Association of Machinists and Aerospace Workers, AFL–CIO, as Amicus Curiae 34 (noting “more than twenty distinct [job] classifications” in the service department alone). “Where Congress explicitly enumerates certain excep tions additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” TRW (internal quotation marks omitted). The Court thus has no warrant to add to the three explicitly exempt categories (salesmen, partsmen, and mechanics) a fourth (service advisors) for which the Legislature did not provide. The reach of to day’s ruling is uncertain, troublingly so: By expansively reading the exemption to encompass all salesmen, parts- men, and mechanics who are “integral to the servicing process,” ante, at 6, the Court risks restoring much of what Congress intended the 1966 amendment to termi nate, i.e., the blanket exemption of all dealership employ ees from overtime-pay requirements. II Had the exemption covered “any sales man or mechanic primarily engaged in selling or servicing automobiles,” there could be no argument that service advisors fit within it. Only “salesmen” primarily engaged in “selling” automobiles and “mechanics” primarily en gaged in “servicing” them would fall outside the Act’s coverage. Service advisors, defined as “salesmen primarily 4 ENCINO MOTORCARS, LLC v. NAVARRO GINSBURG, J., dissenting engaged in the selling of services,” Encino Motorcars, LLC v. Navarro, 579 U. S. (2016) (THOMAS, J., dissent ing) (slip op., ) (emphasis added), plainly do not belong in either category. Moreover, even if the exemption were read to reach “salesmen” “primarily engaged in servicing automobiles,” not just selling them, service advisors would not be exempt. The ordinary meaning of “servicing” is “the action of maintaining or repairing a motor vehicle.” Ante, at 6 (quoting 15 Oxford English Dictionary 39 (2d ed. 1989)). As described above, see service advi sors neither maintain nor repair automobiles.2 Petitioner stakes its case on Congress’ addition of the “partsman” job to the exemption. See Reply Brief 6–10. That inclusion, petitioner urges, has a vacuum effect: It draws into the exemption job categories other than the three for which Congress provided, in particular, service advisors. Because partsmen, like service advisors, neither “sell” nor “service” automobiles in the conventional sense, petitioner reasons, Congress must have intended the word “service” to mean something broader than repair and maintenance. To begin with, petitioner’s premise is flawed. Unlike service advisors, partsmen “ ‘get their hands dirty’ by ‘working as a mechanic’s right-hand man or woman.’ ” Encino Motorcars, 579 U. S., at n. 1 (GINSBURG, J., concurring) (slip op., at 1, n. 1) (quoting Brief for Respond ents in No. 15–415, p. 11; alterations omitted); see —————— 2 Service advisors do not maintain or repair motor vehicles even if, as the Court concludes, they are “integral to the servicing process.” Ante, at 6. The Ninth Circuit provided an apt analogy: “[A] receptionist- scheduler at a dental office fields calls from patients, matching their needs (e.g., a broken tooth or jaw pain) with the appropriate provider, appointment time, and length of anticipated service. That work is integral to a patient’s obtaining dental services, but we would not say that the receptionist-scheduler is ‘primarily engaged in’ cleaning teeth or installing crowns.” Cite as: 584 U. S. (2018) 5 GINSBURG, J., dissenting –3 (describing duties of partsmen). As the Solicitor General put it last time this case was before the Court, a mechanic “might be able to obtain the parts to complete a repair without the real-time assistance of a partsman by his side.” Brief for United States as Amicus Curiae in No. 15–415, p. 23. But dividing the “key [repair] tasks between two individuals” only “reinforces” “that both the mechanic and the partsman are involved in repairing (‘servicing’) the vehicle.” Service advisors, in con trast, “sell services [to customers] for their vehicles,” Encino Motorcars, 579 U. S., at (slip op., ) (empha sis added)—services that are later performed by mechan ics and partsmen. Adding partsmen to the exemption, moreover, would be an exceptionally odd way for Congress to have indicated that “servicing” should be given a meaning deviating from its ordinary usage. There is a more straightforward ex planation for Congress’ inclusion of partsmen alongside salesmen and mechanics: Common features of the three enumerated jobs make them unsuitable for overtime pay. Both salesmen and mechanics work irregular hours, including nights and weekends, not uncommonly offsite, rendering time worked not easily tracked.3 As noted in the 1966 Senate floor debate, salesmen “go out at unusual hours, trying to earn commissions.” 112 Cong. Rec. 20504 —————— 3 In addition to practical difficulties in calculating hours, a core pur pose of overtime may not be served when employees’ hours regularly fluctuate. Enacted in the midst of the Great Depression, the FLSA overtime rules encourage employers to hire more individuals who work 40-hour weeks, rather than maintaining a staff of fewer employees who consistently work longer hours. See Overnight Motor Transp. Co. v. Missel, (overtime rules apply “financial pressure” on employers to “spread employment”); 7 D. VanDeusen, Labor and Employment Law (2018). But if a position’s working hours routinely ebb and flow, while averaging 40 each week, then it does not make sense to encourage employers to hire more workers for that position. 6 ENCINO MOTORCARS, LLC v. NAVARRO GINSBURG, J., dissenting (1966) See also (remarks of Sen. Yarborough) (“[T]he salesman [can] sell an Oldsmobile, a Pontiac, or a Buick all day long and all night. He is not under any overtime.”). Mechanics’ work may involve similar “difficult[ies] [in] keeping regular hours.” For example, mechanics may be required to “answe[r] calls in rural areas,” ib or to “go out on the field where there is a harvesting of sugarbeets,” at 20505 (remarks of Sen. Clark).4 And, like salesmen, me chanics may be “subject to substantial seasonal variations in business.” 0502 Congress added “partsman” to the exemption because it believed that job, too, entailed irregular hours. See This is “especially true,” several Senators emphasized, “in the farm equipment business where farmers, during plant ing, cultivating and harvesting seasons, may call on their dealers for parts at any time during the day or evening and on weekends.” See also 0503 In Senator Bayh’s experience, for instance, a mechanic who “could not find [a] necessary part” after hours might “call the parts- man, get him out of bed, and get him to come down to the store.” 0504. See also 0503 (remarks of Sen. Hruska) (“Are we going to say to the farmer who needs a part on Sunday: You cannot get a spark plug because the partsman is not exempt, but you can have machinery repaired by a mechanic who is exempt[?]”). Although some Senators opposed adding partsmen to the exemption because, as they understood the job’s demands, partsmen did not work irregular hours, e.g., 0505 (remarks of Sen. Clark), the crux of the debate under scores the exemption’s rationale. —————— 4 Recall that the exemption extends to salesmen, mechanics, and partsmen at dealerships selling farm implements and trucks, not just automobiles. See n. 1. Cite as: 584 U. S. (2018) 7 GINSBURG, J., dissenting That rationale has no application here. Unlike sales men, partsmen, and mechanics, service advisors “wor[k] ordinary, fixed schedules on-site.” Brief for Respondents 47 (citing Handbook, at 316). Respondents, for instance, work regular 11-hour shifts, at all times of the year, for a weekly minimum of 55 hours. See App. 54. Service advi sors thus do not implicate the concerns underlying the exemption. Indeed, they are precisely the type of workers Congress intended the FLSA to shield “from the evil of overwork,” 450 U.S. 7, (internal quotation marks omitted). I note, furthermore, that limiting the exemption to the three delineated jobs—salesman, partsman, and mechanic— does not leave the phrase “primarily engaged in selling or servicing,” without utility. Congress included that language to ensure that only employees who actually perform the tasks commonly associated with the enumerated positions would be covered. Otherwise, for example, a worker who acts as a “salesman” in name only could lose the FLSA’s protections merely because of the formal title listed on the employer’s payroll records. See WL 51279, (“[An employee’s] title alone is not dispositive of whether he meets the exemption.”). Thus, by partsmen “primarily engaged in servicing automobiles,” Congress meant nothing more than parts- men primarily engaged in the ordinary duties of a parts- man, i.e., requisitioning, supplying, and repairing parts. See –3, 4–5. The inclusion of “partsman” there fore should not result in the removal of service advisors from the Act’s protections. III Petitioner contends that “affirming the decision below would disrupt decades of settled expectations” while ex 8 ENCINO MOTORCARS, LLC v. NAVARRO GINSBURG, J., dissenting posing “employers to substantial retroactive liability.” Brief for Petitioner 51. “[M]any dealerships,” petitioner urges, “have offered compensation packages based primar ily on sales commissions,” in reliance on court decisions and agency guidance ranking service advisors as exempt. at 51–52. Respondents here, for instance, are com pensated on a “pure commission basis.” App. 55. Award ing retroactive overtime pay to employees who were “fo cused on earning commissions,” not “working a set number of hours,” petitioner argues, would yield an “unjustified windfal[l].” Brief for Petitioner 53. Petitioner’s concerns are doubly overstated. As the Court previously acknowledged, see Encino Motorcars, 579 U. S., at (slip op., at 11), the FLSA provides an affirm ative defense that explicitly protects regulated parties from retroactive liability for actions taken in good-faith reliance on superseded agency guidance. See 29 U.S. C. Given the Department of Labor’s longstanding view that service advisors fit within the exemption, see ante, the reliance defense would surely shield employers from retroactive liability were the Court to construe the exemption properly. Congress, moreover, has spoken directly to the treat ment of commission-based workers. The FLSA exempts from its overtime directives any employee of a “retail or service establishment” who receives more than half of his or her pay on commission, so long as the employee’s “regu lar rate of pay” is more than 1½ times the minimum wage. Thus, even without the exemption, many service advisors compensated on commission would remain ineligible for overtime remuneration.5 —————— 5 The current FLSA minimum wage, for example, is $7.25 per hour. See 29 U.S. C. The only commission-based service advisors at retail or service establishments who are not already exempt under who thus remain eligible for overtime—are those earning less than $10.88 per hour. Providing such workers time-and-a Cite as: 584 U. S. (2018) 9 GINSBURG, J., dissenting In crafting the commission-pay exemption, Congress struck a deliberate balance: It exempted higher paid com missioned employees, perhaps in recognition of their potentially irregular hours, see ; cf. at 5–7, but it maintained protection for lower paid employees, to vindicate the Act’s “principal purpose” of shielding “workers from substandard wages and oppres sive working hours,” 450 U.S., at6 By stretching the exemption to encompass even the lowest income service advisors compensated on commission, the Court upsets Congress’ careful balance, while stripping away protection for the most vulnerable workers in this occupation. * * * This Court once recognized that the “particularity” of FLSA exemptions “preclude[s] their enlargement by impli cation.” Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 7, 617 (1944). Employees outside the Act’s “nar row and specific” exemptions, the Court affirmed, “remain within the Act.”7 The Court today, in adding an —————— half pay, as Congress directed, would confer, at most, $5.44 per over time hour. 6 Congress struck a similar balance in 29 U.S. C. which ex empts employees whose duties “necessitate irregular hours of work,” but only if they receive specified minimum rates of pay. 7 This Court has long held that FLSA “exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those [cases] plainly and unmistakably within their terms and spirit.” 392 (19). This principle is a well-grounded application of the general rule that an “exception to a general statement of policy is usually read narrowly in order to preserve the primary operation of the provi sion.” (internal quotation marks omitted). In a single paragraph, the Court “reject[s]” this longstanding principle as applied to the FLSA, ante, at 9, without even 10 ENCINO MOTORCARS, LLC v. NAVARRO GINSBURG, J., dissenting exemption of its own creation, veers away from that com prehension of the FLSA’s mission. I would instead resist, as the Ninth Circuit did, diminishment of the Act’s over time strictures. —————— acknowledging that it unsettles more than half a century of our prece dent
Justice Brennan	dissenting	false	United States v. Havens	1980-08-11T00:00:00	null	https://www.courtlistener.com/opinion/110267/united-states-v-havens/	https://www.courtlistener.com/api/rest/v3/clusters/110267/	1,980	1979-094	1	5	4	The Court upholds the admission at trial of illegally seized evidence to impeach a defendant's testimony deliberately elicited by the Government under the cover of impeaching an accused who takes the stand in his own behalf. I dissent. Criminal defendants now told that prosecutors are licensed to insinuate otherwise inadmissible evidence under the guise of cross-examination no longer have the unfettered right to elect whether or not to testify in their own behalf. Not only is today's decision an unwarranted departure from prior controlling cases, but, regrettably, it is yet another element in the trend to depreciate the constitutional protections guaranteed the criminally accused. I The question before us is not of first impression. The identical issue was confronted in Agnello v. United States, 269 U.S. 20 (1925), which determinedcontrary to the instant decisionthat it was constitutionally impermissible to admit evidence obtained in violation of the Fourth Amendment to rebut a defendant's response to a matter first raised during the Government's cross-examination. Subsequently, Walder v. United States, 347 U.S. 62 (1954), affirmed the introduction of unlawfully acquired evidence to impeach an accused's false assertions about previous conduct that had been offered during direct testimony. But Walder took pains to draw the distinction between its own holding and Agnello, noting that "the defendant [Walder] went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping 630 [and untrue] claim that he had never dealt in or possessed any narcotics." 347 U.S., at 65. In "shar[p] contras[t]," in Agnello, "the Government . . . tried to smuggle [the tainted evidence] . . . in on cross-examination," and "elicit[ed] the expected denial. . . ." 347 U.S., at 66. The Court's recent decisions have left Agnello undisturbed. Harris v. New York, 401 U.S. 222 (1971), allowed the government to use inadmissible uncounseled statements to impeach direct examination. So, too, Oregon v. Hass, 420 U.S. 714 (1975), reaffirmed Harris in the context of impeachment of the defendant's direct testimony. Significantly, neither decision intimated that Agnello had lost vitality, or that the distinction emphasized by Walder had been effaced. The Court's opinion attempts to discredit Agnello by casting a strawman as its holding, and then demolishing the pitiful scarecrow of its own creation. Specifically, the Court cites Agnello's quotation of language from Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920), that "illegally seized evidence `shall not . . . be used at all,'" ante, at 624, and then refers to the subsequent decisions that indeed permit limited use of that evidence for impeachment. But the actual principle of Agnello, as discerned by Walder, is that the Government may not employ its power of cross-examination to predicate the admission of illegal evidence. In other words, impeachment by cross-examination aboutor introduction of suppressible evidence must be warranted by defendant's statements upon direct questioning. That principle is not at all inconsistent with later cases holding that the defendant may not take advantage of evidentiary suppression to advance specific perjurious claims as part of his direct case. Nor is it correct to read Agnello as turning upon the tenuity of the link between the cross-examination involved there and the subject matter of the direct examination. Ante, at 625. The cross-examination about Agnello's previous connection with cocaine was reasonably related to his direct testimony that he lacked knowledge that the commodity he was transporting 631 was cocaine. 269 U.S., at 29-30. For "[t]he possession by Frank Agnello of the can of cocaine which was seized tended to show guilty knowledge and criminal intent on his part. . . ." Id., at 35. Thus, the constitutional flaw found in Agnello was that the introduction of the tainted evidence had been prompted by statements of the accused first elicited upon cross-examination. And the case was so read in Walder v. United States. That decision specifically stated that a defendant "must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief." 347 U.S., at 65. Since as a matter of the law of evidence it would be perfectly permissible to cross-examine a defendant as to his denial of complicity in the crime, the quoted passage in Walder must be understood to impose a further condition before the prosecutor may refer to tainted evidencethat is, some particular direct testimony by the accused that relies upon "the Government's disability to challenge his credibility." Ibid. In fact, the Court's current interpretation of Agnello and Walder simply trivializes those decisions by transforming their Fourth Amendment holdings into nothing more than a constitutional reflection of the common-law evidentiary rule of relevance. Finally, the rationale of Harris v. New York and Oregon v. Hass does not impel the decision at hand. The exclusionary rule exception established by Harris and Hass may be fairly easily cabined by defense counsel's willingness to forgo certain areas of questioning. But the rule prescribed by the Court in this case passes control of the exception to the Government, since the prosecutor can lay the predicate for admitting otherwise suppressible evidence with his own questioning. To be sure, the Court requires that cross-examination be "proper"; however, traditional evidentiary principles accord parties fairly considerable latitude in cross-examining 632 opposing witnesses. See C. McCormick, Law of Evidence §§ 21-24 (2d ed. 1972).[1] In practical terms, therefore, today's holding allows even the moderately talented prosecutor to "work in . . . evidence on cross-examination [as it would] in its case in chief. . . ." Walder v. United States, 347 U. S., at 66. To avoid this consequence, a defendant will be compelled to forgo testifying on his own behalf. "[T]he Constitution guarantees a defendant the fullest opportunity to meet the accusation against him." Id., at 65; see Harris v. New York, supra, at 229-230 (BRENNAN, J., dissenting). Regrettably, surrender of that guarantee is the price the Court imposes for the defendant to claim his right not to be convicted on the basis of evidence obtained in violation of the Constitution.[2] I cannot agree that one constitutional privilege must be purchased at the expense of another. II The foregoing demonstration of its break with precedent provides a sufficient ground to condemn the present ruling unleashing, as it does, a hitherto relatively confined exception to the exclusionary rule. But I have a more fundamental difference with the Court's holding here, which culminates 633 the approach taken in Harris v. New York and Oregon v. Hass. For this sequence of decisions undercuts the constitutional canon that convictions cannot be procured by governmental lawbreaking. See Harris v. New York, 401 U. S., at 226-232 (BRENNAN, J., dissenting); Oregon v. Hass, 420 U. S., at 724-725 (BRENNAN, J., dissenting). "`[I]t is monstrous that courts should aid or abet the lawbreaking police officer.'" Id., at 724, quoting Harris v. New York, supra, at 232 (BRENNAN, J., dissenting). And what is especially troubling about these cases is the mode of analysis employed by the Court. In each, the judgment that tainted evidence may be admitted has been bottomed upon a determination that the "incremental furthering" of constitutional ends would not be sufficient to warrant exclusion of otherwise probative evidence. Ante, at 627; see Oregon v. Hass, supra, at 721; Harris v. New York, supra, at 225. Of course, "[t]here is no gainsaying that arriving at the truth is a fundamental goal of our legal system." Ante, at 626. But it is also undeniable that promotion of that objective must be consonant with other ends, in particular those enshrined in our Constitution. I still hope that the Court would not be prepared to acquiesce in torture or other police conduct that "shocks the conscience" even if it demonstrably advanced the factfinding process. At any rate, what is important is that the Constitution does not countenance police misbehavior, even in the pursuit of truth. The processes of our judicial system may not be fueled by the illegalities of government authorities. See, e. g., Mapp v. Ohio, 367 U.S. 643 (1961). Nevertheless, the Court has undertaken to strike a "balance" between the "policies" it finds in the Bill of Rights and the "competing interes[t]" in accurate trial determinations. Ante, at 627. This balancing effort is completely freewheeling. Far from applying criteria intrinsic to the Fourth and Fifth Amendments, the Court resolves succeeding cases simply by declaring that so much exclusion is enough to deter *634 Police misconduct. Ante, at 626, 627; see Oregon v. Hass, supra, at 721; Harris v. New York, supra, at 225; cf. Stone v. Powell, 428 U.S. 465, 486-489 (1976); United States v. Calandra, 414 U.S. 338, 350-352 (1974). That hardly conforms to the disciplined analytical method described as "legal reasoning," through which judges endeavor to formulate or derive principles of decision that can be applied consistently and predictably. Ultimately, I fear, this ad hoc approach to the exclusionary rule obscures the difference between judicial decisionmaking and legislative or administrative policymaking. More disturbingly, by treating Fourth and Fifth Amendment privileges as mere incentive schemes, the Court denigrates their unique status as constitutional protections. Yet the efficacy of the Bill of Rights as the bulwark of our national liberty depends precisely upon public appreciation of the special character of constitutional prescriptions. The Court is charged with the responsibility to enforce constitutional guarantees; decisions such as today's patently disregard that obligation. Accordingly, I dissent.	The Court upholds the admission at trial of illegally seized evidence to impeach a defendant's testimony deliberately elicited by the Government under the cover of impeaching an accused who takes the stand in his own behalf. I dissent. Criminal defendants now told that prosecutors are licensed to insinuate otherwise inadmissible evidence under the guise of cross-examination no longer have the unfettered right to elect whether or not to testify in their own behalf. Not only is today's decision an unwarranted departure from prior controlling cases, but, regrettably, it is yet another element in the trend to depreciate the constitutional protections guaranteed the criminally accused. I The question before us is not of first impression. The identical issue was confronted in which determinedcontrary to the instant decisionthat it was constitutionally impermissible to admit evidence obtained in violation of the Fourth Amendment to rebut a defendant's response to a matter first raised during the Government's cross-examination. Subsequently, affirmed the introduction of unlawfully acquired evidence to impeach an accused's false assertions about previous conduct that had been offered during direct testimony. But Walder took pains to draw the distinction between its own holding and Agnello, noting that "the defendant [Walder] went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping 630 [and untrue] claim that he had never dealt in or possessed any narcotics." In "shar[p] contras[t]," in Agnello, "the Government tried to smuggle [the tainted evidence] in on cross-examination," and "elicit[ed] the expected denial." The Court's recent decisions have left Agnello undisturbed. allowed the government to use inadmissible uncounseled statements to impeach direct examination. So, too, reaffirmed Harris in the context of impeachment of the defendant's direct testimony. Significantly, neither decision intimated that Agnello had lost vitality, or that the distinction emphasized by Walder had been effaced. The Court's opinion attempts to discredit Agnello by casting a strawman as its holding, and then demolishing the pitiful scarecrow of its own creation. Specifically, the Court cites Agnello's quotation of language from Silverthorne Lumber that "illegally seized evidence `shall not be used at all,'" ante, at 624, and then refers to the subsequent decisions that indeed permit limited use of that evidence for impeachment. But the actual principle of Agnello, as discerned by Walder, is that the Government may not employ its power of cross-examination to predicate the admission of illegal evidence. In other words, impeachment by cross-examination aboutor introduction of suppressible evidence must be warranted by defendant's statements upon direct questioning. That principle is not at all inconsistent with later cases holding that the defendant may not take advantage of evidentiary suppression to advance specific perjurious claims as part of his direct case. Nor is it correct to read Agnello as turning upon the tenuity of the link between the cross-examination involved there and the subject matter of the direct examination. Ante, at 625. The cross-examination about Agnello's previous connection with cocaine was reasonably related to his direct testimony that he lacked knowledge that the commodity he was transporting 631 was cocaine. -30. For "[t]he possession by Frank Agnello of the can of cocaine which was seized tended to show guilty knowledge and criminal intent on his part." Thus, the constitutional flaw found in Agnello was that the introduction of the tainted evidence had been prompted by statements of the accused first elicited upon cross-examination. And the case was so read in That decision specifically stated that a defendant "must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief." Since as a matter of the law of evidence it would be perfectly permissible to cross-examine a defendant as to his denial of complicity in the crime, the quoted passage in Walder must be understood to impose a further condition before the prosecutor may refer to tainted evidencethat is, some particular direct testimony by the accused that relies upon "the Government's disability to challenge his credibility." In fact, the Court's current interpretation of Agnello and Walder simply trivializes those decisions by transforming their Fourth Amendment holdings into nothing more than a constitutional reflection of the common-law evidentiary rule of relevance. Finally, the rationale of and does not impel the decision at hand. The exclusionary rule exception established by Harris and may be fairly easily cabined by defense counsel's willingness to forgo certain areas of questioning. But the rule prescribed by the Court in this case passes control of the exception to the Government, since the prosecutor can lay the predicate for admitting otherwise suppressible evidence with his own questioning. To be sure, the Court requires that cross-examination be "proper"; however, traditional evidentiary principles accord parties fairly considerable latitude in cross-examining 632 opposing witnesses. See C. McCormick, Law of Evidence 21-24 (2d ed. 1972).[1] In practical terms, therefore, today's holding allows even the moderately talented prosecutor to "work in evidence on cross-examination [as it would] in its case in chief." To avoid this consequence, a defendant will be compelled to forgo testifying on his own behalf. "[T]he Constitution guarantees a defendant the fullest opportunity to meet the accusation against him." ; see Regrettably, surrender of that guarantee is the price the Court imposes for the defendant to claim his right not to be convicted on the basis of evidence obtained in violation of the Constitution.[2] I cannot agree that one constitutional privilege must be purchased at the expense of another. II The foregoing demonstration of its break with precedent provides a sufficient ground to condemn the present ruling unleashing, as it does, a hitherto relatively confined exception to the exclusionary rule. But I have a more fundamental difference with the Court's holding here, which culminates 633 the approach taken in and For this sequence of decisions undercuts the constitutional canon that convictions cannot be procured by governmental lawbreaking. See -232 ; -725 "`[I]t is monstrous that courts should aid or abet the lawbreaking police officer.'" quoting And what is especially troubling about these cases is the mode of analysis employed by the Court. In each, the judgment that tainted evidence may be admitted has been bottomed upon a determination that the "incremental furthering" of constitutional ends would not be sufficient to warrant exclusion of otherwise probative evidence. Ante, at 627; see ; Of course, "[t]here is no gainsaying that arriving at the truth is a fundamental goal of our legal system." Ante, at 626. But it is also undeniable that promotion of that objective must be consonant with other ends, in particular those enshrined in our Constitution. I still hope that the Court would not be prepared to acquiesce in torture or other police conduct that "shocks the conscience" even if it demonstrably advanced the factfinding process. At any rate, what is important is that the Constitution does not countenance police misbehavior, even in the pursuit of truth. The processes of our judicial system may not be fueled by the illegalities of government authorities. See, e. g., Nevertheless, the Court has undertaken to strike a "balance" between the "policies" it finds in the Bill of Rights and the "competing interes[t]" in accurate trial determinations. Ante, at 627. This balancing effort is completely freewheeling. Far from applying criteria intrinsic to the Fourth and Fifth Amendments, the Court resolves succeeding cases simply by declaring that so much exclusion is enough to deter *634 Police misconduct. Ante, at 626, 627; see ; ; cf. ; United v. Calandra, That hardly conforms to the disciplined analytical method described as "legal reasoning," through which judges endeavor to formulate or derive principles of decision that can be applied consistently and predictably. Ultimately, I fear, this ad hoc approach to the exclusionary rule obscures the difference between judicial decisionmaking and legislative or administrative policymaking. More disturbingly, by treating Fourth and Fifth Amendment privileges as mere incentive schemes, the Court denigrates their unique status as constitutional protections. Yet the efficacy of the Bill of Rights as the bulwark of our national liberty depends precisely upon public appreciation of the special character of constitutional prescriptions. The Court is charged with the responsibility to enforce constitutional guarantees; decisions such as today's patently disregard that obligation. Accordingly, I dissent.
Justice Breyer	majority	false	Sprint Communications Co. v. APCC SERVICES	2008-06-23T00:00:00	null	https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/	https://www.courtlistener.com/api/rest/v3/clusters/145783/	2,008	2007-065	2	5	4	The question before us is whether an assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor. Because history and precedent make clear that such an assignee has long been permitted to bring suit, we conclude that the assignee does have standing. 2534 I When a payphone customer makes a long-distance call with an access code or 1-800 number issued by a long-distance communications carrier, the customer pays the carrier (which completes that call), but not the payphone operator (which connects that call to the carrier in the first place). In these circumstances, the long-distance carrier is required to compensate the payphone operator for the customer's call. See 47 U.S.C. § 226; 47 CFR § 64.1300 (2007). The payphone operator can sue the long-distance carrier in court for any compensation that the carrier fails to pay for these "dial-around" calls. And many have done so. See Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc., 550 U.S. ___, 127 S. Ct. 1513, 167 L. Ed. 2d 422 (2007) (finding that the Communications Act of 1934 authorizes such suits). Because litigation is expensive, because the evidentiary demands of a single suit are often great, and because the resulting monetary recovery is often small, many payphone operators assign their dial-around claims to billing and collection firms called "aggregators" so that, in effect, these aggregators can bring suit on their behalf. See Brief for Respondents 3. Typically, an individual aggregator collects claims from different payphone operators; the aggregator promises to remit to the relevant payphone operator (i.e., the assignor of the claim) any dial-around compensation that is recovered; the aggregator then pursues the claims in court or through settlement negotiations; and the aggregator is paid a fee for this service. The present litigation involves a group of aggregators who have taken claim assignments from approximately 1,400 payphone operators. Each payphone operator signed an Assignment and Power of Attorney Agreement (Agreement) in which the payphone operator "assigns, transfers and sets over to [the aggregator] for purposes of collection all rights, title and interest of the [payphone operator] in the [payphone operator's] claims, demands or causes of action for `Dial-Around Compensation' ... due the [payphone operator] for periods since October 1, 1997." App. to Pet. for Cert. 114a. The Agreement also "appoints" the aggregator as the payphone operator's "true and lawful attorney-in-fact." Ibid. The Agreement provides that the aggregator will litigate "in the [payphone operator's] interest." Id., at 115a. And the Agreement further stipulates that the assignment of the claims "may not be revoked without the written consent of the [aggregator]." Ibid. The aggregator and payphone operator then separately agreed that the aggregator would remit all proceeds to the payphone operator and that the payphone operator would pay the aggregator for its services (typically via a quarterly charge). After signing the agreements, the aggregators (respondents here) filed lawsuits in federal court seeking dial-around compensation from Sprint, AT & T, and other long-distance carriers (petitioners here). AT & T moved to dismiss the claims, arguing that the aggregators lack standing to sue under Article III of the Constitution. The District Court initially agreed to dismiss, APCC Servs., Inc. v. AT & T Corp., 254 F. Supp. 2d 135, 140-141 (DC 2003), but changed its mind in light of a "long line of cases and legal treatises that recognize a well-established principle that assignees for collection purposes are entitled to bring suit where [as here] the assignments transfer absolute title to the claims." APCC Servs., Inc. v. AT & T Corp., 281 F. Supp. 2d 41, 45 (DC 2003). After consolidating similar cases, a divided panel of the Court of Appeals for the District of Columbia Circuit agreed that 2535 the aggregators have standing to sue, but held that the relevant statutes do not create a private right of action. APCC Servs., Inc. v. Sprint Communications Co., 418 F.3d 1238 (2005) (per curiam). This Court granted the aggregators' petition for certiorari on the latter statutory question, vacated the judgment, and remanded the case for reconsideration in light of Global Crossing, supra. APCC Services, Inc. v. Sprint Communications Co., 550 U.S. ___, 127 S. Ct. 2094, 167 L. Ed. 2d 811 (2007). On remand, the Court of Appeals affirmed the orders of the District Court allowing the litigation to go forward. 489 F.3d 1249, 1250 (2007) (per curiam). The long-distance carriers then asked us to consider the standing question. We granted certiorari, and we now affirm. II We begin with the most basic doctrinal principles: Article III, § 2, of the Constitution restricts the federal "judicial Power" to the resolution of "Cases" and "Controversies." That case-or-controversy requirement is satisfied only where a plaintiff has standing. See, e.g., Daimler-Chrysler Corp. v. Cuno, 547 U.S. 332, 126 S. Ct. 1854, 164 L. Ed. 2d 589 (2006). And in order to have Article III standing, a plaintiff must adequately establish: (1) an injury in fact (i.e., a "concrete and particularized" invasion of a "legally protected interest"); (2) causation (i.e., a "`fairly ... trace[able]'" connection between the alleged injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is "`likely'" and not "merely `speculative'" that the plaintiff's injury will be remedied by the relief plaintiff seeks in bringing suit). Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) (calling these the "irreducible constitutional minimum" requirements). In some sense, the aggregators clearly meet these requirements. They base their suit upon a concrete and particularized "injury in fact," namely, the carriers' failure to pay dial-around compensation. The carriers "caused" that injury. And the litigation will "redress" that injury if the suits are successful, the long-distance carriers will pay what they owe. The long-distance carriers argue, however, that the aggregators lack standing because it was the payphone operators (who are not plaintiffs), not the aggregators (who are plaintiffs), who were "injured in fact" and that it is the payphone operators, not the aggregators, whose injuries a legal victory will truly "redress": The aggregators, after all, will remit all litigation proceeds to the payphone operators. Brief for Petitioners 18. Thus, the question before us is whether, under these circumstances, an assignee has standing to pursue the assignor's claims for money owed. We have often said that history and tradition offer a meaningful guide to the types of cases that Article III empowers federal courts to consider. See, e.g., Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 102, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998) ("We have always taken [the case-or-controversy requirement] to mean cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process" (emphasis added)); GTE Sylvania, Inc. v. Consumers Union of United States, Inc., 445 U.S. 375, 382, 100 S. Ct. 1194, 63 L. Ed. 2d 467 (1980) ("The purpose of the case-or-controversy requirement is to limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process" (emphasis added and internal quotation marks omitted)); cf. Coleman v. Miller, 307 U.S. 433, 460, 59 S. Ct. 972, 83 L. Ed. 1385 (1939) (opinion of Frankfurter, J.) (in crafting Article III, 2536 "the framers ... gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union"). Consequently, we here have carefully examined how courts have historically treated suits by assignors and assignees. And we have discovered that history and precedent are clear on the question before us: Assignees of a claim, including assignees for collection, have long been permitted to bring suit. A clear historical answer at least demands reasons for change. We can find no such reasons here, and accordingly we conclude that the aggregators have standing. A We must begin with a minor concession. Prior to the 17th century, English law would not have authorized a suit like this one. But that is because, with only limited exceptions, English courts refused to recognize assignments at all. See, e.g., Lampet's Case, 10 Co. Rep. 46b, 48a, 77 Eng. Rep. 994, 997 (K.B.1612) (stating that "no possibility, right, title, nor thing in action, shall be granted or assigned to strangers" (footnote omitted)); Penson & Highbed's Case, 4 Leo. 99, 74 Eng. Rep. 756 (K.B. 1590) (refusing to recognize the right of an assignee of a right in contract); see also 9 J. Murray, Corbin on Contracts § 47.3, p. 134 (rev. ed.2007) (noting that the King was excepted from the basic rule and could, as a result, always receive assignments). Courts then strictly adhered to the rule that a "chose in action" an interest in property not immediately reducible to possession (which, over time, came to include a financial interest such as a debt, a legal claim for money, or a contractual right) simply "could not be transferred to another person by the strict rules of the ancient common law." See 2 W. Blackstone, Commentaries 442. To permit transfer, the courts feared, would lead to the "multiplying of contentions and suits," Lampet's Case, supra, at 48a, 77 Eng. Rep., at 997, and would also promote "maintenance," i.e., officious intermeddling with litigation, see Holdsworth, History of the Treatment of Choses in Action by the Common Law, 33 Harv. L.Rev. 997, 1006-1009 (1920). As the 17th century began, however, strict anti-assignment rules seemed inconsistent with growing commercial needs. And as English commerce and trade expanded, courts began to liberalize the rules that prevented assignments of choses in action. See 9 Corbin, supra, § 47.3, at 134 (suggesting that the "pragmatic necessities of trade" induced "evolution of the common law"); Holdsworth, supra, at 1021-1022 (the "common law" was "induced" to change because of "considerations of mercantile convenience or necessity"); J. Ames, Lectures on Legal History 214 (1913) (noting that the "objection of maintenance" yielded to "the modern commercial spirit"). By the beginning of the 18th century, courts routinely recognized assignments of equitable (but not legal) interests in a chose in action: Courts of equity permitted suits by an assignee who had equitable (but not legal) title. And courts of law effectively allowed suits either by the assignee (who had equitable, but not legal title) or the assignor (who had legal, but not equitable title). To be more specific, courts of equity would simply permit an assignee with a beneficial interest in a chose in action to sue in his own name. They might, however, require the assignee to bring in the assignor as a party to the action so as to bind him to whatever judgment was reached. See, e.g., Warmstrey v. Tanfield, 1 Ch. Rep. 29, 21 Eng. Rep. 498 (1628-1629); Fashion v. Atwood, 2 Ch. Cas. 36, 22 Eng. Rep. 835 (1688); Peters v. Soame, 2537 2 Vern. 428, 428-429, 23 Eng. Rep. 874 (Ch. 1701); Squib v. Wyn, 1 P. Wms. 378, 381, 24 Eng. Rep. 432, 433 (Ch. 1717); Lord Carteret v. Paschal, 3 P. Wms. 197, 199, 24 Eng. Rep. 1028, 1029 (Ch. 1733); Row v. Dawson, 1 Ves. sen. 331, 332-333, 27 Eng. Rep. 1064, 1064-1065 (Ch. 1749). See also M. Smith, Law of Assignment: The Creation and Transfer of Choses in Action 131 (2007) (by the beginning of the 18th century, "it became settled that equity would recognize the validity of the assignment of both debts and of other things regarded by the common law as choses in action"). Courts of law, meanwhile, would permit the assignee with an equitable interest to bring suit, but nonetheless required the assignee to obtain a "power of attorney" from the holder of the legal title, namely, the assignor, and further required the assignee to bring suit in the name of that assignor. See, e.g., Cook, Alienability of Choses in Action, 29 Harv. L.Rev. 816, 822 (1916) ("[C]ommon law lawyers were able, through the device of the `power of attorney'... to enable the assignee to obtain relief in common law proceedings by suing in the name of the assignor"); 29 R. Lord, Williston on Contracts § 74.2, pp. 214-215 (4th ed.2003). Compare, e.g., Barrow v. Gray, Cro. Eliz. 551, 78 Eng. Rep. 797 (Q.B.1653), and South & Marsh's Case, 3 Leo. 234, 74 Eng. Rep. 654 (Exch.1686) (limiting the use of a power of attorney to cases in which the assignor owed the assignee a debt), with Holdsworth, supra, at 1021 (noting that English courts abandoned that limitation by the end of the 18th century). At the same time, courts of law would permit an assignor to sue even when he had transferred away his beneficial interest. And they permitted the assignor to sue in such circumstances precisely because the assignor retained legal title. See, e.g., Winch v. Keeley, 1 T.R. 619, 99 Eng. Rep. 1284 (K.B.1787) (allowing the bankrupt assignor of a chose in action to sue a debtor for the benefit of the assignee because the assignor possessed legal, though not equitable, title). The upshot is that by the time Blackstone published volume II of his Commentaries in 1766, he could dismiss the "ancient common law" prohibition on assigning choses in action as a "nicety ... now disregarded." 2 Blackstone, supra, at 442. B Legal practice in the United States largely mirrored that in England. In the latter half of the 18th century and throughout the 19th century, American courts regularly "exercised their powers in favor of the assignee," both at law and in equity. 9 Corbin on Contracts § 47.3, at 137. See, e.g., McCullum v. Coxe, 1 Dall. 139, 1 L. Ed. 72 (Pa.1785) (protecting assignee of a debt against a collusive settlement by the assignor); Dennie v. Chapman, 1 Root 113, 115 (Conn.Super.1789) (assignee of a nonnegotiable note can bring suit "in the name of the original promisee or his administrator"); Andrews v. Beecker, 1 Johns. Cas. 411, 411-412, n. (N.Y.Sup. 1800) ("Courts of law ... are, in justice, bound to protect the rights of the assignees, as much as a court of equity, though they may still require the action to be brought in the name of the assignor"); Riddle & Co. v. Mandeville, 5 Cranch 322, 3 L. Ed. 114 (1809) (assignees of promissory notes entitled to bring suit in equity). Indeed, § 11 of the Judiciary Act of 1789 specifically authorized federal courts to take "cognizance of any suit to recover the contents of any promissory note or other chose in action in favour of an assignee" so long as federal jurisdiction would lie if the assignor himself had brought suit. 1 Stat. 79. 2538 Thus, in 1816, Justice Story, writing for a unanimous Court, summarized the practice in American courts as follows: "Courts of law, following in this respect the rules of equity, now take notice of assignments of choses in action, and exert themselves to afford them every support and protection." Welch v. Mandeville, 1 Wheat. 233, 236, 4 L. Ed. 79. He added that courts of equity have "disregarded the rigid strictness of the common law, and protected the rights of the assignee of choses in action," and noted that courts of common law "now consider an assignment of a chose in action as substantially valid, only preserving, in certain cases, the form of an action commenced in the name of the assignor." Id., at 237, n. It bears noting, however, that at the time of the founding (and in some States well before then) the law did permit the assignment of legal title to at least some choses in action. In such cases, the assignee could bring suit on the assigned claim in his own name, in a court of law. See, e.g., 3 Va. Stat. at Large 378, Ch. XXXIV (W. Hening ed. 1823) (reprinted 1969) (Act of Oct. 1705) (permitting any person to "assign or transfer any bond or bill for debt over to any other person" and providing that "the asignee or assignees, his and their executors and administrators by virtue of such assignment shall and may have lawful power to commence and prosecute any suit at law in his or their own name or names"); Act of May 28, 1715, Ch. XXVIII, Gen. Laws of Penn. 60 (J. Dunlop 2d ed. 1849) (permitting the assignment of "bonds, specialties, and notes" and authorizing "the person or persons, to whom the said bonds, specialties or notes, are ... assigned" to "commence and prosecute his, her, or their actions at law"); Patent Act of 1793, ch. 11, § 4, 1 Stat. 322 ("[I]t shall be lawful for any inventor, his executor or administrator to assign the title and interest in the said invention, at anytime, and the assignee ... shall thereafter stand in the place of the original inventor, both as to right and responsibility"). C By the 19th century, courts began to consider the specific question presented here: whether an assignee of a legal claim for money could sue when that assignee had promised to give all litigation proceeds back to the assignor. During that century American law at the state level became less formalistic through the merger of law and equity, through statutes more generously permitting an assignor to pass legal title to an assignee, and through the adoption of rules that permitted any "real party in interest" to bring suit. See 6A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1541, pp. 320-321 (2d ed.1990) (hereinafter Wright & Miller); see also 9 Corbin, supra, § 47.3, at 137. The courts recognized that pre-existing law permitted an assignor to bring suit on a claim even though the assignor retained nothing more than naked legal title. Since the law increasingly permitted the transfer of legal title to an assignee, courts agreed that assignor and assignee should be treated alike in this respect. And rather than abolish the assignor's well-established right to sue on the basis of naked legal title alone, many courts instead extended the same right to an assignee. See, e.g., Clark & Hutchins, The Real Party in Interest, 34 Yale L.J. 259, 264-265 (1925) (noting that the changes in the law permitted both the assignee with "naked legal title" and the assignee with an equitable interest in a claim to bring suit). Thus, during the 19th century, most state courts entertained suits virtually identical to the litigation before us: suits by individuals who were assignees for collection 2539 only, i.e., assignees who brought suit to collect money owed to their assignors but who promised to turn over to those assignors the proceeds secured through litigation. See, e.g., Webb & Hepp v. Morgan, McClung & Co., 14 Mo. 428, 431 (1851) (holding that the assignees of a promissory note for collection only can bring suit, even though they lack a beneficial interest in the note, because the assignment "creates in them such legal interest, that they thereby become the persons to sue"); Meeker v. Claghorn, 44 N.Y. 349, 350, 353 (1871) (allowing suit by the assignee of a cause of action even though the assignors "`expected to receive the amount recovered in the action,'" because the assignee, as "legal holder of the claim," was "the real party in interest"); Searing v. Berry, 58 Iowa 20, 23, 24, 11 N.W. 708, 709 (1882) (where legal title to a judgment was assigned "merely for the purpose of enabling plaintiff to enforce the collection" and the assignor in fact retained the beneficial interest, the plaintiff-assignee could "prosecute this suit to enforce the collection of the judgment"); Grant v. Heverin, 77 Cal. 263, 265, 19 P. 493 (1888) (holding that the assignee of a bond could bring suit, even though he lacked a beneficial interest in the bond, and adopting the rule that an assignee with legal title to an assigned claim can bring suit even where the assignee must "account to the assignor" for "a part of the proceeds" or "is to account for the whole proceeds" (internal quotation marks omitted)); McDaniel v. Pressler, 3 Wash. 636, 638, 637, 29 P. 209, 210 (1892) (holding that the assignee of promissory notes was the real party in interest, even though the assignment was "for the purpose of collection" and the assignee had "no interest other than that of the legal holder of said notes"); Wines v. Rio Grande W.R. Co., 9 Utah 228, 235, 33 P. 1042, 1044, 1045 (1893) (holding that an assignee could bring suit based on causes of action assigned to him "simply to enable him to sue" and who "would turn over to the assignors all that was recovered in the action, after deducting [the assignors'] proportion of the expenses of the suit"); Gomer v. Stockdale, 5 Colo. App. 489, 492, 39 P. 355, 357, 356 (1895) (permitting suit by a party who was assigned legal title to contractual rights, where the assignor retained the beneficial interest, noting that the doctrine that "prevails in Colorado" is that the assignee may bring suit in his own name "although there may be annexed to the transfer the condition that when the sum is collected the whole or some part of it must be paid over to the assignor"). See also Appendix, infra (collecting cases from numerous other States approving of suits by assignees for collection). Of course, the dissent rightly notes, some States during this period of time refused to recognize assignee-for-collection suits, or otherwise equivocated on the matter. See post, at 2555-2556. But so many States allowed these suits that by 1876, the distinguished procedure and equity scholar John Norton Pomeroy declared it "settled by a great preponderance of authority, although there is some conflict" that an assignee is "entitled to sue in his own name" whenever the assignment vests "legal title" in the assignee, and notwithstanding "any contemporaneous, collateral agreement by virtue of which he is to receive a part only of the proceeds ... or even is to thus account [to the assignor] for the whole proceeds." Remedies and Remedial Rights § 132, p. 159 (internal quotation marks omitted and emphasis added). Other contemporary scholars reached the same basic conclusion. See, e.g., P. Bliss, A Treatise upon the Law of Pleading § 51, p. 69 (2d ed. 1887) (stating that "[m]ost of the courts have held that where negotiable paper has been indorsed, 2540 or other choses in action have been assigned, it does not concern the defendant for what purpose the transfer has been made" and giving examples of States permitting assignees to bring suit even where they lacked a beneficial interest in the assigned claims (emphasis added)). See also Clark & Hutchins, supra, at 264 ("many, probably most, American jurisdictions" have held that "an assignee who has no beneficial interest, like an assignee for collection only, may prosecute an action in his own name" (emphasis added)). Even Michael Ferguson's California Law Review Comment which the dissent cites as support for its argument about "the divergent practice" among the courts, post, at 2556 recognizes that "[a] majority of courts has held that an assignee for collection only is a real party in interest" entitled to bring suit. See Comment, The Real Party in Interest Rule Revitalized: Recognizing Defendant's Interest in the Determination of Proper Parties Plaintiff, 55 Cal. L.Rev. 1452, 1475 (1967) (emphasis added); see also id., at 1476, n. 118 (noting that even "[t]he few courts that have wavered on the question have always ended up in the camp of the majority" (emphasis added)). During this period, a number of federal courts similarly indicated approval of suits by assignees for collection only. See, e.g., Bradford v. Jenks, 3 F. Cas. 1132, 1134 (No. 1,769) (CC Ill. 1840) (stating that the plaintiff, the receiver of a bank, could bring suit in federal court to collect on a note owed to that bank if he sued as the bank's assignee, not its receiver, but ultimately holding that the plaintiff could not sue as an assignee because there was no diversity jurisdiction); Orr v. Lacy, 18 F. Cas. 834 (No. 10,589) (CC Mich. 1847) (affirming judgment for the plaintiff, the endorsee of a bill of exchange, on the ground that, as endorsee, he had the "legal right" to bring suit notwithstanding the fact that the proceeds of the litigation would be turned over to the endorser); Murdock v. The Emma Graham, 17 F. Cas. 1012, 1013 (No. 9,940) (DC SD Ohio 1878) (permitting the assignee of a claim for injury to a "float or barge" to bring suit when, "under the assignment," the assignor's creditors would benefit from the litigation); The Rupert City, 213 F. 263, 266-267 (W.D.Wash.1914) (assignees of claims for collection only could bring suit in maritime law because "an assignment for collection ... vest[s] such an interest in [an] assignee as to entitle him to sue"). Even this Court long ago indicated that assignees for collection only can properly bring suit. For example, in Waite v. Santa Cruz, 184 U.S. 302, 22 S. Ct. 327, 46 L. Ed. 552 (1902), the plaintiff sued to collect on a number of municipal bonds and coupons whose "legal title" had been vested in him but which were transferred to him "for collection only." Id., at 324, 22 S. Ct. 327. The Court, in a unanimous decision, ultimately held that the federal courts could not hear his suit because the amount-in-controversy requirement of diversity jurisdiction would not have been satisfied if the bondholders and coupon holders had sued individually. See id., at 328-329, 22 S. Ct. 327. However, before reaching this holding, the Court expressly stated that the suit could properly be brought in federal court "if the only objection to the jurisdiction of the Circuit Court is that the plaintiff was invested with the legal title to the bonds and coupons simply for purposes of collection." Id., at 325, 22 S. Ct. 327. Next, in Spiller v. Atchison, T. & S.F.R. Co., 253 U.S. 117, 40 S. Ct. 466, 64 L. Ed. 810 (1920), a large number of cattle shippers assigned to Spiller (the secretary of a Cattle Raiser's Association) their individual reparation claims against railroads they said had charged them excessive rates. 2541 The Federal Court of Appeals held that Spiller could not bring suit because, in effect, he was an assignee for collection only and would be passing back to the cattle shippers any money he recovered from the litigation. In a unanimous decision, this Court reversed. The Court wrote that the cattle shippers' "assignments were absolute in form" and "plainly" "vest[ed] the legal title in Spiller." Id., at 134, 40 S. Ct. 466. The Court conceded that the assignments did not pass "beneficial or equitable title" to Spiller. Ibid. But the Court then said that "this was not necessary to support the right of the assignee to claim an award of reparation and enable him to recover it by action at law brought in his own name but for the benefit of the equitable owners of the claims." Ibid. The Court thereby held that Spiller's legal title alone was sufficient to allow him to bring suit in federal court on the aggregated claims of his assignors. Similarly, in Titus v. Wallick, 306 U.S. 282, 59 S. Ct. 557, 83 L. Ed. 653 (1939), this Court unanimously held that (under New York law) a plaintiff, an assignee for collection, had "dominion over the claim for purposes of suit" because the assignment purported to "`sell, assign, transfer and set over' the chose in action" to the assignee. Id., at 289, 59 S. Ct. 557. More importantly for present purposes, the Court said that the assignment's "legal effect was not curtailed by the recital that the assignment was for purposes of suit and that its proceeds were to be turned over or accounted for to another." Ibid. To be clear, we do not suggest that the Court's decisions in Waite, Spiller, and Titus conclusively resolve the standing question before us. We cite them because they offer additional and powerful support for the proposition that suits by assignees for collection have long been seen as "amenable" to resolution by the judicial process. Steel Co., 523 U.S., at 102, 118 S. Ct. 1003. Finally, we note that there is also considerable, more recent authority showing that an assignee for collection may properly sue on the assigned claim in federal court. See, e.g., 6A Wright & Miller § 1545, at 346-348 (noting that an assignee with legal title is considered to be a real party in interest and that as a result "federal courts have held that an assignee for purposes of collection who holds legal title to the debt according to the governing substantive law is the real party in interest even though the assignee must account to the assignor for whatever is recovered in the action"); 6 Am.Jur.2d, Assignments § 184, pp. 262-263 (1999) ("An assignee for collection or security only is within the meaning of the real party in interest statutes and entitled to sue in his or her own name on an assigned account or chose in action, although he or she must account to the assignor for the proceeds of the action, even when the assignment is without consideration" (footnote omitted)). See also Rosenblum v. Dingfelder, 111 F.2d 406, 407 (C.A.2 1940); Staggers v. Otto Gerdau Co., 359 F.2d 292, 294 (C.A.2 1966); Dixie Portland Flour Mills, Inc. v. Dixie Feed & Seed Co., 382 F.2d 830, 833 (C.A.6 1967); Klamath-Lake Pharmaceutical Assn. v. Klamath Medical Serv. Bur., 701 F.2d 1276, 1282 (C.A.9 1983). D The history and precedents that we have summarized make clear that courts have long found ways to allow assignees to bring suit; that where assignment is at issue, courts both before and after the founding have always permitted the party with legal title alone to bring suit; and that there is a strong tradition specifically of suits by assignees for collection. We find this history and precedent "well nigh 2542 conclusive" in respect to the issue before us: Lawsuits by assignees, including assignees for collection only, are "cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process." Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 777-778, 120 S. Ct. 1858, 146 L. Ed. 2d 836 (2000) (internal quotation marks omitted). III Petitioners have not offered any convincing reason why we should depart from the historical tradition of suits by assignees, including assignees for collection. In any event, we find that the assignees before us satisfy the Article III standing requirements articulated in more modern decisions of this Court. Petitioners argue, for example, that the aggregators have not themselves suffered any injury in fact and that the assignments for collection "do not suffice to transfer the payphone operators' injuries." Brief for Petitioners 18. It is, of course, true that the aggregators did not originally suffer any injury caused by the long-distance carriers; the payphone operators did. But the payphone operators assigned their claims to the aggregators lock, stock, and barrel. See APCC Servs., 418 F.3d, at 1243 (there is "no reason to believe the assignment is anything less than a complete transfer to the aggregator" of the injury and resulting claim); see also App. to Pet. for Cert. 114a (Agreement provides that each payphone operator "assigns, transfers and sets over" to the aggregator "all rights, title and interest" in dial-around compensation claims). And within the past decade we have expressly held that an assignee can sue based on his assignor's injuries. In Vermont Agency, supra, we considered whether a qui tam relator possesses Article III standing to bring suit under the False Claims Act, which authorizes a private party to bring suit to remedy an injury (fraud) that the United States, not the private party, suffered. We held that such a relator does possess standing. And we said that is because the Act "effect[s] a partial assignment of the Government's damages claim" and that assignment of the "United States' injury in fact suffices to confer standing on [the relator]." Id., at 773, 774, 120 S. Ct. 1858. Indeed, in Vermont Agency we stated quite unequivocally that "the assignee of a claim has standing to assert the injury in fact suffered by the assignor." Id., at 773, 120 S. Ct. 1858. Petitioners next argue that the aggregators cannot satisfy the redressability requirement of standing because, if successful in this litigation, the aggregators will simply remit the litigation proceeds to the payphone operators. But petitioners misconstrue the nature of our redressability inquiry. That inquiry focuses, as it should, on whether the injury that a plaintiff alleges is likely to be redressed through the litigation not on what the plaintiff ultimately intends to do with the money he recovers. See, e.g., id., at 771, 120 S. Ct. 1858 (to demonstrate redressability, the plaintiff must show a "substantial likelihood that the requested relief will remedy the alleged injury in fact" (internal quotation marks omitted and emphasis added)); Lujan, 504 U.S., at 561, 112 S. Ct. 2130 ("[I]t must be likely ... that the injury will be redressed by a favorable decision" (internal quotation marks omitted and emphasis added)). Here, a legal victory would unquestionably redress the injuries for which the aggregators bring suit. The aggregators' injuries relate to the failure to receive the required dial-around compensation. And if the aggregators prevail in this litigation, the long-distance carriers would write a check to the aggregators for the amount of dial-around compensation 2543 owed. What does it matter what the aggregators do with the money afterward? The injuries would be redressed whether the aggregators remit the litigation proceeds to the payphone operators, donate them to charity, or use them to build new corporate headquarters. Moreover, the statements our prior cases made about the need to show redress of the injury are consistent with what numerous authorities have long held in the assignment context, namely, that an assignee for collection may properly bring suit to redress the injury originally suffered by his assignor. Petitioners might disagree with those authorities. But petitioners have not provided us with a good reason to reconsider them. The dissent argues that our redressability analysis "could not be more wrong," because "[w]e have never approved federal-court jurisdiction over a claim where the entire relief requested will run to a party not before the court. Never." Post, at 2551 (opinion of ROBERTS, C. J.). But federal courts routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit. Trustees bring suits to benefit their trusts; guardians ad litem bring suits to benefit their wards; receivers bring suit to benefit their receiverships; assignees in bankruptcy bring suit to benefit bankrupt estates; executors bring suit to benefit testator estates; and so forth. The dissent's view of redressability, if taken seriously, would work a sea change in the law. Moreover, to the extent that trustees, guardians ad litem, and the like have some sort of "obligation" to the parties whose interests they vindicate through litigation, see post, at 2552-2553, n. 2, the same is true in respect to the aggregators here. The aggregators have a contractual obligation to litigate "in the [payphone operator's] interest." App. to Pet. for Cert. 115a. (And if the aggregators somehow violate that contractual obligation, say, by agreeing to settle the claims against the long-distance providers in exchange for a kickback from those providers, each payphone operator would be able to bring suit for breach of contract.) Petitioners also make a further conceptual argument. They point to cases in which this Court has said that a party must possess a "personal stake" in a case in order to have standing under Article III. See Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). And petitioners add that, because the aggregators will not actually benefit from a victory in this case, they lack a "personal stake" in the litigation's outcome. The problem with this argument is that the general "personal stake" requirement and the more specific standing requirements (injury in fact, redressability, and causation) are flip sides of the same coin. They are simply different descriptions of the same judicial effort to assure, in every case or controversy, "that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination." Ibid. See also Massachusetts v. EPA, 549 U.S. ___, ___, 127 S. Ct. 1438, 1453, 167 L. Ed. 2d 248 (2007) ("At bottom, the gist of the question of standing is whether petitioners have such a personal stake in the outcome of the controversy as to assure that concrete adverseness" (internal quotation marks omitted)). Courts, during the past two centuries, appear to have found that "concrete adverseness" where an assignee for collection brings a lawsuit. And petitioners have provided us with no grounds for reaching a contrary conclusion. Petitioners make a purely functional argument, as well. Read as a whole, they say, the assignments in this litigation constitute nothing more than a contract for legal services. We think this argument is overstated. There is an important distinction 2544 between simply hiring a lawyer and assigning a claim to a lawyer (on the lawyer's promise to remit litigation proceeds). The latter confers a property right (which creditors might attach); the former does not. Finally, we note, as a practical matter, that it would be particularly unwise for us to abandon history and precedent in resolving the question before us. Were we to agree with petitioners that the aggregators lack standing, our holding could easily be overcome. For example, the Agreement could be rewritten to give the aggregator a tiny portion of the assigned claim itself, perhaps only a dollar or two. Or the payphone operators might assign all of their claims to a "Dial-Around Compensation Trust" and then pay a trustee (perhaps the aggregator) to bring suit on behalf of the trust. Accordingly, the far more sensible course is to abide by the history and tradition of assignee suits and find that the aggregators possess Article III standing. IV Petitioners argue that, even if the aggregators have standing under Article III, we should nonetheless deny them standing for a number of prudential reasons. See Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004) (prudential standing doctrine "embodies judicially self-imposed limits on the exercise of federal jurisdiction" (internal quotation marks omitted)). First, petitioners invoke certain prudential limitations that we have imposed in prior cases where a plaintiff has sought to assert the legal claims of third parties. See, e.g., Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975) (expressing a "reluctance to exert judicial power when the plaintiff's claim to relief rests on the legal rights of third parties"); Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 263, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977) ("In the ordinary case, a party is denied standing to assert the rights of third persons"); Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 955, 104 S. Ct. 2839, 81 L. Ed. 2d 786 (1984) (a plaintiff ordinarily "`cannot rest his claim to relief on the legal rights or interests of third parties'"). These third-party cases, however, are not on point. They concern plaintiffs who seek to assert not their own legal rights, but the legal rights of others. See, e.g., Warth, supra, at 499, 95 S. Ct. 2197 (plaintiff "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties" (emphasis added)); see also Kowalski v. Tesmer, 543 U.S. 125, 125 S. Ct. 564, 160 L. Ed. 2d 519 (2004) (lawyers lack standing to assert the constitutional rights of defendants deprived of appointed counsel on appeal); Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) (permitting a criminal defendant to assert rights of juror discriminated against because of race); Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976) (permitting beer vendors to assert rights of prospective male customers aged 18 to 21 who, unlike females of the same ages, were barred from purchasing beer). Here, the aggregators are suing based on injuries originally suffered by third parties. But the payphone operators assigned to the aggregators all "rights, title and interest" in claims based on those injuries. Thus, in the litigation before us, the aggregators assert what are, due to that transfer, legal rights of their own. The aggregators, in other words, are asserting first-party, not third-party, legal rights. Moreover, we add that none of the third-party cases cited by petitioners 2545 involve assignments or purport to overturn the longstanding doctrine permitting an assignee to bring suit on an assigned claim. Second, petitioners suggest that the litigation here simply represents an effort by the aggregators and the payphone operators to circumvent Federal Rule of Civil Procedure 23's class-action requirements. But we do not understand how "circumvention" of Rule 23 could constitute a basis for denying standing here. For one thing, class actions are permissive, not mandatory. More importantly, class actions constitute but one of several methods for bringing about aggregation of claims, i.e., they are but one of several methods by which multiple similarly situated parties get similar claims resolved at one time and in one federal forum. See Rule 20(a) (permitting joinder of multiple plaintiffs); Rule 42 (permitting consolidation of related cases filed in the same district court); 28 U.S.C. § 1407 (authorizing consolidation of pretrial proceedings for related cases filed in multiple federal districts); § 1404 (making it possible for related cases pending in different federal courts to be transferred and consolidated in one district court); D. Herr, Annotated Manual for Complex Litigation § 20.12, p. 279 (4th ed.2007) (noting that "[r]elated cases pending in different federal courts may be consolidated in a single district" by transfer under 28 U.S.C. § 1404(a)); J. Tidmarsh & R. Trangsrud, Complex Litigation and the Adversary System 473-524 (1998) (section on "Transfer Devices that Aggregate Cases in a Single Venue"). Because the federal system permits aggregation by other means, we do not think that the payphone operators should be denied standing simply because they chose one aggregation method over another. Petitioners also point to various practical problems that could arise because the aggregators, rather than the payphone operators, are suing. In particular, they say that the payphone operators may not comply with discovery requests served on them, that the payphone operators may not honor judgments reached in this case, and that petitioners may not be able to bring, in this litigation, counterclaims against the payphone operators. See Brief for Petitioners 46-48. Even assuming all that is so, courts have long permitted assignee lawsuits notwithstanding the fact that such problems could arise. Regardless, courts are not helpless in the face of such problems. For example, a district court can, if appropriate, compel a party to collect and to produce whatever discovery-related information is necessary. See Fed. Rules Civ. Proc. 26(b)(1), 30-31, 33-36. That court might grant a motion to join the payphone operators to the case as "required" parties. See Rule 19. Or the court might allow the carriers to file a third-party complaint against the payphone operators. See Rule 14(a). And the carriers could always ask the Federal Communications Commission to find administrative solutions to any remaining practical problems. Cf. 47 U.S.C. § 276(b)(1)(A) (authorizing the FCC to "prescribe regulations" that "ensure that all payphone service providers are fairly compensated for each and every completed [dial-around] call"). We do not say that the litigation before us calls for the use of any such procedural device. We mention them only to explain the lack of any obvious need for the remedy that the carriers here propose, namely, denial of standing. Finally, we note that in this litigation, there has been no allegation that the assignments were made in bad faith. We note, as well, that the assignments were made for ordinary business purposes. Were this not so, additional prudential questions might perhaps arise. But these 2546 questions are not before us, and we need not consider them here. V The judgment of the Court of Appeals is affirmed. It is so ordered. APPENDIX Examples of cases in which state courts entertained or otherwise indicated approval of suits by assignees for collection only. References to "Pomeroy's rule" are references to the statement of law set forth in J. Pomeroy, Remedies and Remedial Rights § 132, p. 159 (1876). 1. Webb & Hepp v. Morgan, McClung & Co., 14 Mo. 428, 431 (1851) (holding that the assignees of a promissory note for collection only can bring suit, even though they lack a beneficial interest in the note, because the assignment "creates in them such legal interest, that they thereby become the persons to sue"); 2. Castner v. Austin Sumner & Co., 2 Minn. 44, 47-48 (1858) (holding that the assignees of promissory notes were proper plaintiffs, regardless of the arrangement they and their assignor had made in respect to the proceeds of the litigation, because the defendants "can only raise the objection of a defect of parties to the suit, when it appears that some other person or party than the Plaintiffs have such a legal interest in the note that a recovery by the Plaintiffs would not preclude it from being enforced, and they be thereby subjected to the risk of another suit for the same subject-matter" (emphasis added)); 3. Cottle v. Cole, 20 Iowa 481, 485-486 (1866) (holding that the assignee could sue, notwithstanding the possibility that the assignor was the party "beneficially interested in the action," because "[t]he course of decision in this State establishes this rule, viz.: that the party holding the legal title of a note or instrument may sue on it though he be an agent or trustee, and liable to account to another for the proceeds of the recovery"); 4. Allen v. Brown, 44 N.Y. 228, 231, 234 (1870) (opinion of Hunt, Comm'r) (holding that the assignee with legal title to a cause of action was "legally the real party in interest" "[e]ven if he be liable to another as a debtor upon his contract for the collection he may thus make"); 5. Meeker v. Claghorn, 44 N.Y. 349, 350, 353 (1871) (opinion of Earl, Comm'r) (allowing suit by the assignee of a cause of action even though the assignors "`expected to receive the amount recovered in the action,'" because the assignee, as "legal holder of the claim," was "the real party in interest"); 6. Hays v. Hathorn, 74 N.Y. 486, 490 (1878) (holding that so long as an assignee has legal title to the assigned commercial paper, the assignee may bring suit even if the assignment was "merely for the purpose of collection" and he acts merely as "equitable trustee" for the assignor, i.e., the assignor maintains the beneficial interest in the paper); 7. Searing v. Berry, 58 Iowa 20, 23, 24, 11 N.W. 708, 709 (1882) (where legal title to a judgment was assigned "merely for the purpose of enabling plaintiff to enforce the collection" and the assignor in fact retained the beneficial interest, the plaintiff-assignee could "prosecute this suit to enforce the collection of the judgment"); 8. Haysler v. Dawson, 28 Mo.App. 531, 536 (1888) (holding, in light of the "recognized practice in this state," that the assignee could bring suit to recover on certain accounts even where the assignment of the accounts had been made "with the agreement that they were to [be][he]ld solely for the purpose of [the litigation]," 2547 i.e., the assignor maintained the beneficial interest in the accounts (emphasis added)); 9. Grant v. Heverin, 77 Cal. 263, 265, 264, 19 P. 493 (1888) (holding that the assignee of a bond could bring suit, even though he lacked a beneficial interest in the bond, and endorsing Pomeroy's rule as "a clear and correct explication of the law"); 10. Young v. Hudson, 99 Mo. 102, 106, 12 S.W. 632, 633 (1889) (holding that an assignee could sue to collect on an account for merchandise sold, even though the money would be remitted to the assignor, because "[a]n assignee of a chose in action arising out of contract, may sue upon it in his own name, though the title was passed to him only for the purpose of collection"); 11. Jackson v. Hamm, 14 Colo. 58, 61, 23 P. 88, 88-89 (1890) (holding that the assignee of a judgment was "the real party in interest" and was "entitled to sue in his own name," even though the beneficial interest in the judgment was held by someone else); 12. Saulsbury v. Corwin, 40 Mo.App. 373, 376 (1890) (permitting suit by an assignee of a note who "had no interest in the note" on the theory that "[o]ne who holds negotiable paper for collection merely may sue on it in his own name"); 13. Anderson v. Reardon, 46 Minn. 185, 186, 48 N.W. 777 (1891) (where plaintiff had been assigned a claim on the "understanding" that he would remit the proceeds to the assignor less the "amount due him for services already rendered, and to be thereafter rendered" to the assignor, the plaintiff could bring suit, even though he had "already collected on the demand enough to pay his own claim for services up to that time," because "[i]t is no concern of the defendant whether the assignee of a claim receives the money on it in his own right or as trustee of the assignor"); 14. McDaniel v. Pressler, 3 Wash. 636, 638, 637, 29 P. 209, 210 (1892) (holding that the assignee of promissory notes was the real party in interest, even the assignment was "for the purpose of collection" and the assignee had "no interest other than that of the legal holder of said notes"); 15. Minnesota Thresher Mfg. Co. v. Heipler, 49 Minn. 395, 396, 52 N.W. 33 (1892) (upholding the plaintiff-assignee's judgment where that assignee "held the legal title to the demand" and notwithstanding the fact that "there was an agreement between the [assignor] and the plaintiff that the latter took the [assignment] only for collection"); 16. Wines v. Rio Grande W.R. Co., 9 Utah 228, 235, 33 P. 1042, 1044, 1045 (1893) (adopting Pomeroy's rule and holding that an assignee could bring suit based on causes of action assigned to him "simply to enable him to sue" and who "would turn over to the assignors all that was recovered in the action, after deducting their proportion of the expenses of the suit"); 17. Greig v. Riordan, 99 Cal. 316, 323, 33 P. 913, 916 (1893) (holding that the plaintiff-assignee could sue on claims assigned by multiple parties "for collection," stating that "[i]t is [a] matter of common knowledge that for the purpose of saving expense commercial associations and others resort to this method" and repeating the rule that "[i]n such cases the assignee becomes the legal holder of a chose in action, which is sufficient to entitle him to recover"); 18. Gomer v. Stockdale, 5 Colo. App. 489, 492, 39 P. 355, 357, 356 (1895) (permitting suit by a party who was assigned legal title to contractual rights, where the assignor retained the beneficial interest, noting 2548 that the doctrine that "prevails in Colorado" is that the assignee may bring suit in his own name "although there may be annexed to the transfer the condition that when the sum is collected the whole or some part of it must be paid over to the assignor"); 19. Cox's Executors v. Crockett & Co., 92 Va. 50, 58, 57, 22 S.E. 840, 843 (1895) (finding that suit by assignor following an adverse judgment against assignee was barred by res judicata but endorsing Pomeroy's rule that an assignee could bring suit as the "real party in interest" even where the assignee must "account to the assignor, or other person, for the residue, or even is to thus account for the whole proceeds" of the litigation); 20. Sroufe v. Soto Bros. & Co., 5 Ariz. 10, 11, 12, 43 P. 221 (1896) (holding that state law permits "a party to maintain an action on an account which has been assigned to him for the purpose of collection, only" because such parties are "holders of the legal title of said accounts"); 21. Ingham v. Weed, 5 Cal. Unreported Cases, 645, 649, 48 P. 318, 320 (1897) (holding that the assignees of promissory notes could bring suit where the assignors retained part of the beneficial interest in the outcome, and expressly noting that the assignees could bring suit even if the entire interest in the notes had been assigned to them as "agents for collection" because, citing Pomeroy and prior California cases "to the same effect," an assignee can bring suit where he has "legal title" to a claim, notwithstanding "any contemporaneous collateral agreement" by which he is to account to the assignor for part or even "the whole proceeds"); 22. Citizens' Bank v. Corkings, 9 S.D. 614, 615, 616, 70 N.W. 1059, 1060, rev'd on other grounds, 10 S.D. 98, 72 N.W. 99 (1897) (holding that where the assignee "took a formal written assignment absolute in terms, but with the understanding that he would take the claim, collect what he could, and turn over to the company the proceeds thereof less the expenses of collection," the assignee could sue because the "rule is that a written or verbal assignment, absolute in terms, and vesting in the assignee the apparent legal title to a chose in action, is unaffected by a collateral contemporaneous agreement respecting the proceeds"); 23. Chase v. Dodge, 111 Wis. 70, 73, 86 N.W. 548, 549 (1901) (adopting New York's rule that an assignee is the real party in interest so long as he "holds the legal title" to an assigned claim, regardless of the existence of "any private or implied understanding" between the assignor and assignee concerning the beneficial interest (internal quotation marks omitted)); 24. Roth v. Continental Wire Co., 94 Mo.App. 236, 262-264, 68 S.W. 594, 602 (1902) (noting that Missouri has adopted Pomeroy's rule and holding that the trial court did not err in excluding evidence that plaintiff was assigned the cause of action for collection only); 25. Manley v. Park, 68 Kan. 400, 402, 75 P. 557, 558 (1904) (overruling prior state cases and holding that where the assignment of a bond or note vests legal title in the assignee, the assignee can bring suit even where the assignee promises to remit to the assignor "a part or all of the proceeds" (emphasis added)); 26. Eagle Mining & Improvement Co. v. Lund, 14 N.M. 417, 420-422, 94 P. 949, 950 (1908) (adopting the rule that the assignee of a note can bring suit even where the assignor, not the assignee, maintains the beneficial interest in the note); 27. Harrison v. Pearcy & Coleman, 174 Ky. 485, 488, 487, 192 S.W. 513, 514-515 2549 (1917) (holding that the assignee could bring suit to collect on a note, even though he was "an assignee for the purpose of collection only" and had "no financial interest in the note"). 28. James v. Lederer-Strauss & Co., 32 Wyo. 377, 233 P. 137, 139 (1925) ("By the clear weight of authority a person to whom a chose in action has been assigned for the purpose of collection may maintain an action thereon ... and as such is authorized by statute in this state to maintain an action in his own name").	The question before us is whether an assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor. Because history and precedent make clear that such an assignee has long been permitted to bring suit, we conclude that the assignee does have standing. 2534 I When a payphone customer makes a long-distance call with an access code or 1-800 number issued by a long-distance communications carrier, the customer pays the carrier (which completes that call), but not the payphone operator (which connects that call to the carrier in the first place). In these circumstances, the long-distance carrier is required to compensate the payphone operator for the customer's call. See ; The payphone operator can sue the long-distance carrier in court for any compensation that the carrier fails to pay for these "dial-around" calls. And many have done so. See Global Telecommunications, Because litigation is expensive, because the evidentiary demands of a single suit are often great, and because the resulting monetary recovery is often small, many payphone operators assign their dial-around claims to billing and collection firms called "aggregators" so that, in effect, these aggregators can bring suit on their behalf. See Brief for Respondents 3. Typically, an individual aggregator collects claims from different payphone operators; the aggregator promises to remit to the relevant payphone operator (i.e., the assignor of the claim) any dial-around compensation that is recovered; the aggregator then pursues the claims in court or through settlement negotiations; and the aggregator is paid a fee for this service. The present litigation involves a group of aggregators who have taken claim assignments from approximately 1,400 payphone operators. Each payphone operator signed an Assignment and Power of Attorney Agreement (Agreement) in which the payphone operator "assigns, transfers and sets over to [the aggregator] for purposes of collection all rights, title and interest of the [payphone operator] in the [payphone operator's] claims, demands or causes of action for `Dial-Around Compensation' due the [payphone operator] for periods since October 1, 1997." App. to Pet. for Cert. 4a. The Agreement also "appoints" the aggregator as the payphone operator's "true and lawful attorney-in-fact." The Agreement provides that the aggregator will litigate "in the [payphone operator's] interest." at a. And the Agreement further stipulates that the assignment of the claims "may not be revoked without the written consent of the [aggregator]." The aggregator and payphone operator then separately agreed that the aggregator would remit all proceeds to the payphone operator and that the payphone operator would pay the aggregator for its services (typically via a quarterly charge). After signing the agreements, the aggregators (respondents here) filed lawsuits in federal court seeking dial-around compensation from Sprint, AT & T, and other long-distance carriers (petitioners here). AT & T moved to dismiss the claims, arguing that the aggregators lack standing to sue under Article III of the Constitutio The District Court initially agreed to dismiss, APCC but changed its mind in light of a "long line of cases and legal treatises that recognize a well-established principle that assignees for collection purposes are entitled to bring suit where [as here] the assignments transfer absolute title to the claims." APCC After consolidating similar cases, a divided panel of the Court of Appeals for the District of Columbia Circuit agreed that 2535 the aggregators have standing to sue, but held that the relevant statutes do not create a private right of actio APCC This Court granted the aggregators' petition for certiorari on the latter statutory question, vacated the judgment, and remanded the case for reconsideration in light of Global APCC Services, 550 U.S. On remand, the Court of Appeals affirmed the orders of the District Court allowing the litigation to go forward. The long-distance carriers then asked us to consider the standing questio We granted certiorari, and we now affirm. II We begin with the most basic doctrinal principles: Article III, 2, of the Constitution restricts the federal "judicial Power" to the resolution of "s" and "Controversies." That case-or-controversy requirement is satisfied only where a plaintiff has standing. See, e.g., Daimler-Chrysler And in order to have Article III standing, a plaintiff must adequately establish: (1) an injury in fact (i.e., a "concrete and particularized" invasion of a "legally protected interest"); (2) causation (i.e., a "`fairly trace[able]'" connection between the alleged injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is "`likely'" and not "merely `speculative'" that the plaintiff's injury will be remedied by the relief plaintiff seeks in bringing suit). In some sense, the aggregators clearly meet these requirements. They base their suit upon a concrete and particularized "injury in fact," namely, the carriers' failure to pay dial-around compensatio The carriers "caused" that injury. And the litigation will "redress" that injury if the suits are successful, the long-distance carriers will pay what they owe. The long-distance carriers argue, however, that the aggregators lack standing because it was the payphone operators (who are not plaintiffs), not the aggregators (who are plaintiffs), who were "injured in fact" and that it is the payphone operators, not the aggregators, whose injuries a legal victory will truly "redress": The aggregators, after all, will remit all litigation proceeds to the payphone operators. Brief for Petitioners 18. Thus, the question before us is whether, under these circumstances, an assignee has standing to pursue the assignor's claims for money owed. We have often said that history and tradition offer a meaningful guide to the types of cases that Article III empowers federal courts to consider. See, e.g., Steel ; GTE Sylvania, 4 U.S. 375, ; cf. (in crafting Article III, 2536 "the framers gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union"). Consequently, we here have carefully examined how courts have historically treated suits by assignors and assignees. And we have discovered that history and precedent are clear on the question before us: Assignees of a claim, including assignees for collection, have long been permitted to bring suit. A clear historical answer at least demands reasons for change. We can find no such reasons here, and accordingly we conclude that the aggregators have standing. A We must begin with a minor concessio Prior to the 17th century, English law would not have authorized a suit like this one. But that is because, with only limited exceptions, English courts refused to recognize assignments at all. See, e.g., Lampet's 10 Rep. 46b, 48a, 77 Eng. Rep. 994, 997 (K.B.12) (stating that "no possibility, right, title, nor thing in action, shall be granted or assigned to strangers" (footnote omitted)); Penson & Highbed's 4 Leo. 99, 74 Eng. Rep. 756 (K.B. 1590) (refusing to recognize the right of an assignee of a right in contract); see also 9 J. Murray, on Contracts 47.3, p. 134 (noting that the King was excepted from the basic rule and could, as a result, always receive assignments). Courts then strictly adhered to the rule that a "chose in action" an interest in property not immediately reducible to possession (which, over time, came to include a financial interest such as a debt, a legal claim for money, or a contractual right) simply "could not be transferred to another person by the strict rules of the ancient common law." See 2 W. Commentaries 442. To permit transfer, the courts feared, would lead to the "multiplying of contentions and suits," Lampet's at 48a, 77 Eng. Rep., at 997, and would also promote "maintenance," i.e., officious intermeddling with litigation, see History of the Treatment of Choses in Action by the Common Law, 33 Harv. L.Rev. 997, 1006-1009 As the 17th century began, however, strict anti-assignment rules seemed inconsistent with growing commercial needs. And as English commerce and trade expanded, courts began to liberalize the rules that prevented assignments of choses in actio See 9 47.3, (suggesting that the "pragmatic necessities of trade" induced "evolution of the common law"); at 1-2 ; J. Ames, Lectures on Legal History 214 (1913) (noting that the "objection of maintenance" yielded to "the modern commercial spirit"). By the beginning of the 18th century, courts routinely recognized assignments of equitable (but not legal) interests in a chose in action: Courts of equity permitted suits by an assignee who had equitable (but not legal) title. And courts of law effectively allowed suits either by the assignee (who had equitable, but not legal title) or the assignor (who had legal, but not equitable title). To be more specific, courts of equity would simply permit an assignee with a beneficial interest in a chose in action to sue in his own name. They might, however, require the assignee to bring in the assignor as a party to the action so as to bind him to whatever judgment was reached. See, e.g., Warmstrey v. Tanfield, 1 Ch. Rep. 29, 21 Eng. Rep. 498 (1628-1629); Fashion v. Atwood, 2 Ch. Cas. 36, 22 Eng. Rep. 835 (1688); Peters v. Soame, 2537 2 Ver 428, 428-429, 23 Eng. Rep. 874 (Ch. 1701); Squib v. Wyn, 1 P. Wms. 378, 381, 24 Eng. Rep. 432, 433 (Ch. 1717); Lord Carteret v. Paschal, 3 P. Wms. 197, 199, 24 Eng. Rep. 8, 9 (Ch. 13); Row v. Dawson, 1 Ves. se 331, 332-333, 27 Eng. Rep. 4, 4-5 (Ch. 1749). See also M. Smith, Law of Assignment: The Creation and Transfer of Choses in Action 131 (by the beginning of the 18th century, "it became settled that equity would recognize the validity of the assignment of both debts and of other things regarded by the common law as choses in action"). Courts of law, meanwhile, would permit the assignee with an equitable interest to bring suit, but nonetheless required the assignee to obtain a "power of attorney" from the holder of the legal title, namely, the assignor, and further required the assignee to bring suit in the name of that assignor. See, e.g., Cook, Alienability of Choses in Action, 29 Harv. L.Rev. 816, 822 (1) ("[C]ommon law lawyers were able, through the device of the `power of attorney'. to enable the assignee to obtain relief in common law proceedings by suing in the name of the assignor"); 29 R. Lord, Williston on Contracts 74.2, pp. 214-215 Compare, e.g., Barrow v. Gray, Cro. Eliz. 551, 78 Eng. Rep. 797 (Q.B.1653), and South & Marsh's 3 Leo. 234, 74 Eng. Rep. 654 (Exch.1686) (limiting the use of a power of attorney to cases in which the assignor owed the assignee a debt), with at 1 At the same time, courts of law would permit an assignor to sue even when he had transferred away his beneficial interest. And they permitted the assignor to sue in such circumstances precisely because the assignor retained legal title. See, e.g., Winch v. Keeley, 1 T.R. 9, 99 Eng. Rep. 1284 (K.B.1787) (allowing the bankrupt assignor of a chose in action to sue a debtor for the benefit of the assignee because the assignor possessed legal, though not equitable, title). The upshot is that by the time published volume II of his Commentaries in 1766, he could dismiss the "ancient common law" prohibition on assigning choses in action as a "nicety now disregarded." 2 B Legal practice in the United States largely mirrored that in England. In the latter half of the 18th century and throughout the 19th century, American courts regularly "exercised their powers in favor of the assignee," both at law and in equity. 9 on Contracts 47.3, at 137. See, e.g., (Pa.1785) (protecting assignee of a debt against a collusive settlement by the assignor); (ConSuper.1789) (assignee of a nonnegotiable note can bring suit "in the name of the original promisee or his administrator"); ; Riddle & Indeed, of the Judiciary Act of 1789 specifically authorized federal courts to take "cognizance of any suit to recover the contents of any promissory note or other chose in action in favour of an assignee" so long as federal jurisdiction would lie if the assignor himself had brought suit. 2538 Thus, in 1816, Justice Story, writing for a unanimous Court, summarized the practice in American courts as follows: "Courts of law, following in this respect the rules of equity, now take notice of assignments of choses in action, and exert themselves to afford them every support and protectio" He added that courts of equity have "disregarded the rigid strictness of the common law, and protected the rights of the assignee of choses in action," and noted that courts of common law "now consider an assignment of a chose in action as substantially valid, only preserving, in certain cases, the form of an action commenced in the name of the assignor." It bears noting, however, that at the time of the founding (and in some States well before then) the law did permit the assignment of legal title to at least some choses in actio In such cases, the assignee could bring suit on the assigned claim in his own name, in a court of law. See, e.g., 3 Va. Stat. at Large 378, Ch. XXXIV (W. Hening ed. 1823) (reprinted 1969) (Act of Oct. 1705) (permitting any person to "assign or transfer any bond or bill for debt over to any other person" and providing that "the asignee or assignees, his and their executors and administrators by virtue of such assignment shall and may have lawful power to commence and prosecute any suit at law in his or their own name or names"); Act of May 28, 1715, Ch. XXVIII, Ge Laws of Pen 60 (J. Dunlop 2d ed. 1849) (permitting the assignment of "bonds, specialties, and notes" and authorizing "the person or persons, to whom the said bonds, specialties or notes, are assigned" to "commence and prosecute his, her, or their actions at law"); Patent Act of 1793, ch. 4, C By the 19th century, courts began to consider the specific question presented here: whether an assignee of a legal claim for money could sue when that assignee had promised to give all litigation proceeds back to the assignor. During that century American law at the state level became less formalistic through the merger of law and equity, through statutes more generously permitting an assignor to pass legal title to an assignee, and through the adoption of rules that permitted any "real party in interest" to bring suit. See 6A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 1541, pp. -321 (2d ed.1990) (hereinafter Wright & Miller); see also 9 47.3, at 137. The courts recognized that pre-existing law permitted an assignor to bring suit on a claim even though the assignor retained nothing more than naked legal title. Since the law increasingly permitted the transfer of legal title to an assignee, courts agreed that assignor and assignee should be treated alike in this respect. And rather than abolish the assignor's well-established right to sue on the basis of naked legal title alone, many courts instead extended the same right to an assignee. See, e.g., Clark & The Real Party in Interest, Thus, during the 19th century, most state courts entertained suits virtually identical to the litigation before us: suits by individuals who were assignees for collection 2539 only, i.e., assignees who brought suit to collect money owed to their assignors but who promised to turn over to those assignors the proceeds secured through litigatio See, e.g., Webb & ; ; ; (holding that the assignee of a bond could bring suit, even though he lacked a beneficial interest in the bond, and adopting the rule that an assignee with legal title to an assigned claim can bring suit even where the assignee must "account to the assignor" for "a part of the proceeds" or "is to account for the whole proceeds" ); ; 1044, 10 ; (permitting suit by a party who was assigned legal title to contractual rights, where the assignor retained the beneficial interest, noting that the doctrine that "prevails in Colorado" is that the assignee may bring suit in his own name "although there may be annexed to the transfer the condition that when the sum is collected the whole or some part of it must be paid over to the assignor"). See also Appendix, infra (collecting cases from numerous other States approving of suits by assignees for collection). Of course, the dissent rightly notes, some States during this period of time refused to recognize assignee-for-collection suits, or otherwise equivocated on the matter. See post, at 2555-2556. But so many States allowed these suits that by 1876, the distinguished procedure and equity scholar John Norton Pomeroy declared it "settled by a great preponderance of authority, although there is some conflict" that an assignee is "entitled to sue in his own name" whenever the assignment vests "legal title" in the assignee, and notwithstanding "any contemporaneous, collateral agreement by virtue of which he is to receive a part only of the proceeds or even is to thus account [to the assignor] for the whole proceeds." Remedies and Remedial Rights 132, p. 159 (internal quotation marks omitted and emphasis added). Other contemporary scholars reached the same basic conclusio See, e.g., P. Bliss, A Treatise upon the Law of Pleading 51, p. 69 (2d ed. 1887) (stating that "[m]ost of the courts have held that where negotiable paper has been indorsed, 2540 or other choses in action have been assigned, it does not concern the defendant for what purpose the transfer has been made" and giving examples of States permitting assignees to bring suit even where they lacked a beneficial interest in the assigned claims (emphasis added)). See also Clark & Even Michael Ferguson's California Law Review Comment which the dissent cites as support for its argument about "the divergent practice" among the courts, post, at 2556 recognizes that "[a] majority of courts has held that an assignee for collection only is a real party in interest" entitled to bring suit. See Comment, The Real Party in Interest Rule Revitalized: Recognizing Defendant's Interest in the Determination of Proper Parties Plaintiff, 55 Cal. L.Rev. 12, 1475 (emphasis added); see also at 1476, 8 During this period, a number of federal courts similarly indicated approval of suits by assignees for collection only. See, e.g., (No. 1,769) (CC Ill. 1840) (stating that the plaintiff, the receiver of a bank, could bring suit in federal court to collect on a note owed to that bank if he sued as the bank's assignee, not its receiver, but ultimately holding that the plaintiff could not sue as an assignee because there was no diversity jurisdiction); (No. 10,589) (CC Mich. 1847) (affirming judgment for the plaintiff, the endorsee of a bill of exchange, on the ground that, as endorsee, he had the "legal right" to bring suit notwithstanding the fact that the proceeds of the litigation would be turned over to the endorser); (No. 9,940) (permitting the assignee of a claim for injury to a "float or barge" to bring suit when, "under the assignment," the assignor's creditors would benefit from the litigation); The Rupert City, (W.D.Wash.1914) (assignees of claims for collection only could bring suit in maritime law because "an assignment for collection vest[s] such an interest in [an] assignee as to entitle him to sue"). Even this Court long ago indicated that assignees for collection only can properly bring suit. For example, in the plaintiff sued to collect on a number of municipal bonds and coupons whose "legal title" had been vested in him but which were transferred to him "for collection only." The Court, in a unanimous decision, ultimately held that the federal courts could not hear his suit because the amount-in-controversy requirement of diversity jurisdiction would not have been satisfied if the bondholders and coupon holders had sued individually. See However, before reaching this holding, the Court expressly stated that the suit could properly be brought in federal court "if the only objection to the jurisdiction of the Circuit Court is that the plaintiff was invested with the legal title to the bonds and coupons simply for purposes of collectio" Next, in a large number of cattle shippers assigned to Spiller (the secretary of a Cattle Raiser's Association) their individual reparation claims against railroads they said had charged them excessive rates. 2541 The Federal Court of Appeals held that Spiller could not bring suit because, in effect, he was an assignee for collection only and would be passing back to the cattle shippers any money he recovered from the litigatio In a unanimous decision, this Court reversed. The Court wrote that the cattle shippers' "assignments were absolute in form" and "plainly" "vest[ed] the legal title in Spiller." The Court conceded that the assignments did not pass "beneficial or equitable title" to Spiller. But the Court then said that "this was not necessary to support the right of the assignee to claim an award of reparation and enable him to recover it by action at law brought in his own name but for the benefit of the equitable owners of the claims." The Court thereby held that Spiller's legal title alone was sufficient to allow him to bring suit in federal court on the aggregated claims of his assignors. Similarly, in this Court unanimously held that (under New York law) a plaintiff, an assignee for collection, had "dominion over the claim for purposes of suit" because the assignment purported to "`sell, assign, transfer and set over' the chose in action" to the assignee. More importantly for present purposes, the Court said that the assignment's "legal effect was not curtailed by the recital that the assignment was for purposes of suit and that its proceeds were to be turned over or accounted for to another." To be clear, we do not suggest that the Court's decisions in Waite, Spiller, and Titus conclusively resolve the standing question before us. We cite them because they offer additional and powerful support for the proposition that suits by assignees for collection have long been seen as "amenable" to resolution by the judicial process. Steel 523 U.S., at Finally, we note that there is also considerable, more recent authority showing that an assignee for collection may properly sue on the assigned claim in federal court. See, e.g., 6A Wright & Miller 15, at 346-348 (noting that an assignee with legal title is considered to be a real party in interest and that as a result "federal courts have held that an assignee for purposes of collection who holds legal title to the debt according to the governing substantive law is the real party in interest even though the assignee must account to the assignor for whatever is recovered in the action"); 6 Am.Jur.2d, Assignments 184, pp. 262- (1999) ("An assignee for collection or security only is within the meaning of the real party in interest statutes and entitled to sue in his or her own name on an assigned account or chose in action, although he or she must account to the assignor for the proceeds of the action, even when the assignment is without consideration" (footnote omitted)). See also ; Staggers v. Otto Gerdau ; Dixie Portland Flour Mills, Inc. v. Dixie Feed & Seed F.2d 830, ; Klamath-Lake Pharmaceutical Ass v. Klamath Medical Serv. Bur., D The history and precedents that we have summarized make clear that courts have long found ways to allow assignees to bring suit; that where assignment is at issue, courts both before and after the founding have always permitted the party with legal title alone to bring suit; and that there is a strong tradition specifically of suits by assignees for collectio We find this history and precedent "well nigh 2542 conclusive" in respect to the issue before us: Lawsuits by assignees, including assignees for collection only, are "cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process." Vermont of Natural III Petitioners have not offered any convincing reason why we should depart from the historical tradition of suits by assignees, including assignees for collectio In any event, we find that the assignees before us satisfy the Article III standing requirements articulated in more modern decisions of this Court. Petitioners argue, for example, that the aggregators have not themselves suffered any injury in fact and that the assignments for collection "do not suffice to transfer the payphone operators' injuries." Brief for Petitioners 18. It is, of course, true that the aggregators did not originally suffer any injury caused by the long-distance carriers; the payphone operators did. But the payphone operators assigned their claims to the aggregators lock, stock, and barrel. See APCC ; see also App. to Pet. for Cert. 4a (Agreement provides that each payphone operator "assigns, transfers and sets over" to the aggregator "all rights, title and interest" in dial-around compensation claims). And within the past decade we have expressly held that an assignee can sue based on his assignor's injuries. In Vermont we considered whether a qui tam relator possesses Article III standing to bring suit under the False Claims Act, which authorizes a private party to bring suit to remedy an injury (fraud) that the United States, not the private party, suffered. We held that such a relator does possess standing. And we said that is because the Act "effect[s] a partial assignment of the Government's damages claim" and that assignment of the "United States' injury in fact suffices to confer standing on [the relator]." Indeed, in Vermont we stated quite unequivocally that "the assignee of a claim has standing to assert the injury in fact suffered by the assignor." Petitioners next argue that the aggregators cannot satisfy the redressability requirement of standing because, if successful in this litigation, the aggregators will simply remit the litigation proceeds to the payphone operators. But petitioners misconstrue the nature of our redressability inquiry. That inquiry focuses, as it should, on whether the injury that a plaintiff alleges is likely to be redressed through the litigation not on what the plaintiff ultimately intends to do with the money he recovers. See, e.g., (to demonstrate redressability, the plaintiff must show a "substantial likelihood that the requested relief will remedy the alleged injury in fact" (internal quotation marks omitted and emphasis added)); ("[I]t must be likely that the injury will be redressed by a favorable decision" (internal quotation marks omitted and emphasis added)). Here, a legal victory would unquestionably redress the injuries for which the aggregators bring suit. The aggregators' injuries relate to the failure to receive the required dial-around compensatio And if the aggregators prevail in this litigation, the long-distance carriers would write a check to the aggregators for the amount of dial-around compensation 2543 owed. What does it matter what the aggregators do with the money afterward? The injuries would be redressed whether the aggregators remit the litigation proceeds to the payphone operators, donate them to charity, or use them to build new corporate headquarters. Moreover, the statements our prior cases made about the need to show redress of the injury are consistent with what numerous authorities have long held in the assignment context, namely, that an assignee for collection may properly bring suit to redress the injury originally suffered by his assignor. Petitioners might disagree with those authorities. But petitioners have not provided us with a good reason to reconsider them. The dissent argues that our redressability analysis "could not be more wrong," because "[w]e have never approved federal-court jurisdiction over a claim where the entire relief requested will run to a party not before the court. Never." Post, at 2551 (opinion of ROBERTS, C. J.). But federal courts routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit. Trustees bring suits to benefit their trusts; guardians ad litem bring suits to benefit their wards; receivers bring suit to benefit their receiverships; assignees in bankruptcy bring suit to benefit bankrupt estates; executors bring suit to benefit testator estates; and so forth. The dissent's view of redressability, if taken seriously, would work a sea change in the law. Moreover, to the extent that trustees, guardians ad litem, and the like have some sort of "obligation" to the parties whose interests they vindicate through litigation, see post, at 2552-2553, 2, the same is true in respect to the aggregators here. The aggregators have a contractual obligation to litigate "in the [payphone operator's] interest." App. to Pet. for Cert. a. (And if the aggregators somehow violate that contractual obligation, say, by agreeing to settle the claims against the long-distance providers in exchange for a kickback from those providers, each payphone operator would be able to bring suit for breach of contract.) Petitioners also make a further conceptual argument. They point to cases in which this Court has said that a party must possess a "personal stake" in a case in order to have standing under Article III. See And petitioners add that, because the aggregators will not actually benefit from a victory in this case, they lack a "personal stake" in the litigation's outcome. The problem with this argument is that the general "personal stake" requirement and the more specific standing requirements (injury in fact, redressability, and causation) are flip sides of the same coi They are simply different descriptions of the same judicial effort to assure, in every case or controversy, "that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illuminatio" See also 13, ("At bottom, the gist of the question of standing is whether petitioners have such a personal stake in the outcome of the controversy as to assure that concrete adverseness" ). Courts, during the past two centuries, appear to have found that "concrete adverseness" where an assignee for collection brings a lawsuit. And petitioners have provided us with no grounds for reaching a contrary conclusio Petitioners make a purely functional argument, as well. Read as a whole, they say, the assignments in this litigation constitute nothing more than a contract for legal services. We think this argument is overstated. There is an important distinction 2544 between simply hiring a lawyer and assigning a claim to a lawyer (on the lawyer's promise to remit litigation proceeds). The latter confers a property right (which creditors might attach); the former does not. Finally, we note, as a practical matter, that it would be particularly unwise for us to abandon history and precedent in resolving the question before us. Were we to agree with petitioners that the aggregators lack standing, our holding could easily be overcome. For example, the Agreement could be rewritten to give the aggregator a tiny portion of the assigned claim itself, perhaps only a dollar or two. Or the payphone operators might assign all of their claims to a "Dial-Around Compensation Trust" and then pay a trustee (perhaps the aggregator) to bring suit on behalf of the trust. Accordingly, the far more sensible course is to abide by the history and tradition of assignee suits and find that the aggregators possess Article III standing. IV Petitioners argue that, even if the aggregators have standing under Article III, we should nonetheless deny them standing for a number of prudential reasons. See Elk Grove Unified School (prudential standing doctrine "embodies judicially self-imposed limits on the exercise of federal jurisdiction" ). First, petitioners invoke certain prudential limitations that we have imposed in prior cases where a plaintiff has sought to assert the legal claims of third parties. See, e.g., L. Ed. 2d 343 ; Arlington 50 L. Ed. 2d 0 ; Secretary of State of Md. v. Joseph H. Munson These third-party cases, however, are not on point. They concern plaintiffs who seek to assert not their own legal rights, but the legal rights of others. See, e.g., (plaintiff "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties" (emphasis added)); see also ; 1 S. Ct. 1364, 3 L. Ed. 2d 4 ; 97 S. Ct. 1, Here, the aggregators are suing based on injuries originally suffered by third parties. But the payphone operators assigned to the aggregators all "rights, title and interest" in claims based on those injuries. Thus, in the litigation before us, the aggregators assert what are, due to that transfer, legal rights of their ow The aggregators, in other words, are asserting first-party, not third-party, legal rights. Moreover, we add that none of the third-party cases cited by petitioners 25 involve assignments or purport to overturn the longstanding doctrine permitting an assignee to bring suit on an assigned claim. Second, petitioners suggest that the litigation here simply represents an effort by the aggregators and the payphone operators to circumvent Federal Rule of Civil Procedure 23's class-action requirements. But we do not understand how "circumvention" of Rule 23 could constitute a basis for denying standing here. For one thing, class actions are permissive, not mandatory. More importantly, class actions constitute but one of several methods for bringing about aggregation of claims, i.e., they are but one of several methods by which multiple similarly situated parties get similar claims resolved at one time and in one federal forum. See Rule 20(a) (permitting joinder of multiple plaintiffs); Rule 42 (permitting consolidation of related cases filed in the same district court); 28 U.S.C. 1 ; 1404 (making it possible for related cases pending in different federal courts to be transferred and consolidated in one district court); D. Herr, Annotated Manual for Complex Litigation 20.12, p. 279 (noting that "[r]elated cases pending in different federal courts may be consolidated in a single district" by transfer under 28 U.S.C. 1404(a)); J. Tidmarsh & R. Trangsrud, Complex Litigation and the Adversary System 4-524 (section on "Transfer Devices that Aggregate s in a Single Venue"). Because the federal system permits aggregation by other means, we do not think that the payphone operators should be denied standing simply because they chose one aggregation method over another. Petitioners also point to various practical problems that could arise because the aggregators, rather than the payphone operators, are suing. In particular, they say that the payphone operators may not comply with discovery requests served on them, that the payphone operators may not honor judgments reached in this case, and that petitioners may not be able to bring, in this litigation, counterclaims against the payphone operators. See Brief for Petitioners 46-48. Even assuming all that is so, courts have long permitted assignee lawsuits notwithstanding the fact that such problems could arise. Regardless, courts are not helpless in the face of such problems. For example, a district court can, if appropriate, compel a party to collect and to produce whatever discovery-related information is necessary. See Fed. Rules Civ. Proc. 26(b)(1), 30-31, 33-36. That court might grant a motion to join the payphone operators to the case as "required" parties. See Rule 19. Or the court might allow the carriers to file a third-party complaint against the payphone operators. See Rule 14(a). And the carriers could always ask the Federal Communications Commission to find administrative solutions to any remaining practical problems. Cf. 47 U.S.C. 276(b)(1)(A) We do not say that the litigation before us calls for the use of any such procedural device. We mention them only to explain the lack of any obvious need for the remedy that the carriers here propose, namely, denial of standing. Finally, we note that in this litigation, there has been no allegation that the assignments were made in bad faith. We note, as well, that the assignments were made for ordinary business purposes. Were this not so, additional prudential questions might perhaps arise. But these 2546 questions are not before us, and we need not consider them here. V The judgment of the Court of Appeals is affirmed. It is so ordered. APPENDIX Examples of cases in which state courts entertained or otherwise indicated approval of suits by assignees for collection only. References to "Pomeroy's rule" are references to the statement of law set forth in J. Pomeroy, Remedies and Remedial Rights 132, p. 159 (1876). 1. Webb & ; 2. Castner v. Austin Sumner & 2 Min 44, (holding that the assignees of promissory notes were proper plaintiffs, regardless of the arrangement they and their assignor had made in respect to the proceeds of the litigation, because the defendants "can only raise the objection of a defect of parties to the suit, when it appears that some other person or party than the Plaintiffs have such a legal interest in the note that a recovery by the Plaintiffs would not preclude it from being enforced, and they be thereby subjected to the risk of another suit for the same subject-matter" (emphasis added)); 3. (holding that the assignee could sue, notwithstanding the possibility that the assignor was the party "beneficially interested in the action," because "[t]he course of decision in this State establishes this rule, viz.: that the party holding the legal title of a note or instrument may sue on it though he be an agent or trustee, and liable to account to another for the proceeds of the recovery"); 4. (holding that the assignee with legal title to a cause of action was "legally the real party in interest" "[e]ven if he be liable to another as a debtor upon his contract for the collection he may thus make"); 5. ; 6. (holding that so long as an assignee has legal title to the assigned commercial paper, the assignee may bring suit even if the assignment was "merely for the purpose of collection" and he acts merely as "equitable trustee" for the assignor, i.e., the assignor maintains the beneficial interest in the paper); 7. ; 8. Haysler v. Dawson, 28 Mo.App. 531, 536 (holding, in light of the "recognized practice in this state," that the assignee could bring suit to recover on certain accounts even where the assignment of the accounts had been made "with the agreement that they were to [be][he]ld solely for the purpose of [the litigation]," 2547 i.e., the assignor maintained the beneficial interest in the accounts (emphasis added)); 9. 264, ; 10. 99 Mo. (holding that an assignee could sue to collect on an account for merchandise sold, even though the money would be remitted to the assignor, because "[a]n assignee of a chose in action arising out of contract, may sue upon it in his own name, though the title was passed to him only for the purpose of collection"); ; 12. Saulsbury v. Corwin, 40 Mo.App. 3, 376 (permitting suit by an assignee of a note who "had no interest in the note" on the theory that "[o]ne who holds negotiable paper for collection merely may sue on it in his own name"); 13. 46 Min 185, (where plaintiff had been assigned a claim on the "understanding" that he would remit the proceeds to the assignor less the "amount due him for services already rendered, and to be thereafter rendered" to the assignor, the plaintiff could bring suit, even though he had "already collected on the demand enough to pay his own claim for services up to that time," because "[i]t is no concern of the defendant whether the assignee of a claim receives the money on it in his own right or as trustee of the assignor"); 14. ; 15. Minnesota Thresher Mfg. v. Heipler, 49 Min 395, ; 16. 1044, 10 (adopting Pomeroy's rule and holding that an assignee could bring suit based on causes of action assigned to him "simply to enable him to sue" and who "would turn over to the assignors all that was recovered in the action, after deducting their proportion of the expenses of the suit"); 17. (holding that the plaintiff-assignee could sue on claims assigned by multiple parties "for collection," stating that "[i]t is [a] matter of common knowledge that for the purpose of saving expense commercial associations and others resort to this method" and repeating the rule that "[i]n such cases the assignee becomes the legal holder of a chose in action, which is sufficient to entitle him to recover"); 18. (permitting suit by a party who was assigned legal title to contractual rights, where the assignor retained the beneficial interest, noting 2548 that the doctrine that "prevails in Colorado" is that the assignee may bring suit in his own name "although there may be annexed to the transfer the condition that when the sum is collected the whole or some part of it must be paid over to the assignor"); 19. Cox's Executors v. Crockett & (finding that suit by assignor following an adverse judgment against assignee was barred by res judicata but endorsing Pomeroy's rule that an assignee could bring suit as the "real party in interest" even where the assignee must "account to the assignor, or other person, for the residue, or even is to thus account for the whole proceeds" of the litigation); 20. Sroufe v. Soto Bros. & 12, ; 21. Ingham v. Weed, 5 Cal. Unreported s, 6, 649, (holding that the assignees of promissory notes could bring suit where the assignors retained part of the beneficial interest in the outcome, and expressly noting that the assignees could bring suit even if the entire interest in the notes had been assigned to them as "agents for collection" because, citing Pomeroy and prior California cases "to the same effect," an assignee can bring suit where he has "legal title" to a claim, notwithstanding "any contemporaneous collateral agreement" by which he is to account to the assignor for part or even "the whole proceeds"); 22. Citizens' 9 S.D. 4, 5, 6, 0, (holding that where the assignee "took a formal written assignment absolute in terms, but with the understanding that he would take the claim, collect what he could, and turn over to the company the proceeds thereof less the expenses of collection," the assignee could sue because the "rule is that a written or verbal assignment, absolute in terms, and vesting in the assignee the apparent legal title to a chose in action, is unaffected by a collateral contemporaneous agreement respecting the proceeds"); 23. 1 Wis. 70, (adopting New York's rule that an assignee is the real party in interest so long as he "holds the legal title" to an assigned claim, regardless of the existence of "any private or implied understanding" between the assignor and assignee concerning the beneficial interest ); 24. Roth v. Continental Wire 94 Mo.App. 262-264, ; 25. 68 Ka 400, ; 26. Eagle Mining & Improvement v. Lund, ; 27. 514-515 *2 28. James v. Lederer-Strauss &
Justice Kennedy	majority	false	Romer v. Evans	1996-06-03T00:00:00	null	https://www.courtlistener.com/opinion/118027/romer-v-evans/	https://www.courtlistener.com/api/rest/v3/clusters/118027/	1,996	1995-053	2	6	3	One century ago, the first Justice Harlan admonished this Court that the Constitution "neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion). Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado's Constitution. I The enactment challenged in this case is an amendment to the Constitution of the State of Colorado, adopted in a 1992 statewide referendum. The parties and the state courts refer to it as "Amendment 2," its designation when submitted to the voters. The impetus for the amendment and the contentious campaign that preceded its adoption came in large part from ordinances that had been passed in various Colorado municipalities. For example, the cities of Aspen and Boulder and the city and County of Denver each had 624 enacted ordinances which banned discrimination in many transactions and activities, including housing, employment, education, public accommodations, and health and welfare services. Denver Rev. Municipal Code, Art. IV, §§ 28-91 to 28-116 (1991); Aspen Municipal Code § 13-98 (1977); Boulder Rev. Code §§ 12-11 to 12-111 (1987). What gave rise to the statewide controversy was the protection the ordinances afforded to persons discriminated against by reason of their sexual orientation. See Boulder Rev. Code § 12-11 (defining "sexual orientation" as "the choice of sexual partners, i. e., bisexual, homosexual or heterosexual"); Denver Rev. Municipal Code, Art. IV, § 28-92 (defining "sexual orientation" as "[t]he status of an individual as to his or her heterosexuality, homosexuality or bisexuality"). Amendment 2 repeals these ordinances to the extent they prohibit discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." Colo. Const., Art. II, § 30b. Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians. The amendment reads: "No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing." Ibid. 625 Soon after Amendment 2 was adopted, this litigation to declare its invalidity and enjoin its enforcement was commenced in the District Court for the City and County of Denver. Among the plaintiffs (respondents here) were homosexual persons, some of them government employees. They alleged that enforcement of Amendment 2 would subject them to immediate and substantial risk of discrimination on the basis of their sexual orientation. Other plaintiffs (also respondents here) included the three municipalities whose ordinances we have cited and certain other governmental entities which had acted earlier to protect homosexuals from discrimination but would be prevented by Amendment 2 from continuing to do so. Although Governor Romer had been on record opposing the adoption of Amendment 2, he was named in his official capacity as a defendant, together with the Colorado Attorney General and the State of Colorado. The trial court granted a preliminary injunction to stay enforcement of Amendment 2, and an appeal was taken to the Supreme Court of Colorado. Sustaining the interim injunction and remanding the case for further proceedings, the State Supreme Court held that Amendment 2 was subject to strict scrutiny under the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. Evans v. Romer, 854 P.2d 1270 (Colo. 1993) (Evans I). To reach this conclusion, the state court relied on our voting rights cases, e. g., Reynolds v. Sims, 377 U.S. 533 (1964); Carrington v. Rash, 380 U.S. 89 (1965); Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); Williams v. Rhodes, 393 U.S. 23 (1968), and on our precedents involving discriminatory restructuring of governmental decisionmaking, see, e. g., Hunter v. Erickson, 393 U.S. 385 (1969); Reitman v. Mulkey, 387 U.S. 369 (1967); Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982); Gordon v. Lance, 403 U.S. 1 (1971). On remand, the State advanced various arguments in an effort to show that 626 Amendment 2 was narrowly tailored to serve compelling interests, but the trial court found none sufficient. It enjoined enforcement of Amendment 2, and the Supreme Court of Colorado, in a second opinion, affirmed the ruling. 882 P.2d 1335 (1994) (Evans II). We granted certiorari, 513 U.S. 1146 (1995), and now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court. II The State's principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons. So, the State says, the measure does no more than deny homosexuals special rights. This reading of the amendment's language is implausible. We rely not upon our own interpretation of the amendment but upon the authoritative construction of Colorado's Supreme Court. The state court, deeming it unnecessary to determine the full extent of the amendment's reach, found it invalid even on a modest reading of its implications. The critical discussion of the amendment, set out in Evans I, is as follows: "The immediate objective of Amendment 2 is, at a minimum, to repeal existing statutes, regulations, ordinances, and policies of state and local entities that barred discrimination based on sexual orientation. See Aspen, Colo., Mun. Code § 13-98 (1977) (prohibiting discrimination in employment, housing and public accommodations on the basis of sexual orientation); Boulder, Colo., Rev. Code §§ 12-12 to 4 (1987) (same); Denver, Colo., Rev. Mun. Code art. IV, §§ 28-91 to 116 (1991) (same); Executive Order No. D0035 (December 10, 1990) (prohibiting employment discrimination for `all state employees, classified and exempt' on the basis of sexual orientation); Colorado Insurance Code, § 10-31104, 4A C. R. S. (1992 Supp.) (forbidding health insurance providers from determining insurability and premiums based on an applicant's, a beneficiary's, or an insured's 627 sexual orientation); and various provisions prohibiting discrimination based on sexual orientation at state colleges.[26] "26 Metropolitan State College of Denver prohibits college sponsored social clubs from discriminating in membership on the basis of sexual orientation and Colorado State University has an antidiscrimination policy which encompasses sexual orientation. "The `ultimate effect' of Amendment 2 is to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future unless the state constitution is first amended to permit such measures." 854 P.2d, at 1284 1285, and n. 26. Sweeping and comprehensive is the change in legal status effected by this law. So much is evident from the ordinances the Colorado Supreme Court declared would be void by operation of Amendment 2. Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies. The change Amendment 2 works in the legal status of gays and lesbians in the private sphere is far reaching, both on its own terms and when considered in light of the structure and operation of modern antidiscrimination laws. That structure is well illustrated by contemporary statutes and ordinances prohibiting discrimination by providers of public accommodations. "At common law, innkeepers, smiths, and others who `made profession of a public employment,' were prohibited from refusing, without good reason, to serve a customer." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 571 (1995). The duty was a general one and did not specify protection for particular groups. The common-law rules, however, proved 628 insufficient in many instances, and it was settled early that the Fourteenth Amendment did not give Congress a general power to prohibit discrimination in public accommodations, Civil Rights Cases, 109 U.S. 3, 25 (1883). In consequence, most States have chosen to counter discrimination by enacting detailed statutory schemes. See, e. g., S. D. Codified Laws §§ 20-13-10, 20-13-22, 20-13-23 (1995); Iowa Code §§ 216.6-216.8 (1994); Okla. Stat., Tit. 25, §§ 1302, 1402 (1987); 43 Pa. Cons. Stat. §§ 953, 955 (Supp. 1995); N. J. Stat. Ann. §§ 10:5-3, 10:5-4 (West Supp. 1995); N. H. Rev. Stat. Ann. §§ 354A:7, 354A:10, 354A:17 (1995); Minn. Stat. § 363.03 (1991 and Supp. 1995). Colorado's state and municipal laws typify this emerging tradition of statutory protection and follow a consistent pattern. The laws first enumerate the persons or entities subject to a duty not to discriminate. The list goes well beyond the entities covered by the common law. The Boulder ordinance, for example, has a comprehensive definition of entities deemed places of "public accommodation." They include "any place of business engaged in any sales to the general public and any place that offers services, facilities, privileges, or advantages to the general public or that receives financial support through solicitation of the general public or through governmental subsidy of any kind." Boulder Rev. Code § 12-11(j) (1987). The Denver ordinance is of similar breadth, applying, for example, to hotels, restaurants, hospitals, dental clinics, theaters, banks, common carriers, travel and insurance agencies, and "shops and stores dealing with goods or services of any kind," Denver Rev. Municipal Code, Art. IV, § 28-92 (1991). These statutes and ordinances also depart from the common law by enumerating the groups or persons within their ambit of protection. Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply. In following this approach, Colorado's state and local governments have 629 not limited antidiscrimination laws to groups that have so far been given the protection of heightened equal protection scrutiny under our cases. See, e. g., J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 135 (1994) (sex); Lalli v. Lalli, 439 U.S. 259, 265 (1978) (illegitimacy); McLaughlin v. Florida, 379 U.S. 184, 191-192 (1964) (race); Oyama v. California, 332 U.S. 633 (1948) (ancestry). Rather, they set forth an extensive catalog of traits which cannot be the basis for discrimination, including age, military status, marital status, pregnancy, parenthood, custody of a minor child, political affiliation, physical or mental disability of an individual or of his or her associates-and, in recent times, sexual orientation. Aspen Municipal Code § 13-98(a)(1) (1977); Boulder Rev. Code §§ 12-11 to 12-14 (1987); Denver Rev. Municipal Code, Art. IV, §§ 28-92 to 28-119 (1991); Colo. Rev. Stat. §§ 24-34-401 to XX-XX-XXX (1988 and Supp. 1995). Amendment 2 bars homosexuals from securing protection against the injuries that these public-accommodations laws address. That in itself is a severe consequence, but there is more. Amendment 2, in addition, nullifies specific legal protections for this targeted class in all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment. See, e. g., Aspen Municipal Code §§ 13-98(b), (c) (1977); Boulder Rev. Code §§ 12-12, 12-13 (1987); Denver Rev. Municipal Code, Art. IV, §§ 28-93 to 28-95, 28-97 (1991). Not confined to the private sphere, Amendment 2 also operates to repeal and forbid all laws or policies providing specific protection for gays or lesbians from discrimination by every level of Colorado government. The State Supreme Court cited two examples of protections in the governmental sphere that are now rescinded and may not be reintroduced. The first is Colorado Executive Order D0035 (1990), which forbids employment discrimination against "`all state employees, classified and exempt' on the basis of sexual orientation." 854 P.2d, at 1284. Also repealed, and now forbidden, 630 are "various provisions prohibiting discrimination based on sexual orientation at state colleges." Id., at 1284, 1285. The repeal of these measures and the prohibition against their future reenactment demonstrate that Amendment 2 has the same force and effect in Colorado's governmental sector as it does elsewhere and that it applies to policies as well as ordinary legislation. Amendment 2's reach may not be limited to specific laws passed for the benefit of gays and lesbians. It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings. See, e. g., Colo. Rev. Stat. § 24-4106(7) (1988) (agency action subject to judicial review under arbitrary and capricious standard); § 18-8405 (making it a criminal offense for a public servant knowingly, arbitrarily, or capriciously to refrain from performing a duty imposed on him by law); § 10-31104(1)(f) (prohibiting "unfair discrimination" in insurance); 4 Colo. Code of Regulations 801-1, Policy 11-1 (1983) (prohibiting discrimination in state employment on grounds of specified traits or "other non-merit factor"). At some point in the systematic administration of these laws, an official must determine whether homosexuality is an arbitrary and, thus, forbidden basis for decision. Yet a decision to that effect would itself amount to a policy prohibiting discrimination on the basis of homosexuality, and so would appear to be no more valid under Amendment 2 than the specific prohibitions against discrimination the state court held invalid. If this consequence follows from Amendment 2, as its broad language suggests, it would compound the constitutional difficulties the law creates. The state court did not decide whether the amendment has this effect, however, and neither need we. In the course of rejecting the argument that Amendment 2 is intended to conserve resources to fight discrimination against suspect classes, the Colorado Supreme 631 Court made the limited observation that the amendment is not intended to affect many antidiscrimination laws protecting nonsuspect classes, Romer II, 882 P. 2d, at 1346, n. 9. In our view that does not resolve the issue. In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society. III The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271-272 (1979); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e. g., Heller v. Doe, 509 U.S. 312, 319-320 (1993). 632 Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. Taking the first point, even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. See New Orleans v. Dukes, 427 U.S. 297 (1976) (tourism benefits justified classification favoring pushcart vendors of certain longevity); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955) (assumed health concerns justified law favoring optometrists over opticians); Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949) (potential traffic hazards justified exemption of vehicles advertising the owner's products from general advertising ban); Kotch v. Board of River Port Pilot Comm'rs for Port of New Orleans, 330 U.S. 552 (1947) (licensing scheme that disfavored persons unrelated to current river boat pilots justified by possible efficiency and safety benefits of a closely knit pilotage system). The laws challenged in the cases just cited were narrow enough in scope and grounded in a sufficient factual context for us to 633 ascertain some relation between the classification and the purpose it served. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. See Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring) ("If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect"). Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; "[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision." Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928). It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "`Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.' " Sweatt v. Painter, 339 U.S. 629, 635 (1950) (quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948)). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of `equal protection of the laws 634 is a pledge of the protection of equal laws.' " Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)). Davis v. Beason, 133 U.S. 333 (1890), not cited by the parties but relied upon by the dissent, is not evidence that Amendment 2 is within our constitutional tradition, and any reliance upon it as authority for sustaining the amendment is misplaced. In Davis, the Court approved an Idaho territorial statute denying Mormons, polygamists, and advocates of polygamy the right to vote and to hold office because, as the Court construed the statute, it "simply excludes from the privilege of voting, or of holding any office of honor, trust or profit, those who have been convicted of certain offences, and those who advocate a practical resistance to the laws of the Territory and justify and approve the commission of crimes forbidden by it." Id., at 347. To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. Dunn v. Blumstein, 405 U.S. 330, 337 (1972); cf. United States v. Brown, 381 U.S. 437 (1965); United States v. Robel, 389 U.S. 258 (1967). To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable. See Richardson v. Ramirez, 418 U.S. 24 (1974). A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. "[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Department of Agriculture v. Moreno, 413 U.S. 528, 534 635 (1973). Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462 (1988), and Amendment 2 does not. The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . ." Civil Rights Cases, 109 U. S., at 24. We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, *636 and the judgment of the Supreme Court of Colorado is affirmed. It is so ordered.	One century ago, the first Justice Harlan admonished this Court that the Constitution "neither knows nor tolerates classes among citizens." Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado's Constitution. I The enactment challenged in this case is an amendment to the Constitution of the State of Colorado, adopted in a 1992 statewide referendum. The parties and the state courts refer to it as "Amendment 2," its designation when submitted to the voters. The impetus for the amendment and the contentious campaign that preceded its adoption came in large part from ordinances that had been passed in various Colorado municipalities. For example, the cities of Aspen and Boulder and the city and County of Denver each had 624 enacted ordinances which banned discrimination in many transactions and activities, including housing, employment, education, public accommodations, and health and welfare services. Denver Rev. Municipal Code, Art. IV, 28-91 to 28-116 (1991); Aspen Municipal Code 13-98 (1977); Boulder Rev. Code 12-11 to 12-111 (1987). What gave rise to the statewide controversy was the protection the ordinances afforded to persons discriminated against by reason of their sexual orientation. See Boulder Rev. Code 12-11 (defining "sexual orientation" as "the choice of sexual partners, i. e., bisexual, homosexual or heterosexual"); Denver Rev. Municipal Code, Art. IV, 28-92 (defining "sexual orientation" as "[t]he status of an individual as to his or her heterosexuality, homosexuality or bisexuality"). Amendment 2 repeals these ordinances to the extent they prohibit discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." Colo. Const., Art. II, 30b. Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians. The amendment reads: "No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing." 6 Soon after Amendment 2 was adopted, this litigation to declare its invalidity and enjoin its enforcement was commenced in the District Court for the City and County of Denver. Among the plaintiffs (respondents here) were homosexual persons, some of them government employees. They alleged that enforcement of Amendment 2 would subject them to immediate and substantial risk of discrimination on the basis of their sexual orientation. Other plaintiffs (also respondents here) included the three municipalities whose ordinances we have cited and certain other governmental entities which had acted earlier to protect homosexuals from discrimination but would be prevented by Amendment 2 from continuing to do so. Although Governor Romer had been on record opposing the adoption of Amendment 2, he was named in his official capacity as a defendant, together with the Colorado Attorney General and the State of Colorado. The trial court granted a preliminary injunction to stay enforcement of Amendment 2, and an appeal was taken to the Supreme Court of Colorado. Sustaining the interim injunction and remanding the case for further proceedings, the State Supreme Court held that Amendment 2 was subject to strict scrutiny under the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. To reach this conclusion, the state court relied on our voting rights cases, e. g., ; ; ; and on our precedents involving discriminatory restructuring of governmental decisionmaking, see, e. g., ; ; ; On remand, the State advanced various arguments in an effort to show that 626 Amendment 2 was narrowly tailored to serve compelling interests, but the trial court found none sufficient. It enjoined enforcement of Amendment 2, and the Supreme Court of Colorado, in a second opinion, affirmed the ruling. We granted certiorari, and now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court. II The State's principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons. So, the State says, the measure does no more than deny homosexuals special rights. This reading of the amendment's language is implausible. We rely not upon our own interpretation of the amendment but upon the authoritative construction of Colorado's Supreme Court. The state court, deeming it unnecessary to determine the full extent of the amendment's reach, found it invalid even on a modest reading of its implications. The critical discussion of the amendment, set out in Evans I, is as follows: "The immediate objective of Amendment 2 is, at a minimum, to repeal existing statutes, regulations, ordinances, and policies of state and local entities that barred discrimination based on sexual orientation. See Aspen, Colo., Mun. Code 13-98 (1977) (prohibiting discrimination in employment, housing and public accommodations on the basis of sexual orientation); Boulder, Colo., Rev. Code 12-12 to 4 (1987) (same); Denver, Colo., Rev. Mun. Code art. IV, 28-91 to 116 (1991) (same); Executive Order No. D0035 (December 10, 1990) (prohibiting employment discrimination for `all state employees, classified and exempt' on the basis of sexual orientation); Colorado Insurance Code, 10-31104, 4A C. R. S. (1992 Supp.) (forbidding health insurance providers from determining insurability and premiums based on an applicant's, a beneficiary's, or an insured's 627 sexual orientation); and various provisions prohibiting discrimination based on sexual orientation at state colleges.[26] "26 Metropolitan State College of Denver prohibits college sponsored social clubs from discriminating in membership on the basis of sexual orientation and Colorado State University has an antidiscrimination policy which encompasses sexual orientation. "The `ultimate effect' of Amendment 2 is to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future unless the state constitution is first amended to permit such measures." 1285, and n. 26. Sweeping and comprehensive is the change in legal status effected by this law. So much is evident from the ordinances the Colorado Supreme Court declared would be void by operation of Amendment 2. Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies. The change Amendment 2 works in the legal status of gays and lesbians in the private sphere is far reaching, both on its own terms and when considered in light of the structure and operation of modern antidiscrimination laws. That structure is well illustrated by contemporary statutes and ordinances prohibiting discrimination by providers of public accommodations. "At common law, innkeepers, smiths, and others who `made profession of a public employment,' were prohibited from refusing, without good reason, to serve a customer." The duty was a general one and did not specify protection for particular groups. The common-law rules, however, proved 628 insufficient in many instances, and it was settled early that the Fourteenth Amendment did not give Congress a general power to prohibit discrimination in public accommodations, Civil Rights In consequence, most States have chosen to counter discrimination by enacting detailed statutory schemes. See, e. g., S. D. Codified Laws 20-13-10, 20-13-, 20-13-23 ; Iowa Code 216.6-216.8 ; Okla. Stat., Tit. 1302, 1402 (1987); 43 Pa. Cons. Stat. 953, 955 ; N. J. Stat. Ann. 10:5-3, 10:5-4 ; N. H. Rev. Stat. Ann. 354A:7, 354A:10, 354A:17 ; Minn. Stat. 363.03 Colorado's state and municipal laws typify this emerging tradition of statutory protection and follow a consistent pattern. The laws first enumerate the persons or entities subject to a duty not to discriminate. The list goes well beyond the entities covered by the common law. The Boulder ordinance, for example, has a comprehensive definition of entities deemed places of "public accommodation." They include "any place of business engaged in any sales to the general public and any place that offers services, facilities, privileges, or advantages to the general public or that receives financial support through solicitation of the general public or through governmental subsidy of any kind." Boulder Rev. Code 12-11(j) (1987). The Denver ordinance is of similar breadth, applying, for example, to hotels, restaurants, hospitals, dental clinics, theaters, banks, common carriers, travel and insurance agencies, and "shops and stores dealing with goods or services of any kind," Denver Rev. Municipal Code, Art. IV, 28-92 (1991). These statutes and ordinances also depart from the common law by enumerating the groups or persons within their ambit of protection. Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply. In following this approach, Colorado's state and local governments have 629 not limited antidiscrimination laws to groups that have so far been given the protection of heightened equal protection scrutiny under our cases. See, e. g., J. E. ; 439 U.S. 9, ; ; Rather, they set forth an extensive catalog of traits which cannot be the basis for discrimination, including age, military status, marital status, pregnancy, parenthood, custody of a minor child, political affiliation, physical or mental disability of an individual or of his or her associates-and, in recent times, sexual orientation. Aspen Municipal Code 13-98(a)(1) (1977); Boulder Rev. Code 12-11 to 12-14 (1987); Denver Rev. Municipal Code, Art. IV, 28-92 to 28-119 (1991); Colo. Rev. Stat. 24-34-401 to XX-XX-XXX Amendment 2 bars homosexuals from securing protection against the injuries that these public-accommodations laws address. That in itself is a severe consequence, but there is more. Amendment 2, in addition, nullifies specific legal protections for this targeted class in all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment. See, e. g., Aspen Municipal Code 13-98(b), (c) (1977); Boulder Rev. Code 12-12, 12-13 (1987); Denver Rev. Municipal Code, Art. IV, 28-93 to 28-95, 28-97 (1991). Not confined to the private sphere, Amendment 2 also operates to repeal and forbid all laws or policies providing specific protection for gays or lesbians from discrimination by every level of Colorado government. The State Supreme Court cited two examples of protections in the governmental sphere that are now rescinded and may not be reintroduced. The first is Colorado Executive Order D0035 (1990), which forbids employment discrimination against "`all state employees, classified and exempt' on the basis of sexual orientation." Also repealed, and now forbidden, 630 are "various provisions prohibiting discrimination based on sexual orientation at state colleges." The repeal of these measures and the prohibition against their future reenactment demonstrate that Amendment 2 has the same force and effect in Colorado's governmental sector as it does elsewhere and that it applies to policies as well as ordinary legislation. Amendment 2's reach may not be limited to specific laws passed for the benefit of gays and lesbians. It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings. See, e. g., Colo. Rev. Stat. 24-4106(7) (agency action subject to judicial review under arbitrary and capricious standard); 18-8405 (making it a criminal offense for a public servant knowingly, arbitrarily, or capriciously to refrain from performing a duty imposed on him by law); 10-31104(1)(f) (prohibiting "unfair discrimination" in insurance); 4 Colo. Code of Regulations 801-1, Policy 11-1 (1983) (prohibiting discrimination in state employment on grounds of specified traits or "other non-merit factor"). At some point in the systematic administration of these laws, an official must determine whether homosexuality is an arbitrary and, thus, forbidden basis for decision. Yet a decision to that effect would itself amount to a policy prohibiting discrimination on the basis of homosexuality, and so would appear to be no more valid under Amendment 2 than the specific prohibitions against discrimination the state court held invalid. If this consequence follows from Amendment 2, as its broad language suggests, it would compound the constitutional difficulties the law creates. The state court did not decide whether the amendment has this effect, however, and neither need we. In the course of rejecting the argument that Amendment 2 is intended to conserve resources to fight discrimination against suspect classes, the Colorado Supreme 631 Court made the limited observation that the amendment is not intended to affect many antidiscrimination laws protecting nonsuspect classes, Romer II, 882 P. 2d, at 1346, n. 9. In our view that does not resolve the issue. In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society. III The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of 442 U.S. 6, ; F. S. Royster Guano 3 U.S. 412, We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e. g., 632 Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. Taking the first point, even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. See New ; ; Railway Express Agency, ; The laws challenged in the cases just cited were narrow enough in scope and grounded in a sufficient factual context for us to 633 ascertain some relation between the classification and the purpose it served. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. See Railroad Retirement ("If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect"). Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; "[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision." Louisville Gas & Elec. It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "`Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.' " ). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of `equal protection of the laws 634 is a pledge of the protection of equal laws.' " not cited by the parties but relied upon by the dissent, is not evidence that Amendment 2 is within our constitutional tradition, and any reliance upon it as authority for sustaining the amendment is misplaced. In Davis, the Court approved an Idaho territorial statute denying Mormons, polygamists, and advocates of polygamy the right to vote and to hold office because, as the Court construed the statute, it "simply excludes from the privilege of voting, or of holding any office of honor, trust or profit, those who have been convicted of certain offences, and those who advocate a practical resistance to the laws of the Territory and justify and approve the commission of crimes forbidden by it." To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. ; cf. United ; United 389 U.S. 8 To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable. See A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. "[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Department of 534 Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, and Amendment 2 does not. The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation [is] obnoxious to the prohibitions of the Fourteenth Amendment" Civil Rights We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, *636 and the judgment of the Supreme Court of Colorado is affirmed. It is so ordered.
Justice Kennedy	concurring	false	Johnson v. United States	2015-06-26T00:00:00	null	https://www.courtlistener.com/opinion/2812210/johnson-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/2812210/	2,015	2014-016	2	8	1	In my view, and for the reasons well stated by JUSTICE ALITO in dissent, the residual clause of the Armed Career Criminal Act is not unconstitutionally vague under the categorical approach or a record-based approach. On the assumption that the categorical approach ought to still control, and for the reasons given by JUSTICE THOMAS in Part I of his opinion concurring in the judgment, Johnson’s conviction for possession of a short-barreled shotgun does not qualify as a violent felony. For these reasons, I concur in the judgment. Cite as: 576 U. S. ____ (2015) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 13–7120 _________________ SAMUEL JAMES JOHNSON, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT [June 26, 2015] JUSTICE THOMAS, concurring in the judgment. I agree with the Court that Johnson’s sentence cannot stand. But rather than use the Fifth Amendment’s Due Process Clause to nullify an Act of Congress, I would resolve this case on more ordinary grounds. Under con- ventional principles of interpretation and our precedents, the offense of unlawfully possessing a short-barreled shotgun does not constitute a “violent felony” under the residual clause of the Armed Career Criminal Act (ACCA). The majority wants more. Not content to engage in the usual business of interpreting statutes, it holds this clause to be unconstitutionally vague, notwithstanding the fact that on four previous occasions we found it determinate enough for judicial application. As JUSTICE ALITO ex- plains, that decision cannot be reconciled with our prece- dents concerning the vagueness doctrine. See post, at 13– 17 (dissenting opinion). But even if it were a closer case under those decisions, I would be wary of holding the residual clause to be unconstitutionally vague. Although I have joined the Court in applying our modern vagueness doctrine in the past, see FCC v. Fox Television Stations, Inc., 567 U. S. ___, ___–___ (2012) (slip op., at 16–17), I have become increasingly concerned about its origins and application. Simply put, our vagueness doctrine shares an uncomfortably similar history with substantive due pro- 2 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment cess, a judicially created doctrine lacking any basis in the Constitution. I We could have easily disposed of this case without nulli- fying ACCA’s residual clause. Under ordinary principles of statutory interpretation, the crime of unlawfully pos- sessing a short-barreled shotgun does not constitute a “violent felony” under ACCA. In relevant part, that Act defines a “violent felony” as a “crime punishable by im- prisonment for a term exceeding one year” that either “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that pre- sents a serious potential risk of physical injury to an- other.” 18 U.S. C. §924(e)(2)(B). The offense of unlawfully possessing a short-barreled shotgun neither satisfies the first clause of this definition nor falls within the enumerated offenses in the second. It therefore can constitute a violent felony only if it falls within ACCA’s so-called “residual clause”—i.e., if it “in- volves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). To determine whether an offense falls within the resid- ual clause, we consider “whether the conduct encompassed by the elements of the offense, in the ordinary case, pre- sents a serious potential risk of injury to another.” James v. United States, 550 U.S. 192, 208 (2007). The specific crimes listed in §924(e)(2)(B)(ii)—arson, extortion, bur- glary, and an offense involving the use of explosives—offer a “baseline against which to measure the degree of risk” a crime must present to fall within that clause. Id., at 208. Those offenses do not provide a high threshold, see id., at Cite as: 576 U. S. ____ (2015) 3 THOMAS, J., concurring in judgment 203, 207–208, but the crime in question must still present a “ ‘serious’ ”—a “ ‘significant’ or ‘important’ ”—risk of physical injury to be deemed a violent felony, Begay v. United States, 553 U.S. 137, 156 (2008) (ALITO, J., dis- senting); accord, Chambers v. United States, 555 U.S. 122, 128 (2009). To qualify as serious, the risk of injury generally must be closely related to the offense itself. Our precedents provide useful examples of the close relationship that must exist between the conduct of the offense and the risk presented. In Sykes v. United States, 564 U.S. 1 (2011), for instance, we held that the offense of intentional vehicu- lar flight constitutes a violent felony because that conduct always triggers a dangerous confrontation, id., at ___ (slip op., at 8). As we explained, vehicular flights “by defini- tional necessity occur when police are present” and are done “in defiance of their instructions . . . with a vehicle that can be used in a way to cause serious potential risk of physical injury to another.” Ibid. In James, we likewise held that attempted burglary offenses “requir[ing] an overt act directed toward the entry of a structure” are violent felonies because the underlying conduct often results in a dangerous confrontation. 550 U.S., at 204, 206. But we distinguished those crimes from “the more attenuated conduct encompassed by” attempt offenses “that c[an] be satisfied by preparatory conduct that does not pose the same risk of violent confrontation,” such as “ ‘possessing burglary tools.’ ” Id., at 205, 206, and n. 4. At some point, in other words, the risk of injury from the crime may be too attenuated for the conviction to fall within the residual clause, such as when an additional, voluntary act (e.g., the use of burglary tools to enter a structure) is necessary to bring about the risk of physical injury to another. In light of the elements of and reported convictions for the unlawful possession of a short-barreled shotgun, this 4 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment crime does not “involv[e] conduct that presents a serious potential risk of physical injury to another,” §924(e) (2)(B)(ii). The acts that form the basis of this offense are simply too remote from a risk of physical injury to fall within the residual clause. Standing alone, the elements of this offense—(1) unlaw- fully (2) possessing (3) a short-barreled shotgun—do not describe inherently dangerous conduct. As a conceptual matter, “simple possession [of a firearm], even by a felon, takes place in a variety of ways (e.g., in a closet, in a store- room, in a car, in a pocket) many, perhaps most, of which do not involve likely accompanying violence.” United States v. Doe, 960 F.2d 221, 225 (CA1 1992). These weap- ons also can be stored in a manner posing a danger to no one, such as unloaded, disassembled, or locked away. By themselves, the elements of this offense indicate that the ordinary commission of this crime is far less risky than ACCA’s enumerated offenses. Reported convictions support the conclusion that mere possession of a short-barreled shotgun does not, in the ordinary case, pose a serious risk of injury to others. A few examples suffice. In one case, officers found the sawed-off shotgun locked inside a gun cabinet in an empty home. State v. Salyers, 858 N.W.2d 156, 157–158 (Minn. 2015). In another, the firearm was retrieved from the trunk of the defendant’s car. State v. Ellenberger, 543 N. W. 2d 673, 674 (Minn. App. 1996). In still another, the weapon was found missing a firing pin. State v. Johnson, 171 Wis. 2d 175, 178, 491 N.W.2d 110, 111 (App. 1992). In these instances and others, the offense threatened no one. The Government’s theory for why this crime should nonetheless qualify as a “violent felony” is unpersuasive. Although it does not dispute that the unlawful possession of a short-barreled shotgun can occur in a nondangerous manner, the Government contends that this offense poses Cite as: 576 U. S. ____ (2015) 5 THOMAS, J., concurring in judgment a serious risk of physical injury due to the connection between short-barreled shotguns and other serious crimes. As the Government explains, these firearms are “weapons not typically possessed by law-abiding citizens for lawful purposes,” District of Columbia v. Heller, 554 U.S. 570, 625 (2008), but are instead primarily intended for use in criminal activity. In light of that intended use, the Gov- ernment reasons that the ordinary case of this possession offense will involve the use of a short-barreled shotgun in a serious crime, a scenario obviously posing a serious risk of physical injury. But even assuming that those who unlawfully possess these weapons typically intend to use them in a serious crime, the risk that the Government identifies arises not from the act of possessing the weapon, but from the act of using it. Unlike attempted burglary (at least of the type at issue in James) or intentional vehicular flight—conduct that by itself often or always invites a dangerous confron- tation—possession of a short-barreled shotgun poses a threat only when an offender decides to engage in addi- tional, voluntary conduct that is not included in the ele- ments of the crime. Until this weapon is assembled, load- ed, or used, for example, it poses no risk of injury to others in and of itself. The risk of injury to others from mere possession of this firearm is too attenuated to treat this offense as a violent felony. I would reverse the Court of Appeals on that basis. II As the foregoing analysis demonstrates, ACCA’s resid- ual clause can be applied in a principled manner. One would have thought this proposition well established given that we have already decided four cases addressing this clause. The majority nonetheless concludes that the oper- ation of this provision violates the Fifth Amendment’s Due Process Clause. 6 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment JUSTICE ALITO shows why that analysis is wrong under our precedents. See post, at 13–17 (dissenting opinion). But I have some concerns about our modern vagueness doctrine itself. Whether that doctrine is defensible under the original meaning of “due process of law” is a difficult question I leave for the another day, but the doctrine’s history should prompt us at least to examine its constitu- tional underpinnings more closely before we use it to nullify yet another duly enacted law. A We have become accustomed to using the Due Process Clauses to invalidate laws on the ground of “vagueness.” The doctrine we have developed is quite sweeping: “A statute can be impermissibly vague . . . if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” or “if it authorizes or even encourages arbitrary and discriminatory enforce- ment.” Hill v. Colorado, 530 U.S. 703, 732 (2000). Using this framework, we have nullified a wide range of enact- ments. We have struck down laws ranging from city ordinances, Papachristou v. Jacksonville, 405 U.S. 156, 165–171 (1972), to Acts of Congress, United States v. L. Cohen Grocery Co., 255 U.S. 81, 89–93 (1921). We have struck down laws whether they are penal, Lanzetta v. New Jersey, 306 U.S. 451, 452, 458 (1939), or not, Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.S. 589, 597–604 (1967).1 We have struck down laws addressing —————— 1 By “penal,” I mean laws “authoriz[ing] criminal punishment” as well as those “authorizing fines or forfeitures . . . [that] are enforced through civil rather than criminal process.” Cf. C. Nelson, Statutory Interpreta- tion 108 (2011) (discussing definition of “penal” for purposes of rule of lenity). A law requiring termination of employment from public insti- tutions, for instance, is not penal. See Keyishian, 385 U.S., at 597– 604. Nor is a law creating an “obligation to pay taxes.” Milwaukee County v. M. E. White Co., 296 U.S. 268, 271 (1935). Conversely, a law imposing a monetary exaction as a punishment for noncompliance with Cite as: 576 U. S. ____ (2015) 7 THOMAS, J., concurring in judgment subjects ranging from abortion, Colautti v. Franklin, 439 U.S. 379, 390 (1979), and obscenity, Winters v. New York, 333 U.S. 507, 517–520 (1948), to the minimum wage, Connally v. General Constr. Co., 269 U.S. 385, 390–395 (1926), and antitrust, Cline v. Frink Dairy Co., 274 U.S. 445, 453–465 (1927). We have even struck down a law using a term that has been used to describe criminal conduct in this country since before the Constitution was ratified. Chicago v. Morales, 527 U.S. 41, 51 (1999) (in- validating a “loitering” law); see id., at 113, and n. 10 (THOMAS, J., dissenting) (discussing a 1764 Georgia law requiring the apprehension of “all able bodied persons . . . who shall be found loitering”). That we have repeatedly used a doctrine to invalidate laws does not make it legitimate. Cf., e.g., Dred Scott v. Sandford, 19 How. 393, 450–452 (1857) (stating that an Act of Congress prohibiting slavery in certain Federal Territories violated the substantive due process rights of slaveowners and was therefore void). This Court has a history of wielding doctrines purportedly rooted in “due process of law” to achieve its own policy goals, substantive due process being the poster child. See McDonald v. Chicago, 561 U.S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment) (“The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfun- damental rights that do not”). Although our vagueness doctrine is distinct from substantive due process, their histories have disquieting parallels. 1 The problem of vague penal statutes is nothing new. —————— a regulatory mandate is penal. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___–___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 16–26). 8 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment The notion that such laws may be void under the Consti- tution’s Due Process Clauses, however, is a more recent development. Before the end of the 19th century, courts addressed vagueness through a rule of strict construction of penal statutes, not a rule of constitutional law. This rule of construction—better known today as the rule of lenity— first emerged in 16th-century England in reaction to Parliament’s practice of making large swaths of crimes capital offenses, though it did not gain broad acceptance until the following century. See Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 749– 751 (1935); see also 1 L. Radzinowicz, A History of English Criminal Law and Its Administration From 1750, pp. 10– 11 (1948) (noting that some of the following crimes trig- gered the death penalty: “marking the edges of any current coin of the kingdom,” “maliciously cutting any hop- binds growing on poles in any plantation of hops,” and “being in the company of gypsies”). Courts relied on this rule of construction in refusing to apply vague capital- offense statutes to prosecutions before them. As an exam- ple of this rule, William Blackstone described a notable instance in which an English statute imposing the death penalty on anyone convicted of “stealing sheep, or other cattle” was “held to extend to nothing but mere sheep” as “th[e] general words, ‘or other cattle,’ [were] looked upon as much too loose to create a capital offence.” 1 Commen- taries on the Laws of England 88 (1765).2 —————— 2 At the time, the ordinary meaning of the word “cattle” was not lim- ited to cows, but instead encompassed all “[b]easts of pasture; not wild nor domestick.” 1 S. Johnson, A Dictionary of the English Language (4th ed. 1773). Parliament responded to the judicial refusal to apply the provision to “cattle” by passing “another statute, 15 Geo. II. c. 34, extending the [law] to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.” 1 Blackstone, Commentaries on the Laws of England, at 88. Cite as: 576 U. S. ____ (2015) 9 THOMAS, J., concurring in judgment Vague statutes surfaced on this side of the Atlantic as well. Shortly after the First Congress proposed the Bill of Rights, for instance, it passed a law providing “[t]hat every person who shall attempt to trade with the Indian tribes, or be found in the Indian country with such merchandise in his possession as are usually vended to the Indians, without a license,” must forfeit the offending goods. Act of July 22, 1790, ch. 33, §3, 1 Stat. 137–138. At first glance, punishing the unlicensed possession of “merchandise . . . usually vended to the Indians,” ibid., would seem far more likely to “invit[e] arbitrary enforcement,” ante, at 5, than does the residual clause. But rather than strike down arguably vague laws under the Fifth Amendment Due Process Clause, antebellum American courts—like their English predecessors—simply refused to apply them in individual cases under the rule that penal statutes should be construed strictly. See, e.g., United States v. Sharp, 27 F. Cas. 1041 (No. 16,264) (CC Pa. 1815) (Washington, J.). In Sharp, for instance, several defendants charged with violating an Act rendering it a capital offense for “any seaman” to “make a revolt in [a] ship,” Act of Apr. 30, 1790, §8, 1 Stat. 114, objected that “the offence of making a revolt, [wa]s not sufficiently defined by this law, or by any other standard, to which reference could be safely made; to warrant the court in passing a sentence upon [them].” 27 F. Cas., at 1043. Justice Washington, riding circuit, apparently agreed, observing that the common definitions for the phrase “make a revolt” were “so multifarious, and so different” that he could not “avoid feeling a natural repugnance, to selecting from this mass of definitions, one, which may fix a crime upon these men, and that too of a capital nature.” Ibid. Remarking that “[l]aws which create crimes, ought to be so explicit in themselves, or by reference to some other standard, that all men, subject to their penalties, may know what acts it is their duty to avoid,” he refused 10 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment to “recommend to the jury, to find the prisoners guilty of making, or endeavouring to make a revolt, however strong the evidence may be.” Ibid. Such analysis does not mean that federal courts be- lieved they had the power to invalidate vague penal laws as unconstitutional. Indeed, there is good evidence that courts at the time understood judicial review to consist “of a refusal to give a statute effect as operative law in resolv- ing a case,” a notion quite distinct from our modern prac- tice of “ ‘strik[ing] down’ legislation.” Walsh, Partial Un- constitutionality, 85 N. Y. U. L. Rev. 738, 756 (2010). The process of refusing to apply such laws appeared to occur on a case-by-case basis. For instance, notwithstanding his doubts expressed in Sharp, Justice Washington, writing for this Court, later rejected the argument that lower courts could arrest a judgment under the same ship-revolt statute because it “does not define the offence of endeav- ouring to make a revolt.” United States v. Kelly, 11 Wheat. 417, 418 (1826). The Court explained that “it is . . . competent to the Court to give a judicial definition” of “the offence of endeavouring to make a revolt,” and that such definition “consists in the endeavour of the crew of a vessel, or any one or more of them, to overthrow the legit- imate authority of her commander, with intent to remove him from his command, or against his will to take posses- sion of the vessel by assuming the government and navi- gation of her, or by transferring their obedience from the lawful commander to some other person.” Id., at 418–419. In dealing with statutory indeterminacy, federal courts saw themselves engaged in construction, not judicial review as it is now understood. 3 —————— 3 Early American state courts also sometimes refused to apply a law they found completely unintelligible, even outside of the penal context. In one antebellum decision, the Pennsylvania Supreme Court did not even attempt to apply a statute that gave the Pennsylvania state treasurer “ ‘as many votes’ ” in state bank elections as “ ‘were held by Cite as: 576 U. S. ____ (2015) 11 THOMAS, J., concurring in judgment 2 Although vagueness concerns played a role in the strict construction of penal statutes from early on, there is little indication that anyone before the late 19th century be- lieved that courts had the power under the Due Process Clauses to nullify statutes on that ground. Instead, our modern vagueness doctrine materialized after the rise of substantive due process. Following the ratification of the Fourteenth Amendment, corporations began to use that Amendment’s Due Process Clause to challenge state laws that attached penalties to unauthorized commercial con- duct. In addition to claiming that these laws violated their substantive due process rights, these litigants be- gan—with some success—to contend that such laws were unconstitutionally indefinite. In one case, a railroad company challenged a Tennessee law authorizing penal- ties against any railroad that demanded “more than a just and reasonable compensation” or engaged in “unjust and unreasonable discrimination” in setting its rates. Louis- ville & Nashville R. Co. v. Railroad Comm’n of Tenn., 19 F. 679, 690 (CC MD Tenn. 1884) (internal quotation marks deleted). Without specifying the constitutional authority for its holding, the Circuit Court concluded that “[n]o citizen . . . can be constitutionally subjected to penal- ties and despoiled of his property, in a criminal or quasi criminal proceeding, under and by force of such indefinite —————— individuals’ ” without providing guidance as to which individuals it was referring. Commonwealth v. Bank of Pennsylvania, 3 Watts & Serg. 173, 177 (1842). Concluding that it had “seldom, if ever, found the language of legislation so devoid of certainty,” the court withdrew the case. Ibid.; see also Drake v. Drake, 15 N. C. 110, 115 (1833) (“Whether a statute be a public or a private one, if the terms in which it is couched be so vague as to convey no definite meaning to those whose duty it is to execute it, either ministerially or judicially, it is necessarily inopera- tive”). This practice is distinct from our modern vagueness doctrine, which applies to laws that are intelligible but vague. 12 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment legislation.” Id., at 693 (emphasis deleted). Justice Brewer—widely recognized as “a leading spokesman for ‘substantized’ due process,” Gamer, Justice Brewer and Substantive Due Process: A Conservative Court Revisited, 18 Vand. L. Rev. 615, 627 (1965)— employed similar reasoning while riding circuit, though he did not identify the constitutional source of judicial au- thority to nullify vague laws. In reviewing an Iowa law authorizing fines against railroads for charging more than a “reasonable and just” rate, Justice Brewer mentioned in dictum that “no penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it.” Chicago & N. W. R. Co. v. Dey, 35 F. 866, 876 (CC SD Iowa 1888). Constitutional vagueness challenges in this Court ini- tially met with some resistance. Although the Court appeared to acknowledge the possibility of unconstitution- ally indefinite enactments, it repeatedly rejected vague- ness challenges to penal laws addressing railroad rates, Railroad Comm’n Cases, 116 U.S. 307, 336–337 (1886), liquor sales, Ohio ex rel. Lloyd v. Dollison, 194 U.S. 445, 450–451 (1904), and anticompetitive conduct, Nash v. United States, 229 U.S. 373, 376–378 (1913); Waters- Pierce Oil Co. v. Texas (No. 1), 212 U.S. 86, 108–111 (1909). In 1914, however, the Court nullified a law on vague- ness grounds under the Due Process Clause for the first time. In International Harvester Co. of America v. Ken- tucky, 234 U.S. 216 (1914), a tobacco company brought a Fourteenth Amendment challenge against several Ken- tucky antitrust laws that had been construed to render unlawful “any combination [made] . . . for the purpose or with the effect of fixing a price that was greater or less than the real value of the article,” id., at 221. The com- pany argued that by referring to “real value,” the laws pro- Cite as: 576 U. S. ____ (2015) 13 THOMAS, J., concurring in judgment vided “no standard of conduct that it is possible to know.” Ibid. The Court agreed. Id., at 223–224. Although it did not specify in that case which portion of the Fourteenth Amendment served as the basis for its holding, ibid., it explained in a related case that the lack of a knowable standard of conduct in the Kentucky statutes “violated the fundamental principles of justice embraced in the concep- tion of due process of law.” Collins v. Kentucky, 234 U.S. 634, 638 (1914). 3 Since that time, the Court’s application of its vagueness doctrine has largely mirrored its application of substantive due process. During the Lochner era, a period marked by the use of substantive due process to strike down economic regulations, e.g., Lochner v. New York, 198 U.S. 45, 57 (1905), the Court frequently used the vagueness doctrine to invalidate economic regulations penalizing commercial activity.4 Among the penal laws it found to be impermis- sibly vague were a state law regulating the production of crude oil, Champlin Refining Co. v. Corporation Comm’n —————— 4 During this time, the Court would apply its new vagueness doctrine outside of the penal context as well. In A. B. Small Co. v. American Sugar Refining Co., 267 U.S. 233 (1925), a sugar dealer raised a defense to a breach-of-contract suit that the contracts themselves were unlawful under several provisions of the Lever Act, including one making it “ ‘unlawful for any person . . . to make any unjust or unrea- sonable . . . charge in . . . dealing in or with any necessaries,’ or to agree with another ‘to exact excessive prices for any necessaries,’ ” id., at 238. Applying United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921), which had held that provision to be unconstitutionally vague, the Court rejected the dealer’s argument. 267 U.S., at 238–239. The Court explained that “[i]t was not the criminal penalty that was held invalid, but the exaction of obedience to a rule or standard which was so vague and indefinite as really to be no rule or standard at all.” Id., at 239. That doctrine thus applied to penalties as well as “[a]ny other means of exaction, such as declaring the transaction unlawful or stripping a participant of his rights under it.” Ibid. 14 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment of Okla., 286 U.S. 210, 242–243 (1932), a state antitrust law, Cline, 274 U.S., at 453–465, a state minimum-wage law, Connally, 269 U.S., at 390–395, and a federal price- control statute, L. Cohen Grocery Co., 255 U.S., at 89–93.5 Around the time the Court began shifting the focus of its substantive due process (and equal protection) jurispru- dence from economic interests to “discrete and insular minorities,” see United States v. Carolene Products Co., 304 U.S. 144, 153, n. 4 (1938), the target of its vagueness doctrine changed as well. The Court began to use the vagueness doctrine to invalidate noneconomic regulations, such as state statutes penalizing obscenity, Winters, 333 U.S., at 517–520, and membership in a gang, Lanzetta, 306 U.S., at 458. Successful vagueness challenges to regulations penaliz- ing commercial conduct, by contrast, largely fell by the wayside. The Court, for instance, upheld a federal regula- tion punishing the knowing violation of an order instruct- ing drivers transporting dangerous chemicals to “ ‘avoid, so far as practicable . . . driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings,’ ” Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, —————— 5 Vagueness challenges to laws regulating speech during this period were less successful. Among the laws the Court found to be sufficiently definite included a state law making it a misdemeanor to publish, among other things, materials “ ‘which shall tend to encourage or advocate disrespect for law or for any court or courts of justice,’ ” Fox v. Washington, 236 U.S. 273, 275–277 (1915), a federal statute criminal- izing candidate solicitation of contributions for “ ‘any political purpose whatever,’ ” United States v. Wurzbach, 280 U.S. 396, 398–399 (1930), and a state prohibition on becoming a member of any organization that advocates using unlawful violence to effect “ ‘any political change,’ ” Whitney v. California, 274 U.S. 357, 359–360, 368–369 (1927). But see Stromberg v. California, 283 U.S. 359, 369–370 (1931) (holding state statute punishing the use of any symbol “ ‘of opposition to organized government’ ” to be impermissibly vague). Cite as: 576 U. S. ____ (2015) 15 THOMAS, J., concurring in judgment 338–339, 343 (1952). And notwithstanding its earlier conclusion that an Oklahoma law requiring state employ- ees and contractors to be paid “ ‘not less than the current rate of per diem wages in the locality where the work is performed’ ” was unconstitutionally vague, Connally, supra, at 393, the Court found sufficiently definite a fed- eral law forbidding radio broadcasting companies from attempting to compel by threat or duress a licensee to hire “ ‘persons in excess of the number of employees needed by such licensee to perform actual services,’ ” United States v. Petrillo, 332 U.S. 1, 3, 6–7 (1947). In more recent times, the Court’s substantive due pro- cess jurisprudence has focused on abortions, and our vagueness doctrine has played a correspondingly signifi- cant role. In fact, our vagueness doctrine served as the basis for the first draft of the majority opinion in Roe v. Wade, 410 U.S. 113 (1973), on the theory that laws pro- hibiting all abortions save for those done “for the purpose of saving the life of the mother” forced abortionists to guess when this exception would apply on penalty of con- viction. See B. Schwartz, The Unpublished Opinions of the Burger Court 116–118 (1988) (reprinting first draft of Roe). Roe, of course, turned out as a substantive due process opinion. See 410 U.S., at 164. But since then, the Court has repeatedly deployed the vagueness doctrine to nullify even mild regulations of the abortion industry. See Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 451–452 (1983) (nullifying law requiring “ ‘that the remains of the unborn child [be] disposed of in a hu- mane and sanitary manner’ ”); Colautti, 439 U.S., at 381 (nullifying law mandating abortionists adhere to a pre- scribed standard of care if “ there is ‘sufficient reason to believe that the fetus may be viable’ ”).6 —————— 6 All the while, however, the Court has rejected vagueness challenges to laws punishing those on the other side of the abortion debate. When 16 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment In one of our most recent decisions nullifying a law on vagueness grounds, substantive due process was again lurking in the background. In Morales, a plurality of this Court insisted that “the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Pro- cess Clause of the Fourteenth Amendment,” 527 U.S., at 53, a conclusion that colored its analysis that an ordinance prohibiting loitering was unconstitutionally indetermi- nate, see id., at 55 (“When vagueness permeates the text of ” a penal law “infring[ing] on constitutionally protected rights,” “it is subject to facial attack”). I find this history unsettling. It has long been under- stood that one of the problems with holding a statute “void for ‘indefiniteness’ ” is that “ ‘indefiniteness’ . . . is itself an indefinite concept,” Winters, supra, at 524 (Frankfurter, J., dissenting), and we as a Court have a bad habit of using indefinite concepts—especially ones rooted in “due pro- cess”—to invalidate democratically enacted laws. B It is also not clear that our vagueness doctrine can be reconciled with the original understanding of the term “due process of law.” Our traditional justification for this doctrine has been the need for notice: “A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited.” United States v. Wil- liams, 553 U.S. 285, 304 (2008); accord, ante, at 3. Pre- sumably, that justification rests on the view expressed in —————— it comes to restricting the speech of abortion opponents, the Court has dismissed concerns about vagueness with the observation that “ ‘we can never expect mathematical certainty from our language,’ ” Hill v. Colorado, 530 U.S. 703, 733 (2000), even though such restrictions are arguably “at least as imprecise as criminal prohibitions on speech the Court has declared void for vagueness in past decades,” id., at 774 (KENNEDY, J., dissenting). Cite as: 576 U. S. ____ (2015) 17 THOMAS, J., concurring in judgment Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856), that “due process of law” constrains the legislative branch by guaranteeing “usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country,” id., at 277. That justification assumes further that providing “a person of ordinary intelligence [with] fair notice of what is prohib- ited,” Williams, supra, at 304, is one such usage or mode.7 To accept the vagueness doctrine as founded in our Constitution, then, one must reject the possibility “that the Due Process Clause requires only that our Govern- ment must proceed according to the ‘law of the land’—that is, according to written constitutional and statutory provi- sions,” which may be all that the original meaning of this provision demands. Hamdi v. Rumsfeld, 542 U.S. 507, 589 (2004) (THOMAS, J., dissenting) (some internal quota- tion marks omitted); accord, Turner v. Rogers, 564 U. S. —————— 7 As a general matter, we should be cautious about relying on general theories of “fair notice” in our due process jurisprudence, as they have been exploited to achieve particular ends. In BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), for instance, the Court held that the Due Process Clause imposed limits on punitive damages because the Clause guaranteed “that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose,” id., at 574. That was true even though “when the Fourteenth Amendment was adopted, punitive damages were undoubtedly an established part of the American com- mon law of torts,” and “no particular procedures were deemed neces- sary to circumscribe a jury’s discretion regarding the award of such damages, or their amount.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 26–27 (1991) (SCALIA, J., concurring in judgment). Even under the view of the Due Process Clause articulated in Murray’s Lessee, then, we should not allow nebulous principles to supplant more specific, historically grounded rules. See 499 U.S., at 37–38 (opinion of SCALIA, J.). 18 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment ___, ___ (2011) (THOMAS, J., dissenting) (slip op., at 2). Although Murray’s Lessee stated the contrary, 18 How., at 276, a number of scholars and jurists have concluded that “considerable historical evidence supports the position that ‘due process of law’ was a separation-of-powers con- cept designed as a safeguard against unlicensed executive action, forbidding only deprivations not authorized by legislation or common law.” D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789– 1888, p. 272 (1985); see also, e.g., In re Winship, 397 U.S. 358, 378–382 (1970) (Black, J., dissenting). Others have disagreed. See, e.g., Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1679 (2012) (arguing that, as originally understood, “the principle of due process” required, among other things, that “statutes that purported to empower the other branches to deprive persons of rights without adequate procedural guarantees [be] subject to judicial review”). I need not choose between these two understandings of “due process of law” in this case. JUSTICE ALITO explains why the majority’s decision is wrong even under our prec- edents. See post, at 13–17 (dissenting opinion). And more generally, I adhere to the view that “ ‘[i]f any fool would know that a particular category of conduct would be with- in the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law, the enactment is not unconstitutional on its face,’ ” Morales, supra, at 112 (THOMAS, J., dissenting), and there is no question that ACCA’s residual clause meets that description, see ante, at 10 (agreeing with the Government that “there will be straightforward cases under the resid- ual clause”). * * * I have no love for our residual clause jurisprudence: As I observed when we first got into this business, the Sixth Cite as: 576 U. S. ____ (2015) 19 THOMAS, J., concurring in judgment Amendment problem with allowing district courts to conduct factfinding to determine whether an offense is a “violent felony” made our attempt to construe the residual clause “ ‘an unnecessary exercise.’ ” James, 550 U.S., at 231 (THOMAS, J., dissenting). But the Court rejected my argument, choosing instead to begin that unnecessary exercise. I see no principled way that, four cases later, the Court can now declare that the residual clause has become too indeterminate to apply. Having damaged the residual clause through our misguided jurisprudence, we have no right to send this provision back to Congress and ask for a new one. I cannot join the Court in using the Due Process Clause to nullify an Act of Congress that contains an unmistakable core of forbidden conduct, and I concur only in its judgment. Cite as: 576 U. S. ____ (2015) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 13–7120 _________________ SAMUEL JAMES JOHNSON, PETITIONER v.	In my view, and for the reasons well stated by JUSTICE ALITO in dissent, the residual clause of the Armed Career Criminal Act is not unconstitutionally vague under the categorical approach or a record-based approach. On the assumption that the categorical approach ought to still control, and for the reasons given by JUSTICE THOMAS in Part I of his opinion concurring in the judgment, Johnson’s conviction for possession of a short-barreled shotgun does not qualify as a violent felony. For these reasons, I concur in the judgment. Cite as: 6 U. S. (2015) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 1–7120 SAMUEL JAMES JOHNSON, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT [June 26, 2015] JUSTICE THOMAS, concurring in the judgment. I agree with the Court that Johnson’s sentence cannot stand. But rather than use the Fifth Amendment’s Due Process Clause to nullify an Act of Congress, I would resolve this case on more ordinary grounds. Under con- ventional principles of interpretation and our precedents, the offense of unlawfully possessing a short-barreled shotgun does not constitute a “violent felony” under the residual clause of the Armed Career Criminal Act (ACCA). The majority wants more. Not content to engage in the usual business of interpreting statutes, it holds this clause to be unconstitutionally vague, notwithstanding the fact that on four previous occasions we found it determinate enough for judicial application. As JUSTICE ALITO ex- plains, that decision cannot be reconciled with our prece- dents concerning the vagueness doctrine. See post, at 1– 17 (dissenting opinion). But even if it were a closer case under those decisions, I would be wary of holding the residual clause to be unconstitutionally vague. Although I have joined the Court in applying our modern vagueness doctrine in the past, see FCC v. Fox Television Stations, Inc., 567 U. S. – (2012) (slip op., at 16–17), I have become increasingly concerned about its origins and application. Simply put, our vagueness doctrine shares an uncomfortably similar history with substantive due pro- 2 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment cess, a judicially created doctrine lacking any basis in the Constitution. I We could have easily disposed of this case without nulli- fying ACCA’s residual clause. Under ordinary principles of statutory interpretation, the crime of unlawfully pos- sessing a short-barreled shotgun does not constitute a “violent felony” under ACCA. In relevant part, that Act defines a “violent felony” as a “crime punishable by im- prisonment for a term exceeding one year” that either “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that pre- sents a serious potential risk of physical injury to an- other.” 18 U.S. C. The offense of unlawfully possessing a short-barreled shotgun neither satisfies the first clause of this definition nor falls within the enumerated offenses in the second. It therefore can constitute a violent felony only if it falls within ACCA’s so-called “residual clause”—i.e., if it “in- volves conduct that presents a serious potential risk of physical injury to another.” To determine whether an offense falls within the resid- ual clause, we consider “whether the conduct encompassed by the elements of the offense, in the ordinary case, pre- sents a serious potential risk of injury to another.” James v. United States, The specific crimes listed in extortion, bur- glary, and an offense involving the use of explosives—offer a “baseline against which to measure the degree of risk” a crime must present to fall within that clause. at Those offenses do not provide a high threshold, see at Cite as: 6 U. S. (2015) THOMAS, J., concurring in judgment 20, 207–, but the crime in question must still present a “ ‘serious’ ”—a “ ‘significant’ or ‘important’ ”—risk of physical injury to be deemed a violent felony, Begay v. United States, (ALITO, J., dis- senting); accord, 128 (2009). To qualify as serious, the risk of injury generally must be closely related to the offense itself. Our precedents provide useful examples of the close relationship that must exist between the conduct of the offense and the risk presented. In for instance, we held that the offense of intentional vehicu- lar flight constitutes a violent felony because that conduct always triggers a dangerous confrontation, at (slip op., at 8). As we explained, vehicular flights “by defini- tional necessity occur when police are present” and are done “in defiance of their instructions with a vehicle that can be used in a way to cause serious potential risk of physical injury to another.” In James, we likewise held that attempted burglary offenses “requir[ing] an overt act directed toward the entry of a structure” are violent felonies because the underlying conduct often results in a dangerous 206. But we distinguished those crimes from “the more attenuated conduct encompassed by” attempt offenses “that c[an] be satisfied by preparatory conduct that does not pose the same risk of violent confrontation,” such as “ ‘possessing burglary tools.’ ” and n. 4. At some point, in other words, the risk of injury from the crime may be too attenuated for the conviction to fall within the residual clause, such as when an additional, voluntary act (e.g., the use of burglary tools to enter a structure) is necessary to bring about the risk of physical injury to another. In light of the elements of and reported convictions for the unlawful possession of a short-barreled shotgun, this 4 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment crime does not “involv[e] conduct that presents a serious potential risk of physical injury to another,” (2)(B)(ii). The acts that form the basis of this offense are simply too remote from a risk of physical injury to fall within the residual clause. Standing alone, the elements of this offense—(1) unlaw- fully (2) possessing () a short-barreled shotgun—do not describe inherently dangerous conduct. As a conceptual matter, “simple possession [of a firearm], even by a felon, takes place in a variety of ways (e.g., in a closet, in a store- room, in a car, in a pocket) many, perhaps most, of which do not involve likely accompanying violence.” United These weap- ons also can be stored in a manner posing a danger to no one, such as unloaded, disassembled, or locked away. By themselves, the elements of this offense indicate that the ordinary commission of this crime is far less risky than ACCA’s enumerated offenses. Reported convictions support the conclusion that mere possession of a short-barreled shotgun does not, in the ordinary case, pose a serious risk of injury to others. A few examples suffice. In one case, officers found the sawed-off shotgun locked inside a gun cabinet in an empty home. 858 N.W.2d 1–158 (Minn. 2015). In another, the firearm was retrieved from the trunk of the defendant’s car. State v. Ellenberger, 54 N. W. 2d 67, 674 In still another, the weapon was found missing a firing pin. In these instances and others, the offense threatened no one. The Government’s theory for why this crime should nonetheless qualify as a “violent felony” is unpersuasive. Although it does not dispute that the unlawful possession of a short-barreled shotgun can occur in a nondangerous manner, the Government contends that this offense poses Cite as: 6 U. S. (2015) 5 THOMAS, J., concurring in judgment a serious risk of physical injury due to the connection between short-barreled shotguns and other serious crimes. As the Government explains, these firearms are “weapons not typically possessed by law-abiding citizens for lawful purposes,” District of 625 but are instead primarily intended for use in criminal activity. In light of that intended use, the Gov- ernment reasons that the ordinary case of this possession offense will involve the use of a short-barreled shotgun in a serious crime, a scenario obviously posing a serious risk of physical injury. But even assuming that those who unlawfully possess these weapons typically intend to use them in a serious crime, the risk that the Government identifies arises not from the act of possessing the weapon, but from the act of using it. Unlike attempted burglary (at least of the type at issue in James) or intentional vehicular flight—conduct that by itself often or always invites a dangerous confron- tation—possession of a short-barreled shotgun poses a threat only when an offender decides to engage in addi- tional, voluntary conduct that is not included in the ele- ments of the crime. Until this weapon is assembled, load- ed, or used, for example, it poses no risk of injury to others in and of itself. The risk of injury to others from mere possession of this firearm is too attenuated to treat this offense as a violent felony. I would reverse the Court of Appeals on that basis. II As the foregoing analysis demonstrates, ACCA’s resid- ual clause can be applied in a principled manner. One would have thought this proposition well established given that we have already decided four cases addressing this clause. The majority nonetheless concludes that the oper- ation of this provision violates the Fifth Amendment’s Due Process Clause. 6 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment JUSTICE ALITO shows why that analysis is wrong under our precedents. See post, at 1–17 (dissenting opinion). But I have some concerns about our modern vagueness doctrine itself. Whether that doctrine is defensible under the original meaning of “due process of law” is a difficult question I leave for the another day, but the doctrine’s history should prompt us at least to examine its constitu- tional underpinnings more closely before we use it to nullify yet another duly enacted law. A We have become accustomed to using the Due Process Clauses to invalidate laws on the ground of “vagueness.” The doctrine we have developed is quite sweeping: “A statute can be impermissibly vague if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” or “if it authorizes or even encourages arbitrary and discriminatory enforce- ment.” Using this framework, we have nullified a wide range of enact- ments. We have struck down laws ranging from city ordinances, 405 U.S. 165–171 (1972), to Acts of Congress, United We have struck down laws whether they are penal, or not, v. Board of Regents of Univ. of State of N. Y., 597–604 (1967).1 We have struck down laws addressing —————— 1 By “penal,” I mean laws “authoriz[ing] criminal punishment” as well as those “authorizing fines or forfeitures [that] are enforced through civil rather than criminal process.” Cf. C. Nelson, Statutory Interpreta- tion 108 (discussing definition of “penal” for purposes of rule of lenity). A law requiring termination of employment from public insti- tutions, for instance, is not penal. See – 604. Nor is a law creating an “obligation to pay taxes.” Milwaukee Conversely, a law imposing a monetary exaction as a punishment for noncompliance with Cite as: 6 U. S. (2015) 7 THOMAS, J., concurring in judgment subjects ranging from abortion, v. Franklin, 49 U.S. 79, 90 (1979), and obscenity, to the minimum wage, 90–95 (1926), and antitrust, v. Frink Dairy 274 U.S. 445, 45–465 We have even struck down a law using a term that has been used to describe criminal conduct in this country since before the Constitution was ratified. (in- validating a “loitering” law); see and n. 10 (discussing a 1764 Georgia law requiring the apprehension of “all able bodied persons who shall be found loitering”). That we have repeatedly used a doctrine to invalidate laws does not make it legitimate. Cf., e.g., Dred Scott v. Sandford, (stating that an Act of Congress prohibiting slavery in certain Federal Territories violated the substantive due process rights of slaveowners and was therefore void). This Court has a history of wielding doctrines purportedly rooted in “due process of law” to achieve its own policy goals, substantive due process being the poster child. See McDonald v. Chicago, (THOMAS, J., concurring in part and concurring in judgment) (“The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfun- damental rights that do not”). Although our vagueness doctrine is distinct from substantive due process, their histories have disquieting parallels. 1 The problem of vague penal statutes is nothing new. —————— a regulatory mandate is penal. See National Federation of Independent Business v. Sebelius, 567 U. S. – (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 16–26). 8 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment The notion that such laws may be void under the Consti- tution’s Due Process Clauses, however, is a more recent development. Before the end of the 19th century, courts addressed vagueness through a rule of strict construction of penal statutes, not a rule of constitutional law. This rule of construction—better known today as the rule of lenity— first emerged in 16th-century England in reaction to Parliament’s practice of making large swaths of crimes capital offenses, though it did not gain broad acceptance until the following century. See Hall, Strict or Liberal Construction of Penal Statutes, 749– 7 ; see also 1 L. Radzinowicz, A History of English Criminal Law and Its Administration From 1750, pp. 10– 11 (noting that some of the following crimes trig- gered the death penalty: “marking the edges of any current coin of the kingdom,” “maliciously cutting any hop- binds growing on poles in any plantation of hops,” and “being in the company of gypsies”). Courts relied on this rule of construction in refusing to apply vague capital- offense statutes to prosecutions before them. As an exam- ple of this rule, William Blackstone described a notable instance in which an English statute imposing the death penalty on anyone convicted of “stealing sheep, or other cattle” was “held to extend to nothing but mere sheep” as “th[e] general words, ‘or other cattle,’ [were] looked upon as much too loose to create a capital offence.” 1 Commen- taries on the Laws of England 88 (1765).2 —————— 2 At the time, the ordinary meaning of the word “cattle” was not lim- ited to cows, but instead encompassed all “[b]easts of pasture; not wild nor domestick.” 1 S. Johnson, A Dictionary of the English Language (4th ed. 177). Parliament responded to the judicial refusal to apply the provision to “cattle” by passing “another statute, 15 Geo. II. c. 4, extending the [law] to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.” 1 Blackstone, Commentaries on the Laws of England, at 88. Cite as: 6 U. S. (2015) 9 THOMAS, J., concurring in judgment Vague statutes surfaced on this side of the Atlantic as well. Shortly after the First Congress proposed the Bill of Rights, for instance, it passed a law providing “[t]hat every person who shall attempt to trade with the Indian tribes, or be found in the Indian country with such merchandise in his possession as are usually vended to the Indians, without a license,” must forfeit the offending goods. Act of July 22, 1790, ch. –18. At first glance, punishing the unlicensed possession of “merchandise usually vended to the Indians,” ib would seem far more likely to “invit[e] arbitrary enforcement,” ante, at 5, than does the residual clause. But rather than strike down arguably vague laws under the Fifth Amendment Due Process Clause, antebellum American courts—like their English predecessors—simply refused to apply them in individual cases under the rule that penal statutes should be construed strictly. See, e.g., United (No. 16,264) (CC Pa. 1815) (Washington, J.). In Sharp, for instance, several defendants charged with violating an Act rendering it a capital offense for “any seaman” to “make a revolt in [a] ship,” Act of Apr. 0, 1790, objected that “the offence of making a revolt, [wa]s not sufficiently defined by this law, or by any other standard, to which reference could be safely made; to warrant the court in passing a sentence upon [them].” Justice Washington, riding circuit, apparently agreed, observing that the common definitions for the phrase “make a revolt” were “so multifarious, and so different” that he could not “avoid feeling a natural repugnance, to selecting from this mass of definitions, one, which may fix a crime upon these men, and that too of a capital nature.” Remarking that “[l]aws which create crimes, ought to be so explicit in themselves, or by reference to some other standard, that all men, subject to their penalties, may know what acts it is their duty to avoid,” he refused 10 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment to “recommend to the jury, to find the prisoners guilty of making, or endeavouring to make a revolt, however strong the evidence may be.” Such analysis does not mean that federal courts be- lieved they had the power to invalidate vague penal laws as unconstitutional. Indeed, there is good evidence that courts at the time understood judicial review to consist “of a refusal to give a statute effect as operative law in resolv- ing a case,” a notion quite distinct from our modern prac- tice of “ ‘strik[ing] down’ legislation.” Walsh, Partial Un- constitutionality, 85 N. Y. U. L. Rev. 78, 756 The process of refusing to apply such laws appeared to occur on a case-by-case basis. For instance, notwithstanding his doubts expressed in Sharp, Justice Washington, writing for this Court, later rejected the argument that lower courts could arrest a judgment under the same ship-revolt statute because it “does not define the offence of endeav- ouring to make a revolt.” United States v. Kelly, 11 Wheat. 417, 418 (1826). The Court explained that “it is competent to the Court to give a judicial definition” of “the offence of endeavouring to make a revolt,” and that such definition “consists in the endeavour of the crew of a vessel, or any one or more of them, to overthrow the legit- imate authority of her commander, with intent to remove him from his command, or against his will to take posses- sion of the vessel by assuming the government and navi- gation of her, or by transferring their obedience from the lawful commander to some other person.” at 418–419. In dealing with statutory indeterminacy, federal courts saw themselves engaged in construction, not judicial review as it is now understood. —————— Early American state courts also sometimes refused to apply a law they found completely unintelligible, even outside of the penal context. In one antebellum decision, the Pennsylvania Supreme Court did not even attempt to apply a statute that gave the Pennsylvania state treasurer “ ‘as many votes’ ” in state bank elections as “ ‘were held by Cite as: 6 U. S. (2015) 11 THOMAS, J., concurring in judgment 2 Although vagueness concerns played a role in the strict construction of penal statutes from early on, there is little indication that anyone before the late 19th century be- lieved that courts had the power under the Due Process Clauses to nullify statutes on that ground. Instead, our modern vagueness doctrine materialized after the rise of substantive due process. Following the ratification of the Fourteenth Amendment, corporations began to use that Amendment’s Due Process Clause to challenge state laws that attached penalties to unauthorized commercial con- duct. In addition to claiming that these laws violated their substantive due process rights, these litigants be- gan—with some success—to contend that such laws were unconstitutionally indefinite. In one case, a railroad company challenged a Tennessee law authorizing penal- ties against any railroad that demanded “more than a just and reasonable compensation” or engaged in “unjust and unreasonable discrimination” in setting its rates. Louis- ville & Nashville R. v. Railroad Comm’n of Tenn., 19 F. 679, 690 (CC MD Tenn. 1884) (internal quotation marks deleted). Without specifying the constitutional authority for its holding, the Circuit Court concluded that “[n]o citizen can be constitutionally subjected to penal- ties and despoiled of his property, in a criminal or quasi criminal proceeding, under and by force of such indefinite —————— individuals’ ” without providing guidance as to which individuals it was referring. Commonwealth v. Bank of Pennsylvania, Watts & Serg. 17, 177 (1842). Concluding that it had “seldom, if ever, found the language of legislation so devoid of certainty,” the court withdrew the case. ; see also (“Whether a statute be a public or a private one, if the terms in which it is couched be so vague as to convey no definite meaning to those whose duty it is to execute it, either ministerially or judicially, it is necessarily inopera- tive”). This practice is distinct from our modern vagueness doctrine, which applies to laws that are intelligible but vague. 12 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment legislation.” Justice Brewer—widely recognized as “a leading spokesman for ‘substantized’ due process,” Gamer, Justice Brewer and Substantive Due Process: A Conservative Court Revisited, — employed similar reasoning while riding circuit, though he did not identify the constitutional source of judicial au- thority to nullify vague laws. In reviewing an Iowa law authorizing fines against railroads for charging more than a “reasonable and just” rate, Justice Brewer mentioned in dictum that “no penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it.” Chicago & N. W. R. Constitutional vagueness challenges in this Court ini- tially met with some resistance. Although the Court appeared to acknowledge the possibility of unconstitution- ally indefinite enactments, it repeatedly rejected vague- ness challenges to penal laws addressing railroad rates, Railroad Comm’n Cases, liquor sales, Ohio ex rel. 450–4 (1904), and anticompetitive conduct, Nash v. United States, ; Waters- Pierce Oil 108– (1909). In 1914, however, the Court nullified a law on vague- ness grounds under the Due Process Clause for the first time. In International Harvester of a tobacco company brought a Fourteenth Amendment challenge against several Ken- tucky antitrust laws that had been construed to render unlawful “any combination [made] for the purpose or with the effect of fixing a price that was greater or less than the real value of the article,” The com- pany argued that by referring to “real value,” the laws pro- Cite as: 6 U. S. (2015) 1 THOMAS, J., concurring in judgment vided “no standard of conduct that it is possible to know.” The Court agreed. at 22–224. Although it did not specify in that case which portion of the Fourteenth Amendment served as the basis for its holding, ib it explained in a related case that the lack of a knowable standard of conduct in the Kentucky statutes “violated the fundamental principles of justice embraced in the concep- tion of due process of law.” Collins v. Kentucky, 24 U.S. 64, 68 Since that time, the Court’s application of its vagueness doctrine has largely mirrored its application of substantive due process. During the Lochner era, a period marked by the use of substantive due process to strike down economic regulations, e.g., (1905), the Court frequently used the vagueness doctrine to invalidate economic regulations penalizing commercial activity.4 Among the penal laws it found to be impermis- sibly vague were a state law regulating the production of crude oil, Champlin Refining v. Corporation Comm’n —————— 4 During this time, the Court would apply its new vagueness doctrine outside of the penal context as well. In A. B. Small a sugar dealer raised a defense to a breach-of-contract suit that the contracts themselves were unlawful under several provisions of the Lever Act, including one making it “ ‘unlawful for any person to make any unjust or unrea- sonable charge in dealing in or with any necessaries,’ or to agree with another ‘to exact excessive prices for any necessaries,’ ” Applying United which had held that provision to be unconstitutionally vague, the Court rejected the dealer’s 267 U.S., –29. The Court explained that “[i]t was not the criminal penalty that was held invalid, but the exaction of obedience to a rule or standard which was so vague and indefinite as really to be no rule or standard at all.” That doctrine thus applied to penalties as well as “[a]ny other means of exaction, such as declaring the transaction unlawful or stripping a participant of his rights under it.” 14 a state antitrust law, –465, a state minimum-wage law, –95, and a federal price- control statute, L. Cohen Grocery 255 U.S., at5 Around the time the Court began shifting the focus of its substantive due process (and equal protection) jurispru- dence from economic interests to “discrete and insular minorities,” see United States v. Carolene Products the target of its vagueness doctrine changed as well. The Court began to use the vagueness doctrine to invalidate noneconomic regulations, such as state statutes penalizing obscenity, U.S., at and membership in a gang, Lanzetta, Successful vagueness challenges to regulations penaliz- ing commercial conduct, by contrast, largely fell by the wayside. The Court, for instance, upheld a federal regula- tion punishing the knowing violation of an order instruct- ing drivers transporting dangerous chemicals to “ ‘avoid, so far as practicable driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings,’ ” Boyce Motor Lines, —————— 5 Vagueness challenges to laws regulating speech during this period were less successful. Among the laws the Court found to be sufficiently definite included a state law making it a misdemeanor to publish, among other things, materials “ ‘which shall tend to encourage or advocate disrespect for law or for any court or courts of justice,’ ” Fox v. Washington, a federal statute criminal- izing candidate solicitation of contributions for “ ‘any political purpose whatever,’ ” United and a state prohibition on becoming a member of any organization that advocates using unlawful violence to effect “ ‘any political change,’ ” 274 U.S. But see (holding state statute punishing the use of any symbol “ ‘of opposition to organized government’ ” to be impermissibly vague). Cite as: 6 U. S. (2015) 15 THOMAS, J., concurring in judgment 8–9, 4 (1952). And notwithstanding its earlier conclusion that an Oklahoma law requiring state employ- ees and contractors to be paid “ ‘not less than the current rate of per diem wages in the locality where the work is performed’ ” was unconstitutionally vague, the Court found sufficiently definite a fed- eral law forbidding radio broadcasting companies from attempting to compel by threat or duress a licensee to hire “ ‘persons in excess of the number of employees needed by such licensee to perform actual services,’ ” United States v. Petrillo, In more recent times, the Court’s substantive due pro- cess jurisprudence has focused on abortions, and our vagueness doctrine has played a correspondingly signifi- cant role. In fact, our vagueness doctrine served as the basis for the first draft of the majority opinion in Roe v. Wade, 410 U.S. 11 (197), on the theory that laws pro- hibiting all abortions save for those done “for the purpose of saving the life of the mother” forced abortionists to guess when this exception would apply on penalty of con- viction. See B. Schwartz, The Unpublished Opinions of the Burger Court 116–118 (1988) (reprinting first draft of Roe). Roe, of course, turned out as a substantive due process opinion. See But since then, the Court has repeatedly deployed the vagueness doctrine to nullify even mild regulations of the abortion industry. See Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 4–452 (198) (nullifying law requiring “ ‘that the remains of the unborn child [be] disposed of in a hu- mane and sanitary manner’ ”); 49 U.S., at 81 (nullifying law mandating abortionists adhere to a pre- scribed standard of care if “ there is ‘sufficient reason to believe that the fetus may be viable’ ”).6 —————— 6 All the while, however, the Court has rejected vagueness challenges to laws punishing those on the other side of the abortion debate. When 16 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment In one of our most recent decisions nullifying a law on vagueness grounds, substantive due process was again lurking in the background. In a plurality of this Court insisted that “the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Pro- cess Clause of the Fourteenth Amendment,” 527 U.S., at 5, a conclusion that colored its analysis that an ordinance prohibiting loitering was unconstitutionally indetermi- nate, see (“When vagueness permeates the text of ” a penal law “infring[ing] on constitutionally protected rights,” “it is subject to facial attack”). I find this history unsettling. It has long been under- stood that one of the problems with holding a statute “void for ‘indefiniteness’ ” is that “ ‘indefiniteness’ is itself an indefinite concept,” (Frankfurter, J., dissenting), and we as a Court have a bad habit of using indefinite concepts—especially ones rooted in “due pro- cess”—to invalidate democratically enacted laws. B It is also not clear that our vagueness doctrine can be reconciled with the original understanding of the term “due process of law.” Our traditional justification for this doctrine has been the need for notice: “A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited.” United 55 U.S. 285, 04 ; accord, ante, at Pre- sumably, that justification rests on the view expressed in —————— it comes to restricting the speech of abortion opponents, the Court has dismissed concerns about vagueness with the observation that “ ‘we can never expect mathematical certainty from our language,’ ” Hill v. Colorado, 7 even though such restrictions are arguably “at least as imprecise as criminal prohibitions on speech the Court has declared void for vagueness in past decades,” (KENNEDY, J., dissenting). Cite as: 6 U. S. (2015) 17 THOMAS, J., concurring in judgment Murray’s Lessee v. Hoboken Land & Improvement 18 How. 272 (1856), that “due process of law” constrains the legislative branch by guaranteeing “usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country,” That justification assumes further that providing “a person of ordinary intelligence [with] fair notice of what is prohib- ited,” at 04, is one such usage or mode.7 To accept the vagueness doctrine as founded in our Constitution, then, one must reject the possibility “that the Due Process Clause requires only that our Govern- ment must proceed according to the ‘law of the land’—that is, according to written constitutional and statutory provi- sions,” which may be all that the original meaning of this provision demands. 589 (2004) (some internal quota- tion marks omitted); accord, Turner v. Rogers, 564 U. S. —————— 7 As a general matter, we should be cautious about relying on general theories of “fair notice” in our due process jurisprudence, as they have been exploited to achieve particular ends. In BMW of North America, 7 U.S. 559 for instance, the Court held that the Due Process Clause imposed limits on punitive damages because the Clause guaranteed “that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose,” at 4. That was true even though “when the Fourteenth Amendment was adopted, punitive damages were undoubtedly an established part of the American com- mon law of torts,” and “no particular procedures were deemed neces- sary to circumscribe a jury’s discretion regarding the award of such damages, or their amount.” Pacific Mut. Life Ins. v. Haslip, 499 U.S. 1, 26–27 (1991) (SCALIA, J., concurring in judgment). Even under the view of the Due Process Clause articulated in Murray’s Lessee, then, we should not allow nebulous principles to supplant more specific, historically grounded rules. See 499 U.S., at 7–8 (opinion of SCALIA, J.). 18 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment (slip op., at 2). Although Murray’s Lessee stated the contrary, 18 How., at 276, a number of scholars and jurists have concluded that “considerable historical evidence supports the position that ‘due process of law’ was a separation-of-powers con- cept designed as a safeguard against unlicensed executive action, forbidding only deprivations not authorized by legislation or common law.” D. Currie, The Constitution in the Supreme Court: The First Hundred Years 9– p. 272 (1985); see also, e.g., In re Winship, 97 U.S. 58, 78–82 (1970) (Black, J., dissenting). Others have disagreed. See, e.g., Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1679 (2012) (arguing that, as originally understood, “the principle of due process” required, among other things, that “statutes that purported to empower the other branches to deprive persons of rights without adequate procedural guarantees [be] subject to judicial review”). I need not choose between these two understandings of “due process of law” in this case. JUSTICE ALITO explains why the majority’s decision is wrong even under our prec- edents. See post, at 1–17 (dissenting opinion). And more generally, I adhere to the view that “ ‘[i]f any fool would know that a particular category of conduct would be with- in the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law, the enactment is not unconstitutional on its face,’ ” and there is no question that ACCA’s residual clause meets that description, see ante, at 10 (agreeing with the Government that “there will be straightforward cases under the resid- ual clause”). * * * I have no love for our residual clause jurisprudence: As I observed when we first got into this business, the Sixth Cite as: 6 U. S. (2015) 19 THOMAS, J., concurring in judgment Amendment problem with allowing district courts to conduct factfinding to determine whether an offense is a “violent felony” made our attempt to construe the residual clause “ ‘an unnecessary exercise.’ ” James, 550 U.S., at 21 But the Court rejected my argument, choosing instead to begin that unnecessary exercise. I see no principled way that, four cases later, the Court can now declare that the residual clause has become too indeterminate to apply. Having damaged the residual clause through our misguided jurisprudence, we have no right to send this provision back to Congress and ask for a new one. I cannot join the Court in using the Due Process Clause to nullify an Act of Congress that contains an unmistakable core of forbidden conduct, and I concur only in its judgment. Cite as: 6 U. S. (2015) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 1–7120 SAMUEL JAMES JOHNSON, PETITIONER v.
Justice Sotomayor	concurring	false	Daimler AG v. Bauman	2014-01-14T00:00:00	null	https://www.courtlistener.com/opinion/2649076/daimler-ag-v-bauman/	https://www.courtlistener.com/api/rest/v3/clusters/2649076/	2,014	2013-011	2	9	0	I agree with the Court’s conclusion that the Due Process Clause prohibits the exercise of personal jurisdiction over Daimler in light of the unique circumstances of this case. I concur only in the judgment, however, because I cannot agree with the path the Court takes to arrive at that result. The Court acknowledges that Mercedes-Benz USA, LLC (MBUSA), Daimler’s wholly owned subsidiary, has consid erable contacts with California. It has multiple facilities in the State, including a regional headquarters. Each year, it distributes in California tens of thousands of cars, the sale of which generated billions of dollars in the year this suit was brought. And it provides service and sales support to customers throughout the State. Daimler has conceded that California courts may exercise general jurisdiction over MBUSA on the basis of these contacts, and the Court assumes that MBUSA’s contacts may be attributed to Daimler for the purpose of deciding whether Daimler is also subject to general jurisdiction. Are these contacts sufficient to permit the exercise of general jurisdiction over Daimler? The Court holds that they are not, for a reason wholly foreign to our due process jurisprudence. The problem, the Court says, is not that Daimler’s contacts with California are too few, but that its 2 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment contacts with other forums are too many. In other words, the Court does not dispute that the presence of multiple offices, the direct distribution of thousands of products accounting for billions of dollars in sales, and continuous interaction with customers throughout a State would be enough to support the exercise of general jurisdiction over some businesses. Daimler is just not one of those busi nesses, the Court concludes, because its California con tacts must be viewed in the context of its extensive “na tionwide and worldwide” operations. Ante, at 21, n. 20. In recent years, Americans have grown accustomed to the concept of multinational corporations that are supposedly “too big to fail”; today the Court deems Daimler “too big for general jurisdiction.” The Court’s conclusion is wrong as a matter of both process and substance. As to process, the Court decides this case on a ground that was neither argued nor passed on below, and that Daimler raised for the first time in a footnote to its brief. Brief for Petitioner 31–32, n. 5. As to substance, the Court’s focus on Daimler’s operations out side of California ignores the lodestar of our personal jurisdiction jurisprudence: A State may subject a defend ant to the burden of suit if the defendant has sufficiently taken advantage of the State’s laws and protections through its contacts in the State; whether the defendant has contacts elsewhere is immaterial. Regrettably, these errors are unforced. The Court can and should decide this case on the far simpler ground that, no matter how extensive Daimler’s contacts with Califor nia, that State’s exercise of jurisdiction would be unrea sonable given that the case involves foreign plaintiffs suing a foreign defendant based on foreign conduct, and given that a more appropriate forum is available. Because I would reverse the judgment below on this ground, I concur in the judgment only. Cite as: 571 U. S. ____ (2014) 3 SOTOMAYOR, J., concurring in judgment I I begin with the point on which the majority and I agree: The Ninth Circuit’s decision should be reversed. Our personal jurisdiction precedents call for a two-part analysis. The contacts prong asks whether the defendant has sufficient contacts with the forum State to support personal jurisdiction; the reasonableness prong asks whether the exercise of jurisdiction would be unreasonable under the circumstances. Burger King Corp. v. Rudze- wicz, 471 U.S. 462, 475–478 (1985). As the majority points out, all of the cases in which we have applied the reasonableness prong have involved specific as opposed to general jurisdiction. Ante, at 21, n. 20. Whether the reasonableness prong should apply in the general jurisdic tion context is therefore a question we have never decided,1 and it is one on which I can appreciate the arguments on both sides. But it would be imprudent to decide that question in this case given that respondents have failed to argue against the application of the reasonableness prong during the entire 8-year history of this litigation. See Brief for Respondents 11, 12, 13, 16 (conceding application —————— 1 The Courts of Appeals have uniformly held that the reasonableness prong does in fact apply in the general jurisdiction context. See Metro- politan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 573 (CA2 1996) (“[E]very circuit that has considered the question has held, implicitly or explicitly, that the reasonableness inquiry is applicable to all questions of personal jurisdiction, general or specific”); see also, e.g., Lakin v. Prudential Securities, Inc., 348 F.3d 704, 713 (CA8 2003); Base Metal Trading, Ltd. v. OJSC “Novokuznetsky Aluminum Factory,” 283 F.3d 208, 213–214 (CA4 2002); Trierwelier v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1533 (CA10 1996); Amoco Egypt Oil Co. v. Leonis Navigation Co., 1 F.3d 848, 851, n. 2 (CA9 1993); Donatelli v. National Hockey League, 893 F.2d 459, 465 (CA1 1990); Bearry v. Beech Aircraft Corp., 818 F.2d 370, 377 (CA5 1987). Without the benefit of a single page of briefing on the issue, the majority casually adds each of these cases to the mounting list of decisions jettisoned as a consequence of today’s ruling. See ante, at 21, n. 20. 4 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment of the reasonableness inquiry); Plaintiffs’ Opposition to Defendant’s Motion to Quash Service of Process and to Dismiss for Lack of Personal Jurisdiction in No. 04– 00194–RMW (ND Cal., May 16, 2005), pp. 14–23 (same). As a result, I would decide this case under the reasonable ness prong without foreclosing future consideration of whether that prong should be limited to the specific juris diction context.2 We identified the factors that bear on reasonableness in Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102 (1987): “the burden on the defendant, the interests of the forum State,” “the plaintiff ’s interest in obtaining relief ” in the forum State, and the interests of other sovereigns in resolving the dispute. Id., at 113–114. We held in Asahi that it would be “unreasonable and unfair” for a California court to exercise jurisdiction over a claim between a Taiwanese plaintiff and a Japanese de fendant that arose out of a transaction in Taiwan, particu larly where the Taiwanese plaintiff had not shown that it would be more convenient to litigate in California than in Taiwan or Japan. Id., at 114. The same considerations resolve this case. It involves Argentine plaintiffs suing a German defendant for conduct that took place in Argentina. Like the plaintiffs in Asahi, respondents have failed to show that it would be more convenient to litigate in California than in Germany, a —————— 2 While our decisions rejecting the exercise of personal jurisdiction have typically done so under the minimum-contacts prong, we have never required that prong to be decided first. See Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102, 121 (1987) (Stevens, J., concurring in part and concurring in judgment) (rejecting personal jurisdiction under the reasonableness prong and declining to consider the minimum-contacts prong because doing so would not be “necessary”). And although the majority frets that deciding this case on the reasonableness ground would be “a resolution fit for this day and case only,” ante, at 21, n. 20, I do not understand our constitutional duty to require otherwise. Cite as: 571 U. S. ____ (2014) 5 SOTOMAYOR, J., concurring in judgment sovereign with a far greater interest in resolving the dispute. Asahi thus makes clear that it would be unrea sonable for a court in California to subject Daimler to its jurisdiction. II The majority evidently agrees that, if the reasonable ness prong were to apply, it would be unreasonable for California courts to exercise jurisdiction over Daimler in this case. See ante, at 20–21 (noting that it would be “exor bitant” for California courts to exercise general jurisdiction over Daimler, a German defendant, in this “Argentina rooted case” brought by “foreign plaintiffs”). But instead of resolving the case on this uncontroversial basis, the majority reaches out to decide it on a ground neither argued nor decided below.3 We generally do not pass on arguments that lower courts have not addressed. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005). After all, “we are a court of review, not of first view.” Ibid. This principle carries even greater force where the argument at issue was never pressed below. See Glover v. United States, 531 U.S. 198, 205 (2001). Yet the majority disregards this principle, basing its decision on an argument raised for the first time —————— 3 The majority appears to suggest that Daimler may have presented the argument in its petition for rehearing en banc before the Ninth Circuit. See ante, at 5 (stating that Daimler “urg[ed] that the exercise of personal jurisdiction . . . could not be reconciled with this Court’s decision in Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. ___ (2011)”). But Daimler’s petition for rehearing did not argue what the Court holds today. The Court holds that Daimler’s Califor- nia contacts would be insufficient for general jurisdiction even assum ing that MBUSA’s contacts may be attributed to Daimler. Daimler’s rehearing petition made a distinct argument—that attribution of MBUSA’s contacts should not be permitted under an “ ‘agency’ theory” because doing so would “rais[e] significant constitutional concerns” under Goodyear. Petition for Rehearing or Rehearing En Banc in No. 07–15386 (CA9), p. 9. 6 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment in a footnote of Daimler’s merits brief before this Court. Brief for Petitioner 32, n. 5 (“Even if MBUSA were a divi sion of Daimler AG rather than a separate corporation, Daimler AG would still . . . not be ‘at home’ in California”). The majority’s decision is troubling all the more because the parties were not asked to brief this issue. We granted certiorari on the question “whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indi rect corporate subsidiary performs services on behalf of the defendant in the forum State.” Pet. for Cert. i. At no point in Daimler’s petition for certiorari did the company contend that, even if this attribution question were de cided against it, its contacts in California would still be in- sufficient to support general jurisdiction. The parties’ merits briefs accordingly focused on the attribution-of-contacts question, addressing the reasonableness inquiry (which had been litigated and decided below) in most of the space that remained. See Brief for Petitioner 17–37, 37–43; Brief for Respondents 18–47, 47–59. In bypassing the question on which we granted certio rari to decide an issue not litigated below, the Court leaves respondents “without an unclouded opportunity to air the issue the Court today decides against them,” Comcast Corp. v. Behrend, 569 U. S. ___, ___ (2013) (GINSBURG and BREYER, JJ., dissenting) (slip op., at 3). Doing so “does ‘not reflect well on the processes of the Court.’ ” Ibid. (quoting Redrup v. New York, 386 U.S. 767, 772 (1967) (Harlan, J., dissenting)). “And by resolving a complex and fact-intensive question without the benefit of full briefing, the Court invites the error into which it has fallen.” 569 U. S., at ___ (slip op., at 3). The relevant facts are undeveloped because Daimler conceded at the start of this litigation that MBUSA is subject to general jurisdiction based on its California contacts. We therefore do not know the full extent of those Cite as: 571 U. S. ____ (2014) 7 SOTOMAYOR, J., concurring in judgment contacts, though what little we do know suggests that Daimler was wise to concede what it did. MBUSA imports more than 200,000 vehicles into the United States and distributes many of them to independent dealerships in California, where they are sold. Declaration of Dr. Peter Waskönig in Bauman v. DaimlerChrysler Corp., No. 04– 00194–RMW (ND Cal.), ¶ 10, p. 2. MBUSA’s California sales account for 2.4% of Daimler’s worldwide sales, which were $192 billion in 2004.4 And 2.4% of $192 billion is $4.6 billion, a considerable sum by any measure. MBUSA also has multiple offices and facilities in California, in cluding a regional headquarters. But the record does not answer a number of other important questions. Are any of Daimler’s key files main tained in MBUSA’s California offices? How many employ ees work in those offices? Do those employees make important strategic decisions or oversee in any manner Daimler’s activities? These questions could well affect whether Daimler is subject to general jurisdiction. After all, this Court upheld the exercise of general jurisdiction in Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447–448 (1952)—which the majority refers to as a “text book case” of general jurisdiction, ante, at 10—on the basis that the foreign defendant maintained an office in Ohio, kept corporate files there, and oversaw the company’s activities from the State. California-based MBUSA em ployees may well have done similar things on Daimler’s behalf.5 But because the Court decides the issue without a —————— 4 See DaimlerChrysler, Innovations for our Customers: Annual Report 2004, p. 22, http://www.daimler.com/Projects/c2c/channel/documents/ 1364377_2004_DaimlerChrysler_Annual_Report.pdf (as visited on Jan. 8, 2014, and available in Clerk of Court’s case file). 5 To be sure, many of Daimler’s key management decisions are un doubtedly made by employees outside California. But the same was true in Perkins. See Perkins v. Benguet Consol. Min. Co., 88 Ohio App. 118, 124, 95 N.E.2d 5, 8 (1950) (per curiam) (describing management 8 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment developed record, we will never know. III While the majority’s decisional process is problematic enough, I fear that process leads it to an even more trou bling result. A Until today, our precedents had established a straight forward test for general jurisdiction: Does the defendant have “continuous corporate operations within a state” that are “so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities”? International Shoe Co. v. Washington, 326 U.S. 310, 318 (1945); see also Helicop- teros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 416 (1984) (asking whether defendant had “continuous and systematic general business contacts”).6 In every case where we have applied this test, we have focused solely on the magnitude of the defendant’s in-state contacts, not the relative magnitude of those contacts in comparison to the defendant’s contacts with other States. In Perkins, for example, we found an Ohio court’s exer —————— decisions made by the company’s chief of staff in Manila and a purchas ing agent in California); see also n. 8, infra. 6 While Helicopteros formulated the general jurisdiction inquiry as asking whether a foreign defendant possesses “continuous and system atic general business contacts,” 466 U.S., at 416, the majority correctly notes, ante, at 19, that International Shoe used the phrase “continuous and systematic” in the context of discussing specific jurisdiction, 326 U.S., at 317. But the majority recognizes that International Shoe separately described the type of contacts needed for general jurisdiction as “continuous corporate operations” that are “so substantial” as to justify suit on unrelated causes of action. Id., at 318. It is unclear why our precedents departed from International Shoe’s “continuous and substantial” formulation in favor of the “continuous and systematic” formulation, but the majority does not contend—nor do I perceive—that there is a material difference between the two. Cite as: 571 U. S. ____ (2014) 9 SOTOMAYOR, J., concurring in judgment cise of general jurisdiction permissible where the presi dent of the foreign defendant “maintained an office,” “drew and distributed . . . salary checks,” used “two active bank accounts,” “supervised . . . the rehabilitation of the corpo ration’s properties in the Philippines,” and held “directors’ meetings,” in Ohio. 342 U.S., at 447–448. At no point did we attempt to catalog the company’s contacts in forums other than Ohio or to compare them with its Ohio con tacts. If anything, we intimated that the defendant’s Ohio contacts were not substantial in comparison to its contacts elsewhere. See id., at 438 (noting that the defendant’s Ohio contacts, while “continuous and systematic,” were but a “limited . . . part of its general business”).7 We engaged in the same inquiry in Helicopteros. There, we held that a Colombian corporation was not subject to general jurisdiction in Texas simply because it occasion ally sent its employees into the State, accepted checks drawn on a Texas bank, and purchased equipment and services from a Texas company. In no sense did our anal ysis turn on the extent of the company’s operations beyond —————— 7 The majority suggests that I misinterpret language in Perkins that I do not even cite. Ante, at 11, n. 8. The majority is quite correct that it has found a sentence in Perkins that does not address whether most of the Philippine corporation’s activities took place outside of Ohio. See ante, at 11, n. 8 (noting that Perkins described the company’s “wartime activities” as “necessarily limited,” 342 U.S., at 448). That is why I did not mention it. I instead rely on a sentence in Perkins’ opening para graph: “The [Philippine] corporation has been carrying on in Ohio a continuous and systematic, but limited, part of its general business.” Id., at 438. That sentence obviously does convey that most of the corporation’s activities occurred in “places other than Ohio,” ante, at 11, n. 8. This is not surprising given that the company’s Ohio contacts involved a single officer working from a home office, while its non-Ohio contacts included significant mining properties and machinery operated throughout the Philippines, Philippine employees (including a chief of staff), a purchasing agent based in California, and board of directors meetings held in Washington, New York, and San Francisco. Perkins, 88 Ohio App., at 123–124, 95 N.E.2d, at 8; see also n. 8, infra. 10 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment Texas. Most recently, in Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. ___ (2011), our analysis again focused on the defendant’s in-state contacts. Goodyear involved a suit against foreign tire manufacturers by North Carolina residents whose children had died in a bus accident in France. We held that North Carolina courts could not exercise general jurisdiction over the foreign defendants. Just as in Perkins and Helicopteros, our opinion in Goodyear did not identify the defendants’ con tacts outside of the forum State, but focused instead on the defendants’ lack of offices, employees, direct sales, and business operations within the State. This approach follows from the touchstone principle of due process in this field, the concept of reciprocal fairness. When a corporation chooses to invoke the benefits and protections of a State in which it operates, the State ac quires the authority to subject the company to suit in its courts. See International Shoe, 326 U.S., at 319 (“[T]o the extent that a corporation exercises the privilege of con ducting activities within a state, it enjoys the benefits and protection of the laws of that state” such that an “obliga tio[n] arise[s]” to respond there to suit); J. McIntyre Ma- chinery, Ltd. v. Nicastro, 564 U. S. ___, ___ (2011) (plurality opinion) (slip op., at 5) (same principle for general jurisdiction). The majority’s focus on the extent of a corpo rate defendant’s out-of-forum contacts is untethered from this rationale. After all, the degree to which a company intentionally benefits from a forum State depends on its interactions with that State, not its interactions else where. An article on which the majority relies (and on which Goodyear relied as well, 564 U. S., at ___ (slip op., at 7)) expresses the point well: “We should not treat de fendants as less amenable to suit merely because they carry on more substantial business in other states . . . . [T]he amount of activity elsewhere seems virtually irrele Cite as: 571 U. S. ____ (2014) 11 SOTOMAYOR, J., concurring in judgment vant to . . . the imposition of general jurisdiction over a defendant.” Brilmayer et al., A General Look at General Jurisdiction, 66 Texas L. Rev. 721, 742 (1988). Had the majority applied our settled approach, it would have had little trouble concluding that Daimler’s Califor nia contacts rise to the requisite level, given the majority’s assumption that MBUSA’s contacts may be attributed to Daimler and given Daimler’s concession that those con tacts render MBUSA “at home” in California. Our cases have long stated the rule that a defendant’s contacts with a forum State must be continuous, substantial, and sys tematic in order for the defendant to be subject to that State’s general jurisdiction. See Perkins, 342 U.S., at 446. We offered additional guidance in Goodyear, adding the phrase “essentially at home” to our prior formulation of the rule. 564 U. S., at ___ (slip op., at 2) (a State may exercise general jurisdiction where a defendant’s “affilia tions with the State are so ‘continuous and systematic’ as to render [the defendant] essentially at home in the forum State”). We used the phrase “at home” to signify that in order for an out-of-state defendant to be subject to general jurisdiction, its continuous and substantial contacts with a forum State must be akin to those of a local enterprise that actually is “at home” in the State. See Brilmayer, supra, at 742.8 —————— 8 The majority views the phrase “at home” as serving a different purpose—that of requiring a comparison between a defendant’s in-state and out-of-state contacts. Ante, at 21, n. 20. That cannot be the correct understanding though, because among other things it would cast grave doubt on Perkins—a case that Goodyear pointed to as an exemplar of general jurisdiction, 564 U. S., at ___ (slip op., at 11). For if Perkins had applied the majority’s newly minted proportionality test, it would have come out the other way. The majority apparently thinks that the Philippine corporate defend ant in Perkins did not have meaningful operations in places other than Ohio. See ante, at 10–11, and n. 8. But one cannot get past the second sentence of Perkins before realizing that is wrong. That sentence reads: 12 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment Under this standard, Daimler’s concession that MBUSA is subject to general jurisdiction in California (a concession the Court accepts, ante, at 15, 17) should be dispositive. For if MBUSA’s California contacts are so substantial and the resulting benefits to MBUSA so significant as to make MBUSA “at home” in California, the same must be true of Daimler when MBUSA’s contacts and benefits are viewed as its own. Indeed, until a footnote in its brief before this Court, even Daimler did not dispute this conclusion for eight years of the litigation. B The majority today concludes otherwise. Referring to —————— “The corporation has been carrying on in Ohio a continuous and sys tematic, but limited, part of its general business.” 342 U.S., at 438. Indeed, the facts of the case set forth by the Ohio Court of Appeals show just how “limited” the company’s Ohio contacts—which included a single officer keeping files and managing affairs from his Ohio home office—were in comparison with its “general business” operations elsewhere. By the time the suit was commenced, the company had resumed its considerable mining operations in the Philippines, “ ‘re building its properties’ ” there and purchasing “ ‘machinery, supplies and equipment.’ ” 88 Ohio App., at 123–124, 95 N.E.2d, at 8. More over, the company employed key managers in other forums, including a purchasing agent in San Francisco and a chief of staff in the Philip pines. Id., at 124, 95 N. E. 2d, at 8. The San Francisco purchasing agent negotiated the purchase of the company’s machinery and supplies “ ‘on the direction of the Company’s Chief of Staff in Manila,’ ” ibid., a fact that squarely refutes the majority’s assertion that “[a]ll of Ben guet’s activities were directed by the company’s president from within Ohio,” ante, at 11, n. 8. And the vast majority of the company’s board of directors meetings took place outside Ohio, in locations such as Wash ington, New York, and San Francisco. 88 Ohio App., at 125, 94 N.E. 2d, at 8. In light of these facts, it is all but impossible to reconcile the result in Perkins with the proportionality test the majority announces today. Goodyear’s use of the phrase “at home” is thus better understood to require the same general jurisdiction inquiry that Perkins required: An out-of-state business must have the kind of continuous and substantial in-state presence that a parallel local company would have. Cite as: 571 U. S. ____ (2014) 13 SOTOMAYOR, J., concurring in judgment the “continuous and systematic” contacts inquiry that has been taught to generations of first-year law students as “unacceptably grasping,” ante, at 19, the majority an nounces the new rule that in order for a foreign defendant to be subject to general jurisdiction, it must not only pos sess continuous and systematic contacts with a forum State, but those contacts must also surpass some unspeci fied level when viewed in comparison to the company’s “nationwide and worldwide” activities. Ante, at 21, n. 20.9 Neither of the majority’s two rationales for this propor tionality requirement is persuasive. First, the majority suggests that its approach is necessary for the sake of predictability. Permitting general jurisdiction in every State where a corporation has continuous and substantial contacts, the majority asserts, would “scarcely permit out of-state defendants ‘to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.’ ” Ante, at 21 (quoting Burger King Corp., 471 U.S., at 472). But there is nothing unpredictable about a rule that instructs multi national corporations that if they engage in continuous and substantial contacts with more than one State, they will be subject to general jurisdiction in each one. The majority may not favor that rule as a matter of policy, but such disagreement does not render an otherwise routine —————— 9 I accept at face value the majority’s declaration that general juris diction is not limited to a corporation’s place of incorporation and principal place of business because “a corporation’s operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in the State.” Ante, at 20, n. 19; see also ante, at 19. Were that not so, our analysis of the defendants’ in-state contacts in Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952), Helicop- teros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408 (1984), and Goodyear would have been irrelevant, as none of the defendants in those cases was sued in its place of incorporation or principal place of business. 14 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment test unpredictable. Nor is the majority’s proportionality inquiry any more predictable than the approach it rejects. If anything, the majority’s approach injects an additional layer of uncer tainty because a corporate defendant must now try to foretell a court’s analysis as to both the sufficiency of its contacts with the forum State itself, as well as the relative sufficiency of those contacts in light of the company’s operations elsewhere. Moreover, the majority does not even try to explain just how extensive the company’s in-state contacts must be in the context of its global oper- ations in order for general jurisdiction to be proper. The majority’s approach will also lead to greater unpre dictability by radically expanding the scope of jurisdic tional discovery. Rather than ascertaining the extent of a corporate defendant’s forum-state contacts alone, courts will now have to identify the extent of a company’s con tacts in every other forum where it does business in order to compare them against the company’s in-state contacts. That considerable burden runs headlong into the major- ity’s recitation of the familiar principle that “ ‘[s]imple jurisdictional rules . . . promote greater predictability.’ ” Ante, at 18–19 (quoting Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010)). Absent the predictability rationale, the majority’s sole remaining justification for its proportionality approach is its unadorned concern for the consequences. “If Daimler’s California activities sufficed to allow adjudication of this Argentina-rooted case in California,” the majority la ments, “the same global reach would presumably be avail able in every other State in which MBUSA’s sales are sizable.” Ante, at 20. The majority characterizes this result as “exorbitant,” ibid., but in reality it is an inevitable consequence of the rule of due process we set forth nearly 70 years ago, that there are “instances in which [a company’s] continuous Cite as: 571 U. S. ____ (2014) 15 SOTOMAYOR, J., concurring in judgment corporate operations within a state” are “so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities,” International Shoe, 326 U.S., at 318. In the era of International Shoe, it was rare for a corporation to have such substantial nationwide contacts that it would be subject to general jurisdiction in a large number of States. Today, that circumstance is less rare. But that is as it should be. What has changed since International Shoe is not the due process principle of fundamental fairness but rather the nature of the global economy. Just as it was fair to say in the 1940’s that an out-of-state company could enjoy the benefits of a forum State enough to make it “essentially at home” in the State, it is fair to say today that a multinational conglomerate can enjoy such extensive benefits in multiple forum States that it is “essentially at home” in each one. In any event, to the extent the majority is concerned with the modern-day consequences of International Shoe’s conception of personal jurisdiction, there remain other judicial doctrines available to mitigate any resulting un fairness to large corporate defendants. Here, for instance, the reasonableness prong may afford petitioner relief. See supra, at 3–4. In other cases, a defendant can assert the doctrine of forum non conveniens if a given State is a highly inconvenient place to litigate a dispute. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–509 (1947). In still other cases, the federal change of venue statute can pro vide protection. See 28 U.S. C. §1404(a) (permitting transfers to other districts “[f]or the convenience of parties and witnesses” and “in the interests of justice”). And to the degree that the majority worries these doctrines are not enough to protect the economic interests of multina tional businesses (or that our longstanding approach to general jurisdiction poses “risks to international comity,” ante, at 22), the task of weighing those policy concerns 16 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment belongs ultimately to legislators, who may amend state and federal long-arm statutes in accordance with the democratic process. Unfortunately, the majority short circuits that process by enshrining today’s narrow rule of general jurisdiction as a matter of constitutional law. C The majority’s concern for the consequences of its deci sion should have led it the other way, because the rule that it adopts will produce deep injustice in at least four respects. First, the majority’s approach unduly curtails the States’ sovereign authority to adjudicate disputes against corporate defendants who have engaged in continuous and substantial business operations within their boundaries.10 The majority does not dispute that a State can exercise general jurisdiction where a corporate defendant has its corporate headquarters, and hence its principal place of business within the State. Cf. Hertz Corp., 559 U.S., at 93. Yet it never explains why the State should lose that power when, as is increasingly common, a corporation “divide[s] [its] command and coordinating functions among officers who work at several different locations.” Id., at 95–96. Suppose a company divides its management func tions equally among three offices in different States, with one office nominally deemed the company’s corporate headquarters. If the State where the headquarters is located can exercise general jurisdiction, why should the —————— 10 States will of course continue to exercise specific jurisdiction in many cases, but we have never held that to be the outer limit of the States’ authority under the Due Process Clause. That is because the two forms of jurisdiction address different concerns. Whereas specific jurisdiction focuses on the relationship between a defendant’s chal lenged conduct and the forum State, general jurisdiction focuses on the defendant’s substantial presence in the State irrespective of the loca tion of the challenged conduct. Cite as: 571 U. S. ____ (2014) 17 SOTOMAYOR, J., concurring in judgment other two States be constitutionally forbidden to do the same? Indeed, under the majority’s approach, the result would be unchanged even if the company has substantial operations within the latter two States (and even if the company has no sales or other business operations in the first State). Put simply, the majority’s rule defines the Due Process Clause so narrowly and arbitrarily as to contravene the States’ sovereign prerogative to subject to judgment defendants who have manifested an unqualified “intention to benefit from and thus an intention to submit to the[ir] laws,” J. McIntyre, 564 U. S., at ___ (plurality opinion) (slip op., at 5). Second, the proportionality approach will treat small businesses unfairly in comparison to national and multi national conglomerates. Whereas a larger company will often be immunized from general jurisdiction in a State on account of its extensive contacts outside the forum, a small business will not be. For instance, the majority holds today that Daimler is not subject to general jurisdiction in California despite its multiple offices, continuous opera tions, and billions of dollars’ worth of sales there. But imagine a small business that manufactures luxury vehi cles principally targeting the California market and that has substantially all of its sales and operations in the State—even though those sales and operations may amount to one-thousandth of Daimler’s. Under the major ity’s rule, that small business will be subject to suit in California on any cause of action involving any of its activ ities anywhere in the world, while its far more pervasive competitor, Daimler, will not be. That will be so even if the small business incorporates and sets up its headquar ters elsewhere (as Daimler does), since the small business’ California sales and operations would still predominate when “apprais[ed]” in proportion to its minimal “nation wide and worldwide” operations, ante, at 21, n. 20. Third, the majority’s approach creates the incongruous 18 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment result that an individual defendant whose only contact with a forum State is a one-time visit will be subject to general jurisdiction if served with process during that visit, Burnham v. Superior Court of Cal., County of Marin, 495 U.S. 604 (1990), but a large corporation that owns property, employs workers, and does billions of dollars’ worth of business in the State will not be, simply because the corporation has similar contacts elsewhere (though the visiting individual surely does as well). Finally, it should be obvious that the ultimate effect of the majority’s approach will be to shift the risk of loss from multinational corporations to the individuals harmed by their actions. Under the majority’s rule, for example, a parent whose child is maimed due to the negligence of a foreign hotel owned by a multinational conglomerate will be unable to hold the hotel to account in a single U. S. court, even if the hotel company has a massive presence in multiple States. See, e.g., Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264 (CA11 2002).11 Similarly, a U. S. business that enters into a contract in a foreign country to sell its products to a multinational company there may be unable to seek relief in any U. S. court if the multinational com pany breaches the contract, even if that company has considerable operations in numerous U. S. forums. See, e.g., Walpex Trading Co. v. Yacimientos Petroliferos Fiscales Bolivianos, 712 F. Supp. 383 (SDNY 1989).12 —————— 11 See also, e.g., Woods v. Nova Companies Belize Ltd., 739 So. 2d 617, 620–621 (Fla. App. 1999) (estate of decedent killed in an overseas plane crash permitted to sue responsible Belizean corporate defendant in Florida courts, rather than Belizean courts, based on defendant’s continuous and systematic business contacts in Florida). 12 The present case and the examples posited involve foreign corpo rate defendants, but the principle announced by the majority would apply equally to preclude general jurisdiction over a U. S. company that is incorporated and has its principal place of business in another U. S. State. Under the majority’s rule, for example, a General Motors auto worker who retires to Florida would be unable to sue GM in that State Cite as: 571 U. S. ____ (2014) 19 SOTOMAYOR, J., concurring in judgment Indeed, the majority’s approach would preclude the plain tiffs in these examples from seeking recourse anywhere in the United States even if no other judicial system was available to provide relief. I cannot agree with the major- ity’s conclusion that the Due Process Clause requires these results. * * * The Court rules against respondents today on a ground that no court has considered in the history of this case, that this Court did not grant certiorari to decide, and that Daimler raised only in a footnote of its brief. In doing so, the Court adopts a new rule of constitutional law that is unmoored from decades of precedent. Because I would reverse the Ninth Circuit’s decision on the narrower ground that the exercise of jurisdiction over Daimler would be unreasonable in any event, I respectfully concur in the judgment only. —————— for disabilities that develop from the retiree’s labor at a Michigan parts plant, even though GM undertakes considerable business operations in Florida. See Twitchell, The Myth of General Jurisdiction, 101 Harv. L. Rev. 610, 670 (1988)	I agree with the Court’s conclusion that the Due Process Clause prohibits the exercise of personal jurisdiction over Daimler in light of the unique circumstances of this case. I concur only in the judgment, however, because I cannot agree with the path the Court takes to arrive at that result. The Court acknowledges that Mercedes-Benz USA, LLC (MBUSA), Daimler’s wholly owned subsidiary, has consid erable contacts with California. It has multiple facilities in the State, including a regional headquarters. Each year, it distributes in California tens of thousands of cars, the sale of which generated billions of dollars in the year this suit was brought. And it provides service and sales support to customers throughout the State. Daimler has conceded that California courts may exercise general jurisdiction over MBUSA on the basis of these contacts, and the Court assumes that MBUSA’s contacts may be attributed to Daimler for the purpose of deciding whether Daimler is also subject to general jurisdiction. Are these contacts sufficient to permit the exercise of general jurisdiction over Daimler? The Court holds that they are not, for a reason wholly foreign to our due process jurisprudence. The problem, the Court says, is not that Daimler’s contacts with California are too few, but that its 2 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment contacts with other forums are too many. In other words, the Court does not dispute that the presence of multiple offices, the direct distribution of thousands of products accounting for billions of dollars in sales, and continuous interaction with customers throughout a State would be enough to support the exercise of general jurisdiction over some businesses. Daimler is just not one of those busi nesses, the Court concludes, because its California con tacts must be viewed in the context of its extensive “na tionwide and worldwide” operations. Ante, at 21, n. 20. In recent years, Americans have grown accustomed to the concept of multinational corporations that are supposedly “too big to fail”; today the Court deems Daimler “too big for general jurisdiction.” The Court’s conclusion is wrong as a matter of both process and substance. As to process, the Court decides this case on a ground that was neither argued nor passed on below, and that Daimler raised for the first time in a footnote to its brief. Brief for Petitioner 31–32, n. 5. As to substance, the Court’s focus on Daimler’s operations out side of California ignores the lodestar of our personal jurisdiction jurisprudence: A State may subject a defend ant to the burden of suit if the defendant has sufficiently taken advantage of the State’s laws and protections through its contacts in the State; whether the defendant has contacts elsewhere is immaterial. Regrettably, these errors are unforced. The Court can and should decide this case on the far simpler ground that, no matter how extensive Daimler’s contacts with Califor nia, that State’s exercise of jurisdiction would be unrea sonable given that the case involves foreign plaintiffs suing a foreign defendant based on foreign conduct, and given that a more appropriate forum is available. Because I would reverse the judgment below on this ground, I concur in the judgment only. Cite as: 571 U. S. (2014) 3 SOTOMAYOR, J., concurring in judgment I I begin with the point on which the majority and I agree: The Ninth Circuit’s decision should be reversed. Our personal jurisdiction precedents call for a two-part analysis. The contacts prong asks whether the defendant has sufficient contacts with the forum State to support personal jurisdiction; the reasonableness prong asks whether the exercise of jurisdiction would be unreasonable under the circumstances. Burger King As the majority points out, all of the cases in which we have applied the reasonableness prong have involved specific as opposed to general jurisdiction. Ante, at 21, n. 20. Whether the reasonableness prong should apply in the general jurisdic tion context is therefore a question we have never decided,1 and it is one on which I can appreciate the arguments on both sides. But it would be imprudent to decide that question in this case given that respondents have failed to argue against the application of the reasonableness prong during the entire -year history of this litigation. See Brief for Respondents 11, 12, 13, 16 (“[E]very circuit that has considered the question has held, implicitly or explicitly, that the reasonableness inquiry is applicable to all questions of personal jurisdiction, general or specific”); see also, e.g., ; Base Metal Trading, ; ; Amoco Egypt Oil Co. v. Leonis Navigation Co., ; Donatelli v. National Hockey League, ; Bearry v. Beech Aircraft Without the benefit of a single page of briefing on the issue, the majority casually adds each of these cases to the mounting list of decisions jettisoned as a consequence of today’s ruling. See ante, at 21, n. 20. 4 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment of the reasonableness inquiry); Plaintiffs’ Opposition to Defendant’s Motion to Quash Service of Process and to Dismiss for Lack of Personal Jurisdiction in No. 04– 00194–RMW pp. 14–23 (same). As a result, I would decide this case under the reasonable ness prong without foreclosing future consideration of whether that prong should be limited to the specific juris diction context.2 We identified the factors that bear on reasonableness in Asahi Metal Industry : “the burden on the defendant, the interests of the forum State,” “the plaintiff ’s interest in obtaining relief ” in the forum State, and the interests of other sovereigns in resolving the dispute. at 113–114. We held in Asahi that it would be “unreasonable and unfair” for a California court to exercise jurisdiction over a claim between a Taiwanese plaintiff and a Japanese de fendant that arose out of a transaction in Taiwan, particu larly where the Taiwanese plaintiff had not shown that it would be more convenient to litigate in California than in Taiwan or Japan. The same considerations resolve this case. It involves Argentine plaintiffs suing a German defendant for conduct that took place in Argentina. Like the plaintiffs in Asahi, respondents have failed to show that it would be more convenient to litigate in California than in Germany, a —————— 2 While our decisions rejecting the exercise of personal jurisdiction have typically done so under the minimum-contacts prong, we have never required that prong to be decided first. See Asahi Metal Industry (Stevens, J., concurring in part and concurring in judgment) (rejecting personal jurisdiction under the reasonableness prong and declining to consider the minimum-contacts prong because doing so would not be “necessary”). And although the majority frets that deciding this case on the reasonableness ground would be “a resolution fit for this day and case only,” ante, at 21, n. 20, I do not understand our constitutional duty to require otherwise. Cite as: 571 U. S. (2014) 5 SOTOMAYOR, J., concurring in judgment sovereign with a far greater interest in resolving the dispute. Asahi thus makes clear that it would be unrea sonable for a court in California to subject Daimler to its jurisdiction. II The majority evidently agrees that, if the reasonable ness prong were to apply, it would be unreasonable for California courts to exercise jurisdiction over Daimler in this case. See ante, at 20–21 (noting that it would be “exor bitant” for California courts to exercise general jurisdiction over Daimler, a German defendant, in this “Argentina rooted case” brought by “foreign plaintiffs”). But instead of resolving the case on this uncontroversial basis, the majority reaches out to decide it on a ground neither argued nor decided below.3 We generally do not pass on arguments that lower courts have not addressed. See, e.g., After all, “we are a court of review, not of first view.” This principle carries even greater force where the argument at issue was never pressed below. See 205 (2001). Yet the majority disregards this principle, basing its decision on an argument raised for the first time —————— 3 The majority appears to suggest that Daimler may have presented the argument in its petition for rehearing en banc before the Ninth Circuit. See ante, at 5 (stating that Daimler “urg[ed] that the exercise of personal jurisdiction could not be reconciled with this Court’s decision in Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. (2011)”). But Daimler’s petition for rehearing did not argue what the Court holds today. The Court holds that Daimler’s Califor- nia contacts would be insufficient for general jurisdiction even assum ing that MBUSA’s contacts may be attributed to Daimler. Daimler’s rehearing petition made a distinct argument—that attribution of MBUSA’s contacts should not be permitted under an “ ‘agency’ theory” because doing so would “rais[e] significant constitutional concerns” under Goodyear. Petition for Rehearing or Rehearing En Banc in No. 07–1536 (CA9), p. 9. 6 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment in a footnote of Daimler’s merits brief before this Court. Brief for Petitioner 32, n. 5 (“Even if MBUSA were a divi sion of Daimler AG rather than a separate corporation, Daimler AG would still not be ‘at home’ in California”). The majority’s decision is troubling all the more because the parties were not asked to brief this issue. We granted certiorari on the question “whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indi rect corporate subsidiary performs services on behalf of the defendant in the forum State.” Pet. for Cert. i. At no point in Daimler’s petition for certiorari did the company contend that, even if this attribution question were de cided against it, its contacts in California would still be in- sufficient to support general jurisdiction. The parties’ merits briefs accordingly focused on the attribution-of-contacts question, addressing the reasonableness inquiry (which had been litigated and decided below) in most of the space that remained. See Brief for Petitioner 17–37, 37–43; Brief for Respondents 1–47, 47–59. In bypassing the question on which we granted certio rari to decide an issue not litigated below, the Court leaves respondents “without an unclouded opportunity to air the issue the Court today decides against them,” Comcast v. Behrend, 569 U. S. (2013) (GINSBURG and BREYER, JJ., dissenting) (slip op., at 3). Doing so “does ‘not reflect well on the processes of the Court.’ ” (Harlan, J., dissenting)). “And by resolving a complex and fact-intensive question without the benefit of full briefing, the Court invites the error into which it has fallen.” 569 U. S., at (slip op., at 3). The relevant facts are undeveloped because Daimler conceded at the start of this litigation that MBUSA is subject to general jurisdiction based on its California contacts. We therefore do not know the full extent of those Cite as: 571 U. S. (2014) 7 SOTOMAYOR, J., concurring in judgment contacts, though what little we do know suggests that Daimler was wise to concede what it did. MBUSA imports more than 200,000 vehicles into the United States and distributes many of them to independent dealerships in California, where they are sold. Declaration of Dr. Peter Waskönig in Bauman v. DaimlerChrysler No. 04– 00194–RMW (ND Cal.), ¶ 10, p. 2. MBUSA’s California sales account for 2.4% of Daimler’s worldwide sales, which were $192 billion in 2004.4 And 2.4% of $192 billion is $4.6 billion, a considerable sum by any measure. MBUSA also has multiple offices and facilities in California, in cluding a regional headquarters. But the record does not answer a number of other important questions. Are any of Daimler’s key files main tained in MBUSA’s California offices? How many employ ees work in those offices? Do those employees make important strategic decisions or oversee in any manner Daimler’s activities? These questions could well affect whether Daimler is subject to general jurisdiction. After all, this Court upheld the exercise of general jurisdiction in 447–44 —which the majority refers to as a “text book case” of general jurisdiction, ante, at 10—on the basis that the foreign defendant maintained an office in Ohio, kept corporate files there, and oversaw the company’s activities from the State. California-based MBUSA em ployees may well have done similar things on Daimler’s behalf.5 But because the Court decides the issue without a —————— 4 See DaimlerChrysler, Innovations for our Customers: Annual Report 2004, p. 22, http://www.daimler.com/Projects/c2c/channel/documents/ 1364_2004_DaimlerChrysler_Annual_Report.pdf (as visited on Jan. 2014, and available in Clerk of Court’s case file). 5 To be sure, many of Daimler’s key management decisions are un doubtedly made by employees outside California. But the same was true in See v. Benguet Consol. Min. Co., Ohio App. 11, ; see also Helicop- teros Nacionales de Colombia, S. 466 U.S. 40, 416 (194) (asking whether defendant had “continuous and systematic general business contacts”).6 In every case where we have applied this test, we have focused solely on the magnitude of the defendant’s in-state contacts, not the relative magnitude of those contacts in comparison to the defendant’s contacts with other States. In for example, we found an Ohio court’s exer —————— decisions made by the company’s chief of staff in Manila and a purchas ing agent in California); see also n. infra. 6 While Helicopteros formulated the general jurisdiction inquiry as asking whether a foreign defendant possesses “continuous and system atic general business contacts,” the majority correctly notes, ante, at 19, that International used the phrase “continuous and systematic” in the context of discussing specific jurisdiction, 326 U.S., at 317. But the majority recognizes that International separately described the type of contacts needed for general jurisdiction as “continuous corporate operations” that are “so substantial” as to justify suit on unrelated causes of action. at 31. It is unclear why our precedents departed from International ’s “continuous and substantial” formulation in favor of the “continuous and systematic” formulation, but the majority does not contend—nor do I perceive—that there is a material difference between the two. Cite as: 571 U. S. (2014) 9 SOTOMAYOR, J., concurring in judgment cise of general jurisdiction permissible where the presi dent of the foreign defendant “maintained an office,” “drew and distributed salary checks,” used “two active bank accounts,” “supervised the rehabilitation of the corpo ration’s properties in the Philippines,” and held “directors’ meetings,” in –44. At no point did we attempt to catalog the company’s contacts in forums other than Ohio or to compare them with its Ohio con tacts. If anything, we intimated that the defendant’s Ohio contacts were not substantial in comparison to its contacts elsewhere. See at 43 (noting that the defendant’s Ohio contacts, while “continuous and systematic,” were but a “limited part of its general business”).7 We engaged in the same inquiry in Helicopteros. There, we held that a Colombian corporation was not subject to general jurisdiction in Texas simply because it occasion ally sent its employees into the State, accepted checks drawn on a Texas bank, and purchased equipment and services from a Texas company. In no sense did our anal ysis turn on the extent of the company’s operations beyond —————— 7 The majority suggests that I misinterpret language in that I do not even cite. Ante, at 11, n. The majority is quite correct that it has found a sentence in that does not address whether most of the Philippine corporation’s activities took place outside of See ante, at 11, n. (noting that described the company’s “wartime activities” as “necessarily limited,” 342 U.S., at 44). That is why I did not mention it. I instead rely on a sentence in ’ opening para graph: “The [Philippine] corporation has been carrying on in Ohio a continuous and systematic, but limited, part of its general business.” at 43. That sentence obviously does convey that most of the corporation’s activities occurred in “places other than Ohio,” ante, at 11, n. This is not surprising given that the company’s Ohio contacts involved a single officer working from a home office, while its non-Ohio contacts included significant mining properties and machinery operated throughout the Philippines, Philippine employees (including a chief of staff), a purchasing agent based in California, and board of directors meetings held in Washington, New York, and San Ohio App., at 123–, 95 N.E.2d, at ; see also n. infra. 10 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment Texas. Most recently, in Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. (2011), our analysis again focused on the defendant’s in-state contacts. Goodyear involved a suit against foreign tire manufacturers by North Carolina residents whose children had died in a bus accident in France. We held that North Carolina courts could not exercise general jurisdiction over the foreign defendants. Just as in and Helicopteros, our opinion in Goodyear did not identify the defendants’ con tacts outside of the forum State, but focused instead on the defendants’ lack of offices, employees, direct sales, and business operations within the State. This approach follows from the touchstone principle of due process in this field, the concept of reciprocal fairness. When a corporation chooses to invoke the benefits and protections of a State in which it operates, the State ac quires the authority to subject the company to suit in its courts. See International (“[T]o the extent that a corporation exercises the privilege of con ducting activities within a state, it enjoys the benefits and protection of the laws of that state” such that an “obliga tio[n] arise[s]” to respond there to suit); J. McIntyre Ma- chinery, Ltd. v. Nicastro, 564 U. S. (2011) (plurality opinion) (slip op., at 5) (same principle for general jurisdiction). The majority’s focus on the extent of a corpo rate defendant’s out-of-forum contacts is untethered from this rationale. After all, the degree to which a company intentionally benefits from a forum State depends on its interactions with that State, not its interactions else where. An article on which the majority relies (and on which Goodyear relied as well, 564 U. S., at (slip op., at 7)) expresses the point well: “We should not treat de fendants as less amenable to suit merely because they carry on more substantial business in other states [T]he amount of activity elsewhere seems virtually irrele Cite as: 571 U. S. (2014) 11 SOTOMAYOR, J., concurring in judgment vant to the imposition of general jurisdiction over a defendant.” Brilmayer et al., A General Look at General Jurisdiction, 66 Texas L. Rev. 721, 742 (19). Had the majority applied our settled approach, it would have had little trouble concluding that Daimler’s Califor nia contacts rise to the requisite level, given the majority’s assumption that MBUSA’s contacts may be attributed to Daimler and given Daimler’s concession that those con tacts render MBUSA “at home” in California. Our cases have long stated the rule that a defendant’s contacts with a forum State must be continuous, substantial, and sys tematic in order for the defendant to be subject to that State’s general jurisdiction. See We offered additional guidance in Goodyear, adding the phrase “essentially at home” to our prior formulation of the rule. 564 U. S., at (slip op., at 2) (a State may exercise general jurisdiction where a defendant’s “affilia tions with the State are so ‘continuous and systematic’ as to render [the defendant] essentially at home in the forum State”). We used the phrase “at home” to signify that in order for an out-of-state defendant to be subject to general jurisdiction, its continuous and substantial contacts with a forum State must be akin to those of a local enterprise that actually is “at home” in the State. See Brilmayer, —————— The majority views the phrase “at home” as serving a different purpose—that of requiring a comparison between a defendant’s in-state and out-of-state contacts. Ante, at 21, n. 20. That cannot be the correct understanding though, because among other things it would cast grave doubt on —a case that Goodyear pointed to as an exemplar of general jurisdiction, 564 U. S., at (slip op., at 11). For if had applied the majority’s newly minted proportionality test, it would have come out the other way. The majority apparently thinks that the Philippine corporate defend ant in did not have meaningful operations in places other than See ante, at 10–11, and n. But one cannot get past the second sentence of before realizing that is wrong. That sentence reads: 12 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment Under this standard, Daimler’s concession that MBUSA is subject to general jurisdiction in California (a concession the Court accepts, ante, at 15, 17) should be dispositive. For if MBUSA’s California contacts are so substantial and the resulting benefits to MBUSA so significant as to make MBUSA “at home” in California, the same must be true of Daimler when MBUSA’s contacts and benefits are viewed as its own. Indeed, until a footnote in its brief before this Court, even Daimler did not dispute this conclusion for eight years of the litigation. B The majority today concludes otherwise. Referring to —————— “The corporation has been carrying on in Ohio a continuous and sys tematic, but limited, part of its general business.” 342 U.S., at 43. Indeed, the facts of the case set forth by the Ohio Court of Appeals show just how “limited” the company’s Ohio contacts—which included a single officer keeping files and managing affairs from his Ohio home office—were in comparison with its “general business” operations elsewhere. By the time the suit was commenced, the company had resumed its considerable mining operations in the Philippines, “ ‘re building its properties’ ” there and purchasing “ ‘machinery, supplies and equipment.’ ” Ohio App., at 123–, 95 N.E.2d, at More over, the company employed key managers in other forums, including a purchasing agent in San Francisco and a chief of staff in the Philip pines. at 95 N. E. 2d, at The San Francisco purchasing agent negotiated the purchase of the company’s machinery and supplies “ ‘on the direction of the Company’s Chief of Staff in Manila,’ ” ib a fact that squarely refutes the majority’s assertion that “[a]ll of Ben guet’s activities were directed by the company’s president from within Ohio,” ante, at 11, n. And the vast majority of the company’s board of directors meetings took place outside Ohio, in locations such as Wash ington, New York, and San Ohio App., at 125, 94 N.E. 2d, at In light of these facts, it is all but impossible to reconcile the result in with the proportionality test the majority announces today. Goodyear’s use of the phrase “at home” is thus better understood to require the same general jurisdiction inquiry that required: An out-of-state business must have the kind of continuous and substantial in-state presence that a parallel local company would have. Cite as: 571 U. S. (2014) 13 SOTOMAYOR, J., concurring in judgment the “continuous and systematic” contacts inquiry that has been taught to generations of first-year law students as “unacceptably grasping,” ante, at 19, the majority an nounces the new rule that in order for a foreign defendant to be subject to general jurisdiction, it must not only pos sess continuous and systematic contacts with a forum State, but those contacts must also surpass some unspeci fied level when viewed in comparison to the company’s “nationwide and worldwide” activities. Ante, at 21, n. 20.9 Neither of the majority’s two rationales for this propor tionality requirement is persuasive. First, the majority suggests that its approach is necessary for the sake of predictability. Permitting general jurisdiction in every State where a corporation has continuous and substantial contacts, the majority asserts, would “scarcely permit out of-state defendants ‘to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.’ ” Ante, at 21 (quoting Burger King ). But there is nothing unpredictable about a rule that instructs multi national corporations that if they engage in continuous and substantial contacts with more than one State, they will be subject to general jurisdiction in each one. The majority may not favor that rule as a matter of policy, but such disagreement does not render an otherwise routine —————— 9 I accept at face value the majority’s declaration that general juris diction is not limited to a corporation’s place of incorporation and principal place of business because “a corporation’s operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in the State.” Ante, at 20, n. 19; see also ante, at 19. Were that not so, our analysis of the defendants’ in-state contacts in Helicop- teros Nacionales de Colombia, S. 466 U.S. 40 (194), and Goodyear would have been irrelevant, as none of the defendants in those cases was sued in its place of incorporation or principal place of business. 14 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment test unpredictable. Nor is the majority’s proportionality inquiry any more predictable than the approach it rejects. If anything, the majority’s approach injects an additional layer of uncer tainty because a corporate defendant must now try to foretell a court’s analysis as to both the sufficiency of its contacts with the forum State itself, as well as the relative sufficiency of those contacts in light of the company’s operations elsewhere. Moreover, the majority does not even try to explain just how extensive the company’s in-state contacts must be in the context of its global oper- ations in order for general jurisdiction to be proper. The majority’s approach will also lead to greater unpre dictability by radically expanding the scope of jurisdic tional discovery. Rather than ascertaining the extent of a corporate defendant’s forum-state contacts alone, courts will now have to identify the extent of a company’s con tacts in every other forum where it does business in order to compare them against the company’s in-state contacts. That considerable burden runs headlong into the major- ity’s recitation of the familiar principle that “ ‘[s]imple jurisdictional rules promote greater predictability.’ ” Ante, at 1–19 (quoting Hertz v. Friend, 559 U.S. 77, 94 (2010)). Absent the predictability rationale, the majority’s sole remaining justification for its proportionality approach is its unadorned concern for the consequences. “If Daimler’s California activities sufficed to allow adjudication of this Argentina-rooted case in California,” the majority la ments, “the same global reach would presumably be avail able in every other State in which MBUSA’s sales are sizable.” Ante, at 20. The majority characterizes this result as “exorbitant,” ib but in reality it is an inevitable consequence of the rule of due process we set forth nearly 70 years ago, that there are “instances in which [a company’s] continuous Cite as: 571 U. S. (2014) 15 SOTOMAYOR, J., concurring in judgment corporate operations within a state” are “so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities,” International 326 U.S., at 31. In the era of International it was rare for a corporation to have such substantial nationwide contacts that it would be subject to general jurisdiction in a large number of States. Today, that circumstance is less rare. But that is as it should be. What has changed since International is not the due process principle of fundamental fairness but rather the nature of the global economy. Just as it was fair to say in the 1940’s that an out-of-state company could enjoy the benefits of a forum State enough to make it “essentially at home” in the State, it is fair to say today that a multinational conglomerate can enjoy such extensive benefits in multiple forum States that it is “essentially at home” in each one. In any event, to the extent the majority is concerned with the modern-day consequences of International ’s conception of personal jurisdiction, there remain other judicial doctrines available to mitigate any resulting un fairness to large corporate defendants. Here, for instance, the reasonableness prong may afford petitioner relief. See at 3–4. In other cases, a defendant can assert the doctrine of forum non conveniens if a given State is a highly inconvenient place to litigate a dispute. See Gulf Oil v. Gilbert, 50–509 In still other cases, the federal change of venue statute can pro vide protection. See 2 U.S. C. (permitting transfers to other districts “[f]or the convenience of parties and witnesses” and “in the interests of justice”). And to the degree that the majority worries these doctrines are not enough to protect the economic interests of multina tional businesses (or that our longstanding approach to general jurisdiction poses “risks to international comity,” ante, at 22), the task of weighing those policy concerns 16 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment belongs ultimately to legislators, who may amend state and federal long-arm statutes in accordance with the democratic process. Unfortunately, the majority short circuits that process by enshrining today’s narrow rule of general jurisdiction as a matter of constitutional law. C The majority’s concern for the consequences of its deci sion should have led it the other way, because the rule that it adopts will produce deep injustice in at least four respects. First, the majority’s approach unduly curtails the States’ sovereign authority to adjudicate disputes against corporate defendants who have engaged in continuous and substantial business operations within their boundaries.10 The majority does not dispute that a State can exercise general jurisdiction where a corporate defendant has its corporate headquarters, and hence its principal place of business within the State. Cf. Hertz 559 U.S., at 93. Yet it never explains why the State should lose that power when, as is increasingly common, a corporation “divide[s] [its] command and coordinating functions among officers who work at several different locations.” at 95–96. Suppose a company divides its management func tions equally among three offices in different States, with one office nominally deemed the company’s corporate headquarters. If the State where the headquarters is located can exercise general jurisdiction, why should the —————— 10 States will of course continue to exercise specific jurisdiction in many cases, but we have never held that to be the outer limit of the States’ authority under the Due Process Clause. That is because the two forms of jurisdiction address different concerns. Whereas specific jurisdiction focuses on the relationship between a defendant’s chal lenged conduct and the forum State, general jurisdiction focuses on the defendant’s substantial presence in the State irrespective of the loca tion of the challenged conduct. Cite as: 571 U. S. (2014) 17 SOTOMAYOR, J., concurring in judgment other two States be constitutionally forbidden to do the same? Indeed, under the majority’s approach, the result would be unchanged even if the company has substantial operations within the latter two States (and even if the company has no sales or other business operations in the first State). Put simply, the majority’s rule defines the Due Process Clause so narrowly and arbitrarily as to contravene the States’ sovereign prerogative to subject to judgment defendants who have manifested an unqualified “intention to benefit from and thus an intention to submit to the[ir] laws,” J. McIntyre, 564 U. S., at (plurality opinion) (slip op., at 5). Second, the proportionality approach will treat small businesses unfairly in comparison to national and multi national conglomerates. Whereas a larger company will often be immunized from general jurisdiction in a State on account of its extensive contacts outside the forum, a small business will not be. For instance, the majority holds today that Daimler is not subject to general jurisdiction in California despite its multiple offices, continuous opera tions, and billions of dollars’ worth of sales there. But imagine a small business that manufactures luxury vehi cles principally targeting the California market and that has substantially all of its sales and operations in the State—even though those sales and operations may amount to one-thousandth of Daimler’s. Under the major ity’s rule, that small business will be subject to suit in California on any cause of action involving any of its activ ities anywhere in the world, while its far more pervasive competitor, Daimler, will not be. That will be so even if the small business incorporates and sets up its headquar ters elsewhere (as Daimler does), since the small business’ California sales and operations would still predominate when “apprais[ed]” in proportion to its minimal “nation wide and worldwide” operations, ante, at 21, n. 20. Third, the majority’s approach creates the incongruous 1 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment result that an individual defendant whose only contact with a forum State is a one-time visit will be subject to general jurisdiction if served with process during that visit, but a large corporation that owns property, employs workers, and does billions of dollars’ worth of business in the State will not be, simply because the corporation has similar contacts elsewhere (though the visiting individual surely does as well). Finally, it should be obvious that the ultimate effect of the majority’s approach will be to shift the risk of loss from multinational corporations to the individuals harmed by their actions. Under the majority’s rule, for example, a parent whose child is maimed due to the negligence of a foreign hotel owned by a multinational conglomerate will be unable to hold the hotel to account in a single U. S. court, even if the hotel company has a massive presence in multiple States. See, e.g., 2 F.3d 126411 Similarly, a U. S. business that enters into a contract in a foreign country to sell its products to a multinational company there may be unable to seek relief in any U. S. court if the multinational com pany breaches the contract, even if that company has considerable operations in numerous U. S. forums. See, e.g., Walpex Trading 712 F. Supp. 33 (SDNY 199).12 —————— 11 See also, e.g., Woods v. Nova Companies Belize Ltd., 739 So. 2d 617, 620–621 (Fla. App. 1999) (estate of decedent killed in an overseas plane crash permitted to sue responsible Belizean corporate defendant in Florida courts, rather than Belizean courts, based on defendant’s continuous and systematic business contacts in Florida). 12 The present case and the examples posited involve foreign corpo rate defendants, but the principle announced by the majority would apply equally to preclude general jurisdiction over a U. S. company that is incorporated and has its principal place of business in another U. S. State. Under the majority’s rule, for example, a General Motors auto worker who retires to Florida would be unable to sue GM in that State Cite as: 571 U. S. (2014) 19 SOTOMAYOR, J., concurring in judgment Indeed, the majority’s approach would preclude the plain tiffs in these examples from seeking recourse anywhere in the United States even if no other judicial system was available to provide relief. I cannot agree with the major- ity’s conclusion that the Due Process Clause requires these results. * * * The Court rules against respondents today on a ground that no court has considered in the history of this case, that this Court did not grant certiorari to decide, and that Daimler raised only in a footnote of its brief. In doing so, the Court adopts a new rule of constitutional law that is unmoored from decades of precedent. Because I would reverse the Ninth Circuit’s decision on the narrower ground that the exercise of jurisdiction over Daimler would be unreasonable in any event, I respectfully concur in the judgment only. —————— for disabilities that develop from the retiree’s labor at a Michigan parts plant, even though GM undertakes considerable business operations in Florida. See Twitchell, The Myth of General Jurisdiction, 101 Harv. L. Rev. 610, 670 (19)
Justice O'Connor	majority	false	Voinovich v. Quilter	1993-03-02T00:00:00	null	https://www.courtlistener.com/opinion/112824/voinovich-v-quilter/	https://www.courtlistener.com/api/rest/v3/clusters/112824/	1,993	1992-035	1	9	0	This is yet another dispute arising out of legislative redistricting and reapportionment. See, e. g., Growe v. Emison, ante, p. 25. Today we consider whether Ohio's creation of several legislative districts dominated by minority voters violated § 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S. C. § 1973. I Under the Ohio Constitution, the state apportionment board must reapportion electoral districts for the state legislature every 10 years. Ohio Const., Art. XI, § 1. In 1991, the board selected James Tilling to draft a proposed apportionment plan. After conducting public hearings and meeting with members of historically underrepresented groups, Tilling drafted a plan that included eight so-called majorityminority districtsdistricts in which a majority of the population is a member of a specific minority group. The board adopted the plan with minor amendments by a 3-to-2 vote along party lines. The board's three Republican members voted for the plan; the two Democrats voted against it. 794 F. Supp. 695, 698, 716-717 (ND Ohio 1992); App. to Juris. Statement 160a167a, 183a. Appellees Barney Quilter and Thomas Ferguson, the two Democratic members of the board who voted against the plan, and various Democratic electors and legislators filed this lawsuit in the United States District Court for the Northern District of Ohio seeking the plan's invalidation. They alleged that the plan violated § 2 of the Voting Rights Act of 1965, as amended, 42 U.S. C. § 1973, and the Fourteenth and Fifteenth Amendments to the United States Constitution. 794 F. Supp., at 695-696. According to appellees, the plan "packed" black voters by creating districts in which they would constitute a disproportionately large majority. This, appellees contended, minimized the total number of districts in which black voters could select their candidate of 150 choice. In appellees' view, the plan should have created a larger number of "influence" districtsdistricts in which black voters would not constitute a majority but in which they could, with the help of a predictable number of crossover votes from white voters, elect their candidates of choice. See App. to Juris. Statement 141a142a. Appellants, by contrast, argued that the plan actually enhanced the strength of black voters by providing "safe" minoritydominated districts. The plan, they pointed out, compared favorably with the 1981 apportionment and had the backing of the National Association for the Advancement of Colored People, Ohio Conference of Branches (Ohio NAACP). 794 F. Supp., at 706. A three-judge District Court heard the case and held for appellees. Relying on various statements Tilling had made in the course of the reapportionment hearings, the court found that the board had created minority-dominated districts "whenever possible." Id., at 698. The District Court rejected appellants' contention that § 2 of the Voting Rights Act of 1965, as amended, 42 U.S. C. § 1973, requires that such districts be created wherever possible. 794 F. Supp., at 699. It further held that § 2 actually prohibits the "wholesale creation of majority-minority districts" unless necessary to "`remedy' " a § 2 violation. Id., at 701. The District Court therefore ordered the board to draft a new plan or demonstrate that it was remedying a § 2 violation. Id., at 702. Judge Dowd dissented, arguing that the majority's analysis "place[d] the cart before the horse." Id., at 709. In his view, § 2 does not require the State to show a violation before creating a majority-minority district. Rather, the State may create any district it might desire, so long as minority voting strength is not diluted as a result. Because appellees failed to demonstrate that the 1991 plan diluted the balloting strength of black voters, Judge Dowd thought their challenge should fail. Id., at 710. 151 The apportionment board responded by creating a record that, in its view, justified the creation of majority-minority districts. The board also adjusted the plan to correct "technical" errors that the Ohio Supreme Court had identified in its independent review of the plan. This revised 1992 plan created only five majority-black districts. App. to Juris. Statement 258a263a. The District Court, however, was not satisfied with the board's proof. In an order issued on March 10, 1992, itheld that "the [b]oard fail[ed] once again to justify its wholesale creation of majority-minority districts, thus rendering the plan, as submitted, violative of the Voting Rights Act of 1965." 794 F. Supp. 756, 757 (ND Ohio). The court then appointed a special master to prepare a redistricting plan. Ibid. Once again, Judge Dowd dissented. Id., at 758. Nine days later, on March 19, 1992, the District Court issued an order reaffirming its view that the creation of majority-minority districts is impermissible under § 2 unless necessary to remedy a statutory violation. App. to Juris. Statement 128a141a. The order also restated the court's conclusion that the board had failed to prove a violation. Specifically, it noted "the absence of racial bloc voting, the [ability of black voters] to elect both black and white candidates of their choice, and the fact that such candidates ha[d] been elected over a sustained period of time." Id., at 130a. In addition, the order rejected as "clever sophistry" appellants' argument that the District Court should not have invalidated the 1991 plan without finding that, under the totality of the circumstances, it diluted minority voting strength: "Having implemented the Voting Rights Act remedy in the absence of a violation, [appellants] suggest that we are now required to establish a violation as a prerequisite to removing the remedy. Actually, however, this task is not as difficult as it seems. The totality of circumstances reveals coalitional voting between whites and blacks. As a result, black candidates have been repeatedly 152 elected from districts with only a 35% black population. Against this background, the per se requirement of the creation of majority-minority districts has a dilutive effect on black votes . . . ." Id., at 141a, 142a (footnotes omitted). The District Court further concluded that, because the board had applied the "`remedy' intentionally" and for the purpose of political advantage, it had violated not only § 2 but the Fifteenth Amendment as well. Id., at 142a143a. Finally, the court held that the plan violated the Fourteenth Amendment because it departed from the requirement that all districts be of nearly equal population. Id., at 146a148a. On March 31, 1992, the District Court ordered that the primary elections for Ohio's General Assembly be rescheduled. 794 F. Supp. 760 (ND Ohio). On April 20, 1992, this Court granted appellants' application for a stay of the District Court's orders, 503 U.S. 979; and on June 1, 1992, we noted probable jurisdiction, 504 U.S. 954. We now reverse the judgment of the District Court and remand only for further proceedings on whether the plan's deviation from equal population among districts violates the Fourteenth Amendment. II Congress enacted § 2 of the Voting Rights Act of 1965, 42 U.S. C. § 1973, to help effectuate the Fifteenth Amendment's guarantee that no citizen's right to vote shall "be denied or abridged . . . on account of race, color, or previous condition of servitude," U. S. Const., Amdt. 15. See NAACP v. New York, 413 U.S. 345, 350 (1973). Section 2(a) of the Act prohibits the imposition of any electoral practice or procedure that "results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color." Section 2(b), in relevant part, specifies that § 2(a) is violated if: "[B]ased on the totality of circumstances, it is shown that the political processes leading to nomination or election 153 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(b). Section 2 thus prohibits any practice or procedure that, "interact[ing] with social and historical conditions," impairs the ability of a protected class to elect its candidate of choice on an equal basis with other voters. Thornburg v. Gingles, 478 U.S. 30, 47 (1986). A In the context of single-member districts, the usual device for diluting minority voting power is the manipulation of district lines. A politically cohesive minority group that is large enough to constitute the majority in a single-member district has a good chance of electing its candidate of choice, if the group is placed in a district where it constitutes a majority. Dividing the minority group among various districts so that it is a majority in none may prevent the group from electing its candidate of choice: Ifthe majority in each district votes as a bloc against the minority candidate, the fragmented minority group will be unable to muster sufficient votes in any district to carry its candidate to victory. This case focuses not on the fragmentation of a minority group among various districts but on the concentration of minority voters within a district. How such concentration or "packing" may dilute minority voting strength is not difficult to conceptualize. A minority group, for example, might have sufficient numbers to constitute a majority in three districts. So apportioned, the group inevitably will elect three candidates of its choice, assuming the group is sufficiently cohesive. But if the group is packed into two districts in which it constitutes a super-majority, it will be 154 assured only two candidates. As a result, we have recognized that "[d]ilution of racial minority group voting strength may be caused" either "by the dispersal of blacks into districts in which they constitute an ineffective minority of voters or from the concentration of blacks into districts where they constitute an excessive majority." Id., at 46, n. 11. Appellees in this case, however, do not allege that Ohio's creation of majority-black districts prevented black voters from constituting a majority in additional districts. Instead, they claim that Ohio's plan deprived them of "influence districts" in which they would have constituted an influential minority. Black voters in such influence districts, of course, could not dictate electoral outcomes independently. But they could elect their candidate of choice nonetheless if they are numerous enough and their candidate attracts sufficient cross-over votes from white voters. We have not yet decided whether influence-dilution claims such as appellees' are viable under § 2, Growe, ante, at 41, n. 5; see Gingles, supra, at 46-47, nn. 11-12 (leaving open the possibility of influencedilution claims); nor do we decide that question today. Instead, we assume for the purpose of resolving this case that appellees in fact have stated a cognizable § 2 claim. B The practice challenged here, the creation of majorityminority districts, does not invariably minimize or maximize minority voting strength. Instead, it can have either effect or neither. On the one hand, creating majority-black districts necessarily leaves fewer black voters and therefore diminishes black-voter influence in predominantly white districts. On the other hand, the creation of majority-black districts can enhance the influence of black voters. 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. Which effect the practice 155 has, if any at all, depends entirely on the facts and circumstances of each case. The District Court, however, initially thought it unnecessary to determine the effect of creating majority-black districts under the totality of the circumstances. In fact, the court did not believe it necessary to find vote dilution at all. It instead held that § 2 prohibits the creation of majorityminority districts unless such districts are necessary to remedy a statutory violation. 794 F. Supp., at 701. We disagree. Section 2 contains no per se prohibitions against particular types of districts: It says nothing about majorityminority districts, districts dominated by certain political parties, or even districts based entirely on partisan political concerns. Instead, § 2 focuses exclusively on the consequences of apportionment. Only if the apportionment scheme has the effect of denying a protected class the equal opportunity to elect its candidate of choice does it violate § 2; where such an effect has not been demonstrated, § 2 simply does not speak to the matter. See 42 U.S. C. § 1973(b). Indeed, in Gingles we expressly so held: "[E]lectoral devices. . . may not be considered per se violative of § 2. Plaintiffs must demonstrate that, under the totality of the circumstances, the devices result in unequal access to the electoral process." 478 U.S., at 46. As a result, the District Court was required to determine the consequences of Ohio's apportionment plan before ruling on its validity; the failure to do so was error. The District Court's decision was flawed for another reason as well. By requiring appellants to justify the creation of majority-minority districts, the District Court placed the burden of justifying apportionment on the State. Section 2, however, places at least the initial burden of proving an apportionment's invalidity squarely on the plaintiff's shoulders. Section 2(b) specifies that § 2(a) is violated if "it is shown " that a state practice has the effect of denying a protected group equal access to the electoral process. 156 42 U.S. C. § 1973(b) (emphasis added). The burden of "show[ing]" the prohibited effect, of course, is on the plaintiff; surely Congress could not have intended the State to prove the invalidity of its own apportionment scheme. See Gingles, 478 U. S., at 46 (plaintiffs must demonstrate that the device results in unequal access to the electoral process); id., at 49, n. 15 (plaintiffs must "prove their claim before they may be awarded relief"). The District Court relieved appellees of that burden in this case solely because the State had created majority-minority districts. Because that departure from the statutorily required allocation of burdens finds no support in the statute, it was error for the District Court to impose it. Of course, the federal courts may not order the creation of majority-minority districts unless necessary to remedy a violation of federal law. See Growe, ante, at 40-41. But that does not mean that the State's powers are similarly limited. Quite the opposite is true: Federal courts are barred from intervening in state apportionment in the absence of a violation of federal law precisely because it is the domain of the States, and not the federal courts, to conduct apportionment in the first place. Time and again we have emphasized that "`reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.' " Growe, ante, at 34 (quoting Chapman v. Meier, 420 U.S. 1, 27 (1975)). Accord, Connor v. Finch, 431 U.S. 407, 414 (1977) ("We have repeatedly emphasized that `legislative reapportionment is primarily a matter for legislative consideration and determination' " (quoting Reynolds v. Sims, 377 U.S. 533, 586 (1964))). Because the "States do not derive their reapportionment authority from the Voting Rights Act, but rather from independent provisions of state and federal law," Brief for United States as Amicus Curiae 12, the federal courts are bound to respect the States' apportionment choices unless those choices contravene federal requirements. Cf. Katzenbach v. Morgan, 157 384 U.S. 641, 647-648 (1966) ("Under the distribution of powers effected by the Constitution, the States establish qualifications for voting for state officers" and such qualifications are valid unless they violate the Constitution or a federal statute). Appellees' complaint does not allege that the State's conscious use of race in redistricting violates the Equal Protection Clause; the District Court below did not address the issue; and neither party raises it here. Accordingly, we express no view on how such a claim might be evaluated. We hold only that, under § 2 of the Voting Rights Act of 1965, as amended, 42 U.S. C. § 1973, plaintiffs can prevail on a dilution claim only if they show that, under the totality of the circumstances, the State's apportionment scheme has the effect of diminishing or abridging the voting strength of the protected class. C In its order of March 19, 1992, the District Court found that the 1992 plan's creation of majority-minority districts "ha[d] a dilutive effect on black votes." App. to Juris. Statement 141a. Again we disagree. In Thornburg v. Gingles, supra, this Court held that plaintiffs claiming vote dilution through the use of multimember districts must prove three threshold conditions. First, they must show that the minority group "`is sufficiently large and geographically compact to constitute a majority in a singlemember district.' " Second, they must prove that the minority group "`is politically cohesive.' " Third, the plaintiffs must establish "`that the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate.' " Growe, ante, at 40 (quoting Gingles, supra, at 50-51). The District Court apparently thought the three Gingles factors inapplicable because Ohio has single-member rather than multimember districts. 794 F. Supp., at 699 ("Gingles ` preconditions are not applicable to the apportionment of single-member districts"). In Growe, 158 however, we held that the Gingles preconditions apply in challenges to single-member as well as multimember districts. Ante, at 40-41. Had the District Court employed the Gingles test in this case, it would have rejected appellees' § 2 claim. Of course, the Gingles factors cannot be applied mechanically and without regard to the nature of the claim. For example, the first Gingles precondition, the requirement that the group be sufficiently large to constitute a majority in a single district, would have to be modified or eliminated when analyzing the influence-dilution claim we assume, arguendo, to be actionable today. Supra, at 154. The complaint in such a case is not that black voters have been deprived of the ability to constitute a majority, but of the possibility of being a sufficiently large minority to elect their candidate of choice with the assistance of cross-over votes from the white majority. See ibid. We need not decide how Gingles ` first factor might apply here, however, because appellees have failed to demonstrate Gingles ` third preconditionsufficient white majority bloc voting to frustrate the election of the minority group's candidate of choice. The District Court specifically found that Ohio does not suffer from "racially polarized voting." 794 F. Supp., at 700-701. Accord, App. to Juris. Statement 132a134a, and n. 2, 139a140a. Even appellees agree. See Tr. of Oral Arg. 25. Here, as in Gingles, "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." Gingles, 478 U. S., at 49, n. 15. The District Court's finding of a § 2 violation, therefore, must be reversed. III The District Court also held that the redistricting plan violated the Fifteenth Amendment because the apportionment board intentionally diluted minority voting strength for political reasons. App. to Juris. Statement 142a143a. 159 This Court has not decided whether the Fifteenth Amendment applies to vote-dilution claims; in fact, we never have held any legislative apportionment inconsistent with the Fifteenth Amendment. Beer v. United States, 425 U.S. 130, 142-143, n. 14 (1976). Nonetheless, we need not decide the precise scope of the Fifteenth Amendment's prohibition in this case. Even if we assume that the Fifteenth Amendment speaks to claims like appellees', the District Court's decision still must be reversed: Its finding of intentional discrimination was clearly erroneous. See Mobile v. Bolden, 446 U.S. 55, 62 (1980) (plurality opinion); id., at 101-103 (White, J., dissenting); id., at 90-92 (Stevens, J., concurring in judgment); id., at 80 (Blackmun, J., concurring in result). The District Court cited only two pieces of evidence to support its finding. First, the District Court thought it significant that the plan's drafter, Tilling, disregarded the requirements of the Ohio Constitution where he believed that the Voting Rights Act of 1965 required a contrary result. App. to Juris. Statement 142a143a, n. 8. But Tilling's preference for federal over state law when he believed the two in conflict does not raise an inference of intentional discrimination; it demonstrates obedience to the Supremacy Clause of the United States Constitution. Second, the District Court cited Tilling's possession of certain documents that, according to the court, were tantamount to "a road-map detailing how [one could] create a racial gerrymander." Id. , at 143a, n. 9. Apparently, the District Court believed that Tilling, a Republican, sought to minimize the Democratic Party's power by diluting minority voting strength. See ibid. The District Court, however, failed to explain the nature of the documents. Contrary to the implication of the District Court opinion, the documents were not a set of Republican plans for diluting minority voting strength. In fact, they were not even created by Tilling or the Republicans. They were created by a Democrat who, concerned about possible Republican manipulation of apportionment, 160 set out the various types of political gerrymandering in which he thought the Republicans might engage. App. 99 100. That Tilling possessed documents in which the opposing party speculated that he might have a discriminatory strategy does not indicate that Tilling actually had such a strategy. And nothing in the record indicates that Tilling relied on the documents in preparing the plan. Indeed, the record demonstrates that Tilling and the board relied on sources that were wholly unlikely to engage in or tolerate intentional discrimination against black voters, including the Ohio NAACP, the Black Elected Democrats of Ohio, and the Black Elected Democrats of Cleveland, Ohio. Tilling's plan actually incorporated much of the Ohio NAACP's proposed plan; the Ohio NAACP, for its part, fully supported the 1991 apportionment plan. 794 F. Supp., at 726-729; App. to Juris. Statement 164a167a, 269a270a. Because the evidence not only fails to support but also directly contradicts the District Court's finding of discriminatory intent, we reverse that finding as clearly erroneous. In so doing, we express no view on the relationship between the Fifteenth Amendment and race-conscious redistricting. Cf. United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 155-165 (1977) (plurality opinion). Neither party asserts that the State's conscious use of race by itself violates the Fifteenth Amendment. Instead, they dispute whether the District Court properly found that the State intentionally discriminated against black voters. On that question, we hold only that the District Court's finding of discriminatory intent was clear error. IV Finally, the District Court held that the plan violated the Fourteenth Amendment because it created legislative districts of unequal size. App. to Juris. Statement 146a 148a. The Equal Protection Clause does require that electoral districts be "of nearly equal population, so that each 161 person's vote may be given equal weight in the election of representatives." Connor, 431 U. S., at 416. But the requirement is not an inflexible one. "[M]inor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State. Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations. A plan with larger disparities in population, however, creates a prima facie case of discrimination and therefore must be justified by the State." Brown v. Thomson, 462 U.S. 835, 842-843 (1983) (internal quotation marks and citations omitted). Here, the District Court found that the maximum total deviation from ideal district size exceeded 10%. App. to Juris. Statement 148a. As a result, appellees established a prima facie case of discrimination, and appellants were required to justify the deviation. Appellants attempted to do just that, arguing that the deviation resulted from the State's constitutional policy in favor of preserving county boundaries. See Ohio Const., Arts. VIIXI. The District Court therefore was required to decide whether the "plan `may reasonably be said to advance [the] rational state policy' " of preserving county boundaries "and, if so, `whether the population disparities among the districts that have resulted from the pursuit of th[e] plan exceed constitutional limits.' " Brown, supra, at 843 (quoting Mahan v. Howell, 410 U.S. 315, 328 (1973)). Rather than undertaking that inquiry, the District Court simply held that total deviations in excess of 10% cannot be justified by a policy of preserving the boundaries of political subdivisions. Our case law is directly to the contrary. See Mahan v. Howell, supra (upholding total deviation of over 16% where justified by the rational objective of *162 preserving the integrity of political subdivision lines); see also Brown v. Thomson, supra. On remand, the District Court should consider whether the deviations from the ideal district size are justified using the analysis employed in Brown, supra, at 843-846, and Mahan, supra, at 325-330. The judgment of the District Court is reversed, and the case is remanded for further proceedings in conformity with this opinion. So ordered.	This is yet another dispute arising out of legislative redistricting and reapportionment See, e g, Growe v Emison, ante, p 25 Today we consider whether Ohio's creation of several legislative districts dominated by minority voters violated 2 of the Voting Rights Act of 1965, as amended, 42 US C 1973 I Under the Ohio Constitution, the state apportionment board must reapportion electoral districts for the state legislature every 10 years Ohio Const, Art XI, 1 In 1991, the board selected James Tilling to draft a proposed apportionment plan After conducting public hearings and meeting with members of historically underrepresented groups, Tilling drafted a plan that included eight so-called majorityminority districtsdistricts in which a majority of the population is a member of a specific minority group The board adopted the plan with minor amendments by a 3-to-2 vote along party lines The board's three Republican members voted for the plan; the two Democrats voted against it ; App to Juris Statement 160a167a, 183a Appellees Barney Quilter and Thomas Ferguson, the two Democratic members of the board who voted against the plan, and various Democratic electors and legislators filed this lawsuit in the United States District Court for the Northern District of Ohio seeking the plan's invalidation They alleged that the plan violated 2 of the Voting Rights Act of 1965, as amended, 42 US C 1973, and the Fourteenth and Fifteenth Amendments to the United States -696 According to appellees, the plan "packed" black voters by creating districts in which they would constitute a disproportionately large majority This, appellees contended, minimized the total number of districts in which black voters could select their candidate of 150 choice In appellees' view, the plan should have created a larger number of "influence" districtsdistricts in which black voters would not constitute a majority but in which they could, with the help of a predictable number of crossover votes from white voters, elect their candidates of choice See App to Juris Statement 141a142a Appellants, by contrast, argued that the plan actually enhanced the strength of black voters by providing "safe" minoritydominated districts The plan, they pointed out, compared favorably with the 1981 apportionment and had the backing of the National Association for the Advancement of Colored People, Ohio Conference of Branches (Ohio NAACP) A three-judge District Court heard the case and held for appellees Relying on various statements Tilling had made in the course of the reapportionment hearings, the court found that the board had created minority-dominated districts "whenever possible" Id, The District Court rejected appellants' contention that 2 of the Voting Rights Act of 1965, as amended, 42 US C 1973, requires that such districts be created wherever possible 794 F Supp, at 699 It further held that 2 actually prohibits the "wholesale creation of majority-minority districts" unless necessary to "`remedy' " a 2 violation Id, The District Court therefore ordered the board to draft a new plan or demonstrate that it was remedying a 2 violation Id, Judge Dowd dissented, arguing that the majority's analysis "place[d] the cart before the horse" Id, In his view, 2 does not require the State to show a violation before creating a majority-minority district Rather, the State may create any district it might desire, so long as minority voting strength is not diluted as a result Because appellees failed to demonstrate that the 1991 plan diluted the balloting strength of black voters, Judge Dowd thought their challenge should fail Id, 151 The apportionment board responded by creating a record that, in its view, justified the creation of majority-minority districts The board also adjusted the plan to correct "technical" errors that the Ohio Supreme Court had identified in its independent review of the plan This revised plan created only five majority-black districts App to Juris Statement 258a263a The District Court, however, was not satisfied with the board's proof In an order issued on March 10, itheld that "the [b]oard fail[ed] once again to justify its wholesale creation of majority-minority districts, thus rendering the plan, as submitted, violative of the Voting Rights Act of 1965" 794 F Supp 756, (ND Ohio) The court then appointed a special master to prepare a redistricting plan Ibid Once again, Judge Dowd dissented Id, Nine days later, on March 19, the District Court issued an order reaffirming its view that the creation of majority-minority districts is impermissible under 2 unless necessary to remedy a statutory violation App to Juris Statement 128a141a The order also restated the court's conclusion that the board had failed to prove a violation Specifically, it noted "the absence of racial bloc voting, the [ability of black voters] to elect both black and white candidates of their choice, and the fact that such candidates ha[d] been elected over a sustained period of time" Id, at 130a In addition, the order rejected as "clever sophistry" appellants' argument that the District Court should not have invalidated the 1991 plan without finding that, under the totality of the circumstances, it diluted minority voting strength: "Having implemented the Voting Rights Act remedy in the absence of a violation, [appellants] suggest that we are now required to establish a violation as a prerequisite to removing the remedy Actually, however, this task is not as difficult as it seems The totality of circumstances reveals coalitional voting between whites and blacks As a result, black candidates have been repeatedly 152 elected from districts with only a 35% black population Against this background, the per se requirement of the creation of majority-minority districts has a dilutive effect on black votes " Id, at 141a, 142a (footnotes omitted) The District Court further concluded that, because the board had applied the "`remedy' intentionally" and for the purpose of political advantage, it had violated not only 2 but the Fifteenth Amendment as well Id, at 142a143a Finally, the court held that the plan violated the Fourteenth Amendment because it departed from the requirement that all districts be of nearly equal population Id, at 146a148a On March 31, the District Court ordered that the primary elections for Ohio's General Assembly be rescheduled 794 F Supp 760 (ND Ohio) On April 20, this Court granted appellants' application for a stay of the District Court's orders, 503 US 979; and on June 1, we noted probable jurisdiction, 504 US 954 We now reverse the judgment of the District Court and remand only for further proceedings on whether the plan's deviation from equal population among districts violates the Fourteenth Amendment II Congress enacted 2 of the Voting Rights Act of 1965, 42 US C 1973, to help effectuate the Fifteenth Amendment's guarantee that no citizen's right to vote shall "be denied or abridged on account of race, color, or previous condition of servitude," U S Const, Amdt 15 See NAACP v New York, 413 US 345, Section 2(a) of the Act prohibits the imposition of any electoral practice or procedure that "results in a denial or abridgement of the right of any citizen to vote on account of race or color" Section 2(b), in relevant part, specifies that 2(a) is violated if: "[B]ased on the totality of circumstances, it is shown that the political processes leading to nomination or election 153 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 US C 1973(b) Section 2 thus prohibits any practice or procedure that, "interact[ing] with social and historical conditions," impairs the ability of a protected class to elect its candidate of choice on an equal basis with other voters Thornburg v 8 US 30, A In the context of single-member districts, the usual device for diluting minority voting power is the manipulation of district lines A politically cohesive minority group that is large enough to constitute the majority in a single-member district has a good chance of electing its candidate of choice, if the group is placed in a district where it constitutes a majority Dividing the minority group among various districts so that it is a majority in none may prevent the group from electing its candidate of choice: Ifthe majority in each district votes as a bloc against the minority candidate, the fragmented minority group will be unable to muster sufficient votes in any district to carry its candidate to victory This case focuses not on the fragmentation of a minority group among various districts but on the concentration of minority voters within a district How such concentration or "packing" may dilute minority voting strength is not difficult to conceptualize A minority group, for example, might have sufficient numbers to constitute a majority in three districts So apportioned, the group inevitably will elect three candidates of its choice, assuming the group is sufficiently cohesive But if the group is packed into two districts in which it constitutes a super-majority, it will be 154 assured only two candidates As a result, we have recognized that "[d]ilution of racial minority group voting strength may be caused" either "by the dispersal of blacks into districts in which they constitute an ineffective minority of voters or from the concentration of blacks into districts where they constitute an excessive majority" Id, at 46, n 11 Appellees in this case, however, do not allege that Ohio's creation of majority-black districts prevented black voters from constituting a majority in additional districts Instead, they claim that Ohio's plan deprived them of "influence districts" in which they would have constituted an influential minority Black voters in such influence districts, of course, could not dictate electoral outcomes independently But they could elect their candidate of choice nonetheless if they are numerous enough and their candidate attracts sufficient cross-over votes from white voters We have not yet decided whether influence-dilution claims such as appellees' are viable under 2, Growe, ante, at 41, n 5; see at 46-, nn 11-12 ; nor do we decide that question today Instead, we assume for the purpose of resolving this case that appellees in fact have stated a cognizable 2 claim B The practice challenged here, the creation of majorityminority districts, does not invariably minimize or maximize minority voting strength Instead, it can have either effect or neither On the one hand, creating majority-black districts necessarily leaves fewer black voters and therefore diminishes black-voter influence in predominantly white districts On the other hand, the creation of majority-black districts can enhance the influence of black voters 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 Which effect the practice 155 has, if any at all, depends entirely on the facts and circumstances of each case The District Court, however, initially thought it unnecessary to determine the effect of creating majority-black districts under the totality of the circumstances In fact, the court did not believe it necessary to find vote dilution at all It instead held that 2 prohibits the creation of majorityminority districts unless such districts are necessary to remedy a statutory violation 794 F Supp, We disagree Section 2 contains no per se prohibitions against particular types of districts: It says nothing about majorityminority districts, districts dominated by certain political parties, or even districts based entirely on partisan political concerns Instead, 2 focuses exclusively on the consequences of apportionment Only if the apportionment scheme has the effect of denying a protected class the equal opportunity to elect its candidate of choice does it violate 2; where such an effect has not been demonstrated, 2 simply does not speak to the matter See 42 US C 1973(b) Indeed, in we expressly so held: "[E]lectoral devices may not be considered per se violative of 2 Plaintiffs must demonstrate that, under the totality of the circumstances, the devices result in unequal access to the electoral process" 8 US, at 46 As a result, the District Court was required to determine the consequences of Ohio's apportionment plan before ruling on its validity; the failure to do so was error The District Court's decision was flawed for another reason as well By requiring appellants to justify the creation of majority-minority districts, the District Court placed the burden of justifying apportionment on the State Section 2, however, places at least the initial burden of proving an apportionment's invalidity squarely on the plaintiff's shoulders Section 2(b) specifies that 2(a) is violated if "it is shown " that a state practice has the effect of denying a protected group equal access to the electoral process 156 42 US C 1973(b) (emphasis added) The burden of "show[ing]" the prohibited effect, of course, is on the plaintiff; surely Congress could not have intended the State to prove the invalidity of its own apportionment scheme See 8 U S, at 46 ; id, at 49, n 15 The District Court relieved appellees of that burden in this case solely because the State had created majority-minority districts Because that departure from the statutorily required allocation of burdens finds no support in the statute, it was error for the District Court to impose it Of course, the federal courts may not order the creation of majority-minority districts unless necessary to remedy a violation of federal law See Growe, ante, at 40-41 But that does not mean that the State's powers are similarly limited Quite the opposite is true: Federal courts are barred from intervening in state apportionment in the absence of a violation of federal law precisely because it is the domain of the States, and not the federal courts, to conduct apportionment in the first place Time and again we have emphasized that "`reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court' " Growe, ante, at 34 ) Accord, Connor v Finch, 431 US 407, )) Because the "States do not derive their reapportionment authority from the Voting Rights Act, but rather from independent provisions of state and federal law," Brief for United States as Amicus Curiae 12, the federal courts are bound to respect the States' apportionment choices unless those choices contravene federal requirements Cf Katzenbach v Morgan, 157 384 US 641, 6-648 Appellees' complaint does not allege that the State's conscious use of race in redistricting violates the Equal Protection Clause; the District Court below did not address the issue; and neither party raises it here Accordingly, we express no view on how such a claim might be evaluated We hold only that, under 2 of the Voting Rights Act of 1965, as amended, 42 US C 1973, plaintiffs can prevail on a dilution claim only if they show that, under the totality of the circumstances, the State's apportionment scheme has the effect of diminishing or abridging the voting strength of the protected class C In its order of March 19, the District Court found that the plan's creation of majority-minority districts "ha[d] a dilutive effect on black votes" App to Juris Statement 141a Again we disagree In Thornburg v this Court held that plaintiffs claiming vote dilution through the use of multimember districts must prove three threshold conditions First, they must show that the minority group "`is sufficiently large and geographically compact to constitute a majority in a singlemember district' " Second, they must prove that the minority group "`is politically cohesive' " Third, the plaintiffs must establish "`that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate' " Growe, ante, at 40 ( ) The District Court apparently thought the three factors inapplicable because Ohio has single-member rather than multimember districts 794 F Supp, at 699 (" ` preconditions are not applicable to the apportionment of single-member districts") In Growe, 158 however, we held that the preconditions apply in challenges to single-member as well as multimember districts Ante, at 40-41 Had the District Court employed the test in this case, it would have rejected appellees' 2 claim Of course, the factors cannot be applied mechanically and without regard to the nature of the claim For example, the first precondition, the requirement that the group be sufficiently large to constitute a majority in a single district, would have to be modified or eliminated when analyzing the influence-dilution claim we assume, arguendo, to be actionable today The complaint in such a case is not that black voters have been deprived of the ability to constitute a majority, but of the possibility of being a sufficiently large minority to elect their candidate of choice with the assistance of cross-over votes from the white majority See ibid We need not decide how ` first factor might apply here, however, because appellees have failed to demonstrate ` third preconditionsufficient white majority bloc voting to frustrate the election of the minority group's candidate of choice The District Court specifically found that Ohio does not suffer from "racially polarized voting" 794 F Supp, at 700-701 Accord, App to Juris Statement 132a134a, and n 2, 139a140a Even appellees agree See Tr of Oral Arg 25 Here, as in "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" 8 U S, at 49, n 15 The District Court's finding of a 2 violation, therefore, must be reversed III The District Court also held that the redistricting plan violated the Fifteenth Amendment because the apportionment board intentionally diluted minority voting strength for political reasons App to Juris Statement 142a143a 159 This Court has not decided whether the Fifteenth Amendment applies to vote-dilution claims; in fact, we never have held any legislative apportionment inconsistent with the Fifteenth Amendment Beer v United States, 425 US 130, 142-143, n 14 Nonetheless, we need not decide the precise scope of the Fifteenth Amendment's prohibition in this case Even if we assume that the Fifteenth Amendment speaks to claims like appellees', the District Court's decision still must be reversed: Its finding of intentional discrimination was clearly erroneous See Mobile v Bolden, 446 US 55, ; id, (White, J, dissenting); id, (Stevens, J, concurring in judgment); id, (Blackmun, J, concurring in result) The District Court cited only two pieces of evidence to support its finding First, the District Court thought it significant that the plan's drafter, Tilling, disregarded the requirements of the Ohio Constitution where he believed that the Voting Rights Act of 1965 required a contrary result App to Juris Statement 142a143a, n 8 But Tilling's preference for federal over state law when he believed the two in conflict does not raise an inference of intentional discrimination; it demonstrates obedience to the Supremacy Clause of the United States Second, the District Court cited Tilling's possession of certain documents that, according to the court, were tantamount to "a road-map detailing how [one could] create a racial gerrymander" Id at 143a, n 9 Apparently, the District Court believed that Tilling, a Republican, sought to minimize the Democratic Party's power by diluting minority voting strength See ibid The District Court, however, failed to explain the nature of the documents Contrary to the implication of the District Court opinion, the documents were not a set of Republican plans for diluting minority voting strength In fact, they were not even created by Tilling or the Republicans They were created by a Democrat who, concerned about possible Republican manipulation of apportionment, 160 set out the various types of political gerrymandering in which he thought the Republicans might engage App 99 100 That Tilling possessed documents in which the opposing party speculated that he might have a discriminatory strategy does not indicate that Tilling actually had such a strategy And nothing in the record indicates that Tilling relied on the documents in preparing the plan Indeed, the record demonstrates that Tilling and the board relied on sources that were wholly unlikely to engage in or tolerate intentional discrimination against black voters, including the Ohio NAACP, the Black Elected Democrats of Ohio, and the Black Elected Democrats of Cleveland, Ohio Tilling's plan actually incorporated much of the Ohio NAACP's proposed plan; the Ohio NAACP, for its part, fully supported the 1991 apportionment plan 794 F Supp, at 726-729; App to Juris Statement 164a167a, 269a0a Because the evidence not only fails to support but also directly contradicts the District Court's finding of discriminatory intent, we reverse that finding as clearly erroneous In so doing, we express no view on the relationship between the Fifteenth Amendment and race-conscious redistricting Cf United Jewish Organizations of Williamsburgh, Inc v Carey, 430 US 144, Neither party asserts that the State's conscious use of race by itself violates the Fifteenth Amendment Instead, they dispute whether the District Court properly found that the State intentionally discriminated against black voters On that question, we hold only that the District Court's finding of discriminatory intent was clear error IV Finally, the District Court held that the plan violated the Fourteenth Amendment because it created legislative districts of unequal size App to Juris Statement 146a 148a The Equal Protection Clause does require that electoral districts be "of nearly equal population, so that each 161 person's vote may be given equal weight in the election of representatives" Connor, 431 U S, at 416 But the requirement is not an inflexible one "[M]inor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations A plan with larger disparities in population, however, creates a prima facie case of discrimination and therefore must be justified by the State" v 4 US 835, Here, the District Court found that the maximum total deviation from ideal district size exceeded 10% App to Juris Statement 148a As a result, appellees established a prima facie case of discrimination, and appellants were required to justify the deviation Appellants attempted to do just that, arguing that the deviation resulted from the State's constitutional policy in favor of preserving county boundaries See Ohio Const, Arts VIIXI The District Court therefore was required to decide whether the "plan `may reasonably be said to advance [the] rational state policy' " of preserving county boundaries "and, if so, `whether the population disparities among the districts that have resulted from the pursuit of th[e] plan exceed constitutional limits' " ) Rather than undertaking that inquiry, the District Court simply held that total deviations in excess of 10% cannot be justified by a policy of preserving the boundaries of political subdivisions Our case law is directly to the contrary See v (upholding total deviation of over 16% where justified by the rational objective of *1 preserving the integrity of political subdivision lines); see also v On remand, the District Court should consider whether the deviations from the ideal district size are justified using the analysis employed in -846, and The judgment of the District Court is reversed, and the case is remanded for further proceedings in conformity with this opinion So ordered
Justice Marshall	majority	false	Perry v. Thomas	1987-06-15T00:00:00	null	https://www.courtlistener.com/opinion/111920/perry-v-thomas/	https://www.courtlistener.com/api/rest/v3/clusters/111920/	1,987	1986-126	2	7	2	In this appeal we decide whether § 2 of the Federal Arbitration Act, 9 U.S. C. § 1 et seq., which mandates enforcement of arbitration agreements, pre-empts § 229 of the California Labor Code, which provides that actions for the collection of wages may be maintained "without regard to the existence of any private agreement to arbitrate." Cal. Lab. Code Ann. § 229 (West 1971). I Appellee, Kenneth Morgan Thomas, brought this action in California Superior Court against his former employer, Kidder, Peabody & Co. (Kidder, Peabody), and two of its employees, appellants Barclay Perry and James Johnston. His complaint arose from a dispute over commissions on the sale of securities. Thomas alleged breach of contract, conversion, civil conspiracy to commit conversion, and breach of 485 fiduciary duty, for which he sought compensatory and punitive damages. After Thomas refused to submit the dispute to arbitration, the defendants sought to stay further proceedings in the Superior Court. Perry and Johnston filed a petition in the Superior Court to compel arbitration; Kidder, Peabody invoked diversity jurisdiction and filed a similar petition in Federal District Court. Both petitions sought arbitration under the authority of §§ 2 and 4 of the Federal Arbitration Act.[1] The demands for arbitration were based on a provision found in a Uniform Application for Securities Industry Registration form, which Thomas completed and executed in connection with his application for employment with Kidder, Peabody. That provision states: "I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions or by-laws of the organizations with which I register . . . ." App. 33a. Rule 347 of the New York Stock Exchange, Inc. (1975), with which Thomas registered, provides that "[a]ny controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration, at the instance of any such party . . . ." App. 34a. 486 Kidder, Peabody sought arbitration as a member organization of the New York Stock Exchange (NYSE). Perry and Johnston relied on Thomas' allegation that they had acted in the course and scope of their employment and argued that, as agents and employees of Kidder, Peabody, they were beneficiaries of the arbitration agreement. Thomas opposed both petitions on the ground that § 229 of the California Labor Code authorized him to maintain an action for wages, defined to include commissions,[2] despite the existence of an agreement to arbitrate. He relied principally on this Court's decision in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117 (1973), which had also considered the validity of § 229 in the face of a pre-emption challenge under the Supremacy Clause, U. S. Const., Art. VI, cl. 2. Thomas maintained that the decision in Ware stood for the proposition that the State's interest in protecting wage earners outweighs the federal interest in uniform dispute resolution. The Superior Court denied appellants' petition to compel arbitration.[3]Thomas v. Kidder Peabody & Co., Civ. Action No. C529105 (Los Angeles County, Apr. 23, 1985) (reprinted at App. 128a-129a). The court characterized Ware as "controlling authority" which held that, "in accordance with California Labor Code Section 229, actions to collect wages may be pursued without regard to private arbitration agreements." Id., at 129a. It further concluded that since Thomas' claims for conversion, civil conspiracy, and breach of fiduciary duty were ancillary to his claim for breach of 487 contract and differed only in terms of the remedies sought, they should also be tried and not severed for arbitration. Id., at 128a-129a. The Superior Court did not address Thomas' contention that Perry and Johnston were "not parties" to the arbitration agreement, id., at 78a, and therefore lacked a contractual basis for asserting the right to arbitrate, an argument Thomas characterizes as one of "standing."[4] Before the California Court of Appeal, appellants argued that Ware resolved only the narrow issue whether § 229 was pre-empted by Rule 347's provision for arbitration, given the promulgation of that Rule by the NYSE pursuant to § 6 of the Securities Exchange Act of 1934 (1934 Act), 48 Stat. 885, as amended, 15 U.S. C. § 78f, and the authority of the Securities and Exchange Commission (SEC) to review and modify the NYSE Rules pursuant to § 19 of the 1934 Act, 15 U.S. C. § 78s.[5] See 414 U.S., at 135. It was appellants' contention that, despite an indirect reference to the Federal Arbitration 488 Act in footnote 15 of the Ware opinion, the pre-emptive effect of § 2 of the Act was not at issue in that case. In an unpublished opinion, the Court of Appeal affirmed. Thomas v. Perry, 2d Civ. No. B014485 (2d Dist., Div. 5, Apr. 10, 1986) (reprinted at App. 139a-142a). It read Ware's single reference to the Federal Arbitration Act to imply that the Court had refused to hold § 229 pre-empted by that Act and the litigants' agreement to arbitrate disputes pursuant to Rule 347. Thus, the Court of Appeal held that a claim for unpaid wages brought under § 229 was not subject to compulsory arbitration, notwithstanding the existence of an arbitration agreement. App. 140a-141a. Like the Superior Court, the Court of Appeal also rejected appellants' argument, based on this Court's decision in Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213 (1985), that the ancillary claims for conversion, civil conspiracy, and breach of fiduciary duty were severable from the breach-of-contract claim and should be arbitrated. App. 142a. Finally, the Court of Appeal refused to consider Thomas' argument that Perry and Johnston lacked "standing" to enforce the arbitration agreement. The court concluded that Thomas had raised this argument for the first time on appeal.[6]Id., at 140a, n. 1. 489 The California Supreme Court denied appellants' petition for review. Id., at 144a. We noted probable jurisdiction,[7] 479 U.S. 982 (1986), and now reverse. II "Section 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act." Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24 (1983). Enacted pursuant to the Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, this body of substantive law is enforceable in both state and federal courts. Southland Corp. v. Keating, 465 U.S. 1, 11-12 (1984) (§ 2 held to pre-empt a provision of the California Franchise Investment Law that California courts had interpreted to require judicial consideration of claims arising under that law). As we stated in Keating, "[i]n enacting § 2 of the federal Act, Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration." Id., at 10. "Congress intended to foreclose state legislative attempts to undercut the enforceability of arbitration agreements." Id., at 16 (footnote omitted). Section 2, therefore, embodies a clear federal policy of requiring arbitration unless the agreement to arbitrate is not part of a contract evidencing interstate commerce or is revocable "upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S. C. § 2. "We see nothing in the Act indicating that the broad principle of enforceability 490 is subject to any additional limitations under state law." Keating, supra, at 11. In Ware, which also involved a dispute between a securities broker and his former employer, we rejected a Supremacy Clause challenge to § 229 premised in part on the contention that, because the 1934 Act had empowered the NYSE to promulgate rules and had given the SEC authority to review and modify these rules, a private agreement to be bound by the arbitration provisions of NYSE Rule 347 was enforceable as a matter of federal substantive law, and pre-empted state laws requiring resolution of the dispute in court. But the federal substantive law invoked in Ware emanated from a specific federal regulatory statute governing the securities industry the 1934 Act. We examined the language and policies of the 1934 Act and found "no Commission rule or regulation that specifie[d] arbitration as the favored means of resolving employer-employee disputes," 414 U.S., at 135, or that revealed a necessity for "nationwide uniformity of an exchange's housekeeping affairs." Id., at 136. The fact that NYSE Rule 347 was outside the scope of the SEC's authority of review militated against finding a clear federal intent to require arbitration. Id., at 135-136. Absent such a finding, we could not conclude that enforcement of California's § 229 would interfere with the federal regulatory scheme. Id., at 139-140. By contrast, the present appeal addresses the pre-emptive effect of the Federal Arbitration Act, a statute that embodies Congress' intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause. Its general applicability reflects that "[t]he preeminent concern of Congress in passing the Act was to enforce private agreements into which parties had entered . . . ." Byrd, 470 U. S., at 221. We have accordingly held that these agreements must be "rigorously enforce[d]." Ibid.; see Shearson/American Express Inc. v. McMahon, ante, at 226; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 491 U. S. 614, 625-626 (1985). This clear federal policy places § 2 of the Act in unmistakable conflict with California's § 229 requirement that litigants be provided a judicial forum for resolving wage disputes. Therefore, under the Supremacy Clause, the state statute must give way. The oblique reference to the Federal Arbitration Act in footnote 15 of the Ware decision, 414 U.S., at 135, cannot fairly be read as a definitive holding to the contrary. There, the Court noted a number of decisions as having "endorsed the suitability of arbitration to resolve federally created rights." Ibid. (emphasis added). Footnote 15 did not address the issue of federal pre-emption of state-created rights. Rather, the import of the footnote was that the reasoning and perhaps result in Ware might have been different if the 1934 Act "itself ha[d] provided for arbitration." Ibid.[8] 492 Our holding that § 2 of the Federal Arbitration Act pre-empts § 229 of the California Labor Code obviates any need to consider whether our decision in Byrd, supra, at 221, would have required severance of Thomas' ancillary claims for conversion, civil conspiracy, and breach of fiduciary duty from his breach-of-contract claim. We likewise decline to reach Thomas' contention that Perry and Johnston lack "standing" to enforce the agreement to arbitrate any of these claims, since the courts below did not address this alternative argument for refusing to compel arbitration. However, we do reject Thomas' contention that resolving these questions in appellants' favor is a prerequisite to their having standing under Article III of the Constitution to maintain the present appeal before this Court. As we perceive it, Thomas' "standing" argument simply presents a straightforward issue of contract interpretation: whether the arbitration provision inures to the benefit of appellants and may be construed, in light of the circumstances surrounding the litigants' agreement, to cover the dispute that has arisen between them. This issue may be resolved on remand; its status as an alternative ground for denying arbitration does not prevent us from reviewing the ground exclusively relied upon by the courts below.[9] *493 III The judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.	In this appeal we decide whether 2 of the Federal Arbitration Act, 9 U.S. C. 1 et seq., which mandates enforcement of arbitration agreements, pre-empts 229 of the California Labor Code, which provides that actions for the collection of wages may be maintained "without regard to the existence of any private agreement to arbitrate." Cal. Lab. Code Ann. 229 (West 1971). I Appellee, Kenneth Morgan Thomas, brought this action in California Superior Court against his former employer, Kidder, Peabody & Co. (Kidder, Peabody), and two of its employees, appellants Barclay Perry and James Johnston. His complaint arose from a dispute over commissions on the sale of securities. Thomas alleged breach of contract, conversion, civil conspiracy to commit conversion, and breach of 485 fiduciary duty, for which he sought compensatory and punitive damages. After Thomas refused to submit the dispute to arbitration, the defendants sought to stay further proceedings in the Superior Court. Perry and Johnston filed a petition in the Superior Court to compel arbitration; Kidder, Peabody invoked diversity jurisdiction and filed a similar petition in Federal District Court. Both petitions sought arbitration under the authority of 2 and 4 of the Federal Arbitration Act.[1] The demands for arbitration were based on a provision found in a Uniform Application for Securities Industry Registration form, which Thomas completed and executed in connection with his application for employment with Kidder, Peabody. That provision states: "I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions or by-laws of the organizations with which I register" App. 33a. Rule 347 of the New York Stock Exchange, Inc. (1975), with which Thomas registered, provides that "[a]ny controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration, at the instance of any such party" App. 34a. 486 Kidder, Peabody sought arbitration as a member organization of the New York Stock Exchange (NYSE). Perry and Johnston relied on Thomas' allegation that they had acted in the course and scope of their employment and argued that, as agents and employees of Kidder, Peabody, they were beneficiaries of the arbitration agreement. Thomas opposed both petitions on the ground that 229 of the California Labor Code authorized him to maintain an action for wages, defined to include commissions,[2] despite the existence of an agreement to arbitrate. He relied principally on this Court's in Merrill Lynch, Pierce, Fenner & Smith, which had also considered the validity of 229 in the face of a pre-emption challenge under the Supremacy Clause, U. S. Const., Art. VI, cl. 2. Thomas maintained that the in Ware stood for the proposition that the State's interest in protecting wage earners outweighs the federal interest in uniform dispute resolution. The Superior Court denied appellants' petition to compel arbitration.[3]Thomas v. Kidder Peabody & Co., Civ. Action No. C529105 (reprinted at App. 128a-129a). The court characterized Ware as "controlling authority" which held that, "in accordance with California Labor Code Section 229, actions to collect wages may be pursued without regard to private arbitration agreements." at 129a. It further concluded that since Thomas' claims for conversion, civil conspiracy, and breach of fiduciary duty were ancillary to his claim for breach of 487 contract and differed only in terms of the remedies sought, they should also be tried and not severed for arbitration. at 128a-129a. The Superior Court did not address Thomas' contention that Perry and Johnston were "not parties" to the arbitration agreement, at 78a, and therefore lacked a contractual basis for asserting the right to arbitrate, an argument Thomas characterizes as one of "standing."[4] Before the California Court of Appeal, appellants argued that Ware resolved only the narrow issue whether 229 was pre-empted by Rule 347's provision for arbitration, given the promulgation of that Rule by the NYSE pursuant to 6 of the Securities Exchange Act of 1934 (1934 Act), as amended, 15 U.S. C. 78f, and the authority of the Securities and Exchange Commission (SEC) to review and modify the NYSE Rules pursuant to 19 of the 1934 Act, 15 U.S. C. 78s.[5] See It was appellants' contention that, despite an indirect reference to the Federal Arbitration 488 Act in footnote 15 of the Ware opinion, the pre-emptive effect of 2 of the Act was not at issue in that case. In an unpublished opinion, the Court of Appeal affirmed. Thomas v. Perry, 2d Civ. No. B014485 (reprinted at App. 139a-142a). It read Ware's single reference to the Federal Arbitration Act to imply that the Court had refused to hold 229 pre-empted by that Act and the litigants' agreement to arbitrate disputes pursuant to Rule 347. Thus, the Court of Appeal held that a claim for unpaid wages brought under 229 was not subject to compulsory arbitration, notwithstanding the existence of an arbitration agreement. App. 140a-141a. Like the Superior Court, the Court of Appeal also rejected appellants' argument, based on this Court's in Dean Witter Reynolds that the ancillary claims for conversion, civil conspiracy, and breach of fiduciary duty were severable from the breach-of-contract claim and should be arbitrated. App. 142a. Finally, the Court of Appeal refused to consider Thomas' argument that Perry and Johnston lacked "standing" to enforce the arbitration agreement. The court concluded that Thomas had raised this argument for the first time on appeal.[6] at 140a, n. 1. 489 The California Supreme Court denied appellants' petition for review. at 144a. We noted probable jurisdiction,[7] and now reverse. II "Section 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act." Moses H. Cone Memorial Enacted pursuant to the Commerce Clause, U. S. Const., Art. I, 8, cl. 3, this body of substantive law is enforceable in both state and federal courts. Southland ( 2 held to pre-empt a provision of the California Franchise Investment Law that California courts had interpreted to require judicial consideration of claims arising under that law). As we stated in "[i]n enacting 2 of the federal Act, Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration." "Congress intended to foreclose state legislative attempts to undercut the enforceability of arbitration agreements." Section 2, therefore, embodies a clear federal policy of requiring arbitration unless the agreement to arbitrate is not part of a contract evidencing interstate commerce or is revocable "upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S. C. 2. "We see nothing in the Act indicating that the broad principle of enforceability 490 is subject to any additional limitations under state law." In Ware, which also involved a dispute between a securities broker and his former employer, we rejected a Supremacy Clause challenge to 229 premised in part on the contention that, because the 1934 Act had empowered the NYSE to promulgate rules and had given the SEC authority to review and modify these rules, a private agreement to be bound by the arbitration provisions of NYSE Rule 347 was enforceable as a matter of federal substantive law, and pre-empted state laws requiring resolution of the dispute in court. But the federal substantive law invoked in Ware emanated from a specific federal regulatory statute governing the securities industry the 1934 Act. We examined the language and policies of the 1934 Act and found "no Commission rule or regulation that specifie[d] arbitration as the favored means of resolving employer-employee disputes," or that revealed a necessity for "nationwide uniformity of an exchange's housekeeping affairs." The fact that NYSE Rule 347 was outside the scope of the SEC's authority of review militated against finding a clear federal intent to require arbitration. Absent such a finding, we could not conclude that enforcement of California's 229 would interfere with the federal regulatory scheme. By contrast, the present appeal addresses the pre-emptive effect of the Federal Arbitration Act, a statute that embodies Congress' intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause. Its general applicability reflects that "[t]he preeminent concern of Congress in passing the Act was to enforce private agreements into which parties had entered" We have accordingly held that these agreements must be "rigorously enforce[d]." ; see Shearson/American Express Inc. v. McMahon, ante, at 226; Mitsubishi Motors This clear federal policy places 2 of the Act in unmistakable conflict with California's 229 requirement that litigants be provided a judicial forum for resolving wage disputes. Therefore, under the Supremacy Clause, the state statute must give way. The oblique reference to the Federal Arbitration Act in footnote 15 of the Ware cannot fairly be read as a definitive holding to the contrary. There, the Court noted a number of s as having "endorsed the suitability of arbitration to resolve federally created rights." Footnote 15 did not address the issue of federal pre-emption of state-created rights. Rather, the import of the footnote was that the reasoning and perhaps result in Ware might have been different if the 1934 Act "itself ha[d] provided for arbitration." [8] 492 Our holding that 2 of the Federal Arbitration Act pre-empts 229 of the California Labor Code obviates any need to consider whether our in would have required severance of Thomas' ancillary claims for conversion, civil conspiracy, and breach of fiduciary duty from his breach-of-contract claim. We likewise decline to reach Thomas' contention that Perry and Johnston lack "standing" to enforce the agreement to arbitrate any of these claims, since the courts below did not address this alternative argument for refusing to compel arbitration. However, we do reject Thomas' contention that resolving these questions in appellants' favor is a prerequisite to their having standing under Article III of the Constitution to maintain the present appeal before this Court. As we perceive it, Thomas' "standing" argument simply presents a straightforward issue of contract interpretation: whether the arbitration provision inures to the benefit of appellants and may be construed, in light of the circumstances surrounding the litigants' agreement, to cover the dispute that has arisen between them. This issue may be resolved on remand; its status as an alternative ground for denying arbitration does not prevent us from reviewing the ground exclusively relied upon by the courts below.[9] 493 III The judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
Justice Scalia	majority	false	Nollan v. California Coastal Comm'n	1987-06-26T00:00:00	null	https://www.courtlistener.com/opinion/111958/nollan-v-california-coastal-commn/	https://www.courtlistener.com/api/rest/v3/clusters/111958/	1,987	1986-163	1	5	4	James and Marilyn Nollan appeal from a decision of the California Court of Appeal ruling that the California Coastal Commission could condition its grant of permission to rebuild their house on their transfer to the public of an easement across their beachfront property. 177 Cal. App. 3d 719, 223 Cal. Rptr. 28 (1986). The California court rejected their claim that imposition of that condition violates the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment. Ibid. We noted probable jurisdiction. 479 U.S. 913 (1986). I The Nollans own a beachfront lot in Ventura County, California. A quarter-mile north of their property is Faria County Park, an oceanside public park with a public beach and recreation area. Another public beach area, known locally as "the Cove," lies 1,800 feet south of their lot. A concrete seawall approximately eight feet high separates the beach portion of the Nollans' property from the rest of the lot. The historic mean high tide line determines the lot's oceanside boundary. The Nollans originally leased their property with an option to buy. The building on the lot was a small bungalow, totaling 504 square feet, which for a time they rented to summer vacationers. After years of rental use, however, the building had fallen into disrepair, and could no longer be rented out. 828 The Nollans' option to purchase was conditioned on their promise to demolish the bungalow and replace it. In order to do so, under Cal. Pub. Res. Code Ann. §§ 30106, 30212, and 30600 (West 1986), they were required to obtain a coastal development permit from the California Coastal Commission. On February 25, 1982, they submitted a permit application to the Commission in which they proposed to demolish the existing structure and replace it with a three-bedroom house in keeping with the rest of the neighborhood. The Nollans were informed that their application had been placed on the administrative calendar, and that the Commission staff had recommended that the permit be granted subject to the condition that they allow the public an easement to pass across a portion of their property bounded by the mean high tide line on one side, and their seawall on the other side. This would make it easier for the public to get to Faria County Park and the Cove. The Nollans protested imposition of the condition, but the Commission overruled their objections and granted the permit subject to their recordation of a deed restriction granting the easement. App. 31, 34. On June 3, 1982, the Nollans filed a petition for writ of administrative mandamus asking the Ventura County Superior Court to invalidate the access condition. They argued that the condition could not be imposed absent evidence that their proposed development would have a direct adverse impact on public access to the beach. The court agreed, and remanded the case to the Commission for a full evidentiary hearing on that issue. Id., at 36. On remand, the Commission held a public hearing, after which it made further factual findings and reaffirmed its imposition of the condition. It found that the new house would increase blockage of the view of the ocean, thus contributing to the development of "a `wall' of residential structures" that would prevent the public "psychologically . . . from realizing a stretch of coastline exists nearby that they have every right 829 to visit." Id., at 58. The new house would also increase private use of the shorefront. Id., at 59. These effects of construction of the house, along with other area development, would cumulatively "burden the public's ability to traverse to and along the shorefront." Id., at 65-66. Therefore the Commission could properly require the Nollans to offset that burden by providing additional lateral access to the public beaches in the form of an easement across their property. The Commission also noted that it had similarly conditioned 43 out of 60 coastal development permits along the same tract of land, and that of the 17 not so conditioned, 14 had been approved when the Commission did not have administrative regulations in place allowing imposition of the condition, and the remaining 3 had not involved shorefront property. Id., at 47-48. The Nollans filed a supplemental petition for a writ of administrative mandamus with the Superior Court, in which they argued that imposition of the access condition violated the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment. The Superior Court ruled in their favor on statutory grounds, finding, in part to avoid "issues of constitutionality," that the California Coastal Act of 1976, Cal. Pub. Res. Code Ann. § 30000 et seq. (West 1986), authorized the Commission to impose public access conditions on coastal development permits for the replacement of an existing single-family home with a new one only where the proposed development would have an adverse impact on public access to the sea. App. 419. In the court's view, the administrative record did not provide an adequate factual basis for concluding that replacement of the bungalow with the house would create a direct or cumulative burden on public access to the sea. Id., at 416-417. Accordingly, the Superior Court granted the writ of mandamus and directed that the permit condition be struck. The Commission appealed to the California Court of Appeal. While that appeal was pending, the Nollans satisfied 830 the condition on their option to purchase by tearing down the bungalow and building the new house, and bought the property. They did not notify the Commission that they were taking that action. The Court of Appeal reversed the Superior Court. 177 Cal. App. 3d 719, 223 Cal. Rptr. 28 (1986). It disagreed with the Superior Court's interpretation of the Coastal Act, finding that it required that a coastal permit for the construction of a new house whose floor area, height or bulk was more than 10% larger than that of the house it was replacing be conditioned on a grant of access. Id., at 723-724, 223 Cal. Rptr., at 31; see Cal. Pub. Res. Code Ann. § 30212. It also ruled that that requirement did not violate the Constitution under the reasoning of an earlier case of the Court of Appeal, Grupe v. California Coastal Comm'n, 166 Cal. App. 3d 148, 212 Cal. Rptr. 578 (1985). In that case, the court had found that so long as a project contributed to the need for public access, even if the project standing alone had not created the need for access, and even if there was only an indirect relationship between the access exacted and the need to which the project contributed, imposition of an access condition on a development permit was sufficiently related to burdens created by the project to be constitutional. 177 Cal. App. 3d, at 723, 223 Cal. Rptr., at 30-31; see Grupe, supra, at 165-168, 212 Cal. Rptr., at 587-590; see also Remmenga v. California Coastal Comm'n, 163 Cal. App. 3d 623, 628, 209 Cal. Rptr. 628, 631, appeal dism'd, 474 U.S. 915 (1985). The Court of Appeal ruled that the record established that that was the situation with respect to the Nollans' house. 177 Cal. App. 3d, at 722-723, 223 Cal. Rptr., at 30-31. It ruled that the Nollans' taking claim also failed because, although the condition diminished the value of the Nollans' lot, it did not deprive them of all reasonable use of their property. Id., at 723, 223 Cal. Rptr., at 30; see Grupe, supra, at 175-176, 212 Cal. Rptr., at 595-596. Since, in the Court of Appeal's view, there was no statutory or constitutional obstacle to imposition 831 of the access condition, the Superior Court erred in granting the writ of mandamus. The Nollans appealed to this Court, raising only the constitutional question. II Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking. To say that the appropriation of a public easement across a landowner's premises does not constitute the taking of a property interest but rather (as JUSTICE BRENNAN contends) "a mere restriction on its use," post, at 848-849, n. 3, is to use words in a manner that deprives them of all their ordinary meaning. Indeed, one of the principal uses of the eminent domain power is to assure that the government be able to require conveyance of just such interests, so long as it pays for them. J. Sackman, 1 Nichols on Eminent Domain § 2.1[1] (Rev. 3d ed. 1985), 2 id., § 5.01[5]; see 1 id., § 1.42[9], 2 id., § 6.14. Perhaps because the point is so obvious, we have never been confronted with a controversy that required us to rule upon it, but our cases' analysis of the effect of other governmental action leads to the same conclusion. We have repeatedly held that, as to property reserved by its owner for private use, "the right to exclude [others is] `one of the most essential sticks in the bundle of rights that are commonly characterized as property.' " Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982), quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979). In Loretto we observed that where governmental action results in "[a] permanent physical occupation" of the property, by the government itself or by others, see 458 U.S., at 432-433, n. 9, "our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public 832 benefit or has only minimal economic impact on the owner," id., at 434-435. We think a "permanent physical occupation" has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.[1] JUSTICE BRENNAN argues that while this might ordinarily be the case, the California Constitution's prohibition on any individual's "exclu[ding] the right of way to [any navigable] water whenever it is required for any public purpose," Art. X, § 4, produces a different result here. Post, at 847-848, see also post, at 855, 857. There are a number of difficulties with that argument. Most obviously, the right of way sought here is not naturally described as one to navigable water (from the street to the sea) but along it; it is at least highly questionable whether the text of the California Constitution has any prima facie application to the situation before us. Even if it does, however, several California cases suggest that JUSTICE BRENNAN's interpretation of the effect of the clause is erroneous, and that to obtain easements of access across private property the State must proceed through its eminent domain power. See Bolsa Land Co. v. Burdick, 151 Cal. 254, 260, 90 P. 532, 534-535 (1907); Oakland v. Oakland Water Front Co., 118 Cal. 160, 185, 50 P. 277, 286 (1897); Heist v. County of Colusa, 163 Cal. App. 3d 841, 851, 213 Cal. Rptr. 278, 285 (1984); Aptos Seascape Corp. v. Santa Cruz, 138 Cal. App. 3d 484, 505-506, 188 Cal. Rptr. 191, 204-205 (1982). (None of these cases specifically addressed 833 the argument that Art. X, § 4, allowed the public to cross private property to get to navigable water, but if that provision meant what JUSTICE BRENNAN believes, it is hard to see why it was not invoked.) See also 41 Op. Cal. Atty. Gen. 39, 41 (1963) ("In spite of the sweeping provisions of [Art. X, § 4], and the injunction therein to the Legislature to give its provisions the most liberal interpretation, the few reported cases in California have adopted the general rule that one may not trespass on private land to get to navigable tidewaters for the purpose of commerce, navigation or fishing"). In light of these uncertainties, and given the fact that, as JUSTICE BLACKMUN notes, the Court of Appeal did not rest its decision on Art. X, § 4, post, at 865, we should assuredly not take it upon ourselves to resolve this question of California constitutional law in the first instance. See, e. g., Jenkins v. Anderson, 447 U.S. 231, 234, n. 1 (1980). That would be doubly inappropriate since the Commission did not advance this argument in the Court of Appeal, and the Nollans argued in the Superior Court that any claim that there was a pre-existing public right of access had to be asserted through a quiet title action, see Points and Authorities in Support of Motion for Writ of Administrative Mandamus, No. SP50805 (Super. Ct. Cal.), p. 20, which the Commission, possessing no claim to the easement itself, probably would not have had standing under California law to bring. See Cal. Code Civ. Proc. Ann. § 738 (West 1980).[2] 834 Given, then, that requiring uncompensated conveyance of the easement outright would violate the Fourteenth Amendment, the question becomes whether requiring it to be conveyed as a condition for issuing a land-use permit alters the outcome. We have long recognized that land-use regulation does not effect a taking if it "substantially advance[s] legitimate state interests" and does not "den[y] an owner economically viable use of his land," Agins v. Tiburon, 447 U.S. 255, 260 (1980). See also Penn Central Transportation Co. v. New York City, 438 U.S. 104, 127 (1978) ("[A] use restriction may constitute a `taking' if not reasonably necessary to the effectuation of a substantial government purpose"). Our cases have not elaborated on the standards for determining what constitutes a "legitimate state interest" or what type of connection between the regulation and the state interest satisfies the requirement that the former "substantially advance" the latter.[3] They have made clear, however, that a 835 broad range of governmental purposes and regulations satisfies these requirements. See Agins v. Tiburon, supra, at 260-262 (scenic zoning); Penn Central Transportation Co. v. New York City, supra (landmark preservation); Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (residential zoning); Laitos & Westfall, Government Interference with Private Interests in Public Resources, 11 Harv. Envtl. L. Rev. 1, 66 (1987). The Commission argues that among these permissible purposes are protecting the public's ability to see the beach, assisting the public in overcoming the "psychological barrier" to using the beach created by a developed shorefront, and preventing congestion on the public beaches. We assume, without deciding, that this is so in which case the Commission unquestionably would be able to deny the Nollans their permit outright if their new house (alone, or by reason of the cumulative impact produced in conjunction with other construction)[4] would substantially impede these purposes, 836 unless the denial would interfere so drastically with the Nollans' use of their property as to constitute a taking. See Penn Central Transportation Co. v. New York City, supra. The Commission argues that a permit condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking. We agree. Thus, if the Commission attached to the permit some condition that would have protected the public's ability to see the beach notwithstanding construction of the new house for example, a height limitation, a width restriction, or a ban on fences so long as the Commission could have exercised its police power (as we have assumed it could) to forbid construction of the house altogether, imposition of the condition would also be constitutional. Moreover (and here we come closer to the facts of the present case), the condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing sport on their property for passersby with whose sighting of the ocean their new house would interfere. Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end. If a prohibition designed to accomplish that purpose would be a legitimate exercise of the police power rather than a taking, it would be strange to conclude that providing the 837 owner an alternative to that prohibition which accomplishes the same purpose is not. The evident constitutional propriety disappears, however, if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition. When that essential nexus is eliminated, the situation becomes the same as if California law forbade shouting fire in a crowded theater, but granted dispensations to those willing to contribute $100 to the state treasury. While a ban on shouting fire can be a core exercise of the State's police power to protect the public safety, and can thus meet even our stringent standards for regulation of speech, adding the unrelated condition alters the purpose to one which, while it may be legitimate, is inadequate to sustain the ban. Therefore, even though, in a sense, requiring a $100 tax contribution in order to shout fire is a lesser restriction on speech than an outright ban, it would not pass constitutional muster. Similarly here, the lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation. Whatever may be the outer limits of "legitimate state interests" in the takings and land-use context, this is not one of them. In short, unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but "an out-and-out plan of extortion." J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 584, 432 A.2d 12, 14-15 (1981); see Brief for United States as Amicus Curiae 22, and n. 20. See also Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S., at 439, n. 17.[5] 838 III The Commission claims that it concedes as much, and that we may sustain the condition at issue here by finding that it is reasonably related to the public need or burden that the Nollans' new house creates or to which it contributes. We can accept, for purposes of discussion, the Commission's proposed test as to how close a "fit" between the condition and the burden is required, because we find that this case does not meet even the most untailored standards. The Commission's principal contention to the contrary essentially turns on a play on the word "access." The Nollans' new house, the Commission found, will interfere with "visual access" to the beach. That in turn (along with other shorefront development) will interfere with the desire of people who drive past the Nollans' house to use the beach, thus creating a "psychological barrier" to "access." The Nollans' new house will also, by a process not altogether clear from the Commission's opinion but presumably potent enough to more than offset the effects of the psychological barrier, increase the use of the public beaches, thus creating the need for more "access." These burdens on "access" would be alleviated by a requirement that the Nollans provide "lateral access" to the beach. Rewriting the argument to eliminate the play on words makes clear that there is nothing to it. It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans' property reduces any obstacles to viewing the beach created by the new house. It is also impossible to understand how it lowers any "psychological barrier" to using the public beaches, or how it helps to remedy any additional congestion on them 839 caused by construction of the Nollans' new house. We therefore find that the Commission's imposition of the permit condition cannot be treated as an exercise of its land-use power for any of these purposes.[6] Our conclusion on this point is consistent with the approach taken by every other court that has considered the question, with the exception of the California state courts. See Parks v. Watson, 716 F.2d 646, 651-653 (CA9 1983); Bethlehem Evangelical Lutheran Church v. Lakewood, 626 P.2d 668, 671-674 (Colo. 1981); Aunt Hack Ridge Estates, Inc. v. Planning Comm'n, 160 Conn. 109, 117-120, 273 A.2d 880, 885 (1970); Longboat Key v. Lands End, Ltd., 433 So. 2d 574 (Fla. App. 1983); Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375, 380, 176 N.E.2d 799, 802 (1961); Lampton v. Pinaire, 610 S.W.2d 915, 918-919 (Ky. App. 1980); Schwing v. Baton Rouge, 249 So. 2d 304 (La. App.), application denied, 259 La. 770, 252 So. 2d 667 (1971); Howard County v. JJM, Inc., 301 Md. 256, 280-282, 482 A.2d 908, 920-921 (1984); Collis v. Bloomington, 310 Minn. 5, 246 N.W.2d 19 (1976); State ex rel. Noland v. St. Louis County, 478 S.W.2d 363 (Mo. 1972); 840 Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 33-36, 394 P.2d 182, 187-188 (1964); Simpson v. North Platte, 206 Neb. 240, 292 N.W.2d 297 (1980); Briar West, Inc. v. Lincoln, 206 Neb. 172, 291 N.W.2d 730 (1980); J. E. D. Associates v. Atkinson, 121 N. H. 581, 432 A.2d 12 (1981); Longridge Builders, Inc. v. Planning Bd. of Princeton, 52 N. J. 348, 350-351, 245 A.2d 336, 337-338 (1968); Jenad, Inc. v. Scarsdale, 18 N.Y. 2d 78, 218 N.E.2d 673 (1966); MacKall v. White, 85 A.D. 2d 696, 445 N. Y. S. 2d 486 (1981), appeal denied, 56 N.Y. 2d 503, 435 N.E.2d 1100 (1982); Frank Ansuini, Inc. v. Cranston, 107 Rawle I. 63, 68-69, 71, 264 A.2d 910, 913, 914 (1970); College Station v. Turtle Rock Corp., 680 S.W.2d 802, 807 (Tex. 1984); Call v. West Jordan, 614 P.2d 1257, 1258-1259 (Utah 1980); Board of Supervisors of James City County v. Rowe, 216 Va. 128, 136-139, 216 S.E.2d 199, 207-209 (1975); Jordan v. Menomonee Falls, 28 Wis. 2d 608, 617-618, 137 N.W.2d 442, 447-449 (1965), appeal dism'd, 385 U.S. 4 (1966). See also Littlefield v. Afton, 785 F.2d 596, 607 (CA8 1986); Brief for National Association of Home Builders et al. as Amici Curiae 9-16. JUSTICE BRENNAN argues that imposition of the access requirement is not irrational. In his version of the Commission's argument, the reason for the requirement is that in its absence, a person looking toward the beach from the road will see a street of residential structures including the Nollans' new home and conclude that there is no public beach nearby. If, however, that person sees people passing and repassing along the dry sand behind the Nollans' home, he will realize that there is a public beach somewhere in the vicinity. Post, at 849-850. The Commission's action, however, was based on the opposite factual finding that the wall of houses completely blocked the view of the beach and that a person looking from the road would not be able to see it at all. App. 57-59. Even if the Commission had made the finding that JUSTICE BRENNAN proposes, however, it is not certain that it would 841 suffice. We do not share JUSTICE BRENNAN's confidence that the Commission "should have little difficulty in the future in utilizing its expertise to demonstrate a specific connection between provisions for access and burdens on access," post, at 862, that will avoid the effect of today's decision. We view the Fifth Amendment's Property Clause to be more than a pleading requirement, and compliance with it to be more than an exercise in cleverness and imagination. As indicated earlier, our cases describe the condition for abridgment of property rights through the police power as a "substantial advanc[ing]" of a legitimate state interest. We are inclined to be particularly careful about the adjective where the actual conveyance of property is made a condition to the lifting of a land-use restriction, since in that context there is heightened risk that the purpose is avoidance of the compensation requirement, rather than the stated police-power objective. We are left, then, with the Commission's justification for the access requirement unrelated to land-use regulation: "Finally, the Commission notes that there are several existing provisions of pass and repass lateral access benefits already given by past Faria Beach Tract applicants as a result of prior coastal permit decisions. The access required as a condition of this permit is part of a comprehensive program to provide continuous public access along Faria Beach as the lots undergo development or redevelopment." App. 68. That is simply an expression of the Commission's belief that the public interest will be served by a continuous strip of publicly accessible beach along the coast. The Commission may well be right that it is a good idea, but that does not establish that the Nollans (and other coastal residents) alone can be compelled to contribute to its realization. Rather, California is free to advance its "comprehensive program," if it wishes, by using its power of eminent domain for this "public purpose," *842A see U. S. Const., Amdt. 5; but if it wants an easement across the Nollans' property, it must pay for it. Reversed.	James and Marilyn Nollan appeal from a decision of the California Court of Appeal ruling that the California Coastal Commission could condition its grant of permission to rebuild their house on their transfer to the public of an easement across their beachfront property. The California court rejected their claim that imposition of that condition violates the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment. We noted probable jurisdiction. I The Nollans own a beachfront lot in Ventura County, California. A quarter-mile north of their property is Faria County Park, an oceanside public park with a public beach and recreation area. Another public beach area, known locally as "the Cove," lies 1,800 feet south of their lot. A concrete seawall approximately eight feet high separates the beach portion of the Nollans' property from the rest of the lot. The historic mean high tide line determines the lot's oceanside boundary. The Nollans originally leased their property with an option to buy. The building on the lot was a small bungalow, totaling 504 square feet, which for a time they rented to summer vacationers. After years of rental use, however, the building had fallen into disrepair, and could no longer be rented out. 828 The Nollans' option to purchase was conditioned on their promise to demolish the bungalow and replace it. In order to do so, under Cal. Pub. Res. Code Ann. 30106, 30212, and 30600 they were required to obtain a coastal development permit from the California Coastal Commission. On February 25, they submitted a permit application to the Commission in which they proposed to demolish the existing structure and replace it with a three-bedroom house in keeping with the rest of the neighborhood. The Nollans were informed that their application had been placed on the administrative calendar, and that the Commission staff had recommended that the permit be granted subject to the condition that they allow the public an easement to pass across a portion of their property bounded by the mean high tide line on one side, and their seawall on the other side. This would make it easier for the public to get to Faria County Park and the Cove. The Nollans protested imposition of the condition, but the Commission overruled their objections and granted the permit subject to their recordation of a deed restriction granting the easement. App. 31, 34. On June 3, the Nollans filed a petition for writ of administrative mandamus asking the Ventura County Superior Court to invalidate the access condition. They argued that the condition could not be imposed absent evidence that their proposed development would have a direct adverse impact on public access to the beach. The court agreed, and remanded the case to the Commission for a full evidentiary hearing on that issue. On remand, the Commission held a public hearing, after which it made further factual findings and reaffirmed its imposition of the condition. It found that the new house would increase blockage of the view of the ocean, thus contributing to the development of "a `wall' of residential structures" that would prevent the public "psychologically from realizing a stretch of coastline exists nearby that they have every right 829 to visit." The new house would also increase private use of the shorefront. These effects of construction of the house, along with other area development, would cumulatively "burden the public's ability to traverse to and along the shorefront." Therefore the Commission could properly require the Nollans to offset that burden by providing additional lateral access to the public beaches in the form of an easement across their property. The Commission also noted that it had similarly conditioned 43 out of 60 coastal development permits along the same tract of land, and that of the 17 not so conditioned, 14 had been approved when the Commission did not have administrative regulations in place allowing imposition of the condition, and the remaining 3 had not involved shorefront property. The Nollans filed a supplemental petition for a writ of administrative mandamus with the Superior Court, in which they argued that imposition of the access condition violated the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment. The Superior Court ruled in their favor on statutory grounds, finding, in part to avoid "issues of constitutionality," that the California Coastal Act of Cal. Pub. Res. Code Ann. 30000 et seq. authorized the Commission to impose public access conditions on coastal development permits for the replacement of an existing single-family home with a new one only where the proposed development would have an adverse impact on public access to the sea. App. 419. In the court's view, the administrative record did not provide an adequate factual basis for concluding that replacement of the bungalow with the house would create a direct or cumulative burden on public access to the sea. Accordingly, the Superior Court granted the writ of mandamus and directed that the permit condition be struck. The Commission appealed to the California Court of Appeal. While that appeal was pending, the Nollans satisfied 830 the condition on their option to purchase by tearing down the bungalow and building the new house, and bought the property. They did not notify the Commission that they were taking that action. The Court of Appeal reversed the Superior Court. It disagreed with the Superior Court's interpretation of the Coastal Act, finding that it required that a coastal permit for the construction of a new house whose floor area, height or bulk was more than 10% larger than that of the house it was replacing be conditioned on a grant of access. ; see Cal. Pub. Res. Code Ann. 30212. It also ruled that that requirement did not violate the Constitution under the reasoning of an earlier case of the Court of Appeal, In that case, the court had found that so long as a project contributed to the need for public access, even if the project standing alone had not created the need for access, and even if there was only an indirect relationship between the access exacted and the need to which the project contributed, imposition of an access condition on a development permit was sufficiently related to burdens created by the project to be constitutional. -31; see 212 Cal. Rptr., 7-590; see also 209 Cal. Rptr. The Court of Appeal ruled that the record established that that was the situation with respect to the Nollans' -31. It ruled that the Nollans' taking claim also failed because, although the condition diminished the value of the Nollans' lot, it did not deprive them of all reasonable use of their property. ; see 212 Cal. Rptr., 5-596. Since, in the Court of Appeal's view, there was no statutory or constitutional obstacle to imposition 831 of the access condition, the Superior Court erred in granting the writ of mandamus. The Nollans appealed to this Court, raising only the constitutional question. II Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking. To say that the appropriation of a public easement across a landowner's premises does not constitute the taking of a property interest but rather (as JUSTICE BRENNAN contends) "a mere restriction on its use," post, at 848-849, n. 3, is to use words in a manner that deprives them of all their ordinary meaning. Indeed, one of the principal uses of the eminent domain power is to assure that the government be able to require conveyance of just such interests, so long as it pays for them. J. Sackman, 1 Nichols on Eminent Domain 2.1[1] 2 5.01[5]; see 1 1.42[9], 2 6.14. Perhaps because the point is so obvious, we have never been confronted with a controversy that required us to rule upon it, but our cases' analysis of the effect of other governmental action leads to the same conclusion. We have repeatedly held that, as to property reserved by its owner for private use, "the right to exclude [others is] `one of the most essential sticks in the bundle of rights that are commonly characterized as property.' " quoting Kaiser In Loretto we observed that where governmental action results in "[a] permanent physical occupation" of the property, by the government itself or by others, see -, n. 9, "our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public 832 benefit or has only minimal economic impact on the owner," We think a "permanent physical occupation" has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.[1] JUSTICE BRENNAN argues that while this might ordinarily be the case, the California Constitution's prohibition on any individual's "exclu[ding] the right of way to [any navigable] water whenever it is required for any public purpose," Art. X, 4, produces a different result here. Post, at 847-848, see also post, at 855, 857. There are a number of difficulties with that argument. Most obviously, the right of way sought here is not naturally described as one to navigable water (from the street to the sea) but along it; it is at least highly questionable whether the text of the California Constitution has any prima facie application to the situation before us. Even if it does, however, several California cases suggest that JUSTICE BRENNAN's interpretation of the effect of the clause is erroneous, and that to obtain easements of access across private property the State must proceed through its eminent domain power. See Bolsa Land ; ; ; Aptos Seascape (None of these cases specifically addressed 833 the argument that Art. X, 4, allowed the public to cross private property to get to navigable water, but if that provision meant what JUSTICE BRENNAN believes, it is hard to see why it was not invoked.) See also 41 Op. Cal. Atty. Gen. 39, 41 (1963) ("In spite of the sweeping provisions of [Art. X, 4], and the injunction therein to the Legislature to give its provisions the most liberal interpretation, the few reported cases in California have adopted the general rule that one may not trespass on private land to get to navigable tidewaters for the purpose of commerce, navigation or fishing"). In light of these uncertainties, and given the fact that, as JUSTICE BLACKMUN notes, the Court of Appeal did not rest its decision on Art. X, 4, post, at 865, we should assuredly not take it upon ourselves to resolve this question of California constitutional law in the first instance. See, e. g., That would be doubly inappropriate since the Commission did not advance this argument in the Court of Appeal, and the Nollans argued in the Superior Court that any claim that there was a pre-existing public right of access had to be asserted through a quiet title action, see Points and Authorities in Support of Motion for Writ of Administrative Mandamus, No. SP50805 (Super. Ct. Cal.), p. 20, which the Commission, possessing no claim to the easement itself, probably would not have had standing under California law to bring. See Cal. Code Civ. Proc. Ann. 738[2] 834 Given, then, that requiring uncompensated conveyance of the easement outright would violate the Fourteenth Amendment, the question becomes whether requiring it to be conveyed as a condition for issuing a land-use permit alters the outcome. We have long recognized that land-use regulation does not effect a taking if it "substantially advance[s] legitimate state interests" and does not "den[y] an owner economically viable use of his land," See also Penn Central Transportation Our cases have not elaborated on the standards for determining what constitutes a "legitimate state interest" or what type of connection between the regulation and the state interest satisfies the requirement that the former "substantially advance" the latter.[3] They have made clear, however, that a 835 broad range of governmental purposes and regulations satisfies these requirements. See at -262 ; Penn Central Transportation ; ; Laitos & Westfall, Government Interference with Private Interests in Public Resources, The Commission argues that among these permissible purposes are protecting the public's ability to see the beach, assisting the public in overcoming the "psychological barrier" to using the beach created by a developed shorefront, and preventing congestion on the public beaches. We assume, without deciding, that this is so in which case the Commission unquestionably would be able to deny the Nollans their permit outright if their new house (alone, or by reason of the cumulative impact produced in conjunction with other construction)[4] would substantially impede these purposes, 836 unless the denial would interfere so drastically with the Nollans' use of their property as to constitute a taking. See Penn Central Transportation The Commission argues that a permit condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking. We agree. Thus, if the Commission attached to the permit some condition that would have protected the public's ability to see the beach notwithstanding construction of the new house for example, a height limitation, a width restriction, or a ban on fences so long as the Commission could have exercised its police power (as we have assumed it could) to forbid construction of the house altogether, imposition of the condition would also be constitutional. Moreover (and here we come closer to the facts of the present case), the condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing sport on their property for passersby with whose sighting of the ocean their new house would interfere. Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end. If a prohibition designed to accomplish that purpose would be a legitimate exercise of the police power rather than a taking, it would be strange to conclude that providing the 837 owner an alternative to that prohibition which accomplishes the same purpose is not. The evident constitutional propriety disappears, however, if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition. When that essential nexus is eliminated, the situation becomes the same as if California law forbade shouting fire in a crowded theater, but granted dispensations to those willing to contribute $100 to the state treasury. While a ban on shouting fire can be a core exercise of the State's police power to protect the public safety, and can thus meet even our stringent standards for regulation of speech, adding the unrelated condition alters the purpose to one which, while it may be legitimate, is inadequate to sustain the ban. Therefore, even though, in a sense, requiring a $100 tax contribution in order to shout fire is a lesser restriction on speech than an outright ban, it would not pass constitutional muster. Similarly here, the lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation. Whatever may be the outer limits of "legitimate state interests" in the takings and land-use context, this is not one of them. In short, unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but "an out-and-out plan of extortion." J. E. D. Associates, ; see Brief for United States as Amicus Curiae 22, and n. 20. See also n. 17.[5] 838 III The Commission claims that it concedes as much, and that we may sustain the condition at issue here by finding that it is reasonably related to the public need or burden that the Nollans' new house creates or to which it contributes. We can accept, for purposes of discussion, the Commission's proposed test as to how close a "fit" between the condition and the burden is required, because we find that this case does not meet even the most untailored standards. The Commission's principal contention to the contrary essentially turns on a play on the word "access." The Nollans' new house, the Commission found, will interfere with "visual access" to the beach. That in turn (along with other shorefront development) will interfere with the desire of people who drive past the Nollans' house to use the beach, thus creating a "psychological barrier" to "access." The Nollans' new house will also, by a process not altogether clear from the Commission's opinion but presumably potent enough to more than offset the effects of the psychological barrier, increase the use of the public beaches, thus creating the need for more "access." These burdens on "access" would be alleviated by a requirement that the Nollans provide "lateral access" to the beach. Rewriting the argument to eliminate the play on words makes clear that there is nothing to it. It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans' property reduces any obstacles to viewing the beach created by the new It is also impossible to understand how it lowers any "psychological barrier" to using the public beaches, or how it helps to remedy any additional congestion on them 839 caused by construction of the Nollans' new We therefore find that the Commission's imposition of the permit condition cannot be treated as an exercise of its land-use power for any of these purposes.[6] Our conclusion on this point is consistent with the approach taken by every other court that has considered the question, with the exception of the California state courts. See ; Bethlehem Evangelical Lutheran 626 P.2d 8, ; Aunt Hack Ridge Estates, ; Longboat So. 2d 574 ; Pioneer Trust & Savings N.E.2d 799, ; ; (La. App.), application denied, 252 So. 2d 7 ; Howard ; ; State ex rel. ; 840 Billings Properties, ; ; Briar West, ; J. E. D. ; Longridge Builders, ; Jenad, (19); appeal denied, ; Frank Ansuini, ; College Station v. Turtle Rock 680 S.W.2d ; ; Board of Supervisors of James ; appeal dism'd, (19). See also ; Brief for National Association of Home Builders et al. as Amici Curiae 9-16. JUSTICE BRENNAN argues that imposition of the access requirement is not irrational. In his version of the Commission's argument, the reason for the requirement is that in its absence, a person looking toward the beach from the road will see a street of residential structures including the Nollans' new home and conclude that there is no public beach nearby. If, however, that person sees people passing and repassing along the dry sand behind the Nollans' home, he will realize that there is a public beach somewhere in the vicinity. Post, at 849-850. The Commission's action, however, was based on the opposite factual finding that the wall of houses completely blocked the view of the beach and that a person looking from the road would not be able to see it at all. App. 57-59. Even if the Commission had made the finding that JUSTICE BRENNAN proposes, however, it is not certain that it would 841 suffice. We do not share JUSTICE BRENNAN's confidence that the Commission "should have little difficulty in the future in utilizing its expertise to demonstrate a specific connection between provisions for access and burdens on access," post, at 862, that will avoid the effect of today's decision. We view the Fifth Amendment's Property Clause to be more than a pleading requirement, and compliance with it to be more than an exercise in cleverness and imagination. As indicated earlier, our cases describe the condition for abridgment of property rights through the police power as a "substantial advanc[ing]" of a legitimate state interest. We are inclined to be particularly careful about the adjective where the actual conveyance of property is made a condition to the lifting of a land-use restriction, since in that context there is heightened risk that the purpose is avoidance of the compensation requirement, rather than the stated police-power objective. We are left, then, with the Commission's justification for the access requirement unrelated to land-use regulation: "Finally, the Commission notes that there are several existing provisions of pass and repass lateral access benefits already given by past Faria Beach Tract applicants as a result of prior coastal permit decisions. The access required as a condition of this permit is part of a comprehensive program to provide continuous public access along Faria Beach as the lots undergo development or redevelopment." App. 68. That is simply an expression of the Commission's belief that the public interest will be served by a continuous strip of publicly accessible beach along the coast. The Commission may well be right that it is a good idea, but that does not establish that the Nollans (and other coastal residents) alone can be compelled to contribute to its realization. Rather, California is free to advance its "comprehensive program," if it wishes, by using its power of eminent domain for this "public purpose," *842A see U. S. Const., Amdt. 5; but if it wants an easement across the Nollans' property, it must pay for it. Reversed.
Justice Brennan	dissenting	false	Cruzan v. Director, Mo. Dept. of Health	1990-06-25T00:00:00	null	https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/	https://www.courtlistener.com/api/rest/v3/clusters/112478/	1,990	1989-126	1	5	4	"Medical technology has effectively created a twilight zone of suspended animation where death commences while life, in some form, continues. Some patients, however, want no part of a life sustained only by medical technology. Instead, they prefer a plan of medical treatment that allows nature to take its course and permits them to die with dignity."[1] Nancy Cruzan has dwelt in that twilight zone for six years. She is oblivious to her surroundings and will remain so. Cruzan v. Harmon, 760 S.W.2d 408, 411 (Mo. 1988). Her body twitches only reflexively, without consciousness. Ibid. The areas of her brain that once thought, felt, and experienced sensations have degenerated badly and are continuing to do so. The cavities remaining are filling with cerebrospinal fluid. The "`cerebral cortical atrophy is irreversible, permanent, progressive and ongoing.'" Ibid. "Nancy will never interact meaningfully with her environment again. She will remain in a persistent vegetative state until her death." Id., at 422.[2] Because she cannot swallow, her nutrition and hydration are delivered through a tube surgically implanted in her stomach. A grown woman at the time of the accident, Nancy had previously expressed her wish to forgo continuing medical care under circumstances such as these. Her family and her 302 friends are convinced that this is what she would want. See n. 20, infra. A guardian ad litem appointed by the trial court is also convinced that this is what Nancy would want. See 760 S.W.2d, at 444 (Higgins, J., dissenting from denial of rehearing). Yet the Missouri Supreme Court, alone among state courts deciding such a question, has determined that an irreversibly vegetative patient will remain a passive prisoner of medical technology for Nancy, perhaps for the next 30 years. See id., at 424, 427. Today the Court, while tentatively accepting that there is some degree of constitutionally protected liberty interest in avoiding unwanted medical treatment, including life-sustaining medical treatment such as artificial nutrition and hydration, affirms the decision of the Missouri Supreme Court. The majority opinion, as I read it, would affirm that decision on the ground that a State may require "clear and convincing" evidence of Nancy Cruzan's prior decision to forgo life-sustaining treatment under circumstances such as hers in order to ensure that her actual wishes are honored. See ante, at 282-283, 286-287. Because I believe that Nancy Cruzan has a fundamental right to be free of unwanted artificial nutrition and hydration, which right is not outweighed by any interests of the State, and because I find that the improperly biased procedural obstacles imposed by the Missouri Supreme Court impermissibly burden that right, I respectfully dissent. Nancy Cruzan is entitled to choose to die with dignity. I A "[T]he timing of deathonce a matter of fate is now a matter of human choice." Office of Technology Assessment Task Force, Life Sustaining Technologies and the Elderly 41 (1988). Of the approximately 2 million people who die each year, 80% die in hospitals and long-term care institutions,[3]303 and perhaps 70% of those after a decision to forgo life-sustaining treatment has been made.[4] Nearly every death involves a decision whether to undertake some medical procedure that could prolong the process of dying. Such decisions are difficult and personal. They must be made on the basis of individual values, informed by medical realities, yet within a framework governed by law. The role of the courts is confined to defining that framework, delineating the ways in which government may and may not participate in such decisions. The question before this Court is a relatively narrow one: whether the Due Process Clause allows Missouri to require a now-incompetent patient in an irreversible persistent vegetative state to remain on life support absent rigorously clear and convincing evidence that avoiding the treatment represents the patient's prior, express choice. See ante, at 277-278. If a fundamental right is at issue, Missouri's rule of decision must be scrutinized under the standards this Court has always applied in such circumstances. As we said in Zablocki v. Redhail, 434 U.S. 374, 388 (1978), if a requirement imposed by a State "significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." The Constitution imposes on this Court the obligation to "examine carefully. . . the extent to which [the legitimate government interests advanced] are served by the challenged regulation." Moore v. East Cleveland, 431 U.S. 494, 499 (1977). See also Carey v. Population Services International, 431 U.S. 678, 690 (1977) (invalidating a requirement that bore "no relation to the State's interest"). An evidentiary rule, just as a substantive prohibition, must meet these standards if it significantly burdens a fundamental liberty interest. Fundamental 304 rights "are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference." Bates v. Little Rock, 361 U.S. 516, 523 (1960). B The starting point for our legal analysis must be whether a competent person has a constitutional right to avoid unwanted medical care. Earlier this Term, this Court held that the Due Process Clause of the Fourteenth Amendment confers a significant liberty interest in avoiding unwanted medical treatment. Washington v. Harper, 494 U.S. 210, 221-222 (1990). Today, the Court concedes that our prior decisions "support the recognition of a general liberty interest in refusing medical treatment." See ante, at 278. The Court, however, avoids discussing either the measure of that liberty interest or its application by assuming, for purposes of this case only, that a competent person has a constitutionally protected liberty interest in being free of unwanted artificial nutrition and hydration. See ante, at 279. JUSTICE O'CONNOR'S opinion is less parsimonious. She openly affirms that "the Court has often deemed state incursions into the body repugnant to the interests protected by the Due Process Clause," that there is a liberty interest in avoiding unwanted medical treatment, and that it encompasses the right to be free of "artificially delivered food and water." See ante, at 287. But if a competent person has a liberty interest to be free of unwanted medical treatment, as both the majority and JUSTICE O'CONNOR concede, it must be fundamental. "We are dealing here with [a decision] which involves one of the basic civil rights of man." Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (invalidating a statute authorizing sterilization of certain felons). Whatever other liberties protected by the Due Process Clause are fundamental, "those liberties that are `deeply rooted in this Nation's history and tradition'" are among them. Bowers v. Hardwick, 305 478 U.S. 186, 192 (1986) (quoting Moore v. East Cleveland, supra, at 503 (plurality opinion). "Such a tradition commands respect in part because the Constitution carries the gloss of history." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (BRENNAN, J., concurring in judgment). The right to be free from medical attention without consent, to determine what shall be done with one's own body, is deeply rooted in this Nation's traditions, as the majority acknowledges. See ante, at 270. This right has long been "firmly entrenched in American tort law" and is securely grounded in the earliest common law. Ante, at 269. See also Mills v. Rogers, 457 U.S. 291, 294, n. 4 (1982) ("[T]he right to refuse any medical treatment emerged from the doctrines of trespass and battery, which were applied to unauthorized touchings by a physician"). "Anglo-American law starts with the premise of thorough-going self determination. It follows that each man is considered to be master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of lifesaving surgery, or other medical treatment." Natanson v. Kline, 186 Kan. 393, 406-407, 350 P.2d 1093, 1104 (1960). "The inviolability of the person" has been held as "sacred" and "carefully guarded" as any common-law right. Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251-252 (1891). Thus, freedom from unwanted medical attention is unquestionably among those principles "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).[5] 306 That there may be serious consequences involved in refusal of the medical treatment at issue here does not vitiate the right under our common-law tradition of medical self-determination. It is "a well-established rule of general law. . . that it is the patient, not the physician, who ultimately decides if treatment any treatment is to be given at all.. . . The rule has never been qualified in its application by either the nature or purpose of the treatment, or the gravity of the consequences of acceding to or foregoing it." Tune v. Walter Reed Army Medical Hospital, 602 F. Supp. 1452, 1455 (DC 1985). See also Downer v. Veilleux, 322 A.2d 82, 91 (Me. 1974) ("The rationale of this rule lies in the fact that every competent adult has the right to forego treatment, or even cure, if it entails what for him are intolerable consequences or risks, however unwise his sense of values may be to others").[6] 307 No material distinction can be drawn between the treatment to which Nancy Cruzan continues to be subject artificial nutrition and hydrationand any other medical treatment. See ante, at 288-289 (O'CONNOR, J., concurring). The artificial delivery of nutrition and hydration is undoubtedly medical treatment. The technique to which Nancy Cruzan is subjectartificial feeding through a gastrostomy tubeinvolves a tube implanted surgically into her stomach through incisions in her abdominal wall. It may obstruct the intestinal tract, erode and pierce the stomach wall, or cause leakage of the stomach's contents into the abdominal cavity. See Page, Andrassy, & Sandler, Techniques in Delivery of Liquid Diets, in Nutrition in Clinical Surgery 66-67 (M. Deitel 2d ed. 1985). The tube can cause pneumonia from reflux of the stomach's contents into the lung. See Bernard & Forlaw, Complications and Their Prevention, in Enteral and Tube Feeding 553 (J. Rombeau & M. Caldwell eds. 1984). Typically, and in this case (see Tr. 377), commercially prepared formulas are used, rather than fresh food. See Matarese, Enteral Alimentation, in Surgical Nutrition 726 (J. Fischer ed. 1983). The type of formula and method of administration must be experimented with to avoid gastrointestinal problems. Id., at 748. The patient must be monitored daily by medical personnel as to weight, fluid intake, and fluid output; blood tests must be done weekly. Id., at 749, 751. Artificial delivery of food and water is regarded as medical treatment by the medical profession and the Federal Government.[7] According to the American Academy of Neurology: 308 "The artificial provision of nutrition and hydration is a form of medical treatment . . . analogous to other forms of life-sustaining treatment, such as the use of the respirator. When a patient is unconscious, both a respirator and an artificial feeding device serve to support or replace normal bodily functions that are compromised as a result of the patient's illness." Position of the American Academy of Neurology on Certain Aspects of the Care and Management of the Persistent Vegetative State Patient, 39 Neurology 125 (Jan. 1989). See also Council on Ethical and Judicial Affairs of the American Medical Association, Current Opinions, Opinion 2.20 (1989) ("Life-prolonging medical treatment includes medication and artifically or technologically supplied respiration, nutrition or hydration"); President's Commission 88 (life-sustaining treatment includes respirators, kidney dialysis machines, and special feeding procedures). The Federal Government permits the cost of the medical devices and formulas used in enteral feeding to be reimbursed under Medicare. See Pub. L. 99-509, § 9340, note following 42 U.S. C. § 1395u, p. 592 (1982 ed., Supp. V). The formulas are regulated by the federal Food and Drug Administration as "medical foods," see 21 U.S. C. § 360ee, and the feeding tubes are regulated as medical devices, 21 CFR § 876.5980 (1989). Nor does the fact that Nancy Cruzan is now incompetent deprive her of her fundamental rights. See Youngberg v. Romeo, 457 U.S. 307, 315-316, 319 (1982) (holding that severely retarded man's liberty interests in safety, freedom from bodily restraint, and reasonable training survive involuntary commitment); Parham v. J. R., 442 U.S. 584, 600 (1979) (recognizing a child's substantial liberty interest in not being confined unnecessarily for medical treatment); Jackson v. Indiana, 406 U.S. 715, 730, 738 (1972) (holding that Indiana could not violate the due process and equal protection rights of a mentally retarded deaf mute by committing him for an indefinite amount of time simply because he was incompetent to stand trial on the criminal charges filed against 309 him). As the majority recognizes, ante, at 280, the question is not whether an incompetent has constitutional rights, but how such rights may be exercised. As we explained in Thompson v. Oklahoma, 487 U.S. 815 (1988): "The law must often adjust the manner in which it affords rights to those whose status renders them unable to exercise choice freely and rationally. Children, the insane, and those who are irreversibly ill with loss of brain function, for instance, all retain `rights,' to be sure, but often such rights are only meaningful as they are exercised by agents acting with the best interests of their principals in mind." Id., at 825, n. 23 (emphasis added). "To deny [its] exercise because the patient is unconscious or incompetent would be to deny the right." Foody v. Manchester Memorial Hospital, 40 Conn. Super. 127, 133, 482 A.2d 713, 718 (1984). II A The right to be free from unwanted medical attention is a right to evaluate the potential benefit of treatment and its possible consequences according to one's own values and to make a personal decision whether to subject oneself to the intrusion. For a patient like Nancy Cruzan, the sole benefit of medical treatment is being kept metabolically alive. Neither artificial nutrition nor any other form of medical treatment available today can cure or in any way ameliorate her condition.[8] Irreversibly vegetative patients are devoid of thought, 310 emotion, and sensation; they are permanently and completely unconscious. See n. 2, supra.[9] As the President's Commission concluded in approving the withdrawal of life support equipment from irreversibly vegetative patients: "[T]reatment ordinarily aims to benefit a patient through preserving life, relieving pain and suffering, protecting against disability, and returning maximally effective functioning. If a prognosis of permanent unconsciousness is correct, however, continued treatment cannot confer such benefits. Pain and suffering are absent, as are joy, satisfaction, and pleasure. Disability is total and no return to an even minimal level of social or human functioning is possible." President's Commission 181-182. There are also affirmative reasons why someone like Nancy might choose to forgo artificial nutrition and hydration under these circumstances. Dying is personal. And it is profound. For many, the thought of an ignoble end, steeped in decay, is abhorrent. A quiet, proud death, bodily integrity 311 intact, is a matter of extreme consequence. "In certain, thankfully rare, circumstances the burden of maintaining the corporeal existence degrades the very humanity it was meant to serve." Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 434, 497 N.E.2d 626, 635-636 (1986) (finding the subject of the proceeding "in a condition which [he] has indicated he would consider to be degrading and without human dignity" and holding that "[t]he duty of the State to preserve life must encompass a recognition of an individual's right to avoid circumstances in which the individual himself would feel that efforts to sustain life demean or degrade his humanity"). Another court, hearing a similar case, noted: "It is apparent from the testimony that what was on [the patient's] mind was not only the invasiveness of life-sustaining systems, such as the [nasogastric] tube, upon the integrity of his body. It was also the utter helplessness of the permanently comatose person, the wasting of a once strong body, and the submission of the most private bodily functions to the attention of others." In re Gardner, 534 A.2d 947, 953 (Me. 1987). Such conditions are, for many, humiliating to contemplate,[10] as is visiting a prolonged and anguished vigil on one's parents, spouse, and children. A long, drawn-out death can have a debilitating effect on family members. See Carnwath & Johnson, Psychiatric Morbidity Among Spouses of Patients With Stroke, 294 Brit. Med. J. 409 (1987); Livingston, Families Who Care, 291 Brit. Med. J. 919 (1985). For some, the idea of being remembered in their persistent vegetative 312 states rather than as they were before their illness or accident may be very disturbing.[11] B Although the right to be free of unwanted medical intervention, like other constitutionally protected interests, may not be absolute,[12] no state interest could outweigh the rights of an individual in Nancy Cruzan's position. Whatever a State's possible interests in mandating life-support treatment under other circumstances, there is no good to be obtained here by Missouri's insistence that Nancy Cruzan remain on life-support systems if it is indeed her wish not to do so. Missouri does not claim, nor could it, that society as a whole will be benefited by Nancy's receiving medical treatment. 313 No third party's situation will be improved and no harm to others will be averted. Cf. nn. 6 and 8, supra.[13] The only state interest asserted here is a general interest in the preservation of life.[14] But the State has no legitimate general interest in someone's life, completely abstracted from the interest of the person living that life, that could outweigh the person's choice to avoid medical treatment. "[T]he regulation of constitutionally protected decisions . . . must be predicated on legitimate state concerns other than disagreement with the choice the individual has made. . . . Otherwise, the interest in liberty protected by the Due Process Clause would be a nullity." Hodgson v. Minnesota, post, at 314 435 (opinion of STEVENS, J.) (emphasis added). Thus, the State's general interest in life must accede to Nancy Cruzan's particularized and intense interest in self-determination in her choice of medical treatment. There is simply nothing legitimately within the State's purview to be gained by superseding her decision. Moreover, there may be considerable danger that Missouri's rule of decision would impair rather than serve any interest the State does have in sustaining life. Current medical practice recommends use of heroic measures if there is a scintilla of a chance that the patient will recover, on the assumption that the measures will be discontinued should the patient improve. When the President's Commission in 1982 approved the withdrawal of life-support equipment from irreversibly vegetative patients, it explained that "[a]n even more troubling wrong occurs when a treatment that might save life or improve health is not started because the health care personnel are afraid that they will find it very difficult to stop the treatment if, as is fairly likely, it proves to be of little benefit and greatly burdens the patient." President's Commission 75. A New Jersey court recognized that families as well as doctors might be discouraged by an inability to stop life-support measures from "even attempting certain types of care [which] could thereby force them into hasty and premature decisions to allow a patient to die." In re Conroy, 98 N. J. 321, 370, 486 A.2d 1209, 1234 (1985). See also Brief for American Academy of Neurology as Amicus Curiae 9 (expressing same concern).[15] 315 III This is not to say that the State has no legitimate interests to assert here. As the majority recognizes, ante, at 281-282, Missouri has a parens patriae interest in providing Nancy Cruzan, now incompetent, with as accurate as possible a determination of how she would exercise her rights under these circumstances. Second, if and when it is determined that Nancy Cruzan would want to continue treatment, the State may legitimately assert an interest in providing that treatment. But until Nancy's wishes have been determined, 316 the only state interest that may be asserted is an interest in safeguarding the accuracy of that determination. Accuracy, therefore, must be our touchstone. Missouri may constitutionally impose only those procedural requirements that serve to enhance the accuracy of a determination of Nancy Cruzan's wishes or are at least consistent with an accurate determination. The Missouri "safeguard" that the Court upholds today does not meet that standard. The determination needed in this context is whether the incompetent person would choose to live in a persistent vegetative state on life support or to avoid this medical treatment. Missouri's rule of decision imposes a markedly asymmetrical evidentiary burden. Only evidence of specific statements of treatment choice made by the patient when competent is admissible to support a finding that the patient, now in a persistent vegetative state, would wish to avoid further medical treatment. Moreover, this evidence must be clear and convincing. No proof is required to support a finding that the incompetent person would wish to continue treatment. A The majority offers several justifications for Missouri's heightened evidentiary standard. First, the majority explains that the State may constitutionally adopt this rule to govern determinations of an incompetent's wishes in order to advance the State's substantive interests, including its unqualified interest in the preservation of human life. See ante, at 282-283, and n. 10. Missouri's evidentiary standard, however, cannot rest on the State's own interest in a particular substantive result. To be sure, courts have long erected clear and convincing evidence standards to place the greater risk of erroneous decisions on those bringing disfavored claims.[16] In such cases, however, the choice to discourage 317 certain claims was a legitimate, constitutional policy choice. In contrast, Missouri has no such power to disfavor a choice by Nancy Cruzan to avoid medical treatment, because Missouri has no legitimate interest in providing Nancy with treatment until it is established that this represents her choice. See supra, at 312-314. Just as a State may not override Nancy's choice directly, it may not do so indirectly through the imposition of a procedural rule. Second, the majority offers two explanations for why Missouri's clear and convincing evidence standard is a means of enhancing accuracy, but neither is persuasive. The majority initially argues that a clear and convincing evidence standard is necessary to compensate for the possibility that such proceedings will lack the "guarantee of accurate factfinding that the adversary process brings with it," citing Ohio v. Akron Center for Reproductive Health, post, at 515-516 (upholding a clear and convincing evidence standard for an ex parte proceeding). Ante, at 281-282. Without supporting the Court's decision in that case, I note that the proceeding to determine an incompetent's wishes is quite different from a proceeding to determine whether a minor may bypass notifying her parents before undergoing an abortion on the ground that she is mature enough to make the decision or that the abortion is in her best interests. 318 An adversarial proceeding is of particular importance when one side has a strong personal interest which needs to be counterbalanced to assure the court that the questions will be fully explored. A minor who has a strong interest in obtaining permission for an abortion without notifying her parents may come forward whether or not society would be satisfied that she has made the decision with the seasoned judgment of an adult. The proceeding here is of a different nature. Barring venal motives, which a trial court has the means of ferreting out, the decision to come forward to request a judicial order to stop treatment represents a slowly and carefully considered resolution by at least one adult and more frequently several adults that discontinuation of treatment is the patient's wish. In addition, the bypass procedure at issue in Akron, supra, is ex parte and secret. The court may not notify the minor's parents, siblings, or friends. No one may be present to submit evidence unless brought forward by the minor herself. In contrast, the proceeding to determine Nancy Cruzan's wishes was neither ex parte nor secret. In a hearing to determine the treatment preferences of an incompetent person, a court is not limited to adjusting burdens of proof as its only means of protecting against a possible imbalance. Indeed, any concern that those who come forward will present a one-sided view would be better addressed by appointing a guardian ad litem, who could use the State's powers of discovery to gather and present evidence regarding the patient's wishes. A guardian ad litem's task is to uncover any conflicts of interest and ensure that each party likely to have relevant evidence is consulted and brought forward for example, other members of the family, friends, clergy, and doctors. See, e. g., In re Colyer, 99 Wash. 2d 114, 133, 660 P.2d 738, 748-749 (1983). Missouri's heightened evidentiary standard attempts to achieve balance by discounting evidence; the guardian ad litem technique achieves balance by probing for additional evidence. Where, as here, the family members, 319 friends, doctors, and guardian ad litem agree, it is not because the process has failed, as the majority suggests. See ante, at 281, n. 9. It is because there is no genuine dispute as to Nancy's preference. The majority next argues that where, as here, important individual rights are at stake, a clear and convincing evidence standard has long been held to be an appropriate means of enhancing accuracy, citing decisions concerning what process an individual is due before he can be deprived of a liberty interest. See ante, at 283. In those cases, however, this Court imposed a clear and convincing standard as a constitutional minimum on the basis of its evaluation that one side's interests clearly outweighed the second side's interests and therefore the second side should bear the risk of error. See Santosky v. Kramer, 455 U.S. 745, 753, 766-767 (1982) (requiring a clear and convincing evidence standard for termination of parental rights because the parent's interest is fundamental but the State has no legitimate interest in termination unless the parent is unfit, and finding that the State's interest in finding the best home for the child does not arise until the parent has been found unfit); Addington v. Texas, 441 U.S. 418, 426-427 (1979) (requiring clear and convincing evidence in an involuntary commitment hearing because the interest of the individual far outweighs that of a State, which has no legitimate interest in confining individuals who are not mentally ill and do not pose a danger to themselves or others). Moreover, we have always recoguized that shifting the risk of error reduces the likelihood of errors in one direction at the cost of increasing the likelihood of errors in the other. See Addington, supra, at 423 (contrasting heightened standards of proof to a preponderance standard in which the two sides "share the risk of error in roughly equal fashion" because society does not favor one outcome over the other). In the cases cited by the majority, the imbalance imposed by a heightened evidentiary standard was not only acceptable but required because the standard was deployed to protect an individual's 320 exercise of a fundamental right, as the majority admits, ante, at 282-283, n. 10. In contrast, the Missouri court imposed a clear and convincing evidence standard as an obstacle to the exercise of a fundamental right. The majority claims that the allocation of the risk of error is justified because it is more important not to terminate life support for someone who would wish it continued than to honor the wishes of someone who would not. An erroneous decision to terminate life support is irrevocable, says the majority, while an erroneous decision not to terminate "results in a maintenance of the status quo." See ante, at 283.[17] But, from the point of view of the patient, an erroneous decision in either direction is irrevocable. An erroneous decision to terminate artificial nutrition and hydration, to be sure, will lead to failure of that last remnant of physiological life, the brain stem, and result in complete brain death. An erroneous decision not to terminate life support, however, robs a patient of the very qualities protected by the right to avoid unwanted medical treatment. His own degraded existence is perpetuated; his family's suffering is protracted; the memory he leaves behind becomes more and more distorted. Even a later decision to grant him his wish cannot undo the intervening harm. But a later decision is unlikely in any event. "[T]he discovery of new evidence," to which the majority 321 refers, ibid., is more hypothetical than plausible. The majority also misconceives the relevance of the possibility of "advancements in medical science," ibid., by treating it as a reason to force someone to continue medical treatment against his will. The possibility of a medical miracle is indeed part of the calculus, but it is a part of the patient's calculus. If current research suggests that some hope for cure or even moderate improvement is possible within the lifespan projected, this is a factor that should be and would be accorded significant weight in assessing what the patient himself would choose.[18] B Even more than its heightened evidentiary standard, the Missouri court's categorical exclusion of relevant evidence dispenses with any semblance of accurate factfinding. The court adverted to no evidence supporting its decision, but held that no clear and convincing, inherently reliable evidence had been presented to show that Nancy would want to avoid further treatment. In doing so, the court failed to consider statements Nancy had made to family members and a close friend.[19] The court also failed to consider testimony 322 from Nancy's mother and sister that they were certain that Nancy would want to discontinue artificial nutrition and hydration,[20] even after the court found that Nancy's family was loving and without malignant motive. See 760 S.W.2d, at 412. The court also failed to consider the conclusions of the guardian ad litem, appointed by the trial court, that there was clear and convincing evidence that Nancy would want to 323 discontinue medical treatment and that this was in her best interests. Id., at 444 (Higgins, J., dissenting from denial of rehearing); Brief for Respondent Guardian Ad Litem 2-3. The court did not specifically define what kind of evidence it would consider clear and convincing, but its general discussion suggests that only a living will or equivalently formal directive from the patient when competent would meet this standard. See 760 S.W.2d, at 424-425. Too few people execute living wills or equivalently formal directives for such an evidentiary rule to ensure adequately that the wishes of incompetent persons will be honored.[21] While it might be a wise social policy to encourage people to furnish such instructions, no general conclusion about a patient's choice can be drawn from the absence of formalities. The probability of becoming irreversibly vegetative is so low that many people may not feel an urgency to marshal formal evidence of their preferences. Some may not wish to dwell on their own physical deterioration and mortality. Even someone with a resolute determination to avoid life support under circumstances such as Nancy's would still need to know that such things as living wills exist and how to execute one. Often legal help would be necessary, especially given the majority's apparent willingness to permit States to insist that a person's wishes are not truly known unless the particular medical treatment is specified. See ante, at 285. 324 As a California appellate court observed: "The lack of generalized public awareness of the statutory scheme and the typically human characteristics of procrastination and reluctance to contemplate the need for such arrangements however makes this a tool which will all too often go unused by those who might desire it." Barber v. Superior Court, 147 Cal. App. 3d 1006, 1015, 195 Cal. Rptr. 484, 489 (1983). When a person tells family or close friends that she does not want her life sustained artificially, she is "express[ing] her wishes in the only terms familiar to her, and . . . as clearly as a lay person should be asked to express them. To require more is unrealistic, and for all practical purposes, it precludes the right of patients to forego life-sustaining treatment." In re O'Connor, 72 N.Y. 2d 517, 551, 531 N.E.2d 607, 626 (1988) (Simons, J., dissenting).[22] When Missouri enacted a living will statute, it specifically provided that the absence of a living will does not warrant a presumption that a patient wishes continued medical treatment. See n. 15, supra. 325 Thus, apparently not even Missouri's own legislature believes that a person who does not execute a living will fails to do so because he wishes continuous medical treatment under all circumstances. The testimony of close friends and family members, on the other hand, may often be the best evidence available of what the patient's choice would be. It is they with whom the patient most likely will have discussed such questions and they who know the patient best. "Family members have a unique knowledge of the patient which is vital to any decision on his or her behalf." Newman, Treatment Refusals for the Critically and Terminally Ill: Proposed Rules for the Family, the Physician, and the State, 3 N.Y. L. S. Human Rights Annual 35, 46 (1985). The Missouri court's decision to ignore this whole category of testimony is also at odds with the practices of other States. See, e. g., In re Peter, 108 N. J. 365, 529 A.2d 419 (1987); Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 497 N.E.2d 626 (1986); In re Severns, 425 A.2d 156 (Del. Ch. 1980). The Missouri court's disdain for Nancy's statements in serious conversations not long before her accident, for the opinions of Nancy's family and friends as to her values, beliefs and certain choice, and even for the opinion of an outside objective factfinder appointed by the State evinces a disdain for Nancy Cruzan's own right to choose. The rules by which an incompetent person's wishes are determined must represent every effort to determine those wishes. The rule that the Missouri court adopted and that this Court upholds, however, skews the result away from a determination that as accurately as possible reflects the individual's own preferences and beliefs. It is a rule that transforms human beings into passive subjects of medical technology. "[M]edical care decisions must be guided by the individual patient's interests and values. Allowing persons to determine their own medical treatment is an important way in which society respects persons as individuals. 326 Moreover, the respect due to persons as individuals does not diminish simply because they have become incapable of participating in treatment decisions. . . . [I]t is still possible for others to make a decision that reflects [the patient's] interests more closely than would a purely technological decision to do whatever is possible. Lacking the ability to decide, [a patient] has a right to a decision that takes his interests into account." Conservatorship of Drabick, 200 Cal. App. 3d 185, 208, 245 Cal. Rptr. 840, 854-855, cert. denied, 488 U.S. 958 (1988). C I do not suggest that States must sit by helplessly if the choices of incompetent patients are in danger of being ignored. See ante, at 281. Even if the Court had ruled that Missouri's rule of decision is unconstitutional, as I believe it should have, States would nevertheless remain free to fashion procedural protections to safeguard the interests of incompetents under these circumstances. The Constitution provides merely a framework here: Protections must be genuinely aimed at ensuring decisions commensurate with the will of the patient, and must be reliable as instruments to that end. Of the many States which have instituted such protections, Missouri is virtually the only one to have fashioned a rule that lessens the likelihood of accurate determinations. In contrast, nothing in the Constitution prevents States from reviewing the advisability of a family decision, by requiring a court proceeding or by appointing an impartial guardian ad litem. There are various approaches to determining an incompetent patient's treatment choice in use by the several States today, and there may be advantages and disadvantages to each and other approaches not yet envisioned. The choice, in largest part, is and should be left to the States, so long as each State is seeking, in a reliable manner, to discover what the patient would want. But with such momentous interests in the balance, States must avoid procedures that will prejudice 327 the decision. "To err either wayto keep a person alive under circumstances under which he would rather have been allowed to die, or to allow that person to die when he would have chosen to cling to lifewould be deeply unfortunate." In re Conroy, 98 N. J., at 343, 486 A.2d, at 1220. D Finally, I cannot agree with the majority that where it is not possible to determine what choice an incompetent patient would make, a State's role as parens patriae permits the State automatically to make that choice itself. See ante, at 286 (explaining that the Due Process Clause does not require a State to confide the decision to "anyone but the patient herself"). Under fair rules of evidence, it is improbable that a court could not determine what the patient's choice would be. Under the rule of decision adopted by Missouri and upheld today by this Court, such occasions might be numerous. But in neither case does it follow that it is constitutionally acceptable for the State invariably to assume the role of deciding for the patient. A State's legitimate interest in safeguarding a patient's choice cannot be furthered by simply appropriating it. The majority justifies its position by arguing that, while close family members may have a strong feeling about the question, "there is no automatic assurance that the view of close family members will necessarily be the same as the patient's would have been had she been confronted with the prospect of her situation while competent." Ibid. I cannot quarrel with this observation. But it leads only to another question: Is there any reason to suppose that a State is more likely to make the choice that the patient would have made than someone who knew the patient intimately? To ask this is to answer it. As the New Jersey Supreme Court observed: "Family members are best qualified to make substituted judgments for incompetent patients not only because of their peculiar grasp of the patient's approach to life, but also 328 because of their special bonds with him or her. . . . It is . . . they who treat the patient as a person, rather than a symbol of a cause." In re Jobes, 108 N. J. 394, 416, 529 A.2d 434, 445 (1987). The State, in contrast, is a stranger to the patient. A State's inability to discern an incompetent patient's choice still need not mean that a State is rendered powerless to protect that choice. But I would find that the Due Process Clause prohibits a State from doing more than that. A State may ensure that the person who makes the decision on the patient's behalf is the one whom the patient himself would have selected to make that choice for him. And a State may exclude from consideration anyone having improper motives. But a State generally must either repose the choice with the person whom the patient himself would most likely have chosen as proxy or leave the decision to the patient's family.[23] IV As many as 10,000 patients are being maintained in persistent vegetative states in the United States, and the number is expected to increase significantly in the near future. See Cranford, supra n. 2, at 27, 31. Medical technology, developed over the past 20 or so years, is often capable of resuscitating people after they have stopped breathing or their hearts have stopped beating. Some of those people are brought fully back to life. Two decades ago, those who were not and could not swallow and digest food, died. Intravenous solutions could not provide sufficient calories to maintain people for more than a short time. Today, various forms of artificial feeding have been developed that are able to keep people metabolically alive for years, even decades. See Spencer & Palmisano, Specialized Nutritional Support of 329 Patients A Hospital's Legal Duty?, 11 Quality Rev. Bull. 160, 160-161 (1985). In addition, in this century, chronic or degenerative ailments have replaced communicable diseases as the primary causes of death. See R. Weir, Abating Treatment with Critically Ill Patients 12-13 (1989); President's Commission 15-16. The 80% of Americans who die in hospitals are "likely to meet their end . . . `in a sedated or comatose state; betubed nasally, abdominally and intravenously; and far more like manipulated objects than like moral subjects.'"[24] A fifth of all adults surviving to age 80 will suffer a progressive dementing disorder prior to death. See Cohen & Eisdorfer, Dementing Disorders, in The Practice of Geriatrics 194 (E. Calkins, P. Davis, & A. Ford eds. 1986). "[L]aw, equity and justice must not themselves quail and be helpless in the face of modern technological marvels presenting questions hitherto unthought of." In re Quinlan, 70 N. J. 10, 44, 355 A.2d 647, 665, cert. denied, 429 U.S. 922 (1976). The new medical technology can reclaim those who would have been irretrievably lost a few decades ago and restore them to active lives. For Nancy Cruzan, it failed, and for others with wasting incurable disease, it may be doomed to failure. In these unfortunate situations, the bodies and preferences and memories of the victims do not escheat to the State; nor does our Constitution permit the State or any other government to commandeer them. No singularity of feeling exists upon which such a government might confidently rely as parens patriae. The President's Commission, after years of research, concluded: "In few areas of health care are people's evaluations of their experiences so varied and uniquely personal as in their assessments of the nature and value of the processes associated with dying. For some, every moment of life is of inestimable value; for others, life without *330 some desired level of mental or physical ability is worthless or burdensome. A moderate degree of suffering may be an important means of personal growth and religious experience to one person, but only frightening or despicable to another." President's Commission 276. Yet Missouri and this Court have displaced Nancy's own assessment of the processes associated with dying. They have discarded evidence of her will, ignored her values, and deprived her of the right to a decision as closely approximating her own choice as humanly possible. They have done so disingenuously in her name and openly in Missouri's own. That Missouri and this Court may truly be motivated only by concern for incompetent patients makes no matter. As one of our most prominent jurists warned us decades ago: "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. . . . The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting). I respectfully dissent.	"Medical technology has effectively created a twilight zone of suspended animation where death commences while life, in some form, continues. Some patients, however, want no part of a life sustained only by medical technology. Instead, they prefer a plan of medical treatment that allows nature to take its course and permits them to die with dignity."[1] Nancy Cruzan has dwelt in that twilight zone for six years. She is oblivious to her surroundings and will remain so. Her body twitches only reflexively, without consciousness. The areas of her brain that once thought, felt, and experienced sensations have degenerated badly and are continuing to do so. The cavities remaining are filling with cerebrospinal fluid. The "`cerebral cortical atrophy is irreversible, permanent, progressive and ongoing.'" "Nancy will never interact meaningfully with her environment again. She will remain in a persistent vegetative state until her death."[2] Because she cannot swallow, her nutrition and hydration are delivered through a tube surgically implanted in her stomach. A grown woman at the time of the accident, Nancy had previously expressed her wish to forgo continuing medical care under circumstances such as these. Her family and her 302 friends are convinced that this is what she would want. See 0, infra. A guardian ad litem appointed by the trial court is also convinced that this is what Nancy would want. See Yet the Missouri Supreme Court, alone among state courts deciding such a question, has determined that an irreversibly vegetative patient will remain a passive prisoner of medical technology for Nancy, perhaps for the next 30 years. See Today the Court, while tentatively accepting that there is some degree of constitutionally protected liberty interest in avoiding unwanted medical treatment, including life-sustaining medical treatment such as artificial nutrition and hydration, affirms the decision of the Missouri Supreme Court. The majority opinion, as I read it, would affirm that decision on the ground that a State may require "clear and convincing" evidence of Nancy Cruzan's prior decision to forgo life-sustaining treatment under circumstances such as hers in order to ensure that her actual wishes are honored. See ante, at 282-283, 286-287. Because I believe that Nancy Cruzan has a fundamental right to be free of unwanted artificial nutrition and hydration, which right is not outweighed by any interests of the State, and because I find that the improperly biased procedural obstacles imposed by the Missouri Supreme Court impermissibly burden that right, I respectfully dissent. Nancy Cruzan is entitled to choose to die with dignity. I A "[T]he timing of deathonce a matter of fate is now a matter of human choice." Office of Technology Assessment Task Force, Life Sustaining Technologies and the Elderly 41 Of the approximately 2 million people who die each year, 80% die in hospitals and long-term care institutions,[3]303 and perhaps 70% of those after a decision to forgo life-sustaining treatment has been made.[4] Nearly every death involves a decision whether to undertake some medical procedure that could prolong the process of dying. Such decisions are difficult and personal. They must be made on the basis of individual values, informed by medical realities, yet within a framework governed by law. The role of the courts is confined to defining that framework, delineating the ways in which government may and may not participate in such decisions. The question before this Court is a relatively narrow one: whether the Due Process Clause allows Missouri to require a now-incompetent patient in an irreversible persistent vegetative state to remain on life support absent rigorously clear and convincing evidence that avoiding the treatment represents the patient's prior, express choice. See ante, at 277-278. If a fundamental right is at issue, Missouri's rule of decision must be scrutinized under the standards this Court has always applied in such circumstances. As we said in if a requirement imposed by a State "significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." The Constitution imposes on this Court the obligation to "examine carefully. the extent to which [the legitimate government interests advanced] are served by the challenged regulation." See also An evidentiary rule, just as a substantive prohibition, must meet these standards if it significantly burdens a fundamental liberty interest. Fundamental 304 rights "are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference." B The starting point for our legal analysis must be whether a competent person has a constitutional right to avoid unwanted medical care. Earlier this Term, this Court held that the Due Process Clause of the Fourteenth Amendment confers a significant liberty interest in avoiding unwanted medical treatment. Today, the Court concedes that our prior decisions "support the recognition of a general liberty interest in refusing medical treatment." See ante, at 278. The Court, however, avoids discussing either the measure of that liberty interest or its application by assuming, for purposes of this case only, that a competent person has a constitutionally protected liberty interest in being free of unwanted artificial nutrition and hydration. See ante, at 279. JUSTICE O'CONNOR'S opinion is less parsimonious. She openly affirms that "the Court has often deemed state incursions into the body repugnant to the interests protected by the Due Process Clause," that there is a liberty interest in avoiding unwanted medical treatment, and that it encompasses the right to be free of "artificially delivered food and water." See ante, at 287. But if a competent person has a liberty interest to be free of unwanted medical treatment, as both the majority and JUSTICE O'CONNOR concede, it must be fundamental. "We are dealing here with [a decision] which involves one of the basic civil rights of man." Whatever other liberties protected by the Due Process Clause are fundamental, "those liberties that are `deeply rooted in this Nation's history and tradition'" are among them. The right to be free from medical attention without consent, to determine what shall be done with one's own body, is deeply rooted in this Nation's traditions, as the majority acknowledges. See ante, at 270. This right has long been "firmly entrenched in American tort law" and is securely grounded in the earliest common law. Ante, at 269. See also "Anglo-American law starts with the premise of thorough-going self determination. It follows that each man is considered to be master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of lifesaving surgery, or other medical treatment." "The inviolability of the person" has been held as "sacred" and "carefully guarded" as any common-law right. Union Pacific R. Thus, freedom from unwanted medical attention is unquestionably among those principles "so rooted in the traditions and conscience of our people as to be ranked as fundamental."[5] 306 That there may be serious consequences involved in refusal of the medical treatment at issue here does not vitiate the right under our common-law tradition of medical self-determination. It is "a well-established rule of general law. that it is the patient, not the physician, who ultimately decides if treatment any treatment is to be given at all. The rule has never been qualified in its application by either the nature or purpose of the treatment, or the gravity of the consequences of acceding to or foregoing it." See also[6] 307 No material distinction can be drawn between the treatment to which Nancy Cruzan continues to be subject artificial nutrition and hydrationand any other medical treatment. See ante, at 288-289 (O'CONNOR, J., concurring). The artificial delivery of nutrition and hydration is undoubtedly medical treatment. The technique to which Nancy Cruzan is subjectartificial feeding through a gastrostomy tubeinvolves a tube implanted surgically into her stomach through incisions in her abdominal wall. It may obstruct the intestinal tract, erode and pierce the stomach wall, or cause leakage of the stomach's contents into the abdominal cavity. See Page, Andrassy, & Sandler, Techniques in Delivery of Liquid Diets, in Nutrition in Clinical Surgery 66-67 The tube can cause pneumonia from reflux of the stomach's contents into the lung. See Bernard & Forlaw, Complications and Their Prevention, in Enteral and Tube Feeding 553 Typically, and in this case (see Tr. 377), commercially prepared formulas are used, rather than fresh food. See Matarese, Enteral Alimentation, in Surgical Nutrition 726 The type of formula and method of administration must be experimented with to avoid gastrointestinal problems. The patient must be monitored daily by medical personnel as to weight, fluid intake, and fluid output; blood tests must be done weekly. Artificial delivery of food and water is regarded as medical treatment by the medical profession and the Federal Government.[7] According to the American Academy of Neurology: 308 "The artificial provision of nutrition and hydration is a form of medical treatment analogous to other forms of life-sustaining treatment, such as the use of the respirator. When a patient is unconscious, both a respirator and an artificial feeding device serve to support or replace normal bodily functions that are compromised as a result of the patient's illness." Position of the American Academy of Neurology on Certain Aspects of the Care and Management of the Persistent Vegetative State Patient, 39 Neurology 125 (Jan. 1989). See also Council on Ethical and Judicial Affairs of the American Medical Association, Current Opinions, Opinion 2.20 (1989) ("Life-prolonging medical treatment includes medication and artifically or technologically supplied respiration, nutrition or hydration"); President's Commission 88 (life-sustaining treatment includes respirators, kidney dialysis machines, and special feeding procedures). The Federal Government permits the cost of the medical devices and formulas used in enteral feeding to be reimbursed under Medicare. See note following 42 U.S. C. 1395u, p. 592 (1982 ed., Supp. V). The formulas are regulated by the federal Food and Drug Administration as "medical foods," see 21 U.S. C. 360ee, and the feeding tubes are regulated as medical devices, 21 CFR 876.5980 (1989). Nor does the fact that Nancy Cruzan is now incompetent deprive her of her fundamental rights. See ; ; As the majority recognizes, ante, at 280, the question is not whether an incompetent has constitutional rights, but how such rights may be exercised. As we explained in : "The law must often adjust the manner in which it affords rights to those whose status renders them unable to exercise choice freely and rationally. Children, the insane, and those who are irreversibly ill with loss of brain function, for instance, all retain `rights,' to be sure, but often such rights are only meaningful as they are exercised by agents acting with the best interests of their principals in mind." "To deny [its] exercise because the patient is unconscious or incompetent would be to deny the right." II A The right to be free from unwanted medical attention is a right to evaluate the potential benefit of treatment and its possible consequences according to one's own values and to make a personal decision whether to subject oneself to the intrusion. For a patient like Nancy Cruzan, the sole benefit of medical treatment is being kept metabolically alive. Neither artificial nutrition nor any other form of medical treatment available today can cure or in any way ameliorate her condition.[8] Irreversibly vegetative patients are devoid of thought, 310 emotion, and sensation; they are permanently and completely unconscious. See [9] As the President's Commission concluded in approving the withdrawal of life support equipment from irreversibly vegetative patients: "[T]reatment ordinarily aims to benefit a patient through preserving life, relieving pain and suffering, protecting against disability, and returning maximally effective functioning. If a prognosis of permanent unconsciousness is correct, however, continued treatment cannot confer such benefits. Pain and suffering are absent, as are joy, satisfaction, and pleasure. Disability is total and no return to an even minimal level of social or human functioning is possible." President's Commission 181-182. There are also affirmative reasons why someone like Nancy might choose to forgo artificial nutrition and hydration under these circumstances. Dying is personal. And it is profound. For many, the thought of an ignoble end, steeped in decay, is abhorrent. A quiet, proud death, bodily integrity 311 intact, is a matter of extreme consequence. "In certain, thankfully rare, circumstances the burden of maintaining the corporeal existence degrades the very humanity it was meant to serve." (finding the subject of the proceeding "in a condition which [he] has indicated he would consider to be degrading and without human dignity" and holding that "[t]he duty of the State to preserve life must encompass a recognition of an individual's right to avoid circumstances in which the individual himself would feel that efforts to sustain life demean or degrade his humanity"). Another court, hearing a similar case, noted: "It is apparent from the testimony that what was on [the patient's] mind was not only the invasiveness of life-sustaining systems, such as the [nasogastric] tube, upon the integrity of his body. It was also the utter helplessness of the permanently comatose person, the wasting of a once strong body, and the submission of the most private bodily functions to the attention of others." In re Gardner, Such conditions are, for many, humiliating to contemplate,[10] as is visiting a prolonged and anguished vigil on one's parents, spouse, and children. A long, drawn-out death can have a debilitating effect on family members. See Carnwath & Johnson, Psychiatric Morbidity Among Spouses of Patients With Stroke, 294 Brit. Med. J. 409 ; Livingston, Families Who Care, 2 Brit. Med. J. 9 For some, the idea of being remembered in their persistent vegetative 312 states rather than as they were before their illness or accident may be very disturbing.[11] B Although the right to be free of unwanted medical intervention, like other constitutionally protected interests, may not be absolute,[12] no state interest could outweigh the rights of an individual in Nancy Cruzan's position. Whatever a State's possible interests in mandating life-support treatment under other circumstances, there is no good to be obtained here by Missouri's insistence that Nancy Cruzan remain on life-support systems if it is indeed her wish not to do so. Missouri does not claim, nor could it, that society as a whole will be benefited by Nancy's receiving medical treatment. 313 No third party's situation will be improved and no harm to others will be averted. Cf. nn. 6 and 8, [13] The only state interest asserted here is a general interest in the preservation of life.[14] But the State has no legitimate general interest in someone's life, completely abstracted from the interest of the person living that life, that could outweigh the person's choice to avoid medical treatment. "[T]he regulation of constitutionally protected decisions must be predicated on legitimate state concerns other than disagreement with the choice the individual has made. Otherwise, the interest in liberty protected by the Due Process Clause would be a nullity." Hodgson v. Minnesota, post, at 314 435 (opinion of STEVENS, J.) Thus, the State's general interest in life must accede to Nancy Cruzan's particularized and intense interest in self-determination in her choice of medical treatment. There is simply nothing legitimately within the State's purview to be gained by superseding her decision. Moreover, there may be considerable danger that Missouri's rule of decision would impair rather than serve any interest the State does have in sustaining life. Current medical practice recommends use of heroic measures if there is a scintilla of a chance that the patient will recover, on the assumption that the measures will be discontinued should the patient improve. When the President's Commission in 1982 approved the withdrawal of life-support equipment from irreversibly vegetative patients, it explained that "[a]n even more troubling wrong occurs when a treatment that might save life or improve health is not started because the health care personnel are afraid that they will find it very difficult to stop the treatment if, as is fairly likely, it proves to be of little benefit and greatly burdens the patient." President's Commission 75. A New Jersey court recognized that families as well as doctors might be discouraged by an inability to stop life-support measures from "even attempting certain types of care [which] could thereby force them into hasty and premature decisions to allow a patient to die." In re Conroy, 98 N. J. 321, 370, See also Brief for American Academy of Neurology as Amicus Curiae 9 (expressing same concern).[] 3 III This is not to say that the State has no legitimate interests to assert here. As the majority recognizes, ante, at 281-282, Missouri has a parens patriae interest in providing Nancy Cruzan, now incompetent, with as accurate as possible a determination of how she would exercise her rights under these circumstances. Second, if and when it is determined that Nancy Cruzan would want to continue treatment, the State may legitimately assert an interest in providing that treatment. But until Nancy's wishes have been determined, 316 the only state interest that may be asserted is an interest in safeguarding the accuracy of that determination. Accuracy, therefore, must be our touchstone. Missouri may constitutionally impose only those procedural requirements that serve to enhance the accuracy of a determination of Nancy Cruzan's wishes or are at least consistent with an accurate determination. The Missouri "safeguard" that the Court upholds today does not meet that standard. The determination needed in this context is whether the incompetent person would choose to live in a persistent vegetative state on life support or to avoid this medical treatment. Missouri's rule of decision imposes a markedly asymmetrical evidentiary burden. Only evidence of specific statements of treatment choice made by the patient when competent is admissible to support a finding that the patient, now in a persistent vegetative state, would wish to avoid further medical treatment. Moreover, this evidence must be clear and convincing. No proof is required to support a finding that the incompetent person would wish to continue treatment. A The majority offers several justifications for Missouri's heightened evidentiary standard. First, the majority explains that the State may constitutionally adopt this rule to govern determinations of an incompetent's wishes in order to advance the State's substantive interests, including its unqualified interest in the preservation of human life. See ante, at 282-283, and n. 10. Missouri's evidentiary standard, however, cannot rest on the State's own interest in a particular substantive result. To be sure, courts have long erected clear and convincing evidence standards to place the greater risk of erroneous decisions on those bringing disfavored claims.[16] In such cases, however, the choice to discourage 317 certain claims was a legitimate, constitutional policy choice. In contrast, Missouri has no such power to disfavor a choice by Nancy Cruzan to avoid medical treatment, because Missouri has no legitimate interest in providing Nancy with treatment until it is established that this represents her choice. See Just as a State may not override Nancy's choice directly, it may not do so indirectly through the imposition of a procedural rule. Second, the majority offers two explanations for why Missouri's clear and convincing evidence standard is a means of enhancing accuracy, but neither is persuasive. The majority initially argues that a clear and convincing evidence standard is necessary to compensate for the possibility that such proceedings will lack the "guarantee of accurate factfinding that the adversary process brings with it," citing Ohio v. Center for Reproductive Health, post, at 5-516 (upholding a clear and convincing evidence standard for an ex parte proceeding). Ante, at 281-282. Without supporting the Court's decision in that case, I note that the proceeding to determine an incompetent's wishes is quite different from a proceeding to determine whether a minor may bypass notifying her parents before undergoing an abortion on the ground that she is mature enough to make the decision or that the abortion is in her best interests. 318 An adversarial proceeding is of particular importance when one side has a strong personal interest which needs to be counterbalanced to assure the court that the questions will be fully explored. A minor who has a strong interest in obtaining permission for an abortion without notifying her parents may come forward whether or not society would be satisfied that she has made the decision with the seasoned judgment of an adult. The proceeding here is of a different nature. Barring venal motives, which a trial court has the means of ferreting out, the decision to come forward to request a judicial order to stop treatment represents a slowly and carefully considered resolution by at least one adult and more frequently several adults that discontinuation of treatment is the patient's wish. In addition, the bypass procedure at issue in is ex parte and secret. The court may not notify the minor's parents, siblings, or friends. No one may be present to submit evidence unless brought forward by the minor herself. In contrast, the proceeding to determine Nancy Cruzan's wishes was neither ex parte nor secret. In a hearing to determine the treatment preferences of an incompetent person, a court is not limited to adjusting burdens of proof as its only means of protecting against a possible imbalance. Indeed, any concern that those who come forward will present a one-sided view would be better addressed by appointing a guardian ad litem, who could use the State's powers of discovery to gather and present evidence regarding the patient's wishes. A guardian ad litem's task is to uncover any conflicts of interest and ensure that each party likely to have relevant evidence is consulted and brought forward for example, other members of the family, friends, clergy, and doctors. See, e. g., In re Colyer, Missouri's heightened evidentiary standard attempts to achieve balance by discounting evidence; the guardian ad litem technique achieves balance by probing for additional evidence. Where, as here, the family members, 319 friends, doctors, and guardian ad litem agree, it is not because the process has failed, as the majority suggests. See ante, at 281, n. 9. It is because there is no genuine dispute as to Nancy's preference. The majority next argues that where, as here, important individual rights are at stake, a clear and convincing evidence standard has long been held to be an appropriate means of enhancing accuracy, citing decisions concerning what process an individual is due before he can be deprived of a liberty interest. See ante, at 283. In those cases, however, this Court imposed a clear and convincing standard as a constitutional minimum on the basis of its evaluation that one side's interests clearly outweighed the second side's interests and therefore the second side should bear the risk of error. See (requiring a clear and convincing evidence standard for termination of parental rights because the parent's interest is fundamental but the State has no legitimate interest in termination unless the parent is unfit, and finding that the State's interest in finding the best home for the child does not arise until the parent has been found unfit); Moreover, we have always recoguized that shifting the risk of error reduces the likelihood of errors in one direction at the cost of increasing the likelihood of errors in the other. See In the cases cited by the majority, the imbalance imposed by a heightened evidentiary standard was not only acceptable but required because the standard was deployed to protect an individual's 320 exercise of a fundamental right, as the majority admits, ante, at 282-283, n. 10. In contrast, the Missouri court imposed a clear and convincing evidence standard as an obstacle to the exercise of a fundamental right. The majority claims that the allocation of the risk of error is justified because it is more important not to terminate life support for someone who would wish it continued than to honor the wishes of someone who would not. An erroneous decision to terminate life support is irrevocable, says the majority, while an erroneous decision not to terminate "results in a maintenance of the status quo." See ante, at 283.[17] But, from the point of view of the patient, an erroneous decision in either direction is irrevocable. An erroneous decision to terminate artificial nutrition and hydration, to be sure, will lead to failure of that last remnant of physiological life, the brain stem, and result in complete brain death. An erroneous decision not to terminate life support, however, robs a patient of the very qualities protected by the right to avoid unwanted medical treatment. His own degraded existence is perpetuated; his family's suffering is protracted; the memory he leaves behind becomes more and more distorted. Even a later decision to grant him his wish cannot undo the intervening harm. But a later decision is unlikely in any event. "[T]he discovery of new evidence," to which the majority 321 refers, ib is more hypothetical than plausible. The majority also misconceives the relevance of the possibility of "advancements in medical science," ib by treating it as a reason to force someone to continue medical treatment against his will. The possibility of a medical miracle is indeed part of the calculus, but it is a part of the patient's calculus. If current research suggests that some hope for cure or even moderate improvement is possible within the lifespan projected, this is a factor that should be and would be accorded significant weight in assessing what the patient himself would choose.[18] B Even more than its heightened evidentiary standard, the Missouri court's categorical exclusion of relevant evidence dispenses with any semblance of accurate factfinding. The court adverted to no evidence supporting its decision, but held that no clear and convincing, inherently reliable evidence had been presented to show that Nancy would want to avoid further treatment. In doing so, the court failed to consider statements Nancy had made to family members and a close friend.[19] The court also failed to consider testimony 322 from Nancy's mother and sister that they were certain that Nancy would want to discontinue artificial nutrition and hydration,[20] even after the court found that Nancy's family was loving and without malignant motive. See The court also failed to consider the conclusions of the guardian ad litem, appointed by the trial court, that there was clear and convincing evidence that Nancy would want to 323 discontinue medical treatment and that this was in her best interests. ; Brief for Respondent Guardian Ad Litem 2-3. The court did not specifically define what kind of evidence it would consider clear and convincing, but its general discussion suggests that only a living will or equivalently formal directive from the patient when competent would meet this standard. See -425. Too few people execute living wills or equivalently formal directives for such an evidentiary rule to ensure adequately that the wishes of incompetent persons will be honored.[21] While it might be a wise social policy to encourage people to furnish such instructions, no general conclusion about a patient's choice can be drawn from the absence of formalities. The probability of becoming irreversibly vegetative is so low that many people may not feel an urgency to marshal formal evidence of their preferences. Some may not wish to dwell on their own physical deterioration and mortality. Even someone with a resolute determination to avoid life support under circumstances such as Nancy's would still need to know that such things as living wills exist and how to execute one. Often legal help would be necessary, especially given the majority's apparent willingness to permit States to insist that a person's wishes are not truly known unless the particular medical treatment is specified. See ante, at 285. 324 As a California appellate court observed: "The lack of generalized public awareness of the statutory scheme and the typically human characteristics of procrastination and reluctance to contemplate the need for such arrangements however makes this a tool which will all too often go unused by those who might desire it." When a person tells family or close friends that she does not want her life sustained artificially, she is "express[ing] her wishes in the only terms familiar to her, and as clearly as a lay person should be asked to express them. To require more is unrealistic, and for all practical purposes, it precludes the right of patients to forego life-sustaining treatment." In re O'Connor,[22] When Missouri enacted a living will statute, it specifically provided that the absence of a living will does not warrant a presumption that a patient wishes continued medical treatment. See n. 325 Thus, apparently not even Missouri's own legislature believes that a person who does not execute a living will fails to do so because he wishes continuous medical treatment under all circumstances. The testimony of close friends and family members, on the other hand, may often be the best evidence available of what the patient's choice would be. It is they with whom the patient most likely will have discussed such questions and they who know the patient best. "Family members have a unique knowledge of the patient which is vital to any decision on his or her behalf." Newman, Treatment Refusals for the Critically and Terminally Ill: Proposed Rules for the Family, the Physician, and the State, 3 N.Y. L. S. Human Rights Annual 35, 46 The Missouri court's decision to ignore this whole category of testimony is also at odds with the practices of other States. See, e. g., In re Peter, 108 N. J. 365, ; ; In re Severns, 425 A.2d 6 The Missouri court's disdain for Nancy's statements in serious conversations not long before her accident, for the opinions of Nancy's family and friends as to her values, beliefs and certain choice, and even for the opinion of an outside objective factfinder appointed by the State evinces a disdain for Nancy Cruzan's own right to choose. The rules by which an incompetent person's wishes are determined must represent every effort to determine those wishes. The rule that the Missouri court adopted and that this Court upholds, however, skews the result away from a determination that as accurately as possible reflects the individual's own preferences and beliefs. It is a rule that transforms human beings into passive subjects of medical technology. "[M]edical care decisions must be guided by the individual patient's interests and values. Allowing persons to determine their own medical treatment is an important way in which society respects persons as individuals. 326 Moreover, the respect due to persons as individuals does not diminish simply because they have become incapable of participating in treatment decisions. [I]t is still possible for others to make a decision that reflects [the patient's] interests more closely than would a purely technological decision to do whatever is possible. Lacking the ability to decide, [a patient] has a right to a decision that takes his interests into account." Conservatorship of Drabick, C I do not suggest that States must sit by helplessly if the choices of incompetent patients are in danger of being ignored. See ante, at 281. Even if the Court had ruled that Missouri's rule of decision is unconstitutional, as I believe it should have, States would nevertheless remain free to fashion procedural protections to safeguard the interests of incompetents under these circumstances. The Constitution provides merely a framework here: Protections must be genuinely aimed at ensuring decisions commensurate with the will of the patient, and must be reliable as instruments to that end. Of the many States which have instituted such protections, Missouri is virtually the only one to have fashioned a rule that lessens the likelihood of accurate determinations. In contrast, nothing in the Constitution prevents States from reviewing the advisability of a family decision, by requiring a court proceeding or by appointing an impartial guardian ad litem. There are various approaches to determining an incompetent patient's treatment choice in use by the several States today, and there may be advantages and disadvantages to each and other approaches not yet envisioned. The choice, in largest part, is and should be left to the States, so long as each State is seeking, in a reliable manner, to discover what the patient would want. But with such momentous interests in the balance, States must avoid procedures that will prejudice 327 the decision. "To err either wayto keep a person alive under circumstances under which he would rather have been allowed to die, or to allow that person to die when he would have chosen to cling to lifewould be deeply unfortunate." In re Conroy, 98 N. J., at D Finally, I cannot agree with the majority that where it is not possible to determine what choice an incompetent patient would make, a State's role as parens patriae permits the State automatically to make that choice itself. See ante, at 286 (explaining that the Due Process Clause does not require a State to confide the decision to "anyone but the patient herself"). Under fair rules of evidence, it is improbable that a court could not determine what the patient's choice would be. Under the rule of decision adopted by Missouri and upheld today by this Court, such occasions might be numerous. But in neither case does it follow that it is constitutionally acceptable for the State invariably to assume the role of deciding for the patient. A State's legitimate interest in safeguarding a patient's choice cannot be furthered by simply appropriating it. The majority justifies its position by arguing that, while close family members may have a strong feeling about the question, "there is no automatic assurance that the view of close family members will necessarily be the same as the patient's would have been had she been confronted with the prospect of her situation while competent." I cannot quarrel with this observation. But it leads only to another question: Is there any reason to suppose that a State is more likely to make the choice that the patient would have made than someone who knew the patient intimately? To ask this is to answer it. As the New Jersey Supreme Court observed: "Family members are best qualified to make substituted judgments for incompetent patients not only because of their peculiar grasp of the patient's approach to life, but also 328 because of their special bonds with him or her. It is they who treat the patient as a person, rather than a symbol of a cause." In re Jobes, 108 N. J. 394, 416, 529 A.2d The State, in contrast, is a stranger to the patient. A State's inability to discern an incompetent patient's choice still need not mean that a State is rendered powerless to protect that choice. But I would find that the Due Process Clause prohibits a State from doing more than that. A State may ensure that the person who makes the decision on the patient's behalf is the one whom the patient himself would have selected to make that choice for him. And a State may exclude from consideration anyone having improper motives. But a State generally must either repose the choice with the person whom the patient himself would most likely have chosen as proxy or leave the decision to the patient's family.[23] IV As many as 10,000 patients are being maintained in persistent vegetative states in the United States, and the number is expected to increase significantly in the near future. See at 27, 31. Medical technology, developed over the past 20 or so years, is often capable of resuscitating people after they have stopped breathing or their hearts have stopped beating. Some of those people are brought fully back to life. Two decades ago, those who were not and could not swallow and digest food, died. Intravenous solutions could not provide sufficient calories to maintain people for more than a short time. Today, various forms of artificial feeding have been developed that are able to keep people metabolically alive for years, even decades. See Spencer & Palmisano, Specialized Nutritional Support of 329 Patients A Hospital's Legal Duty?, 11 Quality Rev. Bull. 160, 160-161 In addition, in this century, chronic or degenerative ailments have replaced communicable diseases as the primary causes of death. See R. Weir, Abating Treatment with Critically Ill Patients 12-13 (1989); President's Commission -16. The 80% of Americans who die in hospitals are "likely to meet their end `in a sedated or comatose state; betubed nasally, abdominally and intravenously; and far more like manipulated objects than like moral subjects.'"[24] A fifth of all adults surviving to age 80 will suffer a progressive dementing disorder prior to death. See Cohen & Eisdorfer, Dementing Disorders, in The Practice of Geriatrics 194 "[L]aw, equity and justice must not themselves quail and be helpless in the face of modern technological marvels presenting questions hitherto unthought of." In re Quinlan, 70 N. J. 10, 44, The new medical technology can reclaim those who would have been irretrievably lost a few decades ago and restore them to active lives. For Nancy Cruzan, it failed, and for others with wasting incurable disease, it may be doomed to failure. In these unfortunate situations, the bodies and preferences and memories of the victims do not escheat to the State; nor does our Constitution permit the State or any other government to commandeer them. No singularity of feeling exists upon which such a government might confidently rely as parens patriae. The President's Commission, after years of research, concluded: "In few areas of health care are people's evaluations of their experiences so varied and uniquely personal as in their assessments of the nature and value of the processes associated with dying. For some, every moment of life is of inestimable value; for others, life without *330 some desired level of mental or physical ability is worthless or burdensome. A moderate degree of suffering may be an important means of personal growth and religious experience to one person, but only frightening or despicable to another." President's Commission 276. Yet Missouri and this Court have displaced Nancy's own assessment of the processes associated with dying. They have discarded evidence of her will, ignored her values, and deprived her of the right to a decision as closely approximating her own choice as humanly possible. They have done so disingenuously in her name and openly in Missouri's own. That Missouri and this Court may truly be motivated only by concern for incompetent patients makes no matter. As one of our most prominent jurists warned us decades ago: "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." (8) I respectfully dissent.
Justice Stevens	dissenting	false	Celotex Corp. v. Edwards	1995-04-19T00:00:00	null	https://www.courtlistener.com/opinion/117920/celotex-corp-v-edwards/	https://www.courtlistener.com/api/rest/v3/clusters/117920/	1,995	1994-044	1	7	2	Today the majority holds that an Article III court erred when it allowed plaintiffs who prevailed on appeal to collect on a supersede as bond in the face of an injunction issued by a non-Article III judge. Because, in my view, the majority 314 attaches insufficient weight to the fact that the challenged injunction was issued by a non-Article III judge, I respectfully dissent. I The outlines of the problems I perceive are best drawn by starting with an examination of the injunctions and opinions issued by the Bankruptcy Judge in this case. As the majority notes, Bennie and Joann Edwards (the Edwards) won a tort judgment against Celotex Corporation for damages Bennie Edwards suffered as a result of exposure to asbestos. To stay the judgment pending appeal, Celotex arranged for Northbrook Property and Casualty Insurance Company (Northbrook) to post a supersede as bond to cover the full amount of the judgment. On October 12, 1990, before Celotex filed its voluntary petition under Chapter 11 of the Bankruptcy Code, the Court of Appeals for the Fifth Circuit affirmed the Edwards' judgment against Celotex. It is undisputed that, when the Edwards' judgment was affirmed, any property interest that Celotex retained in the supersede as bond was extinguished. The filing of Celotex's bankruptcy petition on October 12, 1990, triggered the automatic stay provisions of the Bankruptcy Code. See 11 U.S. C. § 362(a). On October 17, 1990, the Bankruptcy Judge, acting pursuant to 11 U.S. C. § 105(a),[1] supplemented the automatic stay provisions with an emergency order staying, inter alia, all proceedings "involving any of the Debtors [i. e., Celotex]." App. to Pet. for Cert. A-28. The supersede as bond filed in the Edwards' case, however, evidences an independent obligation on the part of 315 Northbrook. For that reason, neither the automatic stay of proceedings against the debtor pursuant to § 362(a) of the Bankruptcy Code nor the Bankruptcy Judge's October 17, § 105(a) stay restrained the Edwards from proceeding against Northbrook to enforce Northbrook's obligations under the bond. As the Court of Appeals correctly held, the October 17 order enjoined the prosecution of proceedings involving "the Debtors," but did not expressly enjoin the Edwards from proceeding against Northbrook. See Edwards v. Armstrong World Industries, Inc., 6 F.3d 312, 315 (CA5 1993). On May 3, 1991, the Edwards commenced their proceeding against Northbrook by filing a motion pursuant to Rule 65.1 of the Federal Rules of Civil Procedure[2] to enforce the supersedeas bond. Several weeks lateron June 13, 1991the Bankruptcy Court entered a new three-paragraph order enjoining all of Celotex's judgment creditors from collecting on their supersedeas bonds. Paragraph 1 of the order addressed creditors whose appellate process had not yet concluded. Paragraph 2 addressed creditors whose appellate process concluded only after Celotex had filed for bankruptcy. Paragraph 3 applied to judgment creditors, such as the Edwards, whose appeals had concluded before the filing of the bankruptcy petition. Paragraph 3 expressly precluded those creditors from proceeding against any bond "without first seeking to vacate the Section 105 stay entered by this Court." In re Celotex Corp., 128 B.R. 478, 485 (Bkrtcy. Ct. MD Fla. 1991). 316 The opinion supporting that order explained that Paragraphs 1 and 2 rested in part on the theory that the debtor retains a property interest in the supersedeas bonds until the appellate process was complete, and any attempt to collect on those bonds was therefore covered in the first instance by § 362(a)'s automatic stay provisions. The opinion recognized that that rationale did not cover supersedeas bonds posted in litigation with judgment creditors, such as the Edwards, whose appellate process was complete. The Bankruptcy Judge concluded, however, that § 105(a) gave him the power to stay the collection efforts of such bonded judgment creditors. The Bankruptcy Judge contended that other courts had utilized the § 105(a) stay "to preclude actions which may `impede the reorganization process,' " id. , at 483, quoting In re Johns-Manville Corp., 837 F.2d 89, 93 (CA2), cert. denied, 488 U.S. 868 (1988), or "`which will have an adverse impact on the Debtor's ability to formulate a Chapter 11 plan,' " 128 B.R., at 483, quoting A. H. Robins Co. v. Piccinin, 788 F.2d 994 (CA4), cert. denied, 479 U.S. 876 (1986). But cf. n. 12, infra. Apparently viewing his own authority as virtually limitless, the Bankruptcy Judge described a general bankruptcy power "to stop ongoing litigation and to prevent peripheral court decisions from dealing with issues . . . without first allowing the bankruptcy court to have an opportunity to review the potential effect on the debtor." 128 B.R., at 484. He concluded that in "mega" cases in which "potential conflicts with other judicial determinations" might arise, "the powers of the bankruptcy court under Section 105 must in the initial stage be absolute." Ibid. I do not agree that the powers of a bankruptcy judge, a non-Article III judge, "must . . . be absolute" at the initial stage or indeed at any stage. Instead, the jurisdiction and the power of bankruptcy judges are cabined by specific and important statutory and constitutional constraints that operate at every phase of a bankruptcy. In my view, those constraints 317 require that the judgment of the Court of Appeals be affirmed. The majority concludes that the Court of Appeals must be reversed because the Bankruptcy Judge had jurisdiction to issue the injunction and because the injunction had more than a "`frivolous pretense to validity.' " Ante, at 312. Even applying the majority's framework, I would affirm the Court of Appeals. As I will demonstrate, the constraints on the jurisdiction and authority of the Bankruptcy Judge compel the conclusion that the Bankruptcy Judge lacked jurisdiction to issue the challenged injunction, and that the injunction has only a "`frivolous pretense to validity.' " I will also explain, however, why the majority's deferential approach seems particularly inappropriate as applied to this particular injunction, now in its fifth year of preventing enforcement of supersedeas bonds lodged in an Article III court. II In my view, the Bankruptcy Judge lacked jurisdiction to issue an injunction that prevents an Article III court from allowing a judgment creditor to collect on a supersedeas bond posted in that court by a nondebtor. In reaching the contrary conclusion, the majority relies primarily on the Bankruptcy Judge's "related to" jurisdiction, and thus I will address that basis of jurisdiction first. The majority properly observes that, under 28 U.S. C. § 1334(b), the district court has broad bankruptcy jurisdiction, extending to "all civil proceedings arising under title 11, or arising in or related to cases under title 11."[3] The majority also notes correctly 318 that the Edwards' action to enforce the supersedeas bond is within the district court's "related to" jurisdiction,[4] because allowing creditors such as the Edwards "to execute immediately on the bonds would have a direct and substantial adverse effect on Celotex's ability to undergo a successful reorganization." Ante, at 310.[5] The majority then observes 319 that, under 28 U.S. C. § 157(a), the district court may "refe[r]" to the bankruptcy judge "any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11."[6] Thus, the majority concludes that, because the Edwards' action to enforce the 320 supersedeas bond was within the District Court's "related to" jurisdiction and because the District Court referred all matters to the Bankruptcy Judge, the Bankruptcy Judge had jurisdiction over the Edwards' action. In my view, the majority's approach pays insufficient attention to the remaining provisions of § 157, and, more importantly, to the decision of this Court that gave rise to their creation. The current jurisdictional structure of the Bankruptcy Code reflects this Court's decision in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), which in turn addressed the Bankruptcy Reform Act of 1978, 92 Stat. 2549. The 1978 Act significantly restructured the Bankruptcy Code. The Act created "bankruptcy courts" and vested in them "jurisdiction over all `civil proceedings arising under title 11 [the Bankruptcy title] or arising in or related to cases under title 11.' " Northern Pipeline, 458 U. S., at 54, quoting 28 U.S. C. § 1471(b) (1976 ed., Supp. IV). As the plurality opinion in Northern Pipeline observed, "[t]his jurisdictional grant empowers bankruptcy courts to entertain a wide variety of cases," involving "claims based on state law as well as those based on federal law." 458 U.S., at 54. The Act also bestowed upon the judges of the bankruptcy courts broad powers to accompany this expanded jurisdiction. See n. 6, supra; Northern Pipeline, 458 U. S., at 55. The Act did not, however, make the newly empowered bankruptcy judges Article III judges. In particular, it denied bankruptcy judges the life tenure and salary protection that the Constitution requires for Article III judges. See U. S. Const., Art. III, § 1. In Northern Pipeline, this Court held that the Act was unconstitutional, at least insofar as it allowed a non-Article III court to "entertain and decide" a purely state-law claim. 458 U.S., at 91 (Rehnquist, J., concurring in judgment); see also id. , at 86 (plurality opinion). The plurality opinion distinguished the revamped bankruptcy courts from prior 321 district court "adjuncts" which the Court had found did not violate Article III. The plurality noted that, in contrast to the narrow, specialized jurisdiction exercised by these prior adjuncts, "the subject-matter jurisdiction of the bankruptcy courts encompasses not only traditional matters of bankruptcy, but also `all civil proceedings arising under title 11 or arising in or related to cases under title 11.' " Id. , at 85. In addition, prior adjuncts "engaged in statutorily channeled factfinding functions," while the bankruptcy courts "exercise `all of the jurisdiction' conferred by the Act on the district courts."[7]Ibid. In response to Northern Pipeline, Congress passed the Bankruptcy Amendments and Federal Judgeship Act of 1984 (1984 amendments), 98 Stat. 333. Section 157 was passed as part of the 1984 amendments. Section 157 establishes two broad categories of proceedings: "core proceedings" and "[n]on-core proceedings." For "all core proceedings arising under title 11, or arising in a case under title 11, referred under [§ 157(a)]," § 157(b)(1) permits bankruptcy judges to "hear and determine" the proceedings and to "enter appropriate orders and judgments." For noncore proceedings "otherwise related to a case under title 11," § 157(c)(1) permits the bankruptcy court only to "hear" the proceedings and to "submit proposed findings of fact and conclusions of law to the district court." See 1 Collier ¶ 3.01[1][c][iv], at 3-28 ("[C]ivil proceedings `related to cases under title 11' " are "excluded from being treated as `core proceedings' by 28 U.S. C. § 157(b)(1), and are the subject of special procedures contained in section[s] 157(c)(1) and (c)(2)"). For these "related proceedings," 1 Collier ¶ 3.01[1][c][iv], at 3-28, only the 322 district court has the power to enter "any final order or judgment."[8] In my view, the distinction between the jurisdiction to "hear and determine" core proceedings on the one hand and the jurisdiction only to "hear" related proceedings on the other hand is critical, if not dispositive. I believe that the jurisdiction to hear (and yet not to determine) a case under § 157(c)(1) provides insufficient jurisdiction to a bankruptcy judge to permit him to issue a binding injunction that prevents an Article III court from exercising its conceded jurisdiction over the case.[9] The unambiguous text of § 157(c)(1) 323 requires that the bankruptcy judge's participation in related proceedings be merely advisory rather than adjudicative. In my view, having jurisdiction to grant injunctions over cases that one may not decide is inconsistent with such an advisory role. An injunction is an extraordinary remedy whose impact on private rights may be just as onerous as a final determination. The constitutional concerns that animate the current jurisdictional provisions of the Bankruptcy Code and that deny non-Article III tribunals the power to determine private controversies apply with equal force to the entry of an injunction interfering with the exercise of the admitted jurisdiction of an Article III tribunal.[10] In sum, my view on the sufficiency of "related to" jurisdiction to sustain the injunction in this case can be stated quite simply: If a bankruptcy judge lacks jurisdiction to "determine" a question, the judge also lacks jurisdiction to issue an injunction that prevents an Article III court, which concededly does have jurisdiction, from determining that question.[11]324 Any conclusion to the contrary would trivialize the constitutional imperatives that shaped the Bankruptcy Code's jurisdictional provisions.[12] III Petitioner and the majority rely primarily on "related to" jurisdiction. Indeed, the Court's holding appears to rest almost entirely on the view that a bankruptcy judge has jurisdiction to enjoin proceedings in Article III courts whenever those proceedings are "related to" a pending Title 11 case. See ante, at 307-311. Two footnotes in the Court's opinion, however, might be read as suggesting alternative bases of 325 jurisdiction. See ante, at 304-305, n. 4, 311, n. 8. Those two footnotes require a brief response. In footnote 4 of its opinion, the Court refers to two different claims advanced by Celotex in the bankruptcy proceedings: a claim that "the bonded judgment creditors should not be able to execute on their bonds because, by virtue of the collateralization of the bonds, the bonded judgment creditors are beneficiaries of Celotex asset transfers that are voidable as preferences and fraudulent transfers"; and a claim that "the punitive damages portions of the judgments can be voided or subordinated." There is little doubt that those claims are properly characterized as ones "arising under" Title 11 within the meaning of 28 U.S. C. § 1334(b);[13] however, it does not necessarily follow from that characterization that the Bankruptcy Judge had jurisdiction to issue the injunction in support of the prosecution of those claims. Celotex's complaint was not filed until months after the Bankruptcy Judge's injunction issued. The claims raised in that complaint cannot retroactively provide a jurisdictional basis for the Bankruptcy Judge's injunction. Moreover, Celotex's attempts to set aside the Edwards' supersedeas bond are patently meritless. It strains credulity, 326 to suggest that a supersedeas bond, posted almost a year and a half before the bankruptcy petition was filed, could be set aside as a preference or as a fraudulent transfer for the benefit of Celotex's adversaries in bitterly contested litigation. Conceivably, Celotex's provision of security to Northbrook might be voidable, but that possibility could not impair the rights of the judgment creditors to enforce the bond against Northbrook even though they might be unwitting beneficiaries of the fraud. That possibility, at most, would be relevant to the respective claims of Northbrook and Celotex to the pledged collateral. Similarly, the fact that the Edwards' judgment included punitive as well as compensatory damages does not provide even an arguable basis for reducing Northbrook's obligations under the supersedeas bond. Even if there is a basis for subordinating a portion of Northbrook's eventual claim against Celotex on "bankruptcy law grounds," that has nothing to do with the Edwards' claim against Northbrook. It thus seems obvious that, at least with respect to the Edwards, Celotex has raised frivolous claims in an attempt to manufacture bankruptcy jurisdiction and thereby to justify a bankruptcy judge's injunction that had been issued over one year earlier. Cf. Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 191-192 (1909) ("Of course, the Federal question must not be merely colorable or fraudulently set up for the mere purpose of endeavoring to give the court jurisdiction"). In its footnote 8, the Court appears to suggest that the injunction prohibiting the Edwards from proceeding against Northbrook (described in the footnote as the "stay proceeding") may "aris[e] under" Title 11 or may "arise in" the Title 11 case. Perhaps this is accurate in a literal sense: The injunction did, of course, "arise under" Title 11 because 11 U.S. C. § 105(a) created whatever power the Bankruptcy Judge had to issue the injunction. Similarly, the injunction "arises in" the Title 11 case because that is where it originated. It cannot be the law, however, that a bankruptcy 327 judge has jurisdiction to enter any conceivable order that a party might request simply because § 105(a) authorizes some injunctions or because the request was first made in a pending Title 11 case. Cf. 2 Collier ¶ 105.01[1], at 105-3 (Section 105 "is not an independent source of jurisdiction, but rather it grants the courts flexibility to issue orders which preserve and protect their jurisdiction"). The mere filing of a motion for a § 105 injunction to enjoin a proceeding in another forum cannot be a jurisdictional bootstrap enabling a bankruptcy judge to exercise jurisdiction that would not otherwise exist. IV Even if I believed that the Bankruptcy Judge had jurisdiction to issue his injunction, I would still affirm the Court of Appeals because in my view the Bankruptcy Judge's injunction has only a "frivolous pretense to validity." In 1898, Congress codified the bankruptcy laws. Under the 1898 Bankruptcy Act, most bankruptcy proceedings were conducted by "referees" who resolved controversies involving property in the actual or constructive possession of the court, as well as certain disputes involving property in the possession of third parties. In § 2(a)(15) of the 1898 Act, Congress vested in bankruptcy courts the power to: "[M]ake such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this Act." Act of July 1, 1898, 30 Stat. 546. In 1938, Congress clarified both the powers and the limitations on the injunctive authority of referees in bankruptcy by adding to the end of § 2(a)(15), "Provided, however, That an injunction to restrain a court may be issued by the judge only." 52 Stat. 843 (emphasis in original). In 1978, through the Bankruptcy Reform Act, Congress significantly revised the Bankruptcy Code and the role of 328 bankruptcy referees.[14] Though stopping short of making bankruptcy referees Article III judges, Congress significantly increased the status, the duties, and the powers of those referees. For example, as we noted in Northern Pipeline, the expanded powers under the new Act included "the power to hold jury trials, . . . to issue declaratory judgments, [and] to issue writs of habeas corpus under certain circumstances." 458 U.S., at 55. In addition, Congress again provided for broad injunctive powers. Thus, for example, in the place of § 2(a)(15), Congress added 11 U.S. C. § 105, which provided in relevant part: "The [bankruptcy court] may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title." See also 458 U.S., at 55 ("Congress has allowed bankruptcy judges the power . . . to issue all writs necessary in aid of the bankruptcy court's expanded jurisdiction"). Once again, however, along with both this marked expansion of the power of bankruptcy judges and the broad delegation of injunctive authority, Congress indicated its intent to limit the power of those judges to enjoin other courts: Although Congress provided that "[a] bankruptcy court shall have the powers of a court of equity, law, and admiralty," it also provided that bankruptcy courts "may not enjoin another court." 28 U.S. C. § 1481 (1982 ed.).[15] Thus, for well over 50 years prior to the adoption of the 1984 amendments to the Bankruptcy Code, it was clear that Congress intended to deny bankruptcy judges the power to enjoin other courts. 329 The 1984 amendments, inter alia, repealed § 1481 (and its express limitation on injunctive authority), leaving § 105 as the only source of the bankruptcy judge's injunctive authority.[16] Given that Northern Pipeline required a contraction in the authority of bankruptcy judges,[17] and given that the 1984 amendments regarding the powers of the bankruptcy courts were passed to comply with Northern Pipeline,[18] it would be perverseand in my view "frivolous"to contend that Congress intended the repeal of § 1481 to operate as an authorization for those judges to enjoin proceedings in other courts, thus significantly expanding the powers of bankruptcy judges. My view of the consequence of the 1984 amendments is reinforced by the structure of § 1481. When Congress placed restrictions on the injunctive power of the bankruptcy courts, it did so in § 1481, right after the clause granting those courts "the powers of a court of equity, law, and admiralty." In my view, this suggests that Congress saw § 1481and not § 105(a)as the source of any power to enjoin other courts. Thus, the removal of § 1481 by the 1984 amendments is properly viewed as eliminating the sole source of congressionally granted authority to enjoin other courts. Cf. In re Hipp, 895 F.2d 1503, 1515-1516 (CA5 1990) (concluding on similar reasoning that § 1481, not § 105(a), was the source of the bankruptcy court's power to punish criminal contempt under the 1978 Act). 330 Nor does anything in the 1986 amendments to the Bankruptcy Code alter my analysis.[19] The primary effect of those amendments was to give the bankruptcy judges the power to issue orders sua sponte.[20] The 1986 amendments, therefore, do not reflect any expansion of the power of Bankruptcy Judges to enjoin other courts. The Bankruptcy Judge's error with respect to this injunction thus seems clear, and the injunction falls, therefore, within the exception recognized by the majority for injunctions with only a "frivolous pretense to validity." I recognize, of course, that one may legitimately question the "frivolousness" of the injunction in light of the Fourth Circuit's upholding the very injunction at issue in this case, see Willis v. Celotex Corp., 978 F.2d 146 (1992), cert. denied, 507 U.S. 1030 (1993), and the disagreement of a substantial number of my colleagues. In my view, however, the Bankruptcy Judge's error is sufficiently plain that the Court of Appeals was justified in allowing the Edwards to collect on their bond.[21] 331 V The Court's holding today rests largely on its view that the Edwards' proper remedy is to appeal the Bankruptcy Judge's injunction, first to the District Court and then to the Court of Appeals for the Eleventh Circuit. The Court concedes, however, that the Edwards need not do so if the Bankruptcy Judge exceeded his jurisdiction, or if the injunction is supported by nothing more than "a frivolous pretense to validity." Ante, at 312. For the reasons already stated, I think both of those conditions are satisfied in this case. The non-Article III Bankruptcy Judge simply lacked both jurisdiction and authority to prevent an Article III court from exercising its unquestioned jurisdiction to decide a matter that is related only indirectly to the bankruptcy proceeding. I think it important, however, to add a few brief words explaining why I find this injunction especially troubling and why the injunction should be viewed with a particularly critical eye. First, the justification offered by the Bankruptcy Judge should give the Court pause. As originally articulated, the justification for this injunction was that emergency relief was required lest the reorganization of Celotex become impossible and liquidation follow. Apart from the fact that the "emergency" rationale is plainly insufficient to support an otherwise improper injunction that has now lasted for more than four years, the judge's reasoning reveals reliance on the misguided notion that a good end is a sufficient justification for the existence and exercise of power. His reference to the need to exercise "absolute" power to override "potential conflicts with other judicial determinations" that might have a "potential impact on the debtor" should invite far 332 more exacting scrutiny of his order than the Court deems appropriate. Second, that the subject of the injunction was a supersedeas bond makes the injunction suspect. A supersedeas bond may be viewed as putting the integrity of the court in which it is lodged on the line. As the Court of Appeals noted, the Edwards were "promised by the court" that the supersedeas bond would be available if they prevailed on appeal. 6 F.3d, at 320. For that reason, in my opinion, questions relating to the enforceability of a supersedeas bond should generally be answered in the forum in which the bond is posted. Moreover, whenever possible, such questions should be resolved before the court accepts the bond as security for collection of the judgment being appealed. After a debtor has benefited from the postponement of collection of an adverse judgment, both that debtor and its successors in interest should normally be estopped from asserting that the judgment creditors who relied to their detriment on the validity of the bond had no right to do so. The very purpose of a supersedeas bond is to protect judgment creditors from the risk that insolvency of the debtor may impair their ability to enforce the judgment promptly. When the bond has served the purpose of forestalling immediate levies on the judgment debtor's assetslevies that might have precipitated an earlier bankruptcyit is inequitable to postpone payment merely because the risk against which the bond was intended to provide protection has actually occurred. See id. , at 319 ("It is manifestly unfair to force the judgment creditor to delay the right to collect with a promise to protect the judgment only to later refuse to allow that successful plaintiff to execute the bond because the debtor has sought protection under the laws of bankruptcy"); In re Southmark, 138 B.R. 820, 827-828 (Bkrtcy. Ct. ND Tex. 1992) (internal quotation marks omitted) ("The principal risk against which such bonds are intended as a protection is insolvency. To hold 333 that the very contingency against which they guard shall, if it happens, discharge them, seems to us bad law and worse logic"). The inequity that the Court today condones does not, of course, demonstrate that its legal analysis is incorrect. It does, however, persuade me that the Court should not review this case as though it presented an ordinary collateral attack on an injunction entered by an Article III court.[22] Instead, the Court should, I believe, more carefully consider which of the two competing tribunals is guilty of trespassing in the other's domain. Accordingly, I respectfully dissent.	Today the majority holds that an Article III court erred when it allowed plaintiffs who prevailed on appeal to collect on a supersede as bond in the face of an injunction issued by a non-Article III judge. Because, in my view, the majority 314 attaches insufficient weight to the fact that the challenged injunction was issued by a non-Article III judge, I respectfully dissent. I The outlines of the problems I perceive are best drawn by starting with an examination of the injunctions and opinions issued by the Bankruptcy Judge in this case. As the majority notes, Bennie and Joann Edwards (the Edwards) won a tort judgment against Celotex Corporation for damages Bennie Edwards suffered as a result of exposure to asbestos. To stay the judgment pending appeal, Celotex arranged for Northbrook Property and Casualty Insurance Company (Northbrook) to post a supersede as bond to cover the full amount of the judgment. On October 12, before Celotex filed its voluntary petition under Chapter 11 of the Bankruptcy Code, the Court of Appeals for the Fifth Circuit affirmed the Edwards' judgment against Celotex. It is undisputed that, when the Edwards' judgment was affirmed, any property interest that Celotex retained in the supersede as bond was extinguished. The filing of Celotex's bankruptcy petition on October 12, triggered the automatic stay provisions of the Bankruptcy Code. See 11 U.S. C. 32(a). On October 17, the Bankruptcy Judge, acting pursuant to 11 U.S. C. 105(a),[1] supplemented the automatic stay provisions with an emergency order staying, inter alia, all proceedings "involving any of the Debtors [i. e., Celotex]." App. to Pet. for Cert. A-28. The supersede as bond filed in the Edwards' case, however, evidences an independent obligation on the part of Northbrook. For that reason, neither the automatic stay of proceedings against the debtor pursuant to 32(a) of the Bankruptcy Code nor the Bankruptcy Judge's October 17, 105(a) stay restrained the Edwards from proceeding against Northbrook to enforce Northbrook's obligations under the bond. As the Court of Appeals correctly held, the October 17 order enjoined the prosecution of proceedings involving "the Debtors," but did not expressly enjoin the Edwards from proceeding against Northbrook. See On May 3, the Edwards commenced their proceeding against Northbrook by filing a motion pursuant to Rule 5.1 of the Federal Rules of Civil Procedure[2] to enforce the supersedeas bond. Several weeks lateron June 13, the Bankruptcy Court entered a new three-paragraph order enjoining all of Celotex's judgment creditors from collecting on their supersedeas bonds. Paragraph 1 of the order addressed creditors whose appellate process had not yet concluded. Paragraph 2 addressed creditors whose appellate process concluded only after Celotex had filed for bankruptcy. Paragraph 3 applied to judgment creditors, such as the Edwards, whose appeals had concluded before the filing of the bankruptcy petition. Paragraph 3 expressly precluded those creditors from proceeding against any bond "without first seeking to vacate the Section 105 stay entered by this Court." In re Celotex Corp., 31 The opinion supporting that order explained that Paragraphs 1 and 2 rested in part on the theory that the debtor retains a property interest in the supersedeas bonds until the appellate process was complete, and any attempt to collect on those bonds was therefore covered in the first instance by 32(a)'s automatic stay provisions. The opinion recognized that that rationale did not cover supersedeas bonds posted in litigation with judgment creditors, such as the Edwards, whose appellate process was complete. The Bankruptcy Judge concluded, however, that 105(a) gave him the power to stay the collection efforts of such bonded judgment creditors. The Bankruptcy Judge contended that other courts had utilized the 105(a) stay "to preclude actions which may `impede the reorganization process,' " at 483, quoting In re Johns-Manville Corp., (CA2), cert. denied, or "`which will have an adverse impact on the Debtor's ability to formulate a Chapter 11 plan,' " quoting A. H. Robins (CA4), cert. denied, But cf. n. 12, infra. Apparently viewing his own authority as virtually limitless, the Bankruptcy Judge described a general bankruptcy power "to stop ongoing litigation and to prevent peripheral court decisions from dealing with issues without first allowing the bankruptcy court to have an opportunity to review the potential effect on the debtor." He concluded that in "mega" cases in which "potential conflicts with other judicial determinations" might arise, "the powers of the bankruptcy court under Section 105 must in the initial stage be absolute." Ib I do not agree that the powers of a bankruptcy judge, a non-Article III judge, "must be absolute" at the initial stage or indeed at any stage. Instead, the jurisdiction and the power of bankruptcy judges are cabined by specific and important statutory and constitutional constraints that operate at every phase of a bankruptcy. In my view, those constraints 317 require that the judgment of the Court of Appeals be affirmed. The majority concludes that the Court of Appeals must be reversed because the Bankruptcy Judge had jurisdiction to issue the injunction and because the injunction had more than a "`frivolous pretense to validity.' " Ante, at 312. Even applying the majority's framework, I would affirm the Court of Appeals. As I will demonstrate, the constraints on the jurisdiction and authority of the Bankruptcy Judge compel the conclusion that the Bankruptcy Judge lacked jurisdiction to issue the challenged injunction, and that the injunction has only a "`frivolous pretense to validity.' " I will explain, however, why the majority's deferential approach seems particularly inappropriate as applied to this particular injunction, now in its fifth year of preventing enforcement of supersedeas bonds lodged in an Article III court. II In my view, the Bankruptcy Judge lacked jurisdiction to issue an injunction that prevents an Article III court from allowing a judgment creditor to collect on a supersedeas bond posted in that court by a nondebtor. In reaching the contrary conclusion, the majority relies primarily on the Bankruptcy Judge's "related to" jurisdiction, and thus I will address that basis of jurisdiction first. The majority properly observes that, under 28 U.S. C. 1334(b), the district court has broad bankruptcy jurisdiction, extending to "all civil proceedings arising under title 11, or arising in or related to cases under title 11."[3] The majority notes correctly 318 that the Edwards' action to enforce the supersedeas bond is within the district court's "related to" jurisdiction,[4] because allowing creditors such as the Edwards "to execute immediately on the bonds would have a direct and substantial adverse effect on Celotex's ability to undergo a successful reorganization." Ante, at 310.[5] The majority then observes 319 that, under 28 U.S. C. 157(a), the district court may "refe[r]" to the bankruptcy judge "any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11."[] Thus, the majority concludes that, because the Edwards' action to enforce the 320 supersedeas bond was within the District Court's "related to" jurisdiction and because the District Court referred all matters to the Bankruptcy Judge, the Bankruptcy Judge had jurisdiction over the Edwards' action. In my view, the majority's approach pays insufficient attention to the remaining provisions of 157, and, more importantly, to the decision of this Court that gave rise to their creation. The current jurisdictional structure of the Bankruptcy Code reflects this Court's decision in Northern Constr. which in turn addressed the Bankruptcy Reform Act of 1978, The 1978 Act significantly restructured the Bankruptcy Code. The Act created "bankruptcy courts" and vested in them "jurisdiction over all `civil proceedings arising under title 11 [the Bankruptcy title] or arising in or related to cases under title 11.' " Northern quoting 28 U.S. C. 1471(b) (197 ed., Supp. IV). As the plurality opinion in Northern observed, "[t]his jurisdictional grant empowers bankruptcy courts to entertain a wide variety of cases," involving "claims based on state law as well as those based on federal law." The Act bestowed upon the judges of the bankruptcy courts broad powers to accompany this expanded jurisdiction. See n. Northern The Act did not, however, make the newly empowered bankruptcy judges Article III judges. In particular, it denied bankruptcy judges the life tenure and salary protection that the Constitution requires for Article III judges. See U. S. Const., Art. III, 1. In Northern this Court held that the Act was unconstitutional, at least insofar as it allowed a non-Article III court to "entertain and decide" a purely state-law ; see at 8 (plurality opinion). The plurality opinion distinguished the revamped bankruptcy courts from prior 321 district court "adjuncts" which the Court had found did not violate Article III. The plurality noted that, in contrast to the narrow, specialized jurisdiction exercised by these prior adjuncts, "the subject-matter jurisdiction of the bankruptcy courts encompasses not only traditional matters of bankruptcy, but `all civil proceedings arising under title 11 or arising in or related to cases under title 11.' " at 85. In addition, prior adjuncts "engaged in statutorily channeled factfinding functions," while the bankruptcy courts "exercise `all of the jurisdiction' conferred by the Act on the district courts."[7]Ib In response to Northern Congress passed the Bankruptcy Amendments and Federal Judgeship Act of 1984 (1984 amendments), Section 157 was passed as part of the 1984 amendments. Section 157 establishes two broad categories of proceedings: "core proceedings" and "[n]on-core proceedings." For "all core proceedings arising under title 11, or arising in a case under title 11, referred under [ 157(a)]," 157(b)(1) permits bankruptcy judges to "hear and determine" the proceedings and to "enter appropriate orders and judgments." For noncore proceedings "otherwise related to a case under title 11," 157(c)(1) permits the bankruptcy court only to "hear" the proceedings and to "submit proposed findings of fact and conclusions of law to the district court." See 1 Collier ¶ 3.01[1][c][iv], at 3-28 ("[C]ivil proceedings `related to cases under title 11' " are "excluded from being treated as `core proceedings' by 28 U.S. C. 157(b)(1), and are the subject of special procedures contained in section[s] 157(c)(1) and (c)(2)"). For these "related proceedings," 1 Collier ¶ 3.01[1][c][iv], at 3-28, only the 322 district court has the power to enter "any final order or judgment."[8] In my view, the distinction between the jurisdiction to "hear and determine" core proceedings on the one hand and the jurisdiction only to "hear" related proceedings on the other hand is critical, if not dispositive. I believe that the jurisdiction to hear (and yet not to determine) a case under 157(c)(1) provides insufficient jurisdiction to a bankruptcy judge to permit him to issue a binding injunction that prevents an Article III court from exercising its conceded jurisdiction over the case.[9] The unambiguous text of 157(c)(1) 323 requires that the bankruptcy judge's participation in related proceedings be merely advisory rather than adjudicative. In my view, having jurisdiction to grant injunctions over cases that one may not decide is inconsistent with such an advisory role. An injunction is an extraordinary remedy whose impact on private rights may be just as onerous as a final determination. The constitutional concerns that animate the current jurisdictional provisions of the Bankruptcy Code and that deny non-Article III tribunals the power to determine private controversies apply with equal force to the entry of an injunction interfering with the exercise of the admitted jurisdiction of an Article III tribunal.[10] In sum, my view on the sufficiency of "related to" jurisdiction to sustain the injunction in this case can be stated quite simply: If a bankruptcy judge lacks jurisdiction to "determine" a question, the judge lacks jurisdiction to issue an injunction that prevents an Article III court, which concededly does have jurisdiction, from determining that question.[11]324 Any conclusion to the contrary would trivialize the constitutional imperatives that shaped the Bankruptcy Code's jurisdictional provisions.[12] III Petitioner and the majority rely primarily on "related to" jurisdiction. Indeed, the Court's holding appears to rest almost entirely on the view that a bankruptcy judge has jurisdiction to enjoin proceedings in Article III courts whenever those proceedings are "related to" a pending Title 11 case. See ante, at 307-311. Two footnotes in the Court's opinion, however, might be read as suggesting alternative bases of 325 jurisdiction. See ante, at 304-305, n. 4, 311, n. 8. Those two footnotes require a brief response. In footnote 4 of its opinion, the Court refers to two different claims advanced by Celotex in the bankruptcy proceedings: a claim that "the bonded judgment creditors should not be able to execute on their bonds because, by virtue of the collateralization of the bonds, the bonded judgment creditors are beneficiaries of Celotex asset transfers that are voidable as preferences and fraudulent transfers"; and a claim that "the punitive damages portions of the judgments can be voided or subordinated." There is little doubt that those claims are properly characterized as ones "arising under" Title 11 within the meaning of 28 U.S. C. 1334(b);[13] however, it does not necessarily follow from that characterization that the Bankruptcy Judge had jurisdiction to issue the injunction in support of the prosecution of those claims. Celotex's complaint was not filed until months after the Bankruptcy Judge's injunction issued. The claims raised in that complaint cannot retroactively provide a jurisdictional basis for the Bankruptcy Judge's injunction. Moreover, Celotex's attempts to set aside the Edwards' supersedeas bond are patently meritless. It strains credulity, 32 to suggest that a supersedeas bond, posted almost a year and a half before the bankruptcy petition was filed, could be set aside as a preference or as a fraudulent transfer for the benefit of Celotex's adversaries in bitterly contested litigation. Conceivably, Celotex's provision of security to Northbrook might be voidable, but that possibility could not impair the rights of the judgment creditors to enforce the bond against Northbrook even though they might be unwitting beneficiaries of the fraud. That possibility, at most, would be relevant to the respective claims of Northbrook and Celotex to the pledged collateral. Similarly, the fact that the Edwards' judgment included punitive as well as compensatory damages does not provide even an arguable basis for reducing Northbrook's obligations under the supersedeas bond. Even if there is a basis for subordinating a portion of Northbrook's eventual claim against Celotex on "bankruptcy law grounds," that has nothing to do with the Edwards' claim against Northbrook. It thus seems obvious that, at least with respect to the Edwards, Celotex has raised frivolous claims in an attempt to manufacture bankruptcy jurisdiction and thereby to justify a bankruptcy judge's injunction that had been issued over one year earlier. Cf. In its footnote 8, the Court appears to suggest that the injunction prohibiting the Edwards from proceeding against Northbrook (described in the footnote as the "stay proceeding") may "aris[e] under" Title 11 or may "arise in" the Title 11 case. Perhaps this is accurate in a literal sense: The injunction did, of course, "arise under" Title 11 because 11 U.S. C. 105(a) created whatever power the Bankruptcy Judge had to issue the injunction. Similarly, the injunction "arises in" the Title 11 case because that is where it originated. It cannot be the law, however, that a bankruptcy 327 judge has jurisdiction to enter any conceivable order that a party might request simply because 105(a) authorizes some injunctions or because the request was first made in a pending Title 11 case. Cf. 2 Collier ¶ 105.01[1], at 105-3 (Section 105 "is not an independent source of jurisdiction, but rather it grants the courts flexibility to issue orders which preserve and protect their jurisdiction"). The mere filing of a motion for a 105 injunction to enjoin a proceeding in another forum cannot be a jurisdictional bootstrap enabling a bankruptcy judge to exercise jurisdiction that would not otherwise exist. IV Even if I believed that the Bankruptcy Judge had jurisdiction to issue his injunction, I would still affirm the Court of Appeals because in my view the Bankruptcy Judge's injunction has only a "frivolous pretense to validity." In 1898, Congress codified the bankruptcy laws. Under the 1898 Bankruptcy Act, most bankruptcy proceedings were conducted by "referees" who resolved controversies involving property in the actual or constructive possession of the court, as well as certain disputes involving property in the possession of third parties. In 2(a)(15) of the 1898 Act, Congress vested in bankruptcy courts the power to: "[M]ake such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this Act." Act of July 1, 1898, 30 Stat. 54. In 18, Congress clarified both the powers and the limitations on the injunctive authority of referees in bankruptcy by adding to the end of 2(a)(15), "Provided, however, That an injunction to restrain a court may be issued by the judge only." In 1978, through the Bankruptcy Reform Act, Congress significantly revised the Bankruptcy Code and the role of 328 bankruptcy referees.[14] Though stopping short of making bankruptcy referees Article III judges, Congress significantly increased the status, the duties, and the powers of those referees. For example, as we noted in Northern the expanded powers under the new Act included "the power to hold jury trials, to issue declaratory judgments, [and] to issue writs of habeas corpus under certain circumstances." In addition, Congress again provided for broad injunctive powers. Thus, for example, in the place of 2(a)(15), Congress added 11 U.S. C. 105, which provided in relevant part: "The [bankruptcy court] may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title." See Once again, however, along with both this marked expansion of the power of bankruptcy judges and the broad delegation of injunctive authority, Congress indicated its intent to limit the power of those judges to enjoin other courts: Although Congress provided that "[a] bankruptcy court shall have the powers of a court of equity, law, and admiralty," it provided that bankruptcy courts "may not enjoin another court." 28 U.S. C. 1481 (1982 ed.).[15] Thus, for well over 50 years prior to the adoption of the 1984 amendments to the Bankruptcy Code, it was clear that Congress intended to deny bankruptcy judges the power to enjoin other courts. 329 The 1984 amendments, inter alia, repealed 1481 (and its express limitation on injunctive authority), leaving 105 as the only source of the bankruptcy judge's injunctive authority.[1] Given that Northern required a contraction in the authority of bankruptcy judges,[17] and given that the 1984 amendments regarding the powers of the bankruptcy courts were passed to comply with Northern[18] it would be perverseand in my view "frivolous"to contend that Congress intended the repeal of 1481 to operate as an authorization for those judges to enjoin proceedings in other courts, thus significantly expanding the powers of bankruptcy judges. My view of the consequence of the 1984 amendments is reinforced by the structure of 1481. When Congress placed restrictions on the injunctive power of the bankruptcy courts, it did so in 1481, right after the clause granting those courts "the powers of a court of equity, law, and admiralty." In my view, this suggests that Congress saw 1481and not 105(a)as the source of any power to enjoin other courts. Thus, the removal of 1481 by the 1984 amendments is properly viewed as eliminating the sole source of congressionally granted authority to enjoin other courts. Cf. In re Hipp, 1515-151 (concluding on similar reasoning that 1481, not 105(a), was the source of the bankruptcy court's power to punish criminal contempt under the 1978 Act). 330 Nor does anything in the 198 amendments to the Bankruptcy Code alter my analysis.[19] The primary effect of those amendments was to give the bankruptcy judges the power to issue orders sua sponte.[20] The 198 amendments, therefore, do not reflect any expansion of the power of Bankruptcy Judges to enjoin other courts. The Bankruptcy Judge's error with respect to this injunction thus seems clear, and the injunction falls, therefore, within the exception recognized by the majority for injunctions with only a "frivolous pretense to validity." I recognize, of course, that one may legitimately question the "frivolousness" of the injunction in light of the Fourth Circuit's upholding the very injunction at issue in this case, see 978 F.2d 14 cert. denied, and the disagreement of a substantial number of my colleagues. In my view, however, the Bankruptcy Judge's error is sufficiently plain that the Court of Appeals was justified in allowing the Edwards to collect on their bond.[21] 331 V The Court's holding today rests largely on its view that the Edwards' proper remedy is to appeal the Bankruptcy Judge's injunction, first to the District Court and then to the Court of Appeals for the Eleventh Circuit. The Court concedes, however, that the Edwards need not do so if the Bankruptcy Judge exceeded his jurisdiction, or if the injunction is supported by nothing more than "a frivolous pretense to validity." Ante, at 312. For the reasons already stated, I think both of those conditions are satisfied in this case. The non-Article III Bankruptcy Judge simply lacked both jurisdiction and authority to prevent an Article III court from exercising its unquestioned jurisdiction to decide a matter that is related only indirectly to the bankruptcy proceeding. I think it important, however, to add a few brief words explaining why I find this injunction especially troubling and why the injunction should be viewed with a particularly critical eye. First, the justification offered by the Bankruptcy Judge should give the Court pause. As originally articulated, the justification for this injunction was that emergency relief was required lest the reorganization of Celotex become impossible and liquidation follow. Apart from the fact that the "emergency" rationale is plainly insufficient to support an otherwise improper injunction that has now lasted for more than four years, the judge's reasoning reveals reliance on the misguided notion that a good end is a sufficient justification for the existence and exercise of power. His reference to the need to exercise "absolute" power to override "potential conflicts with other judicial determinations" that might have a "potential impact on the debtor" should invite far 332 more exacting scrutiny of his order than the Court deems appropriate. Second, that the subject of the injunction was a supersedeas bond makes the injunction suspect. A supersedeas bond may be viewed as putting the integrity of the court in which it is lodged on the line. As the Court of Appeals noted, the Edwards were "promised by the court" that the supersedeas bond would be available if they prevailed on F.3d, at 320. For that reason, in my opinion, questions relating to the enforceability of a supersedeas bond should generally be answered in the forum in which the bond is posted. Moreover, whenever possible, such questions should be resolved before the court accepts the bond as security for collection of the judgment being appealed. After a debtor has benefited from the postponement of collection of an adverse judgment, both that debtor and its successors in interest should normally be estopped from asserting that the judgment creditors who relied to their detriment on the validity of the bond had no right to do so. The very purpose of a supersedeas bond is to protect judgment creditors from the risk that insolvency of the debtor may impair their ability to enforce the judgment promptly. When the bond has served the purpose of forestalling immediate levies on the judgment debtor's assetslevies that might have precipitated an earlier bankruptcyit is inequitable to postpone payment merely because the risk against which the bond was intended to provide protection has actually occurred. See at 319 ("It is manifestly unfair to force the judgment creditor to delay the right to collect with a promise to protect the judgment only to later refuse to allow that successful plaintiff to execute the bond because the debtor has sought protection under the laws of bankruptcy"); In re Southmark, ("The principal risk against which such bonds are intended as a protection is insolvency. To hold 333 that the very contingency against which they guard shall, if it happens, discharge them, seems to us bad law and worse logic"). The inequity that the Court today condones does not, of course, demonstrate that its legal analysis is incorrect. It does, however, persuade me that the Court should not review this case as though it presented an ordinary collateral attack on an injunction entered by an Article III court.[22] Instead, the Court should, I believe, more carefully consider which of the two competing tribunals is guilty of trespassing in the other's domain. Accordingly, I respectfully dissent.
Justice Stewart	concurring	false	Administrator, Federal Aviation Administration v. Robertson	1975-06-24T00:00:00	null	https://www.courtlistener.com/opinion/109293/administrator-federal-aviation-administration-v-robertson/	https://www.courtlistener.com/api/rest/v3/clusters/109293/	1,975	1974-131	1	7	2	Exemption 3 of the Freedom of Information Act, 5 U.S. C. § 552 (b) (3), provides for nondisclosure of "matters that are . . . specifically exempted from disclosure by statute." Section 1104 of the Federal Aviation Act of 1958, 72 Stat. 797, 49 U.S. C. § 1504, specifically provides that when "[a]ny person" objects to the public disclosure of certain information, "the Board or Administrator shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public." The Court today rules that information may be withheld under § 1104 by reason of Exemption 3. Legislation of unusually broad scope often reflects reconciliation of conflicting values and policies. On occasion, therefore, particular provisions of such legislation may seem at odds with its basic purpose. But when the statutory language is relatively clear and the legislative history casts no serious doubt, the only appropriate judicial course is to give effect to the evident legislative intent. So it is here. The Freedom of Information Act was enacted in order to impose objective and easily applicable statutory disclosure standards in place of relatively amorphous standards such as the "public interest," behind which the most self-serving motives for nondisclosure of information could be concealed. EPA v. Mink, 410 U.S. 73, 79 (1973); and see, e. g., S. Rep. No. 813, 269 89th Cong., 1st Sess., 3 (1965). But it seems equally clear that Congress intended to leave largely undisturbed existing statutes dealing with the disclosure of information by specific agencies. See, e. g., H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966). Simply stated, the respondents' position is that to allow administrative discretion under a general "public interest" standard to determine whether information shall be disclosed to the public is inconsistent with the general thrust of the Freedom of Information Act. For this Court to accept that position, it must accept its inevitable corollary: that by enacting the Freedom of Information Act, Congress intended to repeal, by implication alone, those statutes that make disclosure a matter of agency discretion.[1] It simply is impossible fairly to discern any such intention on the part of Congress. There is no evidence of such an intention in either the statutory language or the legislative history, and there are strong intimations to the contrary. See ante, at 263-265. Our role is to interpret statutory language, not to revise it. As matters now stand, when an agency asserts a right to withhold information based on a specific 270 statute of the kind described in Exemption 3, the only question "to be determined in a district court's de novo inquiry is the factual existence of such a statute, regardless of how unwise, self-protective, or inadvertent the enactment might be."[2]EPA v. Mink, supra, at 95 n. (STEWART, J., concurring). On this basis, I concur in the judgment of the Court.	Exemption 3 of the Freedom of Information Act, 5 U.S. C. 552 (b) (3), provides for nondisclosure of "matters that are specifically exempted from disclosure by statute." Section 1104 of the Federal Aviation Act of 1958, 49 U.S. C. 1504, specifically provides that when "[a]ny person" objects to the public disclosure of certain information, "the Board or Administrator shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public." The Court today rules that information may be withheld under 1104 by reason of Exemption 3. Legislation of unusually broad scope often reflects reconciliation of conflicting values and policies. On occasion, therefore, particular provisions of such legislation may seem at odds with its basic purpose. But when the statutory language is relatively clear and the legislative history casts no serious doubt, the only appropriate judicial course is to give effect to the evident legislative intent. So it is here. The Freedom of Information Act was enacted in order to impose objective and easily applicable statutory disclosure standards in place of relatively amorphous standards such as the "public interest," behind which the most self-serving motives for nondisclosure of information could be concealed. ; and see, e. g., S. Rep. No. 813, 269 89th Cong., 1st Sess., 3 (1965). But it seems equally clear that Congress intended to leave largely undisturbed existing statutes dealing with the disclosure of information by specific agencies. See, e. g., H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966). Simply stated, the respondents' position is that to allow administrative discretion under a general "public interest" standard to determine whether information shall be disclosed to the public is inconsistent with the general thrust of the Freedom of Information Act. For this Court to accept that position, it must accept its inevitable corollary: that by enacting the Freedom of Information Act, Congress intended to repeal, by implication alone, those statutes that make disclosure a matter of agency discretion.[1] It simply is impossible fairly to discern any such intention on the part of Congress. There is no evidence of such an intention in either the statutory language or the legislative history, and there are strong intimations to the contrary. See ante, at 263-265. Our role is to interpret statutory language, not to revise it. As matters now stand, when an agency asserts a right to withhold information based on a specific 270 statute of the kind described in Exemption 3, the only question "to be determined in a district court's de novo inquiry is the factual existence of such a statute, regardless of how unwise, self-protective, or inadvertent the enactment might be."[2], at 95 n. (STEWART, J., concurring). On this basis, I concur in the judgment of the Court.
Justice White	concurring	false	Zant v. Stephens	1983-06-22T00:00:00	null	https://www.courtlistener.com/opinion/110984/zant-v-stephens/	https://www.courtlistener.com/api/rest/v3/clusters/110984/	1,983	1982-128	1	7	2	In Claassen v. United States, 412 U.S. 140 (1891), the defendant in a criminal case was found guilty on 5 of 11 counts on which the jury was instructed. The verdict was a general one and one 6-year sentence was imposed. On writ of error, this Court affirmed the conviction and sentence, saying that the first "count an the verdict of guilty returned upon it being sufficient to support the judgment and sentence, the question of the sufficiency of the other counts need not be considered." Id., at 146. Similarly, in Barenblatt v. United States, 360 U.S. 109 (1959), a defendant was convicted on each of five counts, and a general sentence was imposed. The Court said, id., at 115: "Since this sentence was less than the maximum punishment authorized by the statute for conviction under any one Count, the judgment below must be upheld if the conviction upon any of the Counts is sustainable" (footnote omitted). Pinkerton v. United States, 328 U.S. 640, 641, n. 1 (1946); Whitfield v. Ohio, 297 U.S. 431, 438 (1936); Abrams v. United States, 250 U.S. 616, 619 (1919); and Evans v. United States, 153 U.S. 584, 595 (1894), were similar holdings. It is therefore clear that in cases such as Claassen and Barenblatt, there is no Stromberg, Thomas, or Street problem. 892 Here, the jury imposing the sentence found three aggravating circumstances and based on all the evidence imposed the death sentence. One of the aggravating circumstance was found invalid on an intervening appeal in another case, and the claim is that under Stromberg, Thomas, and Street, the death sentence must be set aside. I agree with the Court that there is no such problem since the evidence supporting the invalid aggravating circumstances was properly before the jury. The Court, however, suggests that if the evidence had been inadmissible under the Federal Constitution, there might be a Stromberg, Thomas, or Street problem. The Court says, ante, at 883: "The jury's imposition of the death sentence after finding more than one aggravating circumstance . . . is also not precisely the same as the imposition of a single sentence of imprisonment after guilty verdicts on each of several separate counts in a multiple-count indictment, because the qualitatively different sentence of death is imposed only after a channeled sentencing procedure" (footnote omitted). The Court thus suggests that the Claassen-Barenblatt line of cases may not be applicable to sentencing proceedings in capital punishment cases. I fail to grasp the distinction, however, between those cases and the sentencing procedures involved here. In Claassen and Barenblatt, there was only one sentence on several counts and one could be no surer there than here that the sentence did or did not rest on any one of the counts. Those cases, however, would sustain the sentence if it was authorized under any of the valid counts. Stromberg, Thomas, and Street should no more invalidate the single sentence in this case. Thus in may view there would be no Stromberg-Thomas-Street problem, as such, if the invalid count had rested on constitutionally inadmissible evidence. But since the jury is instructed to take into account all the evidence, there would remain the question whether the inadmissible evidence invalidates the sentence. Perhaps it would, but at least there 893 would be room for the application of the harmless-error rule, which would not be the case, it seems to me, under the per se rule of Stromberg, Street, and Thomas. Except for the foregoing, I join the Court's opinion and its judgment as well. JUSTICE REHNQUIST, concurring in the judgment. While agreeing with the Court's judgment, I write separately to make clear my understanding of the application of the Eighth and Fourteenth Amendments to the capital sentencing procedures and used in this case. I agree with the Court's treatment of the factual and procedural background of the case, and with its characterization of the question presented for review. In brief, we must decide whether the procedure by which Georgia imposed the death sentence comports with the Eight and Fourteenth Amendments; whether, in this case, imposition of the death sentence violates the rule of Stromberg v. California, 283 U.S. 359 (1931); and whether the erroneous presentation to a jury of an invalid aggravating circumstance requires vacating the death sentence imposed by that jury. I The Georgia death sentencing procedure is comprehensively detailed in the statutes of the State, decisions of the Georgia courts, the opinion issued by the Georgia Supreme Court in response to the questioned certified by this Court, Zant v. Stephens, 455 U.S. 410 (1982), and the jury instructions in this case. As these materials reveal, two separate proceedings are necessary to imposition of the death sentence in Georgia. The first stage is simply a traditional criminal trial on the question of guilt or innocence. If the defendant is found guilty of a capital offense, a separate sentencing proceedings is then conducted. At this second proceeding, the State and the defendant are permitted to introduce a wide range of evidence in "extenuation, mitigation, and aggravation of punishment." Ga. Code 894 § 27-2503 (1978). The Sentencing body is then directed to make two separate decisions. First, it decides whether any of a number of specific, statutorily defined aggravating circumstances have been proved beyond a reasonably doubt. Ga. Code § 27-2534.1(b)(1978). In addition, the jury is instructed that, if it finds one or more of the statutory aggravating circumstances, it is to make the further judgment whether the defendant deserves the death sentence. In making this second decision, statutory aggravating circumstances found by the sentence are considered together with all the other evidence in mitigation and aggravation. The sentencer is not, however, instructed to formally "weigh" the aggravating circumstances against the mitigating circumstances. If a death sentence is imposed, then the case receives both conventional appellate consideration and expedited direct review by the Supreme Court of Georgia. Respondent challenges the Georgia death sentencing system as violative of the Eight Amendment, on the grounds that it fails adequately to channel the discretion of the sentencing body. In particular, respondent urges that the absence of an instruction that the sentence must balance statutory aggravating circumstances against mitigating circumstances before imposing the death sentence render the scheme unconstitutional under the reasoning in Furman v. Georgia, 408 U.S. 238 (1972). Respondent's claim is, in my opinion, completely foreclosed by this Court's precedents. Except in minor detail, Georgia's current system is identical to the sentencing procedure we held constitutional in Gregg v. Georgia, 428 U.S. 153 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.); id., at 207 (WHITE, J., concurring in judgment). The joint opinion in Gregg fully recognized that the Georgia scheme did not direct the sentencing body that statutory aggravating and mitigating circumstances were to be weighed against each other in any formal sense. This is evident from its careful description of the Georgia scheme, id., at 196-197, and its treatment of the 895 Model Penal Code's proposed system, id., at 193, where the fact that the sentencing body is formally instructed to weigh aggravating and mitigating circumstances was specifically noted. Notwithstanding the lack of an explicit "balancing" directive, the joint opinion upheld the statutory scheme, since, taken as a whole, it provided the sentencing authority with sufficient guidance to prevent the "freakish" imposition of death barred in Furman. Likewise, in JUSTICE WHITE's concurrence, 428 U.S., at 211, the role of aggravating circumstances was squarely discussed, and approved. To accept respondent's contention that the sentencing body must be specifically instructed to balance statutory aggravating circumstances against mitigating circumstances would require rejecting the judgment in Gregg that the Georgia statute provided the sentencing body with adequate guidance to permit it to impose death.[1] II Respondent next contends that Stromberg v. California, 283 U.S. 359 (1931), requires that his death sentence be set aside. Respondent's argument rests on the fact that one of the three aggravating circumstances specified by the jury in 896 his case was later found invalid under a state-court decision holding the statutory definition of the circumstance impermissibly vague under the United States Constitution. Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976).[2] Respondent reasons that Stromberg establishes a rule requiring that any general verdict returned by a factfinder be set aside if it is based, even in part, upon "an invalid factor." Supplemental Brief for Respondent 8. According to respondent, because one of the aggravating circumstances found by the jury was invalid, the general verdict of death returned by the jury fails the Stromberg test. Careful examination of Stromberg, cases following that decision, and the role of aggravating circumstances in a jury's imposition of the death penalty compels rejection of respondent's claim. Stromberg presented a straightforward case. The defendant was convicted for violating a California statute prohibiting the display of a red flag for any of three separate purposes. At trial the jury was instructed that the defendant should be convicted if he acted with any one of the proscribed purposes; it returned a general verdict of guilty without indicating which purpose it believed motivated the defendant. This Court concluded that the first of the clauses of the statute detailing impermissible purposes was unconstitutional, and held that it was unnecessary to decide the validity of the remaining two clauses. The Court observed that the prosecutor had "emphatically urged upon the jury that they could convict the appellant under the first clause alone, without regard to the other clauses." 283 U.S., at 368. It concludes that it was "impossible to say under which clause of the statute the conviction was obtained," ibid., and that, given this complete uncertainty, the conviction could not stand. See also Williams v. North Carolina, 317 U. S. 897 287, 292 (1942); Cramer v. United States, 325 U.S. 1, 36, n. 45 (1945); Terminiello v. Chicago, 337 U.S. 1, 5-6 (1949); Yates v. Untied States, 354 U.S. 298, 311-312 (1957). Of course, if the jury does indicate which statutory elements supported its verdict, and if these are valid, then Stromberg is inapplicable. As the Court points out, the Stromberg doctrine subsequently was extended albeit without lengthy analysis. In Street v. New York, 394 U.S. 576, 586-590(1969), the Court vacated a conviction based on a single-count indictment, for casting contempt on the United States flag. The statute under which petitioner was convicted criminalized casting contempt upon the flag by "words or act." Id., at 578. The information filed against petitioner alleged that he violated this statue because he both burned the flag and shouted derogatory statement about it. Likewise, the State introduced evidence at the bench trial of both the petitioners act and his speech. The Court concluded that petitioners constitutional rights would have been violated had he been punished for his speech. It thought, moreover, that the trial judge might have rested his finding solely on petitioners speech, which presented a situation similar to that in Stromberg. In addition, however, the Court believed that, on the record of the case, there was an "unacceptable danger that the trier of fact . . . regarded the two acts as `intertwined' and . . . rested the conviction on both together." 394 U.S., at 588. In short, when an element of a crime is defined to included constitutionally projected actions, and when the States alleges, argues, and offer proof that the defendant's protected conduct satisfied the element, then a general verdict of guilty must be set aside, even if the State also alleged and proved another course of conduct that could have satisfied the element. As in Stromberg, however, the Court also noted that when the record indicates that he jury's verdict did not rest on an "intertwined" combination of protected and 898 unprotected conduct, but instead rested sufficiently on unprotected conduct, then the verdict would stand. Neither the Stromberg line of case nor Street provides respondent with appreciable support. I agree with the Court that the Stromberg rule is plainly distinguished since the jury explicated returned two concededly valid aggravation circumstances, thereby conclusively negating the inference that it rested solely on the invalid circumstances. Likewise, I conclude that the analysis in Street is inapposite.[3] It is helpful in explaining why this is the case to discuss separately the two decision made by the sentencing body during the Georgia death penalty proceedings. I initially consider the applicability of Street to the jury's first decision that is the finding of statutory aggravating circumstances. As indicated above, Street explicitly stated that its rule regarding the treatment of aggravating circumstance is inapplicable "when the indictment or information is in several counts and the conviction is explicitly declared to rest on finding of guilt on certain of those counts, for in such instances there is positive evidence that the trier of fact considered each count on its own merits and separately from the others." 394 U.S., at 588 (footnote omitted.) This exception to the Street rule extends to the jury's determination in this case that certain specified aggravating circumstances existed. The jury received separate instructions as to each of several aggravating circumstances, and returned a verdict from separately listing three circumstances. The fact that one of these subsequently proved to be invalid does not affect the validity of the remaining two jury findings, just as the reversal on appeal of one of several convictions returned to separate 899 counts does not affect the remaining convictions. There was "positive evidence" that Stephens' jury considered each aggravating circumstance "on its own merits and separately from the others." Ibid. Because of this, Street provides no basis for questioning the jury's first decision, which, if supported, permitted it to go further and consider whether Stephens deserved the death sentence. Street's logic is even less applicable to a Georgia death jury's second decision, namely, that the defendant deserved the death sentence. Under the respondent's theory, the jury's verdict of death was based in part on an aggravating circumstances that later proved invalid, and which, according to respondent must thus fall under the rule of Street. Whatever its proper application elsewhere, Street's rule cannot fairly be extended to the sentencing context. As discussed below, the significant difference between the role of aggravating circumstances in the jury's decision to imposed the death sentence and role played by instructions or allegations in a jury's determination of guilt preclude applying Street to the sentencing context. The rule relied upon by respondent was developed in a situation where a factfinder returns a verdict of guilty on a specific criminal charge. In returning this verdict, the jury decides whether the defendant committed a specific set of defined acts with a particular mental state. These elements each of which is necessary to the verdict of guilty, are specifically and carefully enumerated and defined in the indictment or information and the instructions to the jury. Only evidence relevant to the particular elements alleged by the State is admissible, even then, subject to exclusion of prejudicial evidence which might distract the jury from the specific factfinding task it performs. Based on this evidence the jury decides whether each of the elements constituting the offense was proved beyond a reasonable doubt. The Court's observation in Williams v. New York, 337 U.S. 241, 246-247 (1949), accurately captures the character of the procedure 900 leading to a criminal conviction: "In a trial before verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. Rules of evidence have been fashioned for criminal trials . . . narrowly confin[ing] the trial contest . . . ." The decision by a Georgia death jury at the final stage of its deliberations to impose death is a significantly different decision from the model just described. A wide range of evidence is admissible on literally countless subjects: "We have long recognized that `[f]or the determination of sentence, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Gregg, 428 U. S., at 189 (emphasis added. In considering this evidence, the jury does not attempt to decide whether particular elements have been proved, but instead makes a unique, individualized judgment regarding the punishment that a particular person deserves. See Lockett v. Ohio, 438 U.S. 586, 602-605 (1978). The role of aggravating circumstances in making this judgment is substantially more limited than the role played by jury instructions or allegations in an indictment in an ordinary trial. In Georgia, aggravating circumstances serve principally to restrict the class of defendants subject to the death sentence; once a single aggravating circumstances is specified, the jury then considers all the evidence in aggravation-mitigation in deciding whether to impose the death penalty, see Part I, supra. An aggravating circumstance in this latter stage is simply one of the countless considerations weighed by the jury in seeking to judge the punishment appropriate to the individual defendant. If an aggravating circumstance is revealed to be invalid, the probable effect of this fact alone on the jury's second decision whether the death sentence is appropriate is minimal. If one of the few theories of guilt presented to the jury 901 in the trial judge's instructions, or the indictment, proves invalid, there is substantial risk that the jury may have based its verdict on an improper theory. This follows from the necessarily limited number of theories presented to the jury, and from the fact that the jury's decisionmaking is carefully routed along paths specifically set out in the instructions. When an aggravating circumstance proves invalid, however, the effect ordinarily is only to diminish the probative value of one of literally countless factors that the jury considered. The inference that this diminution would alter the result reached by the jury is all but nonexistent. Given this, the rule developed in Street simply cannot be applied sensibly to sentencing decisions resulting from proceedings involving aggravating circumstances. Instead, as developed in the following Part, a difference analysis has been applied to the question whether to set aside sentencing decisions based in part upon invalid factors. III Respondent contends next that, even if Street is inapplicable the erroneous submission to the jury of an instruction which we are bound to regard as unconstitutionally vague, see n. 3, supra, must have had sufficient effect on the jury's deliberations to require vacating its verdict. Although our prior decisions are not completely consistent regarding the effect of constitutional error in sentencing proceedings on the sentence imposed on the defendant, in general sentencing decisions are accorded far greater finality than convictions. Ordinarily, a sentence within statutory limits is beyond appellate review. Gore v. United States, 357 U.S. 386, 393 (1958). In Street, 394 U. S., at 588, n. 9, we cited approval to several of a long line of sentencing decisions. In Claassen v. United States, 142 U.S. 140 (1891); Pinkerton v. United States, 328 U.S. 640 (1946); and Barenblatt v. United States, 360 U.S. 109 (1959), defendants were convicted on several separate counts and received "general sentence," 902 not linked to any one or combination of the counts. The defendants than challenged all their conviction on writ of error or appeal. The Court, following a well-settled rule, stated in Barenblatt: "Since this sentence was less than the maximum punishment authorized by the statute for conviction under any one Count, the judgment below must be upheld if the conviction upon any of the Counts is sustainable." Id., at 115 (footnote omitted). In Claassen we said: "[I]t is settled law in this court, and in this country generally, that in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error, if any one of the counts is good and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only." 142 U.S., at 146-147. The practical basis for the rules articulated in Gore and the Claassen line of cases is clear. As indicated above, sentencing decisions rest on a far-reaching inquiry into countless facts and circumstances and not on the type of proof of particular elements that returning a conviction does. The fact that one of the countless considerations that the sentencer would have taken into account was erroneous, misleading, or otherwise improperly before him, ordinarily can be assumed not to have been a necessary basis for his decision. Nonetheless in limited cases, non capital sentencing decisions are vacated for resentencing. In United States v. Tucker, 404 U.S. 443 (1972), two uncounseled and therefore unconstitutionally obtained convictions were introduced against the defendant in the sentencing proceeding. The Court observed that the sentencing judge gave "explicit" and specific" attention, id., at 444, 447, to these convictions. Moreover, it noted that the defendant would have "appeared in a dramatically different light" had the true character of the unconstitutional convictions been known: the judge would have been dealing with a 903 man unconstitutionally imprisoned, beginning at age 17, for more than 10 years, including 5 1/2 years on a chain gang. Id., at 448. Finally, the Court reemphasized the unconstitutional character of the respondent's prior convictions, and opined that to permit his sentence to stand would "erode" the rule in Gideon v. Wainwright, 372 U.S. 335 (1963). Given all this, respondent's sentence was held improper, and the case was remanded for resentencing. Similarly, in Townsend v. Burke, 334 U.S. 736 (1948), an uncounseled defendant was sentenced following a proceeding in which the trial judge explicitly an repeatedly relied upon the incorrect assumption that the defendant had been convicted of several crimes. The Court observed that "[i]t is not the duration of severity of this sentence that renders it constitutionally invalid; it is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process." Id., at 741. The approach taken in Tucker, Townsend, and the Claassen line of cases begins with the presumption that, since the sentencer's judgment rested on countless variables, an error made in one portion of the sentencing proceeding ordinarily should not affect the sentence. This presumption is most plainly revealed by the Claassen line of cases, where a sentence will stand even if it turns out that the crimes for which the defendant was sentenced had not all been committed. Nonetheless, the defendant may adduce evidence that the sentencing body likely would have acted differently had the error not occurred. In order to prevail on such a claim, however, we have required a convincing showing that the introduction of specific constitutionally infirm evidence had an ascertainable and "dramatic" impact on the sentencing authority. See United States v. Tucker, supra; Townsend v. Burke, supra. Of course, a more careful application of this standard is appropriate in capital cases. *904 In the present case, however, the erroneous submission to the jury of an invalid aggravating circumstance simply cannot satisfy whatever standard may plausibly be based on the cases discussed above. As the Court points out, the only real impact resulting from the error was the evidence properly before the jury was capable of being fit within a category that the judge's instructions labeled "aggravating." The evidence in question respondent's prior convictions plainly was an aggravating factor, which, as we held in Gregg, the jury was free to consider. The fact that the instruction gave added weight to this no doubt played some role in the deliberations of some jurors. Yet, the Georgia Supreme Court was plainly right in saying that the "mere fact that some of the aggravating circumstances presented were improperly designated `statutory;" had "an inconsequential impact on the jury's decision regarding the death penalty." 250 Ga. 97, 100, 297 S.E.2d 1, 4 (1982). The plurality recognized in Lockett v. Ohio, 438 U. S., at 605, that there can be "no perfect procedure for deciding in which cases governmental authority should be used to impose death." Whatever a defendant must show to set aside a death sentence, the present case involved only a remote possibility that the error had any effect on the jury's judgment; the Eighth Amendment did not therefore require that the defendant's sentence be vacated.	n the defendant in a criminal case was found guilty on 5 of 11 counts on which the jury was instructed. The verdict was a general one and one 6-year sentence was imposed. On writ of error, this Court affirmed the conviction and sentence, saying that the first "count an the verdict of guilty returned upon it being sufficient to support the judgment and sentence, the question of the sufficiency of the other counts need not be considered." Similarly, in a defendant was convicted on each of five counts, and a general sentence was imposed. The Court said, : "Since this sentence was less than the maximum punishment authorized by the statute for conviction under any one Count, the judgment below must be upheld if the conviction upon any of the Counts is sustainable" ; ; ; and were similar holdings. t is therefore clear that in cases such as Claassen and Barenblatt, there is no Stromberg, Thomas, or problem. 892 Here, the jury imposing the sentence found three aggravating circumstances and based on all the evidence imposed the death sentence. One of the aggravating circumstance was found invalid on an intervening appeal in another case, and the claim is that under Stromberg, Thomas, and the death sentence must be set aside. agree with the Court that there is no such problem since the evidence supporting the invalid aggravating circumstances was properly before the jury. The Court, however, suggests that if the evidence had been inadmissible under the Federal Constitution, there might be a Stromberg, Thomas, or problem. The Court says, ante, at 88: "The jury's imposition of the death sentence after finding more than one aggravating circumstance is also not precisely the same as the imposition of a single sentence of imprisonment after guilty verdicts on each of several separate counts in a multiple-count indictment, because the qualitatively different sentence of death is imposed only after a channeled sentencing procedure" The Court thus suggests that the Claassen-Barenblatt line of cases may not be applicable to sentencing proceedings in capital punishment cases. fail to grasp the distinction, however, between those cases and the sentencing procedures involved here. n Claassen and Barenblatt, there was only one sentence on several counts and one could be no surer there than here that the sentence did or did not rest on any one of the counts. Those cases, however, would sustain the sentence if it was authorized under any of the valid counts. Stromberg, Thomas, and should no more invalidate the single sentence in this case. Thus in may view there would be no Stromberg-Thomas- problem, as such, if the invalid count had rested on constitutionally inadmissible evidence. But since the jury is instructed to take into account all the evidence, there would remain the question whether the inadmissible evidence invalidates the sentence. Perhaps it would, but at least there 89 would be room for the application of the harmless-error rule, which would not be the case, it seems to me, under the per se rule of Stromberg, and Thomas. Except for the foregoing, join the Court's opinion and its judgment as well. JUSTCE REHNQUST, concurring in the judgment. While agreeing with the Court's judgment, write separately to make clear my understanding of the application of the Eighth and Fourteenth Amendments to the capital sentencing procedures and used in this case. agree with the Court's treatment of the factual and procedural background of the case, and with its characterization of the question presented for review. n brief, we must decide whether the procedure by which Georgia imposed the death sentence comports with the Eight and Fourteenth Amendments; whether, in this case, imposition of the death sentence violates the rule of ; and whether the erroneous presentation to a jury of an invalid aggravating circumstance requires vacating the death sentence imposed by that jury. The Georgia death sentencing procedure is comprehensively detailed in the statutes of the State, decisions of the Georgia courts, the opinion issued by the Georgia Supreme Court in response to the questioned certified by this Court, and the jury instructions in this case. As these materials reveal, two separate proceedings are necessary to imposition of the death sentence in Georgia. The first stage is simply a traditional criminal trial on the question of guilt or innocence. f the defendant is found guilty of a capital offense, a separate sentencing proceedings is then conducted. At this second proceeding, the State and the defendant are permitted to introduce a wide range of evidence in "extenuation, mitigation, and aggravation of punishment." Ga. Code 89 27-250 The Sentencing body is then directed to make two separate decisions. First, it decides whether any of a number of specific, statutorily defined aggravating circumstances have been proved beyond a reasonably doubt. Ga. Code 27-25.1(b). n addition, the jury is instructed that, if it finds one or more of the statutory aggravating circumstances, it is to make the further judgment whether the defendant deserves the death sentence. n making this second decision, statutory aggravating circumstances found by the sentence are considered together with all the other evidence in mitigation and aggravation. The sentencer is not, however, instructed to formally "weigh" the aggravating circumstances against the mitigating circumstances. f a death sentence is imposed, then the case receives both conventional appellate consideration and expedited direct review by the Supreme Court of Georgia. Respondent challenges the Georgia death sentencing system as violative of the Eight Amendment, on the grounds that it fails adequately to channel the discretion of the sentencing body. n particular, respondent urges that the absence of an instruction that the sentence must balance statutory aggravating circumstances against mitigating circumstances before imposing the death sentence render the scheme unconstitutional under the reasoning in Respondent's claim is, in my opinion, completely foreclosed by this Court's precedents. Except in minor detail, Georgia's current system is identical to the sentencing procedure we held constitutional in ; The joint opinion in Gregg fully recognized that the Georgia scheme did not direct the sentencing body that statutory aggravating and mitigating circumstances were to be weighed against each other in any formal sense. This is evident from its careful description of the Georgia scheme, and its treatment of the 895 Model Penal Code's proposed system, where the fact that the sentencing body is formally instructed to weigh aggravating and mitigating circumstances was specifically noted. Notwithstanding the lack of an explicit "balancing" directive, the joint opinion upheld the statutory scheme, since, taken as a whole, it provided the sentencing authority with sufficient guidance to prevent the "freakish" imposition of death barred in Furman. Likewise, in JUSTCE WHTE's concurrence, the role of aggravating circumstances was squarely discussed, and approved. To accept respondent's contention that the sentencing body must be specifically instructed to balance statutory aggravating circumstances against mitigating circumstances would require rejecting the judgment in Gregg that the Georgia statute provided the sentencing body with adequate guidance to permit it to impose death.[1] Respondent next contends that requires that his death sentence be set aside. Respondent's argument rests on the fact that one of the three aggravating circumstances specified by the jury in 896 his case was later found invalid under a state-court decision holding the statutory definition of the circumstance impermissibly vague under the United States Constitution.[2] Respondent reasons that Stromberg establishes a rule requiring that any general verdict returned by a factfinder be set aside if it is based, even in part, upon "an invalid factor." Supplemental Brief for Respondent 8. According to respondent, because one of the aggravating circumstances found by the jury was invalid, the general verdict of death returned by the jury fails the Stromberg test. Careful examination of Stromberg, cases following that decision, and the role of aggravating circumstances in a jury's imposition of the death penalty compels rejection of respondent's claim. Stromberg presented a straightforward case. The defendant was convicted for violating a California statute prohibiting the display of a red flag for any of three separate purposes. At trial the jury was instructed that the defendant should be convicted if he acted with any one of the proscribed purposes; it returned a general verdict of guilty without indicating which purpose it believed motivated the defendant. This Court concluded that the first of the clauses of the statute detailing impermissible purposes was unconstitutional, and held that it was unnecessary to decide the validity of the remaining two clauses. The Court observed that the prosecutor had "emphatically urged upon the jury that they could convict the appellant under the first clause alone, without regard to the other clauses." t concludes that it was "impossible to say under which clause of the statute the conviction was obtained," ib and that, given this complete uncertainty, the conviction could not stand. See also Williams v. North Carolina, 17 U. S. 897 287, 292 (192); ; ; Of course, if the jury does indicate which statutory elements supported its verdict, and if these are valid, then Stromberg is inapplicable. As the Court points out, the Stromberg doctrine subsequently was extended albeit without lengthy analysis. n the Court vacated a conviction based on a single-count indictment, for casting contempt on the United States flag. The statute under which petitioner was convicted criminalized casting contempt upon the flag by "words or act." The information filed against petitioner alleged that he violated this statue because he both burned the flag and shouted derogatory statement about it. Likewise, the State introduced evidence at the bench trial of both the petitioners act and his speech. The Court concluded that petitioners constitutional rights would have been violated had he been punished for his speech. t thought, moreover, that the trial judge might have rested his finding solely on petitioners speech, which presented a situation similar to that in Stromberg. n addition, however, the Court believed that, on the record of the case, there was an "unacceptable danger that the trier of fact regarded the two acts as `intertwined' and rested the conviction on both together." n short, when an element of a crime is defined to included constitutionally projected actions, and when the States alleges, argues, and offer proof that the defendant's protected conduct satisfied the element, then a general verdict of guilty must be set aside, even if the State also alleged and proved another course of conduct that could have satisfied the element. As in Stromberg, however, the Court also noted that when the record indicates that he jury's verdict did not rest on an "intertwined" combination of protected and 898 unprotected conduct, but instead rested sufficiently on unprotected conduct, then the verdict would stand. Neither the Stromberg line of case nor provides respondent with appreciable support. agree with the Court that the Stromberg rule is plainly distinguished since the jury explicated returned two concededly valid aggravation circumstances, thereby conclusively negating the inference that it rested solely on the invalid circumstances. Likewise, conclude that the analysis in is inapposite.[] t is helpful in explaining why this is the case to discuss separately the two decision made by the sentencing body during the Georgia death penalty proceedings. initially consider the applicability of to the jury's first decision that is the finding of statutory aggravating circumstances. As indicated above, explicitly stated that its rule regarding the treatment of aggravating circumstance is inapplicable "when the indictment or information is in several counts and the conviction is explicitly declared to rest on finding of guilt on certain of those counts, for in such instances there is positive evidence that the trier of fact considered each count on its own merits and separately from the others." This exception to the rule extends to the jury's determination in this case that certain specified aggravating circumstances existed. The jury received separate instructions as to each of several aggravating circumstances, and returned a verdict from separately listing three circumstances. The fact that one of these subsequently proved to be invalid does not affect the validity of the remaining two jury findings, just as the reversal on appeal of one of several convictions returned to separate 899 counts does not affect the remaining convictions. There was "positive evidence" that Stephens' jury considered each aggravating circumstance "on its own merits and separately from the others." Because of this, provides no basis for questioning the jury's first decision, which, if supported, permitted it to go further and consider whether Stephens deserved the death sentence. 's logic is even less applicable to a Georgia death jury's second decision, namely, that the defendant deserved the death sentence. Under the respondent's theory, the jury's verdict of death was based in part on an aggravating circumstances that later proved invalid, and which, according to respondent must thus fall under the rule of Whatever its proper application elsewhere, 's rule cannot fairly be extended to the sentencing context. As discussed below, the significant difference between the role of aggravating circumstances in the jury's decision to imposed the death sentence and role played by instructions or allegations in a jury's determination of guilt preclude applying to the sentencing context. The rule relied upon by respondent was developed in a situation where a factfinder returns a verdict of guilty on a specific criminal charge. n returning this verdict, the jury decides whether the defendant committed a specific set of defined acts with a particular mental state. These elements each of which is necessary to the verdict of guilty, are specifically and carefully enumerated and defined in the indictment or information and the instructions to the jury. Only evidence relevant to the particular elements alleged by the State is admissible, even then, subject to exclusion of prejudicial evidence which might distract the jury from the specific factfinding task it performs. Based on this evidence the jury decides whether each of the elements constituting the offense was proved beyond a reasonable doubt. The Court's observation in accurately captures the character of the procedure 900 leading to a criminal conviction: "n a trial before verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. Rules of evidence have been fashioned for criminal trials narrowly confin[ing] the trial contest" The decision by a Georgia death jury at the final stage of its deliberations to impose death is a significantly different decision from the model just described. A wide range of evidence is admissible on literally countless subjects: "We have long recognized that `[f]or the determination of sentence, justice generally requires that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Gregg, The role of aggravating circumstances in making this judgment is substantially more limited than the role played by jury instructions or allegations in an indictment in an ordinary trial. n Georgia, aggravating circumstances serve principally to restrict the class of defendants subject to the death sentence; once a single aggravating circumstances is specified, the jury then considers all the evidence in aggravation-mitigation in deciding whether to impose the death penalty, see Part An aggravating circumstance in this latter stage is simply one of the countless considerations weighed by the jury in seeking to judge the punishment appropriate to the individual defendant. f an aggravating circumstance is revealed to be invalid, the probable effect of this fact alone on the jury's second decision whether the death sentence is appropriate is minimal. f one of the few theories of guilt presented to the jury 901 in the trial judge's instructions, or the indictment, proves invalid, there is substantial risk that the jury may have based its verdict on an improper theory. This follows from the necessarily limited number of theories presented to the jury, and from the fact that the jury's decisionmaking is carefully routed along paths specifically set out in the instructions. When an aggravating circumstance proves invalid, however, the effect ordinarily is only to diminish the probative value of one of literally countless factors that the jury considered. The inference that this diminution would alter the result reached by the jury is all but nonexistent. Given this, the rule developed in simply cannot be applied sensibly to sentencing decisions resulting from proceedings involving aggravating circumstances. nstead, as developed in the following Part, a difference analysis has been applied to the question whether to set aside sentencing decisions based in part upon invalid factors. Respondent contends next that, even if is inapplicable the erroneous submission to the jury of an instruction which we are bound to regard as unconstitutionally vague, see n. must have had sufficient effect on the jury's deliberations to require vacating its verdict. Although our prior decisions are not completely consistent regarding the effect of constitutional error in sentencing proceedings on the sentence imposed on the defendant, in general sentencing decisions are accorded far greater finality than convictions. Ordinarily, a sentence within statutory limits is beyond appellate review. 57 U.S. 86, 9 n 9 U. S., at 588, n. 9, we cited approval to several of a long line of sentencing decisions. n ; ; and defendants were convicted on several separate counts and received "general sentence," 902 not linked to any one or combination of the counts. The defendants than challenged all their conviction on writ of error or appeal. The Court, following a well-settled rule, stated in Barenblatt: "Since this sentence was less than the maximum punishment authorized by the statute for conviction under any one Count, the judgment below must be upheld if the conviction upon any of the Counts is sustainable." n Claassen we said: "[]t is settled law in this court, and in this country generally, that in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error, if any one of the counts is good and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only." 12 U.S., -17. The practical basis for the rules articulated in Gore and the Claassen line of cases is clear. As indicated above, sentencing decisions rest on a far-reaching inquiry into countless facts and circumstances and not on the type of proof of particular elements that returning a conviction does. The fact that one of the countless considerations that the sentencer would have taken into account was erroneous, misleading, or otherwise improperly before him, ordinarily can be assumed not to have been a necessary basis for his decision. Nonetheless in limited cases, non capital sentencing decisions are vacated for resentencing. n United 0 U.S. two uncounseled and therefore unconstitutionally obtained convictions were introduced against the defendant in the sentencing proceeding. The Court observed that the sentencing judge gave "explicit" and specific" attention, to these convictions. Moreover, it noted that the defendant would have "appeared in a dramatically different light" had the true character of the unconstitutional convictions been known: the judge would have been dealing with a 90 man unconstitutionally imprisoned, beginning at age 17, for more than 10 years, including 5 1/2 years on a chain gang. Finally, the Court reemphasized the unconstitutional character of the respondent's prior convictions, and opined that to permit his sentence to stand would "erode" the rule in 72 U.S. 5 (196). Given all this, respondent's sentence was held improper, and the case was remanded for resentencing. Similarly, in U.S. 76 an uncounseled defendant was sentenced following a proceeding in which the trial judge explicitly an repeatedly relied upon the incorrect assumption that the defendant had been convicted of several crimes. The Court observed that "[i]t is not the duration of severity of this sentence that renders it constitutionally invalid; it is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process." The approach taken in Townsend, and the Claassen line of cases begins with the presumption that, since the sentencer's judgment rested on countless variables, an error made in one portion of the sentencing proceeding ordinarily should not affect the sentence. This presumption is most plainly revealed by the Claassen line of cases, where a sentence will stand even if it turns out that the crimes for which the defendant was sentenced had not all been committed. Nonetheless, the defendant may adduce evidence that the sentencing body likely would have acted differently had the error not occurred. n order to prevail on such a claim, however, we have required a convincing showing that the introduction of specific constitutionally infirm evidence had an ascertainable and "dramatic" impact on the sentencing authority. See United Of course, a more careful application of this standard is appropriate in capital cases. *90 n the present case, however, the erroneous submission to the jury of an invalid aggravating circumstance simply cannot satisfy whatever standard may plausibly be based on the cases discussed above. As the Court points out, the only real impact resulting from the error was the evidence properly before the jury was capable of being fit within a category that the judge's instructions labeled "aggravating." The evidence in question respondent's prior convictions plainly was an aggravating factor, which, as we held in Gregg, the jury was free to consider. The fact that the instruction gave added weight to this no doubt played some role in the deliberations of some jurors. Yet, the Georgia Supreme Court was plainly right in saying that the "mere fact that some of the aggravating circumstances presented were improperly designated `statutory;" had "an inconsequential impact on the jury's decision regarding the death penalty." The plurality recognized in U. S., at 605, that there can be "no perfect procedure for deciding in which cases governmental authority should be used to impose death." Whatever a defendant must show to set aside a death sentence, the present case involved only a remote possibility that the error had any effect on the jury's judgment; the Eighth Amendment did not therefore require that the defendant's sentence be vacated.
Justice Brennan	second_dissenting	false	Barnes v. United States	1973-06-18T00:00:00	null	https://www.courtlistener.com/opinion/108830/barnes-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/108830/	1,973	1972-156	1	6	3	Petitioner was charged in two counts of a six-count indictment with possession of United States Treasury 853 checks stolen from the mails, knowing them to be stolen. The essential elements of such an offense are (1) that the defendant was in possession of the checks, (2) that the checks were stolen from the mails, and (3) that the defendant knew that the checks were stolen. The Government proved that petitioner had been in possession of the checks and that the checks had been stolen from the mails; and, in addition, the Government introduced some evidence intended to show that petitioner knew or should have known that the checks were stolen. But rather than leaving the jury to determine the element of "knowledge" on the basis of that evidence, the trial court instructed it that it was free to infer the essential element of "knowledge" from petitioner's unexplained possession of the checks. In my view, that instruction violated the Due Process Clause of the Fifth Amendment because it permitted the jury to convict even though the actual evidence bearing on "knowledge" may have been insufficient to establish guilt beyond a reasonable doubt. I therefore dissent. We held in In re Winship, 397 U.S. 358, 364 (1970), that the Due Process Clause requires "proof beyond a reasonable doubt of every fact necessary to constitute the crime . . . ." Thus, in Turner v. United States, 396 U.S. 398, 417 (1970), we approved the inference of "knowledge" from the fact of possessing smuggled heroin because " `[c]ommon sense' . . . tells us that those who traffic in heroin will inevitably become aware that the product they deal in is smuggled . . . ." (Emphasis added.) The basis of that "common sense" judgment was, of course, the indisputable fact that all or virtually all heroin in this country is necessarily smuggled. Here, however, it cannot be said that all or virtually all endorsed United States Treasury checks have been stolen. Indeed, it is neither unlawful nor unusual 854 for people to use such checks as direct payment for goods and services. Thus, unlike Turner, "common sense" simply will not permit the inference that the possessor of stolen Treasury checks "inevitably" knew that the checks were stolen. Cf. Leary v. United States, 395 U.S. 6 (1969). In short, the practical effect of the challenged instruction was to permit the jury to convict petitioner even if it found insufficient or disbelieved all of the Government's evidence bearing directly on the issue of "knowledge." By authorizing the jury to rely exclusively on the inference in determining the element of "knowledge," the instruction relieved the Government of the burden of proving that element beyond a reasonable doubt. The instruction thereby violated the principle of Winship that every essential element of the crime must be proved beyond a reasonable doubt.	Petitioner was charged in two counts of a six-count indictment with possession of United States Treasury 853 checks stolen from the mails, knowing them to be stolen. The essential elements of such an offense are (1) that the defendant was in possession of the checks, (2) that the checks were stolen from the mails, and (3) that the defendant knew that the checks were stolen. The Government proved that petitioner had been in possession of the checks and that the checks had been stolen from the mails; and, in addition, the Government introduced some evidence intended to show that petitioner knew or should have known that the checks were stolen. But rather than leaving the jury to determine the element of "knowledge" on the basis of that evidence, the trial court instructed it that it was free to infer the essential element of "knowledge" from petitioner's unexplained possession of the checks. In my view, that instruction violated the Due Process Clause of the Fifth Amendment because it permitted the jury to convict even though the actual evidence bearing on "knowledge" may have been insufficient to establish guilt beyond a reasonable doubt. I therefore dissent. We held in In re Winship, that the Due Process Clause requires "proof beyond a reasonable doubt of every fact necessary to constitute the crime" Thus, in we approved the inference of "knowledge" from the fact of possessing smuggled heroin because " `[c]ommon sense' tells us that those who traffic in heroin will inevitably become aware that the product they deal in is smuggled" (Emphasis added.) The basis of that "common sense" judgment was, of course, the indisputable fact that all or virtually all heroin in this country is necessarily smuggled. Here, however, it cannot be said that all or virtually all endorsed United States Treasury checks have been stolen. Indeed, it is neither unlawful nor unusual 854 for people to use such checks as direct payment for goods and services. Thus, unlike Turner, "common sense" simply will not permit the inference that the possessor of stolen Treasury checks "inevitably" knew that the checks were stolen. Cf. In short, the practical effect of the challenged instruction was to permit the jury to convict petitioner even if it found insufficient or disbelieved all of the Government's evidence bearing directly on the issue of "knowledge." By authorizing the jury to rely exclusively on the inference in determining the element of "knowledge," the instruction relieved the Government of the burden of proving that element beyond a reasonable doubt. The instruction thereby violated the principle of Winship that every essential element of the crime must be proved beyond a reasonable doubt.
Justice O'Connor	concurring	false	Connolly v. Pension Benefit Guaranty Corporation	1986-02-26T00:00:00	null	https://www.courtlistener.com/opinion/111605/connolly-v-pension-benefit-guaranty-corporation/	https://www.courtlistener.com/api/rest/v3/clusters/111605/	1,986	1985-042	2	9	0	Today the Court upholds the withdrawal liability provisions of the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA) against a facial challenge to their validity based on the Taking Clause of the Fifth Amendment. I join the Court's opinion and agree with its reasoning and its result, but I write separately to emphasize some of the issues the Court does not decide today. Specifically, the Court does not decide today, and has left open in previous cases, whether the imposition of withdrawal liability under the MPPAA and of plan termination liability under the Employee Retirement Income Security Act of 1974 (ERISA) may in some circumstances be so arbitrary and irrational as to violate the Due Process Clause of the Fifth Amendment. See Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U.S. 717, 728, n. 7 (1984); Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U.S. 359, 367-368 (1980). The Court also has no occasion to decide whether the MPPAA may violate the Taking Clause as applied in particular cases, or whether the pension plan in this case is a defined benefit plan rather than a defined contribution plan within the meaning of ERISA. As the Court indicates, the mere fact that "legislation requires one person to use his or her assets for the benefit of another," ante, at 223, will not establish either a violation of the Taking Clause or the Due Process Clause. With regard to the latter provision, it is settled that in the field of economic legislation "the burden is on one complaining of a due 229 process violation to establish that the legislature has acted in an arbitrary and irrational way." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976). Nonetheless, the Court has never intimated that Congress possesses unlimited power to "readjus[t] rights and burdens . . . [and] upse[t] otherwise settled expectations." Turner Elkhorn, supra, at 16. Our recent cases leave open the possibility that the imposition of retroactive liability on employers for the benefit of employees may be arbitrary and irrational in the absence of any connection between the employer's conduct and some detriment to the employee. See Turner Elkhorn, supra, at 19, 24-26; Pension Benefit Guaranty Corporation v. R. A. Gray & Co., supra, at 733 (discussing Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 (1935)). Insofar as the application of the provisions of the MPPAA and of ERISA to pension benefits that accrue in the future is concerned, there can be little doubt of Congress' power to override contractual provisions limiting employer liability for unfunded benefits promised to employees under the plan. But both statutes impose liability under certain circumstances on contributing employers for unfunded benefits that accrued in the past under a pension plan whether or not the employers had agreed to ensure that benefits would be fully funded. In my view, imposition of this type of retroactive liability on employers, to be constitutional, must rest on some basis in the employer's conduct that would make it rational to treat the employees' expectations of benefits under the plan as the employer's responsibility. In enacting ERISA, Congress distinguished between two types of employee retirement benefit plans: "defined benefit plan[s]" and "defined contribution plan[s]," also known as "individual account plan[s]." See 29 U.S. C. §§ 1002(34), (35). An employer is subject to plan termination liability under ERISA only if the employee benefit plan to which the employer has contributed is covered by ERISA's plan termination insurance program, which applies to defined benefit 230 plans but not to defined contribution plans. 29 U.S. C. § 1321(b)(1). See Nachman Corp. v. Pension Benefit Guaranty Corporation, supra, at 363, n. 5. Congress exempted defined contribution plans from ERISA's termination insurance program because a defined contribution plan does not specify benefits to be paid, but instead establishes an individual account for each participant to which employer contributions are made. 29 U.S. C. § 1002(34). "[U]nder such plans, by definition, there can never be an insufficiency of funds in the plan to cover promised benefits." Nachman Corp., supra, at 364, n. 5. By contrast, whenever a plan defines the benefits payable thereunder, the possibility exists that at a given time plan assets will fall short of the present value of vested plan benefits. Congress therefore subjected defined benefit plans to ERISA's plan termination insurance program, and did so by broadly defining a defined benefit plan as "a pension plan other than an individual account plan." 29 U.S. C. § 1002(35). We have no occasion today to decide whether this definition sweeps in all plans in which the benefits to be received by employees are fixed by the terms of the plan, even if the plan also provides that the employer's contributions shall be fixed and shall not be adjusted to whatever level would be required to provide those benefits. Indeed, this litigation began in part as a challenge by the Trustees of the Operating Engineers Pension Plan to a determination by the Pension Benefit Guaranty Corporation (hereinafter PBGC) that the Pension Plan is a defined benefit plan. See ante, at 219. That challenge was resolved against the Trustees and is not presented here. ERISA's broad definition of defined benefit plan may well mean that Congress imposed contingent liability on contributing employers without regard to the extent of a particular employer's actual responsibility for the existence of a plan's promise of fixed benefits to employees and without regard to the extent to which any such promise was conditioned and 231 understood by employees to be conditioned by plan provisions limiting the employer's obligations to make contributions to the plan. If so, the application of ERISA may in some circumstances raise constitutional doubts under the Taking Clause or the Due Process Clause. The same doubts arise with respect to the imposition of withdrawal liability under the MPPAA, which is properly seen as a prophylactic extension of the liability initially imposed by ERISA. Withdrawal liability is intended to ensure that " `an employer withdrawing from a multiemployer plan w[ill] . . . complete funding its fair share of the plan's unfunded liabilities,' " R. A. Gray & Co., 467 U. S., at 723, n. 3 (quoting Pension Plan Termination Insurance Issues: Hearings before the Subcommittee on Oversight of the House Committee on Ways and Means, 95th Cong., 2d Sess., 23 (1978) (statement of Matthew M. Lind, Executive Director of PBGC), and thus presupposes that employers can be made liable for those unfunded liabilities in the first instance. Although the MPPAA substitutes liability to the plan for liability to PBGC, the withdrawal liability it imposes on employers who contribute to multiemployer plans reflects the same apparent determination to treat all definite benefits as promises for which the employer can be held liable that underlies termination liability under ERISA. PBGC coverage of a multiemployer plan continues to turn on whether it is a defined benefit plan, and the MPPAA defines the withdrawing employer's liability to the plan in terms of "unfunded vested benefits," 29 U.S. C. § 1391, thereby making withdrawal liability turn on the presence of fixed benefits. The MPPAA's termination liability provisions are complex, but their overall effect is also to hold employers liable for underfunding of vested fixed benefits. See 29 U.S. C. § 1341a. Thus, it is evident that the MPPAA expands on Congress' decision in ERISA to exempt only defined contribution plans, narrowly defined, from PBGC coverage and employer liability. Whether the employer's liability is to 232 PBGC or to the plan, the thrust of both statutes is to enforce the plan's promise of fixed benefits against the employer with respect to benefits already accrued. The degree to which an employer can be said to be responsible for the promise of benefits made by a plan varies dramatically across the spectrum of plans. Where a single employer has unilaterally adopted and maintained a pension plan for its employees, the employer's responsibility for the presence of a promise to pay defined benefits is direct and substantial. The employer can nominate all the plan's trustees and enjoys wide discretion in designing the plan and determining the level of benefits. Where such a plan holds out to employees a promise of definite benefits, and where employees have rendered the years of service required for benefits to accrue and vest, it seems entirely rational to hold the employer liable for any shortfall in the plan's assets, even if the plan's provisions purport to limit the employer's liability in the event of underfunding upon plan termination. Where a pension plan is established through collective bargaining between one or more employers and a union, matters may be different. Such plans, commonly known as "Taft-Hartley" plans, were authorized by § 302(c)(5) of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 157, codified, as amended, at 29 U.S. C. § 186(c)(5). Taft-Hartley plans are the product of joint negotiation between employers and a union representing employees and are administered by trustees nominated in equal numbers by employers and the union. Ibid. Unlike typical defined benefit plans, which call for variable employer contributions and provide for fixed benefits, most Taft-Hartley plans "possess the characteristics of both fixed contributions and fixed benefits." J. Melone, Collectively Bargained Multi-Employer Pension Plans 20 (1963) (hereinafter Melone). As PBGC has explained: "Employers participating in multiemployer plans are generally required to contribute at a fixed rate, specified 233 in the collective bargaining agreement. . . . Traditionally, the multiemployer plan or the bargaining agreement have limited the employer's contractual obligation to contribute at the fixed rate, whether or not the contributions were sufficient to provide the benefits established by the joint board or the collectively bargained agreement." Pension Benefit Guaranty Corporation, Multiemployer Study Required by P. L. 95-214, p. 22 (1978) (hereinafter Multiemployer Study). See also Melone 50; Goetz, Developing Federal Labor Law of Welfare and Pension Plans, 55 Cornell L. Rev. 911, 931 (1970). Under these hybrid Taft-Hartley plans it is the plans' trustees, not the employers and the union, who are "usually responsible for determining the types of benefits to be provided. . . and the level of benefits, although in some cases these are set in the collective bargaining agreement." Multiemployer Study 22 (footnote omitted). See also GAO/ HRD-85-58, Comptroller General's Report to the Congress, Effects of the Multiemployer Pension Plan Amendments Act on Plan Participants' Benefits, 37, App. I, Table 3 (June 14, 1985) (95% of 139 multiemployer plans surveyed provided that trustees set benefits) (hereinafter Report to the Congress). This delegation of responsibility to the trustees may well stem from an understanding on the part of employers and unions that under the fixed-contribution approach the plan rather than the employers would bear the risks of adverse experience and the benefits of favorable experience in the first instance. See Pension Plans Under Collective Bargaining: A Reference Guide for Trade Unions 64 (American Federation of Labor 1953). If the actuary's earnings assumptions proved too conservative, the plan would have excess assets that could be used to support an increase in benefits by the trustees, and if assets growth was lower than anticipated, benefits could be reduced. It now appears that Taft-Hartley plan employers will be liable for such experience 234 losses in many cases, even where withdrawal occurs as a result of events over which an employer has no control, and even though experience gains can still ordinarily be used to increase benefits. It is also noteworthy that, as this Court held in NLRB v. Amax Coal Co., 453 U.S. 322, 331-332 (1981), "the duty of the management-appointed trustee of an employee benefit fund under § 302(c)(5) is directly antithetical to that of an agent of the appointing party." ERISA conclusively established that "an employee benefit fund trustee is a fiduciary whose duty to the trust beneficiaries must overcome any loyalty to the interest of the party that appointed him." Id., at 334. In light of these fiduciary duties, it seems remarkable to impute responsibility to employers for the level of benefits promised by the plan and set by the joint board of trustees, notwithstanding the express limits on employer liability contained in the plan and agreed to in collective bargaining. Yet that would appear to be what Congress may have done to the extent a Taft-Hartley plan such as the pension plan in this case is treated as a pure defined benefit plan in which the employer promised to make contributions to the extent necessary to fund the fixed benefits provided in the plan. As Representative Erlenborn put it in the hearings on the MPPAA: "[W]e have taken something that neither looked like a duck, or walked like a duck, or quacked like a duck, and we passed a law [ERISA] and said, `It is a duck.' If it is that easy, I suppose we can repeal the law of gravity and solve our energy problem. It is treating the multiemployer plans where you negotiate a contribution as having put a legal obligation on the employer to reach a level of benefits that has caused the problem." Hearings on The Multiemployer Pension Plan Amendments Act of 1979 before the Task Force on Welfare and Pension Plans of the Subcommittee on Labor-Management 235 Relations of the House Committee on Education and Labor, 96th Cong., 391 (1980) (emphasis added). The foregoing observations suggest to me that whatever promises a collectively bargained plan makes with respect to benefits may not always be rationally traceable to the employer's conduct and that it may sometimes be quite fictitious to speak of such plans as "promising" benefits at a specified level, since to do so ignores express and bargained-for conditions on those promises. Where the plan's fixed-contribution aspects were agreed to by employees through their exclusive bargaining representatives, and where employers had no control over the level of benefits promised, employer responsibility for the benefits specified by the plan is very much attenuated, and employee expectations that those benefits will in all events be paid, in the face of plan language to the contrary, are not easily traceable to the employer's conduct. The possible arbitrariness of imposing termination and withdrawal liability on some employers contributing to fixed-cost Taft-Hartley plans may be heightened in particular cases. For example, an employer who agrees to participate in a multiemployer plan long after the plan's benefit structure has been determined may have had no say whatever in establishing critical features of the plan that determine the level of benefits and the value of those benefits. Similarly, if a plan had regularly undergone increases and reductions in accrued benefits prior to ERISA, any contention that employers caused employees to rely on a promise of fixed benefits might carry even less weight. Beyond that, the withdrawal provisions of the MPPAA are structured in a manner that may lead to extremely harsh results. For example, it appears that even if the trustees raised benefits for both retired and current employees during the period immediately prior to an employer's withdrawal, the withdrawing employer can be held liable for the resulting underfunding. Such benefit increases are not uncommon. 236 See Report to the Congress 43, App. I, Table 17 (68% of multiemployer plans surveyed increased benefits for working participants during 33 months prior to enactment of the MPPAA); Table 18 (46% of these plans increased retirees' benefits during the same period). In addition, the presumptive method for calculating employer withdrawal liability is based on the employer's proportionate share of the contributions made to the plan during the years in which the employer participated. 29 U.S. C. § 1391(b). As a result, because fixed-contribution plans typically do not set each employer's contributions on the basis of the value of the benefits accrued by that employer's employees, it seems entirely possible that an employer may be liable to the plan for substantial sums even though that employer's contributions plus its allocable share of plan earnings exceed the present value of all benefits accrued by its employees. To be sure, the Court does not address these questions today. Since this case involves only a facial challenge under the Taking Clause to the MPPAA's withdrawal liability provisions, the Court properly refuses to look into the possibility that harsh results such as those I have noted may affect its analysis, let alone a due process inquiry, when the MPPAA is applied in particular cases. I write only to emphasize some of the issues the Court does not decide today, and to express the view that termination liability under ERISA, and withdrawal liability under the MPPAA, impose substantial retroactive burdens on employers in a manner that may drastically disrupt longstanding expectations, and do so on the basis of a questionable rationale that remains open to review in appropriate cases.	Today the Court upholds the withdrawal liability provisions of the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA) against a facial challenge to their validity based on the Taking Clause of the Fifth Amendment. I join the Court's opinion and agree with its reasoning and its result, but I write separately to emphasize some of the issues the Court does not decide today. Specifically, the Court does not decide today, and has left open in previous cases, whether the imposition of withdrawal liability under the MPPAA and of plan termination liability under the Employee Retirement Income Security Act of 1974 (ERISA) may in some circumstances be so arbitrary and irrational as to violate the Due Process Clause of the Fifth Amendment. See Pension Benefit Guaranty ; Nachman The Court also has no occasion to decide whether the MPPAA may violate the Taking Clause as applied in particular cases, or whether the pension plan in this case is a defined benefit plan rather than a defined contribution plan within the meaning of ERISA. As the Court indicates, the mere fact that "legislation requires one person to use his or her assets for the benefit of another," ante, at 223, will not establish either a violation of the Taking Clause or the Due Process Clause. With regard to the latter provision, it is settled that in the field of economic legislation "the burden is on one complaining of a due 229 process violation to establish that the legislature has acted in an arbitrary and irrational way." Nonetheless, the Court has never intimated that Congress possesses unlimited power to "readjus[t] rights and burdens [and] upse[t] otherwise settled expectations." Turner Our recent cases leave open the possibility that the imposition of retroactive liability on employers for the benefit of employees may be arbitrary and irrational in the absence of any connection between the employer's conduct and some detriment to the employee. See Turner ; Pension Benefit Guaranty ). Insofar as the application of the provisions of the MPPAA and of ERISA to pension benefits that accrue in the future is concerned, there can be little doubt of Congress' power to override contractual provisions limiting employer liability for unfunded benefits promised to employees under the plan. But both statutes impose liability under certain circumstances on contributing employers for unfunded benefits that accrued in the past under a pension plan whether or not the employers had agreed to ensure that benefits would be fully funded. In my view, imposition of this type of retroactive liability on employers, to be constitutional, must rest on some basis in the employer's conduct that would make it rational to treat the employees' expectations of benefits under the plan as the employer's responsibility. In enacting ERISA, Congress distinguished between two types of employee retirement benefit plans: "defined benefit plan[s]" and "defined contribution plan[s]," also known as "individual account plan[s]." See 29 U.S. C. 1002(34), (35). An employer is subject to plan termination liability under ERISA only if the employee benefit plan to which the employer has contributed is covered by ERISA's plan termination insurance program, which applies to defined benefit 230 plans but not to defined contribution plans. 29 U.S. C. 1321(b)(1). See Nachman Congress exempted defined contribution plans from ERISA's termination insurance program because a defined contribution plan does not specify benefits to be paid, but instead establishes an individual account for each participant to which employer contributions are made. 29 U.S. C. 1002(34). "[U]nder such plans, by definition, there can never be an insufficiency of funds in the plan to cover promised benefits." Nachman By contrast, whenever a plan defines the benefits payable thereunder, the possibility exists that at a given time plan assets will fall short of the present value of vested plan benefits. Congress therefore subjected defined benefit plans to ERISA's plan termination insurance program, and did so by broadly defining a defined benefit plan as "a pension plan other than an individual account plan." 29 U.S. C. 1002(35). We have no occasion today to decide whether this definition sweeps in all plans in which the benefits to be received by employees are fixed by the terms of the plan, even if the plan also provides that the employer's contributions shall be fixed and shall not be adjusted to whatever level would be required to provide those benefits. Indeed, this litigation began in part as a challenge by the Trustees of the Operating Engineers Pension Plan to a determination by the Pension Benefit Guaranty (hereinafter PBGC) that the Pension Plan is a defined benefit plan. See ante, at 219. That challenge was resolved against the Trustees and is not presented here. ERISA's broad definition of defined benefit plan may well mean that Congress imposed contingent liability on contributing employers without regard to the extent of a particular employer's actual responsibility for the existence of a plan's promise of fixed benefits to employees and without regard to the extent to which any such promise was conditioned and 231 understood by employees to be conditioned by plan provisions limiting the employer's obligations to make contributions to the plan. If so, the application of ERISA may in some circumstances raise constitutional doubts under the Taking Clause or the Due Process Clause. The same doubts arise with respect to the imposition of withdrawal liability under the MPPAA, which is properly seen as a prophylactic extension of the liability initially imposed by ERISA. Withdrawal liability is intended to ensure that " `an employer withdrawing from a multiemployer plan w[ill] complete funding its fair share of the plan's unfunded liabilities,' " R. A. Gray & n. 3 and thus presupposes that employers can be made liable for those unfunded liabilities in the first instance. Although the MPPAA substitutes liability to the plan for liability to PBGC, the withdrawal liability it imposes on employers who contribute to multiemployer plans reflects the same apparent determination to treat all definite benefits as promises for which the employer can be held liable that underlies termination liability under ERISA. PBGC coverage of a multiemployer plan continues to turn on whether it is a defined benefit plan, and the MPPAA defines the withdrawing employer's liability to the plan in terms of "unfunded vested benefits," 29 U.S. C. 1391, thereby making withdrawal liability turn on the presence of fixed benefits. The MPPAA's termination liability provisions are complex, but their overall effect is also to hold employers liable for underfunding of vested fixed benefits. See 29 U.S. C. 1341a. Thus, it is evident that the MPPAA expands on Congress' decision in ERISA to exempt only defined contribution plans, narrowly defined, from PBGC coverage and employer liability. Whether the employer's liability is to 232 PBGC or to the plan, the thrust of both statutes is to enforce the plan's promise of fixed benefits against the employer with respect to benefits already accrued. The degree to which an employer can be said to be responsible for the promise of benefits made by a plan varies dramatically across the spectrum of plans. Where a single employer has unilaterally adopted and maintained a pension plan for its employees, the employer's responsibility for the presence of a promise to pay defined benefits is direct and substantial. The employer can nominate all the plan's trustees and enjoys wide discretion in designing the plan and determining the level of benefits. Where such a plan holds out to employees a promise of definite benefits, and where employees have rendered the years of service required for benefits to accrue and vest, it seems entirely rational to hold the employer liable for any shortfall in the plan's assets, even if the plan's provisions purport to limit the employer's liability in the event of underfunding upon plan termination. Where a pension plan is established through collective bargaining between one or more employers and a union, matters may be different. Such plans, commonly known as "Taft-Hartley" plans, were authorized by 302(c)(5) of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 7, codified, as amended, at 29 U.S. C. 186(c)(5). Taft-Hartley plans are the product of joint negotiation between employers and a union representing employees and are administered by trustees nominated in equal numbers by employers and the union. Unlike typical defined benefit plans, which call for variable employer contributions and provide for fixed benefits, most Taft-Hartley plans "possess the characteristics of both fixed contributions and fixed benefits." J. Melone, Collectively Bargained Multi-Employer Pension Plans 20 (1963) (hereinafter Melone). As PBGC has explained: "Employers participating in multiemployer plans are generally required to contribute at a fixed rate, specified 233 in the collective bargaining agreement. Traditionally, the multiemployer plan or the bargaining agreement have limited the employer's contractual obligation to contribute at the fixed rate, whether or not the contributions were sufficient to provide the benefits established by the joint board or the collectively bargained agreement." Pension Benefit Guaranty Multiemployer Study Required by P. L. 95-214, p. 22 (1978) (hereinafter Multiemployer Study). See also Melone 50; Goetz, Developing Federal Labor Law of Welfare and Pension Plans, Under these hybrid Taft-Hartley plans it is the plans' trustees, not the employers and the union, who are "usually responsible for determining the types of benefits to be provided. and the level of benefits, although in some cases these are set in the collective bargaining agreement." Multiemployer Study 22 (footnote omitted). See also GAO/ HRD-85-58, Comptroller General's Report to the Congress, Effects of the Multiemployer Pension Plan Amendments Act on Plan Participants' Benefits, 37, App. I, Table 3 (June 14, 1985) (95% of 139 multiemployer plans surveyed provided that trustees set benefits) (hereinafter Report to the Congress). This delegation of responsibility to the trustees may well stem from an understanding on the part of employers and unions that under the fixed-contribution approach the plan rather than the employers would bear the risks of adverse experience and the benefits of favorable experience in the first instance. See Pension Plans Under Collective Bargaining: A Reference Guide for Trade Unions 64 (American Federation of Labor 1953). If the actuary's earnings assumptions proved too conservative, the plan would have excess assets that could be used to support an increase in benefits by the trustees, and if assets growth was lower than anticipated, benefits could be reduced. It now appears that Taft-Hartley plan employers will be liable for such experience 234 losses in many cases, even where withdrawal occurs as a result of events over which an employer has no control, and even though experience gains can still ordinarily be used to increase benefits. It is also noteworthy that, as this Court held in NLRB v. Amax Coal "the duty of the management-appointed trustee of an employee benefit fund under 302(c)(5) is directly antithetical to that of an agent of the appointing party." ERISA conclusively established that "an employee benefit fund trustee is a fiduciary whose duty to the trust beneficiaries must overcome any loyalty to the interest of the party that appointed him." In light of these fiduciary duties, it seems remarkable to impute responsibility to employers for the level of benefits promised by the plan and set by the joint board of trustees, notwithstanding the express limits on employer liability contained in the plan and agreed to in collective bargaining. Yet that would appear to be what Congress may have done to the extent a Taft-Hartley plan such as the pension plan in this case is treated as a pure defined benefit plan in which the employer promised to make contributions to the extent necessary to fund the fixed benefits provided in the plan. As Representative Erlenborn put it in the hearings on the MPPAA: "[W]e have taken something that neither looked like a duck, or walked like a duck, or quacked like a duck, and we passed a law [ERISA] and said, `It is a duck.' If it is that easy, I suppose we can repeal the law of gravity and solve our energy problem. It is treating the multiemployer plans where you negotiate a contribution as having put a legal obligation on the employer to reach a level of benefits that has caused the problem." Hearings on The Multiemployer Pension Plan Amendments Act of 1979 before the Task Force on Welfare and Pension Plans of the Subcommittee on Labor-Management 235 Relations of the House Committee on Education and Labor, 96th Cong., 391 (emphasis added). The foregoing observations suggest to me that whatever promises a collectively bargained plan makes with respect to benefits may not always be rationally traceable to the employer's conduct and that it may sometimes be quite fictitious to speak of such plans as "promising" benefits at a specified level, since to do so ignores express and bargained-for conditions on those promises. Where the plan's fixed-contribution aspects were agreed to by employees through their exclusive bargaining representatives, and where employers had no control over the level of benefits promised, employer responsibility for the benefits specified by the plan is very much attenuated, and employee expectations that those benefits will in all events be paid, in the face of plan language to the contrary, are not easily traceable to the employer's conduct. The possible arbitrariness of imposing termination and withdrawal liability on some employers contributing to fixed-cost Taft-Hartley plans may be heightened in particular cases. For example, an employer who agrees to participate in a multiemployer plan long after the plan's benefit structure has been determined may have had no say whatever in establishing critical features of the plan that determine the level of benefits and the value of those benefits. Similarly, if a plan had regularly undergone increases and reductions in accrued benefits prior to ERISA, any contention that employers caused employees to rely on a promise of fixed benefits might carry even less weight. Beyond that, the withdrawal provisions of the MPPAA are structured in a manner that may lead to extremely harsh results. For example, it appears that even if the trustees raised benefits for both retired and current employees during the period immediately prior to an employer's withdrawal, the withdrawing employer can be held liable for the resulting underfunding. Such benefit increases are not uncommon. 236 See Report to the Congress 43, App. I, Table 17 (68% of multiemployer plans surveyed increased benefits for working participants during 33 months prior to enactment of the MPPAA); Table 18 (46% of these plans increased retirees' benefits during the same period). In addition, the presumptive method for calculating employer withdrawal liability is based on the employer's proportionate share of the contributions made to the plan during the years in which the employer participated. 29 U.S. C. 1391(b). As a result, because fixed-contribution plans typically do not set each employer's contributions on the basis of the value of the benefits accrued by that employer's employees, it seems entirely possible that an employer may be liable to the plan for substantial sums even though that employer's contributions plus its allocable share of plan earnings exceed the present value of all benefits accrued by its employees. To be sure, the Court does not address these questions today. Since this case involves only a facial challenge under the Taking Clause to the MPPAA's withdrawal liability provisions, the Court properly refuses to look into the possibility that harsh results such as those I have noted may affect its analysis, let alone a due process inquiry, when the MPPAA is applied in particular cases. I write only to emphasize some of the issues the Court does not decide today, and to express the view that termination liability under ERISA, and withdrawal liability under the MPPAA, impose substantial retroactive burdens on employers in a manner that may drastically disrupt longstanding expectations, and do so on the basis of a questionable rationale that remains open to review in appropriate cases.
Justice Sotomayor	dissenting	false	Thole v. U. S. Bank N. A.	2020-06-01T00:00:00	null	https://www.courtlistener.com/opinion/4757654/thole-v-u-s-bank-n-a/	https://www.courtlistener.com/api/rest/v3/clusters/4757654/	2,020	null	null	null	null	The Court holds that the Constitution prevents millions of pensioners from enforcing their rights to prudent and loyal management of their retirement trusts. Indeed, the Court determines that pensioners may not bring a federal lawsuit to stop or cure retirement-plan mismanagement until their pensions are on the verge of default. This con- clusion conflicts with common sense and longstanding prec- edent. I A ERISA1 protects “the interests of participants in em- ployee benefit plans and their beneficiaries.” 29 U.S. C. §1001(b). Chief among these safeguards is that “all assets of an employee benefit plan” must “be held in trust by one or more trustees” for “the exclusive purposes of providing benefits to participants in the plan and their beneficiaries.” §§1103(a), (c)(1). A retirement plan’s assets “shall never in- ure to the benefit of any employer.” §1103(c)(1). Because ERISA requires that retirement-plan assets be —————— 1 Employee Retirement Income Security Act of 1974, 88 Stat. 829, as amended, 29 U.S. C. §1001 et seq. 2 THOLE v. U. S. BANK N. A. SOTOMAYOR, J., dissenting held in trust, it imposes on the trustees and other plan man- agers “ ‘strict standards’ ” of conduct “ ‘derived from the com- mon law of trusts.’ ” Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409, 416 (2014) (quoting Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U.S. 559, 570 (1985)). These “fiduciary duties” obligate the trustees and managers to act prudently and loyally, looking out solely for the best interest of the plan’s partici- pants and beneficiaries—typically, the employees who sac- rifice wages today to secure their retirements tomorrow. §§1104, 1106. Not surprisingly, ERISA fiduciaries owe du- ties not only to the plan they manage, but also “to the ben- eficiaries” and participants for whom they manage it. Har- ris Trust and Sav. Bank v. Salomon Smith Barney Inc., 530 U.S. 238, 241–242, 250 (2000). If a fiduciary flouts these stringent standards, ERISA provides a cause of action and makes the fiduciary person- ally liable. §§1109, 1132. The United States Secretary of Labor, a plan participant or beneficiary, or another fiduci- ary may sue for “appropriate relief under section 1109.” §1132(a)(2); see also §1132(a)(3) (permitting participants, beneficiaries, or fiduciaries to bring suit “to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan”). Section 1109’s remedies include restoration of lost assets, disgorgement of ill-gained profits, and removal of the offending fiduciaries. §1109(a). B Petitioners allege that, as of 2007, respondents breached their fiduciary duty of loyalty by investing pension-plan as- sets in respondents’ own mutual funds and by paying them- selves excessive management fees. (Petitioners further contend that this self-dealing persists today.) According to the complaint, the fiduciaries also made imprudent invest- ments that allowed them to manipulate accounting rules, boost their reported incomes, inflate their stock prices, and Cite as: 590 U. S. ____ (2020) 3 SOTOMAYOR, J., dissenting exercise lucrative stock options to their own (and their shareholders’) benefit. Then came the Great Recession. In 2008, the retirement plan lost $1.1 billion, allegedly $748 million more than a properly managed plan would have lost. So some of the plan’s participants sued under 29 U.S. C. §1132(a) for the relief Congress contemplated: restoration of losses, dis- gorgement of respondents’ ill-gotten profits and fees, re- moval of the disloyal fiduciaries, and an injunction to stop the ongoing breaches. Faced with this lawsuit, respondents returned to the plan about $311 million (less than half of what the plan had lost) and none of the profits respond- ents had unlawfully gained. See 873 F.3d 617, 630–631 (CA8 2018). II In the Court’s words, the question here is whether peti- tioners have alleged a “concrete” injury to support their con- stitutional standing to sue. Ante, at 3. They have for at least three independent reasons. A First, petitioners have an interest in their retirement plan’s financial integrity, exactly like private trust benefi- ciaries have in protecting their trust. By alleging a $750 million injury to that interest, petitioners have established their standing. 1 This Court typically recognizes an “injury in fact” where the alleged harm “has a close relationship to” one “that has traditionally been regarded as providing a basis for a law- suit in English or American courts.” Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016) (slip op., at 9). Thus, the Court acknowledges that “private trust” beneficiaries have stand- ing to protect the assets in which they have an “equitable” interest. Ante, at 3–4. The critical question, then, is 4 THOLE v. U. S. BANK N. A. SOTOMAYOR, J., dissenting whether petitioners have an equitable interest in their re- tirement plan’s assets even though their pension payments are fixed. They do. ERISA expressly required the creation of a trust in which petitioners are the beneficiaries: “[A]ll assets” of the plan “shall be held in trust” for petitioners’ “exclusive” benefit. 29 U.S. C. §§1103(a), (c)(1); see also §1104(a)(1).2 These requirements exist regardless whether the employer establishes a defined-benefit or defined-contribution plan. §1101(a). Similarly, the Plan Document governing petition- ers’ defined-benefit plan states that, at “ ‘all times,’ ” all plan assets “ ‘shall’ ” be in a “ ‘trust fund’ ” managed for the par- ticipants’ and beneficiaries’ “ ‘exclusive benefit.’ ” App. 60– 61. The Plan Document also gives petitioners a residual interest in the trust fund’s assets: It instructs that, “[u]pon termination of the Plan, each Participant [and] Beneficiary” shall look to “the assets of the [trust f]und” to “provide the benefits otherwise apparently promised in this Plan.” Rec- ord in No. 13–cv–2687 (D Minn.), Doc. 107–1, p. 75. This arrangement confers on the “participants [and] beneficiar- ies” of a defined-benefit plan an equitable stake, or a “com- mon interest,” in “the financial integrity of the plan.” Mas- sachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 142, n. 9 (1985). Petitioners’ equitable interest finds ample support in tra- ditional trust law. “The creation of a trust,” like the one here, provides beneficiaries “an equitable interest in the subject matter of the trust.” Restatement (Second) of —————— 2 Generally, “a trust is created when one person (a ‘settlor’ or ‘grantor’) transfers property to a third party (a ‘trustee’) to administer for the ben- efit of another (a ‘beneficiary’).” North Carolina Dept. of Revenue v. Kim- berley Rice Kaestner 1992 Family Trust, 588 U. S. ___, ___ (2019) (slip op., at 2); see also Restatement (Second) of Trusts §2 (1957). Neither the Court nor respondents dispute that petitioners’ pension fund meets these elements. Cite as: 590 U. S. ____ (2020) 5 SOTOMAYOR, J., dissenting Trusts §74, Comment a, p. 192 (1957); see Blair v. Commis- sioner, 300 U.S. 5, 13 (1937). Courts have long recognized that this equitable interest gives beneficiaries a basis to “have a breach of trust enjoined and . . . redress[ed].” Ibid.; see also Spokeo, 578 U. S., at ___ (slip op., at 9). That is, a beneficiary’s equitable interest allows her to “maintain a suit” to “compel the trustee to perform his duties,” to “enjoin the trustee from committing a breach of trust,” to “compel the trustee to redress a breach of trust,” and to “remove the trustee.” Restatement (Second) of Trusts §199; see also id., §205 (beneficiary may require a trustee to restore “any loss or depreciation in value of the trust estate” and “any profit made by [the trustee] through the breach of trust”).3 So too here. Because respondents’ alleged mismanage- ment lost the pension fund hundreds of millions of dollars, petitioners have stated an injury to their equitable property interest in that trust. 2 The Court, by contrast, holds that participants and bene- ficiaries in a defined-benefit plan have no stake in their plan’s assets. Ante, at 4. In other words, the Court treats beneficiaries as mere bystanders to their own pensions. That is wrong on several scores. For starters, it creates a paradox: In one breath, the Court determines that peti- tioners have “no equitable or property interest” in their plan’s assets, ante, at 4; in another, the Court concedes that petitioners have an enforceable interest in receiving their “monthly pension benefits,” ante, at 2. Benefits paid from where? The plan’s assets, obviously. Precisely because pe- titioners have an interest in payments from their trust —————— 3 Even contingent and discretionary beneficiaries (those who might not ever receive any assets from the trust) can sue to protect the trust absent a personal financial loss (or an imminent risk of loss). See A. Hess, G. Bogert, & G. Bogert, Law of Trusts and Trustees §871 (June 2019 up- date) (Bogert & Bogert) (listing cases). 6 THOLE v. U. S. BANK N. A. SOTOMAYOR, J., dissenting fund, they have an interest in the integrity of the assets from which those payments come. See Russell, 473 U.S., at 142, n. 9. The Court’s contrary conclusion is unrecognizable in the fundamental trust law that both ERISA and the Plan Doc- ument expressly incorporated. If the participants and beneficiaries in a defined-benefit plan did not have equita- ble title to the plan’s assets, then no one would. Yet that would mean that no “trust” exists, contrary to the plain terms of both ERISA and the Plan Document. See 29 U.S. C. §1103(a); App. 60; see also n. 2, supra; Blair, 300 U.S., at 13; Bogert & Bogert §1; Restatement (Second) of Trusts §74, Comment a, at 192. Recognizing this problem, the Court asserts that, despite our case law, ERISA’s text, and petitioners’ Plan Document, trust law is not relevant at all. The Court announces that all “plaintiffs who allege mismanagement of a defined-ben- efit plan,” regardless of their plan terms, cannot invoke a “trust-law analogy” to “support Article III standing.” Ante, at 4. That categorical conclusion has no basis in logic or law. Logically, the Court’s reasoning relies on tautology. To dis- tinguish an ERISA trust fund from a private trust fund, the Court observes that petitioners’ payments have not “fluctu- ate[d] with the value of the plan or because of the plan fi- duciaries’ good or bad investment decisions” in the past, ante, at 1, so petitioners will necessarily continue to receive full payments “for the rest of their lives,” no matter the out- come of this suit, ante, at 3. But that is circular: Petitioners will receive benefits indefinitely because they receive bene- fits now? The Court does not explain how the pension could satisfy its monthly obligation if, as petitioners allege, the plan fiduciaries drain the pool from which petitioners’ fixed income streams flow. Legally, the Court’s analysis lists distinctions without a difference. First, the Court writes that a trust promising Cite as: 590 U. S. ____ (2020) 7 SOTOMAYOR, J., dissenting fixed payments is not a trust because the promise “will not change, regardless of how well or poorly the [trust] is man- aged.” Ante, at 4. That does not follow (a promise of pay- ment differs from an actual payment) and it does not dis- prove a trust. Trusts vary in their terms, to be sure. See Bogert & Bogert §181 (“The settlor has great freedom in the selection of the beneficiaries and their interests”). But re- gardless whether a trust creates a “present interest” in “im- mediate enjoyment” of the trust property or “a future inter- est” in “receiv[ing] trust assets or benefits at a later time,” the beneficiary “always” has an “equitable” stake. Ibid. Second, the Court states that “the employer, not plan par- ticipants, receives any surplus left over after all of the ben- efits are paid” and “the employer, not plan participants, is on the hook for plan shortfalls.” Ante, at 4; see also ante, at 7 (noting that “the federal Pension Benefit Guaranty Corporation is required by law to pay” some benefits if a plan fails). But that does not distinguish ERISA from standard trust law, either. It does not matter that other parties besides beneficiaries may have a residual stake in trust assets; a beneficiary with a life-estate interest in pay- ments from a trust still has an equitable interest. See Bogert & Bogert §706. Even life-beneficiaries may “re- quir[e]” the trustee “to pay the trust the amount necessary to place the trust account in the position in which it would have been, had the [trustee’s fiduciary] duty been per- formed.” Ibid. If anything, petitioners’ equitable interests are stronger than those of their common-law counterparts; the Plan Document provides petitioners a residual interest in the pension fund’s assets even after the trust terminates. See Record in No. 13–cv–2687, Doc. 107–1, at 75. Nor is it relevant whether additional parties (including an insurance carrier) are “on the hook” for plan shortfalls after a loss occurs. Cf. ante, at 4, 6, 7, 8, n. 2. The Court appears to conclude that insurance (or other protections to 8 THOLE v. U. S. BANK N. A. SOTOMAYOR, J., dissenting remedy trust losses) would deprive beneficiaries of their eq- uitable interests in their trusts. See ibid. But the Court cites nothing supporting that proposition. To the contrary, it is well settled that beneficiaries retain equitable interests in trust assets even when those assets are insured or re- plenished. See Bogert & Bogert §599. Some States and trusts require that the “property of a trust . . . be insured” or similarly protected; indeed, some jurisdictions impose on trustees a fiduciary “duty to insure.” Ibid. (collecting au- thorities). None of those authorities suggests that benefi- ciaries lose their equitable interests as a result, and none suggests that the law excuses a fiduciary’s malfeasance simply because other sources may help provide relief. The Court’s opposing view—that employer liability and insur- ance pardon a trustee’s wrongdoing from a beneficiary’s suit—has no support in law. Third, the Court draws a line between a trust and a con- tract, ante, at 4, but this too is insignificant here. The Court declares that petitioners’ pension plan “is more in the na- ture of a contract,” ibid.¸ but then overlooks that the so- called contract creates a trust. The Plan Document ex- pressly requires that petitioners’ pension funds be held in a “trust” exclusively for petitioners’ benefit. App. 60–61. The Court’s statement that “the employer, not plan partici- pants, receives any surplus left over after all of the benefits are paid,” cf. ante, at 4, actually proves that a trust exists. The reason the employer does not receive any residual until “after all of the benefits are paid,” ibid., is because the Plan Document provides petitioners an enforceable residual in- terest, Record in No. 13–cv–2687, Doc. 107–1, at 75. It is telling that the Court does not cite, let alone analyze, the “contract” governing petitioners’ trust fund. Last, the Court cites inapposite case law. It asserts that “this Court has stated” that “plan participants possess no equitable or property interest in the plan.” Ante, at 4 (citing Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 (1999), and Cite as: 590 U. S. ____ (2020) 9 SOTOMAYOR, J., dissenting LaRue v. DeWolff, Boberg & Associates, Inc., 552 U.S. 248 (2008)). But precedent has said no such thing. Quite the opposite: Russell explained that defined-benefit-plan bene- ficiaries have a “common interest” in the “financial integ- rity” of their defined-benefit plan. 473 U.S., at 142, n. 9. Neither Hughes nor LaRue suggests otherwise. Hughes explained that a defined-benefit-plan beneficiary does not have “a claim to any particular asset that composes a part of the plan’s general asset pool.” 525 U.S., at 440. But that statement concerned whether the beneficiaries had a legal right to extra payments after the plan’s assets grew. Id., at 436–437. Whether a beneficiary has a legal claim to pay- ment when a plan gains money says nothing about whether a beneficiary has an equitable interest to restore assets when a plan loses money. Hughes, in fact, invited a suit like petitioners’: The Court suggested that the plaintiffs could have prevailed had they “allege[d] that [the employer] used any of the assets for a purpose other than to pay its obligations to the Plan’s beneficiaries.” Id., at 442–443. Equally telling is that Hughes resolved the beneficiaries’ breach-of-fiduciary claims on the merits without doubting whether the plaintiffs had standing to assert them. See id., at 443–446; Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 94–95 (1998) (explaining this Court’s inde- pendent duty to assure itself of Article III standing). LaRue is even less helpful to today’s Court. That case involved a defined-contribution plan, not a defined-benefit plan. 552 U.S., at 250. It was about remedies, not rights. See id., at 256. And it stated that although “individual in- juries” may occur from ERISA plan mismanagement, the statutory provision at issue required that the remedy go to the plan. Ibid. (discussing 29 U.S. C. §1132(a)(2)). LaRue said nothing about standing and nothing about ERISA’s 10 THOLE v. U. S. BANK N. A. SOTOMAYOR, J., dissenting other statutory remedies.4 In fact, LaRue confirmed that ERISA beneficiaries like petitioners may sue fiduciaries for “ ‘any profit which would have accrued to the [plan] if there had been no breach of trust,’ ” 552 U.S., at 254, n. 4, or where “fiduciary breaches . . . impair the value of plan as- sets,” id., at 256. Because petitioners bring those kinds of claims, LaRue supports their standing. B Second, petitioners have standing because a breach of fiduciary duty is a cognizable injury, regardless whether that breach caused financial harm or increased a risk of nonpayment. 1 A beneficiary has a concrete interest in a fiduciary’s loy- alty and prudence. For over a century, trust law has pro- vided that breach of “a fiduciary or trust relation” makes the trustee “suable in equity.” Clews v. Jamieson, 182 U.S. 461, 480–481 (1901). That is because beneficiaries have an enforceable “right that the trustee shall perform the trust in accordance with the directions of the trust instrument and the rules of equity.” Bogert & Bogert §861; see also Restatement (Second) of Trusts §199 (trust beneficiary may “maintain a suit” for breach of fiduciary duty). That interest is concrete regardless whether the benefi- ciary suffers personal financial loss. A beneficiary may sue a trustee for restitution or disgorgement, remedies that rec- ognize the relevant harm as the trustee’s wrongful gain. Through restitution law, trustees are “subject to liability” if they are unjustly enriched by a “ ‘violation of [a benefi- ciary]’s legally protected rights,’ ” like a breach of fiduciary —————— 4 The Court expressly declined to address other relief like that provided under §1132(a)(3), see LaRue, 552 U.S., at 252, a provision that petition- ers invoke here. Cite as: 590 U. S. ____ (2020) 11 SOTOMAYOR, J., dissenting duty. Restatement (Third) of Restitution and Unjust En- richment §1, and Comment a, p. 3 (2010). Similarly, dis- gorgement allows a beneficiary to “stri[p]” the trustee of “a wrongful gain.” Id., §3, Comment a, at 22. Our Court drew on these principles almost 200 years ago when it stated that a trustee’s breach of loyalty supports a cause of action “without any further inquiry” into gain or loss to a trust or its beneficiaries. Michoud v. Girod, 4 How. 503, 553 (1846); see also, e.g., id., at 556–557 (noting this rule’s roots in “English courts of chancery from an early day”); see also Magruder v. Drury, 235 U.S. 106, 120 (1914) (under “the principles governing the duty of a trustee,” it “makes no dif- ference that the [trust] estate was not a loser in the trans- action”); Bogert & Bogert §543 (similar). Put another way, “traditional remedies” like “unjust enrichment . . . are not contingent on a plaintiff ’s allegation of damages beyond the violation of his private legal right.” Spokeo, 578 U. S., at ___–___ (THOMAS, J., concurring) (slip op., at 2–3). Nor does it matter whether the beneficiaries receive the remedy themselves. A beneficiary may require a trustee to “restore” assets directly “to the trust fund.” Bogert & Bogert §861; see also Restatement (Second) of Trusts §205. In fact, because fiduciary duties are so paramount, the rem- edy need not involve money at all. A beneficiary may sue to “enjoin the trustee from committing a breach of trust” and to “remove the trustee.” Id., §199. Congress built on this tradition by making plan fiduciar- ies expressly liable to restore to the plan wrongful profits and any losses their breach caused, and by providing for in- junctive relief to stop the misconduct and remove the wrongdoers. See 29 U.S. C. §§1109, 1132(a)(2), (3). In do- ing so, Congress rejected the Court’s statement that a “trust-law analogy . . . does not” apply to “plaintiffs who al- lege mismanagement of a defined-benefit plan.” Cf. ante, at 4. To the contrary, ERISA imposes “trust-like fiduciary standards,” Varity Corp. v. Howe, 516 U.S. 489, 497 (1996), 12 THOLE v. U. S. BANK N. A. SOTOMAYOR, J., dissenting to “[r]espon[d] to deficiencies in prior law regulating [retire- ment] plan fiduciaries” and to provide even greater protec- tions for defined-benefit-plan beneficiaries, Harris Trust, 530 U.S., at 241–242; see also Spokeo, 578 U. S., at ___ (slip op., at 9) (historical and congressionally recognized injuries often support standing). Given all that history and ERISA’s text, this Court itself has noted, in the defined-benefit-plan context, “that when a trustee” breaches “his fiduciary duty to the beneficiaries,” the “beneficiaries may then maintain an action for restitu- tion . . . or disgorgement.” Harris Trust, 530 U.S., at 250. Harris Trust confirms that ERISA incorporated “[t]he com- mon law of trusts” to allow defined-benefit-plan beneficiar- ies to seek relief from fiduciary breaches. Ibid.; see also id., at 241–242 (noting that certain ERISA provisions “supple- men[t] the fiduciary’s general duty of loyalty to the plan’s beneficiaries”).5 2 The Court offers no reply to all the historical and statu- tory evidence showing petitioners’ concrete interest in pru- dent and loyal fiduciaries. Instead, the Court insists again that “participants in a defined-benefit plan are not similarly situated to the bene- ficiaries of a private trust,” ante, at 4, and that the “com- plaint did not plausibly and clearly claim that the alleged mismanagement of the plan substantially increased the —————— 5 Curiously, today’s Court suggests that ERISA’s efforts to bolster trust-law fiduciary duties actually degraded them instead. See ante, at 4 (justifying a narrow construction of ERISA protections because “trust law informs but does not control interpretation of ERISA”). Yet the case the Court cites, Varity Corp. v. Howe, 516 U.S. 489 (1996), relied on trust law to establish the minimum obligations ERISA imposes on plan fidu- ciaries. See id., at 506 (confirming that the “ERISA fiduciary duty in- cludes [the] common law duty of loyalty”). Today’s Court mistakes the floor for the ceiling. See ibid.; see also Harris Trust, 530 U.S., at 241– 242. Cite as: 590 U. S. ____ (2020) 13 SOTOMAYOR, J., dissenting risk that the plan and the employer would fail and be una- ble to pay the plaintiffs’ future pension benefits,” ante, at 7. The first observation is incorrect for the reasons stated above. But even were the Court correct that petitioners’ rights do not sound in trust law, petitioners would still have standing. The Court reasons that petitioners have an en- forceable right to “monthly payments for the rest of their lives” because their plan confers a “contractua[l] enti- tle[ment].” Ante, at 2. Under that view, the plan also con- fers contractual rights to loyal and prudent plan manage- ment. See App. 60–61; 29 U.S. C. §§1104, 1109. Thus, for the same reason petitioners could bring suit if they did not receive payments from their plan, they could bring suit if they did not receive loyalty and prudence from their fiduciaries. After all, it is well settled that breach of “a contract to act diligently and skil[l]fully” provides a “groun[d] of action” in federal court. Wilcox v. Executors of Plummer, 4 Pet. 172, 181–182 (1830). It is also undisputed that “[a] breach of contract always creates a right of action,” even when no financial “harm was caused.” Restatement (First) of Contracts §328, and Comment a, pp. 502–503 (1932); see also Spokeo, 578 U. S., at ___–___ (THOMAS, J., concurring) (slip op., at 2–3) (“[C]ourts historically pre- sumed that the plaintiff suffered a de facto injury merely from having his personal, legal rights invaded” even with- out any “allegation of damages”). Petitioners would thus have standing even were they to accept the Court’s flawed premise. The Court’s second statement, that petitioners have not alleged a substantial risk of missed payments, ante, at 7, is orthogonal to the issues at hand. A breach-of-fiduciary- duty claim exists regardless of the beneficiary’s personal gain, loss, or recovery. In rejecting petitioners’ standing and maintaining that “this suit would not change [petition- ers’] monthly pension benefits,” ante, at 8, the Court fails to 14 THOLE v. U. S. BANK N. A. SOTOMAYOR, J., dissenting distinguish the different rights on which pension-plan ben- eficiaries may sue. They have a right not just to their pen- sion benefits, but also to loyal and prudent fiduciaries. See Warth v. Seldin, 422 U.S. 490, 500 (1975) (the standing in- quiry “turns on the nature and source of the claim as- serted”). Petitioners seek relief tailored to the second cate- gory, including restitution, disgorgement, and injunctive remedies. Cf. Great-West Life & Annuity Ins. Co. v. Knud- son, 534 U.S. 204, 215–216 (2002) (explaining the various historical bases for ERISA’s remedies). The Court does not even try to explain ERISA’s (or the Plan Document’s) text imposing fiduciary duties, let alone this Court’s decision in Harris Trust supporting petitioners’ standing. And even though the Court briefly mentions that petitioners seek “in- junctive relief, including replacement of the plan’s fiduciar- ies,” ante, at 2, it offers no analysis on that issue. Put dif- ferently, the Court denies petitioners standing to sue without analyzing all their claims to relief. With its focus on fiscal harm, the Court seems to suggest that pecuniary injury is the sine qua non of standing. The Court emphasizes that petitioners themselves have not “sustained any monetary injury” apart from their trust fund’s losses. Ante, at 2; see also ante, at 4. But injury to a plaintiff ’s wallet is not, and has never been, a prerequisite for standing. The Constitution permits federal courts to hear disputes over nonfinancial injuries like the harms alleged here. Spokeo, 578 U. S., at ___ (slip op., at 9); see also, e.g., id., at ___–___ (THOMAS, J., concur- ring) (slip op., at 2–3); Tennessee Elec. Power Co. v. TVA, 306 U.S. 118, 137–138 (1939).6 In Heckler v. Mathews, 465 —————— 6 This Court has found standing in myriad cases involving noneco- nomic injuries. Examples include the denial or threatened impairment of: equal treatment, Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 211 (1995); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666 (1993); “truthful information Cite as: 590 U. S. ____ (2020) 15 SOTOMAYOR, J., dissenting U. S. 728 (1984), for instance, this Court recognized a plain- tiff ’s standing to assert a “noneconomic” injury for discrim- inatory distribution of his Social Security benefits, even though he did not have “a substantive right to any particu- lar amount of benefits.” Id., at 737, 739. Petitioners’ stand- ing here is even sturdier: They assert a noneconomic injury for unlawful management of their retirement plan and, un- like the plaintiff in Heckler, petitioners do have a substan- tive right to a particular amount of benefits. Cf. ante, at 2 (acknowledging that petitioners’ benefits are “vested” and that payments are “legally and contractually” required). None of this is disputed. In fact, the Court seems to con- cede all this reasoning in a footnote. See ante, at 6, n. 1. The Court appears to acknowledge that an ERISA benefi- ciary’s noneconomic right to information from the fiduciar- ies would support standing. See ibid. (citing 29 U.S. C. §1132(a)(1)(A)). Yet the Court offers no reason to think that a beneficiary’s noneconomic right to loyalty and prudence from the fiduciaries is meaningfully different. For its part, the concurrence attempts to fill the Court’s gaps by adding that “[t]he fiduciary duties created by ERISA are owed to the plan, not petitioners.” Ante, at 2 (opinion of THOMAS, J.). But this Court has already rejected —————— concerning the availability of housing,” Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982); esthetic and recreational interests, Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181–182 (2000); “information which must be publicly disclosed pur- suant to a statute,” Federal Election Comm’n v. Akins, 524 U.S. 11, 21 (1998); one’s “personal, political, and professional reputation,” Meese v. Keene, 481 U.S. 465, 473 (1987); and the right to speak, Spokeo, 578 U. S., at ___ (slip op., at 9) (citing Pleasant Grove City v. Summum, 555 U.S. 460 (2009)). This Court has even said that a for-profit business has standing to assert religious injuries. See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 715, and n. 26 (2014). Today’s Court does not recon- cile these cases with its novel financial-harm requirement; nor does the Court explain why a breach of fiduciary duty is less concrete than the injuries listed above. 16 THOLE v. U. S. BANK N. A. SOTOMAYOR, J., dissenting that view. Compare Varity Corp., 516 U.S., at 507 (“This argument fails”), with id., at 516 (THOMAS, J., dissenting). Nor is that argument persuasive on its own terms. The concurrence relies on a compound prepositional phrase taken out of context, collecting ERISA provisions saying that a fiduciary acts “with respect to” a plan. See ante, at 2 (opinion of THOMAS, J.). Of course a plan fiduciary per- forms her duties “with respect to a plan.” 29 U.S. C. §1104(a)(1). After all, she manages the plan. §1102(a). But she does so “solely in the interest” and “for the exclusive purposes” of the plan’s “participants and beneficiaries.” §§1103(a), (c)(1), 1104(a)(1). In short, the concurrence gets it backwards. Congress did not enact ERISA to protect plans as artificial entities. It enacted ERISA (and required trusts in the first place) to protect the plan “participants” and “their beneficiaries.” §1001(b). Thus, ERISA fiduciary duties run where the stat- ute says: to the participants and their beneficiaries. C Last, petitioners have standing to sue on their retirement plan’s behalf. 1 Even if petitioners had no suable interest in their plan’s financial integrity or its competent supervision, the plan it- self would. There is no disputing at this stage that respond- ents’ “mismanagement” caused the plan “approximately $750 million in losses” still not fully reimbursed. Ante, at 2 (majority opinion). And even under the concurrence’s view, respondents’ fiduciary duties “are owed to the plan.” Ante, at 2 (opinion of THOMAS, J.). The plan thus would have standing to sue under either theory discussed above. The problem is that the plan is a legal fiction: Although ERISA provides that a retirement plan “may sue . . . as an entity,” 29 U.S. C. §1132(d)(1), someone must still do so on Cite as: 590 U. S. ____ (2020) 17 SOTOMAYOR, J., dissenting the plan’s behalf. Typically that is the fiduciary’s job. See §1102(a)(1) (fiduciaries have “authority to control and man- age the operation and administration of the plan”). But im- agine a case like this one, where the fiduciaries refuse to sue because they would be the defendants. Does the Con- stitution compel a pension plan to let a fox guard the hen- house? Of course not. This Court’s representational standing doctrine permits petitioners to sue on their plan’s behalf. See Food and Commercial Workers v. Brown Group, Inc., 517 U.S. 544, 557 (1996). This doctrine “rests on the prem- ise that in certain circumstances, particular relationships (recognized either by common-law tradition or by statute) are sufficient to rebut the background presumption . . . that litigants may not assert the rights of absent third parties.” Ibid. (footnotes omitted). This is especially so where, as here, there is “some sort of impediment” to the other party’s “effective assertion of their own rights.” R. Fallon, J. Man- ning, D. Meltzer, & D. Shapiro, Hart & Wechsler’s The Fed- eral Courts and the Federal System 158 (6th ed. 2009); see also Powers v. Ohio, 499 U.S. 400, 410–411 (1991). The common law has long regarded a beneficiary’s repre- sentational suit as a proper “basis for a lawsuit in English or American courts.” Spokeo, 578 U. S., at ___ (slip op., at 9). When “the trustee cannot or will not” sue, a beneficiary may do so “as a temporary representative of the trust.” Bogert & Bogert §869. The common law also allows “the terms of a trust” to “confer upon others the power to enforce the trust,” giving that person “standing” to “bring suit against the trustee.” Restatement (Third) of Trusts §94, Comment d(1), at 7. ERISA embraces this tradition. Sections 1132(a)(2) and (a)(3) authorize participants and beneficiaries to sue “in a representative capacity on behalf of the plan as a whole,” Russell, 473 U.S., at 142, n. 9, so that any “recovery” aris- ing from the action “inures to the benefit of the plan as a 18 THOLE v. U. S. BANK N. A. SOTOMAYOR, J., dissenting whole,” id., at 140. Perhaps for this reason, and adding to the incongruity in today’s outcome, some Members of this Court have insisted that lawsuits to enforce ERISA’s fidu- ciary duties “must” be brought “in a representative capac- ity.” Varity Corp., 516 U.S., at 516 (THOMAS, J., dissent- ing) (internal quotation marks omitted). Permitting beneficiaries to enforce their plan’s rights finds plenty of support in our constitutional case law. Take associational standing: An association may file suit “to re- dress its members’ injuries, even without a showing of in- jury to the association itself.” Food and Commercial Work- ers, 517 U.S., at 552. All Article III requires is that a member “ ‘would otherwise have standing to sue in their own right’ ” and that “ ‘the interests [the association] seeks to protect are germane to the organization’s purpose.’ ” Id., at 553. Petitioners’ suit here is the other side of the same coin: The plan would have standing to sue in its own right, and petitioners’ interest is to disgorge wrongful profits and reimburse the trust for losses, thereby preserving trust as- sets held for their exclusive benefit. Next-friend standing is another apt analog. Long “ac- cepted [as a] basis for jurisdiction,” this doctrine allows a party to “appear in [federal] court on behalf of detained prisoners who are unable . . . to seek relief themselves.” Whitmore v. Arkansas, 495 U.S. 149, 162 (1990) (tracing the doctrine’s roots to the 17th century). Here, of course, petitioners’ plan cannot access the courts itself because the parties the Court thinks should file suit (the fiduciaries) are the defendants. Like a “next friend,” moreover, petitioners are “dedicated to the best interests” of the party they seek to protect, id., at 163, because the plan’s interests are peti- tioners’ interests.7 —————— 7 Other examples include guardians ad litem and, of course, trustees. E.g., Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269, Cite as: 590 U. S. ____ (2020) 19 SOTOMAYOR, J., dissenting Congress was on well-established ground when it allowed pension participants and beneficiaries to sue on their retire- ment plan’s behalf. 2 The Court’s conflicting conclusion starts with inapposite cases. It invokes Hollingsworth v. Perry, 570 U.S. 693, 708 (2013), reasoning that “to claim ‘the interests of others, the litigants themselves still must have suffered an injury in fact.’ ” Ante, at 4. Perry, a case about a California ballot initiative, is a far cry from this one. Perry found that “pri- vate parties” with no stake in the litigation “distinguishable from the general interest of every citizen” were not proper representatives of the State. 570 U.S., at 707, 710. If an- ything, Perry supports petitioners here: This Court found “readily distinguishable” other representational-standing cases by underscoring their sound traditions. Id., at 711 (distinguishing assignee and next-friend standing).8 A tra- ditional beneficiary-versus-trustee claim like petitioners’ is exactly such a suit. Next, the Court maintains that petitioners “have not been legally or contractually assigned” or “appointed” to —————— 287 (2008) (noting in the Article III standing context that “federal courts routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit,” such as when “[t]rustees bring suits to benefit their trusts”); see also id., at 304–305, n. 2 (ROBERTS, C. J., dissenting) (“Trustees, guardians ad litem, executors, and the like make up a settled, continuous practice ‘of the sort traditionally amenable to, and resolved by, the judicial process’ ”). 8 The Court cites two more cases: Gollust v. Mendell, 501 U.S. 115 (1991), and Craig v. Boren, 429 U.S. 190 (1976). But both endorsed ex- pansive views of standing. See Gollust, 501 U.S., at 125–127 (allowing indirect owners of a corporation to sue under federal securities laws); Craig, 429 U.S., at 194–195 (holding that a plaintiff had representa- tional standing to assert an equal protection claim on a business patron’s behalf ). To the extent the Court suggests that a financial loss is neces- sary (or that a breach of fiduciary duty is insufficient) for standing, that is incorrect. See Part II–B, supra. 20 THOLE v. U. S. BANK N. A. SOTOMAYOR, J., dissenting represent the plan. Ante, at 5. Although a formal assign- ment or appointment suffices for standing, it is not neces- sary. See, e.g., Food and Commercial Workers, 517 U.S., at 552; Whitmore, 495 U.S., at 162. Regardless, Congress ex- pressly and thereby legally assigned pension-plan partici- pants and beneficiaries the right to represent their plan, in- cluding in lawsuits where the other would-be representative is the defendant. 29 U.S. C. §§1132(a)(2), (3); see also, e.g., Restatement (Third) of Trusts §94, Com- ment d(1), at 7 (trust terms may confer standing to sue the trustee). ERISA was “primarily concerned with the possi- ble misuse of plan assets, and with remedies that would protect the entire plan.” Russell, 473 U.S., at 142; see also id., at 140–142, nn. 8–9.9 Far from “ ‘automatically’ ” con- ferring petitioners standing to sue or creating an injury from whole cloth, cf. ante, at 5, ERISA assigns the right to sue on the plan’s unquestionably cognizable harm: here, fi- duciary breaches causing wrongful gains and hundreds of millions of dollars in losses. So even under the Court’s framing, it does not matter whether petitioners “sustained any monetary injury,” ante, at 2, because their pension plan did. To support standing, a statute may (but need not) legally designate a party to sue on another’s behalf. Be- cause ERISA does so here, petitioners should be permitted to sue for their pension plan’s sake. —————— 9 Neither Sprint, 554 U.S. 269, nor Vermont Agency of Natural Re- sources v. United States ex rel. Stevens, 529 U.S. 765 (2000), is to the contrary. Cf. ante, at 5. Both decisions undermine today’s result. See Sprint, 554 U.S., at 280, 287 (noting in the Article III context that “ ‘na- ked legal title’ ” has long permitted suit and that “federal courts routinely entertain suits which will result in relief for parties that are not them- selves directly bringing suit,” such as when “[t]rustees bring suits to ben- efit their trusts”); Vermont Agency, 529 U.S., at 774 (showing that even a partial statutory assignment grants constitutional standing to sue on another’s behalf ). Cite as: 590 U. S. ____ (2020) 21 SOTOMAYOR, J., dissenting III The Court also notes that “[e]ven if a defined-benefit plan is mismanaged into plan termination, the federal [Pension Benefit Guaranty Corporation] by law acts as a backstop and covers the vested pension benefits up to a certain amount and often in full.” Ante, at 8, n. 2. The Court then suggests that the only way beneficiaries of a mismanaged plan could sue is if their benefits were not “guaranteed in full by the PBGC.” Ibid. Those statements underscore the problem in today’s de- cision. Whereas ERISA and petitioners’ Plan Document ex- plicitly mandate that all plan assets be handled prudently and loyally for petitioners’ exclusive benefit, the Court sug- gests that beneficiaries should endure disloyalty, impru- dence, and plan mismanagement so long as the Federal Government is there to pick up the bill when “the plan and the employer” “fail.” Ibid. But the purpose of ERISA and fiduciary duties is to pre- vent retirement-plan failure in the first place. 29 U.S. C. §1001. In barely more than a decade, the country (indeed the world) has experienced two unexpected financial crises that have rocked the existence and stability of many em- ployers once thought incapable of failing. ERISA deliber- ately provides protection regardless whether an employer is on sound financial footing one day because it may not be so stable the next. See ibid.10 The Court’s references to Government insurance also overlook sobering truths about the PBGC. The Government Accountability Office recently relisted the PBGC as one of the “High Risk” Government programs most likely to be- come insolvent. See GAO, Report to Congressional Com- mittees, High-Risk Series: Substantial Efforts Needed To —————— 10 This also explains why a material risk of loss is not a prerequisite for standing, least of all for retirees relying on their retirement plan for in- come. Cf. ante, at 7–8. 22 THOLE v. U. S. BANK N. A. SOTOMAYOR, J., dissenting Achieve Greater Progress on High-Risk Areas (GAO–19– 157SP, 2019) (GAO High-Risk Report). Noting the insol- vency of defined-benefit plans that the PBGC insures and the “significant financial risk and governance challenges that the PBGC faces,” the GAO High-Risk Report warns that “the retirement benefits of millions of American work- ers and retirees could be at risk of dramatic reductions” within four years. Id., at 56–57. At last count, the PBGC’s “net accumulated financial deficit” was “over $51 billion” and its “exposure to potential future losses for underfunded plans” was “nearly $185 billion.” Id., at 267. Notably, the GAO had issued these warnings before the current financial crisis struck. Exchanging ERISA’s fiduciary duties for Gov- ernment insurance would only add to the PBGC’s plight and require taxpayers to bail out pension plans. IV It is hard to overstate the harmful consequences of the Court’s conclusion. With ERISA, “the crucible of congres- sional concern was misuse and mismanagement of plan as- sets by plan administrators.” Russell, 473 U.S., at 141, n. 8. In imposing fiduciary duties and providing a private right of action, Congress “designed” the statute “to prevent these abuses in the future.” Ibid. Yet today’s outcome en- courages the very mischief ERISA meant to end. After today’s decision, about 35 million people with de- fined-benefit plans11 will be vulnerable to fiduciary miscon- duct. The Court’s reasoning allows fiduciaries to misuse pension funds so long as the employer has a strong enough balance sheet during (or, as alleged here, because of ) the misbehavior. Indeed, the Court holds that the Constitution —————— 11 See Dept. of Labor, Private Pension Plan Bulletin Historical Tables and Graphs, 1975–2017 (Sept. 2019) (Table E4), https: / /www.dol.gov / sites / dolgov / files / EBSA / researchers / statistics / retirement - bulletins / private - pension - plan - bulletin - historical - tables - and - graphs.pdf. Cite as: 590 U. S. ____ (2020) 23 SOTOMAYOR, J., dissenting forbids retirees to remedy or prevent fiduciary breaches in federal court until their retirement plan or employer is on the brink of financial ruin. See ante, at 7–8. This is a re- markable result, and not only because this case is bookended by two financial crises. There is no denying that the Great Recession contributed to the plan’s massive losses and statutory underfunding, or that the present pandemic punctuates the perils of imprudent and disloyal financial management. Today’s result also disrupts the purpose of ERISA and the trust funds it requires. Trusts have trustees and fiduciary duties to protect the assets and the beneficiaries from the vicissitudes of fortune. Fiduciary duties, especially loyalty, are potent prophylactic rules that restrain trustees “tempted to exploit [a] trust.” Bogert & Bogert §543. Con- gress thus recognized that one of the best ways to protect retirement plans was to codify the same fiduciary duties and beneficiary-enforcement powers that have existed for centuries. E.g., 29 U.S. C. §§1001(b), 1109, 1132. Along those lines, courts once held fiduciaries to a higher stand- ard: “Not honesty alone, but the punctilio of an honor the most sensitive.” Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928) (Cardozo, C. J.). Not so today. Nor can petitioners take comfort in the so-called “regu- latory phalanx” guarding defined-benefit plans from mis- management. Ante, at 7. Having divested ERISA of en- forceable fiduciary duties and beneficiaries of their right to sue, the Court lists “employers and their shareholders,” other fiduciaries, and the “Department of Labor” as parties on whom retirees should rely. Ante, at 6–7. But there are serious holes in the Court’s proffered line of defense. The Court’s proposed solutions offer nothing in a case like this one. The employer, its shareholders, and the plan’s co- fiduciaries here have no reason to bring suit because they either committed or profited from the misconduct. Recall 24 THOLE v. U. S. BANK N. A. SOTOMAYOR, J., dissenting the allegations: Respondents misused a pension plan’s as- sets to invest in their own mutual funds, pay themselves excessive fees, and swell the employer’s income and stock prices. Nor is the Court’s suggestion workable in the mine run of cases. The reason the Court gives for trusting em- ployers and shareholders to look out for beneficiaries—“be- cause the employers are entitled to the plan surplus and are often on the hook for plan shortfalls,” ante, at 6—is what commentators call a conflict of interest.12 Neither is the Federal Government’s enforcement power a palliative. “ERISA makes clear that Congress did not in- tend for Government enforcement powers to lessen the re- sponsibilities of plan fiduciaries.” Central States, 472 U.S., at 578. The Secretary of Labor, moreover, signed a brief (in support of petitioners) verifying that the Federal Govern- ment cannot “monitor every [ERISA] plan in the country.” Brief for United States as Amicus Curiae 26. Even when the Government can sue (in a representational capacity, of course), it cannot seek all the relief that a participant or beneficiary could. Compare 29 U.S. C. §1132(a)(2) with §1132(a)(3). At bottom, the Court rejects ERISA’s private- enforcement scheme and suggests a preference that taxpay- ers fund the monitoring (and perhaps the bailing out) of pension plans. See ante, at 6–8, and n. 2. Finally, in justifying today’s outcome, the Court discusses attorney’s fees. Twice the Court underlines that attorneys have a “$31 million” “stake” in this case. Ante, at 2, 3. But no one in this litigation has suggested attorney’s fees as a —————— 12 E.g., Fischel & Langbein, ERISA’s Fundamental Contradiction: The Exclusive Benefit Rule, 55 U. Chi. L. Rev. 1105, 1121 (1988). This con- flict exists because, contrary to the Court’s assertion, the employer and its shareholders are not “entitled to the plan surplus” until after the plan terminates and after all vested benefits have been paid from the trust fund’s assets. Compare ante, at 6, with 29 U.S. C. §1103(c)(1) (ERISA plan assets “shall never inure to the benefit of any employer” while the trust exists); see also App. 61; Record in No. 13–cv–2687 (D Minn.), Doc. 107–1, p. 75. Cite as: 590 U. S. ____ (2020) 25 SOTOMAYOR, J., dissenting basis for standing. As the Court appears to admit, its focus on fees is about optics, not law. See ante, at 3 (acknowledg- ing that attorney’s fees do not advance the standing in- quiry). The Court’s aside about attorneys is not only misplaced, it is also mistaken. Missing from the Court’s opinion is any recognition that Congress found private enforcement suits and fiduciary duties critical to policing retirement plans; that it was after this litigation was initiated that respond- ents restored $311 million to the plan in compliance with statutorily required funding levels; and that counsel justi- fied their fee request as a below-market percentage of the $311 million employer infusion that this lawsuit allegedly precipitated. * * * The Constitution, the common law, and the Court’s cases confirm what common sense tells us: People may protect their pensions. “Courts,” the majority surmises, “some- times make standing law more complicated than it needs to be.” Ante, at 8. Indeed. Only by overruling, ignoring, or misstating centuries of law could the Court hold that the Constitution requires beneficiaries to watch idly as their supposed fiduciaries misappropriate their pension funds. I respectfully dissent	The Court holds that the Constitution prevents millions of pension from enforcing their rights to prudent and loyal management of their retirement trusts. Indeed, the Court determines that pension may not bring a federal lawsuit to stop or cure retirement-plan mismanagement until their pensions are on the verge of default. This con- clusion conflicts with common sense and longstanding prec- edent. I A ERISA1 protects “the interests of participants in em- ployee benefit plans and their beneficiaries.” 9 U.S. C. Chief among these safeguards is that “all assets of an employee benefit plan” must “be held in trust by one or more trustees” for “the exclusive purposes of providing benefits to participants in the plan and their beneficiaries.” (c)(1). A retirement plan’s assets “shall never in- ure to the benefit of any employer.” ecause ERISA requires that retirement-plan assets be —————— 1 Employee Retirement Income Security Act of 1974, as amended, 9 U.S. C. et seq. THOLE v. U. S. ANK N. A. SOTOMAYOR, J., dissenting held in trust, it imposes on the trustees and other plan man- ag “ ‘strict standards’ ” of conduct “ ‘derived from the com- mon law of trusts.’ ” Fifth Third ). These “fiduciary duties” obligate the trustees and manag to act prudently and loyally, looking out solely for the best interest of the plan’s partici- pants and beneficiaries—typically, the employees who sac- rifice wages today to secure their retirements tomorrow. 1106. Not surprisingly, ERISA fiduciaries owe du- ties not only to the plan they manage, but also “to the ben- eficiaries” and participants for whom they manage it. Har- ris and Sav. ank v. Salomon Smith arney Inc., 530 U.S. 38, 41–4, 50 (000). If a fiduciary flouts these stringent standards, ERISA provides a cause of action and makes the fiduciary pon- ally liable. 1. The United States Secretary of Labor, a plan participant or beneficiary, or another fiduci- ary may sue for “appropriate relief under section 1109.” see also (permitting participants, beneficiaries, or fiduciaries to bring suit “to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan”). Section 1109’s remedies include restoration of lost assets, disgorgement of ill-gained profits, and removal of the offending fiduciaries. Petition allege that, as of 007, respondents breached their fiduciary duty of loyalty by investing pension-plan as- sets in respondents’ own mutual funds and by paying them- selves excessive management fees. (Petition further contend that this self-dealing pists today.) According to the complaint, the fiduciaries also made imprudent invest- ments that allowed them to manipulate accounting rules, boost their reported incomes, inflate their stock prices, and Cite as: 590 U. S. (00) 3 SOTOMAYOR, J., dissenting exercise lucrative stock options to their own (and their sharehold’) benefit. Then came the Great Recession. In 008, the retirement plan lost $1.1 billion, allegedly $748 million more than a properly managed plan would have lost. So some of the plan’s participants sued under 9 U.S. C. for the relief Congress contemplated: restoration of losses, dis- gorgement of respondents’ ill-gotten profits and fees, re- moval of the disloyal fiduciaries, and an injunction to stop the ongoing breaches. Faced with this lawsuit, respondents returned to the plan about $311 million (less than half of what the plan had lost) and none of the profits respond- ents had unlawfully gained. See 630–631 (CA8 018). II In the Court’s words, the question here is whether peti- tion have alleged a “concrete” injury to support their con- stitutional standing to sue. Ante, at 3. They have for at least three independent reasons. A First, petition have an interest in their retirement plan’s financial integrity, exactly like private trust benefi- ciaries have in protecting their trust. y alleging a $750 million injury to that interest, petition have established their standing. 1 This Court typically recognizes an “injury in fact” where the alleged harm “has a close relationship to” one “that has traditionally been regarded as providing a basis for a law- suit in English or American courts.” Spokeo, Inc. v. Robins, 578 U. S. (016) (slip op., at 9). Thus, the Court acknowledges that “private trust” beneficiaries have stand- ing to protect the assets in which they have an “equitable” interest. Ante, at 3–4. The critical question, then, is 4 THOLE v. U. S. ANK N. A. SOTOMAYOR, J., dissenting whether petition have an equitable interest in their re- tirement plan’s assets even though their pension payments are fixed. They do. ERISA expressly required the creation of a trust in which petition are the beneficiaries: “[A]ll assets” of the plan “shall be held in trust” for petition’ “exclusive” benefit. 9 U.S. C. (c)(1); see also These requirements exist regardless whether the employer establishes a defined-benefit or defined-contribution Similarly, the Plan Document governing petition- ’ defined-benefit plan states that, at “ ‘all times,’ ” all plan assets “ ‘shall’ ” be in a “ ‘trust fund’ ” managed for the par- ticipants’ and beneficiaries’ “ ‘exclusive benefit.’ ” App. 60– 61. The Plan Document also gives petition a residual interest in the trust fund’s assets: It instructs that, “[u]pon termination of the Plan, each Participant [and] eneficiary” shall look to “the assets of the [trust f]und” to “provide the benefits otherwise apparently promised in this Plan.” Rec- ord in No. –cv–687 (D Minn.), Doc. 107–1, p. 75. This arrangement conf on the “participants [and] beneficiar- ies” of a defined-benefit plan an equitable stake, or a “com- mon interest,” in “the financial integrity of the ” Mas- sachusetts Mut. Life Ins. n. 9 Petition’ equitable interest finds ample support in tra- ditional trust law. “The creation of a trust,” like the one here, provides beneficiaries “an equitable interest in the subject matter of the trust.” Restatement (Second) of —————— Generally, “a trust is created when one pon (a ‘settlor’ or ‘grantor’) transf property to a third party (a ‘trustee’) to administer for the ben- efit of another (a ‘beneficiary’).” North Carolina Dept. of Revenue v. Kim- berley Rice Kaestner 199 Family 588 U. S. (019) (slip op., at ); see also Restatement (Second) of s (1957). Neither the Court nor respondents dispute that petition’ pension fund meets these elements. Cite as: 590 U. S. (00) 5 SOTOMAYOR, J., dissenting s Comment a, p. 19 (1957); see Courts have long recognized that this equitable interest gives beneficiaries a basis to “have a breach of trust enjoined and redress[ed].” ; see also Spokeo, 578 U. S., at (slip op., at 9). That is, a beneficiary’s equitable interest allows her to “maintain a suit” to “compel the trustee to perform his duties,” to “enjoin the trustee from committing a breach of trust,” to “compel the trustee to redress a breach of trust,” and to “remove the trustee.” Restatement (Second) of s see also 05 (beneficiary may require a trustee to restore “any loss or depreciation in value of the trust estate” and “any profit made by [the trustee] through the breach of trust”).3 So too here. ecause respondents’ alleged mismanage- ment lost the pension fund hundreds of millions of dollars, petition have stated an injury to their equitable property interest in that trust. The Court, by contrast, holds that participants and bene- ficiaries in a defined-benefit plan have no stake in their plan’s assets. Ante, at 4. In other words, the Court treats beneficiaries as mere bystand to their own pensions. That is wrong on several scores. For start, it creates a paradox: In one breath, the Court determines that peti- tion have “no equitable or property interest” in their plan’s assets, ante, at 4; in another, the Court concedes that petition have an enforceable interest in receiving their “monthly pension benefits,” ante, at enefits paid from where? The plan’s assets, obviously. Precisely because pe- tition have an interest in payments from their trust —————— 3 Even contingent and discretionary beneficiaries (those who might not ever receive any assets from the trust) can sue to protect the trust absent a ponal financial loss (or an imminent risk of loss). See A. Hess, G. ogert, & G. ogert, Law of s and ees (June 019 up- date) (ogert & ogert) (listing cases). 6 THOLE v. U. S. ANK N. A. SOTOMAYOR, J., dissenting fund, they have an interest in the integrity of the assets from which those payments come. See U.S., at n. 9. The Court’s contrary conclusion is unrecognizable in the fundamental trust law that both ERISA and the Plan Doc- ument expressly incorporated. If the participants and beneficiaries in a defined-benefit plan did not have equita- ble title to the plan’s assets, then no one would. Yet that would mean that no “trust” exists, contrary to the plain terms of both ERISA and the Plan Document. See 9 U.S. C. App. 60; see also n. lair, 300 U.S., at ; ogert & ogert Restatement (Second) of s Comment a, at 19. Recognizing this problem, the Court asserts that, despite our case law, ERISA’s text, and petition’ Plan Document, trust law is not relevant at all. The Court announces that all “plaintiffs who allege mismanagement of a defined-ben- efit plan,” regardless of their plan terms, cannot invoke a “trust-law analogy” to “support Article III standing.” Ante, at 4. That categorical conclusion has no basis in logic or law. Logically, the Court’s reasoning relies on tautology. To dis- tinguish an ERISA trust fund from a private trust fund, the Court observes that petition’ payments have not “fluctu- ate[d] with the value of the plan or because of the plan fi- duciaries’ good or bad investment decisions” in the past, ante, at 1, so petition will necessarily continue to receive full payments “for the rest of their lives,” no matter the out- come of this suit, ante, at 3. ut that is circular: Petition will receive benefits indefinitely because they receive bene- fits now? The Court does not explain how the pension could satisfy its monthly obligation if, as petition allege, the plan fiduciaries drain the pool from which petition’ fixed income streams flow. Legally, the Court’s analysis lists distinctions without a difference. First, the Court writes that a trust promising Cite as: 590 U. S. (00) 7 SOTOMAYOR, J., dissenting fixed payments is not a trust because the promise “will not change, regardless of how well or poorly the [trust] is man- aged.” Ante, at 4. That does not follow (a promise of pay- ment diff from an actual payment) and it does not dis- prove a trust. s vary in their terms, to be sure. See ogert & ogert (“The settlor has great freedom in the selection of the beneficiaries and their interests”). ut re- gardless whether a trust creates a “present interest” in “im- mediate enjoyment” of the trust property or “a future inter- est” in “receiv[ing] trust assets or benefits at a later time,” the beneficiary “always” has an “equitable” stake. Second, the Court states that “the employer, not plan par- ticipants, receives any surplus left over after all of the ben- efits are paid” and “the employer, not plan participants, is on the hook for plan shortfalls.” Ante, at 4; see also ante, at 7 (noting that “the federal Pension enefit Guaranty Corporation is required by law to pay” some benefits if a plan fails). ut that does not distinguish ERISA from standard trust law, either. It does not matter that other parties besides beneficiaries may have a residual stake in trust assets; a beneficiary with a life-estate interest in pay- ments from a trust still has an equitable interest. See ogert & ogert Even life-beneficiaries may “re- quir[e]” the trustee “to pay the trust the amount necessary to place the trust account in the position in which it would have been, had the [trustee’s fiduciary] duty been per- formed.” If anything, petition’ equitable interests are stronger than those of their common-law counterparts; the Plan Document provides petition a residual interest in the pension fund’s assets even after the trust terminates. See Record in No. –cv–687, Doc. 107–1, at 75. Nor is it relevant whether additional parties (including an insurance carrier) are “on the hook” for plan shortfalls after a loss occurs. Cf. ante, at 4, 6, 7, 8, n. The Court appears to conclude that insurance (or other protections to 8 THOLE v. U. S. ANK N. A. SOTOMAYOR, J., dissenting remedy trust losses) would deprive beneficiaries of their eq- uitable interests in their trusts. See ut the Court cites nothing supporting that proposition. To the contrary, it is well settled that beneficiaries retain equitable interests in trust assets even when those assets are insured or re- plenished. See ogert & ogert Some States and trusts require that the “property of a trust be insured” or similarly protected; indeed, some jurisdictions impose on trustees a fiduciary “duty to insure.” (collecting au- thorities). None of those authorities suggests that benefi- ciaries lose their equitable interests as a result, and none suggests that the law excuses a fiduciary’s malfeasance simply because other sources may help provide relief. The Court’s opposing view—that employer liability and insur- ance pardon a trustee’s wrongdoing from a beneficiary’s suit—has no support in law. Third, the Court draws a line between a trust and a con- tract, ante, at 4, but this too is insignificant here. The Court declares that petition’ pension plan “is more in the na- ture of a contract,” ¸ but then overlooks that the so- called contract creates a trust. The Plan Document ex- pressly requires that petition’ pension funds be held in a “trust” exclusively for petition’ benefit. App. 60–61. The Court’s statement that “the employer, not plan partici- pants, receives any surplus left over after all of the benefits are paid,” cf. ante, at 4, actually proves that a trust exists. The reason the employer does not receive any residual until “after all of the benefits are paid,” ib is because the Plan Document provides petition an enforceable residual in- terest, Record in No. –cv–687, Doc. 107–1, at 75. It is telling that the Court does not cite, let alone analyze, the “contract” governing petition’ trust fund. Last, the Court cites inapposite case law. It asserts that “this Court has stated” that “plan participants possess no equitable or property interest in the ” Ante, at 4 and Cite as: 590 U. S. (00) 9 SOTOMAYOR, J., dissenting 55 U.S. 48 (008)). ut precedent has said no such thing. Quite the opposite: explained that defined-benefit-plan bene- ficiaries have a “common interest” in the “financial integ- rity” of their defined-benefit U.S., at n. 9. Neither Hughes nor suggests otherwise. Hughes explained that a defined-benefit-plan beneficiary does not have “a claim to any particular asset that composes a part of the plan’s general asset pool.” 55 U.S., at 440. ut that statement concerned whether the beneficiaries had a legal right to extra payments after the plan’s assets grew. at 436–437. Whether a beneficiary has a legal claim to pay- ment when a plan gains money says nothing about whether a beneficiary has an equitable interest to restore assets when a plan loses money. Hughes, in fact, invited a suit like petition’: The Court suggested that the plaintiffs could have prevailed had they “allege[d] that [the employer] used any of the assets for a purpose other than to pay its obligations to the Plan’s beneficiaries.” at 44–443. Equally telling is that Hughes resolved the beneficiaries’ breach-of-fiduciary claims on the merits without doubting whether the plaintiffs had standing to assert them. See at 443–446; Steel 53 U.S. 83, (explaining this Court’s inde- pendent duty to assure itself of Article III standing). is even less helpful to today’s Court. That case involved a defined-contribution plan, not a defined-benefit 55 U.S., at 50. It was about remedies, not rights. See at 56. And it stated that although “individual in- juries” may occur from ERISA plan mismanagement, the statutory provision at issue required that the remedy go to the (discussing 9 U.S. C. ()). said nothing about standing and nothing about ERISA’s 10 THOLE v. U. S. ANK N. A. SOTOMAYOR, J., dissenting other statutory remedies.4 In fact, confirmed that ERISA beneficiaries like petition may sue fiduciaries for “ ‘any profit which would have accrued to the [plan] if there had been no breach of trust,’ ” 55 U.S., at 54, n. 4, or where “fiduciary breaches impair the value of plan as- sets,” at 56. ecause petition bring those kinds of claims, supports their standing. Second, petition have standing because a breach of fiduciary duty is a cognizable injury, regardless whether that breach caused financial harm or increased a risk of nonpayment. 1 A beneficiary has a concrete interest in a fiduciary’s loy- alty and prudence. For over a century, trust law has pro- vided that breach of “a fiduciary or trust relation” makes the trustee “suable in equity.” Clews v. Jamieson, 18 U.S. 461, 480–481 (1901). That is because beneficiaries have an enforceable “right that the trustee shall perform the trust in accordance with the directions of the trust instrument and the rules of equity.” ogert & ogert see also Restatement (Second) of s (trust beneficiary may “maintain a suit” for breach of fiduciary duty). That interest is concrete regardless whether the benefi- ciary suff ponal financial loss. A beneficiary may sue a trustee for restitution or disgorgement, remedies that rec- ognize the relevant harm as the trustee’s wrongful gain. Through restitution law, trustees are “subject to liability” if they are unjustly enriched by a “ ‘violation of [a benefi- ciary]’s legally protected rights,’ ” like a breach of fiduciary —————— 4 The Court expressly declined to address other relief like that provided under see 55 U.S., at 5, a provision that petition- invoke here. Cite as: 590 U. S. (00) 11 SOTOMAYOR, J., dissenting duty. Restatement (Third) of Restitution and Unjust En- richment and Comment a, p. 3 (010). Similarly, dis- gorgement allows a beneficiary to “stri[p]” the trustee of “a wrongful gain.” Comment a, at Our Court drew on these principles almost 00 years ago when it stated that a trustee’s breach of loyalty supports a cause of action “without any further inquiry” into gain or loss to a trust or its beneficiaries. ; see also, e.g., at 556– (noting this rule’s roots in “English courts of chancery from an early day”); see also 35 U.S. 106, 10 (under “the principles governing the duty of a trustee,” it “makes no dif- ference that the [trust] estate was not a loser in the trans- action”); ogert & ogert (similar). Put another way, “traditional remedies” like “unjust enrichment are not contingent on a plaintiff ’s allegation of damages beyond the violation of his private legal right.” Spokeo, 578 U. S., at – (THOMAS, J., concurring) (slip op., at –3). Nor does it matter whether the beneficiaries receive the remedy themselves. A beneficiary may require a trustee to “restore” assets directly “to the trust fund.” ogert & ogert see also Restatement (Second) of s 05. In fact, because fiduciary duties are so paramount, the rem- edy need not involve money at all. A beneficiary may sue to “enjoin the trustee from committing a breach of trust” and to “remove the trustee.” Congress built on this tradition by making plan fiduciar- ies expressly liable to restore to the plan wrongful profits and any losses their breach caused, and by providing for in- junctive relief to stop the misconduct and remove the wrongdo. See 9 U.S. C. 1(a)(), (3). In do- ing so, Congress rejected the Court’s statement that a “trust-law analogy does not” apply to “plaintiffs who al- lege mismanagement of a defined-benefit ” Cf. ante, at 4. To the contrary, ERISA imposes “trust-like fiduciary standards,” Varity 1 THOLE v. U. S. ANK N. A. SOTOMAYOR, J., dissenting to “[r]espon[d] to deficiencies in prior law regulating [retire- ment] plan fiduciaries” and to provide even greater protec- tions for defined-benefit-plan beneficiaries, Harris 530 U.S., at 41–4; see also Spokeo, 578 U. S., at (slip op., at 9) (historical and congressionally recognized injuries often support standing). Given all that history and ERISA’s text, this Court itself has noted, in the defined-benefit-plan context, “that when a trustee” breaches “his fiduciary duty to the beneficiaries,” the “beneficiaries may then maintain an action for restitu- tion or disgorgement.” Harris 530 U.S., at 50. Harris confirms that ERISA incorporated “[t]he com- mon law of trusts” to allow defined-benefit-plan beneficiar- ies to seek relief from fiduciary breaches. ; see also at 41–4 (noting that certain ERISA provisions “supple- men[t] the fiduciary’s general duty of loyalty to the plan’s beneficiaries”).5 The Court off no reply to all the historical and statu- tory evidence showing petition’ concrete interest in pru- dent and loyal fiduciaries. Instead, the Court insists again that “participants in a defined-benefit plan are not similarly situated to the bene- ficiaries of a private trust,” ante, at 4, and that the “com- plaint did not plausibly and clearly claim that the alleged mismanagement of the plan substantially increased the —————— 5 Curiously, today’s Court suggests that ERISA’s efforts to bolster trust-law fiduciary duties actually degraded them instead. See ante, at 4 (justifying a narrow construction of ERISA protections because “trust law informs but does not control interpretation of ERISA”). Yet the case the Court cites, Varity relied on trust law to establish the minimum obligations ERISA imposes on plan fidu- ciaries. See (confirming that the “ERISA fiduciary duty in- cludes [the] common law duty of loyalty”). Today’s Court mistakes the floor for the ceiling. See ; see also Harris 530 U.S., at 41– 4. Cite as: 590 U. S. (00) SOTOMAYOR, J., dissenting risk that the plan and the employer would fail and be una- ble to pay the plaintiffs’ future pension benefits,” ante, at 7. The first observation is incorrect for the reasons stated above. ut even were the Court correct that petition’ rights do not sound in trust law, petition would still have standing. The Court reasons that petition have an en- forceable right to “monthly payments for the rest of their lives” because their plan conf a “contractua[l] enti- tle[ment].” Ante, at Under that view, the plan also con- f contractual rights to loyal and prudent plan manage- ment. See App. 60–61; 9 U.S. C. 1109. Thus, for the same reason petition could bring suit if they did not receive payments from their plan, they could bring suit if they did not receive loyalty and prudence from their fiduciaries. After all, it is well settled that breach of “a contract to act diligently and skil[l]fully” provides a “groun[d] of action” in federal court. 4 Pet. 17, 181–18 It is also undisputed that “[a] breach of contract always creates a right of action,” even when no financial “harm was caused.” Restatement (First) of Contracts §38, and Comment a, pp. 50–503 (193); see also Spokeo, 578 U. S., at – (THOMAS, J., concurring) (slip op., at –3) (“[C]ourts historically pre- sumed that the plaintiff suffered a de facto injury merely from having his ponal, legal rights invaded” even with- out any “allegation of damages”). Petition would thus have standing even were they to accept the Court’s flawed premise. The Court’s second statement, that petition have not alleged a substantial risk of missed payments, ante, at 7, is orthogonal to the issues at hand. A breach-of-fiduciary- duty claim exists regardless of the beneficiary’s ponal gain, loss, or recovery. In rejecting petition’ standing and maintaining that “this suit would not change [petition- ’] monthly pension benefits,” ante, at 8, the Court fails to 14 THOLE v. U. S. ANK N. A. SOTOMAYOR, J., dissenting distinguish the different rights on which pension-plan ben- eficiaries may sue. They have a right not just to their pen- sion benefits, but also to loyal and prudent fiduciaries. See 4 U.S. 490, (the standing in- quiry “turns on the nature and source of the claim as- serted”). Petition seek relief tailored to the second cate- gory, including restitution, disgorgement, and injunctive remedies. Cf. Great-West Life & Annuity Ins. 534 U.S. 04, 15–16 (00) (explaining the various historical bases for ERISA’s remedies). The Court does not even try to explain ERISA’s (or the Plan Document’s) text imposing fiduciary duties, let alone this Court’s decision in Harris supporting petition’ standing. And even though the Court briefly mentions that petition seek “in- junctive relief, including replacement of the plan’s fiduciar- ies,” ante, at it off no analysis on that issue. Put dif- ferently, the Court denies petition standing to sue without analyzing all their claims to relief. With its focus on fiscal harm, the Court seems to suggest that pecuniary injury is the sine qua non of standing. The Court emphasizes that petition themselves have not “sustained any monetary injury” apart from their trust fund’s losses. Ante, at ; see also ante, at 4. ut injury to a plaintiff ’s wallet is not, and has never been, a prerequisite for standing. The Constitution permits federal courts to hear disputes over nonfinancial injuries like the harms alleged here. Spokeo, 578 U. S., at (slip op., at 9); see also, e.g., at – (THOMAS, J., concur- ring) (slip op., at –3); Tennessee Elec. Power 7–86 In Heckler v. Mathews, 465 —————— 6 This Court has found standing in myriad cases involving noneco- nomic injuries. Examples include the denial or threatened impairment of: equal treatment, Adarand Constructors, 515 U.S. 00, 11 (1995); Northeastern Fla. Chapter, Associated Gen. Contractors of ; “truthful information Cite as: 590 U. S. (00) 15 SOTOMAYOR, J., dissenting U. S. 78 (1984), for instance, this Court recognized a plain- tiff ’s standing to assert a “noneconomic” injury for discrim- inatory distribution of his Social Security benefits, even though he did not have “a substantive right to any particu- lar amount of benefits.” Petition’ stand- ing here is even sturdier: They assert a noneconomic injury for unlawful management of their retirement plan and, un- like the plaintiff in Heckler, petition do have a substan- tive right to a particular amount of benefits. Cf. ante, at (acknowledging that petition’ benefits are “vested” and that payments are “legally and contractually” required). None of this is disputed. In fact, the Court seems to con- cede all this reasoning in a footnote. See ante, at 6, n. 1. The Court appears to acknowledge that an ERISA benefi- ciary’s noneconomic right to information from the fiduciar- ies would support standing. See (citing 9 U.S. C. (1)(A)). Yet the Court off no reason to think that a beneficiary’s noneconomic right to loyalty and prudence from the fiduciaries is meaningfully different. For its part, the concurrence attempts to fill the Court’s gaps by adding that “[t]he fiduciary duties created by ERISA are owed to the plan, not petition.” Ante, at (opinion of THOMAS, J.). ut this Court has already rejected —————— concerning the availability of housing,” Havens Realty (198); esthetic and recreational interests, Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 58 U.S. 167, 181–18 (000); “information which must be publicly disclosed pur- suant to a statute,” Federal Election 54 U.S. 11, 1 ; one’s “ponal, political, and professional reputation,” Meese v. Keene, ; and the right to speak, Spokeo, 578 U. S., at (slip op., at 9) (citing Pleasant Grove City v. Summum, 555 U.S. 460 (009)). This Court has even said that a for-profit business has standing to assert religious injuries. See 573 U.S. 68, and n. 6 Today’s Court does not recon- cile these cases with its novel financial-harm requirement; nor does the Court explain why a breach of fiduciary duty is less concrete than the injuries listed above. 16 THOLE v. U. S. ANK N. A. SOTOMAYOR, J., dissenting that view. Compare Varity (“This argument fails”), with Nor is that argument puasive on its own terms. The concurrence relies on a compound prepositional phrase taken out of context, collecting ERISA provisions saying that a fiduciary acts “with respect to” a See ante, at (opinion of THOMAS, J.). Of course a plan fiduciary per- forms her duties “with respect to a ” 9 U.S. C. After all, she manages the §110(a). ut she does so “solely in the interest” and “for the exclusive purposes” of the plan’s “participants and beneficiaries.” (c)(1), 1104(a)(1). In short, the concurrence gets it backwards. Congress did not enact ERISA to protect plans as artificial entities. It enacted ERISA (and required trusts in the first place) to protect the plan “participants” and “their beneficiaries.” Thus, ERISA fiduciary duties run where the stat- ute says: to the participants and their beneficiaries. C Last, petition have standing to sue on their retirement plan’s behalf. 1 Even if petition had no suable interest in their plan’s financial integrity or its competent supervision, the plan it- self would. There is no disputing at this stage that respond- ents’ “mismanagement” caused the plan “approximately $750 million in losses” still not fully reimbursed. Ante, at (majority opinion). And even under the concurrence’s view, respondents’ fiduciary duties “are owed to the ” Ante, at (opinion of THOMAS, J.). The plan thus would have standing to sue under either theory discussed above. The problem is that the plan is a legal fiction: Although ERISA provides that a retirement plan “may sue as an entity,” 9 U.S. C. §1(d)(1), someone must still do so on Cite as: 590 U. S. (00) 17 SOTOMAYOR, J., dissenting the plan’s behalf. Typically that is the fiduciary’s job. See §110(a)(1) (fiduciaries have “authority to control and man- age the operation and administration of the plan”). ut im- agine a case like this one, where the fiduciaries refuse to sue because they would be the defendants. Does the Con- stitution compel a pension plan to let a fox guard the hen- house? Of course not. This Court’s representational standing doctrine permits petition to sue on their plan’s behalf. See Food and Commercial This doctrine “rests on the prem- ise that in certain circumstances, particular relationships (recognized either by common-law tradition or by statute) are sufficient to rebut the background presumption that litigants may not assert the rights of absent third parties.” This is especially so where, as here, there is “some sort of impediment” to the other party’s “effective assertion of their own rights.” R. Fallon, J. Man- ning, D. Meltzer, & D. Shapiro, Hart & Wechsler’s The Fed- eral Courts and the Federal System 158 (6th ed. 009); see also The common law has long regarded a beneficiary’s repre- sentational suit as a proper “basis for a lawsuit in English or American courts.” Spokeo, 578 U. S., at (slip op., at 9). When “the trustee cannot or will not” sue, a beneficiary may do so “as a temporary representative of the trust.” ogert & ogert The common law also allows “the terms of a trust” to “confer upon oth the power to enforce the trust,” giving that pon “standing” to “bring suit against the trustee.” Restatement (Third) of s Comment d(1), at 7. ERISA embraces this tradition. Sections 1(a)() and (a)(3) authorize participants and beneficiaries to sue “in a representative capacity on behalf of the plan as a whole,” U.S., at n. 9, so that any “recovery” aris- ing from the action “inures to the benefit of the plan as a 18 THOLE v. U. S. ANK N. A. SOTOMAYOR, J., dissenting whole,” Perhaps for this reason, and adding to the incongruity in today’s outcome, some Memb of this Court have insisted that lawsuits to enforce ERISA’s fidu- ciary duties “must” be brought “in a representative capac- ity.” Varity 516 U.S., (THOMAS, J., dissent- ing) (internal quotation marks omitted). Permitting beneficiaries to enforce their plan’s rights finds plenty of support in our constitutional case law. Take associational standing: An association may file suit “to re- dress its memb’ injuries, even without a showing of in- jury to the association itself.” Food and Commercial Work- 517 U.S., at 55. All Article III requires is that a member “ ‘would otherwise have standing to sue in their own right’ ” and that “ ‘the interests [the association] seeks to protect are germane to the organization’s purpose.’ ” at Petition’ suit here is the other side of the same coin: The plan would have standing to sue in its own right, and petition’ interest is to disgorge wrongful profits and reimburse the trust for losses, thereby preserving trust as- sets held for their exclusive benefit. Next-friend standing is another apt analog. Long “ac- cepted [as a] basis for jurisdiction,” this doctrine allows a party to “appear in [federal] court on behalf of detained prison who are unable to seek relief themselves.” 16 (tracing the doctrine’s roots to the 17th century). Here, of course, petition’ plan cannot access the courts itself because the parties the Court thinks should file suit (the fiduciaries) are the defendants. Like a “next friend,” moreover, petition are “dedicated to the best interests” of the party they seek to protect, because the plan’s interests are peti- tion’ interests.7 —————— 7 Other examples include guardians ad litem and, of course, trustees. E.g., Communications 554 U.S. 69, Cite as: 590 U. S. (00) 19 SOTOMAYOR, J., dissenting Congress was on well-established ground when it allowed pension participants and beneficiaries to sue on their retire- ment plan’s behalf. The Court’s conflicting conclusion starts with inapposite cases. It invokes U.S. 693, (0), reasoning that “to claim ‘the interests of oth, the litigants themselves still must have suffered an injury in fact.’ ” Ante, at 4. Perry, a case about a California ballot initiative, is a far cry from this one. Perry found that “pri- vate parties” with no stake in the litigation “distinguishable from the general interest of every citizen” were not proper representatives of the U.S., at 707, 710. If an- ything, Perry supports petition here: This Court found “readily distinguishable” other representational-standing cases by undcoring their sound traditions. (distinguishing assignee and next-friend standing).8 A tra- ditional beneficiary-vus-trustee claim like petition’ is exactly such a suit. Next, the Court maintains that petition “have not been legally or contractually assigned” or “appointed” to —————— 87 (008) (noting in the Article III standing context that “federal courts routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit,” such as when “[t]rustees bring suits to benefit their trusts”); see also at 304–305, n. (ROERTS, C. J., dissenting) (“ees, guardians ad litem, executors, and the like make up a settled, continuous practice ‘of the sort traditionally amenable to, and resolved by, the judicial process’ ”). 8 The Court cites two more cases: and 49 U.S. 190 ut both endorsed ex- pansive views of standing. See 501 U.S., at 15–17 (allowing indirect own of a corporation to sue under federal securities laws); 49 U.S., at 194–195 (holding that a plaintiff had representa- tional standing to assert an equal protection claim on a business patron’s behalf ). To the extent the Court suggests that a financial loss is neces- sary (or that a breach of fiduciary duty is insufficient) for standing, that is incorrect. See Part II–, 0 THOLE v. U. S. ANK N. A. SOTOMAYOR, J., dissenting represent the Ante, at 5. Although a formal assign- ment or appointment suffices for standing, it is not neces- sary. See, e.g., Food and Commercial Work, 517 U.S., at 55; 495 U.S., at 16. Regardless, Congress ex- pressly and thereby legally assigned pension-plan partici- pants and beneficiaries the right to represent their plan, in- cluding in lawsuits where the other would-be representative is the defendant. 9 U.S. C. §(), (3); see also, e.g., Restatement (Third) of s Com- ment d(1), at 7 (trust terms may confer standing to sue the trustee). ERISA was “primarily concerned with the possi- ble misuse of plan assets, and with remedies that would protect the entire ” U.S., at ; see also –, nn. 8–9.9 Far from “ ‘automatically’ ” con- ferring petition standing to sue or creating an injury from whole cloth, cf. ante, at 5, ERISA assigns the right to sue on the plan’s unquestionably cognizable harm: here, fi- duciary breaches causing wrongful gains and hundreds of millions of dollars in losses. So even under the Court’s framing, it does not matter whether petition “sustained any monetary injury,” ante, at because their pension plan did. To support standing, a statute may (but need not) legally designate a party to sue on another’s behalf. e- cause ERISA does so here, petition should be permitted to sue for their pension plan’s sake. —————— 9 Neither 554 U.S. 69, nor Vermont of Natural Re- 59 U.S. 765 (000), is to the contrary. Cf. ante, at 5. oth decisions undermine today’s result. See 554 U.S., at 80, 87 (noting in the Article III context that “ ‘na- ked legal title’ ” has long permitted suit and that “federal courts routinely entertain suits which will result in relief for parties that are not them- selves directly bringing suit,” such as when “[t]rustees bring suits to ben- efit their trusts”); Vermont 59 U.S., at 774 (showing that even a partial statutory assignment grants constitutional standing to sue on another’s behalf ). Cite as: 590 U. S. (00) 1 SOTOMAYOR, J., dissenting III The Court also notes that “[e]ven if a defined-benefit plan is mismanaged into plan termination, the federal [Pension enefit Guaranty Corporation] by law acts as a backstop and cov the vested pension benefits up to a certain amount and often in full.” Ante, at 8, n. The Court then suggests that the only way beneficiaries of a mismanaged plan could sue is if their benefits were not “guaranteed in full by the PGC.” Those statements undcore the problem in today’s de- cision. Whereas ERISA and petition’ Plan Document ex- plicitly mandate that all plan assets be handled prudently and loyally for petition’ exclusive benefit, the Court sug- gests that beneficiaries should endure disloyalty, impru- dence, and plan mismanagement so long as the Federal Government is there to pick up the bill when “the plan and the employer” “fail.” ut the purpose of ERISA and fiduciary duties is to pre- vent retirement-plan failure in the first place. 9 U.S. C. In barely more than a decade, the country (indeed the world) has experienced two unexpected financial crises that have rocked the existence and stability of many em- ploy once thought incapable of failing. ERISA deliber- ately provides protection regardless whether an employer is on sound financial footing one day because it may not be so stable the next. See 10 The Court’s references to Government insurance also overlook sobering truths about the PGC. The Government Accountability Office recently relisted the PGC as one of the “High Risk” Government programs most likely to be- come insolvent. See GAO, Report to Congressional Com- mittees, High-Risk Series: Substantial Efforts Needed To —————— 10 This also explains why a material risk of loss is not a prerequisite for standing, least of all for retirees relying on their retirement plan for in- come. Cf. ante, at 7–8. THOLE v. U. S. ANK N. A. SOTOMAYOR, J., dissenting Achieve Greater Progress on High-Risk Areas (GAO–19– 157SP, 019) (GAO High-Risk Report). Noting the insol- vency of defined-benefit plans that the PGC insures and the “significant financial risk and governance challenges that the PGC faces,” the GAO High-Risk Report warns that “the retirement benefits of millions of American work- and retirees could be at risk of dramatic reductions” within four years. at 56–57. At last count, the PGC’s “net accumulated financial deficit” was “over $51 billion” and its “exposure to potential future losses for underfunded plans” was “nearly $185 billion.” at 67. Notably, the GAO had issued these warnings before the current financial crisis struck. Exchanging ERISA’s fiduciary duties for Gov- ernment insurance would only add to the PGC’s plight and require taxpay to bail out pension plans. IV It is hard to ovtate the harmful consequences of the Court’s conclusion. With ERISA, “the crucible of congres- sional concern was misuse and mismanagement of plan as- sets by plan administrators.” U.S., at 141, n. 8. In imposing fiduciary duties and providing a private right of action, Congress “designed” the statute “to prevent these abuses in the future.” Yet today’s outcome en- courages the very mischief ERISA meant to end. After today’s decision, about 35 million people with de- fined-benefit plans11 will be vulnerable to fiduciary miscon- duct. The Court’s reasoning allows fiduciaries to misuse pension funds so long as the employer has a strong enough balance sheet during (or, as alleged here, because of ) the misbehavior. Indeed, the Court holds that the Constitution —————— 11 See Dept. of Labor, Private Pension Plan ulletin Historical Tables and Graphs, 1975–017 (Sept. 019) (Table E4), https: / /www.dol.gov / sites / dolgov / files / ESA / research / statistics / retirement - bulletins / private - pension - plan - bulletin - historical - tables - and - graphs.pdf. Cite as: 590 U. S. (00) 3 SOTOMAYOR, J., dissenting forbids retirees to remedy or prevent fiduciary breaches in federal court until their retirement plan or employer is on the brink of financial ruin. See ante, at 7–8. This is a re- markable result, and not only because this case is bookended by two financial crises. There is no denying that the Great Recession contributed to the plan’s massive losses and statutory underfunding, or that the present pandemic punctuates the perils of imprudent and disloyal financial management. Today’s result also disrupts the purpose of ERISA and the trust funds it requires. s have trustees and fiduciary duties to protect the assets and the beneficiaries from the vicissitudes of fortune. Fiduciary duties, especially loyalty, are potent prophylactic rules that restrain trustees “tempted to exploit [a] trust.” ogert & ogert Con- gress thus recognized that one of the best ways to protect retirement plans was to codify the same fiduciary duties and beneficiary-enforcement pow that have existed for centuries. E.g., 9 U.S. C. §(b), 1109, 1. Along those lines, courts once held fiduciaries to a higher stand- ard: “Not honesty alone, but the punctilio of an honor the most sensitive.” 49 N.Y. 458, (198) Not so today. Nor can petition take comfort in the so-called “regu- latory phalanx” guarding defined-benefit plans from mis- management. Ante, at 7. Having divested ERISA of en- forceable fiduciary duties and beneficiaries of their right to sue, the Court lists “employ and their sharehold,” other fiduciaries, and the “Department of Labor” as parties on whom retirees should rely. Ante, at 6–7. ut there are serious holes in the Court’s proffered line of defense. The Court’s proposed solutions offer nothing in a case like this one. The employer, its sharehold, and the plan’s co- fiduciaries here have no reason to bring suit because they either committed or profited from the misconduct. Recall 4 THOLE v. U. S. ANK N. A. SOTOMAYOR, J., dissenting the allegations: Respondents misused a pension plan’s as- sets to invest in their own mutual funds, pay themselves excessive fees, and swell the employer’s income and stock prices. Nor is the Court’s suggestion workable in the mine run of cases. The reason the Court gives for trusting em- ploy and sharehold to look out for beneficiaries—“be- cause the employ are entitled to the plan surplus and are often on the hook for plan shortfalls,” ante, at 6—is what commentators call a conflict of interest.1 Neither is the Federal Government’s enforcement power a palliative. “ERISA makes clear that Congress did not in- tend for Government enforcement pow to lessen the re- sponsibilities of plan fiduciaries.” Central States, 47 U.S., at 578. The Secretary of Labor, moreover, signed a brief (in support of petition) verifying that the Federal Govern- ment cannot “monitor every [ERISA] plan in the country.” rief for United States as Amicus Curiae 6. Even when the Government can sue (in a representational capacity, of course), it cannot seek all the relief that a participant or beneficiary could. Compare 9 U.S. C. () with At bottom, the Court rejects ERISA’s private- enforcement scheme and suggests a preference that taxpay- fund the monitoring (and perhaps the bailing out) of pension plans. See ante, at 6–8, and n. Finally, in justifying today’s outcome, the Court discusses attorney’s fees. Twice the Court underlines that attorneys have a “$31 million” “stake” in this case. Ante, at 3. ut no one in this litigation has suggested attorney’s fees as a —————— 1 E.g., Fischel & Langbein, ERISA’s Fundamental Contradiction: The Exclusive enefit Rule, 111 This con- flict exists because, contrary to the Court’s assertion, the employer and its sharehold are not “entitled to the plan surplus” until after the plan terminates and after all vested benefits have been paid from the trust fund’s assets. Compare ante, at 6, with 9 U.S. C. (ERISA plan assets “shall never inure to the benefit of any employer” while the trust exists); see also App. 61; Record in No. –cv–687 (D Minn.), Doc. 107–1, p. 75. Cite as: 590 U. S. (00) 5 SOTOMAYOR, J., dissenting basis for standing. As the Court appears to admit, its focus on fees is about optics, not law. See ante, at 3 (acknowledg- ing that attorney’s fees do not advance the standing in- quiry). The Court’s aside about attorneys is not only misplaced, it is also mistaken. Missing from the Court’s opinion is any recognition that Congress found private enforcement suits and fiduciary duties critical to policing retirement plans; that it was after this litigation was initiated that respond- ents restored $311 million to the plan in compliance with statutorily required funding levels; and that counsel justi- fied their fee request as a below-market percentage of the $311 million employer infusion that this lawsuit allegedly precipitated. * * * The Constitution, the common law, and the Court’s cases confirm what common sense tells us: People may protect their pensions. “Courts,” the majority surmises, “some- times make standing law more complicated than it needs to be.” Ante, at 8. Indeed. Only by overruling, ignoring, or misstating centuries of law could the Court hold that the Constitution requires beneficiaries to watch idly as their supposed fiduciaries misappropriate their pension funds. I respectfully dissent
Justice Breyer	concurring	false	Woodford v. Ngo	2006-06-22T00:00:00	null	https://www.courtlistener.com/opinion/145635/woodford-v-ngo/	https://www.courtlistener.com/api/rest/v3/clusters/145635/	2,006	2005-076	1	6	3	I agree with the Court that, in enacting the Prison Litigation Reform Act (PLRA), 42 U.S. C. §1997e(a), Congress intended the term “exhausted” to “mean what the term means in administrative law, where exhaustion means proper exhaustion.” Ante, at 11. I do not believe that Congress desired a system in which prisoners could elect to bypass prison grievance systems without conse quences. Administrative law, however, contains well established exceptions to exhaustion. See Sims v. Apfel, 530 U.S. 103, 115 (2000) (BREYER, J., joined by Rehnquist, C. J., and SCALIA and KENNEDY, JJ., dissenting) (constitu tional claims); Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 13 (2000) (futility); McKart v. United States, 395 U.S. 185, 197–201 (1969) (hardship); McCarthy v. Madigan, 503 U.S. 140, 147–148 (1992) (inadequate or unavailable administrative remedies); see generally II R. Pierce, Administrative Law Treatise §15 (4th ed. 2002). Moreover, habeas corpus law, which contains an exhaustion requirement that is “substantively similar” to administra tive law’s and which informs the Court’s opinion, ante, at 9 10, also permits a number of exceptions. See post, at 5, n. 5 (STEVENS, J., dissenting) (noting that habeas corpus law permits “petitioners to overcome procedural defaults if they can show that the procedural rule is not firmly established 2 WOODFORD v. NGO BREYER, J., concurring in judgment and regularly followed, if they can demonstrate cause and prejudice to overcome a procedural default, or if enforcing the procedural default rule would result in a miscarriage of justice” (citations omitted)). At least two Circuits that have interpreted the statute in a manner similar to that which the Court today adopts have concluded that the PLRA’s proper exhaustion re quirement is not absolute. See Spruill v. Gillis, 372 F.3d 218, 232 (CA3 2004); Giano v. Goord, 380 F.3d 670, 677 (CA2 2004). In my view, on remand, the lower court should similarly consider any challenges that petitioner may have concerning whether his case falls into a tradi tional exception that the statute implicitly incorporates. Cite as: 548 U. S. ____ (2006) 1 STEVENS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 05–416 _________________ JEANNE S. WOODFORD, ET AL., PETITIONERS v.	I agree with the Court that, in enacting the Prison Litigation Reform Act (PLRA), 42 U.S. C. Congress intended the term “exhausted” to “mean what the term means in administrative law, where exhaustion means proper exhaustion.” Ante, at 11. I do not believe that Congress desired a system in which prisoners could elect to bypass prison grievance systems without conse quences. Administrative law, however, contains well established exceptions to exhaustion. See (BREYER, J., joined by Rehnquist, C. J., and SCALIA and KENNEDY, JJ., dissenting) (constitu tional claims); ; ; McCarthy v. Madigan, (inadequate or unavailable administrative remedies); see generally II R. Pierce, Administrative Law Treatise (4th ed. 2002). Moreover, habeas corpus law, which contains an exhaustion requirement that is “substantively similar” to administra tive law’s and which informs the Court’s opinion, ante, at 9 10, also permits a number of exceptions. See post, at 5, n. 5 (STEVENS, J., dissenting) (noting that habeas corpus law permits “petitioners to overcome procedural defaults if they can show that the procedural rule is not firmly established 2 WOODFORD v. NGO BREYER, J., concurring in judgment and regularly followed, if they can demonstrate cause and prejudice to overcome a procedural default, or if enforcing the procedural default rule would result in a miscarriage of justice” (citations omitted)). At least two Circuits that have interpreted the statute in a manner similar to that which the Court today adopts have concluded that the PLRA’s proper exhaustion re quirement is not absolute. See Spruill v. Gillis, 372 F.3d 218, 232 (CA3 2004); (CA2 2004). In my view, on remand, the lower court should similarly consider any challenges that petitioner may have concerning whether his case falls into a tradi tional exception that the statute implicitly incorporates. Cite as: 548 U. S. (2006) 1 STEVENS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 05–416 JEANNE S. WOODFORD, ET AL., PETITIONERS v.
Justice Brennan	majority	false	Colonial Pipeline Co. v. Traigle	1975-04-28T00:00:00	null	https://www.courtlistener.com/opinion/109239/colonial-pipeline-co-v-traigle/	https://www.courtlistener.com/api/rest/v3/clusters/109239/	1,975	1974-084	2	7	1	We have once again a case that presents "the perennial problem of the validity of a state tax for the privilege of carrying on, within a state, certain activities" related to a corporation's operation of an interstate business. Memphis Gas Co. v. Stone, 335 U.S. 80, 85 (1948).[1] The issue is whether Louisiana, consistent with the Commerce Clause, Art. I, § 8, cl. 3, may impose a fairly apportioned and nondiscriminatory corporation franchise tax on appellant, Colonial Pipeline Co., a corporation engaged exclusively in interstate business, upon the "incident" of its "qualification to carry on or do business in this state or the actual doing of business within this state in a corporate form." No question is raised as to the reasonableness of the apportionment of appellant's capital deemed to have been employed in Louisiana, and it is not claimed that the tax is discriminatory. The Supreme Court of Louisiana sustained the validity of the tax. 289 So. 2d 93 (1974). We noted probable jurisdiction, 417 U.S. 966 (1974). We affirm. I Appellant is a Delaware corporation with its principal place of business in Atlanta, Ga. It is a common carrier of liquefied petroleum products and owns and operates a pipeline system extending from Houston, Tex., to the New York City area. This 3,400-mile pipeline links the oil refining complexes of Texas and Louisiana with the population centers of the Southeast and 102 Northeast. Appellant daily delivers more than one million gallons of petroleum products to 14 States and the District of Columbia. Approximately 258 miles of the pipeline are located in Louisiana. Over this distance within Louisiana, appellant owns and operates several pumping stations which keep the petroleum products flowing at a sustained rate, and various tank storage facilities used to inject or withdraw petroleum products into or from the line. A work force of 25 to 30 employees mechanics, electricians, and other workersinspect and maintain the line within the State. During the tax years in question, 1970 and 1971, appellant maintained no administrative offices or personnel in Louisiana, although it had once maintained a division office in Baton Rouge. Appellant does no intrastate business in petroleum products in Louisiana. On May 9, 1962, appellant voluntarily qualified to do business in Louisiana, although it could have carried on its interstate business without doing so. La. Rev. Stat. Ann. § 12:302 H (1969); see n. 8, infra. Thereupon, the Collector of Revenue imposed the Louisiana franchise tax on appellant's activities in the State during 1962. At that time La. Rev. Stat. Ann. § 47:601, the Louisiana Franchise Tax Act, expressly provided: "The tax levied herein is due and payable for the privilege of carrying on or doing business, the exercising of its charter or the continuance of its charter within this state, or owning or using any part or all of its capital or plant in this state."[2] (Emphasis supplied.) 103 Appellant paid the tax and sued for a refund. The Louisiana Court of Appeal, First Circuit, held that, in that form, § 601 was unconstitutional as applied to appellant because, being imposed directly upon "the privilege of carrying on or doing [interstate] business," it violated the Commerce Clause, Art. I, § 8, cl. 3. Colonial Pipeline Co. v. Mouton, 228 So. 2d 718 (1969). The Supreme Court of Louisiana refused review. 255 La. 474, 231 So. 2d 393 (1970).[3] Following this decision, the Louisiana Legislature amended La. Rev. Stat. Ann. § 47:601 by Act 325 of 1970. The amendment excised from § 601 the words: "The tax levied herein is due and payable for the privilege of carrying on or doing business," and substituted: "The qualification to carry on or do business in this state or the actual doing of business within this state in a corporate form," as one of three "alternative incidents" upon which the tax might be imposed. The other two "incidents" the exercise of the corporate charter in the State, and the employment there of its capital, plant, or other property 104 were carried forward from the earlier version of the statute.[4] See n. 2, supra. The Collector of Revenue then renewed his efforts to impose a tax on appellant, this time for doing business "in a corporate form" during 1970 and 1971. Again, appellant paid the tax and sued for a refund. The Louisiana District Court and the Court of Appeal, First Circuit, concluded that the 1970 amendment made no substantive 105 change in § 601, which it construed as still imposing the tax directly upon the privilege of carrying on or doing an interstate business, and held that amended § 601 was therefore unconstitutional as applied to appellant. 275 So. 2d 834 (1973). The Supreme Court of Louisiana reversed. The court recognized that "[t]he pertinent Constitutional question is whether, as applied to a corporation whose exclusive business carried on within the State is interstate, this statute violates the Commerce Clause of the United States Constitution." 289 So. 2d, at 97. But the court attached controlling significance to the omission from the amended statute of the "primary operating incident [of the former version], i. e., `the privilege of carrying on or doing business,' " id., at 96, and the substitution for that incident of doing business in the corporate form. The court held: "The thrust of the [amended] statute is to tax not the interstate business done in Louisiana by a foreign corporation, but the doing of business in Louisiana in a corporate form, including `each and every act, power, right, privilege or immunity exercised or enjoyed in this state, as an incident to or by virtue of the powers and privileges acquired by the nature of such organizations . . . .' " Id., at 97. Accordingly, the court concluded that amended § 601 applied the franchise tax to foreign corporations doing only an interstate business in Louisiana not as a tax upon "the general privilege of doing interstate business but simply [as a tax upon] the corporation's privilege of enjoying in a corporate capacity the ownership or use of its capital, plant or other property in this state, the corporation's privilege of exercising and continuing its corporate character in the State of Louisiana, and the corporation's use of its corporate form to do business in the State." Id., at 100. Upon that premise, the court validated the levy as a 106 constitutional exaction for privileges enjoyed by corporations in Louisiana and for benefits furnished by the State to enterprises carrying on business, interstate or local, in the corporate form, whether as domestic or foreign corporations. The court reasoned: "The corporation, including the foreign corporation doing only interstate business in Louisiana, enjoys under our laws many privileges separate and apart from simply doing business, such for instance as the legal status to sue and be sued in the Courts of our State, continuity of business without interruption by death or dissolution, transfer of property interests by the disposition of shares of stock, advantages of business controlled and managed by corporate directors, and the general absence of individual liability, among others. ..... "The fact that the corporate form of doing business is inextricably interwoven in a foreign corporation's doing interstate business in the State, does not in our view detract from the fact that the local incident taxed is the form of doing business rather than the business done by that corporation. And it is our view that the local incident is real and sufficiently distinguishable, so that taxation thereof does not, under the controlling decisions of the United States Supreme Court, violate the Commerce Clause. "The statute does not discriminate between foreign and local corporations, being applicable, as it is, to both. Nor do we believe that the State's exercise of its power by this taxing statute is out of proportion to Colonial's activities within the state and their consequent enjoyment of the opportunities and protection which the state has afforded them. "Furthermore we believe that the State has given 107 something for which it can ask return. The return, tax levy in this case, is an exaction which the State of Louisiana requires as a recompense for its protection of lawful activities carried on in this state by Colonial, activities which are incidental to the powers and privileges possessed by it by the nature of its organization, here, . . . the local activities in maintaining, keeping in repair, and otherwise in manning the facilities of their pipeline system throughout the 258 miles of its pipeline in the State of Louisiana." Id., at 100-101.[5] This Court is, of course, not bound by the state court's determination that the challenged tax is not a tax on interstate commerce. "The State may determine for 108 itself the operating incidence of its tax. But it is for this Court to determine whether the tax, as construed by the highest court of the State, is or is not `a tax on interstate commerce.' " Memphis Steam Laundry v. Stone, 342 U.S. 389, 392 (1952). We therefore turn to the question whether the tax imposed upon appellant under amended § 601, as construed by the Louisiana Supreme Court, is or is not a tax on interstate commerce. II It is a truism that the mere act of carrying on business in interstate commerce does not exempt a corporation from state taxation. "It was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing the business." Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 254 (1938). Accordingly, decisions of this Court, particularly during recent decades, have sustained nondiscriminatory, properly apportioned state corporate taxes upon foreign corporations doing an exclusively interstate business when the tax is related to a corporation's local activities and the State has provided benefits and protections for those activities for which it is justified in asking a fair and reasonable return.[6]General Motors Corp. v. Washington, 377 U.S. 436 (1964); Memphis Gas Co. v. Stone, 335 U.S. 80 (1948). Cf. Spector Motor Service v. O'Connor, 340 U.S. 602 (1951). General Motors Corp., supra, states the controlling test: "[T]he validity of the tax rests upon whether the 109 State is exacting a constitutionally fair demand for that aspect of interstate commerce to which it bears a special relation. For our purposes the decisive issue turns on the operating incidence of the tax. In other words, the question is whether the State has exerted its power in proper proportion to appellant's activities within the State and to appellant's consequent enjoyment of the opportunities and protections which the State has afforded. . . . As was said in Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444 (1940), `[t]he simple but controlling question is whether the state has given anything for which it can ask return.' " 377 U.S., at 440-441. Amended § 601 as applied to appellant satisfies this test. First, the Supreme Court of Louisiana held that the operating incidences of the franchise tax are the three localized alternative incidences provided in § 601: (1) doing business in Louisiana in the corporate form; (2) the exercise of a corporation's charter or the continuance of its charter within the State; and (3) the owning or using any part of its capital, plant, or other property in Louisiana in a corporate capacity. We necessarily accept this construction of amended § 601 by Louisiana's highest court. 289 So. 2d, at 97. Second, the court found that the powers, privileges, and benefits Louisiana bestows incident to these activities were sufficient to support a tax on doing business in the corporate form in that State. We perceive no basis upon which we can say that this is not in fact the case. Our pertinent precedents therefore require affirmance of the State Supreme Court's judgment. Memphis Gas Co. v. Stone, supra, sustained a similar franchise tax imposed by Mississippi on a foreign pipeline corporation engaged exclusively in an interstate business even though the company had not qualified in Mississippi. 110 Memphis Natural Gas Co., a Delaware corporation, owned and operated a natural gas pipeline extending from Louisiana, through Arkansas and Mississippi, to Memphis and other parts of Tennessee. Approximately 135 miles of the pipeline were located in Mississippi, and two of the corporation's compressing stations were located in that State. The corporation engaged in no intrastate commerce in Mississippi, and had only one customer there. It had not qualified under the corporation laws of Mississippi. It had neither an agent for the service of process nor an office in that State, and its only employees there were those necessary for the maintenance of the pipeline. The corporation paid all ad valorem taxes assessed against its property in Mississippi. In addition to these taxes, however, Mississippi imposed a "franchise or excise tax" upon all corporations "doing business" within the State. The statute defined "doing business" in terms that suggest it may have been the model for § 601, that is, "[to] mean and [to] include each and every act, power or privilege exercised or enjoyed in this State, as an incident to, or by virtue of the powers and privileges acquired by the nature of such organization." 335 U.S., at 82.[7] The Supreme Court of Mississippi held, as did the Supreme Court of Louisiana here, 289 So. 2d, at 101, that the tax was " `an exaction . . . as a recompense for . . . protection of . . . the local activities in maintaining, keeping in repair, and otherwise manning the facilities of the system throughout the 135 miles of its line in this State.' " 111 335 U. S., at 84. In affirming the judgment of that court, Mr. Justice Reed, in a plurality opinion, said: "We think that the state is within its constitutional rights in exacting compensation under this statute for the protection it affords the activities within its borders. Of course, the interstate commerce could not be conducted without these local activities. But that fact is not conclusive. These are events apart from the flow of commerce. This is a tax on activities for which the state, not the United States, gives protection and the state is entitled to compensation when its tax cannot be said to be an unreasonable burden or a toll on the interstate business." Id., at 96. This conclusion is even more compelled in the instant case since appellant voluntarily qualified under Louisiana law and therefore enjoys the same rights and privileges as a domestic corporation. La. Rev. Stat. Ann. § 12:306 (2) (Supp. 1975).[8] The Louisiana Supreme Court defined 112 appellant's powers and privileges as including "the legal status to sue and be sued in the Courts of our State, continuity of business without interruption by death or dissolution, transfer of property interests by the disposition of shares of stock, advantages of business controlled and managed by corporate directors, and the general absence of individual liability . . . ." 289 So. 2d, at 100. These privileges obviously enhance the value to appellant of its activities within Louisiana. See Southern Gas Corp. v. Alabama, 301 U.S. 148, 153 (1937); Stone v. Interstate Natural Gas Co., 103 F.2d 544 (CA5), aff'd, 308 U.S. 522 (1939). Cf. Railway Express Agency v. Virginia (Railway Express II), 358 U.S. 434 (1959). III Nevertheless, appellant contends that Spector Motor Service v. O'Connor, 340 U.S. 602 (1951), and Railway Express Agency v. Virginia (Railway Express I), 347 U.S. 359 (1954), require the conclusion that § 601 is unconstitutional as applied to appellant. The argument is without merit. Spector held invalid under the Commerce Clause a Connecticut tax based expressly "upon [the corporation's] franchise for the privilege of carrying on or doing business within the state . . . ." Similarly, Railway Express I invalidated Virginia's "annual license tax" imposed on express companies expressly "for the privilege of doing business" in the State. Thus both taxes, as express imposts upon the privilege of carrying on an exclusively interstate business, contained the same fatal constitutional flaw that led the Louisiana Court of Appeal to strike down the levy against appellant 113 under § 601 before its amendment in 1970. "A tax is [an unconstitutional] direct burden, if laid upon the operation or act of interstate commerce." Ozark Pipe Line v. Monier, 266 U.S. 555, 569 (1925) (Brandeis, J., dissenting). The 1970 amendment however repealed that unconstitutional basis for the tax, and made § 601 constitutional by limiting its application to operating incidences of activities within Louisiana for which the State affords privileges and protections that constitutionally entitle Louisiana to exact a fairly apportioned and nondiscriminatory tax. Spector expressly recognized: "The incidence of the tax provides the answer. . . . The State is not precluded from imposing taxes upon other activities or aspects of this business which, unlike the privilege of doing interstate business, are subject to the sovereign power of the State." 340 U.S., at 608-609.[9] Of course, an otherwise unconstitutional tax is not made the less so by masking it in words cloaking its actual thrust. Railway Express II, supra, at 441; Railway Express I, supra, at 363; Galveston, H. & S. A. R. Co. v. Texas, 210 U.S. 217, 227 (1908). "It is not a matter of labels." Spector, supra, at 608. Here, however, the Louisiana Legislature amended § 601 purposefully to remove any basis of a levy upon the privilege of carrying on an interstate business and narrowly to confine *114 the impost to one related to appellant's activities within the State in the corporate form. Since appellant, a foreign corporation qualified to carry on its business in corporate form, and doing business in Louisiana in the corporate form, thereby gained benefits and protections from Louisiana of value and importance to its business, the application of that State's fairly apportioned and nondiscriminatory levy to appellant does not offend the Commerce Clause. The tax cannot be said to be imposed upon appellant merely or solely for the privilege of doing interstate business in Louisiana. It is, rather, a fairly apportioned and nondiscriminatory means of requiring appellant to pay its just share of the cost of state government upon which appellant necessarily relies and by which it is furnished protection and benefits. Affirmed. MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE REHNQUIST joins, concurring in the judgment.	We have once again a case that presents "the perennial problem of the validity of a state tax for the privilege of carrying on, within a state, certain activities" related to a corporation's operation of an interstate business. Memphis Gas[1] The issue is whether Louisiana, consistent with the Commerce Clause, Art. 8, cl. 3, may impose a fairly apportioned and nondiscriminatory corporation franchise tax on appellant, Colonial Pipeline Co., a corporation engaged exclusively in interstate business, upon the "incident" of its "qualification to carry on or do business in this state or the actual doing of business within this state in a corporate form." No question is raised as to the reasonableness of the apportionment of appellant's capital deemed to have been employed in Louisiana, and it is not claimed that the tax is discriminatory. The Supreme Court of Louisiana sustained the validity of the tax. We noted probable jurisdiction, We affirm. Appellant is a Delaware corporation with its principal place of business in Atlanta, Ga. t is a common carrier of liquefied petroleum products and owns and operates a pipeline system extending from Houston, Tex., to the New York City area. This 3,400-mile pipeline links the oil refining complexes of Texas and Louisiana with the population centers of the Southeast and 10 Northeast. Appellant daily delivers more than one million gallons of petroleum products to 14 States and the District of Columbia. Approximately 58 miles of the pipeline are located in Louisiana. Over this distance within Louisiana, appellant owns and operates several pumping stations which keep the petroleum products flowing at a sustained rate, and various tank storage facilities used to inject or withdraw petroleum products into or from the line. A work force of 5 to 30 employees mechanics, electricians, and other workersinspect and maintain the line within the State. During the tax years in question, and 1971, appellant maintained no administrative offices or personnel in Louisiana, although it had once maintained a division office in Baton Rouge. Appellant does no intrastate business in petroleum products in Louisiana. On May 9, 196, appellant voluntarily qualified to do business in Louisiana, although it could have carried on its interstate business without doing so. La. Rev. Stat. Ann. 1:30 H ; see n. 8, infra. Tupon, the Collector of Revenue imposed the Louisiana franchise tax on appellant's activities in the State during 196. At that time La. Rev. Stat. Ann. 47:601, the Louisiana Franchise Tax Act, expressly provided: "The tax levied in is due and payable for the privilege of carrying on or doing business, the exercising of its charter or the continuance of its charter within this state, or owning or using any part or all of its capital or plant in this state."[] (Emphasis supplied.) 103 Appellant paid the tax and sued for a refund. The Louisiana Court of Appeal, First Circuit, held that, in that form, 601 was unconstitutional as applied to appellant because, being imposed directly upon "the privilege of carrying on or doing [interstate] business," it violated the Commerce Clause, Art. 8, cl. 3. Colonial Pipeline The Supreme Court of Louisiana refused review.[3] Following this decision, the Louisiana Legislature amended La. Rev. Stat. Ann. 47:601 by Act 35 of The amendment excised from 601 the words: "The tax levied in is due and payable for the privilege of carrying on or doing business," and substituted: "The qualification to carry on or do business in this state or the actual doing of business within this state in a corporate form," as one of three "alternative incidents" upon which the tax might be imposed. The other two "incidents" the exercise of the corporate charter in the State, and the employment t of its capital, plant, or other property 104 were carried forward from the earlier version of the statute.[4] See n. The Collector of Revenue then renewed his efforts to impose a tax on appellant, this time for doing business "in a corporate form" during and 1971. Again, appellant paid the tax and sued for a refund. The Louisiana District Court and the Court of Appeal, First Circuit, concluded that the amendment made no substantive 105 change in 601, which it construed as still imposing the tax directly upon the privilege of carrying on or doing an interstate business, and held that amended 601 was tfore unconstitutional as applied to appellant. 75 So. d 834 The Supreme Court of Louisiana reversed. The court recognized that "[t]he pertinent Constitutional question is whether, as applied to a corporation whose exclusive business carried on within the State is interstate, this statute violates the Commerce Clause of the United States Constitution." 89 So. d, But the court attached controlling significance to the omission from the amended statute of the "primary operating incident [of the former version], i. e., `the privilege of carrying on or doing business,' " and the substitution for that incident of doing business in the corporate form. The court held: "The thrust of the [amended] statute is to tax not the interstate business done in Louisiana by a foreign corporation, but the doing of business in Louisiana in a corporate form, including `each and every act, power, right, privilege or immunity exercised or enjoyed in this state, as an incident to or by virtue of the powers and privileges acquired by the nature of such organizations' " Accordingly, the court concluded that amended 601 applied the franchise tax to foreign corporations doing only an interstate business in Louisiana not as a tax upon "the general privilege of doing interstate business but simply [as a tax upon] the corporation's privilege of enjoying in a corporate capacity the ownership or use of its capital, plant or other property in this state, the corporation's privilege of exercising and continuing its corporate character in the State of Louisiana, and the corporation's use of its corporate form to do business in the State." Upon that premise, the court validated the levy as a 106 constitutional exaction for privileges enjoyed by corporations in Louisiana and for benefits furnished by the State to enterprises carrying on business, interstate or local, in the corporate form, whether as domestic or foreign corporations. The court reasoned: "The corporation, including the foreign corporation doing only interstate business in Louisiana, enjoys under our laws many privileges separate and apart from simply doing business, such for instance as the legal status to sue and be sued in the Courts of our State, continuity of business without interruption by death or dissolution, transfer of property interests by the disposition of shares of stock, advantages of business controlled and managed by corporate directors, and the general absence of individual liability, among others. "The fact that the corporate form of doing business is inextricably interwoven in a foreign corporation's doing interstate business in the State, does not in our view detract from the fact that the local incident taxed is the form of doing business rather than the business done by that corporation. And it is our view that the local incident is real and sufficiently distinguishable, so that taxation tof does not, under the controlling decisions of the United States Supreme Court, violate the Commerce Clause. "The statute does not discriminate between foreign and local corporations, being applicable, as it is, to both. Nor do we believe that the State's exercise of its power by this taxing statute is out of proportion to Colonial's activities within the state and their consequent enjoyment of the opportunities and protection which the state has afforded them. "Furthermore we believe that the State has given 107 something for which it can ask return. The return, tax levy in this case, is an exaction which the State of Louisiana requires as a recompense for its protection of lawful activities carried on in this state by Colonial, activities which are incidental to the powers and privileges possessed by it by the nature of its organization, the local activities in maintaining, keeping in repair, and otherwise in manning the facilities of their pipeline system throughout the 58 miles of its pipeline in the State of Louisiana." -101.[5] This Court is, of course, not bound by the state court's determination that the challenged tax is not a tax on interstate commerce. "The State may determine for 108 itself the operating incidence of its tax. But it is for this Court to determine whether the tax, as construed by the highest court of the State, is or is not `a tax on interstate commerce.' " Memphis Steam 34 U.S. 389, 39 (195). We tfore turn to the question whether the tax imposed upon appellant under amended 601, as construed by the Louisiana Supreme Court, is or is not a tax on interstate commerce. t is a truism that the mere act of carrying on business in interstate commerce does not exempt a corporation from state taxation. "t was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing the business." Western Live 303 U.S. 50, 54 Accordingly, decisions of this Court, particularly during recent decades, have sustained nondiscriminatory, properly apportioned state corporate taxes upon foreign corporations doing an exclusively interstate business when the tax is related to a corporation's local activities and the State has provided benefits and protections for those activities for which it is justified in asking a fair and reasonable return.[6]General Motors ; Memphis Gas Cf. Motor 340 U.S. 60 General Motors states the controlling test: "[T]he validity of the tax rests upon whether the 109 State is exacting a constitutionally fair demand for that aspect of interstate commerce to which it bears a special relation. For our purposes the decisive issue turns on the operating incidence of the tax. n other words, the question is whether the State has exerted its power in proper proportion to appellant's activities within the State and to appellant's consequent enjoyment of the opportunities and protections which the State has afforded. As was said in `[t]he simple but controlling question is whether the state has given anything for which it can ask return.' " -441. Amended 601 as applied to appellant satisfies this test. First, the Supreme Court of Louisiana held that the operating incidences of the franchise tax are the three localized alternative incidences provided in 601: (1) doing business in Louisiana in the corporate form; () the exercise of a corporation's charter or the continuance of its charter within the State; and (3) the owning or using any part of its capital, plant, or other property in Louisiana in a corporate capacity. We necessarily accept this construction of amended 601 by Louisiana's highest 89 So. d, Second, the court found that the powers, privileges, and benefits Louisiana bestows incident to these activities were sufficient to support a tax on doing business in the corporate form in that State. We perceive no basis upon which we can say that this is not in fact the case. Our pertinent precedents tfore require affirmance of the State Supreme Court's judgment. Memphis Gas sustained a similar franchise tax imposed by Mississippi on a foreign pipeline corporation engaged exclusively in an interstate business even though the company had not qualified in Mississippi. 110 Memphis Natural Gas Co., a Delaware corporation, owned and operated a natural gas pipeline extending from Louisiana, through Arkansas and Mississippi, to Memphis and other parts of Tennessee. Approximately 135 miles of the pipeline were located in Mississippi, and two of the corporation's compressing stations were located in that State. The corporation engaged in no intrastate commerce in Mississippi, and had only one customer t. t had not qualified under the corporation laws of Mississippi. t had neither an agent for the service of process nor an office in that State, and its only employees t were those necessary for the maintenance of the pipeline. The corporation paid all ad valorem taxes assessed against its property in Mississippi. n addition to these taxes, however, Mississippi imposed a "franchise or excise tax" upon all corporations "doing business" within the State. The statute defined "doing business" in terms that suggest it may have been the model for 601, that is, "[to] mean and [to] include each and every act, power or privilege exercised or enjoyed in this State, as an incident to, or by virtue of the powers and privileges acquired by the nature of such organization." 335 U.S., at 8.[7] The Supreme Court of Mississippi held, as did the Supreme Court of Louisiana 89 So. d, at 101, that the tax was " `an exaction as a recompense for protection of the local activities in maintaining, keeping in repair, and otherwise manning the facilities of the system throughout the 135 miles of its line in this State.' " n affirming the judgment of that court, Mr. Justice Reed, in a plurality opinion, said: "We think that the state is within its constitutional rights in exacting compensation under this statute for the protection it affords the activities within its borders. Of course, the interstate commerce could not be conducted without these local activities. But that fact is not conclusive. These are events apart from the flow of commerce. This is a tax on activities for which the state, not the United States, gives protection and the state is entitled to compensation when its tax cannot be said to be an unreasonable burden or a toll on the interstate business." This conclusion is even more compelled in the instant case since appellant voluntarily qualified under Louisiana law and tfore enjoys the same rights and privileges as a domestic corporation. La. Rev. Stat. Ann. 1:306 () (Supp. 1975).[8] The Louisiana Supreme Court defined 11 appellant's powers and privileges as including "the legal status to sue and be sued in the Courts of our State, continuity of business without interruption by death or dissolution, transfer of property interests by the disposition of shares of stock, advantages of business controlled and managed by corporate directors, and the general absence of individual liability" 89 So. d, These privileges obviously enhance the value to appellant of its activities within Louisiana. See Southern Gas v. Alabama, ; v. nterstate Natural Gas Co., 103 F.d 544 (CA5), aff'd, 308 U.S. 5 Cf. Railway Express Nevertheless, appellant contends that Motor 340 U.S. 60 and Railway Express require the conclusion that 601 is unconstitutional as applied to appellant. The argument is without merit. held invalid under the Commerce Clause a Connecticut tax based expressly "upon [the corporation's] franchise for the privilege of carrying on or doing business within the state" Similarly, Railway Express invalidated Virginia's "annual license tax" imposed on express companies expressly "for the privilege of doing business" in the State. Thus both taxes, as express imposts upon the privilege of carrying on an exclusively interstate business, contained the same fatal constitutional flaw that led the Louisiana Court of Appeal to strike down the levy against appellant 113 under 601 before its amendment in "A tax is [an unconstitutional] direct burden, if laid upon the operation or act of interstate commerce." Ozark Pipe 66 U.S. 555, (195) The amendment however repealed that unconstitutional basis for the tax, and made 601 constitutional by limiting its application to operating incidences of activities within Louisiana for which the State affords privileges and protections that constitutionally entitle Louisiana to exact a fairly apportioned and nondiscriminatory tax. expressly recognized: "The incidence of the tax provides the answer. The State is not precluded from imposing taxes upon other activities or aspects of this business which, unlike the privilege of doing interstate business, are subject to the sovereign power of the State." -609.[9] Of course, an otherwise unconstitutional tax is not made the less so by masking it in words cloaking its actual thrust. Railway Express ; Railway Express ; Galveston, H. & S. A. R. 10 U.S. 17, 7 "t is not a matter of labels." Here, however, the Louisiana Legislature amended 601 purposefully to remove any basis of a levy upon the privilege of carrying on an interstate business and narrowly to confine *114 the impost to one related to appellant's activities within the State in the corporate form. Since appellant, a foreign corporation qualified to carry on its business in corporate form, and doing business in Louisiana in the corporate form, tby gained benefits and protections from Louisiana of value and importance to its business, the application of that State's fairly apportioned and nondiscriminatory levy to appellant does not offend the Commerce Clause. The tax cannot be said to be imposed upon appellant merely or solely for the privilege of doing interstate business in Louisiana. t is, rather, a fairly apportioned and nondiscriminatory means of requiring appellant to pay its just share of the cost of state government upon which appellant necessarily relies and by which it is furnished protection and benefits. Affirmed. MR. JUSTCE DOUGLAS took no part in the consideration or decision of this case. MR. JUSTCE BLACKMUN, with whom MR. JUSTCE REHNQUST joins, concurring in the judgment.
Justice Alito	majority	false	Williams v. Illinois	2012-06-18T00:00:00	null	https://www.courtlistener.com/opinion/802772/williams-v-illinois/	https://www.courtlistener.com/api/rest/v3/clusters/802772/	2,012	2011-068	1	5	4	In this case, we decide whether Crawford v. Washing- ton, 541 U.S. 36, 50 (2004), precludes an expert witness from testifying in a manner that has long been allowed under the law of evidence. Specifically, does Crawford bar an expert from expressing an opinion based on facts about a case that have been made known to the expert but about which the expert is not competent to testify? We also decide whether Crawford substantially impedes the ability of prosecutors to introduce DNA evidence and thus may effectively relegate the prosecution in some cases to reli- ance on older, less reliable forms of proof. In petitioner’s bench trial for rape, the prosecution called an expert who testified that a DNA profile produced by an outside laboratory, Cellmark, matched a profile produced by the state police lab using a sample of peti- tioner’s blood. On direct examination, the expert testified that Cellmark was an accredited laboratory and that Cellmark provided the police with a DNA profile. The expert also explained the notations on documents admit- 2 WILLIAMS v. ILLINOIS Opinion of ALITO, J. ted as business records, stating that, according to the records, vaginal swabs taken from the victim were sent to and received back from Cellmark. The expert made no other statement that was offered for the purpose of identi- fying the sample of biological material used in deriving the profile or for the purpose of establishing how Cellmark handled or tested the sample. Nor did the expert vouch for the accuracy of the profile that Cellmark produced. Nevertheless, petitioner contends that the expert’s testi- mony violated the Confrontation Clause as interpreted in Crawford. Petitioner’s main argument is that the expert went astray when she referred to the DNA profile provided by Cellmark as having been produced from semen found on the victim’s vaginal swabs. But both the Illinois Appellate Court and the Illinois Supreme Court found that this statement was not admitted for the truth of the matter asserted, and it is settled that the Confrontation Clause does not bar the admission of such statements. See id., at 59–60, n. 9 (citing Tennessee v. Street, 471 U.S. 409 (1985)). For more than 200 years, the law of evidence has permitted the sort of testimony that was given by the ex- pert in this case. Under settled evidence law, an expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. It is then up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert. While it was once the practice for an expert who based an opinion on assumed facts to testify in the form of an an- swer to a hypothetical question, modern practice does not demand this formality and, in appropriate cases, permits an expert to explain the facts on which his or her opinion is based without testifying to the truth of those facts. See Fed. Rule Evid. 703. That is precisely what occurred in this case, and we should not lightly “swee[p] away an accepted rule governing the admission of scientific evi- Cite as: 567 U. S. ____ (2012) 3 Opinion of ALITO, J. dence.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 330 (2009) (KENNEDY, J., dissenting). We now conclude that this form of expert testimony does not violate the Confrontation Clause because that provi- sion has no application to out-of-court statements that are not offered to prove the truth of the matter asserted. When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assump- tions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause. Applying this rule to the present case, we con- clude that the expert’s testimony did not violate the Sixth Amendment. As a second, independent basis for our decision, we also conclude that even if the report produced by Cellmark had been admitted into evidence, there would have been no Confrontation Clause violation. The Cellmark report is very different from the sort of extrajudicial statements, such as affidavits, depositions, prior testimony, and con- fessions, that the Confrontation Clause was originally understood to reach. The report was produced before any suspect was identified. The report was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose. And the profile that Cellmark provided was not inherently inculpatory. On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today. The use of DNA evi- dence to exonerate persons who have been wrongfully accused or convicted is well known. If DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic 4 WILLIAMS v. ILLINOIS Opinion of ALITO, J. pressures would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable. See Perry v. New Hampshire, 565 U. S. ___ (2012). The Con- frontation Clause does not mandate such an undesirable development. This conclusion will not prejudice any de- fendant who really wishes to probe the reliability of the DNA testing done in a particular case because those who participated in the testing may always be subpoenaed by the defense and questioned at trial. I A On February 10, 2000, in Chicago, Illinois, a young woman, L. J., was abducted while she was walking home from work. The perpetrator forced her into his car and raped her, then robbed her of her money and other per- sonal items and pushed her out into the street. L. J. ran home and reported the attack to her mother, who called the police. An ambulance took L. J. to the hospital, where doctors treated her wounds and took a blood sample and vaginal swabs for a sexual-assault kit. A Chicago Police detective collected the kit, labeled it with an inventory number, and sent it under seal to the Illinois State Police (ISP) lab. At the ISP lab, a forensic scientist received the sealed kit. He conducted a chemical test that confirmed the presence of semen on the vaginal swabs, and he then resealed the kit and placed it in a secure evidence freezer. During the period in question, the ISP lab often sent biological samples to Cellmark Diagnostics Laboratory in Germantown, Maryland, for DNA testing. There was evidence that the ISP lab sent L. J.’s vaginal swabs to Cellmark for testing and that Cellmark sent back a report containing a male DNA profile produced from semen taken from those swabs. At this time, petitioner was not under Cite as: 567 U. S. ____ (2012) 5 Opinion of ALITO, J. suspicion for L. J.’s rape. Sandra Lambatos, a forensic specialist at the ISP lab, conducted a computer search to see if the Cellmark profile matched any of the entries in the state DNA database. The computer showed a match to a profile produced by the lab from a sample of petitioner’s blood that had been taken after he was arrested on unrelated charges on August 3, 2000. On April 17, 2001, the police conducted a lineup at which L. J. identified petitioner as her assailant. Peti- tioner was then indicted for aggravated criminal sexual assault, aggravated kidnaping, and aggravated robbery. In lieu of a jury trial, petitioner chose to be tried before a state judge. B Petitioner’s bench trial began in April 2006. In open court, L. J. again identified petitioner as her attacker. The State also offered three expert forensic witnesses to link petitioner to the crime through his DNA. First, Brian Hapack, an ISP forensic scientist, testified that he had confirmed the presence of semen on the vaginal swabs taken from L. J. by performing an acid phosphatase test. After performing this test, he testified, he resealed the evidence and left it in a secure freezer at the ISP lab. Second, Karen Abbinanti, a state forensic analyst, testi- fied that she had used Polymerase Chain Reaction (PCR) and Short Tandem Repeat (STR) techniques to develop a DNA profile from a blood sample that had been drawn from petitioner after he was arrested in August 2000. She also stated that she had entered petitioner’s DNA profile into the state forensic database. Third, the State offered Sandra Lambatos as an expert witness in forensic biology and forensic DNA analysis. On direct examination, Lambatos testified about the general process of using the PCR and STR techniques to generate 6 WILLIAMS v. ILLINOIS Opinion of ALITO, J. DNA profiles from forensic samples such as blood and semen. She then described how these DNA profiles could be matched to an individual based on the individual’s unique genetic code. In making a comparison between two DNA profiles, Lambatos stated, it is a “commonly accepted” practice within the scientific community for “one DNA expert to rely on the records of another DNA expert.” App. 51. Lambatos also testified that Cellmark was an “accred- ited crime lab” and that, in her experience, the ISP lab routinely sent evidence samples via Federal Express to Cellmark for DNA testing in order to expedite the testing process and to “reduce [the lab’s] backlog.” Id., at 49–50. To keep track of evidence samples and preserve the chain of custody, Lambatos stated, she and other analysts relied on sealed shipping containers and labeled shipping mani- fests, and she added that experts in her field regularly relied on such protocols. Id., at 50–51. Lambatos was shown shipping manifests that were admitted into evidence as business records, and she ex- plained what they indicated, namely, that the ISP lab had sent L. J.’s vaginal swabs to Cellmark, and that Cellmark had sent them back, along with a deduced male DNA profile. Id., at 52–55. The prosecutor asked Lambatos whether there was “a computer match” between “the male DNA profile found in semen from the vaginal swabs of [L. J.]” and “[the] male DNA profile that had been identi- fied” from petitioner’s blood sample. Id., at 55. The defense attorney objected to this question for “lack of foundation,” arguing that the prosecution had offered “no evidence with regard to any testing that’s been done to generate a DNA profile by another lab to be testified to by this witness.” Ibid. The prosecutor responded: “I‘m not getting at what another lab did.” Id., at 56. Rather, she said, she was simply asking Lambatos about “her own testing based on [DNA] information” that she had received from Cellmark. Cite as: 567 U. S. ____ (2012) 7 Opinion of ALITO, J. Ibid. The trial judge agreed, noting, “If she says she didn’t do her own testing and she relied on a test of another lab and she’s testifying to that, we will see what she’s going to say.” Ibid. The prosecutor then proceeded, asking Lambatos, “Did you compare the semen that had been identified by Brian Hapack from the vaginal swabs of [L. J.] to the male DNA profile that had been identified by Karen [Abbinanti] from the blood of [petitioner]?” Ibid. Lambatos answered “Yes.” Ibid. Defense counsel lodged an objection “to the form of the question,” but the trial judge overruled it. Ibid. Lambatos then testified that, based on her own comparison of the two DNA pro- files, she “concluded that [petitioner] cannot be excluded as a possible source of the semen identified in the vaginal swabs,” and that the probability of the profile’s appearing in the general population was “1 in 8.7 quadrillion black, 1 in 390 quadrillion white, or 1 in 109 quadrillion Hispanic unrelated individuals.” Id., at 57. Asked whether she would “call this a match to [petitioner],” Lambatos an- swered yes, again over defense counsel’s objection. Id., at 58. The Cellmark report itself was neither admitted into evidence nor shown to the factfinder. Lambatos did not quote or read from the report; nor did she identify it as the source of any of the opinions she expressed. On cross-examination, Lambatos confirmed that she did not conduct or observe any of the testing on the vaginal swabs, and that her testimony relied on the DNA profile produced by Cellmark. Id., at 59. She stated that she trusted Cellmark to do reliable work because it was an accredited lab, but she admitted she had not seen any of the calibrations or work that Cellmark had done in deduc- ing a male DNA profile from the vaginal swabs. Id., at 59–62. Asked whether the DNA sample might have been de- 8 WILLIAMS v. ILLINOIS Opinion of ALITO, J. graded before Cellmark analyzed it, Lambatos answered that, while degradation was technically possible, she strongly doubted it had occurred in this case. She gave two reasons. First, the ISP lab likely would have noticed the degradation before sending the evidence off to Cell- mark. Second, and more important, Lambatos also noted that the data making up the DNA profile would ex- hibit certain telltale signs if it had been deduced from a degraded sample: The visual representation of the DNA sequence would exhibit “specific patterns” of degradation, and she “didn’t see any evidence” of that from looking at the profile that Cellmark produced. Id., at 81–82. When Lambatos finished testifying, the defense moved to exclude her testimony “with regards to testing done by [Cellmark]” based on the Confrontation Clause. Id., at 90. Defense counsel argued that there was “no evidence with regards to . . . any work done by [Cellmark] to justify testimony coming into this case with regard to their anal- ysis.” Ibid. Thus, while defense counsel objected to and sought the exclusion of Lambatos’ testimony insofar as it implicated events at the Cellmark lab, defense counsel did not object to or move for the exclusion of any other portion of Lambatos’ testimony, including statements regarding the contents of the shipment sent to or received back from Cellmark. See id., at 55, 56, 90. See also 385 Ill. App. 3d 359, 367–368, 895 N.E.2d 961, 968 (2008) (chain-of- custody argument based on shipping manifests waived). The prosecution responded that petitioner’s Confronta- tion Clause rights were satisfied because he had the op- portunity to cross-examine the expert who had testified that there was a match between the DNA profiles pro- duced by Cellmark and Abbinanti. App. 91. Invoking Illinois Rule of Evidence 703,1 the prosecutor argued that —————— 1 Consistent with the Federal Rules, Illinois Rule of Evidence 703 provides as follows: Cite as: 567 U. S. ____ (2012) 9 Opinion of ALITO, J. an expert is allowed to disclose the facts on which the expert’s opinion is based even if the expert is not compe- tent to testify to those underlying facts. She further ar- gued that any deficiency in the foundation for the expert’s opinion “[d]oesn’t go to the admissibility of [that] testi- mony,” but instead “goes to the weight of the testimony.” App. 91. The trial judge agreed with the prosecution and stated that “the issue is . . . what weight do you give the test, not do you exclude it.” Id., at 94. Accordingly, the judge stated that he would not exclude Lambatos’ testimony, which was “based on her own independent testing of the data received from [Cellmark].” Id., at 94–95 (alteration in original). The trial court found petitioner guilty of the charges against him. The state court of appeals affirmed in rele- vant part, concluding that Lambatos’ testimony did not violate petitioner’s confrontation rights because the Cell- mark report was not offered into evidence to prove the truth of the matter it asserted. See 385 Ill. App. 3d, at 369, 895 N.E. 2d, at 969–970 (“Cellmark’s report was not offered for the truth of the matter asserted; rather, it was offered to provide a basis for Lambatos’ opinion”) The Supreme Court of Illinois also affirmed. 238 Ill. 2d 125, 939 N.E.2d 268 (2010). Under state law, the court noted, the Cellmark report could not be used as substantive evidence. When Lambatos referenced the report during her direct examination, she did so “for the limited purpose of explaining the basis for [her expert opinion],” not for the purpose of showing “the truth of the matter asserted” by —————— “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” 10 WILLIAMS v. ILLINOIS Opinion of ALITO, J. the report. Id., at 150, 939 N.E. 2d, at 282. Thus, the report was not used to establish its truth, but only “to show the underlying facts and data Lambatos used before rendering an expert opinion.” Id., at 145, 939 N.E. 2d, at 279. We granted certiorari. 564 U.S. ___ (2011). II A The Confrontation Clause of the Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the wit- nesses against him.” Before Crawford, this Court took the view that the Confrontation Clause did not bar the admis- sion of an out-of-court statement that fell within a firmly rooted exception to the hearsay rule, see Ohio v. Roberts, 448 U.S. 56, 66 (1980), but in Crawford, the Court adopted a fundamentally new interpretation of the confronta- tion right, holding that “[t]estimonial statements of wit- nesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” 541 U. S., at 59. Crawford has resulted in a steady stream of new cases in this Court. See Bullcoming v. New Mexico, 564 U.S. ___ (2011); Michigan v. Bryant, 562 U.S. ___ (2011); Melendez-Diaz, 557 U.S. 305; Giles v. California, 554 U.S. 353 (2008); Indiana v. Edwards, 554 U.S. 164 (2008); Davis v. Washington, 547 U.S. 813 (2006). Two of these decisions involved scientific reports. In Melendez-Diaz, the defendant was arrested and charged with distributing and trafficking in cocaine. At trial, the prosecution introduced bags of a white powdery substance that had been found in the defendant’s possession. The trial court also admitted into evidence three “certificates of analysis” from the state forensic laboratory stating that the bags had been “examined with the following results: Cite as: 567 U. S. ____ (2012) 11 Opinion of ALITO, J. The substance was found to contain: Cocaine.” 557 U. S., at 308 (internal quotation marks omitted). The Court held that the admission of these certificates, which were executed under oath before a notary, violated the Sixth Amendment. They were created for “the sole purpose of providing evidence against a defendant,” id., at 323, and were “ ‘quite plainly affidavits,’ ” id., at 330 (THOMAS, J., concurring). The Court emphasized that the introduction of the report to prove the nature of the sub- stance found in the defendant’s possession was tanta- mount to “live, in-court testimony” on that critical fact and that the certificates did “precisely what a witness does on direct examination.” Id., at 311 (internal quotation marks omitted). There was no doubt that the certificates were used to prove the truth of the matter they asserted. Un- der state law, “the sole purpose of the affidavits was to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance.” Ibid. (internal quotation marks omitted and emphasis deleted). On these facts, the Court said, it was clear that the certif- icates were “testimonial statements” that could not be introduced unless their authors were subjected to the “ ‘cru- cible of cross-examination.’ ” Id., at 311, 317 (quoting Crawford, supra, at 61). In Bullcoming, we held that another scientific report could not be used as substantive evidence against the de- fendant unless the analyst who prepared and certified the report was subject to confrontation. The defendant in that case had been convicted of driving while intoxicated. At trial, the court admitted into evidence a forensic report certifying that a sample of the defendant’s blood had an alcohol concentration of 0.21 grams per hundred milli- liters, well above the legal limit. Instead of calling the analyst who signed and certified the forensic report, the prosecution called another analyst who had not performed or observed the actual analysis, but was only familiar with 12 WILLIAMS v. ILLINOIS Opinion of ALITO, J. the general testing procedures of the laboratory. The Court declined to accept this surrogate testimony, despite the fact that the testifying analyst was a “knowledgeable representative of the laboratory” who could “explain the lab’s processes and the details of the report.” 564 U. S., at ___ (KENNEDY, J., dissenting) (slip op., at 1). The Court stated simply: “The accused’s right is to be confronted with the analyst who made the certification.” Id., at ___ (slip op., at 2). Just as in Melendez-Diaz, the forensic report that was “introduce[d]” in Bullcoming “contain[ed] a testimonial certification, made in order to prove a fact at a criminal trial.” 564 U. S., at ___–___ (slip op., at 7–8). The report was signed by the nontestifying analyst who had authored it, stating, “I certify that I followed the procedures set out on the reverse of this report, and the statements in this block are correct. The concentration of alcohol in this sample is based on the grams of alcohol in one hundred milliliters of blood.” App. in Bullcoming, O. T. 2010, No. 09–10876, p. 62. Critically, the report was introduced at trial for the substantive purpose of proving the truth of the matter asserted by its out-of-court author—namely, that the defendant had a blood-alcohol level of 0.21. This was the central fact in question at the defendant’s trial, and it was dispositive of his guilt. In concurrence, JUSTICE SOTOMAYOR highlighted the im- portance of the fact that the forensic report had been admitted into evidence for the purpose of proving the truth of the matter it asserted. She emphasized that “this [was] not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” 564 U. S., at ___ (slip op., at 6) (opinion concurring in part) (citing Fed. Rule Evid. 703). “We would face a different question,” she observed, “if asked to determine the consti- tutionality of allowing an expert witness to discuss others’ Cite as: 567 U. S. ____ (2012) 13 Opinion of ALITO, J. testimonial statements if the testimonial statements were not themselves admitted as evidence.” Id., at ___ (slip op., at 6). We now confront that question. B It has long been accepted that an expert witness may voice an opinion based on facts concerning the events at issue in a particular case even if the expert lacks first- hand knowledge of those facts. At common law, courts developed two ways to deal with this situation. An expert could rely on facts that had already been established in the record. But because it was not always possible to proceed in this manner, and be- cause record evidence was often disputed, courts devel- oped the alternative practice of allowing an expert to testify in the form of a “hypothetical question.” Under this approach, the expert would be asked to assume the truth of certain factual predicates, and was then asked to offer an opinion based on those assumptions. See 1 K. Broun, McCormick on Evidence §14, p. 87 (6th ed. 2006); 1 J. Wigmore, Evidence §677, p. 1084 (2d ed. 1923) (“If the witness is skilled enough, his opinion may be adequately obtained upon hypothetical data alone; and it is immate- rial whether he has ever seen the person, place or thing in question” (citation omitted)). The truth of the premises could then be established through independent evidence, and the factfinder would regard the expert’s testimony to be only as credible as the premises on which it was based. An early example of this approach comes from the Eng- lish case of Beckwith v. Sydebotham, 1 Camp. 116, 170 Eng. Rep. 897 (K. B. 1807), where a party sought to prove the seaworthiness of a ship, the Earl of Wycombe, by calling as witnesses “several eminent surveyors of ships who had never seen the ‘Earl of Wycombe.’ ” Ibid. The opposing party objected to the testimony because it relied 14 WILLIAMS v. ILLINOIS Opinion of ALITO, J. on facts that were not known to be true, but the judge disagreed. Because the experts were “peculiarly ac- quainted” with “a matter of skill or science,” the judge said, the “jury might be assisted” by their hypothetical opinion based on certain assumed facts. Id., at 117, 170 Eng. Rep., at 897. The judge acknowledged the danger of the jury’s being unduly prejudiced by wrongly assuming the truth of the hypothetical facts, but the judge noted that the experts could be asked on cross-examination what their opinion of the ship’s seaworthiness would be if differ- ent hypothetical facts were assumed. If the party that had called the experts could not independently prove the truth of the premises they posited, then the experts’ “opinion might not go for much; but still it was admissible evi- dence.” Ibid. There is a long tradition of the use of hypothetical ques- tions in American courts. In 1887, for example, this Court indicated its approval of the following jury instruction: “As to the questions, you must understand that they are not evidence; they are mere statements to these witnesses . . . and, upon the hypothesis or assumption of these questions the witnesses are asked to give their [opinion]. You must readily see that the value of the answers to these questions depends largely, if not wholly, upon the fact whether the statements made in these questions are sustained by the proof. If the statements in these questions are not supported by the proof, then the answers to the questions are enti- tled to no weight, because based upon false assump- tions or statements of facts.” Forsyth v. Doolittle, 120 U.S. 73, 77 (internal quotation marks omitted). Modern rules of evidence continue to permit experts to express opinions based on facts about which they lack personal knowledge, but these rules dispense with the need for hypothetical questions. Under both the Illinois Cite as: 567 U. S. ____ (2012) 15 Opinion of ALITO, J. and the Federal Rules of Evidence, an expert may base an opinion on facts that are “made known to the expert at or before the hearing,” but such reliance does not constitute admissible evidence of this underlying information. Ill. Rule Evid. 703; Fed. Rule Evid. 703. Accordingly, in jury trials, both Illinois and federal law generally bar an expert from disclosing such inadmissible evidence.2 In bench trials, however, both the Illinois and the Federal Rules place no restriction on the revelation of such information to the factfinder. When the judge sits as the trier of fact, it is presumed that the judge will understand the limited reason for the disclosure of the underlying inadmissible information and will not rely on that information for any improper purpose. As we have noted, “[i]n bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.” Harris v. Rivera, 454 U.S. 339, 346 (1981) (per curiam). There is a “well-established presumption” that “the judge [has] ad- hered to basic rules of procedure,” when the judge is acting as a factfinder. Id., at 346–347 (emphasis added). See also Gentile v. State Bar of Nev., 501 U.S. 1030, 1078 (1991) (Rehnquist, C. J., dissenting). This feature of Illinois and federal law is important because Crawford, while departing from prior Confronta- tion Clause precedent in other respects, took pains to reaffirm the proposition that the Confrontation Clause “does not bar the use of testimonial statements for purposes —————— 2 But disclosure of these facts or data to the jury is permitted if the value of disclosure “substantially outweighs [any] prejudicial effect,” Fed. Rule Evid. 703, or “the probative value . . . outweighs the risk of unfair prejudice.” People v. Pasch, 152 Ill. 2d 133, 223, 604 N.E.2d 294, 333 (1992). When this disclosure occurs, “the underlying facts” are revealed to the jury “for the limited purpose of explaining the basis for [the expert’s] opinion” and not “for the truth of the matter asserted.” Id., at 176, 604 N.E. 2d, at 311. 16 WILLIAMS v. ILLINOIS Opinion of ALITO, J. other than establishing the truth of the matter asserted.” 541 U. S., at 59–60, n. 9 (citing Tennessee v. Street, 471 U.S. 409). In Street, the defendant claimed that the police had coerced him into adopting the confession of his alleged accomplice. The prosecution sought to rebut this claim by showing that the defendant’s confession differed significantly from the accomplice’s. Although the accom- plice’s confession was clearly a testimonial statement, the Court held that the jurors could hear it as long as they were instructed to consider that confession not for its truth, but only for the “distinctive and limited purpose” of comparing it to the defendant’s confession, to see whether the two were identical. Id., at 417. III A In order to assess petitioner’s Confrontation Clause argument, it is helpful to inventory exactly what Lamba- tos said on the stand about Cellmark. She testified to the truth of the following matters: Cellmark was an accredited lab, App. 49; the ISP occasionally sent forensic samples to Cellmark for DNA testing, ibid.; according to shipping manifests admitted into evidence, the ISP lab sent vaginal swabs taken from the victim to Cellmark and later re- ceived those swabs back from Cellmark, id., at 52–55; and, finally, the Cellmark DNA profile matched a profile pro- duced by the ISP lab from a sample of petitioner’s blood, id., at 55–56. Lambatos had personal knowledge of all of these matters, and therefore none of this testimony in- fringed petitioner’s confrontation right. Lambatos did not testify to the truth of any other matter concerning Cellmark. She made no other reference to the Cellmark report, which was not admitted into evidence and was not seen by the trier of fact. Nor did she testify to anything that was done at the Cellmark lab, and she did not vouch for the quality of Cellmark’s work. Cite as: 567 U. S. ____ (2012) 17 Opinion of ALITO, J. B The principal argument advanced to show a Confronta- tion Clause violation concerns the phrase that Lambatos used when she referred to the DNA profile that the ISP lab received from Cellmark. This argument is developed most fully in the dissenting opinion, and therefore we refer to the dissent’s discussion of this issue. In the view of the dissent, the following is the critical portion of Lambatos’ testimony, with the particular words that the dissent finds objectionable italicized: “Q Was there a computer match generated of the male DNA profile found in semen from the vaginal swabs of [L.J.] to a male DNA profile that had been identified as hav- ing originated from Sandy Williams? “A Yes, there was.” Post, at 7 (opinion of KAGAN, J.) (quoting App. 56; emphasis added). According to the dissent, the italicized phrase violated petitioner’s confrontation right because Lambatos lacked personal knowledge that the profile produced by Cellmark was based on the vaginal swabs taken from the victim, L. J. As the dissent acknowledges, there would have been “nothing wrong with Lambatos’s testifying that two DNA profiles—the one shown in the Cellmark report and the one derived from Williams’s blood—matched each other; that was a straightforward application of Lambatos’s expertise.” Post, at 12. Thus, if Lambatos’ testimony had been slightly modified as follows, the dissent would see no problem: “Q Was there a computer match generated of the male DNA profile produced by 18 WILLIAMS v. ILLINOIS Opinion of ALITO, J. Cellmark found in semen from the vaginal swabs of [L.J.] to a male DNA profile that had been identified as having originated from Sandy Williams? “A Yes, there was.”3 The defect in this argument is that under Illinois law (like federal law) it is clear that the putatively offending phrase in Lambatos’ testimony was not admissible for the purpose of proving the truth of the matter asserted—i.e., that the matching DNA profile was “found in semen from the vaginal swabs.” Rather, that fact was a mere premise of the prosecutor’s question, and Lambatos simply as- sumed that premise to be true when she gave her answer indicating that there was a match between the two DNA profiles. There is no reason to think that the trier of fact took Lambatos’ answer as substantive evidence to estab- lish where the DNA profiles came from. The dissent’s argument would have force if petitioner had elected to have a jury trial. In that event, there would have been a danger of the jury’s taking Lambatos’ testi- mony as proof that the Cellmark profile was derived from the sample obtained from the victim’s vaginal swabs. Absent an evaluation of the risk of juror confusion and careful jury instructions, the testimony could not have —————— 3 The small difference between what Lambatos actually said on the stand and the slightly revised version that the dissent would find un- objectionable shows that, despite the dissent’s rhetoric, its narrow argument would have little practical effect in future cases. Prosecutors would be allowed to do exactly what the prosecution did in this case so long as their testifying experts’ testimony was slightly modified along the lines shown above. Following that course presumably would not constitute a “prosecutorial dodge,” “subterfuge,” “indirection,” the “neat trick” of “sneak[ing]” in evidence, or the countenancing of constitutional violations with “a wink and a nod.” See post, at 3, 16, 17, 12 (opinion of KAGAN, J.). Cite as: 567 U. S. ____ (2012) 19 Opinion of ALITO, J. gone to the jury. This case, however, involves a bench trial and we must assume that the trial judge understood that the portion of Lambatos’ testimony to which the dissent objects was not admissible to prove the truth of the matter asserted.4 The dissent, on the other hand, reaches the truly remarkable conclusion that the wording of Lambatos’ testimony con- fused the trial judge. Were it not for that wording, the argument goes, the judge might have found that the pros- ecution failed to introduce sufficient admissible evidence to show that the Cellmark profile was derived from the sample taken from the victim, and the judge might have disregarded the DNA evidence. This argument reflects a profound lack of respect for the acumen of the trial judge.5 To begin, the dissent’s argument finds no support in the trial record. After defense counsel objected to Lambatos’ testimony, the prosecutor made clear that she was asking Lambatos only about “her own testing based on [DNA] information” that she had received from Cellmark. App. 56. Recognizing that Lambatos’ testimony would carry weight only if the underlying premises could be estab- lished, the judge noted that “the issue is . . . what weight do you give the test [performed by Lambatos], not do you exclude it.” Id., at 94. This echoes the old statement in Beckwith that an expert’s opinion based on disputed prem- ises “might not go for much; but still it [is] admissible evidence.” 1 Camp., at 117, 170 Eng. Rep., at 897. Both —————— 4 We do not suggest that the Confrontation Clause applies differently depending on the identity of the factfinder. Cf. post, at 14–15 (opinion of KAGAN, J.). Instead, our point is that the identity of the factfinder makes a big difference in evaluating the likelihood that the factfinder mistakenly based its decision on inadmissible evidence. 5 See post, at 14 (opinion of KAGAN, J.) (“I do not doubt that a judge typically will do better than a jury in excluding such inadmissible evidence from his decisionmaking process. Perhaps the judge did so here” (emphasis added)). 20 WILLIAMS v. ILLINOIS Opinion of ALITO, J. the Illinois Appellate Court and the Illinois Supreme Court viewed the record in this way, and we see no ground for disagreement.6 Second, it is extraordinarily unlikely that any trial judge would be confused in the way that the dissent posits. That Lambatos was not competent to testify to the chain of custody of the sample taken from the victim was a point that any trial judge or attorney would immediately under- stand. Lambatos, after all, had absolutely nothing to do with the collection of the sample from the victim, its sub- sequent handling or preservation by the police in Illinois, or its shipment to and receipt by Cellmark. No trial judge would take Lambatos’ testimony as furnishing “the miss- ing link” in the State’s evidence regarding the identity of the sample that Cellmark tested. See post, at 6 (opinion of KAGAN, J.). Third, the admissible evidence left little room for argu- ment that the sample tested by Cellmark came from any source other than the victim’s vaginal swabs.7 This is so —————— 6 The dissent finds evidence of the trial judge’s confusion in his statement that petitioner is “ ‘the guy whose DNA, according to the evidence from the experts, is in the semen recovered from the victim’s vagina.’ ” Post, at 14 (emphasis added). The dissent interprets the phrase “according to the evidence from the experts” as a reference to what one expert, Lambatos, said about the origin of the sample that Cellmark tested. In context, however, the judge’s statement is best understood as attributing to Lambatos nothing more than the conclu- sion that there was a match between the two DNA profiles that were compared. The foundational facts, that one of the profiles came from the defendant and that the other came from “ ‘the semen recovered from the victim’s vagina,’ ” were established not by expert testimony but by ordinary chain-of-custody evidence. 7 Our point is not that admissible evidence regarding the identity of the sample that Cellmark tested excuses the admission of testimonial hearsay on this matter. Compare post, at 5–6 (THOMAS, J., concurring in judgment), with post, at 14 (KAGAN, J., dissenting). Rather, our point is that, because there was substantial (albeit circumstantial) evidence on this matter, there is no reason to infer that the trier of fact must Cite as: 567 U. S. ____ (2012) 21 Opinion of ALITO, J. because there is simply no plausible explanation for how Cellmark could have produced a DNA profile that matched Williams’ if Cellmark had tested any sample other than the one taken from the victim. If any other items that might have contained Williams’ DNA had been sent to Cellmark or were otherwise in Cellmark’s possession, there would have been a chance of a mix-up or of cross- contamination. See District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 80 (2009) (ALITO, J., concurring). But there is absolutely nothing to suggest that Cellmark had any such items. Thus, the fact that the Cellmark profile matched Williams—the very man whom the victim identified in a lineup and at trial as her at- tacker—was itself striking confirmation that the sample that Cellmark tested was the sample taken from the victim’s vaginal swabs. For these reasons, it is fanciful to suggest that the trial judge took Lambatos’ testimony as providing critical chain-of-custody evidence. C Other than the phrase that Lambatos used in referring to the Cellmark profile, no specific passage in the trial record has been identified as violating the Confrontation Clause, but it is nevertheless suggested that the State somehow introduced “the substance of Cellmark’s report into evidence.” Post, at 8 (KAGAN, J., dissenting). The main impetus for this argument appears to be the (errone- ous) view that unless the substance of the report was sneaked in, there would be insufficient evidence in the record on two critical points: first, that the Cellmark profile was based on the semen in the victim’s vaginal swabs and, second, that Cellmark’s procedures were reli- able. This argument is both legally irrelevant for present purposes and factually incorrect. —————— have taken Lambatos’ statement as providing “the missing link.” 22 WILLIAMS v. ILLINOIS Opinion of ALITO, J. As to legal relevance, the question before us is whether petitioner’s Sixth Amendment confrontation right was violated, not whether the State offered sufficient founda- tional evidence to support the admission of Lambatos’ opinion about the DNA match. In order to prove these underlying facts, the prosecution relied on circumstantial evidence, and the Illinois courts found that this evidence was sufficient to satisfy state-law requirements regarding proof of foundational facts. See 385 Ill. App. 3d, at 366– 368, 895 N.E. 2d, at 967–968; 238 Ill. 2d, at 138, 939 N.E. 2d, at 275. We cannot review that interpretation and application of Illinois law. Thus, even if the record did not contain any evidence that could rationally support a find- ing that Cellmark produced a scientifically reliable DNA profile based on L. J.’s vaginal swab, that would not estab- lish a Confrontation Clause violation. If there were no proof that Cellmark produced an accurate profile based on that sample, Lambatos’ testimony regarding the match would be irrelevant, but the Confrontation Clause, as interpreted in Crawford, does not bar the admission of irrelevant evidence, only testimonial statements by de- clarants who are not subject to cross-examination.8 It is not correct, however, that the trial record lacks admissible evidence with respect to the source of the sam- ple that Cellmark tested or the reliability of the Cell- mark profile. As to the source of the sample, the State offered conventional chain-of-custody evidence, namely, the testimony of the physician who obtained the vaginal swabs, the testimony of the police employees who handled and kept custody of that evidence until it was sent to —————— 8 Applying the Due Process Clause, we have held that a federal court may determine whether a rational trier of fact could have found the existence of all the elements needed for conviction for a state offense. Jackson v. Virginia, 443 U.S. 307, 314 (1979), but petitioner has not raised a due process claim. And in any event, L. J.’s identification of petitioner as her assailant would be sufficient to defeat any such claim. Cite as: 567 U. S. ____ (2012) 23 Opinion of ALITO, J. Cellmark, and the shipping manifests, which provided evidence that the swabs were sent to Cellmark and then returned to the ISP lab. In addition, as already discussed, the match between the Cellmark profile and petitioner’s profile was itself telling confirmation that the Cellmark profile was deduced from the semen on the vaginal swabs. This match also provided strong circumstantial evidence regarding the reliability of Cellmark’s work. Assuming (for the reasons discussed above) that the Cellmark profile was based on the semen on the vaginal swabs, how could shoddy or dishonest work in the Cellmark lab9 have re- sulted in the production of a DNA profile that just so happened to match petitioner’s? If the semen found on the vaginal swabs was not petitioner’s and thus had an en- tirely different DNA profile, how could sloppy work in the Cellmark lab have transformed that entirely different profile into one that matched petitioner’s? And without access to any other sample of petitioner’s DNA (and recall that petitioner was not even under suspicion at this time), how could a dishonest lab technician have substituted pe- titioner’s DNA profile? Under the circumstances of this case, it was surely permissible for the trier of fact to infer that the odds of any of this were exceedingly low. This analysis reveals that much of the dissent’s argu- ment rests on a very clear error. The dissent argues that Lambatos’ testimony could be “true” only if the predicate facts asserted in the Cellmark report were true, and there- fore Lambatos’ reference to the report must have been used for the purpose of proving the truth of those facts. See post, at 10–11. But the truth of Lambatos’ testimony, properly understood, was not dependent on the truth of any predicate facts. Lambatos testified that two DNA profiles matched. The correctness of this expert opinion, which the defense was able to test on cross-examination, —————— 9 See post, at 18 (KAGAN, J., dissenting). 24 WILLIAMS v. ILLINOIS Opinion of ALITO, J. was not in any way dependent on the origin of the samples from which the profiles were derived. Of course, Lamba- tos’ opinion would have lacked probative value if the pros- ecution had not introduced other evidence to establish the provenance of the profiles, but that has nothing to do with the truth of her testimony. The dissent is similarly mistaken in its contention that the Cellmark report “was offered for its truth because that is all such ‘basis evidence’ can be offered for.” Post, at 13; see also post, at 3 (THOMAS, J., concurring in judgment) (“[S]tatements introduced to explain the basis of an expert’s opinion are not introduced for a plausible nonhearsay purpose”). This view is directly contrary to the current version of Rule 703 of the Federal Rules of Evidence, which this Court approved and sent to Congress in 2000. Under that Rule, “basis evidence” that is not admissible for its truth may be disclosed even in a jury trial under appropriate circumstances. The purpose for allowing this disclosure is that it may “assis[t] the jury to evaluate the expert’s opinion.” Advisory Committee’s 2000 Notes on Fed. Rule Evid. 703, 28 U.S. C. App., p. 361. The Rule 703 approach, which was controversial when adopted,10 is based on the idea that the disclosure of basis evidence can help the factfinder understand the expert’s thought pro- cess and determine what weight to give to the expert’s opinion. For example, if the factfinder were to suspect that the expert relied on factual premises with no support in the record, or that the expert drew an unwarranted inference from the premises on which the expert relied, then the probativeness or credibility of the expert’s opin- ion would be seriously undermined. The purpose of dis- closing the facts on which the expert relied is to allay these fears—to show that the expert’s reasoning was not illogical, and that the weight of the expert’s opinion does —————— 10 See Advisory Committee’s 2000 Notes on Rule 703, at 361. Cite as: 567 U. S. ____ (2012) 25 Opinion of ALITO, J. not depend on factual premises unsupported by other evidence in the record—not to prove the truth of the un- derlying facts. Perhaps because it cannot seriously dispute the legit- imate nonhearsay purpose of illuminating the expert’s thought process, the dissent resorts to the last-ditch ar- gument that, after all, it really does not matter whether Lambatos’ statement regarding the source of the Cellmark report was admitted for its truth. The dissent concedes that “the trial judge might have ignored Lambatos’s statement about the Cellmark report,” but nonetheless maintains that “the admission of that statement violated the Confrontation Clause even if the judge ultimately put it aside.” Post, at 15, n. 2. But in a bench trial, it is not necessary for the judge to stop and make a formal state- ment on the record regarding the limited reason for which the testimony is admitted. If the judge does not consider the testimony for its truth, the effect is precisely the same. Thus, if the trial judge in this case did not rely on the statement in question for its truth, there is simply no way around the proviso in Crawford that the Confrontation Clause applies only to out-of-court statements that are “use[d]” to “establis[h] the truth of the matter asserted.” 541 U. S., at 59–60, n. 9 (citing Street, 471 U.S. 409). For all these reasons, we conclude that petitioner’s Sixth Amendment confrontation right was not violated. D This conclusion is entirely consistent with Bullcoming and Melendez-Diaz. In those cases, the forensic reports were introduced into evidence, and there is no question that this was done for the purpose of proving the truth of what they asserted: in Bullcoming that the defendant’s blood alcohol level exceeded the legal limit and in Melendez- Diaz that the substance in question contained cocaine. Nothing comparable happened here. In this case, the 26 WILLIAMS v. ILLINOIS Opinion of ALITO, J. Cellmark report was not introduced into evidence. An expert witness referred to the report not to prove the truth of the matter asserted in the report, i.e., that the report contained an accurate profile of the perpetrator’s DNA, but only to establish that the report contained a DNA profile that matched the DNA profile deduced from peti- tioner’s blood. Thus, just as in Street, the report was not to be considered for its truth but only for the “distinctive and limited purpose” of seeing whether it matched something else. 471 U. S., at 417. The relevance of the match was then established by independent circumstantial evidence showing that the Cellmark report was based on a forensic sample taken from the scene of the crime. Our conclusion will not open the door for the kind of abuses suggested by some of petitioner’s amici and the dissent. See post, at 10–11; Brief for Richard D. Friedman as Amicus Curiae 20–21. In the hypothetical situations posited, an expert expresses an opinion based on factual premises not supported by any admissible evidence, and may also reveal the out-of-court statements on which the expert relied.11 There are at least four safeguards to —————— 11 Both JUSTICE THOMAS and JUSTICE KAGAN quote statements in D. Kaye, D. Bernstein, & J. Mnookin, The New Wigmore: Expert Evidence §4.10.1, pp. 196–197 (2d ed. 2011) (hereinafter New Wigmore), that are critical of the theory that an expert, without violating the Confronta- tion Clause, may express an opinion that is based on testimonial hearsay and may, in some circumstances, disclose that testimonial hearsay to the trier of fact. The principal basis for this criticism seems to be the fear that juries, even if given limiting instructions, will view the disclosed hearsay as evidence of the truth of the matter asserted. See id., at 196, n. 36 (referring reader to the more detailed discussion in Mnookin, Expert Evidence and the Confrontation Clause After Craw- ford v. Washington, 15 Johns. L. & Pol’y 791 (2007)); New Wigmore 197, and n. 39 (citing jury cases); Mnookin, supra, at 802–804, 811–813. This argument plainly has no application in a case like this one, in which a judge sits as the trier of fact. In the 2012 Supplement of The New Wigmore, the authors discuss the present case and criticize the reasoning of the Illinois courts as follows: Cite as: 567 U. S. ____ (2012) 27 Opinion of ALITO, J. prevent such abuses. First, trial courts can screen out experts who would act as mere conduits for hearsay by strictly enforcing the requirement that experts display some genuine “scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. Rule Evid. 702(a). Second, experts are generally precluded from disclosing inadmissible evidence to a jury. See Fed. Rule Evid. 703; People v. Pasch, 152 Ill. 2d 133, 175–176, 604 N.E.2d 294, 310–311 (1992). Third, if such evidence is disclosed, the trial judges may and, under most circum- stances, must, instruct the jury that out-of-court state- ments cannot be accepted for their truth, and that an expert’s opinion is only as good as the independent evi- dence that establishes its underlying premises. See Fed. Rules Evid. 105, 703; People v. Scott, 148 Ill. 2d 479, 527– 528, 594 N.E.2d 217, 236–237 (1992). And fourth, if the prosecution cannot muster any independent admissible evidence to prove the foundational facts that are essential to the relevance of the expert’s testimony, then the ex- pert’s testimony cannot be given any weight by the trier of fact.12 —————— “The problem with [the not-for-the-truth-of-the-matter argument accepted by the Illinois courts] is that Lambatos had to rely on the truth of the statements in the Cellmark report to reach her own con- clusion. The claim that evidence that the jury must credit in order to credit the conclusion of the expert is introduced for something other than its truth is sheer fiction.” New Wigmore §4.11.6, at 24 (2012 Supp.) (emphasis added). This discussion is flawed. It overlooks the fact that there was no jury in this case, and as we have explained, the trier of fact did not have to rely on any testimonial hearsay in order to find that Lambatos’ testi- mony about the DNA match was supported by adequate foundational evidence and was thus probative. 12 Our discussion of the first ground for our decision cannot conclude without commenting on the Kocak case, which dramatically appears at the beginning of the dissent. In that case, a Cellmark lab analyst 28 WILLIAMS v. ILLINOIS Opinion of ALITO, J. IV A Even if the Cellmark report had been introduced for its truth, we would nevertheless conclude that there was no Confrontation Clause violation. The Confrontation Clause refers to testimony by “witnesses against” an accused. Both the noted evidence scholar James Henry Wigmore and Justice Harlan interpreted the Clause in a strictly literal sense as referring solely to persons who testify in court, but we have not adopted this narrow view. It has been said that “[t]he difficulty with the Wigmore-Harlan view in its purest form is its tension with much of the apparent history surrounding the evolution of the right of confrontation at common law.” White v. Illinois, 502 U.S. 346, 360 (1992) (THOMAS, J., concurring). “[T]he principal evil at which the Confrontation Clause was directed,” the Court concluded in Crawford, “was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” 541 U. S., at 50. “[I]n England, pretrial examinations of suspects —————— realized while testifying at a pretrial hearing that there was an error in the lab’s report and that the DNA profile attributed to the accused was actually that of the victim. The lesson of this cautionary tale is nothing more than the truism that it is possible for an apparently incriminating DNA profile to be mistakenly attributed to an accused. But requiring that the lab analyst or analysts who produced the DNA profile be called as prosecution witnesses is neither sufficient nor necessary to prevent such errors. Since samples may be mixed up or contaminated at many points along the way from a crime scene to the lab, calling one or more lab analysts will not necessarily catch all such mistakes. For example, a mistake might be made by a clerical employee responsible for receiv- ing shipments of samples and then providing them to the lab’s techni- cians. What is needed is for the trier of fact to make sure that the evidence, whether direct or circumstantial, rules out the possibility of such mistakes at every step along the way. And in the usual course of authentication, defense counsel will have access to sufficient infor- mation to inquire into, question, or challenge the procedures used by a laboratory if this seems to be a prudent and productive strategy. Cite as: 567 U. S. ____ (2012) 29 Opinion of ALITO, J. and witnesses by government officials ‘were sometimes read in court in lieu of live testimony.’ ” Bryant, 562 U. S., at ___ (slip op., at 6) (quoting Crawford, supra, at 43). The Court has thus interpreted the Confrontation Clause as prohibiting modern-day practices that are tantamount to the abuses that gave rise to the recognition of the confron- tation right. But any further expansion would strain the constitutional text. The abuses that the Court has identified as prompting the adoption of the Confrontation Clause shared the fol- lowing two characteristics: (a) they involved out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct and (b) they involved formalized statements such as affidavits, depositions, prior testimony, or confessions. In all but one of the post-Crawford cases13 in which a Confrontation Clause violation has been found, both of these characteris- tics were present. See Bullcoming, 564 U. S., at 308 (slip op., at 3–4) (certified lab report having purpose of showing that defendant’s blood-alcohol level exceeded legal limit); Melendez-Diaz, 557 U. S., at 308 (certified lab report having purpose of showing that substance connected to defendant contained cocaine); Crawford, supra, at 38 (custodial statement made after Miranda warnings that shifted blame from declarant to accused).14 The one excep- tion occurred in Hammon v. Indiana, 547 U.S. 813, 829– 832 (2006), which was decided together with Davis v. Washington, but in Hammon and every other post- Crawford case in which the Court has found a violation of —————— 13 Experience might yet show that the holdings in those cases should be reconsidered for the reasons, among others, expressed in the dis- sents the decisions produced. Those decisions are not challenged in this case and are to be deemed binding precedents, but they can and should be distinguished on the facts here. 14 With respect to Crawford, see Davis, 547 U. S., at 840 (THOMAS, J., concurring in judgment in part and dissenting in part). 30 WILLIAMS v. ILLINOIS Opinion of ALITO, J. the confrontation right, the statement at issue had the primary purpose of accusing a targeted individual. B In Hammon, the one case in which an informal state- ment was held to violate the Confrontation Clause, we considered statements elicited in the course of police in- terrogation. We held that a statement does not fall within the ambit of the Clause when it is made “under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” 547 U. S., at 822. In Bryant, another police-interrogation case, we explained that a person who makes a statement to resolve an ongo- ing emergency is not acting like a trial witness because the declarant’s purpose is not to provide a solemn declara- tion for use at trial, but to bring an end to an ongoing threat. See 562 U. S., at ___, ___ (slip op., at 11, 14). We noted that “the prospect of fabrication . . . is presumably significantly diminished” when a statement is made under such circumstances, id., at ___ (slip op., at 14) and that reliability is a salient characteristic of a statement that falls outside the reach of the Confrontation Clause, id., at ___–___ (slip op., at 14–15). We emphasized that if a statement is not made for “the primary purpose of creating an out-of-court substitute for trial testimony,” its admissi- bility “is the concern of state and federal rules of evidence, not the Confrontation Clause.” Id., at ___–___ (slip op., at 11–12). In Melendez-Diaz and Bullcoming, the Court held that the particular forensic reports at issue qualified as testi- monial statements, but the Court did not hold that all forensic reports fall into the same category. Introduction of the reports in those cases ran afoul of the Confrontation Clause because they were the equivalent of affidavits made for the purpose of proving the guilt of a particular Cite as: 567 U. S. ____ (2012) 31 Opinion of ALITO, J. criminal defendant at trial. There was nothing resembling an ongoing emergency, as the suspects in both cases had already been captured, and the tests in question were relatively simple and can generally be performed by a single analyst. In addition, the technicians who prepared the reports must have realized that their contents (which reported an elevated blood-alcohol level and the presence of an illegal drug) would be incriminating. C The Cellmark report is very different. It plainly was not prepared for the primary purpose of accusing a targeted individual. In identifying the primary purpose of an out- of-court statement, we apply an objective test. Bryant, 562 U. S., at ___ (slip op., at 13). We look for the primary purpose that a reasonable person would have ascribed to the statement, taking into account all of the surrounding circumstances. Ibid. Here, the primary purpose of the Cellmark report, viewed objectively, was not to accuse petitioner or to cre- ate evidence for use at trial. When the ISP lab sent the sample to Cellmark, its primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against petitioner, who was neither in custody nor under suspicion at that time. Similarly, no one at Cellmark could have possibly known that the profile that it produced would turn out to inculpate petitioner—or for that matter, anyone else whose DNA profile was in a law enforcement database. Under these circumstances, there was no “prospect of fabrication” and no incentive to produce anything other than a scientifi- cally sound and reliable profile. Id., at ___ (slip op., at 14). The situation in which the Cellmark technicians found themselves was by no means unique. When lab techni- cians are asked to work on the production of a DNA pro- file, they often have no idea what the consequences of 32 WILLIAMS v. ILLINOIS Opinion of ALITO, J. their work will be. In some cases, a DNA profile may provide powerful incriminating evidence against a person who is identified either before or after the profile is com- pleted. But in others, the primary effect of the profile is to exonerate a suspect who has been charged or is under investigation. The technicians who prepare a DNA profile generally have no way of knowing whether it will turn out to be incriminating or exonerating—or both. It is also significant that in many labs, numerous tech- nicians work on each DNA profile. See Brief for New York County District Attorney’s Office et al. as Amici Curiae 6 (New York lab uses at least 12 technicians for each case); People v. Johnson, 389 Ill. App. 3d 618, 627, 906 N.E.2d 70, 79 (2009) (“[A]pproximately 10 Cellmark analysts were involved in the laboratory work in this case”). When the work of a lab is divided up in such a way, it is likely that the sole purpose of each technician is simply to perform his or her task in accordance with accepted procedures. Finally, the knowledge that defects in a DNA profile may often be detected from the profile itself provides a further safeguard. In this case, for example, Lambatos testified that she would have been able to tell from the profile if the sample used by Cellmark had been degraded prior to testing. As noted above, moreover, there is no real chance that “sample contamination, sample switching, mislabeling, [or] fraud” could have led Cellmark to pro- duce a DNA profile that falsely matched petitioner. Post, at 21 (KAGAN, J., dissenting). At the time of the testing, petitioner had not yet been identified as a suspect, and there is no suggestion that anyone at Cellmark had a sample of his DNA to swap in by malice or mistake. And given the complexity of the DNA molecule, it is inconceiv- able that shoddy lab work would somehow produce a DNA profile that just so happened to have the precise genetic makeup of petitioner, who just so happened to be picked out of a lineup by the victim. The prospect is beyond Cite as: 567 U. S. ____ (2012) 33 Opinion of ALITO, J. fanciful. In short, the use at trial of a DNA report prepared by a modern, accredited laboratory “bears little if any resem- blance to the historical practices that the Confrontation Clause aimed to eliminate.” Bryant, supra, at ___ (slip op., at 2) (THOMAS, J., concurring). * * * For the two independent reasons explained above, we conclude that there was no Confrontation Clause violation in this case. Accordingly, the judgment of the Supreme Court of Illinois is Affirmed. Cite as: 567 U. S. ____ (2012) 1 BREYER, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 10–8505 _________________ SANDY WILLIAMS, PETITIONER v.	In this case, we decide whether precludes an expert witness from testifying in a manner that has long been allowed under the law of evidence. Specifically, does bar an expert from expressing an opinion based on facts about a case that have been made known to the expert but about which the expert is not competent to testify? We also decide whether substantially impedes the ability of prosecutors to introduce DNA evidence and thus may effectively relegate the prosecution in some cases to reli- ance on older, less reliable forms of proof. In petitioner’s bench trial for rape, the prosecution called an expert who testified that a DNA profile produced by an outside laboratory, Cellmark, matched a profile produced by the state police lab using a sample of peti- tioner’s blood. On direct examination, the expert testified that Cellmark was an accredited laboratory and that Cellmark provided the police with a DNA profile. The expert also explained the notations on documents admit- 2 WILLIAMS v. ILLINOIS Opinion of ALITO, J. ted as business records, stating that, according to the records, vaginal swabs taken from the victim were sent to and received back from Cellmark. The expert made no other statement that was offered for the purpose of identi- fying the sample of biological material used in deriving the profile or for the purpose of establishing how Cellmark handled or tested the sample. Nor did the expert vouch for the accuracy of the profile that Cellmark produced. Nevertheless, petitioner contends that the expert’s testi- mony violated the Confrontation Clause as interpreted in Petitioner’s main argument is that the expert went astray when she referred to the DNA profile provided by Cellmark as having been produced from semen found on the victim’s vaginal swabs. But both the Illinois Appellate Court and the Illinois Supreme Court found that this statement was not admitted for the truth of the matter asserted, and it is settled that the Confrontation Clause does not bar the admission of such statements. See at 59–60, n. 9 (citing (1985)). For more than 200 years, the law of evidence has permitted the sort of testimony that was given by the ex- pert in this case. Under settled evidence law, an expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. It is then up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert. While it was once the practice for an expert who based an opinion on assumed facts to testify in the form of an an- swer to a hypothetical question, modern practice does not demand this formality and, in appropriate cases, permits an expert to explain the facts on which his or her opinion is based without testifying to the truth of those facts. See Fed. Rule Evid. 703. That is precisely what occurred in this case, and we should not lightly “swee[p] away an accepted rule governing the admission of scientific evi- Cite as: 567 U. S. (2012) 3 Opinion of ALITO, J. dence.” 330 (KENNEDY, J., dissenting). We now conclude that this form of expert testimony does not violate the Confrontation Clause because that provi- sion has no application to out-of-court statements that are not offered to prove the truth of the matter asserted. When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assump- tions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause. Applying this rule to the present case, we con- clude that the expert’s testimony did not violate the Sixth Amendment. As a second, independent basis for our decision, we also conclude that even if the report produced by Cellmark had been admitted into evidence, there would have been no Confrontation Clause violation. The Cellmark report is very different from the sort of extrajudicial statements, such as affidavits, depositions, prior testimony, and con- fessions, that the Confrontation Clause was originally understood to reach. The report was produced before any suspect was identified. The report was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose. And the profile that Cellmark provided was not inherently inculpatory. On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today. The use of DNA evi- dence to exonerate persons who have been wrongfully accused or convicted is well known. If DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic 4 WILLIAMS v. ILLINOIS Opinion of ALITO, J. pressures would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable. See Perry v. New Hampshire, 565 U. S. (2012). The Con- frontation Clause does not mandate such an undesirable development. This conclusion will not prejudice any de- fendant who really wishes to probe the reliability of the DNA testing done in a particular case because those who participated in the testing may always be subpoenaed by the defense and questioned at trial. I A On February 10, 2000, in Chicago, Illinois, a young woman, L. J., was abducted while she was walking home from work. The perpetrator forced her into his car and raped her, then robbed her of her money and other per- sonal items and pushed her out into the street. L. J. ran home and reported the attack to her mother, who called the police. An ambulance took L. J. to the hospital, where doctors treated her wounds and took a blood sample and vaginal swabs for a sexual-assault kit. A Chicago Police detective collected the kit, labeled it with an inventory number, and sent it under seal to the Illinois State Police (ISP) lab. At the ISP lab, a forensic scientist received the sealed kit. He conducted a chemical test that confirmed the presence of semen on the vaginal swabs, and he then resealed the kit and placed it in a secure evidence freezer. During the period in question, the ISP lab often sent biological samples to Cellmark Diagnostics Laboratory in Germantown, Maryland, for DNA testing. There was evidence that the ISP lab sent L. J.’s vaginal swabs to Cellmark for testing and that Cellmark sent back a report containing a male DNA profile produced from semen taken from those swabs. At this time, petitioner was not under Cite as: 567 U. S. (2012) 5 Opinion of ALITO, J. suspicion for L. J.’s rape. Sandra Lambatos, a forensic specialist at the ISP lab, conducted a computer search to see if the Cellmark profile matched any of the entries in the state DNA database. The computer showed a match to a profile produced by the lab from a sample of petitioner’s blood that had been taken after he was arrested on unrelated charges on August 3, 2000. On April 17, 2001, the police conducted a lineup at which L. J. identified petitioner as her assailant. Peti- tioner was then indicted for aggravated criminal sexual assault, aggravated kidnaping, and aggravated robbery. In lieu of a jury trial, petitioner chose to be tried before a state judge. B Petitioner’s bench trial began in April 2006. In open court, L. J. again identified petitioner as her attacker. The State also offered three expert forensic witnesses to link petitioner to the crime through his DNA. First, Brian Hapack, an ISP forensic scientist, testified that he had confirmed the presence of semen on the vaginal swabs taken from L. J. by performing an acid phosphatase test. After performing this test, he testified, he resealed the evidence and left it in a secure freezer at the ISP lab. Second, Karen Abbinanti, a state forensic analyst, testi- fied that she had used Polymerase Chain Reaction (PCR) and Short Tandem Repeat (STR) techniques to develop a DNA profile from a blood sample that had been drawn from petitioner after he was arrested in August 2000. She also stated that she had entered petitioner’s DNA profile into the state forensic database. Third, the State offered Sandra Lambatos as an expert witness in forensic biology and forensic DNA analysis. On direct examination, Lambatos testified about the general process of using the PCR and STR techniques to generate 6 WILLIAMS v. ILLINOIS Opinion of ALITO, J. DNA profiles from forensic samples such as blood and semen. She then described how these DNA profiles could be matched to an individual based on the individual’s unique genetic code. In making a comparison between two DNA profiles, Lambatos stated, it is a “commonly accepted” practice within the scientific community for “one DNA expert to rely on the records of another DNA expert.” App. 51. Lambatos also testified that Cellmark was an “accred- ited crime lab” and that, in her experience, the ISP lab routinely sent evidence samples via Federal Express to Cellmark for DNA testing in order to expedite the testing process and to “reduce [the lab’s] backlog.” at 49–. To keep track of evidence samples and preserve the chain of custody, Lambatos stated, she and other analysts relied on sealed shipping containers and labeled shipping mani- fests, and she added that experts in her field regularly relied on such protocols. at –51. Lambatos was shown shipping manifests that were admitted into evidence as business records, and she ex- plained what they indicated, namely, that the ISP lab had sent L. J.’s vaginal swabs to Cellmark, and that Cellmark had sent them back, along with a deduced male DNA profile. at 52–55. The prosecutor asked Lambatos whether there was “a computer match” between “the male DNA profile found in semen from the vaginal swabs of [L. J.]” and “[the] male DNA profile that had been identi- fied” from petitioner’s blood sample. The defense attorney objected to this question for “lack of foundation,” arguing that the prosecution had offered “no evidence with regard to any testing that’s been done to generate a DNA profile by another lab to be testified to by this witness.” The prosecutor responded: “I‘m not getting at what another lab did.” Rather, she said, she was simply asking Lambatos about “her own testing based on [DNA] information” that she had received from Cellmark. Cite as: 567 U. S. (2012) 7 Opinion of ALITO, J. The trial judge agreed, noting, “If she says she didn’t do her own testing and she relied on a test of another lab and she’s testifying to that, we will see what she’s going to say.” The prosecutor then proceeded, asking Lambatos, “Did you compare the semen that had been identified by Brian Hapack from the vaginal swabs of [L. J.] to the male DNA profile that had been identified by Karen [Abbinanti] from the blood of [petitioner]?” Lambatos answered “Yes.” Defense counsel lodged an objection “to the form of the question,” but the trial judge overruled it. Lambatos then testified that, based on her own comparison of the two DNA pro- files, she “concluded that [petitioner] cannot be excluded as a possible source of the semen identified in the vaginal swabs,” and that the probability of the profile’s appearing in the general population was “1 in 8.7 quadrillion black, 1 in 390 quadrillion white, or 1 in 109 quadrillion Hispanic unrelated individuals.” Asked whether she would “call this a match to [petitioner],” Lambatos an- swered yes, again over defense counsel’s objection. at 58. The Cellmark report itself was neither admitted into evidence nor shown to the factfinder. Lambatos did not quote or read from the report; nor did she identify it as the source of any of the opinions she expressed. On cross-examination, Lambatos confirmed that she did not conduct or observe any of the testing on the vaginal swabs, and that her testimony relied on the DNA profile produced by Cellmark. She stated that she trusted Cellmark to do reliable work because it was an accredited lab, but she admitted she had not seen any of the calibrations or work that Cellmark had done in deduc- ing a male DNA profile from the vaginal swabs. at 59–62. Asked whether the DNA sample might have been de- 8 WILLIAMS v. ILLINOIS Opinion of ALITO, J. graded before Cellmark analyzed it, Lambatos answered that, while degradation was technically possible, she strongly doubted it had occurred in this case. She gave two reasons. First, the ISP lab likely would have noticed the degradation before sending the evidence off to Cell- mark. Second, and more important, Lambatos also noted that the data making up the DNA profile would ex- hibit certain telltale signs if it had been deduced from a degraded sample: The visual representation of the DNA sequence would exhibit “specific patterns” of degradation, and she “didn’t see any evidence” of that from looking at the profile that Cellmark produced. at 81–82. When Lambatos finished testifying, the defense moved to exclude her testimony “with regards to testing done by [Cellmark]” based on the Confrontation Clause. Defense counsel argued that there was “no evidence with regards to any work done by [Cellmark] to justify testimony coming into this case with regard to their anal- ysis.” Thus, while defense counsel objected to and sought the exclusion of Lambatos’ testimony insofar as it implicated events at the Cellmark lab, defense counsel did not object to or move for the exclusion of any other portion of Lambatos’ testimony, including statements regarding the contents of the shipment sent to or received back from Cellmark. See 56, 90. See also 385 Ill. App. 3d 359, 367–, (chain-of- custody argument based on shipping manifests waived). The prosecution responded that petitioner’s Confronta- tion Clause rights were satisfied because he had the op- portunity to cross-examine the expert who had testified that there was a match between the DNA profiles pro- duced by Cellmark and Abbinanti. App. 91. Invoking Illinois Rule of Evidence 703,1 the prosecutor argued that —————— 1 Consistent with the Federal Rules, Illinois Rule of Evidence 703 provides as follows: Cite as: 567 U. S. (2012) 9 Opinion of ALITO, J. an expert is allowed to disclose the facts on which the expert’s opinion is based even if the expert is not compe- tent to testify to those underlying facts. She further ar- gued that any deficiency in the foundation for the expert’s opinion “[d]oesn’t go to the admissibility of [that] testi- mony,” but instead “goes to the weight of the testimony.” App. 91. The trial judge agreed with the prosecution and stated that “the issue is what weight do you give the test, not do you exclude it.” Accordingly, the judge stated that he would not exclude Lambatos’ testimony, which was “based on her own independent testing of the data received from [Cellmark].” –95 (alteration in original). The trial court found petitioner guilty of the charges against him. The state court of appeals affirmed in rele- vant part, concluding that Lambatos’ testimony did not violate petitioner’s confrontation rights because the Cell- mark report was not offered into evidence to prove the truth of the matter it asserted. See –970 (“Cellmark’s report was not offered for the truth of the matter asserted; rather, it was offered to provide a basis for Lambatos’ opinion”) The Supreme Court of Illinois also affirmed. Under state law, the court noted, the Cellmark report could not be used as substantive evidence. When Lambatos referenced the report during her direct examination, she did so “for the limited purpose of explaining the basis for [her expert opinion],” not for the purpose of showing “the truth of the matter asserted” by —————— “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” 10 WILLIAMS v. ILLINOIS Opinion of ALITO, J. the report. at 1, Thus, the report was not used to establish its truth, but only “to show the underlying facts and data Lambatos used before rendering an expert opinion.” 939 N.E. 2d, at 279. We granted certiorari. 564 U.S. (2011). II A The Confrontation Clause of the Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the wit- nesses against him.” Before this Court took the view that the Confrontation Clause did not bar the admis- sion of an out-of-court statement that fell within a firmly rooted exception to the hearsay rule, see but in the Court adopted a fundamentally new interpretation of the confronta- tion right, holding that “[t]estimonial statements of wit- nesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” 541 U. S., has resulted in a steady stream of new cases in this Court. See v. New Mexico, 564 U.S. (2011); Michigan v. 562 U.S. (2011); ; Giles v. California, 554 U.S. 353 ; ; Two of these decisions involved scientific reports. In the defendant was arrested and charged with distributing and trafficking in cocaine. At trial, the prosecution introduced bags of a white powdery substance that had been found in the defendant’s possession. The trial court also admitted into evidence three “certificates of analysis” from the state forensic laboratory stating that the bags had been “examined with the following results: Cite as: 567 U. S. (2012) 11 Opinion of ALITO, J. The substance was found to contain: Cocaine.” 557 U. S., at 308 (internal quotation marks omitted). The Court held that the admission of these certificates, which were executed under oath before a notary, violated the Sixth Amendment. They were created for “the sole purpose of providing evidence against a defendant,” at 323, and were “ ‘quite plainly affidavits,’ ” (THOMAS, J., concurring). The Court emphasized that the introduction of the report to prove the nature of the sub- stance found in the defendant’s possession was tanta- mount to “live, in-court testimony” on that critical fact and that the certificates did “precisely what a witness does on direct examination.” (internal quotation marks omitted). There was no doubt that the certificates were used to prove the truth of the matter they asserted. Un- der state law, “the sole purpose of the affidavits was to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance.” (internal quotation marks omitted and emphasis deleted). On these facts, the Court said, it was clear that the certif- icates were “testimonial statements” that could not be introduced unless their authors were subjected to the “ ‘cru- cible of cross-examination.’ ” 317 (quoting ). In we held that another scientific report could not be used as substantive evidence against the de- fendant unless the analyst who prepared and certified the report was subject to confrontation. The defendant in that case had been convicted of driving while intoxicated. At trial, the court admitted into evidence a forensic report certifying that a sample of the defendant’s blood had an alcohol concentration of 0.21 grams per hundred milli- liters, well above the legal limit. Instead of calling the analyst who signed and certified the forensic report, the prosecution called another analyst who had not performed or observed the actual analysis, but was only familiar with 12 WILLIAMS v. ILLINOIS Opinion of ALITO, J. the general testing procedures of the laboratory. The Court declined to accept this surrogate testimony, despite the fact that the testifying analyst was a “knowledgeable representative of the laboratory” who could “explain the lab’s processes and the details of the report.” 564 U. S., at (KENNEDY, J., dissenting) (slip op., at 1). The Court stated simply: “The accused’s right is to be confronted with the analyst who made the certification.” at (slip op., at 2). Just as in the forensic report that was “introduce[d]” in “contain[ed] a testimonial certification, made in order to prove a fact at a criminal trial.” 564 U. S., at – (slip op., at 7–8). The report was signed by the nontestifying analyst who had authored it, stating, “I certify that I followed the procedures set out on the reverse of this report, and the statements in this block are correct. The concentration of alcohol in this sample is based on the grams of alcohol in one hundred milliliters of blood.” App. in O. T. No. 09–10876, p. 62. Critically, the report was introduced at trial for the substantive purpose of proving the truth of the matter asserted by its out-of-court author—namely, that the defendant had a blood-alcohol level of 0.21. This was the central fact in question at the defendant’s trial, and it was dispositive of his guilt. In concurrence, JUSTICE SOTOMAYOR highlighted the im- portance of the fact that the forensic report had been admitted into evidence for the purpose of proving the truth of the matter it asserted. She emphasized that “this [was] not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” 564 U. S., at (slip op., at 6) (opinion concurring in part) (citing Fed. Rule Evid. 703). “We would face a different question,” she observed, “if asked to determine the consti- tutionality of allowing an expert witness to discuss others’ Cite as: 567 U. S. (2012) 13 Opinion of ALITO, J. testimonial statements if the testimonial statements were not themselves admitted as evidence.” at (slip op., at 6). We now confront that question. B It has long been accepted that an expert witness may voice an opinion based on facts concerning the events at issue in a particular case even if the expert lacks first- hand knowledge of those facts. At common law, courts developed two ways to deal with this situation. An expert could rely on facts that had already been established in the record. But because it was not always possible to proceed in this manner, and be- cause record evidence was often disputed, courts devel- oped the alternative practice of allowing an expert to testify in the form of a “hypothetical question.” Under this approach, the expert would be asked to assume the truth of certain factual predicates, and was then asked to offer an opinion based on those assumptions. See 1 K. Broun, McCormick on Evidence p. 87 ; 1 J. Wigmore, Evidence p. 1084 (2d ed. 1923) (“If the witness is skilled enough, his opinion may be adequately obtained upon hypothetical data alone; and it is immate- rial whether he has ever seen the person, place or thing in question” (citation omitted)). The truth of the premises could then be established through independent evidence, and the factfinder would regard the expert’s testimony to be only as credible as the premises on which it was based. An early example of this approach comes from the Eng- lish case of Beckwith v. Sydebotham, 1 Camp. 116, 170 Eng. Rep. 897 (K. B. 17), where a party sought to prove the seaworthiness of a ship, the Earl of Wycombe, by calling as witnesses “several eminent surveyors of ships who had never seen the ‘Earl of Wycombe.’ ” The opposing party objected to the testimony because it relied 14 WILLIAMS v. ILLINOIS Opinion of ALITO, J. on facts that were not known to be true, but the judge disagreed. Because the experts were “peculiarly ac- quainted” with “a matter of skill or science,” the judge said, the “jury might be assisted” by their hypothetical opinion based on certain assumed facts. 170 Eng. Rep., at 897. The judge acknowledged the danger of the jury’s being unduly prejudiced by wrongly assuming the truth of the hypothetical facts, but the judge noted that the experts could be asked on cross-examination what their opinion of the ship’s seaworthiness would be if differ- ent hypothetical facts were assumed. If the party that had called the experts could not independently prove the truth of the premises they posited, then the experts’ “opinion might not go for much; but still it was admissible evi- dence.” There is a long tradition of the use of hypothetical ques- tions in American courts. In 1887, for example, this Court indicated its approval of the following jury instruction: “As to the questions, you must understand that they are not evidence; they are mere statements to these witnesses and, upon the hypothesis or assumption of these questions the witnesses are asked to give their [opinion]. You must readily see that the value of the answers to these questions depends largely, if not wholly, upon the fact whether the statements made in these questions are sustained by the proof. If the statements in these questions are not supported by the proof, then the answers to the questions are enti- tled to no weight, because based upon false assump- tions or statements of facts.” Forsyth v. Doolittle, 120 U.S. 73, 77 (internal quotation marks omitted). Modern rules of evidence continue to permit experts to express opinions based on facts about which they lack personal knowledge, but these rules dispense with the need for hypothetical questions. Under both the Illinois Cite as: 567 U. S. (2012) 15 Opinion of ALITO, J. and the Federal Rules of Evidence, an expert may base an opinion on facts that are “made known to the expert at or before the hearing,” but such reliance does not constitute admissible evidence of this underlying information. Ill. Rule Evid. 703; Fed. Rule Evid. 703. Accordingly, in jury trials, both Illinois and federal law generally bar an expert from disclosing such inadmissible evidence.2 In bench trials, however, both the Illinois and the Federal Rules place no restriction on the revelation of such information to the factfinder. When the judge sits as the trier of fact, it is presumed that the judge will understand the limited reason for the disclosure of the underlying inadmissible information and will not rely on that information for any improper purpose. As we have noted, “[i]n bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.” Harris v. Rivera, There is a “well-established presumption” that “the judge [has] ad- hered to basic rules of procedure,” when the judge is acting as a factfinder. at –347 (emphasis added). See also 1 U.S. 1030, (1991) (Rehnquist, C. J., dissenting). This feature of Illinois and federal law is important because while departing from prior Confronta- tion Clause precedent in other respects, took pains to reaffirm the proposition that the Confrontation Clause “does not bar the use of testimonial statements for purposes —————— 2 But disclosure of these facts or data to the jury is permitted if the value of disclosure “substantially outweighs [any] prejudicial effect,” Fed. Rule Evid. 703, or “the probative value outweighs the risk of unfair prejudice.” 604 N.E.2d 294, 333 When this disclosure occurs, “the underlying facts” are revealed to the jury “for the limited purpose of explaining the basis for [the expert’s] opinion” and not “for the truth of the matter asserted.” 604 N.E. 2d, 16 WILLIAMS v. ILLINOIS Opinion of ALITO, J. other than establishing the truth of the matter asserted.” 541 U. S., –60, n. 9 (citing ). In Street, the defendant claimed that the police had coerced him into adopting the confession of his alleged accomplice. The prosecution sought to rebut this claim by showing that the defendant’s confession differed significantly from the accomplice’s. Although the accom- plice’s confession was clearly a testimonial statement, the Court held that the jurors could hear it as long as they were instructed to consider that confession not for its truth, but only for the “distinctive and limited purpose” of comparing it to the defendant’s confession, to see whether the two were identical. III A In order to assess petitioner’s Confrontation Clause argument, it is helpful to inventory exactly what Lamba- tos said on the stand about Cellmark. She testified to the truth of the following matters: Cellmark was an accredited lab, App. 49; the ISP occasionally sent forensic samples to Cellmark for DNA testing, ibid.; according to shipping manifests admitted into evidence, the ISP lab sent vaginal swabs taken from the victim to Cellmark and later re- ceived those swabs back from Cellmark, at 52–55; and, finally, the Cellmark DNA profile matched a profile pro- duced by the ISP lab from a sample of petitioner’s blood, –56. Lambatos had personal knowledge of all of these matters, and therefore none of this testimony in- fringed petitioner’s confrontation right. Lambatos did not testify to the truth of any other matter concerning Cellmark. She made no other reference to the Cellmark report, which was not admitted into evidence and was not seen by the trier of fact. Nor did she testify to anything that was done at the Cellmark lab, and she did not vouch for the quality of Cellmark’s work. Cite as: 567 U. S. (2012) 17 Opinion of ALITO, J. B The principal argument advanced to show a Confronta- tion Clause violation concerns the phrase that Lambatos used when she referred to the DNA profile that the ISP lab received from Cellmark. This argument is developed most fully in the dissenting opinion, and therefore we refer to the dissent’s discussion of this issue. In the view of the dissent, the following is the critical portion of Lambatos’ testimony, with the particular words that the dissent finds objectionable italicized: “Q Was there a computer match generated of the male DNA profile found in semen from the vaginal swabs of [L.J.] to a male DNA profile that had been identified as hav- ing originated from Sandy Williams? “A Yes, there was.” Post, at 7 (opinion of KAGAN, J.) (quoting App. 56; emphasis added). According to the dissent, the italicized phrase violated petitioner’s confrontation right because Lambatos lacked personal knowledge that the profile produced by Cellmark was based on the vaginal swabs taken from the victim, L. J. As the dissent acknowledges, there would have been “nothing wrong with Lambatos’s testifying that two DNA profiles—the one shown in the Cellmark report and the one derived from Williams’s blood—matched each other; that was a straightforward application of Lambatos’s expertise.” Post, at 12. Thus, if Lambatos’ testimony had been slightly modified as follows, the dissent would see no problem: “Q Was there a computer match generated of the male DNA profile produced by 18 WILLIAMS v. ILLINOIS Opinion of ALITO, J. Cellmark found in semen from the vaginal swabs of [L.J.] to a male DNA profile that had been identified as having originated from Sandy Williams? “A Yes, there was.”3 The defect in this argument is that under Illinois law (like federal law) it is clear that the putatively offending phrase in Lambatos’ testimony was not admissible for the purpose of proving the truth of the matter asserted—i.e., that the matching DNA profile was “found in semen from the vaginal swabs.” Rather, that fact was a mere premise of the prosecutor’s question, and Lambatos simply as- sumed that premise to be true when she gave her answer indicating that there was a match between the two DNA profiles. There is no reason to think that the trier of fact took Lambatos’ answer as substantive evidence to estab- lish where the DNA profiles came from. The dissent’s argument would have force if petitioner had elected to have a jury trial. In that event, there would have been a danger of the jury’s taking Lambatos’ testi- mony as proof that the Cellmark profile was derived from the sample obtained from the victim’s vaginal swabs. Absent an evaluation of the risk of juror confusion and careful jury instructions, the testimony could not have —————— 3 The small difference between what Lambatos actually said on the stand and the slightly revised version that the dissent would find un- objectionable shows that, despite the dissent’s rhetoric, its narrow argument would have little practical effect in future cases. Prosecutors would be allowed to do exactly what the prosecution did in this case so long as their testifying experts’ testimony was slightly modified along the lines shown above. Following that course presumably would not constitute a “prosecutorial dodge,” “subterfuge,” “indirection,” the “neat trick” of “sneak[ing]” in evidence, or the countenancing of constitutional violations with “a wink and a nod.” See post, at 3, 16, 17, 12 (opinion of KAGAN, J.). Cite as: 567 U. S. (2012) 19 Opinion of ALITO, J. gone to the jury. This case, however, involves a bench trial and we must assume that the trial judge understood that the portion of Lambatos’ testimony to which the dissent objects was not admissible to prove the truth of the matter asserted.4 The dissent, on the other hand, reaches the truly remarkable conclusion that the wording of Lambatos’ testimony con- fused the trial judge. Were it not for that wording, the argument goes, the judge might have found that the pros- ecution failed to introduce sufficient admissible evidence to show that the Cellmark profile was derived from the sample taken from the victim, and the judge might have disregarded the DNA evidence. This argument reflects a profound lack of respect for the acumen of the trial judge.5 To begin, the dissent’s argument finds no support in the trial record. After defense counsel objected to Lambatos’ testimony, the prosecutor made clear that she was asking Lambatos only about “her own testing based on [DNA] information” that she had received from Cellmark. App. 56. Recognizing that Lambatos’ testimony would carry weight only if the underlying premises could be estab- lished, the judge noted that “the issue is what weight do you give the test [performed by Lambatos], not do you exclude it.” This echoes the old statement in Beckwith that an expert’s opinion based on disputed prem- ises “might not go for much; but still it [is] admissible evidence.” 1 Camp., 170 Eng. Rep., at 897. Both —————— 4 We do not suggest that the Confrontation Clause applies differently depending on the identity of the factfinder. Cf. post, at 14–15 (opinion of KAGAN, J.). Instead, our point is that the identity of the factfinder makes a big difference in evaluating the likelihood that the factfinder mistakenly based its decision on inadmissible evidence. 5 See post, at 14 (opinion of KAGAN, J.) (“I do not doubt that a judge typically will do better than a jury in excluding such inadmissible evidence from his decisionmaking process. Perhaps the judge did so here” (emphasis added)). 20 WILLIAMS v. ILLINOIS Opinion of ALITO, J. the Illinois Appellate Court and the Illinois Supreme Court viewed the record in this way, and we see no ground for disagreement.6 Second, it is extraordinarily unlikely that any trial judge would be confused in the way that the dissent posits. That Lambatos was not competent to testify to the chain of custody of the sample taken from the victim was a point that any trial judge or attorney would immediately under- stand. Lambatos, after all, had absolutely nothing to do with the collection of the sample from the victim, its sub- sequent handling or preservation by the police in Illinois, or its shipment to and receipt by Cellmark. No trial judge would take Lambatos’ testimony as furnishing “the miss- ing link” in the State’s evidence regarding the identity of the sample that Cellmark tested. See post, at 6 (opinion of KAGAN, J.). Third, the admissible evidence left little room for argu- ment that the sample tested by Cellmark came from any source other than the victim’s vaginal swabs.7 This is so —————— 6 The dissent finds evidence of the trial judge’s confusion in his statement that petitioner is “ ‘the guy whose DNA, according to the evidence from the experts, is in the semen recovered from the victim’s vagina.’ ” Post, at 14 (emphasis added). The dissent interprets the phrase “according to the evidence from the experts” as a reference to what one expert, Lambatos, said about the origin of the sample that Cellmark tested. In context, however, the judge’s statement is best understood as attributing to Lambatos nothing more than the conclu- sion that there was a match between the two DNA profiles that were compared. The foundational facts, that one of the profiles came from the defendant and that the other came from “ ‘the semen recovered from the victim’s vagina,’ ” were established not by expert testimony but by ordinary chain-of-custody evidence. 7 Our point is not that admissible evidence regarding the identity of the sample that Cellmark tested excuses the admission of testimonial hearsay on this matter. Compare post, at 5–6 (THOMAS, J., concurring in judgment), with post, at 14 (KAGAN, J., dissenting). Rather, our point is that, because there was substantial (albeit circumstantial) evidence on this matter, there is no reason to infer that the trier of fact must Cite as: 567 U. S. (2012) 21 Opinion of ALITO, J. because there is simply no plausible explanation for how Cellmark could have produced a DNA profile that matched Williams’ if Cellmark had tested any sample other than the one taken from the victim. If any other items that might have contained Williams’ DNA had been sent to Cellmark or were otherwise in Cellmark’s possession, there would have been a chance of a mix-up or of cross- contamination. See District Attorney’s Office for Third Judicial (ALITO, J., concurring). But there is absolutely nothing to suggest that Cellmark had any such items. Thus, the fact that the Cellmark profile matched Williams—the very man whom the victim identified in a lineup and at trial as her at- tacker—was itself striking confirmation that the sample that Cellmark tested was the sample taken from the victim’s vaginal swabs. For these reasons, it is fanciful to suggest that the trial judge took Lambatos’ testimony as providing critical chain-of-custody evidence. C Other than the phrase that Lambatos used in referring to the Cellmark profile, no specific passage in the trial record has been identified as violating the Confrontation Clause, but it is nevertheless suggested that the State somehow introduced “the substance of Cellmark’s report into evidence.” Post, at 8 (KAGAN, J., dissenting). The main impetus for this argument appears to be the (errone- ous) view that unless the substance of the report was sneaked in, there would be insufficient evidence in the record on two critical points: first, that the Cellmark profile was based on the semen in the victim’s vaginal swabs and, second, that Cellmark’s procedures were reli- able. This argument is both legally irrelevant for present purposes and factually incorrect. —————— have taken Lambatos’ statement as providing “the missing link.” 22 WILLIAMS v. ILLINOIS Opinion of ALITO, J. As to legal relevance, the question before us is whether petitioner’s Sixth Amendment confrontation right was violated, not whether the State offered sufficient founda- tional evidence to support the admission of Lambatos’ opinion about the DNA match. In order to prove these underlying facts, the prosecution relied on circumstantial evidence, and the Illinois courts found that this evidence was sufficient to satisfy state-law requirements regarding proof of foundational facts. See 385 Ill. App. 3d, at 3– –; 939 N.E. 2d, at 275. We cannot review that interpretation and application of Illinois law. Thus, even if the record did not contain any evidence that could rationally support a find- ing that Cellmark produced a scientifically reliable DNA profile based on L. J.’s vaginal swab, that would not estab- lish a Confrontation Clause violation. If there were no proof that Cellmark produced an accurate profile based on that sample, Lambatos’ testimony regarding the match would be irrelevant, but the Confrontation Clause, as interpreted in does not bar the admission of irrelevant evidence, only testimonial statements by de- clarants who are not subject to cross-examination.8 It is not correct, however, that the trial record lacks admissible evidence with respect to the source of the sam- ple that Cellmark tested or the reliability of the Cell- mark profile. As to the source of the sample, the State offered conventional chain-of-custody evidence, namely, the testimony of the physician who obtained the vaginal swabs, the testimony of the police employees who handled and kept custody of that evidence until it was sent to —————— 8 Applying the Due Process Clause, we have held that a federal court may determine whether a rational trier of fact could have found the existence of all the elements needed for conviction for a state offense. but petitioner has not raised a due process claim. And in any event, L. J.’s identification of petitioner as her assailant would be sufficient to defeat any such claim. Cite as: 567 U. S. (2012) 23 Opinion of ALITO, J. Cellmark, and the shipping manifests, which provided evidence that the swabs were sent to Cellmark and then returned to the ISP lab. In addition, as already discussed, the match between the Cellmark profile and petitioner’s profile was itself telling confirmation that the Cellmark profile was deduced from the semen on the vaginal swabs. This match also provided strong circumstantial evidence regarding the reliability of Cellmark’s work. Assuming (for the reasons discussed above) that the Cellmark profile was based on the semen on the vaginal swabs, how could shoddy or dishonest work in the Cellmark lab9 have re- sulted in the production of a DNA profile that just so happened to match petitioner’s? If the semen found on the vaginal swabs was not petitioner’s and thus had an en- tirely different DNA profile, how could sloppy work in the Cellmark lab have transformed that entirely different profile into one that matched petitioner’s? And without access to any other sample of petitioner’s DNA (and recall that petitioner was not even under suspicion at this time), how could a dishonest lab technician have substituted pe- titioner’s DNA profile? Under the circumstances of this case, it was surely permissible for the trier of fact to infer that the odds of any of this were exceedingly low. This analysis reveals that much of the dissent’s argu- ment rests on a very clear error. The dissent argues that Lambatos’ testimony could be “true” only if the predicate facts asserted in the Cellmark report were true, and there- fore Lambatos’ reference to the report must have been used for the purpose of proving the truth of those facts. See post, at 10–11. But the truth of Lambatos’ testimony, properly understood, was not dependent on the truth of any predicate facts. Lambatos testified that two DNA profiles matched. The correctness of this expert opinion, which the defense was able to test on cross-examination, —————— 9 See post, at 18 (KAGAN, J., dissenting). 24 WILLIAMS v. ILLINOIS Opinion of ALITO, J. was not in any way dependent on the origin of the samples from which the profiles were derived. Of course, Lamba- tos’ opinion would have lacked probative value if the pros- ecution had not introduced other evidence to establish the provenance of the profiles, but that has nothing to do with the truth of her testimony. The dissent is similarly mistaken in its contention that the Cellmark report “was offered for its truth because that is all such ‘basis evidence’ can be offered for.” Post, at 13; see also post, at 3 (THOMAS, J., concurring in judgment) (“[S]tatements introduced to explain the basis of an expert’s opinion are not introduced for a plausible nonhearsay purpose”). This view is directly contrary to the current version of Rule 703 of the Federal Rules of Evidence, which this Court approved and sent to Congress in 2000. Under that Rule, “basis evidence” that is not admissible for its truth may be disclosed even in a jury trial under appropriate circumstances. The purpose for allowing this disclosure is that it may “assis[t] the jury to evaluate the expert’s opinion.” Advisory Committee’s 2000 Notes on Fed. Rule Evid. 703, 28 U.S. C. App., p. 361. The Rule 703 approach, which was controversial when adopted,10 is based on the idea that the disclosure of basis evidence can help the factfinder understand the expert’s thought pro- cess and determine what weight to give to the expert’s opinion. For example, if the factfinder were to suspect that the expert relied on factual premises with no support in the record, or that the expert drew an unwarranted inference from the premises on which the expert relied, then the probativeness or credibility of the expert’s opin- ion would be seriously undermined. The purpose of dis- closing the facts on which the expert relied is to allay these fears—to show that the expert’s reasoning was not illogical, and that the weight of the expert’s opinion does —————— 10 See Advisory Committee’s 2000 Notes on Rule 703, at 361. Cite as: 567 U. S. (2012) 25 Opinion of ALITO, J. not depend on factual premises unsupported by other evidence in the record—not to prove the truth of the un- derlying facts. Perhaps because it cannot seriously dispute the legit- imate nonhearsay purpose of illuminating the expert’s thought process, the dissent resorts to the last-ditch ar- gument that, after all, it really does not matter whether Lambatos’ statement regarding the source of the Cellmark report was admitted for its truth. The dissent concedes that “the trial judge might have ignored Lambatos’s statement about the Cellmark report,” but nonetheless maintains that “the admission of that statement violated the Confrontation Clause even if the judge ultimately put it aside.” Post, at 15, n. 2. But in a bench trial, it is not necessary for the judge to stop and make a formal state- ment on the record regarding the limited reason for which the testimony is admitted. If the judge does not consider the testimony for its truth, the effect is precisely the same. Thus, if the trial judge in this case did not rely on the statement in question for its truth, there is simply no way around the proviso in that the Confrontation Clause applies only to out-of-court statements that are “use[d]” to “establis[h] the truth of the matter asserted.” 541 U. S., –60, n. 9 (citing Street, ). For all these reasons, we conclude that petitioner’s Sixth Amendment confrontation right was not violated. D This conclusion is entirely consistent with and In those cases, the forensic reports were introduced into evidence, and there is no question that this was done for the purpose of proving the truth of what they asserted: in that the defendant’s blood alcohol level exceeded the legal limit and in Melendez- Diaz that the substance in question contained cocaine. Nothing comparable happened here. In this case, the 26 WILLIAMS v. ILLINOIS Opinion of ALITO, J. Cellmark report was not introduced into evidence. An expert witness referred to the report not to prove the truth of the matter asserted in the report, i.e., that the report contained an accurate profile of the perpetrator’s DNA, but only to establish that the report contained a DNA profile that matched the DNA profile deduced from peti- tioner’s blood. Thus, just as in Street, the report was not to be considered for its truth but only for the “distinctive and limited purpose” of seeing whether it matched something 471 U. S., The relevance of the match was then established by independent circumstantial evidence showing that the Cellmark report was based on a forensic sample taken from the scene of the crime. Our conclusion will not open the door for the kind of abuses suggested by some of petitioner’s amici and the dissent. See post, at 10–11; Brief for Richard D. Friedman as Amicus Curiae 20–21. In the hypothetical situations posited, an expert expresses an opinion based on factual premises not supported by any admissible evidence, and may also reveal the out-of-court statements on which the expert relied.11 There are at least four safeguards to —————— 11 Both JUSTICE THOMAS and JUSTICE KAGAN quote statements in D. Kaye, D. Bernstein, & J. The New Wigmore: Expert Evidence pp. 196–197 (2d ed. 2011) (hereinafter New Wigmore), that are critical of the theory that an expert, without violating the Confronta- tion Clause, may express an opinion that is based on testimonial hearsay and may, in some circumstances, disclose that testimonial hearsay to the trier of fact. The principal basis for this criticism seems to be the fear that juries, even if given limiting instructions, will view the disclosed hearsay as evidence of the truth of the matter asserted. See (referring reader to the more detailed discussion in Expert Evidence and the Confrontation Clause After Craw- ford v. Washington, 15 Johns. L. & Pol’y 791 (2007)); New Wigmore 197, and n. 39 (citing jury cases); at 2–4, 811–813. This argument plainly has no application in a case like this one, in which a judge sits as the trier of fact. In the 2012 Supplement of The New Wigmore, the authors discuss the present case and criticize the reasoning of the Illinois courts as follows: Cite as: 567 U. S. (2012) 27 Opinion of ALITO, J. prevent such abuses. First, trial courts can screen out experts who would act as mere conduits for hearsay by strictly enforcing the requirement that experts display some genuine “scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. Rule Evid. 702(a). Second, experts are generally precluded from disclosing inadmissible evidence to a jury. See Fed. Rule Evid. 703; 175–, Third, if such evidence is disclosed, the trial judges may and, under most circum- stances, must, instruct the jury that out-of-court state- ments cannot be accepted for their truth, and that an expert’s opinion is only as good as the independent evi- dence that establishes its underlying premises. See Fed. Rules Evid. 105, 703; 527– 528, And fourth, if the prosecution cannot muster any independent admissible evidence to prove the foundational facts that are essential to the relevance of the expert’s testimony, then the ex- pert’s testimony cannot be given any weight by the trier of fact.12 —————— “The problem with [the not-for-the-truth-of-the-matter argument accepted by the Illinois courts] is that Lambatos had to rely on the truth of the statements in the Cellmark report to reach her own con- clusion. The claim that evidence that the jury must credit in order to credit the conclusion of the expert is introduced for something other than its truth is sheer fiction.” New Wigmore at 24 (2012 Supp.) (emphasis added). This discussion is flawed. It overlooks the fact that there was no jury in this case, and as we have explained, the trier of fact did not have to rely on any testimonial hearsay in order to find that Lambatos’ testi- mony about the DNA match was supported by adequate foundational evidence and was thus probative. 12 Our discussion of the first ground for our decision cannot conclude without commenting on the Kocak case, which dramatically appears at the beginning of the dissent. In that case, a Cellmark lab analyst 28 WILLIAMS v. ILLINOIS Opinion of ALITO, J. IV A Even if the Cellmark report had been introduced for its truth, we would nevertheless conclude that there was no Confrontation Clause violation. The Confrontation Clause refers to testimony by “witnesses against” an accused. Both the noted evidence scholar James Henry Wigmore and Justice Harlan interpreted the Clause in a strictly literal sense as referring solely to persons who testify in court, but we have not adopted this narrow view. It has been said that “[t]he difficulty with the Wigmore-Harlan view in its purest form is its tension with much of the apparent history surrounding the evolution of the right of confrontation at common law.” White v. Illinois, 2 U.S. 360 (THOMAS, J., concurring). “[T]he principal evil at which the Confrontation Clause was directed,” the Court concluded in “was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” 541 U. S., at “[I]n England, pretrial examinations of suspects —————— realized while testifying at a pretrial hearing that there was an error in the lab’s report and that the DNA profile attributed to the accused was actually that of the victim. The lesson of this cautionary tale is nothing more than the truism that it is possible for an apparently incriminating DNA profile to be mistakenly attributed to an accused. But requiring that the lab analyst or analysts who produced the DNA profile be called as prosecution witnesses is neither sufficient nor necessary to prevent such errors. Since samples may be mixed up or contaminated at many points along the way from a crime scene to the lab, calling one or more lab analysts will not necessarily catch all such mistakes. For example, a mistake might be made by a clerical employee responsible for receiv- ing shipments of samples and then providing them to the lab’s techni- cians. What is needed is for the trier of fact to make sure that the evidence, whether direct or circumstantial, rules out the possibility of such mistakes at every step along the way. And in the usual course of authentication, defense counsel will have access to sufficient infor- mation to inquire into, question, or challenge the procedures used by a laboratory if this seems to be a prudent and productive strategy. Cite as: 567 U. S. (2012) 29 Opinion of ALITO, J. and witnesses by government officials ‘were sometimes read in court in lieu of live testimony.’ ” 562 U. S., at (slip op., at 6) (quoting ). The Court has thus interpreted the Confrontation Clause as prohibiting modern-day practices that are tantamount to the abuses that gave rise to the recognition of the confron- tation right. But any further expansion would strain the constitutional text. The abuses that the Court has identified as prompting the adoption of the Confrontation Clause shared the fol- lowing two characteristics: (a) they involved out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct and (b) they involved formalized statements such as affidavits, depositions, prior testimony, or confessions. In all but one of the post- cases13 in which a Confrontation Clause violation has been found, both of these characteris- tics were present. See (slip op., at 3–4) (certified lab report having purpose of showing that defendant’s blood-alcohol level exceeded legal limit); (certified lab report having purpose of showing that substance connected to defendant contained cocaine); (custodial statement made after Miranda warnings that shifted blame from declarant to accused).14 The one excep- tion occurred in 829– 832 which was decided together with v. Washington, but in Hammon and every other post- case in which the Court has found a violation of —————— 13 Experience might yet show that the holdings in those cases should be reconsidered for the reasons, among others, expressed in the dis- sents the decisions produced. Those decisions are not challenged in this case and are to be deemed binding precedents, but they can and should be distinguished on the facts here. 14 With respect to see (THOMAS, J., concurring in judgment in part and dissenting in part). 30 WILLIAMS v. ILLINOIS Opinion of ALITO, J. the confrontation right, the statement at issue had the primary purpose of accusing a targeted individual. B In Hammon, the one case in which an informal state- ment was held to violate the Confrontation Clause, we considered statements elicited in the course of police in- terrogation. We held that a statement does not fall within the ambit of the Clause when it is made “under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” In another police-interrogation case, we explained that a person who makes a statement to resolve an ongo- ing emergency is not acting like a trial witness because the declarant’s purpose is not to provide a solemn declara- tion for use at trial, but to bring an end to an ongoing threat. See 562 U. S., at (slip op., at 11, 14). We noted that “the prospect of fabrication is presumably significantly diminished” when a statement is made under such circumstances, at (slip op., at 14) and that reliability is a salient characteristic of a statement that falls outside the reach of the Confrontation Clause, at – (slip op., at 14–15). We emphasized that if a statement is not made for “the primary purpose of creating an out-of-court substitute for trial testimony,” its admissi- bility “is the concern of state and federal rules of evidence, not the Confrontation Clause.” at – (slip op., at 11–12). In and the Court held that the particular forensic reports at issue qualified as testi- monial statements, but the Court did not hold that all forensic reports fall into the same category. Introduction of the reports in those cases ran afoul of the Confrontation Clause because they were the equivalent of affidavits made for the purpose of proving the guilt of a particular Cite as: 567 U. S. (2012) 31 Opinion of ALITO, J. criminal defendant at trial. There was nothing resembling an ongoing emergency, as the suspects in both cases had already been captured, and the tests in question were relatively simple and can generally be performed by a single analyst. In addition, the technicians who prepared the reports must have realized that their contents (which reported an elevated blood-alcohol level and the presence of an illegal drug) would be incriminating. C The Cellmark report is very different. It plainly was not prepared for the primary purpose of accusing a targeted individual. In identifying the primary purpose of an out- of-court statement, we apply an objective test. 562 U. S., at (slip op., at 13). We look for the primary purpose that a reasonable person would have ascribed to the statement, taking into account all of the surrounding circumstances. Here, the primary purpose of the Cellmark report, viewed objectively, was not to accuse petitioner or to cre- ate evidence for use at trial. When the ISP lab sent the sample to Cellmark, its primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against petitioner, who was neither in custody nor under suspicion at that time. Similarly, no one at Cellmark could have possibly known that the profile that it produced would turn out to inculpate petitioner—or for that matter, anyone else whose DNA profile was in a law enforcement database. Under these circumstances, there was no “prospect of fabrication” and no incentive to produce anything other than a scientifi- cally sound and reliable profile. at (slip op., at 14). The situation in which the Cellmark technicians found themselves was by no means unique. When lab techni- cians are asked to work on the production of a DNA pro- file, they often have no idea what the consequences of 32 WILLIAMS v. ILLINOIS Opinion of ALITO, J. their work will be. In some cases, a DNA profile may provide powerful incriminating evidence against a person who is identified either before or after the profile is com- pleted. But in others, the primary effect of the profile is to exonerate a suspect who has been charged or is under investigation. The technicians who prepare a DNA profile generally have no way of knowing whether it will turn out to be incriminating or exonerating—or both. It is also significant that in many labs, numerous tech- nicians work on each DNA profile. See Brief for New York County District Attorney’s Office et al. as Amici Curiae 6 (New York lab uses at least 12 technicians for each case); 906 N.E.2d 70, 79 (“[A]pproximately 10 Cellmark analysts were involved in the laboratory work in this case”). When the work of a lab is divided up in such a way, it is likely that the sole purpose of each technician is simply to perform his or her task in accordance with accepted procedures. Finally, the knowledge that defects in a DNA profile may often be detected from the profile itself provides a further safeguard. In this case, for example, Lambatos testified that she would have been able to tell from the profile if the sample used by Cellmark had been degraded prior to testing. As noted above, moreover, there is no real chance that “sample contamination, sample switching, mislabeling, [or] fraud” could have led Cellmark to pro- duce a DNA profile that falsely matched petitioner. Post, at 21 (KAGAN, J., dissenting). At the time of the testing, petitioner had not yet been identified as a suspect, and there is no suggestion that anyone at Cellmark had a sample of his DNA to swap in by malice or mistake. And given the complexity of the DNA molecule, it is inconceiv- able that shoddy lab work would somehow produce a DNA profile that just so happened to have the precise genetic makeup of petitioner, who just so happened to be picked out of a lineup by the victim. The prospect is beyond Cite as: 567 U. S. (2012) 33 Opinion of ALITO, J. fanciful. In short, the use at trial of a DNA report prepared by a modern, accredited laboratory “bears little if any resem- blance to the historical practices that the Confrontation Clause aimed to eliminate.” at (slip op., at 2) (THOMAS, J., concurring). * * * For the two independent reasons explained above, we conclude that there was no Confrontation Clause violation in this case. Accordingly, the judgment of the Supreme Court of Illinois is Affirmed. Cite as: 567 U. S. (2012) 1 BREYER, J., concurring SUPREME COURT OF THE UNITED STATES No. 10–85 SANDY WILLIAMS, PETITIONER v.
Justice Douglas	dissenting	false	Flood v. Kuhn	1972-06-19T00:00:00	null	https://www.courtlistener.com/opinion/108580/flood-v-kuhn/	https://www.courtlistener.com/api/rest/v3/clusters/108580/	1,972	1971-146	1	5	3	This Court's decision in Federal Baseball Club v. National League, 259 U.S. 200, made in 1922, is a derelict in the stream of the law that we, its creator, should remove. Only a romantic view[1] of a rather dismal business account over the last 50 years would keep that derelict in midstream. In 1922 the Court had a narrow, parochial view of commerce. With the demise of the old landmarks of that era, particularly United States v. Knight Co., 156 U.S. 1, Hammer v. Dagenhart, 247 U.S. 251, and Paul v. Virginia, 8 Wall. 168, the whole concept of commerce has changed. Under the modern decisions such as Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219; United States v. Darby, 312 U.S. 100; Wickard v. Filburn, 317 U.S. 111; United States v. South-Eastern Underwriters Assn., 322 U.S. 533, the power of Congress was recognized as broad enough to reach all phases of the vast operations of our national industrial system. 287 An industry so dependent on radio and television as is baseball and gleaning vast interstate revenues (see H. R. Rep. No. 2002, 82d Cong., 2d Sess., 4, 5 (1952)) would be hard put today to say with the Court in the Federal Baseball Club case that baseball was only a local exhibition, not trade or commerce. Baseball is today big business that is packaged with beer, with broadcasting, and with other industries. The beneficiaries of the Federal Baseball Club decision are not the Babe Ruths, Ty Cobbs, and Lou Gehrigs. The owners, whose records many say reveal a proclivity for predatory practices, do not come to us with equities. The equities are with the victims of the reserve clause. I use the word "victims" in the Sherman Act sense, since a contract which forbids anyone to practice his calling is commonly called an unreasonable restraint of trade.[2]Gardella v. Chandler, 172 F.2d 402 (CA2). And see Haywood v. National Basketball Assn., 401 U.S. 1204 (DOUGLAS, J., in chambers). If congressional inaction is our guide, we should rely upon the fact that Congress has refused to enact bills broadly exempting professional sports from antitrust regulation.[3] H. R. Rep. No. 2002, 82d Cong., 2d Sess. 288 (1952). The only statutory exemption granted by Congress to professional sports concerns broadcasting rights. 15 U.S. C. §§ 1291-1295. I would not ascribe a broader exemption through inaction than Congress has seen fit to grant explicitly. There can be no doubt "that were we considering the question of baseball for the first time upon a clean slate"[4] we would hold it to be subject to federal antitrust regulation. Radovich v. National Football League, 352 U.S. 445, 452. The unbroken silence of Congress should not prevent us from correcting our own mistakes. MR. JUSTICE MARSHALL, with whom MR.	This Court's decision in Federal Baseball made in 1922, is a derelict in the stream of the law that we, its creator, should remove. Only a romantic view[1] of a rather dismal business account over the last 50 years would keep that derelict in midstream. In 1922 the Court had a narrow, parochial view of commerce. With the demise of the old landmarks of that era, particularly United and the whole concept of commerce has changed. Under the modern decisions such as Mandeville Island ; United ; ; United the power of Congress was recognized as broad enough to reach all phases of the vast operations of our national industrial system. 287 An industry so dependent on radio and television as is baseball and gleaning vast interstate revenues (see H. R. Rep. No. 2002, 82d Cong., 2d Sess., 4, 5 (1952)) would be hard put today to say with the Court in the Federal Baseball Club case that baseball was only a local exhibition, not trade or commerce. Baseball is today big business that is packaged with beer, with broadcasting, and with other industries. The beneficiaries of the Federal Baseball Club decision are not the Babe Ruths, Ty Cobbs, and Lou Gehrigs. The owners, whose records many say reveal a proclivity for predatory practices, do not come to us with equities. The equities are with the victims of the reserve clause. I use the word "victims" in the Sherman Act sense, since a contract which forbids anyone to practice his calling is commonly called an unreasonable restraint of (CA2). And see (DOUGLAS, J., in chambers). If congressional inaction is our guide, we should rely upon the fact that Congress has refused to enact bills broadly exempting professional sports from antitrust regulation.[3] H. R. Rep. No. 2002, 82d Cong., 2d Sess. 288 (1952). The only statutory exemption granted by Congress to professional sports concerns broadcasting rights. 15 U.S. C. 1291-1295. I would not ascribe a broader exemption through inaction than Congress has seen fit to grant explicitly. There can be no doubt "that were we considering the question of baseball for the first time upon a clean slate"[4] we would hold it to be subject to federal antitrust regulation. The unbroken silence of Congress should not prevent us from correcting our own mistakes. MR. JUSTICE MARSHALL, with whom MR.
Justice White	dissenting	false	Goodyear Atomic Corp. v. Miller	1988-05-23T00:00:00	null	https://www.courtlistener.com/opinion/112075/goodyear-atomic-corp-v-miller/	https://www.courtlistener.com/api/rest/v3/clusters/112075/	1,988	1987-087	2	6	2	The Court's seminal decision in McCulloch v. Maryland, 4 Wheat. 316 (1819), establishes the principle that the 187 States may not exercise their sovereign powers so as to control those instrumentalities of the United States which have been judged necessary and proper to carry into effect federal laws and policies. Although the narrow issue in that case involved only the assertion by the State of Maryland of its power to tax a federal bank, the Court laid down a more general construction of the Supremacy Clause that has proved to be enduring in its force of reason. As the Court stated: "The attempt to use [state sovereign power] on the means employed by the government of the Union, in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power which the people of a single State cannot give." Id., at 430. The contrary principle would be "capable of arresting all the measures of the government, and of prostrating it at the foot of the States. The American people have declared their constitution, and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the States." Id., at 432. "The result," the Court concluded, "is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government." Id., at 436 (emphasis added). Although, again, the narrow issue in McCulloch concerned only the power to tax, which as the Court noted "involves the power to destroy," id., at 431, the passages quoted above demonstrate that the decision was formulated, explicitly, with sufficient breadth to apply to other measures a State might impose that would "retard, impede, burden, or in any manner control" the operations of federal instrumentalities. Id., at 436. And, clearly, the power to regulate also involves "the power to destroy" if the regulatory web is spun too tightly around its object. More commonly, however, the additional and perhaps conflicting regulations imposed by a 188 State would simply burden the federal instrumentality, interfere with its operations, and frustrate the federal objectives it is designed to achieve. Nonetheless, the law has long been settled that such regulation cannot be imposed on federal instrumentalities by the States, under the Supremacy Clause, unless the Federal Government directly indicates that it finds such impositions to be consistent with the proper pursuit of its powers under federal law. Hancock v. Train, 426 U.S. 167, 178-179 (1976); Mayo v. United States, 319 U.S. 441, 447-448 (1943). In this case the State of Ohio seeks to require a federal nuclear facility, which all concede to be the equivalent of any other federal instrumentality,[1] to make a "bonus" money payment to workers who are injured when the injury results from the facility's failure to comply with "any specific [state] requirement for the protection of the lives, health or safety of employees." Ohio Const., Art. II, § 35. Although the Court declines to decide whether this provision of state law is tantamount to a regulation of the facility or to some similarly impermissible imposition upon it, ante, at 182, I believe that no other view is tenable on the facts before us. Initially, the proper focus under the Supremacy Clause is not the avowed purpose for which the State adopts a given provision but the actual effect of the provision on the operation of a federal instrumentality and on its ability to achieve the objectives of federal law and policy for which it has been created. Perez v. Campbell, 402 U.S. 637, 651-652 (1971). The Court has held that even the general framework of state workers' compensation laws may not be applied at places that lie within the exclusive jurisdiction of the Federal Government. Murray v. Gerrick & Co., 291 U.S. 315 (1934). And 189 yet the provision of Ohio law at issue in this case is much more specific in its application, and in its regulatory effect upon this federal facility, than is the general framework of such laws. The basic feature of the state statutory regimes for the compensation of workers is that the common law governing the relationship between employer and employee, whose doctrines had become so disadvantageous to employees, is replaced by an automatic entitlement of the employee to certain benefits when injured in the course of employment. See 1 A. Larson, Law of Workmen's Compensation §§ 1.10-3.40 (1985). Unlike this basic scheme, however, which does not pressure the federal facility to alter its operations in any specific respect to comply with particular state regulations, the Ohio law exposes the facility to a special penalty if it does not comply with "any specific [state] requirement for the protection of the lives, health or safety of employees." Ohio Const., Art. II, § 35. The specificity of these requirements is much more intrusive on the management of the federal facility than even a state workers' compensation law that would preserve the employee's right to sue the employer for willful misconduct or for intentional injury, as do the laws of several States. In terms of the regulatory impact on the federal instrumentality, it is one thing for the facility to know that it should manage its operations so as to minimize the risk of injuries to its employees; it is quite another to expose it to money penalties for failing to comply with the whole panoply of specific state regulations that dictate precise rules to govern very detailed aspects of employee health and safety. It is quite obvious that an attempt by the State of Ohio to impose these same kinds of specific regulations on the federal facility, directly, by obliging the facility to satisfy them all or else to suspend operations, would run afoul of the Supremacy Clause. The rule at issue here has a similar effect. Appellees claim that the federal facility violated a provision in the code of safety requirements, which the State of Ohio has 190 adopted by administrative rule. The provision sets out specific restrictions on mobile work platforms and rolling platforms, and says that "[e]xposed surfaces shall be free from sharp edges, burrs or other projecting parts." Ohio Admin. Code § 4121:1-5-03(D)(2) (1987). There are thousands of such requirements in the administrative rules adopted by the Ohio Industrial Commission's Division of Safety and Hygiene, which in their current version run to well over 200 double-columned pages of meticulous prescriptions, illustrated in minute detail with diagrams, graphs, and charts, see Ohio Admin. Code, ch. 4121:1 (1987), and there are countless other specific requirements in the State's other laws and regulations. It will not do to say that the State of Ohio has not attempted to regulate this facility directly, but simply has exposed it to possible money payments for failure to comply with these specific requirements, since such requirements are often enforced by fines rather than by enjoining specific conduct, and in any event the apparent means of enforcing all of these rules is through the workers' compensation awards permitted under state law. Nor does it make sense to say that the State of Ohio is not fining the facility, but is only penalizing it in the form of additional compensation to injured workers. It cannot matter that the extra payment is made only in the event of an actual injury; one might just as well argue that a regulatory fine would not be a burden if it were imposed not every day but only on the less frequent occasions when inspections are held. Even more to the point, if the amount of the money penalty were very large, the direct compulsion that would be brought to bear upon the federal facility to knuckle under and scrutinize its operations for compliance with every jot and title of the state administrative rules is apparent. The case is no different because the amount of the extra "bonus" award in any given instance may be small. In Ohio v. Thomas, 173 U.S. 276 (1899), the contested provision involved nothing 191 more than whether the person in charge of an eating house at a federal home for disabled veterans was required under state law to put out a small printed sign that would read "oleomargarine sold and used here" when he served oleomargarine to the inmates. The state law was found to be invalid as applied to the federal facility, under the Supremacy Clause, without regard to the plain fact that the contested imposition was such a slight one, for the principle remains the same in such a case.[2] The mechanics of the Ohio provision, as interpreted by the Ohio courts, reinforce both the obvious regulatory effect of this state law and the important differences between such a provision and a basic workers' compensation scheme. First, unlike workers' compensation, which provides an award to every employee who is injured on the job regardless of how the injury occurred, the additional payment here is only available when the facility fails to comply with a state regulatory "requirement." Even the regulatory provisions embodied in federal laws and rules have been held not to activate the extra money penalty afforded by state law. See, e. g., State ex rel. Ish v. Industrial Comm'n, 19 Ohio St. 3d 28, 482 N.E.2d 941 (1985); State ex rel. Roberts v. Industrial Comm'n, 10 Ohio St. 3d 1, 460 N.E.2d 251 (1984). Second, the necessity that the state requirement be "specific" in its dictates has been strictly construed. It "does not comprehend a general course of conduct or general duties or obligations flowing from the relation of employer and employee, but embraces such lawful, specific and definite requirements or standards of conduct as are prescribed by statute or by orders of the Industrial Commission." State ex rel. Trydle v. Industrial Comm'n, 32 Ohio St. 2d 257, 291 N.E.2d 748, 192 750 (1972). The question whether a particular safety requirement is sufficiently "specific" to support an extra money penalty has often been litigated in the Ohio courts, and such awards are invalidated unless the claimant is able to demonstrate that the specific requirement "demands that some particular and definite act or thing be done." State ex rel. Holdosh v. Industrial Comm'n, 149 Ohio St. 179, 181-182, 78 N.E.2d 165, 166 (1948). See also State ex rel. Rae v. Industrial Comm'n, 136 Ohio St. 168, 24 N.E.2d 594 (1939); Trydle, supra; State ex rel. Jack Conie & Sons Corp. v. Industrial Comm'n, 56 Ohio St. 2d 150, 382 N.E.2d 1366 (1978). In order to secure the penalty award, the employee must show that the regulatory requirement is "definite" in the sense that it leaves no discretion to the employer does not make it at all "a matter of his own choosing" how to comply with the specific requirement. State ex rel. Fast & Co. v. Industrial Comm'n, 176 Ohio St. 199, 201, 198 N.E.2d 666, 667 (1964). Since this provision of Ohio law exacts a monetary penalty only for failure to comply with state laws and regulations, and indeed only for failure to comply with those state regulations which are so specific that they dictate precisely what steps the employer must take to avoid this increased financial exposure, the principal effect of this provision can only be to induce the employer to adhere to each of the various health and safety regulations that the State has adopted. And therefore the impact of such a provision on a federal instrumentality presents a very different problem, for purposes of analysis under the Supremacy Clause, from that posed by the mere application of a state workers' compensation scheme. The Court today skirts these difficulties and rests its disposition on the view that, no matter how extensive the actual regulatory effect of this state law may be, Congress has sanctioned its application to federal instrumentalities by enacting 40 U.S. C. § 290. The Court finds in this statute the "unambiguous" 193 and "clear congressional mandate" approving such state regulation that we have required in past cases. Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 122 (1954); EPA v. State Water Resources Control Board, 426 U.S. 200, 211 (1976). I disagree. Section 290 authorizes each State to apply its "workmen's compensation laws" to all "property belonging to the United States of America, which is within the exterior boundaries of any State, in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State." The crux of the matter is whether Congress intended by this provision to open up all federal instrumentalities to the kind of potentially onerous regulation of their operations that is imposed by the Ohio provision for money penalties. I do not believe that in authorizing the States to apply these compensation laws to federal instrumentalities "in the same way and to the same extent" as they apply to other employers, Congress had any purpose to expose federal establishments to coercive financial pressure to comply with a slew of detailed state regulations about how to carry on their operations. Nothing in the statute or its background suggests that Congress had such an intent, and certainly nothing at all suggests that any such position was "clearly" or "unambiguously" approved by Congress. I am unimpressed by the fact that a small fraction of the States permitted such additional awards at the time § 290 was passed; if the "clear congressional mandate" approving such state regulations cannot be found in the federal statute itself, then the obscure practices of a few States at the time of enactment will not suffice to create one. Congress need not explicitly disapprove every contrary aspect of the workers' compensation laws of the several States in order to refrain from giving them its "unambiguous" blessing. Section 290 was enacted in response to the Court's decision in Murray v. Gerrick & Co., 291 U.S. 315 (1934), which had held that state workers' compensation laws may not be applied 194 at all in areas under the exclusive jurisdiction of the Federal Government. The purpose of the bill as stated was simply the humanitarian one of "correcting this situation," in which workers employed on federal projects were deprived of the benefits of coverage purely because of an oddity of location. S. Rep. No. 2294, 74th Cong., 2d Sess., 2 (1936); H. R. Rep. No. 2656, 74th Cong., 2d Sess., 1 (1936). As the Senate Report explained at greater length: "The purpose of the amended bill is to fill a conspicuous gap in the workmen's compensation field by furnishing protection against death or disability to laborers and mechanics employed by contractors or other persons on Federal property." S. Rep. No. 2294, at 1. That Congress intended nothing more than to provide much-needed coverage to these workers is shown by the single revealing item in the scanty legislative history of the statute. The House version of the bill not only would have extended coverage to these workers, but also would have subjected federal property to state safety and insurance regulations and would have authorized state officers to enter upon federal premises in furtherance of these aims. The Senate struck out these latter provisions at the request of the Executive Branch of the Federal Government, noting expressly that they "would not only produce conflicts of authority between State and Federal officers but would also mark a wide departure from the well-established principle that Federal officers should have complete charge of any regulations pertaining to Federal property." S. Rep. No. 2294, at 2. As no such departure from normal practice was intended by Congress, the Senate version of the bill was enacted. This background to the enactment of § 290 shows that Congress did not intend to expose federal instrumentalities to the kind of detailed and mandatory regulation that is provided by the Ohio law at issue in this case. The Court's response on this point is simply to assert that "[t]he effects of direct regulation on the operation of federal projects are significantly *195 more intrusive than the incidental regulatory effects of such an additional award provision." Ante, at 185. In some instances the Court may be correct that the effects of direct regulation could be more intrusive than a provision for penalty awards, but the question here is not whether these two things are exactly the same, but simply whether the "regulatory effects" of the penalty provision, which as set out above are far from "incidental," are the kinds of effects that Congress did not intend to sanction when it enacted § 290. These effects are clearly impermissible under the rationale that the Senate articulated for removing from the bill the two obnoxious provisions that had been included in the House version. And even if I were to conclude that Congress had acted ambiguously on this score, I would at least be forced to conclude that Congress offered no "clear" or "unambiguous" mandate for the kind of specific regulatory compulsion that this Ohio law exerts upon this federal facility. I therefore respectfully dissent.	The Court's seminal decision in establishes the principle that the 187 States may not exercise their sovereign powers so as to control those instrumentalities of the United States which have been judged necessary and proper to carry into effect federal laws and policies. Although the narrow issue in that case involved only the assertion by the State of Maryland of its power to tax a federal bank, the Court laid down a more general construction of the Supremacy Clause that has proved to be enduring in its force of reason. As the Court stated: "The attempt to use [state sovereign power] on the means employed by the government of the Union, in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power which the people of a single State cannot give." The contrary principle would be "capable of arresting all the measures of the government, and of prostrating it at the foot of the States. The American people have declared their constitution, and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the States." "The result," the Court concluded, "is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government." Although, again, the narrow issue in McCulloch concerned only the power to tax, which as the Court noted "involves the power to destroy," the passages quoted above demonstrate that the decision was formulated, explicitly, with sufficient breadth to apply to other measures a State might impose that would "retard, impede, burden, or in any manner control" the operations of federal instrumentalities. And, clearly, the power to regulate also involves "the power to destroy" if the regulatory web is spun too tightly around its object. More commonly, however, the additional and perhaps conflicting regulations imposed by a 188 State would simply burden the federal instrumentality, interfere with its operations, and frustrate the federal objectives it is designed to achieve. Nonetheless, the law has long been settled that such regulation cannot be imposed on federal instrumentalities by the States, under the Supremacy Clause, unless the Federal Government directly indicates that it finds such impositions to be consistent with the proper pursuit of its powers under federal law. ; In this case the State of Ohio seeks to require a federal nuclear facility, which all concede to be the equivalent of any other federal instrumentality,[1] to make a "bonus" money payment to workers who are injured when the injury results from the facility's failure to comply with "any specific [state] requirement for the protection of the lives, health or safety of employees." Ohio Const., Art. II, 35. Although the Court declines to decide whether this provision of state law is tantamount to a regulation of the facility or to some similarly impermissible imposition upon it, ante, at 182, I believe that no other view is tenable on the facts before us. Initially, the proper focus under the Supremacy Clause is not the avowed purpose for which the State adopts a given provision but the actual effect of the provision on the operation of a federal instrumentality and on its ability to achieve the objectives of federal law and policy for which it has been created. The Court has held that even the general framework of state workers' compensation laws may not be applied at places that lie within the exclusive jurisdiction of the Federal Government. And 189 yet the provision of Ohio law at issue in this case is much more specific in its application, and in its regulatory effect upon this federal facility, than is the general framework of such laws. The basic feature of the state statutory regimes for the compensation of workers is that the common law governing the relationship between employer and employee, whose doctrines had become so disadvantageous to employees, is replaced by an automatic entitlement of the employee to certain benefits when injured in the course of employment. See 1 A. Larson, Law of Workmen's Compensation 1.10-3.40 Unlike this basic scheme, however, which does not pressure the federal facility to alter its operations in any specific respect to comply with particular state regulations, the Ohio law exposes the facility to a special penalty if it does not comply with "any specific [state] requirement for the protection of the lives, health or safety of employees." Ohio Const., Art. II, 35. The specificity of these requirements is much more intrusive on the management of the federal facility than even a state workers' compensation law that would preserve the employee's right to sue the employer for willful misconduct or for intentional injury, as do the laws of several States. In terms of the regulatory impact on the federal instrumentality, it is one thing for the facility to know that it should manage its operations so as to minimize the risk of injuries to its employees; it is quite another to expose it to money penalties for failing to comply with the whole panoply of specific state regulations that dictate precise rules to govern very detailed aspects of employee health and safety. It is quite obvious that an attempt by the State of Ohio to impose these same kinds of specific regulations on the federal facility, directly, by obliging the facility to satisfy them all or else to suspend operations, would run afoul of the Supremacy Clause. The rule at issue here has a similar effect. Appellees claim that the federal facility violated a provision in the code of safety requirements, which the State of Ohio has 190 adopted by administrative rule. The provision sets out specific restrictions on mobile work platforms and rolling platforms, and says that "[e]xposed surfaces shall be free from sharp edges, burrs or other projecting parts." Ohio Admin. Code 4121:1-5-03(D)(2) (1987). There are thousands of such requirements in the administrative rules adopted by the Ohio Industrial Commission's Division of Safety and Hygiene, which in their current version run to well over 200 double-columned pages of meticulous prescriptions, illustrated in minute detail with diagrams, graphs, and charts, see Ohio Admin. Code, ch. 4121:1 (1987), and there are countless other specific requirements in the State's other laws and regulations. It will not do to say that the State of Ohio has not attempted to regulate this facility directly, but simply has exposed it to possible money payments for failure to comply with these specific requirements, since such requirements are often enforced by fines rather than by enjoining specific conduct, and in any event the apparent means of enforcing all of these rules is through the workers' compensation awards permitted under state law. Nor does it make sense to say that the State of Ohio is not fining the facility, but is only penalizing it in the form of additional compensation to injured workers. It cannot matter that the extra payment is made only in the event of an actual injury; one might just as well argue that a regulatory fine would not be a burden if it were imposed not every day but only on the less frequent occasions when inspections are held. Even more to the point, if the amount of the money penalty were very large, the direct compulsion that would be brought to bear upon the federal facility to knuckle under and scrutinize its operations for compliance with every jot and title of the state administrative rules is apparent. The case is no different because the amount of the extra "bonus" award in any given instance may be small. In the contested provision involved nothing 191 more than whether the person in charge of an eating house at a federal home for disabled veterans was required under state law to put out a small printed sign that would read "oleomargarine sold and used here" when he served oleomargarine to the inmates. The state law was found to be invalid as applied to the federal facility, under the Supremacy Clause, without regard to the plain fact that the contested imposition was such a slight one, for the principle remains the same in such a case.[2] The mechanics of the Ohio provision, as interpreted by the Ohio courts, reinforce both the obvious regulatory effect of this state law and the important differences between such a provision and a basic workers' compensation scheme. First, unlike workers' compensation, which provides an award to every employee who is injured on the job regardless of how the injury occurred, the additional payment here is only available when the facility fails to comply with a state regulatory "requirement." Even the regulatory provisions embodied in federal laws and rules have been held not to activate the extra money penalty afforded by state law. See, e. g., State ex rel. ; State ex rel. Second, the necessity that the state requirement be "specific" in its dictates has been strictly construed. It "does not comprehend a general course of conduct or general duties or obligations flowing from the relation of employer and employee, but embraces such lawful, specific and definite requirements or standards of conduct as are prescribed by statute or by orders of the Industrial Commission." State ex rel. The question whether a particular safety requirement is sufficiently "specific" to support an extra money penalty has often been litigated in the Ohio courts, and such awards are invalidated unless the claimant is able to demonstrate that the specific requirement "demands that some particular and definite act or thing be done." State ex rel. See also State ex rel. ; State ex rel. Jack Conie & Sons In order to secure the penalty award, the employee must show that the regulatory requirement is "definite" in the sense that it leaves no discretion to the employer does not make it at all "a matter of his own choosing" how to comply with the specific requirement. State ex rel. Fast & Since this provision of Ohio law exacts a monetary penalty only for failure to comply with state laws and regulations, and indeed only for failure to comply with those state regulations which are so specific that they dictate precisely what steps the employer must take to avoid this increased financial exposure, the principal effect of this provision can only be to induce the employer to adhere to each of the various health and safety regulations that the State has adopted. And therefore the impact of such a provision on a federal instrumentality presents a very different problem, for purposes of analysis under the Supremacy Clause, from that posed by the mere application of a state workers' compensation scheme. The Court today skirts these difficulties and rests its disposition on the view that, no matter how extensive the actual regulatory effect of this state law may be, Congress has sanctioned its application to federal instrumentalities by enacting 40 U.S. C. 290. The Court finds in this statute the "unambiguous" 193 and "clear congressional mandate" approving such state regulation that we have required in past cases. Kern-Limerick, ; I disagree. Section 290 authorizes each State to apply its "workmen's compensation laws" to all "property belonging to the United States of America, which is within the exterior boundaries of any State, in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State." The crux of the matter is whether Congress intended by this provision to open up all federal instrumentalities to the kind of potentially onerous regulation of their operations that is imposed by the Ohio provision for money penalties. I do not believe that in authorizing the States to apply these compensation laws to federal instrumentalities "in the same way and to the same extent" as they apply to other employers, Congress had any purpose to expose federal establishments to coercive financial pressure to comply with a slew of detailed state regulations about how to carry on their operations. Nothing in the statute or its background suggests that Congress had such an intent, and certainly nothing at all suggests that any such position was "clearly" or "unambiguously" approved by Congress. I am unimpressed by the fact that a small fraction of the States permitted such additional awards at the time 290 was passed; if the "clear congressional mandate" approving such state regulations cannot be found in the federal statute itself, then the obscure practices of a few States at the time of enactment will not suffice to create one. Congress need not explicitly disapprove every contrary aspect of the workers' compensation laws of the several States in order to refrain from giving them its "unambiguous" blessing. Section 290 was enacted in response to the Court's decision in which had held that state workers' compensation laws may not be applied 194 at all in areas under the exclusive jurisdiction of the Federal Government. The purpose of the bill as stated was simply the humanitarian one of "correcting this situation," in which workers employed on federal projects were deprived of the benefits of coverage purely because of an oddity of location. S. Rep. No. 2294, 74th Cong., 2d Sess., 2 (1936); H. R. Rep. No. 2656, 74th Cong., 2d Sess., 1 (1936). As the Senate Report explained at greater length: "The purpose of the amended bill is to fill a conspicuous gap in the workmen's compensation field by furnishing protection against death or disability to laborers and mechanics employed by contractors or other persons on Federal property." S. Rep. No. 2294, at 1. That Congress intended nothing more than to provide much-needed coverage to these workers is shown by the single revealing item in the scanty legislative history of the statute. The House version of the bill not only would have extended coverage to these workers, but also would have subjected federal property to state safety and insurance regulations and would have authorized state officers to enter upon federal premises in furtherance of these aims. The Senate struck out these latter provisions at the request of the Executive Branch of the Federal Government, noting expressly that they "would not only produce conflicts of authority between State and Federal officers but would also mark a wide departure from the well-established principle that Federal officers should have complete charge of any regulations pertaining to Federal property." S. Rep. No. 2294, at 2. As no such departure from normal practice was intended by Congress, the Senate version of the bill was enacted. This background to the enactment of 290 shows that Congress did not intend to expose federal instrumentalities to the kind of detailed and mandatory regulation that is provided by the Ohio law at issue in this case. The Court's response on this point is simply to assert that "[t]he effects of direct regulation on the operation of federal projects are significantly 195 more intrusive than the incidental regulatory effects of such an additional award provision." Ante, at 185. In some instances the Court may be correct that the effects of direct regulation could be more intrusive than a provision for penalty awards, but the question here is not whether these two things are exactly the same, but simply whether the "regulatory effects" of the penalty provision, which as set out above are far from "incidental," are the kinds of effects that Congress did not intend to sanction when it enacted 290. These effects are clearly impermissible under the rationale that the Senate articulated for removing from the bill the two obnoxious provisions that had been included in the House version. And even if I were to conclude that Congress had acted ambiguously on this score, I would at least be forced to conclude that Congress offered no "clear" or "unambiguous" mandate for the kind of specific regulatory compulsion that this Ohio law exerts upon this federal facility. I therefore respectfully dissent.
per_curiam	per_curiam	true	Moore v. United States	1976-10-18T00:00:00	null	https://www.courtlistener.com/opinion/109552/moore-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/109552/	1,976	1976-007	2	6	3	John David Moore, Jr., was convicted in a bench trial of possession of heroin with intent to distribute it, in violation of 21 U.S. C. § 841 (a) (1). In an unpublished order, the Court of Appeals summarily affirmed the judgment of conviction. In early January 1975, police officers received a tip from an informant that Moore and others were in possession of heroin at "Moore's apartment." The police obtained a search warrant and entered the apartment, where they found Moore lying face down near a coffee table in the living room. Also present in the apartment was a woman who was sitting on a couch in the same room. Bags containing heroin were found both on top of and beneath the coffee table, and they were seized along with various narcotics paraphernalia. At a consolidated hearing on Moore's motion to suppress evidence and on the merits, the prosecution adduced no admissible evidence showing that Moore was in possession of the heroin in the apartment in which he and the woman were found other than his proximity to the narcotics at the time the warrant was executed. Indeed, one police officer 21 testified that he did not find "any indications of ownership of the apartment." In his closing argument on the merits, however, the prosecutor placed substantial emphasis on the out-of-court declaration of the unidentified informant: "[A] confidential informant came to Detective Uribe and said, `I have information or I havethrough personal observation, know that John David Moore resides at a certain apartment here in El Paso, Texas, and he is in possession of a certain amount of heroin.' " In adjudging Moore guilty, the trial court found that he had been in close proximity to the seized heroin, that he was the tenant of the apartment in question, and that he had, therefore, been in possession of the contraband. In making these findings, the court expressly relied on the hearsay declaration of the informant: "Information revealed by the confidential informant and relied upon in the preparation of the Affidavit disclosed that John David Moore was the occupant of Apartment # 60, Building # 7, Hill Country Apartments, 213 Argonaut, El Paso, Texas." Defense counsel objected to the court's reliance upon hearsay evidence, but the judge refused to amend this finding except to add the phrase "at the time of the seizure" to the end of the sentence. There can be no doubt that the informant's out-of-court declaration that the apartment in question was "Moore's apartment," either as related in the search warrant affidavit or as reiterated in live testimony by the police officers, was hearsay and thus inadmissible in evidence on the issue of Moore's guilt. Introduction of this testimony deprived Moore of the opportunity to cross-examine the informant as to exactly what he meant by "Moore's apartment," and what factual basis, if any, there was for believing that Moore was a tenant or regular resident there. Moore was similarly 22 deprived of the chance to show that the witness' recollection was erroneous or that he was not credible.[1] The informant's declaration falls within no exception to the hearsay rule recognized in the Federal Rules of Evidence, and reliance on this hearsay statement in determining petitioner's guilt or innocence was error.[2] Although the only competent evidence of Moore's possession of the narcotics was his proximity to them in an apartment in which another person was also present and of which he was not shown to be the tenant or even a regular resident, the Solicitor General now argues that the error in admitting the hearsay evidence was harmless. That is far from clear. Whether or not the evidence of proximity alone, when viewed in the light most favorable to the prosecution, could suffice to prove beyond a reasonable doubt that Moore was in possession of the heroin, the fact is that the trial court did not find Moore guilty on that evidence alone. The Government suggests that Moore's failure to testify or to adduce any evidence showing "that his presence in the apartment was unrelated to the heroin" highlights the alleged harmlessness of the error, but this suggestion can carry no weight in view of the elementary proposition that the prosecution bore the burden of proving beyond a reasonable doubt every element of the charged offense. Equally unpersuasive is the Government's argument that the error was probably harmless because Moore was convicted in a bench trial; whatever the merits of that argument as a general proposition, it has a hollow ring in a case where the trial judge expressly relied upon the inadmissible evidence in finding the defendant guilty. *23 The petition for a writ of certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to that court so it may determine whether the wrongful admission of the hearsay evidence was harmless error.[3] It is so ordered. THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST dissent from summary reversal and would set the case for oral argument.	John David Moore, Jr., was convicted in a bench trial of possession of heroin with intent to distribute it, in violation of 21 U.S. C. 841 (a) (1). In an unpublished order, the Court of Appeals summarily affirmed the judgment of conviction. In early January 1975, police officers received a tip from an informant that Moore and others were in possession of heroin at "Moore's apartment." The police obtained a search warrant and entered the apartment, where they found Moore lying face down near a coffee table in the living room. Also present in the apartment was a woman who was sitting on a couch in the same room. Bags containing heroin were found both on top of and beneath the coffee table, and they were seized along with various narcotics paraphernalia. At a consolidated hearing on Moore's motion to suppress evidence and on the merits, the prosecution adduced no admissible evidence showing that Moore was in possession of the heroin in the apartment in which he and the woman were found other than his proximity to the narcotics at the time the warrant was executed. Indeed, one police officer 21 testified that he did not find "any indications of ownership of the apartment." In his closing argument on the merits, however, the prosecutor placed substantial emphasis on the out-of-court declaration of the unidentified informant: "[A] confidential informant came to Detective Uribe and said, `I have information or I havethrough personal observation, know that John David Moore resides at a certain apartment here in El Paso, Texas, and he is in possession of a certain amount of heroin.' " In adjudging Moore guilty, the trial court found that he had been in close proximity to the seized heroin, that he was the tenant of the apartment in question, and that he had, therefore, been in possession of the contraband. In making these findings, the court expressly relied on the hearsay declaration of the informant: "Information revealed by the confidential informant and relied upon in the preparation of the Affidavit disclosed that John David Moore was the occupant of Apartment # 60, Building # 7, Hill Country Apartments, 213 Argonaut, El Paso, Texas." Defense counsel objected to the court's reliance upon hearsay evidence, but the judge refused to amend this finding except to add the phrase "at the time of the seizure" to the end of the sentence. There can be no doubt that the informant's out-of-court declaration that the apartment in question was "Moore's apartment," either as related in the search warrant affidavit or as reiterated in live testimony by the police officers, was hearsay and thus inadmissible in evidence on the issue of Moore's guilt. Introduction of this testimony deprived Moore of the opportunity to cross-examine the informant as to exactly what he meant by "Moore's apartment," and what factual basis, if any, there was for believing that Moore was a tenant or regular resident there. Moore was similarly 22 deprived of the chance to show that the witness' recollection was erroneous or that he was not credible.[1] The informant's declaration falls within no exception to the hearsay rule recognized in the Federal Rules of Evidence, and reliance on this hearsay statement in determining petitioner's guilt or innocence was error.[2] Although the only competent evidence of Moore's possession of the narcotics was his proximity to them in an apartment in which another person was also present and of which he was not shown to be the tenant or even a regular resident, the Solicitor General now argues that the error in admitting the hearsay evidence was harmless. That is far from clear. Whether or not the evidence of proximity alone, when viewed in the light most favorable to the prosecution, could suffice to prove beyond a reasonable doubt that Moore was in possession of the heroin, the fact is that the trial court did not find Moore guilty on that evidence alone. The Government suggests that Moore's failure to testify or to adduce any evidence showing "that his presence in the apartment was unrelated to the heroin" highlights the alleged harmlessness of the error, but this suggestion can carry no weight in view of the elementary proposition that the prosecution bore the burden of proving beyond a reasonable doubt every element of the charged offense. Equally unpersuasive is the Government's argument that the error was probably harmless because Moore was convicted in a bench trial; whatever the merits of that argument as a general proposition, it has a hollow ring in a case where the trial judge expressly relied upon the inadmissible evidence in finding the defendant guilty. *23 The petition for a writ of certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to that court so it may determine whether the wrongful admission of the hearsay evidence was harmless error.[3] It is so ordered. THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST dissent from summary reversal and would set the case for oral argument.
Justice Stewart	majority	false	Ashe v. Swenson	1970-04-20T00:00:00	null	https://www.courtlistener.com/opinion/108114/ashe-v-swenson/	https://www.courtlistener.com/api/rest/v3/clusters/108114/	1,970	1969-072	2	7	1	In Benton v. Maryland, 395 U.S. 784, the Court held that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. The question in this case is whether the State of Missouri violated that guarantee when it prosecuted the petitioner a second time for armed robbery in the circumstances here presented.[1] Sometime in the early hours of the morning of January 10, 1960, six men were engaged in a poker game in the basement of the home of John Gladson at Lee's Summit, Missouri. Suddenly three or four masked men, armed with a shotgun and pistols, broke into the basement and robbed each of the poker players of money and various articles of personal property. The robbers and it has never been clear whether there were three or four of themthen fled in a car belonging to one of the victims of the robbery. Shortly thereafter the stolen car was discovered in a field, and later that morning three men were arrested by a state trooper while they were walking on a highway not far from where the abandoned car had been found. The petitioner was arrested by another officer some distance away. 438 The four were subsequently charged with seven separate offensesthe armed robbery of each of the six poker players and the theft of the car. In May 1960 the petitioner went to trial on the charge of robbing Donald Knight, one of the participants in the poker game. At the trial the State called Knight and three of his fellow poker players as prosecution witnesses. Each of them described the circumstances of the holdup and itemized his own individual losses. The proof that an armed robbery had occurred and that personal property had been taken from Knight as well as from each of the others was unassailable. The testimony of the four victims in this regard was consistent both internally and with that of the others. But the State's evidence that the petitioner had been one of the robbers was weak. Two of the witnesses thought that there had been only three robbers altogether, and could not identify the petitioner as one of them. Another of the victims, who was the petitioner's uncle by marriage, said that at the "patrol station" he had positively identified each of the other three men accused of the holdup, but could say only that the petitioner's voice "sounded very much like" that of one of the robbers. The fourth participant in the poker game did identify the petitioner, but only by his "size and height, and his actions." The cross-examination of these witnesses was brief, and it was aimed primarily at exposing the weakness of their identification testimony. Defense counsel made no attempt to question their testimony regarding the holdup itself or their claims as to their losses. Knight testified without contradiction that the robbers had stolen from him his watch, $250 in cash, and about $500 in checks. His billfold, which had been found by the police in the possession of one of the three other men accused of the robbery, was admitted in evidence. The defense offered no testimony and waived final argument. 439 The trial judge instructed the jury that if it found that the petitioner was one of the participants in the armed robbery, the theft of "any money" from Knight would sustain a conviction.[2] He also instructed the jury that if the petitioner was one of the robbers, he was guilty under the law even if he had not personally robbed Knight.[3] The jurythough not instructed to elaborate upon its verdictfound the petitioner "not guilty due to insufficient evidence." Six weeks later the petitioner was brought to trial again, this time for the robbery of another participant in the poker game, a man named Roberts. The petitioner filed a motion to dismiss, based on his previous acquittal. The motion was overruled, and the second trial began. The witnesses were for the most part the 440 same, though this time their testimony was substantially stronger on the issue of the petitioner's identity. For example, two witnesses who at the first trial had been wholly unable to identify the petitioner as one of the robbers, now testified that his features, size, and mannerisms matched those of one of their assailants. Another witness who before had identified the petitioner only by his size and actions now also remembered him by the unusual sound of his voice. The State further refined its case at the second trial by declining to call one of the participants in the poker game whose identification testimony at the first trial had been conspicuously negative. The case went to the jury on instructions virtually identical to those given at the first trial. This time the jury found the petitioner guilty, and he was sentenced to a 35-year term in the state penitentiary. The Supreme Court of Missouri affirmed the conviction, holding that the "plea of former jeopardy must be denied." State v. Ashe, 350 S.W.2d 768, 771. A collateral attack upon the conviction in the state courts five years later was also unsuccessful. State v. Ashe, 403 S.W.2d 589. The petitioner then brought the present habeas corpus proceeding in the United States District Court for the Western District of Missouri, claiming that the second prosecution had violated his right not to be twice put in jeopardy. Considering itself bound by this court's decision in Hoag v. New Jersey, 356 U.S. 464, the District Court denied the writ, although apparently finding merit in the petitioner's claim.[4] The Court 441 of Appeals for the Eighth Circuit affirmed, also upon the authority of Hoag v. New Jersey, supra.[5] We granted certiorari to consider the important constitutional question this case presents. 393 U.S. 1115. As the District Court and the Court of Appeals correctly noted, the operative facts here are virtually identical to those of Hoag v. New Jersey, supra. In that case the defendant was tried for the armed robbery of three men who, along with others, had been held up in a tavern. The proof of the robbery was clear, but the evidence identifying the defendant as one of the robbers was weak, and the defendant interposed an alibi defense. The jury brought in a verdict of not guilty. The defendant was then brought to trial again, on an indictment charging the robbery of a fourth victim of the tavern holdup. This time the jury found him guilty. After appeals in the state courts proved unsuccessful, Hoag brought his case here. Viewing the question presented solely in terms of Fourteenth Amendment due processwhether the course that New Jersey had pursued had "led to fundamental unfairness," 356 U.S., at 467this Court declined to reverse the judgment of conviction, because "in the circumstances shown by this record, we cannot say that 442 petitioner's later prosecution and conviction violated due process."[6] 356 U. S., at 466. The Court found it unnecessary to decide whether "collateral estoppel"the principle that bars relitigation between the same parties of issues actually determined at a previous trialis a due process requirement in a state criminal trial, since it accepted New Jersey's determination that the petitioner's previous acquittal did not in any event give rise to such an estoppel. 356 U.S., at 471. And in the view the Court took of the issues presented, it did not, of course, even approach consideration of whether collateral estoppel is an ingredient of the Fifth Amendment guarantee against double jeopardy. The doctrine of Benton v. Maryland, 395 U.S. 784, puts the issues in the present case in a perspective quite different from that in which the issues were perceived in Hoag v. New Jersey, supra. The question is no longer whether collateral estoppel is a requirement of due process, but whether it is a part of the Fifth Amendment's guarantee against double jeopardy. And if collateral estoppel is embodied in that guarantee, then its applicability in a particular case is no longer a matter to be left for state court determination within the broad 443 bounds of "fundamental fairness," but a matter of constitutional fact we must decide through an examination of the entire record. Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 285; Niemotko v. Maryland, 340 U.S. 268, 271; Watts v. Indiana, 338 U.S. 49, 51; Chambers v. Florida, 309 U.S. 227, 229; Norris v. Alabama, 294 U.S. 587, 590. "Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court's decision more than 50 years ago in United States v. Oppenheimer, 242 U.S. 85. As Mr. Justice Holmes put the matter in that case, "It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt." 242 U.S., at 87.[7] As a rule of federal law, therefore, "[i]t is much too late to suggest that this principle is not fully applicable to a former judgment in a criminal case, either because of lack of `mutuality' or because the judgment may reflect only a belief that the Government had not met the higher burden of proof exacted in such cases for the Government's evidence as a whole although not necessarily as to every link in the chain." United States v. Kramer, 289 F.2d 909, 913. 444 The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration."[8] The inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Sealfon v. United States, 332 U.S. 575, 579. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.[9] 445 Straightforward application of the federal rule to the present case can lead to but one conclusion. For the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that Knight had not been a victim of that robbery. The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of Roberts wholly impressible. The ultimate question to be determined, then, in the light of Benton v. Maryland, supra, is whether this established rule of federal law is embodied in the Fifth Amendment guarantee against double jeopardy. We do not hesitate to hold that it is.[10] For whatever else that 446 constitutional guarantee may embrace, North Carolina v. Pearce, 395 U.S. 711, 717, it surely protects a man who has been acquitted from having to "run the gantlet" a second time. Green v. United States, 355 U.S. 184, 190. The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again. After the first jury had acquitted the petitioner of robbing Knight, Missouri could certainly not have brought him to trial again upon that charge. Once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery of Knight in the hope that a different jury might find that evidence more convincing. The situation is constitutionally no different here, even though the second trial related to another victim of the same robbery. For the name of the victim, in the circumstances of this case, had no bearing whatever upon the issue of whether the petitioner was one of the robbers. 447 In this case the State in its brief has frankly conceded that following the petitioner's acquittal, it treated the first trial as no more than a dry run for the second prosecution: "No doubt the prosecutor felt the state had a provable case on the first charge and, when he lost, he did what every good attorney would dohe refined his presentation in light of the turn of events at the first trial." But this is precisely what the constitutional guarantee forbids. The judgment is reversed, and the case is remanded to the Court of Appeals for the Eighth Circuit for further proceedings consistent with this opinion. It is so ordered. MR.	In the Court held that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. The question in this case is whether the State of Missouri violated that guarantee when it prosecuted the petitioner a second time for armed robbery in the circumstances here presented.[1] Sometime in the early hours of the morning of January 10, 1960, six men were engaged in a poker game in the basement of the home of John Gladson at Lee's Summit, Missouri. Suddenly three or four masked men, armed with a shotgun and pistols, broke into the basement and robbed each of the poker players of money and various articles of personal property. The robbers and it has never been clear whether there were three or four of themthen fled in a car belonging to one of the victims of the robbery. Shortly thereafter the stolen car was discovered in a field, and later that morning three men were arrested by a state trooper while they were walking on a highway not far from where the abandoned car had been found. The petitioner was arrested by another officer some distance away. 438 The four were subsequently charged with seven separate offensesthe armed robbery of each of the six poker players and the theft of the car. In May 1960 the petitioner went to trial on the charge of robbing Donald Knight, one of the participants in the poker game. At the trial the State called Knight and three of his fellow poker players as prosecution witnesses. Each of them described the circumstances of the holdup and itemized his own individual losses. The proof that an armed robbery had occurred and that personal property had been taken from Knight as well as from each of the others was unassailable. The testimony of the four victims in this regard was consistent both internally and with that of the others. But the State's evidence that the petitioner had been one of the robbers was weak. Two of the witnesses thought that there had been only three robbers altogether, and could not identify the petitioner as one of them. Another of the victims, who was the petitioner's uncle by marriage, said that at the "patrol station" he had positively identified each of the other three men accused of the holdup, but could say only that the petitioner's voice "sounded very much like" that of one of the robbers. The fourth participant in the poker game did identify the petitioner, but only by his "size and height, and his actions." The cross-examination of these witnesses was brief, and it was aimed primarily at exposing the weakness of their identification testimony. Defense counsel made no attempt to question their testimony regarding the holdup itself or their claims as to their losses. Knight testified without contradiction that the robbers had stolen from him his watch, $250 in cash, and about $500 in checks. His billfold, which had been found by the police in the possession of one of the three other men accused of the robbery, was admitted in evidence. The defense offered no testimony and waived final argument. 439 The trial judge instructed the jury that if it found that the petitioner was one of the participants in the armed robbery, the theft of "any money" from Knight would sustain a conviction.[2] He also instructed the jury that if the petitioner was one of the robbers, he was guilty under the law even if he had not personally robbed Knight.[3] The jurythough not instructed to elaborate upon its verdictfound the petitioner "not guilty due to insufficient evidence." Six weeks later the petitioner was brought to trial again, this time for the robbery of another participant in the poker game, a man named Roberts. The petitioner filed a motion to dismiss, based on his previous acquittal. The motion was overruled, and the second trial began. The witnesses were for the most part the 440 same, though this time their testimony was substantially stronger on the issue of the petitioner's identity. For example, two witnesses who at the first trial had been wholly unable to identify the petitioner as one of the robbers, now testified that his features, size, and mannerisms matched those of one of their assailants. Another witness who before had identified the petitioner only by his size and actions now also remembered him by the unusual sound of his voice. The State further refined its case at the second trial by declining to call one of the participants in the poker game whose identification testimony at the first trial had been conspicuously negative. The case went to the jury on instructions virtually identical to those given at the first trial. This time the jury found the petitioner guilty, and he was sentenced to a 35-year term in the state penitentiary. The Supreme Court of Missouri affirmed the conviction, holding that the "plea of former jeopardy must be denied." A collateral attack upon the conviction in the state courts five years later was also unsuccessful. The petitioner then brought the present habeas corpus proceeding in the United States District Court for the Western District of Missouri, claiming that the second prosecution had violated his right not to be twice put in jeopardy. Considering itself bound by this court's decision in the District Court denied the writ, although apparently finding merit in the petitioner's claim.[4] The Court 441 of Appeals for the Eighth Circuit affirmed, also upon the authority of [5] We granted certiorari to consider the important constitutional question this case presents. As the District Court and the Court of Appeals correctly noted, the operative facts here are virtually identical to those of In that case the defendant was tried for the armed robbery of three men who, along with others, had been held up in a tavern. The proof of the robbery was clear, but the evidence identifying the defendant as one of the robbers was weak, and the defendant interposed an alibi defense. The jury brought in a verdict of not guilty. The defendant was then brought to trial again, on an indictment charging the robbery of a fourth victim of the tavern holdup. This time the jury found him guilty. After appeals in the state courts proved unsuccessful, Hoag brought his case here. Viewing the question presented solely in terms of Fourteenth Amendment due processwhether the course that New had pursued had "led to fundamental unfairness," this Court declined to reverse the judgment of conviction, because "in the circumstances shown by this record, we cannot say that 442 petitioner's later prosecution and conviction violated due process."[6] The Court found it unnecessary to decide whether "collateral estoppel"the principle that bars relitigation between the same parties of issues actually determined at a previous trialis a due process requirement in a state criminal trial, since it accepted New 's determination that the petitioner's previous acquittal did not in any event give rise to such an estoppel. And in the view the Court took of the issues presented, it did not, of course, even approach consideration of whether collateral estoppel is an ingredient of the Fifth Amendment guarantee against double jeopardy. The doctrine of puts the issues in the present case in a perspective quite different from that in which the issues were perceived in The question is no longer whether collateral estoppel is a requirement of due process, but whether it is a part of the Fifth Amendment's guarantee against double jeopardy. And if collateral estoppel is embodied in that guarantee, then its applicability in a particular case is no longer a matter to be left for state court determination within the broad 443 bounds of "fundamental fairness," but a matter of constitutional fact we must decide through an examination of the entire record. Cf. New York Times ; ; ; ; "Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court's decision more than 50 years ago in United As Mr. Justice Holmes put the matter in that case, "It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt."[7] As a rule of federal law, therefore, "[i]t is much too late to suggest that this principle is not fully applicable to a former judgment in a criminal case, either because of lack of `mutuality' or because the judgment may reflect only a belief that the Government had not met the higher burden of proof exacted in such cases for the Government's evidence as a whole although not necessarily as to every link in the chain." United 444 The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration."[8] The inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.[9] 445 Straightforward application of the federal rule to the present case can lead to but one conclusion. For the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that Knight had not been a victim of that robbery. The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of Roberts wholly impressible. The ultimate question to be determined, then, in the light of is whether this established rule of federal law is embodied in the Fifth Amendment guarantee against double jeopardy. We do not hesitate to hold that it is.[10] For whatever else that 446 constitutional guarantee may embrace, North it surely protects a man who has been acquitted from having to "run the gantlet" a second time. The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again. After the first jury had acquitted the petitioner of robbing Knight, Missouri could certainly not have brought him to trial again upon that charge. Once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery of Knight in the hope that a different jury might find that evidence more convincing. The situation is constitutionally no different here, even though the second trial related to another victim of the same robbery. For the name of the victim, in the circumstances of this case, had no bearing whatever upon the issue of whether the petitioner was one of the robbers. 447 In this case the State in its brief has frankly conceded that following the petitioner's acquittal, it treated the first trial as no more than a dry run for the second prosecution: "No doubt the prosecutor felt the state had a provable case on the first charge and, when he lost, he did what every good attorney would dohe refined his presentation in light of the turn of events at the first trial." But this is precisely what the constitutional guarantee forbids. The judgment is reversed, and the case is remanded to the Court of Appeals for the Eighth Circuit for further proceedings consistent with this opinion. It is so ordered. MR.
Justice Brennan	majority	false	In Re WINSHIP	1970-05-18T00:00:00	null	https://www.courtlistener.com/opinion/108111/in-re-winship/	https://www.courtlistener.com/api/rest/v3/clusters/108111/	1,970	1969-069	2	5	3	Constitutional questions decided by this Court concerning the juvenile process have centered on the adjudicatory stage at "which a determination is made as to 359 whether a juvenile is a `delinquent' as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution." In re Gault, 387 U.S. 1, 13 (1967). Gault decided that, although the Fourteenth Amendment does not require that the hearing at this stage conform with all the requirements of a criminal trial or even of the usual administrative proceeding the Due Process Clause does require application during the adjudicatory hearing of " `the essentials of due process and fair treatment.' " Id., at 30. This case presents the single, narrow question whether proof beyond a reasonable doubt is among the "essentials of due process and fair treatment" required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.[1] Section 712 of the New York Family Court Act defines a juvenile delinquent as "a person over seven and less than sixteen years of age who does any act which, if done by an adult, would constitute a crime." During a 1967 adjudicatory hearing, conducted pursuant to § 742 of the Act, a judge in New York Family Court 360 found that appellant, then a 12-year-old boy, had entered a locker and stolen $112 from a woman's pocketbook. The petition which charged appellant with delinquency alleged that his act, "if done by an adult, would constitute the crime or crimes of Larceny." The judge acknowledged that the proof might not establish guilt beyond a reasonable doubt, but rejected appellant's contention that such proof was required by the Fourteenth Amendment. The judge relied instead on § 744 (b) of the New York Family Court Act which provides that "[a]ny determination at the conclusion of [an adjudicatory] hearing that a [juvenile] did an act or acts must be based on a preponderance of the evidence."[2] During a subsequent dispositional hearing, appellant was ordered placed in a training school for an initial period of 18 months, subject to annual extensions of his commitment until his 18th birthdaysix years in appellant's case. The Appellate Division of the New York Supreme Court, First Judicial Department, affirmed without opinion, 30 A.D. 2d 781, 291 N. Y. S. 2d 1005 (1968). The New York Court of Appeals then affirmed by a four-to-three vote, expressly sustaining the constitutionality of § 744(b), 24 N.Y. 2d 196, 247 N.E.2d 253 (1969).[3]361 We noted probable jurisdiction, 396 U.S. 885 (1969). We reverse. I The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The "demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula `beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt." C. McCormick, Evidence § 321, pp. 681-682 (1954); see also 9 J. Wigmore, Evidence § 2497 (3d ed. 1940). Although virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does "reflect a profound judgment about the 362 way in which law should be enforced and justice administered." Duncan v. Louisiana, 391 U.S. 145, 155 (1968). Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. See, for example, Miles v. United States, 103 U.S. 304, 312 (1881); Davis v. United States, 160 U.S. 469, 488 (1895); Holt v. United States, 218 U.S. 245, 253 (1910); Wilson v. United States, 232 U.S. 563, 569-570 (1914); Brinegar v. United States, 338 U.S. 160, 174 (1949); Leland v. Oregon, 343 U.S. 790, 795 (1952); Holland v. United States, 348 U.S. 121, 138 (1954); Speiser v. Randall, 357 U.S. 513, 525-526 (1958). Cf. Coffin v. United States, 156 U.S. 432 (1895). Mr. Justice Frankfurter stated that "[i]t is the duty of the Government to establish . . . guilt beyond a reasonable doubt. This notionbasic in our law and rightly one of the boasts of a free societyis a requirement and a safeguard of due process of law in the historic, procedural content of `due process.' " Leland v. Oregon, supra, at 802-803 (dissenting opinion). In a similar vein, the Court said in Brinegar v. United States, supra, at 174, that "[g]uilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property." Davis v. United States, supra, at 488, stated that the requirement is implicit in "constitutions. . . [which] recognize the fundamental principles that are deemed essential for the protection of life and liberty." In Davis a murder conviction was 363 reversed because the trial judge instructed the jury that it was their duty to convict when the evidence was equally balanced regarding the sanity of the accused. This Court said: "On the contrary, he is entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing crime. . . . No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them . . . is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged." Id., at 484, 493. The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocencethat bedrock "axiomatic and elementary" principle whose "enforcement lies at the foundation of the administration of our criminal law." Coffin v. United States, supra, at 453. As the dissenters in the New York Court of Appeals observed, and we agree, "a person accused of a crime . . . would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case." 24 N.Y. 2d, at 205, 247 N.E.2d, at 259. The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society 364 that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. As we said in Speiser v. Randall, supra, at 525-526: "There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending valueas a criminal defendant his libertythis margin of error is reduced as to him by the process of placing on the other party the burden of . . . persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder of his guilt." To this end, the reasonable-doubt standard is indispensable, for it "impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue." Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967). Moreover, use 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. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. 365 II We turn to the question whether juveniles, like adults, are constitutionally entitled to proof beyond a reasonable doubt when they are charged with violation of a criminal law. The same considerations that demand extreme caution in factfinding to protect the innocent adult apply as well to the innocent child. We do not find convincing the contrary arguments of the New York Court of Appeals. Gault rendered untenable much of the reasoning relied upon by that court to sustain the constitutionality of § 744 (b). The Court of Appeals indicated that a delinquency adjudication "is not a `conviction' (§ 781); that it affects no right or privilege, including the right to hold public office or to obtain a license (§ 782); and a cloak of protective confidentiality is thrown around all the proceedings (§§ 783-784)." 24 N.Y. 2d, at 200, 247 N.E.2d, at 255-256. The court said further: "The delinquency status is not made a crime; and the proceedings are not criminal. There is, hence, no deprivation of due process in the statutory provision [challenged by appellant] . . . ." 24 N.Y. 2d, at 203, 247 N.E.2d, at 257. In effect the Court of Appeals distinguished the proceedings in question here from a criminal prosecution by use of what Gault called the " `civil' label-of-convenience which has been attached to juvenile proceedings." 387 U.S., at 50. But Gault expressly rejected that distinction as a reason for holding the Due Process Clause inapplicable to a juvenile proceeding. 387 U.S., at 50-51. The Court of Appeals also attempted to justify the preponderance standard on the related ground that juvenile proceedings are designed "not to punish, but to save the child." 24 N.Y. 2d, at 197, 247 N.E.2d, at 254. Again, however, Gault expressly rejected this justification. 387 U.S., at 27. We made clear in that decision that civil labels and good 366 intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for "[a] proceeding where the issue is whether the child will be found to be `delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution." Id., at 36. Nor do we perceive any merit in the argument that to afford juveniles the protection of proof beyond a reasonable doubt would risk destruction of beneficial aspects of the juvenile process.[4] Use of the reasonable-doubt standard during the adjudicatory hearing will not disturb New York's policies that a finding that a child has violated a criminal law does not constitute a criminal conviction, that such a finding does not deprive the child of his civil rights, and that juvenile proceedings are confidential. Nor will there be any effect on the informality, flexibility, or speed of the hearing at which the factfinding takes place. And the opportunity during the post-adjudicatory or dispositional hearing for a wide-ranging review of the child's social history and for his individualized treatment will remain unimpaired. Similarly, there will be no effect on the procedures 367 distinctive to juvenile proceedings that are employed prior to the adjudicatory hearing. The Court of Appeals observed that "a child's best interest is not necessarily, or even probably, promoted if he wins in the particular inquiry which may bring him to the juvenile court." 24 N.Y. 2d, at 199, 247 N.E.2d, at 255. It is true, of course, that the juvenile may be engaging in a general course of conduct inimical to his welfare that calls for judicial intervention. But that intervention cannot take the form of subjecting the child to the stigma of a finding that he violated a criminal law[5] and to the possibility of institutional confinement on proof insufficient to convict him were he an adult. We conclude, as we concluded regarding the essential due process safeguards applied in Gault, that the observance of the standard of proof beyond a reasonable doubt "will not compel the States to abandon or displace any of the substantive benefits of the juvenile process." Gault, supra, at 21. Finally, we reject the Court of Appeals' suggestion that there is, in any event, only a "tenuous difference" between the reasonable-doubt and preponderance standards. The suggestion is singularly unpersuasive. In this very case, the trial judge's ability to distinguish between the two standards enabled him to make a finding of guilt that he conceded he might not have made under the standard of proof beyond a reasonable doubt. Indeed, the trial judge's action evidences the accuracy of the observation of commentators that "the preponderance test is susceptible to the misinterpretation 368 that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted." Dorsen & Rezneck, supra, at 26-27.[6] III In sum, the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gaultnotice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination. We therefore hold, in agreement with Chief Judge Fuld in dissent in the Court of Appeals, "that, where a 12-year-old child is charged with an act of stealing which renders him liable to confinement for as long as six years, then, as a matter of due process . . . the case against him must be proved beyond a reasonable doubt." 24 N.Y. 2d, at 207, 247 N.E.2d, at 260. Reversed. MR.	Constitutional questions decided by this Court concerning the juvenile process have centered on the adjudicatory stage at "which a determination is made as to 359 whether a juvenile is a `delinquent' as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution." In re decided that, although the Fourteenth Amendment does not require that the hearing at this stage conform with all the requirements of a criminal trial or even of the usual administrative proceeding the Due Process Clause does require application during the adjudicatory hearing of " `the essentials of due process and fair treatment.' " This case presents the single, narrow question whether proof beyond a reasonable doubt is among the "essentials of due process and fair treatment" required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.[1] Section 712 of the New York Family Court Act defines a juvenile delinquent as "a person over seven and less than sixteen years of age who does any act which, if done by an adult, would constitute a crime." During a 1967 adjudicatory hearing, conducted pursuant to 742 of the Act, a judge in New York Family Court 360 found that appellant, then a 12-year-old boy, had entered a locker and stolen $112 from a woman's pocketbook. The petition which charged appellant with delinquency alleged that his act, "if done by an adult, would constitute the crime or crimes of Larceny." The judge acknowledged that the proof might not establish guilt beyond a reasonable doubt, but rejected appellant's contention that such proof was required by the Fourteenth Amendment. The judge relied instead on 744 (b) of the New York Family Court Act which provides that "[a]ny determination at the conclusion of [an adjudicatory] hearing that a [juvenile] did an act or acts must be based on a preponderance of the evidence."[2] During a subsequent dispositional hearing, appellant was ordered placed in a training school for an initial period of 18 months, subject to annual extensions of his commitment until his 18th birthdaysix years in appellant's case. The Appellate Division of the New York Supreme Court, First Judicial Department, affirmed without opinion, The New York Court of Appeals then affirmed by a four-to-three vote, expressly sustaining the constitutionality of 744(b),[3]361 We noted probable jurisdiction, We reverse. I The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The "demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula `beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt." C. McCormick, Evidence 321, pp. 681-682 ; see also 9 J. Wigmore, Evidence 2497 (3d ed. 1940). Although virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does "reflect a profound judgment about the 362 way in which law should be enforced and justice administered." Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. See, for example, ; ; ; ; ; ; 8 ; 357 U.S. 5, Cf. Mr. Justice Frankfurter stated that "[i]t is the duty of the Government to establish guilt beyond a reasonable doubt. This notionbasic in our law and rightly one of the boasts of a free societyis a requirement and a safeguard of due process of law in the historic, procedural content of `due process.' " In a similar vein, the Court said in at that "[g]uilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property." at stated that the requirement is implicit in "constitutions. [which] recognize the fundamental principles that are deemed essential for the protection of life and liberty." In Davis a murder conviction was 363 reversed because the trial judge instructed the jury that it was their duty to convict when the evidence was equally balanced regarding the sanity of the accused. This Court said: "On the contrary, he is entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing crime. No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged." The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocencethat bedrock "axiomatic and elementary" principle whose "enforcement lies at the foundation of the administration of our criminal law." As the dissenters in the New York Court of Appeals observed, and we agree, "a person accused of a crime would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case." The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society 364 that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. As we said in at : "There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending valueas a criminal defendant his libertythis margin of error is reduced as to him by the process of placing on the other party the burden of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of convincing the factfinder of his guilt." To this end, the reasonable-doubt standard is indispensable, for it "impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue." Dorsen & In Re and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 Moreover, use 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. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. 365 II We turn to the question whether juveniles, like adults, are constitutionally entitled to proof beyond a reasonable doubt when they are charged with violation of a criminal law. The same considerations that demand extreme caution in factfinding to protect the innocent adult apply as well to the innocent child. We do not find convincing the contrary arguments of the New York Court of Appeals. rendered untenable much of the reasoning relied upon by that court to sustain the constitutionality of 744 (b). The Court of Appeals indicated that a delinquency adjudication "is not a `conviction' ( 781); that it affects no right or privilege, including the right to hold public office or to obtain a license ( 782); and a cloak of protective confidentiality is thrown around all the proceedings ( 783-784)." -256. The court said further: "The delinquency status is not made a crime; and the proceedings are not criminal. There is, hence, no deprivation of due process in the statutory provision [challenged by appellant]" In effect the Court of Appeals distinguished the proceedings in question here from a criminal prosecution by use of what called the " `civil' label-of-convenience which has been attached to juvenile proceedings." But expressly rejected that distinction as a reason for holding the Due Process Clause inapplicable to a juvenile -51. The Court of Appeals also attempted to justify the preponderance standard on the related ground that juvenile proceedings are designed "not to punish, but to save the child." Again, however, expressly rejected this We made clear in that decision that civil labels and good 366 intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for "[a] proceeding where the issue is whether the child will be found to be `delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution." Nor do we perceive any merit in the argument that to afford juveniles the protection of proof beyond a reasonable doubt would risk destruction of beneficial aspects of the juvenile process.[4] Use of the reasonable-doubt standard during the adjudicatory hearing will not disturb New York's policies that a finding that a child has violated a criminal law does not constitute a criminal conviction, that such a finding does not deprive the child of his civil rights, and that juvenile proceedings are confidential. Nor will there be any effect on the informality, flexibility, or speed of the hearing at which the factfinding takes place. And the opportunity during the post-adjudicatory or dispositional hearing for a wide-ranging review of the child's social history and for his individualized treatment will remain unimpaired. Similarly, there will be no effect on the procedures 367 distinctive to juvenile proceedings that are employed prior to the adjudicatory hearing. The Court of Appeals observed that "a child's best interest is not necessarily, or even probably, promoted if he wins in the particular inquiry which may bring him to the juvenile court." It is true, of course, that the juvenile may be engaging in a general course of conduct inimical to his welfare that calls for judicial intervention. But that intervention cannot take the form of subjecting the child to the stigma of a finding that he violated a criminal law[5] and to the possibility of institutional confinement on proof insufficient to convict him were he an adult. We conclude, as we concluded regarding the essential due process safeguards applied in that the observance of the standard of proof beyond a reasonable doubt "will not compel the to abandon or displace any of the substantive benefits of the juvenile process." Finally, we reject the Court of Appeals' suggestion that there is, in any event, only a "tenuous difference" between the reasonable-doubt and preponderance standards. The suggestion is singularly unpersuasive. In this very case, the trial judge's ability to distinguish between the two standards enabled him to make a finding of guilt that he conceded he might not have made under the standard of proof beyond a reasonable doubt. Indeed, the trial judge's action evidences the accuracy of the observation of commentators that "the preponderance test is susceptible to the misinterpretation 368 that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted." Dorsen &[6] III In sum, the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination. We therefore hold, in agreement with Chief Judge Fuld in dissent in the Court of Appeals, "that, where a 12-year-old child is charged with an act of stealing which renders him liable to confinement for as long as six years, then, as a matter of due process the case against him must be proved beyond a reasonable doubt." Reversed. MR.
Justice Scalia	majority	false	Lujan v. Defenders of Wildlife	1992-06-12T00:00:00	null	https://www.courtlistener.com/opinion/112747/lujan-v-defenders-of-wildlife/	https://www.courtlistener.com/api/rest/v3/clusters/112747/	1,992	1991-085	1	6	3	This case involves a challenge to a rule promulgated by the Secretary of the Interior interpreting § 7 of the Endangered 558 Species Act of 1973 (ESA), 87 Stat. 892, as amended, 16 U.S. C. § 1536, in such fashion as to render it applicable only to actions within the United States or on the high seas. The preliminary issue, and the only one we reach, is whether respondents here, plaintiffs below, have standing to seek judicial review of the rule. I The ESA, 87 Stat. 884, as amended, 16 U.S. C. § 1531 et seq., seeks to protest species of animals against threats to their continuing existence caused by man. See generally TVA v. Hill, 437 U.S. 153 (1978). The ESA instructs the Secretary of the Interior to promulgate by regulation a list of those species which are either endangered or threatened under enumerated criteria, and to define the critical habitat of these species. 16 U.S. C. §§ 1533, 1536. Section 7(a)(2) of the Act then provides, in pertinent part: "Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical." 16 U.S. C. § 1536(a)(2). In 1978, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), on behalf of the Secretary of the Interior and the Secretary of Commerce respectively, promulgated a joint regulation stating that the obligations imposed by § 7(a)(2) extend to actions taken in foreign nations. 43 Fed. Reg. 874 (1978). The next year, however, the Interior Department began to reexamine its position. Letter from Leo Kuliz, Solicitor, Department of the Interior, to Assistant Secretary, Fish and Wildlife and Parks, Aug. 8, 1979. A revised joint regulation, reinterpreting 559 § 7(a)(2) to require consultation only for actions taken in the United States or on the high seas, was proposed in 1983, 48 Fed. Reg. 29990, and promulgated in 1986, 51 Fed. Reg. 19926; 50 CFR 402.01 (1991). Shortly thereafter, respondents, organizations dedicated to wildlife conservation and other environmental causes, filed this action against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error as to the geographic scope of § 7(a)(2) and an injunction requiring the Secretary to promulgate a new regulation restoring the initial interpretation. The District Court granted the Secretary's motion to dismiss for lack of standing. Defenders of Wildlife v. Hodel, 658 F. Supp. 43, 47-48 (Minn. 1987). The Court of Appeals for the Eighth Circuit reversed by a divided vote. Defenders of Wildlife v. Hodel, 851 F.2d 1035 (1988). On remand, the Secretary moved for summary judgment on the standing issue, and respondents moved for summary judgment on the merits. The District Court denied the Secretary's motion, on the ground that the Eighth Circuit had already determined the standing question in this case; it granted respondents' merits motion, and ordered the Secretary to publish a revised regulation. Defenders of Wildlife v.Hodel, 707 F. Supp. 1082 (Minn. 1989). The Eighth Circuit affirmed. 911 F.2d 117 (1990). We granted certiorari, 500 U.S. 915 (1991). II While the Constitution of the United States divides all power conferred upon the Federal Government into "legislative Powers," Art. I, § 1, "[t]he executive Power," Art. II, § 1, and "[t]he judicial Power," Art. III, § 1, it does not attempt to define those terms. To be sure, it limits the jurisdiction of federal courts to "Cases" and "Controversies," but an executive inquiry can bear the name "case" (the Hoffa case) and a legislative dispute can bear the name "controversy" (the Smoot-Hawley controversy). Obviously, then, the Constitution's central mechanism of separation of powers depends 560 largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts. In The Federalist No. 48, Madison expressed the view that "[i]t is not infrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere," whereas "the executive power [is] restrained within a narrower compass and .. . more simple in its nature," and "the judiciary [is] described by landmarks still less uncertain." The Federalist No. 48, p. 256 (Carey and McClellan eds. 1990). One of those landmarks, setting apart the "Cases" and "Controversies" that are of the justiciable sort referred to in Article III" serv[ing] to identify those disputes which are appropriately resolved through the judicial process," Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)is the doctrine of standing. Though some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III. See, e. g., Allen v. Wright, 468 U.S. 737, 751 (1984). Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact"an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16 (1972);[1] and (b) "actual or imminent, not `conjectural' or `hypothetical,' " Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). Second, there must be a causal connection between the injury and the conduct complained ofthe injury has to be "fairly. . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court." Simon v. Eastern Ky. Welfare 561 Rights Organization, 426 U.S. 26, 41-42 (1976). Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Id., at 38, 43. The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990); Warth, supra, at 508. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i. e., with the manner and degree of evidence required at the successive stages of the litigation. See Lujan v. National Wildlife Federation, 497 U.S. 871, 883-889 (1990); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 114-115, and n. 31 (1979); Simon, supra, at 45, n. 25; Warth, supra, at 527, and n. 6 (Brennan, J., dissenting). At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we "presum[e] that general allegations embrace those specific facts that are necessary to support the claim." National Wildlife Federation, supra, at 889. In response to a summary judgment motion, however, the plaintiff can no longer rest on such "mere allegations," but must "set forth" by affidavit or other evidence "specific facts," Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be "supported adequately by the evidence adduced at trial." Gladstone, supra, at 115, n. 31. When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has 562 caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff's asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inactionand perhaps on the response of others as well. The existence of one or more of the essential elements of standing "depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict," ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989) (opinion of Kennedy, J.); see also Simon, supra, at 41-42; and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redress ability of injury. E. g., Warth, supra, at 505. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily "substantially more difficult" to establish. Allen, supra, at 758; Simon, supra, at 44-45; Warth, supra, at 505. III We think the Court of Appeals failed to apply the foregoing principles in denying the Secretary's motion for summary judgment. Respondents had not made the requisite demonstration of (at least) injury and redressability. A Respondents' claim to injury is that the lack of consultation with respect to certain funded activities abroad "increas[es] the rate of extinction of endangered and threatened species." Complaint ¶ 5, App. 13. Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of 563 standing. See, e. g., Sierra Club v. Morton, 405 U. S., at 734. "But the `injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured." Id., at 734-735. To survive the Secretary's summary judgment motion, respondents had to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities abroad, but also that one or more of respondents' members would thereby be "directly" affected apart from their "`special interest' in th[e] subject." Id., at 735, 739. See generally Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977). With respect to this aspect of the case, the Court of Appeals focused on the affidavits of two Defenders' members Joyce Kelly and Amy Skilbred. Ms. Kelly stated that she traveled to Egypt in 1986 and "observed the traditional habitat of the endangered nile crocodile there and intend[s] to do so again, and hope[s] to observe the crocodile directly," and that she "will suffer harm in fact as the result of [the] American . . . role . . . in overseeing the rehabilitation of the Aswan High Dam on the Nile . . . and [in] develop[ing] . . . Egypt's. . . Master Water Plan." App. 101. Ms. Skilbred averred that she traveled to Sri Lanka in 1981 and "observed th[e] habitat" of "endangered species such as the Asian elephant and the leopard" at what is now the site of the Mahaweli project funded by the Agency for International Development (AID), although she "was unable to see any of the endangered species"; "this development project," she continued, "will seriously reduce endangered, threatened, and endemic species habitat including areas that I visited . . . [, which] may severely shorten the future of these species"; that threat, she concluded, harmed her because she "intend[s] to return to Sri Lanka in the future and hope[s] to be more fortunate in spotting at least the endangered elephant and leopard." Id., at 145-146. When Ms. Skilbred was asked 564 at a subsequent deposition if and when she had any plans to return to Sri Lanka, she reiterated that "I intend to go back to Sri Lanka," but confessed that she had no current plans: "I don't know [when]. There is a civil war going on right now. I don't know. Not next year, I will say. In the future." Id., at 318. We shall assume for the sake of argument that these affidavits contain facts showing that certain agency-funded projects threaten listed speciesthough that is questionable. They plainly contain no facts, however, showing how damage to the species will produce "imminent" injury to Mses. Kelly and Skilbred. That the women "had visited" the areas of the projects before the projects commenced proves nothing. As we have said in a related context, "`Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.' " Lyons, 461 U. S., at 102 (quoting O'Shea v. Littleton, 414 U.S. 488, 495-496 (1974)). And the affiants' profession of an "inten[t]" to return to the places they had visited beforewhere they will presumably, this time, be deprived of the opportunity to observe animals of the endangered speciesis simply not enough. Such "some day" intentionswithout any description of concrete plans, or indeed even any specification of when the some day will bedo not support a finding of the "actual or imminent" injury that our cases require. See supra, at 560.[2] 565 Besides relying upon the Kelly and Skilbred affidavits, respondents propose a series of novel standing theories. The first, inelegantly styled "ecosystem nexus," proposes that any person who uses any part of a "contiguous ecosystem" adversely affected by a funded activity has standing even if the activity is located a great distance away. This approach, as the Court of Appeals correctly observed, is inconsistent with our opinion in National Wildlife Federation, which held that a plaintiff claiming injury from environmental damage 566 must use the area affected by the challenged activity and not an area roughly "in the vicinity" of it. 497 U.S., at 887-889; see also Sierra Club, 405 U. S., at 735. It makes no difference that the general-purpose section of the ESA states that the Act was intended in part "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," 16 U.S. C. § 1531(b). To say that the Act protects ecosystems is not to say that the Act creates (if it were possible) rights of action in persons who have not been injured in fact, that is, persons who use portions of an ecosystem not perceptibly affected by the unlawful action in question. Respondents' other theories are called, alas, the "animal nexus" approach, whereby anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing; and the "vocational nexus" approach, under which anyone with a professional interest in such animals can sue. Under these theories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in the Bronx Zoo, has standing to sue because the Director of the Agency for International Development (AID) did not consult with the Secretary regarding the AID-funded project in Sri Lanka. This is beyond all reason. Standing is not "an ingenious academic exercise in the conceivable," United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688 (1973), but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm. It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist. It is even plausiblethough it goes to the outermost limit of plausibilityto think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing such harm, since some animals that 567 might have been the subject of his interest will no longer exist, see Japan Whaling Assn. v. American Cetacean Society, 478 U.S. 221, 231, n. 4 (1986). It goes beyond the limit, however, and into pure speculation and fantasy, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection.[3] 568 B Besides failing to show injury, respondents failed to demonstrate redressability. Instead of attacking the separate decisions to fund particular projects allegedly causing them harm, respondents chose to challenge a more generalized level of Government action (rules regarding consultation), the invalidation of which would affect all overseas projects. This programmatic approach has obvious practical advantages, but also obvious difficulties insofar as proof of causation or redressability is concerned. As we have said in another context, "suits challenging, not specifically identifiable Government violations of law, but the particular programs agencies establish to carry out their legal obligations . . . [are], even when premised on allegations of several instances of violations of law, . . . rarely if ever appropriate for federalcourt adjudication." Allen, 468 U. S., at 759-760. The most obvious problem in the present case is redressability. Since the agencies funding the projects were not parties to the case, the District Court could accord relief only against the Secretary: He could be ordered to revise his regulation to require consultation for foreign projects. But this would not remedy respondents' alleged injury unless the funding agencies were bound by the Secretary's regulation, which is very much an open question. Whereas in other contexts the ESA is quite explicit as to the Secretary's controlling authority, see, e. g., 16 U.S. C. § 1533(a)(1) ("The Secretary shall" promulgate regulations determining endangered species); § 1535(d)(1) ("The Secretary is authorized to provide financial assistance to any State"), with respect to consultation the initiative, and hence arguably the initial responsibility for determining statutory necessity, lies with 569 the agencies, see § 1536(a)(2) ("Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any" funded action is not likely to jeopardize endangered or threatened species) (emphasis added). When the Secretary promulgated the regulation at issue here, he thought it was binding on the agencies, see 51 Fed. Reg. 19928 (1986). The Solicitor General, however, has repudiated that position here, and the agencies themselves apparently deny the Secretary's authority. (During the period when the Secretary took the view that § 7(a)(2) did apply abroad, AID and FWS engaged in a running controversy over whether consultation was required with respect to the Mahaweli project, AID insisting that consultation applied only to domestic actions.) Respondents assert that this legal uncertainty did not affect redressability (and hence standing) because the District Court itself could resolve the issue of the Secretary's authority as a necessary part of its standing inquiry. Assuming that it is appropriate to resolve an issue of law such as this in connection with a threshold standing inquiry, resolution by the District Court would not have remedied respondents' alleged injury anyway, because it would not have been binding upon the agencies. They were not parties to the suit, and there is no reason they should be obliged to honor an incidental legal determination the suit produced.[4] The 570 Court of Appeals tried to finesse this problem by simply proclaiming that "[w]e are satisfied that an injunction requiring the Secretary to publish [respondents' desired] regulatio[n]. . . would result in consultation." Defenders of Wildlife, 851 F. 2d, at 1042, 1043-1044. We do not know what would justify that confidence, particularly when the Justice Department (presumably after consultation with the agencies) has taken the position that the regulation is not binding.[5] The 571 short of the matter is that redress of the only injury in fact respondents complain of requires action (termination of funding until consultation) by the individual funding agencies; and any relief the District Court could have provided in this suit against the Secretary was not likely to produce that action. A further impediment to redressability is the fact that the agencies generally supply only a fraction of the funding for a foreign project. AID, for example, has provided less than 10% of the funding for the Mahaweli project. Respondents have produced nothing to indicate that the projects they have named will either be suspended, or do less harm to listed species, if that fraction is eliminated. As in Simon, 426 U. S., at 43-44, it is entirely conjectural whether the nonagency activity that affects respondents will be altered or affected by the agency activity they seek to achieve.[6] There is no standing. IV The Court of Appeals found that respondents had standing for an additional reason: because they had suffered a "procedural injury." The so-called "citizen-suit" provision of the ESA provides, in pertinent part, that "any person may commence 572 a civil suit on his own behalf (A) to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter." 16 U.S. C. § 1540(g). The court held that, because § 7(a)(2) requires interagency consultation, the citizen-suit provision creates a "procedural righ[t]" to consultation in all "persons"so that anyone can file suit in federal court to challenge the Secretary's (or presumably any other official's) failure to follow the assertedly correct consultative procedure, notwithstanding his or her inability to allege any discrete injury flowing from that failure. 911 F.2d, at 121-122. To understand the remarkable nature of this holding one must be clear about what it does not rest upon: This is not a case where plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs (e. g., the procedural requirement for a hearing prior to denial of their license application, or the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them).[7] Nor is it simply a case where concrete injury has been suffered by many persons, as in mass fraud or mass tort situations. Nor, finally, is it the 573 unusual case in which Congress has created a concrete private interest in the outcome of a suit against a private party for the Government's benefit, by providing a cash bounty for the victorious plaintiff. Rather, the court held that the injury-in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, selfcontained, noninstrumental "right" to have the Executive observe the procedures required by law. We reject this view.[8] We have consistently held that a plaintiff raising only a generally available grievance about governmentclaiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that 574 no more directly and tangibly benefits him than it does the public at largedoes not state an Article III case or controversy. For example, in Fairchild v. Hughes, 258 U.S. 126, 129-130 (1922), we dismissed a suit challenging the propriety of the process by which the Nineteenth Amendment was ratified. Justice Brandeis wrote for the Court: "[This is] not a case within the meaning of . . . Article III . . . . Plaintiff has [asserted] only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit . . . ." Ibid. In Massachusetts v. Mellon, 262 U.S. 447 (1923), we dismissed for lack of Article III standing a taxpayer suit challenging the propriety of certain federal expenditures. We said: "The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. . . . Here the parties plaintiff have no such case. . . . [T]heir complaint . . . is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess." Id., at 488-489. In Ex parte Lévitt, 302 U.S. 633 (1937), we dismissed a suit contending that Justice Black's appointment to this Court violated the Ineligibility Clause, Art. I, § 6, cl. 2. 575 "It is an established principle," we said, "that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public." 302 U.S., at 634. See also Doremus v. Board of Ed. of Hawthorne, 342 U.S. 429, 433 434 (1952) (dismissing taxpayer action on the basis of Mellon ). More recent cases are to the same effect. In United States v. Richardson, 418 U.S. 166 (1974), we dismissed for lack of standing a taxpayer suit challenging the Government's failure to disclose the expenditures of the Central Intelligence Agency, in alleged violation of the constitutional requirement, Art. I, § 9, cl. 7, that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." We held that such a suit rested upon an impermissible "generalized grievance," and was inconsistent with "the framework of Article III" because "the impact on [plaintiff] is plainly undifferentiated and `common to all members of the public.' " Richardson, supra, at 171, 176-177. And in Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974), we dismissed for the same reasons a citizen-taxpayer suit contending that it was a violation of the Incompatibility Clause, Art. I, § 6, cl. 2, for Members of Congress to hold commissions in the military Reserves. We said that the challenged action, "standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance. . . . We reaffirm Lévitt in holding that standing to sue may not be predicated upon an interest of th[is] kind . . . ." Schlesinger, supra, at 217, 220. Since Schlesinger we have on two occasions held that an injury amounting only to the alleged violation of a right to have the Government act in accordance with law was not judicially cognizable because 576 "`assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III without draining those requirements of meaning.' " Allen, 468 U. S., at 754; Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 483 (1982). And only two Terms ago, we rejected the notion that Article III permits a citizen suit to prevent a condemned criminal's execution on the basis of "`the public interest protections of the Eighth Amendment' "; once again, "[t]his allegation raise[d] only the `generalized interest of all citizens in constitutional governance' . . . and [was] an inadequate basis on which to grant . . . standing." Whitmore, 495 U. S., at 160. To be sure, our generalized-grievance cases have typically involved Government violation of procedures assertedly ordained by the Constitution rather than the Congress. But there is absolutely no basis for making the Article III inquiry turn on the source of the asserted right. Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branchone of the essential elements that identifies those "Cases" and "Controversies" that are the business of the courts rather than of the political branches. "The province of the court," as Chief Justice Marshall said in Marbury v. Madison, 1 Cranch 137, 170 (1803), "is, solely, to decide on the rights of individuals." Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive. The question presented here is whether the public interest in proper administration of the laws (specifically, in agencies' observance of a particular, statutorily prescribed procedure) can be converted into an individual right by a statute that denominates it as such, and 577 that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue. If the concrete injury requirement has the separation-ofpowers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an "individual right" vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to "take Care that the Laws be faithfully executed," Art. II, § 3. It would enable the courts, with the permission of Congress, "to assume a position of authority over the governmental acts of another and co-equal department," Massachusetts v. Mellon, 262 U. S., at 489, and to become "`virtually continuing monitors of the wisdom and soundness of Executive action.' " Allen, supra, at 760 (quoting Laird v. Tatum, 408 U.S. 1, 15 (1972)). We have always rejected that vision of our role: "When Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted. This permits the courts to participate in law enforcement entrusted to administrative bodies only to the extent necessary to protect justiciable individual rights against administrative action fairly beyond the granted powers. . . . This is very far from assuming that the courts are charged more than administrators or legislators with the protection of the rights of the people. Congress and the Executive supervise the acts of administrative agents. . . . But under Article III, Congress established courts to adjudicate cases and controversies as to claims of infringement of individual rights whether by unlawful action of private persons or by the exertion of unauthorized administrative power." Stark v. Wickard, 321 U.S. 288, 309-310 (1944) (footnote omitted). 578 "Individual rights," within the meaning of this passage, do not mean public rights that have been legislatively pronounced to belong to each individual who forms part of the public. See also Sierra Club, 405 U. S., at 740-741, n. 16. Nothing in this contradicts the principle that "[t]he . . . injury required by Art. III may exist solely by virtue of `statutes creating legal rights, the invasion of which creates standing.' " Warth, 422 U. S., at 500 (quoting Linda R. S. v. Richard D., 410 U.S. 614, 617, n. 3 (1973)). Both of the cases used by Linda R. S. as an illustration of that principle involved Congress' elevating to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law (namely, injury to an individual's personal interest in living in a racially integrated community, see Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 208-212 (1972), and injury to a company's interest in marketing its product free from competition, see Hardin v. Kentucky Utilities Co., 390 U.S. 1, 6 (1968)). As we said in Sierra Club, "[Statutory] broadening [of] the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury." 405 U.S., at 738. Whether or not the principle set forth in Warth can be extended beyond that distinction, it is clear that in suits against the Government, at least, the concrete injury requirement must remain. * * We hold that respondents lack standing to bring this action and that the Court of Appeals erred in denying the summary judgment motion filed by the United States. The opinion of the Court of Appeals is hereby reversed, and the cause is remanded for proceedings consistent with this opinion. It is so ordered. *579 Justice Kennedy, with whom Justice Souter joins, concurring in part and concurring in the judgment.	This case involves a challenge to a rule promulgated by the Secretary of the Interior interpreting 7 of the Endangered 558 Species Act of 1973 (ESA), as amended, 1 U.S. C. 3, in such fashion as to render it applicable only to actions within the United States or on the high seas. The preliminary issue, and the only one we reach, is whether respondents here, plaintiffs below, have standing to seek judicial review of the rule. I The ESA, as amended, 1 U.S. C. 31 et seq., seeks to protest species of animals against threats to their continuing existence caused by man. See generally The ESA instructs the Secretary of the Interior to promulgate by regulation a list of those species which are either endangered or threatened under enumerated criteria, and to define the critical habitat of these species. 1 U.S. C. 33, 3. Section 7(a)(2) of the Act then provides, in pertinent part: "Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical." 1 U.S. C. 3(a)(2). In 1978, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), on behalf of the Secretary of the Interior and the Secretary of Commerce respectively, promulgated a joint regulation stating that the obligations imposed by 7(a)(2) extend to actions taken in foreign nations. The next year, however, the Interior Department began to reexamine its position. Letter from Leo Kuliz, Solicitor, Department of the Interior, to Assistant Secretary, Fish and Wildlife and Parks, Aug. 8, 1979. A revised joint regulation, reinterpreting 559 7(a)(2) to require consultation only for actions taken in the United States or on the high seas, was proposed in 1983, and promulgated in 198, ; 50 CFR 402.01 Shortly thereafter, respondents, organizations dedicated to wildlife conservation and other environmental causes, filed this action against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error as to the geographic scope of 7(a)(2) and an injunction requiring the Secretary to promulgate a new regulation restoring the initial interpretation. The District Court granted the Secretary's motion to dismiss for lack of standing. Defenders of The Court of Appeals for the Eighth Circuit reversed by a divided vote. Defenders of On remand, the Secretary moved for summary judgment on the standing issue, and respondents moved for summary judgment on the merits. The District Court denied the Secretary's motion, on the ground that the Eighth Circuit had already determined the standing question in this case; it granted respondents' merits motion, and ordered the Secretary to publish a revised regulation. Defenders of Wildlife v.Hodel, The Eighth Circuit affirmed. We granted certiorari, II While the Constitution of the United States divides all power conferred upon the Federal Government into "legislative Powers," Art. I, 1, "[t]he executive Power," Art. II, 1, and "[t]he judicial Power," Art. III, 1, it does not attempt to define those terms. To be sure, it limits the jurisdiction of federal courts to "Cases" and "Controversies," but an executive inquiry can bear the name "case" (the Hoffa case) and a legislative dispute can bear the name "controversy" (the Smoot-Hawley controversy). Obviously, then, the Constitution's central mechanism of separation of powers depends 50 largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts. In The Federalist No. 48, Madison expressed the view that "[i]t is not infrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere," whereas "the executive power [is] restrained within a narrower compass and more simple in its nature," and "the judiciary [is] described by landmarks still less uncertain." The Federalist No. 48, p. 25 One of those landmarks, setting apart the "Cases" and "Controversies" that are of the justiciable sort referred to in Article III" serv[ing] to identify those disputes which are appropriately resolved through the judicial process," is the doctrine of standing. Though some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III. See, e. g., Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact"an invasion of a legally protected interest which is (a) concrete and particularized, see ; ; Sierra ;[1] and (b) "actual or imminent, not `conjectural' or `hypothetical,' " at ). Second, there must be a causal connection between the injury and the conduct complained ofthe injury has to be "fairly. trace[able] to the challenged action of the defendant, and not th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, ; at Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i. e., with the manner and degree of evidence required at the successive stages of the litigation. See ; ; ; and n. (Brennan, J., dissenting). At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we "presum[e] that general allegations embrace those specific facts that are necessary to support the claim." National Wildlife Federation, In response to a summary judgment motion, however, the plaintiff can no longer rest on such "mere allegations," but must "set forth" by affidavit or other evidence "specific facts," Fed. Rule Civ. Proc. 5(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be "supported adequately by the evidence adduced at trial." When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has 52 caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff's asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inactionand perhaps on the response of others as well. The existence of one or more of the essential elements of standing "depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict," ASARCO ; see also at ; and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redress ability of injury. E. g., Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily "substantially more difficult" to establish. ; ; III We think the Court of Appeals failed to apply the foregoing principles in denying the Secretary's motion for summary judgment. Respondents had not made the requisite demonstration of (at least) injury and redressability. A Respondents' claim to injury is that the lack of consultation with respect to certain funded activities abroad "increas[es] the rate of extinction of endangered and threatened species." Complaint ¶ 5, App. 13. Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of 53 standing. See, e. g., Sierra "But the `injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured." To survive the Secretary's summary judgment motion, respondents had to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities abroad, but also that one or more of respondents' members would thereby be "directly" affected apart from their "`special interest' in th[e] subject." See generally With respect to this aspect of the case, the Court of Appeals focused on the affidavits of two Defenders' members Joyce Kelly and Amy Skilbred. Ms. Kelly stated that she traveled to Egypt in 198 and "observed the traditional habitat of the endangered nile crocodile there and intend[s] to do so again, and hope[s] to observe the crocodile directly," and that she "will suffer harm in fact as the result of [the] American role in overseeing the rehabilitation of the Aswan High Dam on the Nile and [in] develop[ing] Egypt's. Master Water Plan." App. 101. Ms. Skilbred averred that she traveled to Sri Lanka in 1981 and "observed th[e] habitat" of "endangered species such as the Asian elephant and the leopard" at what is now the site of the Mahaweli project funded by the Agency for International Development (AID), although she "was unable to see any of the endangered species"; "this development project," she continued, "will seriously reduce endangered, threatened, and endemic species habitat including areas that I visited [, which] may severely shorten the future of these species"; that threat, she concluded, harmed her because she "intend[s] to return to Sri Lanka in the future and hope[s] to be more fortunate in spotting at least the endangered elephant and leopard." When Ms. Skilbred was asked 54 at a subsequent deposition if and when she had any plans to return to Sri Lanka, she reiterated that "I intend to go back to Sri Lanka," but confessed that she had no current plans: "I don't know [when]. There is a civil war going on right now. I don't know. Not next year, I will say. In the future." We shall assume for the sake of argument that these affidavits contain facts showing that certain agency-funded projects threaten listed speciesthough that is questionable. They plainly contain no facts, however, showing how damage to the species will produce "imminent" injury to Mses. Kelly and Skilbred. That the women "had visited" the areas of the projects before the projects commenced proves nothing. As we have said in a related context, "`Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief if unaccompanied by any continuing, present adverse effects.' " 41 U. S., at ). And the affiants' profession of an "inten[t]" to return to the places they had visited beforewhere they will presumably, this time, be deprived of the opportunity to observe animals of the endangered speciesis simply not enough. Such "some day" intentionswithout any description of concrete plans, or indeed even any specification of when the some day will bedo not support a finding of the "actual or imminent" injury that our cases require. See[2] 55 Besides relying upon the Kelly and Skilbred affidavits, respondents propose a series of novel standing theories. The first, inelegantly styled "ecosystem nexus," proposes that any person who uses any part of a "contiguous ecosystem" adversely affected by a funded activity has standing even if the activity is located a great distance away. This approach, as the Court of Appeals correctly observed, is inconsistent with our opinion in National Wildlife Federation, which held that a plaintiff claiming injury from environmental damage 5 must use the area affected by the challenged activity and not an area roughly "in the vicinity" of it. -889; see also Sierra It makes no difference that the general-purpose section of the ESA states that the Act was intended in part "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," 1 U.S. C. 31(b). To say that the Act protects ecosystems is not to say that the Act creates (if it were possible) rights of action in persons who have not been injured in fact, that is, persons who use portions of an ecosystem not perceptibly affected by the unlawful action in question. Respondents' other theories are called, alas, the "animal nexus" approach, whereby anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing; and the "vocational nexus" approach, under which anyone with a professional interest in such animals can sue. Under these theories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in the Bronx Zoo, has standing to sue because the Director of the Agency for International Development (AID) did not consult with the Secretary regarding the AID-funded project in Sri Lanka. This is beyond all reason. Standing is not "an ingenious academic exercise in the conceivable," United but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm. It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist. It is even plausiblethough it goes to the outermost limit of plausibilityto think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing such harm, since some animals that 57 might have been the subject of his interest will no longer exist, see Japan Whaling n. 4 It goes beyond the limit, however, and into pure speculation and fantasy, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection.[3] 58 B Besides failing to show injury, respondents failed to demonstrate redressability. Instead of attacking the separate decisions to fund particular projects allegedly causing them harm, respondents chose to challenge a more generalized level of Government action (rules regarding consultation), the invalidation of which would affect all overseas projects. This programmatic approach has obvious practical advantages, but also obvious difficulties insofar as proof of causation or redressability is concerned. As we have said in another context, "suits challenging, not specifically identifiable Government violations of law, but the particular programs agencies establish to carry out their legal obligations [are], even when premised on allegations of several instances of violations of law, rarely if ever appropriate for federalcourt adjudication." -70. The most obvious problem in the present case is redressability. Since the agencies funding the projects were not parties to the case, the District Court could accord relief only against the Secretary: He could be ordered to revise his regulation to require consultation for foreign projects. But this would not remedy respondents' alleged injury unless the funding agencies were bound by the Secretary's regulation, which is very much an open question. Whereas in other contexts the ESA is quite explicit as to the Secretary's controlling authority, see, e. g., 1 U.S. C. 33(a)(1) ("The Secretary shall" promulgate regulations determining endangered species); 35(d)(1) ("The Secretary is authorized to provide financial assistance to any State"), with respect to consultation the initiative, and hence arguably the initial responsibility for determining statutory necessity, lies with 59 the agencies, see 3(a)(2) ("Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any" funded action is not likely to jeopardize endangered or threatened species) (emphasis added). When the Secretary promulgated the regulation at issue here, he thought it was binding on the agencies, see The Solicitor General, however, has repudiated that position here, and the agencies themselves apparently deny the Secretary's authority. (During the period when the Secretary took the view that 7(a)(2) did apply abroad, AID and FWS engaged in a running controversy over whether consultation was required with respect to the Mahaweli project, AID insisting that consultation applied only to domestic actions.) Respondents assert that this legal uncertainty did not affect redressability (and hence standing) because the District Court itself could resolve the issue of the Secretary's authority as a necessary part of its standing inquiry. Assuming that it is appropriate to resolve an issue of law such as this in connection with a threshold standing inquiry, resolution by the District Court would not have remedied respondents' alleged injury anyway, because it would not have been binding upon the agencies. They were not parties to the suit, and there is no reason they should be obliged to honor an incidental legal determination the suit produced.[4] The 570 Court of Appeals tried to finesse this problem by simply proclaiming that "[w]e are satisfied that an injunction requiring the Secretary to publish [respondents' desired] regulatio[n]. would result in consultation." Defenders of Wildlife, 851 F. 2d, at 1042, 1043-1044. We do not know what would justify that confidence, particularly when the Justice Department (presumably after consultation with the agencies) has taken the position that the regulation is not binding.[5] The 571 short of the matter is that redress of the only injury in fact respondents complain of requires action (termination of funding until consultation) by the individual funding agencies; and any relief the District Court could have provided in this suit against the Secretary was not likely to produce that action. A further impediment to redressability is the fact that the agencies generally supply only a fraction of the funding for a foreign project. AID, for example, has provided less than 10% of the funding for the Mahaweli project. Respondents have produced nothing to indicate that the projects they have named will either be suspended, or do less harm to listed species, if that fraction is eliminated. As in -44, it is entirely conjectural whether the nonagency activity that affects respondents will be altered or affected by the agency activity they seek to achieve.[] There is no standing. IV The Court of Appeals found that respondents had standing for an additional reason: because they had suffered a "procedural injury." The so-called "citizen-suit" provision of the ESA provides, in pertinent part, that "any person may commence 572 a civil suit on his own behalf (A) to enjoin any person, including the United States and any other governmental instrumentality or agency who is alleged to be in violation of any provision of this chapter." 1 U.S. C. 40(g). The court held that, because 7(a)(2) requires interagency consultation, the citizen-suit provision creates a "procedural righ[t]" to consultation in all "persons"so that anyone can file suit in federal court to challenge the Secretary's (or presumably any other official's) failure to follow the assertedly correct consultative procedure, notwithstanding his or her inability to allege any discrete injury flowing from that failure. -122. To understand the remarkable nature of this holding one must be clear about what it does not rest upon: This is not a case where plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs (e. g., the procedural requirement for a hearing prior to denial of their license application, or the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them).[7] Nor is it simply a case where concrete injury has been suffered by many persons, as in mass fraud or mass tort situations. Nor, finally, is it the 573 unusual case in which Congress has created a concrete private interest in the outcome of a suit against a private party for the Government's benefit, by providing a cash bounty for the victorious plaintiff. Rather, the court held that the injury-in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, selfcontained, noninstrumental "right" to have the Executive observe the procedures required by law. We reject this view.[8] We have consistently held that a plaintiff raising only a generally available grievance about governmentclaiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that 574 no more directly and tangibly benefits him than it does the public at largedoes not state an Article III case or controversy. For example, in we dismissed a suit challenging the propriety of the process by which the Nineteenth Amendment was ratified. Justice Brandeis wrote for the Court: "[This is] not a case within the meaning of Article III Plaintiff has [asserted] only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit" In we dismissed for lack of Article III standing a taxpayer suit challenging the propriety of certain federal expenditures. We said: "The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. Here the parties plaintiff have no such case. [T]heir complaint is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess." In Ex parte Lévitt, we dismissed a suit contending that Justice Black's appointment to this Court violated the Ineligibility Clause, Art. I, cl. 2. 575 "It is an established principle," we said, "that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public." See also More recent cases are to the same effect. In United we dismissed for lack of standing a taxpayer suit challenging the Government's failure to disclose the expenditures of the Central Intelligence Agency, in alleged violation of the constitutional requirement, Art. I, 9, cl. 7, that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." We held that such a suit rested upon an impermissible "generalized grievance," and was inconsistent with "the framework of Article III" because "the impact on [plaintiff] is plainly undifferentiated and `common to all members of the public.' " Richardson, And in we dismissed for the same reasons a citizen-taxpayer suit contending that it was a violation of the Incompatibility Clause, Art. I, cl. 2, for Members of Congress to hold commissions in the military Reserves. We said that the challenged action, "standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance. We reaffirm Lévitt in holding that standing to sue may not be predicated upon an interest of th[is] kind" Schlesinger, Since Schlesinger we have on two occasions held that an injury amounting only to the alleged violation of a right to have the Government act in accordance with law was not judicially cognizable because 57 "`assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III without draining those requirements of meaning.' " ; Valley Forge Christian And only two Terms ago, we rejected the notion that Article III permits a citizen suit to prevent a condemned criminal's execution on the basis of "`the public interest protections of the Eighth Amendment' "; once again, "[t]his allegation raise[d] only the `generalized interest of all citizens in constitutional governance' and [was] an inadequate basis on which to grant standing." To be sure, our generalized-grievance cases have typically involved Government violation of procedures assertedly ordained by the Constitution rather than the Congress. But there is absolutely no basis for making the Article III inquiry turn on the source of the asserted right. Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branchone of the essential elements that identifies those "Cases" and "Controversies" that are the business of the courts rather than of the political branches. "The province of the court," as Chief Justice Marshall said in "is, solely, to decide on the rights of individuals." Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive. The question presented here is whether the public interest in proper administration of the laws (specifically, in agencies' observance of a particular, statutorily prescribed procedure) can be converted into an individual right by a statute that denominates it as such, and 577 that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue. If the concrete injury requirement has the separation-ofpowers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an "individual right" vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to "take Care that the Laws be faithfully executed," Art. II, 3. It would enable the courts, with the permission of Congress, "to assume a position of authority over the governmental acts of another and co-equal department," and to become "`virtually continuing monitors of the wisdom and soundness of Executive action.' " ). We have always rejected that vision of our role: "When Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted. This permits the courts to participate in law enforcement entrusted to administrative bodies only to the extent necessary to protect justiciable individual rights against administrative action fairly beyond the granted powers. This is very far from assuming that the courts are charged more than administrators or legislators with the protection of the rights of the people. Congress and the Executive supervise the acts of administrative agents. But under Article III, Congress established courts to adjudicate cases and controversies as to claims of infringement of individual rights whether by unlawful action of private persons or by the exertion of unauthorized administrative power." 578 "Individual rights," within the meaning of this passage, do not mean public rights that have been legislatively pronounced to belong to each individual who forms part of the public. See also Sierra 405 U. S., at Nothing in this contradicts the principle that "[t]he injury required by Art. III may exist solely by virtue of `statutes creating legal rights, the invasion of which creates standing.' " ). Both of the cases used by Linda R. S. as an illustration of that principle involved Congress' elevating to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law and injury to a company's interest in marketing its product free from competition, see ). As we said in Sierra "[Statutory] broadening [of] the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury." Whether or not the principle set forth in can be extended beyond that distinction, it is clear that in suits against the Government, at least, the concrete injury requirement must remain. * * * We hold that respondents lack standing to bring this action and that the Court of Appeals erred in denying the summary judgment motion filed by the United States. The opinion of the Court of Appeals is hereby reversed, and the cause is remanded for proceedings consistent with this opinion. It is so ordered. *579 Justice Kennedy, with whom Justice Souter joins, concurring in part and concurring in the judgment.
Justice Stevens	dissenting	false	Polar Tankers, Inc. v. City of Valdez	2009-06-15T00:00:00	null	https://www.courtlistener.com/opinion/145862/polar-tankers-inc-v-city-of-valdez/	https://www.courtlistener.com/api/rest/v3/clusters/145862/	2,009	2008-069	1	7	2	The Tonnage Clause prohibits the States and their political subdivisions from charging ships for the privilege of using their ports. Because this case does not involve such a charge, I respectfully dissent. I The Tonnage Clause commands that “No State shall, without the Consent of Congress, lay any Duty of Ton nage.” U. S. Const., Art. I, §10, cl. 3. As the Court asserts, the purpose of the Clause is to prevent States with conven ient ports from abusing the privileges their natural posi tion affords. See ante, at 3–4. Thus, the pertinent inquiry in determining whether an exaction violates the Clause’s prohibitions is whether the charge is “ ‘in its essence a contribution claimed for the privilege of arriving and departing from a port.’ ” Transportation Co. v. Wheeling, 99 U.S. 273, 283–284 (1879) (quoting Cannon v. New Orleans, 20 Wall. 577, 581 (1874)); see Clyde Mallory Lines v. Alabama ex rel. State Docks Comm’n, 296 U.S. 261, 265–266 (1935). In applying that principle, we have been cognizant of its limits. By its terms, the Tonnage Clause prohibits States from imposing a duty on ships based on their internal cubic capacity, see id., at 265, and it similarly prohibits charges 2 POLAR TANKERS, INC. v. CITY OF VALDEZ STEVENS, J., dissenting that “effect the same purpose” as a duty of tonnage—for instance, by imposing a duty based “on the number of masts, or of mariners, the size and power of the steam engine, or the number of passengers which she carries,” Passenger Cases, 7 How. 283, 458–459 (1849) (opinion of Grier, J.). By contrast, charges levied for other purposes are outside the Clause’s reach. This Court has often ap proved charges for services rendered to ships to ensure their safe and convenient use of a port. See Clyde Mallory, 296 U. S., at 266–267. And the federal interest in protect ing access to the ports generally does not prevent States from charging shipowners those taxes and fees that the States are also authorized to levy on other property. See Wiggins Ferry Co. v. East St. Louis, 107 U.S. 365, 375, 376 (1883) (upholding a “license tax” “laid upon the busi ness of keeping a ferry”); Wheeling, 99 U. S., at 279 (up holding a property tax on ships). More than a century ago, we noted that it was “too well settled to admit of question that taxes levied by a State, upon ships or vessels owned by the citizens of the State, as property, based on a valuation of the same as property, to the extent of such ownership, are not within the prohibi tion of the Constitution.” Ibid. Just as “[d]raymen may be compelled to pay a license tax on every dray owned by them, hackmen on every hack, [and] tavernkeepers on their taverns in proportion to the number of the rooms which they keep for the accommodation of guests,” so too can a State charge the operator of a ferry a “tax upon the boats which he employs.” Wiggins Ferry, 107 U. S., at 375. “[V]essels of all kinds are liable to taxation as property in the same manner as other personal property owned by citizens of the State.” Wheeling, 99 U. S., at 284; State Tonnage Tax Cases, 12 Wall. 204, 212–213 (1871). From Wheeling and the State Tonnage Tax Cases, two principles emerge regarding the circumstances under which States may levy property taxes on ships. First, the Cite as: 557 U. S. ____ (2009) 3 STEVENS, J., dissenting State seeking to levy the tax must show that the ship has sufficient contacts with the jurisdiction to establish a tax situs there. In our earlier cases, the existence of the situs was determined by the citizenship of the ship’s owner, see Wheeling, 99 U. S., at 279; State Tonnage Tax Cases, 12 Wall., at 213, but a tax situs can also be created by a property’s substantial contacts with a jurisdiction.1 The requirement of a tax situs serves to distinguish property taxes from fees charged for the privilege of entering a port, which the Court has consistently found to violate the prohibition against duties of tonnage. See, e.g., Cannon, 20 Wall., at 581 (holding unconstitutional “a tax upon every vessel which stops” in the city’s jurisdictional wa ters); Steamship Co. v. Portwardens, 6 Wall. 31, 33 (1867) (invalidating a tax imposed “upon every ship entering the port” and “collected upon every entry”). Our cases also require that property taxes on ships, as with other property, be calculated based on the ship’s —————— 1 Previously, courts followed the common-law “home port” doctrine, pursuant to which a ship could be taxed only by the State in which its owner was domiciled. See Pullman’s Palace Car Co. v. Pennsylvania, 141 U.S. 18, 23–24 (1891). That doctrine has since “yielded to a rule of fair apportionment among the States,” permitting any jurisdiction with which a ship has had sufficient contacts to establish a tax situs to levy a property tax on the ship in proportion to the ship’s contacts with the jurisdiction. See Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 442–443 (1979); see also Standard Oil Co. v. Peck, 342 U.S. 382, 383 (1952). We have roundly rejected the doctrine in cases involving ships moving in interstate operations along the inland waters. See ibid. And in the context of ocean-going ships, we have referred to the doctrine as “ ‘anachronistic’ ” and all but “ ‘abandoned,’ ” noting that “to rehabilitate the ‘home port doctrine’ as a tool of Commerce Clause analysis would be somewhat odd.” Japan Line, 441 U. S., at 443. In light of these developments, it is odd indeed that THE CHIEF JUSTICE endeavors to distinguish Transportation Co. v. Wheeling, 99 U.S. 273 (1879), and the State Tonnage Tax Cases, 12 Wall. 204 (1871), as “apply[ing] only to taxation of property owned by citizens of the State.” See ante, at 2 (opinion concurring in part and concurring in judgment). 4 POLAR TANKERS, INC. v. CITY OF VALDEZ STEVENS, J., dissenting value. When a State levies a property tax on ships, the prohibition of the Tonnage Clause comes into play only if the ships are “not taxed in the same manner as the other property of the citizens, or where the tax is imposed upon the vessel as an instrument of commerce, without refer ence to the value as property.” Wheeling, 99 U. S., at 284. Although the meaning of Wheeling’s “same manner” lan guage is not immediately apparent, the remainder of the opinion emphasizes the importance of the method by which the tax on the petitioner’s ships was calculated— i.e., “based on a valuation of the same as property”— rather than the city’s taxation of other property in the jurisdiction. Id., at 279; see id., at 284. Our decision in the State Tonnage Tax Cases is to the same effect, as we held that taxes levied on ships “as property, based on a valuation of the same as property, are not within the prohibition of the Constitution,” but if States tax ships “by a tonnage duty, or indirectly by im posing the tax upon the master or crew, they assume a jurisdiction which they do not possess.” 12 Wall., at 213, 214 (emphasis in original). Indeed, each of the taxes challenged in that case was invalidated because it was “levied on the steamboats wholly irrespective of the value of the vessels as property, and solely and exclusively on the basis of their cubical contents.” Id., at 217; see id., at 224 (holding the tax unconstitutional because “the amount of the tax depends upon the carrying capacity of the steamboat and not upon her value as property”).2 Thus, in —————— 2 The Court seems to conflate these methods of calculating taxes on ships, as it asserts that “a tax on the value of such vessels is closely correlated with cargo capacity” and concludes that the tax in this case “depends on a factor related to tonnage.” Ante, at 7; see also ante, at 1 (opinion of ROBERTS, C. J.). This is contrary to our longstanding recog nition that a ship’s capacity is not a proxy for its value: “[T]he experi ence of every one shows that a small steamer, new and well built, may be of much greater value than a large one, badly built or in need of Cite as: 557 U. S. ____ (2009) 5 STEVENS, J., dissenting both Wheeling and the State Tonnage Tax Cases, the method by which the challenged tax was calculated was essential to the Court’s determination of its validity. The tax in this case has both of the critical characteris tics of a legitimate property tax. It is undisputed that petitioner’s ships “are taxed based on their value, and only those [ships] that have acquired a taxable situs in Valdez are taxed.” 182 P.3d 614, 622 (Alaska 2008). Accord ingly, I would uphold the Alaska Supreme Court’s decision sustaining the tax against petitioner’s Tonnage Clause challenge. The plurality reaches the opposite conclusion because it reads Wheeling’s “same manner” language to impose a different limitation on the States’ power to tax ships. According to the plurality, “in order to fund services by taxing ships, a State must also impose similar taxes upon other businesses.” Ante, at 9. As discussed above, Wheel ing and the State Tonnage Cases are better read to require that property taxes on ships be assessed based on the value of the ship rather than its tonnage. But even if the “same manner” requirement did not clearly refer to the method of calculating the tax, the phrase could not bear the weight the plurality places on it. And there is no other support in our cases or in the text of the Tonnage Clause for a rule that conditions a State’s exercise of its admitted authority to levy property taxes on ships upon its decision also to tax other property within its jurisdiction. Under the plurality’s reading, the same tax could be a “Duty of Tonnage” in one instance and not in another depending on taxing decisions wholly outside the Clause’s reach. Far from being compelled by our earlier cases, this rule is in tension with our decisions noting the substantial flexibility States must be afforded in making taxing deci sions and cautioning courts not to “subject the essential —————— extensive repairs.” State Tonnage Tax Cases, 12 Wall., at 224. 6 POLAR TANKERS, INC. v. CITY OF VALDEZ STEVENS, J., dissenting taxing power of the State to an intolerable supervision.” Ohio Oil Co. v. Conway, 281 U.S. 146, 159 (1930). That tension is compounded by the inevitable difficulty States will have in navigating the new rule, as the plurality does not suggest at what point a State can be satisfied that it has taxed enough other property that it may also tax ships without violating the Clause’s prohibitions. In support of its understanding of the “same manner” requirement, the plurality asserts that the rule “helps to assure that a value-related property tax differs signifi cantly from a graduated tax on a ship’s capacity and that the former is not simply a redesignation of the latter.” Ante, at 9. But our cases provide such assurance without resort to the plurality’s strained reading. Because States and their political subdivisions only have authority to tax property that has established a tax situs in the jurisdic tion, they cannot levy such taxes on ships merely for the privilege of entering or leaving the port; much more sub stantial contact with the jurisdiction is required. See Valdez Municipal Code §3.12.020(C) (2008); Central R. Co. of Pa. v. Pennsylvania, 370 U.S. 607, 614–615 (1962). And it is that contact, rather than entry into the port, that provides the basis for taxing the ships. The tax situs requirement thus ensures that a State cannot avoid the proscriptions of the Tonnage Clause by redesignating a duty charged for the privilege of entering the port as an ad valorem tax. The facts of this case illustrate the point. Most of peti tioner’s ships spend 40-to-50 days per year in the Port of Valdez. See App. 32–45. “[A]s a group the tankers form a continuous presence in the city.” 182 P. 3d, at 623. The ships’ prolonged physical presence and extensive commer cial activities in the city have a substantial impact on the city’s resources. On average, the ships’ presence adds 550 people to the population of Valdez, increasing the city’s total population by 10%. Those people, as well as the Cite as: 557 U. S. ____ (2009) 7 STEVENS, J., dissenting ships themselves, require numerous public services, in cluding harbor facilities, roads, bridges, water supply, and fire and police protection. Ibid. As the Alaska Supreme Court concluded, the challenged tax is therefore a legiti mate property tax levied to support the ships’ use of the city’s services. See ibid. II Even if the Tonnage Clause were properly understood to permit a jurisdiction to levy a tax on ships only when other property in the jurisdiction is also taxed, I would uphold the challenged tax. Although the tax applies only to ships, see Valdez Municipal Code §3.12.020, other property in the city is also subject to taxation. First, §3.12.022 imposes a value-based property tax on trailers, mobile homes, and recreational vehicles that are affixed to a site and connected to utilities. The plurality makes much of the requirement that the property be “ ‘affixed’ ” to a particular site, concluding that “Valdez in fact taxes those vehicles only when they constitute a form, not of personal property, but of real property.” Ante, at 10. But the taxability of property pursuant to §3.12.022 is determined in much the same way as the taxability of ships. “A trailer or mobile home is conclusively presumed to be affixed to the land” and may therefore be taxed if “it has remained at a fixed site for more than ninety days.” §3.12.022(C). Similarly, a ship owner can establish a tax situs in Valdez and thus be subject to taxation if it is “kept or used within the city for any ninety days or more.” §3.12.020(C)(2)(c).3 In both cases, the provision serves to impose a tax on property that has developed substantial contacts with the city. The plurality is thus wrong to —————— 3A ship can also establish a tax situs in Valdez if it is usually kept or used within the city, travels to or within the city along regular routes, or is necessary to the conduct of substantial business in the city. §3.12.020(C)(2). 8 POLAR TANKERS, INC. v. CITY OF VALDEZ STEVENS, J., dissenting conclude that ships have been singled out for taxation. Valdez also “levie[s] a tax” on all property taxable under Alaska Statutes Chapter 43.56 at the same rate that applies to other property taxed by the city. Valdez Mu nicipal Code §3.28.010.4 The tax is imposed on property used “primarily in the exploration for, production of, or pipeline transportation of gas or unrefined oil,” including machinery, equipment, pumping stations, powerplants, aircraft and motor vehicles, and docks and other port facilities. See Alaska Stat. §§43.56.010, 43.56.210(5)(A) (2008). For several reasons, this tax is more significant than the plurality acknowledges. First, contrary to the plurality’s view, the tax appears to be a municipal tax. Valdez Municipal Code §3.28.010 states that the tax “is hereby levied” on “property taxable under Alaska Statutes Chapter 43.56,” which in turn states that “[a] municipality may levy” such taxes, §43.56.010(b). The terms of these provisions indicate that the city has exercised its express authority to levy such taxes. Given the myriad types of property taxable under those provisions and the require ment of Valdez Municipal Code §3.28.010 that the prop erty be taxed “at the rate of taxation that applies to other property taxed by the city,” it seems clear that petitioner’s ships are taxed in the “same manner” as other property even as the plurality uses that term. My view of the case would be the same even if the tax on property used in oil production were imposed by the State itself, as the plurality assumes. Whether the oil production tax and the challenged tax are levied by the same unit of government has no relevance to the question whether the latter violates the Constitution. The restric tion imposed by the Tonnage Clause is a command to the —————— 4 As the plurality notes, ante, at 10–11, Valdez did not raise this issue in state court, and the parties have provided only limited briefing on the issue. Cite as: 557 U. S. ____ (2009) 9 STEVENS, J., dissenting States limiting their inherent taxing authority as sover eigns. The States’ political subdivisions have no such inherent power and can levy taxes only to the extent authorized by the State. See 16 E. McQuillin, Law of Municipal Corporations §44.05, pp. 19–24 (rev. 3d ed. 2003); see also Wiggins Ferry, 107 U. S., at 375 (noting “[t]he power of [a State] to authorize any city within her limits to impose a license tax” on ferries). Indeed, this aspect of the relationship between States and their politi cal subdivisions is reflected in Alaska Stat. §43.56.010(b), which authorizes municipalities to levy certain taxes and prevents them from exempting particular property from taxation. Because the city’s power to levy taxes derives from the State, whether the city or the State levies the tax on oil-production property is constitutionally irrelevant. Finally, it bears mention that the result in this particu lar case does nothing to further the interests the Tonnage Clause was intended to protect. As the Court acknowl edges, ante, at 4, the central purpose of the Clause is “to prevent the seaboard States, possessed of important ports of entry, from levying taxes on goods flowing through their ports to inland States,” Youngstown Sheet & Tube Co. v. Bowers, 358 U.S. 534, 556 (1959) (Frankfurter, J., dis senting in part). Port Valdez is at the southern terminus of the Trans Alaska Pipeline System, which carries oil extracted from Alaska’s North Slope to Port Valdez where it is loaded onto oil tankers belonging to petitioner and others for transport to refineries in other States. Taxes imposed on ships exporting that oil have the same effect on commerce in oil as do taxes on oil-production property or the oil itself, and Alaska’s authority to impose taxes on oil and oil-production property is undisputed. From an economic or political point of view, there is no difference between Alaska’s geographical control over the area in which the oil is produced and the port from which it is exported. Accordingly, no federal interest is served by 10 POLAR TANKERS, INC. v. CITY OF VALDEZ STEVENS, J., dissenting prohibiting Alaska or its political subdivisions from taxing the oil-bearing ships that are continually present in the State’s ports. III The Tonnage Clause permits a State to levy a property tax on ships whether or not it taxes other property. Were that not the case, the challenged tax would still be permis sible because Valdez also taxes mobile homes, trailers, and a wide variety of property used in producing oil. Because the tax in my view does not run afoul of the prohibitions of the Tonnage Clause, I respectfully dissent	The Tonnage Clause prohibits the States and their political subdivisions from charging ships for the privilege of using their ports. Because this case does not involve such a charge, I respectfully dissent. I The Tonnage Clause commands that “No State shall, without the Consent of Congress, lay any Duty of Ton nage.” U. S. Const., Art. I, cl. 3. As the Court asserts, the purpose of the Clause is to prevent States with conven ient ports from abusing the privileges their natural posi tion affords. See ante, at 3–4. Thus, the pertinent inquiry in determining whether an exaction violates the Clause’s prohibitions is whether the charge is “ ‘in its essence a contribution claimed for the privilege of arriving and departing from a port.’ ” Transportation ); see Clyde Mallory s v. Alabama ex rel. State Docks Comm’n, 296 U.S. 261, 265–266 (1935). In applying that principle, we have been cognizant of its limits. By its terms, the Tonnage Clause prohibits States from imposing a duty on ships based on their internal cubic capacity, see and it similarly prohibits charges 2 POLAR TANKERS, INC. v. CITY OF VALDEZ STEVENS, J., dissenting that “effect the same purpose” as a duty of tonnage—for instance, by imposing a duty based “on the number of masts, or of mariners, the size and power of the steam engine, or the number of passengers which she carries,” Passenger (opinion of Grier, J.). By contrast, charges levied for other purposes are outside the Clause’s reach. This Court has often ap proved charges for services rendered to ships to ensure their safe and convenient use of a port. See Clyde Mallory, –267. And the federal interest in protect ing access to the ports generally does not prevent States from charging shipowners those taxes and fees that the States are also authorized to levy on other property. See Wiggins 376 (1883) (upholding a “license tax” “laid upon the busi ness of keeping a ferry”); (up holding a property tax on ships). More than a century ago, we noted that it was “too well settled to admit of question that taxes levied by a State, upon ships or vessels owned by the citizens of the State, as property, based on a valuation of the same as property, to the extent of such ownership, are not within the prohibi tion of the Constitution.” Just as “[d]raymen may be compelled to pay a license tax on every dray owned by them, hackmen on every hack, [and] tavernkeepers on their taverns in proportion to the number of the rooms which they keep for the accommodation of guests,” so too can a State charge the operator of a ferry a “tax upon the boats which he employs.” Wiggins 107 U. S., at “[V]essels of all kinds are liable to taxation as property in the same manner as other personal property owned by citizens of the State.” ; State Tonnage Tax From and the State Tonnage Tax two principles emerge regarding the circumstances under which States may levy property taxes on ships. First, the Cite as: 557 U. S. (2009) 3 STEVENS, J., dissenting State seeking to levy the tax must show that the ship has sufficient contacts with the jurisdiction to establish a tax situs there. In our earlier cases, the existence of the situs was determined by the citizenship of the ship’s owner, see ; State Tonnage Tax 12 Wall., at 213, but a tax situs can also be created by a property’s substantial contacts with a jurisdiction.1 The requirement of a tax situs serves to distinguish property taxes from fees charged for the privilege of entering a port, which the Court has consistently found to violate the prohibition against duties of tonnage. See, e.g., Cannon, 20 Wall., at (holding unconstitutional “a tax upon every vessel which stops” in the city’s jurisdictional wa ters); Steamship (invalidating a tax imposed “upon every ship entering the port” and “collected upon every entry”). Our cases also require that property taxes on ships, as with other property, be calculated based on the ship’s —————— 1 Previously, courts followed the common-law “home port” doctrine, pursuant to which a ship could be taxed only by the State in which its owner was domiciled. See Pullman’s Palace Car That doctrine has since “yielded to a rule of fair apportionment among the States,” permitting any jurisdiction with which a ship has had sufficient contacts to establish a tax situs to levy a property tax on the ship in proportion to the ship’s contacts with the jurisdiction. See Japan Ltd. v. County of Los Angeles, 441 U.S. 434, 442–443 (1979); see also Standard Oil 383 (1952). We have roundly rejected the doctrine in cases involving ships moving in interstate operations along the inland waters. See And in the context of ocean-going ships, we have referred to the doctrine as “ ‘anachronistic’ ” and all but “ ‘abandoned,’ ” noting that “to rehabilitate the ‘home port doctrine’ as a tool of Commerce Clause analysis would be somewhat odd.” Japan In light of these developments, it is odd indeed that THE CHIEF JUSTICE endeavors to distinguish Transportation Co. v. and the State Tonnage Tax as “apply[ing] only to taxation of property owned by citizens of the State.” See ante, at 2 (opinion concurring in part and concurring in judgment). 4 POLAR TANKERS, INC. v. CITY OF VALDEZ STEVENS, J., dissenting value. When a State levies a property tax on ships, the prohibition of the Tonnage Clause comes into play only if the ships are “not taxed in the same manner as the other property of the citizens, or where the tax is imposed upon the vessel as an instrument of commerce, without refer ence to the value as property.” Although the meaning of ’s “same manner” lan guage is not immediately apparent, the remainder of the opinion emphasizes the importance of the method by which the tax on the petitioner’s ships was calculated— i.e., “based on a valuation of the same as property”— rather than the city’s taxation of other property in the jurisdiction. ; see Our decision in the State Tonnage Tax is to the same effect, as we held that taxes levied on ships “as property, based on a valuation of the same as property, are not within the prohibition of the Constitution,” but if States tax ships “by a tonnage duty, or indirectly by im posing the tax upon the master or crew, they assume a jurisdiction which they do not possess.” 214 (emphasis in original). Indeed, each of the taxes challenged in that case was invalidated because it was “levied on the steamboats wholly irrespective of the value of the vessels as property, and solely and exclusively on the basis of their cubical contents.” ; see at 224 (holding the tax unconstitutional because “the amount of the tax depends upon the carrying capacity of the steamboat and not upon her value as property”).2 Thus, in —————— 2 The Court seems to conflate these methods of calculating taxes on ships, as it asserts that “a tax on the value of such vessels is closely correlated with cargo capacity” and concludes that the tax in this case “depends on a factor related to tonnage.” Ante, at 7; see also ante, at 1 (opinion of ROBERTS, C. J.). This is contrary to our longstanding recog nition that a ship’s capacity is not a proxy for its value: “[T]he experi ence of every one shows that a small steamer, new and well built, may be of much greater value than a large one, badly built or in need of Cite as: 557 U. S. (2009) 5 STEVENS, J., dissenting both and the State Tonnage Tax the method by which the challenged tax was calculated was essential to the Court’s determination of its validity. The tax in this case has both of the critical characteris tics of a legitimate property tax. It is undisputed that petitioner’s ships “are taxed based on their value, and only those [ships] that have acquired a taxable situs in Valdez are taxed.” Accord ingly, I would uphold the Alaska Supreme Court’s decision sustaining the tax against petitioner’s Tonnage Clause challenge. The plurality reaches the opposite conclusion because it reads ’s “same manner” language to impose a different limitation on the States’ power to tax ships. According to the plurality, “in order to fund services by taxing ships, a State must also impose similar taxes upon other businesses.” Ante, at 9. As discussed above, Wheel ing and the State Tonnage are better read to require that property taxes on ships be assessed based on the value of the ship rather than its tonnage. But even if the “same manner” requirement did not clearly refer to the method of calculating the tax, the phrase could not bear the weight the plurality places on it. And there is no other support in our cases or in the text of the Tonnage Clause for a rule that conditions a State’s exercise of its admitted authority to levy property taxes on ships upon its decision also to tax other property within its jurisdiction. Under the plurality’s reading, the same tax could be a “Duty of Tonnage” in one instance and not in another depending on taxing decisions wholly outside the Clause’s reach. Far from being compelled by our earlier cases, this rule is in tension with our decisions noting the substantial flexibility States must be afforded in making taxing deci sions and cautioning courts not to “subject the essential —————— extensive repairs.” State Tonnage Tax 6 POLAR TANKERS, INC. v. CITY OF VALDEZ STEVENS, J., dissenting taxing power of the State to an intolerable supervision.” Ohio Oil That tension is compounded by the inevitable difficulty States will have in navigating the new rule, as the plurality does not suggest at what point a State can be satisfied that it has taxed enough other property that it may also tax ships without violating the Clause’s prohibitions. In support of its understanding of the “same manner” requirement, the plurality asserts that the rule “helps to assure that a value-related property tax differs signifi cantly from a graduated tax on a ship’s capacity and that the former is not simply a redesignation of the latter.” Ante, at 9. But our cases provide such assurance without resort to the plurality’s strained reading. Because States and their political subdivisions only have authority to tax property that has established a tax situs in the jurisdic tion, they cannot levy such taxes on ships merely for the privilege of entering or leaving the port; much more sub stantial contact with the jurisdiction is required. See Valdez Municipal Code ; Central R. Co. of And it is that contact, rather than entry into the port, that provides the basis for taxing the ships. The tax situs requirement thus ensures that a State cannot avoid the proscriptions of the Tonnage Clause by redesignating a duty charged for the privilege of entering the port as an ad valorem tax. The facts of this case illustrate the point. Most of peti tioner’s ships spend 40-to-50 days per year in the Port of Valdez. See App. 32–45. “[A]s a group the tankers form a continuous presence in the city.” The ships’ prolonged physical presence and extensive commer cial activities in the city have a substantial impact on the city’s resources. On average, the ships’ presence adds 550 people to the population of Valdez, increasing the city’s total population by 10%. Those people, as well as the Cite as: 557 U. S. (2009) 7 STEVENS, J., dissenting ships themselves, require numerous public services, in cluding harbor facilities, roads, bridges, water supply, and fire and police protection. As the Alaska Supreme Court concluded, the challenged tax is therefore a legiti mate property tax levied to support the ships’ use of the city’s services. See II Even if the Tonnage Clause were properly understood to permit a jurisdiction to levy a tax on ships only when other property in the jurisdiction is also taxed, I would uphold the challenged tax. Although the tax applies only to ships, see Valdez Municipal Code other property in the city is also subject to taxation. First, imposes a value-based property tax on trailers, mobile homes, and recreational vehicles that are affixed to a site and connected to utilities. The plurality makes much of the requirement that the property be “ ‘affixed’ ” to a particular site, concluding that “Valdez in fact taxes those vehicles only when they constitute a form, not of personal property, but of real property.” Ante, at 10. But the taxability of property pursuant to is determined in much the same way as the taxability of ships. “A trailer or mobile home is conclusively presumed to be affixed to the land” and may therefore be taxed if “it has remained at a fixed site for more than ninety days.” (C). Similarly, a ship owner can establish a tax situs in Valdez and thus be subject to taxation if it is “kept or used within the city for any ninety days or more.” (2)(c).3 In both cases, the provision serves to impose a tax on property that has developed substantial contacts with the city. The plurality is thus wrong to —————— 3A ship can also establish a tax situs in Valdez if it is usually kept or used within the city, travels to or within the city along regular routes, or is necessary to the conduct of substantial business in the city. (2). 8 POLAR TANKERS, INC. v. CITY OF VALDEZ STEVENS, J., dissenting conclude that ships have been singled out for taxation. Valdez also “levie[s] a tax” on all property taxable under Alaska Statutes Chapter 43.56 at the same rate that applies to other property taxed by the city. Valdez Mu nicipal Code The tax is imposed on property used “primarily in the exploration for, production of, or pipeline transportation of gas or unrefined oil,” including machinery, equipment, pumping stations, powerplants, aircraft and motor vehicles, and docks and other port facilities. See 43.56.210(5)(A) For several reasons, this tax is more significant than the plurality acknowledges. First, contrary to the plurality’s view, the tax appears to be a municipal tax. Valdez Municipal Code states that the tax “is hereby levied” on “property taxable under Alaska Statutes Chapter 43.56,” which in turn states that “[a] municipality may levy” such taxes, The terms of these provisions indicate that the city has exercised its express authority to levy such taxes. Given the myriad types of property taxable under those provisions and the require ment of Valdez Municipal Code that the prop erty be taxed “at the rate of taxation that applies to other property taxed by the city,” it seems clear that petitioner’s ships are taxed in the “same manner” as other property even as the plurality uses that term. My view of the case would be the same even if the tax on property used in oil production were imposed by the State itself, as the plurality assumes. Whether the oil production tax and the challenged tax are levied by the same unit of government has no relevance to the question whether the latter violates the Constitution. The restric tion imposed by the Tonnage Clause is a command to the —————— 4 As the plurality notes, ante, at 10–11, Valdez did not raise this issue in state court, and the parties have provided only limited briefing on the issue. Cite as: 557 U. S. (2009) 9 STEVENS, J., dissenting States limiting their inherent taxing authority as sover eigns. The States’ political subdivisions have no such inherent power and can levy taxes only to the extent authorized by the State. See 16 E. McQuillin, Law of Municipal Corporations pp. 19–24 (rev. 3d ed. 2003); see also Wiggins 107 U. S., at (noting “[t]he power of [a State] to authorize any city within her limits to impose a license tax” on ferries). Indeed, this aspect of the relationship between States and their politi cal subdivisions is reflected in (b), which authorizes municipalities to levy certain taxes and prevents them from exempting particular property from taxation. Because the city’s power to levy taxes derives from the State, whether the city or the State levies the tax on oil-production property is constitutionally irrelevant. Finally, it bears mention that the result in this particu lar case does nothing to further the interests the Tonnage Clause was intended to protect. As the Court acknowl edges, ante, at 4, the central purpose of the Clause is “to prevent the seaboard States, possessed of important ports of entry, from levying taxes on goods flowing through their ports to inland States,” Youngstown Sheet & Tube Co. v. Bowers, (Frankfurter, J., dis senting in part). Port Valdez is at the southern terminus of the Trans Alaska Pipeline System, which carries oil extracted from Alaska’s North Slope to Port Valdez where it is loaded onto oil tankers belonging to petitioner and others for transport to refineries in other States. Taxes imposed on ships exporting that oil have the same effect on commerce in oil as do taxes on oil-production property or the oil itself, and Alaska’s authority to impose taxes on oil and oil-production property is undisputed. From an economic or political point of view, there is no difference between Alaska’s geographical control over the area in which the oil is produced and the port from which it is exported. Accordingly, no federal interest is served by 10 POLAR TANKERS, INC. v. CITY OF VALDEZ STEVENS, J., dissenting prohibiting Alaska or its political subdivisions from taxing the oil-bearing ships that are continually present in the State’s ports. III The Tonnage Clause permits a State to levy a property tax on ships whether or not it taxes other property. Were that not the case, the challenged tax would still be permis sible because Valdez also taxes mobile homes, trailers, and a wide variety of property used in producing oil. Because the tax in my view does not run afoul of the prohibitions of the Tonnage Clause, I respectfully dissent
Justice Stewart	majority	false	Almota Farmers Elevator & Whse. Co. v. United States	1973-01-16T00:00:00	null	https://www.courtlistener.com/opinion/108658/almota-farmers-elevator-whse-co-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/108658/	1,973	1972-037	2	5	4	Since 1919 the petitioner, Almota Farmers Elevator & Warehouse Co., has conducted grain elevator operations on land adjacent to the tracks of the Oregon-Washington 471 Railroad & Navigation Co. in the State of Washington. It has occupied the land under a series of successive leases from the railroad. In 1967, the Government instituted this eminent domain proceeding to acquire the petitioner's property interest by condemnation. At that time there were extensive buildings and other improvements that had been erected on the land by the petitioner, and the then-current lease had 7 1/2 years to run. In the District Court the Government contended that just compensation for the leasehold interest, including the structures, should be "the fair market value of the legal rights possessed by the defendant by virtue of the lease as of the date of taking," and that no consideration should be given to any additional value based on the expectation that the lease might be renewed. The petitioner urged that, rather than this technical "legal rights theory," just compensation should be measured by what a willing buyer would pay in an open market for the petitioner's leasehold. As a practical matter, the controversy centered upon the valuation to be placed upon the structures and their appurtenances. The parties stipulated that the Government had no need for these improvements and that the petitioner had a right to remove them. But that stipulation afforded the petitioner only what scant salvage value the buildings might bring. The Government offered compensation for the loss of the use and occupancy of the buildings only over the remaining term of the lease. The petitioner contended that this limitation upon compensation for the use of the structures would fail to award what a willing buyer would have paid for the lease with the improvements, since such a buyer would expect to have the lease renewed and to continue to use the improvements in place. The value of the buildings, machinery, and equipment in place would be substantially greater than their salvage value at the end 472 of the lease term, and a purchaser in an open market would pay for the anticipated use of the buildings and for the savings he would realize from not having to construct new improvements himself. In sum, the dispute concerned whether Almota would have to be satisfied with its right to remove the structures with their consequent salvage value or whether it was entitled to an award reflecting the value of the improvements in place beyond the lease term. In a pretrial ruling, the District Court accepted the petitioner's theory and held that Almota was to be compensated for the full market value of its leasehold "and building improvements thereon as of the date of taking . . . , the total value of said leasehold and improvements. . . to be what the interests of said company therein could have been then sold for upon the open market considering all elements and possibilities whatsoever found to then affect the market value of those interests including, but not exclusive of, the possibilities of renewal of the lease and of the landlord requiring the removal of the improvements in the event of there being no lease renewal." The court accordingly ruled that the petitioner was entitled to the full fair market value of the use of the land and of the buildings in place as they stood at the time of the taking, without limitation of such use to the remainder of the term of the existing lease. On appeal, the Court of Appeals for the Ninth Circuit reversed, 450 F.2d 125; it accepted the Government's theory that a tenant's expectancy in a lease renewal was not a compensable legal interest and could not be included in the valuation of structures that the tenant had built on the property. It rejected any award for the use of improvements beyond the lease term as "compensation for expectations disappointed by the exercise of the sovereign power of eminent domain, expectations 473 not based upon any legally protected right, but based only . . . upon `a speculation on a chance.' " 450 F.2d, at 129. The court explicitly refused to follow an en banc decision of the Court of Appeals for the Second Circuit, relied upon by the District Court, which had held that for condemnation purposes improvements made by a lessee are to be assessed at their value in place over their useful life without regard to the term of the lease. United States v. Certain Property, Borough of Manhattan, 388 F.2d 596, 601. In view of this conflict in the circuits, we granted certiorari, 405 U.S. 1039, to decide an important question of eminent domain law: "Whether, upon condemnation of a leasehold, a lessee with no right of renewal is entitled to receive as compensation the market value of its improvements without regard to the remaining term of its lease, because of the expectancy that the lease would have been renewed."[1] We find that the view of the Court of Appeals for the Second Circuit is in accord with established principles of just-compensation law under the Fifth Amendment, and therefore reverse the judgment before us and reinstate the judgment of the District Court. The Fifth Amendment provides that private property shall not be taken for public use without "just compensation." "And `just compensation' means the full monetary equivalent of the property taken. The owner is 474 to be put in the same position monetarily as he would have occupied if his property had not been taken." United States v. Reynolds, 397 U.S. 14, 16 (footnotes omitted). See also United States v. Miller, 317 U.S. 369, 373. To determine such monetary equivalence, the Court early established the concept of "market value": the owner is entitled to the fair market value of his property at the time of the taking. New York v. Sage, 239 U.S. 57, 61. See also United States v. Reynolds, supra, at 16; United States v. Miller, supra, at 374. And this value is normally to be ascertained from "what a willing buyer would pay in cash to a willing seller." Ibid. See United States v. Virginia Electric & Power Co., 365 U.S. 624, 633. By failing to value the improvements in place over their useful lifetaking into account the possibility that the lease might be renewed as well as the possibility that it might notthe Court of Appeals in this case failed to recognize what a willing buyer would have paid for the improvements. If there had been no condemnation, Almota would have continued to use the improvements during a renewed lease term, or if it sold the improvements to the fee owner or to a new lessee at the end of the lease term, it would have been compensated for the buyer's ability to use the improvements in place over their useful life. As Judge Friendly wrote for the Court of Appeals for the Second Circuit: "Lessors do desire, after all, to keep their properties leased, and an existing tenant usually has the inside track to a renewal for all kinds of reasonsavoidance of costly alterations, saving of brokerage commissions, perhaps even ordinary decency on the part of landlords. Thus, even when the lease had expired, the condemnation will often force the tenant to remove or abandon the fixtures long before he would otherwise have had to, as well as deprive him 475 of the opportunity to deal with the landlord or a new tenantthe only two people for whom the fixtures would have a value unaffected by the heavy costs of disassembly and reassembly. The condemnor is not entitled to the benefit of assumptions, contrary to common experience, that the fixtures would be removed at the expiration of the stated term." United States v. Certain Property, Borough of Manhattan, 388 F. 2d, at 601-602 (footnote omitted). It seems particularly likely in this case that Almota could have sold the leasehold at a price that would have reflected the continued ability of the buyer to use the improvements over their useful life. Almota had an unbroken succession of leases since 1919, and it was in the interest of the railroad, as fee owner, to continue leasing the property, with its grain elevator facilities, in order to promote grain shipments over its lines. In a free market, Almota would hardly have sold the leasehold to a purchaser who paid only for the use of the facilities over the remainder of the lease term, with Almota retaining the right thereafter to remove the facilitiesin effect, the right of salvage. "Because these fixtures diminish in value upon removal, a measure of damages less than their fair market value for use in place would constitute a substantial taking without just compensation. `[I]t is intolerable that the state, after condemning a factory or warehouse, should surrender to the owner a stock of secondhand machinery and in so doing discharge the full measure of its duty.' " United States v. 1,132.50 Acres of Land, 441 F.2d 356, 358.[2] 476 United States v. Petty Motor Co., 327 U.S. 372, upon which the Government primarily relies, does not lead to a contrary result. The Court did indicate that the measure of damages for the condemnation of a leasehold is to be measured in terms of the value of its use and occupancy for the remainder of the lease term, and the Court refused to elevate an expectation of renewal into a compensable legal interest. But the Court was not dealing there with the fair market value of improvements. Unlike Petty Motor, there is no question here of creating a legally cognizable value where none existed, or of compensating a mere incorporeal expectation.[3] The petitioner here has constructed the improvements and seeks only their fair market value. Petty Motor should not be 477 read to allow the Government to escape paying what a willing buyer would pay for the same property. The Government argues that it would be unreasonable to compensate Almota for the value of the improvements measured over their useful life, since the Government could purchase the fee and wait until the expiration of the lease term to take possession of the land.[4] Once it has purchased the fee, the argument goes, there is no further expectancy that the improvements will be used during their useful life since the Government will assuredly require their removal at the end of the term. But the taking for the dam was one act requiring proceedings against owners of two interests.[5] At the time of that "taking" Almota had an expectancy of continued occupancy of its grain elevator facilities. The Government must pay just compensation for those interests "probably within the scope of the project from the time the 478 Government was committed to it." United States v. Miller, 317 U. S., at 377. Cf. United States v. Reynolds, 397 U. S., at 16-18. It may not take advantage of any depreciation in the property taken that is attributable to the project itself. Id., at 16; United States v. Virginia Electric & Power Co., 365 U. S., at 635-636. At the time of the taking in this case, there was an expectancy that the improvements would be used beyond the lease term. But the Government has sought to pay compensation on the theory that at that time there was no possibility that the lease would be renewed and the improvements used beyond the lease term. It has asked that the improvements be valued as though there were no possibility of continued use.[6] That is not how the market would have valued such improvements; it is not what a private buyer would have paid Almota. "The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness, United States v. Commodities Trading Corp., 339 U.S. 121, 124 (1950), as it does from technical concepts of property law." United States v. Fuller, post, at 490. It is, of course, true that Almota should be in no better position than if it had sold its leasehold to a private buyer. But its position should surely be no worse. The judgment before us is reversed and the judgment of the District Court reinstated. *479 MR. JUSTICE POWELL, with whom MR.	Since 1919 the petitioner, Almota Farmers Elevator & Warehouse has conducted grain elevator operations on land adjacent to the tracks of the Oregon-Washington 471 Railroad & Navigation in the State of Washington. It has occupied the land under a series of successive leases from the railroad. In 1967, the Government instituted this eminent domain proceeding to acquire the petitioner's property interest by condemnation. At that time there were extensive buildings and other improvements that had been erected on the land by the petitioner, and the then-current lease had 7 1/2 years to run. In the District Court the Government contended that just compensation for the leasehold interest, including the structures, should be "the fair market value of the legal rights possessed by the defendant by virtue of the lease as of the date of taking," and that no consideration should be given to any additional value based on the expectation that the lease might be renewed. The petitioner urged that, rather than this technical "legal rights theory," just compensation should be measured by what a willing buyer would pay in an open market for the petitioner's leasehold. As a practical matter, the controversy centered upon the valuation to be placed upon the structures and their appurtenances. The parties stipulated that the Government had no need for these improvements and that the petitioner had a right to remove them. But that stipulation afforded the petitioner only what scant salvage value the buildings might bring. The Government offered compensation for the loss of the use and occupancy of the buildings only over the remaining term of the lease. The petitioner contended that this limitation upon compensation for the use of the structures would fail to award what a willing buyer would have paid for the lease with the improvements, since such a buyer would expect to have the lease renewed and to continue to use the improvements in place. The value of the buildings, machinery, and equipment in place would be substantially greater than their salvage value at the end 472 of the lease term, and a purchaser in an open market would pay for the anticipated use of the buildings and for the savings he would realize from not having to construct new improvements himself. In sum, the dispute concerned whether Almota would have to be satisfied with its right to remove the structures with their consequent salvage value or whether it was entitled to an award reflecting the value of the improvements in place beyond the lease term. In a pretrial ruling, the District Court accepted the petitioner's theory and held that Almota was to be compensated for the full market value of its leasehold "and building improvements thereon as of the date of taking the total value of said leasehold and improvements. to be what the interests of said company therein could have been then sold for upon the open market considering all elements and possibilities whatsoever found to then affect the market value of those interests including, but not exclusive of, the possibilities of renewal of the lease and of the landlord requiring the removal of the improvements in the event of there being no lease renewal." The court accordingly ruled that the petitioner was entitled to the full fair market value of the use of the land and of the buildings in place as they stood at the time of the taking, without limitation of such use to the remainder of the term of the existing lease. On appeal, the Court of Appeals for the Ninth Circuit reversed, ; it accepted the Government's theory that a tenant's expectancy in a lease renewal was not a compensable legal interest and could not be included in the valuation of structures that the tenant had built on the property. It rejected any award for the use of improvements beyond the lease term as "compensation for expectations disappointed by the exercise of the sovereign power of eminent domain, expectations 473 not based upon any legally protected right, but based only upon `a speculation on a chance.' " The court explicitly refused to follow an en banc decision of the Court of Appeals for the Second Circuit, relied upon by the District Court, which had held that for condemnation purposes improvements made by a lessee are to be assessed at their value in place over their useful life without regard to the term of the lease. United In view of this conflict in the circuits, we granted certiorari, to decide an important question of eminent domain law: "Whether, upon condemnation of a leasehold, a lessee with no right of renewal is entitled to receive as compensation the market value of its improvements without regard to the remaining term of its lease, because of the expectancy that the lease would have been renewed."[1] We find that the view of the Court of Appeals for the Second Circuit is in accord with established principles of just-compensation law under the Fifth Amendment, and therefore reverse the judgment before us and reinstate the judgment of the District Court. The Fifth Amendment provides that private property shall not be taken for public use without "just compensation." "And `just compensation' means the full monetary equivalent of the property taken. The owner is 474 to be put in the same position monetarily as he would have occupied if his property had not been taken." United (footnotes omitted). See also United To determine such monetary equivalence, the Court early established the concept of "market value": the owner is entitled to the fair market value of his property at the time of the taking. New See also United at ; United And this value is normally to be ascertained from "what a willing buyer would pay in cash to a willing seller." See United By failing to value the improvements in place over their useful lifetaking into account the possibility that the lease might be renewed as well as the possibility that it might notthe Court of Appeals in this case failed to recognize what a willing buyer would have paid for the improvements. If there had been no condemnation, Almota would have continued to use the improvements during a renewed lease term, or if it sold the improvements to the fee owner or to a new lessee at the end of the lease term, it would have been compensated for the buyer's ability to use the improvements in place over their useful life. As Judge Friendly wrote for the Court of Appeals for the Second Circuit: "Lessors do desire, after all, to keep their properties leased, and an existing tenant usually has the inside track to a renewal for all kinds of reasonsavoidance of costly alterations, saving of brokerage commissions, perhaps even ordinary decency on the part of landlords. Thus, even when the lease had expired, the condemnation will often force the tenant to remove or abandon the fixtures long before he would otherwise have had to, as well as deprive him 475 of the opportunity to deal with the landlord or a new tenantthe only two people for whom the fixtures would have a value unaffected by the heavy costs of disassembly and reassembly. The condemnor is not entitled to the benefit of assumptions, contrary to common experience, that the fixtures would be removed at the expiration of the stated term." United 388 F. 2d, at -602 (footnote omitted). It seems particularly likely in this case that Almota could have sold the leasehold at a price that would have reflected the continued ability of the buyer to use the improvements over their useful life. Almota had an unbroken succession of leases since 1919, and it was in the interest of the railroad, as fee owner, to continue leasing the property, with its grain elevator facilities, in order to promote grain shipments over its lines. In a free market, Almota would hardly have sold the leasehold to a purchaser who paid only for the use of the facilities over the remainder of the lease term, with Almota retaining the right thereafter to remove the facilitiesin effect, the right of salvage. "Because these fixtures diminish in value upon removal, a measure of damages less than their fair market value for use in place would constitute a substantial taking without just compensation. `[I]t is intolerable that the state, after condemning a factory or warehouse, should surrender to the owner a stock of secondhand machinery and in so doing discharge the full measure of its duty.' " United[2] 476 United upon which the Government primarily relies, does not lead to a contrary result. The Court did indicate that the measure of damages for the condemnation of a leasehold is to be measured in terms of the value of its use and occupancy for the remainder of the lease term, and the Court refused to elevate an expectation of renewal into a compensable legal interest. But the Court was not dealing there with the fair market value of improvements. Unlike Petty Motor, there is no question here of creating a legally cognizable value where none existed, or of compensating a mere incorporeal expectation.[3] The petitioner here has constructed the improvements and seeks only their fair market value. Petty Motor should not be 477 read to allow the Government to escape paying what a willing buyer would pay for the same property. The Government argues that it would be unreasonable to compensate Almota for the value of the improvements measured over their useful life, since the Government could purchase the fee and wait until the expiration of the lease term to take possession of the land.[4] Once it has purchased the fee, the argument goes, there is no further expectancy that the improvements will be used during their useful life since the Government will assuredly require their removal at the end of the term. But the taking for the dam was one act requiring proceedings against owners of two interests.[5] At the time of that "taking" Almota had an expectancy of continued occupancy of its grain elevator facilities. The Government must pay just compensation for those interests "probably within the scope of the project from the time the 478 Government was committed to it." United Cf. United 397 U. S., at -18. It may not take advantage of any depreciation in the property taken that is attributable to the project itself. at ; United -636. At the time of the taking in this case, there was an expectancy that the improvements would be used beyond the lease term. But the Government has sought to pay compensation on the theory that at that time there was no possibility that the lease would be renewed and the improvements used beyond the lease term. It has asked that the improvements be valued as though there were no possibility of continued use.[6] That is not how the market would have valued such improvements; it is not what a private buyer would have paid Almota. "The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness, United as it does from technical concepts of property law." United States v. Fuller, post, at 490. It is, of course, true that Almota should be in no better position than if it had sold its leasehold to a private buyer. But its position should surely be no worse. The judgment before us is reversed and the judgment of the District Court reinstated. *479 MR. JUSTICE POWELL, with whom MR.
Justice Rehnquist	dissenting	true	National Socialist Party of America v. Skokie	1977-06-14T00:00:00	null	https://www.courtlistener.com/opinion/109690/national-socialist-party-of-america-v-skokie/	https://www.courtlistener.com/api/rest/v3/clusters/109690/	1,977	1976-136	2	5	4	The Court treats an application filed here to stay a judgment of the Circuit Court of Cook County as a petition for certiorari to review the refusal of the Supreme Court of *45 Illinois to stay the injunction. It summarily reverses this refusal of a stay. I simply do not see how the refusal of the Supreme Court of Illinois to stay an injunction granted by an inferior court within the state system can be described as a "[f]inal judgmen[t] or decre[e] rendered by the highest court of a State in which a decision could be had," which is the limitation that Congress has imposed on our jurisdiction to review state-court judgments under 28 U.S. C. § 1257. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476-487 (1975), relied upon by the Court, which surely took as liberal a view of this jurisdictional grant as can reasonably be taken, does not support the result reached by the Court here. In Cox there had been a final decision on the federal claim by the Supreme Court of Georgia, which was the highest court of that State in which such a decision could be had. Here all the Supreme Court of Illinois has done is, in the exercise of the discretion possessed by every appellate court, to deny a stay of a lower court ruling pending appeal. No Illinois appellate court has heard or decided the merits of applicants' federal claim. I do not disagree with the Court that the provisions of the injunction issued by the Circuit Court of Cook County are extremely broad, and I would expect that if the Illinois appellate courts follow cases such as Freedman v. Maryland, 380 U.S. 51 (1965), and Nebraska Press Assn. v. Stuart, 423 U.S. 1319 (1975), relied upon by the Court, the injunction will be at least substantially modified by them. But I do not believe that in the long run respect for the Constitution or for the law is encouraged by actions of this Court which disregard the limitations placed on us by Congress in order to assure that an erroneous injunction issued by a state trial court does not wrongly interfere with the constitutional rights of those enjoined	The Court treats an application filed here to stay a judgment of the Circuit Court of Cook County as a petition for certiorari to review the refusal of the Supreme Court of *45 Illinois to stay the injunction. It summarily reverses this refusal of a stay. I simply do not see how the refusal of the Supreme Court of Illinois to stay an injunction granted by an inferior court within the state system can be described as a "[f]inal judgmen[t] or decre[e] rendered by the highest court of a State in which a decision could be had," which is the limitation that Congress has imposed on our jurisdiction to review state-court judgments under 28 U.S. C. 1257. Cox Broadcasting relied upon by the Court, which surely took as liberal a view of this jurisdictional grant as can reasonably be taken, does not support the result reached by the Court here. In Cox there had been a final decision on the federal claim by the Supreme Court of Georgia, which was the highest court of that State in which such a decision could be had. Here all the Supreme Court of Illinois has done is, in the exercise of the discretion possessed by every appellate court, to deny a stay of a lower court ruling pending appeal. No Illinois appellate court has heard or decided the merits of applicants' federal claim. I do not disagree with the Court that the provisions of the injunction issued by the Circuit Court of Cook County are extremely broad, and I would expect that if the Illinois appellate courts follow cases such as and Nebraska Press relied upon by the Court, the injunction will be at least substantially modified by them. But I do not believe that in the long run respect for the Constitution or for the law is encouraged by actions of this Court which disregard the limitations placed on us by Congress in order to assure that an erroneous injunction issued by a state trial court does not wrongly interfere with the constitutional rights of those enjoined
Justice Marshall	majority	false	Caplin v. Marine Midland Grace Trust Co.	1972-05-22T00:00:00	null	https://www.courtlistener.com/opinion/108540/caplin-v-marine-midland-grace-trust-co/	https://www.courtlistener.com/api/rest/v3/clusters/108540/	1,972	1971-112	1	5	4	The sole issue in this case is whether petitioner, the trustee in reorganization of Webb & Knapp, Inc., has standing under Chapter X of the Bankruptcy Act, 52 Stat. 883, 11 U.S. C. § 501 et seq., to assert, on behalf of persons holding debentures issued by Webb & Knapp, claims of misconduct by an indenture trustee. The United States District Court for the Southern District 417 of New York held that petitioner lacked the requisite standing, and the United States Court of Appeals for the Second Circuit affirmed en banc, with two judges dissenting, 439 F.2d 118 (1971).[1] We granted certiorari, 404 U.S. 982 (1971), and we now affirm the decision of the Court of Appeals. I Webb & Knapp and its numerous subsidiaries were engaged in various real estate activities in both the United States and Canada. In 1954, the corporation executed an indenture with respondent, the Marine Midland Trust Company of New York (Marine), that provided for the issuance by Webb & Knapp of 5% debentures in the total amount of $8,607,600. A critical part of the indenture was the promise by Webb & Knapp that neither it nor any company affiliated with it[2] would incur or assume "any indebtedness resulting from money borrowed or from the purchase of real property or interests in real property . . or purchase any real property or interests in real property" unless the company's consolidated tangible assets, as defined in the indenture, equaled 200% of certain liabilities, after giving effect to the contemplated indebtedness or purchase.[3]418 By requiring the company to maintain an asset-liability ratio of 2:1, the indenture sought to protect debenture purchasers by providing a cushion against any losses that the company might suffer in the ordinary course of business. In order to demonstrate continuing compliance with the requirements of the indenture, Webb & Knapp covenanted to file an annual certificate with Marine stating whether the corporation (debtor) had defaulted on any of its responsibilities under the indenture during the preceding year.[4] In its role as indenture trustee, Marine undertook "in case of default . . . to exercise such of the rights and powers vested in it by [the] Indenture, and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs."[5] This undertaking was qualified by language in the indenture that permitted the trustee to rely on the accuracy of certificates or reports of Webb & Knapp, in the absence of bad faith.[6] Commencing in 1959, Webb & Knapp sustained substantial financial losses in every year.[7] Finally, on May 7, 1965, Marine filed a petition in district court seeking the involuntary reorganization of Webb & Knapp under Chapter X of the Bankruptcy Act, 11 U.S. C. § 501 et seq. Pursuant to § 208 of Chapter X, 11 U.S. C. § 608, the Securities and Exchange Commission intervened 419 on May 10, 1965.[8] Marine's petition was subsequently approved and petitioner was appointed trustee in reorganization on May 18, 1965. With the approval of the District Court, petitioner exercised the powers conferred upon him by 11 U.S. C. § 567 and undertook an extensive investigation of the financial affairs of Webb & Knapp. His investigation showed that the company had total assets of $21,538,621 and total liabilities of $60,036,164, plus contingent tax liabilities of $29,400,000. Included among the liabilities were the 1954 debentures in the principal amount of $4,298,200 plus interest subsequent to the inception of the reorganization proceeding.[9] The investigation led petitioner to conclude that Marine had either willfully or negligently failed to fulfill its obligations under the indenture. Petitioner supported his conclusion with the following allegations: that from 1954 to 1964, Webb & Knapp's yearly certificates of compliance with the 2:1 asset-liability ratio mandated by the indenture were fraudulent, because they were based on grossly overvalued appraisals of real estate property; that from 1958 to 1964, Webb & Knapp did not have sufficient assets to comply with the terms of the indenture; that Marine should have known or did know of the inflated appraisals; and that because Marine permitted Webb & Knapp to violate the indenture by engaging in transactions that its impaired asset-liability 420 ratio forbade, Webb & Knapp suffered great financial losses.[10] Having obtained the approval of the District Court, petitioner filed an independent action on behalf of the debenture holders against Marine seeking to recover the principal amount of the outstanding debentures as damages for Marine's alleged bad-faith failure to compel compliance with the terms of the indenture by Webb & Knapp. Petitioner also filed a counterclaim in the same amount against Marine in the reorganization proceeding in which Marine had previously filed a claim for services rendered. In the reorganization proceeding, petitioner also filed an objection to the claim for services rendered, on the ground that even if petitioner could not obtain an affirmative recovery against Marine on behalf of the bondholders, he could at least raise Marine's improper conduct as a reason why the claim for services rendered should be denied.[11] Finally, petitioner moved to compel an accounting by Marine. Marine moved to dismiss the independent action and the counterclaim, moved to strike the objection to the claim for services rendered, and opposed the motion to compel an accounting. The District Court found that petitioner had no standing in his capacity as a trustee in reorganization under Chapter X of the Bankruptcy Act to raise claims of misconduct by an indenture trustee on behalf of debenture holders and granted both of Marine's motions to dismiss. Viewing the motion to compel an accounting as merely a third vehicle to raise the same 421 claim on behalf of the debenture holders, the District Court denied that motion also. Only petitioner's objection to the claim for services rendered was left standing.[12] Petitioner appealed the dismissal of his claims and the denial of his motion for an accounting to the Court of Appeals. Marine filed a cross-appeal from the denial of its motion to strike petitioner's objection to the claim for services rendered. The Court of Appeals affirmed the decision of the District Court in its entirety. II The issue confronting us has never before been presented to this Court. It is an issue that has only rarely been presented to other courts, and on those rare occasions, it has caused even the most able jurists to disagree. The first time the issue arose was in Clarke v. Chase National Bank, 137 F.2d 797 (CA2 1943). Judge Augustus Hand wrote the opinion of the court holding that a trustee in reorganization did not have standing to sue a third party on behalf of bondholders. Judge Learned Hand disagreed and dissented. It is this decision that the lower courts found controlling in the instant case. The Clarke case is, in fact, the only other case in which the issue that is raised here was squarely presented.[13]422 The issue is a difficult one, and, as we point out later, it is one that is capable of resolution by explicit congressional action. Lacking a specific legislative statement on this issue, we must resolve it as best we can by examining the nature of Chapter X proceedings, the role of the trustee in reorganization, and the way in which standing to sue on behalf of debenture holders would affect or change that role. Chapter X, enacted in 1938, stemmed from a comprehensive SEC study that disclosed widespread abuses under the then-existing provisions for business reorganizations. See Securities and Exchange Commission, Report on the Study and Investigation of the Work, Activities, Personnel and Functions of Protective and Reorganization Committees (1937-1940). This same study gave birth the following year to the Trust Indenture Act of 1939, 53 Stat. 1149, 15 U.S. C. § 77aaa et seq., which is discussed infra. In enacting Chapter X, Congress had protection of public investors primarily in mind. SEC v. American Trailer Rentals Co., 379 U.S. 594 (1965). "The aims of Chapter X . . . were to afford greater protection to creditors and stockholders by providing greater judicial control over the entire proceedings and impartial and expert administrative assistance in corporate reorganizations through appointment of a disinterested trustee and the active participation of the SEC." Id., at 604. In 423 contradistinction to a bankruptcy proceeding where liquidation of a corporation and distribution of its assets is the goal, a Chapter X proceeding is for purposes of rehabilitating the corporation and reorganizing it. Ibid. Chapter X proceedings are not limited to insolvent corporations but are open to those corporations that are solvent in the bankruptcy (asset-liability) sense but are unable to meet their obligations as they mature. United States v. Key, 397 U.S. 322, 329 (1970); 11 U.S. C. § 530 (1). The trustee in reorganization is the center of the statutory scheme. H. R. Rep. No. 1409, 75th Cong., 1st Sess., 43, 44. Title 11 U.S. C. § 567 gives the trustee broad powers: "The trustee upon his appointment and qualification "(1) shall, if the judge shall so direct, forthwith investigate the acts, conduct, property, liabilities, and financial condition of the debtor, the operation of its business and the desirability of the continuance thereof, and any other matter relevant to the proceeding or to the formulation of a plan, and report thereon to the judge; "(2) may, if the judge shall so direct, examine the directors and officers of the debtor and any other witnesses concerning the foregoing matters or any of them; "(3) shall report to the judge any facts ascertained by him pertaining to fraud, misconduct, mismanagement and irregularities, and to any causes of action available to the estate; ..... "(5) shall, at the earliest date practicable, prepare and submit a brief statement of his investigation of the property, liabilities, and financial condition of the debtor, the operation of its business and 424 the desirability of the continuance thereof, in such form and manner as the judge may direct, to the creditors, stockholders, indenture trustees, the Securities and Exchange Commission, and such other persons as the judge may designate; and "(6) shall give notice to the creditors and stockholders that they may submit to him suggestions for the formulation of a plan, or proposals in the form of plans, within a time therein named." Title 11 U.S. C. § 587 expands these powers: "Where not inconsistent with the provisions of this chapter, a trustee, upon his appointment and qualification, shall be vested with the same rights, be subject to the same duties, and exercise the same powers as a trustee appointed under section 72 of this title, and, if authorized by the judge, shall have and may exercise such additional rights and powers as a receiver in equity would have if appointed by a court of the United States for the property of the debtor." The powers given a trustee appointed under § 72 are set forth in a footnote.[14] 425 Petitioner argues that these powers are broad enough to encompass a suit on behalf of debenture holders against an indenture trustee who has acted in bad faith, and who has, therefore, violated the indenture and the Trust Indenture Act of 1939, 15 U.S. C. § 77aaa et seq. As pointed out above, the Trust Indenture Act was passed one year after Chapter X was enacted. Prior to its enactment, indenture trustees immunized themselves from any liability for either deliberate or negligent misconduct by writing exculpatory provisions into the indenture. Even in cases where misconduct by the indenture trustee was the proximate cause of injury to debenture holders, they found themselves impotent under the terms of most indentures to take action against the trustee. See generally 2 L. Loss, Securities Regulation 719-725 (2d ed. 1961). This problem and others are specifically mentioned in 15 U.S. C. § 77bbb as establishing a necessity for regulation. The regulation provided by the Act takes many forms. 15 U.S. C. § 77eee requires that whenever securities covered by the Trust Indenture Act are also covered by the registration provisions of the Securities Act of 1933, 48 Stat. 74, 15 U.S. C. § 77a et seq., certain information about the indenture trustee and the terms of the indenture 426 must be included in the registration statement. Title 15 U.S. C. § 77ggg provides that when securities are not registered under the 1933 Act but are covered by the Trust Indenture Act, the indenture must be "qualified" by the SEC before it is legal to sell the securities. Standards for eligibility and disqualification of a trustee are established by 15 U.S. C. § 77jjj, and the duties and responsibilities of a trustee are enumerated in 15 U.S. C. § 77ooo.[15] The indenture giving rise to this litigation was qualified by the SEC pursuant to the Trust Indenture Act of 1939. By alleging that the indenture trustee negligently or intentionally failed to prevent Webb & Knapp from violating the terms of the indenture, petitioner clearly alleges a violation of the 1939 legislation, 15 U.S. C. § 77ooo.[16] But the question remains whether petitioner is a proper party to take corrective action.[17] 427 Petitioner urges that the reorganization trustee is in a far better position than debt investors to discover and to prosecute claims based on the alleged failure of an indenture trustee to live up to the provisions of the indenture. He points to 11 U.S. C. § 567, set forth supra, and emphasizes that not only does the reorganization trustee have possession of the records of the debtor, but he also has a statutory duty to investigate the debtor's affairs and to "report to the judge any facts ascertained by him pertaining to fraud, misconduct, mismanagement and irregularities, and to any causes of action available to the estate." Reference is made, too, to 15 U.S. C. § 77bbb (a) (1), which states that one of the problems Congress saw with respect to misconduct by indenture trustees was that "(A) individual action by . . . investors for the purpose of protecting and enforcing their rights is rendered impracticable by reason of the disproportionate expense of taking such action, and (B) concerted action by such investors in their common interest through representatives of their own selection is impeded by reason of the wide dispersion of such investors through many States, and by reason of the fact that information as to the names and addresses of such investors generally is not available to such investors."[18] 428 Finally, petitioner asserts that to give him standing to sue on behalf of debenture holders will not encourage vexatious litigation or unduly deplete the resources of the debtor that he has been appointed to reorganize. He supports the first half of this proposition by noting that any action he takes is subject to the supervision of the District Court and to intervention by the SEC. The second half of the proposition finds support in the argument discussed above that petitioner already has a duty of investigation and that the minimal additional burden of prosecuting a lawsuit will not be great. At first blush, petitioner's theory, adopted in the opinion of the dissenters in the Court of Appeals, seems reasonable. But, there are three problems with petitioner's argument and these problems require that his position be rejected. First, Congress has established an elaborate system of controls with respect to indenture trustees and reorganization proceedings, and nowhere in the statutory scheme is there any suggestion that the trustee in reorganization is to assume the responsibility of suing third parties on behalf of debenture holders. The language, in fact, indicates that Congress had no such intent in mind. The statute, 11 U.S. C. § 567 (3), gives the trustee the right, and indeed imposes the duty, to investigate fraud and misconduct and to report to the judge the potential causes of action "available to the estate." Even assuming that this section is read as if the quoted words were not present, and that it authorizes a trustee in reorganization to report whether he believes an indenture trustee has violated a duty to third-party debenture holders, there is nothing in the section that enables him to collect money not owed to the estate. Nor is there anything in 11 U.S. C. § 110, set forth in relevant part in footnote 14, supra, that gives him this authority. His task is simply to "collect and reduce to 429 money the property of the estates for which [he is trustee]." 11 U.S. C. § 75. The only support petitioner finds in the relevant statutes is in that portion of 11 U.S. C. § 587 which gives reorganization trustees the additional rights that a "receiver in equity would have if appointed by a court of the United States for the property of the debtor." Petitioner relies on McCandless v. Furlaud, 296 U.S. 140 (1935), to support the proposition that a receiver in equity may sue third parties on behalf of bondholders. But, the opinion of the Court by Mr. Justice Cardozo clearly emphasizes that the receiver in that case was suing on behalf of the corporation, not third parties; he was simply stating the same claim that the corporation could have made had it brought suit prior to entering receivership.[19] The debtor corporation makes no such claim in this case. See generally 2 R. Clark, Law and Practice of Receivers § 362, at 619 (3d ed. 1959). This brings us to the second problem with petitioner's argument. Nowhere does petitioner argue that Webb & Knapp could make any claim against Marine. Indeed, the conspicuous silence on this point is a tacit admission that no such claim could be made.[20] Assuming that 430 petitioner's allegations of misconduct on the part of the indenture trustee are true, petitioner has at most described a situation where Webb & Knapp and Marine were in pari delicto. Whatever damage the debenture holders suffered, under petitioner's theory Webb & Knapp is as much at fault as Marine, if not more so. A question would arise, therefore, whether Marine would be entitled to be subrogated to the claims of the debenture holders. The Court of Appeals thought that subrogation would be required, 439 F.2d, at 122. If the Court of Appeals is correct, it is then difficult to see what advantage there is in giving petitioner standing to sue, for as Chief Judge Friendly noted in his opinion for the court below: "It is necessary in the first instance to consider what effect a recovery by the Chapter X Trustee would have on the reorganization. On a superficial view this might seem substantialif, for example, the Chapter X Trustee were to achieve a complete recovery, the debenture holders would be paid off and it might seem there would be that much more for the other creditors and the stockholders. But this pleasant prospect speedily evaporates when the law of subrogation is brought into play. As a result of subrogation, Marine would simply be substituted for the debenture holders as the claimant. Cf. ALI, Restatement of Security § 141 (1941). If the Chapter X Trustee recovered judgment in a lesser amount, the claim of the debenture holders would still be provable in full, with the division of the proceeds between them and Marine dependent upon the results of the reorganization, and other creditors or stockholders would not be affected." 439 F.2d, at 122. Even if the Court of Appeals is incorrect in its view of the propriety of subrogation under the facts of this case, 431 the fact remains that in every reorganization there is going to be a question of how much the trustee in reorganization should be permitted to recover on behalf of the debenture holders. The answer is, of course, whatever he cannot recoup from the corporation. Once this is recognized, the wisdom of Judge Augustus Hand in Clarke v. Chase National Bank, 137 F. 2d, at 800, becomes readily apparent: "Each creditor, including the debenture-holders, can prove the full amount of his claim, and only to the extent that a debenture-holder fails to satisfy it from the bankruptcy estate will he suffer a loss which he can assert against the defendant through its failure to enforce the negative covenants." In other words, debenture holders will not be able to recover damages from the indenture trustee until the reorganization is far enough along so that a reasonable approximation can be made as to the extent of their losses, if any. It is difficult to see precisely why it is at that point that the trustee in reorganization should represent the interests of the debenture holders, who are capable of deciding for themselves whether or not it is worthwhile to seek to recoup whatever losses they may have suffered by an action against the indenture trustee. Petitioner appears to concede that any suit by debenture holders would not affect the interests of other parties to the reorganization, assuming that the Court of Appeals is correct on the subrogation point. It would seem, therefore, that the debenture holders, the persons truly affected by the suit against Marine, should make their own assessment of the respective advantages and disadvantages, not only of litigation, but of various theories of litigation. This brings us to the third problem with petitioner's argument: i. e., a suit by him on behalf of debenture holders may be inconsistent with any independent actions 432 that they might bring themselves. Petitioner and the SEC make very plain their position that a suit by the trustee in reorganization does not pre-empt suits by individual debenture holders. They maintain, however, that it would be unlikely that such suits would be brought since the debenture holders could reasonably expect that the trustee would vigorously prosecute the claims of all debt investors. But, independent actions are still likely because it is extremely doubtful that the trustee and all debenture holders would agree on the amount of damages to seek, or even on the theory on which to sue.[21] Moreover, if the indenture trustee wins the suit brought by the trustee in reorganization, unless the debenture holders are bound by that victory, the proliferation of litigation that petitioner seeks to avoid would then ensue. Finally, a question would arise as to who was bound by any settlement.[22] 433 Rule 23 of the Federal Rules of Civil Procedure, which provides for class actions, avoids some of these difficulties. It is surely a powerful remedy and one that is available to all debenture holders.[23] Some of the factors that formerly deterred such actions have been changed by the Trust Indenture Act of 1939. Title 15 U.S. C. § 77lll, for example, now requires that the debtor corporation maintain lists of debenture holders that it must turn over to the indenture trustees at regular intervals. Such lists are available to the individual debenture 434 holders upon request. Debenture holders would also be able to take advantage of any information obtained by the trustee in reorganization as a result of the investigation which the statute requires that he make. In addition, petitioner himself maintains that counsel fees would be recoverable if the action was successful. Brief for Petitioner 20; cf. 15 U.S. C. § 77nnn. Thus, there is no showing whatever that by giving petitioner standing to sue on behalf of the debenture holders we would reduce litigation. On the contrary, there is every indication that litigation would be increased, or at least complicated. III For the reasons discussed above we conclude that petitioner does not have standing to sue an indenture trustee on behalf of debenture holders. This does not mean that it would be unwise to confer such standing on trustees in reorganization. It simply signifies that Congress has not yet indicated even a scintilla of an intention to do so, and that such a policy decision must be left to Congress and not to the judiciary. Congress might well decide that reorganizations have not fared badly in the 34 years since Chapter X was enacted and that the status quo is preferable to inviting new problems by making changes in the system. Or, Congress could determine that the trustee in a reorganization was so well situated for bringing suits against indenture trustees that he should be permitted to do so. In this event, Congress might also determine that the trustee's action was exclusive, or that it should be brought as a class action on behalf of all debenture holders, or perhaps even that the debenture holders should have the option of suing on their own or having the trustee sue on their behalf. Any number of alternatives are available. Congress would also be able to answer questions regarding subrogation or timing of law suits before these questions *435 arise in the context of litigation. Whatever the decision, it is one that only Congress can make. Accordingly, the judgment of the Court of Appeals is Affirmed. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR.	The sole issue in this case is whether petitioner, the trustee in reorganization of Webb & Knapp, Inc., has standing under Chapter X of the Bankruptcy Act, 11 U.S. C. 501 et seq., to assert, on behalf of persons holding debentures issued by Webb & Knapp, claims of misconduct by an indenture trustee. The United States District Court for the Southern District 417 of New York held that petitioner lacked the requisite standing, and the United States Court of Appeals for the Second Circuit affirmed en banc, with two judges dissenting,[1] We granted certiorari, and we now affirm the decision of the Court of Appeals. I Webb & Knapp and its numerous subsidiaries were engaged in various real estate activities in both the United States and Canada. In 1954, the corporation executed an indenture with respondent, the Marine Midland Trust Company of New York (Marine), that provided for the issuance by Webb & Knapp of 5% debentures in the total amount of $8,607,600. A critical part of the indenture was the promise by Webb & Knapp that neither it nor any company affiliated with it[2] would incur or assume "any indebtedness resulting from money borrowed or from the purchase of real property or interests in real property or purchase any real property or interests in real property" unless the company's consolidated tangible assets, as defined in the indenture, equaled 200% of certain liabilities, after giving effect to the contemplated indebtedness or purchase.[3]418 By requiring the company to maintain an asset-liability ratio of 2:1, the indenture sought to protect debenture purchasers by providing a cushion against any losses that the company might suffer in the ordinary course of business. In order to demonstrate continuing compliance with the requirements of the indenture, Webb & Knapp covenanted to file an annual certificate with Marine stating whether the corporation (debtor) had defaulted on any of its responsibilities under the indenture during the preceding year.[4] In its role as indenture trustee, Marine undertook "in case of default to exercise such of the rights and powers vested in it by [the] Indenture, and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs."[5] This undertaking was qualified by language in the indenture that permitted the trustee to rely on the accuracy of certificates or reports of Webb & Knapp, in the absence of bad faith.[6] Commencing in 1959, Webb & Knapp sustained substantial financial losses in every year.[7] Finally, on May 7, 1965, Marine filed a petition in district court seeking the involuntary reorganization of Webb & Knapp under Chapter X of the Bankruptcy Act, 11 U.S. C. 501 et seq. Pursuant to 208 of Chapter X, 11 U.S. C. 608, the Securities and Exchange Commission intervened 419 on May 10, 1965.[8] Marine's petition was subsequently approved and petitioner was appointed trustee in reorganization on May 18, 1965. With the approval of the District Court, petitioner exercised the powers conferred upon him by 11 U.S. C. 567 and undertook an extensive investigation of the financial affairs of Webb & Knapp. His investigation showed that the company had total assets of $21,538,621 and total liabilities of $60,036,164, plus contingent tax liabilities of $29,400,000. Included among the liabilities were the 1954 debentures in the principal amount of $4,298,200 plus interest subsequent to the inception of the reorganization proceeding.[9] The investigation led petitioner to conclude that Marine had either willfully or negligently failed to fulfill its obligations under the indenture. Petitioner supported his conclusion with the following allegations: that from 1954 to 1964, Webb & Knapp's yearly certificates of compliance with the 2:1 asset-liability ratio mandated by the indenture were fraudulent, because they were based on grossly overvalued appraisals of real estate property; that from 1958 to 1964, Webb & Knapp did not have sufficient assets to comply with the terms of the indenture; that Marine should have known or did know of the inflated appraisals; and that because Marine permitted Webb & Knapp to violate the indenture by engaging in transactions that its impaired asset-liability 420 ratio forbade, Webb & Knapp suffered great financial losses.[10] Having obtained the approval of the District Court, petitioner filed an independent action on behalf of the debenture holders against Marine seeking to recover the principal amount of the outstanding debentures as damages for Marine's alleged bad-faith failure to compel compliance with the terms of the indenture by Webb & Knapp. Petitioner also filed a counterclaim in the same amount against Marine in the reorganization proceeding in which Marine had previously filed a claim for services rendered. In the reorganization proceeding, petitioner also filed an objection to the claim for services rendered, on the ground that even if petitioner could not obtain an affirmative recovery against Marine on behalf of the bondholders, he could at least raise Marine's improper conduct as a reason why the claim for services rendered should be denied.[11] Finally, petitioner moved to compel an accounting by Marine. Marine moved to dismiss the independent action and the counterclaim, moved to strike the objection to the claim for services rendered, and opposed the motion to compel an accounting. The District Court found that petitioner had no standing in his capacity as a trustee in reorganization under Chapter X of the Bankruptcy Act to raise claims of misconduct by an indenture trustee on behalf of debenture holders and granted both of Marine's motions to dismiss. Viewing the motion to compel an accounting as merely a third vehicle to raise the same 421 claim on behalf of the debenture holders, the District Court denied that motion also. Only petitioner's objection to the claim for services rendered was left standing.[12] Petitioner appealed the dismissal of his claims and the denial of his motion for an accounting to the Court of Appeals. Marine filed a cross-appeal from the denial of its motion to strike petitioner's objection to the claim for services rendered. The Court of Appeals affirmed the decision of the District Court in its entirety. II The issue confronting us has never before been presented to this Court. It is an issue that has only rarely been presented to other courts, and on those rare occasions, it has caused even the most able jurists to disagree. The first time the issue arose was in Judge Augustus Hand wrote the opinion of the court holding that a trustee in reorganization did not have standing to sue a third party on behalf of bondholders. Judge Learned Hand disagreed and dissented. It is this decision that the lower courts found controlling in the instant case. The Clarke case is, in fact, the only other case in which the issue that is raised here was squarely presented.[13]422 The issue is a difficult one, and, as we point out later, it is one that is capable of resolution by explicit congressional action. Lacking a specific legislative statement on this issue, we must resolve it as best we can by examining the nature of Chapter X proceedings, the role of the trustee in reorganization, and the way in which standing to sue on behalf of debenture holders would affect or change that role. Chapter X, enacted in 1938, stemmed from a comprehensive SEC study that disclosed widespread abuses under the then-existing provisions for business reorganizations. See Securities and Exchange Commission, Report on the Study and Investigation of the Work, Activities, Personnel and Functions of Protective and Reorganization Committees (1937-1940). This same study gave birth the following year to the Trust Indenture Act of 1939, 15 U.S. C. 77aaa et seq., which is discussed infra. In enacting Chapter X, Congress had protection of public investors primarily in mind. "The aims of Chapter X were to afford greater protection to creditors and stockholders by providing greater judicial control over the entire proceedings and impartial and expert administrative assistance in corporate reorganizations through appointment of a disinterested trustee and the active participation of the SEC." In 423 contradistinction to a bankruptcy proceeding where liquidation of a corporation and distribution of its assets is the goal, a Chapter X proceeding is for purposes of rehabilitating the corporation and reorganizing it. Chapter X proceedings are not limited to insolvent corporations but are open to those corporations that are solvent in the bankruptcy (asset-liability) sense but are unable to meet their obligations as they mature. United ; 11 U.S. C. 530 (1). The trustee in reorganization is the center of the statutory scheme. H. R. Rep. No. 09, 75th Cong., 1st Sess., 43, 44. Title 11 U.S. C. 567 gives the trustee broad powers: "The trustee upon his appointment and qualification "(1) shall, if the judge shall so direct, with investigate the acts, conduct, property, liabilities, and financial condition of the debtor, the operation of its business and the desirability of the continuance thereof, and any other matter relevant to the proceeding or to the formulation of a plan, and report thereon to the judge; "(2) may, if the judge shall so direct, examine the directors and officers of the debtor and any other witnesses concerning the foregoing matters or any of them; "(3) shall report to the judge any facts ascertained by him pertaining to fraud, misconduct, mismanagement and irregularities, and to any causes of action available to the estate; "(5) shall, at the earliest date practicable, prepare and submit a brief statement of his investigation of the property, liabilities, and financial condition of the debtor, the operation of its business and 424 the desirability of the continuance thereof, in such form and manner as the judge may direct, to the creditors, stockholders, indenture trustees, the Securities and Exchange Commission, and such other persons as the judge may designate; and "(6) shall give notice to the creditors and stockholders that they may submit to him suggestions for the formulation of a plan, or proposals in the form of plans, within a time therein named." Title 11 U.S. C. 587 expands these powers: "Where not inconsistent with the provisions of this chapter, a trustee, upon his appointment and qualification, shall be vested with the same rights, be subject to the same duties, and exercise the same powers as a trustee appointed under section 72 of this title, and, if authorized by the judge, shall have and may exercise such additional rights and powers as a receiver in equity would have if appointed by a court of the United States for the property of the debtor." The powers given a trustee appointed under 72 are set in a footnote.[] 425 Petitioner argues that these powers are broad enough to encompass a suit on behalf of debenture holders against an indenture trustee who has acted in bad faith, and who has, therefore, violated the indenture and the Trust Indenture Act of 1939, 15 U.S. C. 77aaa et seq. As pointed out above, the Trust Indenture Act was passed one year after Chapter X was enacted. Prior to its enactment, indenture trustees immunized themselves from any liability for either deliberate or negligent misconduct by writing exculpatory provisions into the indenture. Even in cases where misconduct by the indenture trustee was the proximate cause of injury to debenture holders, they found themselves impotent under the terms of most indentures to take action against the trustee. See generally 2 L. Loss, Securities Regulation 719-725 (2d ed. 1961). This problem and others are specifically mentioned in 15 U.S. C. 77bbb as establishing a necessity for regulation. The regulation provided by the Act takes many forms. 15 U.S. C. 77eee requires that whenever securities covered by the Trust Indenture Act are also covered by the registration provisions of the Securities Act of 1933, 15 U.S. C. 77a et seq., certain information about the indenture trustee and the terms of the indenture 426 must be included in the registration statement. Title 15 U.S. C. 77ggg provides that when securities are not registered under the 1933 Act but are covered by the Trust Indenture Act, the indenture must be "qualified" by the SEC before it is legal to sell the securities. Standards for eligibility and disqualification of a trustee are established by 15 U.S. C. 77jjj, and the duties and responsibilities of a trustee are enumerated in 15 U.S. C. 77ooo.[15] The indenture giving rise to this litigation was qualified by the SEC pursuant to the Trust Indenture Act of 1939. By alleging that the indenture trustee negligently or intentionally failed to prevent Webb & Knapp from violating the terms of the indenture, petitioner clearly alleges a violation of the 1939 legislation, 15 U.S. C. 77ooo.[16] But the question remains whether petitioner is a proper party to take corrective action.[17] 427 Petitioner urges that the reorganization trustee is in a far better position than debt investors to discover and to prosecute claims based on the alleged failure of an indenture trustee to live up to the provisions of the indenture. He points to 11 U.S. C. 567, set and emphasizes that not only does the reorganization trustee have possession of the records of the debtor, but he also has a statutory duty to investigate the debtor's affairs and to "report to the judge any facts ascertained by him pertaining to fraud, misconduct, mismanagement and irregularities, and to any causes of action available to the estate." Reference is made, too, to 15 U.S. C. 77bbb (a) (1), which states that one of the problems Congress saw with respect to misconduct by indenture trustees was that "(A) individual action by investors for the purpose of protecting and enforcing their rights is rendered impracticable by reason of the disproportionate expense of taking such action, and (B) concerted action by such investors in their common interest through representatives of their own selection is impeded by reason of the wide dispersion of such investors through many States, and by reason of the fact that information as to the names and addresses of such investors generally is not available to such investors."[18] 428 Finally, petitioner asserts that to give him standing to sue on behalf of debenture holders will not encourage vexatious litigation or unduly deplete the resources of the debtor that he has been appointed to reorganize. He supports the first half of this proposition by noting that any action he takes is subject to the supervision of the District Court and to intervention by the SEC. The second half of the proposition finds support in the argument discussed above that petitioner already has a duty of investigation and that the minimal additional burden of prosecuting a lawsuit will not be great. At first blush, petitioner's theory, adopted in the opinion of the dissenters in the Court of Appeals, seems reasonable. But, there are three problems with petitioner's argument and these problems require that his position be rejected. First, Congress has established an elaborate system of controls with respect to indenture trustees and reorganization proceedings, and nowhere in the statutory scheme is there any suggestion that the trustee in reorganization is to assume the responsibility of suing third parties on behalf of debenture holders. The language, in fact, indicates that Congress had no such intent in mind. The statute, 11 U.S. C. 567 (3), gives the trustee the right, and indeed imposes the duty, to investigate fraud and misconduct and to report to the judge the potential causes of action "available to the estate." Even assuming that this section is read as if the quoted words were not present, and that it authorizes a trustee in reorganization to report whether he believes an indenture trustee has violated a duty to third-party debenture holders, there is nothing in the section that enables him to collect money not owed to the estate. Nor is there anything in 11 U.S. C. 110, set in relevant part in footnote that gives him this authority. His task is simply to "collect and reduce to 429 money the property of the estates for which [he is trustee]." 11 U.S. C. 75. The only support petitioner finds in the relevant statutes is in that portion of 11 U.S. C. 587 which gives reorganization trustees the additional rights that a "receiver in equity would have if appointed by a court of the United States for the property of the debtor." Petitioner relies on 296 U.S. 0 to support the proposition that a receiver in equity may sue third parties on behalf of bondholders. But, the opinion of the Court by Mr. Justice Cardozo clearly emphasizes that the receiver in that case was suing on behalf of the corporation, not third parties; he was simply stating the same claim that the corporation could have made had it brought suit prior to entering receivership.[19] The debtor corporation makes no such claim in this case. See generally 2 R. Clark, Law and Practice of Receivers 362, at 619 (3d ed. 1959). This brings us to the second problem with petitioner's argument. Nowhere does petitioner argue that Webb & Knapp could make any claim against Marine. Indeed, the conspicuous silence on this point is a tacit admission that no such claim could be made.[20] Assuming that 430 petitioner's allegations of misconduct on the part of the indenture trustee are true, petitioner has at most described a situation where Webb & Knapp and Marine were in pari delicto. Whatever damage the debenture holders suffered, under petitioner's theory Webb & Knapp is as much at fault as Marine, if not more so. A question would arise, therefore, whether Marine would be entitled to be subrogated to the claims of the debenture holders. The Court of Appeals thought that subrogation would be required, If the Court of Appeals is correct, it is then difficult to see what advantage there is in giving petitioner standing to sue, for as Chief Judge Friendly noted in his opinion for the court below: "It is necessary in the first instance to consider what effect a recovery by the Chapter X Trustee would have on the reorganization. On a superficial view this might seem substantialif, for example, the Chapter X Trustee were to achieve a complete recovery, the debenture holders would be paid off and it might seem there would be that much more for the other creditors and the stockholders. But this pleasant prospect speedily evaporates when the law of subrogation is brought into play. As a result of subrogation, Marine would simply be substituted for the debenture holders as the claimant. Cf. ALI, Restatement of Security 1 (1941). If the Chapter X Trustee recovered judgment in a lesser amount, the claim of the debenture holders would still be provable in full, with the division of the proceeds between them and Marine dependent upon the results of the reorganization, and other creditors or stockholders would not be affected." Even if the Court of Appeals is incorrect in its view of the propriety of subrogation under the facts of this case, 431 the fact remains that in every reorganization there is going to be a question of how much the trustee in reorganization should be permitted to recover on behalf of the debenture holders. The answer is, of course, whatever he cannot recoup from the corporation. Once this is recognized, the wisdom of Judge Augustus Hand in 137 F. 2d, at 800, becomes readily apparent: "Each creditor, including the debenture-holders, can prove the full amount of his claim, and only to the extent that a debenture-holder fails to satisfy it from the bankruptcy estate will he suffer a loss which he can assert against the defendant through its failure to enforce the negative covenants." In other words, debenture holders will not be able to recover damages from the indenture trustee until the reorganization is far enough along so that a reasonable approximation can be made as to the extent of their losses, if any. It is difficult to see precisely why it is at that point that the trustee in reorganization should represent the interests of the debenture holders, who are capable of deciding for themselves whether or not it is worthwhile to seek to recoup whatever losses they may have suffered by an action against the indenture trustee. Petitioner appears to concede that any suit by debenture holders would not affect the interests of other parties to the reorganization, assuming that the Court of Appeals is correct on the subrogation point. It would seem, therefore, that the debenture holders, the persons truly affected by the suit against Marine, should make their own assessment of the respective advantages and disadvantages, not only of litigation, but of various theories of litigation. This brings us to the third problem with petitioner's argument: i. e., a suit by him on behalf of debenture holders may be inconsistent with any independent actions 432 that they might bring themselves. Petitioner and the SEC make very plain their position that a suit by the trustee in reorganization does not pre-empt suits by individual debenture holders. They maintain, however, that it would be unlikely that such suits would be brought since the debenture holders could reasonably expect that the trustee would vigorously prosecute the claims of all debt investors. But, independent actions are still likely because it is extremely doubtful that the trustee and all debenture holders would agree on the amount of damages to seek, or even on the theory on which to sue.[21] Moreover, if the indenture trustee wins the suit brought by the trustee in reorganization, unless the debenture holders are bound by that victory, the proliferation of litigation that petitioner seeks to avoid would then ensue. Finally, a question would arise as to who was bound by any settlement.[22] 433 Rule 23 of the Federal Rules of Civil Procedure, which provides for class actions, avoids some of these difficulties. It is surely a powerful remedy and one that is available to all debenture holders.[23] Some of the factors that formerly deterred such actions have been changed by the Trust Indenture Act of 1939. Title 15 U.S. C. 77lll, for example, now requires that the debtor corporation maintain lists of debenture holders that it must turn over to the indenture trustees at regular intervals. Such lists are available to the individual debenture 434 holders upon request. Debenture holders would also be able to take advantage of any information obtained by the trustee in reorganization as a result of the investigation which the statute requires that he make. In addition, petitioner himself maintains that counsel fees would be recoverable if the action was successful. Brief for Petitioner 20; cf. 15 U.S. C. 77nnn. Thus, there is no showing whatever that by giving petitioner standing to sue on behalf of the debenture holders we would reduce litigation. On the contrary, there is every indication that litigation would be increased, or at least complicated. III For the reasons discussed above we conclude that petitioner does not have standing to sue an indenture trustee on behalf of debenture holders. This does not mean that it would be unwise to confer such standing on trustees in reorganization. It simply signifies that Congress has not yet indicated even a scintilla of an intention to do so, and that such a policy decision must be left to Congress and not to the judiciary. Congress might well decide that reorganizations have not fared badly in the 34 years since Chapter X was enacted and that the status quo is preferable to inviting new problems by making changes in the system. Or, Congress could determine that the trustee in a reorganization was so well situated for bringing suits against indenture trustees that he should be permitted to do so. In this event, Congress might also determine that the trustee's action was exclusive, or that it should be brought as a class action on behalf of all debenture holders, or perhaps even that the debenture holders should have the option of suing on their own or having the trustee sue on their behalf. Any number of alternatives are available. Congress would also be able to answer questions regarding subrogation or timing of law suits before these questions *435 arise in the context of litigation. Whatever the decision, it is one that only Congress can make. Accordingly, the judgment of the Court of Appeals is Affirmed. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR.
Justice Kennedy	concurring	false	United States v. Olano	1993-04-26T00:00:00	null	https://www.courtlistener.com/opinion/112848/united-states-v-olano/	https://www.courtlistener.com/api/rest/v3/clusters/112848/	1,993	1992-060	1	6	3	I join the Court's opinion and add this brief statement to express my own understanding of the Court's holding. When a court notices an error on its own initiative under Federal Rule of Criminal Procedure 52(b), see Silber v. United States, 370 U.S. 717, 718 (1962) (per curiam), it may be awkward to say that the case is decided by burden of proof concepts, for by definition none of the parties have addressed the issue. But the Court's opinion is phrased with care to indicate that burden of proof concepts are the normal or usual mode of analysis of error under Rule 52, see ante, at 734-735, and so other rules may apply where the aggrieved party has not raised the issue. In most cases, however, 742 the party will have raised the alleged error on appeal. In that context, the analysis the Court adopts today is helpful, for it gives operative effect to the difference under Rule 52 between those cases where an objection has been preserved and those where it has not. That leads me to a final point, which is the independent force of the Rule against permitting alternates in the jury room during deliberations. As the Court is careful to note, this case was submitted on the assumption that it is error to follow this practice, and the Court does not question that premise. Indeed, there are good reasons to suppose that Federal Rule of Criminal Procedure 24(c) is the product of a judgment that our jury system should be given a stable and constant structure, one that cannot be varied by a court with or without the consent of the parties. See Reply Brief for United States 9, n. 4. In the course of a lengthy trial, defense counsel, who may have numerous requests for rulings pending before a district court, may acquiesce in a proposal from the bench concerning jury composition so that counsel can concentrate on matters they deem more pressing. In such a climate, the trial court ought not to put counsel in the position of having to object to a suggestion that compromises the Federal Rules. If there were a case in which a specific objection had been made and overruled, the systemic costs resulting from the Rule 24(c) violation would likely be significant, since it would seem to me most difficult for the Government to show the absence of prejudice, which would be required to avoid reversal of the conviction under Rule 52(a). Rule 24(c) is based on certain premises about group dynamics that make it difficult for us to know how the jury's deliberations may have been affected. Defendants seeking reversal under Rule 52(b) are also likely to experience these difficulties in proving prejudice. But, as the Court makes clear today, the operation of Rule 52(b) does not permit a party to withhold 743 an objection to the presence of alternate jurors during jury deliberations and then to demand automatic reversal.	I join the Court's opinion and add this brief statement to express my own understanding of the Court's holding. When a court notices an error on its own initiative under Federal Rule of Criminal Procedure 52(b), see it may be awkward to say that the case is decided by burden of proof concepts, for by definition none of the parties have addressed the issue. But the Court's opinion is phrased with care to indicate that burden of proof concepts are the normal or usual mode of analysis of error under Rule 52, see ante, at 734-735, and so other rules may apply where the aggrieved party has not raised the issue. In most cases, however, 742 the party will have raised the alleged error on appeal. In that context, the analysis the Court adopts today is helpful, for it gives operative effect to the difference under Rule 52 between those cases where an objection has been preserved and those where it has not. That leads me to a final point, which is the independent force of the Rule against permitting alternates in the jury room during deliberations. As the Court is careful to note, this case was submitted on the assumption that it is error to follow this practice, and the Court does not question that premise. Indeed, there are good reasons to suppose that Federal Rule of Criminal Procedure 24(c) is the product of a judgment that our jury system should be given a stable and constant structure, one that cannot be varied by a court with or without the consent of the parties. See Reply Brief for United States 9, n. 4. In the course of a lengthy trial, defense counsel, who may have numerous requests for rulings pending before a district court, may acquiesce in a proposal from the bench concerning jury composition so that counsel can concentrate on matters they deem more pressing. In such a climate, the trial court ought not to put counsel in the position of having to object to a suggestion that compromises the Federal Rules. If there were a case in which a specific objection had been made and overruled, the systemic costs resulting from the Rule 24(c) violation would likely be significant, since it would seem to me most difficult for the Government to show the absence of prejudice, which would be required to avoid reversal of the conviction under Rule 52(a). Rule 24(c) is based on certain premises about group dynamics that make it difficult for us to know how the jury's deliberations may have been affected. Defendants seeking reversal under Rule 52(b) are also likely to experience these difficulties in proving prejudice. But, as the Court makes clear today, the operation of Rule 52(b) does not permit a party to withhold 743 an objection to the presence of alternate jurors during jury deliberations and then to demand automatic reversal.
Justice Alito	concurring	false	Crawford v. Metropolitan Government of Nashville and Davidson Cty.	2009-01-26T00:00:00	null	https://www.courtlistener.com/opinion/145915/crawford-v-metropolitan-government-of-nashville-and-davidson-cty/	https://www.courtlistener.com/api/rest/v3/clusters/145915/	2,009	2008-016	2	9	0	The question in this case is whether Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S. C. §2000e et seq. (2000 ed. and Supp. V), prohibits retaliation against an employee who testifies in an inter nal investigation of alleged sexual harassment. I agree with the Court that the “opposition clause” of §2000e–3(a) (2000 ed.) prohibits retaliation for such conduct. I also agree with the Court’s primary reasoning, which is based on “the point argued by the Government and explained by an EEOC guideline: ‘When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication’ virtually always ‘constitutes the employee’s opposition to the activity.’ ” Ante, at 4. I write separately to emphasize my understanding that the Court’s holding does not and should not extend beyond employees who testify in internal investigations or engage in analogous purposive conduct. As the Court concludes, the term “oppose” does not denote conduct that necessarily rises to the level required by the Sixth Circuit—i.e., conduct that is “ ‘consistent’ ” and “instigated or initiated” by the employee. 211 Fed. 2 CRAWFORD v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON CTY. ALITO, J., concurring in judgment Appx. 373, 376 (2006). The primary definitions of the term “oppose” do, however, require conduct that is active and purposive. See Webster’s New International Diction ary 1709–1710 (2d ed. 1953); Random House Dictionary of the English Language 1010 (1966) (hereinafter Random Dict.); 10 Oxford English Dictionary 866–867 (2d ed. 1989). For example, the first three definitions of the term in the dictionary upon which the Court principally relies are as follows: “1. to act against or provide resistance to; combat. 2. to stand in the way of; hinder; obstruct. 3. to set as an opponent or adversary.” Random Dict. 1359 (2d ed. 1987). In accordance with these definitions, petitioner contends that the statutory term “oppose” means “taking action (including making a statement) to end, prevent, redress, or correct unlawful discrimination.” Brief for Petitioner 40. In order to decide the question that is before us, we have no need to adopt a definition of the term “oppose” that is broader than the definition that petitioner advances. But in dicta, the Court notes that the fourth listed definition in the Random House Dictionary of the English Language goes further, defining “oppose” to mean “ ‘to be hostile or adverse to, as in opinion.’ ” Ante, at 4 (emphasis added). Thus, this definition embraces silent opposition. While this is certainly an accepted usage of the term “oppose,” the term is not always used in this sense, and it is questionable whether silent opposition is covered by the opposition clause of 42 U.S. C. §2000e–3(a). It is notewor thy that all of the other conduct protected by this provi sion—making a charge, testifying, or assisting or partici pating in an investigation, proceeding, or hearing— requires active and purposive conduct. “ ‘That several items in a list share an attribute counsels in favor of Cite as: 555 U. S. ____ (2009) 3 ALITO, J., concurring in judgment interpreting the other items as possessing that attribute as well.’ ” S. D. Warren Co. v. Maine Bd. of Environmental Protection, 547 U.S. 370, 378 (2006) (quoting Beecham v. United States, 511 U.S. 368, 371 (1994)). An interpretation of the opposition clause that protects conduct that is not active and purposive would have im portant practical implications. It would open the door to retaliation claims by employees who never expressed a word of opposition to their employers. To be sure, in many cases, such employees would not be able to show that management was aware of their opposition and thus would not be able to show that their opposition caused the adverse actions at issue. But in other cases, such employ ees might well be able to create a genuine factual issue on the question of causation. Suppose, for example, that an employee alleges that he or she expressed opposition while informally chatting with a co-worker at the proverbial water cooler or in a workplace telephone conversation that was overheard by a co-worker. Or suppose that an em ployee alleges that such a conversation occurred after work at a restaurant or tavern frequented by co-workers or at a neighborhood picnic attended by a friend or relative of a supervisor. Some courts hold that an employee asserting a retalia tion claim can prove causation simply by showing that the adverse employment action occurred within a short time after the protected conduct. See, e.g., Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (noting that some cases “accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case”); see also Gorman-Bakos v. Cornell Cooperative Extension of Schenectady Cty., 252 F.3d 545, 554 (CA2 2001); Conner v. Schnuk Markets, Inc., 121 F.3d 1390, 1395 (CA10 1997); Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1458 4 CRAWFORD v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON CTY. ALITO, J., concurring in judgment (CA7 1994). As a result, an employee claiming retaliation may be able to establish causation simply by showing that, within some time period prior to the adverse action, the employer, by some indirect means, became aware of the views that the employee had expressed. Where the pro tected conduct consisted of a private conversation, applica tion of this rule would be especially problematic because of uncertainty regarding the point in time when the em ployer became aware of the employee’s private expressions of disapproval. The number of retaliation claims filed with the EEOC has proliferated in recent years. See U. S. Equal Em ployment Opportunity Commission, Charge Statistics: FY 1997 Through FY 2007, http://www.eeoc.gov/stats/ charges.html; Charge Statistics: FY 1992 Through FY 1996, http://www.eeoc.gov/stats/charges-a.html (as visited Jan. 16, 2009, and available in Clerk of Court’s case file) (showing that retaliation charges filed with the EEOC doubled between 1992 and 2007). An expansive interpre tation of protected opposition conduct would likely cause this trend to accelerate. The question whether the opposition clause shields employees who do not communicate their views to their employers through purposive conduct is not before us in this case; the answer to that question is far from clear; and I do not understand the Court’s holding to reach that issue here. For present purposes, it is enough to hold that the opposition clause does protect an employee, like peti tioner, who testifies about unlawful conduct in an internal investigation	The question in this case is whether Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. et seq. (2000 ed. and Supp. V), prohibits retaliation against an employee who testifies in an inter nal investigation of alleged sexual harassment. I agree with the Court that the “opposition clause” of –3(a) (2000 ed.) prohibits retaliation for such conduct. I also agree with the Court’s primary reasoning, which is based on “the point argued by the Government and explained by an EEOC guideline: ‘When an employee communicates to her employer a belief that the employer has engaged in a form of employment discrimination, that communication’ virtually always ‘constitutes the employee’s opposition to the activity.’ ” Ante, at 4. I write separately to emphasize my understanding that the Court’s holding does not and should not extend beyond employees who testify in internal investigations or engage in analogous purposive conduct. As the Court concludes, the term “oppose” does not denote conduct that necessarily rises to the level required by the Sixth Circuit—i.e., conduct that is “ ‘consistent’ ” and “instigated or initiated” by the employee. 211 Fed. 2 CRAWFORD v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON CTY. ALITO, J., concurring in judgment Appx. 373, 376 The primary definitions of the term “oppose” do, however, require conduct that is active and purposive. See Webster’s New International Diction ary 1709–1710 (2d ed. 1953); Random House Dictionary of the English Language 1010 (1966) (hereinafter Random Dict.); 10 Oxford English Dictionary 866–867 (2d ed. 1989). For example, the first three definitions of the term in the dictionary upon which the Court principally relies are as follows: “1. to act against or provide resistance to; combat. 2. to stand in the way of; hinder; obstruct. 3. to set as an opponent or adversary.” Random Dict. 1359 (2d ed. 1987). In accordance with these definitions, petitioner contends that the statutory term “oppose” means “taking action (including making a statement) to end, prevent, redress, or correct unlawful discrimination.” Brief for Petitioner 40. In order to decide the question that is before us, we have no need to adopt a definition of the term “oppose” that is broader than the definition that petitioner advances. But in dicta, the Court notes that the fourth listed definition in the Random House Dictionary of the English Language goes further, defining “oppose” to mean “ ‘to be hostile or adverse to, as in opinion.’ ” Ante, at 4 (emphasis added). Thus, this definition embraces silent opposition. While this is certainly an accepted usage of the term “oppose,” the term is not always used in this sense, and it is questionable whether silent opposition is covered by the opposition clause of 42 U.S. C. –3(a). It is notewor thy that all of the other conduct protected by this provi sion—making a charge, testifying, or assisting or partici pating in an investigation, proceeding, or hearing— requires active and purposive conduct. “ ‘That several items in a list share an attribute counsels in favor of Cite as: 555 U. S. (2009) 3 ALITO, J., concurring in judgment interpreting the other items as possessing that attribute as well.’ ” S. D. Warren ). An interpretation of the opposition clause that protects conduct that is not active and purposive would have im portant practical implications. It would open the door to retaliation claims by employees who never expressed a word of opposition to their employers. To be sure, in many cases, such employees would not be able to show that management was aware of their opposition and thus would not be able to show that their opposition caused the adverse actions at issue. But in other cases, such employ ees might well be able to create a genuine factual issue on the question of causation. Suppose, for example, that an employee alleges that he or she expressed opposition while informally chatting with a co-worker at the proverbial water cooler or in a workplace telephone conversation that was overheard by a co-worker. Or suppose that an em ployee alleges that such a conversation occurred after work at a restaurant or tavern frequented by co-workers or at a neighborhood picnic attended by a friend or relative of a supervisor. Some courts hold that an employee asserting a retalia tion claim can prove causation simply by showing that the adverse employment action occurred within a short time after the protected conduct. See, e.g., Clark County School (noting that some cases “accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case”); see also ; Conner v. Schnuk Markets, Inc., (CA10 1997); 4 CRAWFORD v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON CTY. ALITO, J., concurring in judgment As a result, an employee claiming retaliation may be able to establish causation simply by showing that, within some time period prior to the adverse action, the employer, by some indirect means, became aware of the views that the employee had expressed. Where the pro tected conduct consisted of a private conversation, applica tion of this rule would be especially problematic because of uncertainty regarding the point in time when the em ployer became aware of the employee’s private expressions of disapproval. The number of retaliation claims filed with the EEOC has proliferated in recent years. See U. S. Equal Em ployment Opportunity Commission, Charge Statistics: FY 1997 Through FY 2007, http://www.eeoc.gov/stats/ charges.html; Charge Statistics: FY 1992 Through FY 1996, http://www.eeoc.gov/stats/charges-a.html (as visited Jan. 16, 2009, and available in Clerk of Court’s case file) (showing that retaliation charges filed with the EEOC doubled between 1992 and 2007). An expansive interpre tation of protected opposition conduct would likely cause this trend to accelerate. The question whether the opposition clause shields employees who do not communicate their views to their employers through purposive conduct is not before us in this case; the answer to that question is far from clear; and I do not understand the Court’s holding to reach that issue here. For present purposes, it is enough to hold that the opposition clause does protect an employee, like peti tioner, who testifies about unlawful conduct in an internal investigation
per_curiam	per_curiam	true	Bosse v. Oklahoma	2016-10-11T00:00:00	null	https://www.courtlistener.com/opinion/4311283/bosse-v-oklahoma/	https://www.courtlistener.com/api/rest/v3/clusters/4311283/	2,016	2016-017	2	8	0	In Booth v. Maryland, 482 U.S. 496 (1987), this Court held that “the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence” that does not “relate directly to the circumstances of the crime.” Id., at 501–502, 507, n. 10. Four years later, in Payne v. Tennessee, 501 U.S. 808 (1991), the Court granted certiorari to reconsider that ban on “ ‘victim impact’ evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family.” Id., at 817. The Court held that Booth was wrong to conclude that the Eighth Amendment re quired such a ban. Payne, 501 U.S. at 827. That holding was expressly “limited to” this particular type of victim impact testimony. Id., at 830, n. 2. “Booth also held that the admission of a victim’s family members’ characteriza tions and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment,” but no such evidence was presented in Payne, so the Court had no occasion to reconsider that aspect of the decision. Ibid. The Oklahoma Court of Criminal Appeals has held that Payne “implicitly overruled that portion of Booth regard ing characterizations of the defendant and opinions of the sentence.” Conover v. State, 933 P.2d 904, 920 (1997) (emphasis added); see also Ledbetter v. State, 933 P.2d 880, 890–891 (Okla. Crim. App. 1997). The decision below presents a straightforward application of that interpreta tion of Payne. A jury convicted petitioner Shaun Michael 2 BOSSE v. OKLAHOMA Per Curiam Bosse of three counts of first-degree murder for the 2010 killing of Katrina Griffin and her two children. The State of Oklahoma sought the death penalty. Over Bosse’s objection, the State asked three of the victims’ relatives to recommend a sentence to the jury. All three recommended death, and the jury agreed. Bosse appealed, arguing that this testimony about the appropriate sentence violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed his sentence, concluding that there was “no error.” 2015 OK CR 14, ¶¶ 57–58, 360 P.3d 1203, 1226–1227. We grant certiorari and the motion for leave to proceed in forma pauperis, and now vacate the judgment of the Oklahoma Court of Criminal Appeals. “[I]t is this Court’s prerogative alone to overrule one of its precedents.” United States v. Hatter, 532 U.S. 557, 567 (2001) (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); internal quotation marks omitted); see Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). The Oklahoma Court of Criminal Ap peals has recognized that Payne “specifically acknowl edged its holding did not affect” Booth’s prohibition on opinions about the crime, the defendant, and the appro priate punishment. Ledbetter, 933 P.2d at 890–891. That should have ended its inquiry into whether the Eighth Amendment bars such testimony; the court was wrong to go further and conclude that Payne implicitly overruled Booth in its entirety. “Our decisions remain binding prec edent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Hohn v. United States, 524 U.S. 236, 252–253 (1998). The Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence unless this Court reconsiders that ban. The state court erred in con Cite as: 580 U. S. ____ (2016) 3 Per Curiam cluding otherwise. The State argued in opposing certiorari that, even if the Oklahoma Court of Criminal Appeals was wrong in its victim impact ruling, that error did not affect the jury’s sentencing determination, and the defendant’s rights were in any event protected by the mandatory sentencing re view in capital cases required under Oklahoma law. See Brief in Opposition 14–15. Those contentions may be addressed on remand to the extent the court below deems appropriate. The judgment of the Oklahoma Court of Criminal Ap peals is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Cite as: 580 U. S. ____ (2016) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 15–9173 _________________ SHAUN MICHAEL BOSSE v.	In this Court held that “the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence” that does not “relate directly to the circumstances of the crime.” at 501–502, 507, n. 10. Four years later, in the Court granted certiorari to reconsider that ban on “ ‘victim impact’ evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family.” The Court held that Booth was wrong to conclude that the Eighth Amendment re quired such a ban. That holding was expressly “limited to” this particular type of victim impact testimony. “Booth also held that the admission of a victim’s family members’ characteriza tions and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment,” but no such evidence was presented in so the Court had no occasion to reconsider that aspect of the decision. The Oklahoma Court of Criminal Appeals has held that “implicitly overruled that portion of Booth regard ing characterizations of the defendant and opinions of the sentence.” (emphasis added); see also v. State, 933 P.2d 880, 890–891 The decision below presents a straightforward application of that interpreta tion of A jury convicted petitioner Shaun Michael 2 BOSSE v. OKLAHOMA Per Curiam Bosse of three counts of first-degree murder for the 10 killing of Katrina Griffin and her two children. The State of Oklahoma sought the death penalty. Over Bosse’s objection, the State asked three of the victims’ relatives to recommend a sentence to the jury. All three recommended death, and the jury agreed. Bosse appealed, arguing that this testimony about the appropriate sentence violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed his sentence, concluding that there was “no error.” ¶¶ 57–58, 360 P.3d 13, 1226–1227. We grant certiorari and the motion for leave to proceed in forma pauperis, and now vacate the judgment of the Oklahoma Court of Criminal Appeals. “[I]t is this Court’s prerogative alone to overrule one of its precedents.” United 567 (01) ; internal quotation marks omitted); see Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). The Oklahoma Court of Criminal Ap peals has recognized that “specifically acknowl edged its holding did not affect” Booth’s prohibition on opinions about the crime, the defendant, and the appro priate punishment. –891. That should have ended its inquiry into whether the Eighth Amendment bars such testimony; the court was wrong to go further and conclude that implicitly overruled Booth in its entirety. “Our decisions remain binding prec edent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” 252–253 (1998). The Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence unless this Court reconsiders that ban. The state court erred in con Cite as: 580 U. S. (16) 3 Per Curiam cluding otherwise. The State argued in opposing certiorari that, even if the Oklahoma Court of Criminal Appeals was wrong in its victim impact ruling, that error did not affect the jury’s sentencing determination, and the defendant’s rights were in any event protected by the mandatory sentencing re view in capital cases required under Oklahoma law. See Brief in Opposition 14–15. Those contentions may be addressed on remand to the extent the court below deems appropriate. The judgment of the Oklahoma Court of Criminal Ap peals is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Cite as: 580 U. S. (16) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES No. 15–9173 SHAUN MICHAEL BOSSE v.
Justice Marshall	majority	false	Alexander v. Department of Housing and Urban Development	1979-04-17T00:00:00	null	https://www.courtlistener.com/opinion/110054/alexander-v-department-of-housing-and-urban-development/	https://www.courtlistener.com/api/rest/v3/clusters/110054/	1,979	1978-071	1	9	0	These cases require us to interpret the definition of a "displaced person" set forth in the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Relocation Act), 84 Stat. 1894, 42 U.S. C. § 4601 et seq. Section 101 (6) of the Act defines a "displaced person" as "any person who . . . moves . . . as a result of the acquisition of . . . real property, . . . or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency . . . ." 42 U.S. C. § 4601 (6).[1] 43 Relocation benefits are available under the Act for individuals and businesses that satisfy either the "acquisition" or "written order" clause of this definition. Because the Courts of Appeals for the Seventh and District of Columbia Circuits have adopted conflicting interpretations of the written order clause,[2] we granted certiorari. 437 U.S. 903 (1978). Both cases involve housing projects that the Department of Housing and Urban Development (HUD) acquired after the projects' sponsors defaulted on federally insured loans. We must determine whether the written order clause encompasses the tenants required to vacate those housing projects, even though HUD's orders to vacate were not motivated by a governmental acquisition of property to further a public program or project. I A Petitioners in No. 77-874 are 17 former tenants of the Riverhouse Tower Apartments, a low- and middle-income housing project in Indianapolis, Indiana. This complex was built in the late 1960's by a private nonprofit corporation, Riverhouse Apartments, Inc., whose mortgage HUD insured and subsidized pursuant to § 221 (d) (3) of the National Housing Act, 75 Stat. 150, as amended, 12 U.S. C. § 1715l (d) (3). Upon completion of the project, the Government National Mortgage Association (GNMA) purchased the mortgage from 44 the private lender in accordance with § 221 (d) (3) of the Housing Act. When Riverhouse Apartments, Inc., defaulted on the loan in July 1970, GNMA assigned the mortgage to HUD in exchange for payment of the statutory mortgage benefits. Three years later, HUD initiated foreclosure proceedings, and a court-appointed receiver assumed operation of the project until HUD purchased the property at a foreclosure sale in August 1974. HUD initially retained a management agent to continue operating the newly acquired project. However, the condition of the property had deteriorated so seriously during the period of default that HUD soon decided to close the apartment complex. Notices to quit were served on all remaining tenants in November 1974, and by the following February, the buildings were vacant. HUD refused to provide relocation benefits for these dislocated tenants or to disclose its plans regarding the terminated project.[3] Petitioners then initiated this action in Federal District Court, claiming, inter alia, that they were "displaced persons" entitled to assistance under the Relocation Act.[4] Construing the written order clause of § 101 (6) literally, the tenants argued that they had moved upon receiving written orders to vacate property acquired by a Government agency. The District Court rejected this statutory construction and granted summary judgment for HUD. Blades v. Dept. of HUD, Civ. No. IP 74-706-C (SD Ind., July 1, 1976). The Court of Appeals for the Seventh Circuit affirmed. In its view, § 101 (6) encompasses only displacements for programs designed to benefit 45 the public as a whole or to fulfill a public need, not dislocations caused by the irretrievable failure of a public housing project. 555 F.2d 166, 169-170 (1977).[5] B The tenants in No. 77-1463 formerly occupied the Sky Tower apartment complex built in Washington, D. C., during the 1950's. A nonprofit corporation purchased Sky Tower in 1970, intending to convert a number of its small "garden" apartments into larger units for low- and moderate-income families. HUD agreed to assist in the rehabilitation by insuring the corporation's mortgage on the complex and subsidizing its interest payments, pursuant to § 236 of the National Housing Act, 82 Stat. 498, as amended, 12 U.S. C. § 1715z-1. Difficulties with two successive general contractors eventually prevented the corporate sponsor from making interest payments on its loan. As a result, the mortgagee declared the sponsor in default, foreclosed on the mortgage, and conveyed title to HUD in exchange for the statutory mortgage insurance benefits. See 12 U.S. C. §§ 1713 (g), (k). After acquiring title to Sky Tower in June 1973, HUD hired a management agent to continue operating the partially rehabilitated complex. By September 1974, however, HUD realized that Sky Tower's deteriorated condition would render any further efforts at rehabilitation futile. The agency therefore planned to demolish the buildings and sell the land to private developers for construction of single-family homes. 46 When the 72 families living in the complex were ordered to vacate, HUD declined to extend assistance under the Relocation Act.[6] A group of the Sky Tower tenants brought this suit in Federal District Court, challenging HUD's decision to raze the complex and its refusal to provide full relocation benefits. The District Court preliminarily enjoined HUD from completing the demolition, and subsequently granted summary judgment for the tenants on the benefits issue. Civ. Action No. 74-1872 (DC, Sept. 12, 1975).[7] A divided panel of the Court of Appeals for the District of Columbia Circuit agreed that these tenants were "displaced persons" under the written order clause of § 101 (6). 187 U. S. App. D. C. 156, 161, 571 F.2d 590, 595 (1977). In so ruling, the Court of Appeals rejected HUD's argument that § 101 (6) reaches only persons dislocated by an agency's purposeful acquisition of property for use in certain types of government programs. The court instead considered the written order clause applicable whenever an agency orders persons to vacate so that property can be devoted to a federal program "`designed for the benefit of the public as a whole.'" 187 U. S. App. D. C., at 161, 571 47 F. 2d, at 595. In the court's view, HUD's demolition plan met this description. Ibid.[8] II Section 101 (6) of the Relocation Act, as previously indicated, provides that a "displaced person" is one who moves "as a result of the acquisition of . . . real property, . . . or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency . . . ." 42 U.S. C. § 4601 (6). In neither case do the tenants claim coverage under the "acquisition" clause of § 101 (6), which reaches persons dislocated by the actual procurement of property for a federal program or project. Brief for Respondents in No. 77-1463, p. 15, and n. 17; Tr. of Oral Arg. 10. Hence, these tenants' eligibility for relocation assistance turns on the meaning of the definition's written order clause. More precisely, their eligibility depends on the import of two critical phrases not specifically defined in the Act, "acquiring agency" and "for a program or project." The tenants contend that "acquiring agency" simply denotes a governmental body that has previously acquired property and that eventually orders persons to vacate. In contrast, HUD reads the phrase as a shorthand description of an agency currently engaged in the process of acquiring property. Under HUD's construction, the written order clause contains an implicit acquisition requirement. The clause thus construed does not apply unless an agency's proposed acquisition of property 48 directly causes issuance of the displacing order, whereas the tenants' interpretation demands no immediate causal connection between the procurement of property and the order to vacate. The parties also disagree about the proper referent for the phrase, "for a program or project."[9] HUD contends that this phrase modifies the acquisition requirement included in the written order clause. Consequently, "for a program or project" specifies the agency's original purpose in acquiring property, not just its purpose in issuing an order to vacate. Under this construction, the written order clause applies only if an agency issues its notice to vacate pursuant to an actual or proposed acquisition of property intended to further a federal program. Thus, tenants of a housing project acquired by the Government because of the owner's loan default would not be eligible for relocation assistance when the acquiring agency later adopts a program necessitating their displacement. The tenants, on the other hand, read "for a program or project" as referring solely to the written order. The phrase therefore identifies the agency's reason for ordering persons to vacate, but does not make eligibility depend on the agency's 49 original purpose in acquiring the property. According to this analysis, the written order clause covers any individual who receives a written order to vacate property that an agency has previously acquired, provided the displacement is "for" a federal program or project. Moreover, the tenants broadly construe "program or project" to include any governmental program designed to fulfill a public need. The statutory language is susceptible of either construction. However, an examination of Congress' purpose in adopting the Relocation Act, the legislative history of § 101 (6), and the structure of the Act as a whole persuades us that HUD's interpretation more nearly reflects the intended scope of this assistance program. A Passage of the Relocation Act in 1970 concluded nearly a decade of congressional effort to standardize federal legislation regarding relocation assistance. Prior to the 1960's, Congress had enacted special provisions to assist persons displaced when particular federal agencies acquired property for designated public projects.[10] As a result, relocation benefits varied substantially from program to program. The House Public Works Committee responded to these variations in 1961 by creating the Select Subcommittee on Real Property Acquisition. In 1964, this Subcommittee submitted a lengthy Report concerning the deficiencies of existing law, and its proposed "Fair Compensation Act" became the basis for most of the provisions ultimately codified in the Relocation Act.[11] 50 The proposed Fair Compensation Act unambiguously reflects Congress' limited purpose in revising the special relocation legislation. The Act's declared purpose was to afford "persons affected by the acquisition of real property in Federal and federally assisted programs . . . fair and equitable treatment on a basis as nearly uniform as practicable." Select Subcommittee Study 147 (emphasis added); see id., at 1-2, 122. This statement of policy embodied Congress' recognition that existing law provided relocation benefits only to those persons dislocated by governmental acquisitions of property for use in public projects.[12] And in accord with its mandate, the Select Subcommittee drafted the replacement legislation to standardize and improve the assistance provided within that particular context.[13] Thus, both the language and origins of the Relocation Act demonstrate that Congress initially intended to provide better relocation assistance when property is acquired for federal programs, not to extend assistance beyond that limited context to all persons somehow displaced by governmental programs.[14] 51 Congress' basic objective remained unchanged through succeeding legislative sessions as it considered a number of bills derived from the proposed Fair Compensation Act. During this period, the individual sponsors and the Senate Committee on Government Operations altered slightly the language used to declare Congress' purpose, but the meaning was unaffected.[15] Thus, the original "Declaration of Policy" in S. 1, 91st Cong., 1st Sess., § 201 (1969), the bill finally enacted as the Relocation Act, stated that the legislation was designed "to establish a uniform policy for the fair and equitable treatment of owners, tenants, and other persons displaced by the acquisition of real property in Federal and federally assisted programs to the end that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole." (Emphasis added.) This language leaves little doubt that Congress' concern was 52 still with displacements caused by the acquisition of property for a Government program or project.[16] In arguing that Congress had a broader purpose, to provide relocation assistance outside the acquisition context, the tenants rely on language adopted by the House of Representatives after the Senate passed S. 1. When the House Committee on Public Works reorganized and shortened the bill's provisions into their final form, it also streamlined the "Declaration of Policy" by deleting the references to acquisitions of property. Consequently, § 201 of the Relocation Act simply refers to "persons displaced as a result of Federal and federally assisted programs,"[17] and the tenants suggest that all such persons are the intended beneficiaries of the statute. However, the tenants' interpretation of this language is plainly inconsistent with prior versions of the section, all of which expressly related to displacements caused by the acquisition of property for the programs specified in § 201.[18] Nothing in the legislative materials suggests that this late revision in the Act's statement of purpose reflected any substantive departure from Congress' previous statutory design.[19] Indeed, the House Committee that shortened the Declaration of Policy stated in its Report that the bill "provides for relief of the economic 53 dislocation which occurs in the acquisition of real property for Federal and federally assisted programs." H. R. Rep. No. 91-1656, p. 3 (1970). Accordingly, the consistent purpose underlying this legislation persuades us that Congress intended the written order clause to apply only when an agency proposes acquiring property to further a federal program or project. B The legislative history specifically concerning the definition of a displaced person reinforces our conclusion. Prior versions of § 101 (6) encompassed only persons dislocated by actual or proposed property acquisitions, and in particular, those acquisitions intended to further federal programs and projects. The legislative materials demonstrate that when Congress added the written order clause to this definition, its purpose was to delineate more precisely a subcategory of the originally intended beneficiaries, consisting of those who move in anticipation that a property acquisition for a federal program will necessitate their displacement. Viewed in context, the written order clause addresses a special situation related to unconsummated property acquisitions, not all displacements loosely connected with Government programs. The definition of a displaced person originated in the proposed Fair Compensation Act. Section 115 defined the term to include persons and businesses that move from real property "as a result of the acquisition or imminence of acquisition of such real property, in whole or in part, by a Federal or State agency." Select Subcommittee Study 157-158. That this choice of language was deliberate can be seen from other provisions of the Act, which authorized relocation assistance only when the "head of any Federal agency acquires real property for public use."[20] 54 The version of the Fair Compensation Act introduced in the next Congress adopted the same definition of a displaced person.[21] However, witnesses during the Senate hearings criticized the phrase "or imminence of acquisition" as too ambiguous to provide guidance for agencies and potential displacees.[22] In response, the Senate Committee on Government Operations amended the phrase to read "or reasonable expectation of acquisition," thereby incorporating an objective standard of eligibility.[23] The limited scope of this amendment, 55 as well as the definition, is apparent from the Committee's explanation that the change was designed "to remove some of the ambiguities surrounding the meaning of `imminence' and to make it amply clear that this legislation applies to persons who move from property to be acquired in connection with a Federal or federally assisted program when or shortly after the proposed project is announced, and when the announcement is made substantially prior to the time the project is to be put into effect." S. Rep. No. 1378, 89th Cong., 2d Sess., 9 (1966). This passage and others in the Senate Committee Report[24] clearly indicate that Congress framed the definition to reach only persons displaced by actual or planned acquisitions of property. These materials also demonstrate that Congress restricted the definition even further by focusing exclusively on property acquisitions for use in federal programs and projects.[25] The Senate's amended definition of a displaced person was retained in the relocation bills proposed in succeeding legislative sessions, including the original version of the bill finally enacted as the Relocation Act, S. 1, 91st Cong., 1st Sess., § 105 (1969).[26] The Senate passed this bill with only minor amendments and without significant debate.[27] But the House Committee on Public Works amended the definition of a 56 displaced person when reorganizing the bill's provisions into their final form.[28] This late amendment added the clause on which the tenants base their argument that relocation assistance was intended for all persons displaced by Government programs. The contemporaneous legislative materials, however, refute the tenants' interpretation of the written order clause. During the House hearings on the relocation bills, a number of witnesses criticized even the "reasonable expectation of acquisition" language as overly vague.[29] To remedy this problem, representatives of the United States Department of Transportation and HUD recommended relating the expectation of acquisition to a readily discernible official act, so that persons who justifiably relied on agency representations could still obtain reimbursement even if the agency later failed to complete the acquisition.[30] The House Committee accepted this suggestion and replaced "or reasonable expectation of acquisition" with "or as the result of the written order of the 57 acquiring agency to vacate real property."[31] Thus, the sole objective underlying the present written order clause was to delineate more precisely the persons eligible for assistance as a result of planned, but unconsummated, acquisitions of property for federal programs. The House Committee Report and floor debate also reflect this limited purpose. Based on the previously understood scope of this legislation and on testimony given during the House hearings,[32] the House Committee was well aware that 58 the unamended definition of a displaced person excluded those displaced by means other than property acquisitions for public projects. The Committee presumably would have articulated any intent to extend coverage beyond the acquisition context or to eliminate the requirement that an acquisition be for a federal program.[33] Instead, the House Report simply explained that under the new written order clause, "[i]f a person moves as the result of such a notice to vacate, it makes no difference whether or not the real property actually is acquired." H. R. Rep. No. 91-1656, p. 4 (1970) (emphasis added).[34] Similarly, the Report observed in reference to the entire definition of a displaced person, "[t]he controlling point is that the real property must be acquired for a Federal or Federal financially assisted program or project." Ibid.[35] 59 Nor is there any evidence that the Senate perceived the written order clause as an expansion of the bill when it accepted the House Committee's changes without a conference and almost without debate. 116 Cong. Rec. 40163-40172 (1970). The sole reference during the Senate deliberations to the amended definition of a "displaced person" appeared in a memorandum submitted on behalf of the administration, which stated: "The House bill would limit the status of displaced person to those who move as the result of the acquisition of, or written notice to vacate, real property. The Senate version would provide a broader definition which includes those who move as the result of acquisition or reasonable expectation of acquisition." Id., at 42139. This description of the amendment as a slight limitation, rather than a significant expansion of the statutory design, was accepted without dispute when the Senate approved the House version of this section as the final language for the Relocation Act. Ibid. In sum, the legislative history of the written order clause reveals no congressional intent to extend relocation benefits beyond the acquisition context. Rather, this clause merely ensures that assistance is available for a distinct group of persons directed to move because of a contemplated acquisition, whether the agency ultimately acquires the property or not. The written order clause therefore preserves the original meaning of a displaced person, since it does not apply unless a proposed acquisition directly causes issuance of the notice to vacate and the property acquisition is intended to further a federal program or project. 60 C The structure of the Relocation Act confirms our conclusion that Congress did not expect to provide assistance for all persons somehow displaced by Government programs. The benefit provisions involved here are but one part of a comprehensive statute that also establishes the procedures agencies must follow when acquiring land for federal programs. See 42 U.S. C. §§ 4651-4655. This placement in itself suggests that Congress was concerned with burdens related to Government acquisitions of property, as opposed to a broader range of dislocation problems. But more importantly, the Act's other relocation sections, which specify the benefits available for displaced persons, manifest the limited scope of § 101 (6) and the written order clause. Sections 202 and 205 of the Act require respectively that moving and related expenses be paid and relocation assistance advisory services be provided for displaced persons only when an agency proposes acquiring property for a federal program. See n. 1, supra. Thus, § 202 begins: "Whenever the acquisition of real property for a program or project undertaken by a Federal agency in any State will result in the displacement of any person . . . the head of such agency shall make a payment to any displaced person, upon proper application . . . ." 84 Stat. 1895, 42 U.S. C. § 4622. Identical language triggers application of § 205. 84 Stat. 1897, 42 U.S. C. § 4625. If the tenants' broad construction of the written order clause were correct, certain individuals would qualify as displaced persons within the meaning of § 101 (6), but the lack of an acquisition would preclude them from receiving benefits under §§ 202 and 205. Absent any indication that Congress intended such an anomalous result, we believe all three provisions must be given similar scope.[36] 61 Sections 203 and 204 of the Act, which authorize replacement housing payments for dislocated homeowners and tenants, see n. 1, supra, also bear upon interpretation of the written order clause. These sections provide benefits only to displaced persons who occupied their dwelling for a prescribed length of time "prior to the initiation of negotiations for the acquisition of the property." 42 U.S. C. § 4623 (a) (1).[37] Congress drafted these occupancy requirements to exclude from coverage persons who otherwise might attempt to obtain substantial relocation benefits by moving onto property after the acquisition process has begun.[38] Yet according to the tenants' analysis of § 101 (6), which requires only that an agency have procured the property at some point in the distant past, these occupancy strictures would exclude a much larger class of displaced persons than necessary to fulfill their objective. For example, tenants dislocated by the closing of a housing project that an agency had obtained 20 years earlier might satisfy the written order clause, but the failure of most to have lived in the project prior to the acquisition would prevent them from obtaining replacement housing payments under § 204. Again, we doubt Congress intended the statute to operate in this manner. Rather, §§ 203 and 204 demonstrate that the written order clause cannot be divorced from the acquisition context without distorting the statutory design. Finally, the special benefits provision in § 217 of the Act 62 highlights the limited reach of § 101 (6). Congress drafted § 217 to preserve the one pre-existing relocation assistance program extending beyond the acquisition context.[39] This section provides: "A person who moves . . . as a direct result of any project or program which receives Federal financial assistance under title I of the Housing Act of 1949, as amended, or as a result of carrying out a comprehensive city demonstration program under title I of the Demonstration Cities and Metropolitan Development Act of 1966 shall . . . be deemed to have been displaced as the result of the acquisition of real property." 84 Stat. 1902, 42 U.S. C. § 4637 (emphasis added). Inclusion of this special provision, to ensure that certain persons displaced by action other than an acquisition of property could still qualify for relocation benefits, reflects Congress' understanding that such persons would not be covered by the general definition of a "displaced person" set forth in § 101 (6).[40] D Accordingly, we hold that the written order clause encompasses only those persons ordered to vacate in connection with the actual or proposed acquisition of property for a federal program. In essence, the clause embodies two causal requirements. First, the written order to vacate must result directly from an actual or contemplated property acquisition.[41] Second, 63 and more fundamentally, that acquisition must be "for," or intended to further, a federal program or project. In combination, these two causal requirements substantially limit applicability of the written order clause, so that persons directed to vacate property for a federal program cannot obtain relocation assistance unless the agency also intended at the time of acquisition to use the property for such a program or project. Thus, a program developed after the agency procures property will not suffice, even though it necessitates displacements, since that program could not have motivated the property acquisition.[42] It remains to be considered, however, whether the relationship between HUD's acquisitions and orders to vacate brings the tenants here within the purview of § 101 (6). III The tenants in both cases contend that the acquisitions of Sky Tower and Riverhouse Apartments met these statutory requirements because HUD obtained the property in connection with its mortgage insurance programs. In support of this 64 contention, they point to Congress' explicit provision for occasional default acquisitions resulting from the mortgage insurance programs of the National Housing Act. Section 207 (k) of that Act expressly authorizes HUD to purchase insured properties at foreclosure sales, and § 207 (l) grants HUD wide latitude to rehabilitate and operate property acquired upon default or to transfer the property and recoup the agency's investment. 12 U.S. C. §§ 1713 (k), (l). Pursuant to that mandate, HUD has prepared a Property Disposition Handbook Multi-family Properties, RHM 4315.1 (1971), revised and set forth at 24 CFR Pt. 290 (1978), which requires responsible officials to formulate a disposition program for newly acquired properties. However, the legislative history of the Relocation Act discussed in Part II, supra, demonstrates that the mere anticipation and authorization of default acquisitions in the mortgage insurance programs cannot render these tenants eligible under § 101 (6). By requiring that an acquisition be "for" a federal program or project, Congress intended that the acquisition must further or accomplish a program designed to benefit the public as a whole.[43] Even assuming that the National Housing Act mortgage insurance programs constitute federal "programs or projects,"[44] default acquisitions arising out of those programs 65 do not satisfy § 101 (6)'s causality requirements. These acquisitions occur as a result of the mortgage insurance programs' predictable, though unfortunate failures, but the default acquisitions do not further the purpose of these particular programs.[45] If the written order clause were satisfied by acquisitions so tangentially related to a federal program or project, then, for example, persons who default on federally insured housing loans presumably could obtain relocation assistance whenever a Government agency acquires their homes at a foreclosure sale and thereby causes displacements. Absent any evidence that Congress intended to provide relocation benefits under such circumstances, we believe typical default acquisitions are not "for" a federal program within the meaning of § 101 (6). For the same reasons, HUD's preparation of a Handbook governing the disposition of property acquired in this manner fails to qualify these tenants for relocation benefits. Like any purchaser, HUD must manage the property it acquires. But the mere adoption of a management plan cannot retroactively establish the requisite purpose for acquiring property in the first instance. Alternatively, the tenants in No. 77-1463 contend that the particular disposition HUD planned for Sky Tower, pursuant to the Property Disposition Handbook, qualified them under the written order clause. After studying several options, HUD decided to demolish Sky Tower and sell the land to private developers who would build single-family homes, all in accordance with the District of Columbia government's master plan for improving the neighborhood. By its own admission in proceedings before the District Court, HUD proposed the demolition to "eliminate blight" in conformity with a plan to revitalize the area. 396 F. Supp. 1235, 1236 (DC 1975). 66 These events convinced the Court of Appeals that the Sky Tower tenants had been ordered to vacate for a "program or project" within the meaning of § 101 (6). 187 U. S. App. D. C., at 161, 571 F.2d, at 595. The difficulty with this analysis is that even though HUD's demolition plan is the type of program or project to which § 101 (6) refers, HUD did not acquire Sky Tower for that purpose. The statute requires more than a causal connection between the order to vacate and the demolition program, which was all the Court of Appeals considered necessary. As explained in Part II, supra, the program or project must also be the reason for acquiring the property. Yet the tenants have never contended that HUD initially acquired Sky Tower in order to eliminate blight or to further the District of Columbia government's master plan, nor did the Court of Appeals or the District Court reach such a conclusion. Without the requisite relationship between the demolition program and the acquisition, HUD's proposal for disposing of Sky Tower is no different than any other property management plan, insufficient by itself to confer eligibility under § 101 (6) of the Relocation Act. We recognize, of course, that an agency's intent in acquiring property appears irrelevant to those displaced by federal order. From a tenant's perspective, the costs of dislocation are the same regardless of whether an agency anticipated causing displacements when it acquired property. Nonetheless, Congress chose to condition eligibility for relocation benefits on the agency's purpose in acquiring property, and our function is not to rewrite the statute. The increasing number of default acquisitions by Government agencies may well prompt Congress to expand the Relocation Act's coverage.[46] But until *67 Congress does so, the tenants in these cases are ineligible for relocation assistance under that Act. Accordingly, the judgment of the Court of Appeals in No. 77-1463 is reversed and the judgment in No. 77-874 is affirmed. It is so ordered.	These cases require us to interpret the definition of a "displaced person" set forth in the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 970 (Relocation Act), 42 U.S. C. 460 et seq. Section 0 (6) of the Act defines a "displaced person" as "any person who moves as a result of the acquisition of real property, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency" 42 U.S. C. 460 (6).[] 43 Relocation benefits are available under the Act for individuals and businesses that satisfy either the "acquisition" or "written order" clause of this definition. Because the Courts of Appeals for the Seventh and District of Columbia Circuits have adopted conflicting interpretations of the written order clause,[2] we granted certiorari. Both cases involve housing projects that the Department of Housing and Urban Development (HUD) acquired after the projects' sponsors defaulted on federally insured loans. We must determine whether the written order clause encompasses the tenants required to vacate those housing projects, even though HUD's orders to vacate were not motivated by a governmental acquisition of property to further a public program or project. I A Petitioners in No. 77-874 are 7 former tenants of the Riverhouse Tower Apartments, a low- and middle-income housing project in Indianapolis, Indiana. This complex was built in the late 960's by a private nonprofit corporation, Riverhouse Apartments, Inc., whose mortgage HUD insured and subsidized pursuant to 22 (d) (3) of the National Housing Act, as amended, 2 U.S. C. 75l (d) (3). Upon completion of the project, the Government National Mortgage Association (GNMA) purchased the mortgage from 44 the private lender in accordance with 22 (d) (3) of the Housing Act. When Riverhouse Apartments, Inc., defaulted on the loan in July 970, GNMA assigned the mortgage to HUD in exchange for payment of the statutory mortgage benefits. Three years later, HUD initiated foreclosure proceedings, and a court-appointed receiver assumed operation of the project until HUD purchased the property at a foreclosure sale in August 974. HUD initially retained a management agent to continue operating the newly acquired project. However, the condition of the property had deteriorated so seriously during the period of default that HUD soon decided to close the apartment complex. Notices to quit were served on all remaining tenants in November 974, and by the following February, the buildings were vacant. HUD refused to provide relocation benefits for these dislocated tenants or to disclose its plans regarding the terminated project.[3] Petitioners then initiated this action in Federal District Court, claiming, inter alia, that they were "displaced persons" entitled to assistance under the Relocation Act.[4] Construing the written order clause of 0 (6) literally, the tenants argued that they had moved upon receiving written orders to vacate property acquired by a Government agency. The District Court rejected this statutory construction and granted summary judgment for HUD. Blades v. Dept. of HUD, Civ. No. IP 74-706-C (SD Ind., July 976). The Court of Appeals for the Seventh Circuit affirmed. In its view, 0 (6) encompasses only displacements for programs designed to benefit 45 the public as a whole or to fulfill a public need, not dislocations caused by the irretrievable failure of a public housing project.[5] B The tenants in No. 77-463 formerly occupied the Sky Tower apartment complex built in Washington, D. C., during the 950's. A nonprofit corporation purchased Sky Tower in 970, intending to convert a number of its small "garden" apartments into larger units for low- and moderate-income families. HUD agreed to assist in the rehabilitation by insuring the corporation's mortgage on the complex and subsidizing its interest payments, pursuant to 236 of the National Housing Act, as amended, 2 U.S. C. 75z-. Difficulties with two successive general contractors eventually prevented the corporate sponsor from making interest payments on its loan. As a result, the mortgagee declared the sponsor in default, foreclosed on the mortgage, and conveyed title to HUD in exchange for the statutory mortgage insurance benefits. See 2 U.S. C. 73 (g), (k). After acquiring title to Sky Tower in June 973, HUD hired a management agent to continue operating the partially rehabilitated complex. By September 974, however, HUD realized that Sky Tower's deteriorated condition would render any further efforts at rehabilitation futile. The agency therefore planned to demolish the buildings and sell the land to private developers for construction of single-family homes. 46 When the 72 families living in the complex were ordered to vacate, HUD declined to extend assistance under the Relocation Act.[6] A group of the Sky Tower tenants brought this suit in Federal District Court, challenging HUD's decision to raze the complex and its refusal to provide full relocation benefits. The District Court preliminarily enjoined HUD from completing the demolition, and subsequently granted summary judgment for the tenants on the benefits issue. Civ. Action No. 74-872 (DC, Sept. 2, 975).[7] A divided panel of the Court of Appeals for the District of Columbia Circuit agreed that these tenants were "displaced persons" under the written order clause of 0 (6). 87 U. S. App. D. C. 56, 6, In so ruling, the Court of Appeals rejected HUD's argument that 0 (6) reaches only persons dislocated by an agency's purposeful acquisition of property for use in certain types of government programs. The court instead considered the written order clause applicable whenever an agency orders persons to vacate so that property can be devoted to a federal program "`designed for the benefit of the public as a whole.'" 87 U. S. App. D. C., at 6, 57 47 F. 2d, at In the court's view, HUD's demolition plan met this description. [8] Section 0 (6) of the Relocation Act, as previously indicated, provides that a "displaced person" is one who moves "as a result of the acquisition of real property, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency" 42 U.S. C. 460 (6). In neither case do the tenants claim coverage under the "acquisition" clause of 0 (6), which reaches persons dislocated by the actual procurement of property for a federal program or project. Brief for Respondents in No. 77-463, p. 5, and n. 7; Tr. of Oral Arg. 0. Hence, these tenants' eligibility for relocation assistance turns on the meaning of the definition's written order clause. More precisely, their eligibility depends on the import of two critical phrases not specifically defined in the Act, "acquiring agency" and "for a program or project." The tenants contend that "acquiring agency" simply denotes a governmental body that has previously acquired property and that eventually orders persons to vacate. In contrast, HUD reads the phrase as a shorthand description of an agency currently engaged in the process of acquiring property. Under HUD's construction, the written order clause contains an implicit acquisition requirement. The clause thus construed does not apply unless an agency's proposed acquisition of property 48 directly causes issuance of the displacing order, whereas the tenants' interpretation demands no immediate causal connection between the procurement of property and the order to vacate. The parties also disagree about the proper referent for the phrase, "for a program or project."[9] HUD contends that this phrase modifies the acquisition requirement included in the written order clause. Consequently, "for a program or project" specifies the agency's original purpose in acquiring property, not just its purpose in issuing an order to vacate. Under this construction, the written order clause applies only if an agency issues its notice to vacate pursuant to an actual or proposed acquisition of property intended to further a federal program. Thus, tenants of a housing project acquired by the Government because of the owner's loan default would not be eligible for relocation assistance when the acquiring agency later adopts a program necessitating their displacement. The tenants, on the other hand, read "for a program or project" as referring solely to the written order. The phrase therefore identifies the agency's reason for ordering persons to vacate, but does not make eligibility depend on the agency's 49 original purpose in acquiring the property. According to this analysis, the written order clause covers any individual who receives a written order to vacate property that an agency has previously acquired, provided the displacement is "for" a federal program or project. Moreover, the tenants broadly construe "program or project" to include any governmental program designed to fulfill a public need. The statutory language is susceptible of either construction. However, an examination of Congress' purpose in adopting the Relocation Act, the legislative history of 0 (6), and the structure of the Act as a whole persuades us that HUD's interpretation more nearly reflects the intended scope of this assistance program. A Passage of the Relocation Act in 970 concluded nearly a decade of congressional effort to standardize federal legislation regarding relocation assistance. Prior to the 960's, Congress had enacted special provisions to assist persons displaced when particular federal agencies acquired property for designated public projects.[0] As a result, relocation benefits varied substantially from program to program. The House Public Works Committee responded to these variations in 96 by creating the Select Subcommittee on Real Property Acquisition. In 964, this Subcommittee submitted a lengthy Report concerning the deficiencies of existing law, and its proposed "Fair Compensation Act" became the basis for most of the provisions ultimately codified in the Relocation Act.[] 50 The proposed Fair Compensation Act unambiguously reflects Congress' limited purpose in revising the special relocation legislation. The Act's declared purpose was to afford "persons affected by the acquisition of real property in Federal and federally assisted programs fair and equitable treatment on a basis as nearly uniform as practicable." Select Subcommittee Study 47 (emphasis added); see This statement of policy embodied Congress' recognition that existing law provided relocation benefits only to those persons dislocated by governmental acquisitions of property for use in public projects.[2] And in accord with its mandate, the Select Subcommittee drafted the replacement legislation to standardize and improve the assistance provided within that particular context.[3] Thus, both the language and origins of the Relocation Act demonstrate that Congress initially intended to provide better relocation assistance when property is acquired for federal programs, not to extend assistance beyond that limited context to all persons somehow displaced by governmental programs.[4] 5 Congress' basic objective remained unchanged through succeeding legislative sessions as it considered a number of bills derived from the proposed Fair Compensation Act. During this period, the individual sponsors and the Senate Committee on Government Operations altered slightly the language used to declare Congress' purpose, but the meaning was unaffected.[5] Thus, the original "Declaration of Policy" in S. 9st Cong., st Sess., 20 (969), the bill finally enacted as the Relocation Act, stated that the legislation was designed "to establish a uniform policy for the fair and equitable treatment of owners, tenants, and other persons displaced by the acquisition of real property in Federal and federally assisted programs to the end that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole." (Emphasis added.) This language leaves little doubt that Congress' concern was 52 still with displacements caused by the acquisition of property for a Government program or project.[6] In arguing that Congress had a broader purpose, to provide relocation assistance outside the acquisition context, the tenants rely on language adopted by the House of Representatives after the Senate passed S. When the House Committee on Public Works reorganized and shortened the bill's provisions into their final form, it also streamlined the "Declaration of Policy" by deleting the references to acquisitions of property. Consequently, 20 of the Relocation Act simply refers to "persons displaced as a result of Federal and federally assisted programs,"[7] and the tenants suggest that all such persons are the intended beneficiaries of the statute. However, the tenants' interpretation of this language is plainly inconsistent with prior versions of the section, all of which expressly related to displacements caused by the acquisition of property for the programs specified in 20.[8] Nothing in the legislative materials suggests that this late revision in the Act's statement of purpose reflected any substantive departure from Congress' previous statutory design.[9] Indeed, the House Committee that shortened the Declaration of Policy stated in its Report that the bill "provides for relief of the economic 53 dislocation which occurs in the acquisition of real property for Federal and federally assisted programs." H. R. Rep. No. 9-656, p. 3 (970). Accordingly, the consistent purpose underlying this legislation persuades us that Congress intended the written order clause to apply only when an agency proposes acquiring property to further a federal program or project. B The legislative history specifically concerning the definition of a displaced person reinforces our conclusion. Prior versions of 0 (6) encompassed only persons dislocated by actual or proposed property acquisitions, and in particular, those acquisitions intended to further federal programs and projects. The legislative materials demonstrate that when Congress added the written order clause to this definition, its purpose was to delineate more precisely a subcategory of the originally intended beneficiaries, consisting of those who move in anticipation that a property acquisition for a federal program will necessitate their displacement. Viewed in context, the written order clause addresses a special situation related to unconsummated property acquisitions, not all displacements loosely connected with Government programs. The definition of a displaced person originated in the proposed Fair Compensation Act. Section 5 defined the term to include persons and businesses that move from real property "as a result of the acquisition or imminence of acquisition of such real property, in whole or in part, by a Federal or State agency." Select Subcommittee Study 57-58. That this choice of language was deliberate can be seen from other provisions of the Act, which authorized relocation assistance only when the "head of any Federal agency acquires real property for public use."[20] 54 The version of the Fair Compensation Act introduced in the next Congress adopted the same definition of a displaced person.[2] However, witnesses during the Senate hearings criticized the phrase "or imminence of acquisition" as too ambiguous to provide guidance for agencies and potential displacees.[22] In response, the Senate Committee on Government Operations amended the phrase to read "or reasonable expectation of acquisition," thereby incorporating an objective standard of eligibility.[23] The limited scope of this amendment, 55 as well as the definition, is apparent from the Committee's explanation that the change was designed "to remove some of the ambiguities surrounding the meaning of `imminence' and to make it amply clear that this legislation applies to persons who move from property to be acquired in connection with a Federal or federally assisted program when or shortly after the proposed project is announced, and when the announcement is made substantially prior to the time the project is to be put into effect." S. Rep. No. 378, 89th Cong., 2d Sess., 9 (966). This passage and others in the Senate Committee Report[24] clearly indicate that Congress framed the definition to reach only persons displaced by actual or planned acquisitions of property. These materials also demonstrate that Congress restricted the definition even further by focusing exclusively on property acquisitions for use in federal programs and projects.[25] The Senate's amended definition of a displaced person was retained in the relocation bills proposed in succeeding legislative sessions, including the original version of the bill finally enacted as the Relocation Act, S. 9st Cong., st Sess., 05 (969).[26] The Senate passed this bill with only minor amendments and without significant debate.[27] But the House Committee on Public Works amended the definition of a 56 displaced person when reorganizing the bill's provisions into their final form.[28] This late amendment added the clause on which the tenants base their argument that relocation assistance was intended for all persons displaced by Government programs. The contemporaneous legislative materials, however, refute the tenants' interpretation of the written order clause. During the House hearings on the relocation bills, a number of witnesses criticized even the "reasonable expectation of acquisition" language as overly vague.[29] To remedy this problem, representatives of the United States Department of Transportation and HUD recommended relating the expectation of acquisition to a readily discernible official act, so that persons who justifiably relied on agency representations could still obtain reimbursement even if the agency later failed to complete the acquisition.[30] The House Committee accepted this suggestion and replaced "or reasonable expectation of acquisition" with "or as the result of the written order of the 57 acquiring agency to vacate real property."[3] Thus, the sole objective underlying the present written order clause was to delineate more precisely the persons eligible for assistance as a result of planned, but unconsummated, acquisitions of property for federal programs. The House Committee Report and floor debate also reflect this limited purpose. Based on the previously understood scope of this legislation and on testimony given during the House hearings,[32] the House Committee was well aware that 58 the unamended definition of a displaced person excluded those displaced by means other than property acquisitions for public projects. The Committee presumably would have articulated any intent to extend coverage beyond the acquisition context or to eliminate the requirement that an acquisition be for a federal program.[33] Instead, the House Report simply explained that under the new written order clause, "[i]f a person moves as the result of such a notice to vacate, it makes no difference whether or not the real property actually is acquired." H. R. Rep. No. 9-656, p. 4 (970) (emphasis added).[34] Similarly, the Report observed in reference to the entire definition of a displaced person, "[t]he controlling point is that the real property must be acquired for a Federal or Federal financially assisted program or project." [35] 59 Nor is there any evidence that the Senate perceived the written order clause as an expansion of the bill when it accepted the House Committee's changes without a conference and almost without debate. 6 Cong. Rec. 4063-4072 (970). The sole reference during the Senate deliberations to the amended definition of a "displaced person" appeared in a memorandum submitted on behalf of the administration, which stated: "The House bill would limit the status of displaced person to those who move as the result of the acquisition of, or written notice to vacate, real property. The Senate version would provide a broader definition which includes those who move as the result of acquisition or reasonable expectation of acquisition." This description of the amendment as a slight limitation, rather than a significant expansion of the statutory design, was accepted without dispute when the Senate approved the House version of this section as the final language for the Relocation Act. In sum, the legislative history of the written order clause reveals no congressional intent to extend relocation benefits beyond the acquisition context. Rather, this clause merely ensures that assistance is available for a distinct group of persons directed to move because of a contemplated acquisition, whether the agency ultimately acquires the property or not. The written order clause therefore preserves the original meaning of a displaced person, since it does not apply unless a proposed acquisition directly causes issuance of the notice to vacate and the property acquisition is intended to further a federal program or project. 60 C The structure of the Relocation Act confirms our conclusion that Congress did not expect to provide assistance for all persons somehow displaced by Government programs. The benefit provisions involved here are but one part of a comprehensive statute that also establishes the procedures agencies must follow when acquiring land for federal programs. See 42 U.S. C. 465-4655. This placement in itself suggests that Congress was concerned with burdens related to Government acquisitions of property, as opposed to a broader range of dislocation problems. But more importantly, the Act's other relocation sections, which specify the benefits available for displaced persons, manifest the limited scope of 0 (6) and the written order clause. Sections 202 and 205 of the Act require respectively that moving and related expenses be paid and relocation assistance advisory services be provided for displaced persons only when an agency proposes acquiring property for a federal program. See n. Thus, 202 begins: "Whenever the acquisition of real property for a program or project undertaken by a Federal agency in any State will result in the displacement of any person the head of such agency shall make a payment to any displaced person, upon proper application" 84 Stat. 895, 42 U.S. C. 4622. Identical language triggers application of 205. 84 Stat. 897, 42 U.S. C. 4625. If the tenants' broad construction of the written order clause were correct, certain individuals would qualify as displaced persons within the meaning of 0 (6), but the lack of an acquisition would preclude them from receiving benefits under 202 and 205. Absent any indication that Congress intended such an anomalous result, we believe all three provisions must be given similar scope.[36] 6 Sections 203 and 204 of the Act, which authorize replacement housing payments for dislocated homeowners and tenants, see n. also bear upon interpretation of the written order clause. These sections provide benefits only to displaced persons who occupied their dwelling for a prescribed length of time "prior to the initiation of negotiations for the acquisition of the property." 42 U.S. C. 4623 (a) ().[37] Congress drafted these occupancy requirements to exclude from coverage persons who otherwise might attempt to obtain substantial relocation benefits by moving onto property after the acquisition process has begun.[38] Yet according to the tenants' analysis of 0 (6), which requires only that an agency have procured the property at some point in the distant past, these occupancy strictures would exclude a much larger class of displaced persons than necessary to fulfill their objective. For example, tenants dislocated by the closing of a housing project that an agency had obtained 20 years earlier might satisfy the written order clause, but the failure of most to have lived in the project prior to the acquisition would prevent them from obtaining replacement housing payments under 204. Again, we doubt Congress intended the statute to operate in this manner. Rather, 203 and 204 demonstrate that the written order clause cannot be divorced from the acquisition context without distorting the statutory design. Finally, the special benefits provision in 27 of the Act 62 highlights the limited reach of 0 (6). Congress drafted 27 to preserve the one pre-existing relocation assistance program extending beyond the acquisition context.[39] This section provides: "A person who moves as a direct result of any project or program which receives Federal financial assistance under title I of the Housing Act of 949, as amended, or as a result of carrying out a comprehensive city demonstration program under title I of the Demonstration Cities and Metropolitan Development Act of 966 shall be deemed to have been displaced as the result of the acquisition of real property." 84 Stat. 902, 42 U.S. C. 4637 (emphasis added). Inclusion of this special provision, to ensure that certain persons displaced by action other than an acquisition of property could still qualify for relocation benefits, reflects Congress' understanding that such persons would not be covered by the general definition of a "displaced person" set forth in 0 (6).[40] D Accordingly, we hold that the written order clause encompasses only those persons ordered to vacate in connection with the actual or proposed acquisition of property for a federal program. In essence, the clause embodies two causal requirements. First, the written order to vacate must result directly from an actual or contemplated property acquisition.[4] Second, 63 and more fundamentally, that acquisition must be "for," or intended to further, a federal program or project. In combination, these two causal requirements substantially limit applicability of the written order clause, so that persons directed to vacate property for a federal program cannot obtain relocation assistance unless the agency also intended at the time of acquisition to use the property for such a program or project. Thus, a program developed after the agency procures property will not suffice, even though it necessitates displacements, since that program could not have motivated the property acquisition.[42] It remains to be considered, however, whether the relationship between HUD's acquisitions and orders to vacate brings the tenants here within the purview of 0 (6). I The tenants in both cases contend that the acquisitions of Sky Tower and Riverhouse Apartments met these statutory requirements because HUD obtained the property in connection with its mortgage insurance programs. In support of this 64 contention, they point to Congress' explicit provision for occasional default acquisitions resulting from the mortgage insurance programs of the National Housing Act. Section 207 (k) of that Act expressly authorizes HUD to purchase insured properties at foreclosure sales, and 207 (l) grants HUD wide latitude to rehabilitate and operate property acquired upon default or to transfer the property and recoup the agency's investment. 2 U.S. C. 73 (k), (l). Pursuant to that mandate, HUD has prepared a Property Disposition Handbook Multi-family Properties, RHM 435. (97), revised and set forth at 24 CFR Pt. 290 which requires responsible officials to formulate a disposition program for newly acquired properties. However, the legislative history of the Relocation Act discussed in Part demonstrates that the mere anticipation and authorization of default acquisitions in the mortgage insurance programs cannot render these tenants eligible under 0 (6). By requiring that an acquisition be "for" a federal program or project, Congress intended that the acquisition must further or accomplish a program designed to benefit the public as a whole.[43] Even assuming that the National Housing Act mortgage insurance programs constitute federal "programs or projects,"[44] default acquisitions arising out of those programs 65 do not satisfy 0 (6)'s causality requirements. These acquisitions occur as a result of the mortgage insurance programs' predictable, though unfortunate failures, but the default acquisitions do not further the purpose of these particular programs.[45] If the written order clause were satisfied by acquisitions so tangentially related to a federal program or project, then, for example, persons who default on federally insured housing loans presumably could obtain relocation assistance whenever a Government agency acquires their homes at a foreclosure sale and thereby causes displacements. Absent any evidence that Congress intended to provide relocation benefits under such circumstances, we believe typical default acquisitions are not "for" a federal program within the meaning of 0 (6). For the same reasons, HUD's preparation of a Handbook governing the disposition of property acquired in this manner fails to qualify these tenants for relocation benefits. Like any purchaser, HUD must manage the property it acquires. But the mere adoption of a management plan cannot retroactively establish the requisite purpose for acquiring property in the first instance. Alternatively, the tenants in No. 77-463 contend that the particular disposition HUD planned for Sky Tower, pursuant to the Property Disposition Handbook, qualified them under the written order clause. After studying several options, HUD decided to demolish Sky Tower and sell the land to private developers who would build single-family homes, all in accordance with the District of Columbia government's master plan for improving the neighborhood. By its own admission in proceedings before the District Court, HUD proposed the demolition to "eliminate blight" in conformity with a plan to revitalize the area. 396 F. Supp. 235, 236 (DC 975). 66 These events convinced the Court of Appeals that the Sky Tower tenants had been ordered to vacate for a "program or project" within the meaning of 0 (6). 87 U. S. App. D. C., at 6, 57 F.2d, at The difficulty with this analysis is that even though HUD's demolition plan is the type of program or project to which 0 (6) refers, HUD did not acquire Sky Tower for that purpose. The statute requires more than a causal connection between the order to vacate and the demolition program, which was all the Court of Appeals considered necessary. As explained in Part the program or project must also be the reason for acquiring the property. Yet the tenants have never contended that HUD initially acquired Sky Tower in order to eliminate blight or to further the District of Columbia government's master plan, nor did the Court of Appeals or the District Court reach such a conclusion. Without the requisite relationship between the demolition program and the acquisition, HUD's proposal for disposing of Sky Tower is no different than any other property management plan, insufficient by itself to confer eligibility under 0 (6) of the Relocation Act. We recognize, of course, that an agency's intent in acquiring property appears irrelevant to those displaced by federal order. From a tenant's perspective, the costs of dislocation are the same regardless of whether an agency anticipated causing displacements when it acquired property. Nonetheless, Congress chose to condition eligibility for relocation benefits on the agency's purpose in acquiring property, and our function is not to rewrite the statute. The increasing number of default acquisitions by Government agencies may well prompt Congress to expand the Relocation Act's coverage.[46] But until *67 Congress does so, the tenants in these cases are ineligible for relocation assistance under that Act. Accordingly, the judgment of the Court of Appeals in No. 77-463 is reversed and the judgment in No. 77-874 is affirmed. It is so ordered.
Justice Douglas	dissenting	false	Mississippi v. Arkansas	1974-02-26T00:00:00	null	https://www.courtlistener.com/opinion/108972/mississippi-v-arkansas/	https://www.courtlistener.com/api/rest/v3/clusters/108972/	1,974	1973-060	3	9	0	Luna Bar is today an island in the Mississippi River. Arkansas on the west claims it is hers because the river as a result of an avulsion moved west. Mississippi claims it is hers because Luna Bar was created as a result of slow gradual accretion. The Special Master found for Mississippi and the case is here on exceptions to his Report. 295 No one has a historical recorded account of what happened. Mississippi made its case by use of experts who testified as to how the Mississippi River usually performs. They testified that the river at low water washes the concave side of a turn (this being the side that marks Luna Bar) but that during high water it scours the convex side (that being Arkansas). That testimony gives force to the argument that accretion formed Luna Bar, washing heavily Arkansas land to form the island. Favoring Mississippi was other testimony that at least in the Mississippi River avulsion would shorten the course of the river, while here the course was lengthened. Never did the experts know of an instance where avulsion had worked the way Arkansas claims. Opposed to these highly qualified experts were lay witnesses who knew Luna Bar. They had located great trees that once grew there, the age of the trees going back before 1800. Luna Bar therefore was not recently created nor was it created within the last 100 years. It had been there a long, long time. Moreover, the soil matched Arkansas' soil and the height of the land on Luna Bar was comparable to Arkansas' elevation. The Arkansas case was further bolstered by the theory that in the 1870's the avulsive action took place when the river returned to its old channel. The Special Master stated in his report: "I am aware that as Special Master it is not my function to render a decision. My duty is to make a report containing such review of the evidence as I consider justifies my findings of fact. I do not consider that to make the findings I do, it is necessary to totally destroy the validity of Arkansas' contentions. The burden of persuasion was upon Arkansas. Initially Arkansas conceded that Mississippi 296 had met its initial burden, aided as it was by the presumption that the change in the thalweg of the river was the product of accretion. The quite special character of the reasoning of Arkansas' witnesses leaves me unpersuaded that it has met its burden of proof. I make clear also that I would come to this conclusion even if the burden of proof was not on Arkansas, but was on plaintiff Mississippi." Report of Special Master 33. The case is close and if we were governed by the rule governing district court findings when an appeal is taken I would agree that the Special Master's findings are not "clearly erroneous." Heretofore the Court has not considered itself limited in its review of its Masters by the "clearly erroneous" test.[1] We said in United 297 States v. Utah, 283 U.S. 64, 89, that the "findings of the Master . . . are justified by the evidence"; and in Kansas v. Missouri, 322 U.S. 213, 232, that the Master's judgment "accords with the conclusions we make from our own independent examination of the record." And see United States v. Oregon, 295 U.S. 1, 29. It has at times been argued that original jurisdiction should not be taken, because of the waste of judicial time by this Court: "In an original suit, even when the case is first referred to a master, this Court has the duty of making an independent examination of the evidence, a time-consuming process which seriously interferes with the discharge of our ever-increasing appellate duties." Georgia v. Pennsylvania R. Co., 324 U.S. 439, 470 (Stone, C. J., dissenting). The majority opinion did not dispute that claim but gave special reasons why original jurisdiction was necessary in that case. Id., at 465-466. The findings of the Special Master are of course entitled to respect and their weight will be increased to the extent that credibility of witnesses is involved, as he saw them and heard them, while we have only a cold record. Credibility, however, seems to play no part here. The record 298 consists of maps and of testimony of witnesses. Those testifying for Mississippi qualified as eminent experts. Those testifying for Arkansas were in part experts and in part countrymen who for years knew Luna Bar, frequented it, and studied it. The experts of Mississippi state a plausible explanation that bolsters the theory of accretion. But the countrymen with their physical evidence convince me that the Mississippi River acted in an unprecedented way, found an old channel and in one convulsive operation invaded Arkansas, leaving Luna Bar an island carved out of Arkansas.[2] There is evidence taken from borings that the soil of the island is not compatible with the soil that would result from accretion. An expert, Dr. Clarence O. Durham, head of the Geoscience Department of Louisiana State University spent two days on the island. He concluded that prior to 1823, the date of the first Federal Land Office Survey, the river had flowed west of the island but that between 1823 and 1871 the channel at that point was not divided. He reached this conclusion from an 1872 map 299 which showed an abrupt shift of the Arkansas western bank into an abandoned prehistoric channel of the river. The island is the hard base of an ancient clay plug that dates prior to 1823. The ancient cypress stumps on the Arkansas mainland and those on the west side of the island are compelling evidence that the island and the mainland were connected for some centuries. To say that the island was formed by accretion is to use magic to make the ancient cypress stumps on the island disappear. Those trees are of the climax species; and the experts all agree that where climax trees appear the land mass on which they grow is at least 150 years old. The trees found on the high ground of the island were black walnut and red mulberry. Those trees were there prior to 1800 which would be impossible if Luna Bar was the product of accretion in modern times.[3] The hard core 300 of the island has an elevation between 133.2 feet and 133.5 feet; and the elevation on the adjacent Arkansas bank is between 132.2 feet and 139 feet.[4] Again there *301 is a compelling inference that while accretion may have added some soil to the island, the high hard core of the island was once connected with the mainland and severed from it by some abrupt and violent action of the river.	Luna Bar is today an island in the Mississippi River. Arkansas on the west claims it is hers because the river as a result of an avulsion moved west. Mississippi claims it is hers because Luna Bar was created as a result of slow gradual accretion. The Special Master found for Mississippi and the case is here on exceptions to his Report. 5 No one has a historical recorded account of what happened. Mississippi made its case by use of experts who testified as to how the Mississippi River usually performs. They testified that the river at low water washes the concave side of a turn (this being the side that marks Luna Bar) but that during high water it scours the convex side (that being Arkansas). That testimony gives force to the argument that accretion formed Luna Bar, washing heavily Arkansas land to form the island. Favoring Mississippi was other testimony that at least in the Mississippi River avulsion would shorten the course of the river, while here the course was lengthened. Never did the experts know of an instance where avulsion had worked the way Arkansas claims. Opposed to these highly qualified experts were lay witnesses who knew Luna Bar. They had located great trees that once grew there, the age of the trees going back before 1800. Luna Bar therefore was not recently created nor was it created within the last 100 years. It had been there a long, long time. Moreover, the soil matched Arkansas' soil and the height of the land on Luna Bar was comparable to Arkansas' elevation. The Arkansas case was further bolstered by the theory that in the 1870's the avulsive action took place when the river returned to its old channel. The Special Master stated in his report: "I am aware that as Special Master it is not my function to render a decision. My duty is to make a report containing such review of the evidence as I consider justifies my findings of fact. I do not consider that to make the findings I do, it is necessary to totally destroy the validity of Arkansas' contentions. The burden of persuasion was upon Arkansas. Initially Arkansas conceded that Mississippi 6 had met its initial burden, aided as it was by the presumption that the change in the thalweg of the river was the product of accretion. The quite special character of the reasoning of Arkansas' witnesses leaves me unpersuaded that it has met its burden of proof. I make clear also that I would come to this conclusion even if the burden of proof was not on Arkansas, but was on plaintiff Mississippi." Report of Special Master 33. The case is close and if we were governed by the rule governing district court findings when an appeal is taken I would agree that the Special Master's findings are not "clearly erroneous." Heretofore the Court has not considered itself limited in its review of its Masters by the "clearly erroneous" test.[1] We said in United 7 that the "findings of the Master are justified by the evidence"; and in that the Master's judgment "accords with the conclusions we make from our own independent examination of the record." And see United It has at times been argued that original jurisdiction should not be taken, because of the waste of judicial time by this Court: "In an original suit, even when the case is first referred to a master, this Court has the duty of making an independent examination of the evidence, a time-consuming process which seriously interferes with the discharge of our ever-increasing appellate duties." (Stone, C. J., dissenting). The majority opinion did not dispute that claim but gave special reasons why original jurisdiction was necessary in that case. The findings of the Special Master are of course entitled to respect and their weight will be increased to the extent that credibility of witnesses is involved, as he saw them and heard them, while we have only a cold record. Credibility, however, seems to play no part here. The record 8 consists of maps and of testimony of witnesses. Those testifying for Mississippi qualified as eminent experts. Those testifying for Arkansas were in part experts and in part countrymen who for years knew Luna Bar, frequented it, and studied it. The experts of Mississippi state a plausible explanation that bolsters the theory of accretion. But the countrymen with their physical evidence convince me that the Mississippi River acted in an unprecedented way, found an old channel and in one convulsive operation invaded Arkansas, leaving Luna Bar an island carved out of Arkansas.[2] There is evidence taken from borings that the soil of the island is not compatible with the soil that would result from accretion. An expert, Dr. Clarence O. Durham, head of the Geoscience Department of Louisiana State University spent two days on the island. He concluded that prior to 1823, the date of the first Federal Land Office Survey, the river had flowed west of the island but that between 1823 and 1871 the channel at that point was not divided. He reached this conclusion from an 1872 map 9 which showed an abrupt shift of the Arkansas western bank into an abandoned prehistoric channel of the river. The island is the hard base of an ancient clay plug that dates prior to 1823. The ancient cypress stumps on the Arkansas mainland and those on the west side of the island are compelling evidence that the island and the mainland were connected for some centuries. To say that the island was formed by accretion is to use magic to make the ancient cypress stumps on the island disappear. Those trees are of the climax species; and the experts all agree that where climax trees appear the land mass on which they grow is at least 150 years old. The trees found on the high ground of the island were black walnut and red mulberry. Those trees were there prior to 1800 which would be impossible if Luna Bar was the product of accretion in modern times.[3] The hard core 300 of the island has an elevation between 133.2 feet and 133.5 feet; and the elevation on the adjacent Arkansas bank is between 132.2 feet and 139 feet.[4] Again there *301 is a compelling inference that while accretion may have added some soil to the island, the high hard core of the island was once connected with the mainland and severed from it by some abrupt and violent action of the river.
Justice Thomas	dissenting	false	Scarborough v. Principi	2004-05-03T00:00:00	null	https://www.courtlistener.com/opinion/134738/scarborough-v-principi/	https://www.courtlistener.com/api/rest/v3/clusters/134738/	2,004	2003-054	3	7	2	Without deciding that the statutorily mandated 30-day deadline "even applies to the `not substantially justified' allegation requirement," ante, at 419, n. 6, the Court, nonetheless, applies the relation-back doctrine to cure the omitted no-substantial-justification allegation in petitioner's Equal Access to Justice Act (EAJA) fee application. The Court should have first addressed whether, as a textual matter, the no-substantial-justification allegation must be made within the 30-day deadline. I conclude that it must. The question then becomes whether the judicial application of the relation-back doctrine is appropriate in a case such as this where the statute defines the scope of the Government's waiver of sovereign immunity. Because there is no express allowance for relation back in EAJA, I conclude that the sovereign immunity canon applies to construe strictly the scope of the Government's waiver. The Court reaches its holding today by distorting the scope of Irwin v. Department of Veterans 424 Affairs, 498 U.S. 89 (1990), and by eviscerating that case's doctrinal underpinnings. I In my view, the better reading of the text of the statute is that the 30-day deadline applies to the no-substantial-justification-allegation requirement. The first sentence of 28 U.S. C. § 2412(d)(1)(B) states that "[a] party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees . . . which shows": (1) the applicant's status as a prevailing party; (2) that the applicant is eligible to receive fees under § 2412(d)(2)(B); and (3) the itemized amount sought. The second sentence of § 2412(d)(1)(B) provides: "The party shall also allege that the position of the United States was not substantially justified." Ibid. In stating that the applicant "shall also" make the no-substantial-justification allegation, the second sentence links the allegation requirement with the timing and other content requirements of the first sentence.[1] Indeed, there is only one deadline expressly contained in the provision. That 30-day deadline imposes a limitation on a set of requirements that petitioner must satisfy in order to receive an EAJA fee award. Immediately following the deadline is another sentence that requires the petitioner to make the no-substantial-justification allegation. Taking the provision as a whole, it is quite natural to read it as applying the 30-day deadline to all of its requirements.[2] And, this reading is 425 confirmed by numerous federal agency regulations,[3] which have interpreted a nearly identical EAJA provision allowing for fees in adversary adjudications conducted before federal agencies.[4] II Because I conclude that the no-substantial-justification allegation must be made within the 30-day deadline, the question 426 becomes whether the relation-back doctrine should apply here. The EAJA requirement for filing a timely fee application with the statutorily prescribed content is a condition on the United States' waiver of sovereign immunity in § 2412(d)(1)(A). See Ardestani v. INS, 502 U.S. 129, 137 (1991). As such, the scope of the waiver must be strictly construed. See, e. g., Irwin, 498 U. S., at 94; United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992) (stating that a waiver of sovereign immunity "must be construed strictly in favor of the sovereign" and "not enlarge[d] . . . beyond what the language requires" (internal quotation marks omitted)); Library of Congress v. Shaw, 478 U.S. 310, 318 (1986) (same); Lehman v. Nakshian, 453 U.S. 156, 161 (1981) ("[L]imitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied" (internal quotation marks omitted)). Since the relation-back doctrine relied upon by the Court is not present in the text of the statute, under a simple application of the sovereign immunity canon, petitioner is not entitled to "relate-back" his allegation beyond the 30-day deadline. The only way the Court avoids this straightforward conclusion is by applying Irwin. Ante, at 420-422. Although Irwin does perhaps narrow the scope of the sovereign immunity canon, it does so only in limited circumstances. In particular, where the Government is made subject to suit to the same extent and in the same manner as private parties are, Irwin holds that the Government is subject to the rules that are "applicable to private suits." 498 U.S., at 95. The Court in Irwin, addressing equitable tolling, explained that "[t]ime requirements in lawsuits between private litigants are customarily subject to `equitable tolling,'" and that "[o]nce Congress has made . . . a waiver [of sovereign immunity], . . . making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening 427 of the congressional waiver." Ibid. The Court determined that "[s]uch a principle is likely to be a realistic assessment of legislative intent as well as a practically useful principle of interpretation." Ibid. Notwithstanding Irwin's limited scope, the Court concludes: "Irwin's reasoning would be diminished were it instructive only in situations with a readily identifiable private-litigation equivalent." Ante, at 422. The existence of this "private-litigation equivalent," however, formed the very basis for the Court's holding in Irwin. I agree with the Government that there is "no analogue in private litigation," Brief for Respondent 39, for the EAJA fee awards at issue here. Section 2412(d) authorizes fee awards against the Government when there is no basis for recovery under the rules for private litigation.[5]Irwin's analysis simply cannot apply to a proceeding against the Government when there is no analogue for it in private litigation. Accordingly, I would apply the sovereign immunity canon to construe strictly the scope of the Government's waiver and, therefore, against allowing an applicant to avoid the express statutory limitation through judicial application of the relation-back doctrine. For these reasons, I respectfully dissent.	Without deciding that the statutorily mandated 30-day deadline "even applies to the `not substantially justified' allegation requirement," ante, at 419, n. 6, the Court, nonetheless, applies the relation-back doctrine to cure the omitted no-substantial-justification allegation in petitioner's Equal Access to Justice Act (EAJA) fee application. The Court should have first addressed whether, as a textual matter, the no-substantial-justification allegation must be made within the 30-day deadline. I conclude that it must. The question then becomes whether the judicial application of the relation-back doctrine is appropriate in a case such as this where the statute defines the scope of the Government's waiver of sovereign immunity. Because there is no express allowance for relation back in EAJA, I conclude that the sovereign immunity canon applies to construe strictly the scope of the Government's waiver. The Court reaches its holding today by distorting the scope of and by eviscerating that case's doctrinal underpinnings. I In my view, the better reading of the text of the statute is that the 30-day deadline applies to the no-substantial-justification-allegation requirement. The first sentence of 28 U.S. C. 2412(d)(1)(B) states that "[a] party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees which shows": (1) the applicant's status as a prevailing party; (2) that the applicant is eligible to receive fees under 2412(d)(2)(B); and (3) the itemized amount sought. The second sentence of 2412(d)(1)(B) provides: "The party shall also allege that the position of the United States was not substantially justified." In stating that the applicant "shall also" make the no-substantial-justification allegation, the second sentence links the allegation requirement with the timing and other content requirements of the first sentence.[1] Indeed, there is only one deadline expressly contained in the provision. That 30-day deadline imposes a limitation on a set of requirements that petitioner must satisfy in order to receive an EAJA fee award. Immediately following the deadline is another sentence that requires the petitioner to make the no-substantial-justification allegation. Taking the provision as a whole, it is quite natural to read it as applying the 30-day deadline to all of its requirements.[2] And, this reading is 425 confirmed by numerous federal agency regulations,[3] which have interpreted a nearly identical EAJA provision allowing for fees in adversary adjudications conducted before federal agencies.[4] II Because I conclude that the no-substantial-justification allegation must be made within the 30-day deadline, the question 426 becomes whether the relation-back doctrine should apply here. The EAJA requirement for filing a timely fee application with the statutorily prescribed content is a condition on the United States' waiver of sovereign immunity in 2412(d)(1)(A). See As such, the scope of the waiver must be strictly construed. See, e. g., ; United ; Library of ; Since the relation-back doctrine relied upon by the Court is not present in the text of the statute, under a simple application of the sovereign immunity canon, petitioner is not entitled to "relate-back" his allegation beyond the 30-day deadline. The only way the Court avoids this straightforward conclusion is by applying Ante, at 420-422. Although does perhaps narrow the scope of the sovereign immunity canon, it does so only in limited circumstances. In particular, where the Government is made subject to suit to the same extent and in the same manner as private parties are, holds that the Government is subject to the rules that are "applicable to private suits." The Court in addressing equitable tolling, explained that "[t]ime requirements in lawsuits between private litigants are customarily subject to `equitable tolling,'" and that "[o]nce Congress has made a waiver [of sovereign immunity], making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening *427 of the congressional waiver." The Court determined that "[s]uch a principle is likely to be a realistic assessment of legislative intent as well as a practically useful principle of interpretation." Notwithstanding 's limited scope, the Court concludes: "'s reasoning would be diminished were it instructive only in situations with a readily identifiable private-litigation equivalent." Ante, at 422. The existence of this "private-litigation equivalent," however, formed the very basis for the Court's holding in I agree with the Government that there is "no analogue in private litigation," Brief for Respondent 39, for the EAJA fee awards at issue here. Section 2412(d) authorizes fee awards against the Government when there is no basis for recovery under the rules for private litigation.[5]'s analysis simply cannot apply to a proceeding against the Government when there is no analogue for it in private litigation. Accordingly, I would apply the sovereign immunity canon to construe strictly the scope of the Government's waiver and, therefore, against allowing an applicant to avoid the express statutory limitation through judicial application of the relation-back doctrine. For these reasons, I respectfully dissent.
Justice Scalia	dissenting	false	Oneok, Inc. v. Learjet, Inc.	2015-04-21T00:00:00	null	https://www.courtlistener.com/opinion/2795279/oneok-inc-v-learjet-inc/	https://www.courtlistener.com/api/rest/v3/clusters/2795279/	2,015	2014-054	1	7	2	The Natural Gas Act divides responsibility over trade in natural gas between federal and state regulators. The Act and our cases interpreting it draw a firm line between national and local authority over this trade: If the Federal Government may regulate a subject, the States may not. Today the Court smudges this line. It holds that States may use their antitrust laws to regulate practices already regulated by the Federal Energy Regulatory Commission whenever “other considerations . . . weigh against a find- ing of pre-emption.” Ante, at 16. The Court’s make-it-up- as-you-go-along approach to preemption has no basis in the Act, contradicts our cases, and will prove unworkable in practice. I Trade in natural gas consists of three parts. A drilling company collects gas from the earth; a pipeline company then carries the gas to its destination and sells it at wholesale to a local distributor; and the local distributor sells the gas at retail to industries and households. See ante, at 3. The Natural Gas Act empowers the Commis- sion to regulate the middle of this three-leg journey— interstate transportation and wholesale sales. 15 U.S. C. 2 ONEOK, INC. v. LEARJET, INC. SCALIA, J., dissenting §717 et seq. But it does not empower the Commission to regulate the opening and closing phases—production at one end, retail sales at the other—thus leaving those matters to the States. §717(b). (Like the Court, I will for simplicity’s sake call the sales controlled by the Commis- sion wholesale sales, and the companies controlled by the Commission pipelines. See ante, at 4.) Over 70 years ago, the Court concluded that the Act confers “exclusive jurisdiction upon the federal regulatory agency.” Public Util. Comm’n of Ohio v. United Fuel Gas Co., 317 U.S. 456, 469 (1943). The Court thought it “clear” that the Act contemplates “a harmonious, dual system of regulation of the natural gas industry—federal and state regulatory bodies operating side by side, each active in its own sphere,” “without any confusion of func- tions.” Id., at 467. The Court drew this inference from the law’s purpose and legislative history, though it could just as easily have relied on the law’s terms and structure. The Act grants the Commission a wide range of powers over wholesale sales and transportation, but qualifies only some of these powers with reservations of state authority over the same subject. See §717g(a) (concurrent authority over recordkeeping); §717h(a) (concurrent authority over depreciation and amortization rates). Congress’s decision to include express reservations of state power alongside these grants of authority, but to omit them alongside other grants of authority, suggests that the other grants are exclusive. Right or wrong, in any event, our inference of exclusivity is now settled beyond debate. United Fuel rejected a State’s regulation of wholesale rates. Id., at 468. But our later holdings establish that the Act makes exclusive the Commission’s powers in general, not just its rate-setting power in particular. We have again and again set aside state laws—even those that do not purport to fix wholesale rates—for regulating a matter already subject to regulation by the Commission. Cite as: 575 U. S. ____ (2015) 3 SCALIA, J., dissenting See, e.g., Northern Natural Gas Co. v. State Corporation Comm’n of Kan., 372 U.S. 84, 89 (1963) (state regulation of pipelines’ gas purchases preempted because it “in- vade[s] the exclusive jurisdiction which the Natural Gas Act has conferred upon the [Commission]”); Exxon Corp. v. Eagerton, 462 U.S. 176, 185 (1983) (state law prohibiting producers from passing on production taxes preempted because it “trespasse[s] upon FERC’s authority”); Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 309 (1988) (state securities regulation directly affecting whole- sale rates and gas transportation facilities preempted because it regulates “matters that Congress intended FERC to regulate”). The test for preemption in this set- ting, the Court has confirmed, “ ‘is whether the matter on which the State asserts the right to act is in any way regulated by the Federal Act.’ ” Id., at 310, n. 13. Straightforward application of these precedents would make short work of the case at hand. The Natural Gas Act empowers the Commission to regulate “practice[s] . . . affecting [wholesale] rate[s].” §717d. Nothing in the Act suggests that the States share power to regulate these practices. The Commission has reasonably determined that this power allows it to regulate the behavior involved in this case, pipelines’ use of sham trades and false reports to manipulate gas price indices. Because the Commis- sion’s exclusive authority extends to the conduct chal- lenged here, state antitrust regulation of that conduct is preempted. II The Court agrees that the Commission may regulate index manipulation, but upholds state antitrust regulation of this practice anyway on account of “other considerations that weigh against a finding of pre-emption in this con- text.” Ante, at 16. That is an unprecedented decision. The Court does not identify a single case—not one—in 4 ONEOK, INC. v. LEARJET, INC. SCALIA, J., dissenting which we have sustained state regulation of behavior already regulated by the Commission. The Court’s justifi- cations for its novel approach do not persuade. A The Court begins by considering “the target at which the state law aims.” Ante, at 11. It reasons that because this case involves a practice that affects both wholesale and retail rates, the Act tolerates state regulation that takes aim at the practice’s retail-stage effects. Ibid. This analysis misunderstands how the Natural Gas Act divides responsibilities between national and local regula- tors. The Act does not give the Commission the power to aim at particular effects; it gives it the power to regulate particular activities. When the Commission regulates those activities, it may consider their effects on all parts of the gas trade, not just on wholesale sales. It may, for example, set wholesale rates with the aim of encouraging producers to conserve gas supplies—even though produc- tion is a state-regulated activity. See Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 602–603 (1945); id., at 609– 610 (Jackson, J., concurring). Or it may regulate whole- sale sales with an eye toward blunting the sales’ anticom- petitive effects in the retail market—even though retail prices are controlled by the States. See FPC v. Conway Corp., 426 U.S. 271, 276–280 (1976). The Court’s ad hoc partition of authority over index manipulation—leaving it to the Commission to control the practice’s consequences for wholesale sales, but allowing the States to target its consequences for retail sales—thus clashes with the de- sign of the Act. To justify its fixation on aims, the Court stresses that this case involves regulation of “background marketplace conditions” rather than regulation of wholesale rates or sales themselves. Ante, at 15. But the Natural Gas Act empowers the Commission to regulate wholesale rates and Cite as: 575 U. S. ____ (2015) 5 SCALIA, J., dissenting “background” practices affecting such rates. It grants both powers in the same clause: “Whenever the Commission . . . find[s] that a [wholesale] rate, charge, or classification . . . [or] any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust [or] unreason- able, . . . the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed.” §717d(a) (emphasis added). Nothing in this provision, and for that matter nothing in the Act, suggests that federal authority over practices is a second-class power, somehow less ex- clusive than the authority over rates. The Court persists that the background conditions in this case affect both wholesale and retail sales. Ante, at 15. This observation adds atmosphere, but nothing more. The Court concedes that index manipulation’s dual effect does not weaken the Commission’s power to regulate it. Ante, at 10. So too should the Court have seen that this simultaneous effect does not strengthen the claims of the States. It is not at all unusual for an activity controlled by the Commission to have effects in the States’ field; produc- tion, wholesale, and retail are after all interdependent stages of a single trade. We have never suggested that the rules of field preemption change in such situations. For example, producers’ ability to pass production taxes on to pipelines no doubt affects both producers and pipelines. Yet we had no trouble concluding that a state law restrict- ing producers’ ability to pass these taxes impermissibly attempted to manage “a matter within the sphere of FERC’s regulatory authority.” Exxon, supra, at 185–186. The Court’s approach makes a snarl of our precedents. In Northern Natural, the Court held that the Act preempts state regulations requiring pipelines to buy gas ratably from gas wells. 372 U.S., at 90. The regulations in that case shared each of the principal features emphasized by the Court today. They governed background market 6 ONEOK, INC. v. LEARJET, INC. SCALIA, J., dissenting conditions, not wholesale prices. Id., at 90–91. The back- ground conditions in question, pipelines’ purchases from gas wells, affected both the federal field of wholesale sales and the state field of gas production. Id., at 92–93. And the regulations took aim at the purchases’ effects on pro- duction; they sought to promote conservation of natural resources by limiting how much gas pipelines could take from each well. Id., at 93. No matter; the Court still concluded that the regulations “invade[d] the federal agency’s exclusive domain.” Id., at 92. The factors that made no difference in Northern Natural should make no difference today. Contrast Northern Natural with Northwest Central Pipeline Corp. v. State Corporation Comm’n of Kan., 489 U.S. 493 (1989), which involved state regulations that restricted the times when producers could take gas from wells. On this occasion the Court upheld the regula- tions—not because the law aimed at the objective of gas conservation, but because the State pursued this end by regulating “ ‘the physical ac[t] of drawing gas from the earth.’ ” Id., at 510. Our precedents demand, in other words, that the Court focus in the present case upon what the State seeks to regulate (a pipeline practice that is subject to regulation by the Commission), not why the State seeks to regulate it (to curb the practice’s effects on retail rates). Trying to turn liabilities into assets, the Court bran- dishes statements from Northern Natural and Northwest Central that (in its view) discuss where state law was “aimed” or “directed.” Ante, at 11. But read in context, these statements refer to the entity or activity that the state law regulates, not to which of the activity’s effects the law seeks to control by regulating it. See, e.g., North- ern Natural, supra, at 94 (“[O]ur cases have consistently recognized a significant distinction . . . between conserva- tion measures aimed directly at interstate purchasers and Cite as: 575 U. S. ____ (2015) 7 SCALIA, J., dissenting wholesales . . . , and those aimed at producers and produc- tion”); Northwest Central, supra, at 512 (“[This regulation] is directed to the behavior of gas producers”). The law- suits at hand target pipelines (entities regulated by the Commission) for their manipulation of indices (behavior regulated by the Commission). That should have sufficed to establish preemption. B The Court also tallies several features of state antitrust law that, it believes, weigh against preemption. Ante, at 13–14. Once again the Court seems to have forgotten its precedents. We have said before that “ ‘Congress meant to draw a bright line easily ascertained, between state and federal jurisdiction’ ” over the gas trade. Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953, 966 (1986) (quot- ing FPC v. Southern Cal. Edison Co., 376 U.S. 205, 215– 216 (1964)). Our decisions have therefore “ ‘squarely rejected’ ” the theory, endorsed by the Court today, that the boundary between national and local authority turns on “ ‘a case-by-case analysis of the impact of state regula- tion upon the national interest.’ ” Ibid. State antitrust law, the Court begins, applies to “all businesses in the marketplace” rather than just “natural- gas companies in particular.” Ante, at 13. So what? No principle of our natural-gas preemption jurisprudence distinguishes particularized state laws from state laws of general applicability. We have never suggested, for exam- ple, that a State may use general price-gouging laws to fix wholesale rates, or general laws about unfair trade prac- tices to control wholesale contracts, or general common- carrier laws to administer interstate pipelines. The Court in any event could not have chosen a worse setting in which to attempt a distinction between general and par- ticular laws. Like their federal counterpart, state anti- trust laws tend to use the rule of reason to judge the law- 8 ONEOK, INC. v. LEARJET, INC. SCALIA, J., dissenting fulness of challenged practices. Legal Aspects of Buying and Selling §10:12 (P. Zeidman ed. 2014–2015). This amorphous standard requires the reviewing court to con- sider “a variety of factors, including specific information about the relevant business, its condition before and after the restraint was imposed, and the restraint’s history, nature, and effect.” State Oil Co. v. Khan, 522 U.S. 3, 10 (1997). Far from authorizing across-the-board application of a uniform requirement, therefore, the Court’s decision will invite state antitrust courts to engage in targeted regulation of the natural-gas industry. The Court also stresses the “ ‘long history’ ” of state antitrust regulation. Ante, at 14. Again, quite beside the point. States have long regulated public utilities, yet the Natural Gas Act precludes them from using that estab- lished power to fix gas wholesale prices. United Fuel, 317 U.S., at 468. States also have long enacted laws to con- serve natural resources, yet the Act precludes them from deploying that power to control purchases made by gas pipelines. Northern Natural, 372 U.S., at 93–94. The Court’s invocation of the pedigree of state antitrust law rests on air. One need not launch this unbounded inquiry into the features of state law in order to preserve the States’ au- thority to apply “tax laws,” “disclosure laws,” and “blue sky laws” to natural-gas companies, ante, at 12. One need only stand by the principle that if the Commission has authority over a subject, the States lack authority over that subject. The Commission’s authority to regulate gas pipelines “in the public interest,” §717a, is a power to address matters that are traditionally the concern of utility regulators, not “a broad license to promote the general public welfare,” NAACP v. FPC, 425 U.S. 662, 669 (1976). We have explained that the Commission does not, for example, have power to superintend “employment discrimination” or “unfair labor practices.” Id., at 670– Cite as: 575 U. S. ____ (2015) 9 SCALIA, J., dissenting 671. So the Act does not preempt state employment dis- crimination or labor laws. But the Commission does have power to consider, say, “conservation, environmental, and antitrust questions.” Id., at 670, n. 6 (emphasis added). So the Act does preempt state antitrust laws. C At bottom, the Court’s decision turns on its perception that the Natural Gas Act “ ‘was drawn with meticulous regard for the continued exercise of state power.’ ” Ante, at 10. No doubt the Act protects state authority in a variety of ways. It gives the Commission authority over only some parts of the gas trade. §717(b). It establishes procedures under which the Commission may consult, collaborate, or share information with States. §717p. It even provides that the Commission may regulate practices affecting wholesale rates “upon its own motion or upon complaint of any State.” §717d(a) (emphasis added). It should have gone without saying, however, that no law pursues its purposes at all costs. Nothing in the Act and nothing in our cases suggests that Congress protected state power in the way imagined by today’s decision: by licensing state sorties into the Commission’s domain whenever judges conclude that an incursion would not be too disruptive. The Court’s preoccupation with the purpose of preserv- ing state authority is all the more inexpiable because that is not the Act’s only purpose. The Act also has competing purposes, the most important of which is promoting “uni- formity of regulation.” Northern Natural, supra, at 91. The Court’s decision impairs that objective. Before today, interstate pipelines knew that their practices relating to price indices had to comply with one set of regulations promulgated by the Commission. From now on, however, pipelines will have to ensure that their behavior conforms to the discordant regulations of 50 States—or more accu- rately, to the discordant verdicts of untold state antitrust 10 ONEOK, INC. v. LEARJET, INC. SCALIA, J., dissenting juries. The Court’s reassurance that pipelines may still invoke conflict preemption, see ante, at 15–16, provides little comfort on this front. Conflict preemption will re- solve only discrepancies between state and federal regula- tions, not the discrepancies among differing state regula- tions to which today’s opinion subjects the industry. * * * “The Natural Gas Act was designed . . . to produce a harmonious and comprehensive regulation of the industry. Neither state nor federal regulatory body was to encroach upon the jurisdiction of the other.” FPC v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 513 (1949) (footnote omitted). Today, however, the Court allows the States to encroach. Worse still, it leaves pipelines guessing about when States will be allowed to encroach again. May States aim at retail rates under laws that share none of the features of antitrust law advertised today? Under laws that share only some of those features? May States apply their antitrust laws to pipelines without aiming at retail rates? But that is just the start. Who knows what other “considerations that weigh against a finding of pre- emption” remain to be unearthed in future cases? The Court’s all-things-considered test does not make for a stable background against which to carry on the natural gas trade. I would stand by the more principled and more workable line traced by our precedents. The Commission may regulate the practices alleged in this case; the States therefore may not. I respectfully dissent	The Gas Act divides responsibility over trade in natural gas between federal and state regulators. The Act and our cases interpreting it draw a firm line between national and local authority over this trade: If the Federal Government may regulate a subject, the States may not. Today the Court smudges this line. It holds that States may use their antitrust laws to regulate practices already regulated by the Federal Energy Regulatory Commission whenever “other considerations weigh against a find- ing of pre-emption.” Ante, at 16. The Court’s make-it-up- as-you-go-along approach to preemption has no basis in the Act, contradicts our cases, and will prove unworkable in practice. I Trade in natural gas consists of three parts. A drilling company collects gas from the earth; a pipeline company then carries the gas to its destination and sells it at wholesale to a local distributor; and the local distributor sells the gas at retail to industries and households. See ante, at 3. The Gas Act empowers the Commis- sion to regulate the middle of this three-leg journey— interstate transportation and wholesale sales. 15 U.S. C. 2 ONEOK, INC. v. LEARJET, INC. SCALIA, J., dissenting et seq. But it does not empower the Commission to regulate the opening and closing phases—production at one end, retail sales at the other—thus leaving those matters to the States. (b). (Like the Court, I will for simplicity’s sake call the sales controlled by the Commis- sion wholesale sales, and the companies controlled by the Commission pipelines. See ante, at 4.) Over 70 years ago, the Court concluded that the Act confers “exclusive jurisdiction upon the federal regulatory agency.” Public Util. Comm’n of The Court thought it “clear” that the Act contemplates “a harmonious, dual system of regulation of the natural gas industry—federal and state regulatory bodies operating side by side, each active in its own sphere,” “without any confusion of func- tions.” The Court drew this inference from the law’s purpose and legislative history, though it could just as easily have relied on the law’s terms and structure. The Act grants the Commission a wide range of powers over wholesale sales and transportation, but qualifies only some of these powers with reservations of state authority over the same subject. See g(a) (concurrent authority over recordkeeping); h(a) (concurrent authority over depreciation and amortization rates). Congress’s decision to include express reservations of state power alongside these grants of authority, but to omit them alongside other grants of authority, suggests that the other grants are exclusive. Right or wrong, in any event, our inference of exclusivity is now settled beyond debate. United Fuel rejected a State’s regulation of wholesale rates. But our later holdings establish that the Act makes exclusive the Commission’s powers in general, not just its rate-setting power in particular. We have again and again set aside state laws—even those that do not purport to fix wholesale rates—for regulating a matter already subject to regulation by the Commission. Cite as: 575 U. S. (2015) 3 SCALIA, J., dissenting See, e.g., Northern Gas (state regulation of pipelines’ gas purchases preempted because it “in- vade[s] the exclusive jurisdiction which the Gas Act has conferred upon the [Commission]”); Corp. v. Eagerton, (state law prohibiting producers from passing on production taxes preempted because it “trespasse[s] upon FERC’s authority”); (1988) (state securities regulation directly affecting whole- sale rates and gas transportation facilities preempted because it regulates “matters that Congress intended FERC to regulate”). The test for preemption in this set- ting, the Court has confirmed, “ ‘is whether the matter on which the State asserts the right to act is in any way regulated by the Federal Act.’ ” Straightforward application of these precedents would make short work of the case at hand. The Gas Act empowers the Commission to regulate “practice[s] affecting [wholesale] rate[s].” d. Nothing in the Act suggests that the States share power to regulate these practices. The Commission has reasonably determined that this power allows it to regulate the behavior involved in this case, pipelines’ use of sham trades and false reports to manipulate gas price indices. Because the Commis- sion’s exclusive authority extends to the conduct chal- lenged here, state antitrust regulation of that conduct is preempted. II The Court agrees that the Commission may regulate index manipulation, but upholds state antitrust regulation of this practice anyway on account of “other considerations that weigh against a finding of pre-emption in this con- text.” Ante, at 16. That is an unprecedented decision. The Court does not identify a single case—not one—in 4 ONEOK, INC. v. LEARJET, INC. SCALIA, J., dissenting which we have sustained state regulation of behavior already regulated by the Commission. The Court’s justifi- cations for its novel approach do not persuade. A The Court begins by considering “the target at which the state law aims.” Ante, at 11. It reasons that because this case involves a practice that affects both wholesale and retail rates, the Act tolerates state regulation that takes aim at the practice’s retail-stage effects. This analysis misunderstands how the Gas Act divides responsibilities between national and local regula- tors. The Act does not give the Commission the power to aim at particular effects; it gives it the power to regulate particular activities. When the Commission regulates those activities, it may consider their effects on all parts of the gas trade, not just on wholesale sales. It may, for example, set wholesale rates with the aim of encouraging producers to conserve gas supplies—even though produc- tion is a state-regulated activity. See Colorado Interstate Gas ; at 609– 6 (Jackson, J., concurring). Or it may regulate whole- sale sales with an eye toward blunting the sales’ anticom- petitive effects in the retail market—even though retail prices are controlled by the States. See The Court’s ad hoc partition of authority over index manipulation—leaving it to the Commission to control the practice’s consequences for wholesale sales, but allowing the States to target its consequences for retail sales—thus clashes with the de- sign of the Act. To justify its fixation on aims, the Court stresses that this case involves regulation of “background marketplace conditions” rather than regulation of wholesale rates or sales themselves. Ante, at 15. But the Gas Act empowers the Commission to regulate wholesale rates and Cite as: 575 U. S. (2015) 5 SCALIA, J., dissenting “background” practices affecting such rates. It grants both powers in the same clause: “Whenever the Commission find[s] that a [wholesale] rate, charge, or classification [or] any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust [or] unreason- able, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed.” d(a) Nothing in this provision, and for that matter nothing in the Act, suggests that federal authority over practices is a second-class power, somehow less ex- clusive than the authority over rates. The Court persists that the background conditions in this case affect both wholesale and retail sales. Ante, at 15. This observation adds atmosphere, but nothing more. The Court concedes that index manipulation’s dual effect does not weaken the Commission’s power to regulate it. Ante, at So too should the Court have seen that this simultaneous effect does not strengthen the claims of the States. It is not at all unusual for an activity controlled by the Commission to have effects in the States’ field; produc- tion, wholesale, and retail are after all interdependent stages of a single trade. We have never suggested that the rules of field preemption change in such situations. For example, producers’ ability to pass production taxes on to pipelines no doubt affects both producers and pipelines. Yet we had no trouble concluding that a state law restrict- ing producers’ ability to pass these taxes impermissibly attempted to manage “a matter within the sphere of FERC’s regulatory authority.” at –186. The Court’s approach makes a snarl of our precedents. In Northern the Court held that the Act preempts state regulations requiring pipelines to buy gas ratably from gas The regulations in that case shared each of the principal features emphasized by the Court today. They governed background market 6 ONEOK, INC. v. LEARJET, INC. SCALIA, J., dissenting conditions, not wholesale prices. at 90–91. The back- ground conditions in question, pipelines’ purchases from gas wells, affected both the federal field of wholesale sales and the state field of gas production. –93. And the regulations took aim at the purchases’ effects on pro- duction; they sought to promote conservation of natural resources by limiting how much gas pipelines could take from each well. No matter; the Court still concluded that the regulations “invade[d] the federal agency’s exclusive domain.” The factors that made no difference in Northern should make no difference today. Contrast Northern with Northwest Pipeline Corp. v. State Corporation Comm’n of Kan., 4 U.S. 493 (19), which involved state regulations that restricted the times when producers could take gas from On this occasion the Court upheld the regula- tions—not because the law aimed at the objective of gas conservation, but because the State pursued this end by regulating “ ‘the physical ac[t] of drawing gas from the earth.’ ” Our precedents demand, in other words, that the Court focus in the present case upon what the State seeks to regulate (a pipeline practice that is subject to regulation by the Commission), not why the State seeks to regulate it (to curb the practice’s effects on retail rates). Trying to turn liabilities into assets, the Court bran- dishes statements from Northern and Northwest that (in its view) discuss where state law was “aimed” or “directed.” Ante, at 11. But read in context, these statements refer to the entity or activity that the state law regulates, not to which of the activity’s effects the law seeks to control by regulating it. See, e.g., North- ern (“[O]ur cases have consistently recognized a significant distinction between conserva- tion measures aimed directly at interstate purchasers and Cite as: 575 U. S. (2015) 7 SCALIA, J., dissenting wholesales and those aimed at producers and produc- tion”); Northwest (“[This regulation] is directed to the behavior of gas producers”). The law- suits at hand target pipelines (entities regulated by the Commission) for their manipulation of indices (behavior regulated by the Commission). That should have sufficed to establish preemption. B The Court also tallies several features of state antitrust law that, it believes, weigh against preemption. Ante, at 13–14. Once again the Court seems to have forgotten its precedents. We have said before that “ ‘Congress meant to draw a bright line easily ascertained, between state and federal jurisdiction’ ” over the gas trade. Nantahala Power & Light (quot- ing 215– 216 (1964)). Our decisions have therefore “ ‘squarely rejected’ ” the theory, endorsed by the Court today, that the boundary between national and local authority turns on “ ‘a case-by-case analysis of the impact of state regula- tion upon the national interest.’ ” State antitrust law, the Court begins, applies to “all businesses in the marketplace” rather than just “natural- gas companies in particular.” Ante, at 13. So what? No principle of our natural-gas preemption jurisprudence distinguishes particularized state laws from state laws of general applicability. We have never suggested, for exam- ple, that a State may use general price-gouging laws to fix wholesale rates, or general laws about unfair trade prac- tices to control wholesale contracts, or general common- carrier laws to administer interstate pipelines. The Court in any event could not have chosen a worse setting in which to attempt a distinction between general and par- ticular laws. Like their federal counterpart, state anti- trust laws tend to use the rule of reason to judge the law- 8 ONEOK, INC. v. LEARJET, INC. SCALIA, J., dissenting fulness of challenged practices. Legal Aspects of Buying and Selling (P. Zeidman ed. 2014–2015). This amorphous standard requires the reviewing court to con- sider “a variety of factors, including specific information about the relevant business, its condition before and after the restraint was imposed, and the restraint’s history, nature, and effect.” State Oil (1997). Far from authorizing across-the-board application of a uniform requirement, therefore, the Court’s decision will invite state antitrust courts to engage in targeted regulation of the natural-gas industry. The Court also stresses the “ ‘long history’ ” of state antitrust regulation. Ante, at 14. Again, quite beside the point. States have long regulated public utilities, yet the Gas Act precludes them from using that estab- lished power to fix gas wholesale prices. United Fuel, 317 U.S., States also have long enacted laws to con- serve natural resources, yet the Act precludes them from deploying that power to control purchases made by gas pipelines. Northern 372 U.S., –94. The Court’s invocation of the pedigree of state antitrust law rests on air. One need not launch this unbounded inquiry into the features of state law in order to preserve the States’ au- thority to apply “tax laws,” “disclosure laws,” and “blue sky laws” to natural-gas companies, ante, at 12. One need only stand by the principle that if the Commission has authority over a subject, the States lack authority over that subject. The Commission’s authority to regulate gas pipelines “in the public interest,” a, is a power to address matters that are traditionally the concern of utility regulators, not “a broad license to promote the general public welfare,” We have explained that the Commission does not, for example, have power to superintend “employment discrimination” or “unfair labor practices.” at 670– Cite as: 575 U. S. (2015) 9 SCALIA, J., dissenting 671. So the Act does not preempt state employment dis- crimination or labor laws. But the Commission does have power to consider, say, “conservation, environmental, and antitrust questions.” So the Act does preempt state antitrust laws. C At bottom, the Court’s decision turns on its perception that the Gas Act “ ‘was drawn with meticulous regard for the continued exercise of state power.’ ” Ante, at No doubt the Act protects state authority in a variety of ways. It gives the Commission authority over only some parts of the gas trade. (b). It establishes procedures under which the Commission may consult, collaborate, or share information with States. p. It even provides that the Commission may regulate practices affecting wholesale rates “upon its own motion or upon complaint of any State.” d(a) It should have gone without saying, however, that no law pursues its purposes at all costs. Nothing in the Act and nothing in our cases suggests that Congress protected state power in the way imagined by today’s decision: by licensing state sorties into the Commission’s domain whenever judges conclude that an incursion would not be too disruptive. The Court’s preoccupation with the purpose of preserv- ing state authority is all the more inexpiable because that is not the Act’s only purpose. The Act also has competing purposes, the most important of which is promoting “uni- formity of regulation.” Northern The Court’s decision impairs that objective. Before today, interstate pipelines knew that their practices relating to price indices had to comply with one set of regulations promulgated by the Commission. From now on, however, pipelines will have to ensure that their behavior conforms to the discordant regulations of 50 States—or more accu- rately, to the discordant verdicts of untold state antitrust ONEOK, INC. v. LEARJET, INC. SCALIA, J., dissenting juries. The Court’s reassurance that pipelines may still invoke conflict preemption, see ante, at 15–16, provides little comfort on this front. Conflict preemption will re- solve only discrepancies between state and federal regula- tions, not the discrepancies among differing state regula- tions to which today’s opinion subjects the industry. * * * “The Gas Act was designed to produce a harmonious and comprehensive regulation of the industry. Neither state nor federal regulatory body was to encroach upon the jurisdiction of the other.” (footnote omitted). Today, however, the Court allows the States to encroach. Worse still, it leaves pipelines guessing about when States will be allowed to encroach again. May States aim at retail rates under laws that share none of the features of antitrust law advertised today? Under laws that share only some of those features? May States apply their antitrust laws to pipelines without aiming at retail rates? But that is just the start. Who knows what other “considerations that weigh against a finding of pre- emption” remain to be unearthed in future cases? The Court’s all-things-considered test does not make for a stable background against which to carry on the natural gas trade. I would stand by the more principled and more workable line traced by our precedents. The Commission may regulate the practices alleged in this case; the States therefore may not. I respectfully dissent
Justice Kennedy	majority	false	Hill v. McDonough	2006-06-12T00:00:00	null	https://www.courtlistener.com/opinion/145647/hill-v-mcdonough/	https://www.courtlistener.com/api/rest/v3/clusters/145647/	2,006	2005-064	2	9	0	Petitioner Clarence E. Hill challenges the constitutionality of a three-drug sequence the State of Florida likely would use to execute him by lethal injection. Seeking to enjoin the procedure, he filed this action in the United States District Court for the Northern District of Florida, pursuant to the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S. C. § 1983. The District Court and the Court of Appeals for the Eleventh Circuit construed the action as a petition for a writ of habeas corpus and ordered it dismissed for noncompliance with the requirements for a second and successive petition. The question before us is whether Hill's claim must be brought by an action for a writ of habeas corpus under the statute authorizing that writ, 28 U.S. C. § 2254, or whether it may proceed as an action for relief under 42 U.S. C. § 1983. This is not the first time we have found it necessary to discuss which of the two statutes governs an action brought by a prisoner alleging a constitutional violation. See, e. g., Nelson v. Campbell, 541 U.S. 637 (2004); Heck v. Humphrey, 512 U.S. 477 (1994); Preiser v. Rodriguez, 411 U.S. 475 (1973). Hill's suit, we now determine, is comparable in its essentials to the action the Court allowed to proceed under § 1983 in Nelson, supra. In accord with that precedent we now reverse. I In the year 1983, Hill was convicted of first-degree murder and sentenced to death. When his conviction and sentence became final some five years later, the method of execution then prescribed by Florida law was electrocution. Fla. Stat. 577 § 922.10 (1987). On January 14, 2000four days after the conclusion of Hill's first, unsuccessful round of federal habeas corpus litigationFlorida amended the controlling statute to provide: "A death sentence shall be executed by lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution." § 922.105(1) (2003). The now-controlling statute, which has not been changed in any relevant respect, does not specify a particular lethal injection procedure. Implementation is the responsibility of the Florida Department of Corrections. See ibid.; Sims v. State, 754 So. 2d 657, 670 (Fla. 2000) (per curiam). The department has not issued rules establishing a specific lethal injection protocol, and its implementing policies and procedures appear exempt from Florida's Administrative Procedure Act. See § 922.105(7). After the statute was amended to provide for lethal injection, the Florida Supreme Court heard a death row inmate's claim that the execution procedure violated the Eighth Amendment's prohibition of cruel and unusual punishments. Sims v. State, supra. In Sims, the complainant, who had acquired detailed information about the procedure from the State, contended the planned three-drug sequence of injections would cause great pain if the drugs were not administered properly. 754 So. 2d, at 666-668. The Florida Supreme Court rejected this argument as too speculative. Id., at 668. On November 29, 2005, the Governor of Florida signed Hill's death warrant, which ordered him to be executed on January 24, 2006. Hill requested information about the lethal injection protocol, but the department provided none. App. 21, n. 3 (Verified Complaint for Declaratory & Injunctive Relief ¶ 15, n. 3 (hereinafter Complaint)). Hill then challenged, for the first time, the State's lethal injection procedure. On December 15, 2005, he filed a successive postconviction petition in state court, relying upon the Eighth Amendment. The trial court denied Hill's request for an evidentiary 578 hearing and dismissed his claim as procedurally barred. The Florida Supreme Court affirmed on January 17, 2006. Hill v. State, 921 So. 2d 579, cert. denied, 546 U.S. 1219 (2006). Three days laterand four days before his scheduled executionHill brought this action in District Court pursuant to 42 U.S. C. § 1983. Assuming the State would use the procedure discussed at length in the Sims decision, see App. 20-21, and n. 3 (Complaint ¶ 15, n. 3), Hill alleged that the first drug injected, sodium pentothal, would not be a sufficient anesthetic to render painless the administration of the second and third drugs, pancuronium bromide and potassium chloride. There was an ensuing risk, Hill alleged, that he could remain conscious and suffer severe pain as the pancuronium paralyzed his lungs and body and the potassium chloride caused muscle cramping and a fatal heart attack. Id., at 18-21 (Complaint ¶¶ 9-16). The complaint sought an injunction "barring defendants from executing Plaintiff in the manner they currently intend." Id., at 22 (Complaint ¶¶ 19-20). The District Court found that under controlling Eleventh Circuit precedent the § 1983 claim was the functional equivalent of a petition for writ of habeas corpus. Id., at 15 (relying on Robinson v. Crosby, 358 F.3d 1281 (2004)). Because Hill had sought federal habeas corpus relief in an earlier action, the District Court deemed his petition successive and thus barred for failure to obtain leave to file from the Court of Appeals as required by 28 U.S. C. § 2244(b). On the day of the scheduled execution the Court of Appeals affirmed. It held that Hill's action was a successive petition and that it would deny any application for leave to file a successive petition because § 2244(b)(2) would not allow his claim to proceed. Hill v. Crosby, 437 F.3d 1084, 1085 (CA11 2006). After issuing a temporary stay of execution, this Court granted Hill's petition for certiorari and continued the stay pending our resolution of the case. 546 U.S. 1158 (2006). 579 II "Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S. C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S. C. § 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus." Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam) (citing Preiser, 411 U. S., at 500). An inmate's challenge to the circumstances of his confinement, however, may be brought under § 1983. 540 U.S., at 750. In Nelson v. Campbell, 541 U.S. 637, we addressed whether a challenge to a lethal injection procedure must proceed as a habeas corpus action. The complainant had severely compromised peripheral veins, and Alabama planned to apply an invasive procedure on his arm or leg to enable the injection. He sought to enjoin the procedure, alleging it would violate the Eighth Amendment. The Court observed that the question whether a general challenge to a method of execution must proceed under habeas was a difficult one. The claim was not easily described as a challenge to the fact or duration of a sentence; yet in a State where the legislature has established lethal injection as the method of execution, "a constitutional challenge seeking to permanently enjoin the use of lethal injection may amount to a challenge to the fact of the sentence itself." Id., at 644. Nelson did not decide this question. The lawsuit at issue, as the Court understood the case, did not require an injunction that would challenge the sentence itself. The invasive procedure in Nelson was not mandated by law, and the inmate appeared willing to concede the existence of an acceptable alternative procedure. Id., at 645-646. Absent a finding that the challenged procedure was necessary to the lethal injection, the Court concluded, injunctive relief would not prevent the State from implementing the sentence. Consequently, 580 the suit as presented would not be deemed a challenge to the fact of the sentence itself. See ibid. The decision in Nelson also observed that its holding was congruent with the Court's precedents addressing civil rights suits for damages that implicate habeas relief. Those cases provide that prisoners' suits for damages can be barred from proceeding under § 1983 when a judgment in the prisoner's favor necessarily implies the invalidity of the prisoner's sentence. See, e. g., Heck, 512 U. S., at 487; Close, supra, at 751. The action in Nelson, however, was not analogous to a damages suit filed to circumvent the limits imposed by the habeas statute. The suit did not challenge an execution procedure required by law, so granting relief would not imply the unlawfulness of the lethal injection sentence. See 541 U.S., at 647. In the case before us we conclude that Hill's § 1983 action is controlled by the holding in Nelson. Here, as in Nelson, Hill's action if successful would not necessarily prevent the State from executing him by lethal injection. The complaint does not challenge the lethal injection sentence as a general matter but seeks instead only to enjoin respondents "from executing [Hill] in the manner they currently intend." App. 22 (Complaint ¶ 20). The specific objection is that the anticipated protocol allegedly causes "a foreseeable risk of . . . gratuitous and unnecessary" pain. Id., at 46 (Application for Stay of Execution and for Expedited Appeal). Hill concedes that "other methods of lethal injection the Department could choose to use would be constitutional," Brief for Petitioner 17, and respondents do not contend, at least to this point in the litigation, that granting Hill's injunction would leave the State without any other practicable, legal method of executing Hill by lethal injection. Florida law, moreover, does not require the department of corrections to use the challenged procedure. See Fla. Stat. §§ 922.105(1), (7) (prescribing lethal injection and leaving implementation to the department of corrections). Hill's challenge appears to leave the State 581 free to use an alternative lethal injection procedure. Under these circumstances a grant of injunctive relief could not be seen as barring the execution of Hill's sentence. One difference between the present case and Nelson, of course, is that Hill challenges the chemical injection sequence rather than a surgical procedure preliminary to the lethal injection. In Nelson, however, the State argued that the invasive procedure was not a medical operation separable from the lethal injection but rather a "necessary prerequisite to, and thus an indispensable part of, any lethal injection procedure." 541 U.S., at 645. The Court reasoned that although venous access was necessary for lethal injection, it did not follow that the State's chosen means of access were necessary; "the gravamen of petitioner's entire claim" was that the procedure was "gratuitous." Ibid. (emphasis deleted). The same is true here. Although the injection of lethal chemicals is an obvious necessity for the execution, Hill alleges that the challenged procedure presents a risk of pain the State can avoid while still being able to enforce the sentence ordering a lethal injection. One concern is that the foregoing analysis may be more theoretical than real based on the practicalities of the case. A procedure that avoids the harms Hill alleges, for instance, may be susceptible to attack for other purported risks of its own. Respondents and their supporting amici thus contend that the legal distinction between habeas corpus and § 1983 actions must account for the practical reality of capital litigation tactics: Inmates file these actions intending to forestall execution, and Nelson's emphasis on whether a suit challenges something "necessary" to the execution provides no endpoint to piecemeal litigation aimed at delaying the execution. Viewed in isolation, no single component of a given execution procedure may be strictly necessary, the argument goes, and a capital litigant may put off execution by challenging one aspect of a procedure after another. The amici States point to Nelson's aftermath as a cautionary example, 582 contending that on remand the District Court allowed Nelson to amend his complaint and that litigation over the constitutionality of Alabama's adopted alternativeone that Nelson had previously proposedcontinues to this day. See Brief for State of Alabama et al. as Amici Curiae 7-14. Respondents and their supporting amici conclude that two different rules should follow from these practical considerations. The United States as amicus curiae contends that a capital litigant's § 1983 action can proceed if, as in Nelson, supra, at 646, the prisoner identifies an alternative, authorized method of execution. A suit like Hill's that fails to do so, the United States maintains, is more like a claim challenging the imposition of any method of executionwhich is to say, the execution itselfbecause it shows the complainant is unable or unwilling to concede acceptable alternatives "[e]xcept in the abstract." Brief for United States 14. Although we agree courts should not tolerate abusive litigation tactics, see Part III, infra, even if the United States' proposed limitation were likely to be effective we could not accept it. It is true that the Nelson plaintiff's affirmative identification of an acceptable alternative supported our conclusion that the suit need not proceed as a habeas action. 541 U.S., at 646 (citing the inmate's complaint and affidavits). That fact, however, was not decisive. Nelson did not change the traditional pleading requirements for § 1983 actions. If the relief sought would foreclose execution, recharacterizing a complaint as an action for habeas corpus might be proper. See id., at 644, 646. Cf. Gonzalez v. Crosby, 545 U.S. 524 (2005). Imposition of heightened pleading requirements, however, is quite a different matter. Specific pleading requirements are mandated by the Federal Rules of Civil Procedure, and not, as a general rule, through case-by-case determinations of the federal courts. See Fed. Rules Civ. Proc. 8 and 9; Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512-514 (2002). 583 Respondents and the States as amici frame their argument differently. While not asking the Court in explicit terms to overrule Nelson, they contend a challenge to a procedure implicating the direct administration of an execution must proceed as a habeas action. Brief for Respondents 30-31; Brief for Alabama, supra, at 16-18. They rely on cases barring § 1983 damages actions that, if successful, would imply the invalidation of an existing sentence or confinement. See, e. g., Edwards v. Balisok, 520 U.S. 641 (1997); Heck, 512 U.S. 477. Those cases, they contend, demonstrate that the test of whether an action would undermine a sentence must "be applied functionally." Brief for Alabama, supra, at 16. By the same logic, it is said, a suit should be brought in habeas if it would frustrate the execution as a practical matter. This argument cannot be squared with Nelson's observation that its criterionwhether a grant of relief to the inmate would necessarily bar the executionis consistent with Heck's and Balisok's approach to damages actions that implicate habeas relief. Nelson, supra, at 646-647. In those cases the question is whether "the nature of the challenge to the procedures could be such as necessarily to imply the invalidity" of the confinement or sentence. Balisok, supra, at 645. As discussed above, and at this stage of the litigation, the injunction Hill seeks would not necessarily foreclose the State from implementing the lethal injection sentence under present law, and thus it could not be said that the suit seeks to establish "unlawfulness [that] would render a conviction or sentence invalid." Heck, supra, at 486. Any incidental delay caused by allowing Hill to file suit does not cast on his sentence the kind of negative legal implication that would require him to proceed in a habeas action. III Filing an action that can proceed under § 1983 does not entitle the complainant to an order staying an execution as 584 a matter of course. Both the State and the victims of crime have an important interest in the timely enforcement of a sentence. Calderon v. Thompson, 523 U.S. 538, 556 (1998). Our conclusions today do not diminish that interest, nor do they deprive federal courts of the means to protect it. We state again, as we did in Nelson, that a stay of execution is an equitable remedy. It is not available as a matter of right, and equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts. 541 U.S., at 649-650. See In re Blodgett, 502 U.S. 236, 239-240 (1992) (per curiam); Delo v. Stokes, 495 U.S. 320, 323 (1990) (Kennedy, J., concurring). Thus, like other stay applicants, inmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits. See Barefoot v. Estelle, 463 U.S. 880, 895-896 (1983). See also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (preliminary injunction not granted unless the movant, by a clear showing, carries the burden of persuasion). A court considering a stay must also apply "a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay." Nelson, supra, at 650. See also Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam) (noting that the "last-minute nature of an application" or an applicant's "attempt at manipulation" of the judicial process may be grounds for denial of a stay). After Nelson a number of federal courts have invoked their equitable powers to dismiss suits they saw as speculative or filed too late in the day. See, e. g., Hicks v. Taft, 431 F.3d 916 (CA6 2005); White v. Johnson, 429 F.3d 572 (CA5 2005); Boyd v. Beck, 404 F. Supp. 2d 879 (EDNC 2005). Although the particular determinations made in those cases are *585 not before us, we recognize that the problem they address is significant. Repetitive or piecemeal litigation presumably would raise similar concerns. The federal courts can and should protect States from dilatory or speculative suits, but it is not necessary to reject Nelson to do so. The equities and the merits of Hill's underlying action are also not before us. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.	Petitioner Clarence E. Hill challenges the constitutionality of a three-drug sequence the of Florida likely would use to execute him by lethal injection. Seeking to enjoin the procedure, he filed this action in the United s District Court for the Northern District of Florida, pursuant to the Civil Rights Act of 1871, Rev. Stat. 1979, as amended, 42 U.S. C. The District Court and the Court of Appeals for the Eleventh Circuit construed the action as a petition for a writ of habeas corpus and ordered it dismissed for noncompliance with the requirements for a second and successive petition. The question before us is whether Hill's claim must be brought by an action for a writ of habeas corpus under the statute authorizing that writ, 28 U.S. C. 2254, or whether it may proceed as an action for relief under 42 U.S. C. This is not the first time we have found it necessary to discuss which of the two statutes governs an action brought by a prisoner alleging a constitutional violation. See, e. g., ; ; Hill's suit, we now determine, is comparable in its essentials to the action the Court allowed to proceed under 1983 in In accord with that precedent we now reverse. I In the year 1983, Hill was convicted of first-degree murder and sentenced to death. When his conviction and sentence became final some five years later, the method of execution then prescribed by Florida law was electrocution. Fla. Stat. 577 922.10 (1987). On January 14, 2000four days after the conclusion of Hill's first, unsuccessful round of federal habeas corpus litigationFlorida amended the controlling statute to provide: "A death sentence shall be executed by lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution." 922.105(1) (2003). The now-controlling statute, which has not been changed in any relevant respect, does not specify a particular lethal injection procedure. Implementation is the responsibility of the Florida Department of Corrections. See ; The department has not issued rules establishing a specific lethal injection protocol, and its implementing policies and procedures appear exempt from Florida's Administrative Procedure Act. See 922.105(7). After the statute was amended to provide for lethal injection, the Florida Supreme Court heard a death row inmate's claim that the execution procedure violated the Eighth Amendment's prohibition of cruel and unusual punishments. In Sims, the complainant, who had acquired detailed information about the procedure from the contended the planned three-drug sequence of injections would cause great pain if the drugs were not administered -668. The Florida Supreme Court rejected this argument as too speculative. On November 29, the Governor of Florida signed Hill's death warrant, which ordered him to be executed on January 24, Hill requested information about the lethal injection protocol, but the department provided none. App. 21, n. 3 (Verified Complaint for Declaratory & Injunctive Relief ¶ 15, n. 3 (hereinafter Complaint)). Hill then challenged, for the first time, the 's lethal injection procedure. On December 15, he filed a successive postconviction petition in state court, relying upon the Eighth Amendment. The trial court denied Hill's request for an evidentiary 578 hearing and dismissed his claim as procedurally barred. The Florida Supreme Court affirmed on January 17, Hill v. Three days laterand four days before his scheduled executionHill brought this action in District Court pursuant to 42 U.S. C. Assuming the would use the procedure discussed at length in the Sims decision, see App. 20-21, and n. 3 (Complaint ¶ 15, n. 3), Hill alleged that the first drug injected, sodium pentothal, would not be a sufficient anesthetic to render painless the administration of the second and third drugs, pancuronium bromide and potassium chloride. There was an ensuing risk, Hill alleged, that he could remain conscious and suffer severe pain as the pancuronium paralyzed his lungs and body and the potassium chloride caused muscle cramping and a fatal heart attack. The complaint sought an injunction "barring defendants from executing Plaintiff in the manner they currently intend." The District Court found that under controlling Eleventh Circuit precedent the 1983 claim was the functional equivalent of a petition for writ of habeas corpus. ). Because Hill had sought federal habeas corpus relief in an earlier action, the District Court deemed his petition successive and thus barred for failure to obtain leave to file from the Court of Appeals as required by 28 U.S. C. 2244(b). On the day of the scheduled execution the Court of Appeals affirmed. It held that Hill's action was a successive petition and that it would deny any application for leave to file a successive petition because 2244(b)(2) would not allow his claim to proceed. After issuing a temporary stay of execution, this Court granted Hill's petition for certiorari and continued the stay pending our resolution of the case. 579 II "Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S. C. 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. 1979, as amended, 42 U.S. C. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus." (citing ). An inmate's challenge to the circumstances of his confinement, however, may be brought under 540 U.S., at In we addressed whether a challenge to a lethal injection procedure must proceed as a habeas corpus The complainant had severely compromised peripheral veins, and planned to apply an invasive procedure on his arm or leg to enable the injection. He sought to enjoin the procedure, alleging it would violate the Eighth Amendment. The Court observed that the question whether a general challenge to a method of execution must proceed under habeas was a difficult one. The claim was not easily described as a challenge to the fact or duration of a sentence; yet in a where the legislature has established lethal injection as the method of execution, "a constitutional challenge seeking to permanently enjoin the use of lethal injection may amount to a challenge to the fact of the sentence itself." did not decide this question. The lawsuit at issue, as the Court understood the case, did not require an injunction that would challenge the sentence itself. The invasive procedure in was not mandated by law, and the inmate appeared willing to concede the existence of an acceptable alternative procedure. Absent a finding that the challenged procedure was necessary to the lethal injection, the Court concluded, injunctive relief would not prevent the from implementing the sentence. Consequently, 580 the suit as presented would not be deemed a challenge to the fact of the sentence itself. See The decision in also observed that its holding was congruent with the Court's precedents addressing civil rights suits for damages that implicate habeas relief. Those cases provide that prisoners' suits for damages can be barred from proceeding under 1983 when a judgment in the prisoner's favor necessarily implies the invalidity of the prisoner's sentence. See, e. g., ; The action in however, was not analogous to a damages suit filed to circumvent the limits imposed by the habeas statute. The suit did not challenge an execution procedure required by law, so granting relief would not imply the unlawfulness of the lethal injection sentence. See In the case before us we conclude that Hill's 1983 action is controlled by the holding in Here, as in Hill's action if successful would not necessarily prevent the from executing him by lethal injection. The complaint does not challenge the lethal injection sentence as a general matter but seeks instead only to enjoin respondents "from executing [Hill] in the manner they currently intend." App. 22 (Complaint ¶ 20). The specific objection is that the anticipated protocol allegedly causes "a foreseeable risk of gratuitous and unnecessary" pain. Hill concedes that "other methods of lethal injection the Department could choose to use would be constitutional," Brief for Petitioner 17, and respondents do not contend, at least to this point in the litigation, that granting Hill's injunction would leave the without any other practicable, legal method of executing Hill by lethal injection. Florida law, moreover, does not require the department of corrections to use the challenged procedure. See Fla. Stat. 922.105(1), (7) (prescribing lethal injection and leaving implementation to the department of corrections). Hill's challenge appears to leave the 581 free to use an alternative lethal injection procedure. Under these circumstances a grant of injunctive relief could not be seen as barring the execution of Hill's sentence. One difference between the present case and of course, is that Hill challenges the chemical injection sequence rather than a surgical procedure preliminary to the lethal injection. In however, the argued that the invasive procedure was not a medical operation separable from the lethal injection but rather a "necessary prerequisite to, and thus an indispensable part of, any lethal injection procedure." The Court reasoned that although venous access was necessary for lethal injection, it did not follow that the 's chosen means of access were necessary; "the gravamen of petitioner's entire claim" was that the procedure was "gratuitous." The same is true here. Although the injection of lethal chemicals is an obvious necessity for the execution, Hill alleges that the challenged procedure presents a risk of pain the can avoid while still being able to enforce the sentence ordering a lethal injection. One concern is that the foregoing analysis may be more theoretical than real based on the practicalities of the case. A procedure that avoids the harms Hill alleges, for instance, may be susceptible to attack for other purported risks of its own. Respondents and their supporting amici thus contend that the legal distinction between habeas corpus and 1983 actions must account for the practical reality of capital litigation tactics: Inmates file these actions intending to forestall execution, and 's emphasis on whether a suit challenges something "necessary" to the execution provides no endpoint to piecemeal litigation aimed at delaying the execution. Viewed in isolation, no single component of a given execution procedure may be strictly necessary, the argument goes, and a capital litigant may put off execution by challenging one aspect of a procedure after another. The amici s point to 's aftermath as a cautionary example, 582 contending that on remand the District Court allowed to amend his complaint and that litigation over the constitutionality of 's adopted alternativeone that had previously proposedcontinues to this day. See Brief for of et al. as Amici Curiae 7-14. Respondents and their supporting amici conclude that two different rules should follow from these practical considerations. The United s as amicus curiae contends that a capital litigant's 1983 action can proceed if, as in the prisoner identifies an alternative, authorized method of execution. A suit like Hill's that fails to do so, the United s maintains, is more like a claim challenging the imposition of any method of executionwhich is to say, the execution itselfbecause it shows the complainant is unable or unwilling to concede acceptable alternatives "[e]xcept in the abstract." Brief for United s 14. Although we agree courts should not tolerate abusive litigation tactics, see Part III, infra, even if the United s' proposed limitation were likely to be effective we could not accept it. It is true that the plaintiff's affirmative identification of an acceptable alternative supported our conclusion that the suit need not proceed as a habeas 541 U.S., (citing the inmate's complaint and affidavits). That fact, however, was not decisive. did not change the traditional pleading requirements for 1983 actions. If the relief sought would foreclose execution, recharacterizing a complaint as an action for habeas corpus might be proper. See 646. Cf. Imposition of heightened pleading requirements, however, is quite a different matter. Specific pleading requirements are mandated by the Federal Rules of Civil Procedure, and not, as a general rule, through case-by-case determinations of the federal See Fed. Rules Civ. Proc. 8 and 9; 583 Respondents and the s as amici frame their argument differently. While not asking the Court in explicit terms to overrule they contend a challenge to a procedure implicating the direct administration of an execution must proceed as a habeas Brief for Respondents 30-31; Brief for They rely on cases barring 1983 damages actions that, if successful, would imply the invalidation of an existing sentence or confinement. See, e. g., ; Those cases, they contend, demonstrate that the test of whether an action would undermine a sentence must "be applied functionally." Brief for By the same logic, it is said, a suit should be brought in habeas if it would frustrate the execution as a practical matter. This argument cannot be squared with 's observation that its criterionwhether a grant of relief to the inmate would necessarily bar the executionis consistent with 's and 's approach to damages actions that implicate habeas relief. -647. In those cases the question is whether "the nature of the challenge to the procedures could be such as necessarily to imply the invalidity" of the confinement or sentence. As discussed above, and at this stage of the litigation, the injunction Hill seeks would not necessarily foreclose the from implementing the lethal injection sentence under present law, and thus it could not be said that the suit seeks to establish "unlawfulness [that] would render a conviction or sentence invalid." Any incidental delay caused by allowing Hill to file suit does not cast on his sentence the kind of negative legal implication that would require him to proceed in a habeas III Filing an action that can proceed under 1983 does not entitle the complainant to an order staying an execution as 584 a matter of course. Both the and the victims of crime have an important interest in the timely enforcement of a sentence. Our conclusions today do not diminish that interest, nor do they deprive federal courts of the means to protect it. We state again, as we did in that a stay of execution is an equitable remedy. It is not available as a matter of right, and equity must be sensitive to the 's strong interest in enforcing its criminal judgments without undue interference from the federal -650. See In re Blodgett, ; Thus, like other stay applicants, inmates seeking time to challenge the manner in which the plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits. See See also (preliminary injunction not granted unless the movant, by a clear showing, carries the burden of persuasion). A court considering a stay must also apply "a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay." See also Gomez v. United s Dist. Court for Northern Dist. of Cal., (noting that the "last-minute nature of an application" or an applicant's "attempt at manipulation" of the judicial process may be grounds for denial of a stay). After a number of federal courts have invoked their equitable powers to dismiss suits they saw as speculative or filed too late in the day. See, e. g., ; ; Although the particular determinations made in those cases are *585 not before us, we recognize that the problem they address is significant. Repetitive or piecemeal litigation presumably would raise similar concerns. The federal courts can and should protect s from dilatory or speculative suits, but it is not necessary to reject to do so. The equities and the merits of Hill's underlying action are also not before us. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.
Justice Stevens	majority	false	Babbitt v. Sweet Home Chapter, Communities for Great Ore.	1995-06-29T00:00:00	null	https://www.courtlistener.com/opinion/2462772/babbitt-v-sweet-home-chapter-communities-for-great-ore/	https://www.courtlistener.com/api/rest/v3/clusters/2462772/	1,995	1994-088	2	6	3	The Endangered Species Act of 1973 (ESA or Act), 87 Stat. 884, 16 U.S. C. § 1531 (1988 ed. and Supp. V), contains a variety of protections designed to save from extinction species that the Secretary of the Interior designates as endangered or threatened. Section 9of the Act makes it unlawful for any person to "take" any endangered or threatened species. The Secretary has promulgated a regulation that defines the statute's prohibition on takings to include "significant habitat modification or degradation where it actually kills or injures wildlife." This case presents the question whether the Secretary exceeded his authority under the Act by promulgating that regulation. I Section 9(a)(1) of the Act provides the following protection for endangered species:[1] "Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to. . . . . 691 "(B) take any such species within the United States or the territorial sea of the United States." 16 U.S. C. § 1538(a)(1). Section 3(19)of the Act defines the statutory term "take": "The term `take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S. C. § 1532(19). The Act does not further define the terms it uses to define "take." The Interior Department regulations that implement the statute, however, define the statutory term "harm": "Harm in the definition of `take' in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." 50 CFR § 17.3 (1994). This regulation has been in place since 1975.[2] A limitation on the § 9 "take" prohibition appears in § 10(a)(1)(B) of the Act, which Congress added by amendment in 1982. That section authorizes the Secretary to grant a permit for any taking otherwise prohibited by § 9(a)(1)(B) "if such taking is incidental to, and not the purpose of,the carrying out of an otherwise lawful activity." 16 U.S. C. § 1539(a)(1)(B). In addition to the prohibition on takings, the Act provides several other protections for endangered species. Section 4, 16 U.S. C. § 1533, commands the Secretary to identify species of fish or wildlife that are in danger of extinction and to publish from time to time lists of all species he determines to 692 be endangered or threatened. Section 5, 16 U.S. C. § 1534, authorizes the Secretary, in cooperation with the States, see § 1535, to acquire land to aid in preserving such species. Section 7 requires federal agencies to ensure that none of their activities,including the granting of licenses and permits, will jeopardize the continued existence of endangered species "or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical."16 U.S. C. § 1536(a)(2). Respondents in this action are small landowners, logging companies, and families dependent on the forest products industries in the Pacific Northwest and in the Southeast, and organizations that represent their interests. They brought this declaratory judgment action against petitioners, the Secretary of the Interior and the Director of the Fish and Wildlife Service, in the United States District Court for the District of Columbia to challenge the statutory validity of the Secretary's regulation defining "harm," particularly the inclusion of habitat modification and degradation in the definition.[3] Respondents challenged the regulation on its face. Their complaint alleged that application of the "harm" regulation to the red-cockaded woodpecker, an endangered species,[4] and the northern spotted owl, a threatened species,[5] had injured them economically. App. 17-23. 693 Respondents advanced three arguments to support their submission that Congress did not intend the word "take" in § 9 to include habitat modification, as the Secretary's "harm" regulation provides. First, they correctly noted that language in the Senate's original version of the ESA would have defined "take" to include "destruction, modification, or curtailment of [the] habitat or range" of fish or wildlife,[6] but the Senate deleted that language from the bill before enacting it. Second, respondents argued that Congress intended the Act's express authorization for the Federal Government to buy private land in order to prevent habitat degradation in § 5 to be the exclusive check against habitat modification on private property. Third, because the Senate added the term "harm" to the definition of "take" in a floor amendment without debate, respondents argued that the court should not interpret the term so expansively as to include habitat modification. The District Court considered and rejected each of respondents' arguments, finding "that Congress intended an expansive interpretation of the word `take,' an interpretation that encompasses habitat modification." 806 F. Supp. 279, 285 (1992). The court noted that in 1982, when Congress was aware of a judicial decision that had applied the Secretary's regulation, see Palila v. Hawaii Dept. of Land and Natural Resources, 639 F.2d 495 (CA9 1981) (Palila I), it amended the Act without using the opportunity to change the definition of "take." 806 F. Supp., at 284. The court stated that, even had it found the ESA "`silent or ambiguous' " as to the authority for the Secretary's definition of "harm," it would nevertheless have upheld the regulation as a reasonable interpretation of the statute. Id., at 285 (quoting 694 Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)). The District Court therefore entered summary judgment for petitioners and dismissed respondents' complaint. A divided panel of the Court of Appeals initially affirmed the judgment of the District Court. 1 F.3d 1 (CADC 1993). After granting a petition for rehearing, however, the panel reversed. 17 F.3d 1463 (CADC 1994). Although acknowledging that "[t]he potential breadth of the word `harm' is indisputable," id., at 1464, the majority concluded that the immediate statutory context in which "harm" appeared counseled against a broad reading; like the other words in the definition of "take," the word "harm" should be read as applying only to "the perpetrator's direct application of force against the animal taken . . . . The forbidden acts fit, in ordinary language, the basic model `A hit B.' " Id., at 1465. The majority based its reasoning on a canon of statutory construction called noscitur a sociis, which holds that a word is known by the company it keeps. See Neal v. Clark, 95 U.S. 704, 708-709 (1878). The majority claimed support for its construction from a decision of the Ninth Circuit that narrowly construed the word "harass" in the Marine Mammal Protection Act of 1972, 16 U.S. C. § 1372(a)(2)(A), see United States v. Hayashi, 5 F.3d 1278, 1282 (1993); from the legislative history of the ESA;[7] from its view that Congress must not have intended the purportedly broad curtailment of private property rights that the Secretary's interpretation permitted; and from the ESA's land acquisition provision in § 5 and restriction on federal agencies' activities regarding habitat in § 7, both of which the court saw as evidence that Congress had not intended the § 9 "take" prohibition to reach habitat modification. 695 Most prominently, the court performed a lengthy analysis of the 1982 amendment to § 10 that provided for "incidental take permits" and concluded that the amendment did not change the meaning of the term "take" as defined in the 1973 statute.[8] Chief Judge Mikva, who had announced the panel's original decision, dissented. See 17 F.3d, at 1473. In his view, a proper application of Chevron indicated that the Secretary had reasonably defined "harm," because respondents had failed to show that Congress unambiguously manifested its intent to exclude habitat modification from the ambit of "take." Chief Judge Mikva found the majority's reliance on noscitur a sociis inappropriate in light of the statutory language and unnecessary in light of the strong support in the legislative history for the Secretary's interpretation. He did not find the 1982 "incidental take permit" amendment alone sufficient to vindicate the Secretary's definition of "harm," but he believed the amendment provided additional support for that definition because it reflected Congress' view in 1982 that the definition was reasonable. The Court of Appeals' decision created a square conflict with a 1988 decision of the Ninth Circuit that had upheld the Secretary's definition of "harm." See Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106 (1988) (Palila II). The Court of Appeals neither cited nor distinguished Palila II, despite the stark contrast between the Ninth Circuit's holding and its own. We granted certiorari to resolve the conflict. 513 U.S. 1072 (1995). Our consideration of the text and structure of the Act, its legislative history, and the significance of the 1982 amendment persuades us that the Court of Appeals' judgment should be reversed. 696 II Because this case was decided on motions for summary judgment, we may appropriately make certain factual assumptions in order to frame the legal issue. First, we assume respondents have no desire to harm either the redcockaded woodpecker or the spotted owl; they merely wish to continue logging activities that would be entirely proper if not prohibited by the ESA. On the other hand, we must assume, arguendo, that those activities will have the effect, even though unintended, of detrimentally changing the natural habitat of both listed species and that, as a consequence, members of those species will be killed or injured. Under respondents' view of the law, the Secretary's only means of forestalling that grave resulteven when the actor knows it is certain to occur[9]is to use his § 5 authority to purchase 697 the lands on which the survival of the species depends. The Secretary, on the other hand, submits that the § 9 prohibition on takings, which Congress defined to include "harm," places on respondents a duty to avoid harm that habitat alteration will cause the birds unless respondents first obtain a permit pursuant to § 10. The text of the Act provides three reasons for concluding that the Secretary's interpretation is reasonable. First, an ordinary understanding of the word "harm" supports it. The dictionary definition of the verb form of "harm" is "to cause hurt or damage to: injure." Webster's Third New International Dictionary 1034 (1966). In the context of the ESA, that definition naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species. Respondents argue that the Secretary should have limited the purview of "harm" to direct applications of force against protected species, but the dictionary definition does not include the word "directly" or suggest in any way that only direct or willful action that leads to injury constitutes "harm."[10] Moreover, unless the statutory term "harm" encompasses 698 indirect as well as direct injuries, the word has no meaning that does not duplicate the meaning of other words that § 3 uses to define "take." A reluctance to treat statutory terms as surplusage supports the reasonableness of the Secretary's interpretation. See, e. g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 837, and n. 11 (1988).[11] Second, the broad purpose of the ESA supports the Secretary's decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid. In TVA v. Hill, 437 U.S. 153 (1978), we described the Act as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Id., at 180. Whereas predecessor statutes enacted in 1966 and 1969 had not contained any sweeping prohibition against the taking of endangered species except on federal lands, see id., at 175, the 1973 Act applied to all land in the United States and to the Nation's territorial seas. As stated in § 2 of the Act, among its central purposes is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved . . . ." 16 U.S. C. § 1531(b). 699 In Hill, we construed § 7 as precluding the completion of the Tellico Dam because of its predicted impact on the survival of the snail darter. See 437 U.S., at 193. Both our holding and the language in our opinion stressed the importance of the statutory policy. "The plain intent of Congress in enacting this statute," we recognized, "was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute." Id., at 184. Although the § 9 "take" prohibition was not at issue in Hill, we took note of that prohibition, placing particular emphasis on the Secretary's inclusion of habitat modification in his definition of "harm."[12] In light of that provision for habitat protection, we could "not understand how TVA intends to operate Tellico Dam without `harming' the snail darter." Id., at 184, n. 30. Congress' intent to provide comprehensive protection for endangered and threatened species supports the permissibility of the Secretary's "harm" regulation. Respondents advance strong arguments that activities that cause minimal or unforeseeable harm will not violate the Act as construed in the "harm" regulation. Respondents, however, present a facial challenge to the regulation. Cf. Anderson v. Edwards, 514 U.S. 143, 155-156, n. 6 (1995); INS v. National Center for Immigrants' Rights, Inc., 502 U.S. 183, 188 (1991). Thus, they ask us to invalidate the Secretary's understanding of "harm" in every circumstance, even when an actor knows that an activity, such as draining a 700 pond, would actually result in the extinction of a listed species by destroying its habitat. Given Congress' clear expression of the ESA's broad purpose to protect endangered and threatened wildlife, the Secretary's definition of "harm" is reasonable.[13] Third, the fact that Congress in 1982 authorized the Secretary to issue permits for takings that § 9(a)(1)(B) would otherwise prohibit, "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity," 16 U.S. C. § 1539(a)(1)(B), strongly suggests that Congress understood § 9(a)(1)(B) to prohibit indirect as well as deliberate takings. Cf. NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-275 (1974). The permit process requires the applicant to prepare a "conservation plan" that specifies how he intends to "minimize and mitigate" the "impact" of his activity on endangered and threatened species, 16 U.S. C. § 1539(a)(2)(A), making clear that Congress had in mind foreseeable rather than merely accidental effects on listed species.[14] No one could seriously request an "incidental" take 701 permit to avert § 9 liability for direct, deliberate action against a member of an endangered or threatened species, but respondents would read "harm" so narrowly that the permit procedure would have little more than that absurd purpose. "When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect." Stone v. INS, 514 U.S. 386, 397 (1995). Congress' addition of the § 10 permit provision supports the Secretary's conclusion that activities not intended to harm an endangered species, such as habitat modification, may constitute unlawful takings under the ESA unless the Secretary permits them. The Court of Appeals made three errors in asserting that "harm" must refer to a direct application of force because the words around it do.[15] First, the court's premise was flawed. Several of the words that accompany "harm" in the § 3 definition of "take," especially "harass," "pursue," "wound," and "kill," refer to actions or effects that do not require direct applications of force. Second, to the extent the court read a requirement of intent or purpose into the words used to define "take," it ignored § 11's express provision that a "knowin[g]" 702 action is enough to violate the Act. Third, the court employed noscitur a sociis to give "harm" essentially the same function as other words in the definition, thereby denying it independent meaning. The canon, to the contrary, counsels that a word "gathers meaning from the words around it." Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961). The statutory context of "harm" suggests that Congress meant that term to serve a particular function in the ESA, consistent with, but distinct from, the functions of the other verbs used to define "take." The Secretary's interpretation of "harm" to include indirectly injuring endangered animals through habitat modification permissibly interprets "harm" to have "a character of its own not to be submerged by its association." Russell Motor Car Co. v. United States, 261 U.S. 514, 519 (1923).[16] Nor does the Act's inclusion of the § 5 land acquisition authority and the § 7 directive to federal agencies to avoid destruction or adverse modification of critical habitat alter our conclusion. Respondents' argument that the Government lacks any incentive to purchase land under § 5 when it can simply prohibit takings under § 9 ignores the practical considerations that attend enforcement of the ESA. Purchasing habitat lands may well cost the Government less in many circumstances than pursuing civil or criminal penalties. In addition, the § 5 procedure allows for protection of habitat before the seller's activity has harmed any endangered animal, 703 whereas the Government cannot enforce the § 9 prohibition until an animal has actually been killed or injured. The Secretary may also find the § 5 authority useful for preventing modification of land that is not yet but may in the future become habitat for an endangered or threatened species. The § 7 directive applies only to the Federal Government, whereas the § 9 prohibition applies to "any person." Section 7 imposes a broad, affirmative duty to avoid adverse habitat modifications that § 9 does not replicate, and § 7 does not limit its admonition to habitat modification that "actually kills or injures wildlife." Conversely, § 7 contains limitations that § 9 does not, applying only to actions "likely to jeopardize the continued existence of any endangered species or threatened species," 16 U.S. C. § 1536(a)(2), and to modifications of habitat that has been designated "critical" pursuant to § 4, 16 U.S. C. § 1533(b)(2).[17] Any overlap that § 5 or § 7 may have with § 9 in particular cases is unexceptional, see, e. g., Russello v. United States, 464 U.S. 16, 24, and n. 2 (1983), and simply reflects the broad purpose of the Act set out in § 2 and acknowledged in TVA v. Hill. We need not decide whether the statutory definition of "take" compels the Secretary's interpretation of "harm," because our conclusions that Congress did not unambiguously manifest its intent to adopt respondents' view and that the Secretary's interpretation is reasonable suffice to decide this case. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The latitude the ESA gives the Secretary in enforcing the statute, together with the degree of regulatory expertise necessary to its enforcement, establishes that we owe some degree of deference to the Secretary's reasonable interpretation. See 704 Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 373 (1986).[18] III Our conclusion that the Secretary's definition of "harm" rests on a permissible construction of the ESA gains further support from the legislative history of the statute. The Committee Reports accompanying the bills that became the ESA do not specifically discuss the meaning of "harm," but they make clear that Congress intended "take" to apply broadly to cover indirect as well as purposeful actions. The Senate Report stressed that "`[t]ake' is defined . . . in the broadest possible manner to include every conceivable way in which a person can `take' or attempt to `take' any fish or wildlife." S. Rep. No. 93-307, p. 7 (1973). The House Report stated that "the broadest possible terms" were used to define restrictions on takings. H. R. Rep. No. 93-412, p. 15 (1973). The House Report underscored the breadth of the 705 "take" definition by noting that it included "harassment, whether intentional or not. " Id., at 11 (emphasis added). The Report explained that the definition "would allow, for example, the Secretary to regulate or prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young." Ibid. These comments, ignored in the dissent's welcome but selective foray into legislative history, see post, at 726-729, support the Secretary's interpretation that the term "take" in § 9 reached far more than the deliberate actions of hunters and trappers. Two endangered species bills, S. 1592 and S. 1983, were introduced in the Senate and referred to the Commerce Committee. Neither bill included the word "harm" in its definition of "take," although the definitions otherwise closely resembled the one that appeared in the bill as ultimately enacted. See Hearings on S. 1592 and S. 1983 before the Subcommittee on Environment of the Senate Committee on Commerce, 93d Cong., 1st Sess., pp. 7, 27 (1973) (hereinafter Hearings). Senator Tunney, the floor manager of the bill in the Senate, subsequently introduced a floor amendment that added "harm" to the definition, noting that this and accompanying amendments would "help to achieve the purposes of the bill." 119 Cong. Rec. 25683 (1973). Respondents argue that the lack of debate about the amendment that added "harm" counsels in favor of a narrow interpretation. We disagree. An obviously broad word that the Senate went out of its way to add to an important statutory definition is precisely the sort of provision that deserves a respectful reading. The definition of "take" that originally appeared in S. 1983 differed from the definition as ultimately enacted in one other significant respect: It included "the destruction, modification, or curtailment of [the] habitat or range" of fish and wildlife. Hearings, at 27. Respondents make much of the fact that the Commerce Committee removed this phrase 706 from the "take" definition before S. 1983 went to the floor. See 119 Cong. Rec. 25663 (1973). We do not find that fact especially significant. The legislative materials contain no indication why the habitat protection provision was deleted. That provision differed greatly from the regulation at issue today. Most notably, the habitat protection provision in S. 1983 would have applied far more broadly than the regulation does because it made adverse habitat modification a categorical violation of the "take" prohibition, unbounded by the regulation's limitation to habitat modifications that actually kill or injure wildlife. The S. 1983 language also failed to qualify "modification" with the regulation's limiting adjective "significant." We do not believe the Senate's unelaborated disavowal of the provision in S. 1983 undermines the reasonableness of the more moderate habitat protection in the Secretary's "harm" regulation.[19] 707 The history of the 1982 amendment that gave the Secretary authority to grant permits for "incidental" takings provides further support for his reading of the Act. The House Report expressly states that "[b]y use of the word `incidental' the Committee intends to cover situations in which it is known that a taking will occur if the other activity is engaged in but such taking is incidental to, and not the purpose of, the activity." H. R. Rep. No. 97-567, p. 31 (1982). This reference to the foreseeability of incidental takings undermines respondents' argument that the 1982 amendment covered only accidental killings of endangered and threatened animals that might occur in the course of hunting or trapping other animals. Indeed, Congress had habitat modification directly in mind: Both the Senate Report and the House Conference Report identified as the model for the permit process a cooperative state-federal response to a case in California where a development project threatened incidental harm to a species of endangered butterfly by modification of its habitat. See S. Rep. No. 97-418, p. 10 (1982); H. R. Conf. Rep. No. 97-835, pp. 30-32 (1982). Thus, Congress in 1982 focused squarely on the aspect of the "harm" regulation at issue in this litigation. Congress' implementation of a permit program 708 is consistent with the Secretary's interpretation of the term "harm." IV When it enacted the ESA, Congress delegated broad administrative and interpretive power to the Secretary. See 16 U.S. C. §§ 1533, 1540(f). The task of defining and listing endangered and threatened species requires an expertise and attention to detail that exceeds the normal province of Congress. Fashioning appropriate standards for issuing permits under § 10 for takings that would otherwise violate § 9 necessarily requires the exercise of broad discretion. The proper interpretation of a term such as "harm" involves a complex policy choice. When Congress has entrusted the Secretary with broad discretion, we are especially reluctant to substitute our views of wise policy for his. See Chevron, 467 U. S., at 865-866. In this case, that reluctance accords with our conclusion, based on the text, structure, and legislative history of the ESA, that the Secretary reasonably construed the intent of Congress when he defined "harm" to include "significant habitat modification or degradation that actually kills or injures wildlife." In the elaboration and enforcement of the ESA, the Secretary and all persons who must comply with the law will confront difficult questions of proximity and degree; for, as all recognize, the Act encompasses a vast range of economic and social enterprises and endeavors. These questions must be addressed in the usual course of the law, through case-bycase resolution and adjudication. The judgment of the Court of Appeals is reversed. It is so ordered.	The Endangered Species Act of 1973 (ESA or Act), 16 U.S. C. 1531 ( ed. and Supp. V), contains a variety of protections designed to save from extinction species that the Secretary of the Interior designates as endangered or threatened. Section 9of the Act makes it unlawful for any person to "take" any endangered or threatened species. The Secretary has promulgated a regulation that defines the statute's prohibition on takings to include "significant habitat modification or degradation where it actually kills or injures wildlife." This case presents the question whether the Secretary exceeded his authority under the Act by promulgating that regulation. I Section 9(a)(1) of the Act provides the following protection for endangered species:[1] "Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to. 691 "(B) take any such species within the United States or the territorial sea of the United States." 16 U.S. C. 1538(a)(1). Section 3(19)of the Act defines the statutory term "take": "The term `take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S. C. 1532(19). The Act does not further define the terms it uses to define "take." The Interior Department regulations that implement the statute, however, define the statutory term "harm": "Harm in the definition of `take' in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." 50 CFR 17.3 This regulation has been in place since 1975.[2] A limitation on the 9 "take" prohibition appears in 10(a)(1)(B) of the Act, which Congress added by amendment in 1982. That section authorizes the Secretary to grant a permit for any taking otherwise prohibited by 9(a)(1)(B) "if such taking is incidental to, and not the purpose of,the carrying out of an otherwise lawful activity." 16 U.S. C. 1539(a)(1)(B). In addition to the prohibition on takings, the Act provides several other protections for endangered species. Section 4, 16 U.S. C. 1533, commands the Secretary to identify species of fish or wildlife that are in danger of extinction and to publish from time to time lists of all species he determines to 692 be endangered or threatened. Section 5, 16 U.S. C. 1534, authorizes the Secretary, in cooperation with the States, see 1535, to acquire land to aid in preserving such species. Section 7 requires federal agencies to ensure that none of their activities,including the granting of licenses and permits, will jeopardize the continued existence of endangered species "or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary to be critical."16 U.S. C. 1536(a)(2). Respondents in this action are small landowners, logging companies, and families dependent on the forest products industries in the Pacific Northwest and in the Southeast, and organizations that represent their interests. They brought this declaratory judgment action against petitioners, the Secretary of the Interior and the Director of the Fish and Wildlife Service, in the United States District Court for the District of Columbia to challenge the statutory validity of the Secretary's regulation defining "harm," particularly the inclusion of habitat modification and degradation in the definition.[3] Respondents challenged the regulation on its face. Their complaint alleged that application of the "harm" regulation to the red-cockaded woodpecker, an endangered species,[4] and the northern spotted owl, a threatened species,[5] had injured them economically. App. 17-23. 693 Respondents advanced three arguments to support their submission that Congress did not intend the word "take" in 9 to include habitat modification, as the Secretary's "harm" regulation provides. First, they correctly noted that language in the Senate's original version of the ESA would have defined "take" to include "destruction, modification, or curtailment of [the] habitat or range" of fish or wildlife,[6] but the Senate deleted that language from the bill before enacting it. Second, respondents argued that Congress intended the Act's express authorization for the Federal Government to buy private land in order to prevent habitat degradation in 5 to be the exclusive check against habitat modification on private property. Third, because the Senate added the term "harm" to the definition of "take" in a floor amendment without debate, respondents argued that the court should not interpret the term so expansively as to include habitat modification. The District Court considered and rejected each of respondents' arguments, finding "that Congress intended an expansive interpretation of the word `take,' an interpretation that encompasses habitat modification." The court noted that in 1982, when Congress was aware of a judicial decision that had applied the Secretary's regulation, see it amended the Act without using the opportunity to change the definition of "take." The court stated that, even had it found the ESA "`silent or ambiguous' " as to the authority for the Secretary's definition of "harm," it would nevertheless have upheld the regulation as a reasonable interpretation of the statute. at ). The District Court therefore entered summary judgment for petitioners and dismissed respondents' complaint. A divided panel of the Court of Appeals initially affirmed the judgment of the District Court. After granting a petition for rehearing, however, the panel reversed. Although acknowledging that "[t]he potential breadth of the word `harm' is indisputable," the majority concluded that the immediate statutory context in which "harm" appeared counseled against a broad reading; like the other words in the definition of "take," the word "harm" should be read as applying only to "the perpetrator's direct application of force against the animal taken The forbidden acts fit, in ordinary language, the basic model `A hit B.' " The majority based its reasoning on a canon of statutory construction called noscitur a sociis, which holds that a word is known by the company it keeps. See The majority claimed support for its construction from a decision of the Ninth Circuit that narrowly construed the word "harass" in the Marine Mammal Protection Act of 1972, 16 U.S. C. 1372(a)(2)(A), see United ; from the legislative history of the ESA;[7] from its view that Congress must not have intended the purportedly broad curtailment of private property rights that the Secretary's interpretation permitted; and from the ESA's land acquisition provision in 5 and restriction on federal agencies' activities regarding habitat in 7, both of which the court saw as evidence that Congress had not intended the 9 "take" prohibition to reach habitat modification. 695 Most prominently, the court performed a lengthy analysis of the 1982 amendment to 10 that provided for "incidental take permits" and concluded that the amendment did not change the meaning of the term "take" as defined in the 1973 statute.[8] Chief Judge Mikva, who had announced the panel's original decision, dissented. See In his view, a proper application of indicated that the Secretary had reasonably defined "harm," because respondents had failed to show that Congress unambiguously manifested its intent to exclude habitat modification from the ambit of "take." Chief Judge Mikva found the majority's reliance on noscitur a sociis inappropriate in light of the statutory language and unnecessary in light of the strong support in the legislative history for the Secretary's interpretation. He did not find the 1982 "incidental take permit" amendment alone sufficient to vindicate the Secretary's definition of "harm," but he believed the amendment provided additional support for that definition because it reflected Congress' view in 1982 that the definition was reasonable. The Court of Appeals' decision created a square conflict with a decision of the Ninth Circuit that had upheld the Secretary's definition of "harm." See The Court of Appeals neither cited nor distinguished Palila II, despite the stark contrast between the Ninth Circuit's holding and its own. We granted certiorari to resolve the conflict. Our consideration of the text and structure of the Act, its legislative history, and the significance of the 1982 amendment persuades us that the Court of Appeals' judgment should be reversed. 696 II Because this case was decided on motions for summary judgment, we may appropriately make certain factual assumptions in order to frame the legal issue. First, we assume respondents have no desire to harm either the redcockaded woodpecker or the spotted owl; they merely wish to continue logging activities that would be entirely proper if not prohibited by the ESA. On the other hand, we must assume, arguendo, that those activities will have the effect, even though unintended, of detrimentally changing the natural habitat of both listed species and that, as a consequence, members of those species will be killed or injured. Under respondents' view of the law, the Secretary's only means of forestalling that grave resulteven when the actor knows it is certain to occur[9]is to use his 5 authority to purchase 697 the lands on which the survival of the species depends. The Secretary, on the other hand, submits that the 9 prohibition on takings, which Congress defined to include "harm," places on respondents a duty to avoid harm that habitat alteration will cause the birds unless respondents first obtain a permit pursuant to 10. The text of the Act provides three reasons for concluding that the Secretary's interpretation is reasonable. First, an ordinary understanding of the word "harm" supports it. The dictionary definition of the verb form of "harm" is "to cause hurt or damage to: injure." Webster's Third New International Dictionary 1034 (1966). In the context of the ESA, that definition naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species. Respondents argue that the Secretary should have limited the purview of "harm" to direct applications of force against protected species, but the dictionary definition does not include the word "directly" or suggest in any way that only direct or willful action that leads to injury constitutes "harm."[10] Moreover, unless the statutory term "harm" encompasses 698 indirect as well as direct injuries, the word has no meaning that does not duplicate the meaning of other words that 3 uses to define "take." A reluctance to treat statutory terms as surplusage supports the reasonableness of the Secretary's interpretation. See, e. g.,[11] Second, the broad purpose of the ESA supports the Secretary's decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid. In we described the Act as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Whereas predecessor statutes enacted in 1966 and 1969 had not contained any sweeping prohibition against the taking of endangered species except on federal lands, see the 1973 Act applied to all land in the United States and to the Nation's territorial seas. As stated in 2 of the Act, among its central purposes is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved" 16 U.S. C. 1531(b). 699 In Hill, we construed 7 as precluding the completion of the Tellico Dam because of its predicted impact on the survival of the snail darter. See Both our holding and the language in our opinion stressed the importance of the statutory policy. "The plain intent of Congress in enacting this statute," we recognized, "was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute." Although the 9 "take" prohibition was not at issue in Hill, we took note of that prohibition, placing particular emphasis on the Secretary's inclusion of habitat modification in his definition of "harm."[12] In light of that provision for habitat protection, we could "not understand how TVA intends to operate Tellico Dam without `harming' the snail darter." n. 30. Congress' intent to provide comprehensive protection for endangered and threatened species supports the permissibility of the Secretary's "harm" regulation. Respondents advance strong arguments that activities that cause minimal or unforeseeable harm will not violate the Act as construed in the "harm" regulation. Respondents, however, present a facial challenge to the regulation. Cf. ; Thus, they ask us to invalidate the Secretary's understanding of "harm" in every circumstance, even when an actor knows that an activity, such as draining a 700 pond, would actually result in the extinction of a listed species by destroying its habitat. Given Congress' clear expression of the ESA's broad purpose to protect endangered and threatened wildlife, the Secretary's definition of "harm" is reasonable.[13] Third, the fact that Congress in 1982 authorized the Secretary to issue permits for takings that 9(a)(1)(B) would otherwise prohibit, "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity," 16 U.S. C. 1539(a)(1)(B), strongly suggests that Congress understood 9(a)(1)(B) to prohibit indirect as well as deliberate takings. Cf. The permit process requires the applicant to prepare a "conservation plan" that specifies how he intends to "minimize and mitigate" the "impact" of his activity on endangered and threatened species, 16 U.S. C. 1539(a)(2)(A), making clear that Congress had in mind foreseeable rather than merely accidental effects on listed species.[14] No one could seriously request an "incidental" take 701 permit to avert 9 liability for direct, deliberate action against a member of an endangered or threatened species, but respondents would read "harm" so narrowly that the permit procedure would have little more than that absurd purpose. "When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect." Congress' addition of the 10 permit provision supports the Secretary's conclusion that activities not intended to harm an endangered species, such as habitat modification, may constitute unlawful takings under the ESA unless the Secretary permits them. The Court of Appeals made three errors in asserting that "harm" must refer to a direct application of force because the words around it do.[15] First, the court's premise was flawed. Several of the words that accompany "harm" in the 3 definition of "take," especially "harass," "pursue," "wound," and "kill," refer to actions or effects that do not require direct applications of force. Second, to the extent the court read a requirement of intent or purpose into the words used to define "take," it ignored 11's express provision that a "knowin[g]" 702 action is enough to violate the Act. Third, the court employed noscitur a sociis to give "harm" essentially the same function as other words in the definition, thereby denying it independent meaning. The canon, to the contrary, counsels that a word "gathers meaning from the words around it." The statutory context of "harm" suggests that Congress meant that term to serve a particular function in the ESA, consistent with, but distinct from, the functions of the other verbs used to define "take." The Secretary's interpretation of "harm" to include indirectly injuring endangered animals through habitat modification permissibly interprets "harm" to have "a character of its own not to be submerged by its association." Russell Motor Car[16] Nor does the Act's inclusion of the 5 land acquisition authority and the 7 directive to federal agencies to avoid destruction or adverse modification of critical habitat alter our conclusion. Respondents' argument that the Government lacks any incentive to purchase land under 5 when it can simply prohibit takings under 9 ignores the practical considerations that attend enforcement of the ESA. Purchasing habitat lands may well cost the Government less in many circumstances than pursuing civil or criminal penalties. In addition, the 5 procedure allows for protection of habitat before the seller's activity has harmed any endangered animal, 703 whereas the Government cannot enforce the 9 prohibition until an animal has actually been killed or injured. The Secretary may also find the 5 authority useful for preventing modification of land that is not yet but may in the future become habitat for an endangered or threatened species. The 7 directive applies only to the Federal Government, whereas the 9 prohibition applies to "any person." Section 7 imposes a broad, affirmative duty to avoid adverse habitat modifications that 9 does not replicate, and 7 does not limit its admonition to habitat modification that "actually kills or injures wildlife." Conversely, 7 contains limitations that 9 does not, applying only to actions "likely to jeopardize the continued existence of any endangered species or threatened species," 16 U.S. C. 1536(a)(2), and to modifications of habitat that has been designated "critical" pursuant to 4, 16 U.S. C. 1533(b)(2).[17] Any overlap that 5 or 7 may have with 9 in particular cases is unexceptional, see, e. g., and simply reflects the broad purpose of the Act set out in 2 and acknowledged in We need not decide whether the statutory definition of "take" compels the Secretary's interpretation of "harm," because our conclusions that Congress did not unambiguously manifest its intent to adopt respondents' view and that the Secretary's interpretation is reasonable suffice to decide this case. See generally U. S. A. The latitude the ESA gives the Secretary in enforcing the statute, together with the degree of regulatory expertise necessary to its enforcement, establishes that we owe some degree of deference to the Secretary's reasonable interpretation. See 704 Breyer, Judicial Review of Questions of Law and Policy,[18] III Our conclusion that the Secretary's definition of "harm" rests on a permissible construction of the ESA gains further support from the legislative history of the statute. The Committee Reports accompanying the bills that became the ESA do not specifically discuss the meaning of "harm," but they make clear that Congress intended "take" to apply broadly to cover indirect as well as purposeful actions. The Senate Report stressed that "`[t]ake' is defined in the broadest possible manner to include every conceivable way in which a person can `take' or attempt to `take' any fish or wildlife." S. Rep. No. 93-, p. 7 (1973). The House Report stated that "the broadest possible terms" were used to define restrictions on takings. H. R. Rep. No. 93-412, p. 15 (1973). The House Report underscored the breadth of the 705 "take" definition by noting that it included "harassment, whether intentional or not. " The Report explained that the definition "would allow, for example, the Secretary to regulate or prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young." These comments, ignored in the dissent's welcome but selective foray into legislative history, see post, at 726-729, support the Secretary's interpretation that the term "take" in 9 reached far more than the deliberate actions of hunters and trappers. Two endangered species bills, S. 1592 and S. 1983, were introduced in the Senate and referred to the Commerce Committee. Neither bill included the word "harm" in its definition of "take," although the definitions otherwise closely resembled the one that appeared in the bill as ultimately enacted. See Hearings on S. 1592 and S. 1983 before the Subcommittee on Environment of the Senate Committee on Commerce, 93d Cong., 1st Sess., pp. 7, 27 (1973) (hereinafter Hearings). Senator Tunney, the floor manager of the bill in the Senate, subsequently introduced a floor amendment that added "harm" to the definition, noting that this and accompanying amendments would "help to achieve the purposes of the bill." 119 Cong. Rec. 25683 (1973). Respondents argue that the lack of debate about the amendment that added "harm" counsels in favor of a narrow interpretation. We disagree. An obviously broad word that the Senate went out of its way to add to an important statutory definition is precisely the sort of provision that deserves a respectful reading. The definition of "take" that originally appeared in S. 1983 differed from the definition as ultimately enacted in one other significant respect: It included "the destruction, modification, or curtailment of [the] habitat or range" of fish and wildlife. Hearings, at 27. Respondents make much of the fact that the Commerce Committee removed this phrase 706 from the "take" definition before S. 1983 went to the floor. See 119 Cong. Rec. 25663 (1973). We do not find that fact especially significant. The legislative materials contain no indication why the habitat protection provision was deleted. That provision differed greatly from the regulation at issue today. Most notably, the habitat protection provision in S. 1983 would have applied far more broadly than the regulation does because it made adverse habitat modification a categorical violation of the "take" prohibition, unbounded by the regulation's limitation to habitat modifications that actually kill or injure wildlife. The S. 1983 language also failed to qualify "modification" with the regulation's limiting adjective "significant." We do not believe the Senate's unelaborated disavowal of the provision in S. 1983 undermines the reasonableness of the more moderate habitat protection in the Secretary's "harm" regulation.[19] 707 The history of the 1982 amendment that gave the Secretary authority to grant permits for "incidental" takings provides further support for his reading of the Act. The House Report expressly states that "[b]y use of the word `incidental' the Committee intends to cover situations in which it is known that a taking will occur if the other activity is engaged in but such taking is incidental to, and not the purpose of, the activity." H. R. Rep. No. 97-567, p. 31 (1982). This reference to the foreseeability of incidental takings undermines respondents' argument that the 1982 amendment covered only accidental killings of endangered and threatened animals that might occur in the course of hunting or trapping other animals. Indeed, Congress had habitat modification directly in mind: Both the Senate Report and the House Conference Report identified as the model for the permit process a cooperative state-federal response to a case in California where a development project threatened incidental harm to a species of endangered butterfly by modification of its habitat. See S. Rep. No. 97-418, p. 10 (1982); H. R. Conf. Rep. No. 97-835, pp. 30-32 (1982). Thus, Congress in 1982 focused squarely on the aspect of the "harm" regulation at issue in this litigation. Congress' implementation of a permit program *708 is consistent with the Secretary's interpretation of the term "harm." IV When it enacted the ESA, Congress delegated broad administrative and interpretive power to the Secretary. See 16 U.S. C. 1533, 1540(f). The task of defining and listing endangered and threatened species requires an expertise and attention to detail that exceeds the normal province of Congress. Fashioning appropriate standards for issuing permits under 10 for takings that would otherwise violate 9 necessarily requires the exercise of broad discretion. The proper interpretation of a term such as "harm" involves a complex policy choice. When Congress has entrusted the Secretary with broad discretion, we are especially reluctant to substitute our views of wise policy for his. See -866. In this case, that reluctance accords with our conclusion, based on the text, structure, and legislative history of the ESA, that the Secretary reasonably construed the intent of Congress when he defined "harm" to include "significant habitat modification or degradation that actually kills or injures wildlife." In the elaboration and enforcement of the ESA, the Secretary and all persons who must comply with the law will confront difficult questions of proximity and degree; for, as all recognize, the Act encompasses a vast range of economic and social enterprises and endeavors. These questions must be addressed in the usual course of the law, through case-bycase resolution and adjudication. The judgment of the Court of Appeals is reversed. It is so ordered.
Justice Powell	majority	false	Trans World Airlines, Inc. v. Thurston	1985-01-08T00:00:00	null	https://www.courtlistener.com/opinion/111290/trans-world-airlines-inc-v-thurston/	https://www.courtlistener.com/api/rest/v3/clusters/111290/	1,985	1984-011	2	9	0	Trans World Airlines, Inc. (TWA), a commercial airline, permits captains disqualified from serving in that capacity for reasons other than age to transfer automatically to the position of flight engineer. In this case, we must decide whether the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S. C. § 621 et seq., requires the airline to afford this same "privilege of employment" to those captains disqualified by their age. We also must decide what constitutes a "willful" violation of the ADEA, entitling a plaintiff to "liquidated" or double damages. I A TWA has approximately 3,000 employees who fill the three cockpit positions on most of its flights.[1] The "captain" is the pilot and controls the aircraft. He is responsible for all phases of its operation. The "first officer" is the copilot and assists the captain. The "flight engineer" usually monitors a side-facing instrument panel. He does not operate the flight controls unless the captain and the first officer become incapacitated. In 1977, TWA and the Airline Pilots Association (ALPA) entered into a collective-bargaining agreement, under which every employee in a cockpit position was required to retire when he reached the age of 60. This provision for mandatory retirement was lawful under the ADEA, as part of a "bona fide seniority system." See United Air Lines, Inc. v. McMann, 434 U.S. 192 (1977). On April 6, 1978, however, the Act was amended to prohibit the mandatory retirement of a protected individual because of his age.[2] TWA officials 115 became concerned that the company's retirement policy, at least as it applied to flight engineers, violated the amended ADEA.[3] On July 19, 1978, TWA announced that the amended ADEA prohibited the forced retirement of flight engineers at age 60. The company thus proposed a new policy, under which employees in all three cockpit positions, upon reaching age 60, would be allowed to continue working as flight engineers. TWA stated that it would not implement its new policy until it "had the benefit of [ALPA's] views."[4] ALPA's views were not long in coming. The Union contended that the collective-bargaining agreement prohibited the employment of a flight engineer after his 60th birthday and that the proposed change was not required by the recently amended ADEA. Despite opposition from the Union, TWA adopted a modified version of its proposal.[5] Under this plan, any employee in "flight engineer status" at age 60 is entitled to continue 116 working in that capacity. The new plan, unlike the initial proposal, does not give 60-year-old captains[6] the right automatically to begin training as flight engineers. Instead, a captain may remain with the airline only if he has been able to obtain "flight engineer status" through the bidding procedures outlined in the collective-bargaining agreement. These procedures require a captain, prior to his 60th birthday, to submit a "standing bid" for the position of flight engineer. When a vacancy occurs, it is assigned to the most senior captain with a standing bid. If no vacancy occurs prior to his 60th birthday, or if he lacks sufficient seniority to bid successfully for those vacancies that do occur, the captain is retired.[7] Under the collective-bargaining agreement, a captain displaced for any reason besides age need not resort to the bidding procedures. For example, a captain unable to maintain the requisite first-class medical certificate, see 14 CFR § 67.13 (1984), may displace automatically, or "bump," a less senior flight engineer.[8] The medically disabled captain's ability to bump does not depend upon the availability of a vacancy.[9] Similarly, a captain whose position is eliminated due to reduced manpower needs can "bump" a less senior 117 flight engineer.[10] Even if a captain is found to be incompetent to serve in that capacity, he is not discharged,[11] but is allowed to transfer to a position as flight engineer without resort to the bidding procedures.[12] Respondents Harold Thurston, Christopher J. Clark, and Clifton A. Parkhill, former captains for TWA, were retired upon reaching the age of 60. Each was denied an opportunity to "bump" a less senior flight engineer. Thurston was forced to retire on May 26, 1978, before the company adopted its new policy. Clark did not attempt to bid because TWA had advised him that bidding would not affect his chances of obtaining a transfer. These two captains thus effectively were denied an opportunity to become flight engineers through the bidding procedures. The third captain, Parkhill, did file a standing bid for the position of flight engineer. No vacancies occurred prior to Parkhill's 60th birthday, however, and he too was forced to retire. B Thurston, Clark, and Parkhill filed this action against TWA and ALPA in the United States District Court for the Southern District of New York. They argued that the company's transfer policy violated ADEA § 4(a)(1), 81 Stat. 603, 118 29 U.S. C. § 623(a)(1). The airline allowed captains displaced for reasons other than age to "bump" less senior flight engineers. Captains compelled to vacate their positions upon reaching age 60, they claimed, should be afforded this same "privilege of employment." The Equal Employment Opportunity Commission intervened on behalf of 10 other age-disqualified captains who had been discharged as a result of their inability to displace less senior flight engineers.[13] The District Court entered a summary judgment in favor of defendants TWA and ALPA. Air Line Pilots Assn. v. Trans World Air Lines, 547 F. Supp. 1221 (1982). The court held that the plaintiffs had failed to establish a prima facie case of age discrimination under the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). None could show that at the time of his transfer request a vacancy existed for the position of flight engineer. See id., at 802. Furthermore, the court found that two affirmative defenses justified the company's transfer policy. 29 U.S. C. §§ 623(f)(1) and (f)(2). The United States Court of Appeals for the Second Circuit reversed the District Court's judgment. 713 F.2d 940 (1983). It found the McDonnell Douglas formula inapposite because the plaintiffs had adduced direct proof of age discrimination. Captains 119 disqualified for reasons other than age were allowed to "bump" less senior flight engineers. Therefore, the company was required by ADEA § 4(a)(1), 29 U.S. C. § 623(a)(1), to afford 60-year-old captains this same "privilege of employment." The Court of Appeals also held that the affirmative defenses of the ADEA did not justify the company's discriminatory transfer policy.[14] 713 F. 2d, at 949-951. TWA was held liable for "liquidated" or double damages because its violation of the ADEA was found to be "willful." According to the court, an employer's conduct is "willful" if it "knows or shows reckless disregard for the matter of whether its conduct is prohibited by the ADEA." Id., at 956. Because "TWA was clearly aware of the 1978 ADEA amendments," the Court of Appeals found the respondents entitled to double damages. Id., at 956-957. 120 TWA filed a petition for a writ of certiorari in which it challenged the Court of Appeals' holding that the transfer policy violated the ADEA and that TWA's violation was "willful." The Union filed a cross-petition raising only the liability issue. We granted certiorari in both cases, and consolidated them for argument. 466 U.S. 926 (1984). We now affirm as to the violation of the ADEA, and reverse as to the claim for double damages. II A The ADEA "broadly prohibits arbitrary discrimination in the workplace based on age." Lorillard v. Pons, 434 U.S. 575, 577 (1978). Section 4(a)(1) of the Act proscribes differential treatment of older workers "with respect to . . . [a] privileg[e] of employment." 29 U.S. C. § 623(a). Under TWA's transfer policy, 60-year-old captains are denied a "privilege of employment" on the basis of age. Captains who become disqualified from serving in that position for reasons other than age automatically are able to displace less senior flight engineers. Captains disqualified because of age are not afforded this same "bumping" privilege. Instead, they are forced to resort to the bidding procedures set forth in the collective-bargaining agreement. If there is no vacancy prior to a bidding captain's 60th birthday, he must retire.[15] The Act does not require TWA to grant transfer privileges to disqualified captains. Nevertheless, if TWA does grant 121 some disqualified captains the "privilege" of "bumping" less senior flight engineers, it may not deny this opportunity to others because of their age. In Hishon v. King & Spalding, 467 U.S. 69 (1984), we held that "[a] benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free. . . not to provide the benefit at all." Id., at 75. This interpretation of Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000(e) et seq., applies with equal force in the context of age discrimination, for the substantive provisions of the ADEA "were derived in haec verba from Title VII." Lorillard v. Pons, supra, at 584.[16] TWA contends that the respondents failed to make out a prima facie case of age discrimination under McDonnell Douglas v. Green, 411 U.S. 792 (1973), because at the time they were retired, no flight engineer vacancies existed. This argument fails, for the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination. See Teamsters v. United States, 431 U.S. 324, 358, n. 44 (1977). The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the "plaintiff [has] his day in court despite the unavailability of direct evidence." Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (CA1 1979). In this case there is direct evidence that the method of transfer available to a disqualified captain depends upon his age. Since it allows captains who become disqualified for any reason other than age to "bump" less senior flight engineers, TWA's transfer policy is discriminatory on its face. Cf. Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702 (1978) (employer's policy requiring 122 female employees to make larger contribution to pension fund than male employees is discriminatory on its face). B Although we find that TWA's transfer policy discriminates against disqualified captains on the basis of age, our inquiry cannot end here. Petitioners contend that the age-based transfer policy is justified by two of the ADEA's five affirmative defenses. Petitioners first argue that the discharge of respondents was lawful because age is a "bona fide occupational qualification" (BFOQ) for the position of captain. 29 U.S. C. § 623(f)(1). Furthermore, TWA claims that its retirement policy is part of a "bona fide seniority system," and thus exempt from the Act's coverage. 29 U.S. C. § 623(f)(2). Section 4(f)(1) of the ADEA provides that an employer may take "any action otherwise prohibited" where age is a "bona fide occupational qualification." 29 U.S. C. § 623(f)(1). In order to be permissible under § 4(f)(1), however, the age-based discrimination must relate to a "particular business." Ibid. Every court to consider the issue has assumed that the "particular business" to which the statute refers is the job from which the protected individual is excluded. In Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228 (CA5 1969), for example, the court considered the Title VII claim of a female employee who, because of her sex, had not been allowed to transfer to the position of switchman. In deciding that the BFOQ defense was not available to the defendant, the court considered only the job of switchman. TWA's discriminatory transfer policy is not permissible under § 4(f)(1) because age is not a BFOQ for the "particular" position of flight engineer. It is necessary to recognize that the airline has two age-based policies: (i) captains are not allowed to serve in that capacity after reaching the age of 60; and (ii) age-disqualified captains are not given the transfer privileges afforded captains disqualified for other reasons. 123 The first policy, which precludes individuals from serving as captains, is not challenged by respondents.[17] The second practice does not operate to exclude protected individuals from the position of captain; rather it prevents qualified 60-year-olds from working as flight engineers. Thus, it is the "particular" job of flight engineer from which the respondents were excluded by the discriminatory transfer policy. Because age under 60 is not a BFOQ for the position of flight engineer,[18] the age-based discrimination at issue in this case cannot be justified by § 4(f)(1). TWA nevertheless contends that its BFOQ argument is supported by the legislative history of the amendments to the ADEA. In 1978, Congress amended ADEA § 4(f)(2), 29 U.S. C. § 623(f)(2), to prohibit the involuntary retirement of protected individuals on the basis of age. Some Members of Congress were concerned that this amendment might be construed as limiting the employer's ability to terminate workers subject to a valid BFOQ. The Senate proposed an amendment to § 4(f)(1) providing that an employer could establish a mandatory retirement age where age is a BFOQ. S. Rep. No. 95-493, pp. 11, 24 (1977). In the Conference Committee, however, the proposed amendment was withdrawn because "the [Senate] conferees agreed that . . . [it] neither added to nor worked any change upon present law." H. R. Conf. Rep. No. 95-950, p. 7 (1978). The House Committee Report also indicated that an individual could be compelled to retire from a position for which age was a BFOQ. H. R. Rep. No. 95-527, pt. 1, p. 12 (1977). 124 The legislative history of the 1978 Amendments does not support petitioners' position. The history shows only that the ADEA does not prohibit TWA from retiring all disqualified captains, including those who are incapacitated because of age. This does not mean, however, that TWA can make dependent upon the age of the individual the availability of a transfer to a position for which age is not a BFOQ. Nothing in the legislative history cited by petitioners indicates a congressional intention to allow an employer to discriminate against an older worker seeking to transfer to another position, on the ground that age was a BFOQ for his former job. TWA also contends that its discriminatory transfer policy is lawful under the Act because it is part of a "bona fide seniority system." 29 U.S. C. § 623(f)(2). The Court of Appeals held that the airline's retirement policy is not mandated by the negotiated seniority plan. We need not address this finding; any seniority system that includes the challenged practice is not "bona fide" under the statute. The Act provides that a seniority system may not "require or permit" the involuntary retirement of a protected individual because of his age. Ibid. Although the FAA "age 60 rule" may have caused respondents' retirement, TWA's seniority plan certainly "permitted" it within the meaning of the ADEA. Ibid. Moreover, because captains disqualified for reasons other than age are allowed to "bump" less senior flight engineers, the mandatory retirement was age-based. Therefore, the "bona fide seniority system" defense is unavailable to the petitioners. In summary, TWA's transfer policy discriminates against protected individuals on the basis of age, and thereby violates the Act. The two statutory defenses raised by petitioners do not support the argument that this discrimination is justified. The BFOQ defense is meritless because age is not a bona fide occupational qualification for the position of flight engineer, the job from which the respondents were excluded. Nor can TWA's policy be viewed as part of a bona 125 fide seniority system. A system that includes this discriminatory transfer policy permits the forced retirement of captains on the basis of age. III A Section 7(b) of the ADEA, 81 Stat. 604, 29 U.S. C. § 626(b), provides that the rights created by the Act are to be "enforced in accordance with the powers, remedies, and procedures" of the Fair Labor Standards Act. See Lorillard v. Pons, 434 U. S., at 579. But the remedial provisions of the two statutes are not identical. Congress declined to incorporate into the ADEA several FLSA sections. Moreover, § 16(b) of the FLSA, which makes the award of liquidated damages mandatory, is significantly qualified in ADEA § 7(b) by a proviso that a prevailing plaintiff is entitled to double damages "only in cases of willful violations." 29 U.S. C. § 626(b). In this case, the Court of Appeals held that TWA's violation of the ADEA was "willful," and that the respondents therefore were entitled to double damages. 713 F.2d, at 957. We granted certiorari to review this holding. The legislative history of the ADEA indicates that Congress intended for liquidated damages to be punitive in nature. The original bill proposed by the administration incorporated § 16(a) of the FLSA, which imposes criminal liability for a willful violation. See 113 Cong. Rec. 2199 (1967). Senator Javits found "certain serious defects" in the administration bill. He stated that "difficult problems of proof . . . would arise under a criminal provision," and that the employer's invocation of the Fifth Amendment might impede investigation, conciliation, and enforcement. Id., at 7076. Therefore, he proposed that "the [FLSA's] criminal penalty in cases of willful violation . . . [be] eliminated and a double damage liability substituted." Ibid. Senator Javits argued that his proposed amendment would "furnish an effective deterrent to willful violations [of the ADEA]," ibid., 126 and it was incorporated into the ADEA with only minor modification, S. 788, 90th Cong., 1st Sess. (1967). This Court has recognized that in enacting the ADEA, "Congress exhibited . . . a detailed knowledge of the FLSA provisions and their judicial interpretation . . . ." Lorillard v. Pons, supra, at 581. The manner in which FLSA § 16(a) has been interpreted therefore is relevant. In general, courts have found that an employer is subject to criminal penalties under the FLSA when he "wholly disregards the law . . . without making any reasonable effort to determine whether the plan he is following would constitute a violation of the law." Nabob Oil Co. v. United States, 190 F.2d 478, 479 (CA10), cert. denied, 342 U.S. 876 (1951); see also Darby v. United States, 132 F.2d 928 (CA5 1943).[19] This standard is substantially in accord with the interpretation of "willful" adopted by the Court of Appeals in interpreting the liquidated damages provision of the ADEA. The court below stated that a violation of the Act was "willful" if "the employer. . . knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." 713 F.2d, at 956. Given the legislative history of the liquidated damages provision, we think the "reckless disregard" standard is reasonable. The definition of "willful" adopted by the above cited courts is consistent with the manner in which this Court has interpreted the term in other criminal and civil statutes. In United States v. Murdock, 290 U.S. 389 (1933), the defendant was prosecuted under the Revenue Acts of 1926 and 1928, which made it a misdemeanor for a person "willfully" to 127 fail to pay the required tax. The Murdock Court stated that conduct was "willful" within the meaning of this criminal statute if it was "marked by careless disregard [for] whether or not one has the right so to act." Id., at 395. In United States v. Illinois Central R. Co., 303 U.S. 239 (1938), the Court applied the Murdock definition of "willful" in a civil case. There, the defendant's failure to unload a cattle car was "willful," because it showed a disregard for the governing statute and an indifference to its requirements. 303 U.S., at 242-243.[20] The respondents argue that an employer's conduct is willful if he is "cognizant of an appreciable possibility that the employees involved were covered by the [ADEA]." In support of their position, the respondents cite § 6 of the Portal-to-Portal Act of 1947 (PPA), 29 U.S. C. § 255(a), which is incorporated in both the ADEA and the FLSA. Section 6 of the PPA provides for a 2-year statute of limitations period unless the violation is willful, in which case the limitations period is extended to three years. 29 U.S. C. § 255(a). Several courts have held that a violation is willful within the meaning of § 6 if the employer knew that the ADEA was "in the picture." See, e. g., Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139, 1142 (CA5 1971), cert. denied, 409 U.S. 948 (1972); EEOC v. Central Kansas Medical Center, 705 F.2d 1270, 1274 (CA10 1983). Respondents contend that the term "willful" should be interpreted in a similar manner in applying the liquidated damages provision of the ADEA. We are unpersuaded by respondents' argument that a violation of the Act is "willful" if the employer simply knew of the potential applicability of the ADEA. Even if the "in 128 the picture" standard were appropriate for the statute of limitations, the same standard should not govern a provision dealing with liquidated damages.[21] More importantly, the broad standard proposed by the respondents would result in an award of double damages in almost every case. As employers are required to post ADEA notices, it would be virtually impossible for an employer to show that he was unaware of the Act and its potential applicability. Both the legislative history and the structure of the statute show that Congress intended a two-tiered liability scheme. We decline to interpret the liquidated damages provision of ADEA § 7(b) in a manner that frustrates this intent.[22] B As noted above, the Court of Appeals stated that a violation is "willful" if "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." 713 F.2d, at 956. Although we 129 hold that this is an acceptable way to articulate a definition of "willful," the court below misapplied this standard. TWA certainly did not "know" that its conduct violated the Act. Nor can it fairly be said that TWA adopted its transfer policy in "reckless disregard" of the Act's requirements. The record makes clear that TWA officials acted reasonably and in good faith in attempting to determine whether their plan would violate the ADEA. See Nabob Oil Co. v. United States, supra. Shortly after the ADEA was amended, TWA officials met with their lawyers to determine whether the mandatory retirement policy violated the Act. Concluding that the company's existing plan was inconsistent with the ADEA, David Crombie, the airline's Senior Vice President for Administration, proposed a new policy. Despite opposition from the Union, the company adopted a modified version of this initial proposal. Under the plan adopted on August 10, 1978, any pilot in "flight engineer status" on his 60th birthday could continue to work for the airline. On the day the plan was adopted, the Union filed suit against the airline claiming that the new retirement policy constituted a "major" change in the collective-bargaining agreement, and thus was barred by § 6 of the Railway Labor Act, 45 U.S. C. § 156. Nevertheless, TWA adhered to its new policy. As evidence of "willfulness," respondents point to comments made by J. E. Frankum, the Vice President of Flight Operations. After Crombie was hospitalized in August 1978, Frankum assumed responsibility for bringing TWA's retirement policy into conformance with the ADEA. Despite legal advice to the contrary, Frankum initially believed that the company was not required to allow any pilot over 60 to work. Frankum later abandoned this position in favor of the plan approved on August 10, 1978. Frankum apparently had been concerned only about whether flight engineers could work after reaching the age of 60. There is no indication that TWA was ever advised by counsel that its new transfer policy discriminated against captains on the basis of age. 130 There simply is no evidence that TWA acted in "reckless disregard" of the requirements of the ADEA. The airline had obligations under the collective-bargaining agreement with the Airline Pilots Association. In an attempt to bring its retirement policy into compliance with the ADEA, while at the same time observing the terms of the collective-bargaining agreement, TWA sought legal advice and consulted with the Union. Despite opposition from the Union, a plan was adopted that permitted cockpit employees to work as "flight engineers" after reaching age 60. Apparently TWA officials and the airline's attorneys failed to focus specifically on the effect of each aspect of the new retirement policy for cockpit personnel. It is reasonable to believe that the parties involved, in focusing on the larger overall problem, simply overlooked the challenged aspect of the new plan.[23] We conclude that TWA's violation of the Act was not willful within the meaning of § 7(b), and that respondents therefore are not entitled to liquidated damages. IV The ADEA requires TWA to afford 60-year-old captains the same transfer privileges that it gives to captains disqualified for reasons other than age. Therefore, we affirm the Court of Appeals on this issue. We do not agree with its holding that TWA's violation of the Act was willful. We accordingly reverse its judgment that respondents are entitled to liquidated or double damages. It is so ordered.	Trans World Airlines, Inc. (TWA), a commercial airline, permits captains disqualified from serving in that capacity for reasons other than age to transfer automatically to the position of flight engineer. In this case, we must decide whether the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S. C. 621 et seq., requires the airline to afford this same "privilege of employment" to those captains disqualified by their age. We also must decide what constitutes a "willful" violation of the ADEA, entitling a plaintiff to "liquidated" or double I A TWA has approximately 3,000 employees who fill the three cockpit positions on most of its flights.[1] The "captain" is the pilot and controls the aircraft. He is responsible for all phases of its operation. The "first officer" is the copilot and assists the captain. The "flight engineer" usually monitors a side-facing instrument panel. He does not operate the flight controls unless the captain and the first officer become incapacitated. In 1977, TWA and the Airline Pilots Association (ALPA) entered into a collective-bargaining agreement, under which every employee in a cockpit position was required to retire when he reached the age of 60. This provision for mandatory retirement was lawful under the ADEA, as part of a "bona fide seniority system." See United Air Lines, On April 6, 1978, however, the Act was amended to prohibit the mandatory retirement of a protected individual because of his age.[2] TWA officials 115 became concerned that the company's retirement policy, at least as it applied to flight engineers, violated the amended ADEA.[3] On July 19, 1978, TWA announced that the amended ADEA prohibited the forced retirement of flight engineers at age 60. The company thus proposed a new policy, under which employees in all three cockpit positions, upon reaching age 60, would be allowed to continue working as flight engineers. TWA stated that it would not implement its new policy until it "had the benefit of [ALPA's] views."[4] ALPA's views were not long in coming. The Union contended that the collective-bargaining agreement prohibited the employment of a flight engineer after his 60th birthday and that the proposed change was not required by the recently amended ADEA. Despite opposition from the Union, TWA adopted a modified version of its proposal.[5] Under this plan, any employee in "flight engineer status" at age 60 is entitled to continue 116 working in that capacity. The new plan, unlike the initial proposal, does not give 60-year-old captains[6] the right automatically to begin training as flight engineers. Instead, a captain may remain with the airline only if he has been able to obtain "flight engineer status" through the bidding procedures outlined in the collective-bargaining agreement. These procedures require a captain, prior to his 60th birthday, to submit a "standing bid" for the position of flight engineer. When a vacancy occurs, it is assigned to the most senior captain with a standing bid. If no vacancy occurs prior to his 60th birthday, or if he lacks sufficient seniority to bid successfully for those vacancies that do occur, the captain is retired.[7] Under the collective-bargaining agreement, a captain displaced for any reason besides age need not resort to the bidding procedures. For example, a captain unable to maintain the requisite first-class medical certificate, see 14 CFR 67.13 may displace automatically, or "bump," a less senior flight engineer.[8] The medically disabled captain's ability to bump does not depend upon the availability of a vacancy.[9] Similarly, a captain whose position is eliminated due to reduced manpower needs can "bump" a less senior 117 flight engineer.[10] Even if a captain is found to be incompetent to serve in that capacity, he is not discharged,[11] but is allowed to transfer to a position as flight engineer without resort to the bidding procedures.[12] Respondents Harold Thurston, Christopher J. Clark, and Clifton A. Parkhill, former captains for TWA, were retired upon reaching the age of 60. Each was denied an opportunity to "bump" a less senior flight engineer. Thurston was forced to retire on May 26, 1978, before the company adopted its new policy. Clark did not attempt to bid because TWA had advised him that bidding would not affect his chances of obtaining a transfer. These two captains thus effectively were denied an opportunity to become flight engineers through the bidding procedures. The third captain, Parkhill, did file a standing bid for the position of flight engineer. No vacancies occurred prior to Parkhill's 60th birthday, however, and he too was forced to retire. B Thurston, Clark, and Parkhill filed this action against TWA and ALPA in the United District Court for the Southern District of New York. They argued that the company's transfer policy violated ADEA 4(a)(1), 118 29 U.S. C. 623(a)(1). The airline allowed captains displaced for reasons other than age to "bump" less senior flight engineers. Captains compelled to vacate their positions upon reaching age 60, they claimed, should be afforded this same "privilege of employment." The Equal Employment Opportunity Commission intervened on behalf of 10 other age-disqualified captains who had been discharged as a result of their inability to displace less senior flight engineers.[13] The District Court entered a summary judgment in favor of defendants TWA and ALPA. Air Line Pilots The court held that the plaintiffs had failed to establish a prima facie case of age discrimination under the test set forth in McDonnell Douglas None could show that at the time of his transfer request a vacancy existed for the position of flight engineer. See Furthermore, the court found that two affirmative defenses justified the company's transfer policy. 29 U.S. C. 623(f)(1) and (f)(2). The United Court of Appeals for the Second Circuit reversed the District Court's judgment. It found the McDonnell Douglas formula inapposite because the plaintiffs had adduced direct proof of age discrimination. Captains 119 disqualified for reasons other than age were allowed to "bump" less senior flight engineers. Therefore, the company was required by ADEA 4(a)(1), 29 U.S. C. 623(a)(1), to afford 60-year-old captains this same "privilege of employment." The Court of Appeals also held that the affirmative defenses of the ADEA did not justify the company's discriminatory transfer policy.[14] 713 F. 2d, at 949-951. TWA was held liable for "liquidated" or double damages because its violation of the ADEA was found to be "willful." According to the court, an employer's conduct is "willful" if it "knows or shows reckless disregard for the matter of whether its conduct is prohibited by the ADEA." Because "TWA was clearly aware of the 1978 ADEA amendments," the Court of Appeals found the respondents entitled to double -957. 120 TWA filed a petition for a writ of certiorari in which it challenged the Court of Appeals' holding that the transfer policy violated the ADEA and that TWA's violation was "willful." The Union filed a cross-petition raising only the liability issue. We granted certiorari in both cases, and consolidated them for argument. We now affirm as to the violation of the ADEA, and reverse as to the claim for double II A The ADEA "broadly prohibits arbitrary discrimination in the workplace based on age." Section 4(a)(1) of the Act proscribes differential treatment of older workers "with respect to [a] privileg[e] of employment." 29 U.S. C. 623(a). Under TWA's transfer policy, 60-year-old captains are denied a "privilege of employment" on the basis of age. Captains who become disqualified from serving in that position for reasons other than age automatically are able to displace less senior flight engineers. Captains disqualified because of age are not afforded this same "bumping" privilege. Instead, they are forced to resort to the bidding procedures set forth in the collective-bargaining agreement. If there is no vacancy prior to a bidding captain's 60th birthday, he must retire.[15] The Act does not require TWA to grant transfer privileges to disqualified captains. Nevertheless, if TWA does grant 121 some disqualified captains the "privilege" of "bumping" less senior flight engineers, it may not deny this opportunity to others because of their age. In we held that "[a] benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free. not to provide the benefit at all." This interpretation of Title VII of the Civil Rights Act of 1964, 42 U.S. C. 2000(e) et seq., applies with equal force in the context of age discrimination, for the substantive provisions of the ADEA "were derived in haec verba from Title VII."[16] TWA contends that the respondents failed to make out a prima facie case of age discrimination under McDonnell because at the time they were retired, no flight engineer vacancies existed. This argument fails, for the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination. See The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the "plaintiff [has] his day in court despite the unavailability of direct evidence." In this case there is direct evidence that the method of transfer available to a disqualified captain depends upon his age. Since it allows captains who become disqualified for any reason other than age to "bump" less senior flight engineers, TWA's transfer policy is discriminatory on its face. Cf. Los Angeles Dept. of Water & B Although we find that TWA's transfer policy discriminates against disqualified captains on the basis of age, our inquiry cannot end here. Petitioners contend that the age-based transfer policy is justified by two of the ADEA's five affirmative defenses. Petitioners first argue that the discharge of respondents was lawful because age is a "bona fide occupational qualification" (BFOQ) for the position of captain. 29 U.S. C. 623(f)(1). Furthermore, TWA claims that its retirement policy is part of a "bona fide seniority system," and thus exempt from the Act's coverage. 29 U.S. C. 623(f)(2). Section 4(f)(1) of the ADEA provides that an employer may take "any action otherwise prohibited" where age is a "bona fide occupational qualification." 29 U.S. C. 623(f)(1). In order to be permissible under 4(f)(1), however, the age-based discrimination must relate to a "particular business." Every court to consider the issue has assumed that the "particular business" to which the statute refers is the job from which the protected individual is excluded. In for example, the court considered the Title VII claim of a female employee who, because of her sex, had not been allowed to transfer to the position of switchman. In deciding that the BFOQ defense was not available to the defendant, the court considered only the job of switchman. TWA's discriminatory transfer policy is not permissible under 4(f)(1) because age is not a BFOQ for the "particular" position of flight engineer. It is necessary to recognize that the airline has two age-based policies: (i) captains are not allowed to serve in that capacity after reaching the age of 60; and (ii) age-disqualified captains are not given the transfer privileges afforded captains disqualified for other reasons. 123 The first policy, which precludes individuals from serving as captains, is not challenged by respondents.[17] The second practice does not operate to exclude protected individuals from the position of captain; rather it prevents qualified 60-year-olds from working as flight engineers. Thus, it is the "particular" job of flight engineer from which the respondents were excluded by the discriminatory transfer policy. Because age under 60 is not a BFOQ for the position of flight engineer,[18] the age-based discrimination at issue in this case cannot be justified by 4(f)(1). TWA nevertheless contends that its BFOQ argument is supported by the legislative history of the amendments to the ADEA. In 1978, Congress amended ADEA 4(f)(2), 29 U.S. C. 623(f)(2), to prohibit the involuntary retirement of protected individuals on the basis of age. Some Members of Congress were concerned that this amendment might be construed as limiting the employer's ability to terminate workers subject to a valid BFOQ. The Senate proposed an amendment to 4(f)(1) providing that an employer could establish a mandatory retirement age where age is a BFOQ. S. Rep. No. 95-493, pp. 11, 24 In the Conference Committee, however, the proposed amendment was withdrawn because "the [Senate] conferees agreed that [it] neither added to nor worked any change upon present law." H. R. Conf. Rep. No. 95-950, p. 7 The House Committee Report also indicated that an individual could be compelled to retire from a position for which age was a BFOQ. H. R. Rep. No. 95-527, pt. 1, p. 12 124 The legislative history of the 1978 Amendments does not support petitioners' position. The history shows only that the ADEA does not prohibit TWA from retiring all disqualified captains, including those who are incapacitated because of age. This does not mean, however, that TWA can make dependent upon the age of the individual the availability of a transfer to a position for which age is not a BFOQ. Nothing in the legislative history cited by petitioners indicates a congressional intention to allow an employer to discriminate against an older worker seeking to transfer to another position, on the ground that age was a BFOQ for his former job. TWA also contends that its discriminatory transfer policy is lawful under the Act because it is part of a "bona fide seniority system." 29 U.S. C. 623(f)(2). The Court of Appeals held that the airline's retirement policy is not mandated by the negotiated seniority plan. We need not address this finding; any seniority system that includes the challenged practice is not "bona fide" under the statute. The Act provides that a seniority system may not "require or permit" the involuntary retirement of a protected individual because of his age. Although the FAA "age 60 rule" may have caused respondents' retirement, TWA's seniority plan certainly "permitted" it within the meaning of the ADEA. Moreover, because captains disqualified for reasons other than age are allowed to "bump" less senior flight engineers, the mandatory retirement was age-based. Therefore, the "bona fide seniority system" defense is unavailable to the petitioners. In summary, TWA's transfer policy discriminates against protected individuals on the basis of age, and thereby violates the Act. The two statutory defenses raised by petitioners do not support the argument that this discrimination is justified. The BFOQ defense is meritless because age is not a bona fide occupational qualification for the position of flight engineer, the job from which the respondents were excluded. Nor can TWA's policy be viewed as part of a bona 125 fide seniority system. A system that includes this discriminatory transfer policy permits the forced retirement of captains on the basis of age. III A Section 7(b) of the ADEA, 29 U.S. C. 626(b), provides that the rights created by the Act are to be "enforced in accordance with the powers, remedies, and procedures" of the Fair Labor Standards Act. See But the remedial provisions of the two statutes are not identical. Congress declined to incorporate into the ADEA several FLSA sections. Moreover, 16(b) of the FLSA, which makes the award of liquidated damages mandatory, is significantly qualified in ADEA 7(b) by a proviso that a prevailing plaintiff is entitled to double damages "only in cases of willful violations." 29 U.S. C. 626(b). In this case, the Court of Appeals held that TWA's violation of the ADEA was "willful," and that the respondents therefore were entitled to double We granted certiorari to review this holding. The legislative history of the ADEA indicates that Congress intended for liquidated damages to be punitive in nature. The original bill proposed by the administration incorporated 16(a) of the FLSA, which imposes criminal liability for a willful violation. See 113 Cong. Rec. 2199 (1967). Senator Javits found "certain serious defects" in the administration bill. He stated that "difficult problems of proof would arise under a criminal provision," and that the employer's invocation of the Fifth Amendment might impede investigation, conciliation, and enforcement. Therefore, he proposed that "the [FLSA's] criminal penalty in cases of willful violation [be] eliminated and a double damage liability substituted." Senator Javits argued that his proposed amendment would "furnish an effective deterrent to willful violations [of the ADEA]," ib 126 and it was incorporated into the ADEA with only minor modification, S. 788, 90th Cong., 1st Sess. (1967). This Court has recognized that in enacting the ADEA, "Congress exhibited a detailed knowledge of the FLSA provisions and their judicial interpretation" The manner in which FLSA 16(a) has been interpreted therefore is relevant. In general, courts have found that an employer is subject to criminal penalties under the FLSA when he "wholly disregards the law without making any reasonable effort to determine whether the plan he is following would constitute a violation of the law." Nabob Oil (CA10), cert. denied, ; see also[19] This standard is substantially in accord with the interpretation of "willful" adopted by the Court of Appeals in interpreting the liquidated damages provision of the ADEA. The court below stated that a violation of the Act was "willful" if "the employer. knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." 713 F.2d, Given the legislative history of the liquidated damages provision, we think the "reckless disregard" standard is reasonable. The definition of "willful" adopted by the above cited courts is consistent with the manner in which this Court has interpreted the term in other criminal and civil statutes. In United the defendant was prosecuted under the Revenue Acts of 1926 and 1928, which made it a misdemeanor for a person "willfully" to 127 fail to pay the required tax. The Murdock Court stated that conduct was "willful" within the meaning of this criminal statute if it was "marked by careless disregard [for] whether or not one has the right so to act." In United the Court applied the Murdock definition of "willful" in a civil case. There, the defendant's failure to unload a cattle car was "willful," because it showed a disregard for the governing statute and an indifference to its -243.[20] The respondents argue that an employer's conduct is willful if he is "cognizant of an appreciable possibility that the employees involved were covered by the [ADEA]." In support of their position, the respondents cite 6 of the Portal-to-Portal Act of 1947 (PPA), 29 U.S. C. 255(a), which is incorporated in both the ADEA and the FLSA. Section 6 of the PPA provides for a 2-year statute of limitations period unless the violation is willful, in which case the limitations period is extended to three years. 29 U.S. C. 255(a). Several courts have held that a violation is willful within the meaning of 6 if the employer knew that the ADEA was "in the picture." See, e. g., cert. denied, ; Respondents contend that the term "willful" should be interpreted in a similar manner in applying the liquidated damages provision of the ADEA. We are unpersuaded by respondents' argument that a violation of the Act is "willful" if the employer simply knew of the potential applicability of the ADEA. Even if the "in 128 the picture" standard were appropriate for the statute of limitations, the same standard should not govern a provision dealing with liquidated [21] More importantly, the broad standard proposed by the respondents would result in an award of double damages in almost every case. As employers are required to post ADEA notices, it would be virtually impossible for an employer to show that he was unaware of the Act and its potential applicability. Both the legislative history and the structure of the statute show that Congress intended a two-tiered liability scheme. We decline to interpret the liquidated damages provision of ADEA 7(b) in a manner that frustrates this intent.[22] B As noted above, the Court of Appeals stated that a violation is "willful" if "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." 713 F.2d, Although we 129 hold that this is an acceptable way to articulate a definition of "willful," the court below misapplied this standard. TWA certainly did not "know" that its conduct violated the Act. Nor can it fairly be said that TWA adopted its transfer policy in "reckless disregard" of the Act's The record makes clear that TWA officials acted reasonably and in good faith in attempting to determine whether their plan would violate the ADEA. See Nabob Oil Shortly after the ADEA was amended, TWA officials met with their lawyers to determine whether the mandatory retirement policy violated the Act. Concluding that the company's existing plan was inconsistent with the ADEA, David Crombie, the airline's Senior Vice President for Administration, proposed a new policy. Despite opposition from the Union, the company adopted a modified version of this initial proposal. Under the plan adopted on August 10, 1978, any pilot in "flight engineer status" on his 60th birthday could continue to work for the airline. On the day the plan was adopted, the Union filed suit against the airline claiming that the new retirement policy constituted a "major" change in the collective-bargaining agreement, and thus was barred by 6 of the Railway Labor Act, 45 U.S. C. 156. Nevertheless, TWA adhered to its new policy. As evidence of "willfulness," respondents point to comments made by J. E. Frankum, the Vice President of Flight Operations. After Crombie was hospitalized in August 1978, Frankum assumed responsibility for bringing TWA's retirement policy into conformance with the ADEA. Despite legal advice to the contrary, Frankum initially believed that the company was not required to allow any pilot over 60 to work. Frankum later abandoned this position in favor of the plan approved on August 10, 1978. Frankum apparently had been concerned only about whether flight engineers could work after reaching the age of 60. There is no indication that TWA was ever advised by counsel that its new transfer policy discriminated against captains on the basis of age. *130 There simply is no evidence that TWA acted in "reckless disregard" of the requirements of the ADEA. The airline had obligations under the collective-bargaining agreement with the Airline Pilots Association. In an attempt to bring its retirement policy into compliance with the ADEA, while at the same time observing the terms of the collective-bargaining agreement, TWA sought legal advice and consulted with the Union. Despite opposition from the Union, a plan was adopted that permitted cockpit employees to work as "flight engineers" after reaching age 60. Apparently TWA officials and the airline's attorneys failed to focus specifically on the effect of each aspect of the new retirement policy for cockpit personnel. It is reasonable to believe that the parties involved, in focusing on the larger overall problem, simply overlooked the challenged aspect of the new plan.[23] We conclude that TWA's violation of the Act was not willful within the meaning of 7(b), and that respondents therefore are not entitled to liquidated IV The ADEA requires TWA to afford 60-year-old captains the same transfer privileges that it gives to captains disqualified for reasons other than age. Therefore, we affirm the Court of Appeals on this issue. We do not agree with its holding that TWA's violation of the Act was willful. We accordingly reverse its judgment that respondents are entitled to liquidated or double It is so ordered.
per_curiam	per_curiam	true	Indiana Employment Security Div. v. Burney	1973-03-05T00:00:00	null	https://www.courtlistener.com/opinion/108664/indiana-employment-security-div-v-burney/	https://www.courtlistener.com/api/rest/v3/clusters/108664/	1,973	1972-043	1	7	2	We noted probable jurisdiction in this case, 406 U.S. 956, to review the judgment of a three-judge district court, holding that Indiana's system of administering unemployment insurance was in conflict with § 303 (a) (1) of the Social Security Act, 49 Stat. 626, as amended, 42 U.S. C. § 503 (a) (1).[1] Before the three-judge court entered its injunction, Indiana's practice was to discontinue unemployment benefits upon a determination of ineligibility, that determination taking place without the benefit of a full hearing for the erstwhile beneficiary. After several months of effort, however, the class representative in this litigation, Mrs. Burney, succeeded in obtaining a reversal of the initial determination of ineligibility.[2] She has now received full retroactive compensation. The full settlement of Mrs. Burney's financial claim raises the question whether there continues to be a case or controversy in this lawsuit. Though the appellee purports to represent a class of all present and future recipients *542 of unemployment insurance, there are no named representatives of the class except Mrs. Burney, who has been paid. Cf. Bailey v. Patterson, 369 U.S. 31, 32-33. Accordingly, the judgment is vacated and the case is remanded to the District Court to consider whether it has become moot. It is so ordered. MR. JUSTICE MARSHALL, with whom MR.	We noted probable jurisdiction in this case, to review the judgment of a three-judge district court, holding that Indiana's system of administering unemployment insurance was in conflict with 303 (a) (1) of the Social Security Act, as amended, 42 U.S. C. 503 (a) (1).[1] Before the three-judge court entered its injunction, Indiana's practice was to discontinue unemployment benefits upon a determination of ineligibility, that determination taking place without the benefit of a full hearing for the erstwhile beneficiary. After several months of effort, however, the class representative in this litigation, Mrs. Burney, succeeded in obtaining a reversal of the initial determination of ineligibility.[2] She has now received full retroactive compensation. The full settlement of Mrs. Burney's financial claim raises the question whether there continues to be a case or controversy in this lawsuit. Though the appellee purports to represent a class of all present and future recipients *542 of unemployment insurance, there are no named representatives of the class except Mrs. Burney, who has been paid. Cf. Accordingly, the judgment is vacated and the case is remanded to the District Court to consider whether it has become moot. It is so ordered. MR. JUSTICE MARSHALL, with whom MR.
Justice Douglas	majority	false	Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc.	1975-02-24T00:00:00	null	https://www.courtlistener.com/opinion/109122/bowman-transp-inc-v-arkansas-best-freight-system-inc/	https://www.courtlistener.com/api/rest/v3/clusters/109122/	1,975	1974-014	2	9	0	This is a direct appeal from a final judgment of a three-judge District Court, 28 U.S. C. §§ 1253, 2101, invalidating an order of the Interstate Commerce Commission. Ten applications of motor carriers to conduct general commodities operations between points in the Southwest and Southeast were consolidated in one proceeding. Three additional applicants were allowed to intervene. The hearing examiners, after extensive hearings, rejected each application. The Commission granted three of the applications of appellant carriers. Appellees, competing carriers, brought an action in the District Court, 28 U.S. C. § 1336, to suspend, enjoin, and annul that portion of the order of the Commission that authorizes issuance of certificates of public convenience and necessity to Red Ball, Bowman, and Johnson. The District Court refused to enforce the Commission's order because its findings and conclusions were arbitrary, capricious, and without rational basis within the meaning of the Administrative Procedure Act, 5 U.S. C. § 706, and likewise refused to remand the case believing that no useful purpose would be served, 364 F. Supp. 1239, 1264.[1] 284 The Administrative Procedure Act in 5 U.S. C. § 706 provides that: "The reviewing court shall . . . (2) hold unlawful and set aside agency action, findings, and conclusions found to be "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [or] . . . ..... "(E) unsupported by substantial evidence . . . ." These two provisions of 5 U.S. C. § 706 (2) are part of six which are "separate standards." See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413 (1971). The District Court properly concluded that, though an agency's finding may be supported by substantial evidence, based on the definition in Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951),[2] it may nonetheless reflect arbitrary and capricious action. There seems, however, to be agreement that the findings and conclusions of the Commission are supported by substantial evidence. The question remains whether, as the District Court held, the Commission's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" as provided in 5 U.S. C. § 706 (2) (A). We disagree with the District Court and accordingly reverse its judgment and remand the cases for consideration of one issue not reached by the District Court or by this Court. I The Motor Carrier provisions of the Interstate Commerce Act, 49 Stat. 551, 49 U.S. C. § 307, empower the 285 Commission to grant an application for a certificate if it finds (1) that the applicant is "fit, willing, and able properly to perform the service proposed"; and (2) that the service proposed "is or will be required by the present or future public convenience and necessity." The Commission made both findings, relying upon the applicants' general service record in support of a finding of fitness, and upon expressions of customer dissatisfaction with the existing service in support of its conclusion that the service proposed was consistent with the public convenience and necessity. The competing appellee carriers made presentations designed to show that their existing service was satisfactory and that the applicants would not offer measurably superior performance. The District Court concluded that the Commission had acted arbitrarily in its treatment of the presentations made by the protesting carriers. While the Commission had acknowledged the appellees' evidence, its reasons for refusing to credit it would not, in the District Court's view, withstand scrutiny, making its action tantamount to an arbitrary refusal to consider matters in the record. Under the "arbitrary and capricious" standard the scope of review is a narrow one. A reviewing court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park v. Volpe, supra, at 416. The agency must articulate a "rational connection between the facts found and the choice made." Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962). While we may not supply a reasoned basis for the agency's action that the 286 agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 (1945). Having summarized the appropriate scope of review, we proceed to consider the District Court's objections seriatim. A. Evidence as to Existing Service The applicant carriers presented exhibits showing the time in transit of selected shipments that had been consigned to appellee carriers by particular shippers during a designated study period. As the Commission acknowledged, the selection of particular shipments from those occurring during the study period had been made with an eye toward demonstrating service inadequacies.[3] These "worst case" studies figured in the Commission's finding that service would be improved by the entry of new carriers to the routes at issue. The appellee carriers offered studies of their own. These covered the same period and the same shippers as the applicants' presentations, but whereas the applicants had selected particular shipments to emphasize inadequacies, the appellee carriers included in their presentations all of the shipments consigned during the study period. These exhibits, argued the protesting carriers, placed the incidents cited by the applicants in perspective and demonstrated that the existing service was generally acceptable. The Commission acknowledged the appellees' presentations but concluded that they offered an inadequate rebuttal to the applicants' exhibits because 287 (1) they "relate to short periods of time or cover traffic handled for specified shippers"; and (2) the studies represented service provided by appellees after the Commission had designated the applications for hearing. Herrin Transportation Co., 114 M. C. C. 571, 599 (1971). The District Court ruled that the Commission had applied inconsistent standards in reviewing the evidence of the parties, since the appellees' exhibits were based upon the same study periods and the same shippers as the applicants' exhibits. 364 F. Supp., at 1259-1260. We agree with the District Court that the first reason assigned by the Commissionthat the appellees' exhibits were based only upon short periods and particular shippers failed to distinguish the presentations of applicants and opponents. To counter the applicants' presentations, the protesting carriers chose the identical study periods and shippers but expanded the presentation to show all the shipments consigned. Since the protesters confined themselves to the periods and shippers the applicants had selected, there was no basis for an inference that the former had chosen so as to make the exhibits unrepresentative in their favor. The Commission's second reason, howeverthat the appellees' studies covered periods subsequent to a notice of hearingprovides support for the Commission's assessment of the evidence. The Commission recognized that protesting carriers might have been spurred to improve their service by the threat of competition raised by the designation of applicants for hearing. Therefore, reasoned the Commission, the protesting carriers' performance subsequent to the notice of hearing might be superior to the service they normally offered, and their exhibits, covering those periods, had to be read in light of that possibility. But the Commission was not precluded from relying upon the demonstrated shortcomings of the protesters' service during that period, for the incentive 288 effect the Commission identified would have, if anything, distorted the performance studies in the protesters' favor. The issue before the Commission was not whether the appellees' service met some absolute standard of performance but whether the "public convenience and necessity" would be served by the entry of new carriers into the markets served by appellees. United States v. Dixie Express, 389 U.S. 409, 411-412 (1967). Even if the Commission had accepted appellees' exhibits at face value, it could still have concluded that the deficiencies were sufficient to justify the admission of additional carriers. Certainly the Commission was entitled to regard the appellees' studies as possibly nonrepresentative of the usual service afforded,[4] to reason that the shortcomings 289 were probably greater than these studies showed, and to conclude that service would be improved by granting the applications. B. Evidence of Applicants' Fitness The applicants supported their service proposals with exhibits showing transit times over comparable distances on other routes. The appellees once again pointed out that the applicants had been selective and offered transit times on different routes served by the applicants that were substantially longer than those applicants proposed to provide on the routes at issue. Appellees thus argued that the applicants could not reasonably be expected to live up to their service proposals. In addition, the appellees cited service restrictions that the applicants practiced on other routesrefusal to make scheduled pickup of merchandise, refusal to handle shipments less than a certain weight, refusal to transport goods to certain destinations, and the like. The Commission attributed little significance to the appellees' rebuttal. With respect to transit times, the Commission noted that different highway conditions might make transit times over identical distances totally incomparable. 114 M. C. C., at 611. The District Court held that the Commission had acted arbitrarily in so treating the evidence, for it had apparently relied on the applicants' transit-time evidence (id., at 586, 600) to support its finding of fitness. 364 F. Supp., at 1260-1261. Similarly, the District Court viewed as 290 arbitrary the Commission's failure to mention in its opinion the service restrictions by applicants that appellees' had cited, since the Commission had relied upon identical restrictions practiced by appellees to support its finding that existing service was not satisfactory. 114 M. C. C., at 600. The Commission's treatment of the evidence of the applicants' performance on other routes is not a paragon of clarity. Had the Commission responded in a more considered manner to the evidence appellees presented, review would have been greatly facilitated, and further review by this Court perhaps avoided entirely. But we can discern in the Commission's opinion a rational basis for its treatment of the evidence, and the "arbitrary and capricious" test does not require more. The question before the Commission was whether service on the routes at issue would be enhanced by permitting new entry, and as to this the performance by prospective entrants on new routes was of limited relevance. The Commission noted with respect to transit times that different highway conditions might make experience there a poor indication of the times applicants could provide on the routes they sought to enter. More generally, the applicants' performance on other routes might, because of market conditions peculiar to that route (e. g., the nature of demand for service, or the number of competing carriers), offer an inaccurate basis for predicting what the applicants would do if admitted to the routes they sought in competition with the carriers already there. A carrier performing lethargically on a route where it was the sole provider of motor transportation, for example, could ill afford to continue the same practice where the situation was more competitive.[5] 291 The particular features of the applicants' performance elsewhere that the appellees cited were not shown by the Commission to be explainable by special market conditions on the routes where they occurred. It is said that the Commission could conclude that the evidence of performance elsewhere would be unlikely to prove dispositive, and that accordingly, absent some compelling demonstration by a proponent of a "performance elsewhere" study that it offered important predictive value, the Commission should disregard such evidence.[6] Of course, evidence of especially egregious performance elsewhere might have been viewed as an exception; a general assumption that competition would force new entrants to exceed the pre-existing quality of service in an effort to attract business might have to yield in the face of an applicant whose shortcomings elsewhere were many and flagrant. But no such evidence was offered here, and none of the applicants was so characterized. Indeed the examiners found 292 that "in the main the carriers participating in these proceedings are substantial and responsible carriers" (2 Ohio App. 878), and no party has disputed this finding. We do not find the Commission's treatment of the evidence arbitrary. II Having found that the admission of the applicant carriers to the routes they sought would produce benefits to the consumers served, the Commission proceeded to consider the effect of new entry upon the appellees. While the Commission acknowledged that competition from new entrants might cause at least short-run business losses for existing carriers, it found that, with the exception of one carrier, none would be "seriously adversely affected." Further, the Commission concluded that in any event, "the gains to be derived by the shipping public in general far outweigh any adverse effect this carrier or any other protestant may experience." 114 M. C. C., at 611. The District Court thought the Commission's treatment unsupportable, in view of the findings by the hearing examiners as to adverse impacts if the applications were granted. 364 F. Supp., at 1262-1263. Insofar as the District Court's comments express the view that the Commission failed to consider the examiners' findings or the appellees' interests, the record shows otherwise. The Commission stated in its opinion that "grants of authority will subject some of protestants' traffic to the possibility of diversion," but went on to make findings that there would be no "serious adverse impact." 114 M. C. C., at 610-611. The evidence that moved the examiners to a contrary view consisted of testimony by appellees' witnesses about the volume of shipments for which new entrants would compete if allowed to enter the market. The testimony thus presented the carriers' maximum potential exposure, 293 leaving considerable leeway for predicting what was likely if applications were granted. Cf. Market Street R. Co. v. Railroad Comm'n, 324 U.S. 548 (1945). The examiners emphasized the magnitude of potential harm; the Commission took a more optimistic view. We see nothing arbitrary in this posture. That a carrier's entire business will be subject to competition hardly compels the conclusion that its operations will show no profit. It was rational for the Commission so to conclude that the new entrant may be expected not to swallow up existing carriers, especially if the latter make efforts to attract business. Moreover, the testimony offered by appellees' witnesses gave the carriers' exposure to competition if every new application sought by appellees were granted.[7] Thus, the examiners were reporting upon potential diversions of traffic under conditions that were never realized. Since the Commission granted only three of the 10 pending applications, much of the testimony on this matter had to be regarded with qualification, and some of it disregarded entirely.[8] The Commission's conclusion that consumer benefits outweighed any adverse impact upon the existing carriers reflects the kind of judgment that is entrusted to it, a power to weigh the competing interests and arrive at a balance that is deemed "the public convenience and necessity." United States v. Pierce Auto Lines, 327 U.S. 515, 535-536 (1946). If the Commission has "drawn out and 294 crystallized these competing interests [and] attempted to judge them with as much delicacy as the prospective nature of the inquiry permits," ICC v. J-T Transport Co., 368 U.S. 81, 89 (1961), we can require no more. Here the Commission identified the competing interests. We cannot say that the balance it struck was arbitrary or contrary to law. III The District Court expressed concern about the considerable lapse of time between the conclusion of evidentiary hearings and the Commission's decision. 364 F. Supp., at 1261-1262. While it is unclear whether this was an independent ground for setting aside the Commission's order, we deem it advisable to deal directly with the suggestion that the record has grown too stale to support the order. Hearings on the applications in these cases began in 1966 and concluded in 1967. Thereafter, the parties prepared extensive briefs for the examiners, who rendered their decision in November 1969. The decision of the Commission was handed down on December 30, 1971. Thus, the evidentiary material pertained to service conditions which were dated by five years at the time the Commission rendered its decision. We appreciate the difficulties that arise when the lapse between hearing and ultimate decision is so long. Undoubtedly economic changes dated the 1966 studies that the parties, both applicants and appellees, had placed in the record. Nevertheless, we have always been loath to require that factfinding begin anew merely because of delay in proceedings of such magnitude and complexity. To repeat what was said in ICC v. Jersey City, 322 U.S. 503, 514-515 (1944): "Administrative consideration of evidenceparticularly where the evidence is taken by an examiner, 295 his report submitted to the parties, and a hearing held on their exceptions to italways creates a gap between the time the record is closed and the time the administrative decision is promulgated. This is especially true if the issues are difficult, the evidence intricate, and the consideration of the case deliberate and careful. If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening. It has been almost a rule of necessity that rehearings were not matters of rights, but were pleas to discretion. And likewise it has been considered that the discretion to be invoked was that of the body making the order, and not that of a reviewing body." Only in Atchison, T. & S. F. R. Co. v. United States, 284 U.S. 248 (1932), did we remand a case for reopening of evidentiary proceedings; there the Commission's refusal to reopen in light of the economic metamorphosis brought on by the Great Depression led the Court to find an abuse of discretion. The same exceptional circumstances that compelled that disposition, however, have been found lacking in more recent cases. See United States v. Northern Pacific R. Co., 288 U.S. 490 (1933); Illinois Commerce Comm'n v. United States, 292 U.S. 474 (1934); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38 (1936); ICC v. Jersey City, supra; United States v. Pierce Auto Lines, supra; Northern Lines Merger Cases, 396 U.S. 491 (1970). Illinois Commerce Comm'n v. United States, supra, is of particular relevance, for there the Court refused to compel the Interstate Commerce 296 Commission to reopen for the inclusion of new economic studies a record already closed for a comparable period. We believe appellees failed to meet the heavy burden thrust upon them by our cases.[9] The protracted character of the proceedings resulted, not from bureaucratic inertia, but from the number and complexity of the issues and from the agency procedures that extended to the parties, in an effort to insure fairness in appearance as well as reality, and an opportunity to comment upon the proceedings at every stage. More than 900 witnesses testified in the original hearings, which consumed 150 days. At the conclusion the parties submitted briefs requiring seven months to prepare. The examiners' decision did not issue until nearly two years later. It is doubtful that the Commission could have made the record more current by judicial notice alone; while live testimony might not have been required, the Commission would at least have had to entertain evidence in affidavit form. Yet there would have been little assurance that at the conclusion of such a reopening, and the time required to digest the new material, the record would not again have become "stale." Accordingly, we conclude that there is sound basis for adhering to our practice of declining to require reopening of the record, except in the most extraordinary circumstances. 297 IV We conclude by addressing a concern voiced by the District Court, that the Commission's decision "indicates a predilection to grant these particular applications, followed by a strained attempt to marshal findings to support such conclusion." 364 F. Supp., at 1264. We disagree with the District Court insofar as its remarks charge the Commission with prejudging the issue and deciding without giving consideration to the evidence. But we think the approach adopted by the Commission does differ from that taken by the examiners in significant respects that are important to identify. The examiners viewed the evidence against a backdrop of assumptions about the relationship between consumer needs and carrier responsibilities. The examiners ruled, for example, that all shippers were not entitled to "single-line service" and that the shippers' difficulties were attributable, in part, to lack of diligence. The examiners put it that "[n]ormally existing carriers should have an opportunity. . . to transport all of the traffic they can handle adequately and efficiently in the territory they are authorized to serve without the competition of new operations." And to the extent that service inadequacies were demonstrated, the examiners viewed complaints to force compliance with certificates held by existing carriers as a preferred mode of relief. The Commission's approach, on the other hand, was more congenial to new entry and the resulting competition. This is the Commission's prerogative in carrying out its mandate to insure "safe, adequate, economical, and efficient service," National Transportation Policy, 298 preceding 49 U.S. C. § 1. The Commission was not compelled to adopt the same approach as the examiners. It could conclude that the benefits of competitive service to consumers might outweigh the discomforts existing certificated carriers could feel as a result of new entry.[10] Our decisions have dispelled any notion that the Commission's primary obligation is the protection of firms holding existing certificates. ICC v. J-T Transport Co., supra, disapproved the proposition that shippers must take their grievances through complaint procedures before improvement through new entry is permitted. 368 U.S., at 91. And in United States v. Dixie Express, 389 U.S. 409 (1967), we rejected the suggestion by a reviewing court that existing carriers have "a property right" to an opportunity to make amends before new certificates issue. Id., at 411. A policy in favor of competition embodied in the laws has application in a variety of economic affairs. Even where Congress has chosen Government regulation as the primary device for protecting the public interest, a policy of facilitating competitive market structure and performance is entitled to consideration. McLean Trucking Co. v. United States, 321 U.S. 67 (1944); FMC v. Svenska Amerika Linien, 390 U.S. 238 (1968); Gulf States Utilities Co. v. FPC, 411 U.S. 747 (1973); Denver & R. G. W. R. Co. v. United States, 387 U.S. 485 (1967). The Commission, of course, is entitled to conclude that preservation of a competitive structure in a given case is overridden by other interests, United States v. Drum, 368 299 U. S. 370, 374-375 (1962), but where, as here, the Commission concludes that competition "aids in the attainment of the objectives of the national transportation policy," McLean Trucking Co. v. United States, supra, at 85-86, we have no basis for disturbing the Commission's accommodation. V Our opinion disposes of appellees' objections to the Commission's order insofar as it granted the applications of Johnson and Red Ball.[11] As to appellant Bowman, however, an issue remains. In granting Bowman a certificate the Commission noted that the authority sought by Bowman exceeded that set forth in Bowman's application. The "excess" was granted, subject to a condition precedent of publication in the Federal Register of Bowman's request for the excess authority. Various appellees filed objections to the augmented authority sought by Bowman, which the Commission overruled. Appellees challenged the Commission's procedure in the District Court on a variety of grounds, and though the District Court indicated disapproval of the Commission's action, the court did not have to rule on the merits of appellees' objections since it set aside the Commission's approval of all the applications. While we have on occasion decided residual issues in the interest of an expeditious conclusion of protracted litigation, see Consolo v. FMC, 383 U.S. 607, 621 (1966), we believe that the issue of conformity of the Bowman certificate to its application is one for the District Court. The issue was not briefed or argued here, owing to the limitations set forth in our order noting probable jurisdiction. And while the District Court spoke of the Commission's *300 action in this regard, we do not construe its expressions as a final ruling, since they were unnecessary to the District Court's disposition of the case. Accordingly, the issue remains open on remand. We hasten to add, however, that our remand provides no basis for depriving Bowman of authority conferred by the Commission that was within its original application. Reversed and remanded.	This is a direct appeal from a final judgment of a three-judge District Court, 28 U.S. C. 1253, 2101, invalidating an order of the Interstate Commerce Commission. Ten applications of motor carriers to conduct general commodities operations between points in the Southwest and Southeast were consolidated in one proceeding. Three additional applicants were allowed to intervene. The hearing examiners, after extensive hearings, rejected each application. The Commission granted three of the applications of appellant carriers. Appellees, competing carriers, brought an action in the District Court, 28 U.S. C. 1336, to suspend, enjoin, and annul that portion of the order of the Commission that authorizes issuance of certificates of public convenience and necessity to Red Ball, Bowman, and Johnson. The District Court refused to enforce the Commission's order because its findings and conclusions were arbitrary, capricious, and without rational basis within the meaning of the Administrative Procedure Act, 5 U.S. C. 706, and likewise refused to remand the case believing that no useful purpose would be served,[1] 284 The Administrative Procedure Act in 5 U.S. C. 706 provides that: "The reviewing court shall (2) hold unlawful and set aside agency action, findings, and conclusions found to be "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [or] "(E) unsupported by substantial evidence" These two provisions of 5 U.S. C. 706 (2) are part of six which are "separate standards." See Citizens to Preserve Overton The District Court properly concluded that, though an agency's finding may be supported by substantial evidence, based on the definition in Universal Camera[2] it may nonetheless reflect arbitrary and capricious action. There seems, however, to be agreement that the findings and conclusions of the Commission are supported by substantial evidence. The question remains whether, as the District Court held, the Commission's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" as provided in 5 U.S. C. 706 (2) (A). We disagree with the District Court and accordingly reverse its judgment and remand the cases for consideration of one issue not reached by the District Court or by this Court. I The Motor Carrier provisions of the Interstate Commerce Act, 49 U.S. C. 307, empower the 285 Commission to grant an application for a certificate if it finds (1) that the applicant is "fit, willing, and able properly to perform the service proposed"; and (2) that the service proposed "is or will be required by the present or future public convenience and necessity." The Commission made both findings, relying upon the applicants' general service record in support of a finding of fitness, and upon expressions of customer dissatisfaction with the existing service in support of its conclusion that the service proposed was consistent with the public convenience and necessity. The competing appellee carriers made presentations designed to show that their existing service was satisfactory and that the applicants would not offer measurably superior performance. The District Court concluded that the Commission had acted arbitrarily in its treatment of the presentations made by the protesting carriers. While the Commission had acknowledged the appellees' evidence, its reasons for refusing to credit it would not, in the District Court's view, withstand scrutiny, making its action tantamount to an arbitrary refusal to consider matters in the record. Under the "arbitrary and capricious" standard the scope of review is a narrow one. A reviewing court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton The agency must articulate a "rational connection between the facts found and the choice made." Burlington Truck While we may not supply a reasoned basis for the agency's action that the 286 agency itself has not given, we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned. Colorado Interstate Gas Having summarized the appropriate scope of review, we proceed to consider the District Court's objections seriatim. A. Evidence as to Existing Service The applicant carriers presented exhibits showing the time in transit of selected shipments that had been consigned to appellee carriers by particular shippers during a designated study period. As the Commission acknowledged, the selection of particular shipments from those occurring during the study period had been made with an eye toward demonstrating service inadequacies.[3] These "worst case" studies figured in the Commission's finding that service would be improved by the entry of new carriers to the routes at issue. The appellee carriers offered studies of their own. These covered the same period and the same shippers as the applicants' presentations, but whereas the applicants had selected particular shipments to emphasize inadequacies, the appellee carriers included in their presentations all of the shipments consigned during the study period. These exhibits, argued the protesting carriers, placed the incidents cited by the applicants in perspective and demonstrated that the existing service was generally acceptable. The Commission acknowledged the appellees' presentations but concluded that they offered an inadequate rebuttal to the applicants' exhibits because 287 (1) they "relate to short periods of time or cover traffic handled for specified shippers"; and (2) the studies represented service provided by appellees after the Commission had designated the applications for hearing. Herrin Transportation 114 M. C. C. 571, 599 The District Court ruled that the Commission had applied inconsistent standards in reviewing the evidence of the parties, since the appellees' exhibits were based upon the same study periods and the same shippers as the applicants' -1260. We agree with the District Court that the first reason assigned by the Commissionthat the appellees' exhibits were based only upon short periods and particular shippers failed to distinguish the presentations of applicants and opponents. To counter the applicants' presentations, the protesting carriers chose the identical study periods and shippers but expanded the presentation to show all the shipments consigned. Since the protesters confined themselves to the periods and shippers the applicants had selected, there was no basis for an inference that the former had chosen so as to make the exhibits unrepresentative in their favor. The Commission's second reason, howeverthat the appellees' studies covered periods subsequent to a notice of hearingprovides support for the Commission's assessment of the evidence. The Commission recognized that protesting carriers might have been spurred to improve their service by the threat of competition raised by the designation of applicants for hearing. Therefore, reasoned the Commission, the protesting carriers' performance subsequent to the notice of hearing might be superior to the service they normally offered, and their exhibits, covering those periods, had to be read in light of that possibility. But the Commission was not precluded from relying upon the demonstrated shortcomings of the protesters' service during that period, for the incentive 288 effect the Commission identified would have, if anything, distorted the performance studies in the protesters' favor. The issue before the Commission was not whether the appellees' service met some absolute standard of performance but whether the "public convenience and necessity" would be served by the entry of new carriers into the markets served by appellees. United (7). Even if the Commission had accepted appellees' exhibits at face value, it could still have concluded that the deficiencies were sufficient to justify the admission of additional carriers. Certainly the Commission was entitled to regard the appellees' studies as possibly nonrepresentative of the usual service afforded,[4] to reason that the shortcomings 2 were probably greater than these studies showed, and to conclude that service would be improved by granting the applications. B. Evidence of Applicants' Fitness The applicants supported their service proposals with exhibits showing transit times over comparable distances on other routes. The appellees once again pointed out that the applicants had been selective and offered transit times on different routes served by the applicants that were substantially longer than those applicants proposed to provide on the routes at issue. Appellees thus argued that the applicants could not reasonably be expected to live up to their service proposals. In addition, the appellees cited service restrictions that the applicants practiced on other routesrefusal to make scheduled pickup of merchandise, refusal to handle shipments less than a certain weight, refusal to transport goods to certain destinations, and the like. The Commission attributed little significance to the appellees' rebuttal. With respect to transit times, the Commission noted that different highway conditions might make transit times over identical distances totally incomparable. 114 M. C. C., at 611. The District Court held that the Commission had acted arbitrarily in so treating the evidence, for it had apparently relied on the applicants' transit-time evidence (id., at 586, 600) to support its finding of fitness. -1261. Similarly, the District Court viewed as 290 arbitrary the Commission's failure to mention in its opinion the service restrictions by applicants that appellees' had cited, since the Commission had relied upon identical restrictions practiced by appellees to support its finding that existing service was not satisfactory. 114 M. C. C., at 600. The Commission's treatment of the evidence of the applicants' performance on other routes is not a paragon of clarity. Had the Commission responded in a more considered manner to the evidence appellees presented, review would have been greatly facilitated, and further review by this Court perhaps avoided entirely. But we can discern in the Commission's opinion a rational basis for its treatment of the evidence, and the "arbitrary and capricious" test does not require more. The question before the Commission was whether service on the routes at issue would be enhanced by permitting new entry, and as to this the performance by prospective entrants on new routes was of limited relevance. The Commission noted with respect to transit times that different highway conditions might make experience there a poor indication of the times applicants could provide on the routes they sought to enter. More generally, the applicants' performance on other routes might, because of market conditions peculiar to that route (e. g., the nature of demand for service, or the number of competing carriers), offer an inaccurate basis for predicting what the applicants would do if admitted to the routes they sought in competition with the carriers already there. A carrier performing lethargically on a route where it was the sole provider of motor transportation, for example, could ill afford to continue the same practice where the situation was more competitive.[5] 291 The particular features of the applicants' performance elsewhere that the appellees cited were not shown by the Commission to be explainable by special market conditions on the routes where they occurred. It is said that the Commission could conclude that the evidence of performance elsewhere would be unlikely to prove dispositive, and that accordingly, absent some compelling demonstration by a proponent of a "performance elsewhere" study that it offered important predictive value, the Commission should disregard such evidence.[6] Of course, evidence of especially egregious performance elsewhere might have been viewed as an exception; a general assumption that competition would force new entrants to exceed the pre-existing quality of service in an effort to attract business might have to yield in the face of an applicant whose shortcomings elsewhere were many and flagrant. But no such evidence was offered here, and none of the applicants was so characterized. Indeed the examiners found 292 that "in the main the carriers participating in these proceedings are substantial and responsible carriers" (), and no party has disputed this finding. We do not find the Commission's treatment of the evidence arbitrary. II Having found that the admission of the applicant carriers to the routes they sought would produce benefits to the consumers served, the Commission proceeded to consider the effect of new entry upon the appellees. While the Commission acknowledged that competition from new entrants might cause at least short-run business losses for existing carriers, it found that, with the exception of one carrier, none would be "seriously adversely affected." Further, the Commission concluded that in any event, "the gains to be derived by the shipping public in general far outweigh any adverse effect this carrier or any other protestant may experience." 114 M. C. C., at 611. The District Court thought the Commission's treatment unsupportable, in view of the findings by the hearing examiners as to adverse impacts if the applications were granted. -1263. Insofar as the District Court's comments express the view that the Commission failed to consider the examiners' findings or the appellees' interests, the record shows otherwise. The Commission stated in its opinion that "grants of authority will subject some of protestants' traffic to the possibility of diversion," but went on to make findings that there would be no "serious adverse impact." 114 M. C. C., at 610-611. The evidence that moved the examiners to a contrary view consisted of testimony by appellees' witnesses about the volume of shipments for which new entrants would compete if allowed to enter the market. The testimony thus presented the carriers' maximum potential exposure, 293 leaving considerable leeway for predicting what was likely if applications were granted. Cf. Market Street R. The examiners emphasized the magnitude of potential harm; the Commission took a more optimistic view. We see nothing arbitrary in this posture. That a carrier's entire business will be subject to competition hardly compels the conclusion that its operations will show no profit. It was rational for the Commission so to conclude that the new entrant may be expected not to swallow up existing carriers, especially if the latter make efforts to attract business. Moreover, the testimony offered by appellees' witnesses gave the carriers' exposure to competition if every new application sought by appellees were granted.[7] Thus, the examiners were reporting upon potential diversions of traffic under conditions that were never realized. Since the Commission granted only three of the 10 pending applications, much of the testimony on this matter had to be regarded with qualification, and some of it disregarded entirely.[8] The Commission's conclusion that consumer benefits outweighed any adverse impact upon the existing carriers reflects the kind of judgment that is entrusted to it, a power to weigh the competing interests and arrive at a balance that is deemed "the public convenience and necessity." United If the Commission has "drawn out and 294 crystallized these competing interests [and] attempted to judge them with as much delicacy as the prospective nature of the inquiry permits," (1), we can require no more. Here the Commission identified the competing interests. We cannot say that the balance it struck was arbitrary or contrary to law. III The District Court expressed concern about the considerable lapse of time between the conclusion of evidentiary hearings and the Commission's -1262. While it is unclear whether this was an independent ground for setting aside the Commission's order, we deem it advisable to deal directly with the suggestion that the record has grown too stale to support the order. Hearings on the applications in these cases began in 6 and concluded in 7. Thereafter, the parties prepared extensive briefs for the examiners, who rendered their decision in November 9. The decision of the Commission was handed down on December 30, 1971. Thus, the evidentiary material pertained to service conditions which were dated by five years at the time the Commission rendered its We appreciate the difficulties that arise when the lapse between hearing and ultimate decision is so long. Undoubtedly economic changes dated the 6 studies that the parties, both applicants and appellees, had placed in the record. Nevertheless, we have always been loath to require that factfinding begin anew merely because of delay in proceedings of such magnitude and complexity. To repeat what was said in : "Administrative consideration of evidenceparticularly where the evidence is taken by an examiner, 295 his report submitted to the parties, and a hearing held on their exceptions to italways creates a gap between the time the record is closed and the time the administrative decision is promulgated. This is especially true if the issues are difficult, the evidence intricate, and the consideration of the case deliberate and careful. If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening. It has been almost a rule of necessity that rehearings were not matters of rights, but were pleas to discretion. And likewise it has been considered that the discretion to be invoked was that of the body making the order, and not that of a reviewing body." Only in Atchison, T. & S. F. R. did we remand a case for reopening of evidentiary proceedings; there the Commission's refusal to reopen in light of the economic metamorphosis brought on by the Great Depression led the Court to find an abuse of discretion. The same exceptional circumstances that compelled that disposition, however, have been found lacking in more recent cases. See United ; Illinois Commerce ; St. Joseph Stock Yards ; United Northern Merger Cases, Illinois Commerce is of particular relevance, for there the Court refused to compel the Interstate Commerce 296 Commission to reopen for the inclusion of new economic studies a record already closed for a comparable period. We believe appellees failed to meet the heavy burden thrust upon them by our cases.[9] The protracted character of the proceedings resulted, not from bureaucratic inertia, but from the number and complexity of the issues and from the agency procedures that extended to the parties, in an effort to insure fairness in appearance as well as reality, and an opportunity to comment upon the proceedings at every stage. More than 900 witnesses testified in the original hearings, which consumed 150 days. At the conclusion the parties submitted briefs requiring seven months to prepare. The examiners' decision did not issue until nearly two years later. It is doubtful that the Commission could have made the record more current by judicial notice alone; while live testimony might not have been required, the Commission would at least have had to entertain evidence in affidavit form. Yet there would have been little assurance that at the conclusion of such a reopening, and the time required to digest the new material, the record would not again have become "stale." Accordingly, we conclude that there is sound basis for adhering to our practice of declining to require reopening of the record, except in the most extraordinary circumstances. 297 IV We conclude by addressing a concern voiced by the District Court, that the Commission's decision "indicates a predilection to grant these particular applications, followed by a strained attempt to marshal findings to support such conclusion." 364 F. Supp., at We disagree with the District Court insofar as its remarks charge the Commission with prejudging the issue and deciding without giving consideration to the evidence. But we think the approach adopted by the Commission does differ from that taken by the examiners in significant respects that are important to identify. The examiners viewed the evidence against a backdrop of assumptions about the relationship between consumer needs and carrier responsibilities. The examiners ruled, for example, that all shippers were not entitled to "single-line service" and that the shippers' difficulties were attributable, in part, to lack of diligence. The examiners put it that "[n]ormally existing carriers should have an opportunity. to transport all of the traffic they can handle adequately and efficiently in the territory they are authorized to serve without the competition of new operations." And to the extent that service inadequacies were demonstrated, the examiners viewed complaints to force compliance with certificates held by existing carriers as a preferred mode of relief. The Commission's approach, on the other hand, was more congenial to new entry and the resulting competition. This is the Commission's prerogative in carrying out its mandate to insure "safe, adequate, economical, and efficient service," National Transportation Policy, 298 preceding 49 U.S. C. 1. The Commission was not compelled to adopt the same approach as the examiners. It could conclude that the benefits of competitive service to consumers might outweigh the discomforts existing certificated carriers could feel as a result of new entry.[10] Our decisions have dispelled any notion that the Commission's primary obligation is the protection of firms holding existing certificates. disapproved the proposition that shippers must take their grievances through complaint procedures before improvement through new entry is And in United (7), we rejected the suggestion by a reviewing court that existing carriers have "a property right" to an opportunity to make amends before new certificates issue. A policy in favor of competition embodied in the laws has application in a variety of economic affairs. Even where Congress has chosen Government regulation as the primary device for protecting the public interest, a policy of facilitating competitive market structure and performance is entitled to consideration. McLean Trucking ; (8); Gulf Utilities ; Denver & R. G. W. R. (7). The Commission, of course, is entitled to conclude that preservation of a competitive structure in a given case is overridden by other interests, United v. Drum, 368 , but where, as here, the Commission concludes that competition "aids in the attainment of the objectives of the national transportation policy," McLean Trucking we have no basis for disturbing the Commission's accommodation. V Our opinion disposes of appellees' objections to the Commission's order insofar as it granted the applications of Johnson and Red Ball.[11] As to appellant Bowman, however, an issue remains. In granting Bowman a certificate the Commission noted that the authority sought by Bowman exceeded that set forth in Bowman's application. The "excess" was granted, subject to a condition precedent of publication in the Federal Register of Bowman's request for the excess authority. Various appellees filed objections to the augmented authority sought by Bowman, which the Commission overruled. Appellees challenged the Commission's procedure in the District Court on a variety of grounds, and though the District Court indicated disapproval of the Commission's action, the court did not have to rule on the merits of appellees' objections since it set aside the Commission's approval of all the applications. While we have on occasion decided residual issues in the interest of an expeditious conclusion of protracted litigation, see (6), we believe that the issue of conformity of the Bowman certificate to its application is one for the District Court. The issue was not briefed or argued here, owing to the limitations set forth in our order noting probable jurisdiction. And while the District Court spoke of the Commission's *300 action in this regard, we do not construe its expressions as a final ruling, since they were unnecessary to the District Court's disposition of the case. Accordingly, the issue remains open on remand. We hasten to add, however, that our remand provides no basis for depriving Bowman of authority conferred by the Commission that was within its original application. Reversed and remanded.
Justice O'Connor	concurring	false	Pliler v. Ford	2004-06-21T00:00:00	null	https://www.courtlistener.com/opinion/136992/pliler-v-ford/	https://www.courtlistener.com/api/rest/v3/clusters/136992/	2,004	2003-077	1	7	2	I join the Court's opinion because it is limited to the narrow question whether the notifications crafted by the Ninth Circuit must be given. The propriety of the stay-and-abeyance procedure generally is not addressed. The District Court did not employ that procedure, nor did the Ninth Circuit hold that it must be applied in every case. There is, therefore, no need for us to pass on it in this case, and the Court properly avoids doing so. I note, however, that the procedure is not an idiosyncratic one; as JUSTICE BREYER describes, post, at 239 (dissenting opinion), seven of the eight Circuits to consider it have approved stay-and-abeyance as an appropriate exercise of a district court's equitable powers. *235 For the reasons given by the majority, ante, at 232-233, it is not incumbent upon a district court to establish whether the statute of limitations has already run before explaining the options available to a habeas petitioner who has filed a mixed petition. Nevertheless, if the petitioner is affirmatively misled, either by the court or by the State, equitable tolling might well be appropriate. This is a question for the Ninth Circuit to consider on remand. See ante, at 234. JUSTICE STEVENS, with whom JUSTICE SOUTER joins, concurring in the judgment. While I fully agree with the views expressed by JUSTICE GINSBURG, post this page, and JUSTICE BREYER, post, p. 237 (dissenting opinions), I am persuaded that the judgment entered by the Court remanding to the Ninth Circuit to determine the propriety of equitable tolling is both consistent with those views and correct. I therefore concur in that judgment.	I join the Court's opinion because it is limited to the narrow question whether the notifications crafted by the Ninth Circuit must be given. The propriety of the stay-and-abeyance procedure generally is not addressed. The District Court did not employ that procedure, nor did the Ninth Circuit hold that it must be applied in every case. There is, therefore, no need for us to pass on it in this case, and the Court properly avoids doing so. I note, however, that the procedure is not an idiosyncratic one; as JUSTICE BREYER describes, post, at 239 (dissenting opinion), seven of the eight Circuits to consider it have approved stay-and-abeyance as an appropriate exercise of a district court's equitable powers. *235 For the reasons given by the majority, ante, at 232-233, it is not incumbent upon a district court to establish whether the statute of limitations has already run before explaining the options available to a habeas petitioner who has filed a mixed petition. Nevertheless, if the petitioner is affirmatively misled, either by the court or by the State, equitable tolling might well be appropriate. This is a question for the Ninth Circuit to consider on remand. See ante, at 234. JUSTICE STEVENS, with whom JUSTICE SOUTER joins, concurring in the judgment. While I fully agree with the views expressed by JUSTICE GINSBURG, post this page, and JUSTICE BREYER, post, p. 237 (dissenting opinions), I am persuaded that the judgment entered by the Court remanding to the Ninth Circuit to determine the propriety of equitable tolling is both consistent with those views and correct. I therefore concur in that judgment.
Justice Stevens	dissenting	false	Burger King Corp. v. Rudzewicz	1985-05-20T00:00:00	null	https://www.courtlistener.com/opinion/111429/burger-king-corp-v-rudzewicz/	https://www.courtlistener.com/api/rest/v3/clusters/111429/	1,985	1984-097	1	6	2	In my opinion there is a significant element of unfairness in requiring a franchisee to defend a case of this kind in the forum chosen by the franchisor. It is undisputed that appellee maintained no place of business in Florida, that he had no employees in that State, and that he was not licensed to do business there. Appellee did not prepare his French fries, shakes, and hamburgers in Michigan, and then deliver them into the stream of commerce "with the expectation that they [would] be purchased by consumers in" Florida. Ante, at 473. To the contrary, appellee did business only in Michigan, his business, property, and payroll taxes were payable in that State, and he sold all of his products there. Throughout the business relationship, appellee's principal contacts with appellant were with its Michigan office. Notwithstanding its disclaimer, ante, at 478, the Court seems ultimately to rely on nothing more than standard boilerplate language contained in various documents, ante, at 481, 488 to establish that appellee " `purposefully availed himself of the benefits and protections of Florida's laws.' " Ante, at 482. Such superficial analysis creates a potential for unfairness not only in negotiations between franchisors and their franchisees but, more significantly, in the resolution of the disputes that inevitably arise from time to time in such relationships. Judge Vance's opinion for the Court of Appeals for the Eleventh Circuit adequately explains why I would affirm the judgment of that court. I particularly find the following more persuasive than what this Court has written today: "Nothing in the course of negotiations gave Rudzewicz reason to anticipate a Burger King suit outside of Michigan. The only face-to-face or even oral contact Rudzewicz had with Burger King throughout months of protracted negotiations was with representatives of the Michigan office. Burger King had the Michigan office interview Rudzewicz and MacShara, appraise their application, discuss price terms, recommend the site which the defendants finally agreed to, and attend the final closing ceremony. There is no evidence that Rudzewicz ever negotiated with anyone in Miami or even sent mail there during negotiations. He maintained no staff in the state of Florida, and as far as the record reveals, he has never even visited the state. "The contracts contemplated the startup of a local Michigan restaurant whose profits would derive solely from food sales made to customers in Drayton Plains. The sale, which involved the use of an intangible trademark in Michigan and occupancy of a Burger King facility there, required no performance in the state of Florida. Under the contract, the local Michigan district office was responsible for providing all of the services due Rudzewicz, including advertising and management consultation. Supervision, moreover, emanated from that office alone. To Rudzewicz, the Michigan office was for all intents and purposes the embodiment 489 of Burger King. He had reason to believe that his working relationship with Burger King began and ended in Michigan, not at the distant and anonymous Florida headquarters. . . . "Given that the office in Rudzewicz' home state conducted all of the negotiations and wholly supervised the contract, we believe that he had reason to assume that the state of the supervisory office would be the same state in which Burger King would file suit. Rudzewicz lacked fair notice that the distant corporate headquarters which insulated itself from direct dealings with him would later seek to assert jurisdiction over him in the courts of its own home state. . . . "Just as Rudzewicz lacked notice of the possibility of suit in Florida, he was financially unprepared to meet its added costs. The franchise relationship in particular is fraught with potential for financial surprise. The device of the franchise gives local retailers the access to national trademark recognition which enables them to compete with better-financed, more efficient chain stores. This national affiliation, however, does not alter the fact that the typical franchise store is a local concern serving at best a neighborhood or community. Neither the revenues of a local business nor the geographical range of its market prepares the average franchise owner for the cost of distant litigation. . . . "The particular distribution of bargaining power in the franchise relationship further impairs the franchisee's financial preparedness. In a franchise contract, `the franchisor normally occupies [the] dominant role'. . . . "We discern a characteristic disparity of bargaining power in the facts of this case. There is no indication that Rudzewicz had any latitude to negotiate a reduced rent or franchise fee in exchange for the added risk of suit in Florida. He signed a standard form contract whose terms were non-negotiable and which appeared *490 in some respects to vary from the more favorable terms agreed to in earlier discussions. In fact, the final contract required a minimum monthly rent computed on a base far in excess of that discussed in oral negotiations. Burger King resisted price concessions, only to sue Rudzewicz far from home. In doing so, it severely impaired his ability to call Michigan witnesses who might be essential to his defense and counterclaim. "In sum, we hold that the circumstances of the Drayton Plains franchise and the negotiations which led to it left Rudzewicz bereft of reasonable notice and financially unprepared for the prospect of franchise litigation in Florida. Jurisdiction under these circumstances would offend the fundamental fairness which is the touchstone of due process." 724 F.2d 1505, 1511-1513 (1984) (footnotes omitted). Accordingly, I respectfully dissent.	In my opinion there is a significant element of unfairness in requiring a franchisee to defend a case of this kind in the forum chosen by the franchisor. It is undisputed that appellee maintained no place of business in Florida, that he had no employees in that State, and that he was not licensed to do business there. Appellee did not prepare his French fries, shakes, and hamburgers in Michigan, and then deliver them into the stream of commerce "with the expectation that they [would] be purchased by consumers in" Florida. Ante, at 473. To the contrary, appellee did business only in Michigan, his business, property, and payroll taxes were payable in that State, and he sold all of his products there. Throughout the business relationship, appellee's principal contacts with appellant were with its Michigan office. Notwithstanding its disclaimer, ante, at 478, the Court seems ultimately to rely on nothing more than standard boilerplate language contained in various documents, ante, at 481, 488 to establish that appellee " `purposefully availed himself of the benefits and protections of Florida's laws.' " Ante, at 482. Such superficial analysis creates a potential for unfairness not only in negotiations between franchisors and their franchisees but, more significantly, in the resolution of the disputes that inevitably arise from time to time in such relationships. Judge Vance's opinion for the Court of Appeals for the Eleventh Circuit adequately explains why I would affirm the judgment of that court. I particularly find the following more persuasive than what this Court has written today: "Nothing in the course of negotiations gave Rudzewicz reason to anticipate a Burger King suit outside of Michigan. The only face-to-face or even oral contact Rudzewicz had with Burger King throughout months of protracted negotiations was with representatives of the Michigan office. Burger King had the Michigan office interview Rudzewicz and MacShara, appraise their application, discuss price terms, recommend the site which the defendants finally agreed to, and attend the final closing ceremony. There is no evidence that Rudzewicz ever negotiated with anyone in Miami or even sent mail there during negotiations. He maintained no staff in the state of Florida, and as far as the record reveals, he has never even visited the state. "The contracts contemplated the startup of a local Michigan restaurant whose profits would derive solely from food sales made to customers in Drayton Plains. The sale, which involved the use of an intangible trademark in Michigan and occupancy of a Burger King facility there, required no performance in the state of Florida. Under the contract, the local Michigan district office was responsible for providing all of the services due Rudzewicz, including advertising and management consultation. Supervision, moreover, emanated from that office alone. To Rudzewicz, the Michigan office was for all intents and purposes the embodiment 489 of Burger King. He had reason to believe that his working relationship with Burger King began and ended in Michigan, not at the distant and anonymous Florida headquarters. "Given that the office in Rudzewicz' home state conducted all of the negotiations and wholly supervised the contract, we believe that he had reason to assume that the state of the supervisory office would be the same state in which Burger King would file suit. Rudzewicz lacked fair notice that the distant corporate headquarters which insulated itself from direct dealings with him would later seek to assert jurisdiction over him in the courts of its own home state. "Just as Rudzewicz lacked notice of the possibility of suit in Florida, he was financially unprepared to meet its added costs. The franchise relationship in particular is fraught with potential for financial surprise. The device of the franchise gives local retailers the access to national trademark recognition which enables them to compete with better-financed, more efficient chain stores. This national affiliation, however, does not alter the fact that the typical franchise store is a local concern serving at best a neighborhood or community. Neither the revenues of a local business nor the geographical range of its market prepares the average franchise owner for the cost of distant litigation. "The particular distribution of bargaining power in the franchise relationship further impairs the franchisee's financial preparedness. In a franchise contract, `the franchisor normally occupies [the] dominant role'. "We discern a characteristic disparity of bargaining power in the facts of this case. There is no indication that Rudzewicz had any latitude to negotiate a reduced rent or franchise fee in exchange for the added risk of suit in Florida. He signed a standard form contract whose terms were non-negotiable and which appeared *490 in some respects to vary from the more favorable terms agreed to in earlier discussions. In fact, the final contract required a minimum monthly rent computed on a base far in excess of that discussed in oral negotiations. Burger King resisted price concessions, only to sue Rudzewicz far from home. In doing so, it severely impaired his ability to call Michigan witnesses who might be essential to his defense and counterclaim. "In sum, we hold that the circumstances of the Drayton Plains franchise and the negotiations which led to it left Rudzewicz bereft of reasonable notice and financially unprepared for the prospect of franchise litigation in Florida. Jurisdiction under these circumstances would offend the fundamental fairness which is the touchstone of due process." Accordingly, I respectfully dissent.
Justice Breyer	dissenting	false	Miller v. French	2000-06-19T00:00:00	null	https://www.courtlistener.com/opinion/118378/miller-v-french/	https://www.courtlistener.com/api/rest/v3/clusters/118378/	2,000	1999-078	1	5	4	The Prison Litigation Reform Act of 1995 (PLRA) says that "any party or intervener" may move to terminate any "prospective relief" previously granted by the court, 18 U.S. C. § 3626(b)(1) (1994 ed., Supp. IV), and that the court shall terminate (or modify) that relief unless it is "necessary to correct a current and ongoing violation of [a] Federal right, extends no further than necessary to correct the violation . . . [and is] the least intrusive means" to do so. 18 U.S. C. § 3626(b)(3). We here consider a related procedural provision of the PLRA. It says that "[a]ny motion to modify or terminate prospective relief . . . shall operate as a stay" of that prospective relief "during the period" beginning (no later than) the 90th day after the filing of the motion and ending when the motion is decided. § 3626(e)(2). This provision means 354 approximately the following: Suppose that a district court, in 1980, had entered an injunction governing present and future prison conditions. Suppose further that in 1996 a party filed a motion under the PLRA asking the court to terminate (or to modify) the 1980 injunction. That district court would have no more than 90 days to decide whether to grant the motion. After those 90 days, the 1980 injunction would terminate automaticallyregaining life only if, when, and to the extent that the judge eventually decided to deny the PLRA motion. The majority interprets the words "shall operate as a stay" to mean, in terms of my example, that the 1980 injunction must become ineffective after the 90th day, no matter what. The Solicitor General, however, believes that the view adopted by the majority interpretation is too rigid and calls into doubt the constitutionality of the provision. He argues that the statute is silent as to whether the district court can modify or suspend the operation of the automatic stay. He would find in that silence sufficient authority for the court to create an exception to the 90-day time limit where circumstances make it necessary to do so. As so read, the statute would neither displace the courts' traditional equitable authority nor raise significant constitutional difficulties. See Califano v. Yamasaki, 442 U.S. 682, 705 (1979) (only "clearest" congressional "command" displaces courts' traditional equity powers); Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988) (the Court will construe a statute to avoid constitutional problems "unless such construction is plainly contrary to the intent of Congress"). I agree with the Solicitor General and believe we should adopt that "`reasonable construction' " of the statute. Ibid. (quoting Hooper v. California, 155 U.S. 648, 657 (1895), stating "`every reasonable construction must be resorted to, in order to save a statute from unconstitutionality' "). 355 I At the outset, one must understand why a more flexible interpretation of the statute might be needed. To do so, one must keep in mind the extreme circumstances that at least some prison litigation originally sought to correct, the complexity of the resulting judicial decrees, and the potential difficulties arising out of the subsequent need to review those decrees in order to make certain they follow Congress' PLRA directives. A hypothetical example based on actual circumstances may help. In January 1979, a Federal District Court made 81 factual findings describing extremely poorindeed "barbaric and shocking"prison conditions in the Commonwealth of Puerto Rico. Morales Feliciano v. Romero Barcelo, 497 F. Supp. 14, 32 (PR 1979). These conditions included prisons typically operating with twice the number of prisoners they were designed to hold; inmates living in 16 square feet of space (i. e., only 4 feet by 4 feet); inmates without medical care, without psychiatric care, without beds, without mattresses, without hot water, without soap or towels or toothbrushes or underwear; food prepared on a budget of $1.50 per day and "tons of food . . . destroyed because of . . . rats, vermin, worms, and spoilage"; "no working toilets or showers," "urinals [that] flush into the sinks," "plumbing systems . . . in a state of collapse," and a "stench" that was "omnipresent"; "exposed wiring . . . no fire extinguisher, . . . [and] poor ventilation"; "calabozos," or dungeons, "like cages with bars on the top" or with two slits in a steel door opening onto a central corridor, the floors of which were "covered with raw sewage" and which contained prisoners with severe mental illnesses, "caged like wild animals," sometimes for months; areas of a prison where mentally ill inmates were "kept in cells naked, without beds, without mattresses, without any private possessions, and most of them without toilets that work and without drinking water." Id., at 20-23, 26- 356 27, 29, 32. These conditions had led to epidemics of communicable diseases, untreated mental illness, suicides, and murders. Id., at 32. The District Court held that these conditions amounted to constitutionally forbidden "cruel and unusual punishment." Id., at 33-36. It entered 30 specific orders designed to produce constitutionally mandated improvement by requiring the prison system to, for example, screen food handlers for communicable diseases, close the "calabozos," move mentally ill patients to hospitals, fix broken plumbing, and provide at least 35 square feet (i. e., 5 feet by 7 feet) of living space to each prisoner. Id., at 39-41. The very pervasiveness and seriousness of the conditions described in the court's opinion made those conditions difficult to cure quickly. Over the next decade, the District Court entered further orders embodied in 15 published opinions, affecting 21 prison institutions. These orders concerned, inter alia, overcrowding, security, disciplinary proceedings, prisoner classification, rehabilitation, parole, and drug addiction treatment. Not surprisingly, the related proceedings involved extensive evidence and argument consuming thousands of pages of transcript. See Morales Feliciano v. Romero Barcelo, 672 F. Supp. 591, 595 (PR 1986). Their implementation involved the services of two monitors, two assistants, and a Special Master. Along the way, the court documented a degree of "administrative chaos" in the prison system, Morales Feliciano v. Hernandez Colon, 697 F. Supp. 37, 44 (PR 1988), and entered findings of contempt of court against the Commonwealth, followed by the assessment and collection of more than $74 million in fines. See Morales Feliciano v. Hernandez Colon, 775 F. Supp. 487, 488, and n. 2 (PR 1991). Prison conditions subsequently have improved in some respects. Morales Feliciano v. Rossello Gonzalez, 13 F. Supp. 2d 151, 179 (PR 1998). I express no opinion as to whether, or which of, the earlier orders are still needed. But my 357 brief summary of the litigation should illustrate the potential difficulties involved in making the determination of continuing necessity required by the PLRA. Where prison litigation is as complex as the litigation I have just described, it may prove difficult for a district court to reach a fair and accurate decision about which orders remain necessary, and are the "least intrusive means" available, to prevent or correct a continuing violation of federal law. The orders, which were needed to resolve serious constitutional problems and may still be needed where compliance has not yet been assured, are complex, interrelated, and applicable to many different institutions. Ninety days might not provide sufficient time to ascertain the views of several different parties, including monitors, to allow them to present evidence, and to permit each to respond to the arguments and evidence of the others. It is at least possible, then, that the statute, as the majority reads it, would sometimes terminate a complex system of orders entered over a period of years by a court familiar with the local problemperhaps only to reinstate those orders later, when the termination motion can be decided. Such an automatic termination could leave constitutionally prohibited conditions unremedied, at least temporarily. Alternatively, the threat of termination could lead a district court to abbreviate proceedings that fairness would otherwise demand. At a minimum, the mandatory automatic stay would provide a recipe for uncertainty, as complex judicial orders that have long governed the administration of particular prison systems suddenly turn off, then (perhaps selectively) back on. So read, the statute directly interferes with a court's exercise of its traditional equitable authority, rendering temporarily ineffective pre-existing remedies aimed at correcting past, and perhaps ongoing, violations of the Constitution. That interpretation, as the majority itself concedes, might give rise to serious constitutional problems. Ante, at 350. 358 II The Solicitor General's more flexible reading of the statute avoids all these problems. He notes that the relevant language says that the motion to modify or terminate prospective relief "shall operate as a stay" after a period of 30 days, extendable for "good cause" to 90 days. 18 U.S. C. § 3626(e)(2); see also Brief for United States 12. The language says nothing, however, about the district court's power to modify or suspend the operation of the "stay." In the Solicitor General's view, the "stay" would determine the legal status quo; but the district court would retain its traditional equitable power to change that status quo once the party seeking the modification or suspension of the operation of the stay demonstrates that the stay "would cause irreparable injury, that the termination motion is likely to be defeated, and that the merits of the motion cannot be resolved before the automatic stay takes effect." Ibid. Where this is shown, the "court has discretion to suspend the automatic stay and require prison officials to comply with outstanding court orders until the court resolves the termination motion on the merits," id., at 12-13, subject to immediate appellate review, 18 U.S. C. § 3626(e)(4). Is this interpretation a "reasonable construction" of the statute? Edward J. DeBartolo Corp., 485 U. S., at 575. I note first that the statutory language is open to the Solicitor General's interpretation. A district court ordinarily can stay the operation of a judicial order (such as a stay or injunction), see Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 9-10, and n. 4 (1942), when a party demonstrates the need to do so in accordance with traditional equitable criteria (irreparable injury, likelihood of success on the merits, and a balancing of possible harms to the parties and the public, see Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975); Yakus v. United States, 321 U.S. 414, 440 (1944)). There is no logical inconsistency in saying both (1) a motion (to terminate) "shall operate as a stay," and (2) the court retains the power 359 to modify or delay the operation of the stay in appropriate circumstances. The statutory language says nothing about this last-mentioned power. It is silent. It does not direct the district court to leave the stay in place come what may. Nor does this more flexible interpretation deprive the procedural provision of meaning. The filing of the motion to terminate prospective relief will still, after a certain period, operate as a stay without further action by the court. Thus, the motion automatically changes the status quo and imposes upon the party wishing to suspend the automatic stay the burden of demonstrating strong, special reasons for doing so. The word "automatic" in the various subsection titles does not prove the contrary, for that word often means selfstarting, not unstoppable. See Websters Third New International Dictionary 148 (1993). Indeed, the Bankruptcy Act uses the words "automatic stay" to describe a provision stating that "a petition filed . . . operates as a stay" of certain other judicial proceedingsdespite the fact that a later portion of that same provision makes clear that under certain circumstances the bankruptcy court may terminate, annul, or modify the stay. 11 U.S. C. § 362(d); see also 143 Cong. Rec. S12269 (Nov. 9, 1997) (statement of Sen. Abraham) (explaining that § 3626(e)(2) was modeled after the Bankruptcy Act provision). And the Poultry Producers Financial Protection Act of 1987 specifies that a court of appeals decree affirming an order of the Secretary of Agriculture "shall operate as an injunction" restraining the "live poultry dealer" from violating that order, 7 U.S. C. § 228b-3(g); yet it appears that no one has ever suggested that a court of appeals lacks the power to modify that "injunction" where appropriate. Moreover, the change in the legal status quo that the automatic stay would bring about, and the need to demonstrate a special need to lift the stay (according to traditional equitable criteria), mean that the stay would remain in effect in all but highly unusual cases. 360 In addition, the surrounding procedural provisions are most naturally read as favoring the flexible interpretation. The immediately preceding provision requires the court to rule "promptly" upon the motion to terminate and says that "[m]andamus shall lie to remedy any failure to issue a prompt ruling." 18 U.S. C. § 3626(e)(1). If a motion to terminate takes effect automatically through the "stay" after 30 or 90 days, it is difficult to understand what purpose would be served by providing for mandamusa procedure that itself (in so complicated a matter) could take several weeks. But if the automatic stay might be modified or lifted in an unusual case, providing for mandamus makes considerable sense. It guarantees that an appellate court will make certain that unusual circumstances do in fact justify any such modification or lifting of the stay. A later provision that provides for immediate appeal of any order "staying, suspending, delaying, or barring the operation of the automatic stay" can be read as providing for similar appellate review for similar reasons. § 3626(e)(4). Further, the legislative history is neutral, for it is silent on this issue. Yet there is relevant judicial precedent. That precedent does not read statutory silence as denying judges authority to exercise their traditional equitable powers. Rather, it reads statutory silence as authorizing the exercise of those powers. This Court has said, for example, that "[o]ne thing is clear. Where Congress wished to deprive the courts of this historic power, it knew how to use apt words only once has it done so and in a statute born of the exigencies of war." Scripps-Howard, supra, at 17. Compare Lockerty v. Phillips, 319 U.S. 182, 186-187 (1943) (finding that courts were deprived of equity powers where the statute explicitly removed jurisdiction), with Scripps-Howard, supra, at 8-10 (refusing to read silence as depriving courts of their historic equity power), and Califano, 442 U. S., at 705-706 (same). These cases recognize the importance of permitting courts in equity cases to tailor relief, and related 361 relief procedure, to the exigencies of particular cases and individual circumstances. In doing so, they recognize the fact that in certain circumstances justice requires the flexibility necessary to treat different cases differentlythe rationale that underlies equity itself. Cf. Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944) ("The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case"). Finally, the more flexible interpretation is consistent with Congress' purposes as revealed in the statute. Those purposes include the avoidance of new judicial relief that is overly broad or no longer necessary and the reassessment of pre-existing relief to bring it into conformity with these standards. But Congress has simultaneously expressed its intent to maintain relief that is narrowly drawn and necessary to end unconstitutional practices. See 18 U.S. C. §§ 3626(a)(1), (a)(2), (b)(3). The statute, as flexibly interpreted, risks interfering with the first set of objectives only to the extent that the speedy appellate review provided in the statute fails to control district court error. The same interpretation avoids the improper provisional termination of relief that is constitutionally necessary. The risk of an occasional small additional delay seems a comparatively small price to pay (in terms of the statute's entire set of purposes) to avoid the serious constitutional problems that accompany the majority's more rigid interpretation. The upshot is a statute that, when read in light of its language, structure, purpose, and history, is open to an interpretation that would allow a court to modify or suspend the automatic stay when a party, in accordance with traditional equitable criteria, has demonstrated a need for such an exception. That interpretation reflects this Court's historic reluctance to read a statute as depriving courts of their traditional equitable powers. It also avoids constitutional difficulties that might arise in unusual cases. *362 I do not argue that this interpretation reflects the most natural reading of the statute's language. Nor do I assert that each individual legislator would have endorsed that reading at the time. But such an interpretation is a reasonable construction of the statute. That reading harmonizes the statute's language with other basic legal principles, including constitutional principles. And, in doing so, it better fits the full set of legislative objectives embodied in the statute than does the more rigid reading that the majority adopts. For these reasons, I believe that the Solicitor General's more flexible reading is the proper reading of the statute before us. I would consequently vacate the decision of the Court of Appeals and remand this action for further proceedings.	The Prison Litigation Reform Act of 1995 (PLRA) says that "any party or intervener" may move to terminate any "prospective relief" previously granted by the court, 18 U.S. C. 3626(b)(1) (1994 ed., Supp. IV), and that the court shall terminate (or modify) that relief unless it is "necessary to correct a current and ongoing violation of [a] Federal right, extends no further than necessary to correct the violation [and is] the least intrusive means" to do so. 18 U.S. C. 3626(b)(3). We here consider a related procedural provision of the PLRA. It says that "[a]ny motion to modify or terminate prospective relief shall operate as a stay" of that prospective relief "during the period" beginning (no later than) the 90th day after the filing of the motion and ending when the motion is decided. 3626(e)(2). This provision means 354 approximately the following: Suppose that a district court, in 1980, had entered an injunction governing present and future prison conditions. Suppose further that in 1996 a party filed a motion under the PLRA asking the court to terminate (or to modify) the 1980 injunction. That district court would have no more than 90 days to decide whether to grant the motion. After those 90 days, the 1980 injunction would terminate automaticallyregaining life only if, when, and to the extent that the judge eventually decided to deny the PLRA motion. The majority interprets the words "shall operate as a stay" to mean, in terms of my example, that the 1980 injunction must become ineffective after the 90th day, no matter what. The Solicitor General, however, believes that the view adopted by the majority interpretation is too rigid and calls into doubt the constitutionality of the provision. He argues that the statute is silent as to whether the district court can modify or suspend the operation of the automatic stay. He would find in that silence sufficient authority for the court to create an exception to the 90-day time limit where circumstances make it necessary to do so. As so read, the statute would neither displace the courts' traditional equitable authority nor raise significant constitutional difficulties. See ; Edward J. DeBartolo I agree with the Solicitor General and believe we should adopt that "`reasonable construction' " of the statute. stating "`every reasonable construction must be resorted to, in order to save a statute from unconstitutionality' "). 355 I At the outset, one must understand why a more flexible interpretation of the statute might be needed. To do so, one must keep in mind the extreme circumstances that at least some prison litigation originally sought to correct, the complexity of the resulting judicial decrees, and the potential difficulties arising out of the subsequent need to review those decrees in order to make certain they follow Congress' PLRA directives. A hypothetical example based on actual circumstances may help. In January a Federal District Court made 81 factual findings describing extremely poorindeed "barbaric and shocking"prison conditions in the Commonwealth of Puerto Rico. Morales These conditions included prisons typically operating with twice the number of prisoners they were designed to hold; inmates living in 16 square feet of space (i. e., only 4 feet by 4 feet); inmates without medical care, without psychiatric care, without beds, without mattresses, without hot water, without soap or towels or toothbrushes or underwear; food prepared on a budget of $1.50 per day and "tons of food destroyed because of rats, vermin, worms, and spoilage"; "no working toilets or showers," "urinals [that] flush into the sinks," "plumbing systems in a state of collapse," and a "stench" that was "omnipresent"; "exposed wiring no fire extinguisher, [and] poor ventilation"; "calabozos," or dungeons, "like cages with bars on the top" or with two slits in a steel door opening onto a central corridor, the floors of which were "covered with raw sewage" and which contained prisoners with severe mental illnesses, "caged like wild animals," sometimes for months; areas of a prison where mentally ill inmates were "kept in cells naked, without beds, without mattresses, without any private possessions, and most of them without toilets that work and without drinking water." 26- 356 27, 29, These conditions had led to epidemics of communicable diseases, untreated mental illness, suicides, and murders. at The District Court held that these conditions amounted to constitutionally forbidden "cruel and unusual punishment." It entered 30 specific orders designed to produce constitutionally mandated improvement by requiring the prison system to, for example, screen food handlers for communicable diseases, close the "calabozos," move mentally ill patients to hospitals, fix broken plumbing, and provide at least 35 square feet (i. e., 5 feet by 7 feet) of living space to each prisoner. The very pervasiveness and seriousness of the conditions described in the court's opinion made those conditions difficult to cure quickly. Over the next decade, the District Court entered further orders embodied in 15 published opinions, affecting 21 prison institutions. These orders concerned, inter alia, overcrowding, security, disciplinary proceedings, prisoner classification, rehabilitation, parole, and drug addiction treatment. Not surprisingly, the related proceedings involved extensive evidence and argument consuming thousands of pages of transcript. See Morales Their implementation involved the services of two monitors, two assistants, and a Special Master. Along the way, the court documented a degree of "administrative chaos" in the prison system, Morales and entered findings of contempt of court against the Commonwealth, followed by the assessment and collection of more than $74 million in fines. See Morales Prison conditions subsequently have improved in some respects. Morales I express no opinion as to whether, or which of, the earlier orders are still needed. But my 357 brief summary of the litigation should illustrate the potential difficulties involved in making the determination of continuing necessity required by the PLRA. Where prison litigation is as complex as the litigation I have just described, it may prove difficult for a district court to reach a fair and accurate decision about which orders remain necessary, and are the "least intrusive means" available, to prevent or correct a continuing violation of federal law. The orders, which were needed to resolve serious constitutional problems and may still be needed where compliance has not yet been assured, are complex, interrelated, and applicable to many different institutions. Ninety days might not provide sufficient time to ascertain the views of several different parties, including monitors, to allow them to present evidence, and to permit each to respond to the arguments and evidence of the others. It is at least possible, then, that the statute, as the majority reads it, would sometimes terminate a complex system of orders entered over a period of years by a court familiar with the local problemperhaps only to reinstate those orders later, when the termination motion can be decided. Such an automatic termination could leave constitutionally prohibited conditions unremedied, at least temporarily. Alternatively, the threat of termination could lead a district court to abbreviate proceedings that fairness would otherwise demand. At a minimum, the mandatory automatic stay would provide a recipe for uncertainty, as complex judicial orders that have long governed the administration of particular prison systems suddenly turn off, then (perhaps selectively) back on. So read, the statute directly interferes with a court's exercise of its traditional equitable authority, rendering temporarily ineffective pre-existing remedies aimed at correcting past, and perhaps ongoing, violations of the Constitution. That interpretation, as the majority itself concedes, might give rise to serious constitutional problems. Ante, at 350. 358 II The Solicitor General's more flexible reading of the statute avoids all these problems. He notes that the relevant language says that the motion to modify or terminate prospective relief "shall operate as a stay" after a period of 30 days, extendable for "good cause" to 90 days. 18 U.S. C. 3626(e)(2); see also Brief for United States 12. The language says nothing, however, about the district court's power to modify or suspend the operation of the "stay." In the Solicitor General's view, the "stay" would determine the legal status quo; but the district court would retain its traditional equitable power to change that status quo once the party seeking the modification or suspension of the operation of the stay demonstrates that the stay "would cause irreparable injury, that the termination motion is likely to be defeated, and that the merits of the motion cannot be resolved before the automatic stay takes effect." Where this is shown, the "court has discretion to suspend the automatic stay and require prison officials to comply with outstanding court orders until the court resolves the termination motion on the merits," subject to immediate appellate review, 18 U.S. C. 3626(e)(4). Is this interpretation a "reasonable construction" of the statute? Edward J. DeBartolo 485 U. S., at I note first that the statutory language is open to the Solicitor General's interpretation. A district court ordinarily can stay the operation of a judicial order (such as a stay or injunction), see Radio, when a party demonstrates the need to do so in accordance with traditional equitable criteria ; 1 U.S. 414, 0 (19)). There is no logical inconsistency in saying both (1) a motion (to terminate) "shall operate as a stay," and (2) the court retains the power 359 to modify or delay the operation of the stay in appropriate circumstances. The statutory language says nothing about this last-mentioned power. It is silent. It does not direct the district court to leave the stay in place come what may. Nor does this more flexible interpretation deprive the procedural provision of meaning. The filing of the motion to terminate prospective relief will still, after a certain period, operate as a stay without further action by the court. Thus, the motion automatically changes the status quo and imposes upon the party wishing to suspend the automatic stay the burden of demonstrating strong, special reasons for doing so. The word "automatic" in the various subsection titles does not prove the contrary, for that word often means selfstarting, not unstoppable. See Websters Third New International Dictionary 148 (1993). Indeed, the Bankruptcy Act uses the words "automatic stay" to describe a provision stating that "a petition filed operates as a stay" of certain other judicial proceedingsdespite the fact that a later portion of that same provision makes clear that under certain circumstances the bankruptcy court may terminate, annul, or modify the stay. 11 U.S. C. 362(d); see also 143 Cong. Rec. S12269 (Nov. 9, 1997) (statement of Sen. Abraham) (explaining that 3626(e)(2) was modeled after the Bankruptcy Act provision). And the Poultry Producers Financial Protection Act of 1987 specifies that a court of appeals decree affirming an order of the Secretary of Agriculture "shall operate as an injunction" restraining the "live poultry dealer" from violating that order, 7 U.S. C. 228b-3(g); yet it appears that no one has ever suggested that a court of appeals lacks the power to modify that "injunction" where appropriate. Moreover, the change in the legal status quo that the automatic stay would bring about, and the need to demonstrate a special need to lift the stay (according to traditional equitable criteria), mean that the stay would remain in effect in all but highly unusual cases. 360 In addition, the surrounding procedural provisions are most naturally read as favoring the flexible interpretation. The immediately preceding provision requires the court to rule "promptly" upon the motion to terminate and says that "[m]andamus shall lie to remedy any failure to issue a prompt ruling." 18 U.S. C. 3626(e)(1). If a motion to terminate takes effect automatically through the "stay" after 30 or 90 days, it is difficult to understand what purpose would be served by providing for mandamusa procedure that itself (in so complicated a matter) could take several weeks. But if the automatic stay might be modified or lifted in an unusual case, providing for mandamus makes considerable sense. It guarantees that an appellate court will make certain that unusual circumstances do in fact justify any such modification or lifting of the stay. A later provision that provides for immediate appeal of any order "staying, suspending, delaying, or barring the operation of the automatic stay" can be read as providing for similar appellate review for similar reasons. 3626(e)(4). Further, the legislative history is neutral, for it is silent on this issue. Yet there is relevant judicial precedent. That precedent does not read statutory silence as denying judges authority to exercise their traditional equitable powers. Rather, it reads statutory silence as authorizing the exercise of those powers. This Court has said, for example, that "[o]ne thing is clear. Where Congress wished to deprive the courts of this historic power, it knew how to use apt words only once has it done so and in a statute born of the exigencies of war." Compare with and 2 U. S., at -706 These cases recognize the importance of permitting courts in equity cases to tailor relief, and related 361 relief procedure, to the exigencies of particular cases and individual circumstances. In doing so, they recognize the fact that in certain circumstances justice requires the flexibility necessary to treat different cases differentlythe rationale that underlies equity itself. Cf. Hecht 1 U.S. 1, 9 (19) Finally, the more flexible interpretation is consistent with Congress' purposes as revealed in the statute. Those purposes include the avoidance of new judicial relief that is overly broad or no longer necessary and the reassessment of pre-existing relief to bring it into conformity with these standards. But Congress has simultaneously expressed its intent to maintain relief that is narrowly drawn and necessary to end unconstitutional practices. See 18 U.S. C. 3626(a)(1), (a)(2), (b)(3). The statute, as flexibly interpreted, risks interfering with the first set of objectives only to the extent that the speedy appellate review provided in the statute fails to control district court error. The same interpretation avoids the improper provisional termination of relief that is constitutionally necessary. The risk of an occasional small additional delay seems a comparatively small price to pay (in terms of the statute's entire set of purposes) to avoid the serious constitutional problems that accompany the majority's more rigid interpretation. The upshot is a statute that, when read in light of its language, structure, purpose, and history, is open to an interpretation that would allow a court to modify or suspend the automatic stay when a party, in accordance with traditional equitable criteria, has demonstrated a need for such an exception. That interpretation reflects this Court's historic reluctance to read a statute as depriving courts of their traditional equitable powers. It also avoids constitutional difficulties that might arise in unusual cases. *362 I do not argue that this interpretation reflects the most natural reading of the statute's language. Nor do I assert that each individual legislator would have endorsed that reading at the time. But such an interpretation is a reasonable construction of the statute. That reading harmonizes the statute's language with other basic legal principles, including constitutional principles. And, in doing so, it better fits the full set of legislative objectives embodied in the statute than does the more rigid reading that the majority adopts. For these reasons, I believe that the Solicitor General's more flexible reading is the proper reading of the statute before us. I would consequently vacate the decision of the Court of Appeals and remand this action for further proceedings.
Justice Rehnquist	majority	false	Boyde v. California	1990-04-23T00:00:00	null	https://www.courtlistener.com/opinion/112386/boyde-v-california/	https://www.courtlistener.com/api/rest/v3/clusters/112386/	1,990	1989-043	1	5	4	This case requires us to decide whether two California jury instructions used in the penalty phase of petitioner's capital murder trial and in other California capital cases before each was modified in 1983 and 1985, respectively, are consistent with the requirements of the Eighth Amendment. We hold that they are. Petitioner Richard Boyde was found guilty by a jury in the robbery, kidnaping, and murder of Dickie Gibson, the night clerk at a 7-Eleven Store in Riverside, California. The State introduced evidence at trial that about 2:30 a.m. on January 15, 1981, Boyde entered the store and robbed the clerk at gunpoint of $33 from the cash register. Petitioner then 373 forced Gibson into a waiting car, which was driven by petitioner's nephew, and the three men drove to a nearby orange grove. There, Boyde brought Gibson into the grove and ordered him to kneel down with his hands behind his head. As Gibson begged for his life, Boyde shot him once in the back of the head and again in the forehead, killing him. The jury returned a special verdict that Boyde personally committed the homicide with "express malice aforethought and premeditation and deliberation." At the penalty phase of the trial, the jury was instructed, inter alia, in accordance with instructions 8.84.1 and 8.84.2, 1 California Jury Instructions, Criminal (4th ed. 1979) (CALJIC), both of which have since been amended. The former lists 11 factors that the jury "shall consider, take into account and be guided by" in determining whether to impose a sentence of death or life imprisonment.[1] The eleventh is a 374 "catch-all," factor (k), which reads: "Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime."[2] The court's concluding instruction, pursuant to CALJIC 8.84.2, again told the jury to consider all applicable aggravating and mitigating circumstances and followed with this direction: "If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole." (Emphasis added.) [3] After hearing 375 six days of testimony concerning the appropriate penalty, the jury returned a verdict imposing the sentence of death, and the trial court denied Boyde's motion to reduce the sentence. On appeal, the Supreme Court of California affirmed. 46 Cal. 3d 212, 758 P.2d 25 (1988). It rejected petitioner's contention that the jury instructions violated the Eighth Amendment because the so-called "unadorned version" of factor (k) did not allow the jury to consider mitigating evidence of his background and character. The court noted that all of the defense evidence at the penalty phase related to Boyde's background and character, that the jury was instructed to consider " `all of the evidence which has been received during any part of the trial of this case,' " and that the prosecutor "never suggested that the background and character evidence could not be considered." Id., at 251, 758 P.2d, at 47. Therefore, the court found it "inconceivable the jury would have believed that, though it was permitted to hear defendant's 376 background and character evidence and his attorney's lengthy argument concerning that evidence, it could not consider that evidence." Ibid. With regard to the "shall impose" language of CALJIC 8.84.2, the court agreed with petitioner that the instruction could not permissibly require a juror to vote for the death penalty " `unless, upon completion of the "weighing" process, he decides that death is the appropriate penalty under all the circumstances.' " 46 Cal. 3d, at 253, 758 P. 2d, at 48 (quoting People v. Brown, 40 Cal. 3d 512, 541, 726 P.2d 516, 532 (1985)). It concluded, however, that in this case "[t]he jury was adequately informed as to its discretion in determining whether death was the appropriate penalty." 46 Cal. 3d, at 253, 758 P. 2d, at 48. Three justices dissented from the court's affirmance of the death sentence. The dissenters argued that the mandatory feature of instruction 8.84.2 misled the jury into believing that it was required to impose the death penalty if the aggravating factors "outweighed" the mitigating factors, even though an individual juror might not have thought death was the appropriate penalty in this case. Id., at 257-266, 758 P.2d, at 51-57. We granted certiorari, 490 U.S. 1097 (1989), and now affirm. Petitioner reiterates in this Court his argument that the mandatory nature of former CALJIC 8.84.2 resulted in a sentencing proceeding that violated the Eighth Amendment, because the instruction prevented the jury from making an "individualized assessment of the appropriateness of the death penalty." See Penry v. Lynaugh, 492 U.S. 302, 319 (1989). Specifically, Boyde contends that the "shall impose" language of the jury instruction precluded the jury from evaluating the "absolute weight" of the aggravating circumstances and determining whether they justified the death penalty. He further asserts that the jury was prevented from deciding whether, in light of all the aggravating and mitigating evidence, death was the appropriate penalty. In response, the State argues that the sentencing proceeding was consistent 377 with the Eighth Amendment, because a reasonable juror would interpret the instruction as allowing for the exercise of discretion and moral judgment about the appropriate penalty in the process of weighing the aggravating and mitigating circumstances. We need not discuss petitioner's claim at length, because we conclude that it is foreclosed by our decision earlier this Term in Blystone v. Pennsylvania, ante, p. 299. In Blystone, we rejected a challenge to an instruction with similar mandatory language, holding that "[t]he requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence." Ante, at 307. Although Blystone, unlike Boyde, did not present any mitigating evidence at the penalty phase of his capital trial, the legal principle we expounded in Blystone clearly requires rejection of Boyde's claim as well, because the mandatory language of CALJIC 8.84.2 is not alleged to have interfered with the consideration of mitigating evidence. Petitioner suggests that the jury must have freedom to decline to impose the death penalty even if the jury decides that the aggravating circumstances "outweigh" the mitigating circumstances. But there is no such constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence "in an effort to achieve a more rational and equitable administration of the death penalty." Franklin v. Lynaugh, 487 U.S. 164, 181 (1988) (plurality opinion). Petitioner's claim that the "shall impose" language of CALJIC 8.84.2 unconstitutionally prevents "individualized assessment" by the jury is thus without merit. The second issue in this case is whether petitioner's capital sentencing proceedings violated the Eighth Amendment because the trial court instructed the jury in accordance with former CALJIC 8.84.1, including the "unadorned" factor (k). The Eighth Amendment requires that the jury be able to consider and give effect to all relevant mitigating evidence 378 offered by petitioner. See Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982); Penry, supra. In assessing the effect of a challenged jury instruction, we follow the familiar rule stated in Cupp v. Naughten, 414 U.S. 141 (1973): "In determining the effect of this instruction on the validity of respondent's conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U.S. 104, 107 (1926)." Id., at 146-147. Petitioner contends that none of the 11 statutory factors in CALJIC 8.84.1 allowed the jury to consider non-crime-related factors, such as his background and character, which might provide a basis for a sentence less than death. Nine of the factors, he argues, focused only on the immediate circumstances of the crime itself. Two others, factors (b) and (c), which center on the presence or absence of prior violent criminal activity and prior felony convictions, were in petitioner's view simply vehicles for the consideration of aggravating evidence not directly related to the crime. Finally, petitioner claims that the "catchall" factor (k) did not allow the jury to consider and give effect to non-crime-related mitigating evidence, because its language "[a]ny other circumstance which extenuates the gravity of the crime" limited the jury to other evidence that was related to the crime. The legal standard for reviewing jury instructions claimed to restrict impermissibly a jury's consideration of relevant evidence is less than clear from our cases. In Francis v. Franklin, 471 U.S. 307 (1985), we said that "[t]he question. . . is . . . what a reasonable juror could have understood the charge as meaning." Id., at 315-316 (emphasis added). See also Sandstrom v. Montana, 442 U.S. 510, 516-517 (1979). But our subsequent decisions, while sometimes purporting 379 to apply the Francis standard, have not adhered strictly to that formulation. In California v. Brown, 479 U.S. 538, 541-542 (1987), we made reference both to what a reasonable juror "could" have done and what he "would" have done. And two Terms ago in Mills v. Maryland, 486 U.S. 367 (1988), we alluded to at least three different inquiries for evaluating such a challenge: whether reasonable jurors "could have" drawn an impermissible interpretation from the trial court's instructions, id., at 375-376 (emphasis added); whether there is a "substantial possibility that the jury may have rested its verdict on the `improper' ground," id., at 377 (emphasis added); and how reasonable jurors "would have" applied and understood the instructions. Id., at 389 (WHITE, J., concurring) (emphasis added). Other opinions in the area likewise have produced a variety of tests and standards. See, e. g., Penry v. Lynaugh, 492 U. S., at 326 ("[A] reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence") (emphasis added); Franklin v. Lynaugh, supra, at 192 (STEVENS, J., dissenting) ("[N]either of the Special Issues as they would have been understood by reasonable jurors gave the jury the opportunity to consider petitioner's mitigating evidence") (emphasis added); see also Andres v. United States, 333 U.S. 740, 752 (1948) ("That reasonable men might derive a meaning from the instructions given other than the proper meaning . . . is probable") (emphasis added). Although there may not be great differences among these various phrasings, it is important to settle upon a single formulation for this Court and other courts to employ in deciding this kind of federal question. Our cases, understandably, do not provide a single standard for determining whether various claimed errors in instructing a jury require reversal of a conviction. In some instances, to be sure, we have held that "when a case is submitted to the jury on alternative 380 theories the unconstitutionality of any of the theories requires that the conviction be set aside. See, e. g., Stromberg v. California, 283 U.S. 359 (1931)." Leary v. United States, 395 U.S. 6, 31-32 (1969); see also Bachellar v. Maryland, 397 U.S. 564, 571 (1970). In those cases, a jury is clearly instructed by the court that it may convict a defendant on an impermissible legal theory, as well as on a proper theory or theories. Although it is possible that the guilty verdict may have had a proper basis, "it is equally likely that the verdict . . . rested on an unconstitutional ground," Bachellar, supra, at 571, and we have declined to choose between two such likely possibilities. In this case we are presented with a single jury instruction. The instruction is not concededly erroneous, nor found so by a court, as was the case in Stromberg v. California, 283 U.S. 359 (1931). The claim is that the instruction is ambiguous and therefore subject to an erroneous interpretation. We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. Although a defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction, a capital sentencing proceeding is not inconsistent with the Eighth Amendment if there is only a possibility of such an inhibition. This "reasonable likelihood" standard, we think, better accommodates the concerns of finality and accuracy than does a standard which makes the inquiry dependent on how a single hypothetical "reasonable" juror could or might have interpreted the instruction. There is, of course, a strong policy in favor of accurate determination of the appropriate sentence in a capital case, but there is an equally strong policy against retrials years after the first trial where the claimed error amounts to no more than speculation.[4] Jurors do not sit in 381 solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting. Applying this standard to factor (k) of CALJIC 8.84.1 standing alone, we think there is not a reasonable likelihood that Boyde's jurors interpreted the trial court's instructions to prevent consideration of mitigating evidence of background and character. The jury was instructed, according to factor (k), that "you shall consider . . . [a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime," and the term "extenuate" was defined by the court to mean "to lessen the seriousness of a crime as by giving an excuse." App. 34. Petitioner contends that this instruction did not permit the jury to give effect to evidence presented by psychologists, family, and friends of his impoverished and deprived childhood, his inadequacies as a school student, and his strength of character in the face of these obstacles. But as we explained last 382 Term in Penry v. Lynaugh: " `evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.' " 492 U.S., at 319 (quoting California v. Brown, 479 U. S., at 545 (O'CONNOR, J., concurring)) (emphasis added). Petitioner had an opportunity through factor (k) to argue that his background and character "extenuated" or "excused" the seriousness of the crime, and we see no reason to believe that reasonable jurors would resist the view, "long held by society," that in an appropriate case such evidence would counsel imposition of a sentence less than death. The instruction did not, as petitioner seems to suggest, limit the jury's consideration to "any other circumstance of the crime which extenuates the gravity of the crime." The jury was directed to consider any other circumstance that might excuse the crime, which certainly includes a defendant's background and character.[5] 383 Even were the language of the instruction less clear than we think, the context of the proceedings would have led reasonable jurors to believe that evidence of petitioner's background and character could be considered in mitigation. Other factors listed in CALJIC 8.84.1 allow for consideration of mitigating evidence not associated with the crime itself, such as the absence of prior criminal activity by a defendant, the absence of prior felony convictions, and youth. When factor (k) is viewed together with those instructions, it seems even more improbable that jurors would arrive at an interpretation that precludes consideration of all non-crime-related evidence. All of the defense evidence presented at the penalty phase four days of testimony consuming over 400 pages of trial transcript related to petitioner's background and character, and we think it unlikely that reasonable jurors would believe the court's instructions transformed all of this "favorable testimony into a virtual charade." California v. Brown, supra, at 542. The jury was instructed that it "shall consider all of the evidence which has been received during any part of the trial of this case," App. 33 (emphasis added), and in our view reasonable jurors surely would not have felt constrained by the factor (k) instruction to ignore all of the evidence 384 presented by petitioner during the sentencing phase. Presentation of mitigating evidence alone, of course, does not guarantee that a jury will feel entitled to consider that evidence. But the introduction without objection of volumes of mitigating evidence certainly is relevant to deciding how a jury would understand an instruction which is at worst ambiguous. This case is unlike those instances where we have found broad descriptions of the evidence to be considered insufficient to cure statutes or instructions which clearly directed the sentencer to disregard evidence. See, e. g., Hitchcock v. Dugger, 481 U.S. 393, 398-399 (1987) ("[I]t could not be clearer that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances . . ."); Lockett, 438 U. S., at 608 (plurality opinion) (Even under Ohio's "liberal" construction of the death penalty statute, "only the three factors specified in the statute can be considered in mitigation of the defendant's sentence"). Petitioner also asserts that arguments by the prosecutor immediately before the jury's sentencing deliberations reinforced an impermissible interpretation of factor (k) and made it likely that jurors would arrive at such an understanding. But arguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, see Tr. 3933, and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law. See Carter v. Kentucky, 450 U.S. 288, 302-304, and n. 20 (1981); Quercia v. United States, 289 U.S. 466, 470 (1933); Starr v. United States, 153 U.S. 614, 626 (1894). Arguments of counsel which misstate the law are subject to objection and to correction by the court. E. g., Greer v. Miller, 483 U.S. 756, 765-766, and n. 8 (1987). This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as 385 having the same force as an instruction from the court. And the arguments of counsel, like the instructions of the court, must be judged in the context in which they are made. Greer, supra, at 766; Darden v. Wainwright, 477 U.S. 168, 179 (1986); United States v. Young, 470 U.S. 1, 11-12 (1985); see also Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974) ("[A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations"). We find no objectionable prosecutorial argument in this case. Petitioner maintains that the prosecutor encouraged an intolerably narrow view of factor (k) when he argued to the jury that the mitigating evidence did not "suggest that [petitioner's] crime is less serious or that the gravity of the crime is any less," App. 24, and that "[n]othing I have heard lessens the seriousness of this crime." Id., at 29. But we agree with the Supreme Court of California, which was without dissent on this point, that "[a]lthough the prosecutor argued that in his view the evidence did not sufficiently mitigate Boyde's conduct, he never suggested that the background and character evidence could not be considered." 46 Cal. 3d, at 251, 758 P.2d, at 47. His principal tack was not to contend that background and character were irrelevant, but to urge the jury that despite petitioner's past difficulties, he must accept responsibility for his actions. See App. 28-30. Indeed, the prosecutor explicitly assumed that petitioner's character evidence was a proper factor in the weighing process, but argued that it was minimal in relation to the aggravating circumstances: "The Defendant can dance. The Defendant . . . may have some artistic talent. The Defendant may, in fact, have been good with children. During the course of twenty-four years, even on a basis of just random luck, you are going to have to have picked up something or 386A done something . . . we can all approve of, but if you consider that on the weight that goes against it, . . . it is not even close." Tr. 4820-4821 (emphasis added). Defense counsel also stressed a broad reading of factor (k) in his argument to the jury: "[I]t is almost a catchall phrase. Any other circumstance, and it means just that, any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse." App. 31.[6] In sum, we conclude there is not a reasonable likelihood that the jurors in petitioner's case understood the challenged instructions to preclude consideration of relevant mitigating evidence offered by petitioner. We thus hold that the giving of the jury instructions at issue in this case, former CALJIC 8.84.1 and 8.84.2, did not violate the Eighth and Fourteenth Amendments to the United States Constitution. The judgment of the Supreme Court of California is Affirmed.	This case requires us to decide whether two California jury instructions used in the penalty phase of petitioner's capital murder trial and in other California capital cases before each was modified in 1983 and respectively, are consistent with the requirements of the Eighth Amendment. We hold that they are. Petitioner Richard Boyde was found guilty by a jury in the robbery, kidnaping, and murder of Dickie Gibson, the night clerk at a 7-Eleven Store in Riverside, California. The State introduced evidence at trial that about 2:30 a.m. on January 15, 1981, Boyde entered the store and robbed the clerk at gunpoint of $33 from the cash register. Petitioner then 373 forced Gibson into a waiting car, which was driven by petitioner's nephew, and the three men drove to a nearby orange grove. There, Boyde brought Gibson into the grove and ordered him to kneel down with his hands behind his head. As Gibson begged for his life, Boyde shot him once in the back of the head and again in the forehead, killing him. The jury returned a special verdict that Boyde personally committed the homicide with "express malice aforethought and premeditation and deliberation." At the penalty phase of the trial, the jury was instructed, inter alia, in accordance with instructions 8.84.1 and 8.84.2, 1 California Jury Instructions, Criminal (CALJIC), both of which have since been amended. The former lists 11 factors that the jury "shall consider, take into account and be guided by" in determining whether to impose a sentence of death or life imprisonment.[1] The eleventh is a 374 "catch-all," factor (k), which reads: "Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime."[2] The court's concluding instruction, pursuant to CALJIC 8.84.2, again told the jury to consider all applicable aggravating and mitigating circumstances and followed with this direction: "If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole." (Emphasis added.) [3] After hearing 375 six days of testimony concerning the appropriate penalty, the jury returned a verdict imposing the sentence of death, and the trial court denied Boyde's motion to reduce the sentence. On appeal, the Supreme Court of California affirmed. It rejected petitioner's contention that the jury instructions violated the Eighth Amendment because the so-called "unadorned version" of factor (k) did not allow the jury to consider mitigating evidence of his background and character. The court noted that all of the defense evidence at the penalty phase related to Boyde's background and character, that the jury was instructed to consider " `all of the evidence which has been received during any part of the trial of this case,' " and that the prosecutor "never suggested that the background and character evidence could not be considered." Therefore, the court found it "inconceivable the jury would have believed that, though it was permitted to hear defendant's 376 background and character evidence and his attorney's lengthy argument concerning that evidence, it could not consider that evidence." With regard to the "shall impose" language of CALJIC 8.84.2, the court agreed with petitioner that the instruction could not permissibly require a juror to vote for the death penalty " `unless, upon completion of the "weighing" process, he decides that death is the appropriate penalty under all the circumstances.' " 758 P. 2d, at 48 ). It concluded, however, that in this case "[t]he jury was adequately informed as to its discretion in determining whether death was the appropriate penalty." 758 P. 2d, at 48. Three justices dissented from the court's affirmance of the death sentence. The dissenters argued that the mandatory feature of instruction 8.84.2 misled the jury into believing that it was required to impose the death penalty if the aggravating factors "outweighed" the mitigating factors, even though an individual juror might not have thought death was the appropriate penalty in this case. -57. We granted certiorari, and now affirm. Petitioner reiterates in this Court his argument that the mandatory nature of former CALJIC 8.84.2 resulted in a sentencing proceeding that violated the Eighth Amendment, because the instruction prevented the jury from making an "individualized assessment of the appropriateness of the death penalty." See Specifically, Boyde contends that the "shall impose" language of the jury instruction precluded the jury from evaluating the "absolute weight" of the aggravating circumstances and determining whether they justified the death penalty. He further asserts that the jury was prevented from deciding whether, in light of all the aggravating and mitigating evidence, death was the appropriate penalty. In response, the State argues that the sentencing proceeding was consistent 377 with the Eighth Amendment, because a reasonable juror would interpret the instruction as allowing for the exercise of discretion and moral judgment about the appropriate penalty in the process of weighing the aggravating and mitigating circumstances. We need not discuss petitioner's claim at length, because we conclude that it is foreclosed by our decision earlier this Term in Blystone v. Pennsylvania, ante, p. 299. In Blystone, we rejected a challenge to an instruction with similar mandatory language, holding that "[t]he requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence." Ante, at 307. Although Blystone, unlike Boyde, did not present any mitigating evidence at the penalty phase of his capital trial, the legal principle we expounded in Blystone clearly requires rejection of Boyde's claim as well, because the mandatory language of CALJIC 8.84.2 is not alleged to have interfered with the consideration of mitigating evidence. Petitioner suggests that the jury must have freedom to decline to impose the death penalty even if the jury decides that the aggravating circumstances "outweigh" the mitigating circumstances. But there is no such constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence "in an effort to achieve a more rational and equitable administration of the death penalty." Petitioner's claim that the "shall impose" language of CALJIC 8.84.2 unconstitutionally prevents "individualized assessment" by the jury is thus without merit. The second issue in this case is whether petitioner's capital sentencing proceedings violated the Eighth Amendment because the trial court instructed the jury in accordance with former CALJIC 8.84.1, including the "unadorned" factor (k). The Eighth Amendment requires that the jury be able to consider and give effect to all relevant mitigating evidence 378 offered by petitioner. See ; ; In assessing the effect of a challenged jury instruction, we follow the familiar rule stated in : "In determining the effect of this instruction on the validity of respondent's conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Petitioner contends that none of the 11 statutory factors in CALJIC 8.84.1 allowed the jury to consider non-crime-related factors, such as his background and character, which might provide a basis for a sentence less than death. Nine of the factors, he argues, focused only on the immediate circumstances of the crime itself. Two others, factors (b) and (c), which center on the presence or absence of prior violent criminal activity and prior felony convictions, were in petitioner's view simply vehicles for the consideration of aggravating evidence not directly related to the crime. Finally, petitioner claims that the "catchall" factor (k) did not allow the jury to consider and give effect to non-crime-related mitigating evidence, because its language "[a]ny other circumstance which extenuates the gravity of the crime" limited the jury to other evidence that was related to the crime. The legal standard for reviewing jury instructions claimed to restrict impermissibly a jury's consideration of relevant evidence is less than clear from our cases. In we said that "[t]he question. is what a reasonable juror could have understood the charge as meaning." See also But our subsequent decisions, while sometimes purporting 379 to apply the Francis standard, have not adhered strictly to that formulation. In -542 we made reference both to what a reasonable juror "could" have done and what he "would" have done. And two Terms ago in we alluded to at least three different inquiries for evaluating such a challenge: whether reasonable jurors "could have" drawn an impermissible interpretation from the trial court's instructions, ; whether there is a "substantial possibility that the jury may have rested its verdict on the `improper' ground," ; and how reasonable jurors "would have" applied and understood the instructions. Other opinions in the area likewise have produced a variety of tests and standards. See, e. g., ("[A] reasonable juror could well have believed that there was no vehicle for expressing the view that did not deserve to be sentenced to death based upon his mitigating evidence") ; ("[N]either of the Special Issues as they would have been understood by reasonable jurors gave the jury the opportunity to consider petitioner's mitigating evidence") ; see also Although there may not be great differences among these various phrasings, it is important to settle upon a single formulation for this Court and other courts to employ in deciding this kind of federal question. Our cases, understandably, do not provide a single standard for determining whether various claimed errors in instructing a jury require reversal of a conviction. In some instances, to be sure, we have held that "when a case is submitted to the jury on alternative 380 theories the unconstitutionality of any of the theories requires that the conviction be set aside. See, e. g.," ; see also In those cases, a jury is clearly instructed by the court that it may convict a defendant on an impermissible legal theory, as well as on a proper theory or theories. Although it is possible that the guilty verdict may have had a proper basis, "it is equally likely that the verdict rested on an unconstitutional ground," Bachellar, at and we have declined to choose between two such likely possibilities. In this case we are presented with a single jury instruction. The instruction is not concededly erroneous, nor found so by a court, as was the case in The claim is that the instruction is ambiguous and therefore subject to an erroneous interpretation. We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. Although a defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction, a capital sentencing proceeding is not inconsistent with the Eighth Amendment if there is only a possibility of such an inhibition. This "reasonable likelihood" standard, we think, better accommodates the concerns of finality and accuracy than does a standard which makes the inquiry dependent on how a single hypothetical "reasonable" juror could or might have interpreted the instruction. There is, of course, a strong policy in favor of accurate determination of the appropriate sentence in a capital case, but there is an equally strong policy against retrials years after the first trial where the claimed error amounts to no more than speculation.[4] Jurors do not sit in 381 solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting. Applying this standard to factor (k) of CALJIC 8.84.1 standing alone, we think there is not a reasonable likelihood that Boyde's jurors interpreted the trial court's instructions to prevent consideration of mitigating evidence of background and character. The jury was instructed, according to factor (k), that "you shall consider [a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime," and the term "extenuate" was defined by the court to mean "to lessen the seriousness of a crime as by giving an excuse." App. 34. Petitioner contends that this instruction did not permit the jury to give effect to evidence presented by psychologists, family, and friends of his impoverished and deprived childhood, his inadequacies as a school student, and his strength of character in the face of these obstacles. But as we explained last 382 Term in : " `evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.' " 492 U.S., at (quoting ) Petitioner had an opportunity through factor (k) to argue that his background and character "extenuated" or "excused" the seriousness of the crime, and we see no reason to believe that reasonable jurors would resist the view, "long held by society," that in an appropriate case such evidence would counsel imposition of a sentence less than death. The instruction did not, as petitioner seems to suggest, limit the jury's consideration to "any other circumstance of the crime which extenuates the gravity of the crime." The jury was directed to consider any other circumstance that might excuse the crime, which certainly includes a defendant's background and character.[5] 383 Even were the language of the instruction less clear than we think, the context of the proceedings would have led reasonable jurors to believe that evidence of petitioner's background and character could be considered in mitigation. Other factors listed in CALJIC 8.84.1 allow for consideration of mitigating evidence not associated with the crime itself, such as the absence of prior criminal activity by a defendant, the absence of prior felony convictions, and youth. When factor (k) is viewed together with those instructions, it seems even more improbable that jurors would arrive at an interpretation that precludes consideration of all non-crime-related evidence. All of the defense evidence presented at the penalty phase four days of testimony consuming over 400 pages of trial transcript related to petitioner's background and character, and we think it unlikely that reasonable jurors would believe the court's instructions transformed all of this "favorable testimony into a virtual charade." The jury was instructed that it "shall consider all of the evidence which has been received during any part of the trial of this case," App. 33 and in our view reasonable jurors surely would not have felt constrained by the factor (k) instruction to ignore all of the evidence 384 presented by petitioner during the sentencing phase. Presentation of mitigating evidence alone, of course, does not guarantee that a jury will feel entitled to consider that evidence. But the introduction without objection of volumes of mitigating evidence certainly is relevant to deciding how a jury would understand an instruction which is at worst ambiguous. This case is unlike those instances where we have found broad descriptions of the evidence to be considered insufficient to cure statutes or instructions which clearly directed the sentencer to disregard evidence. See, e. g., ; (Even under Ohio's "liberal" construction of the death penalty statute, "only the three factors specified in the statute can be considered in mitigation of the defendant's sentence"). Petitioner also asserts that arguments by the prosecutor immediately before the jury's sentencing deliberations reinforced an impermissible interpretation of factor (k) and made it likely that jurors would arrive at such an understanding. But arguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, see Tr. 3933, and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law. See ; ; Arguments of counsel which misstate the law are subject to objection and to correction by the court. E. g., This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as 385 having the same force as an instruction from the court. And the arguments of counsel, like the instructions of the court, must be judged in the context in which they are made. Greer, ; ; United U.S. 1, ; see also We find no objectionable prosecutorial argument in this case. Petitioner maintains that the prosecutor encouraged an intolerably narrow view of factor (k) when he argued to the jury that the mitigating evidence did not "suggest that [petitioner's] crime is less serious or that the gravity of the crime is any less," App. 24, and that "[n]othing I have heard lessens the seriousness of this crime." But we agree with the Supreme Court of California, which was without dissent on this point, that "[a]lthough the prosecutor argued that in his view the evidence did not sufficiently mitigate Boyde's conduct, he never suggested that the background and character evidence could not be considered." 46 Cal. 3d, His principal tack was not to contend that background and character were irrelevant, but to urge the jury that despite petitioner's past difficulties, he must accept responsibility for his actions. See App. 28-30. Indeed, the prosecutor explicitly assumed that petitioner's character evidence was a proper factor in the weighing process, but argued that it was minimal in relation to the aggravating circumstances: "The Defendant can dance. The Defendant may have some artistic talent. The Defendant may, in fact, have been good with children. During the course of twenty-four years, even on a basis of just random luck, you are going to have to have picked up something or 386A done something we can all approve of, but if you consider that on the weight that goes against it, it is not even close." Tr. 4820-4821 Defense counsel also stressed a broad reading of factor (k) in his argument to the jury: "[I]t is almost a catchall phrase. Any other circumstance, and it means just that, any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse." App. 31.[6] In sum, we conclude there is not a reasonable likelihood that the jurors in petitioner's case understood the challenged instructions to preclude consideration of relevant mitigating evidence offered by petitioner. We thus hold that the giving of the jury instructions at issue in this case, former CALJIC 8.84.1 and 8.84.2, did not violate the Eighth and Fourteenth Amendments to the United States Constitution. The judgment of the Supreme Court of California is Affirmed.
Justice Ginsburg	majority	false	Jefferson v. City of Tarrant	1997-12-09T00:00:00	null	https://www.courtlistener.com/opinion/118153/jefferson-v-city-of-tarrant/	https://www.courtlistener.com/api/rest/v3/clusters/118153/	1,997	1997-007	1	8	1	This case, still sub judice in Alabama, was brought to this Court too soon. We granted certiorari to consider whether the Alabama Wrongful Death Act, Ala. Code § 6-5410 (1993), governs recovery when a decedent's estate claims, under 42 U.S. C. § 1983, that the death in question resulted from a deprivation of federal rights. We do not decide that issue, however, because we conclude that we lack jurisdiction at the current stage of the proceedings. Congress has limited our review of state-court decisions to "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had." 28 U.S. C. § 1257(a). The decision we confront does not qualify as a "final judgment" within the meaning of § 1257(a). The Alabama Supreme Court decided the federal-law issue on an interlocutory certification from the trial court, then remanded the cause for further proceedings on petitioners' remaining state-law claims. The outcome of those further proceedings could moot the federal question we agreed to decide. If the federal question does not become moot, petitioners will be free 78 to seek our review when the state-court proceedings reach an end. We accordingly dismiss the writ for want of a final judgment. I Petitioners commenced this action against the city of Tarrant, Alabama (City), to recover damages for the death of Alberta Jefferson. Ms. Jefferson, an African-American woman, died in a fire at her Tarrant City home on December 4, 1993. Petitioners' complaint, App. 1-11, alleges that the City firefighters did not attempt to rescue Ms. Jefferson promptly after they arrived on the scene, nor did they try to revive her when they carried her from her house. The complaint further alleges that these omissions resulted from "the selective denial of fire protection to disfavored minorities," id., at 6, and proximately caused Ms. Jefferson's death. The City, however, maintains that the Tarrant Fire Department responded to the alarm call as quickly as possible and that Ms. Jefferson had already died by the time the firefighters arrived. Petitioners Melvin, Leon, and Benjamin Jefferson, as administrator and survivors of Alberta Jefferson, filed their complaint against Tarrant City in an Alabama Circuit Court on June 21, 1994. The Jeffersons asserted two claims under state law: one for wrongful death, and the other for the common-law tort of outrage. They also asserted two claims under 42 U.S. C. § 1983: one alleging that Alberta Jefferson's death resulted from the deliberate indifference of the City and its agents, in violation of the Due Process Clause of the Fourteenth Amendment, and the other alleging that Ms. Jefferson's death resulted from a practice of invidious racial discrimination, in violation of the Fourteenth Amendment's Equal Protection Clause. In June 1995, the City moved for judgment on the pleadings on the § 1983 claims and for summary judgment on all claims. In its motion for judgment on the pleadings, the 79 City argued that the survival remedy provided by the Alabama Wrongful Death Act governed the Jeffersons' potential recovery for the City's alleged constitutional torts.[1] For this argument, the City relied on Robertson v. Wegmann, 436 U.S. 584, 588-590 (1978). In that case, we held that 42 U.S. C. § 1988(a) requires the application of state-law survival remedies in § 1983 actions unless those remedies are "`inconsistent with the Constitution and laws of the United States.' " The Alabama Supreme Court had interpreted the State's Wrongful Death Act as providing a punitive damages remedy only. See, e. g., Geohagen v. General Motors Corp., 279 So. 2d 436, 438-439 (1973). But § 1983 plaintiffs may not recover punitive damages against a municipality. See Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). Hence, according to respondent, petitioners could obtain no damages against the City under § 1983. The Alabama trial court denied the summary judgment motion in its entirety, and it denied in part the motion for judgment on the pleadings. As to the latter motion, the court ruled that, notwithstanding the punitive-damages-only limitation in the state Wrongful Death Act, the Jeffersons could recover compensatory damages upon proof that the City violated Alberta Jefferson's constitutional rights. The trial court certified the damages question for immediate review, and the Alabama Supreme Court granted the City permission 80 to appeal from the denial of its motion for judgment on the pleadings.[2] On the interlocutory appeal, the Alabama Supreme Court reversed. 682 So. 2d 29 (1996). Relying on its earlier opinion in Carter v. Birmingham, 444 So. 2d 373 (1983), the court held that the state Act, including its allowance of punitive damages only, governed petitioners' potential recovery on their § 1983 claims. The court remanded "for further proceedings consistent with [its] opinion." 682 So. 2d, at 31. Dissenting Justices Houston and Cook would have affirmed the trial court's ruling. We granted certiorari to resolve the following question: "Whether, when a decedent's death is alleged to have resulted from a deprivation of federal rights occurring in Alabama, the Alabama Wrongful Death Act, Ala. Code § 6-5410 (1993), governs the recovery by the representative of the decedent's estate under 42 U.S. C. § 1983?" 520 U.S. 1154 (1997). In its brief on the merits, respondent for the first time raised a nonwaivable impediment: The City asserted that we lack jurisdiction to review the interlocutory order of the Alabama Supreme Court. We agree, and we now dismiss the writ of certiorari as improvidently granted. II From the earliest days of our judiciary, Congress has vested in this Court authority to review federal-question decisions made by state courts. For just as long, Congress has limited that power to cases in which the State's judgment is final. See Judiciary Act of 1789, § 25, 1 Stat. 85. The current 81 statute regulating our jurisdiction to review state-court decisions provides: "Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States." 28 U.S. C. § 1257(a). This provision establishes a firm final judgment rule. To be reviewable by this Court, a state-court judgment must be final "in two senses: it must be subject to no further review or correction in any other state tribunal; it must also be final as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein. It must be the final word of a final court." Market Street R. Co. v. Railroad Comm'n of Cal., 324 U.S. 548, 551 (1945). As we have recognized, the finality rule "is not one of those technicalities to be easily scorned. It is an important factor in the smooth working of our federal system." Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 124 (1945). The Alabama Supreme Court's decision was not a "final judgment." It was avowedly interlocutory. Far from terminating the litigation, the court answered a single certified question that affected only two of the four counts in petitioners' complaint. The court then remanded the case for further proceedings. Absent settlement or further dispositive motions, the proceedings on remand will include a trial on the merits of the state-law claims. In the relevant respect, this case is identical to O'Dell v. Espinoza, 456 U.S. 430 82 (1982) (per curiam), where we dismissed the writ of certiorari for want of jurisdiction. See ibid. ("Because the Colorado Supreme Court remanded this case for trial, its decision is not final `as an effective determination of the litigation.' " (citation omitted)). Petitioners contend that this case comes within the "limited set of situations in which we have found finality as to the federal issue despite the ordering of further proceedings in the lower state courts." Ibid. We do not agree. This is not a case in which "the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings." Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 480 (1975). Resolution of the state-law claims could effectively moot the federal-law question raised here. Most notably, the City maintains that its fire department responded promptly to the call reporting that Ms. Jefferson's residence was in flames, but that Ms. Jefferson was already dead when they arrived. On the City's view of the facts, its personnel could have done nothing more to save Ms. Jefferson's life. See App. 45-47. If the City prevails on this account of the facts, then any § 1983 claim will necessarily fail, however incorrect the Alabama Supreme Court's ruling, for the City will have established that its actions did not cause Ms. Jefferson's death. Nor is this an instance "where the federal claim has been finally decided, with further proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case." Cox Broadcasting Corp. v. Cohn, 420 U. S., at 481. If the Alabama Supreme Court's decision on the federal claim ultimately makes a difference to the Jeffersonsin particular, if they prevail on their state claims but recover less than they might have under federal law, or if their state claims fail for reasons that do not also dispose of their federal claimsthey will be free to seek our review once the statecourt 83 litigation comes to an end. Even if the Alabama Supreme Court adheres to its interlocutory ruling as "law of the case," that determination will in no way limit our ability to review the issue on final judgment. See, e. g., Hathorn v. Lovorn, 457 U.S. 255, 261-262 (1982); see also R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 642 (4th ed. 1996) ("If a state court judgment is not final for purposes of Supreme Court review, the federal questions it determines will (if not mooted) be open in the Supreme Court on later review of the final judgment, whether or not under state law the initial adjudication is the law of the case on the second state review."); R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice 104-105 (7th ed. 1993) (citing cases). We acknowledge that one of our prior decisions might be read to support the view that parties in the Jeffersons' situation need not present their federal questions to the state courts a second time before obtaining review in this Court. See Pennsylvania v. Ritchie, 480 U.S. 39, 49, n. 7 (1987) (declining to require the petitioner "to raise a fruitless Sixth Amendment claim in the trial court, the Superior Court, and the Pennsylvania Supreme Court still another time before we regrant certiorari on the question that is now before us"). In Ritchie, we permitted immediate review of a Pennsylvania Supreme Court ruling that required the Commonwealth's Children and Youth Services (CYS) to disclose to a criminal defendant the contents of a child protective service file regarding a key witness. The Court asserted jurisdiction in that case because of the "unusual" situation presented: We doubted whether there would be any subsequent opportunity to raise the federal questions, see ibid., and we were reluctant to put the CYS in the bind of either disclosing a confidential file or being held in contempt, see id., at 49. Ritchie is an extraordinary case and we confine it to the precise circumstances the Court there confronted. We now clarify that Ritchie does not augur expansion of the exceptions 84 stated in Cox Broadcasting Corp., and we reject any construction of Ritchie that would contradict this opinion. This case fits within no exceptional category. It presents the typical situation in which the state courts have resolved some but not all of petitioners' claims. Our jurisdiction therefore founders on the rule that a state-court decision is not final unless and until it has effectively determined the entire litigation. Because the Alabama Supreme Court has not yet rendered a final judgment, we lack jurisdiction to review its decision on the Jeffersons' § 1983 claims. * * For the reasons stated, the writ of certiorari is dismissed for want of jurisdiction. It is so ordered.	This case, still sub judice in Alabama, was brought to this Court too soon. We granted certiorari to consider whether the Alabama Wrongful Death Act, 410 (1993), governs recovery when a decedent's estate claims, under 42 U.S. C. that the death in question resulted from a deprivation of federal rights. We do not decide that issue, however, because we conclude that we lack jurisdiction at the current stage of the proceedings. Congress has limited our review of state-court decisions to "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had." 28 U.S. C. 1257(a). The decision we confront does not qualify as a "final judgment" within the meaning of 1257(a). The Alabama Supreme Court decided the federal-law issue on an interlocutory certification from the trial court, then remanded the cause for further proceedings on petitioners' remaining state-law claims. The outcome of those further proceedings could moot the federal question we agreed to decide. If the federal question does not become moot, petitioners will be free 78 to seek our review when the state-court proceedings reach an end. We accordingly dismiss the writ for want of a final judgment. I Petitioners commenced this action against the city of Tarrant, Alabama (City), to recover damages for the death of Alberta Jefferson. Ms. Jefferson, an African-American woman, died in a fire at her Tarrant City home on December 4, 1993. Petitioners' complaint, App. 1-11, alleges that the City firefighters did not attempt to rescue Ms. Jefferson promptly after they arrived on the scene, nor did they try to revive her when they carried her from her house. The complaint further alleges that these omissions resulted from "the selective denial of fire protection to disfavored minorities," and proximately caused Ms. Jefferson's death. The City, however, maintains that the Tarrant Fire Department responded to the alarm call as quickly as possible and that Ms. Jefferson had already died by the time the firefighters arrived. Petitioners Melvin, Leon, and Benjamin Jefferson, as administrator and survivors of Alberta Jefferson, filed their complaint against Tarrant City in an Alabama Circuit Court on June 21, 1994. The Jeffersons asserted two claims under state law: one for wrongful death, and the other for the common-law tort of outrage. They also asserted two claims under 42 U.S. C. : one alleging that Alberta Jefferson's death resulted from the deliberate indifference of the City and its agents, in violation of the Due Process Clause of the Fourteenth Amendment, and the other alleging that Ms. Jefferson's death resulted from a practice of invidious racial discrimination, in violation of the Fourteenth Amendment's Equal Protection Clause. In June 1995, the City moved for judgment on the pleadings on the claims and for summary judgment on all claims. In its motion for judgment on the pleadings, the 79 City argued that the survival remedy provided by the Alabama Wrongful Death Act governed the Jeffersons' potential recovery for the City's alleged constitutional torts.[1] For this argument, the City relied on In that case, we held that 42 U.S. C. 1988(a) requires the application of state-law survival remedies in actions unless those remedies are "`inconsistent with the Constitution and laws of the United States.' " The Alabama Supreme Court had interpreted the State's Wrongful Death Act as providing a punitive damages remedy only. See, e. g., But plaintiffs may not recover punitive damages against a municipality. See Hence, according to respondent, petitioners could obtain no damages against the City under The Alabama trial court denied the summary judgment motion in its entirety, and it denied in part the motion for judgment on the pleadings. As to the latter motion, the court ruled that, notwithstanding the punitive-damages-only limitation in the state Wrongful Death Act, the Jeffersons could recover compensatory damages upon proof that the City violated Alberta Jefferson's constitutional rights. The trial court certified the damages question for immediate review, and the Alabama Supreme Court granted the City permission 80 to appeal from the denial of its motion for judgment on the pleadings.[2] On the interlocutory appeal, the Alabama Supreme Court reversed. Relying on its earlier opinion in the court held that the state Act, including its allowance of punitive damages only, governed petitioners' potential recovery on their claims. The court remanded "for further proceedings consistent with [its] opinion." Dissenting Justices Houston and Cook would have affirmed the trial court's ruling. We granted certiorari to resolve the following question: "Whether, when a decedent's death is alleged to have resulted from a deprivation of federal rights occurring in Alabama, the Alabama Wrongful Death Act, 410 (1993), governs the recovery by the representative of the decedent's estate under 42 U.S. C. ?" In its brief on the merits, respondent for the first time raised a nonwaivable impediment: The City asserted that we lack jurisdiction to review the interlocutory order of the Alabama Supreme Court. We agree, and we now dismiss the writ of certiorari as improvidently granted. II From the earliest days of our judiciary, Congress has vested in this Court authority to review federal-question decisions made by state courts. For just as long, Congress has limited that power to cases in which the State's judgment is final. See Judiciary Act of 1789, 25, The current 81 statute regulating our jurisdiction to review state-court decisions provides: "Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States." 28 U.S. C. 1257(a). This provision establishes a firm final judgment rule. To be reviewable by this Court, a state-court judgment must be final "in two senses: it must be subject to no further review or correction in any other state tribunal; it must also be final as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein. It must be the final word of a final court." Market Street R. As we have recognized, the finality rule "is not one of those technicalities to be easily scorned. It is an important factor in the smooth working of our federal system." Radio Station WOW, The Alabama Supreme Court's decision was not a "final judgment." It was avowedly interlocutory. Far from terminating the litigation, the court answered a single certified question that affected only two of the four counts in petitioners' complaint. The court then remanded the case for further proceedings. Absent settlement or further dispositive motions, the proceedings on remand will include a trial on the merits of the state-law claims. In the relevant respect, this case is identical to where we dismissed the writ of certiorari for want of jurisdiction. See ("Because the Colorado Supreme Court remanded this case for trial, its decision is not final `as an effective determination of the litigation.' " (citation omitted)). Petitioners contend that this case comes within the "limited set of situations in which we have found finality as to the federal issue despite the ordering of further proceedings in the lower state courts." We do not agree. This is not a case in which "the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings." Cox Broadcasting Resolution of the state-law claims could effectively moot the federal-law question raised here. Most notably, the City maintains that its fire department responded promptly to the call reporting that Ms. Jefferson's residence was in flames, but that Ms. Jefferson was already dead when they arrived. On the City's view of the facts, its personnel could have done nothing more to save Ms. Jefferson's life. See App. 45-47. If the City prevails on this account of the facts, then any claim will necessarily fail, however incorrect the Alabama Supreme Court's ruling, for the City will have established that its actions did not cause Ms. Jefferson's death. Nor is this an instance "where the federal claim has been finally decided, with further proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case." Cox Broadcasting If the Alabama Supreme Court's decision on the federal claim ultimately makes a difference to the Jeffersonsin particular, if they prevail on their state claims but recover less than they might have under federal law, or if their state claims fail for reasons that do not also dispose of their federal claimsthey will be free to seek our review once the statecourt 83 litigation comes to an end. Even if the Alabama Supreme Court adheres to its interlocutory ruling as "law of the case," that determination will in no way limit our ability to review the issue on final judgment. See, e. g., ; see also R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 642 ("If a state court judgment is not final for purposes of Supreme Court review, the federal questions it determines will (if not mooted) be open in the Supreme Court on later review of the final judgment, whether or not under state law the initial adjudication is the law of the case on the second state review."); R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice 104-105 (7th ed. 1993) (citing cases). We acknowledge that one of our prior decisions might be read to support the view that parties in the Jeffersons' situation need not present their federal questions to the state courts a second time before obtaining review in this Court. See U.S. 39, In Ritchie, we permitted immediate review of a Pennsylvania Supreme Court ruling that required the Commonwealth's Children and Youth Services (CYS) to disclose to a criminal defendant the contents of a child protective service file regarding a key witness. The Court asserted jurisdiction in that case because of the "unusual" situation presented: We doubted whether there would be any subsequent opportunity to raise the federal questions, see ib and we were reluctant to put the CYS in the bind of either disclosing a confidential file or being held in contempt, see Ritchie is an extraordinary case and we confine it to the precise circumstances the Court there confronted. We now clarify that Ritchie does not augur expansion of the exceptions 84 stated in Cox Broadcasting Corp., and we reject any construction of Ritchie that would contradict this opinion. This case fits within no exceptional category. It presents the typical situation in which the state courts have resolved some but not all of petitioners' claims. Our jurisdiction therefore founders on the rule that a state-court decision is not final unless and until it has effectively determined the entire litigation. Because the Alabama Supreme Court has not yet rendered a final judgment, we lack jurisdiction to review its decision on the Jeffersons' claims. * * * For the reasons stated, the writ of certiorari is dismissed for want of jurisdiction. It is so ordered.

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