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Justice White | 1,973 | 6 | majority | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | by Congressmen, these officials enjoy the protection of the Speech or Debate Clause. Our inquiry here, however, is whether, if they participate in publication and distribution beyond the legislative sphere, and thus beyond the protection of the Speech or Debate Clause, they are nevertheless protected by the doctrine of official immunity. Our starting point is at least a minimum familiarity with their functions and duties. *321 The statutes of the United created the office of Public Printer to manage and supervise the Government Printing Office, which, with certain exceptions, is the authorized printer for the various branches of the Federal Government. 44 U.S. C. 301. "Printing or binding may be done at the Government Printing Office only when authorized by law." 501. The Public Printer is authorized to do printing for Congress, 701-741, 901-910, as well as for the Executive and Judicial Branches of Government, 1101-1123. The Public Printer is authorized to appoint the Superintendent of Documents with duties concerning the distribution and sale of documents. 1701-1722. Under the applicable statutes, when either House of Congress orders a document printed, the Public Printer is to print the "usual number" unless a greater number is ordered. 701. The "usual number" is 1,682, to be divided between bound and unbound copies and distributed to named officers or offices of the House and Senate, to the Library of Congress, and to the Superintendent of Documents for further distribution "to the State libraries and designated depositories." [14] There are also statutory provisions for the printing of extra copies, 702, bills and resolutions, 706-708, public and private laws, postal conventions, and treaties, 709-712, journals, 713, the Congressional Directory, 721-722, memorial addresses, 723-724, and the Statutes at Large, 728-729. Section 733 provides that "[t]he Public Printer on order of a Member of Congress, on prepayment of the cost, may reprint documents and reports of committees together with the evidence papers submitted, or any part ordered printed by the Congress." *322 With respect to printing for the Executive and Judicial Branches, it is provided that "[a] head of an executive department may not cause to be printed, and the Public Printer may not print, a document or matter unless it is authorized by law and necessary to the public business." 1102 (a). The executive departments and the courts are to requisition printing by certifying that it is "necessary for the public service." 1103. The Superintendent of Documents has charge of the distribution of all public documents except those printed for use of the executive departments, "which shall be delivered to the departments," and for either House of |
Justice White | 1,973 | 6 | majority | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | be delivered to the departments," and for either House of Congress, "which shall be delivered to the Senate Service Department and House of Representatives Publications Distribution Service." 1702. He is thus in charge of the public sale and distribution of documents. The Public Printer is instructed to "print additional copies of a Government publication, not confidential in character, required for sale to the public by the Superintendent of Documents," subject to regulation by the Joint Committee on Printing. 1705. It is apparent that under this statutory framework, the printing of documents and their general distribution to the public would be "within the outer perimeter" of the statutory duties of the Public Printer and the Superintendent of Documents. Barr v. Thus, if official immunity automatically attaches to any conduct expressly or impliedly authorized by law, the Court of Appeals correctly dismissed the complaint against these officials. This, however, is not the governing rule. The duties of the Public Printer and his appointee, the Superintendent of Documents, are to print, handle, distribute, and sell Government documents. The Government Printing Office acts as a service organization for the branches of the Government. What it prints is produced *323 elsewhere and is printed and distributed at the direction of the Congress, the departments, the independent agencies and offices, or the Judicial Branch of the Government. The Public Printer and Superintendent of Documents exercise discretion only with respect to estimating the demand for particular documents and adjusting the supply accordingly. The existence of a Public Printer makes it unnecessary for every Government agency and office to have a printer of its own. The Printing Office is independently created and manned and invested with its own statutory duties; but, we do not think that its independent establishment carries with it an independent immunity. Rather, the Printing Office is immune from suit when it prints for an executive department for example, only to the extent that it would be if it were part of the department itself or, in other words, to the extent that the department head himself would be immune if he ran his own printing press and distributed his own documents. To hold otherwise would mean that an executive department could acquire immunity for non-immune materials merely by presenting the proper certificate to the Public Printer, who would then have the duty to print the material. Under such a holding, the department would have a seemingly fool-proof method for manufacturing immunity for materials which the court would not otherwise hold immune if not sufficiently connected with the "official duties" of the department. Congress has |
Justice White | 1,973 | 6 | majority | Doe v. McMillan | https://www.courtlistener.com/opinion/108802/doe-v-mcmillan/ | connected with the "official duties" of the department. Congress has conferred no express statutory immunity on the Public Printer or the Superintendent of Documents. Congress has not provided that these officials should be immune for printing and distributing materials where those who author the materials would not be. We thus face no statutory or constitutional problems in interpreting this doctrine of "judicial making." 360 U. S., We do, however, write in the *324 shadow of Board of Regents of State and where the Court advised caution "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him" We conclude that, for the purposes of the judicially fashioned doctrine of immunity, the Public Printer and the Superintendent of Documents are no more free from suit in the case before us than would be a legislative aide who made copies of the materials at issue and distributed them to the public at the direction of his superiors. See The scope of inquiry becomes equivalent to the inquiry in the context of the Speech or Debate Clause, and the answer is the same. The business of Congress is to legislate; Congressmen and aides are absolutely immune when they are legislating. But when they act outside the "sphere of legitimate legislative activity," 341 U. S., they enjoy no special immunity from local laws protecting the good name or the reputation of the ordinary citizen. Because we think the Court of Appeals applied the immunities of the Speech or Debate Clause and of the doctrine of official immunity too broadly, we must reverse its judgment and remand the case for appropriate further proceedings.[15] We are unaware, from this record, of the extent of the publication and distribution of the report which has taken place to date. Thus, we have little basis for judging whether the legitimate legislative needs of Congress, and hence the limits of immunity, *325 have been exceeded. These matters are for the lower courts in the first instance. Of course, like the Court of Appeals, we indicate nothing as to whether petitioners have pleaded a good cause of action or whether respondents have other defenses, constitutional or otherwise. We have dealt only with the threshold question of immunity.[16] The judgment of the Court of Appeals is reversed in part and affirmed in part, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. So ordered. MR. JUSTICE DOUGLAS, whom MR. JUSTICE BRENNAN and MR. |
Justice Stevens | 1,983 | 16 | majority | Associated Gen. Contractors of Cal., Inc. v. Carpenters | https://www.courtlistener.com/opinion/110831/associated-gen-contractors-of-cal-inc-v-carpenters/ | This case arises out of a dispute between parties to a multiemployer collective-bargaining agreement. The plaintiff unions allege that, in violation of the antitrust laws, the multiemployer association and its members coerced certain third parties, as well as some of the association's members, to enter into business relationships with nonunion firms. This coercion, according to the complaint, adversely affected the trade of certain unionized firms and thereby restrained the *521 business activities of the unions. The question presented is whether the complaint sufficiently alleges that the unions have been "injured in [their] business or property by reason of anything forbidden in the antitrust laws" and may therefore recover treble damages under of the Clayton Act. 15 U.S. C. 15. Unlike the majority of the Court of Appeals for the Ninth Circuit, we agree with the District Court's conclusion that the complaint is insufficient. I The two named plaintiffs (the Union) the California State Council of Carpenters and the Carpenters 6 Northern Counties Conference Board are affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. The Union represents more than 50,000 individuals employed by the defendants in the carpentry, drywall, piledriving, and related industries throughout the State of California. The Union's complaint is filed as a class action on behalf of numerous affiliated local unions and district councils. The defendants are Associated General Contractors of California, (Associated), a membership corporation composed of various building and construction contractors, approximately 250 members of Associated who are identified by name in an exhibit attached to the complaint, and 1,000 unidentified co-conspirators. The Union and Associated, and their respective predecessors, have been parties to collective-bargaining agreements governing the terms and conditions of employment in construction-related industries in California for over 25 years. The wages and other benefits paid pursuant to these agreements amount to more than $750 million per year. In addition, approximately 3,000 contractors who are not members of Associated have entered into separate "memorandum agreements" with the Union, which bind them to the terms of the master collective-bargaining agreements between the Union and Associated. The amended complaint does not *522 state the number of nonsignatory employers or the number of nonunion employees who are active in the relevant market. In paragraphs 23 and 2 of the amended complaint, the Union alleges the factual basis for five different damages claims.[1] Paragraph 23 alleges generally that the defendants conspired to abrogate and weaken the collective-bargaining relationship between the Union and the signatory employers. In seven subsections, paragraph 2 sets forth activities allegedly committed pursuant to the conspiracy. The most specific |
Justice Stevens | 1,983 | 16 | majority | Associated Gen. Contractors of Cal., Inc. v. Carpenters | https://www.courtlistener.com/opinion/110831/associated-gen-contractors-of-cal-inc-v-carpenters/ | activities allegedly committed pursuant to the conspiracy. The most specific allegations relate to the labor relations between the parties.[2] The complaint's description of actions affecting nonparties is both brief and vague. It is alleged that defendants "(3) Advocated, encouraged, induced, and aided non-members of defendant Associated General Contractors of California, to refuse to enter into collective bargaining relationships with plaintiffs and each of them; "() Advocated, encouraged, induced, coerced, aided and encouraged owners of land and other letters of construction contracts to hire contractors and subcontractors who are not signatories to collective bargaining agreements with plaintiffs and each of them; *523 "(5) Advocated, induced, coerced, encouraged, and aided members of Associated General Contractors of California, non-members of Associated General Contractors of California, and `memorandum contractors' to enter into subcontracting agreements with subcontractors who are not signatories to any collective bargaining agreements with plaintiffs and each of them"; App. E to Pet. for Cert. -19 (emphasis added).[3] Paragraph 25 describes the alleged "purpose and effect" of these activities: first, "to weaken, destroy, and restrain the trade of certain contractors," who were either members of Associated or memorandum contractors who had signed agreements with the Union; and second, to restrain "the free exercise of the business activities of plaintiffs and each of them."[] Plaintiffs claim that these alleged antitrust violations *52 caused them $25 million in damages.[5] The complaint does not identify any specific component of this damages claim. After hearing "lengthy oral argument" and after receiving two sets of written briefs, one filed before and the second filed after this Court's decision in Connell Construction the District Court dismissed the complaint, including the federal antitrust claim.[6] The court observed that the complaint alleged "a rather vague, general conspiracy," and that the allegations "appear typical of disputes a union might have with an employer," which in the normal course are resolved by grievance and arbitration or by the NLRB.[7] Without seeking to clarify or further amend the first amended complaint, the Union filed its notice of appeal on October 9, Over five years later, on November 20, 1980, the Court of Appeals reversed the District Court's dismissal of the Union's federal antitrust claim.[8] The majority *525 of the Court of Appeals disagreed with the District Court's characterization of the antitrust claim; it adopted a construction of the amended complaint which is somewhat broader than the allegations in the pleading itself.[9] The Court of Appeals held (1) that a Sherman Act violation a group boycott had been alleged, ; (2) that the defendants' conduct was not within the antitrust exemption for |
Justice Stevens | 1,983 | 16 | majority | Associated Gen. Contractors of Cal., Inc. v. Carpenters | https://www.courtlistener.com/opinion/110831/associated-gen-contractors-of-cal-inc-v-carpenters/ | the defendants' conduct was not within the antitrust exemption for labor activities, ; and (3) that the plaintiffs had standing to recover damages for the injury to their own business activities occasioned by the defendants' "industry-wide boycott against all subcontractors with whom the Unions had signed agreements" In support of the Union's standing, the majority reasoned that the Union was within the area of the economy endangered by a breakdown of competitive conditions, not only because injury to the Union was a foreseeable consequence of the antitrust violation, but also because that injury was specifically intended by the defendants. The court noted that its conclusion was consistent with other cases holding that union organizational *526 and representational activities constitute a form of business protected by the antitrust laws.[10] II As the case comes to us, we must assume that the Union can prove the facts alleged in its amended complaint. It is not, however, proper to assume that the Union can prove facts that it has not alleged or that the defendants have violated the antitrust laws in ways that have not been alleged.[11] We first note that the Union's most specific claims of injury involve matters that are not subject to review under the antitrust laws. The amended complaint alleges that the defendants have breached their collective-bargaining agreements in various ways, and that they have manipulated their corporate names and corporate status in order to divert business to nonunion divisions or firms that they actually control. Such deceptive diversion of business to the nonunion portion of a so-called "double-breasted" operation might constitute a breach of contract, an unfair labor practice, or perhaps even a *527 common-law fraud or deceit, but in the context of the bargaining relationship between the parties to this litigation, such activities are plainly not subject to review under the federal antitrust laws.[12] Similarly, the charge that the defendants "advocated, encouraged, induced, and aided nonmembers. to refuse to enter into collective bargaining relationships" with the Union (¶ 2(3)) does not describe an antitrust violation.[13] The Union's antitrust claims arise from alleged restraints caused by defendants in the market for construction contracting and subcontracting.[1] The complaint alleges that defendants "coerced"[15] two classes of persons: (1) landowners and *528 others who let construction contracts, i. e., the defendants' customers and potential customers; and (2) general contractors, i. e., defendants' competitors and defendants themselves. Coercion against the members of both classes was designed to induce them to give some of their business but not necessarily all of it to nonunion firms.[] Although the pleading does not allege |
Justice Stevens | 1,983 | 16 | majority | Associated Gen. Contractors of Cal., Inc. v. Carpenters | https://www.courtlistener.com/opinion/110831/associated-gen-contractors-of-cal-inc-v-carpenters/ | to nonunion firms.[] Although the pleading does not allege that the coercive conduct increased the aggregate share of nonunion firms in the market, it does allege that defendants' activities weakened and restrained the trade "of certain contractors." See n. Thus, particular victims of coercion may have diverted particular contracts to nonunion firms and thereby caused certain unionized subcontractors to lose some business. We think the Court of Appeals properly assumed that such coercion might violate the antitrust laws.[] An agreement to restrain trade may be unlawful even though it does not entirely exclude its victims from the market. See Associated (195). Coercive activity that prevents its victims from making free choices between market alternatives is inherently destructive of competitive conditions and may be condemned even without proof of its actual market effect. Cf. Klors, 210-21[18] *529 Even though coercion directed by defendants at third parties in order to restrain the trade of "certain" contractors and subcontractors may have been unlawful, it does not, of course, necessarily follow that still another party the Union is a person injured by reason of a violation of the antitrust laws within the meaning of of the Clayton Act. III We first consider the language in the controlling statute. See Consumer Product Safety 7 U.S. 102, The class of persons who may maintain a private damages action under the antitrust laws is broadly defined in of the Clayton Act. 15 U.S. C. 15. That section provides: "Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." A literal reading of the statute is broad enough to encompass every harm that can be attributed directly or indirectly to the consequences of an antitrust violation. Some of our prior cases have paraphrased the statute in an equally expansive way.[19] But before we hold that the statute is as broad as its *530 words suggest, we must consider whether Congress intended such an open-ended meaning. The critical statutory language was originally enacted in 1890 as 7 of the Sherman Act. The legislative history of the section shows that Congress was primarily interested in creating an effective remedy for consumers who were forced to pay excessive prices by the giant trusts and combinations that |
Justice Stevens | 1,983 | 16 | majority | Associated Gen. Contractors of Cal., Inc. v. Carpenters | https://www.courtlistener.com/opinion/110831/associated-gen-contractors-of-cal-inc-v-carpenters/ | pay excessive prices by the giant trusts and combinations that dominated certain interstate markets.[20] That history supports a broad construction of this remedial provision. A proper interpretation of the section cannot, however, ignore the larger context in which the entire statute was debated. *531 The repeated references to the common law in the debates that preceded the enactment of the Sherman Act make it clear that Congress intended the Act to be construed in the light of its common-law background.[21] Senator Sherman stated that the bill "does not announce a new principle of law, but applies old and well recognized principles of the common law to the complicated jurisdiction of our State and Federal Government."[22] Thus our comments on the need for judicial interpretation of 1 are equally applicable to 7: "One problem presented by the language of 1 of the Sherman Act is that it cannot mean what it says. The statute says that `every' contract that restrains trade is unlawful. But, as Mr. Justice Brandeis perceptively noted, restraint is the very essence of every contract; read literally, 1 would outlaw the entire body of private contract law. "Congress, however, did not intend the text of the Sherman Act to delineate the full meaning of the statute or its application in concrete situations. The legislative history makes it perfectly clear that it expected the courts to give shape to the statute's broad mandate by drawing on common-law tradition." National Society of *532 Professional 35 U.S. 679, Just as the substantive content of the Sherman Act draws meaning from its common-law antecedents, so must we consider the contemporary legal context in which Congress acted when we try to ascertain the intended scope of the private remedy created by 7. In 1890, notwithstanding general language in many state constitutions providing in substance that "every wrong shall have a remedy,"[23] a number of judge-made rules circumscribed the availability of damages recoveries in both tort and contract litigation doctrines such as foreseeability and proximate cause,[2] directness of injury,[25] certainty of damages,[26]* and privity of contract.[27] Although particular common-law limitations were not debated in Congress, the frequent references to common-law principles imply that Congress simply assumed that antitrust damages litigation would be subject to constraints comparable to well-accepted common-law rules applied in comparable litigation.[28] The federal judges who first confronted the task of giving meaning to 7 so understood the congressional intent. Thus in 1910 the Court of Appeals for the Third Circuit held as a matter of law that neither a creditor nor a stockholder of a corporation that was injured by |
Justice Stevens | 1,983 | 16 | majority | Associated Gen. Contractors of Cal., Inc. v. Carpenters | https://www.courtlistener.com/opinion/110831/associated-gen-contractors-of-cal-inc-v-carpenters/ | nor a stockholder of a corporation that was injured by a violation of the antitrust laws could recover treble damages under 7. Loeb v. Eastman *53 Kodak 183 F. 70. The court explained that the plaintiff's injury as a stockholder was "indirect, remote, and consequential."[29] This holding was consistent with Justice Holmes' explanation of a similar construction of the remedial provision of the Interstate Commerce Act a few years later: "The general tendency of the law, in regard to damages at least, is not to go beyond the first step." Southern Pacific 25 U.S. 531,[30] When Congress enacted of the Clayton Act in 191, and when it reenacted that section in 1955, it adopted the language of 7 and presumably also the judicial gloss that avoided a simple literal interpretation. As this Court has observed, the lower federal courts have been "virtually unanimous in concluding that Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation." 05 U.S. 251, 263, n. 1 Just last Term we stated: "An antitrust violation may be expected to cause ripples of harm to flow through the Nation's economy; but `despite the broad wording of there is a point beyond which the wrongdoer should not be held liable.' [Illinois *535 Brick v. Illinois, 31 U. S.], at 760 (BRENNAN, J., dissenting). It is reasonable to assume that Congress did not intend to allow every person tangentially affected by an antitrust violation to maintain an action to recover threefold damages for the injury to his business or property." Blue Shield of 57 U.S. 65, 76-77 It is plain, therefore, that the question whether the Union may recover for the injury it allegedly suffered by reason of the defendants' coercion against certain third parties cannot be answered simply by reference to the broad language of Instead, as was required in common-law damages litigation in 1890, the question requires us to evaluate the plaintiff's harm, the alleged wrongdoing by the defendants, and the relationship between them.[31] IV There is a similarity between the struggle of common-law judges to articulate a precise definition of the concept of "proximate cause,"[32] and the struggle of federal judges to *536 articulate a precise test to determine whether a party injured by an antitrust violation may recover treble damages.[33] It is common ground that the judicial remedy cannot encompass every conceivable harm that can be traced to alleged wrong-doing. In both situations the infinite variety of claims that may arise make it virtually impossible to announce a black-letter |
Justice Stevens | 1,983 | 16 | majority | Associated Gen. Contractors of Cal., Inc. v. Carpenters | https://www.courtlistener.com/opinion/110831/associated-gen-contractors-of-cal-inc-v-carpenters/ | may arise make it virtually impossible to announce a black-letter rule that will dictate the result in every case.[3] Instead, *537 previously decided cases identify factors that circumscribe and guide the exercise of judgment in deciding whether the law affords a remedy in specific circumstances. The factors that favor judicial recognition of the Union's antitrust claim are easily stated. The complaint does allege a causal connection between an antitrust violation and harm to the Union and further alleges that the defendants intended to cause that harm. As we have indicated, however, the mere fact that the claim is literally encompassed by the Clayton Act does not end the inquiry. We are also satisfied that an allegation of improper motive, although it may support a plaintiff's damages claim under[35] is not a panacea that will enable any complaint to withstand a motion to dismiss.[36] Indeed, in we specifically held: "The availability of the remedy to some person who claims its benefit is not a question of the specific intent of the conspirators." 57 U.S., at 79.[37] *538 A number of other factors may be controlling. In this case it is appropriate to focus on the nature of the plaintiff's alleged injury. As the legislative history shows, the Sherman Act was enacted to assure customers the benefits of price competition, and our prior cases have emphasized the central interest in protecting the economic freedom of participants in the relevant market.[38] Last Term in Blue Shield of we identified the relevance of this central policy to a determination of the plaintiff's right to maintain an action under alleged that she was a consumer of psychotherapeutic services and that she had been injured by the defendants' conspiracy to restrain competition in the market for such services.[39] The Court stressed the fact that "'s injury was of a type that Congress sought to redress in providing a private remedy for violations of the antitrust laws." 57 U.S., at 83, citing Brunswick 29 U.S. 77, 87-89 After noting that her injury "was inextricably intertwined with the injury the conspirators sought to inflict on psychologists and the psychotherapy market," 57 U.S., at 8, the Court concluded that such an injury "falls squarely within the area of congressional concern." *539 In this case, however, the Union was neither a consumer nor a competitor in the market in which trade was restrained.[0] It is not clear whether the Union's interests would be served or disserved by enhanced competition in the market. As a general matter, a union's primary goal is to enhance the earnings and improve the working conditions |
Justice Stevens | 1,983 | 16 | majority | Associated Gen. Contractors of Cal., Inc. v. Carpenters | https://www.courtlistener.com/opinion/110831/associated-gen-contractors-of-cal-inc-v-carpenters/ | is to enhance the earnings and improve the working conditions of its membership; that goal is not necessarily served, and indeed may actually be harmed, by uninhibited competition among employers striving to reduce costs in order to obtain a competitive advantage over their rivals.[1] At common law as well as in the early days of administration of the federal antitrust laws the collective activities of labor unions were regarded as a form of conspiracy in restraint of trade.[2] Federal policy has since developed not only a broad labor exemption from the antitrust laws,[3] but also a separate body of *50 labor law specifically designed to protect and encourage the organizational and representational activities of labor unions. Set against this background, a union, in its capacity as bargaining representative, will frequently not be part of the class the Sherman Act was designed to protect, especially in disputes with employers with whom it bargains. In each case its alleged injury must be analyzed to determine whether it is of the type that the antitrust statute was intended to forestall. See Brunswick at 87-88. In this case, particularly in light of the longstanding collective-bargaining relationship between the parties, the Union's labor-market interests seem to predominate, and the Brunswick test is not satisfied. An additional factor is the directness or indirectness of the asserted injury. In this case, the chain of causation between the Union's injury and the alleged restraint in the market for construction subcontracts contains several somewhat vaguely defined links. According to the complaint, defendants applied coercion against certain landowners and other contracting parties in order to cause them to divert business from certain union contractors to nonunion contractors.[] As a result, *51 the Union's complaint alleges, the Union suffered unspecified injuries in its "business activities."[5] It is obvious that any such injuries were only an indirect result of whatever harm may have been suffered by "certain" construction contractors and subcontractors.[6] If either these firms, or the immediate victims of coercion by defendants, have been injured by an antitrust violation, their injuries would be direct and, as we held in they would have a right to maintain their own treble-damages actions against the defendants. An action on their behalf would encounter none of the conceptual difficulties that *52 encumber the Union's claim.[7] The existence of an identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest in antitrust enforcement diminishes the justification for allowing a more remote party such as the Union to perform the office of a private attorney general.[8] Denying the Union a |
Justice Stevens | 1,983 | 16 | majority | Associated Gen. Contractors of Cal., Inc. v. Carpenters | https://www.courtlistener.com/opinion/110831/associated-gen-contractors-of-cal-inc-v-carpenters/ | office of a private attorney general.[8] Denying the Union a remedy on the basis of its allegations in this case is not likely to leave a significant antitrust violation undetected or unremedied. Partly because it is indirect, and partly because the alleged effects on the Union may have been produced by independent factors, the Union's damages claim is also highly speculative. There is, for example, no allegation that any collective-bargaining agreement was terminated as a result of the coercion, no allegation that the aggregate share of the contracting market controlled by union firms has diminished, no allegation that the number of employed union members has declined, and no allegation that the Union's revenues in the form of dues or initiation fees have decreased. Moreover, although coercion against certain firms is alleged, there is no assertion that any such firm was prevented from doing business with any union firms or that any firm or group of firms was subjected to a complete boycott. See nn. 9, 15, and *53 Other than the alleged injuries flowing from breaches of the collective-bargaining agreements injuries that would be remediable under other laws nothing but speculation informs the Union's claim of injury by reason of the alleged unlawful coercion. Yet, as we have recently reiterated, it is appropriate for purposes "to consider whether a claim rests at bottom on some abstract conception or speculative measure of harm." Blue Shield of 57 U. S., at 75, n. 11, citing 05 U. S., at 262-263, n. 1.[9] The indirectness of the alleged injury also implicates the strong interest, identified in our prior cases, in keeping the scope of complex antitrust trials within judicially manageable limits.[50] These cases have stressed the importance of avoiding *5 either the risk of duplicate recoveries on the one hand, or the danger of complex apportionment of damages on the other. Thus, in Hanover Shoe, v. United Shoe Machinery Corp., 392 U.S. 81 we refused to allow the defendants to discount the plaintiffs' damages claim to the extent that overcharges had been passed on to the plaintiffs' customers. We noted that any attempt to ascertain damages with such precision "would often require additional long and complicated proceedings involving massive evidence and complicated theories." at 93. In Illinois Brick v. Illinois, 31 U.S. 720 we held that treble damages could not be recovered by indirect purchasers of concrete blocks who had paid an enhanced price because their suppliers had been victimized by a price-fixing conspiracy. We observed that potential plaintiffs at each level in the distribution chain would be in a position |
Justice Stevens | 1,983 | 16 | majority | Associated Gen. Contractors of Cal., Inc. v. Carpenters | https://www.courtlistener.com/opinion/110831/associated-gen-contractors-of-cal-inc-v-carpenters/ | level in the distribution chain would be in a position to assert conflicting claims to a common fund, the amount of the alleged overcharge, thereby creating the danger of multiple liability for the fund and prejudice to absent plaintiffs. "Permitting the use of pass-on theories under essentially would transform treble-damages actions into massive efforts to apportion the recovery among all potential plaintiffs that could have absorbed part of the overcharge from direct purchasers to middlemen to ultimate consumers. However appealing this attempt to allocate the overcharge might seem in theory, it would add whole new dimensions of complexity to treble-damages suits and seriously undermine their effectiveness." The same concerns should guide us in determining whether the Union is a proper plaintiff under of the Clayton Act.[51]*55 As the Court wrote in Illinois Brick, massive and complex damages litigation not only burdens the courts, but also undermines the effectiveness of treble-damages suits. at 75. In this case, if the Union's complaint asserts a claim for damages under the District Court would face problems of identifying damages and apportioning them among directly victimized contractors and subcontractors and indirectly affected employees and union entities. It would be necessary to determine to what extent the coerced firms diverted business away from union subcontractors, and then to what extent those subcontractors absorbed the damage to their businesses or passed it on to employees by reducing the work force or cutting hours or wages. In turn it would be necessary to ascertain the extent to which the affected employees absorbed their losses and continued to pay union dues.[52] We conclude, therefore, that the Union's allegations of consequential harm resulting from a violation of the antitrust laws, although buttressed by an allegation of intent to harm the Union, are insufficient as a matter of law. Other relevant factors the nature of the Union's injury, the tenuous and speculative character of the relationship between the alleged antitrust violation and the Union's alleged injury, the potential for duplicative recovery or complex apportionment of damages, and the existence of more direct victims of the alleged conspiracy weigh heavily against judicial enforcement of the Union's antitrust claim. Accordingly, we hold that, based on the allegations of this complaint, the District *56A Court was correct in concluding that the Union is not a person injured by reason of a violation of the antitrust laws within the meaning of of the Clayton Act. The judgment of the Court of Appeals is reversed. It is so ordered. |
Justice Kennedy | 1,998 | 4 | concurring | Wisconsin Dept. of Corrections v. Schacht | https://www.courtlistener.com/opinion/118236/wisconsin-dept-of-corrections-v-schacht/ | In joining the opinion of the Court, I write to observe we have neither reached nor considered the argument that, by giving its express consent to removal of the case from state court, Wisconsin waived its Eleventh Amendment immunity. Insofar as the record shows, this issue was not raised in the proceedings below; and it was not part of the briefs filed here or the arguments made to the Court. The question should be considered, however, in some later case. Removal requires the consent of all of the defendants. See, e. g., Chicago, R. I. & P. R. ; 14A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3731, p. 504 Here the State consented to removal but then registered a prompt objection to the jurisdiction of the United States District Court over the claim against it. By electing to remove, the State created the difficult problem confronted in the Court of Appeals and now here. This is the situation in which law usually says a party must accept the consequences of its own acts. It would seem simple enough to rule that once a State consents to removal, it may not turn around and say the Eleventh Amendment bars the jurisdiction of the federal court. Consent to removal, it can be argued, is a waiver of the Eleventh Amendment immunity. Given the latitude accorded the States in raising the immunity at a late stage, however, a rule of waiver may not be all that obvious. The Court has said the Eleventh Amendment bar may be asserted for the first time on appeal, so a State which is sued in federal court does not waive the Eleventh Amendment simply by appearing and defending on the merits. *394 See Florida Dept. of ; see also ; Pennhurst State School and ; ; Ford Motor I have my doubts about the propriety of this rule. In permitting the belated assertion of the Eleventh Amendment bar, we allow States to proceed to judgment without facing any real risk of adverse consequences. Should the State prevail, the plaintiff would be bound by principles of res judicata. If the State were to lose, however, it could void the entire judgment simply by asserting its immunity on appeal. This departure from the usual rules of waiver stems from the hybrid nature of the jurisdictional bar erected by the Eleventh Amendment. In certain respects, the immunity bears substantial similarity to personal jurisdiction requirements, since it can be waived and courts need not raise the issue sua sponte. See Permitting the immunity to be raised |
Justice Kennedy | 1,998 | 4 | concurring | Wisconsin Dept. of Corrections v. Schacht | https://www.courtlistener.com/opinion/118236/wisconsin-dept-of-corrections-v-schacht/ | issue sua sponte. See Permitting the immunity to be raised at any stage of the proceedings, in contrast, is more consistent with regarding the Eleventh Amendment as a limit on the federal courts' subject-matter jurisdiction. See Insurance Corp. of We have noted the inconsistency. Although the text is framed in terms of the extent of the "Judicial power of the United States," U. S. Const., Amdt. 11, our precedents have treated the Eleventh Amendment as "enact[ing] a sovereign immunity from suit, rather than a nonwaivable limit on the federal judiciary's subject-matter jurisdiction." ; see also E. Chemerinsky, Federal Jurisdiction 7.6, p. 405 (noting that allowing waiver of the immunity "seems *395 inconsistent with viewing the Eleventh Amendment as a restriction on the federal courts' subject matter jurisdiction"). The Court could eliminate the unfairness by modifying our Eleventh Amendment jurisprudence to make it more consistent with our practice regarding personal jurisdiction. Under a rule inferring waiver from the failure to raise the objection at the outset of the proceedings, States would be prevented from gaining an unfair advantage. See Fed. Rule Civ. Proc. 12(h)(1). We would not need to make this substantial revision to find waiver in the circumstances here, however. Even if appearing in federal court and defending on the merits is not sufficient to constitute a waiver, a different case may be presented when a State under no compulsion to appear in federal court voluntarily invokes its jurisdiction. As the Court recognized in "where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment." An early decision of this Court applied this principle in holding that a State's voluntary intervention in a federalcourt action to assert its own claim constituted a waiver of the Eleventh Amendment. ; see also Employees of Dept. of Public Health and Welfare of (citing with approval); ; The Court also found a waiver of the Eleventh Amendment when a State voluntarily appeared in bankruptcy court to file a claim against a common fund. Since a State which is made a defendant to a state-court action is under no compulsion *396 to appear in federal court and, like any other defendant, has the unilateral right to block removal of the case, any appearance the State makes in federal court may well be regarded as voluntary in the same manner as the appearances which gave rise to the waivers in Clark and Gardner. Some Courts of Appeals, |
Justice Kennedy | 1,998 | 4 | concurring | Wisconsin Dept. of Corrections v. Schacht | https://www.courtlistener.com/opinion/118236/wisconsin-dept-of-corrections-v-schacht/ | the waivers in Clark and Gardner. Some Courts of Appeals, following this reasoning, have recognized that consent to removal may constitute a waiver. Newfield House, (CA1), cert. denied, ; see also Estate of ; ; Gwinn Area Community These cases have first inquired, however, whether state law authorized the attorneys representing the State to waive the Eleventh Amendment on its behalf. Petitioners cited this qualification when we raised the issue at oral argument in the instant case. This was also the Court's apparent concern in Ford Motor Co., in which it held: "It is conceded by the respondents that if it is within the power of the administrative and executive officers of Indiana to waive the state's immunity, they have done so in this proceeding. The issue thus becomes one of their power under state law to do so. As this issue has not been determined by state courts, this Court must resort to the general policy of the state as expressed in its Constitution, statutes and decisions. Article 4, 24 of the Indiana Constitution provides: "`Provision may be made, by general law, for bringing suit against the State, as to all liabilities originating after the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed.' "We interpret this provision as indicating a policy prohibiting state consent to suit in one particular case in *397 the absence of a general consent to suit in all similar causes of action. Since the state legislature may waive state immunity only by general law, it is not to be presumed in the absence of clear language to the contrary, that they conferred on administrative or executive officers discretionary power to grant or withhold consent in individual cases. It would seem, therefore, that no properly authorized executive or administrative officer of the state has waived the state's immunity to suit in the federal courts." 323 U.S., at -469 See also Notwithstanding the quoted language from Ford Motor Co., the absence of specific authorization, it seems to me, is not an insuperable obstacle to adopting a rule of waiver in every case where the State, through its attorneys, consents to removal from the state court to the federal court. If the States know or have reason to expect that removal will constitute a waiver, then it is easy enough to presume that an attorney authorized to represent the State can bind it to the jurisdiction of the federal court (for Eleventh Amendment purposes) by the consent |
Justice Kennedy | 1,998 | 4 | concurring | Wisconsin Dept. of Corrections v. Schacht | https://www.courtlistener.com/opinion/118236/wisconsin-dept-of-corrections-v-schacht/ | the federal court (for Eleventh Amendment purposes) by the consent to removal. It is true as well that the Court's recent cases have disfavored constructive waivers of the Eleventh Amendment and have required the State's consent to suit be unequivocal. Atascadero State ; The conduct which may give rise to the waiver in the instance of removal is far less equivocal than the conduct at issue in those cases, however. Here the State's consent amounted to a direct invocation of the jurisdiction of the federal courts, an act considerably more specific than the general participation in a federal program found insufficient in Atascadero and Edelman. These questions should be explored. If it were demonstrated that a federal rule finding waiver of the Eleventh *398 Amendment when the State consents to removal would put States at some unfair tactical disadvantage, perhaps the waiver rule ought not to be embraced. I tend to doubt such consequences, however. Since the issue was not addressed either by the parties or the Court of Appeals, the proper course is for us to defer addressing the question until it is presented for our consideration, supported by full briefing and argument, in some later case. |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | We must decide in these cases whether the Religious Freedom Restoration Act of 1 (RFRA), 42 U.S. C. et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the 2 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court Federal Government from taking any action that substan- tially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compel- ling government interest. In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies for- feited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprie- torships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not dis- criminate in this way against men and women who wish to run their businesses as for-profit corporations in the man- ner required by their religious beliefs. Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1. million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would. Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must consti- tute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contra- ceptives at issue here and, indeed, to all FDA-approved contraceptives. Cite as: 57 U. S. (2014) Opinion of the Court In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of reli- gious nonprofit corporations while ensuring that |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | religious liberty of reli- gious nonprofit corporations while ensuring that the em- ployees of these entities have precisely the same access to all FDA-approved contraceptives as employees of compa- nies whose owners have no religious objections to provid- ing such coverage. The employees of these religious non- profit corporations still have access to insurance coverage without cost sharing for all FDA-approved contracep- tives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage. Although HHS has made this system available to reli- gious nonprofits that have religious objections to the con- traceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful. As this description of our reasoning shows, our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Post, at 1 (opinion of GINSBURG, J.). Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose “disadvantages on others” or that require “the general public [to] pick up the tab.” Post, at 1–2. And we certainly do not hold or suggest that “RFRA demands accommodation of a for-profit corpo- ration’s religious beliefs no matter the impact that ac- commodation may have on thousands of women em- 4 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court ployed by Hobby Lobby.” Post, at 2.1 The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing. I A Congress enacted RFRA in 1 in order to provide very broad protection for religious liberty. RFRA’s enactment came three years after this Court’s decision in Employ ment Div., Dept. of Human Resources of Ore. v. 44 U.S. 872 (10), which largely repudiated the method of analyzing free-exercise claims that had been used in cases like and Wiscon In determining whether challenged government actions violated the Free Exercise Clause of the First |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the chal- lenged action imposed a substantial burden on the prac- tice of religion, and if it did, whether it was needed to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment –40. And in Yoder, the Court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16 even though their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years. 406 U.S., at 210–211, 24–26. In however, the Court rejected “the balancing —————— 1 See post, at 8 (“The exemption sought by Hobby Lobby and Conestoga would deny [their employees] access to contraceptive coverage that the ACA would otherwise secure”) Cite as: 57 U. S. (2014) 5 Opinion of the Court test set forth in Sherbert.” con- cerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of Oregon rejected their claims on the ground that consump- tion of peyote was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise This Court then reversed, observing that use of the Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” The Court therefore held that, under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental inter- est.” City of Congress responded to by enacting RFRA. “[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U.S. C. (a)(2); see (a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” –1(a).2 If the Govern- ment substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that appli- cation of the burden to the person—(1) is in furtherance of a compelling governmental interest; and |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling govern- —————— 2 The Act defines “government” to include any “department” or “agency” of the United States. –2(1). 6 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court mental interest.” –1(b). As enacted in 1, RFRA applied to both the Federal Government and the States, but the constitutional author- ity invoked for regulating federal and state agencies dif- fered. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agen- cy’s work,4 but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First –517. In City of however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of uncon- stitutional conduct under the Free Exercise Clause as interpreted in” at 5–54. See at 52. Following our decision in City of Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S. C. et seq. That statute, enacted under Congress’s Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited category of governmental actions. See 544 U.S. 70, 715–716 And, what is most relevant for present purposes, RLUIPA amended RFRA’s definition of the “exercise of religion.” See –2(4) (importing RLUIPA definition). Before RLUIPA, RFRA’s definition —————— In City of we wrote that RFRA’s “least restrictive means requirement was not used in the pre- jurisprudence RFRA purported to codify.” On this understanding of our pre- cases, RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under those decisions. 4 See, ; Guam v. Guerrero, Cite as: 57 U. S. (2014) 7 Opinion of the Court made reference to the First See – 2(4) (14 ed.) (defining “exercise of religion” as “the exer- cise of religion under the First Amendment”). In RLUIPA, in an obvious effort to effect a complete separation from First Amendment case law, Congress deleted the reference to the First Amendment and defined the “exercise of reli- gion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” –5(7)(A). And Congress mandated that this con- cept “be construed in favor of a broad protection of reli- gious exercise, to the maximum extent permitted by the terms |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | gious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” – (g).5 B At issue in these cases are HHS regulations promul- gated under the Patient Protection and Affordable Care Act of (ACA), ACA generally requires employers with 50 or more full-time employees to offer “a group health plan or group health insurance coverage” that provides “minimum essential coverage.” 26 U.S. C. (c)(2). Any covered employer that does not provide such coverage must pay a substan- tial price. Specifically, if a covered employer provides group health insurance but its plan fails to comply with ACA’s group-health-plan requirements, the employer may be required to pay $100 per day for each affected “individ- —————— 5 The principal dissent appears to contend that this rule of construc- tion should apply only when defining the “exercise of religion” in an RLUIPA case, but not in a RFRA case. See post, at 11, n. 10. That argument is plainly wrong. Under this rule of construction, the phrase “exercise of religion,” as it appears in RLUIPA, must be interpreted broadly, and RFRA states that the same phrase, as used in RFRA, means “religious exercis[e] as defined in [RLUIPA].” 42 U.S. C. –2(4). It necessarily follows that the “exercise of religion” under RFRA must be given the same broad meaning that applies under RLUIPA. 8 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court ual.” And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges, the employer must pay $2,000 per year for each of its full- time employees. (c)(1). Unless an exception applies, ACA requires an employ- er’s group health plan or group-health-insurance coverage to furnish “preventive care and screenings” for women without “any cost sharing requirements.” 42 U.S. C. Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in determining which preventive services to require. See –8726 In August 2011, based on the Institute’s recommenda- tions, the HRSA promulgated the Women’s Preventive Services Guidelines. See at 8725–8726, and n. 1; online at http://hrsa.gov/womensguidelines (all Internet materials as visited June 26, 2014, and available in Clerk of Court’s case file). The Guidelines provide that nonex- empt employers are generally required to provide “cover- age, |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | nonex- empt employers are generally required to provide “cover- age, without cost sharing” for “[a]ll Food and Drug Ad- ministration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and coun- seling.” (internal quotation marks omitted). Although many of the required, FDA-approved methods of contraception work by preventing the fertiliza- tion of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. See Brief for HHS Cite as: 57 U. S. (2014) Opinion of the Court in No. 1–54, pp. –10, n. 4;6 FDA, Birth Control: Medi- cines to Help You.7 HHS authorized the HRSA to establish exemptions from the contraceptive mandate for “religious employers.” (a). That category encompasses “churches, their integrated auxiliaries, and conventions or associ- ations of churches,” as well as “the exclusively religious activities of any religious order.” See ibid (citing 26 U.S. C. (iii)). In its Guidelines, HRSA exempted these organizations from the requirement to cover contraceptive services. See http://hrsa.gov/ womensguidelines. In addition, HHS has effectively exempted certain religious nonprofit organizations, described under HHS regulations as “eligible organizations,” from the contracep- tive mandate. See (b); 78 Fed. Reg. 874 An “eligible organization” means a nonprofit organization that “holds itself out as a religious organi- zation” and “opposes providing coverage for some or all of any contraceptive services required to be covered on account of religious objections.” (b). To qualify for this accommodation, an employer must certify that it is such an organization. When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage from the employer’s plan —————— 6 We will use “Brief for HHS” to refer to the Brief for Petitioners in No. 1–54 and the Brief for Respondents in No. 1–56. The federal parties are the Departments of HHS, Treasury, and Labor, and the Secretaries of those Departments. 7 Online at http://www.fda.gov/forconsumers/byaudience/forwomen/ freepublications/ucm1215.htm. The owners of the companies in- volved in these cases and others who believe that life begins at concep- tion regard these four methods as causing abortions, but federal regula- tions, which define pregnancy as beginning at implantation, see, 62 Fed. Reg. 8611 ; (f) do not so classify them. 10 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court and provide separate payments for contraceptive services for plan participants without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. Al- though this procedure requires the issuer to bear |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | beneficiaries. Al- though this procedure requires the issuer to bear the cost of these services, HHS has determined that this obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from the services. In addition to these exemptions for religious organiza- tions, ACA exempts a great many employers from most of its coverage requirements. Employers providing “grandfa- thered health plans”—those that existed prior to March 2, and that have not made specified changes after that date—need not comply with many of the Act’s re- quirements, including the contraceptive mandate. 42 U.S. C. (e). And employers with fewer than 50 employees are not required to provide health insurance —————— 8 In the case of self-insured religious organizations entitled to the accommodation, the third-party administrator of the organization must “provide or arrange payments for contraceptive services” for the organi- zation’s employees without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiar- ies. (to be codified in – 271A(b)(2)). The regulations establish a mechanism for these third- party administrators to be compensated for their expenses by obtaining a reduction in the fee paid by insurers to participate in the federally facilitated exchanges. See (to be codified in 26 CFR (b)()). HHS believes that these fee reductions will not materially affect funding of the exchanges because “payments for contraceptive services will represent only a small portion of total [exchange] user fees.” In a separate challenge to this framework for religious nonprofit organizations, the Court recently ordered that, pending appeal, the eligible organizations be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators. See Little Sisters of the Poor v. Sebelius, 571 U. S. (2014). Cite as: 57 U. S. (2014) 11 Opinion of the Court at all. 26 U.S. C. All told, the contraceptive mandate “presently does not apply to tens of millions of people.” This is attributable, in large part, to grand- fathered health plans: Over one-third of the 14 million nonelderly people in America with employer-sponsored health plans were enrolled in grandfathered plans in Brief for HHS in No. 1–54, at 5; Kaiser Family Foun- dation & Health Research & Educational Trust, Employer Health Benefits, Annual Survey 4, 221.10 The count for employees working for firms that do not have to pro- vide insurance at all because they employ fewer than 50 employees is 4 million workers. See The Whitehouse, Health Reform for |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | is 4 million workers. See The Whitehouse, Health Reform for Small Businesses: The Affordable Care Act Increases Choice and Saving Money for Small Busi- nesses 1.11 II A Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a Christian denomination. The Mennonite Church opposes abortion and believes that “[t]he fetus in its earliest stages shares humanity with those who conceived it.”12 Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then, this company, Conestoga Wood Specialties, has grown and now has 50 employees. Conestoga is organized under Pennsylvania —————— 10 While the Government predicts that this number will decline over time, the total number of Americans working for employers to whom the contraceptive mandate does not apply is still substantial, and there is no legal requirement that grandfathered plans ever be phased out. 11 Online at http : / / www whitehouse gov / files / documents / health _ reform_for_small_businesses.pdf. 12 Mennonite Church USA, Statement on Abortion, online at http://www.mennoniteusa.org /resource-center/resources/statements-and- resolutions/statement-on-abortion/. 12 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court law as a for-profit corporation. The Hahns exercise sole ownership of the closely held business; they control its board of directors and hold all of its voting shares. One of the Hahn sons serves as the president and CEO. The Hahns believe that they are required to run their business “in accordance with their religious beliefs and moral principles.” To that end, the company’s mission, as they see it, is to “operate in a professional environment founded upon the highest ethical, moral, and Christian principles.” The company’s “Vi- sion and Values Statements” affirms that Conestoga endeavors to “ensur[e] a reasonable profit in [a] manner that reflects [the Hahns’] Christian heritage.” App. in No. 1–56, p. 4 (complaint). As explained in Conestoga’s board-adopted “Statement on the Sanctity of Human Life,” the Hahns believe that “human life begins at conception.” and n. 5 It is therefore “against [their] moral conviction to be involved in the termination of human life” after conception, which they believe is a “sin against God to which they are held accountable.” The Hahns have accordingly excluded from the group- health-insurance plan they offer to their employees certain contraceptive methods that they consider to be abortifa- cients. at The Hahns and Conestoga sued HHS and other federal officials and agencies under RFRA and the Free Exercise Clause of the First Amendment, seeking to enjoin applica- tion of ACA’s contraceptive mandate insofar as it requires them to provide health-insurance coverage for four FDA- approved contraceptives |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | them to provide health-insurance coverage for four FDA- approved contraceptives that may operate after the fertili- zation of an egg.1 These include two forms of emergency —————— 1 The Hahns and Conestoga claimed that the contraceptive Cite as: 57 U. S. (2014) 1 Opinion of the Court contraception commonly called “morning after” pills and two types of intrauterine devices.14 In opposing the requirement to provide coverage for the contraceptives to which they object, the Hahns argued that “it is immoral and sinful for [them] to intentionally participate in, pay for, facilitate, or otherwise support these drugs.” The District Court denied a prelimi- nary injunction, see and the Third Circuit affirmed in a divided opinion, holding that “for- profit, secular corporations cannot engage in religious exercise” within the meaning of RFRA or the First The Third Circuit rejected the claims brought by the Hahns themselves because it concluded that the HHS “[m]andate does not impose any requirements on the Hahns” in their personal capacity. B David and Barbara Green and their three children are Christians who own and operate two family businesses. Forty-five years ago, David Green started an arts-and- crafts store that has grown into a nationwide chain called Hobby Lobby. There are now 500 Hobby Lobby stores, and the company has more than 1,000 employees. 72 F.d, Hobby Lobby is organized as a for-profit corpora- tion under Oklahoma law. One of David’s sons started an affiliated business, Mar- del, which operates 5 Christian bookstores and employs close to 400 people. Mardel is organized as a for-profit corporation under Oklahoma law. Though these two businesses have expanded over the —————— mandate violates the Fifth Amendment and the Administrative Proce- dure Act, 5 U.S. C. but those claims are not before us. 14 See, WebMD Health News, New Morning-After Pill Ella Wins FDA Approval, online at http://www.webmd.com/sex/birth-control/news/ 081/new-morning-after-pill-ella-wins-fda-approval. 14 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court years, they remain closely held, and David, Barbara, and their children retain exclusive control of both companies. David serves as the CEO of Hobby Lobby, and his three children serve as the president, vice president, and vice CEO. See Brief for Respondents in No. 1–54, p. 8.15 Hobby Lobby’s statement of purpose commits the Greens to “[h]onoring the Lord in all [they] do by operat- ing the company in a manner consistent with Biblical principles.” App. in No. 1–54, pp. 14–15 (complaint). Each family member has signed a pledge to run the busi- nesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries. In |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | to use the family assets to support Christian ministries. In accordance with those commit- ments, Hobby Lobby and Mardel stores close on Sundays, even though the Greens calculate that they lose millions in sales annually by doing so. ; App. in No. 1– 54, at 16–17. The businesses refuse to engage in prof- itable transactions that facilitate or promote alcohol use; they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.” Like the Hahns, the Greens believe that life begins at conception and that it would violate their religion to facili- tate access to contraceptive drugs or devices that operate after that They specifically object to the same four contraceptive methods as the Hahns and, like the Hahns, they have no objection to the other 16 FDA-approved methods of birth control. at 1125. Although their group-health-insurance plan pre- dates the enactment of ACA, it is not a grandfathered plan —————— 15 TheGreens operate Hobby Lobby and Mardel through a manage- ment trust, of which each member of the family serves as trustee. 72 F.d 1114, 1122 The family provided that the trust would be governed according to their religious principles. Cite as: 57 U. S. (2014) 15 Opinion of the Court because Hobby Lobby elected not to retain grandfathered status before the contraceptive mandate was proposed. The Greens, Hobby Lobby, and Mardel sued HHS and other federal agencies and officials to challenge the con- traceptive mandate under RFRA and the Free Exercise 16 The District Court denied a preliminary injunc- tion, see and the plaintiffs appealed, moving for initial en banc considera- tion. The Tenth Circuit granted that motion and reversed in a divided opinion. Contrary to the conclusion of the Third Circuit, the Tenth Circuit held that the Greens’ two for-profit businesses are “persons” within the meaning of RFRA and therefore may bring suit under that law. The court then held that the corporations had estab- lished a likelihood of success on their RFRA claim. 72 F.d, at 1140–1147. The court concluded that the contra- ceptive mandate substantially burdened the exercise of religion by requiring the companies to choose between “compromis[ing] their religious beliefs” and paying a heavy fee—either “close to $475 million more in taxes every year” if they simply refused to provide coverage for the contraceptives at issue, or “roughly $26 million” annu- ally if they “drop[ped] health-insurance benefits for all employees.” The court next held that HHS had failed to demonstrate a compelling interest in enforcing the mandate against the Greens’ |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | a compelling interest in enforcing the mandate against the Greens’ businesses and, in the alternative, that HHS had failed to prove that enforcement of the mandate was the “least restrictive means” of furthering the Government’s asserted interests. at –1144 (emphasis deleted; internal quotation marks omitted). After concluding that the companies had “demonstrated irreparable harm,” the —————— 16 They raised a claim under the Administrative Procedure Act, 5 U.S. C. 16 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court court reversed and remanded for the District Court to consider the remaining factors of the preliminary- injunction test.17 We granted certiorari. 571 U. S. III A RFRA prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental inter- est.” 42 U.S. C. §–1(a), (b) The first question that we must address is whether this provision applies to regulations that govern the activities of for-profit corporations like Hobby Lobby, Conestoga, and Mardel. HHS contends that neither these companies nor their owners can even be heard under RFRA. According to HHS, the companies cannot sue because they seek to make a profit for their owners, and the owners cannot be heard because the regulations, at least as a formal mat- ter, apply only to the companies and not to the owners as individuals. HHS’s argument would have dramatic consequences. Consider this Court’s decision in v. Brown, —————— 17 Given its RFRA ruling, the court declined to address the plaintiffs’ free-exercise claim or the question whether the Greens could bring RFRA claims as individual owners of Hobby Lobby and Mardel. Four judges, however, concluded that the Greens could do so, see 72 F.d, (Gorsuch, J., concurring); (Matheson, J., concurring in part and dissenting in part), and three of those judges would have granted plaintiffs a preliminary injunction, see (Gorsuch, J., concurring). Cite as: 57 U. S. (2014) 17 Opinion of the Court In that case, five Orthodox Jewish merchants who ran small retail busi- nesses in Philadelphia challenged a Pennsylvania Sunday closing law as a violation of the Free Exercise Because of their faith, these merchants closed their shops on Saturday, and they argued that requiring them to remain shut on Sunday threatened them with financial ruin. The Court entertained their claim (although it ruled against them on the merits), and if a similar claim were raised today under |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | merits), and if a similar claim were raised today under RFRA against a jurisdiction still sub- ject to the Act (for example, the District of Columbia, see 42 U.S. C. –2(2)), the merchants would be enti- tled to be heard. According to HHS, however, if these merchants chose to incorporate their businesses—with- out in any way changing the size or nature of their busi- nesses—they would forfeit all RFRA (and free-exercise) rights. HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations. As we have seen, RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.18 Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS sug- gests? An examination of RFRA’s text, to which we turn —————— 18 As discussed, n. in City of we stated that RFRA, by imposing a least-restrictive-means test, went beyond what was re- quired by our pre- decisions. Although the author of the principal dissent joined the Court’s opinion in City of she now claims that the statement was incorrect. Post, at 12. For present purposes, it is unnecessary to adjudicate this dispute. Even if RFRA simply restored the status quo ante, there is no reason to believe, as HHS and the dissent seem to suggest, that the law was meant to be limited to situa- tions that fall squarely within the holdings of pre- cases. See infra, at 25–28. 18 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court in the next part of this opinion, reveals that Congress did no such thing. As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An estab- lished body of law specifies the rights and obligations of the people (including shareholders, officers, and employ- ees) who are associated with a corporation in one way or another. When rights, whether constitutional or statu- tory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government sei- zure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies. In holding that Conestoga, as a “secular, for-profit cor- poration,” lacks RFRA protection, the Third Circuit wrote as follows: “General business corporations do not, separate and apart from the actions or belief systems of their indi vidual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” 724 F.d, at 85 All of this is true—but quite beside the Corpora- Cite as: 57 U. S. (2014) 1 Opinion of the Court tions, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all. B 1 As we noted above, RFRA applies to “a person’s” exer- cise of religion, 42 U.S. C. §–1(a), (b), and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “[i]n deter- mining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U.S. C. Under the Dictionary Act, “the wor[d] ‘person’ in- clude[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” ; see FCC v. AT&T Inc., 562 U. S. (2011) (slip op., at 6) (“We have no doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear”). Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard. We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations, see (RFRA); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1) (Free Exercise), and HHS concedes that a nonprofit corporation can be a “person” within the mean- ing of RFRA. See Brief for HHS in No. 1–54, at 17; 20 BURWELL v. HOBBY LOBBY |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | in No. 1–54, at 17; 20 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court Reply Brief in No. 1–54, at 7–8.1 This concession effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.20 Cf. 54 U.S. 71, 78 (“To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one”). 2 The principal argument advanced by HHS and the principal dissent regarding RFRA protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term “person,” but on the phrase “exercise of religion.” According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise reli- gion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion. Is it because of the corporate form? The corporate form alone cannot provide the explanation because, as we have pointed out, HHS concedes that nonprofit corporations can —————— 1 Cf. Brief for Federal Petitioners in O O. T. 2004, No. 04– 4, p. II (stating that the organizational respondent was “a New Mexico Corporation”); Brief for Federal Respondent in Hosanna-Tabor, O. T. 2011, No. 10–55, p. (stating that the petitioner was an “ecclesi- astical corporation”). 20 Not only does the Government concede that the term “persons” in RFRA includes nonprofit corporations, it goes further and appears to concede that the term might encompass other artificial entities, namely, general partnerships and unincorporated associations. See Brief for HHS in No. 1–54, at 28, 40. Cite as: 57 U. S. (2014) 21 Opinion of the Court be protected by RFRA. The dissent suggests that nonprofit corporations are special because furthering their reli- gious “autonomy often furthers individual religious freedom as well.” Post, at 15 (Brennan, J., concurring in judgment)). But this principle applies equally to for-profit corporations: Furthering their re- ligious freedom “furthers individual religious freedom.” In these cases, for example, allowing Hobby Lobby, Con- estoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.21 If the corporate form is not enough, what about the profit-making objective? In we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims. As the Court explained in a later case, the “exercise of religion” involves “not only belief and profes- sion but the performance of (or abstention from) physical acts” that are “engaged in for religious reasons.” Business practices that are compelled or limited by the tenets of a religious doctrine fall comforta- bly within that definition. Thus, a law that “operates so as to make the practice of religious beliefs more expen- sive” in the context of business activities imposes a burden on the exercise of religion. ; see United ; infra, at 26– 27. 22 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court rights”). If, as recognized, a sole proprietorship that seeks to make a profit may assert a free-exercise claim,22 why can’t Hobby Lobby, Conestoga, and Mardel do the same? Some lower court judges have suggested that RFRA does not protect for-profit corporations because the pur- pose of such corporations is simply to make money.2 This —————— 22 It is revealing that the principal dissent cannot even bring itself to acknowledge that was correct in entertaining the merchants’ claims. See post, at 1 (dismissing the relevance of in part because “[t]he free exercise claim asserted there was promptly rejected on the merits”). 2 See, 724 F.d, at 85 (“We do not see how a for-profit, ‘artifi- cial being,’ that was created to make money” could exercise reli- gion); 708 F.d 850, (Rovner, J. dissenting) (“So far as it appears, the mission of Grote Industries, like that of any other for-profit, secular business, is to make money in the commercial sphere”); Autocam 70 F.d 618, (“Congress did not intend to include corporations primarily organized for secular, profit-seeking purposes as ‘persons’ under RFRA”); see 72 F.d, at 1171–1172 (Briscoe, C. J., dissenting) (“[T]he specific purpose for which [a corporation] is created matters greatly to how it will be categorized and treated under the law” and “it is undisputed that Hobby Lobby and Mardel are for-profit corporations focused on selling merchandise to consumers”). The principal dissent makes a similar point, stating that “[f]or-profit corporations are different from religious nonprofits in that they use labor to make a profit, rather than to perpetuate the religious values shared by a community of believers.” Post, at 18–1 (internal quotation marks omitted). The first half of this statement is a tautology; for- profit corporations do indeed differ from nonprofits insofar as they seek to make a profit for their owners, but the second |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | to make a profit for their owners, but the second part is factually untrue. As the activities of the for-profit corporations involved in these cases show, some for-profit corporations do seek “to perpetuate the religious values shared,” in these cases, by their owners. Conestoga’s Vision and Values Statement declares that the company is dedicated to operating “in [a] manner that reflects our Christian heritage and the highest ethical and moral principles of business.” App. in No. 1–56, p. 4. Similarly, Hobby Lobby’s statement of purpose proclaims that the company “is committed to Honoring the Lord in all we do by Cite as: 57 U. S. (2014) 2 Opinion of the Court argument flies in the face of modern corporate law. “Each American jurisdiction today either expressly or by implica- tion authorizes corporations to be formed under its general corporation act for any lawful purpose or business.” 1 J. Cox & T. Hazen, Treatise of the Law of Corporations p. 224 ; see 1A W. Fletcher, Cyclopedia of the Law of Corporations While it is certainly true that a central objective of for- profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitar- ian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy- conservation measures that go beyond what the law re- quires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well. HHS would draw a sharp line between nonprofit corpo- —————— operating in a manner consistent with Biblical principles.” App. in No. 1–54, p. 15. The dissent believes that history is not on our side because even Blackstone recognized the distinction between “ecclesiastical and lay” corporations. Post, at 18. What Blackstone illustrates, however, is that dating back to 1765, there was no sharp divide among corporations in their capacity to exercise religion; Black- stone recognized that even what he termed “lay” corporations might serve “the promotion of piety.” 1 W. Blackstone, Commentaries on the Law of England 458–45 (1765). And whatever may have been the case at the time of Blackstone, modern corporate law (and the law |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | the time of Blackstone, modern corporate law (and the law of the States in which these three companies are incorporated) allows for- profit corporations to “perpetuat[e] religious values.” 24 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court rations (which, HHS concedes, are protected by RFRA) and for-profit corporations (which HHS would leave un- protected), but the actual picture is less clear-cut. Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candi- dates who promote their religious or charitable goals.24 In fact, recognizing the inherent compatibility between estab- lishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the “benefit corpora- tion,” a dual-purpose entity that seeks to achieve both a benefit for the public and a profit for its owners.25 In any event, the objectives that may properly be pur- —————— 24 See, M. Sanders, Joint Ventures Involving Tax-Exempt Organ- izations 555 (describing Google.org, which “advance[s] its charitable goals” while operating as a for-profit corporation to be able to “invest in for-profit endeavors, lobby for policies that support its philan- thropic goals, and tap Google’s innovative technology and workforce” (internal quotation marks and alterations omitted)); cf. 26 CFR 501(c)()–1(c)(). 25 See Benefit Corp Information Center, online at http:// www.benefitcorp.net/state-by-state-legislative-status; Va. Code Ann. §1–787, 1.1–, 1.1–782 (Lexis 2011) (“A benefit corpora- tion shall have as one of its purposes the purpose of creating a general public benefit,” and “may identify one or more specific public benefits that it is the purpose of the benefit corporation to create. This purpose is in addition to [the purpose of engaging in any lawful busi- ness].” “ ‘Specific public benefit’ means a benefit that serves one or more public welfare, religious, charitable, scientific, literary, or educa- tional purposes, or other purpose or benefit beyond the strict interest of the shareholders of the benefit corporation”); S. C. Code Ann. §§–8–00 ( Cum. Supp.), ––101 –8–10 ( Cum. Supp.) (similar). Cite as: 57 U. S. (2014) 25 Opinion of the Court sued by the companies in these cases are governed by the laws of the States in which they were incorporated— Pennsylvania and Oklahoma—and the laws of those States permit for-profit corporations to pursue “any lawful purpose” or “act,” including the pursuit of profit in |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | lawful purpose” or “act,” including the pursuit of profit in con- formity with the owners’ religious principles. 15 Pa. Cons. Stat. §101 (2001) (“Corporations may be incorporated under this subpart for any lawful purpose or purposes”); Okla. Stat., Tit. 18, 1005 (“[E]very corporation, whether profit or not for profit” may “be incorporated or organized to conduct or promote any lawful business or purposes”); see §1006(A)(); Brief for State of Oklahoma as Amicus Curiae in No. 1–54. HHS and the principal dissent make one additional argument in an effort to show that a for-profit corporation cannot engage in the “exercise of religion” within the meaning of RFRA: HHS argues that RFRA did no more than codify this Court’s pre- Free Exercise Clause precedents, and because none of those cases squarely held that a for-profit corporation has free-exercise rights, RFRA does not confer such protection. This argument has many flaws. First, nothing in the text of RFRA as originally enacted suggested that the statutory phrase “exercise of religion under the First Amendment” was meant to be tied to this Court’s pre- interpretation of that When first enacted, RFRA defined the “exercise of reli- gion” to mean “the exercise of religion under the First Amendment”—not the exercise of religion as recognized only by then-existing Supreme Court precedents. 42 U.S. C. –2(4) (14 ed.). When Congress wants to link the meaning of a statutory provision to a body of this Court’s case law, it knows how to do so. See, Antiter- rorism and Effective Death Penalty Act of 28 26 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court U. S. C. (authorizing habeas relief from a state-court decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”). Second, if the original text of RFRA was not clear enough on this point—and we think it was—the amend- ment of RFRA through RLUIPA surely dispels any doubt. That amendment deleted the prior reference to the First Amendment, see 42 U.S. C. –2(4) (2000 ed.) (in- corporating –5), and neither HHS nor the principal dissent can explain why Congress did this if it wanted to tie RFRA coverage tightly to the specific holdings of our pre- free-exercise cases. Moreover, as discussed, the amendment went further, providing that the exercise of religion “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” – (g). It is simply not possible to read these provisions as restricting |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | is simply not possible to read these provisions as restricting the concept of the “exercise of religion” to those practices specifically addressed in our pre- decisions. Third, the one pre- case involving the free-exercise rights of a for-profit corporation suggests, if anything, that for-profit corporations possess such rights. In Gallagher v. Crown Kosher Super Market of Mass., Inc., 66 U.S. 617 the Massachusetts Sunday closing law was chal- lenged by a kosher market that was organized as a for- profit corporation, by customers of the market, and by a rabbi. The Commonwealth argued that the corporation lacked “standing” to assert a free-exercise claim,26 but not one member of the Court expressed agreement with that —————— 26 See Brief for Appellants in Gallagher, O. T. 1 No. 11, pp. 16, 28– 1 (arguing that corporation “has no ‘religious belief’ or ‘religious liberty,’ and had no standing in court to assert that its free exercise of religion was impaired”). Cite as: 57 U. S. (2014) 27 Opinion of the Court argument. The plurality opinion for four Justices rejected the First Amendment claim on the merits based on the reasoning in and reserved decision on the question whether the corporation had “standing” to raise the claim. See 66 U.S., at 61. The three dissenters, Justices Douglas, Brennan, and Stewart, found the law unconstitutional as applied to the corporation and the other challengers and thus implicitly recognized their right to assert a free-exercise claim. See at (Bren- nan, J., joined by Stewart, J., dissenting); v. Maryland, 66 U.S. 420, (Douglas, J., dissenting as to related cases including Gallagher). Fi- nally, Justice Frankfurter’s opinion, which was joined by Justice Harlan, upheld the Massachusetts law on the merits but did not question or reserve decision on the issue of the right of the corporation or any of the other challengers to be heard. See 66 U.S., at 521– 522. It is quite a stretch to argue that RFRA, a law enacted to provide very broad protection for religious liberty, left for-profit corporations unprotected simply because in Gallagher—the only pre- case in which the issue was raised—a majority of the Justices did not find it nec- essary to decide whether the kosher market’s corporate status barred it from raising a free-exercise claim. Finally, the results would be absurd if RFRA merely restored this Court’s pre- decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before For example, |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | that this Court entertained in the years before For example, we are not aware of any pre- case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons beyond RFRA’s protec- tive reach simply because the Court never addressed their rights before ? Presumably in recognition of the weakness of this ar- 28 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court gument, both HHS and the principal dissent fall back on the broader contention that the Nation lacks a tradition of exempting for-profit corporations from generally applica- ble laws. By contrast, HHS contends, statutes like Title VII, 42 U.S. C. expressly exempt churches and other nonprofit religious institutions but not for-profit corporations. See Brief for HHS in No. 1–56, p. 26. In making this argument, however, HHS did not call to our attention the fact that some federal statutes do exempt categories of entities that include for-profit corporations from laws that would otherwise require these entities to engage in activities to which they object on grounds of conscience. See, 42 U.S. C. §00a–7(b)(2); §28n(a).27 If Title VII and similar laws show anything, it is that Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations. —————— 27 The principal dissent points out that “the exemption codified in §28n(a) was not enacted until three years after RFRA’s passage.” Post, at 16, n. 15. The dissent takes this to mean that RFRA did not, in fact, “ope[n] all statutory schemes to religion-based challenges by for- profit corporations” because if it had “there would be no need for a statute-specific, post-RFRA exemption of this sort.” This argument fails to recognize that the protection provided by §28n(a) differs significantly from the protection provided by RFRA. Section 28n(a) flatly prohibits discrimination against a covered healthcare facility for refusing to engage in certain activities related to abortion. If a covered healthcare facility challenged such discrimina- tion under RFRA, by contrast, the discrimination would be unlawful only if a court concluded, among other things, that there was a less restrictive means of achieving any compelling government interest. In addition, the dissent’s argument proves too much. Section 28n(a) applies evenly to “any health care entity”—whether it is a religious nonprofit entity or a for-profit entity. There is no dispute that RFRA protects religious nonprofit corporations, so if §28n(a) were redundant as applied to for-profit corporations, it would be equally redundant as applied to nonprofits. Cite as: 57 U. S. (2014) 2 Opinion of the Court 4 Finally, HHS contends that Congress could not have |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | Court 4 Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HHS goes so far as to raise the specter of “divisive, polarizing proxy battles over the reli- gious identity of large, publicly traded corporations such as IBM or General Electric.” Brief for HHS in No. 1–56, at 0. These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corpo- rate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occur- ring. For example, the idea that unrelated shareholders— including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s ap- plicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.28 HHS has provided no evidence that the purported problem of determining the sincerity of an asserted reli- gious belief moved Congress to exclude for-profit corpora- tions from RFRA’s protection. On the contrary, the scope of RLUIPA shows that Congress was confident of the ability of the federal courts to weed out insincere claims. RLUIPA applies to “institutionalized persons,” a category —————— 28 To qualify for RFRA’s protection, an asserted belief must be “sin- cere”; a corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail. Cf., United 8 F.d 717, 0 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court that consists primarily of prisoners, and by the time of RLUIPA’s enactment, the propensity of some prisoners to assert claims of dubious sincerity was well documented.2 Nevertheless, after our decision in City of Con- gress enacted RLUIPA to preserve the right of prisoners to raise religious liberty claims. If Congress thought that the federal courts were up to the job of dealing with insincere prisoner claims, there is no reason to believe that Con- gress limited RFRA’s reach out of concern for the seem- ingly less difficult task of doing the same in corporate cases. And if, as HHS seems to concede, Congress wanted RFRA to apply to nonprofit corporations, see, Reply Brief in No. 1–54, at |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | to nonprofit corporations, see, Reply Brief in No. 1–54, at 7–8, what reason is there to think that Congress believed that spotting insincere claims would be tougher in cases involving for-profits? HHS and the principal dissent express concern about the possibility of disputes among the owners of corpora- tions, but that is not a problem that arises because of RFRA or that is unique to this context. The owners of closely held corporations may—and sometimes do— disagree about the conduct of business. 1 Treatise of the Law of Corporations And even if RFRA did not exist, the owners of a company might well have a dispute relating to religion. For example, some might want a company’s stores to remain open on the Sabbath in order to make more money, and others might want the stores to close for religious reasons. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. See, ibid; §:2; Del. Code Ann., Tit. 8, §51 (2011) ; Green v. White, 8–84 ; Abate v. Walton, WL 520, *5 ; – 820 Cite as: 57 U. S. (2014) 1 Opinion of the Court may provide how “the business of the corporation shall be managed”). Courts will turn to that structure and the underlying state law in resolving disputes. For all these reasons, we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA.0 IV Because RFRA applies in these cases, we must next ask whether the HHS contraceptive mandate “substantially burden[s]” the exercise of religion. 42 U.S. C. – 1(a). We have little trouble concluding that it does. —————— 0 The principal dissent attaches significance to the fact that the “Senate voted down [a] so-called ‘conscience amendment,’ which would have enabled any employer or insurance provider to deny coverage based on its asserted religious beliefs or moral convictions.” Post, at 6. The dissent would evidently glean from that vote an intent by the Senate to prohibit for-profit corporate employers from refusing to offer contraceptive coverage for religious reasons, regardless of whether the contraceptive mandate could pass muster under RFRA’s standards. But that is not the only plausible inference from the failed amend- ment—or even the most likely. For one thing, the text of the amend- ment was “written so broadly that it would allow any employer to deny any health service to any American for virtually any reason—not just for religious objections.” 158 Cong. Rec. S1165 (emphasis added). Moreover, the amendment would have authorized a |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | S1165 (emphasis added). Moreover, the amendment would have authorized a blanket exemption for religious or moral objectors; it would not have subjected religious-based objections to the judicial scrutiny called for by RFRA, in which a court must consider not only the burden of a requirement on religious adherents, but the government’s interest and how nar- rowly tailored the requirement is. It is thus perfectly reasonable to believe that the amendment was voted down because it extended more broadly than the pre-existing protections of RFRA. And in any event, even if a rejected amendment to a bill could be relevant in other con- texts, it surely cannot be relevant here, because any “Federal statutory law adopted after November 16, 1 is subject to [RFRA] unless such law explicitly excludes such application by reference to [RFRA].” 42 U.S. C. –(b) It is not plausible to find such an explicit reference in the meager legislative history on which the dissent relies. 2 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court A As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They there- fore object on religious grounds to providing health insur- ance that covers methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 1–54, at n. 4, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs. If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe. If the companies continue to offer group health plans that do not cover the contraceptives at issue, they will be taxed $100 per day for each affected individual. 26 U.S. C. For Hobby Lobby, the bill could amount to $1. million per day or about $475 million per year; for Conestoga, the assessment could be $0,000 per day or $ million per year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums are surely substantial. It is true that the plaintiffs could avoid these assess- ments by dropping insurance coverage altogether and thus forcing their employees to obtain health insurance on one of the exchanges established under ACA. But if at least one of their full-time employees were to qualify for a sub- sidy on one of the government-run exchanges, this course would entail substantial economic consequences. The companies could face penalties of $2,000 per |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | economic consequences. The companies could face penalties of $2,000 per employee each year. These penalties would amount to roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel. B Although these totals are high, amici supporting HHS Cite as: 57 U. S. (2014) Opinion of the Court have suggested that the $2,000 per-employee penalty is actually less than the average cost of providing health insurance, see Brief for Religious Organizations 22, and therefore, they claim, the companies could readily elimi- nate any substantial burden by forcing their employees to obtain insurance in the government exchanges. We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party, see United Parcel Service, n. 2 ; 52, n. 1 (17); 64 U.S. 61, 70 (1), and there are strong reasons to adhere to that practice in these cases. HHS, which presumably could have compiled the relevant statistics, has never made this argument— not in its voluminous briefing or at oral argument in this Court nor, to our knowledge, in any of the numerous cases in which the issue now before us has been litigated around the country. As things now stand, we do not even know what the Government’s position might be with respect to these amici’s intensely empirical argument.1 For this same reason, the plaintiffs have never had an opportunity to respond to this novel claim that—contrary to their longstanding practice and that of most large employers— they would be better off discarding their employer insur- ance plans altogether. Even if we were to reach this argument, we would find it unpersuasive. As an initial matter, it entirely ignores the fact that the Hahns and Greens and their companies have religious reasons for providing health-insurance coverage for their employees. Before the advent of ACA, they were not legally compelled to provide insurance, but they never- theless did so—in part, no doubt, for conventional business —————— 1 Indeed, one of HHS’s stated reasons for establishing the religious accommodation was to “encourag[e] eligible organizations to continue to offer health coverage.” 4 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court reasons, but in part because their religious beliefs govern their relations with their employees. See App. to Pet. for Cert. in No. 1–56, p. 11g; App. in No. 1–54, at 1. Putting aside the religious dimension of the decision to provide insurance, moreover, it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | more than the cost of dropping their insurance plans and paying the ACA penalty. Health insurance is a benefit that em- ployees value. If the companies simply eliminated that benefit and forced employees to purchase their own insur- ance on the exchanges, without offering additional com- pensation, it is predictable that the companies would face a competitive disadvantage in retaining and attracting skilled workers. See App. in No. 1–54, at 15. The companies could attempt to make up for the elimi- nation of a group health plan by increasing wages, but this would be costly. Group health insurance is generally less expensive than comparable individual coverage, so the amount of the salary increase needed to fully compensate for the termination of insurance coverage may well exceed the cost to the companies of providing the insurance. In addition, any salary increase would have to take into account the fact that employees must pay income taxes on wages but not on the value of employer-provided health insurance. 26 U.S. C. Likewise, employers can deduct the cost of providing health insurance, see but apparently cannot deduct the amount of the penalty that they must pay if insurance is not pro- vided; that difference must be taken into account. Given these economic incentives, it is far from clear that it would be financially advantageous for an employer to drop coverage and pay the penalty.2 —————— 2 Attempting to compensate for dropped insurance by raising wages would present administrative difficulties. In order to provide full Cite as: 57 U. S. (2014) 5 Opinion of the Court In sum, we refuse to sustain the challenged regulations on the ground—never maintained by the Government— that dropping insurance coverage eliminates the substan- tial burden that the HHS mandate imposes. We doubt that the Congress that enacted RFRA—or, for that matter, ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sin- cerely held religious beliefs or making all of their employ- ees lose their existing healthcare plans. C In taking the position that the HHS mandate does not impose a substantial burden on the exercise of religion, HHS’s main argument (echoed by the principal dissent) is basically that the connection between what the objecting parties must do (provide health-insurance coverage for four methods of contraception that may operate after the fertilization of an egg) and the end that they find to be morally wrong (destruction of an embryo) is simply too attenuated. Brief for HHS in 1–54, pp. 1–4; post, at 22–2. HHS and the dissent note that providing the coverage |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | 22–2. HHS and the dissent note that providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four meth- ods at issue. —————— compensation for employees, the companies would have to calculate the value to employees of the convenience of retaining their employer- provided coverage and thus being spared the task of attempting to find and sign up for a comparable plan on an exchange. And because some but not all of the companies’ employees may qualify for subsidies on an exchange, it would be nearly impossible to calculate a salary increase that would accurately restore the status quo ante for all employees. This argument is not easy to square with the position taken by HHS in providing exemptions from the contraceptive mandate for religious employers, such as churches, that have the very same reli- gious objections as the Hahns and Greens and their companies. The connection between what these religious employers would be required 6 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.4 Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the princi- —————— to do if not exempted (provide insurance coverage for particular contra- ceptives) and the ultimate event that they find morally wrong (destruc- tion of an embryo) is exactly the same. Nevertheless, as discussed, HHS and the Labor and Treasury Departments authorized the exemp- tion from the contraceptive mandate of group health plans of certain religious employers, and later expanded the exemption to include certain nonprofit organizations with religious objections to contracep- tive coverage. 78 Fed. |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | organizations with religious objections to contracep- tive coverage. 78 Fed. Reg. 871. When this was done, the Govern- ment made clear that its objective was to “protec[t]” these religious objectors “from having to contract, arrange, pay, or refer for such coverage.” Those exemptions would be hard to understand if the plaintiffs’ objections here were not substantial. 4 See, Oderberg, The Ethics of Co-operation in Wrongdoing, in Modern Moral Philosophy 20–228 (A. O’Hear ed. 2004); T. Higgins, Man as Man: The Science and Art of Ethics 5, 55 (14) (“The general principles governing cooperation” in wrongdoing—i.e., “physical activity (or its omission) by which a person assists in the evil act of another who is the principal agent”—“present troublesome difficulties in application”); 1 H. Davis, Moral and Pastoral Theology 41 (15) (Cooperation occurs “when A helps B to accomplish an external act by an act that is not sinful, and without approving of what B does”). Cite as: 57 U. S. (2014) 7 Opinion of the Court pal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. See, (“Re- peatedly and in many different contexts, we have warned that courts must not presume to determine the plausi- bility of a religious claim”); ; Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, U.S. 440, Moreover, in U.S. 707 we considered and rejected an argument that is nearly identical to the one now urged by HHS and the dissent. In Thomas, a Jehovah’s Witness was initially employed making sheet steel for a variety of industrial uses, but he was later transferred to a job making turrets for tanks. Because he objected on religious grounds to participating in the manufacture of weapons, he lost his job and sought unemployment compensation. Ruling against the em- ployee, the state court had difficulty with the line that the employee drew between work that he found to be con- sistent with his religious beliefs (helping to manufacture steel that was used in making weapons) and work that he found morally objectionable (helping to make the weapons themselves). This Court, however, held that “it is not for us to say that the line he drew was an unreasonable one.”5 Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the in- surance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | religious beliefs are mistaken or insubstantial. Instead, our “narrow function in this context is to —————— 5 The principal dissent makes no effort to reconcile its view about the substantial-burden requirement with our decision in Thomas. 8 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court determine” whether the line drawn reflects “an honest conviction,” and there is no dispute that it does. HHS nevertheless compares these cases to decisions in which we rejected the argument that the use of general tax revenue to subsidize the secular activities of religious institutions violated the Free Exercise See Tilton v. Richardson, 40 U.S. 672, ; Board of Ed. of Central School Dist. No. 2 U.S. 26, 248–24 (168). But in those cases, while the subsidies were clearly contrary to the challengers’ views on a secu- lar issue, namely, proper church-state relations, the chal- lengers never articulated a religious objection to the sub- sidies. As we put it in Tilton, they were “unable to identify any coercion directed at the practice or exercise of their religious beliefs.” 40 U.S., at (plurality opin- ion); see (“[A]ppellants have not con- tended that the New York law in any way coerces them as individuals in the practice of their religion”). Here, in contrast, the plaintiffs do assert that funding the specific contraceptive methods at issue violates their religious beliefs, and HHS does not question their sincerity. Be- cause the contraceptive mandate forces them to pay an enormous sum of money—as much as $475 million per year in the case of Hobby Lobby—if they insist on provid- ing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs. V Since the HHS contraceptive mandate imposes a sub- stantial burden on the exercise of religion, we must move on and decide whether HHS has shown that the mandate both “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of further- ing that compelling governmental interest.” 42 U.S. C. Cite as: 57 U. S. (2014) Opinion of the Court –1(b). A HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” Brief for HHS in No. 1– 54, at 46, 4. RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demon- strate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O’, |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | whose sincere exercise of religion is being substantially burdened.” O’, 546 U.S., at 40–41 (quoting –1(b)). This requires us to “loo[k] beyond broadly formulated interests” and to “scru- tiniz[e] the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases. O at 41. In addition to asserting these very broadly framed interests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have ac- cess to all FDA-approved contraceptives without cost sharing. See Brief for HHS in No. 1–54, at 14–15, 4; see Brief for HHS in No. 1–56, at 10, 48. Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut, 81 U.S. 47, 485–486 (165), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.” Brief for HHS in No. 1–54, at 50 (internal quotation marks omitted). The objecting parties contend that HHS has not shown that the mandate serves a compelling government inter- est, and it is arguable that there are features of ACA that support that view. As we have noted, many employees— 40 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court those covered by grandfathered plans and those who work for employers with fewer than 50 employees—may have no contraceptive coverage without cost sharing at all. HHS responds that many legal requirements have exceptions and the existence of exceptions does not in itself indicate that the principal interest served by a law is not compelling. Even a compelling interest may be out- weighed in some circumstances by another even weightier consideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfa- thered plans, is simply the interest of employers in avoid- ing the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” that provide what HHS has described as “particularly signifi- cant protections.” 75 Fed. Reg. 4540 But the contraceptive mandate is expressly excluded from this subset. We find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to con- sider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling govern- mental interest.” |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | least restrictive means of furthering that compelling govern- mental interest.” –1(b)(2). B The least-restrictive-means standard is exceptionally demanding, see City of 521 U.S., at 52, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the ob- jecting parties in these cases. See §–1(a), (b) (requiring the Government to “demonstrat[e] that applica- tion of [a substantial] burden to the person is the least Cite as: 57 U. S. (2014) 41 Opinion of the Court restrictive means of furthering [a] compelling governmen- tal interest” ). The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see –1(b)(2), that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA, are designed primarily for emergency use. See Birth Control: Medicines to Help You, online at http:// www.fda.gov/forconsumers/byaudience/forwomen/freepubli cations/ucm1215.htm. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely, however, that the cost of providing the forms of contracep- tives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurance- coverage provisions will cost the Federal Government more than $1. trillion through the next decade. See CBO, Updated Estimates of the Effects of the Insurance Cover- age Provisions of the Affordable Care Act, April 2014, p. 2.6 If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this —————— 6 Online at http://cbo.gov/publication/4521. 42 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court important goal. HHS contends that RFRA does not permit us to take this option into account because “RFRA cannot be used to require creation of entirely new programs.” |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | cannot be used to require creation of entirely new programs.” Brief for HHS in 1–54, at 15.7 But we see nothing in RFRA that supports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may —————— 7 In a related argument, HHS appears to maintain that a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legal obligation requiring the plaintiff to confer benefits on third parties. Nothing in the text of RFRA or its basic purposes supports giving the Government an entirely free hand to impose burdens on religious exercise so long as those burdens confer a benefit on other individuals. It is certainly true that in applying RFRA “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” (applying RLUIPA). That consideration will often inform the analysis of the Government’s compelling interest and the availability of a less restrictive means of advancing that interest. But it could not reasona- bly be maintained that any burden on religious exercise, no matter how onerous and no matter how readily the government interest could be achieved through alternative means, is permissible under RFRA so long as the relevant legal obligation requires the religious adherent to confer a benefit on third parties. Otherwise, for example, the Government could decide that all supermarkets must sell alcohol for the convenience of customers (and thereby exclude Muslims with religious objections from owning supermarkets), or it could decide that all restaurants must remain open on Saturdays to give employees an opportunity to earn tips (and thereby exclude Jews with religious objections from owning restaurants). By framing any Government regulation as benefiting a third party, the Government could turn all regulations into entitle- ments to which nobody could object on religious grounds, rendering RFRA meaningless. In any event, our decision in these cases need not result in any detrimental effect on any third party. As we explain, see infra, at 4–44, the Government can readily arrange for other methods of providing contraceptives, without cost sharing, to employees who are unable to obtain them under their health-insurance plans due to their employers’ religious objections. Cite as: 57 U. S. (2014) 4 Opinion of the Court be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. –(c) (RLUIPA: “[T]his chapter |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | to accommodate citizens’ religious beliefs. Cf. –(c) (RLUIPA: “[T]his chapter may require a government to incur expenses in its own opera- tions to avoid imposing a substantial burden on religious exercise.”). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law. In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its dis- posal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. See at –10, and nn. 8–. Under that accommodation, the organization can self- certify that it opposes providing coverage for particular contraceptive services. See 45 CFR §§147.11(b)(4), (c)(1); 26 CFR §(a)(4), (b). If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements on the eligi- ble organization, the group health plan, or plan partici- pants or beneficiaries.” (c)(2); 26 CFR (c)(2).8 —————— 8 HHS has concluded that insurers that insure eligible employers 44 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plain- tiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.40 The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.41 Under the accommodation, the plaintiffs’ female employees would continue to receive contraceptive coverage without cost sharing for all FDA-approved con- traceptives, and they would continue to “face minimal —————— opting out of the contraceptive mandate and that are required to pay for contraceptive coverage under the accommodation will not experience an increase in costs because the “costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” With respect to self-insured plans, the regulations establish a |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | health.” With respect to self-insured plans, the regulations establish a mecha- nism for the eligible employers’ third-party administrators to obtain a compensating reduction in the fee paid by insurers to participate in the federally facilitated exchanges. HHS believes that this system will not have a material effect on the funding of the exchanges because the “payments for contraceptive services will represent only a small portion of total [federally facilitated exchange] user fees.” at 882; see 26 CFR (b)(). See n. 40 The principal dissent faults us for being “noncommital” in refusing to decide a case that is not before us here. Post, at 0. The less re- strictive approach we describe accommodates the religious beliefs as- serted in these cases, and that is the only question we are permitted to address. 41 In the principal dissent’s view, the Government has not had a fair opportunity to address this accommodation, post, at 0. n. 27, but the Government itself apparently believes that when it “provides an excep- tion to a general rule for secular reasons (or for only certain religious reasons), [it] must explain why extending a comparable exception to a specific plaintiff for religious reasons would undermine its compelling interests.” Brief for the United States as Amicus Curiae in Holt v. Hobbs, No. 1–6827, p. 10, now pending before the Court. Cite as: 57 U. S. (2014) 45 Opinion of the Court logistical and administrative obstacles,” post, at 28 (inter- nal quotation marks omitted), because their employers’ insurers would be responsible for providing information and coverage, see, 45 CFR §§147.11(c)–(d); cf. 26 CFR §(b), (d). Ironically, it is the dissent’s approach that would “[i]mped[e] women’s receipt of bene- fits by ‘requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit,’ ” post, at 28, because the dissent would effectively compel religious employers to drop health- insurance coverage altogether, leaving their employees to find individual plans on government-run exchanges or elsewhere. This is indeed “scarcely what Congress con- templated.” C HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to sub- stantiate this prediction.42 HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employ- ers sought exemption, on religious grounds, |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | significant number of employ- ers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate. It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all —————— 42 Cf. 42 U.S. C. §16s (Federal “program for distribution of pediat- ric vaccines” for some uninsured and underinsured children). 46 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for in- stance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome. In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance- coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage require- ments, such as immunizations, may be supported by dif- ferent interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them. The principal dissent raises the possibility that discrim- ination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 2–. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the work- force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that criti- cal goal. HHS raises for the first time in this Court the argument that applying the contraceptive mandate to for- profit employers with sincere religious objections is essen- tial to the comprehensive health-insurance scheme that ACA establishes. HHS analogizes the contraceptive man- date to the requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection of an employer, but these cases are quite different. Our holding in Lee turned primarily on the special problems Cite as: 57 U. S. (2014) 47 Opinion of the Court associated with a national system of taxation. We noted that “[t]he obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes.” 455 U.S., at 2. Based |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | obligation to pay income taxes.” 455 U.S., at 2. Based on that premise, we explained that it was untenable to allow individuals to seek exemptions from taxes based on religious objections to particular Government expenditures: “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as de- voted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.” We observed that “[t]he tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious be- lief.” ; see O 546 U.S., at 45. Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes. Because of the enormous variety of govern- ment expenditures funded by tax dollars, allowing tax- payers to withhold a portion of their tax obligations on religious grounds would lead to chaos. Recognizing exemptions from the contraceptive mandate is very differ- ent. ACA does not create a large national pool of tax revenue for use in purchasing healthcare coverage. Ra- ther, individual employers like the plaintiffs purchase insurance for their own employees. And contrary to the principal dissent’s characterization, the employers’ contri- butions do not necessarily funnel into “undifferentiated funds.” Post, at 2. The accommodation established by HHS requires issuers to have a mechanism by which to “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” (c)(2)(ii). 48 BURWELL v. HOBBY LOBBY STORES, INC. Opinion of the Court Recognizing a religious accommodation under RFRA for particular coverage requirements, therefore, does not threaten the viability of ACA’s comprehensive scheme in the way that recognizing religious objections to particular expenditures from general tax revenues would.4 In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself. The dissent worries about forc- ing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws, and the dissent expresses a desire to keep the courts out of this business. See post, at 2–5. In making this plea, the dissent reiterates a point made forcefully by the Court in – 88 (applying the Sherbert test to all free-exercise claims “would open |
Justice Alito | 2,014 | 8 | majority | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | (applying the Sherbert test to all free-exercise claims “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind”). But Congress, in enacting RFRA, took the position that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U.S. C. (a)(5). The wisdom of Congress’s judgment on this —————— 4 HHS highlights certain statements in the opinion in Lee that it regards as supporting its position in these cases. In particular, HHS notes the statement that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Lee was a free exercise, not a RFRA, case, and the statement to which HHS points, if taken at face value, is squarely inconsistent with the plain meaning of RFRA. Under RFRA, when followers of a particular religion choose to enter into commercial activity, the Government does not have a free hand in imposing obliga- tions that substantially burden their exercise of religion. Rather, the Government can impose such a burden only if the strict RFRA test is met. Cite as: 57 U. S. (2014) 4 Opinion of the Court matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful. * * * The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statu- tory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns. The judgment of the Tenth Circuit in No. 1–54 is affirmed; the judgment of the Third Circuit in No. 1–56 is reversed, and that case is remanded for further proceed- ings consistent with this opinion. It is so ordered. Cite as: 57 U. S. (2014) 1 KENNEDY, J., concurring SUPREME COURT OF THE UNITED STATES Nos. 1–54 and 1–56 SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS 1–54 v. HOBBY LOBBY STORES, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT AND CONESTOGA WOOD SPECIALTIES CORPORATION ET AL., PETITIONERS 1–56 v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. |
Justice Powell | 1,980 | 17 | majority | Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY | https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/ | The case presents the question whether a regulation of the Public Service Commission of the state of New York violates the First and Fourteenth Amendments because it completely bans promotional advertising by an electrical utility. I In December 1973, the Commission, appeals here, ordered electric utilities in New York State to cease all advertising that "promot[es] the use of electricity." App. to Juris. *559 Statement 31a. The order was based on the Commission's finding that "the interconnected utility system in New York State does not have sufficient fuel stocks or sources of supply to continue furnishing all customer demands for the 1973-1974 winter." at 26a. Three years later, when the fuel shortage had eased, the Commission requested comments from the public on its proposal to continue the ban on promotional advertising. Central Hudson Gas & Electric Corp., the appellant in this case, opposed the ban on First Amendment grounds. App. A10. After reviewing the public comments, the Commission extended the prohibition in a Policy Statement issued on February 25, 1977. The Policy Statement divided advertising expenses "into two broad categories: promotionaladvertising intended to stimulate the purchase of utility servicesand institutional and informational, a broad category inclusive of all advertising not clearly intended to promote sales."[1] App. to Juris. Statement 35a. The Commission declared all promotional advertising contrary to the national policy of conserving energy. It acknowledged that the ban is not a perfect vehicle for conserving energy. For example, the Commissioner's order prohibits promotional advertising to develop consumption during periods when demand for electricity is low. By limiting growth in "off-peak" consumption, the ban limits the "beneficial side effects" of such growth in terms of more efficient use of existing powerplants. at 37a. And since oil dealers are not under the Commissioner's jurisdiction and *560 thus remain free to advertise, it was recognized that the ban can achieve only "piecemeal conservationism." Still, the Commission adopted the restriction because it was deemed likely to "result in some dampening of unnecessary growth" in energy consumption. The Commission's order explicitly permitted "informational" advertising designed to encourage "shifts of consumption" from peak demand times to periods of low electricity demand. Information advertising would not seek to increase aggregate consumption, but would invite a leveling of demand throughout any given 24-hour period. The agency offered to review "specific proposals by the companies for specifically described [advertising] programs that meet these criteria." at 38a. When it rejected requests for rehearing on the Policy Statement, the Commission supplemented its rationale for the advertising ban. The agency observed that additional electricity probably would be more expensive to produce |
Justice Powell | 1,980 | 17 | majority | Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY | https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/ | that additional electricity probably would be more expensive to produce than existing output. Because electricity rates in New York were not then based on marginal cost,[2] the Commission feared that additional power would be priced below the actual cost of generation. The additional electricity would be subsidized by all consumers through generally higher rates. at 57a-58a. The state agency also thought that promotional advertising would give "misleading signals" to the public by appearing to encourage energy consumption at a time when conservation is needed. at 59a. Appellant challenged the order in state court, arguing that the Commission had restrained commercial speech in violation of the First and Fourteenth Amendments.[3] The Commission's *561 order was upheld by the trial court and at the intermediate appellate level.[4] The New York Court of Appeals affirmed. It found little value to advertising in "the noncompetitive market in which electric corporations operate." Consolidated Edison Since consumers "have no choice regarding the source of their electric power," the court denied that "promotional advertising of electricity might contribute to society's interest in `informed and reliable' economic decisionmaking." The court also observed that by encouraging consumption, promotional advertising would only exacerbate the current energy situation. at The court concluded that the governmental interest in the prohibition outweighed the limited constitutional value of the commercial speech at issue. We noted probable jurisdiction, and now reverse. II The Commission's order restricts only commercial speech, that is, expression related solely to the economic interests of the speaker and its audience. Virginia Pharmacy ; ; The First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation. Virginia Pharmacy -. Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible *562 dissemination of information. In applying the First Amendment to this area, we have rejected the "highly paternalistic" view that government has complete power to suppress or regulate commercial speech. "[P]eople will perceive their own best interest if only they are well enough informed, and the best means to that end is to open the channels of communication, rather than to close them." ; see Linmark Associates, Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all. Nevertheless, our decisions have recognized "the `commonsense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." ; see ; see also Jackson & Jeffries, |
Justice Powell | 1,980 | 17 | majority | Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY | https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/ | of speech." ; see ; see also Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment,[5] The *563 Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed 457. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation. The First Amendment's concern for commercial speech is based on the informational function of advertising. See First National Bank of Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, ; or *564 commercial speech related to illegal activity, Pittsburgh Press[6] If the communication is neither misleading nor related to unlawful activity, the government's power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State's goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive. Under the first criterion, the Court has declined to uphold regulations that only indirectly advance the state interest involved. In both Bates and Virginia Pharmacy the Court concluded that an advertising ban could not be imposed to protect the ethical or performance standards of a profession. The Court noted in Virginia Pharmacy that "[t]he advertising ban does not directly affect professional standards one way or the other." In Bates, the Court overturned an advertising prohibition that was designed to protect the "quality" of a lawyer's work. *565 "Restraints on advertising are an ineffective way of deterring shoddy work."[7] The second criterion recognizes that the First Amendment mandates that speech restrictions be "narrowly drawn." In re Primus,[8] The regulatory technique may extend only as far as the interest it serves. The State cannot regulate speech that poses no danger to the asserted state interest, see First National Bank of nor can it completely suppress information when narrower restrictions on expression would serve its interest as well. For example, in Bates the Court explicitly did not "foreclose the possibility that some limited supplementation, by |
Justice Powell | 1,980 | 17 | majority | Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY | https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/ | did not "foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like might be required" in promotional materials. See Virginia Pharmacy And in we held that the State's "arguments do not justify the total suppression of advertising concerning contraceptives." This holding left open the possibility that *566 the State could implement more carefully drawn restrictions. See ;[9] In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. III We now apply this four-step analysis for commercial speech to the Commission's arguments in support of its ban on promotional advertising. A The Commission does not claim that the expression at issue either is inaccurate or relates to unlawful activity. Yet the New York court of Appeals questioned whether Central Hudson's advertising is protected commercial speech. Because appellant holds a monopoly over the sale of electricity in its service area, the state court suggested that the Commission's order restricts no commercial speech of any worth. The court stated that advertising in a "noncompetitive market" *567 could not improve the decisionmaking of consumers. 47 N.Y. 2d, at 390 N.E.2d, at The court saw no constitutional problem with barring commercial speech that it viewed as conveying little useful information. The reasoning falls short of establishing that apellant's advertising is not commercial speech protected by the First Amendment. Monopoly over the supply of a product provides no protection from competition with substitutes for that product. Electric utilities compete with suppliers of fuel oil land natural gas in several markets, such as those for home heating and industrial power. This Court noted the existence of interfuel competition 45 years ago, see West Ohio Gas Each energy source continues to offer peculiar advantages and disadvantages that may influence consumer choice. For consumers in those competitive markets, advertising by utilities is just as valuable as advertising by unregulated firms.[10] Even in monopoly markets, the suppression of advertising reduces the information available for consumer decisions and thereby defeats the purpose of the First Amendment. The New York court's argument appears to assume that the providers of a monopoly service or product are willing to pay for wholly |
Justice Powell | 1,980 | 17 | majority | Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY | https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/ | monopoly service or product are willing to pay for wholly ineffective advertising. Most businesses even regulated monopoliesare unlikely to underwrite promotional advertising that is of no interest or use to consumers. Indeed, a monopoly enterprise legitimately may wish to inform the public that it has developed new services or terms of doing business. A consumer may need information to aid his decision whether or not to use the monopoly services at all, or how much of the service he should purchase. In the absence of factors that would distort the decision to advertise, we *568 may assume that the willingness of a business to promote its products reflects a belief that consumers are interested in the advertising.[] Since no such extraordinary conditions have been identified in this case, appellant's monopoly position does not alter the First Amendment's protection for its commercial speech. B The Commission offers two state interests as justifications for the ban on promotional advertising. The first concerns energy conservation. Any increase in demand for electricity during peak or off-peak periodsmeans greater consumption of energy. The Commission argues, and the New York court agreed, that the State's interest in conserving energy is sufficient to support suppression of advertising designed to increase consumption of electricity. In view of our country's dependence on energy resources beyond our control, no one can doubt the importance of energy conservation. Plainly, therefore, the state interest asserted is substantial. The Commission also argues that promotional advertising will aggravate inequities caused by the failure to base the utilities' rates on marginal cost. The utilities argued to the Commission that if they could promote the use of electricity in periods of low demand, they would improve their utilization of generating capacity. The Commission responded that promotion of off-peak consumption also would increase consumption during peak periods. If peak demand were to rise, the absence of marginal cost rates would mean that the rates charged for the additional power would not reflect the true costs of expanding production. Instead, the extra costs would *569 be borne by all consumers through higher overall rates. Without promotional advertising, the Commission stated, this inequitable turn of events would be less likely to occur. The choice among rate structures involves difficult and important questions of economic supply and distributional fairness.[12] The State's concern that rates be fair and efficient represents a clear and substantial governmental interest. C Next, we focus on the relationship between the State's interests and the advertising ban. Under this criterion, the Commission's laudable concern over the equity and efficiency of appellant's rates does not provide a constitutionally |
Justice Powell | 1,980 | 17 | majority | Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY | https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/ | and efficiency of appellant's rates does not provide a constitutionally adequate reason for restricting protected speech. The link between the advertising prohibition and appellant's rate structure is, at most, tenuous. The impact of promotional advertising on the equity of appellant's rates is highly speculative. Advertising to increase off-peak usage would have to increase peak usage, while other factors that directly affect the fairness and efficiency of appellant's rates remained constant. Such conditional and remote eventualities simply cannot justify silencing appellant's promotional advertising. In contrast, the State's interest in energy conservation is directly advanced by the Commission order at issue here. There is an immediate connection between advertising and demand for electricity. Central Hudson would not contest the advertising ban unless it believed that promotion would increase its sales. Thus, we find a direct link between the state interest in conservation and the Commission's order. D We come finally to the critical inquiry in this case: whether the Commission's complete suppression of speech ordinarily protected by the First Amendment is no more extensive than *570 necessary to further the State's interest in energy conservation. The Commission's order reaches all promotional advertising, regardless of the impact of the touted service on overall energy use. But the energy conservation rationale, as important as it is, cannot justify suppressing information about electric devices or services that would cause no net increase in total energy use. In addition, no showing has been made that a more limited restriction on the content of promotional advertising would not serve adequately the State's interests. Appellant insists that but for the ban, it would advertise products and services that use energy efficiently. These include the "heat pump," which both parties acknowledge to be a major improvement in electric heating, and the use of electric heat as a "backup" to solar and other heat sources. Although the Commission has questioned the efficiency of electric heating before this Court, neither the Commission's Policy Statement nor its order denying rehearing made findings on this issue. In the absence of authoritative findings to the contrary, we must credit as within the realm of possibility the claim that electric heat can be an efficient alternative in some circumstances. The Commission's order prevents appellant from promoting electric services that would reduce energy use by diverting demand from less efficient sources, or that would consume roughly the same amount of energy as do alternative sources. In neither situation would the utility's advertising endanger conservation or mislead the public. To the extent that the Commission's order suppresses speech that in no way impairs the State's interest in |
Justice Powell | 1,980 | 17 | majority | Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY | https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/ | speech that in no way impairs the State's interest in energy conservation, the Commission's order violates the First and Fourteenth Amendments and must be invalidated. See First National Bank of The Commission also has not demonstrated that its interest in conservation cannot be protected adequately by more limited regulation of appellant's commercial To further *571 its policy of conservation, the Commission could attempt to restrict the format and content of Central Hudson's advertising. It might, for example, require that the advertisements include information about the relative efficiency and expense of the offered service, both under current conditions and for the foreseeable future. Cf. cert. denied sub nom. Tobacco Institute,[13] In the absence of a showing that more limited speech regulation would be ineffective, we cannot approve the complete suppression of Central Hudson's advertising.[14] IV Our decision today in no way disparages the national interest in energy conservation. We accept without reservation the argument that conservation, as well as the development of alternative energy sources, is an imperative national goal. Administrative bodies empowered to regulate electric utilities have the authorityand indeed the dutyto take appropriate action to further this goal. When, however, such action involves *5A the suppression of speech, the First and Fourteenth Amendments require that the restriction be no more extensive than is necessary to serve the state interest. In this case, the record before us fails to show that the total ban on promotional advertising meets this requirement.[15] Accordingly, the judgment of the New York Court of Appeals is Reversed. *5B MR. JUSTICE BRENNAN, concurring in the judgment. |
per_curiam | 1,971 | 200 | per_curiam | Durham v. United States | https://www.courtlistener.com/opinion/108288/durham-v-united-states/ | Petitioner was convicted of having knowingly possessed a counterfeit $20 bill. After the Court of Appeals for the Ninth Circuit affirmed his conviction he filed this petition for a writ of certiorari. We are now advised that petitioner has died. It is true that the petition for certiorari is out of time under our Rule 22 (2), though timeliness under our rules, of course, presents no jurisdictional question. Subsequent to the affirmance of his conviction below, petitioner filed a timely petition for rehearing. Upon his inquiry to the Court of Appeals he was informed that he would be notified as to the disposition of his petition as soon as the court acted. When several months passed without any word, petitioner again wrote to that court. In reply, on September 8, 1970, he received a copy of the *482 order dated March 5, 1970, denying his petition for rehearing. Within three weeks from receipt of the denial from the Court of Appeals his petition for a writ of certiorari was docketed in this Court. On these facts waiver of our Rule 22 is proper. Our cases where a petitioner dies while a review is pending are not free of ambiguity. In a recent mandamus action the petitioner died and we granted certiorari, vacated the judgment below, and ordered the complaint dismissed. In a state habeas corpus case we granted certiorari and vacated the judgment so that the state court could take whatever action it deemed proper. Our practice in cases on direct review from state convictions has been to dismiss the proceedings. See In an earlier case the Court announced the appeal had abated, while in another the Court stated the cause had abated. In federal criminal cases we developed the practice of dismissing the writ of certiorari and remanding the cause to the court below. ; American Tobacco 815 n. 11; United 520 n. 1. We have cited United rev'd sub nom. United and United in suggesting such disposition on remand "as law and justice require," but beyond this we have basically allowed the scope of the abatement to be determined by the lower federal courts. The status of abatement caused by death on direct review has recently been discussed by the Court of Appeals for the Eighth Circuit in In reviewing the cases that court concluded *483 that the lower federal courts were unanimous on the rule to be applied: death pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception.[*]Id., at 320. As stated in |
Justice Stevens | 2,009 | 16 | majority | Forest Grove School Dist. v. T. A. | https://www.courtlistener.com/opinion/145855/forest-grove-school-dist-v-t-a/ | The Individuals with Disabilities Education Act (IDEA or Act), as amended, 20 U.S. C. et seq., requires States receiving federal funding to make a “free appropriate public education” (FAPE) available to all children with disabilities residing in the State, We have previously held that when a public school fails to provide a FAPE and a child’s parents place the child in an appropriate private school without the school district’s consent, a court may require the dis trict to reimburse the parents for the cost of the private edu See School Comm. of The question presented in this case is whether the IDEA Amendments of 1997 (Amendments), categorically prohibit reimbursement for private-education costs if a child has not “previously received special education and related services under the authority of a public agency.” We hold that the Amendments impose no such categorical bar. 2 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court I Respondent T. A. attended public schools in the Forest Grove School District (School District or District) from the time he was in kindergarten through the winter of his junior year of high school. From kindergarten through eighth grade, respondent’s teachers observed that he had trouble paying attention in class and completing his as signments. When respondent entered high school, his difficulties increased. In December 2000, during respondent’s freshman year, his mother contacted the school counselor to discuss re spondent’s problems with his schoolwork. At the end of the school year, respondent was evaluated by a school psychologist. After interviewing him, examining his school records, and administering cognitive ability tests, the psychologist concluded that respondent did not need further testing for any learning disabilities or other health impairments, including attention deficit hyperactivity disorder (ADHD). The psychologist and two other school officials discussed the evaluation results with respondent’s mother in June 2001, and all agreed that respondent did not qualify for special-education services. Respondent’s parents did not seek review of that decision, although the hearing examiner later found that the School District’s evaluation was legally inadequate because it failed to address all areas of suspected disability, including ADHD. With extensive help from his family, respondent com pleted his sophomore year at Forest Grove High School, but his problems worsened during his junior year. In February 2003, respondent’s parents discussed with the School District the possibility of respondent completing high school through a partnership program with the local community college. They also sought private professional advice, and in March 2003 respondent was diagnosed with ADHD and a number of disabilities related to learning and memory. Advised by the private |
Justice Stevens | 2,009 | 16 | majority | Forest Grove School Dist. v. T. A. | https://www.courtlistener.com/opinion/145855/forest-grove-school-dist-v-t-a/ | disabilities related to learning and memory. Advised by the private specialist that respon Cite as: 557 U. S. (2009) 3 Opinion of the Court dent would do best in a structured, residential learning environment, respondent’s parents enrolled him at a private academy that focuses on educating children with special needs. Four days after enrolling him in private school, respon dent’s parents hired a lawyer to ascertain their rights and to give the School District written notice of respondent’s private placement. A few weeks later, in April 2003, respondent’s parents requested an administrative due process hearing regarding respondent’s eligibility for special-education services. In June 2003, the District engaged a school psychologist to assist in determining whether respondent had a disability that significantly interfered with his educational performance. Respon dent’s parents cooperated with the District during the evaluation process. In July 2003, a multidisciplinary team met to discuss whether respondent satisfied IDEA’s dis ability criteria and concluded that he did not because his ADHD did not have a sufficiently significant adverse impact on his educational performance. Because the School District maintained that respondent was not eligi ble for special-education services and therefore declined to provide an individualized education program (IEP),1 re spondent’s parents left him enrolled at the private acad emy for his senior year. The administrative review process resumed in Septem ber 2003. After considering the parties’ evidence, includ ing the testimony of numerous experts, the hearing officer issued a decision in January finding that respon dent’s ADHD adversely affected his educational perform ance and that the School District failed to meet its obliga —————— 1 An IEP is an education plan tailored to a child’s unique needs that is designed by the school district in consultation with the child’s parents after the child is identified as eligible for special-education services. See 20 U.S. C. 1414(d). 4 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court tions under IDEA in not identifying respondent as a stu dent eligible for special-education services. Because the District did not offer respondent a FAPE and his private school placement was appropriate under IDEA, the hear ing officer ordered the District to reimburse respondent’s parents for the cost of the private-school tuition.2 The School District sought judicial review pursuant to arguing that the hearing officer erred in grant ing reimbursement. The District Court accepted the hearing officer’s findings of fact but set aside the reim bursement award after finding that the 1997 Amendments categorically bar reimbursement of private-school tuition for students who have not “previously received special education and related services under the authority |
Justice Stevens | 2,009 | 16 | majority | Forest Grove School Dist. v. T. A. | https://www.courtlistener.com/opinion/145855/forest-grove-school-dist-v-t-a/ | “previously received special education and related services under the authority of a public agency.” 20 U.S. C. The District Court further held that, “[e]ven assuming that tuition reimbursement may be ordered in an extreme case for a student not receiving special education services, under general principles of equity where the need for special education was obvious to school authorities,” the facts of this case do not support equitable relief. App. to Pet. for Cert. 53a. The Court of Appeals for the Ninth Circuit reversed and remanded for further proceedings. The court first noted that, prior to the 1997 Amendments, “IDEA was silent on the subject of private school reimbursement, but courts had granted such reimbursement as ‘appropriate’ relief under principles of equity pursuant to 20 U.S. C. (citing Bur 471 U. S., at ). It then held that the Amend ments do not impose a categorical bar to reimbursement —————— 2 Althoughit was respondent’s parents who initially sought reim bursement, when respondent reached the age of majority in 2003 his parents’ rights under IDEA transferred to him pursuant to Ore. Admin. Rule 581–015–2325(1) Cite as: 557 U. S. (2009) 5 Opinion of the Court when a parent unilaterally places in private school a child who has not previously received special-education services through the public school. Rather, such students “are eligible for reimbursement, to the same extent as before the 1997 amendments, as ‘appropriate’ relief pursuant to –1088. The Court of Appeals also rejected the District Court’s analysis of the equities as resting on two legal errors. First, because it found that generally bars relief in these circumstances, the District Court wrongly stated that relief was appropriate only if the equities were sufficient to “ ‘override’ ” that statutory limi tation. The District Court also erred in asserting that reimbursement is limited to “ ‘extreme’ ” cases. (emphasis deleted). The Court of Appeals therefore re manded with instructions to reexamine the equities, in cluding the failure of respondent’s parents to notify the School District before removing respondent from public school. In dissent, Judge Rymer stated her view that reimbursement is not available as an equitable remedy in this case because respondent’s parents did not request an IEP before removing him from public school and respon dent’s right to a FAPE was therefore not at issue. Because the Courts of Appeals that have considered this question have reached inconsistent results,3 we granted certiorari to determine whether estab lishes a categorical bar to tuition reimbursement for stu dents who have not previously received special-education services under the authority of a public education agency. |
Justice Stevens | 2,009 | 16 | majority | Forest Grove School Dist. v. T. A. | https://www.courtlistener.com/opinion/145855/forest-grove-school-dist-v-t-a/ | special-education services under the authority of a public education agency. —————— 3 Compare Frank (holding that does not bar reimburse ment for students who have not previously received public special education services), and M. 437 F.3d (same), with Greenland School (finding reimbursement barred in those circumstances). 6 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court 555 U. S. (2009).4 II Justice Rehnquist’s opinion for a unanimous Court in Bur provides the pertinent background for our analysis of the question presented. In that case, respon dent challenged the appropriateness of the IEP developed for his child by public-school officials. The child had pre viously received special-education services through the public school. While administrative review was pending, private specialists advised respondent that the child would do best in a specialized private educational setting, and respondent enrolled the child in private school without the school district’s consent. The hearing officer concluded that the IEP was not adequate to meet the child’s educa tional needs and that the school district therefore failed to provide the child a FAPE. Finding also that the private school placement was appropriate under IDEA, the hear ing officer ordered the school district to reimburse respon dent for the cost of the private-school tuition. We granted certiorari in Bur to determine whether IDEA authorizes reimbursement for the cost of private education when a parent or guardian unilaterally enrolls a child in private school because the public school has proposed an inadequate IEP and thus failed to provide a FAPE. The Act at that time made no express reference to the possibility of reimbursement, but it authorized a court to “grant such relief as the court determines is ap propriate.” In determining the scope —————— 4 We previously granted certiorari to address this question in Board of Ed. of City School Dist. of New in which we affirmed without opinion the judgment of the Court of Ap peals for the Second Circuit by an equally divided vote. 5 At the time we decided Bur, that provision was codified at The 1997 Amendments renumbered the provision but did not alter its text. For ease of reference, we refer to the provision by its current section number, Cite as: 557 U. S. (2009) 7 Opinion of the Court of the relief authorized, we noted that “the ordinary mean ing of these words confers broad discretion on the court” and that, absent any indication to the contrary, what relief is “appropriate” must be determined in light of the Act’s broad purpose of providing children with disabilities a FAPE, including through publicly |
Justice Stevens | 2,009 | 16 | majority | Forest Grove School Dist. v. T. A. | https://www.courtlistener.com/opinion/145855/forest-grove-school-dist-v-t-a/ | of providing children with disabilities a FAPE, including through publicly funded private-school placements when Accord ingly, we held that the provision’s grant of authority in cludes “the power to order school authorities to reimburse parents for their expenditures on private special-education services if the court ultimately determines that such place ment, rather than a proposed IEP, is proper under the Act.” Our decision rested in part on the fact that administra tive and judicial review of a parent’s complaint often takes years. We concluded that, having mandated that partici pating States provide a FAPE for every student, Congress could not have intended to require parents to either accept an inadequate public-school education pending adjudica tion of their claim or bear the cost of a private education if the court ultimately determined that the private place ment was proper under the Act. at Eight years later, we unanimously reaffirmed the availability of reim bursement in Florence County School Dist. (holding that reimbursement may be appropriate even when a child is placed in a private school that has not been approved by the State). The dispute giving rise to the present litigation differs from those in Bur and in that it concerns not the adequacy of a proposed IEP but the School District’s failure to provide an IEP at all. And, unlike respondent, the children in those cases had previously received public special-education services. These differences are insignifi cant, however, because our analysis in the earlier cases depended on the language and purpose of the Act and not the particular facts involved. Moreover, when a child 8 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court requires special-education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP. It is thus clear that the reasoning of Bur and applies equally to this case. The only question is whether the 1997 Amendments require a different result. III Congress enacted IDEA in 19706 to ensure that all children with disabilities are provided “ ‘a free appropriate public education which emphasizes special education and related services designed to meet their unique needs [and] to assure that the rights of [such] children and their par ents or guardians are protected.’ ” Bur, 471 U. S., 67 (quoting 20 U.S. C. (c) (1982 ed.), now codi fied as amended at §(d)(1)(A), (B)). After examining the States’ progress under IDEA, Congress found in 1997 that substantial gains had been made in the area of |
Justice Stevens | 2,009 | 16 | majority | Forest Grove School Dist. v. T. A. | https://www.courtlistener.com/opinion/145855/forest-grove-school-dist-v-t-a/ | that substantial gains had been made in the area of spe cial education but that more needed to be done to guaran tee children with disabilities adequate access to appropri ate services. See S. Rep. No. 105–, p. 5 (1997). The 1997 Amendments were intended “to place greater em phasis on improving student performance and ensuring that children with disabilities receive a quality public edu” Consistent with that goal, the Amendments preserved the Act’s purpose of providing a FAPE to all children with disabilities. And they did not change the text of the provi sion we considered in Bur, which gives courts broad authority to grant “appropriate” relief, including reimbursement for the cost of private special —————— 6 Thelegislation was enacted as the Education of the Handicapped Act, title VI of Pub. L. 91–230, and was renamed the Individuals with Disabilities Education Act in 1990, see Pub. L. 101–476, Cite as: 557 U. S. (2009) 9 Opinion of the Court education when a school district fails to provide a FAPE. “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that inter pretation when it re-enacts a statute without change.” Accordingly, absent a clear expression elsewhere in the Amendments of Congress’ intent to repeal some portion of that provision or to abrogate our decisions in Bur and we will continue to read to authorize the relief respondent seeks. The School District and the dissent argue that one of the provisions enacted by the Amendments, effects such a repeal. Section 1412(a)(10)(C) is entitled “Payment for education of children enrolled in private schools without consent of or referral by the public agency,” and it sets forth a number of principles applicable to public reimbursement for the costs of unilateral private school placements. Section 1412(a)(10)(C)(i) states that IDEA “does not require a local educational agency to pay for the cost of education of a child with a disability at a private school or facility if that agency made a free appro priate public education available to the child” and his parents nevertheless elected to place him in a private school. Section 1412(a)(10)(C)(ii) then provides that a “court or hearing officer may require [a public] agency to reimburse the parents for the cost of [private-school] enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available” and the child has “previously received special education and related services under the authority of [the] agency.” Finally, (iii) discusses circum stances under which the “cost of reimbursement described in clause |
Justice Stevens | 2,009 | 16 | majority | Forest Grove School Dist. v. T. A. | https://www.courtlistener.com/opinion/145855/forest-grove-school-dist-v-t-a/ | stances under which the “cost of reimbursement described in clause (ii) may be reduced or denied,” as when a parent fails to give 10 days’ notice before removing a child from public school or refuses to make a child available for evaluation, and (iv) lists circumstances in 10 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court which a parent’s failure to give notice may or must be excused.7 Looking primarily to clauses (i) and (ii), the School District argues that Congress intended to provide the exclusive source of authority for courts to order reimbursement when parents unilaterally enroll a child in private school. According to the District, clause (i) provides a safe harbor for school districts that provide a FAPE by foreclosing reimbursement in those circum stances. Clause (ii) then sets forth the circumstance in which reimbursement is appropriate—namely, when a school district fails to provide a FAPE to a child who has previously received special-education services through the public school. The District contends that because only discusses reimbursement for children who have previously received special-education services through the public school, IDEA only authorizes reim bursement in that circumstance. The dissent agrees. For several reasons, we find this argument unpersua sive. First, the School District’s reading of the Act is not supported by its text and context, as the 1997 Amend ments do not expressly prohibit reimbursement under the circumstances of this case, and the District offers no evi dence that Congress intended to supersede our decisions in Bur and Clause (i)’s safe harbor explic itly bars reimbursement only when a school district makes a FAPE available by correctly identifying a child as having a disability and proposing an IEP adequate to meet the child’s needs. The clause says nothing about the availabil ity of reimbursement when a school district fails to provide a FAPE. Indeed, its statement that reimbursement is not authorized when a school district provides a FAPE could be read to indicate that reimbursement is authorized —————— 7 The full text of is set forth in the Appendix, infra, at 18. Cite as: 557 U. S. (2009) 11 Opinion of the Court when a school district does not fulfill that obligation. Clause (ii) likewise does not support the District’s posi tion. Because that clause is phrased permissively, stating only that courts “may require” reimbursement in those circumstances, it does not foreclose reimbursement awards in other circumstances. Together with clauses (iii) and (iv), clause (ii) is best read as elaborating on the gen eral rule that courts may order reimbursement when a school district fails |
Justice Stevens | 2,009 | 16 | majority | Forest Grove School Dist. v. T. A. | https://www.courtlistener.com/opinion/145855/forest-grove-school-dist-v-t-a/ | that courts may order reimbursement when a school district fails to provide a FAPE by listing factors that may affect a reimbursement award in the common situation in which a school district has provided a child with some special-education services and the child’s par ents believe those services are inadequate. Referring as they do to students who have previously received special education services through a public school, clauses (ii) through (iv) are premised on a history of cooperation and together encourage school districts and parents to con tinue to cooperate in developing and implementing an appropriate IEP before resorting to a unilateral private placement.8 The clauses of are thus best read as elucidative rather than exhaustive. Cf. United —————— 8 The dissent asserts that, under this reading of the Act, “Congress has called for reducing reimbursement only for the most deserving but provided no mechanism to reduce reimbursement to the least deserving.” Post, at 6 (opinion of SOUTER, J.). In addition to making unsubstantiated generalizations about the desert of parents whose children have been denied public special-education services, the dissent grossly mischaracterizes our view of The fact that clause (iii) permits a court to reduce a reimbursement award when a parent whose child has previously received special-education services fails to give the school adequate notice of an intended private place ment does not mean that it prohibits courts from similarly reducing the amount of reimbursement when a parent whose child has not previ ously received services fails to give such notice. Like clause (ii), clause (iii) provides guidance regarding the appropriateness of relief in a common factual scenario, and its instructions should not be understood to preclude courts and hearing officers from considering similar factors in other scenarios. 12 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court (noting that statutory language may “perfor[m] a significant function simply by clarifying” a provision’s meaning).9 This reading of is necessary to avoid the conclusion that Congress abrogated sub silentio our deci sions in Bur and In those cases, we con strued to authorize reimbursement when a school district fails to provide a FAPE and a child’s private-school placement is appropriate, without regard to the child’s prior receipt of services.10 It would take more than Congress’ failure to comment on the category of cases in which a child has not previously received special education services for us to conclude that the Amendments substantially superseded our decisions and in large part —————— 9 In arguing that is the exclusive source of authority for granting reimbursement awards to parents who unilaterally place a |
Justice Stevens | 2,009 | 16 | majority | Forest Grove School Dist. v. T. A. | https://www.courtlistener.com/opinion/145855/forest-grove-school-dist-v-t-a/ | for granting reimbursement awards to parents who unilaterally place a child in private school, the dissent neglects to explain that provision’s failure to limit the type of private-school placements for which parents may be reimbursed. School Comm. of Bur v. Department of Ed. of Mass. held that courts may grant reimbursement under only when a school district fails to provide a FAPE and the private-school placement is appropriate. See 369 ; see Florence County School Dist. 12–13 The latter requirement is essential to ensuring that reimbursement awards are granted only when such relief furthers the purposes of the Act. See Bur, That did not codify that requirement further indicates that Congress did not intend that provision to supplant as the sole authority on reimbursement awards but rather meant to augment the latter provision and our decisions construing it. 10 As discussed above, although the children in Bur and had previously received special-education services in public school, our decisions in no way depended on their prior receipt of services. Those holdings rested instead on the breadth of the authority conferred by the interest in providing relief consistent with the Act’s purpose, and the injustice that a contrary reading would produce, see Bur, –; see also – 14—considerations that were not altered by the 1997 Amendments. Cite as: 557 U. S. (2009) 13 Opinion of the Court repealed See Branch v. Smith, 538 U.S. 254, 273 (2003) (“[A]bsent a clearly expressed con gressional intention, repeals by implication are not fa vored” (internal quotation marks and citation omitted)).11 We accordingly adopt the reading of that is consistent with those decisions.12 The School District’s reading of is also at odds with the general remedial purpose underlying IDEA and the 1997 Amendments. The express purpose of the Act is to “ensure that all children with disabilities have available to them a free appropriate public education —————— 11 For the same reason, we reject the District’s argument that because authorizes “a court or a hearing officer” to award reimbursement for private-school tuition, whereas only provides a general grant of remedial authority to “court[s],” the latter section cannot be read to authorize hearing officers to award reimbursement. That argument ignores our decision in Bur, 471 U. S., 63, which interpreted to authorize hearing officers as well as courts to award reimbursement notwith standing the provision’s silence with regard to hearing officers. When Congress amended IDEA without altering the text of it implicitly adopted that construction of the statute. See Lorillard v. Pons, –581 12 Looking to the Amendments’ legislative history for support, the School District cites two |
Justice Stevens | 2,009 | 16 | majority | Forest Grove School Dist. v. T. A. | https://www.courtlistener.com/opinion/145855/forest-grove-school-dist-v-t-a/ | Amendments’ legislative history for support, the School District cites two House and Senate Reports that essentially restate the text of H. R. Rep. No. 105–95, pp. 92–93 (1997); S. Rep. No. 105–, p. 13 (1997), and a floor statement by Representative Mike Castle, 143 Cong. Rec. 8013 (1997) (stating that the “bill makes it harder for parents to unilaterally place a child in elite private schools at public taxpayer expense, lowering costs to local school districts”). Those ambiguous references do not undermine the meaning that we discern from the statute’s language and context. Notably, the agency charged with implementing IDEA has adopted respondent’s reading of the statute. In commentary to regulations implementing the 1997 Amendments, the Department of Education stated that “hearing officers and courts retain their authority, recog nized in Bur to award ‘appropriate’ relief if a public agency has failed to provide FAPE, including reimbursement in instances in which the child has not yet received special education and related services.” (1999); see 14 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court that emphasizes special education and related services designed to meet their unique needs,” (d)(1)(A)—a factor we took into account in construing the scope of see Bur, With out the remedy respondent seeks, a “child’s right to a free appropriate education would be less than complete.” at The District’s position similarly conflicts with IDEA’s “child find” requirement, pursuant to which States are obligated to “identif[y], locat[e], and evaluat[e]” “[a]ll children with disabilities residing in the State” to ensure that they receive needed special-education services. see A reading of the Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress’ acknowl edgment of the paramount importance of properly identi fying each child eligible for services. Indeed, by immunizing a school district’s refusal to find a child eligible for special-education services no matter how compelling the child’s need, the School District’s interpretation of would produce a rule bordering on the irrational. It would be particularly strange for the Act to provide a remedy, as all agree it does, when a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether. That IDEA affords parents substantial proce dural safeguards, including the right to challenge a school district’s eligibility determination and obtain prospective relief, see post, at 11, is no answer. We roundly rejected that argument in Bur, observing that the |
Justice Stevens | 2,009 | 16 | majority | Forest Grove School Dist. v. T. A. | https://www.courtlistener.com/opinion/145855/forest-grove-school-dist-v-t-a/ | We roundly rejected that argument in Bur, observing that the “review process is ponderous” and therefore inadequate to ensure that a school’s failure to provide a FAPE is remedied with the speed necessary to avoid detriment to the child’s edu 471 U. S., at Like Bur, see ibid., this Cite as: 557 U. S. (2009) 15 Opinion of the Court case vividly demonstrates the problem of delay, as respon dent’s parents first sought a due process hearing in April 2003, and the District Court issued its decision in May 2005—almost a year after respondent graduated from high school. The dissent all but ignores these shortcom ings of IDEA’s procedural safeguards. IV The School District advances two additional arguments for reading the Act to foreclose reimbursement in this case. First, the District contends that because IDEA was an exercise of Congress’ authority under the Spending Clause, U. S. Const., Art. I, cl. 1, any conditions at tached to a State’s acceptance of funds must be stated unambiguously. See Pennhurst State School and Hospital v. Halderman, Applying that prin ciple, we held in Ar Central School Dist. Bd. of Ed. v. Murphy, that IDEA’s fee shifting provision, does not authorize courts to award expert-services fees to prevailing parents in IDEA actions because the Act does not put States on notice of the possibility of such awards. But Ar is readily distinguishable from this case. In accepting IDEA funding, States expressly agree to provide a FAPE to all children with disabilities. See An order awarding reimbursement of private-education costs when a school district fails to provide a FAPE merely requires the district “to belatedly pay expenses that it should have paid all along.” Bur, 471 U. S., at –371. And States have in any event been on notice at least since our decision in Bur that IDEA authorizes courts to order reimbursement of the costs of private special education services in appropriate circumstances. Penn hurst’s notice requirement is thus clearly satisfied. Finally, the District urges that respondent’s reading of the Act will impose a substantial financial burden on 16 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court public school districts and encourage parents to immedi ately enroll their children in private school without first endeavoring to cooperate with the school district. The dissent echoes this concern. See post, at 10. For several reasons, those fears are unfounded. Parents “are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and the private school placement was proper under the Act.” 510 U. S., at 15. |
Justice Stevens | 2,009 | 16 | majority | Forest Grove School Dist. v. T. A. | https://www.courtlistener.com/opinion/145855/forest-grove-school-dist-v-t-a/ | was proper under the Act.” 510 U. S., at 15. And even then courts retain discretion to reduce the amount of a reimbursement award if the equi ties so warrant—for instance, if the parents failed to give the school district adequate notice of their intent to enroll the child in private school. In considering the equities, courts should generally presume that public-school offi cials are properly performing their obligations under IDEA. See (STEVENS, J., concurring). As a result of these criteria and the fact that parents who “ ‘unilaterally change their child’s placement during the pendency of review proceed ings, without the consent of state or local school officials, do so at their own financial risk,’ ” (quoting Bur, 471 U. S., 73–374), the incidence of private-school placement at public expense is quite small, see Brief for National Disability Rights Network et al. as Amici Curiae 13–14. V The IDEA Amendments of 1997 did not modify the text of and we do not read to alter that provision’s meaning. Consistent with our deci sions in Bur and we conclude that IDEA authorizes reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school. Cite as: 557 U. S. (2009) Opinion of the Court When a court or hearing officer concludes that a school district failed to provide a FAPE and the private place ment was suitable, it must consider all relevant factors, including the notice provided by the parents and the school district’s opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child’s private education is warranted. As the Court of Appeals noted, the District Court did not properly consider the equities in this case and will need to under take that analysis on remand. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. 18 FOREST GROVE SCHOOL DIST. v. T. A. Opinion of the Court Appendix to opinion of the Court APPENDIX Title 20 U.S. C. provides: “(C) Payment for education of children enrolled in private schools without consent of or referral by the public agency “(i) In general “Subject to subparagraph (A), this subchapter does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education |
Justice Stevens | 2,009 | 16 | majority | Forest Grove School Dist. v. T. A. | https://www.courtlistener.com/opinion/145855/forest-grove-school-dist-v-t-a/ | facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility. “(ii) Reimbursement for private school placement “If the parents of a child with a disability, who previ ously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school with out the consent of or referral by the public agency, a court or a hearing officer may require the agency to re imburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment. “(iii) Limitation on reimbursement “The cost of reimbursement described in clause (ii) may be reduced or denied— “(I) if— “(aa) at the most recent IEP meeting that the par ents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement pro posed by the public agency to provide a free appro priate public education to their child, including stat ing their concerns and their intent to enroll their Cite as: 557 U. S. (2009) 19 Opinion of the Court Appendix to opinion of the Court child in a private school at public expense; or “(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the in formation described in item (aa); “(II) if, prior to the parents’ removal of the child from the public school, the public agency informed the parents, through the notice requirements described in section 1415(b)(3) of this title, of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; or “(III) upon a judicial finding of unreasonableness with respect to actions taken by the parents.” Cite as: 557 U. S. (2009) 1 SOUTER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 08–305 FOREST GROVE SCHOOL DISTRICT, PETITIONER v. T. A. |
Justice Brennan | 1,973 | 13 | majority | Frontiero v. Richardson | https://www.courtlistener.com/opinion/108781/frontiero-v-richardson/ | The question before us concerns the right of a female member of the uniformed services[1] to claim her spouse as a "dependent" for the purposes of obtaining increased quarters allowances and medical and dental benefits under 37 U.S. C. 401, 403, and 10 U.S. C. 1072, 1076, on an equal footing with male members. Under these statutes, a serviceman may claim his wife as a "dependent" without regard to whether she is in fact dependent upon him for any part of her support. 37 U.S. C. 401 (1); 10 U.S. C. 1072 (2) (A). A servicewoman, on the other hand, may not claim her husband as a "dependent" under these programs unless he is in fact dependent upon her for over one-half of his support. *679 37 U.S. C. 401; 10 U.S. C. 1072 (2) (C).[2] Thus, the question for decision is whether this difference in treatment constitutes an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment. A three-judge District Court for the Middle District of Alabama, one judge dissenting, rejected this contention and sustained the constitutionality of the provisions of the statutes making this distinction. We noted probable jurisdiction. We reverse. I In an effort to attract career personnel through reenlistment, Congress established, in 37 U.S. C. 401 et seq., and 10 U.S. C. 1071 et seq., a scheme for the provision of fringe benefits to members of the uniformed services on a competitive basis with business and industry.[3] Thus, under 37 U.S. C. 403, a member of the uniformed services with dependents is entitled to an *680 increased "basic allowance for quarters" and, under 10 U.S. C. 1076, a member's dependents are provided comprehensive medical and dental care. Appellant Sharron Frontiero, a lieutenant in the United States Air Force, sought increased quarters allowances, and housing and medical benefits for her husband, appellant Joseph Frontiero, on the ground that he was her "dependent." Although such benefits would automatically have been granted with respect to the wife of a male member of the uniformed services, appellant's application was denied because she failed to demonstrate that her husband was dependent on her for more than one-half of his support.[4] Appellants then commenced this suit, contending that, by making this distinction, the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment.[5] In essence, appellants asserted that the discriminatory impact of the statutes is twofold: first, as a procedural matter, a female member is required to demonstrate her spouse's dependency, while no such burden is imposed |
Justice Brennan | 1,973 | 13 | majority | Frontiero v. Richardson | https://www.courtlistener.com/opinion/108781/frontiero-v-richardson/ | demonstrate her spouse's dependency, while no such burden is imposed upon male members; and, second, as a substantive matter, a male member who does not provide more than one-half of his wife's support receives benefits, while a similarly situated female member is denied such benefits. Appellants therefore sought a permanent injunction *6 against the continued enforcement of these statutes and an order directing the appellees to provide Lieutenant Frontiero with the same housing and medical benefits that a similarly situated male member would receive. Although the legislative history of these statutes sheds virtually no light on the purposes underlying the differential treatment accorded male and female members,[6] a majority of the three-judge District Court surmised that Congress might reasonably have concluded that, since the husband in our society is generally the "bread-winner" in the familyand the wife typically the "dependent" partner"it would be more economical to require married female members claiming husbands to prove actual dependency than to extend the presumption of dependency to such members." Indeed, given the fact that approximately 99% of all members of the uniformed services are male, the District *682 Court speculated that such differential treatment might conceivably lead to a "considerable saving of administrative expense and manpower." II At the outset, appellants contend that classifications based upon sex, like classifications based upon race,[7] alienage,[8] and national origin,[9] are inherently suspect and must therefore be subjected to close judicial scrutiny. We agree and, indeed, find at least implicit support for such an approach in our unanimous decision only last Term in In the Court considered the constitutionality of an Idaho statute providing that, when two individuals are otherwise equally entitled to appointment as administrator of an estate, the male applicant must be preferred to the female. Appellant, the mother of the deceased, and appellee, the father, filed competing petitions for appointment as administrator of their son's estate. Since the parties, as parents of the deceased, were members of the same entitlement class, the statutory preference was invoked and the father's petition was therefore granted. Appellant claimed that this statute, by giving a mandatory preference to males over females without regard to their individual qualifications, violated the Equal Protection Clause of the Fourteenth Amendment. The Court noted that the Idaho statute "provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject *683 to scrutiny under the Equal Protection Clause." Under "traditional" equal protection analysis, a legislative classification must be sustained unless it is "patently arbitrary" and bears no rational relationship to a legitimate governmental interest. |
Justice Brennan | 1,973 | 13 | majority | Frontiero v. Richardson | https://www.courtlistener.com/opinion/108781/frontiero-v-richardson/ | and bears no rational relationship to a legitimate governmental interest. See ; ; ; ; In an effort to meet this standard, appellee contended that the statutory scheme was a reasonable measure designed to reduce the workload on probate courts by eliminating one class of contests. Moreover, appellee argued that the mandatory preference for male applicants was in itself reasonable since "men [are] as a rule more conversant with business affairs than women."[10] Indeed, appellee maintained that "it is a matter of common knowledge, that women still are not engaged in politics, the professions, business or industry to the extent that men are."[11] And the Idaho Supreme Court, in upholding the constitutionality of this statute, suggested that the Idaho Legislature might reasonably have "concluded that in general men are better qualified to act as an administrator than are women."[12] Despite these contentions, however, the Court held the statutory preference for male applicants unconstitutional. In reaching this result, the Court implicitly rejected appellee's apparently rational explanation of the statutory scheme, and concluded that, by ignoring the individual qualifications of particular applicants, the challenged statute provided "dissimilar treatment for men and women who are similarly situated." 404 U. S., *684 at 77. The Court therefore held that, even though the State's interest in achieving administrative efficiency "is not without some legitimacy," "[t]o give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the [Constitution]" This departure from "traditional" rational-basis analysis with respect to sex-based classifications is clearly justified. There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination.[13] Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which, in practical effect, put women, not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim: "Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution |
Justice Brennan | 1,973 | 13 | majority | Frontiero v. Richardson | https://www.courtlistener.com/opinion/108781/frontiero-v-richardson/ | views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and *685 independent career from that of her husband. ". The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator." As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children. See generally L. Kanowitz, Women and the Law: The Unfinished Revolution 5-6 ; G. Myrdal, An American Dilemma 1073 (20th anniversary ed. 1962). And although blacks were guaranteed the right to vote in 1870, women were denied even that rightwhich is itself "preservative of other basic civil and political rights"[14]until adoption of the Nineteenth Amendment half a century later. It is true, of course, that the position of women in America has improved markedly in recent decades.[15]*686 Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic,[16] women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.[17] See generally K. Amundsen, The Silenced Majority: Women and American Democracy ; The President's Task Force on Women's Rights and Responsibilities, A Matter of Simple Justice Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate "the basic concept of our system that legal burdens should bear some relationship to individual responsibility" And what differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.[18] As a result, statutory distinctions *687 between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members. We might also note that, over |
Justice Brennan | 1,973 | 13 | majority | Frontiero v. Richardson | https://www.courtlistener.com/opinion/108781/frontiero-v-richardson/ | of its individual members. We might also note that, over the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications. In Tit. VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the Act shall discriminate against any individual on the basis of "race, color, religion, sex, or national origin."[19] Similarly, the Equal Pay Act of 1963 provides that no employer covered by the Act "shall discriminate between employees on the basis of sex."[20] And 1 of the Equal Rights Amendment, passed by Congress on March 22, and submitted to the legislatures of the States for ratification, declares that "[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."[21] Thus, Congress itself has concluded that classifications based upon sex are inherently invidious, and this conclusion of a coequal *688 branch of Government is not without significance to the question presently under consideration. Cf. ; With these considerations in mind, we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter standard of review, it is clear that the statutory scheme now before us is constitutionally invalid. III The sole basis of the classification established in the challenged statutes is the sex of the individuals involved. Thus, under 37 U.S. C. 401, 403, and 10 U.S. C. 1072, 1076, a female member of the uniformed services seeking to obtain housing and medical benefits for her spouse must prove his dependency in fact, whereas no such burden is imposed upon male members. In addition, the statutes operate so as to deny benefits to a female member, such as appellant Sharron Frontiero, who provides less than one-half of her spouse's support, while at the same time granting such benefits to a male member who likewise provides less than one-half of his spouse's support. Thus, to this extent at least, it may fairly be said that these statutes command "dissimilar treatment for men and women who are similarly situated." Moreover, the Government concedes that the differential treatment accorded men and women under these statutes serves no purpose other than mere "administrative convenience." In essence, the Government maintains that, as an empirical matter, wives in our society frequently are dependent upon their husbands, while husbands *689 rarely are dependent upon their wives. Thus, the Government argues |
Justice Brennan | 1,973 | 13 | majority | Frontiero v. Richardson | https://www.courtlistener.com/opinion/108781/frontiero-v-richardson/ | rarely are dependent upon their wives. Thus, the Government argues that Congress might reasonably have concluded that it would be both cheaper and easier simply conclusively to presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact.[22] The Government offers no concrete evidence, however, tending to support its view that such differential treatment in fact saves the Government any money. In order to satisfy the demands of strict judicial scrutiny, the Government must demonstrate, for example, that it is actually cheaper to grant increased benefits with respect to all male members, than it is to determine which male members are in fact entitled to such benefits and to grant increased benefits only to those members whose wives actually meet the dependency requirement. Here, however, there is substantial evidence that, if put to the test, many of the wives of male members would fail to qualify for benefits.[23] And in light of the fact that the *690 dependency determination with respect to the husbands of female members is presently made solely on the basis of affidavits, rather than through the more costly hearing process,[24] the Government's explanation of the statutory scheme is, to say the least, questionable. In any case, our prior decisions make clear that, although efficacious administration of governmental programs is not without some importance, "the Constitution recognizes higher values than speed and efficiency." And when we enter the realm of "strict judicial scrutiny," there can be no doubt that "administrative convenience" is not a shibboleth, the mere recitation of which dictates constitutionality. See ; On the contrary, any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands "dissimilar treatment for men and women who are similarly situated," and therefore involves the "very kind of arbitrary legislative choice forbidden by the [Constitution]." 76. We therefore conclude that, by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative *691 convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.[25] Reversed. MR. JUSTICE STEWART concurs in the judgment, agreeing that the statutes before us work an invidious discrimination in violation of the Constitution. MR. JUSTICE REHNQUIST dissents for the reasons stated by Judge Rives in his opinion for the District Court, MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, concurring in the judgment. |
Justice Rehnquist | 1,975 | 19 | dissenting | Taylor v. Louisiana | https://www.courtlistener.com/opinion/109133/taylor-v-louisiana/ | The Court's opinion reverses a conviction without a suggestion, much less a showing, that the appellant has been unfairly treated or prejudiced in any way by the *539 manner in which his jury was selected. In so doing, the Court invalidates a jury-selection system which it approved by a substantial majority only 13 years ago. I disagree with the Court and would affirm the judgment of the Supreme Court of Louisiana. The majority opinion canvasses various of our jury trial cases, beginning with Relying on carefully chosen quotations, it concludes that the "unmistakable import" of our cases is that the fair-cross-section requirement "is an essential component of the Sixth Amendment right to a jury trial." I disagree. Fairly read, the only "unmistakable import" of those cases is that due process and equal protection prohibit jury-selection systems which are likely to result in biased or partial juries. concerned the equal protection claim of a Negro who was indicted by a grand jury from which Negroes had been systematically excluded. dealt with allegations that the only women selected for jury service were members of a private organization which had conducted pro-prosecution classes for prospective jurors. rejected the equal protection and due process contentions of several black defendants that members of their race had been discriminatorily excluded from their juries. similarly dealt with equal protection challenges to a jury-selection system, but the persons claiming such rights were blacks who had sought to serve as jurors. In this Court gave plenary consideration to contentions that a system such as Louisiana's deprived a defendant of equal protection and due process. These contentions were rejected, despite circumstances which were much more suggestive of possible bias and prejudice than are those herethe defendant *540 in Hoyt was a woman whose defense to charges of murdering her husband was that she had been driven temporarily insane by his suspected infidelity and by his rejection of her efforts at reconciliation. The complete swing of the judicial pendulum 13 years later must depend for its validity on the proposition that during those years things have changed in constitutionally significant ways. I am not persuaded of the sufficiency of either of the majority's proffered explanations as to intervening events. The first determinative event, in the Court's view, is Because the Sixth Amendment was there held applicable to the States, the Court feels free to dismiss Hoyt as a case which dealt with entirely different issueseven though in fact it presented the identical problem. But Duncan's rationale is a good deal less expansive than is suggested by the Court's present interpretation of |
Justice Rehnquist | 1,975 | 19 | dissenting | Taylor v. Louisiana | https://www.courtlistener.com/opinion/109133/taylor-v-louisiana/ | expansive than is suggested by the Court's present interpretation of that case. Duncan rests on the following reasoning: "The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those `"fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,"' ; whether it is `basic in our system of jurisprudence,' In re Oliver, ; and whether it is `a fundamental right, essential to a fair trial,' ; ; Pointer v. (195). Because we believe that trial by *541 jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases" (Emphasis added.) That this is a sturdy test, one not readily satisfied by every discrepancy between federal and state practice, was made clear not only in and 40 U.S. 404 but also in Duncan itself. In explaining the conclusion that a jury trial is fundamental to our scheme of justice, and therefore should be required of the States, the Court pointed out that jury trial was designed to be a defense "against arbitrary law enforcement," 391 U.S., at 15, and "to prevent oppression by the Government." The Court stated its belief that jury trial for serious offenses is "essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants." I cannot conceive that today's decision is necessary to guard against oppressive or arbitrary law enforcement, or to prevent miscarriages of justice and to assure fair trials. Especially is this so when the criminal defendant involved makes no claims of prejudice or bias. The Court does accord some slight attention to justifying its ruling in terms of the basis on which the right to jury trial was read into the Fourteenth Amendment. It concludes that the jury is not effective, as a prophylaxis against arbitrary prosecutorial and judicial power, if the "jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool." Ante, at 530. It fails, however, to provide any satisfactory explanation of the mechanism by which the Louisiana system undermines the prophylactic role of the jury, either in general or in this case. The best it can do is to *542 posit " `a flavor, |
Justice Rehnquist | 1,975 | 19 | dissenting | Taylor v. Louisiana | https://www.courtlistener.com/opinion/109133/taylor-v-louisiana/ | it can do is to *542 posit " `a flavor, a distinct quality,' " which allegedly is lost if either sex is excluded. Ante, at 532. However, this "flavor" is not of such importance that the Constitution is offended if any given petit jury is not so enriched. Ante, at 538. This smacks more of mysticism than of law. The Court does not even purport to practice its mysticism in a consistent fashionpresumably doctors, lawyers, and other groups, whose frequent exemption from jury service is endorsed by the majority, also offer qualities as distinct and important as those at issue here. In Hoyt, this Court considered a stronger due process claim than is before it today, but found that fundamental fairness had not been offended. I do not understand how our intervening decision in Duncan can support a different result. After all, Duncan imported the Sixth Amendment into the Due Process Clause only because, and only to the extent that, this was perceived to be required by fundamental fairness. The second change since Hoyt that appears to under-gird the Court's turnabout is societal in nature, encompassing both our higher degree of sensitivity to distinctions based on sex, and the "evolving nature of the structure of the family unit in American society." Ante, at 535 n. 17. These are matters of degree, and it is perhaps of some significance that in 191 Mr. Justice Harlan saw fit to refer to the "enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men." Hoyt, 38 U. S., at 1-2. Nonetheless, it may be fair to conclude that the Louisiana system is in fact an anachronism, inappropriate at this "time or place." Ante, at 537. But surely constitutional adjudication is a more canalized function than enforcing as against the States this Court's perception of modern life. *543 Absent any suggestion that appellant's trial was unfairly conducted, or that its result was unreliable, I would not require Louisiana to retry him (assuming the State can once again produce its evidence and witnesses) in order to impose on him the sanctions which its laws provide. |
Justice White | 1,988 | 6 | majority | Phillips Petroleum Co. v. Mississippi | https://www.courtlistener.com/opinion/111988/phillips-petroleum-co-v-mississippi/ | The issue here is whether the State of Mississippi, when it entered the Union in 1817, took title to lands lying under waters that were influenced by the tide running in the Gulf of Mexico, but were not navigable in fact. I As the Mississippi Supreme Court eloquently put it: "Though great public interests and neither insignificant nor illegitimate private interests are present and in conflict, this in the end is a title suit." Cinque Bambini More specifically, in question here is ownership of 4 acres of land underlying the north branch of Bayou LaCroix and 11 small drainage streams in southwestern Mississippi; the disputed tracts range from under one-half acre to almost 10 acres in size. Although the waters over these lands lie several miles north of the Mississippi Gulf Coast and are not navigable, they are nonetheless influenced by the tide, because they are adjacent and tributary to the Jourdan River, a navigable stream flowing into the Gulf. The Jourdan, in the area involved here, is affected by the ebb and flow of the tide. Record title to these tracts of land is held by petitioners, who trace their claims back to prestatehood Spanish land grants. The State of Mississippi, however, claiming that by virtue of the "equal-footing doctrine" it acquired at the time of statehood and held in public trust all land lying under any waters influenced by the tide, whether navigable or not, issued oil and gas leases that included the property at issue. This quiet title suit, brought by petitioners, ensued. The Mississippi Supreme Court, affirming the Chancery Court with respect to the lands at issue here,[1] held that by *473 virtue of becoming a State, Mississippi acquired "fee simple title to all lands naturally subject to tidal influence, inland to today's mean high water mark" Ibid., Petitioners' submission that the State acquired title to only lands under navigable waters was rejected. We granted certiorari to review the Mississippi Supreme Court's decision, and now affirm the judgment below. II As petitioners recognize, the "seminal case in American public trust jurisprudence is" Reply Brief for Petitioners 11. The issue in was whether the State of Oregon or a prestatehood grantee from the United of riparian lands near the mouth of the Columbia River at Astoria, Oregon, owned the soil below the high-water mark. Following an extensive survey of this Court's prior cases, the English common law, and various cases from the state courts, the Court concluded: "At common law, the title and dominion in lands flowed by the tide water were in the King for the |
Justice White | 1,988 | 6 | majority | Phillips Petroleum Co. v. Mississippi | https://www.courtlistener.com/opinion/111988/phillips-petroleum-co-v-mississippi/ | by the tide water were in the King for the benefit of the nation. Upon the American Revolution, these rights, charged with a like trust, were vested in the original within their respective borders, subject to *474 the rights surrendered by the Constitution of the United "The new admitted into the Union since the adoption of the Constitution have the same rights as the original in the tide waters, and in the lands under them, within their respective jurisdictions." Shively rested on prior decisions of this Court, which had included similar, sweeping statements of ' dominion over lands beneath tidal waters. for example, had stated that "[i]t is the settled rule of law in this court that absolute property in, and dominion and sovereignty over, the soils under the tide waters in the original were reserved to the several and that the new since admitted have the same rights, sovereignty and jurisdiction in that behalf as the original possess within their respective borders." On many occasions, before and since, this Court has stated or restated these words from Knight and Shively.[] Against this array of cases, it is not surprising that Mississippi claims ownership of all of the in the State. Other have done as much.[3] The 13 original *4 joined by the Coastal Organization (representing all coastal ), have filed a brief in support of Mississippi, insisting that ownership of thousands of acres of under nonnavigable waters would not be disturbed if the judgment below were affirmed, as it would be if petitioners' navigability-in-fact test were adopted. See Brief for 13 Original as Amici Curiae 3-5, 6-7. Petitioners rely on early state cases to indicate that the original did not claim title to nonnavigable tidal waters. See Brief for Petitioners 3-9. But it has been long established that the individual have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit. Some of the original for example, did recognize more private interests in than did others of the 13 more private interests than were recognized at common law, or in the dictates of our public trusts cases. See n. 1, infra. Because some of the cases which petitioners cite come from such (i. e., from which abandoned the common law with respect to ),[4] they are of only limited value in understanding *476 the public trust doctrine and its scope in those which have not relinquished their claims to all lands beneath tidal waters. Finally, we note that several of our prior decisions |
Justice White | 1,988 | 6 | majority | Phillips Petroleum Co. v. Mississippi | https://www.courtlistener.com/opinion/111988/phillips-petroleum-co-v-mississippi/ | waters. Finally, we note that several of our prior decisions have recognized that the have interests in lands beneath tidal waters which have nothing to do with navigation. For example, this Court has previously observed that public trust lands may be used for fishing for both "shell-fish [and] floating fish." See, e. g., On several occasions the Court has recognized that lands beneath tidal waters may be reclaimed to create land for urban expansion. E. g., ; Because of the State's ownership of restrictions on the planting and harvesting of oysters there have been upheld.[5] It would be odd to acknowledge such diverse uses of public trust and then suggest that the sole measure of the expanse of such lands is the navigability of the waters over them. Consequently, we reaffirm our longstanding precedents which hold that the upon entry into the Union, received ownership of all lands under waters subject to the ebb and flow of the tide. Under the well-established principles of our cases, the decision of the Mississippi Supreme Court is clearly correct: the lands at issue here are "under tidewaters," and therefore passed to the State of Mississippi upon its entrance into the Union. III Petitioners do not deny that broad statements of public trust dominion over have been included in this *477 Court's opinions since the early 19th century.[6] Rather, they advance two reasons why these previous statements of the public trust doctrine should not be given their apparent application in this case. A First, petitioners contend that these sweeping statements of state dominion over arise from an oddity of the common law, or more specifically, of English geography. Petitioners submit that in England practically all navigable rivers are influenced by the tide. Brief for Petitioners 19. See The Propeller Genesee Thus, "tidewater" and "navigability" were synonyms at common law. See Central R. Consequently, in petitioners' view, the Crown's ownership of lands beneath tidewaters actually rested on the navigability of those waters rather than the ebb and flow of the tide. Cf. English authority and commentators are cited to show that the Crown did not own the soil under any nonnavigable waters.[7] Petitioners *478 also cite for support statements from this Court's opinions, such as The Genesee and which observed that it was "the navigable waters of England, and the soils under them, [which were] held by the Crown" at common law (emphasis added). The cases relied on by petitioners, however, did not deal with tidal, nonnavigable waters. And we will not now enter the debate on what the English law was with respect |
Justice White | 1,988 | 6 | majority | Phillips Petroleum Co. v. Mississippi | https://www.courtlistener.com/opinion/111988/phillips-petroleum-co-v-mississippi/ | the debate on what the English law was with respect to the land under such waters, for it is perfectly clear how this Court understood the common law of royal ownership, and what the Court considered the rights of the original and the later entering to be. As we discuss above, this Court has consistently interpreted the common law as providing that the lands beneath waters under tidal influence were given upon their admission into the Union. See 15 U. S., See also cases cited in n. It is true that none of these cases actually dealt with lands such as those involved in this case, but it has never been suggested in any of this Court's prior decisions that the many statements included therein to the effect that the owned all the soil beneath waters affected by the tide were anything less than an accurate description of the governing law. B Petitioners, in a related argument, contend that even if the common law does not support their position, subsequent cases from this Court developing the American public trust doctrine make it clear that navigability and not tidal influence has become the sine qua non of the public trust interest in in this country. It is true that The Genesee overruled prior cases of this Court which had limited admiralty jurisdiction to waters subject to tidal influence. Cf. The Thomas Jefferson, 10 Wheat. 48, 49 (185). The Court did sharply criticize the "ebb and flow" measure of admiralty *479 inherited from England in The Genesee and instead insisted quite emphatically that the different topography of America in particular, our "thousands of miles of public navigable water[s] in which there is no tide" required that "jurisdiction [be] made to depend upon the navigable character of the water, and not upon the ebb and flow of the tide." 1 How., at 457. Later, it came to be recognized as the "settled law of this country" that the lands under navigable freshwater lakes and rivers were within the public trust given the new upon their entry into the Union, subject to the federal navigation easement and the power of Congress to control navigation on those streams under the Commerce Clause. 94 U.S. 34, See also Central R. at 435-. That own freshwater river bottoms as far as the rivers are navigable, however, does not indicate that navigability is or was the prevailing test for state dominion over Rather, this rule represents the American decision to depart from what it understood to be the English rule limiting Crown |
Justice White | 1,988 | 6 | majority | Phillips Petroleum Co. v. Mississippi | https://www.courtlistener.com/opinion/111988/phillips-petroleum-co-v-mississippi/ | what it understood to be the English rule limiting Crown ownership to the soil under tidal waters. In Oregon ex rel. State Land 49 U.S. 363, after recognizing the accepted doctrine that coming into the Union had title to all lands under the tidewaters, the Court stated that had "extended the doctrine to waters which were nontidal but nevertheless navigable, consistent with [the Court's] earlier extension of admiralty jurisdiction." This Court's decisions in The Genesee and extended admiralty jurisdiction and public trust doctrine to navigable freshwaters and the lands beneath them. But we do not read those cases as simultaneously withdrawing from public trust coverage those lands which had been consistently recognized in this Court's cases as being within that doctrine's scope: all lands beneath waters influenced by *480 the ebb and flow of the tide. See 153 U.S. 73[8] C Finally, we observe that not the least of the difficulties with petitioners' position is their concession that the own the bordering the oceans, bays, and estuaries even where these areas by no means could be considered navigable, as is always the case near the shore. Tr. of Oral Arg. 6. It is obvious that these waters are part of the sea, and the lands beneath them are state property; ultimately, though, the only proof of this fact can be that the waters are influenced by the ebb and flow of the tide. This is undoubtedly why the ebb-and-flow test has been the measure of public ownership of for so long. *481 Admittedly, there is a difference in degree between the waters in this case, and nonnavigable waters on the seashore that are affected by the tide. But there is no difference in kind. For in the end, all tidewaters are connected to the sea: the waters in this case, for example, by a navigable, tidal river. Perhaps the lands at issue here differ in some ways from directly adjacent to the sea; nonetheless, they still share those "geographical, chemical and environmental" qualities that make lands beneath tidal waters unique. Cf. Kaiser Indeed, we find the various alternatives for delineating the boundaries of public trust offered by petitioners and their supporting amici to be unpersuasive and unsatisfactory.[9] As the State suggested at argument, see Tr. of Oral Arg. -3, and as recognized on several previous occasions, the ebb-and-flow rule has the benefit of "uniformity and certainty, and eas[e] of application." See, e. g., Cobb v. Davenport, 3 N. J. L. 369, 379 (1867). We are unwilling, after its lengthy history at common law, in this Court, and in many |
Justice White | 1,988 | 6 | majority | Phillips Petroleum Co. v. Mississippi | https://www.courtlistener.com/opinion/111988/phillips-petroleum-co-v-mississippi/ | history at common law, in this Court, and in many state courts, to abandon the ebb-and-flow rule now, and seek to fashion a new test to govern the limits of public trust Consequently, we hold that the lands at issue in this case were within those given to Mississippi when the State was admitted to the Union. IV Petitioners in passing, and amici in somewhat greater detail, complain that the Mississippi Supreme Court's decision is "inequitable" and would upset "various kinds of property expectations and interests [which] have matured since Mississippi joined the Union in 1817."[10] They claim *48 that they have developed reasonable expectations based on their record title for these lands, and that they (and their predecessors-in-interest) have paid taxes on these lands for more than a century. We have recognized the importance of honoring reasonable expectations in property interests. Cf. Kaiser at 1. But such expectations can only be of consequence where they are "reasonable" ones. Here, Mississippi law appears to have consistently held that the public trust in lands under water includes "title to all the land under tidewater." 146 So. 91, 91-9[11] Although the Mississippi Supreme Court acknowledged that this case may be the first where it faced the question of the public trust interest in nonnavigable 491 So. d, at 516, the clear and unequivocal statements in its earlier opinions should have been ample indication of the State's claim to Moreover, cases which have the State's public trust interest in these lands have described uses of them not related to navigability, such as bathing, swimming, recreation, fishing, and mineral development. See, e. g., 199 So. d 67, 63-633 These statements, too, should have made clear that the State's claims were not limited to lands under navigable waterways. Any contrary expectations cannot be considered reasonable. We are skeptical of the suggestions by the dissent, post, at 485, 493, that a decision affirming the judgment below will have sweeping implications, either within Mississippi or outside that State. The State points out that only one other case is pending in its courts which raises this same issue. Tr. of Oral Arg. 19. And as for the effect of our decision today in other we are doubtful that this ruling will do *483 more than confirm the prevailing understanding which in some is the same as Mississippi's, and in others, is quite different. As this Court wrote in 15 U. S., "there is no universal and uniform law upon the subject; but each State has dealt with the lands under the tide waters within its borders according |
Justice White | 1,988 | 6 | majority | Phillips Petroleum Co. v. Mississippi | https://www.courtlistener.com/opinion/111988/phillips-petroleum-co-v-mississippi/ | the lands under the tide waters within its borders according to its own views of justice and policy." Consequently, our ruling today will not upset titles in all coastal as petitioners intimated at argument. Tr. of Oral Arg. 3. As we have at 4, many coastal as a matter of state law, granted all or a portion of their to adjacent upland property owners long ago.[1] Our decision today does nothing to change ownership rights in which previously relinquished a public trust claim to such as those at issue here. Indeed, we believe that it would be far more upsetting to settled expectations to reverse the Mississippi Supreme Court decision. As amici note, see, e. g., Brief for State of California et al. as Amici Curiae 19, many land titles have been adjudicated based on the ebb-and-flow rule for we cannot know how many titles would have to be adjusted if the scope of the public trust was now found to be limited to lands beneath navigable tidal waters only. If do not own lands under nonnavigable tidal waters, many state land grants based on our earlier decisions might now be invalid. Cf. 140 U. S., at Finally, even where have given dominion over *484 to private property owners, some have retained for the general public the right to fish, hunt, or bathe on these lands. See n. 1, These long-established rights may be lost with respect to nonnavigable tidal waters if we adopt the rule urged by petitioners. The fact that petitioners have long been the record title holders, or long paid taxes on these lands does not change the outcome here. How such facts would transfer ownership of these lands from the State to petitioners is a question of state law. Here, the Mississippi Supreme Court held that under Mississippi law, the State's ownership of these lands could not be lost via adverse possession, laches, or any other equitable doctrine. 491 So. d, at 51. See Miss. Const., Art. 4, 104; So. d 1, 16-17 ; City of Bay St. 371-37, 3 So. 54 (190). We see no reason to disturb the "general proposition [that] the law of real property is, under our Constitution, left to the individual to develop and administer." 389 U.S. 90, 95 See Davies Warehouse 31 U.S. 144, ; Borax Consolidated, 96 U.S. 10, Consequently, we do not believe that the equitable considerations petitioners advance divest the State of its ownership in the disputed V Because we believe that our cases firmly establish that the upon entering the Union, were given ownership over |
Justice Rehnquist | 1,976 | 19 | concurring | National Bank of North America v. Associates of Obstetrics & Female Surgery, Inc. | https://www.courtlistener.com/opinion/109435/national-bank-of-north-america-v-associates-of-obstetrics-female/ | Charlotte Nat. recognized that the exemption of national banking associations *462 from suit in counties or cities other than those in which they were located was a personal privilege of the associations which could be waived by them. This exception to the otherwise mandatory nature of this. venue limitation has been carried forward in the current recodification of the federally created privilege. Michigan Nat. In Neirbo the Court held that by designating an agent for service of process within a State, a corporation gave its consent to be sued in federal court within that State notwithstanding the provisions of the predecessor to 28 U.S. C. 1391 (c), which accorded defendants in federal courts a privilege regarding venue essentially equivalent to that found in 12 U.S. C. 94. I see no reason for concluding that the venue privilege extended by 94 is of a different nature from that contained in 1391, or that it may not be similarly waived by the conduct of a national banking association. Thus, I believe Neirbo establishes that petitioner National Bank could be deemed to have consented to being sued in Utah by providing an agent for service of process in that State or otherwise qualifying to do business therein according to Utah law. The record before us does not reveal whether such facts may exist in this case, however, and the Utah courts apparently engaged in no inquiry along these lines. I therefore agree with the Court's decision to remand this case to the Utah court in order that it can examine whether petitioner may have waived the privilege afforded it by 94. |
Justice Douglas | 1,972 | 10 | dissenting | United States v. Biswell | https://www.courtlistener.com/opinion/108533/united-states-v-biswell/ | As Mr. Justice Clark, writing for the three-judge panel in the Court of Appeals for the Tenth Circuit said, the Federal Gun Control Act, 18 U.S. C. 923 (g), has a provision for inspection that is "almost identical" with the one in Colonnade Catering The present one provides: "The Secretary may enter during business hours the premises (including places of storage) of any firearms or ammunition dealer for the purpose of inspecting or examining (1) any records or documents required to be kept and (2) any firearms or ammunition kept or stored by such dealer" 18 U.S. C. 923 (g). *318 The one in Colonnade provided: "The Secretary or his delegate may enter during business hours the premises of any dealer for the purpose of inspecting or examining any records or other documents required to be kept under this chapter" 26 U.S. C. 5146 (b). The Court legitimates this inspection scheme because of its belief that, had respondent been a dealer in liquor instead of firearms, such a search as was here undertaken would have been valid under the principles of Colonnade. I respectfully disagree. Colonnade, of course, rested heavily on the unique historical origins of governmental regulation of liquor. And the Court admits that similar regulation of the firearms traffic "is not as deeply rooted in history as is governmental control of the liquor industry." Yet, assuming, arguendo, that the firearms industry is as appropriate a subject of pervasive governmental inspection as is the liquor industry, the Court errs. In Colonnade, we agreed that "Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand." But we also said: "Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply." Here, the statute authorizing inspection is virtually identical to the one we considered in Colonnade. The conclusion necessarily follows that Congress, as in Colonnade, has here "selected a standard that does not include forcible entries without a warrant." In my view, a search conducted over the objection of the owner of the premises sought to be searched is "forcible," whether or not violent means are used to effect *319 the search. In this case, the owner withdrew his objection upon being shown a copy of the statute authorizing inspection, saying: "If that is the law, I guess it is all right." If we apply the test of "consent" that we used in we would affirm this judgment,[*] for as MR. JUSTICE STEWART, |
Justice Douglas | 1,972 | 10 | dissenting | United States v. Biswell | https://www.courtlistener.com/opinion/108533/united-states-v-biswell/ | we would affirm this judgment,[*] for as MR. JUSTICE STEWART, speaking for the Court in Bumper, said: "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all. "When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion albeit colorably lawful coercion. Where there is coercion there cannot be consent." I would affirm the judgment below. |
per_curiam | 1,974 | 200 | per_curiam | Paschall v. Christie-Stewart, Inc. | https://www.courtlistener.com/opinion/108884/paschall-v-christie-stewart-inc/ | In this case we noted probable jurisdiction, in order to consider whether the published notice provisions of the then-applicable Oklahoma tax-sale statutes, Okla. Stat., Tit. 68, 382 and 432b (1951), comported with due process of law guaranteed by the Fourteenth Amendment.[1] See This was the only issue addressed by the appellate courts of Oklahoma[2] and by the parties in the Jurisdictional Statement and the papers responsive thereto filed with this Court. After oral argument and upon our review of the record, it now appears that there might have been an independent and, possibly, an unchallenged ground for the judgment of the state trial court, viz., the running of the Oklahoma period of limitation for adverse claims.[3] If *102 that should prove to be the case, any decision by this Court would be advisory and beyond our jurisdiction. The judgment of the Supreme Court of Oklahoma is therefore vacated and the case is remanded to that court to consider whether the appellants preserved the right to challenge the trial court's determination that the State's statute of limitations is a bar to their mineral rights claim, and, if so, whether, under state law, the statute of limitations independently bars appellants' claim, irrespective of the constitutional adequacy of the tax-sale notice provisions of 382 and 432b.[4] Cf. It is so ordered. MR. JUSTICE DOUGLAS, with whom MR. |
Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217287/brown-v-plata/ | This case arises from serious constitutional violations in California’s prison system. The violations have persisted for years. They remain uncorrected. The appeal comes to this Court from a three-judge District Court order direct ing California to remedy two ongoing violations of the Cruel and Unusual Punishments Clause, a guarantee binding on the States by the Due Process Clause of the Fourteenth Amendment. The violations are the subject of two class actions in two Federal District Courts. The first involves the class of prisoners with serious mental disor ders. That case is Coleman v. Brown. The second involves prisoners with serious medical conditions. That case is Plata v. Brown. The order of the three-judge District Court is applicable to both cases. After years of litigation, it became apparent that a remedy for the constitutional violations would not be ef fective absent a reduction in the prison system popula The authority to order release of prisoners as a remedy to cure a systemic violation of the Eighth Amend 2 BROWN v. PLATA Opinion of the Court ment is a power reserved to a three-judge district court, not a single-judge district court. U.S. C. In accordance with that rule, the Coleman and Plata District Judges independently requested that a three-judge court be convened. The Chief Judge of the Court of Appeals for the Ninth Circuit convened a three-judge court composed of the Coleman and Plata District Judges and a third, Ninth Circuit Judge. Because the two cases are interre lated, their limited consolidation for this purpose has a certain utility in avoiding conflicting decrees and aiding judicial consideration and enforcement. The State in this Court has not objected to consolidation, although the State does argue that the three-judge court was prematurely convened. The State objects to the substance of the three-judge court order, which requires the State to reduce overcrowding in its prisons. The appeal presents the question whether the remedial order issued by the three-judge court is consistent with requirements and procedures set forth in a congressional statute, the Prison Litigation Reform Act of 1995 (PLRA). U.S. C. see Appendix A, infra. The order leaves the choice of means to reduce overcrowding to the discre tion of state officials. But absent compliance through new construction, out-of-state transfers, or other means—or modification of the order upon a further showing by the State—the State will be required to release some number of prisoners before their full sentences have been served. High recidivism rates must serve as a warning that mis taken or premature release of even one prisoner can cause injury and harm. The |
Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217287/brown-v-plata/ | of even one prisoner can cause injury and harm. The release of prisoners in large num bers—assuming the State finds no other way to comply with the order—is a matter of undoubted, grave concern. At the time of trial, California’s correctional facilities held some 6,000 persons. This is nearly double the number that California’s prisons were designed to hold, and California has been ordered to reduce its prison popu Cite as: 563 U. S. (2011) 3 Opinion of the Court lation to 137.5% of design capacity. By the three-judge court’s own estimate, the required population reduction could be as high as 46,000 persons. Although the State has reduced the population by at least 9,000 persons dur ing the pendency of this appeal, this means a further reduction of 37,000 persons could be required. As will be noted, the reduction need not be accomplished in an indis criminate manner or in these substantial numbers if sat isfactory, alternate remedies or means for compliance are devised. The State may employ measures, including good-time credits and diversion of low-risk offenders and technical parole violators to community-based programs, that will mitigate the order’s impact. The population reduction potentially required is nevertheless of unprece dented sweep and extent. Yet so too is the continuing injury and harm resulting from these serious constitutional violations. For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional re quirements and has failed to meet prisoners’ basic health needs. Needless suffering and death have been the well documented result. Over the whole course of years during which this litigation has been pending, no other remedies have been found to be sufficient. Efforts to remedy the violation have been frustrated by severe overcrowding in California’s prison system. Short term gains in the provi sion of care have been eroded by the long-term effects of severe and pervasive overcrowding. Overcrowding has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsan itary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve. The overcrowding is the “primary cause of the violation of a Federal right,” U.S. C. specifically the severe and unlawful mistreatment of prisoners 4 BROWN v. PLATA Opinion of the Court through grossly inadequate provision of medical and mental health care. This Court now holds that the PLRA does authorize the relief afforded in this case and that the court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights. The order |
Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217287/brown-v-plata/ | to remedy the violation of prisoners’ constitutional rights. The order of the three judge court, subject to the right of the State to seek its modification in appropriate circumstances, must be affirmed. I A The degree of overcrowding in California’s prisons is exceptional. California’s prisons are designed to house a population just under 80,000, but at the time of the three judge court’s decision the population was almost double that. The State’s prisons had operated at around 200% of design capacity for at least 11 years. Prisoners are crammed into spaces neither designed nor intended to house inmates. As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correc tional officers. App. 1337–1338, 1350; see Appendix B, infra. As many as 54 prisoners may share a single toilet. App. 1337. The Corrections Independent Review Panel, a body appointed by the Governor and composed of correctional consultants and representatives from state agencies, concluded that California’s prisons are “ ‘severely over crowded, imperiling the safety of both correctional em ployees and inmates.’ ”1 Juris. Statement App., O. T. 2009, —————— 1 A similar conclusion was reached by the Little Hoover Commission, a bipartisan and independent state body, which stated that “[o]vercrowded conditions inside the prison walls are unsafe for inmates and staff,” Solving California’s Corrections Crisis: Time is Running Out 17 (Jan. 2007), and that “California’s correctional system is in a tail spin,” at i. Cite as: 563 U. S. (2011) 5 Opinion of the Court No. 09–416, p. 56a (hereinafter Juris. App.). In 2006, then-Governor Schwarzenegger declared a state of emer gency in the prisons, as “ ‘immediate action is necessary to prevent death and harm caused by California’s severe prison overcrowding.’ ” at 61a. The consequences of overcrowding identified by the Governor include “ ‘in creased, substantial risk for transmission of infectious illness’ ” and a suicide rate “ ‘approaching an average of one per week.’ ” Prisoners in California with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for pro longed periods in telephone-booth sized cages without toilets. See Appendix C, infra. A psychiatric expert re ported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had “ ‘no place to put him.’ ” App. 593. —————— At trial, current and former California prison officials testified to the degree of overcrowding. Jeanne Woodford, who recently adminis |
Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217287/brown-v-plata/ | to the degree of overcrowding. Jeanne Woodford, who recently adminis tered California’s prison system, stated that “ ‘[o]vercrowding in the [California Department of Corrections and Rehabilitation (CDCR)] is extreme, its effects are pervasive and it is preventing the Department from providing adequate mental and medical health care to prisoners.’ ” Juris. App. 84a. Matthew Cate, the head of the California prison system, stated that “ ‘overpopulation makes everything we do more difficult.’ ” And Robin Dezember, chief deputy secretary of Cor rectional Healthcare Services, stated that “we are terribly overcrowded in our prison system” and “overcrowding has negative effects on every body in the prison system.” Tr. 853, 856. Experts from outside California offered similar assessments. Doyle Wayne Scott, the former head of corrections in Texas, described con ditions in California’s prisons as “appalling,” “inhumane,” and “unac ceptable” and stated that “[i]n more than 35 years of prison work experience, I have never seen anything like it.” App. 1337. Joseph Lehman, the former head of correctional systems in Washington, Maine, and Pennsylvania, concluded that “[t]here is no question that California’s prisons are overcrowded” and that “this is an emergency situation; it calls for drastic and immediate ac” 6 BROWN v. PLATA Opinion of the Court Other inmates awaiting care may be held for months in administrative segregation, where they endure harsh and isolated conditions and receive only limited mental health services. Wait times for mental health care range as high as 12 months. In 2006, the suicide rate in California’s prisons was nearly 80% higher than the national average for prison populations; and a court appointed Special Master found that 72.1% of suicides involved “some measure of inadequate assessment, treat ment, or intervention, and were therefore most probably foreseeable and/or preventable.”2 Prisoners suffering from physical illness receive severely deficient care. California’s prisons were designed to meet the medical needs of a population at % of design capacity and so have only half the clinical space needed to treat the current popula A correctional officer testified that, in one prison, up to 50 sick inmates may be held together in a 12- by 20-foot cage for up to five hours awaiting treatment. Tr. 597–599. The number of staff is inadequate, and prisoners face signifi cant delays in access to care. A prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist; a prisoner with “constant and extreme” chest —————— 2 At the time of the three-judge court’s decision, 2006 was the most recent year for which the Special Master had conducted a detailed study of suicides |
Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217287/brown-v-plata/ | the Special Master had conducted a detailed study of suicides in the California prisons. The Special Master later issued an analysis for the year 2007. This report concluded that the 2007 suicide rate was “a continuation of the CDCR’s pattern of exceed ing the national prison suicide rate.” Record in No. 2:90–CV–00520– LKK–JFM (ED/ND Cal.), Doc. 3677, p. 1. The report found that the rate of suicides involving inadequate assessment, treatment, or inter vention had risen to 82% and concluded that “[t]hese numbers clearly indicate no improvement in this area during the past several years, and possibly signal a trend of ongoing deteriora” No de tailed study has been filed since then, but in September 2010 the Special Master filed a report stating that “the data for 2010 so far is not showing improvement in suicide preven” App. 868. Cite as: 563 U. S. (2011) 7 Opinion of the Court pain died after an 8-hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a “failure of MDs to work up for cancer in a young man with 17 months of testicular pain.”3 California Prison Health Care Receiv ership Corp., K. Imai, Analysis of CDCR Death Reviews 2006, pp. 6–7 (Aug. 2007). Doctor Ronald Shansky, former medical director of the Illinois state prison system, sur veyed death reviews for California prisoners. He con cluded that extreme departures from the standard of care were “widespread,” Tr. 430, and that the proportion of “possibly preventable or preventable” deaths was “ex tremely high.”4 Many more prisoners, suffer —————— 3 Because plaintiffs do not base their case on deficiencies in care provided on any one occasion, this Court has no occasion to consider whether these instances of delay—or any other particular deficiency in medical care complained of by the plaintiffs—would violate the Consti tution under if consid ered in isola Plaintiffs rely on systemwide deficiencies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill prisoners in California to “substantial risk of serious harm” and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society. 4 In 2007, the last year for which the three-judge court had available statistics, an analysis of deaths in California’s prisons found 68 pre ventable or possibly preventable deaths. California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2007 Death Reviews (Nov. 2008). This was essentially unchanged from 2006, when an analysis found 66 preventable or possibly preventable deaths. |
Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217287/brown-v-plata/ | when an analysis found 66 preventable or possibly preventable deaths. These statistics mean that, during 2006 and 2007, a preventable or possibly preventable death occurred once every five to six days. Both preventable and possibly preventable deaths involve major lapses in medical care and are a serious cause for concern. In one typical case classified as a possibly preventable death, an analysis revealed the following lapses: “16 month delay in evaluating abnormal liver mass; 8 month delay in receiving regular chemotherapy ; multiple providers fail to respond to jaundice and abnormal liver function tests causing 17 month delay in diagnosis.” California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2009 Inmate Death Reviews—California Prison Health Care System 12 (Sept. 2010) 8 BROWN v. PLATA Opinion of the Court ing from severe but not life-threatening conditions, experi ence prolonged illness and unnecessary pain. B These conditions are the subject of two federal cases. The first to commence, Coleman v. Brown, was filed in 1990. Coleman involves the class of seriously mentally ill persons in California prisons. Over years ago, in 1995, after a 39-day trial, the Coleman District Court found “overwhelming evidence of the systematic failure to de liver necessary care to mentally ill inmates” in California prisons. (ED Cal.). The prisons were “seriously and chronically under staffed,” and had “no effective method for ensuring the competence of their staff,” The prisons had failed to implement necessary suicide prevention procedures, “due in large measure to the severe understaffing.” Mentally ill inmates “lan guished for months, or even years, without access to nec essary care.” at “They suffer from severe hallu cinations, [and] they decompensate into catatonic states.” The court appointed a Special Master to oversee development and implementation of a remedial plan of ac In 2007, 12 years after his appointment, the Special —————— (hereinafter 2009 Death Reviews). The three-judge court did not have access to statistics for 2008, but in that year the number of preventable or possibly preventable deaths held steady at 66. California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2008 Death Reviews 9 (Dec. 2009). In 2009, the number of preventable or possibly preventable deaths dropped to 46. 2009 Death Reviews 11, 13. The three-judge court could not have anticipated this development, and it would be inappropriate for this Court to evaluate its significance for the first time on appeal. The three-judge court should, of course, consider this and any other evi dence of improved conditions when considering future requests by the State for modification of its order. See infra, at 45–48. |
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