author_name
stringclasses 26
values | year
int64 1.97k
2.02k
| label
int64 0
200
| category
stringclasses 5
values | case_name
stringlengths 9
127
| url
stringlengths 55
120
| text
stringlengths 1k
3.91k
|
|---|---|---|---|---|---|---|
Justice Marshall | 1,991 | 15 | dissenting | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | itself prescribed in" The Report justified adoption of the tougher "reasonable diligence" standard on the ground that "[t]he guidelines have not. satisfactorily met concerns that death row prisoners may file second or successive habeas corpus applications as a means of extending litigation." Unfazed by Congress' rejection of this legislation, the majority arrogates to itself the power to repeal and to replace it with a tougher standard.[7] B Even if the fusion of cause-and-prejudice into the abuse-of-the-writ doctrine were not foreclosed by the will of Congress, the majority fails to demonstrate that such a rule would be a wise or just exercise of the Court's common-lawmaking discretion. In fact, the majority's abrupt change in law subverts the policies underlying 2244(b) and unfairly prejudices the petitioner in this case. The majority premises adoption of the cause-and-prejudice test almost entirely on the importance of "finality." See ante, at 490-493. At best, this is an insufficiently developed justification for cause-and-prejudice or any other possible conception of the abuse-of-the-writ doctrine. For the very *518 essence of the Great Writ is our criminal justice system's commitment to suspending "[c]onventional notions of finality of litigation where life or liberty is at stake and infringement of constitutional rights is alleged." To recognize this principle is not to make the straw-man claim that the writ must be accompanied by "[a] procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude." Ante, at 492, quoting Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, Rather, it is only to point out the plain fact that we may not, "[u]nder the guise of fashioning a procedural rule, wip[e] out the practical efficacy of a jurisdiction conferred by Congress on the District Courts." The majority seeks to demonstrate that cause-and-prejudice strikes an acceptable balance between the State's interest in finality and the purposes of habeas corpus by analogizing the abuse-of-the-writ doctrine to the procedural-default doctrine. According to the majority, these two doctrines "implicate nearly identical concerns flowing from the significant costs of federal habeas corpus review." Ante, at 490-491. And because this Court has already deemed cause-and-prejudice to be an appropriate standard for assessing procedural defaults, the majority reasons, the same standard should be used for assessing the failure to raise a claim in a previous habeas petition. See ante, at 490-493. This analysis does not withstand scrutiny. This Court's precedents on the procedural-default doctrine identify two purposes served by the cause-and-prejudice test. The first purpose is to promote respect for a State's legitimate procedural rules. See, e. g., |
Justice Marshall | 1,991 | 15 | dissenting | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | respect for a State's legitimate procedural rules. See, e. g., ; -90. As the Court has explained, the willingness of a habeas court to entertain a claim that a state court has deemed to be procedurally barred "undercut[s] the *519 State's ability to enforce its procedural rules," and may cause "state courts themselves [to be] less stringent in their enforcement," See generally Meltzer, State Court Forfeitures of Federal Rights, The second purpose of the cause-and-prejudice test is to preserve the connection between federal collateral review and the general "deterrent" function served by the Great Writ. "[T]he threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards." quoting ; see Obviously, this understanding of the disciplining effect of federal habeas corpus presupposes that a criminal defendant has given the state trial and appellate courts a fair opportunity to pass on his constitutional claims. See ; With regard to both of these purposes, the strictness of the cause-and-prejudice test has been justified on the ground that the defendant's procedural default is akin to an independent and adequate state-law ground for the judgment of conviction. See Neither of these concerns is even remotely implicated in the abuse-of-the-writ setting. The abuse-of-the-writ doctrine clearly contemplates a situation in which a petitioner (as in this case) has complied with applicable state-procedural rules and effectively raised his constitutional claim in state proceedings; were it otherwise, the abuse-of-the-writ doctrine would not perform a screening function independent from that performed by the procedural-default doctrine and by the requirement that a habeas petitioner exhaust his state remedies, see 28 U.S. C. 2254(b), (c). Cf. ante, at 486-487. Because the abuse-of-the-writ doctrine presupposes that the *520 petitioner has effectively raised his claim in state proceedings, a decision by the habeas court to entertain the claim notwithstanding its omission from an earlier habeas petition will neither breed disrespect for state-procedural rules nor unfairly subject state courts to federal collateral review in the absence of a state-court disposition of a federal claim.[8] Because the abuse-of-the-writ doctrine addresses the situation in which a federal habeas court must determine whether to hear a claim withheld from another federal habeas court, the test for identifying an abuse must strike an appropriate balance between finality and review in that setting. Only when informed by does 2244(b) strike an efficient balance. A habeas petitioner's own interest in liberty furnishes a powerful incentive to assert in his first petition all claims that the petitioner (or his counsel) believes have a |
Justice Marshall | 1,991 | 15 | dissenting | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | claims that the petitioner (or his counsel) believes have a reasonable prospect for success. See Note, ; see also ' bar on the later assertion of claims omitted in bad faith adequately fortifies this natural incentive. At the same time, however, the petitioner faces an effective disincentive to asserting any claim that he believes does not have a reasonable prospect for * success: the adverse adjudication of such a claim will bar its reassertion under the successive-petition doctrine, see 28 U.S. C. 2244(b); whereas omission of the claim will not prevent the petitioner from asserting the claim for the first time in a later petition should the discovery of new evidence or the advent of intervening changes in law invest the claim with merit, S. Rep. No. 7, at 2; Advisory Committee's Note to Habeas Corpus Rule 9, 28 U.S. C., p. 427. The cause-and-prejudice test destroys this balance. By design, the cause-and-prejudice standard creates a near-irrebuttable presumption that omitted claims are permanently barred. This outcome not only conflicts with Congress' intent that a petitioner be free to avail himself of newly discovered evidence or intervening changes in law, S. Rep. No. 7, at 2; Advisory Committee's Note to Habeas Corpus Rule 9, 28 U.S. C., p. 427, but also subverts the statutory disincentive to the assertion of frivolous claims. Rather than face the cause-and-prejudice bar, a petitioner will assert all conceivable claims, whether or not these claims reasonably appear to have merit. The possibility that these claims will be adversely adjudicated and thereafter be barred from relitigation under the successive-petition doctrine will not effectively discourage the petitioner from asserting them, for the petitioner will have virtually no expectation that any withheld claim could be revived should his assessment of its merit later prove mistaken. Far from promoting efficiency, the majority's rule thus invites the very type of "baseless claims," ante, at 493, that the majority seeks to avert. The majority's adoption of the cause-and-prejudice test is not only unwise, but also manifestly unfair. The proclaimed purpose of the majority's new strict-liability standard is to increase to the maximum extent a petitioner's incentive to investigate all conceivable claims before filing his first petition. See ante, at 498. Whatever its merits, this was not the rule when the petitioner in this case filed his first petition. *522 From the legislative history of 2244(b) and Rule 9(b) and from the universal agreement of courts and commentators, see McCleskey's counsel could have reached no other conclusion but that his investigatory efforts in preparing his client's petition would be measured against the good-faith standard. |
Justice Marshall | 1,991 | 15 | dissenting | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | his client's petition would be measured against the good-faith standard. There can be little question that his efforts satisfied that test; indeed, the District Court expressly concluded that McCleskey's counsel on his first habeas conducted a reasonable and competent investigation before concluding that a claim based on would be without factual foundation. See App. 84-85; see also infra, at 526. Before today, that would have been enough. The Court's utter indifference to the injustice of retroactively applying its new, strict-liability standard to this habeas petitioner stands in marked contrast to this Court's eagerness to protect States from the unfair surprise of "new rules" that enforce the constitutional rights of citizens charged with criminal wrongdoing. See 412-4 ; ; -310 This injustice is compounded by the Court's activism in fashioning its new rule. The applicability of ' cause-and-prejudice test was not litigated in either the District Court or the Court of Appeals. The additional question that we requested the parties to address reasonably could have been read to relate merely to the burden of proof under the abuse-of-the-writ doctrine;[9] it evidently did not put the parties on notice that this Court was contemplating a change in the governing legal standard, since respondent did not even mention or cause-and-prejudice in his brief or at oral *523 argument, much less request the Court to adopt this standard.[10] In this respect, too, today's decision departs from norms that inform the proper judicial function. See ; accord, Granfinanciera, S. It cannot be said that McCleskey had a fair opportunity to challenge the reasoning that the majority today invokes to strip him of his Massiah claim. III The manner in which the majority applies its new rule is as objectionable as the manner in which the majority creates that rule. As even the majority acknowledges, see ante, at 470, the standard that it announces today is not the one employed by the Court of Appeals, which purported to rely on see See ante, at 470. Where, as here, application of a different standard from the one applied by the lower court requires an in-depth review of the record, the ordinary course is to remand so that the parties have a fair opportunity to address, and the lower court to consider, all of the relevant issues. See, e. g., ; ; see also United (Court should not undertake record-review "function that can better be performed by other judges"). *524 A remand would have been particularly appropriate in this case in view of the patent deficiencies in the reasoning of the Court of Appeals. The Court of Appeals |
Justice Marshall | 1,991 | 15 | dissenting | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | reasoning of the Court of Appeals. The Court of Appeals concluded that McCleskey deliberately abandoned his Massiah claim because his counsel "made a knowing choice not to pursue the claim after having raised it" unsuccessfully on state collateral review. This reasoning, which the majority declines to endorse, is obviously faulty. As I have explained, the abuse-of-the-writ doctrine is independent from the procedural-default and exhaustion doctrines; 2244(b) and Rule 9(b) contemplate a habeas petitioner who has effectively presented his claim in state proceedings but withheld that claim from a previous habeas application. Because 2244(b) and Rule 9(b) authorize the district court to consider such a claim under appropriate circumstances, it cannot be the case that a petitioner invariably abuses the writ by consciously failing to include in his first habeas petition a claim raised in state proceedings. Insofar as Congress intended that the district court excuse the withholding of a claim when the petitioner produces newly discovered evidence or intervening changes in law, S. Rep. No. 7, at 2; Advisory Committee's Note to Habeas Corpus Rule 9, 28 U.S. C., p. 427, a petitioner cannot be deemed to have deliberately abandoned the claim in an earlier habeas proceeding unless the petitioner was aware then of the evidence and law that support the claim. See, e. g., Wong 265 U. S., If the Court of Appeals had properly applied it would almost certainly have agreed with the District Court's conclusion that McCleskey was not aware of the evidence that supported his Massiah claim when he filed his first petition. In any case, because the Court of Appeals' reversal was based on an erroneous application of the majority's decision not to remand cannot be justified on the ground that the Court of Appeals would necessarily have decided the case the same way under the cause-and-prejudice standard. *525 Undaunted by the difficulty of applying its new rule without the benefit of any lower court's preliminary consideration, the majority forges ahead to perform its own independent review of the record. The majority concludes that McCleskey had no cause to withhold his Massiah claim because all of the evidence supporting that claim was available before he filed his first habeas petition. The majority purports to accept the District Court's finding that Offie Evans' 21-page statement was, at that point, being held beyond McCleskey's reach. See ante, at 498, and n.[11] But the State's failure to produce this document, the majority explains, furnished no excuse for McCleskey's failure to assert his Massiah claim "because McCleskey participated in the conversations reported by Evans," and therefore "knew everything in |
Justice Marshall | 1,991 | 15 | dissenting | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | the conversations reported by Evans," and therefore "knew everything in the document that the District Court relied upon to establish the ab initio connection between Evans and the police." Ante, at 500. The majority also points out that no *526 external force impeded McCleskey's discovery of the testimony of jailer Worthy. See To appreciate the hollowness and the dangerousness of this reasoning, it is necessary to recall the District Court's central finding: that the State did covertly plant Evans in an adjoining cell for the purpose of eliciting incriminating statements that could be used against McCleskey at trial. See App. 83. Once this finding is credited, it follows that the State affirmatively misled McCleskey and his counsel throughout their unsuccessful pursuit of the Massiah claim in state collateral proceedings and their investigation of that claim in preparing for McCleskey's first federal habeas proceeding. McCleskey's counsel deposed or interviewed the assistant district attorney, various jailers, and other government officials responsible for Evans' confinement, all of whom denied any knowledge of an agreement between Evans and the State. See App. 25-28, 44-47, 79, 85. Against this background of deceit, the State's withholding of Evans' 21-page statement assumes critical importance. The majority overstates McCleskey's and his counsel's awareness of the statement's contents. For example, the statement relates that state officials were present when Evans made a phone call at McCleskey's request to McCleskey's girlfriend, Plaintiff's Exh. 8, p. a fact that McCleskey and his counsel had no reason to know and that strongly supports the District Court's finding of an ab initio relationship between Evans and the State. But in any event, the importance of the statement lay much less in what the statement said than in its simple existence. Without the statement, McCleskey's counsel had nothing more than his client's testimony to back up counsel's own suspicion of a possible Massiah violation; given the state officials' adamant denials of any arrangement with Evans, and given the state habeas court's rejection of the Massiah claim, counsel quite reasonably concluded that raising this claim in McCleskey's first habeas petition would be futile. All this changed once *527 counsel finally obtained the statement, for at that point, there was credible, independent corroboration of counsel's suspicion. This additional evidence not only gave counsel the reasonable expectation of success that had previously been lacking, but also gave him a basis for conducting further investigation into the underlying claim. Indeed, it was by piecing together the circumstances under which the statement had been transcribed that McCleskey's counsel was able to find Worthy, a state official who |
Justice Marshall | 1,991 | 15 | dissenting | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | counsel was able to find Worthy, a state official who was finally willing to admit that Evans had been planted in the cell adjoining McCleskey's.[12] The majority's analysis of this case is dangerous precisely because it treats as irrelevant the effect that the State's disinformation strategy had on counsel's assessment of the reasonableness of pursing the Massiah claim. For the majority, all that matters is that no external obstacle barred McCleskey from finding Worthy. But obviously, counsel's decision even to look for evidence in support of a particular claim has to be informed by what counsel reasonably perceives to be the prospect that the claim may have merit; in this case, by withholding the 21-page statement and by affirmatively misleading counsel as to the State's involvement with Evans, state officials created a climate in which McCleskey's first habeas counsel was perfectly justified in focusing his attentions elsewhere. The sum and substance of the majority's analysis is that McCleskey had no "cause" for failing to assert the Massiah claim because he did not try *528 hard enough to pierce the State's veil of deception. Because the majority excludes from its conception of cause any recognition of how state officials can distort a petitioner's reasonable perception of whether pursuit of a particular claim is worthwhile, the majority's conception of "cause" creates an incentive for state officials to engage in this very type of misconduct. Although the majority finds it unnecessary to reach the question whether McCleskey was "prejudiced" by the Massiah violation in this case, I have no doubt that the admission of Evans' testimony at trial satisfies any fair conception of this prong of the test. No witness from the furniture store was able to identify which of the four robbers shot the off-duty police officer. The State did put on evidence that McCleskey had earlier stolen the pearl-handled pistol that was determined to be the likely murder weapon, but the significance of this testimony was clouded by a codefendant's admission that he had been carrying this weapon for weeks at a time, App. 16, and by a prosecution witness' own prior statement that she had seen only the codefendant carry the pistol, at 11-. See also Outside of the self-serving and easily impeachable testimony of the codefendant, the only evidence that directly supported the State's identification of McCleskey as the triggerman was the testimony of Evans. As the District Court found, "Evans' testimony about the petitioner's incriminating statements was critical to the state's case." Without it, the jury might very well have reached a different verdict. Thus, as I read |
Justice Marshall | 1,991 | 15 | dissenting | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | well have reached a different verdict. Thus, as I read the record, McCleskey should be entitled to the consideration of his petition for habeas corpus even under the cause-and-prejudice test. The case is certainly close enough to warrant a remand so that the issues can be fully and fairly briefed. *529 IV Ironically, the majority seeks to defend its doctrinal innovation on the ground that it will promote respect for the "rule of law." Ante, at 492. Obviously, respect for the rule of law must start with those who are responsible for pronouncing the law. The majority's invocation of "the orderly administration of justice," ante, at 496, rings hollow when the majority itself tosses aside established precedents without explanation, disregards the will of Congress, fashions rules that defy the reasonable expectations of the persons who must conform their conduct to the law's dictates, and applies those rules in a way that rewards state misconduct and deceit. Whatever "abuse of the writ" today's decision is designed to avert pales in comparison with the majority's own abuse of the norms that inform the proper judicial function. I dissent. |
Justice Marshall | 1,978 | 15 | concurring | New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co. | https://www.courtlistener.com/opinion/109952/new-motor-vehicle-bd-of-cal-v-orrin-w-fox-co/ | Although I join the opinion of the Court, I write separately to emphasize why, in my view, the California Automobile Franchise Act is not violative of the Due Process Clause. As the Court observes, ante, at 100-103, the California statute, like its state and federal counterparts, seeks to redress the disparity in economic power between automobile manufacturers and their franchisees. By empowering the New Motor Vehicle Board to superintend the establishment or relocation of a franchise, the statute makes it more difficult for a manufacturer to force its franchisees to accept unfair conditions of trade by threatening to overload their markets with intrabrand competitors.[1] *112 This litigation arises because of the delay necessarily incident to the Board's inquiry. Given the unavoidable time lag between the filing of protests and the Board's hearing, the State had to elect whether to permit the establishment or relocation of dealerships pending the Board's determination of their legality. To enjoin temporarily the proposed transactions would deprive new dealers and their franchisors of legitimate profits in cases where the dealership was eventually approved. On the other hand, allowing the transactions to go forward would force existing franchisees to bear the burden of illegal competition in cases where the Board ultimately disapproved the new dealership. Perhaps because the policy of redressing the economic imbalance between franchisees and manufacturers would be thwarted if existing franchisees were left unprotected until the Board made its decision, the California Legislature chose the former option.[2] Assuming appellees' interest in immediately opening or relocating a franchise implicates the Due Process Clause, I do not believe it outweighs the interest of the State in protecting existing franchisees from unfair competition and economic coercion pending completion of the Board's inquiry. See ; Board of The state legislature has decided to impose the burdens of delay on appellees rather than on existing franchisees. In view of the substantial public interest at stake and the short lapse of *113 time between notice and hearing, the Due Process Clause does not dictate a contrary legislative decision. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE POWELL joins, concurring in the result. I agree with the Court when it concludes (a) that the District Court rightly refused to abstain under the rule of Railroad ; (b) that the appellees' delegation-of-power argument is unmeritorious; and (c) that the appellees' antitrust claims are also without merit. We are concerned here, basically, only with the issue of the facial constitutionality of certain provisions of the California Automobile Franchise Act, Cal. Veh. Code Ann. 3062, 3063 (West Supp. 1978); we are not confronted with any |
Justice Marshall | 1,978 | 15 | concurring | New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co. | https://www.courtlistener.com/opinion/109952/new-motor-vehicle-bd-of-cal-v-orrin-w-fox-co/ | 3063 (West Supp. 1978); we are not confronted with any issue of constitutionality of the Act as applied. It seems to me that we should recognize forthrightly the fact that California, under its Act, accords the manufacturer and the would-be franchisee no process at all prior to telling them not to franchise at will. This utter absence of process would indicate that the State's action is free from attack on procedural due process grounds only if the manufacturer and the franchisee possess no liberty or property interest protected under the Fourteenth Amendment. Indeed, that is the way I would analyze the case. of course, defined "liberty" to include "the right to engage in any of the common occupations of life." The California statute, however, does not deprive anyone of any realistic freedom to become an automobile dealer or to grant a franchise; it simply regulates the location of franchises to sell certain makes of cars in certain geographical areas. The absence of regulation by California prior to the Act's adoption in 1973 surely in itself created no liberty interest susceptible of later deprivation. And the abstract expectation of a new franchise does not qualify as a property interest. *114 I regard this litigation as not focusing on procedural due process at all. Instead, it centers essentially on a claim of substantive due process. Appellees have conceded that California may legitimately regulate automobile franchises and that the State may legitimately provide a hearing as part of its regulatory scheme. The only issue, then, is whether California may declare that the status quo is to be maintained pending a hearing. In my view, California's declaration to this effect is no more than a necessary incident of its power to regulate at all. Maintenance of the status quo pending final agency action is common in many regulatory contexts. The situation here, for example, is not dissimilar to the widely adopted routine of withholding the effectiveness of announced increases in utility rates until specified conditions have been fulfilled. In asserting a right to franchise at will and a right to franchise without delay, appellees are essentially asserting a right to be free from state economic regulation. But any claim the appellees may have to be free from state economic regulation is foreclosed by the substantive due process cases, such as which the Court cites. To summarize: For me, the appellees have demonstrated the presence of no liberty or property interest; having none, they have no claim to procedural safeguards; and their claim to be free from state economic regulation is foreclosed by the substantive |
Justice Kennedy | 1,993 | 4 | majority | Heller v. Doe | https://www.courtlistener.com/opinion/112896/heller-v-doe/ | In the Commonwealth of Kentucky, involuntary civil commitments of those alleged to be mentally retarded and of those alleged to be mentally ill are governed by separate statutory procedures. Two differences between these commitment proceedings are at issue in this case. First, at *315 a final commitment hearing, the applicable burden of proof for involuntary commitment based on mental retardation is clear and convincing evidence, Ky. Rev. Stat. Ann. 202B.160(2) while the standard for involuntary commitment based on mental illness is beyond a reasonable doubt, 202A.076(2). Second, in commitment proceedings for mental retardation, unlike for mental illness, "[g]uardians and immediate family members" of the subject of the proceedings "may participate as if a party to the proceedings," with all attendant rights, including the right to present evidence and to appeal. 202B.160(3). Respondents are a class of mentally retarded persons committed involuntarily to Kentucky institutions. They argue that these distinctions are irrational and violate the Equal Protection Clause of the Fourteenth Amendment. They claim also that granting close family members and guardians the status of parties violates the Due Process Clause. We reject these contentions and hold the Kentucky statutes constitutional. I This case has a long and complicated history. It began in 1982 when respondents filed suit against petitioner, the Kentucky Secretary of the Cabinet for Human Resources, claiming that Kentucky's failure to provide certain procedural protections before institutionalizing people on the basis of mental retardation violated the Constitution. Kentucky has amended its civil commitment statutes several times since 1982, with each new statute being attacked in court by respondents. As the previous incarnations of this lawsuit have little effect on the issues currently before this Court, we limit our discussion to the current round of the litigation. See At issue here are elements of Kentucky's statutory procedures, enacted in 1990, for the involuntary commitment of the mentally retarded. In many respects the procedures *316 governing commitment of the mentally retarded and the mentally ill are parallel. The statutes recognize a large class of persons who can petition for an individual's involuntary commitment, whether on grounds of mental retardation or mental illness. Ky. Rev. Stat. Ann. 202B.100(3) (mental retardation); 202A.0 (mental illness). Upon filing of the petition, the trial court must appoint counsel to represent the individual in question, unless he retains private counsel. 202B.210 (mental retardation); 202A.121 (mental illness). The trial court also must examine the person who filed the petition and, if there is probable cause to believe that the individual who is the subject of the petition should be involuntarily committed, the court must order his examination |
Justice Kennedy | 1,993 | 4 | majority | Heller v. Doe | https://www.courtlistener.com/opinion/112896/heller-v-doe/ | should be involuntarily committed, the court must order his examination by two qualified professionals. 202B.100(5), (6)(c) (mental retardation); 202A.0(5), (6)(c) (mental illness). The subject of the proceeding has the right to retain a professional of his own choosing, who may "witness and participate in any examination" of him. 202B.140 (mental retardation); 202A.066 (mental illness). In cases of commitment for mental retardation, a professional retained by the subject's "parent or guardian" also must be permitted to witness and participate in any examination. 202B.140. If both qualified professionals certify that the individual meets the criteria for involuntary commitment, the trial court must conduct a preliminary hearing. 202B.0 (mental retardation); 202A.061 (mental illness). At the hearing, the court must receive as evidence the reports of these two professionals and any other professional retained under the statute. 202B.160(1) (mental retardation); 202A.076(1) (mental illness). The individual whose commitment is sought may testify and may call and cross-examine witnesses. 202B.160(1) (mental retardation); 202A.076(1) (mental illness). In cases of mental retardation, at both the preliminary hearing and, if there is one, the final hearing, *317 Kentucky law provides particular rights to guardians and immediate family members: "Guardians and immediate family members of the respondent shall be allowed to attend all hearings, conferences or similar proceedings; may be represented by private counsel, if desired; may participate in the hearings or conferences as if a party to the proceedings; may cross-examine witnesses if desired; and shall have standing to appeal any adverse decision." 202B.160(3) See also 202B.230. If the trial court determines that there is probable cause to believe that the subject should be involuntarily committed, it proceeds to a final hearing. 202B.100(8) (mental retardation); 202A.0(9) (mental illness). At the final hearing, the State, through the county attorney for the county in which the person subject to the proceeding lives, prosecutes the petition, 202B.019 (mental retardation); 202A.016 (mental illness); Tr. of Oral Arg. 33-35, and counsel for the person defends against institutionalization, At this hearing, "[t]he manner of proceeding and the rules of evidence shall be the same as those in any criminal proceeding." 202B.160(2) (mental retardation); 202A.076(2) (mental illness). As in the preliminary hearing, the subject of the proceedings may testify and call and cross-examine witnesses. 202B.160(2) (mental retardation); 202A.076(2) (mental illness). In proceedings for commitment based on mental retardation, the standard of proof is clear and convincing evidence, 202B.160(2); for mental illness, the standard is proof beyond a reasonable doubt, 202A.076(2). For commitment of the mentally retarded, four propositions must be proved by clear and convincing evidence: "(1) The person is a mentally retarded person; (2) The |
Justice Kennedy | 1,993 | 4 | majority | Heller v. Doe | https://www.courtlistener.com/opinion/112896/heller-v-doe/ | "(1) The person is a mentally retarded person; (2) The person presents a danger or a threat of danger to self, family, or others; (3) The least restrictive alternative mode of treatment presently available requires placement in [a *318 residential treatment center]; and (4) Treatment that can reasonably benefit the person is available in [a residential treatment center]." 202B.040. The criteria for commitment of the mentally ill are in substance identical, requiring proof beyond a reasonable doubt that an individual "is a mentally ill person: (1) Who presents a danger or threat of danger to self, family or others as a result of the mental illness; (2) Who can reasonably benefit from treatment; and (3) For whom hospitalization is the least restrictive alternative mode of treatment presently available." 202A.026. Appeals from involuntary commitment proceedings are taken in the same manner as other appeals from the trial court. 202B.230 (mental retardation); 202A.141 (mental illness). After enactment of the 1990 modifications, respondents moved for summary judgment in their pending lawsuit against petitioner. They argued, among other things, that the differences in treatment between the mentally retarded and the mentally illthe different standards of proof and the right of immediate family members and guardians to participate as parties in commitment proceedings for the mentally retarded but not the mentally illviolated the Equal Protection Clause's prohibition of distinctions that lack a rational basis, and that participation by family members and guardians violated the Due Process Clause. The District Court for the Western District of Kentucky accepted these arguments and granted summary judgment to respondents on these and other grounds not at issue here, and the Court of Appeals for the Sixth Circuit affirmed, We granted Kentucky's petition for certiorari, and now reverse. II Respondents contend that, in evaluating the constitutionality of the distinctions drawn by Kentucky's statutes, we should apply not rational-basis review, but some form of *319 heightened scrutiny. Brief for Respondents 23-32. This claim is not properly presented. Respondents argued before the District Court and the Court of Appeals only that Kentucky's statutory scheme was subject to rational-basis review, and the courts below ruled on that ground. Indeed, respondents have conceded that they pressed their heightened scrutiny argument for the first time in their merits brief in this Court. Even if respondents were correct that heightened scrutiny applies, it would be inappropriate for us to apply that standard here. Both parties have been litigating this case for years on the theory of rational-basis review, which, as noted below, see infra, at 320, does not require the State to place any evidence in |
Justice Kennedy | 1,993 | 4 | majority | Heller v. Doe | https://www.courtlistener.com/opinion/112896/heller-v-doe/ | does not require the State to place any evidence in the record, let alone the extensive evidentiary showing that would be required for these statutes to survive heightened scrutiny. It would be imprudent and unfair to inject a new standard at this stage in the litigation. See ; Ernst & We therefore decide this case as it has been presented to the courts whose judgments are being reviewed. III We many times have said, and but weeks ago repeated, that rational-basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." See also, e. g., Nor does it authorize "the judiciary [to] sitas a super legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." New For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. *320 See, e. g., Beach ; ; ; Massachusetts Bd. of Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. See, e. g., ; at Further, a legislature that creates these categories need not "actually articulate at any time the purpose or rationale supporting its classification." See also, e. g., United States Railroad Retirement ; Allied Stores of Ohio, Instead, a classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Beach at See also, e. g., at ; ; at 174-; 1 ; at 484-. A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. "[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." Beach See also, e. g., at 1; ; Locomotive A statute is presumed constitutional, see and "[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it," whether or not the basis has a foundation in the *321 record. Finally, courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it "`is not made with mathematical nicety or because in practice it results in some inequality.'" at quoting (19). "The problems of government are practical ones and may justify, if they |
Justice Kennedy | 1,993 | 4 | majority | Heller v. Doe | https://www.courtlistener.com/opinion/112896/heller-v-doe/ | of government are practical ones and may justify, if they do not require, rough accommodationsillogical, it may be, and unscientific." Metropolis Theatre See also, e. g., Burlington Northern R. ; and n. 26; New at ; We have applied rational-basis review in previous cases involving the mentally retarded and the mentally ill. See ; In neither case did we purport to apply a different standard of rational-basis review from that just described. True, even the standard of rationality as we so often have defined it must find some footing in the realities of the subject addressed by the legislation. That requirement is satisfied here. Kentucky has proffered more than adequate justifications for the differences in treatment between the mentally retarded and the mentally ill. A Kentucky argues that a lower standard of proof in commitments for mental retardation follows from the fact that mental retardation is easier to diagnose than is mental illness. That general proposition should cause little surprise, for mental retardation is a developmental disability that becomes apparent before adulthood. See American Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders *322 29 (3d rev. ed. 1987) (hereinafter Manual of Mental Disorders); American Assn. on Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Support 5, 16-18 (hereinafter Mental Retardation); S. Brakel, J. Parry, & B. Weiner, The Mentally Disabled and the Law 16-17, 37 (hereinafter Mentally Disabled); Ky. Rev. Stat. Ann. 202B.010(9) By the time the person reaches 18 years of age the documentation and other evidence of the condition have been accumulated for years. Mental illness, on the other hand, may be sudden and may not occur, or at least manifest itself, until adulthood. See, e. g., Manual of Mental Disorders 190 (onset of schizophrenia may occur any time during adulthood); Furthermore, as we recognized in an earlier case, diagnosis of mental illness is difficult. See See also Mentally Disabled 18. Kentucky's basic premise that mental retardation is easier to diagnose than is mental illness has a sufficient basis in fact. See, e. g., ; Ellis & Luckasson, Mentally Retarded Criminal Defendants, This difference between the two conditions justifies Kentucky's decision to assign a lower standard of proof in commitment proceedings involving the mentally retarded. In assigning the burden of proof, Kentucky was determining the "risk of error" faced by the subject of the proceedings. If diagnosis is more difficult in cases of mental illness than in instances of mental retardation, a higher burden of proof for the former tends to equalize the risks of an erroneous determination that the subject of a commitment proceeding has |
Justice Kennedy | 1,993 | 4 | majority | Heller v. Doe | https://www.courtlistener.com/opinion/112896/heller-v-doe/ | erroneous determination that the subject of a commitment proceeding has the condition in question.[1] See G. Keppel, Design and Analysis 65-68 *323 From the diagnostic standpoint alone, Kentucky's differential burdens of proof (as well as the other statutory distinction at issue, see infra, at 328-329) are rational. There is, moreover, a "reasonably conceivable state of facts," Beach 508 U. S., at from which Kentucky could conclude that the second prerequisite to commitmentthat "[t]he person presents a danger or a threat of danger to self, family, or others," Ky. Rev. Stat. Ann. 202B.040 is established more easily, as a general rule, in the case of the mentally retarded. Previous instances of violent behavior are an important indicator of future violent tendencies. See, e. g., J. Monahan, The Clinical Prediction of Violent Behavior -72 (hereinafter Monahan); Kozol, Boucher, & Garofalo, The Diagnosis and Treatment of Dangerousness, 18 Crime & Delinquency 3, 384 Mental retardation is a permanent, relatively static condition, see Mentally Disabled 37, so a determination of dangerousness may be made with some accuracy based on previous behavior. We deal here with adults only, so almost by definition in the case of the retarded there is an 18-year record upon which to rely. This is not so with the mentally ill. Manifestations of mental illness may be sudden, and past behavior may not be an adequate predictor of future actions. Prediction of future behavior is complicated as well by the difficulties inherent *324 in diagnosis of mental illness. Developments in the Law-Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 90, It is thus no surprise that many psychiatric predictions of future violent behavior by the mentally ill are inaccurate. See, e. g., Steadman, Employing Psychiatric Predictions of Dangerous Behavior: Policy vs. Fact, in Dangerous Behavior: A Problem in Law and Mental Health 123, 125-128 (C. Frederick ed. 19); Monahan 47-49. For these reasons, it would have been plausible for Kentucky to conclude that the dangerousness determination was more accurate as to the mentally retarded than the mentally ill. A statutory classification fails rational-basis review only when it "`rests on grounds wholly irrelevant to the achievement of the State's objective.' " Holt Civic (19), quoting See also, e. g., ; Because ease of diagnosis is relevant to two of the four inquiries, it is not "wholly irrelevant" to the achievement of Kentucky's objective, and thus the statutory difference in the applicable burden of proof survives rational-basis review. In any event, it is plausible for Kentucky to have found that, for purposes of determining the acceptable risk of error, diagnosis and |
Justice Kennedy | 1,993 | 4 | majority | Heller v. Doe | https://www.courtlistener.com/opinion/112896/heller-v-doe/ | purposes of determining the acceptable risk of error, diagnosis and dangerousness are the most critical factors in the commitment decision, so the appropriate burden of proof should be tied to them. There is a further, more far-reaching rationale justifying the different burdens of proof: The prevailing methods of treatment for the mentally retarded, as a general rule, are much less invasive than are those given the mentally ill. The mentally ill are subjected to medical and psychiatric treatment which may involve intrusive inquiries into the patient's innermost thoughts, see Meissner & Nicholi, The Psychotherapies: *325 Individual, Family, and Group, in The Harvard Guide to Modern Psychiatry 357-385 (A. Nicholi ed. 19) (hereinafter Harvard Guide), and use of psychotropic drugs, see Baldessarini, Chemotherapy, in Harvard Guide 387-431; Berger, Medical Treatment of Mental Illness, 200 Science 4 (19); Mentally Disabled 327-330; Brief for American Psychological Association as Amicus Curiae in Washington v. Harper, O. T. 1988, No. 88-599, pp. 10-. By contrast, the mentally retarded in general are not subjected to these medical treatments. Rather, "`because mental retardation is a learning disability and training impairment rather than an illness,'" quoting Brief for American Psychiatric Association as Amicus Curiae in O. T. 1981, No. 80-1429, p. 4, n. 1, the mentally retarded are provided "habilitation," which consists of education and training aimed at improving self-care and self-sufficiency skills. See at ; M. Rosen, G. Clark, & M. Kivitz, Habilitation of the Handicapped 47-59 (17); Mentally Disabled 332. It is true that the loss of liberty following commitment for mental illness and mental retardation may be similar in many respects; but the different treatment to which a committed individual is subjected provides a rational basis for Kentucky to decide that a greater burden of proof is needed before a person may be committed for mental illness. The procedures required before the government acts often depend on the nature and extent of the burden or deprivation to be imposed. See 441 U. S., -424. For example, because confinement in prison is punitive and hence more onerous than confinement in a mental hospital, the Due Process Clause subjects the former to proof beyond a reasonable doubt, In re Winship, whereas it requires in the latter case only clear and convincing evidence, It may also be true that some persons committed for mental retardation are subjected to more intrusive treatments while *326 confined. See post, at 342-346 (Souter, J., dissenting). Nonetheless, it would have been plausible for the Kentucky Legislature to believe that most mentally retarded individuals who are committed receive treatment that is different from, and |
Justice Kennedy | 1,993 | 4 | majority | Heller v. Doe | https://www.courtlistener.com/opinion/112896/heller-v-doe/ | who are committed receive treatment that is different from, and less invasive than, that to which the mentally ill are subjected. "States are not required to convince the courts of the correctness of their legislative judgments." Thus, since "`the question is at least debatable,' " Western & Southern Life Ins. quoting United rationalbasis review permits a legislature to use just this sort of generalization. These distinctions may explain, too, the differences in treatment between the mentally retarded and the mentally ill that have long existed in Anglo-American law. At English common law there was a "marked distinction" in the treatment accorded "idiots" (the mentally retarded) and "lunatics" (the mentally ill). 1 F. Pollock & F. Maitland, The History of English Law 481 (2d ed. 1909) (hereinafter Pollack and Maitland). As Blackstone a retarded person became a ward of the King, who had a duty to preserve the individual's estate and provide him with "necessaries," but the King could profit from the wardship. In contrast, the King was required to "provide for the custody and sustentation of [the mentally ill], and preserve their lands and the profits of them," but the King was prohibited from profiting thereby. 1 W. Blackstone, Commentaries *302-*304. See Pollack and Maitland 481; S. Herr, Rights and Advocacy for Retarded People 9-10 (1983). Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis. That the law has long treated the classes as distinct, however, suggests that there is a commonsense distinction between the mentally *327 retarded and the mentally ill. The differentiation continues to the present day. A large majority of States have separate involuntary commitment laws for the two groups,[2]*328 and many States as well have separate agencies for addressing their needs.[3] Kentucky's burden of proof scheme, then, can be by differences in the ease of diagnosis and the accuracy of the prediction of future dangerousness and by the nature of the treatment received after commitment. Each of these rationales, standing on its own, would suffice to establish a rational basis for the distinction in question. B There is a rational basis also for the other distinction challenged by respondents: that Kentucky allows close relatives *329 and guardians to participate as parties in proceedings to commit the mentally retarded but not the mentally ill. As we have noted, see by definition, mental retardation has its onset during a person's developmental period. Mental retardation, furthermore, results in "deficits or impairments in adaptive functioning," that is to say, "the person's effectiveness in areas such as social skills, communication, and daily |
Justice Kennedy | 1,993 | 4 | majority | Heller v. Doe | https://www.courtlistener.com/opinion/112896/heller-v-doe/ | effectiveness in areas such as social skills, communication, and daily living skills, and how well the person meets the standards of personal independence and social responsibility expected of his or her age by his or her cultural group." Manual of Mental Disorders 28-29. See also Mental Retardation 5-6, 15-16, 38-41. Based on these facts, Kentucky may have concluded that close relatives and guardians, both of whom likely have intimate knowledge of a mentally retarded person's abilities and experiences, have valuable insights that should be considered during the involuntary commitment process. Mental illness, by contrast, may arise or manifest itself with suddenness only after minority, see when the afflicted person's immediate family members have no knowledge of the medical condition and have long ceased to provide care and support. Further, determining the proper course of treatment may be far less dependent upon observations made in a household setting. Indeed, we have noted the severe difficulties inherent in psychiatric diagnosis conducted by experts in the field. 441 U. S., at See also Mentally Disabled 18. In addition, adults previously of sound mental health who are diagnosed as mentally ill may have a need for privacy that justifies the State in confining a commitment proceeding to the smallest group compatible with due process. Based on these facts, Kentucky may have concluded that participation as parties by relatives and guardians of the mentally ill would not in most cases have been of sufficient help to the trier of fact to justify the additional burden and complications of granting party status. To be sure, Kentucky could have provided relatives *330 and guardians of the mentally retarded some participation in commitment proceedings by methods short of providing them status as parties. That, however, is irrelevant in rational-basis review. We do not require Kentucky to have chosen the least restrictive means of achieving its legislative end. San Antonio Independent School 4 U.S. 1, As long as Kentucky "rationally advances a reasonable and identifiable governmental objective, we must disregard" the existence of alternative methods of furthering the objective "that we, as individuals, perhaps would have preferred." 450 U. S., 5. IV We turn now to respondents' claim that one aspect of the involuntary commitment procedures violates procedural due process. We note at the outset that respondents challenge as violative of due process only those provisions of Kentucky's comprehensive involuntary commitment procedures that allow participation in the proceedings by guardians and immediate family members. See Ky. Rev. Stat. Ann. 202B.140, 202B.160(3), 202B.230 Respondents claim that by allowing the participation of persons whose interests may be adverse to those of |
Justice Kennedy | 1,993 | 4 | majority | Heller v. Doe | https://www.courtlistener.com/opinion/112896/heller-v-doe/ | of persons whose interests may be adverse to those of the individual facing possible involuntary commitment, the statute "skews the balance" against the retarded individual and therefore imposes a burden on him. Brief for Respondents 32-36. Both courts below apparently accepted this argument, almost without explanation. See 965 F.2d, at 3; In our view, the claim is without merit. We evaluate the sufficiency of this procedural rule under There we held that determining the dictates of due process requires consideration of three factors: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation *331 of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." We think that application of the factors compels the conclusion that participation as parties by close relatives and legal guardians is not a deprivation of due process. Even if parents, close family members, or legal guardians can be said in certain instances to have interests "adverse to [those of] the person facing commitment," 965 F.2d, at 3, we simply do not understand how their participation as formal parties in the commitment proceedings increases "the risk of an erroneous deprivation," 424 U.S., of respondents' liberty interest. Rather, for the reasons these parties often will have valuable information that, if placed before the court, will increase the accuracy of the commitment decision. Kentucky law, moreover, does not allow intervention by persons who lack a personal stake in the outcome of the adjudication. Guardians have a legal obligation to further the interests of their wards, and parents and other close relatives of a mentally retarded person, after living with and caring for the individual for 18 years or more, have an interest in his welfare that the State may acknowledge. See For example, parents who for 18 years or longer have cared for a retarded child can face changed circumstances resulting from their own advancing age, when the physical, emotional, and financial costs of caring for the adult child may become too burdensome for the child's best interests to be served by care in their home. There is no support whatever in our cases or our legal tradition for the "statist notion," that the State's expertise and concern in these matters is so superior to that of parents and other close family members that the State must *332 slam the courthouse door against those interested enough to |
Justice Kennedy | 1,993 | 4 | majority | Heller v. Doe | https://www.courtlistener.com/opinion/112896/heller-v-doe/ | *332 slam the courthouse door against those interested enough to intervene. Finally, "the state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable to care for themselves," as well as "authority under its police power to protect the community" from any dangerous mentally retarded persons. To be sure, if the additional parties involved in the proceedings favor commitment, their participation may increase the chances that the result of the proceeding will be a decision to commit. That fact, however, is beside the point. "The Due Process Clause does not require a State to adopt one procedure over another on the basis that it may produce results more favorable to" the party challenging the existing procedures. 4 "The function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions. Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error." See also At least to the extent protected by the Due Process Clause, the interest of a person subject to governmental action is in the accurate determination of the matters before the court, not in a result more favorable to him. So long as the accuracy of the adjudication is unaffected, therefore, the Due Process Clause does not prevent a State from allowing the intervention of immediate family members and legal guardians, *333 even if in some instances these parties will have interests adverse to those of the subject of the proceedings. Neither respondents nor their amici have suggested that accuracy would suffer from the intervention allowed by Kentucky law, and as noted above we think quite the opposite is true. Because allowing guardians and immediate family members to participate as parties in commitment proceedings increases the accuracy of those proceedings and implements the State's interest in providing family members a voice in the proceedings, without undermining those interests of the individual protected by the Due Process Clause, these Kentucky statutes do not run afoul of due process. "We deal here with issues of unusual delicacy, in an area where professional judgments regarding desirable procedures are constantly and rapidly changing. In such a context, restraint is appropriate on the part of courts called upon to adjudicate whether a particular procedural scheme is adequate under the Constitution." (17). V |
Justice Kennedy | 1,993 | 4 | majority | Heller v. Doe | https://www.courtlistener.com/opinion/112896/heller-v-doe/ | particular procedural scheme is adequate under the Constitution." (17). V In sum, there are plausible rationales for each of the statutory distinctions challenged by respondents in this case. It could be that "[t]he assumptions underlying these rationales [are] erroneous, but the very fact that they are `arguable' is sufficient, on rational-basis review, to `immunize' the [legislative] choice from constitutional challenge." Beach quoting 440 U. S., at 2.[4] *334 The judgment of the Court of Appeals for the Sixth Circuit is Reversed. Justice O'Connor, concurring in the judgment in part and dissenting in part. I agree with Justice Souter that Kentucky's differential standard of proof for committing the mentally ill and the mentally retarded is irrational and therefore join Part II of his opinion. I conclude, however, that there is a rational basis for permitting close relatives and guardians to participate as parties in proceedings to commit the mentally retarded but not the mentally ill. As the Court points out, there are sufficiently plausible and legitimate reasons for the legislative determination in this area. I also agree with the Court that allowing guardians and immediate family members to participate as parties in commitment proceedings does not violate procedural due process. Like my colleagues, I would not reach the question whether heightened equal protection scrutiny should be applied to the Kentucky scheme. |
Justice Powell | 1,981 | 17 | concurring | Carter v. Kentucky | https://www.courtlistener.com/opinion/110426/carter-v-kentucky/ | Although joining the opinion of the Court, I write briefly to make clear that, for me, this result is required by precedent, not by what I think the Constitution should require. The Fifth Amendment, applicable to the States through the Fourteenth, provides that no person "shall be compelled in any criminal case to be a witness against himself." The question in was whether this proscription was violated if jurors were told that they could draw inferences from a defendant's failure to testify. The Court held that neither the judge nor the prosecutor could suggest that jurors draw such inferences. *306 A defendant who chooses not to testify hardly can claim that he was compelled to testify. The Court also held, nevertheless, that any "penalty imposed by courts for exercising [this] constitutional privilege" cannot be tolerated because "[i]t cuts down on the privilege by making its assertion costly." JUSTICE STEWART'S dissenting opinion in Griffin, in which JUSTICE WHITE joined, responded persuasively to this departure from the language and purpose of the Self-Incrimination Clause. JUSTICE STEWART wrote: "We must determine whether the petitioner has been `compelled to be a witness against himself.' Compulsion is the focus of the inquiry. Certainly, if any compulsion be detected in the California procedure, it is of a dramatically different and less palpable nature than that involved in the procedures which historically gave rise to the Fifth Amendment guarantee. "I think that the Court in this case stretches the concept of compulsion beyond all reasonable bounds, and that whatever compulsion may exist derives from the defendant's choice not to testify, not from any comment by court or counsel. [T]he jury will, of course, realize th[e] quite evident fact [that the defendant has chosen not to testify], even though the choice goes unmentioned." The one person who usually knows most about the critical facts is the accused. For reasons deeply rooted in the history we share with England, the Bill of Rights included the Self-Incrimination Clause, which enables a defendant in a criminal trial to elect to make no contribution to the fact-finding process. But nothing in the Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances. Jurors have been instructed that the defendant is presumed to be innocent and that this presumption can be overridden only by *307 evidence beyond a reasonable doubt. California Chief Justice Traynor commented that judges and prosecutors should be able to explain that "a jury [may] draw unfavorable inferences from the defendant's failure to explain or refute evidence when he could reasonably be expected |
Justice Stevens | 1,990 | 16 | dissenting | Stewart v. Abend | https://www.courtlistener.com/opinion/112420/stewart-v-abend/ | The Constitution authorizes the Congress: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U. S. Const. Art. I, 8, Cl. 8. Section 6 of the Copyright Act of 1909, 17 U.S. C. 7 ( ed.) (hereafter 7), furthers that purpose; 23 of that Act, 17 U.S. C. 24 ( ed.) (hereafter 24), as construed by the Court in this case, does not. It is therefore appropriate to begin with 7.[1] I In a copyright case, as in any other case, the language of the statute provides the starting point. Community for Creative ; Mills Music, Section 7 provides in pertinent part: "Compilations or abridgments, adaptations, arrangements, dramatizations, translations, or other versions of *240 works in the public domain or of copyrighted works when produced with the consent of the proprietor of the copyright in such works shall be regarded as new works subject to copyright under the provisions of this title; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works." This statutory provision deals with derivative works works that include both old material and new material. The plain language of 7 confers on the entire derivative work not just the new material contained therein the status of all other works of authorship, that of "new works subject to copyright under the provisions of this title." Among those rights is that specified in 3 of the 1909 Act, 17 U.S. C. 3 ( ed.), which applies both to composite and derivative works and states that "the copyright provided by this Act shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright." In turn, under 1, 17 U.S. C. 1 ( ed.), the author or proprietor of the copyright has the right to distribute and publicly perform the copyrighted derivative work. 1(a), 1(d).[2] The statute does not say *241 anything about the duration of the copyright being limited to the underlying work's original term; rather, derivative works made with the consent of the author and derivative works based on matter in the public domain are treated identically. They are both given independent copyright protection. Section 7, |
Justice Stevens | 1,990 | 16 | dissenting | Stewart v. Abend | https://www.courtlistener.com/opinion/112420/stewart-v-abend/ | identically. They are both given independent copyright protection. Section 7, read together with 3, plainly indicates that the copyright on a derivative work extends to both the new material and that "in which copyright is already subsisting." 3. The author or proprietor of the derivative work therefore has the statutory right to publish and distribute the entire work.[3] The structure of 7 confirms this reading. The statute does not merely provide the derivative author with a right to copyright but goes on to set limitations and conditions on that copyright. The statute makes "the consent of the proprietor of the [underlying] copyright" a precondition for copyright of the derivative work, a provision that would make little sense if the copyright provided by 7 did not derogate in some manner from the underlying author's copyright rights.[4] The *242 statute also directs that the right granted the derivative work proprietor should not "be construed to imply an exclusive right to such use of the original works," suggesting, by negative implication, that it should be read to include a non-exclusive right to use of the original works. The provision that publication "shall not affect the force or validity of any subsisting copyright" also suggests that publication would otherwise have the capacity to affect the force or validity of the original copyright: By publishing the derivative work *243 without satisfying the notice requirements of the Act, the derivative author would dedicate to the public not only his own original contribution, but also that of the original author. Conversely, the limitation that publication does not "secure or extend copyright in such original works" would be unnecessary if the copyrighted derivative work did not include within it some of the material covered by the earlier copyright, or if the term of the derivative copyright did not extend beyond the life of the original copyright.[5] Although the derivative copyright protects only the new material contained within the new work, that limitation is not the product of the limited extent of the copyright which encompasses both new and old material but rather of the specific statutory language restricting its effect against third parties.[6] *244 Any other interpretation would render the provision largely surplusage. The Copyright Act of 1909 elsewhere accords protection to "all the writings of an author," 4, including dramatic composition, 5, and long before the Act of 1909, it was recognized that the additions and improvements to existing works of art were subject to copyright as original works of authorship.[7] Congress would hardly have needed to provide for the copyright of derivative works, including |
Justice Stevens | 1,990 | 16 | dissenting | Stewart v. Abend | https://www.courtlistener.com/opinion/112420/stewart-v-abend/ | needed to provide for the copyright of derivative works, including the detailed provisions on the limit of that copyright, if it intended only to accord protection to the improvements to an original work of authorship. In my opinion, 7 was intended to do something more: to give the original author the power *245 to sell the right to make a derivative work that upon creation and copyright would be completely independent of the original work. II The statutory background supports the conclusion that Congress intended the original author to be able to sell the right to make a derivative work that could be distributed for the full term of the derivative work's copyright protection. At the time of the enactment of 7, copyright in the right to dramatize a nondramatic work was a relatively recent innovation with equivocal support. Until 1870, an author had only the right to prevent the copying or vending of his work in the identical medium.[8] The Act of 1870, which gave the author the "sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending," made a limited start toward further protection, providing that "authors may reserve the right to dramatize or to translate their own works." Ch. 230, 86, The identical language was carried over when the statute was revised in 1873. Rev. Stat. 4952. The Act of 1891 was a landmark. It gave the same rights to the "author" as had the previous statutes, but provided further that "authors or their assigns shall have exclusive right to dramatize and translate any of their works for which copyright shall have been obtained under the laws of the United States." Ch. 565, 4952, The case law was in accord. Although courts were occasionally willing to enjoin abridgments as infringing, in 1853 Justice Grier wrote that a dramatization of the novel "Uncle Tom's Cabin" would not infringe *246 the author's rights in the book, see (No. 13,514) (CC ED Pa. 1853),[9] and it was not until after the passage of the 1909 Act that this Court first held that a copy of a literary work in another form than the original could infringe the author's copyright. See Kalem[10] *247 The drafts of the copyright bill, considered by the Conferences held by the Register of Copyrights and the Librarian of Congress in 1905 and 1906,[11] had three distinctive features with respect to derivative works: They provided a limited period of protection from the creation of derivative works during which a derivative work could only be created with "the consent of the author or his assigns," 2 |
Justice Stevens | 1,990 | 16 | dissenting | Stewart v. Abend | https://www.courtlistener.com/opinion/112420/stewart-v-abend/ | with "the consent of the author or his assigns," 2 Brylawski & Goldman, Part D, p. LXV;[12] they distinguished between the copyright term for original works of authorship and for derivative works, according the latter a shorter period of protection;[13] and, finally, they provided that derivative works produced with the consent of the original author would be considered new works entitled to copyright. Together these provisions reveal a more complicated set of theoretical premises than is commonly acknowledged. Although originality of authorship was an essential precondition of copyright, *248 the duration of the copyright term and the extent of copyright protection rested upon the nature of the work as a whole rather than the original expression contributed by the copyright author. Moreover, the consent of the underlying author to the production of a derivative work was to be encouraged and, once given, entitled the derivative work to independence from the work upon which it was based. The first two provisions were not included in the Copyright Act, which gave authors the right, during the full term of copyright, to create or consent to the creation of derivative works which would then enjoy their own copyright protection. But the third provision which set the conditions upon which an original author would consent and the second author would create a derivative work entitled to protection under the Copyright Act carried forward the view that the derivative copyright extended beyond the original contribution of the derivative author. Throughout the debates on the provision, the drafters of the Copyright Act evinced their understanding that the derivative copyright itself encompassed the whole derivative work. The first draft of 7, considered by the second Conference in 1905, would have provided copyright as a new work for a derivative work "produced with the consent and authorization of the author of the original," without any restrictions on the effect of that copyright on the copyright in the original work. 2 Brylawski & Goldman. Part D, p. XXXII. By the time of the third Conference in 1906, the Register of Copyrights expressed his concern that that provision would be read too broadly, adding the proviso: "That the copyright thus secured shall not be construed to grant any exclusive right to such use of the original works, except as that may be obtained by agreement with the author or proprietor thereof." 3 Part E, p. LI. The implication was that, in the absence of an agreement, the author of the derivative work would have, as a matter of copyright law, a nonexclusive right "to such use of the original works." |
Justice Stevens | 1,990 | 16 | dissenting | Stewart v. Abend | https://www.courtlistener.com/opinion/112420/stewart-v-abend/ | a nonexclusive right "to such use of the original works." *249 The final draft presented to Congress at the end of 1906 addressed a parallel problem that the license to use the underlying material might also detract from the rights of the underlying copyright if the derivative author did not adequately protect the material on which the copyright was subsisting. To allay this concern, the Register added the language "no such copyright shall affect the force or validity of any subsisting copyright upon the matter employed or any part thereof." 1 Part B, p. 15. Two significant changes were made during the congressional hearings from 1907 through 1909, but with those exceptions the provision survived intact. First, in response to the objection that the language of 6, codified at 17 U.S. C. 7 ( ed.), in conjunction with that of 3, codified at 17 U.S. C. 3 ( ed.), would be read to give the derivative work proprietor "a new term of copyright running on this old matter of his" and, in that way, provide for perpetual copyright, 4 Brylawski & Goldman, Part J, pp. 132-138 (statement of Mr. Porterfeld); see also Congress limited the enforceability of the derivative copyright, adding language that publication of the dramatization would not "secure or extend copyright in such original works." 6, Second, in response to the objection that the Register's draft provision did not address with sufficient precision the possibility that failure of the derivative copyright would allow the underlying work to enter the public domain, Congress substituted the work "publication" for "copyright" in the "force or validity" clause. Congress thus made clear that it was the publication of the derivative work, not the copyright itself, that was not to "affect the force or validity of any subsisting copyright." Ibid.[14] * The legislative history confirms that the copyright in derivative works not only gives the second creative product the monopoly privileges of excluding others from the unconsented use of the new work, but also allows the creator to publish his or her own work product. The authority to produce the derivative work, which includes creative contributions by both the original author and the second artist, is dependent upon the consent of the proprietor of the underlying copyright. But once that consent has been obtained, and a derivative work has been created and copyrighted in accord with that consent, "a right of property spr[ings] into existence," that Congress intended to protect. Publication of the derivative work does not "affect the force or validity" of the underlying copyright except to the extent that it gives |
Justice Stevens | 1,990 | 16 | dissenting | Stewart v. Abend | https://www.courtlistener.com/opinion/112420/stewart-v-abend/ | the underlying copyright except to the extent that it gives effect to the consent of the original proprietor. That owner and in this case, the owner of a renewal of the original copyright retains full dominion and control over all other means of exploiting that work of art, including the right to authorize other derivative works. The original copyright may have relatively little value because the creative contribution of the second artist is far more significant than the original contribution, *251 but that just means that the rewards for creativity are being fairly allocated between the two artists whose combined efforts produced the derivative work. III Nothing in 24 requires a different result. The portion of that section dealing with copyright renewals provides: "[T]he author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright." 17 U.S. C. 24 ( ed.). That statute limits the renewal rights in a copyright to the specified statutory beneficiaries, "completely dissevering the title, breaking up the continuance and vesting an absolutely new title eo nomine in the persons designated." White-Smith Music Publishing Since copyright is a creature of statute and since the statute gives the author only a contingent estate, with "the widow, widower, or children" as remaindermen, the author "ha[s] only an expectancy to assign" for the second term. Miller Music The original author may not sell more than he owns. He may not convey the second-term rights to print or copy the underlying work or to create additional derivative works from it. See ; G. Ricordi & (CA2), cert, denied,[15] Nor may the derivative author dedicate *252 the underlying art to the public by failing to renew his copyright. See Filmvideo Releasing ;[16] Even if the alienation of second-term rights would be in the author's best interest, providing funds when he is most in need, the restriction on sale of the corpus is a necessary consequence of Congress' decision to provide two terms of copyright. Neither 24 nor any other provision of the Act, however, expressly or by implication, prevents the author from exercising any of his other statutory rights during the original term of the copyright. The author of the underlying work may contract to |
Justice Stevens | 1,990 | 16 | dissenting | Stewart v. Abend | https://www.courtlistener.com/opinion/112420/stewart-v-abend/ | copyright. The author of the underlying work may contract to sell his work at a bargain price during the original term of the copyright. That agreement would be enforceable even if performance of the contract diminished the value of the copyright to the owner of the renewal interest. Similarly, the original author may create and copyright his own derivative work; the right of an assignee or legatee to receive that work by assignment or bequest should not be limited by the interests of the owners of the renewal copyright in the underlying work. Section 1 of the Act, 17 U.S. C. 1 ( ed.), gives the author the right to dramatize his own work without any apparent restriction. Such use might appear, at the time or in retrospect, to be improvident and a waste of the asset. Whatever harm the proprietor of the renewal copyright might suffer, however, is a consequence of the enjoyment by the author of the rights granted him by Congress. The result should be no different when the author exercises his right to consent to creation of a derivative work by another. By designating derivative works as "new works" *253 that are subject to copyright and accorded the two terms applicable to original works, Congress evinced its intention that the derivative copyright not lapse upon termination of the original author's interest in the underlying copyright. The continued publication of the derivative work, after the expiration of the original term of the prior work, does not infringe any of the statutory successor's rights in the renewal copyright of the original work. The author's right to sell his derivative rights is exercised when consent is conveyed and completed when the derivative work is copyrighted. At that point, prior to the end of the first term, the right to prevent publication of the derivative work is no longer one of the bundle of rights attaching to the copyright. The further agreement to permit use of the underlying material during the renewal term does not violate 24 because at the moment consent is given and the derivative work is created and copyrighted, a new right of property comes into existence independent of the original author's copyright estate. As an ex post matter, it might appear that the original author could have negotiated a better contract for his consent to creation of a derivative work, but Congress in 24 was not concerned with giving an author a second chance to renegotiate his consent to the production of a derivative work.[17] It provided explicitly that, once consent was given, the derivative work |
Justice Stevens | 1,990 | 16 | dissenting | Stewart v. Abend | https://www.courtlistener.com/opinion/112420/stewart-v-abend/ | provided explicitly that, once consent was given, the derivative work was entitled as a matter of copyright law to treatment as a "new wor[k]." 7. Ironically, by restricting the *254 author's ability to consent to creation of a derivative work with independent existence, the Court may make it practically impossible for the original author to sell his derivative rights late in the original term and to reap the financial and artistic advantage that comes with the creation of a derivative work.[18] Unless 24 is to overwhelm 7, the consent of the original author must be given effect whether or not it intrudes into the renewal term of the original copyright. A putative author may sell his work to a motion picture company who will have greater use for it, by becoming an employee and making the work "for hire." The 1909 Act gave the employer the right to renew the copyright in such circumstances.[19] In addition, when an author intends that his work be used as part of a joint work, the copyright law gives the joint author common authority to exploit the underlying work and renew the copyright.[20] The Court today *255 holds, however, that the independent entrepreneur, who does not go into the company's employ and who intends to make independent use of his work, does not also have the same right to sell his consent to produce a derivative work that can be distributed and publicly performed during the full term of its copyright protection. That result is perverse and cannot have been what Congress intended.[] The critical flaw in the Court's analysis is its implicit endorsement of the Court of Appeals reasoning that: " `If Miller Music makes assignment of the full renewal rights in the underlying copyright unenforceable when the author dies before effecting renewal of the copyright, then a fortiori, an assignment of part of the rights in the underlying work, the right to produce a movie version, must also be unenforceable if the author dies before effecting renewal of the underlying copyright.' " Ante, at 5-6. That reasoning would be valid if the sole basis for the protection of the derivative work were the contractual assignment of copyright, but Woolrich did not just assign the rights to produce a movie version the way an author would assign the publisher rights to copy and vend his work. Rather, he expressed his consent to production of a derivative work under 7. The possession of a copyright on a properly created derivative work gives the proprietor rights superior to those of *256 a mere licensee. As |
Justice Brennan | 1,983 | 13 | dissenting | Maggio v. Williams | https://www.courtlistener.com/opinion/111046/maggio-v-williams/ | Before the Court is an application, filed by Ross Maggio, Warden of the Louisiana State Penitentiary, to vacate a stay of execution granted by the United States Court of Appeals for the Fifth Circuit.[1] Because the condemned, Robert Wayne Williams, has raised a substantial constitutional claim relating to the proportionality review undertaken by the Supreme Court of Louisiana when it affirmed his death sentence, I would deny the application. Moreover, because the Court's approach to this case displays an unseemly and unjustified eagerness to allow the State to proceed with Williams' execution, I dissent. I Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, I would deny the Warden's application to vacate the stay of execution granted by the Court of Appeals. II Even if I accepted the prevailing view that the death penalty may constitutionally be imposed under certain circumstances, I would deny the application in this case because *57 Williams has raised a substantial constitutional claim concerning the disproportionate nature of his sentence. This afternoon, the Court will hear oral argument in Pulley v. Harris, No. 82-1095, to consider whether the Constitution requires, prior to the execution of any death sentence, that a court of statewide jurisdiction determine whether a death sentence is proportional to the crime committed in light of the sentences received by similarly charged and convicted defendants in the State. Specifically, the questions presented to the Court for review are (1) whether the Constitution requires any proportionality review by a court of statewide jurisdiction prior to the execution of a state death sentence and (2) if so, whether the Constitution requires that such review assume any particular focus, scope, or procedural structure. Williams maintains that the order of the Court of Appeals staying his execution should be allowed to stand pending this Court's plenary consideration and disposition of the issues raised in Pulley. There is simply no defensible basis for disagreeing with him. His common-sense position rests on several related arguments. Initially, it is beyond dispute that the constitutional status of proportionality review is currently unclear. That is undoubtedly why the Court granted the petition for a writ of certiorari in Pulley. See It is also why JUSTICE WHITE, just last month, stayed the execution of James David Autry pending our decision in Pulley. See Autry v. Estelle, post, p. 1301 (in chambers). See also infra, at 62. Given this uncertainty, it seems grossly inappropriate to allow an execution to take place at this time if the condemned prisoner raises a |
Justice Brennan | 1,983 | 13 | dissenting | Maggio v. Williams | https://www.courtlistener.com/opinion/111046/maggio-v-williams/ | place at this time if the condemned prisoner raises a nonfrivolous argument relating to the proportionality of his sentence. And in this case, Williams has raised at least two nonfrivolous, and indeed substantial, claims concerning the proportionality of his death sentence. First, Williams contends that the Supreme Court of Louisiana has denied him due process of law by undertaking only a *58 districtwide or parishwide proportionality review in his case. See cert. denied, He properly notes that prior opinions of this Court have suggested that statewide proportionality review is required before any constitutional death sentence may be carried out. See, e. g., 204-206 (approving death penalty in where appellate court examines whether the same sentence has been imposed " `in similar cases throughout the state' "); (noting with approval that the State Supreme Court vacates the death sentence "whenever juries across the State impose it only rarely for the type of crime in question").[2] Given that the necessary scope of any required proportionality review is among the questions presented in Pulley, any uncertainty concerning the continuing validity of these prior statements will presumably be answered by our decision in that case. The execution of a condemned prisoner raising a nonfrivolous claim on this particular issue prior to the release of that decision belies our boast to be a civilized society.[3] *59 Second, even if a proportionality review limited to a single judicial district might eventually be held to pass constitutional muster, Williams notes that recent decisions of the Supreme Court of Louisiana have randomly applied proportionality reviews that are statewide in scope. See, e. g., ; The state court's failure to adopt any consistent approach in its review of capital cases, combined with its failure to offer any reasons for these different approaches, suggests that his death sentence has been imposed in a capricious and arbitrary manner. Again, at least until this Court clarifies the need for, and potential scope of, proportionality review in Pulley, I find it startling that the Court should allow this execution to take place. A simple examination of the proportionality review that was undertaken in this case demonstrates its inadequacy.[4]*60 The review was undertaken in April when Williams' case was on direct appeal before the Supreme Court of Louisiana. The court compared the circumstances of Williams' crime with the crimes of other capital defendants in the Nineteenth Judicial District for the Parish of East Baton Rouge, La., the district or parish in which Williams was tried and convicted. At that time, only 28 murder prosecutions had taken place in the district since January 1, 1976, |
Justice Brennan | 1,983 | 13 | dissenting | Maggio v. Williams | https://www.courtlistener.com/opinion/111046/maggio-v-williams/ | had taken place in the district since January 1, 1976, the relevant date under state rules on which to begin the comparison. Of those 28 prosecutions, only 11 resulted in convictions for first-degree murder. And of those 11, only 3 defendants were sentenced to death. Like Williams, all three were the actual killers in a murder taking place during the perpetration of an armed robbery. And the court conclusorily noted that the crimes committed by the eight defendants receiving life imprisonment had no aggravating circumstances or some mitigating circumstances and therefore were distinguishable from Williams' case. But, as the state court also admitted, Williams had no significant prior criminal record and may have been affected by a drug-induced mental disturbance. Therefore, the proportionality review undertaken in this case, limited as it was to a few cases arising in a single judicial district, could not ensure that similarly situated defendants throughout the State of Louisiana also had received a death sentence. Louisiana has a total of 40 judicial districts in which a death sentence may be imposed. They apparently range from districts that cover primarily rural areas to a district that covers the urban center of New Orleans. Yet by allowing the Supreme Court of Louisiana to limit its proportionality review to a particular district, the Court today sanctions a practice *61 that undoubtedly results in different sentences for similarly situated defendants, dependent solely upon the judicial district in which the defendant was tried. This is the essence of arbitrary and capricious imposition of the death penalty that the Court has consistently denounced. "A constant theme of our cases has been emphasis on procedural protections that are intended to ensure that the death penalty will be imposed in a consistent, rational manner." Central to these protections is a system that includes meaningful appellate review for every death sentence. See, e. g., Zant v. and 876; 204-206. Given the existence of only one statewide death penalty statute approved by the Louisiana State Legislature, requiring that all courts and juries across the State apply uniform legal standards before imposing a death sentence, there can be no doubt of the substantiality of the constitutional question whether the State Supreme Court may apply different standards of appellate review depending on the judicial district involved. In sum, Williams has raised a substantial claim challenging the constitutionality of his death sentence which is encompassed within the questions presented to the Court in Pulley v. Harris. Given the severity and irrevocability of the death sentence, it is shocking that the Court does not follow its normal procedures in |
Justice Brennan | 1,983 | 13 | dissenting | Maggio v. Williams | https://www.courtlistener.com/opinion/111046/maggio-v-williams/ | that the Court does not follow its normal procedures in this case. Under these procedures, the stay of execution should be left in force pending the timely filing of a petition for certiorari, and the final disposition in Pulley. III The Court offers no defensible rationale for departing from this sensible practice.[5] Its action in this case is especially *62 troubling because (1) it is based on the minimal filings associated with a stay application, (2) it effectively pre-empts one of the questions presented for review in Pulley, and (3) it apparently is an irrevocable decision that will result in Williams' execution. Less than five weeks ago, on October 5, JUSTICE WHITE stayed the execution of a condemned prisoner who, mere hours before his execution, claimed that he had been denied due process because the Texas Court of Criminal Appeals had failed to subject his death sentence to any proportionality review. See Autry v. Estelle, post, p. 1301 (in chambers). JUSTICE WHITE concluded that Autry's execution should be stayed pending disposition of Pulley because the Court's decision in Pulley will likely have a bearing on the validity of that prisoner's last-minute claim. Since then, the full Court has refused to vacate that stay. Post, p. 925. Incredibly, the sensible practice followed in Autry has been rejected in this case because the Supreme Court of Louisiana utilized a limited proportionality review whereas in Autry the state court did not apply any such review. For present purposes, however, this is a distinction which should make no difference. Given the questions presented in Pulley, see it is impossible to be certain that the proportionality review accorded Williams satisfies the constitutional requirements that the Pulley decision is intended to clarify. It is no answer that the Court has consistently denied challenges to Louisiana's districtwide proportionality review, including Williams' own challenge to that review in his petition for certiorari on his first federal habeas. For each of these denials, as is true of all denials of certiorari, is not a decision on the merits of the issues raised in the respective petitions. More *63 important, in none of those cases did the Court's denial of certiorari involve an imminent date of execution. In this case, by contrast, the Court's action will allow the execution of Williams to proceed to its fatal conclusion even though uncertainty overhangs the constitutional legitimacy of the process by which his death sentence was affirmed.[6] Nor may the Court take comfort in the fact that, in the course of denying Williams' request for habeas relief, the Federal District Court conducted an |
Justice Brennan | 1,983 | 13 | dissenting | Maggio v. Williams | https://www.courtlistener.com/opinion/111046/maggio-v-williams/ | request for habeas relief, the Federal District Court conducted an abbreviated statewide proportionality review based on the published opinions of the Supreme Court of Louisiana. Although the District Court concluded that Williams' sentence was not disproportionate, that finding is largely irrelevant to the issue raised by Williams. The District Court's judgment regarding the proportionality of the death sentence is insufficient because it cannot substitute for the State Supreme Court, which is presumably more familiar than the federal court with the important nuances of the State's death penalty jurisprudence. Moreover, because Williams' requested remedy on habeas was a remand to the state court for a statewide proportionality review, the District Court did not have the benefit of any arguments from counsel for Williams on how that statewide review should be conducted. That the District Court conducted a hasty proportionality review based solely on published opinions from the State Supreme Court should not be deemed constitutionally sufficient. Finally, the Court gives insufficient weight to the potential prejudicial effect of the limited, districtwide review conducted in Williams' case. In fact, Williams' habeas petition *64 has identified at least two specific ways in which he has been prejudiced by a districtwide, rather than a statewide, proportionality review. First, he claims that there has never been a statewide pattern of death sentences for persons committing murder during armed robbery, especially when there was a close question whether the murder was committed with specific intent or was simply accidental. Second, Williams claims that his case presented mitigating circumstances comparable to various cases in other parts of the State which resulted in sentences of life imprisonment. These are exactly the types of disparities which a proportionality review of proper scope would discover. The Court, therefore, plainly offers no reason for treating this case differently from any other stay application raising questions which are encompassed within a substantially similar case then pending on the Court's plenary docket. Rather, "an appeal that raises a substantial constitutional question is to be singled out for summary treatment solely because the State has announced its intention to execute before the ordinary appellate procedure has run its course." (emphasis in original).[7] *65 IV By vacating the stay granted by the Court of Appeals and allowing the execution of Williams to proceed, the Court is implicitly choosing to adopt one of two wholly unacceptable alternatives. Either the Court, prior to its full consideration of Pulley, is pre-empting any conclusion that the Constitution mandates statewide proportionality review, or the Court is announcing that someone may be executed using appellate procedures that might imminently be declared |
Justice Thomas | 2,015 | 1 | dissenting | Alabama Dept. of Revenue v. CSX Transp., Inc. | https://www.courtlistener.com/opinion/2783887/alabama-dept-of-revenue-v-csx-transp-inc/ | n order to violate 49 U.S. C. “a tax ex emption scheme must target or single out railroads by comparison to general commercial and industrial taxpay ers.” CSX Transp., Because CSX cannot prove facts that would satisfy that standard, would reverse the judgment below and remand for the entry of judgment in favor of the Alabama Depart ment of Revenue. A Last time this case was before the Court, explained in detail my reasons for interpreting “another tax that dis criminates against a rail carrier” in to refer to a tax “that targets or singles out railroads as compared to other commercial and industrial taxpayers.” briefly summarize that reasoning here. Because the meaning of “discriminates” is ambiguous at first glance, look to the term’s context to resolve this uncertainty. –299. Both the structure and background of the statute indicate that subsection (b)(4) prohibits only taxes that single out railroads as compared 2 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. THOMAS, J., dissenting to other commercial and industrial taxpayers. Subsection (b)(4) is a residual clause, the meaning of which is best understood by reference to the provisions that precede it. Subsection (b) begins by announcing that “[t]he following acts discriminate against interstate commerce” and are prohibited. Subsections (b)(1) through (3) then list three tax-related actions that single out rail carriers by treating rail property differently from all other commercial and industrial property. Subsections (b)(1) and (b)(3) explicitly identify “commercial and industrial property” as the comparison class, and subsection (b)(2) incorporates that comparison class by reference. Subsection (b)(4) refers back to these provisions when it forbids “[i]mpos[ing] another tax that discriminates against a rail carrier.” (emphasis added); ). The statutory structure therefore supports the conclusion that a tax “discriminates against a rail carrier” within the meaning of subsection (b)(4) if it singles out railroads for unfavorable treatment as compared to the general class of commercial and industrial taxpayers. –301. The statutory background supports the same conclusion. When Congress enacted the 4–R Act, it was apparent that railroads were “easy prey for State and local tax assessors in that they are nonvoting, often nonresident, targets for local taxation, who cannot easily remove themselves from the locality.” (internal quotation marks omit ted). Subsections (b)(1) through (3) thus “establish a political check” by preventing States from imposing exces sive property taxes on railroads “without imposing the same taxes more generally on voting, resident local busi nesses.” Subsection (b)(4) is best understood as addressing the same problem in the same way. at 301–302. Cite as: 575 U. S. (2015) 3 THOMAS, J., dissenting B Alabama’s |
Justice Thomas | 2,015 | 1 | dissenting | Alabama Dept. of Revenue v. CSX Transp., Inc. | https://www.courtlistener.com/opinion/2783887/alabama-dept-of-revenue-v-csx-transp-inc/ | 575 U. S. (2015) 3 THOMAS, J., dissenting B Alabama’s tax scheme cannot be said to “discriminat[e] against a rail carrier.” To begin, the scheme does not single out rail carriers. Although one would not know it from the majority opinion, the tax is not directed at rail carriers, their property, their activity, or goods uniquely consumed by them. t is instead a generally applicable sales tax. t applies (with other exemptions not at issue here) to all goods purchased, used, or stored in the State of Alabama. –23–2(1), 40–23–61(a) The only relevant good exempted from the tax is diesel on which the motor fuel tax has been paid, 325(b), and no provision of law prevents rail carriers from buying such diesel. See Brief for Respondent 46, n. 13 (acknowledging that CSX pays the motor fuel tax on the diesel fuel it uses in trucks and other on-road vehic- les). Water carriers, it is true, enjoy a special carve-out from this sales tax, (Cum. Supp. 2014), but that exemption singles out water carriers, not rail carriers. Even if this constellation of exemptions to Alabama’s sales tax could be said to single out rail carriers from the general class of their interstate competitors, the tax surely does not single out rail carriers as compared to commercial and industrial taxpayers. Those taxpayers are subject to exactly the same generally applicable sales and use tax regime as are rail carriers. A The Court started off on the wrong track in CSX when it relied on a generic dictionary definition of “discrimi nates” in the face of a statutory context suggesting a more specific definition. See Today’s decision continues that error. The Court uncritically accepts the conclusion that the 4 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. THOMAS, J., dissenting “discriminat[ion]” addressed by the statute encompasses any distinction between rail carriers and their comparison class, ante, at 4, as opposed to mere “singling out” or some thing in between, even though the word “discriminates” is ambiguous in that way. CSX The Court’s usual practice has not been to treat the meaning of “discriminates” so casually. See generally Guardians Assn. v. Civil Serv. Comm’n of New York City, 463 U.S. 582, 590–593 (1983) (opinion of White, J.) (discussing the Court’s shifting definition of the ambiguous term “discrimination”). Today’s decision compounds this error by holding that a rail carrier may make out a claim of discrimination using any comparison class so long as that class consists of “individuals similarly situated to the claimant” rail carrier. Ante, The majority purports to derive this limita- tion from |
Justice Thomas | 2,015 | 1 | dissenting | Alabama Dept. of Revenue v. CSX Transp., Inc. | https://www.courtlistener.com/opinion/2783887/alabama-dept-of-revenue-v-csx-transp-inc/ | Ante, The majority purports to derive this limita- tion from the dictionary, but then finds itself unable to proceed: After all, Black’s Law Dictionary contains no entry defining what it means to be “similarly situated” for the purpose of subsection (b)(4). Forced finally to turn to the statutory context, the majority rejects the statutorily defined competitor class of commercial and industrial taxpayers in favor of a shifting comparison class of its own creation. B The majority disregards the commercial and industrial property comparison class identified in subsections (b)(1) through (3) because subsection (b)(4) does not explicitly include language from those provisions. See ante, at 4–5, 6–7. t asserts that defining the comparison class for the purpose of subsection (b)(4) by reference to the comparison class identified in subsections (b)(1) through (b)(3) “would require us to dragoon the modifier ‘commercial and indus trial’—but not the noun ‘property’—from the first three provisions, append ‘general’ in front of it and ‘taxpayers’ Cite as: 575 U. S. (2015) 5 THOMAS, J., dissenting after, both words foreign to the preceding subsections.” Ante, at 7. The majority’s accusation of grammatical conscription misses the point. Subsection (b)(4) is a residual clause, explicitly marked as such by the use of the word “another.” See Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, Like other residual clauses, it need not use the same language as the clauses it follows to derive meaning from those clauses. See, e.g., (slip op., at 13); v. United States, 550 U.S. 192, 217–218 (2007) (SCALA, J., dissenting). Where, as here, a residual clause includes an ambiguous word like “discriminates,” we must look to the clauses that precede it to guide our understanding of its scope. n some sense, my task in giving meaning to the statu tory term “discriminates” is no different from the major ity’s: to determine what type of differential treatment the statute forbids. The first three clauses provide important clues that the statute forbids singling out rail carriers from other commercial and industrial taxpayers because commercial and industrial taxpayers are the ones who pay taxes on “commercial and industrial property.” The major ity pursues the same logical train of thought when it opines that “the category of ‘similarly situated’ (b)(4) comparison classes must include commercial and indus- trial taxpayers” because “[t]here is no conceivable reason why the statute would forbid property taxes higher than what that class enjoys (or suffers), but permit other taxes that discriminate in favor of that class vis-à-vis railroads.” Ante, at 6. Where we part ways is in the inferences we draw |
Justice Thomas | 2,015 | 1 | dissenting | Alabama Dept. of Revenue v. CSX Transp., Inc. | https://www.courtlistener.com/opinion/2783887/alabama-dept-of-revenue-v-csx-transp-inc/ | Where we part ways is in the inferences we draw from the statutory context. Treating subsection (b)(4) as a residual clause does not require the grammatical distortions that the majority alleges. The word “discriminates” in subsection (b)(4) is not a referential phrase whose antecedent is uncertain. f 6 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. THOMAS, J., dissenting it were, then it would be necessary to select an antecedent that would fit grammatically in place of “discriminates.” nstead, look to (b)(1) to (3) merely to clarify an ambigu- ity in the meaning of “discriminates,” a task that does not require me to “dragoon” the language of the prior clauses into subsection (b)(4). Nor does my approach rely on the first three clauses of to supply a general limitation on the independ ent prohibition that appears in subsection (b)(4). See United (SCALA, J., concurring in part and dissenting in part) (criticizing this type of argument). That is what Alabama sought to do in CSX when it argued that subsection (b)(4) is limited to property taxes (or their equivalent “in lieu” taxes). Ante, at 7; CSX (majority opin ion). joined the majority in rejecting that argument. 97 (dissenting opinion). But whereas there is no un certainty about the meaning of “taxes” in subsection (b)(4) that would justify importing the property tax limitation from the three preceding subsections, 84–285 (majority opinion), there is a good deal of uncertainty about the meaning of “discriminates.” This uncertainty justifies looking to the three previous clauses to under stand the type of differential treatment is meant to prohibit. –299 (dissenting opinion); see Harrison v. PPG ndustries, nc., 588– 589 (1980). And those three previous clauses easily supply the answer to the comparison class question. C Unwilling to so limit the range of available comparison classes, the majority takes an approach to determining which individuals are “similarly situated” for purposes of the statute that “is almost entirely ad hoc,” 15 (SCALA, J., dissenting). t asserts that the compar ison class will “depen[d] on the theory of discrimination Cite as: 575 U. S. (2015) 7 THOMAS, J., dissenting alleged in the claim.” Ante, at 4–5. Sometimes the com parison class will be “all other commercial and industrial taxpayers,” sometimes it will be “the railroad’s competi tors” in a particular jurisdiction, and sometimes it may be some other comparison class entirely. The sole evidence on which the majority relies to con clude that competitors are similarly situated, and there fore qualify as a comparison class, is the professed pur poses of the Act: “to ‘restore the financial stability of |
Justice Thomas | 2,015 | 1 | dissenting | Alabama Dept. of Revenue v. CSX Transp., Inc. | https://www.courtlistener.com/opinion/2783887/alabama-dept-of-revenue-v-csx-transp-inc/ | poses of the Act: “to ‘restore the financial stability of the railway system of the United States,’ while ‘foster[ing] competition among all carriers by railroad and other modes of transportation.’ ” Ante, at 6 (quoting (b)(2)). nterpreting statutory text solely in light of purpose, absent any reliance on text or structure, is dangerous business because it places courts in peril of substituting their policy judgment for that of Congress. n considering statutory purpose, therefore, we should be careful that any inferences of purpose are tied to text rather than instinct. The majority throws such caution to the wind. ts two- sentence argument is a perfect illustration of the dangers of a purely purpose-based approach. The majority cherry- picks two of a number of stated goals of a complex piece of legislation over 100 pages long and assumes that this specific provision was assigned to those specific purposes. And then it interprets the statute to perform in the man ner the majority believes is best designed to “restore financial stability” and “foster competition.” Ante, at 6 (alteration omitted). have no reason to doubt the economic soundness of the majority’s conclusion that discrimination between rail carriers and their competitors threatens their financial stability and impedes competition, but lack the major- ity’s certitude that is designed to further those goals by combatting that evil, at least in the way the ma jority asserts. nstead, the first three subsections provide 8 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. THOMAS, J., dissenting strong textual evidence that was designed to stabilize rail carriers by protecting them from discrimina tion against interstate commerce. And they provide evi dence of Congress’ chosen mechanism for accomplishing that goal: tying the fate of interstate rail carriers to the broader class of commercial and industrial taxpayers. See The introductory clause of provides further evidence that the evil at which subsection (b)(4) is tar- geted is not discrimination between rail carriers and their competitors, but “acts [that] unreasonably burden and discriminate against interstate commerce.” The majority’s response to this evidence—that the Court rejected a simi lar argument when it refused to limit subsection (b)(4) to property taxes or their kin, ante, at 7—is a non sequitur. The introductory clause contains no reference to property taxes that “binds its four subsections together” as prohibi tions on discriminatory property taxes. (internal quotation marks omitted). But it does have a reference to discrimination against interstate commerce, which does tie the sections together to serve that common statutory purpose. This, in turn, weighs against the majority’s inferences about how relates to the stated pur poses |
Justice Thomas | 2,015 | 1 | dissenting | Alabama Dept. of Revenue v. CSX Transp., Inc. | https://www.courtlistener.com/opinion/2783887/alabama-dept-of-revenue-v-csx-transp-inc/ | majority’s inferences about how relates to the stated pur poses of the 4–R Act. The majority’s conclusion that competitors are a permis sible comparison class completely ignores these contextual clues, permitting subsection (b)(4) to serve different statu tory goals by a different mechanism than its three prede cessor clauses. And it leads to odd inconsistencies. f we were to understand the provision as prohibiting only discrimination between rail carriers and their competitors, then it might well further the goal of promoting competi tion between interstate carriers. But the majority instead selects a shifting-comparison-class approach, requiring rail carriers to be treated at least as well as their competi tors and any other similarly situated taxpayers. See ante, Cite as: 575 U. S. (2015) 9 THOMAS, J., dissenting at 4–5. This most-favored taxpayer status is a position the competitors do not enjoy, so the majority’s position could result in tax schemes that impede competition between interstate carriers rather than promote it. dentifying “similarly situated” taxpayers by the undis ciplined approach the majority endorses could well lead to other unanticipated consequences. This is why the policy judgments needed to link statutory mechanisms to statu tory purposes are best left to Congress. f this Court is going to adopt a shifting-comparison-class approach to then it should at least demand a stronger textual link between the comparison class a claimant seeks to import into subsection (b)(4) and any purpose that the claimant argues it serves. Because the majority adopts an interpretation of that is not grounded in the text, it should come as no surprise that this interpretation is difficult to apply, as this case demonstrates. t is easy to see how, accepting water carriers as a comparison class, the scheme treats water carriers and rail carriers differently when it grants water carriers, but not rail carriers, an exemption from the sales tax. Ala. Code dentifying the difference in treatment between rail and motor car- riers, by contrast, requires a good deal more imagination. The majority’s approach exhibits that imagination. t glosses over the general applicability of the provisions that apply to rail and motor carriers, stating that “[t]he State applies the [sales or use] tax, at the usual 4% rate, to railroads’ purchase or use of diesel fuel for their rail oper ations,” but “exempts from the tax purchases and uses of diesel fuel made by [motor carriers].” Ante, at 1. A quick glimpse at the code reveals that this is not quite the case. The applicability of the sales and use taxes does not de pend on the identity of the purchaser, but |
Justice Thomas | 2,015 | 1 | dissenting | Alabama Dept. of Revenue v. CSX Transp., Inc. | https://www.courtlistener.com/opinion/2783887/alabama-dept-of-revenue-v-csx-transp-inc/ | not de pend on the identity of the purchaser, but on whether the 10 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. THOMAS, J., dissenting purchaser pays another excise tax, 325(b), which in turn depends on the nature of the product purchased and its use, §328, 40–17–329, which in turn merely correlates to the carriers’ operations. As far as can tell, the rail carriers use dyed diesel that is exempt from the motor fuel tax—and therefore subject to the sales and use taxes—as a matter of choice rather than necessity. Dyed diesel has no special properties that make it more suitable for use in a train engine; the dye merely identifies it as exempt from the federal excise tax, 322(21). And no law prohibits rail carriers from using undyed diesel. To the contrary, it is the motor carriers who are prohibited from using the dyed variant for on-road use. Assuming arguendo that state law provides that only dyed diesel may be used in rail operations, it becomes a little easier to make an argument that the State treats rail carriers differently in this case. But the majority still faces a line-drawing problem. s it necessary that the good subject to the challenged tax be the same as the good on which the competitor enjoys an exemption? Could a rail carrier that relies on natural gas rather than diesel for motive power make the same claim of discrimination if natural gas is not entitled to the same sales-tax exemption as diesel? s it necessary that the rail carrier and its competitor rely on the good for the same purpose? Could a rail carrier that uses diesel for motive power challenge a hypothetical provision that exempted from the sales and use taxes diesel that motor carriers use for refrigeration in refrigerated trailers? The majority never answers these questions. “Sufficient unto the day is the evil thereof,” it intones. Ante, at 6. “That gets this case off our docket, sure enough. But it utterly fails to do what this Court is supposed to do: pro vide guidance concrete enough to ensure that the” statute is applied consistently. 550 U.S., 15 (SCALA, Cite as: 575 U. S. (2015) 11 THOMAS, J., dissenting J., dissenting). We have demanded clarity from Congress when it comes to statutes that “se[t] limits upon the taxa tion authority of state government, an authority we have recognized as central to state sovereignty.” Department of Revenue of Ore. v. ACF ndustries, nc., 344–345 (1994). We should demand the same of ourselves when we interpret those statutes. Yet after today’s deci sion, |
Justice Gorsuch | 2,019 | 7 | majority | Virginia Uranium, Inc. v. Warren | https://www.courtlistener.com/opinion/4630085/virginia-uranium-inc-v-warren/ | Virginia Uranium insists that the federal Atomic Energy Act preempts a state law banning uranium mining, but we do not see it. True, the AEA gives the Nuclear Regulatory Commission significant authority over the milling, trans- fer, use, and disposal of uranium, as well as the construc- tion and operation of nuclear power plants. But Congress conspicuously chose to leave untouched the States’ historic authority over the regulation of mining activities on pri- vate lands within their borders. Nor do we see anything to suggest that the enforcement of Virginia’s law would frustrate the AEA’s purposes and objectives. And we are hardly free to extend a federal statute to a sphere Con- gress was well aware of but chose to leave alone. In this, as in any field of statutory interpretation, it is our duty to respect not only what Congress wrote but, as importantly, what it didn’t write. 2 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. I Virginia Uranium thought its plan was pretty straight- forward. First, the company wanted to use conventional mining techniques to extract raw uranium ore from a site near Coles Hill, Virginia. Next, it intended to mill that ore into a usable form. Typically performed at the mine site, milling involves grinding the ore into sand-sized grains and then exposing it to a chemical solution that leaches out pure uranium. Once dried, the resulting mixture forms a solid “yellowcake,” which the company planned to sell to enrichment facilities that produce fuel for nuclear reactors. Finally, because the leaching process does not remove all of the uranium from the ore, the company expected to store the leftover “tailings” near the mine to reduce the chances of contaminating the air or water. But putting the plan into action didn’t prove so simple. Pursuant to the AEA, ch. 724, 42 U.S. C. et seq., the NRC regulates milling and tailing stor- age activities nationwide, and it has issued an array of rules on these subjects. See, e.g., et seq. (2018). None of those, though, proved the real problem for Virginia Uranium. The company hit a roadblock even before it could get to the point where the NRC’s rules kick in: State law flatly prohibits uranium mining in Virginia. See –161.292:30, 45.1–283 (2013); To overcome that obstacle, Virginia Uranium filed this lawsuit. The company alleged that, under the Constitu- tion’s Supremacy Clause, the AEA preempts state uranium mining laws like Virginia’s and ensconces the NRC as the lone regulator in the field. And because the NRC’s regula- tions say nothing about uranium mining, the company continued, |
Justice Gorsuch | 2,019 | 7 | majority | Virginia Uranium, Inc. v. Warren | https://www.courtlistener.com/opinion/4630085/virginia-uranium-inc-v-warren/ | regula- tions say nothing about uranium mining, the company continued, it remains free to mine as it will in Virginia or elsewhere. Both the district court and a divided panel of the Fourth Circuit rejected the company’s argument. The courts Cite as: 587 U. S. (2019) 3 Opinion of GORSUCH, J. acknowledged that the AEA affords the NRC considerable authority over the nuclear fuel life cycle. But both courts found missing from the AEA any hint that Congress sought to strip States of their traditional power to regulate mining on private lands within their borders. Given the significance of the question presented, we granted review. 584 U. S. (2018). II The Supremacy Clause supplies a rule of priority. It provides that the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof,” are “the supreme Law of the Land any Thing in the Constitu- tion or Laws of any state to the Contrary notwithstand- ing.” Art. VI, cl. 2. This Court has sometimes used differ- ent labels to describe the different ways in which federal statutes may displace state laws—speaking, for example, of express, field, and conflict preemption. But these cate- gories “are not rigidly distinct.” (inter- nal quotation marks omitted). And at least one feature unites them: Invoking some brooding federal interest or appealing to a judicial policy preference should never be enough to win preemption of a state law; a litigant must point specifically to “a constitutional text or a federal statute” that does the displacing or conflicts with state law. Puerto Rico Dept. of Consumer ; see also 3 J. Story, Commentaries on the Constitution of the United States p. 694 (1st ed. 1833) (“the supremacy of the laws is attached to those only, which are made in pursuance of the constitution”). Before us, Virginia Uranium contends that the AEA (and only the AEA) unseats state uranium mining regula- tions and that it does so under the doctrines of both field and conflict preemption. We examine these arguments 4 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. about the AEA’s preemptive effect much as we would any other about statutory meaning, looking to the text and context of the law in question and guided by the traditional tools of statutory interpretation. Here, no more than in any statutory interpretation dispute, is it enough for any party or court to rest on a supposition (or wish) that “it must be in there somewhere.” A We begin with the company’s claim that the text and structure of the AEA reserve the regulation of |
Justice Gorsuch | 2,019 | 7 | majority | Virginia Uranium, Inc. v. Warren | https://www.courtlistener.com/opinion/4630085/virginia-uranium-inc-v-warren/ | text and structure of the AEA reserve the regulation of uranium mining for the purpose of addressing nuclear safety con- cerns to the NRC alone—and almost immediately prob- lems emerge. Unlike many federal statutes,1 the AEA contains no provision preempting state law in so many words. Even more pointedly, the statute grants the NRC extensive and sometimes exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle except mining. Companies like Virginia Uranium must abide the NRC’s rules and regulations if they wish to handle en- riched uranium, to mill uranium ore or store tailings, or to build or run a nuclear power plant. See 42 U.S. C. 2113(a), 2073. But when it comes to mining, the statute speaks very differently, expressly stating that the NRC’s regulatory powers arise only “after [uranium’s] removal from its place of deposit in nature.” (em- phasis added). As the government itself has conceded, this means that “uranium mining” lies “outside the NRC’s jurisdiction,” Brief for United States as Amicus Curiae 14, and the agency’s grip takes hold only “at the mill, rather than at the mine,” In re Hydro Resources, Inc., 63 N. R. C. 510, 512 (2006). —————— 1 See, e.g., Chamber of Commerce of United States of ; Cite as: 587 U. S. (2019) 5 Opinion of GORSUCH, J. What the text states, context confirms. After announc- ing a general rule that mining regulation lies outside the NRC’s jurisdiction, the AEA carves out a notably narrow exception. On federal lands, the statute says, the NRC may regulate uranium mining. And if the federal government wants to control mining of uranium on private land, the AEA tells the NRC exactly what to do: It may purchase or seize the land by eminent domain and make it federal land. Congress thus has spoken directly to the question of uranium mining on private land, and every bit of what it’s said indicates that state authority remains untouched. Later amendments to the AEA point to the same conclu- sion. Some years after the statute’s passage, Congress added a provision, currently codified in allowing the NRC to devolve certain of its regulatory powers to the States. Unsurprisingly, Congress indicated that the NRC must maintain regulatory control over especially sensitive activities like the construction of nuclear power plants. But under the NRC may now, by agreement, pass to the States some of its preexisting authorities to regulate various nuclear materials “for the protection of the public health and safety from radiation hazards.” Out of apparent concern that courts might (mis)read these new provisions as prohibiting |
Justice Gorsuch | 2,019 | 7 | majority | Virginia Uranium, Inc. v. Warren | https://www.courtlistener.com/opinion/4630085/virginia-uranium-inc-v-warren/ | concern that courts might (mis)read these new provisions as prohibiting States from regulating any activity even tangentially related to nuclear power without first reaching an agreement with the NRC, Congress added subsection (k): “Nothing in this section [that is, shall be con- strued to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.” Section 2021, thus, did nothing to extend the NRC’s power to activities, like mining, historically beyond its reach. Instead, it served only to allow the NRC to share 6 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. with the States some of the powers previously reserved to the federal government. Even then, the statute explained in subsection (k) that States remain free to regulate the activities discussed in for purposes other than nuclear safety without the NRC’s consent. Indeed, if anything, subsection (k) might be described as a non- preemption clause. Virginia Uranium’s case hinges on a very different construction of subsection (k). The company suggests that, properly read, the provision greatly expands the preemptive effect of the AEA and demands the displace- ment of any state law (touching on mining or any other subject) if that law was enacted for the purpose of protect- ing the public against “radiation hazards.” And, the com- pany adds, Virginia’s law bears just such an impermissible purpose. In our view, this reading nearly turns the provision on its head. Subsection (k) does not displace traditional state regulation over mining or otherwise extend the NRC’s grasp to matters previously beyond its control. It does not expose every state law on every subject to a searching judicial inquiry into its latent purposes. Instead and much more modestly, it clarifies that “nothing in this [new] section [2021]”—a section allowing for the devolution-by-agreement of federal regulatory authority— should be construed to curtail the States’ ability to regu- late the activities discussed in that same section for pur- poses other than protecting against radiation hazards. So only state laws that seek to regulate the activities dis- cussed in without an NRC agreement—activities like the construction of nuclear power plants—may be scrutinized to ensure their purposes aim at something other than regulating nuclear safety. Really, to accom- plish all it wants, Virginia Uranium would have to per- suade us to read 13 words out of the statute and add 2 more: Cite as: 587 U. S. (2019) 7 Opinion of GORSUCH, J. Nothing in this section shall be construed to affect the authority of any State or local agency to may regulate activities only |
Justice Gorsuch | 2,019 | 7 | majority | Virginia Uranium, Inc. v. Warren | https://www.courtlistener.com/opinion/4630085/virginia-uranium-inc-v-warren/ | any State or local agency to may regulate activities only for purposes other than protection against radiation hazards. That may be a statute some would prefer, but it is not the statute we have. Just consider what would follow from Virginia Urani- um’s interpretation. Not only would States be prohibited from regulating uranium mining to protect against radia- tion hazards; the federal government likely would be barred from doing so as well. After all, the NRC has long believed, and still maintains, that the AEA affords it no authority to regulate uranium mining on private land. Nor does Virginia Uranium dispute the federal govern- ment’s understanding. Admittedly, if Virginia Uranium were to prevail here, the NRC might respond by changing course and seeking to regulate uranium mining for the first time. But given the statute’s terms, the prospects that it might do so successfully in the face of a legal chal- lenge appear gloomy. Admittedly, as well, federal air and water and other regulations might apply at a uranium mine much as at any other workplace. But the possibility that both state and federal authorities would be left un- able to regulate the unique risks posed by an activity as potentially hazardous as uranium mining seems more than a little unlikely, and quite a lot to find buried deep in subsection (k). Talk about squeezing elephants into mouseholes. See B If the best reading of the AEA doesn’t require us to hold the state law before us preempted, Virginia Uranium takes another swing in the same direction. Only this time, the company submits, our precedents have adopted a different, even if maybe doubtful, reading of the AEA that 8 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. we must follow. Most prominently, Virginia Uranium points to this Court’s decision in Pacific & Elec. Co. v. State Energy Resources Conservation and Development Comm’n, But here, too, problems quickly appear. Pacific rejected a preemption challenge to a state law prohibiting the construction of new nuclear power plants. Along the way, the Court expressly dismissed the notion that establishes the federal government as “the sole regulator of all matters nuclear.” The Court observed that subsection (k) addresses itself only to “the preemptive effect of ‘this section,’ that is [.” And the Court acknowledged that subsection (k) does not “cut back on pre-existing state authority outside the NRC’s jurisdiction,” a field that surely includes uranium mining. None of this remotely helps Virginia Urani- um’s cause. Still, Virginia Uranium seeks to make the best of a bad situation. The company points out that Pacific |
Justice Gorsuch | 2,019 | 7 | majority | Virginia Uranium, Inc. v. Warren | https://www.courtlistener.com/opinion/4630085/virginia-uranium-inc-v-warren/ | of a bad situation. The company points out that Pacific upheld the state law at issue there only after observing that it was enacted out of concern with economic development, not for the purpose of addressing radiation safety hazards. From this, the company reasons, we should infer that any state law enacted with the purpose of addressing nuclear hazards must fall thanks to our precedent. But even that much does not follow. Since the passage of the AEA, the NRC has always played a significant role in regulating the construction of nuclear power plants. Indeed, under (c) this remains one area where the NRC generally cannot devolve its responsibilities to the States. See at 197–198, 206–207. And because classifies the construction of nuclear power plants as one of the core remaining areas of special federal concern, any state law regulating that activity risks being subjected to an inquiry into its purposes under subsection (k). But the Cite as: 587 U. S. (2019) 9 Opinion of GORSUCH, J. activity Virginia’s law regulates—mining on private land—isn’t one the AEA has ever addressed, and it isn’t one discusses, so subsection (k) does not authorize any judicial inquiry into state legislative purpose in this case. Admittedly, there is a wrinkle here. Pacific seemed to accept California’s argument that its law addressed whether new power plants may be built, while the NRC’s regulatory power under (c) extends only to the ques- tion how such plants are constructed and operated. at 212. And accepting (without granting) these premises, it would appear that California’s law did not implicate an activity addressed by so an inquiry into state legis- lative purpose under subsection (k) was not statutorily authorized. Yet Pacific inquired anyway, perhaps on the unstated belief that the state law just came “too close” to a core power (c) reserves to the federal govern- ment. Does that mean we must do the same? Certainly Virginia Uranium sees it that way. We do not. Just because Pacific may have made more of state legislative purposes than the terms of the AEA allow does not mean we must make more of them yet. It is one thing to do as Pacific did and inquire exact- ingly into state legislative purposes when state law pro- hibits a regulated activity like the construction of a nuclear plant, and thus comes close to trenching on core federal powers reserved to the federal government by the AEA. It is another thing to do as Virginia Uranium wishes and impose the same exacting scrutiny on state laws prohibit- ing an activity like mining far |
Justice Gorsuch | 2,019 | 7 | majority | Virginia Uranium, Inc. v. Warren | https://www.courtlistener.com/opinion/4630085/virginia-uranium-inc-v-warren/ | on state laws prohibit- ing an activity like mining far removed from the NRC’s historic powers. And without some clearer congressional mandate suggesting an inquiry like that would be appro- priate, we decline to undertake it on our own authority. The preemption of state laws represents “a serious intru- sion into state sovereignty.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 488 (1996) (plurality opinion). And to order 10 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. preemption based not on the strength of a clear congres- sional command, or even on the strength of a judicial gloss requiring that much of us, but based only on a doubtful extension of a questionable judicial gloss would represent not only a significant federal intrusion into state sover- eignty. It would also represent a significant judicial intru- sion into Congress’s authority to delimit the preemptive effect of its laws. Being in for a dime doesn’t mean we have to be in for a dollar. This Court’s later cases confirm the propriety of re- straint in this area. In a decision issued just a year after Pacific (and by the same author), this Court consid- ered whether the AEA preempted state tort remedies for radiation injuries after a nuclear plant accident. Silkwood v. Kerr-McGee Corp., In doing so, the Court did not inquire into state legislative purposes, ap- parently because it thought state tort law (unlike a law prohibiting the construction of a nuclear power plant) fell beyond any fair understanding of the NRC’s reach under the AEA. Exactly the same, as we have seen, can be said of Virginia’s mining law. In fact, if the Silk- wood Court had inquired into state legislative purposes, the law there might well have been harder to sustain than the one now before us. State tort laws, after all, plainly intend to regulate public safety. And as applied in Silk- wood, state tort law sought to regulate the safety of a nuclear plant’s operations, an area of special federal inter- est under Nothing comparable, of course, can be said of the mining regulations before us. Some years later, this Court in went further still, casting doubt on whether an inquiry into state legislative purposes had been either necessary or appropriate in Pacific itself. –85, n. 7 (“Whether the suggestion of the majority in Pacific that legislative purpose is relevant to the definition of the pre-empted field is part of the Cite as: 587 U. S. (2019) 11 Opinion of GORSUCH, J. holding of that case is not an issue before us today” (em- phasis added)). If |
Justice Gorsuch | 2,019 | 7 | majority | Virginia Uranium, Inc. v. Warren | https://www.courtlistener.com/opinion/4630085/virginia-uranium-inc-v-warren/ | not an issue before us today” (em- phasis added)). If Pacific and its progeny alone marked our path, this case might be a close one, as our dissenting colleagues suggest. Post, at 3–5 (opinion of ROBERTS, C. J.). But for us any lingering doubt dissipates when we consult other cases in this area and this Court’s traditional tools of statutory interpretation.2 Start with the fact that this Court has generally treated field preemption inquiries like this one as depending on what the State did, not why it did it. Indeed, this Court has analyzed most every other modern field preemption doctrine dispute in this way—from immigration, Arizona v. United States, to arbitration, AT&T Mobility to foreign affairs, to railroads, to energy, Hughes v. Talen Energy Marketing, LLC, 578 U. S. (2016), to civil procedure, Shady Grove Orthopedic Associ- ates, P. It is unclear why we would proceed differently here without some clear congressional instruction requiring it.3 —————— 2 Far from “sweep[ing] well beyond the confines of this case,” as our concurring colleagues suggest, see post, at 1 (GINSBURG, J., concurring in judgment), these considerations are, to us, essential to its resolution. 3 Certainly the dissent’s case, National Meat Assn. v. Harris, 565 U.S. 452 doesn’t command a different result. There, the Court merely enforced an express statutory preemption clause that prohibited States from setting standards for handling non-ambulatory pigs that differed from federal standards. As we’ve seen, the AEA contains no comparable preemption clause forbidding Virginia to regulate mining in any way. Admittedly, National Meat went on to say that a State could not enforce a preempted animal-handling standard indirectly by banning the sale of meat from non-ambulatory pigs if its law “func- tion[ed] as a command to slaughterhouses to structure their operations in the exact way” state regulators desired rather than as federal 12 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. Our field preemption cases proceed as they do, more- over, for good reasons. Consider just some of the costs to cooperative federalism and individual liberty we would invite by inquiring into state legislative purpose too pre- cipitately. The natural tendency of regular federal judicial inquiries into state legislative intentions would be to stifle deliberation in state legislatures and encourage resort to secrecy and subterfuge. That would inhibit the sort of open and vigorous legislative debate that our Constitution recognizes as vital to testing ideas and improving laws. In Virginia Uranium’s vision as well, federal courts would have to allow depositions of state legislators and gover- nors, and perhaps hale them into court for cross- examination at |
Justice Gorsuch | 2,019 | 7 | majority | Virginia Uranium, Inc. v. Warren | https://www.courtlistener.com/opinion/4630085/virginia-uranium-inc-v-warren/ | and perhaps hale them into court for cross- examination at trial about their subjective motivations in passing a mining statute. And at the end of it all, federal courts would risk subjecting similarly situated persons to radically different legal rules as judges uphold and strike down materially identical state regulations based only on the happenstance of judicial assessments of the “true” intentions lurking behind them. In light of all this, it can surprise no one that our precedents have long warned against undertaking potential misadventures into hidden state legislative intentions without a clear statutory man- date for the project. See, e.g., Shady Grove, 559 U.S., at 404–405; ; U.S. 217, 225 (1971); 455, n. 7 (1931) (collecting cases). To be sure, Virginia Uranium insists that we don’t need to worry about concerns like these in this case. We don’t, the company says, because Virginia has admitted that it enacted its law with the (impermissible) purpose of pro- —————— standards required. But here, by contrast, no one sug- gests that Virginia’s mining law requires anyone to disregard NRC regulations. Cite as: 587 U. S. (2019) 13 Opinion of GORSUCH, J. tecting the public from nuclear safety hazards. But the Commonwealth denies making any such admission. In- stead, it says it has merely accepted as true the allega- tions in the company’s complaint about the intentions animating state law for purposes of the Commonwealth’s own motion to dismiss this suit under Federal Rule of Civil Procedure 12(b)(6). If the case were to proceed be- yond the pleadings stage, Virginia insists, a more search- ing judicial inquiry into the law’s motivation would be inevitable. Whoever may be right about the status of Virginia’s admissions in this case, though, the point re- mains that following Virginia Uranium’s lead would re- quire serious intrusions into state legislative processes in future cases. Beyond these concerns, as well, lie well-known concep- tual and practical ones this Court has also advised against inviting unnecessarily. State legislatures are composed of individuals who often pursue legislation for multiple and unexpressed purposes, so what legal rules should deter- mine when and how to ascribe a particular intention to a particular legislator? What if an impermissible intention existed but wasn’t necessary to her vote? And what per- centage of the legislature must harbor the impermissible intention before we can impute it to the collective institu- tion? Putting all that aside, how are courts supposed to conduct a reasonable inquiry into these questions when recorded state legislative history materials are often not as readily available or complete as their federal counter- parts? And |
Justice Gorsuch | 2,019 | 7 | majority | Virginia Uranium, Inc. v. Warren | https://www.courtlistener.com/opinion/4630085/virginia-uranium-inc-v-warren/ | readily available or complete as their federal counter- parts? And if trying to peer inside legislators’ skulls is too fraught an enterprise, shouldn’t we limit ourselves to trying to glean legislative purposes from the statutory text where we began? Even Pacific warned future courts against too hastily accepting a litigant’s invitation to “become embroiled in attempting to ascertain” state legis- lative “motive[s],” acknowledging that such inquiries “often” prove “unsatisfactory venture[s]. What motivates 14 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. one legislator to vote for a statute is not necessarily what motivates scores of others to enact it.” (citation omitted). See also Shady Grove, 559 U.S., at 403–404, n. 6; ; Edwards v. (Scalia, J., dis- senting). Cf. We think these warnings wise, and we heed them today. C If the AEA doesn’t occupy the field of radiation safety in uranium mining, Virginia Uranium suggests the statute still displaces state law through what’s sometimes called conflict preemption. In particular, the company suggests, Virginia’s mining law stands as an impermissible “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, On Virginia Uranium’s account, Congress sought to capture the benefits of developing nuclear power while mitigating its safety and environmental costs. And, the company contends, Virginia’s moratorium disrupts the delicate “balance” Congress sought to achieve between these benefits and costs. Maybe the text of the AEA doesn’t touch on mining in so many words, but its authority to regulate later stages of the nuclear fuel life cycle would be effectively undermined if mining laws like Virginia’s were allowed. A sound preemption analysis cannot be as simplistic as that. No more than in field preemption can the Supremacy Clause be deployed here to elevate abstract and unenacted legislative desires above state law; only federal laws “made in pursuance of ” the Constitution, through its prescribed processes of bicameralism and presentment, are entitled to preemptive effect. Art. VI, cl. 2; ISLA 485 U.S., at So any “[e]vidence of Cite as: 587 U. S. (2019) 15 Opinion of GORSUCH, J. pre-emptive purpose,” whether express or implied, must therefore be “sought in the text and structure of the statute at issue.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). Sound and well-documented reasons underlie this rule too. Efforts to ascribe unenacted purposes and objectives to a federal statute face many of the same challenges as inquiries into state legislative intent. Trying to discern what motivates legislators individually and collectively invites speculation and risks overlooking the reality that individual Members of Congress often pursue multiple |
Justice Gorsuch | 2,019 | 7 | majority | Virginia Uranium, Inc. v. Warren | https://www.courtlistener.com/opinion/4630085/virginia-uranium-inc-v-warren/ | the reality that individual Members of Congress often pursue multiple and competing purposes, many of which are compromised to secure a law’s passage and few of which are fully realized in the final product. Hefty inferences may be required, as well, when trying to estimate whether Congress would have wanted to prohibit States from pursuing regulations that may happen to touch, in various degrees and different ways, on unenacted federal purposes and objectives. Worse yet, in piling inference upon inference about hidden legislative wishes we risk displacing the legislative compromises actually reflected in the statutory text— compromises that sometimes may seem irrational to an outsider coming to the statute cold, but whose genius lies in having won the broad support our Constitution demands of any new law. In disregarding these legislative compromises, we may only wind up displacing perfectly legitimate state laws on the strength of “purposes” that only we can see, that may seem perfectly logical to us, but that lack the democratic provenance the Constitution demands before a federal law may be declared supreme. See, e.g., Pacific (acknowledging that under the AEA “the promotion of nuclear power is not to be accomplished ‘at all costs’ ”); Cyan, Inc. v. Beaver County Employees Retirement Fund, 583 U. S. – (2018) (slip op., at 14–15); 482 U.S., at (Scalia, J., dissenting); United States v. O’Brien, 391 U.S. 16 VIRGINIA URANIUM, INC. v. WARREN Opinion of GORSUCH, J. 3, 382–384 (1968); (1810). So it may be that Congress meant the AEA to promote the development of nuclear power. It may be that Congress meant the AEA to balance that goal against various safety concerns. But it also may be that Members of Congress held many other disparate or conflicting goals in mind when they voted to enact and amend the AEA, and many different views on exactly how to manage the competing costs and benefits. If polled, they might have reached very different assessments, as well, about the consistency of Virginia’s law with their own purposes and objectives. The only thing a court can be sure of is what can be found in the law itself. And every indication in the law before us suggests that Congress elected to leave mining regulation on private land to the States and grant the NRC regulatory authority only after uranium is removed from the earth. That compromise may not be the only permissible or even the most rationally attractive one, but it is surely both permissible and rational to think that Congress might have chosen to regulate the more novel aspects of nuclear power |
Justice Gorsuch | 2,019 | 7 | majority | Virginia Uranium, Inc. v. Warren | https://www.courtlistener.com/opinion/4630085/virginia-uranium-inc-v-warren/ | chosen to regulate the more novel aspects of nuclear power while leaving to States their traditional function of regulating mining activities on private lands within their boundaries.4 As an alternative to proceeding down the purposes-and- objectives branch of conflict preemption, Virginia Uranium might have pursued another. Our cases have held that we —————— 4 The concurrence takes a slightly different tack. It seems to accept the premise that the Court can divine the unenacted “purposes” and “objectives” underlying the AEA and weigh them against Virginia’s mining law. But in rejecting Virginia Uranium’s argument, it winds up emphasizing repeatedly that the text of the AEA does not address mining. See post, at 12–14. That may not fully address Virginia Uranium’s assertion that state mining regulations interfere with a latent statutory purpose lying beyond the text, but it does highlight the propriety of confining our inquiries to the statute’s terms. Cite as: 587 U. S. (2019) 17 Opinion of GORSUCH, J. can sometimes infer a congressional intent to displace a state law that makes compliance with a federal statute impossible. 496 U.S., at But Virginia Uranium hasn’t pursued an argument along any of these lines, and understandably so. Not only can Virginia Uranium comply with both state and federal laws; it is also unclear whether laws like Virginia’s might have a meaningful impact on the development of nuclear power in this country. Some estimate that the United States currently imports over 90 percent of the uranium used in this country. App. to Pet. for Cert. 19a. Domestic uranium mines currently exist on federal lands as well and are thus beyond the reach of state authorities. And if the federal government concludes that development of the Coles Hill deposit or any other like it is crucial, it may always purchase the site (or seize it through eminent domain) under the powers Congress has supplied. 42 U.S. C. All this may be done without even amending the AEA, itself another course which Congress is always free to pursue—but which this Court should never be tempted into pursuing on its own. * The judgment of the court of appeals is Affirmed. Cite as: 587 U. S. (2019) 1 GINSBURG GINSBURG J., concurring J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 16–1275 VIRGINIA URANIUM, INC., ET AL., PETITIONERS v. JOHN WARREN, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [June 17, 2019] JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, concurring in the judgment. |
Justice Stevens | 2,008 | 16 | dissenting | Engquist v. Oregon Dept. of Agriculture | https://www.courtlistener.com/opinion/145801/engquist-v-oregon-dept-of-agriculture/ | Congress has provided a judicial remedy for individuals whose federal constitutional rights are violated by state action,[1] In prior cases, we have refused to craft new remedies for the violation of constitutional rights of federal employees, or for the nonconstitutional claims of state employees, But refusal to give effect to the congressionally mandated remedy embodied in would be impermissible. To avoid this result, the Court today concludes that Engquist suffered no constitutional violation at all, and that there was thus no harm to be remedied. In so holding, the Courtas it did in carves a novel exception out of state employees' constitutional rights. In Garcetti, the Court created a new substantive rule excepting a category of speech by *2158 state employees from the protection of the First Amendment. Today, the Court creates a new substantive rule excepting state employees from the Fourteenth Amendment's protection against unequal and irrational treatment at the hands of the State. Even if some surgery were truly necessary to prevent governments from being forced to defend a multitude of equal protection "class of one" claims, the Court should use a scalpel rather than a meat-axe. I Our decision in Village of applied a rule that had been an accepted part of our equal protection jurisprudence for decades: Unless state action that intentionally singles out an individual, or a class of individuals, for adverse treatment is supported by some rational justification, it violates the Fourteenth Amendment's command that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Our opinion in Olech emphasized that the legal issue would have been the same whether the class consisted of one or five members, because "the number of individuals in a class is immaterial for equal protection analysis." n. The outcome of that case was not determined by the size of the disadvantaged class, and the majority does not indeed cannotdispute the settled principle that the Equal Protection Clause protects persons, not groups. See ante, at 2150-2151. Nor did the outcome in Olech turn on the fact that the Village was discriminating against a property owner rather than an employee. The majority does not dispute that the strictures of the Equal Protection Clause apply to the States in their role as employers as well as regulators. See ante, at 2151. And indeed, we have made clear that "the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and other provisions of the Federal Constitution afford protection to employees who serve the government as well as to those who are served by them, and |
Justice Stevens | 2,008 | 16 | dissenting | Engquist v. Oregon Dept. of Agriculture | https://www.courtlistener.com/opinion/145801/engquist-v-oregon-dept-of-agriculture/ | well as to those who are served by them, and provides a cause of action for all citizens injured by an abridgment of those protections." Rather, the outcome of Olech was dictated solely by the absence of a rational basis for the discrimination. As we explained: "Our cases have recognized successful equal protection claims brought by a `class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. In so doing, we have explained that `[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.' "[Olech's] complaint also alleged that the Village's demand was `irrational and wholly arbitrary' These allegations, quite apart from the Village's subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis." 528 U.S., 565, (some internal quotation marks and citations omitted). Here, as in Olech, Engquist alleged that the State's actions were arbitrary and irrational. In response, the State offered no explanation whatsoever for its decisions; it did not claim that Engquist was a subpar worker, or even that her personality made *2159 her a poor fit in the workplace or that her colleagues simply did not enjoy working with her. In fact, the State explicitly disclaimed the existence of any workplace or performance-based rationale.[2] See, e.g., Reply Brief for Petitioner 17, 19. The jury proceeded to find that the respondents intentionally treated Engquist "differently than others similarly situated with respect to the termination of her employment. without any rational basis and solely for arbitrary, vindictive or malicious reasons." App. to Pet. for Cert. 3-4. The jury's verdict thus established that there was no rational basis for either treating Engquist differently from other employees or for the termination of her employment. The State does not dispute this finding. Under our reasoning in Olech, the absence of any justification for the discrimination sufficed to establish the constitutional violation. The majority nonetheless concludes, based on "unique considerations applicable when the government acts as employer," that the "class of one" theory of equal protection is not applicable in the public employment context. Ante, at 2151. Its conclusion is based upon speculation about inapt hypothetical cases, and an incorrect evaluation of the importance of the government's interest in preserving a regime of "at will" employment. Its reasoning is flawed on both counts. II The |
Justice Stevens | 2,008 | 16 | dissenting | Engquist v. Oregon Dept. of Agriculture | https://www.courtlistener.com/opinion/145801/engquist-v-oregon-dept-of-agriculture/ | employment. Its reasoning is flawed on both counts. II The majority asserts that public-employment decisions should be carved out of our equal protection jurisprudence because employment decisions (as opposed to, for example, zoning decisions) are inherently discretionary. I agree that employers must be free to exercise discretionary authority. But there is a clear distinction between an exercise of discretion and an arbitrary decision. A discretionary decision represents a choice of one among two or more rational alternatives. See 1 H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 162 (Tent. ed.1958) (defining discretion as "the power to choose between two or more courses of action each of which is thought of as permissible"). The choice may be mistaken or unwise without being irrational. If the arguments favoring each alternative are closely balanced, the need to make a choice may justify using a coin toss as a tie breaker. Moreover, the Equal Protection Clause proscribes arbitrary decisionsdecisions unsupported by any rational basisnot unwise ones. Accordingly, a discretionary decision with any "reasonably conceivable" rational justification will not support an equal protection claim; only a truly arbitrary one will. There is therefore no need to create an exception for the public-employment context in order to prevent these discretionary decisions from giving rise equal protection claims. The hypothetical situations posited by the majority do not prove otherwise. The hypothetical traffic officer described in the Court's opinion, ante, at 2154, had a rational basis for giving a ticket to every speeder passing him on the highway. His inability to arrest every driver in sight provides an adequate justification for making a random choice from a group of equally guilty and equally accessible violators. As such, the Court is quite correct in stating that "allowing an equal protection claim on the *2160 ground that a ticket was given to one person and not others, even if for no discernible or articulable reason, would be incompatible with the discretion inherent in the challenged action." If there were no justification for the arrest, there would be no need to invoke the Equal Protection Clause because the officer's conduct would violate the Fourth Amendment. But as noted, a random choice among rational alternatives does not violate the Equal Protection Clause. A comparable hypothetical decision in the employment context (e.g., a supervisor who is required to eliminate one position due to an involuntary reduction-in-force and who chooses to terminate one of several equally culpable employees) also differs from the instant case insofar as it assumes the existence of a rational basis for |
Justice Stevens | 2,008 | 16 | dissenting | Engquist v. Oregon Dept. of Agriculture | https://www.courtlistener.com/opinion/145801/engquist-v-oregon-dept-of-agriculture/ | as it assumes the existence of a rational basis for the individual decision. The fact that a supervisor might not be able to explain why he terminated one employee rather than another will not give rise to an equal protection claim so long as there was a rational basis for the termination itself and for the decision to terminate just one, rather than all, of the culpable employees. Instead of using a scalpel to confine so-called "class of one" claims to cases involving a complete absence of any conceivable rational basis for the adverse action and the differential treatment of the plaintiff, the Court adopts an unnecessarily broad rule that tolerates arbitrary and irrational decisions in the employment context. III The majority's decision also rests on the premise that "[t]he Constitution does not require repudiating th[e] familiar doctrine" of at-will employment. Ante, at 2156. In the 1890's that doctrine applied broadly to government employment, see but for many years now "`the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.'" Indeed, recent constitutional decisions and statutory enactments have all but nullified the significance of the doctrine. See, e.g., ; ; see also 5 U.S.C. 2302(b)(10) ( ed.) (supervisor of covered federal employee may not "discriminate on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others"). Accordingly, preserving the remnants of "at-will" employment provides a feeble justification for creating a broad exception to a well-established category of constitutional protections.[3] IV Presumably the concern that actually motivates today's decision is fear that governments will be forced to defend against a multitude of "class of one" claims unless the Court wields its meat-axe forthwith. Experience demonstrates, however, that these claims are brought infrequently,[4]*2161 that the vast majority of such claims are asserted in complaints advancing other claims as well, and that all but a handful are dismissed well in advance of trial. Experience also demonstrates that there are in fact rare cases in which a petty tyrant has misused governmental power. Proof that such misuse was arbitrary because unsupported by any conceivable rational basis should suffice to establish a violation of the Equal Protection Clause without requiring its victim also to prove that the tyrant was motivated by a particular variety of class-based animus. When the allegations of a complaint plainly identify "the proverbial needle in a haystack," ante, at 2157, a federal court should not misconstrue the Constitution in order to make it even easier to |
Justice Rehnquist | 1,997 | 19 | majority | Washington v. Glucksberg | https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/ | The question presented in this case is whether Washington's prohibition against "caus[ing]" or "aid[ing]" a suicide *706 offends the Fourteenth Amendment to the United States Constitution. We hold that it does not. It has always been a crime to assist a suicide in the State of Washington. In 1854, Washington's first Territorial Legislature *707 outlawed "assisting another in the commission of self-murder."[1] Today, Washington law provides: "A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt " Wash. Rev. Code 9A.36.060(1) "Promoting a suicide attempt" is a felony, punishable by up to five years' imprisonment and up to a $10,000 fine. 9A.36.060(2) and 9A.20.021(1)(c). At the same time, Washington's Natural Death Act, enacted in 1979, states that the "withholding or withdrawal of life-sustaining treatment" at a patient's direction "shall not, for any purpose, constitute a " Wash. Rev. Code 70.122.070(1).[2] Petitioners in this case are the State of Washington and its Attorney General. Respondents Harold Glucksberg, M. D., Abigail Halperin, M. D., Thomas A. Preston, M. D., and Peter Shalit, M. D., are physicians who practice in Washington. These doctors occasionally treat terminally ill, suffering patients, and declare that they would assist these patients in ending their lives if not for Washington's assisted-suicide ban.[3] In January respondents, along with three gravely ill, pseudonymous plaintiffs who have since died and *708 Compassion in a nonprofit organization that counsels people considering physician-assisted suicide, sued in the United States District Court, seeking a declaration that Wash. Rev. Code 9A.36.060(1) is, on its face, unconstitutional. Compassion in[4] The plaintiffs asserted "the existence of a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent, terminally ill adult to commit physician-assisted " Relying primarily on Planned Parenthood of Southeastern and the District Court 850 F. Supp., at -1462, and concluded that Washington's assisted-suicide ban is unconstitutional because it "places an undue burden on the exercise of [that] constitutionally protected liberty interest."[5] The District Court also decided that the Washington statute violated the Equal Protection Clause's requirement that "`all persons similarly situated be treated alike.' " ). A panel of the Court of Appeals for the Ninth Circuit reversed, emphasizing that "[i]n the two hundred and five years of our existence no constitutional right to aid in killing *709 oneself has ever been asserted and upheld by a court of final jurisdiction." Compassion in The Ninth Circuit reheard the case en banc, reversed the panel's decision, and affirmed the District Court. Compassion in Like the District Court, the en banc |
Justice Rehnquist | 1,997 | 19 | majority | Washington v. Glucksberg | https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/ | Court. Compassion in Like the District Court, the en banc Court of Appeals emphasized our and -816. The court also what it described as "historical" and "current societal attitudes" toward suicide and assisted suicide, and concluded that "the Constitution encompasses a due process liberty interest in controlling the time and manner of one's deaththat there is, in short, a constitutionally- `right to die.' " After "[w]eighing and then balancing" this interest against Washington's various interests, the court held that the State's assisted-suicide ban was unconstitutional "as applied to terminally ill competent adults who wish to hasten their deaths with medication prescribed by their physicians."[6] The court did not reach the District Court's equal protection holding.[7] We granted certiorari, and now reverse. *710 I We begin, as we do in all due process cases, by examining our Nation's history, legal traditions, and practices. See, e. g., ; ; (noting importance of "careful `respect for the teachings of history' "). In almost every Stateindeed, in almost every western democracyit is a crime to assist a [8] The States' assisted-suicide bans are not innovations. Rather, they are longstanding expressions of the States' commitment to the protection and preservation of all human life. ; see Indeed, opposition to and condemnation of suicideand, therefore, of assisting suicideare consistent and enduring themes of our philosophical, legal, and cultural heritages. See generally Marzen 17-56; New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 77-82 (hereinafter New York Task Force). More specifically, for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting [9], -295 In the 13th century, Henry de Bracton, one of the first legal-treatise writers, observed that "[j]ust as a man may commit felony by slaying another so may he do so by slaying himself." 2 Bracton on Laws and Customs of England 423 (G. Woodbine ed., S. Thorne transl., 1968). The real and personal property of one who killed himself to avoid conviction and punishment for a crime were forfeit to the King; however, thought Bracton, "if a man slays himself in weariness of life or because he is unwilling to endure further bodily pain [only] his movable goods [were] confiscated." Thus, "[t]he principle that suicide of a sane person, for whatever reason, was a punishable felony was introduced into *712 English common law."[10] Centuries later, Sir William Blackstone, whose Commentaries on the Laws of England not only provided a definitive summary of the common law but was also a primary legal authority for |
Justice Rehnquist | 1,997 | 19 | majority | Washington v. Glucksberg | https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/ | common law but was also a primary legal authority for 18th- and 19th-century American lawyers, referred to suicide as "self-murder" and "the pretended heroism, but real cowardice, of the Stoic philosophers, who destroyed themselves to avoid those ills which they had not the fortitude to endure" 4 W. Blackstone, Commentaries *189. Blackstone emphasized that "the law has ranked [suicide] among the highest crimes," ib although, anticipating later developments, he conceded that the harsh and shameful punishments imposed for suicide "borde[r] a little upon severity." For the most part, the early American Colonies adopted the common-law approach. For example, the legislators of the Providence Plantations, which would later become Rhode Island, declared, in 16, that "[s]elf-murder is by all to be the most unnatural, and it is by this present Assembly declared, to be that, wherein he that doth it, kills himself out *713 of a premeditated hatred against his own life or other humor:. his goods and chattels are the king's custom, but not his debts nor lands; but in case he be an infant, a lunatic, mad or distracted man, he forfeits nothing." The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations 16-1719, p. 19 Virginia also required ignominious burial for suicides, and their estates were forfeit to the Crown. A. Scott, Criminal Law in Colonial Virginia 108, and n. 93, 198, and n. 15 (1930). Over time, however, the American Colonies abolished these harsh common-law penalties. William Penn abandoned the criminal-forfeiture sanction in Pennsylvania in 1701, and the other Colonies (and later, the other States) eventually followed this example. Zephaniah Swift, who would later become Chief Justice of Connecticut, wrote in 1796: "There can be no act more contemptible, than to attempt to punish an offender for a crime, by exercising a mean act of revenge upon lifeless clay, that is insensible of the punishment. There can be no greater cruelty, than the inflicting [of] a punishment, as the forfeiture of goods, which must fall solely on the innocent offspring of the offender. [Suicide] is so abhorrent to the feelings of mankind, and that strong love of life which is implanted in the human heart, that it cannot be so frequently committed, as to become dangerous to society. There can of course be no necessity of any punishment." 2 Z. Swift, A System of the Laws of the State of Connecticut 304 (1796). This statement makes it clear, however, that the movement away from the common law's harsh sanctions did not represent an acceptance of suicide; rather, as Chief Justice Swift observed, this |
Justice Rehnquist | 1,997 | 19 | majority | Washington v. Glucksberg | https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/ | acceptance of suicide; rather, as Chief Justice Swift observed, this change reflected the growing consensus that it was unfair to punish the suicide's family for his wrongdoing. Nonetheless, *714 although States moved away from Blackstone's treatment of suicide, courts continued to condemn it as a grave public wrong. See, e. g., ; Von ; That suicide remained a grievous, though nonfelonious, wrong is confirmed by the fact that colonial and early state legislatures and courts did not retreat from prohibiting assisting Swift, in his early 19th-century treatise on the laws of Connecticut, stated that "[i]f one counsels another to commit suicide, and the other by reason of the advice kills himself, the advisor is guilty of murder as principal." 2 Z. Swift, A Digest of the Laws of the State of Connecticut 270 (1823). This was the well-established common-law view, see In re Joseph G., ; ), as was the similar principle that the consent of a homicide victim is "wholly immaterial to the guilt of the person who cause[d] [his death]," 3 J. Stephen, A History of the Criminal Law of England 16 (1883); see 1 F. Wharton, Criminal Law 451-452 (9th ed. 1885); And the prohibitions against assisting suicide never contained exceptions for those who were near death. Rather, "[t]he life of those to whom life ha[d] become a burdenof those who [were] hopelessly diseased or fatally woundednay, even the lives of criminals *715 condemned to death, [were] under the protection of the law, equally as the lives of those who [were] in the full tide of life's enjoyment, and anxious to continue to live." ; see The earliest American statute explicitly to outlaw assisting suicide was enacted in New York in 1828, Act of Dec. 10, 1828, ch. 20, 4, 1828 N. Y. Laws 19 (codified at 2 N. Y. Rev. Stat. pt. 4, ch. 1, Tit. 2, Art. 1, 7, p. 661 (1829)), and many of the new States and Territories followed New York's example. Marzen 73-74. Between 1857 and 1865, a New York commission led by Dudley Field drafted a criminal code that prohibited "aiding" a suicide and, specifically, "furnish[ing] another person with any deadly weapon or poisonous drug, knowing that such person intends to use such weapon or drug in taking his own life." By the time the Fourteenth Amendment was ratified, it was a crime in most States to assist a See -295 The Field Penal Code was adopted in the Dakota Territory in and in New York in 1881, and its language served as a model for several other western States' statutes |
Justice Rehnquist | 1,997 | 19 | majority | Washington v. Glucksberg | https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/ | served as a model for several other western States' statutes in the late 19th and early 20th centuries. Marzen 76-77, 205-206, 212-213. California, for example, codified its assisted-suicide prohibition in 1874, using language similar to the Field Code's.[11] In this century, the Model Penal Code also prohibited "aiding" suicide, prompting many States to enact or revise their assisted-suicide *716 bans.[12] The code's drafters observed that "the interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of another, even though the act may be accomplished with the consent, or at the request, of the suicide victim." American Law Institute, Model Penal Code 210.5, Comment 5, p. 100 (Official Draft and Revised Comments 1980). Though deeply rooted, the States' assisted-suicide bans have in recent years been reexamined and, generally, reaffirmed. Because of advances in medicine and technology, Americans today are increasingly likely to die in institutions, from chronic illnesses. President's Comm'n for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 16-18 Public concern and democratic action are therefore sharply focused on how best to protect dignity and independence at the end of life,with the result that there have been many significant changes in state laws and in the attitudes these laws reflect. Many States, for example, now permit "living wills," surrogate health-care decisionmaking, and the withdrawal or refusal of life-sustaining medical treatment. See Vacco v. Quill, post, at 804-806; -820; 4 Mich. 436, 8-480, At the same time, however, voters and legislators continue for the most part to reaffirm their States' prohibitions on assisting The Washington statute at issue in this case, Wash. Rev. Code 9A.36.060 was enacted in 1975 as part of a revision of that State's criminal code. Four years later, *717 Washington passed its Natural Death Act, which specifically stated that the "withholding or withdrawal of life-sustaining treatment shall not, for any purpose, constitute a suicide" and that "[n]othing in this chapter shall be construed to condone, authorize, or approve mercy killing" Natural Death Act, 1979 Wash. Laws, ch. 112, 8(1), p. 11 (codified at Wash. Rev. Code 70.122.070(1), 70.122.100 ). In 1991, Washington voters rejected a ballot initiative which, had it passed, would have permitted a form of physicianassisted [13] Washington then added a provision to the Natural Death Act expressly excluding physician-assisted 1992 Wash. Laws, ch. 98, 10; Wash. Rev. Code 70.122.100 California voters rejected an assisted-suicide initiative similar to Washington's in 1993. On the other hand, in voters |
Justice Rehnquist | 1,997 | 19 | majority | Washington v. Glucksberg | https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/ | to Washington's in 1993. On the other hand, in voters in Oregon enacted, also through ballot initiative, that State's "Death With Dignity Act," which legalized physician-assisted suicide for competent, terminally ill adults.[14] Since the Oregon vote, many proposals to legalize assisted-suicide have been and continue to be introduced in the States' legislatures, but none has been enacted.[15] And *718 just last year, Iowa and Rhode Island joined the overwhelming majority of States explicitly prohibiting assisted See Iowa Code Ann. 707A.2, 707A.3 (Supp. 1997); R. I. Gen. Laws 11-60-1, 11-60-3 Also, on April 30, 1997, President Clinton signed the Federal Assisted Suicide Funding Restriction Act of 1997, which prohibits the use of federal funds in support of physician-assisted Stat. 23 (codified at 42 U.S. C. 14401 et seq. ).[16] *719 Thus, the States are currently engaged in serious, thoughtful examinations of physician-assisted suicide and other similar issues. For example, New York State's Task Force on Life and the Lawan ongoing, blue-ribbon commission composed of doctors, ethicists, lawyers, religious leaders, and interested laymenwas convened in 1984 and commissioned with "a broad mandate to recommend public policy on issues raised by medical advances." New York Task Force vii. Over the past decade, the Task Force has recommended laws relating to end-of-life decisions, surrogate pregnancy, and organ donation. After studying physician-assisted suicide, however, the Task Force unanimously concluded that "[l]egalizing assisted suicide and euthanasia would pose profound risks to many individuals who are ill and vulnerable. [T]he potential dangers of this dramatic change in public policy would outweigh any benefit that might be achieved." Attitudes toward suicide itself have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, assisting Despite changes in medical technology and notwithstanding an increased emphasis on the importance of end-of-life decisionmaking, we have not retreated from this prohibition. Against this backdrop of history, tradition, and practice, we now turn to respondents' constitutional claim. II The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. U.S. 115, ). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. ; In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, ; to have children, ; to direct the education and upbringing of one's children, ; ; to marital privacy, 381 U.S. 9 ; to use contraception, ibid.; ; to bodily integrity, and to abortion, |
Justice Rehnquist | 1,997 | 19 | majority | Washington v. Glucksberg | https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/ | use contraception, ibid.; ; to bodily integrity, and to abortion, We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted life saving medical treatment. -279. But we "ha[ve] always been reluctant to expand the concept of substantive due process because guide posts for responsible decision making in this unchartered area are scarce and open-ended." U. S., at By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore "exercise the utmost care whenever we are asked to break new ground in this field," ib lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court, Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, *721 "deeply rooted in this Nation's history and tradition," at ; and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed," Second, we have required in substantive-due-process cases a "careful description" of the asserted fundamental liberty interest. ; at ; 278. Our Nation's history, legal traditions, and practices thus provide the crucial "guide posts for responsible decisionmaking," at that direct and restrain our exposition of the Due Process Clause. As we stated recently in the Fourteenth Amendment "forbids the government to infringe `fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." 507 U.S., Justice Souter, relying on Justice Harlan's dissenting opinion in would largely abandon this restrained methodology, and instead ask "whether [Washington's] statute sets up one of those `arbitrary impositions' or `purposeless restraints' at odds with the Due Process Clause of the Fourteenth Amendment," post, at 752 (quoting ).[17]*722 In our view, however, the development of this Court's substantive-due-process jurisprudence, described has been a process whereby the outlines of the "liberty" specially protected by the Fourteenth Amendmentnever fully clarified, to be sure, and perhaps not capable of being fully clarifiedhave at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. This approach tends to rein in the subjective elements that are necessarily present in due process judicial review. In addition, by establishing a threshold requirementthat a challenged state action implicate a fundamental rightbefore requiring more than a reasonable relation |
Justice Rehnquist | 1,997 | 19 | majority | Washington v. Glucksberg | https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/ | implicate a fundamental rightbefore requiring more than a reasonable relation to a legitimate state interest to justify the action, it avoids the need for complex balancing of competing interests in every case. Turning to the claim at issue here, the Court of Appeals stated that "[p]roperly analyzed, the first issue to be resolved is whether there is a liberty interest in determining the time and manner of one's death," or, in other words, "[i]s there a right to die?," Similarly, respondents assert a "liberty to choose how to die" and a right to "control of one's final days," Brief for Respondents 7, and describe the asserted liberty as "the right to choose a humane, dignified death," and "the liberty to shape death," As noted above, we have a tradition of carefully formulating the interest at stake in substantivedue-process cases. For example, although is often described as a "right to die" case, see 79 F.3d, ; post, at 745 (Stevens, J., concurring in judgments) ( "the more specific interest in making decisions about *723 how to confront an imminent death"), we were, in fact, more precise: We assumed that the Constitution granted competent persons a "constitutionally protected right to refuse lifesaving hydration and nutrition." ; ("[A] liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions"). The Washington statute at issue in this case prohibits "aid[ing] another person to attempt suicide," Wash. Rev. Code 9A.36.060(1) and, thus, the question before us is whether the "liberty" specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.[18] We now inquire whether this asserted right has any place in our Nation's traditions. Here, as at 710 719, we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. See ; Respondents contend, however, that the liberty interest they assert is consistent with this Court's substantive-dueprocess *724 line of cases, if not with this Nation's history and practice. Pointing to and respondents read our jurisprudence in this area as reflecting a general tradition of "self-sovereignty," Brief for Respondents 12, and as teaching that the "liberty" protected by the Due Process Clause includes "basic and intimate exercises of personal autonomy," ; see 505 U. S., at 8 According to respondents, our liberty jurisprudence, |
Justice Rehnquist | 1,997 | 19 | majority | Washington v. Glucksberg | https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/ | U. S., at 8 According to respondents, our liberty jurisprudence, and the broad, individualistic principles it reflects, protects the "liberty of competent, terminally ill adults to make end-of-life decisions free of undue government interference." Brief for Respondents 10. The question presented in this case, however, is whether the protections of the Due Process Clause include a right to commit suicide with another's assistance. With this "careful description" of respondents' claim in mind, we turn to and In we considered whether Nancy Beth who had been severely injured in an automobile accident and was in a persistive vegetative state, "ha[d] a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment" at her parents' We began with the observation that "[a]t common law, even the touching of one person by another without consent and without legal justification was a battery." We then the related rule that "informed consent is generally required for medical treatment." After reviewing a long line of relevant state cases, we concluded that "the common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment." Next, we reviewed our own cases on the subject, and stated that "[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior *725 " Therefore, "for purposes of [that] case, we assume[d] that the United States Constitution would grant a competent person a constitutionally protected right to refuse life saving hydration and nutrition." ; see We concluded that, notwithstanding this right, the Constitution permitted Missouri to require clear and convincing evidence of an incompetent patient's wishes concerning the withdrawal of life-sustaining treatment. -281. Respondents contend that in we "acknowledged that competent, dying persons have the right to direct the removal of life-sustaining medical treatment and thus hasten death," Brief for Respondents 23, and that "the constitutional principle behind recognizing the patient's liberty to direct the withdrawal of artificial life support applies at least as strongly to the choice to hasten impending death by consuming lethal medication," Similarly, the Court of Appeals concluded that ", by recognizing a liberty interest that includes the refusal of artificial provision of life-sustaining food and water, necessarily recognize[d] a liberty interest in hastening one's own death." 79 F.3d, The right assumed in however, was not simply deduced from abstract concepts of personal autonomy. Given the common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment, our assumption was entirely consistent |
Justice Rehnquist | 1,997 | 19 | majority | Washington v. Glucksberg | https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/ | to refuse unwanted medical treatment, our assumption was entirely consistent with this Nation's history and constitutional traditions. The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed, the two acts are widely and reasonably regarded as quite distinct. See Quill v. Vacco, post, at 800-808. In itself, we that most States outlawed assisted suicideand even more do todayand we certainly gave no intimation that the right to refuse unwanted medical treatment could be somehow *726 transmuted into a right to assistance in committing 497 U.S., Respondents also rely on There, the Court's opinion concluded that "the essential holding of] should be retained and once again reaffirmed." We held, first, that a woman has a right, before her fetus is viable, to an abortion "without undue interference from the State"; second, that States may restrict postviability abortions, so long as exceptions are made to protect a woman's life and health; and third, that the State has legitimate interests throughout a pregnancy in protecting the health of the woman and the life of the unborn child. In reaching this conclusion, the opinion in some detail this Court's substantive-due-process tradition of interpreting the Due Process Clause to protect certain fundamental rights and "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and noted that many of those rights and liberties "involv[e] the most intimate and personal choices a person may make in a lifetime." The Court of Appeals, like the District Court, found "`highly instructive' " and "`almost prescriptive' " for determining "`what liberty interest may inhere in a terminally ill person's choice to commit suicide' ": "Like the decision of whether or not to have an abortion, the decision how and when to die is one of `the most intimate and personal choices a person may make in a lifetime,' a choice `central to personal dignity and autonomy.' " -814. Similarly, respondents emphasize the statement in that: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they *727 formed under compulsion of the State." 505 U.S., Brief for Respondents 12. By choosing this language, the Court's opinion in described, in a general way and in light of our prior cases, those personal activities and decisions that this Court has identified as so deeply rooted |
Justice Rehnquist | 1,997 | 19 | majority | Washington v. Glucksberg | https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/ | decisions that this Court has identified as so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment.[19] The opinion moved from the recognition that liberty necessarily includes freedom of conscience and belief about ultimate considerations to the observation that "though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. " That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected, San An- *728 tonio Independent School and did not suggest otherwise. The history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. The Constitution also requires, however, that Washington's assistedsuicide ban be rationally related to legitimate government interests. See 509 U.S. 2, 9-320 ; This requirement is unquestionably met here. As the court below 79 F.3d, -817,[20] Washington's assisted-suicide ban implicates a number of state interests.[21] See -593; Brief for State of California et al.as Amici Curiae 26-29; Brief for United States as Amicus Curiae 16-27. First, Washington has an "unqualified interest in the preservation of human life." The State's prohibition on assisted suicide, like all homicide laws, both reflects and advances its commitment to this interest. See ; Model Penal Code 210.5, Comment 5, 0 ("[T]he interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of *729 another").[22] This interest is symbolic and as pirational as well as practical: "While suicide is no longer prohibited or penalized, the ban against assisted suicide and euthanasia shores up the notion of limits in human relationships. It reflects the gravity with which we view the decision to take one's own life or the life of another, and our reluctance to encourage or promote these " New York Task Force 1-132. Respondents admit that "[t]he State has a real interest in preserving the lives of those who can still contribute to society and have the potential to enjoy life." Brief for Respondents 35, n. 23. The Court of Appeals also Washington's interest in protecting |
Justice Rehnquist | 1,997 | 19 | majority | Washington v. Glucksberg | https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/ | 23. The Court of Appeals also Washington's interest in protecting life, but held that the "weight" of this interest depends on the "medical condition and the wishes of the person whose life is at stake." Washington, however, has rejected this sliding-scale approach and, through its assisted-suicide ban, insists that all persons' lives, from beginning to end, regardless of physical or mental condition, are under the full protection of the law. See United As we have previously affirmed, the States "may properly decline to make judgments about the `quality' of life that a particular individual may enjoy," *730 This remains true, as makes clear, even for those who are near death. Relatedly, all admit that suicide is a serious public-health problem, especially among persons in otherwise vulnerable groups. See Washington State Dept. of Health, Annual Summary of Vital Statistics 1991, pp. 29-30 (suicide is a leading cause of death in Washington of those between the ages of 14 and 54); New York Task Force 10, 23-33 (suicide rate in the general population is about one percent, and suicide is especially prevalent among the young and the elderly). The State has an interest in preventing suicide, and in studying, identifying, and treating its causes. See ; ("The state recognizes suicide as a manifestation of medical and psychological anguish"); Marzen 107-146. Those who attempt suicideterminally ill or notoften suffer from depression or other mental disorders. See New York Task Force 13-22, 126-128 (more than 95% of those who commit suicide had a major psychiatric illness at the time of death; among the terminally ill, uncontrolled pain is a "risk factor" because it contributes to depression); PhysicianAssisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. to the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d Sess., 10-11 ; cf. Back, Wallace, Starks, & Pearlman, Physician-Assisted Suicide and Euthanasia in Washington State, Research indicates, however, that many people who request physician-assisted suicide withdraw that request if their depression and pain are treated. H. Hendin, Seduced by Death: Doctors, Patients and the Dutch Cure 24-25 (1997) (suicidal, terminally ill patients "usually respond well to treatment for depressive illness and pain medication and are then grateful to be alive"); New York Task Force 177-178. *7 The New York Task Force, however, expressed its concern that, because depression is difficult to diagnose, physicians and medical professionals often fail to respond adequately to seriously ill patients' needs. Thus, legal physician-assisted suicide could make it more difficult for the State to protect depressed or mentally ill persons, or those who |
Justice Rehnquist | 1,997 | 19 | majority | Washington v. Glucksberg | https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/ | to protect depressed or mentally ill persons, or those who are suffering from untreated pain, from suicidal impulses. The State also has an interest in protecting the integrity and ethics of the medical profession. In contrast to the Court of Appeals' conclusion that "the integrity of the medical profession would [not] be threatened in any way by [physician-assisted suicide]," the American Medical Association, like many other medical and physicians' groups, has concluded that "[p]hysician-assisted suicide is fundamentally incompatible with the physician's role as healer." American Medical Association, Code of Ethics 2.211 ; see Council on Ethical and Judicial Affairs, Decisions Near the End of Life, ; New York Task Force 103-109 (discussing physicians' views). And physician-assisted suicide could, it is argued, undermine the trust that is essential to the doctor-patient relationship by blurring the time-honored line between healing and harming. Assisted Suicide in the United States, Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d Sess., 355-356 (testimony of Dr. Leon R. Kass) ("The patient's trust in the doctor's whole-hearted devotion to his best interests will be hard to sustain"). Next, the State has an interest in protecting vulnerable groupsincluding the poor, the elderly, and disabled personsfrom abuse, neglect, and mistakes. The Court of Appeals dismissed the State's concern that disadvantaged persons might be pressured into physician-assisted suicide as *732 "ludicrous on its face." We have however, the real risk of subtle coercion and undue influence in end-of-life situations. Similarly, the New York Task Force warned that "[l]egalizing physician-assisted suicide would pose profound risks to many individuals who are ill and vulnerable. The risk of harm is greatest for the many individuals in our society whose autonomy and well-being are already compromised by poverty, lack of access to good medical care, advanced age, or membership in a stigmatized social group." New York Task Force 120; see Compassion in If physicianassisted suicide were permitted, many might resort to it to spare their families the substantial financial burden of endof-life health-care costs. The State's interest here goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and "societal indifference." The State's assisted-suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person's suicidal impulses should be interpreted and treated the same way as anyone else's. See New York Task Force 101-102; Physician-Assisted Suicide and Euthanasia in the |
Justice Rehnquist | 1,997 | 19 | majority | Washington v. Glucksberg | https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/ | York Task Force 101-102; Physician-Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. The Court of Appeals struck down *733 Washington's assisted-suicide ban only "as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors." 79 F.3d, Washington insists, however, that the impact of the court's decision will not and cannot be so limited. Brief for Petitioners 44-. If suicide is protected as a matter of constitutional right, it is argued, "every man and woman in the United States must enjoy it." Compassion in 49 F. 3d, at ; see 4 Mich., at 0, n. -728, n. The Court of Appeals' decision, and its expansive reasoning, provide ample support for the State's concerns. The court noted, for example, that the "decision of a duly appointed surrogate decision maker is for all legal purposes the decision of the patient himself," n. 120; that "in some instances, the patient may be unable to self-administer the drugs and administration by the physician may be the only way the patient may be able to receive them," at 8; and that not only physicians, but also family members and loved ones, will inevitably participate in assisting suicide, n. 140. Thus, it turns out that what is couched as a limited right to "physician-assisted suicide" is likely, in effect, a much broader license, which could prove extremely difficult to police and contain.[23] Washington's ban on assisting suicide prevents such erosion. *734 This concern is further supported by evidence about the practice of euthanasia in the Netherlands. The Dutch government's own study revealed that in 1990, there were 2,300 cases of voluntary euthanasia (defined as "the deliberate termination of another's life at his request"), 400 cases of assisted suicide, and more than 1,000 cases of euthanasia without an explicit In addition to these latter 1,000 cases, the study found an additional 4,9 cases where physicians administered lethal morphine overdoses without the patients' explicit consent. Physician-Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. 12-13 (citing Dutch study). This study suggests that, despite the existence of various reporting procedures, euthanasia in the Netherlands has not been limited to competent, terminally ill adults who are enduring physical suffering, and that regulation of the practice may not have prevented abuses in cases involving vulnerable persons, including severely disabled neonates and elderly persons suffering from dementia. ; see generally C. Gomez, Regulating |
Justice Rehnquist | 1,997 | 19 | majority | Washington v. Glucksberg | https://www.courtlistener.com/opinion/118144/washington-v-glucksberg/ | persons suffering from dementia. ; see generally C. Gomez, Regulating Death: Euthanasia and the Case of the Netherlands (1991); H. Hendin, Seduced By Death: Doctors, Patients, and the Dutch Cure (1997). The New York Task Force, citing the Dutch experience, observed that "assisted suicide and euthanasia are closely linked," New York Task Force 145, and concluded that the "risk of abuse is neither speculative nor distant," Washington, like most *735 other States, reasonably ensures against this risk by banning, rather than regulating, assisted See United 3 U.S. 123, We need not weigh exactingly the relative strengths of these various interests. They are unquestionably important and legitimate, and Washington's ban on assisted suicide is at least reasonably related to their promotion and protection. We therefore hold that Wash. Rev. Code 9A.36.060(1) does not violate the Fourteenth Amendment, either on its face or "as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors." 79 F.3d,[24] * * * Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted Our holding permits this debate to continue, as it should in a democratic society. The decision of the en banc Court of Appeals is *736 reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Brennan | 1,974 | 13 | majority | Lewis v. New Orleans | https://www.courtlistener.com/opinion/108965/lewis-v-new-orleans/ | Upon the Louisiana Supreme Court's reconsideration of this case in light of pursuant to our remand, that court, three judges dissenting, again sustained appellant's conviction upon a charge of addressing spoken words to a New Orleans police officer in violation of New Orleans Ordinance 828 M. C. S. 49-7,[1] We noted probable jurisdiction, and we reverse. We hold that 49-7, as construed by the Louisiana Supreme Court, is overbroad in violation of the First and Fourteenth *132 Amendments and is therefore facially invalid. Section 49-7 provides: "It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty." The Louisiana Supreme Court on remand did not refine or narrow these words, but took them as they stood: "The proscriptions are narrow and specific wantonly cursing, reviling, and using obscene or opprobrious language." Nonetheless, that court took the position that, as written, "it [ 49-7] is narrowed to `fighting words' uttered to specific persons at a specific time" But 49-7 plainly has a broader sweep than the constitutional definition of "fighting words" announced in and reaffirmed in namely, "those [words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace." That the Louisiana Supreme Court contemplated a broader reach of the ordinance is evident from its emphasis upon the city's justification for regulation of "the conduct of any person towards a member of the city police while in the actual performance of his duty Permitting the cursing or reviling of or using obscene or opprobrious words to a police officer while in the actual performance of his duty would be unreasonable and basically incompatible with the officer's activities and the place where such activities are performed."[2] *133 At the least, the proscription of the use of "opprobrious language," embraces words that do not "by their very utterance inflict injury or tend to incite an immediate breach of the peace." That was our conclusion as to the word "opprobrious" in the Georgia statute held unconstitutional in where we found that the common dictionary definition of that term embraced words "conveying or intended to convey disgrace" and therefore that the term was not limited to words which "by their very utterance inflict injury or tend to incite an immediate breach of the peace." The same conclusion is compelled as to the reach of the term in 49-7, for we find nothing in the opinion |
Justice Brennan | 1,974 | 13 | majority | Lewis v. New Orleans | https://www.courtlistener.com/opinion/108965/lewis-v-new-orleans/ | term in 49-7, for we find nothing in the opinion of the Louisiana Supreme Court that makes any meaningful attempt to limit or properly defineas limited by Chaplinsky and Gooding"opprobrious," or indeed any other term in 49-7. In that circumstance it is immaterial whether the words appellant used might be punishable under a properly limited statute or ordinance. We reaffirm our holding in in this respect: "It matters not that the words [appellant] used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when `no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,' the transcendent value to all society of constitutionally protected expression is deemed to justify allowing `attacks on overly broad statutes with no requirement that the person making *134 the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity' This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression." In sum, 49-7 punishes only spoken words. It can therefore withstand appellant's attack upon its facial constitutionality only if, as authoritatively construed by the Louisiana Supreme Court, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments. ; ; Since 49-7, as construed by the Louisiana Supreme Court, is susceptible of application to protected speech, the section is constitutionally overbroad and therefore is facially invalid. The judgment of the Louisiana Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE POWELL, concurring in the result. I previously concurred in the remand of this case, but only for reconsideration in light of Pursuant to the remand order, we now have the Louisiana Supreme Court's decision construing New Orleans Ordinance 828 M. C. S. 49-7. I agree with the Court's conclusion today that the Louisiana Supreme Court "did not refine or narrow these words [of the ordinance], but took them as they stood" Ante, at 132. In conclusory language, that court construed the ordinance to create *135 a per se rule: Whenever "obscene or opprobrious language" is used "toward or with reference to any member of the city police while in the actual performance of his duty," such language constitutes "fighting words" and hence a violation without regard to the facts and circumstances of |
Justice Brennan | 1,974 | 13 | majority | Lewis v. New Orleans | https://www.courtlistener.com/opinion/108965/lewis-v-new-orleans/ | a violation without regard to the facts and circumstances of a particular case. As so construed, the ordinance is facially overbroad. Quite apart from the ambiguity inherent in the term "opprobrious," words may or may not be "fighting words," depending upon the circumstances of their utterance. It is unlikely, for example, that the words said to have been used here would have precipitated a physical confrontation between the middle-aged woman who spoke them and the police officer in whose presence they were uttered. The words may well have conveyed anger and frustration without provoking a violent reaction from the officer. Moreover, as noted in my previous concurrence, a properly trained officer may reasonably be expected to "exercise a higher degree of restraint" than the average citizen, and thus be less likely to respond belligerently to "fighting words." See Model Penal Code 250.1, Comment 4 This ordinance, as construed by the Louisiana Supreme Court, confers on police a virtually unrestrained power to arrest and charge persons with a violation. Many arrests are made in "one-on-one" situations where the only witnesses are the arresting officer and the person charged. All that is required for conviction is that the court accept the testimony of the officer that obscene or opprobrious language had been used toward him while in performance of his duties.[*] Indeed, the language need *136 not be addressed directly to the officer since the ordinance is violated even if the objectionable language is used only "with reference to any member of the city police." Contrary to the city's argument, it is unlikely that limiting the ordinance's application to genuine "fighting words" would be incompatible with the full and adequate performance of an officer's duties. In arrests for the more common street crimes (e. g., robbery, assault, disorderly conduct, resisting arrest), it is usually unnecessary that the person also be charged with the less serious offense of addressing obscene words to the officer. The present type of ordinance tends to be invoked only where there is no other valid basis for arresting an objectionable or suspicious person. The opportunity for abuse, especially where a statute has received a virtually open-ended interpretation, is self-evident. I therefore concur in the result. MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. |
Justice Breyer | 2,009 | 2 | dissenting | Summers v. Earth Island Institute | https://www.courtlistener.com/opinion/145904/summers-v-earth-island-institute/ | The Court holds that the Sierra Club and its members (along with other environmental organizations) do not suffer any "`concrete injury'" when the Forest Service sells timber for logging on "many thousands" of small (250-acre or less) woodland parcels without following legally required proceduresprocedures which, if followed, could lead the Service to cancel or to modify the sales. Ante, at 1151. *1154 Nothing in the record or the law justifies this counterintuitive conclusion. I A The plaintiffs, respondents in this case, are five environmental organizations. The Earth Island Institute, a California organization, has over 15,000 members in the United States, over 3,000 of whom "use and enjoy the National Forests of California for recreational, educational, aesthetic, spiritual and other purposes." Corrected Complaint for Declaratory and Injunctive Relief in Case No. CIV-F-03-630 REC DLB (ED Cal.) ¶ 8, App. 31 (hereinafter Complaint). The Sequoia ForestKeeper, a small organization, has "100 plus" members who "use the forests of the Southern Sierra Nevada for activities such as hiking, bird and animal watching, aesthetic enjoyment, quiet contemplation, fishing and scientific study." at 32. Heartwood, Inc., located in Illinois and Indiana, is a coalition of environmental organizations with "members" who "continually use the National Forests for the purposes of ecological health, recreation, aesthetic enjoyment, and other purposes." at 33. The Center for Biological Diversity, located in Arizona, California, New Mexico, and Washington, has over 5,000 members who "use Forest Service lands," and who are "dedicated to the preservation, protection, and restoration of biological diversity, native species and ecosystems in the Western United States and elsewhere." ¶ 11. The Sierra Club has more than "700,000 members nationwide, including thousands of members in California" who "use and enjoy the Sequoia National Forest," for "outdoor recreation and scientific study of various kinds, including nature study, bird-watching, photography, fishing, canoeing, hunting, backpacking, camping, solitude, and a variety of other activities." at 34. These five organizations point to a federal law that says the Forest Service "shall establish a notice and comment process," along with a procedure for filing administrative "appeals," for "proposed actions. concerning projects and activities implementing land and resource management plans" 322, note following 16 U.S.C. 1612. They add that the Service has exempted from "notice, comment, and appeal" processes its decisions that allow, among other things, salvage-timber sales on burned forest lands of less than 250 acres in size. 36 CFR 215.4(a), 215.12(f) (2008); see also 68 Fed.Reg. 44607-44608 (2003) (describing projects exempted). And they claim that the Service's refusal to provide notice, comment, and appeal procedures violates the statute. Complaint ¶5-106, App. 61. B The |
Justice Breyer | 2,009 | 2 | dissenting | Summers v. Earth Island Institute | https://www.courtlistener.com/opinion/145904/summers-v-earth-island-institute/ | procedures violates the statute. Complaint ¶5-106, App. 61. B The majority says that the plaintiffs lack constitutional standing to raise this claim. It holds that the dispute between the five environmental groups and the Forest Service consists simply of an abstract challenge; it does not amount to the concrete "Cas[e]" or "Controvers[y]" that the Constitution grants federal courts the power to resolve. Art. III, 2, cl. 1. I cannot agree that this is so. To understand the constitutional issue that the majority decides, it may prove helpful to imagine that Congress enacted a statutory provision that expressly permitted environmental groups like the respondents here to bring cases just like the present one, provided (1) that the group has members who have used salvage-timber parcels in the past and are likely to do so in the future, and (2) that the group's members have opposed Forest Service *1155 timber sales in the past (using notice, comment, and appeal procedures to do so) and will likely use those procedures to oppose salvage-timber sales in the future. The majority cannot, and does not, claim that such a statute would be unconstitutional. See ; Sierra How then can it find the present case constitutionally unauthorized? I believe the majority answers this question as follows: It recognizes, as this Court has held, that a plaintiff has constitutional standing if the plaintiff demonstrates (1) an "`injury in fact,'" (2) that is "fairly traceable" to the defendant's "challenged action," and which (3) a "favorable [judicial] decision" will likely prevent or redress. Friends of Earth, The majority does not deny that the plaintiffs meet the latter two requirements. It focuses only upon the first, the presence of "actual," as opposed to "conjectural or hypothetical," injury. In doing so, it properly agrees that the "organizations" here can "assert the standing of their members." Ante, at 1149. It points out that injuries to the "members' recreational" or even "mere esthetic interests. will suffice." It does not claim that the procedural nature of the plaintiffs' claim makes the difference here, for it says only that "deprivation of a procedural right without some concrete interest" thereby affected, i.e., "a procedural right in vacuo" would prove "insufficient to create Article III standing." Ante, at 1151 (emphasis added); see also -518, The majority assumes, as do I, that these unlawful Forest Service procedures will lead to substantive actions, namely the sales of salvage timber on burned lands, that might not take place if the proper procedures were followed. But the majority then finds that the plaintiffs have not sufficiently demonstrated that these salvage-timber sales |
Justice Breyer | 2,009 | 2 | dissenting | Summers v. Earth Island Institute | https://www.courtlistener.com/opinion/145904/summers-v-earth-island-institute/ | the plaintiffs have not sufficiently demonstrated that these salvage-timber sales cause plaintiffs an actual injury, that is, harm to the recreational, aesthetic, or other environmental interests of organization members. Ante, at 1149-1150. To put the matter in terms of my hypothetical statute, the majority holds that the plaintiff organizations, while showing that they have members who have used salvage-timber sale parcels in the past (i.e., parcels that the Service does not subject to the notice, comment, and appeal procedures required by law), have failed to show that they have members likely to use such parcels in the future. II How can the majority credibly claim that salvage-timber sales, and similar projects, are unlikely to harm the asserted interests of the members of these environmental groups? The majority apparently does so in part by arguing that the Forest Service actions are not "imminent"a requirement more appropriately considered in the context of ripeness or the necessity of injunctive relief. See Ohio Forestry Assn., I concede that the Court has sometimes used the word "imminent" in the context of constitutional standing. But it has done so primarily to emphasize that the harm in questionthe harm that was not "imminent"was merely "conjectural" or "hypothetical" or otherwise speculative. Where the Court has directly focused upon the matter, i.e., where, as here, a plaintiff has already been subject to the injury it wishes to challenge, the Court has *1156 asked whether there is a realistic likelihood that the challenged future conduct will, in fact, recur and harm the plaintiff. That is what the Court said in Los a case involving a plaintiff's attempt to enjoin police use of chokeholds. The Court wrote that the plaintiff, who had been subject to the unlawful chokehold in the past, would have had standing had he shown "a realistic threat" that reoccurrence of the challenged activity would cause him harm "in the reasonably near future." (emphasis added). Precedent nowhere suggests that the "realistic threat" standard contains identification requirements more stringent than the word "realistic" implies. See How could the Court impose a stricter criterion? Would courts deny standing to a holder of a future interest in property who complains that a life tenant's waste of the land will almost inevitably hurt the value of his interestthough he will have no personal interest for several years into the future? Would courts deny standing to a landowner who complains that a neighbor's upstream dam constitutes a nuisanceeven if the harm to his downstream property (while bound to occur) will not occur for several years? Would courts deny standing to an injured person |
Justice Breyer | 2,009 | 2 | dissenting | Summers v. Earth Island Institute | https://www.courtlistener.com/opinion/145904/summers-v-earth-island-institute/ | several years? Would courts deny standing to an injured person seeking a protection order from future realistic (but nongeographically specific) threats of further attacks? To the contrary, a threat of future harm may be realistic even where the plaintiff cannot specify precise times, dates, and GPS coordinates. Thus, we recently held that Massachusetts has standing to complain of a procedural failing, namely, 's failure properly to determine whether to restrict carbon dioxide emissions, even though that failing would create Massachusetts-based harm which (though likely to occur) might not occur for several decades. -523, The Forest Service admits that it intends to conduct thousands of further salvage-timber sales and other projects exempted under the challenged regulations "in the reasonably near future." See Defendants' Motion to Clarify and Amend Judgment in No. CIV-F-03-6386-JKS-DLB (ED Cal.), pp. 13-14. How then can the Court deny that the plaintiffs have shown a "realistic" threat that the Forest Service will continue to authorize (without the procedures claimed necessary) salvage-timber sales, and other Forest Service projects, that adversely affect the recreational, aesthetic, and environmental interests of the plaintiffs' members? Consider: Respondents allege, and the Government has conceded, that the Forest Service took wrongful actions (such as selling salvage timber) "thousands" of times in the two years prior to suit. ; see also Exh. 2, Decl. of Gloria Manning, Associate Deputy Chief for National Forest System ¶ 6, p. 3 (identifying 3,377 "proposed decisions," "[a]s of July 1, 2005," that would be excluded from notice, comment, and appeal procedures). The Complaint alleges, and no one denies, that the organizations, the Sierra Club for example, have hundreds of thousands of members who use forests regularly across the Nation for recreational, scientific, aesthetic, and environmental purposes. Complaint ¶¶ 8-12, App. 31-34. The Complaint further alleges, and no one denies, that these organizations (and their members), believing that actions such as salvage-timber sales harm those interests, regularly oppose salvage-timber sales (and similar actions) in proceedings before the agency. And the Complaint alleges, and no *1157 one denies, that the organizations intend to continue to express their opposition to such actions in those proceedings in the future. Consider further: The affidavit of a member of Sequoia ForestKeeper, Ara Marderosian, attached to the Complaint, specifies that Marderosian had visited the Burnt Ridge Project site in the past and intended to return. The majority concedes that this is sufficient to show that Marderosian had standing to challenge the Burnt Ridge Project. The majority must therefore agree that "at least one identified member ha[s] suffered harm." Ante, at 1151. Why then does it find insufficient |
Justice Breyer | 2,009 | 2 | dissenting | Summers v. Earth Island Institute | https://www.courtlistener.com/opinion/145904/summers-v-earth-island-institute/ | harm." Ante, at 1151. Why then does it find insufficient the affidavit, also attached to the Complaint, of Jim Bensman, a member of Heartwood, Inc.? That affidavit states, among other things, that Bensman has visited 70 National Forests, that he has visited some of those forests "hundreds of times," that he has often visited the Allegheny National Forest in the past, that he has "probably commented on a thousand" Forest Service projects including salvage-timber sale proposals, that he intends to continue to comment on similar Forest Service proposals, and that the Forest Service plans in the future to conduct salvage-timber sales on 20 parcels in the Allegheny National Forestone of the forests he has visited in the past. ¶¶ 6, 13, App. E to Pet. for Cert. 68a, 69a, 71a. The Bensman affidavit does not say which particular sites will be affected by future Forest Service projects, but the Service itself has conceded that it will conduct thousands of exempted projects in the future. Why is more specificity needed to show a "realistic" threat that a project will impact land Bensman uses? To know, virtually for certain, that snow will fall in New England this winter is not to know the name of each particular town where it is bound to arrive. The law of standing does not require the latter kind of specificity. How could it? And Sierra on which the majority so heavily relies, involved plaintiffs who challenged (true, a "massive") development, but only on a single previously determined site, about 80 acres in size, in a portion of the forest with a "limited number of visitors." The Court's unwillingness to infer harm to the Sierra Club's members there does not demand a similar unwillingness here, where the challenge is to procedures affecting "thousands" of sites, involving hundreds of times as much acreage, where the precise location of each may not yet be known. In Sierra Club, ib it may have been unreasonable simply to assume that members would suffer an "injury in fact." But here, given the very different factual circumstances, it is unreasonable to believe they would not. Whatever doubt may remain is settled by the affidavits the plaintiffs submitted after the Burnt Ridge dispute was settled (while the other claims in the Complaint remained alive). The majority says it will not consider those affidavits because they were submitted "[a]fter the District Court had entered judgment." Ante, at 1150, n. But the plaintiffs submitted the affidavits after judgment (in opposition to the Government's motion for a stay) because the Burnt Ridge dispute on which they had |
Justice Breyer | 2,009 | 2 | dissenting | Summers v. Earth Island Institute | https://www.courtlistener.com/opinion/145904/summers-v-earth-island-institute/ | stay) because the Burnt Ridge dispute on which they had relied to show standing at the outset of suit had by that point been settled. No longer wishing to rely solely on evidence of their members' interest in that particular project, the plaintiff organizations submitted several other affidavits. Why describe this perfectly sensible response to the settlement of some of the Complaint's claims as a "retroactiv[e]" attempt to "me[e]t the challenge to their standing at the time of judgment"? In fact, the Government did not challenge standing until that point, *1158 so of course respondents (who all agree had standing at the outset) did not respond with affidavits until laterwhen their standing was challenged. This can hardly be characterized as an attempt to "resurrect and alter the outcome" in the case. Ante, at 1153. Regardless, the Constitution does not bar the filing of further affidavits, nor does any statute. The Federal Rules of Civil Procedure contain no such bar. Indeed, those Rules provide a judge with liberal discretion to permit a plaintiff to amend a complainteven after one dispute (of several) is settled. So why would they not permit the filing of affidavitsat least with the judge's permission? See Fed. Rule Civ. Proc. 15(d) ("The court may permit supplementation even though the original pleading is defective in stating a claim or defense"). The affidavits in question describe a number of then-pending Forest Service projects, all excluded from notice, comment, and appeal under the Forest Service regulations and all scheduled to take place on parcels that the plaintiff organizations' members use. Erik Ryberg, for example, a member of the Center for Biological Diversity, described in his affidavit a proposed logging project scheduled for the Payette National Forestan area with which he is "personally familiar." ¶ 6, App. 90. A second affidavit filed by Jim Bensman described a salvage-timber sale scheduled for the Hoosier National Forestan area Bensman had visited "multiple times" and to which he planned to return in the coming weeksand one planned for the Daniel Boone National Forestalso used by Bensmanwhich would "impact [Heartwood's] members['] use of the areas." ¶¶ 8-9, The affidavits also describe, among other things, the frequency with which the organizations' members routinely file administrative appeals of salvage-timber sales and identify a number of proposed and pending projects that certain Sierra Club members wished to appeal. See Decl. of Rene Voss ¶ 3, ; Decl. of Craig Thomas ¶¶ 3, 13, These allegations and affidavits more than adequately show a "realistic threat" of injury to plaintiffs brought about by reoccurrence of the challenged conductconduct that the |
Justice White | 1,986 | 6 | majority | Turner v. Murray | https://www.courtlistener.com/opinion/111660/turner-v-murray/ | Petitioner is a black man sentenced to death for the murder of a white storekeeper. The question presented is whether the trial judge committed reversible error at voir dire by refusing petitioner's request to question prospective jurors on racial prejudice. I On July 12, 1978, petitioner entered a jewelry store in Franklin, Virginia, armed with a sawed-off shotgun. He demanded that the proprietor, W. Jack Smith, Jr., put jewelry and money from the cash register into some jewelry bags. Smith complied with petitioner's demand, but triggered a *30 silent alarm, alerting the Police Department. When Alan Bain, a police officer, arrived to inquire about the alarm, petitioner surprised him and forced him to surrender his revolver. Having learned that Smith had triggered a silent alarm, petitioner became agitated. He fired toward the rear wall of the store and stated that if he saw or heard any more police officers, he was going to start killing those in the store.[1] When a police siren sounded, petitioner walked to where Smith was stationed behind a counter and without warning shot him in the head with Bain's pistol, wounding Smith and causing him to slump incapacitated to the floor. Officer Bain attempted to calm petitioner, promising to take him anywhere he wanted to go and asking him not to shoot again. Petitioner angrily replied that he was going to kill Smith for "snitching," and fired two pistol shots into Smith's chest, fatally wounding him. As petitioner turned away from shooting Smith, Bain was able to disarm him and place him under arrest. A Southampton County, Virginia, grand jury indicted petitioner on charges of capital murder, use of a firearm in the commission of a murder, and possession of a sawed-off shotgun in the commission of a robbery. Petitioner requested and was granted a change of venue to Northampton County, Virginia, a rural county some 80 miles from the location of the murder. Prior to the commencement of voir dire, petitioner's counsel submitted to the trial judge a list of proposed questions, including the following: " `The defendant, Willie Lloyd Turner, is a member of the Negro race. The victim, W. Jack Smith, Jr., was a white Caucasian. Will these facts prejudice you against Willie Lloyd Turner or affect your ability to render a fair *31 and impartial verdict based solely on the evidence?' " The judge declined to ask this question, stating that it "has been ruled on by the Supreme Court."[2] App. 1. The judge did ask the venire, who were questioned in groups of five in petitioner's presence, whether any person |
Justice White | 1,986 | 6 | majority | Turner v. Murray | https://www.courtlistener.com/opinion/111660/turner-v-murray/ | in groups of five in petitioner's presence, whether any person was aware of any reason why he could not render a fair and impartial verdict, to which all answered "no." At the time the question was asked, the prospective jurors had no way of knowing that the murder victim was white. The jury that was empaneled, which consisted of eight whites and four blacks, convicted petitioner on all of the charges against him. at 97 and Addendum. After a separate sentencing hearing on the capital charge, the jury recommended that petitioner be sentenced to death, a recommendation the trial judge accepted. Petitioner appealed his death sentence to the Virginia Supreme Court. Among other points, he argued that the trial judge deprived him of his constitutional right to a fair and impartial jury by refusing to question prospective jurors on racial prejudice. The Virginia Supreme Court rejected this argument. Relying on our decision in the court stated that a trial judge's refusal to ask prospective jurors about their racial attitudes, while perhaps not the wisest decision as a matter of policy, is not constitutionally objectionable in the absence of factors akin to those in[3], 273 S. E. *32 2d, at 42. The court held that "[t]he mere fact that a defendant is black and that a victim is white does not constitutionally mandate an inquiry [into racial prejudice]." [4] Having failed in his direct appeal, petitioner sought habeas corpus relief in the Federal District Court for the Eastern District of Virginia. App. 97. Again he argued without success that the trial judge's refusal to ask prospective jurors about their racial attitudes deprived him of his right to a fair trial. The District Court noted that in which involved a crime of interracial violence,[] we held that inquiry into racial prejudice at voir dire was not constitutionally required because the facts of the case " `did not suggest a significant likelihood that racial prejudice might infect [the defendant's] trial.' " App. 103 ( ). The court found the present case like and unlike Ham in that "racial issues [are] not `inextricably bound up with the facts at trial.' " App. 103. The United States Court of Appeals for the Fourth Circuit affirmed the District Court's denial of habeas corpus relief for *33 petitioner. Like the Virginia Supreme Court and the District Court, the Fourth Circuit found no "special circumstances" in this case analogous to those in Ham. The court rejected the idea that "the nature of the crime or punishment itself is a special circumstance." Relying on the court likewise found no |
Justice White | 1,986 | 6 | majority | Turner v. Murray | https://www.courtlistener.com/opinion/111660/turner-v-murray/ | a special circumstance." Relying on the court likewise found no special circumstance in the fact that petitioner is black and his victim white.[6] We granted certiorari to review the Fourth Circuit's decision that petitioner was not constitutionally entitled to have potential jurors questioned concerning racial prejudice. We reverse. II The Fourth Circuit's opinion correctly states the analytical framework for evaluating petitioner's argument: "The broad inquiry in each case must be whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be indifferent as [they stand] unsworne." -346 The Fourth Circuit was correct, too, in holding that under the mere fact that petitioner is black and his victim white does not constitute a "special circumstance" of constitutional proportions. What sets this case apart from however, is that in addition to petitioner's being accused of a crime against a white victim, the crime charged was a capital offense. In a capital sentencing proceeding before a jury, the jury is called upon to make a "highly subjective, `unique, individualized *34 judgment regarding the punishment that a particular person deserves.' " ). The Virginia statute under which petitioner was sentenced is instructive of the kinds of judgments a capital sentencing jury must make. First, in order to consider the death penalty, a Virginia jury must find either that the defendant is likely to commit future violent crimes or that his crime was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim." Va. Code 19.2-264.2 Second, the jury must consider any mitigating evidence offered by the defendant. Mitigating evidence may include, but is not limited to, facts tending to show that the defendant acted under the influence of extreme emotional or mental disturbance, or that at the time of the crime the defendant's capacity "to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired." 19.2-262.4(B). Finally, even if the jury has found an aggravating factor, and irrespective of whether mitigating evidence has been offered, the jury has discretion not to recommend the death sentence, in which case it may not be imposed. 19.2-264.2. Virginia's death-penalty statute gives the jury greater discretion than other systems which we have upheld against constitutional challenge. See, e. g., However, our cases establish that every capital sentencer must be free to weigh relevant mitigating evidence before deciding whether to impose the death penalty, see, e. g., ; and that in the end it is |
Justice White | 1,986 | 6 | majority | Turner v. Murray | https://www.courtlistener.com/opinion/111660/turner-v-murray/ | e. g., ; and that in the end it is the jury that must make the difficult, individualized judgment as to whether the defendant deserves the sentence of death. *3 Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected. On the facts of this case, a juror who believes that blacks are violence prone or morally inferior might well be influenced by that belief in deciding whether petitioner's crime involved the aggravating factors specified under Virginia law. Such a juror might also be less favorably inclined toward petitioner's evidence of mental disturbance as a mitigating circumstance. More subtle, less consciously held racial attitudes could also influence a juror's decision in this case. Fear of blacks, which could easily be stirred up by the violent facts of petitioner's crime, might incline a juror to favor the death penalty.[7] The risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence. "The Court, as well as the separate opinions of a majority of the individual Justices, has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." We have struck down capital sentences when we found that the circumstances *36 under which they were imposed "created an unacceptable risk that `the death penalty [may have been] meted out arbitrarily or capriciously' or through `whim or mistake.' " (citation omitted). In the present case, we find the risk that racial prejudice may have infected petitioner's capital sentencing unacceptable in light of the ease with which that risk could have been minimized.[8] By refusing to question prospective jurors on racial prejudice, the trial judge failed to adequately protect petitioner's constitutional right to an impartial jury.[9] III We hold that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the *37 race of the victim and questioned on the issue of racial bias.[10] The rule we propose is minimally intrusive; as in other cases involving "special circumstances," the trial judge retains discretion as to the form and number of questions on the subject, including the decision whether to question the venire individually or collectively. See Also, a defendant cannot complain of a judge's failure to question the venire on racial prejudice unless the defendant has specifically requested such an inquiry. IV The inadequacy of voir dire in this case requires that petitioner's death sentence be |
Justice White | 1,986 | 6 | majority | Turner v. Murray | https://www.courtlistener.com/opinion/111660/turner-v-murray/ | dire in this case requires that petitioner's death sentence be vacated. It is not necessary, however, that he be retried on the issue of guilt. Our judgment in this case is that there was an unacceptable risk of racial prejudice infecting the capital sentencing proceeding. This judgment is based on a conjunction of three factors: the fact that the crime charged involved interracial violence, the broad discretion given the jury at the death-penalty hearing, and the special seriousness of the risk of improper sentencing in a capital case.[11] At the guilt phase of petitioner's trial, the jury had no greater discretion than it would have had if the crime charged had been noncapital murder. Thus, with respect to the guilt phase of petitioner's trial, we find this case *38 to be indistinguishable from to which we continue to adhere.[12] See n. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. THE CHIEF JUSTICE concurs in the judgment. JUSTICE BRENNAN, concurring in part and dissenting in part. The Court's judgment vacates petitioner's sentence of death while refusing to disturb his conviction. Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, 428 U.S. 13, I agree that the death sentence in this case must be vacated. But even if I did not hold that view, I would still find that the sentence was unconstitutionally imposed in this case. In my view, the constitutional right of a defendant to have a trial judge ask the members *39 of the venire questions concerning possible racial bias is triggered whenever a violent interracial crime has been committed. See The reality of race relations in this country is such that we simply may not presume impartiality, and the risk of bias runs especially high when members of a community serving on a jury are to be confronted with disturbing evidence of criminal conduct that is often terrifying and abhorrent. In analyzing the question of when the Constitution requires trial judges to accommodate defendants' requests for inquiries into racial prejudice, I, like the Court, am influenced by what the Court correctly describes as the "ease" with which the risk may be minimized. Ante, at 36. In any event, I cannot fully join either the Court's judgment or opinion. For in my view, the decision in this case, although clearly half right, is even more clearly half wrong. After recognizing that the constitutional guarantee of an impartial jury |
Justice White | 1,986 | 6 | majority | Turner v. Murray | https://www.courtlistener.com/opinion/111660/turner-v-murray/ | After recognizing that the constitutional guarantee of an impartial jury entitles a defendant in a capital case involving interracial violence to have prospective jurors questioned on the issue of racial bias a holding which requires that this case be reversed and remanded for new sentencing the Court disavows the logic of its own reasoning in denying petitioner Turner a new trial on the issue of his guilt. It accomplishes this by postulating a jury role at the sentencing phase of a capital trial fundamentally different from the jury function at the guilt phase and by concluding that the former gives rise to a significantly greater risk of a verdict tainted by racism. Because I believe that the Court's analysis improperly intertwines the significance of the risk of bias with the consequences of bias, and because in my view the distinction between the jury's role at a guilt trial and its role at a sentencing hearing is a distinction without substance in so far as juror bias is concerned, I join only that portion of the Court's judgment granting petitioner a new sentencing proceeding, *40 but dissent from that portion of the judgment refusing to vacate the conviction. The Sixth Amendment guarantees criminal defendants an impartial jury. This is not mere exhortation for it has been noted that "the right to an impartial jury carries with it the concomitant right to take reasonable steps designed to insure that the jury is impartial." 32 Among the most important of the means designed to insure an impartial jury is the right to strike those jurors who manifest an inability to try the case solely on the basis of the evidence. This right to exclude incompetent jurors cannot be exercised meaningfully or effectively unless counsel has sufficient information with which to evaluate members of the venire. As JUSTICE WHITE noted for the Court in 41 U.S. 182, "lack of adequate voir dire impairs the defendant's right to exercise peremptory challenges where provided by statute or rule, as it is in the federal courts" (footnote omitted). Recognizing this fact, we held long ago that "essential demands of fairness" may require a judge to ask jurors whether they entertain any racial prejudice. ; see also More recently, we attempted to refine the analysis, and declared that when there is a showing of a "likelihood" that racial or ethnic prejudice may affect the jurors, the Constitution requires a trial judge to honor a defendant's request to examine the jurors' ability to deal impartially with the evidence adduced at trial. Rosales-Lopez, Exercising our supervisory powers over |
Justice White | 1,986 | 6 | majority | Turner v. Murray | https://www.courtlistener.com/opinion/111660/turner-v-murray/ | evidence adduced at trial. Rosales-Lopez, Exercising our supervisory powers over the federal courts, we held in Rosales-Lopez that when a violent crime has been committed, and the victim and the accused are of different races, a per se inference of a "reasonable possibility" of prejudice is shown. In the present case, we deal with a criminal case from a state court involving an act of interracial violence, *41 and are faced with the question of what factors and circumstances will elevate this presumptive "reasonable possibility" of prejudice into a constitutionally significant "likelihood" of prejudice. The Court identifies three factors, the "conjunction" of which in its view entitled petitioner Turner as a matter of constitutional right to have the jury questioned on racial bias. These are (1) the fact that the crime committed involved interracial violence; (2) the broad discretion given the jury at the death penalty hearing; and (3) the "special seriousness of the risk of improper sentencing in a capital case." Ante, at 37. I agree with the Court that when these three factors are present, as they were at petitioner's sentencing hearing, the trial court commits constitutional error in refusing a defense request to ask the jurors if the race of either the victim or the accused will bear on their ability to render a decision based solely on the evidence. What I cannot accept is that the judge is released from this obligation to insure an impartial jury or, to put it another way, that the defendant is stripped of this constitutional safeguard when a capital jury is hearing evidence concerning a crime involving interracial violence but passing "only" on the issue of guilt/innocence, rather than on the appropriate sentence. The Court's argument is simply untenable on its face. As best I can understand it, the thesis is that since there is greater discretion entrusted to a capital jury in the sentencing phase than in the guilt phase, "there is [in the sentencing hearing] a unique opportunity for racial prejudice to operate but remain undetected." Ante, at 3. However, the Court's own discussion of the issues demonstrates that the opportunity for racial bias to taint the jury process is not "uniquely" present at a sentencing hearing, but is equally a factor at the guilt phase of a bifurcated capital trial. According to the Court, a prejudiced juror sitting at a sentencing hearing might be influenced by his racial bias in deciding whether the crime committed involved aggravating *42 factors specified under state law; the Court notes that racial prejudice might similarly cause that juror to |
Justice White | 1,986 | 6 | majority | Turner v. Murray | https://www.courtlistener.com/opinion/111660/turner-v-murray/ | notes that racial prejudice might similarly cause that juror to be less favorably inclined toward an accused's evidence of mitigating circumstances. Moreover, the Court informs us: "More subtle, less consciously held racial attitudes could also influence a juror's decision. Fear of blacks, which could easily be stirred up by the violent facts of [a] crime, might incline a juror to favor the death penalty." The flaw in this "analysis" is that there is simply no connection between the proposition advanced, the support proffered for that thesis, and the conclusion drawn. In other words, it is certainly true, as the Court maintains, that racial bias inclines one to disbelieve and disfavor the object of the prejudice, and it is similarly incontestable that subconscious, as well as express, racial fears and hatreds operate to deny fairness to the person despised; that is why we seek to insure that the right to an impartial jury is a meaningful right by providing the defense with the opportunity to ask prospective jurors questions designed to expose even hidden prejudices. But the Court never explains why these biases should be of less concern at the guilt phase than at the sentencing phase. The majority asserts that "a juror who believes that blacks are violence prone or morally inferior might well be influenced by that belief in deciding whether petitioner's crime involved the aggravating factors specified under Virginia law." But might not that same juror be influenced by those same prejudices in deciding whether, for example, to credit or discredit white witnesses as opposed to black witnesses at the guilt phase? Might not those same racial fears that would incline a juror to favor death not also incline a juror to favor conviction? A trial to determine guilt or innocence is, at bottom, nothing more than the sum total of a countless number of small discretionary decisions made by each individual who sits in the jury box. The difference between conviction and acquittal *43 turns on whether key testimony is believed or rejected; on whether an alibi sounds plausible or dubious; on whether a character witness appears trustworthy or unsavory; and on whether the jury concludes that the defendant had a motive, the inclination, or the means available to commit the crime charged. A racially biased juror sits with blurred vision and impaired sensibilities and is incapable of fairly making the myriad decisions that each juror is called upon to make in the course of a trial. To put it simply, he cannot judge because he has prejudged. This is equally true at the trial on guilt |
Justice White | 1,986 | 6 | majority | Turner v. Murray | https://www.courtlistener.com/opinion/111660/turner-v-murray/ | prejudged. This is equally true at the trial on guilt as at the hearing on sentencing. To sentence an individual to death on the basis of a proceeding tainted by racial bias would violate the most basic values of our criminal justice system. This the Court understands. But what it seems not to comprehend is that to permit an individual to be convicted by a prejudiced jury violates those same values in precisely the same way. The incongruity of the Court's split judgment is made apparent after it is appreciated that the opportunity for bias to poison decisionmaking operates at a guilt trial in the same way as it does at a sentencing hearing and after one returns to the context of the case before us. Implicit in the Court's judgment is the acknowledgment that there was a likelihood that the jury that pronounced the death sentence acted, in part, on the basis of racial prejudice. But the exact same jury convicted Turner. Does the Court really mean to suggest that the constitutional entitlement to an impartial jury attaches only at the sentencing phase? Does the Court really believe that racial biases are turned on and off in the course of one criminal prosecution? My sense is that the Court has confused the consequences of an unfair trial with the risk that a jury is acting on the basis of prejudice. In other words, I suspect that what is really animating the Court's judgment is the sense of outrage it rightly experiences at the prospect of a man being sentenced to death on the basis of the color of his skin. Perhaps *44 the Court is slightly less troubled by the prospect of a racially motivated conviction unaccompanied by the death penalty, and I suppose that if, for some unimaginable reason, I had to choose between the two cases, and could only rectify one, I would remedy the case where death had been imposed. But there is no need to choose between the two cases. To state what seems to me obvious, the constitutional right implicated is the right to be judged by an impartial jury, regardless of the sentence, and the constitutional focus thus belongs on whether there is a likelihood of bias, and not on what flows from that bias. In we reversed the conviction of a young black man who was charged with and convicted of possession of marijuana; because the man was known in the community as a civil rights activist, and because we were persuaded that racial issues were inextricably bound up with the conduct |
Justice White | 1,986 | 6 | majority | Turner v. Murray | https://www.courtlistener.com/opinion/111660/turner-v-murray/ | that racial issues were inextricably bound up with the conduct of the trial, we concluded that it was likely that any prejudice that individual members of the jury might harbor would be intensified and held that under those circumstances the trial judge was required to oblige the defense request to inquire into the jury's possible racial bias. We did not reject the petitioner's claim in that case because he was sentenced only to 18 months' imprisonment. Surely one has a right to an impartial jury whether one is subject to punishment for a day or a lifetime. The Court may believe that it is being Solomonic in "splitting the difference" in this case and granting petitioner a new sentencing hearing while denying him the other "half" of the relief demanded. Starkly put, petitioner "wins" in that he gets to be resentenced, while the State "wins" in that it does not lose its conviction. But King Solomon did not, in fact, split the baby in two, and had he done so, I suspect that he would be remembered less for his wisdom than for his hardheartedness. Justice is not served by compromising principles in this way. I would reverse the conviction as well as the sentence in this case to insure compliance with the constitutional guarantee of an impartial jury. *4 JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, concurring in the judgment in part and dissenting in part. For the reasons stated in my opinion in I believe that a criminal defendant is entitled to inquire on voir dire about the potential racial bias of jurors whenever the case involves a violent interracial crime. As the Court concedes, "it is plain that there is some risk of racial prejudice influencing a jury whenever there is a crime involving interracial violence." Ante, at 36, n. 8. To my mind that risk plainly outweighs the slight cost of allowing the defendant to choose whether to make an inquiry concerning such possible prejudice. This Court did not identify in nor does it identify today, any additional burdens that would accompany such a rule. I therefore cannot agree with the Court's continuing rejection of the simple prophylactic rule proposed in Even if I agreed with the Court that a per se rule permitting inquiry into racial bias is appropriate only in capital cases, I could not accept the Court's failure to remedy the denial of such inquiry in this capital case by reversing petitioner's conviction. Henceforth any capital defendant accused of an interracial crime may inquire into racial prejudice on voir dire. When, as here, |
Justice Thomas | 1,994 | 1 | dissenting | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | The Court today holds that a State, pursuant to 401 of the Clean Water Act, may condition the certification necessary to obtain a federal license for a proposed hydroelectric project upon the maintenance of a minimum flow rate in the river to be utilized by the project. In my view, the Court makes three fundamental errors. First, it adopts an interpretation that fails adequately to harmonize the subsections of 401. Second, it places no meaningful limitation on a State's authority under 401 to impose conditions on certification. Third, it gives little or no consideration to the fact that its interpretation of 401 will significantly disrupt the carefully crafted federal-state balance embodied in the Federal Power Act. Accordingly, I dissent. I A Section 401(a)(1) of the Federal Water Pollution Control Act, otherwise known as the Clean Water Act (CWA or Act), 33 U.S. C. 1251 et seq., provides that "[a]ny applicant for a Federal license or permit to conduct any activity which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates that any such discharge will comply with applicable provisions of [the CWA]." 33 U.S. C. 1341(a)(1). The terms of 401(a)(1) make clear that the purpose of the certification process is to ensure that discharges from a project will meet the requirements of the CWA. Indeed, a State's authority under 401(a)(1) is limited to certifying that "any discharge" that "may result" from "any activity," such as petitioners' proposed hydroelectric project, will "comply" with the enumerated provisions of the CWA; if the discharge will fail to comply, the State may "den[y]" the certification. In addition, under 401(d), a State may place conditions on a *725 401 certification, including "effluent limitations and other limitations, and monitoring requirements," that may be necessary to ensure compliance with various provisions of the CWA and with "any other appropriate requirement of State law." 1341(d). The minimum stream flow condition imposed by respondents in this case has no relation to any possible "discharge" that might "result" from petitioners' proposed project. The term "discharge" is not defined in the CWA, but its plain and ordinary meaning suggests "a flowing or issuing out," or "something that is emitted." Webster's Ninth New Collegiate Dictionary 360 (1991). Cf. 33 U.S. C. 1362(16) ("The term `discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants"). A minimum stream flow requirement, by contrast, is a limitation on the amount of water the project can take in or divert from the river. |
Justice Thomas | 1,994 | 1 | dissenting | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | the project can take in or divert from the river. See ante, at 709. That is, a minimum stream flow requirement is a limitation on intakethe opposite of discharge. Imposition of such a requirement would thus appear to be beyond a State's authority as it is defined by 401(a)(1). The Court remarks that this reading of 401(a)(1) would have "considerable force," ante, at 711, were it not for what the Court understands to be the expansive terms of 401(d). That subsection, as set forth in 33 U.S. C. 1341(d), provides: "Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, standard of performance under section 1316 of this title, or prohibition, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal *726 license or permit subject to the provisions of this section." (Emphasis added.) According to the Court, the fact that 401(d) refers to an "applicant," rather than a "discharge," complying with various provisions of the Act "contradicts petitioners' claim that the State may only impose water quality limitations specifically tied to a `discharge.' " Ante, at 711. In the Court's view, 401(d)'s reference to an applicant's compliance "expands" a State's authority beyond the limits set out in 401(a)(1), ibid., thereby permitting the State in its certification process to scrutinize the applicant's proposed "activity as a whole," not just the discharges that may result from the activity, ante, at 712. The Court concludes that this broader authority allows a State to impose conditions on a 401 certification that are unrelated to discharges. Ante, at 711-712. While the Court's interpretation seems plausible at first glance, it ultimately must fail. If, as the Court asserts, 401(d) permits States to impose conditions unrelated to discharges in 401 certifications, Congress' careful focus on discharges in 401(a)(1)the provision that describes the scope and function of the certification processwas wasted effort. The power to set conditions that are unrelated to discharges is, of course, nothing but a conditional power to deny certification for reasons unrelated to discharges. Permitting States to impose conditions unrelated to discharges, then, effectively eliminates the constraints of 401(a)(1). Subsections 401(a)(1) and (d) can easily be reconciled to avoid this problem. To ascertain the nature of the conditions permissible under 401(d), 401 |
Justice Thomas | 1,994 | 1 | dissenting | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | ascertain the nature of the conditions permissible under 401(d), 401 must be read as a whole. See United Sav. Assn. of As noted above, 401(a)(1) limits a State's authority in the certification process to addressing concerns related to discharges and to ensuring that any discharge resulting from a project will comply with specified provisions of the Act. It is reasonable *727 to infer that the conditions a State is permitted to impose on certification must relate to the very purpose the certification process is designed to serve. Thus, while 401(d) permits a State to place conditions on a certification to ensure compliance of the "applicant," those conditions must still be related to discharges. In my view, this interpretation best harmonizes the subsections of 401. Indeed, any broader interpretation of 401(d) would permit that subsection to swallow 401(a)(1). The text of 401(d) similarly suggests that the conditions it authorizes must be related to discharges. The Court attaches critical weight to the fact that 401(d) speaks of the compliance of an "applicant," but that reference, in and of itself, says little about the nature of the conditions that may be imposed under 401(d). Rather, because 401(d) conditions can be imposed only to ensure compliance with specified provisions of lawthat is, with "applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, standard[s] of performance under section 1316 of this title, prohibition[s], effluent standard[s], or pretreatment standard[s] under section 1317 of this title, [or] any other appropriate requirement[s] of State law"one should logically turn to those provisions for guidance in determining the nature, scope, and purpose of 401(d) conditions. Each of the four identified CWA provisions describes dischargerelated limitations. See 1311 (making it unlawful to discharge any pollutant except in compliance with enumerated provisions of the Act); 1312 (establishing effluent limitations on point source discharges); 1316 (setting national standards of performance for the control of discharges); and 1317 (setting pretreatment effluent standards and prohibiting the discharge of certain effluents except in compliance with standards). The final term on the list"appropriate requirement[s] of State law"appears to be more general in scope. Because *728 this reference follows a list of more limited provisions that specifically address discharges, however, the principle ejusdem generis would suggest that the general reference to "appropriate" requirements of state law is most reasonably construed to extend only to provisions that, like the other provisions in the list, impose discharge-related restrictions. Cf. ; In sum, the text and structure of 401 indicate that a State may impose under 401(d) only those conditions that are related to discharges. B |
Justice Thomas | 1,994 | 1 | dissenting | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | 401(d) only those conditions that are related to discharges. B The Court adopts its expansive reading of 401(d) based at least in part upon deference to the "conclusion" of the Environmental Protection Agency (EPA) that 401(d) is not limited to requirements relating to discharges. Ante, at 712. The agency regulation to which the Court defers is 40 CFR 121.2(a)(3) which provides that the certification shall contain "[a] statement that there is a reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards." Ante, at 712. According to the Court, "EPA's conclusion that activities not merely dischargesmust comply with state water quality standards is entitled to deference" under U. S. A. (19). Ante, at 712. As a preliminary matter, the Court appears to resort to deference under without establishing through an initial examination of the statute that the text of the section is ambiguous. See at 2-3. More importantly, the Court invokes deference to support its interpretation even though the Government does not seek *729 deference for the EPA's regulation in this case.[1] That the Government itself has not contended that an agency interpretation exists reconciling the scope of the conditioning authority under 401(d) with the terms of 401(a)(1) should suggest to the Court that there is no "agenc[y] construction" directly addressing the question. at 2. In fact, the regulation to which the Court defers is hardly a definitive construction of the scope of 401(d). On the contrary, the EPA's position on the question whether conditions under 401(d) must be related to discharges is far from clear. Indeed, the only EPA regulation that specifically addresses the "conditions" that may appear in 401 certifications speaks exclusively in terms of limiting discharges. According to the EPA, a 401 certification shall contain "[a] statement of any conditions which the certifying agency deems necessary or desirable with respect to the discharge of the activity. " 40 CFR 121.2(a)(4) In my view, 121.2(a)(4) should, at the very least, give the Court pause before it resorts to deference in this case. II The Washington Supreme Court held that the State's water quality standards, promulgated pursuant to 303 of the Act, 33 U.S. C. 1313, were "appropriate" requirements of state law under 401(d), and sustained the stream flow condition imposed by respondents as necessary to ensure compliance with a "use" of the river as specified in those standards. As an alternative to their argument that 401(d) conditions must be discharge related, petitioners assert that *730 the state court erred when it sustained the stream flow condition under the "use" |
Justice Thomas | 1,994 | 1 | dissenting | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | when it sustained the stream flow condition under the "use" component of the State's water quality standards without reference to the corresponding "water quality criteria" contained in those standards. As explained above, petitioners' argument with regard to the scope of a State's authority to impose conditions under 401(d) is correct. I also find petitioners' alternative argument persuasive. Not only does the Court err in rejecting that 303 argument, in the process of doing so it essentially removes all limitations on a State's conditioning authority under 401. The Court states that, "at a minimum, limitations imposed pursuant to state water quality standards adopted pursuant to 303 are `appropriate' requirements of state law" under 401(d). Ante, at 713.[2] A water quality standard promulgated pursuant to 303 must "consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses." 33 U.S. C. 1313(c)(2)(A). The Court asserts that this language "is most naturally read to require that a project be consistent with both components, namely, the designated use and the water quality criteria." Ante, at 715. In the Court's view, then, the "use" of a body of water is independently enforceable through 401(d) without reference to the corresponding criteria. The Court's reading strikes me as contrary to common sense. It is difficult to see how compliance with a "use" of a body of water could be enforced without reference to the *731 corresponding criteria. In this case, for example, the applicable "use" is contained in the following regulation: "Characteristic uses shall include, but not be limited to, [s]almonid migration, rearing, spawning, and harvesting." Wash. Admin. Code (WAC) XXX-XXX-XXX(1)(b)(iii) (1986). The corresponding criteria, by contrast, include measurable factors such as quantities of fecal coliform organisms and dissolved gases in the water. XXX-XXX-XXX(1)(c)(i) and (ii).[3] Although the Act does not further address (at least not expressly) the link between "uses" and "criteria," the regulations promulgated under 303 make clear that a "use" is an aspirational goal to be attained through compliance with corresponding "criteria." Those regulations suggest that "uses" are to be "achieved and protected," and that "water quality criteria" are to be adopted to "protect the designated use[s]." 40 CFR 131.10(a), 131.11(a)(1) The problematic consequences of decoupling "uses" and "criteria" become clear once the Court's interpretation of 303 is read in the context of 401. In the Court's view, a State may condition the 401 certification "upon any limitations necessary to ensure compliance" with the "uses of the water body." Ante, at 713-714, 715 (emphasis added). Under the Court's interpretation, then, state environmental agencies |
Justice Thomas | 1,994 | 1 | dissenting | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | (emphasis added). Under the Court's interpretation, then, state environmental agencies may pursue, through 401, their water goals in any way they choose; the conditions imposed on certifications need not relate to discharges, nor to water quality criteria, nor to any objective or quantifiable standard, so long as they tend to make the water more suitable for the uses the State has chosen. In short, once a State is allowed to impose conditions on 401 certifications to protect "uses" in the abstract, 401(d) is limitless. To illustrate, while respondents in this case focused only on the "use" of the Dosewallips River as a fish habitat, this particular river has a number of other "[c]haracteristic uses," *732 including "[r]ecreation (primary contact recreation, sport fishing, boating, and aesthetic enjoyment)." WAC 173-201-045(1)(b)(v) (1986). Under the Court's interpretation, respondents could have imposed any number of conditions related to recreation, including conditions that have little relation to water quality. In Town of Summersville, for instance, the state agency required the applicant to "construct access roads and paths, low water stepping stone bridges, a boat launching facility, and a residence and storage building." These conditions presumably would be sustained under the approach the Court adopts today.[4] In the end, it is difficult to conceive of a condition that would fall outside a State's 401(d) authority under the Court's approach. III The Court's interpretation of 401 significantly disrupts the careful balance between state and federal interests that Congress struck in the Federal Power Act (FPA), 16 U.S. C. 791 et seq. Section 4(e) of the FPA authorizes the Federal Energy Regulatory Commission () to issue licenses for projects "necessary or convenient for the development, transmission, and utilization of power across, along, from, or in any of the streams over which Congress has jurisdiction." 16 U.S. C. 797(e). In the licensing process, must balance a number of considerations: "[I]n addition to the power and development purposes for which licenses are issued, [] shall give equal consideration to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational *733 opportunities, and the preservation of other aspects of environmental quality." Section 10(a) empowers to impose on a license such conditions, including minimum stream flow requirements, as it deems best suited for power development and other public uses of the waters. See 16 U.S. C. 803(a); In the Court emphasized 's exclusive authority to set the stream flow levels to be maintained by federally licensed hydroelectric projects. California, in order "to protect [a] stream's fish," |
Justice Thomas | 1,994 | 1 | dissenting | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | hydroelectric projects. California, in order "to protect [a] stream's fish," had imposed flow rates on a federally licensed project that were significantly higher than the flow rates established by In concluding that California lacked authority to impose such flow rates, we stated: "As Congress directed in FPA 10(a), set the conditions of the [project] license, including the minimum stream flow, after considering which requirements would best protect wildlife and ensure that the project would be economically feasible, and thus further power development. Allowing California to impose significantly higher minimum stream flow requirements would disturb and conflict with the balance embodied in that considered federal agency determination. has indicated that the California requirements interfere with its comprehensive planning authority, and we agree that allowing California to impose the challenged requirements would be contrary to congressional intent regarding the Commission's licensing authority and would constitute a veto of the project that was approved and licensed by" reaffirmed our decision in First Iowa Hydro-Electric in which we warned against "vest[ing] in [state authorities] *734 a veto power" over federal hydroelectric projects. Such authority, we concluded, could "destroy the effectiveness" of the FPA and "subordinate to the control of the State the `comprehensive' planning" with which the administering federal agency (at that time the Federal Power Commission) was charged. Today, the Court gives the States precisely the veto power over hydroelectric projects that we determined in and First Iowa they did not possess. As the language of 401(d) expressly states, any condition placed in a 401 certification, including, in the Court's view, a stream flow requirement, "shall become a condition on any Federal license or permit." 33 U.S. C. 1341(d) (emphasis added). Any condition imposed by a State under 401(d) thus becomes a "ter[m] of the license as a matter of law," Department of regardless of whether favors the limitation. Because of 401(d)'s mandatory language, federal courts have uniformly held that has no power to alter or review 401 conditions, and that the proper forum for review of those conditions is state court.[5] Section 401(d) conditions imposed by States are *735 therefore binding on Under the Court's interpretation, then, it appears that the mistake of the State in was not that it had trespassed into territory exclusively reserved to ; rather, it simply had not hit upon the proper devicethat is, the 401 certification through which to achieve its objectives. Although the Court notes in passing that "[t]he limitations included in the certification become a condition on any federal license," ante, at 708, it does not acknowledge or discuss the shift of power from |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.