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Justice Rehnquist | 1,973 | 19 | majority | Logue v. United States | https://www.courtlistener.com/opinion/108814/logue-v-united-states/ | 6463, containing the "acting on behalf of" language, with previous drafts, and states that " `Employee of the Government' in the present bill is defined to include uncompensated or temporary officers or employees of the United States." Hearings, The committee's observation thus affords some support to the Government's contention that the language is designed to cover special situations such as the "dollar-a-year" man who is in the service of the Government without pay, or an employee of another employer who is placed under direct supervision of a federal agency pursuant to contract or other arrangement. The dissenting judges in the Court of Appeals expressed the view that "when the Government decides that a particular individual should assume obligations and responsibilities virtually identical to those of a salaried Federal employee, there may very well be some persuasive basis for the suggestion that such an individual's breach of a specific statutory duty owed by the salaried employee to a specific class of persons should visit identical liability upon the United States." -1343. But we are not persuaded that employees of a contractor with the Government, whose physical performance is not subject to governmental supervision, are to be treated as "acting on behalf of" a federal agency *532 simply because they are performing tasks that would otherwise be performed by salaried employees of the Government. If this were to be the law, the exclusion of contractors from the definition of "Federal agency" in 2671 would be virtually meaningless, since it would be a rare situation indeed in which an independent contractor with the Government would be performing tasks that would not otherwise be performed by salaried Government employees.[8] While we therefore agree with the conclusion of the Court of Appeals that the Government was not liable for the negligence of the employees of Nueces County, we disagree with its implicit determination that such a conclusion ends the case. For the District Court imposed liability on the Government, not only for the negligent acts of employees of the Nueces County sheriff, but also for negligent acts of Deputy Marshal Bowers, who was concededly an employee of the Government. The District Court found that Bowers, knowing of the prisoner's suicidal tendencies, should have made "specific arrangements. for constant surveillance of the prisoner," and that his failure to do so was negligence. The Court of Appeals in that portion of its stated that "[t]he deputy marshal, accordingly, *533 violated no duty of safekeeping with respect to the deceased." But that conclusion appears to us to follow from the court's discussion of the nature of the intergovernmental |
Justice Burger | 1,972 | 12 | dissenting | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | If it appeared that the city of Emporia's operation of a separate school system would either perpetuate racial segregation in the schools of the Greensville County area or otherwise frustrate the dismantling of the dual system in that area, I would unhesitatingly join in reveing the judgment of the Court of Appeals and reinstating the judgment of the District Court. However, I do not believe the record supports such findings and can only conclude that the District Court abused its discretion in preventing Emporia from exercising its lawful right to provide for the education of its own children. By accepting the District Court's conclusion that Emporia's operation of its own schools would "impede the dismantling of the dual system," the Court necessarily implies that the result of the severance would be something less than unitary schools, and that segregated education would peist in some measure in the classrooms of the Greensville County area. The Court does not articulate the standard by which it reaches this conclusion, and its result far exceeds the contemplation of and all succeeding cases, including If the severance of the two systems were permitted to proceed, the assignment of children to schools would depend solely on their residence. County residents would attend county schools, and city residents would attend city schools. Assignment to schools would in no sense *472 depend on race. Such a geographic assignment pattern is prima facie consistent with the Equal Protection Clause. See aff'd, However, where a school system has been operated on a segregated basis in the past, and where ostensibly neutral attendance zones or district lines are drawn where none have existed before, we do not close our eyes to the facts in favor of theory. In the Court ruled that dual school systems must cease to exist in an objective sense as well as under the law. It was apparent that under the freedom-of-choice plan before the Court in Green, the mere elimination of mandatory segregation had provided no meaningful remedy. Green imposed on school boards the responsibility to "fashion steps which promise realistically to convert promptly to a system without a `white' school and a `Negro' school, but just schools." That, I believe, is precisely what would result if Emporia were permitted to operate its own school system schools neither Negro nor white, "but just schools." As separate systems, both Emporia and Greensville County would have a majority of Negro students, the former slightly more than half, the latter slightly more than two-thirds. In the words of the Court of Appeals, "[t]he Emporia city unit would not be |
Justice Burger | 1,972 | 12 | dissenting | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | Court of Appeals, "[t]he Emporia city unit would not be a white island in an otherwise black county." Moreover, the Negro majority in the remaining county system would only slightly exceed that of the entire county area including Emporia. It is undisputed that education would be conducted on a completely desegregated basis within the separate systems. Thus, the situation would in no sense be comparable to that where the creation of attendance zones within a single formerly segregated school system leaves an inordinate number *473 of one-race schools, such as were found in Rather than perpetuating a dual system, I believe the proposed arrangement would completely eliminate all traces of state-imposed segregation. It is quite true that the racial ratios of the two school systems would differ, but the elimination of such disparities is not the mission of desegregation. We stated in : "If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to revee. The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole." It can no more be said that racial balance is the norm to be sought, than it can be said that mere racial imbalance was the condition requiring a judicial remedy. The pointlessness of such a "racial balancing" approach is well illustrated by the facts of this case. The District Court and the petitione have placed great emphasis on the estimated six-percent increase in the proportion of Negro students in the county schools that would result from Emporia's withdrawal. I do not see how a difference of one or two children per class[1] would even be noticed, let alone how it would render *474 a school part of a dual system. We have seen that the normal movement of populations could bring about such shifts in a relatively short period of time. Obsession with such minor statistical differences reflects the gravely mistaken view that a plan providing more consistent racial ratios is somehow more unitary than one which tolerates a lack of racial balance. Since the goal is to dismantle dual school systems rather than to reproduce in each classroom a microcosmic reflection of the racial proportions of a given geographical area, there is no basis for saying that a plan providing a uniform racial balance is more effective or constitutionally preferred. School authorities may wish to puue that |
Justice Burger | 1,972 | 12 | dissenting | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | or constitutionally preferred. School authorities may wish to puue that goal as a matter of policy, but we have made it plain that it is not constitutionally mandated. See The Court disavows a "racial balancing" approach, and seeks to justify the District Court's ruling by relying on several additional facto thought to aggravate the effect of the racial disparity. The real significance of these additional facto is so negligible as to suggest that the racial imbalance itself may be what the Court finds most unacceptable. Fit, the Court raises the specter of resegregation resulting from the operation of separate school systems in the county area, but on the record in this case this is, at best, highly speculative. The Court suggests two reasons why such an additional racial shift could be anticipated with the existence of a separate school system for Emporia: white students residing in the county might abandon the public schools in favor of private academies, and white students residing in the city might leave private schools and enroll in the city school. In assessing these projections it is necessary to compare the nature of the proposed separate systems with *475 that of the court-ordered "pairing" system. Thus the fit possibility, that white students from the county might enter private schools, assumes that white families would be more likely to withdraw their children from public schools that are 72% Negro than from those that are 66% Negro. At most, any such difference would be marginal, and in fact it seems highly improbable that there would be any difference at all. The second possibility postulated by the Court seems equally unlikely; it assumes that families from the city who had previously withdrawn their children from the public schools due to impending desegregation, would return their children to public schools having more Negro than white pupils. The Court does not mention the possibility of some form of mass migration of white families into the city from the outlying county. Of coue, when there are adjoining school districts differing in their racial compositions, it is always conceivable that the differences will be accentuated by the so-called "white flight" phenomenon. But that danger seems remote in a situation such as this where there is a predominantly Negro population throughout the entire area of concern. Second, the Court attaches significance to the fact that the school buildings located in the county were formerly used as all-Negro schools and intimates that these facilities are of generally poorer quality than those in the city. But the District Court made no such finding of fact, and |
Justice Burger | 1,972 | 12 | dissenting | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | the District Court made no such finding of fact, and the record does not support the Court's suggestion on this point. Admittedly, some dissatisfaction was expressed with the sites of the elementary schools in the county, and only the city elementary school has an auditorium. However, all three elementary schools located in the county are more modern than any school building located in the city, and the county and city high school buildings are identical in every respect. *476 On a fair reading of the entire record, it can only be said that any differences between the educational facilities located in the city and those in the county are de minimis. Finally, the Court states that the process of desegregation would be impeded by the "advee psychological effect" that a separate city system would have on Negro students in the county. Here, again, the Court seeks to justify the District Court's discretionary action by reliance on a factor never considered by that court. More important, it surpasses the bounds of reason to equate the psychological impact of creating adjoining unitary school systems, both having Negro majorities, with the feelings of inferiority referred to in Brown I as engendered by a segregated school system. In Brown I the Court emphasized that the legal policy of separating children in schools solely according to their race inevitably generates a sense of inferiority. These observations were supported by common human experience and reinforced by psychological authority. Here the Court seeks to make a similar judgment in a setting where no child is accorded differing treatment on the basis of race. This wholly speculative observation by the Court is supported neither by common experience nor by scientific authority. Even giving maximum rational weight to all of the facto mentioned by the Court, I cannot conclude that separate systems for Emporia and Greensville County would be anything less than fully unitary and nonracial. The foundation and supetructure of the dual system would be dissolved, and the result would not factually preserve the separation of races that existed in the past. We noted in Swann "that the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law." 402 *. This reflects our consistent emphasis on the elimination of the discriminatory systems, rather than on mere numbe in particular schools. The proposed systems here would retain no "one-race, or virtually one-race schools," but more important, all vestiges of the discriminatory system would be removed. That is all |
Justice Burger | 1,972 | 12 | dissenting | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | of the discriminatory system would be removed. That is all the Constitution commands. It is argued that even if Emporia's operation of its own unitary school system would have been constitutionally permissible, it was nevertheless within the equitable discretion of the District Court to insist on a "more effective" plan of desegregation in the form of a county-wide school system. In the Court fit conferred on the district courts the responsibility to enforce the desegregation of the schools, if school authorities failed to do so, according to equitable remedial principles. While we have emphasized the flexibility of the power of district courts in this process, the invocation of remedial jurisdiction is not equivalent to having a school district placed in receivehip. It has been implicit in all of our decisions from Brown II to Swann, that if local authorities devise a plan that will effectively eliminate segregation in the schools, a district court must accept such a plan unless there are strong reasons why a different plan is to be preferred. A local school board plan that will eliminate dual schools, stop discrimination, and improve the quality of education ought not be cast aside because a judge can evolve some other plan that accomplishes the same result, or what he conside a preferable result, with a two percent, four percent, or six percent difference in racial composition. Such an approach gives controlling weight to sociological theories, not constitutional doctrine. This limitation on the discretion of the district courts involves more than polite deference to the role of local *478 governments. Local control is not only vital to continued public support of the schools, but it is of overriding importance from an educational standpoint as well. The success of any school system depends on a vast range of facto that lie beyond the competence and power of the courts. Curricular decisions, the structuring of grade levels, the planning of extracurricular activities, to mention a few, are matte lying solely within the province of school officials, who maintain a day-to-day supervision that a judge cannot. A plan devised by school officials is apt to be attuned to these highly relevant educational goals; a plan deemed preferable in the abstract by a judge might well overlook and thus undermine these primary concerns. The discretion of a district court is further limited where, as here, it deals with totally separate political entities. This is a very different case from one where a school board proposes attendance zones within a single school district or even one where a school district is newly formed within a |
Justice Burger | 1,972 | 12 | dissenting | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | one where a school district is newly formed within a county unit. Under Virginia law, Emporia is as independent from Greensville County as one State is from another. See City of ; This may be an anomaly in municipal jurisprudence, but it is Virginia's anomaly; it is of ancient origin, and it is not forbidden by the Constitution. To bar the city of Emporia from operating its own school system is to strip it of its most important governmental responsibility, and thus largely to deny its existence as an independent governmental entity. It is a serious step and, absent the facto that peuade me to the contrary in Scotland Neck,[2] decided today, I am unwilling to go that far. *479 Although the rights and powe of a bona fide political entity may not be used as a cloak for evasive action, neither can those powe be nullified by judicial intervention to achieve a unitary system in a particular way. When a plan devised by local authorities crosses the threshold of achieving actual desegregation, it is not for the district courts to ovetep local prerogatives and insist on some other alternative. Judicial power ends when a dual school system has ceased to exist. Since Emporia's operation of a separate school system would not compromise the goal of eliminating dual schools, there is no basis for requiring Emporia to demonstrate the necessity of its decision. The "heavy burden" test referred to in Green applies only where there is serious reason to doubt the efficacy of a school board's plan as a means of achieving desegregation, and there is no basis for such doubt here. Nonetheless, the Court's treatment of Emporia's reasons for establishing a separate system merits comment. The Court makes light of Emporia's desire to create a high-quality, unitary school system for the children of its citizens. In so doing, the Court disregards the following explicit finding of the District Court: "The city clearly contemplates a superior quality educational program. It is anticipated that the cost will be such as to require higher tax payments by city residents. A kindergarten program, ungraded primary levels, health services, adult education, and a low pupil-teacher ratio are included in the plan" Furthermore, the Court suggests that if Emporia were in fact to provide the top-flight educational program the District Judge anticipated, it could only woen the quality of education in the remaining county schools. To be sure, there was cause for concern over the relative quality of education offered in the county schools; *480 as the District Court observed, county officials did "not embrace |
Justice Burger | 1,972 | 12 | dissenting | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | as the District Court observed, county officials did "not embrace the court-ordered unitary plan with enthusiasm." The record shows that prior to the 1969-1970 school year, per-pupil expenditures in Greensville County lagged behind the state median, and that the increase in the county school budget for the 1969-1970 school year was insufficient to keep abreast of inflation, not to mention increased transportation costs. But the city of Emporia was in no position to alleviate this problem for the county. The county had previously refused to allow the city to participate in joint administration of the schools, and the city had absolutely no power to affect the level of funding for the county schools. Under the contract, Emporia was the purchaser of whatever educational services the county had to offer. Out of undetandable concern for the quality of these services, it sought to alter the contractual arrangement in order to provide better unitary schools. There is no basis on this record for assuming that the quality of education in the county schools was likely to suffer further due to Emporia's withdrawal. The Court relies on the District Court's finding that "the desire of the city leade, coupled with their obvious leadehip ability, is and will be an important facet in the successful operation of any court-ordered plan." The District Court made this finding despite the fact that the county had refused to administer the schools jointly with the city, and despite uncontradicted evidence that there was no line of communications between the city and county governments, that the city government had been unable to get any cooperation from the county government, and that there was an atmosphere of active antagonism between the two governments. With all deference to the trier of fact, I cannot accept this finding as supported by evidence in the record of this case. It appea that the District Court wanted *481 that "obvious leadehip ability" of Emporia's citizens to exert its influence on the more reluctant leadehip in the county. This is a laudable goal in the abstract, but the courts must adjust their remedies to the facts of each case as they bear on the central problem of eliminating a dual system. Although acknowledging Emporia's need to have some "[d]irect control over decisions vitally affecting the education of [its] children," the Court states that since Emporia found the contractual arrangement tolerable prior to 1969, it should not now be heard to complain. However, the city did not enter that contract of its own free choice. From the time Emporia became a city, consideration was given to |
Justice Burger | 1,972 | 12 | dissenting | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | the time Emporia became a city, consideration was given to the formation of a separate school system, and it was at least thought necessary that the city participate in administration of the county school system. After the county rejected the city's proposal for joint administration, the county threatened to terminate educational services for city children unless the city entered an agreement by April 30, 1968. Only then under virtual duressdid the city submit to the contractual arrangement. It was not until June 1969 that the city was advised by its counsel that the agreement might be illegal. Steps were then taken to terminate the strained relationship. Recognizing the tensions inherent in a contractual arrangement put together under these conditions, the Court indicates that Emporia might be permitted to operate a separate school system at some future time. The Court does not explain how the passage of time will substantially alter the situation that existed at the time the District Court entered its injunction. If, as the Court states, desegregation in the county was destined to fail if Emporia established its own school system in 1969, it is difficult to undetand why it would not be an undue risk to allow separation in the future. *482 The more realistic view is that there was never such a danger, and that the District Court had no cause to disregard Emporia's desire to free itself from its ties to Greensville County. However, even on the Court's terms, I assume that Emporia could go back to the District Court tomorrow and renew its request to operate a separate system. The county-wide plan has been in effect for the past three yea, and the city should now be relieved of the court-imposed duty to purchase whatever quality of education the county sees fit to provide. Finally, some discussion is warranted of the relevance of discriminatory purpose in cases such as these. It is, of coue, correct that "[t]he measure of any desegregation plan is its effectiveness," and that a plan that stops short of dismantling a dual school system cannot be redeemed by benevolent motives. But it is also true that even where a dual system has in fact been dismantled, as it plainly has been in Emporia, we must still be alert to make sure that ostensibly nondiscriminatory actions are not designed to exclude children from schools because of their race. We are well aware that the progress of school desegregation since 1954 has been hampered by peistent resistance and evasion in many places. Thus, the normal judicial reluctance to probe the motives or |
Justice Burger | 1,972 | 12 | dissenting | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | Thus, the normal judicial reluctance to probe the motives or purposes underlying official acts must yield to the realities in this very sensitive area of constitutional adjudication. Compare with There is no basis for concluding, on this record, that Emporia's decision to operate a separate school system was the manifestation of a discriminatory purpose. The strongest finding made by the District Court was that race was "in a sense" a factor in the city's decision; read in context, this ambiguous finding does not relate to any *483 invidious consideration of race. The District Court relied solely on the following testimony of the chairman of the city school board: "Race, of coue, affected the operation of the schools by the county, and I again say, I do not think, or we felt that the county was not capable of putting the monies in and the effort and the leadehip into a system that would effectively make a unitary system work" I cannot view this kind of consideration of race as discriminatory or even objectionable. The same doubts about the county's commitment to the operation of a high-quality unitary system would have come into play even if the racial composition of Emporia were precisely the same as that of the entire county area, including Emporia. Nor is this a case where we can presume a discriminatory purpose from an obviously discriminatory effect. Cf. We are not confronted with an awkward gerrymander or striking shift in racial proportions. The modest difference between the racial composition of Emporia's proposed separate school system and that of the county as a whole affords no basis for an inference of racial motivation. And while it seems that the more cumbeome features of the District Court's plan hastened the city's inevitable decision to operate a separate unitary school system, this was not because of any desire to manipulate the racial balance of its schools. Read as a whole, this record suggests that the District Court, acting before our decision in Swann, was reaching for some hypothetical perfection in racial balance, rather than the elimination of a dual school system. To put it in the simplest terms, the Court, in adopting the District Court's approach, goes too far. |
per_curiam | 1,985 | 200 | per_curiam | Pennsylvania v. Goldhammer | https://www.courtlistener.com/opinion/111537/pennsylvania-v-goldhammer/ | The Supreme Court of Pennsylvania held below that the Double Jeopardy Clause of the Fifth Amendment of the *29 United States Constitution barred the resentencing of respondent. We grant certiorari, and, on the basis of our decision in United we reverse and remand. The motion of respondent for leave to proceed in forma pauperis is granted. Respondent was convicted in the Philadelphia Court of Common Pleas on 56 counts of forgery and 56 counts of theft. He was sentenced by the trial court to two-to-five years of imprisonment on a single theft count and five years of probation on one of the forgery counts. Sentence was suspended on the remaining counts. Respondent appealed all 112 convictions to the Superior Court of Pennsylvania. That court ruled that the statute of limitations barred the prosecution of 34 of the theft counts, including the count on which respondent had received his sentence of imprisonment. On appeal by the Commonwealth, the Supreme Court of Pennsylvania affirmed the Superior Court's ruling on the statute of limitations. In addition, the Supreme Court of Pennsylvania denied petitioner's request that the case be remanded to the trial court for resentencing on the remaining 22 theft counts. The court acknowledged that a defendant could be twice sentenced for the same count when there was an intervening retrial at the request of the defendant, but it held that resentencing on the counts which were affirmed after an appeal by the Commonwealth is barred by the Double Jeopardy Clause when the sentence of imprisonment on another count is -1315, citing North The Pennsylvania Supreme Court's rationale is inconsistent with the rationale of the holding of this Court in In we upheld the constitutionality of 18 U.S. C. 3576, which allows the United States to appeal to the court of appeals the sentence given a "dangerous special offender" by a district court, and allows the court *30 of appeals to affirm the sentence, impose a different sentence, or remand to the district court for further sentencing proceedings. We noted that the decisions of this Court "clearly establish that a sentenc[ing in a noncapital case] does not have the qualities of constitutional finality that attend an acquittal." In North we held that a court could sentence a defendant on retrial more severely than after the first trial. Any distinction between the situation in and that in is "no more than a `conceptual nicety.' " (quoting ). Indeed, a resentencing after an appeal intrudes even less upon the values protected by the Double Jeopardy Clause than does a resentencing after retrial: "[T]he basic design |
per_curiam | 1,985 | 200 | per_curiam | Pennsylvania v. Goldhammer | https://www.courtlistener.com/opinion/111537/pennsylvania-v-goldhammer/ | Clause than does a resentencing after retrial: "[T]he basic design of the double jeopardy provision [is to] bar repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent. These considerations, however, have no significant application to the prosecution's statutorily granted right to review a sentence. This limited appeal does not involve a retrial or approximate the ordeal of a trial on the basic issue of guilt or innocence." In a federal statute clearly allowed the appellate review of the sentences at issue. The Court noted that, in light of that statute, the defendant could not claim any expectation of finality in his original 449 U.S., 139. Here, because the Pennsylvania Supreme Court held that resentencing was barred by the Double Jeopardy Clause, there was no need to consider below whether the Pennsylvania laws in effect at the time allowed the State to obtain review of the sentences on the counts for which the sentence had been suspended. We reverse and remand the *31 case to the Supreme Court of Pennsylvania for a determination of that issue, and for further consideration of this case in light of Reversed and remanded. JUSTICE BRENNAN dissents from summary disposition and would vote to deny the petition. JUSTICE MARSHALL dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See ; JUSTICE BLACKMUN would grant the petition and set the case for argument. |
Justice Stevens | 2,003 | 16 | majority | Beneficial Nat. Bank v. Anderson | https://www.courtlistener.com/opinion/130139/beneficial-nat-bank-v-anderson/ | The question in this case is whether an action filed in a state court to recover damages from a national bank for allegedly charging excessive interest in violation of both "the common law usury doctrine" and an Alabama usury statute *4 may be removed to a federal court because it actually arises under federal law. We hold that it may. I Respondents are 26 individual taxpayers who made pledges of their anticipated tax refunds to secure short-term loans obtained from petitioner Beneficial National Bank, a national bank chartered under the National Bank Respondents brought suit in an Alabama court against the bank and the two other petitioners that arranged the loans, seeking compensatory and punitive damages on the theory, among others, that the bank's interest rates were usurious. App. 18-30. Their complaint did not refer to any federal law. Petitioners removed the case to the United States District Court for the Middle District of Alabama. In their notice of removal they asserted that the National Bank Rev. Stat. 5197, as amended, 12 U.S. C. 85,[1] is the exclusive provision *5 governing the rate of interest that a national bank may lawfully charge, that the rates charged to respondents complied with that provision, that Rev. Stat. 5198, 12 U.S. C. 86, provides the exclusive remedies available against a national bank charging excessive interest,[2] and that the removal statute, 28 U.S. C. 1441, therefore applied. App. 31-35. The District Court denied respondents' motion to remand the case to state court but certified the question whether it had jurisdiction to proceed with the case to the Court of Appeals pursuant to 28 U.S. C. 1292(b). A divided panel of the Eleventh Circuit reversed. The majority that under our "well-pleaded complaint" rule, removal is generally not permitted unless the complaint expressly alleges a federal claim and that the narrow exception from that rule known as the "complete preemption doctrine" did not apply because it could "find no clear congressional intent to permit removal under 85 and 86." Because this holding conflicted with an Eighth Circuit decision, Krispin we granted certiorari. II A civil action filed in a state court may be removed to federal court if the claim is one "arising under" federal law. 1441(b). To determine whether the claim arises under federal law, we examine the "well pleaded" allegations of the complaint and ignore potential defenses: "[A] suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not |
Justice Stevens | 2,003 | 16 | majority | Beneficial Nat. Bank v. Anderson | https://www.courtlistener.com/opinion/130139/beneficial-nat-bank-v-anderson/ | based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of the Constitution of the United States." Louisville & Nashville R. ; see Thus, a defense that relies on the preclusive effect of a prior federal judgment, or the pre-emptive effect of a federal statute, Franchise Tax of will not provide a basis for removal. As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim. Congress has, however, created certain exceptions to that rule. For example, the Price-Anderson contains an unusual pre-emption provision, 42 U.S. C. 2014(hh), that not only gives federal courts jurisdiction over tort actions arising out of nuclear accidents but also expressly provides for removal of such actions brought in state court even when they assert only state-law claims. See El Paso Natural Gas We have also construed 301 of the Labor Management Relations 1947 (LMRA), 29 U.S. C. 185, as not only pre-empting state law but also authorizing removal of actions *7 that sought relief only under state law. Avco We later explained that holding as resting on the unusually "powerful" pre-emptive force of 301: "The Court of Appeals and we affirmed, that the petitioner's action `arose under' 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy available only under state law. The necessary ground of decision was that the pre-emptive force of 301 is so powerful as to displace entirely any state cause of action `for violation of contracts between an employer and a labor organization.' Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of 301. Avco stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily `arises under' federal law." Franchise Tax -24 Similarly, in Metropolitan Life Ins. we considered whether the "complete preemption" approach adopted in Avco also supported the removal of state common-law causes of action asserting improper processing of benefit claims under a plan regulated by the Employee Retirement Income Security of 1974 (ERISA), 29 U.S. C. 1001 et seq. For two reasons, we that removal was proper even though the complaint purported to |
Justice Stevens | 2,003 | 16 | majority | Beneficial Nat. Bank v. Anderson | https://www.courtlistener.com/opinion/130139/beneficial-nat-bank-v-anderson/ | that removal was proper even though the complaint purported to raise only state-law claims. First, the statutory text in 502(a), 29 U.S. C. 1132, not only provided an express federal remedy for the plaintiffs' claims, but also in its jurisdiction subsection, 502(f), used language similar to the statutory language construed in Avco, thereby indicating *8 that the two statutes should be construed in the same Second, the legislative history of ERISA unambiguously described an intent to treat such actions "as arising under the laws of the United States in similar fashion to those brought under section 301 of the Labor-Management Relations of 1947." Thus, a state claim may be removed to federal court in only two circumstanceswhen Congress expressly so provides, such as in the Price-Anderson or when a federal statute wholly displaces the state-law cause of action through complete pre-emption.[3] When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law. This claim is then removable under 28 U.S. C. 1441(b), which authorizes any claim that "arises under" federal law to be removed to federal court. In the two categories of cases[4] where this Court has found complete preemptioncertain causes of action under the LMRA and ERISAthe federal statutes at issue provided the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action. See 29 U.S. C. 1132 (setting forth procedures and remedies for civil claims under ERISA); 185 (describing procedures and remedies for suits under the LMRA). *9 III Count IV of respondents' complaint sought relief for "usury violations" and claimed that petitioners "charged excessive interest in violation of the common law usury doctrine" and violated "Alabama Code 8-8-1, et seq. by charging excessive interest." App. 28. Respondents' complaint thus expressly charged petitioners with usury. Metropolitan Life, Avco, and Franchise Tax Board provide the framework for answering the dispositive question in this case: Does the National Bank provide the exclusive cause of action for usury claims against national banks? If so, then the cause of action necessarily arises under federal law and the case is removable. If not, then the complaint does not arise under federal law and is not removable. Sections 85 and 86 serve distinct purposes. The former sets forth the substantive limits on the rates of interest that national banks may charge. The latter sets forth the elements of a usury claim against a national bank, provides for |
Justice Stevens | 2,003 | 16 | majority | Beneficial Nat. Bank v. Anderson | https://www.courtlistener.com/opinion/130139/beneficial-nat-bank-v-anderson/ | of a usury claim against a national bank, provides for a 2-year statute of limitations for such a claim, and prescribes the remedies available to borrowers who are charged higher rates and the procedures governing such a claim. If, as petitioners asserted in their notice of removal, the interest that the bank charged to respondents did not violate 85 limits, the statute unquestionably pre-empts any common-law or Alabama statutory rule that would treat those rates as usurious. The section would therefore provide the petitioners with a complete federal defense. Such a federal defense, however, would not justify removal. Caterpillar Only if Congress intended 86 to provide the exclusive cause of action for usury claims against national banks would the statute be comparable to the provisions that we construed in the Avco and Metropolitan Life cases.[5] *10 In a series of cases decided shortly after the was passed, we endorsed that approach. In Farmers' and Mechanics' Nat. we rejected the borrower's attempt to have an entire debt forfeited, as authorized by New York law, stating that the various provisions of 85 and 86 "form a system of regulations [a]ll the parts [of which] are in harmony with each other and cover the entire subject," so that "the State law would have no bearing whatever upon the case." We also observed that "[i]n any view that can be taken of [ 86], the power to supplement it by State legislation is conferred neither expressly nor by implication." In we stated that "federal law completely defines what constitutes the taking of usury by a national bank, referring to the state law only to determine the maximum permitted rate." See also (The "statutes of Ohio and Indiana upon the subject of usury cannot affect the case" because the "creates a new right" that is "exclusive"); ("[T]he definition of usury and the penalties affixed thereto must be determined by the National Banking and not by the law of the State"). In addition to this Court's longstanding and consistent construction of the National Bank as providing an exclusive federal cause of action for usury against national banks, this Court has also recognized the special nature of federally chartered banks. Uniform rules limiting the liability of national banks and prescribing exclusive remedies for their overcharges are an integral part of a banking system that needed protection from "possible unfriendly State legislation." The same federal interest that protected national banks from the state taxation that Chief Justice Marshall characterized as the "power to destroy," supports the established interpretation of 85 and 86 that gives those provisions the requisite |
Justice White | 1,986 | 6 | majority | At&T Technologies, Inc. v. Communications Workers | https://www.courtlistener.com/opinion/111623/att-technologies-inc-v-communications-workers/ | The issue presented in this case is whether a court asked to order arbitration of a grievance filed under a collective-bargaining agreement must first determine that the parties intended to arbitrate the dispute, or whether that determination is properly left to the arbitrator I AT&T Technologies, Inc (AT&T or the Company), and the Communications of America (the Union) are parties to a collective-bargaining agreement which covers telephone equipment installation workers Article 8 of this agreement *645 establishes that "differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder" must be referred to a mutually agreeable arbitrator upon the written demand of either party This Article expressly does not cover disputes "excluded from arbitration by other provisions of this contract"[1] Article 9 provides that, "subject to the limitations contained in the provisions of this contract, but otherwise not subject to the provisions of the arbitration clause," AT&T is free to exercise certain management functions, including the hiring and placement of employees and the termination of employment[2] "When lack of work necessitates Layoff," Article 20 prescribes the order in which employees are to be laid off[3] On September 17, 1981, the Union filed a grievance challenging AT&T's decision to lay off 79 installers from its Chicago base location The Union claimed that, because there was no lack of work at the Chicago location, the *646 planned layoffs would violate Article 20 of the agreement Eight days later, however, AT&T laid off all 79 workers, and soon thereafter, the Company transferred approximately the same number of installers from base locations in Indiana and Wisconsin to the Chicago base AT&T refused to submit the grievance to arbitration on the ground that under Article 9 the Company's decision to lay off workers when it determines that a lack of work exists in a facility is not arbitrable The Union then sought to compel arbitration by filing suit in federal court pursuant to 301(a) of the Labor Management Relations Act, 29 US C 185(a)[4]Communications of No 82 C 772 (ND Ill, Nov 18, 1983) Ruling on cross-motions for summary judgment, the District Court reviewed the provisions of Articles 8, 9, and 20, and set forth the parties' arguments as follows: "Plaintiffs interpret Article 20 to require that there be an actual lack of work prior to employee layoffs and argue that there was no such lack of work in this case Under plaintiffs' interpretation, Article 20 would allow the union to take to arbitration the threshold issue of whether the layoffs were justified by a lack of work Defendant |
Justice White | 1,986 | 6 | majority | At&T Technologies, Inc. v. Communications Workers | https://www.courtlistener.com/opinion/111623/att-technologies-inc-v-communications-workers/ | the layoffs were justified by a lack of work Defendant interprets Article 20 as merely providing a sequence for any layoffs which management, in its exclusive judgment, determines are necessary Under defendant's interpretation, Article 20 would not allow for an arbitrator to decide whether the layoffs were warranted by a lack of work but only whether the company *647 followed the proper order in laying off the employees" App to Pet for Cert 10A Finding that "the union's interpretation of Article 20 was at least `arguable,' " the court held that it was "for the arbitrator, not the court to decide whether the union's interpretation has merit," and accordingly, ordered the Company to arbitrate at 11A The Court of Appeals for the Seventh Circuit affirmed Communications of The Court of Appeals understood the District Court to have ordered arbitration of the threshold issue of arbitrability The court acknowledged the "general rule" that the issue of arbitrability is for the courts to decide unless the parties stipulate otherwise, but noted that this Court's decisions in and caution courts to avoid becoming entangled in the merits of a labor dispute under the guise of deciding arbitrability From this observation, the court announced an "exception" to the general rule, under which "a court should compel arbitration of the arbitrability issue where the collective bargaining agreement contains a standard arbitration clause, the parties have not clearly excluded the arbitrability issue from arbitration, and deciding the issue would entangle the court in interpretation of substantive provisions of the collective bargaining agreement and thereby involve consideration of the merits of the dispute" All of these factors were present in this case Article 8 was a "standard arbitration clause," and there was "no clear, unambiguous exclusion from arbitration of terminations predicated by a lack of work determination" Moreover, although there were "colorable arguments" on both sides of the exclusion issue, if the court were to decide this question it would have to interpret not only Article 8, but Articles 9 and 20 as well, both of which are "substantive *648 provisions of the Agreement" The court thus "decline[d] the invitation to decide arbitrability," and ordered AT&T "to arbitrate the arbitrability issue" The court admitted that its exception was "difficult to reconcile with the Supreme Court's discussion of a court's duty to decide arbitrability in [John Wiley & Sons, ]" The court asserted, however, that the discussion was "dicta," and that this Court had reopened the issue in Nolde Brothers, We granted certiorari, 474 US 814 and now vacate the Seventh Circuit's decision and remand for a determination |
Justice White | 1,986 | 6 | majority | At&T Technologies, Inc. v. Communications Workers | https://www.courtlistener.com/opinion/111623/att-technologies-inc-v-communications-workers/ | vacate the Seventh Circuit's decision and remand for a determination of whether the Company is required to arbitrate the Union's grievance II The principles necessary to decide this case are not new They were set out by this Court over 25 years ago in a series of cases known as the Steelworkers Trilogy: and Steelworkers v Enterprise Wheel & Car Corp, 363 US 593 These precepts have served the industrial relations community well, and have led to continued reliance on arbitration, rather than strikes or lockouts, as the preferred method of resolving disputes arising during the term of a collective-bargaining agreement We see no reason either to question their continuing validity, or to eviscerate their meaning by creating an exception to their general applicability The first principle gleaned from the Trilogy is that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit" Warrior & ; American Mfg Co, (BRENNAN, J, concurring) This axiom recognizes the fact that arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to *649 arbitration Gateway Coal Co v Mine 414 US 368, The second rule, which follows inexorably from the first, is that the question of arbitrability whether a collective-bargaining agreement creates a duty for the parties to arbitrate the particular grievance is undeniably an issue for judicial determination Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator Warrior & -583 See Operating Engineers v Flair Builders, Inc, 406 US 487, ; Atkinson v Sinclair Refining Co, 370 US 238, overruled in part on other grounds, Boys Markets, Inc v Retail Clerks, 398 US 235 Accord, Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc, 473 US 614, The Court expressly reaffirmed this principle in John Wiley & Sons, The "threshold question" there was whether the court or an arbitrator should decide if arbitration provisions in a collective-bargaining contract survived a corporate merger so as to bind the surviving corporation The Court answered that there was "no doubt" that this question was for the courts "Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties' The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede |
Justice White | 1,986 | 6 | majority | At&T Technologies, Inc. v. Communications Workers | https://www.courtlistener.com/opinion/111623/att-technologies-inc-v-communications-workers/ | of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty" -547 The third principle derived from our prior cases is that, in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims Whether "arguable" or not, indeed even if it appears to the court to be *650 frivolous, the union's claim that the employer has violated the collective-bargaining agreement is to be decided, not by the court asked to order arbitration, but as the parties have agreed, by the arbitrator "The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious" American Mfg Co, 363 U S, at 568 Finally, it has been established that where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that "[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute Doubts should be resolved in favor of coverage" Warrior & 363 U S, -583 See also Gateway Coal Co v Mine Such a presumption is particularly applicable where the clause is as broad as the one employed in this case, which provides for arbitration of "any differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder " In such cases, "[i]n the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail" Warrior & This presumption of arbitrability for labor disputes recognizes the greater institutional competence of arbitrators in interpreting collective-bargaining agreements, "furthers the national labor policy of peaceful resolution of labor disputes and thus best accords with the parties' presumed objectives in pursuing collective bargaining" Schneider Moving & Storage Co v Robbins, 466 US 364, See Gateway Coal Co, The willingness of parties to enter into agreements that provide for arbitration of specified disputes would be "drastically reduced," however, if a labor arbitrator had the "power to determine his own jurisdiction " Cox, Reflections Upon Labor Arbitration, 72 Harv L Rev 1482, |
Justice White | 1,986 | 6 | majority | At&T Technologies, Inc. v. Communications Workers | https://www.courtlistener.com/opinion/111623/att-technologies-inc-v-communications-workers/ | Cox, Reflections Upon Labor Arbitration, 72 Harv L Rev 1482, Were this the applicable rule, an arbitrator would not be constrained to resolve only those disputes that the parties have agreed in advance to settle by arbitration, but, instead, would be empowered "to impose obligations outside the contract limited only by his understanding and conscience" Ibid This result undercuts the longstanding federal policy of promoting industrial harmony through the use of collective-bargaining agreements, and is antithetical to the function of a collective-bargaining agreement as setting out the rights and duties of the parties With these principles in mind, it is evident that the Seventh Circuit erred in ordering the parties to arbitrate the arbitrability question It is the court's duty to interpret the agreement and to determine whether the parties intended to arbitrate grievances concerning layoffs predicated on a "lack of work" determination by the Company If the court determines that the agreement so provides, then it is for the arbitrator to determine the relative merits of the parties' substantive interpretations of the agreement It was for the court, not the arbitrator, to decide in the first instance whether the dispute was to be resolved through arbitration The Union does not contest the application of these principles to the present case Instead, it urges the Court to examine the specific provisions of the agreement for itself and to affirm the Court of Appeals on the ground that the parties had agreed to arbitrate the dispute over the layoffs at issue here But it is usually not our function in the first instance to construe collective-bargaining contracts and arbitration clauses, or to consider any other evidence that might unmistakably demonstrate that a particular grievance was not to *652 be subject to arbitration The issue in the case is whether, because of express exclusion or other forceful evidence, the dispute over the interpretation of Article 20 of the contract, the layoff provision, is not subject to the arbitration clause That issue should have been decided by the District Court and reviewed by the Court of Appeals; it should not have been referred to the arbitrator The judgment of the Court of Appeals is vacated, and the case is remanded for proceedings in conformity with this opinion It is so ordered |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | I agree with THE CHIEF JUSTICE th8 U.S. C. as incorporated by the Immigration and Nationality Act (INA), is not unconstitutionally vague. Section 16(b) lacks many of the features that caused this Court to invalidate the residual clause of the Armed Career Criminal Act (ACCA) in v. United States, 576 U. S. ACCA’s residual clause—a provision that this Court had applied four times before —was not unconstitu tionally vague either. See at (THOMAS, J., concur ring in judgment) (slip op., ); at – (ALITO, J., dissenting) (slip op., 3–17). But if the Court insists on adhering to it should at least take at its word that the residual clause was vague due to the “ ‘sum’ ” of its specific features. at (majority opinion) (slip op., at ). By ignoring this limitation, the Court jettisons ’s assurance that its holding would not jeopize “dozens of federal and state criminal laws.” at (slip op., 2). While THE CHIEF JUSTICE persuasively explains why respondent cannot prevail under our precedents, I write separately to make two additional points. First, I continue to doubt that our practice of striking down statutes as 2 SESSIONS v. DIMAYA THOMAS, J., dissenting unconstitutionally vague is consistent with the original meaning of the Due Process Clause. See at – (opinion of THOMAS, J.) (slip op., at 7–18). Second, if the Court thinks that is unconstitutionally vague be cause of the “categorical approach,” see ante, at 6–11, then the Court should abandon that approach—not insist on reading it into statutes and then strike them down. Ac cordingly, I respectfully dissent. I I continue to harbor doubts about whether the vague ness doctrine can be squared with the original meaning of the Due Process Clause—and those doubts are only ampli fied in the removal context. I am also skeptical that the vagueness doctrine can be justified as a way to prevent delegations of core legislative power in this context. But I need not resolve these questions because, if the vagueness doctrine has any basis in the Due Process Clause, it must be limited to cases in which the statute is unconstitution ally vague as applied to the person challenging it. That is not the case for respondent, whose prior convictions for first-degree residential burglary in California fall comfort ably within the scope of A The Fifth Amendment’s Due Process Clause provides that no person shall be “deprived of life, liberty, or prop- erty, without due process of law.” Section 16(b), as incorpo rated by the INA, cannot violate this Clause unless the following propositions are true: The Due Process Clause |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | unless the following propositions are true: The Due Process Clause requires federal statutes to provide certain minimal pro cedures, the vagueness doctrine is one of those procedures, and the vagueness doctrine applies to statutes governing the removal of aliens. Although I need not resolve any of these propositions today, each one is questionable. I will address them in turn. Cite as: 584 U. S. (2018) 3 THOMAS, J., dissenting 1 First, the vagueness doctrine is not legitimate unless the “law of the land” view of due process is incorrect. Under that view, due process “require[s] only that our Government proceed according to written constitu tional and statutory provision[s] before depriving someone of life, liberty, or property.” Nelson v. Colorado, 581 U. S. n. 1 (2017) (THOMAS, J., dissenting) (slip op., n. 1) (internal quotation marks omitted). More than a half century after the founding, the Court rejected this view of due process in Murray’s See (hold ing that the Due Process Clause “is a restraint on the legislative as well as on the executive and judicial powers of the government”). But the textual and historical sup port for the law-of-the-land view is not insubstantial.1 2 Even under Murray’s the vagueness doctrine is legitimate only if it is a “settled usag[e] and mod[e] of proceeding existing in the common and statute law of England, before the emigration of our ancestors.” at 277. That proposition is dubious. Until the end of the 19th century, “there is little indication that anyone believed that courts had the power under the Due Process Claus[e] to nullify statutes on [vagueness] ground[s].” at (opinion of THOMAS, J.) (Black, J., dissenting); Rosenkranz, The Objects of the Constitution, 63 Stan. L. Rev. 05, 41–43 (2011); Berger, “Law of the Land” Reconsid ered, 2–17 (1979); Corwin, The Doctrine of Due Process of Law Before the Civil War, 368–373 (1911); see also 4 The Papers of Alexander Hamilton 35 (Syrett & Cooke eds. 1962) (“The words ‘due process’ have a precise technical import, and can never be referred to an act of legislature”). 4 SESSIONS v. DIMAYA THOMAS, J., dissenting 11). That is not because Americans were unfamiliar with vague laws. Rather, early American courts, like their English predecessors, addressed vague laws through statutory construction instead of constitutional law. See Note, Void for Vagueness: An Escape From Statutory Interpretation, Ind. L. J. 272, 274–279 They invoked the rule of lenity and declined to apply vague penal statutes on a case-by-case basis. See 576 U. S., at – (opinion of THOMAS, J.) (slip op., at 7–); e.g., ante, at 5–6, and n. |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | (slip op., at 7–); e.g., ante, at 5–6, and n. 1 (GORSUCH, J., concurring in part and concurring in judgment) (collecting cases).2 The mod ern vagueness doctrine, which claims the judicial author ity to “strike down” vague legislation on its face, did not emerge until the turn of the 20th century. See 576 U. S., at – (opinion of THOMAS, J.) (slip op., at 11–13). The difference between the traditional rule of lenity and —————— 2 Before the 19th century, when virtually all felonies were punishable by death, English courts would sometimes go to extremes to find a reason to invoke the rule of lenity. See Hall, Strict or Liberal Construc tion of Penal Statutes, ; e.g., ante, at 4– 7 (GORSUCH, J., concurring in part and concurring in judgment) (citing Blackstone’s discussion of a case about “cattle”). As the death penalty became less common, courts on this side of the Atlantic tempered the rule of lenity, clarifying that the rule requires an “ambiguity” in the text and cannot be used “to defeat the obvious intention of the legisla ture.” United Early American courts also declined to apply nonpenal statutes that were “unintelligible.” v. United States, 576 U. S. n. 3 (2014) (THOMAS, J., concurring in judgment) (slip op., at n. 3); e.g., ante, at 5–6, and n. 1 (opinion of GORSUCH, J.) (collecting cases). Like lenity, however, this practice reflected a principle of statutory construc tion that was much narrower than the modern constitutional vagueness doctrine. Unintelligible statutes were considered inoperative because they were impossible to apply to individual cases, not because they were unconstitutional for failing to provide “fair notice.” See 576 U. S., at n. 3 (opinion of THOMAS, J.) (slip op., at n. 3). Cite as: 584 U. S. (2018) 5 THOMAS, J., dissenting the modern vagueness doctrine is not merely semantic. Most obviously, lenity is a tool of statutory construction, which means States can abrogate it—and many have. Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 752–754 ; see also Scalia, Assorted Cans of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 583 )). The vagueness doctrine, by contrast, is a rule of constitutional law that States cannot alter or abolish. Lenity, moreover, applies only to “penal” statutes, 1 Blackstone, Commentaries on the Laws of England (1765), but the vagueness doctrine extends to all regulations of individual conduct, both penal and nonpenal, 576 U. S., at (opinion of THOMAS, J.) (slip op., at 6); see also Note, Indefinite Crite ria of Definiteness in Statutes, (1931) (explaining that the |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | Crite ria of Definiteness in Statutes, (1931) (explaining that the modern vagueness doctrine was not merely an “extension of the rule of strict construc tion of penal statutes” because it “expressly include[s] civil statutes within its scope,” reflecting a “regrettable disre g” for legislatures).3 In short, early American courts were not applying the modern vagueness doctrine by another name. They were engaged in a fundamentally different enterprise. Tellingly, the modern vagueness doctrine emerged at a time when this Court was actively interpreting the Due —————— 3 This distinction between penal and nonpenal statutes would be decisive here because, traditionally, civil deportation laws were not considered penal. See ; Fong Yue Al- though this Court has applied a kind of strict construction to civil deportation laws, that practice did not emerge until the mid-20th century. See Fong Haw 6 SESSIONS v. DIMAYA THOMAS, J., dissenting Process Clause to strike down democratically enacted laws—first in the name of the “liberty of contract,” then in the name of the “right to privacy.” See 576 U. S., at – (opinion of THOMAS, J.) (slip op., 3–16). That the vagueness doctrine “develop[ed] on the federal level concurrently with the growth of the tool of substan tive due process” does not seem like a coincidence. Note, Ind. L. J., Like substantive due process, the vagueness doctrine provides courts with “open-ended authority to oversee [legislative] choices.” v. Lawson, This Court, for example, has used the vagueness doctrine to invalidate antiloitering laws, even though those laws predate the Declaration of Independence. See at (opinion of THOMAS, J.) (slip op., at 7) ). This Court also has a bad habit of invoking the Due Process Clause to constitutionalize rules that were tradi tionally left to the democratic process. See, e.g., Williams v. Pennsylvania, 579 U. S. (2016); BMW of North America, ; Foucha v. Louisiana, ; cf. Montgomery v. Louisi- ana, 577 U. S. (2016). If vagueness is another example of this practice, then that is all the more reason to doubt its legitimacy. 3 Even assuming the Due Process Clause prohibits vague laws, this prohibition might not apply to laws governing the removal of aliens. Cf. 576 U. S., at n. 7 (opinion of THOMAS, J.) (slip op., 7, n. 7) (stressing the need for specificity when assessing alleged due process rights). The Founders were familiar with English law, where “ ‘the only question that ha[d] ever been made in reg to the power to expel aliens [was] whether it could be exercised by the King without the consent of Parlia Cite as: 584 U. S. (2018) 7 |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | consent of Parlia Cite as: 584 U. S. (2018) 7 THOMAS, J., dissenting ment.’ ” U.S. 5, (O’Connor, J., concurring in part and concurring in judg ment) ). And, in this country, the notion that the Due Process Clause governed the removal of aliens was not announced until the 20th century. Less than a decade after the ratification of the Bill of Rights, the founding generation had an extensive debate about the relationship between the Constitution and federal removal statutes. In 1798, the Fifth Congress enacted the Alien Acts. One of those Acts, the Alien Friends Act, gave the President unfettered discretion to expel any aliens “he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof.” An Act Concerning Aliens This statute was modeled after the Aliens Act 1793 in England, which similarly gave the King unfettered discretion to expel aliens as he “shall think necessary for the publick Secur ity.” 33 Geo. III, ch. 4, in 39 Eng. Stat. at Large 16. Both the Fifth Congress and the States thoroughly de- bated the Alien Friends Act. Virginia and Kentucky enacted resolutions (anonymously drafted by Madison and Jeffer son) opposing the Act, while States enacted counter- resolutions condemning the views of Virginia and Ken tucky. See Fehlings, Storm on the Constitution: The First Deportation Law, Tulsa J. Comp. & Int’l L. 63, 85, 3 (2002). The Jeffersonian Democratic-Republicans, who viewed the Alien Friends Act as a threat to their party and the institution of slavery,4 raised a number of constitutional —————— 4 The Jeffersonian Democratic-Republicans who opposed the Alien Friends Act primarily represented slave States, and their party’s 8 SESSIONS v. DIMAYA THOMAS, J., dissenting objections. Some of the Jeffersonians argued that the Alien Friends Act violated the Fifth Amendment’s Due Process Clause. They complained that the Act failed to provide aliens with all the accouterments of a criminal trial. See, e.g., Kentucky Resolutions ¶6, in 4 The Debates in the Several Conventions on the Adoption of the Federal Constitution 541–542 (J. Elliot ed. 1836) (Elliot’s Debates); 8 Annals of Cong. 1982–1983 (1798) (statement of Rep. Gallatin); Madison’s Report on the Virginia Resolutions (Jan. 7, 1800), in 6 Writings of Madison –362 (G. Hunt ed. 1906) (Madison’s Report).5 The Federalists gave two primary responses to this due process argument. First, the Federalists argued that the rights of aliens were governed by the law of nations, not the Constitution. See, e.g., Randolph, Debate on Virginia Resolutions, in The Virginia |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | See, e.g., Randolph, Debate on Virginia Resolutions, in The Virginia Report of 1799–1800, pp. 34– 35 (1850) (Virginia Debates) (statement of George K. ) (arguing that aliens “were not a party to the [Con stitution]” and that “cases between the government and —————— political strength came from the South. See Fehlings, Storm on the Constitution: The First Deportation Law, Tulsa J. Comp. & Int’l L. 63, 84 (2002). The Jeffersonians opposed any federal control over immigration, which their constituents feared would be used to pre-empt State laws that prohibited the entry of free blacks. at 84–85; see also Berns, Freedom of the Press and the Alien and Sedition Laws: A Reappraisal, 1970 S. Ct. Rev. 9, 116 (“Whether pro- or anti-slavery, most southerners, including Jefferson and Madison were united behind a policy of denying to the national government any competence to deal with the question of slavery”). The fear was that “mobile free Negroes would intermingle with slaves, encourage them to run away, and foment insurrection.” I. Berlin, Slaves Without Masters 92 (1974). 5 The Jeffersonians also argued that the Alien Friends Act violated due process because, if aliens disobeyed the President’s orders to leave the country, they could be convicted of a crime and imprisoned without a trial. See, e.g., Kentucky Resolutions ¶6, 4 Elliot’s Debates 541. That charge was false. The Alien Friends Act gave federal courts jurisdiction over alleged violations of the President’s orders. See Cite as: 584 U. S. (2018) 9 THOMAS, J., dissenting aliens arise under the law of nations”); at 0 (statement of William Cowan) (identifying the source of rights “as to citizens, the Constitution; as to aliens, the law of nations”); A. Addison, A Charge to the Grand Juries of the County Courts of the Fifth Circuit of the State of Pennsylvania 18 (1799) (Charge to the Grand Juries) (“[T]he Constitution leaves aliens, as in other countries, to the protection of the general principles of the law of na tions”); Answer to the Resolutions of the State of Ken tucky, Oct. 29, 1799, in 4 Records of the Governor and Council of the State of Vermont 528 (1876) (denying “that aliens had any rights among us, except what they derived from the law of nations, and rights of hospitality”). The law of nations imposed no enforceable limits on a nation’s power to remove aliens. See, e.g., 1 E. de Vattel, Law of Nations, pp. 8–9 (J. Chitty et al. transl. and ed. 13). Second, the Federalists responded that the expulsion of aliens “did not touch life, liberty, or property.” Virginia Debates 34. The |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | not touch life, liberty, or property.” Virginia Debates 34. The founding generation understood the phrase “life, liberty, or property” to refer to a relatively narrow set of core private rights that did not depend on the will of the government. See Wellness Int’l Network, Ltd. v. Sharif, 575 U. S. – (THOMAS, J., dissenting) (slip op., at 9–); Nelson, Adjudication in the Political Branches, 7 Colum. L. Rev. 559, 566–568 (Nelson). Quasi-private rights—“privileges” or “franchises” bestowed by the government on individuals— did not qualify and could be taken away without judicial process. See B&B Hware, Inc. v. Hargis Industries, Inc., 575 U. S. (THOMAS, J., dissenting) (slip op., 2); Nelson 567–569. The Federalists argued that an alien’s right to reside in this country was one such privilege. See, e.g., Virginia Debates 34 (arguing that “ordering away an alien was not a matter of right, but of favour,” which did not require a jury trial); Report of the SESSIONS v. DIMAYA THOMAS, J., dissenting Select Committee of the House of Representatives, Made to the House of Representatives on Feb. 21, 1799, 9 Annals of Cong. 2987 (1799) (stating that aliens “remain in the country merely as matter of favor and permission” and can be removed at any time without a criminal trial); Charge to the Grand Juries 11–13 (similar). According to the Minority Address of the Virginia Legislature (anony mously drafted by John Marshall), “[T]he right of remain ing in our country is vested in no alien; he enters and remains by the courtesy of the sovereign power, and that courtesy may at pleasure be withdrawn” without judicial process. Address of the Minority in the Virginia Legisla ture to the People of that State 9– (1799) (Virginia Minority Address). Unlike “a grant of land,” the “[a]dmission of an alien to residence is revocable, like a permission.” A. Addison, Analysis of the Report of the Committee of the Virginia Assembly (1800). Removing a resident alien from the country did not affect “life, lib erty, or property,” the Federalists argued, until the alien became a naturalized citizen. See 3–24; Charge to the Grand Juries 11–13. That the alien’s permanent residence was conferred by statute would not have made a difference. See Nelson 571, 580–582; Teva Pharmaceuti- cals USA, Inc. v. Sandoz, Inc., 574 U. S. n. 2 (THOMAS, J., dissenting) (slip op., at 9, n. 2). After the Alien Friends Act lapsed in 1800, Congress did not enact another removal statute for nearly a century. The States enacted their own removal statutes during this period, see G. Neuman, Strangers to the Constitution 19– |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | this period, see G. Neuman, Strangers to the Constitution 19– 43 and I am aware of no decision questioning the legality of these statutes under State due-process or law of-the-land provisions. Beginning in the late 19th century, the Federal Government reinserted itself into the regula tion of immigration. When this Court was presented with constitutional challenges to Congress’ removal laws, it initially rejected them for many of the same reasons that Cite as: 584 U. S. (2018) 11 THOMAS, J., dissenting Marshall and the Federalists had cited in defense of the Alien Friends Act. Although the Court rejected the Feder alists’ argument that resident aliens do not enjoy constitu tional rights, see Wong Wing v. United States, U.S. 228, 8 (1896), it agreed that civil deportation statutes do not implicate “life, liberty, or property,” see, e.g., Harisi- (“[T]hat admission for permanent residence confers a ‘vested right’ on the alien [is] not founded in precedents of this Court”); United States ex rel. 290 (1904) (“[T]he deportation of an alien who is found to be here in violation of law is not a deprivation of liberty without due process of law”); Fong Yue 149 U.S., at 730 (“[Deportation] is but a method of enforcing the return to his own country of an alien who has not complied with [statutory] conditions He has not, therefore, been deprived of life, liberty, or property without due process of law”); at 713–715 (similar). Consistent with this understanding, “federal immigration laws from 1891 until 1952 made no express provision for judicial review.” U.S., at It was not until the 20th century that this Court held that nonpenal removal statutes could violate the Due Process Clause. See Wong Yang Sung v. McGrath, 339 U.S. 33, 49 (1950). That ruling opened the door for the Court to apply the then-nascent vagueness doctrine to immigration statutes. But the Court upheld vague stand s in immigration laws that it likely would not have tolerated in criminal statutes. See, e.g., ; (“ ‘crime involving moral turpitude’ ”); cf. (“ ‘undesirable residents’ ”). Until today, this Court has never held that an immigration statute is unconstitution ally vague. Thus, for more than a century after the founding, it was, 12 SESSIONS v. DIMAYA THOMAS, J., dissenting at best, unclear whether federal removal statutes could violate the Due Process Clause. And until today, this Court had never deemed a federal removal statute void for vagueness. Given this history, it is difficult to conclude that a ban on vague removal statutes is a “settled usag[e] and mod[e] of proceeding existing in the common and statute |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | and mod[e] of proceeding existing in the common and statute law of England, before the emigration of our ances tors” protected by the Fifth Amendment’s Due Process Clause. Murray’s B Instead of a longstanding procedure under Murray’s perhaps the vagueness doctrine is really a way to enforce the separation of powers—specifically, the doctrine of nondelegation. See Chapman & McConnell, Due Pro cess as Separation of Powers, 121 Yale L. J. 1672, 1806 (2012) (“Vague statutes have the effect of delegating law making authority to the executive”). Madison raised a similar objection to the Alien Friends Act, arguing that its expansive language effectively allowed the President to exercise legislative (and judicial) power. See Madison’s Report 369–371. And this Court’s precedents have occa sionally described the vagueness doctrine in terms of nondelegation. See, e.g., v. City of Rockford, 408 U.S. 4, 8–9 (1972) (“A vague law impermissibly delegates basic policy matters”). But they have not been consistent on this front. See, e.g., (“ ‘The objectionable qual- ity of vagueness does not depend upon unchanneled delegation of legislative powers’ ”); (“Objections to vagueness under the Due Process Clause rest on the lack of notice”). I agree that the Constitution prohibits Congress from delegating core legislative power to another branch. See Department of Transportation v. Association of American Railroads, 575 U. S. () (THOMAS, J., Cite as: 584 U. S. (2018) 13 THOMAS, J., dissenting concurring in judgment) (slip op., at 3) (“Congress improp erly ‘delegates’ legislative power when it authorizes an entity other than itself to make a determination that requires an exercise of legislative power”); accord, Whit- (2001) (THOMAS, J., concurring). But I locate that princi ple in the Vesting Clauses of Articles I, II, and III—not in the Due Process Clause. at – (opinion of THOMAS, J.) (slip op., –3); see also (Rehnquist, J., dis senting) (“[T]hat there was an improper delegation of authority has not previously been thought to depend upon the procedural requirements of the Due Process Clause”). In my view, impermissible delegations of legis lative power violate this principle, not just delegations that deprive individuals of “life, liberty, or property,” Amdt. 5. Respondent does not argue that as incorporated by the INA, is an impermissible delegation of power. See Brief for Respondent 50 (stating that “there is no delega tion question” in this case). I would not reach that ques tion here, because this case can be resolved on narrower grounds. See Part I–C, infra. But at first blush, it is not at all obvious that the nondelegation doctrine would jus tify wholesale invalidation of If delegates power |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | doctrine would jus tify wholesale invalidation of If delegates power in this context, it delegates power primarily to the Executive Branch entities that administer the INA—namely, the Attorney General, im migration judges, and the Bo of Immigration Appeals (BIA). But Congress does not “delegate” when it merely authorizes the Executive Branch to exercise a power that it already has. See at (opinion of THOMAS, J.) (slip op., at 3). And there is some founding- era evidence that “the executive Power,” Art. II, in cludes the power to deport aliens. Blackstone—one of the political philosophers whose 14 SESSIONS v. DIMAYA THOMAS, J., dissenting writings on executive power were “most familiar to the Framers,” Prakash & Ramsey, The Executive Power Over Foreign Affairs, 111 Yale L. J. 1, 253 (2001)—described the power to deport aliens as executive and located it with the King. Alien friends, Blackstone explained, are “liable to be sent home whenever the king sees occasion.” 1 Commentaries on the Laws of England 252 (1765). When our Constitution was ratified, moreover, “[e]minent Eng lish judges, sitting in the Judicial Committee of the Privy Council, ha[d] gone very far in supporting the expul sion, by the executive authority of a colony, of aliens.” U.S., at (quot ing Fong Yue ). Some of the Feder alists defending the Alien Friends Act similarly argued that the President had the power to remove aliens. See, e.g., Virginia Debates 35 (statement of George K. ) (arguing that the power to remove aliens is “most properly entrusted” with the President, since “[h]e, by the Constitu tion, was bound to execute the laws” and is “the executive officer, with whom all persons and bodies whatever were accustomed to communicate”); Virginia Minority Address 9 (arguing that the removal of aliens “is a measure of general safety, in its nature political and not forensic, the execution of which is properly trusted to the department which represents the nation in all its interior relations”); Charge to the Grand Juries 29–30 (“As a measure of na tional defence, this discretion, of expulsion or indulgence, seems properly vested in the branch of the government peculiarly charged with the direction of the executive powers, and of our foreign relations. There is in it a mix ture of external policy, and of the law of nations, that justifies this disposition”). More recently, this Court recognized that “[r]emoval decisions” implicate “our cus tomary policy of deference to the President in matters of foreign affairs” because they touch on “our relations with foreign powers and require consideration of changing Cite as: 584 U. S. (2018) 15 |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | consideration of changing Cite as: 584 U. S. (2018) 15 THOMAS, J., dissenting political and economic circumstances.” (internal quotation marks omitted). Taken together, this evidence makes it difficult to confidently conclude that the INA, through delegates core legislative power to the Executive. Instead of the Executive, perhaps impermissibly delegates power to the Judiciary, since the Courts of Ap peals often review the BIA’s application of I as sume that, at some point, a statute could be so devoid of content that a court tasked with interpreting it “would simply be making up a law—that is, exercising legislative power.” Lawson, Delegation and Original Meaning, Va. L. Rev. 327, 339 (2002); see at 339–340 (providing examples such as a gibberish-filled statute or a statute that requires “ ‘goodness and niceness’ ”). But I am not confident that our modern vagueness doctrine—which focuses on whether regulations of individual conduct provide “fair warning,” are “clearly defined,” and do not encourage “arbitrary and discriminatory enforcement,” 408 U.S., at 8; — accurately demarcates the line between legislative and judicial power. The Founders understood that the inter pretation of legal texts, even vague ones, remained an exercise of core judicial power. See Perez v. Mortgage Bankers Assn., 575 U. S. – (THOMAS, J., concurring in judgment) (slip op., at 8–9); Hamburger, The Constitution’s Accommodation of Social Change, Mich. L. Rev. 9, 303–3 Courts were expected to clarify the meaning of such texts over time as they applied their terms to specific cases. See at 309–3; Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 526 Although early American courts declined to apply vague or unintelligible statutes as ap propriate in individual cases, they did not wholesale inval idate them as unconstitutional delegations of legislative 16 SESSIONS v. DIMAYA THOMAS, J., dissenting power. See 576 U. S., at –, and n. 3 (opin ion of THOMAS, J.) (slip op., at –11, and n. 3). C 1 I need not resolve these historical questions today, as this case can be decided on narrower grounds. If the vagueness doctrine has any basis in the original meaning of the Due Process Clause, it must be limited to case-by case challenges to particular applications of a statute. That is what early American courts did when they applied the rule of lenity. See at (slip op., at ). And that is how early American courts addressed constitutional challenges to statutes more generally. See (“[T]here is good evidence that [antebellum] courts understood judicial review to consist ‘of a refusal to give a statute effect as operative law in resolving a case,’ a |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | statute effect as operative law in resolving a case,’ a notion quite distinct from our modern practice of ‘ “strik[ing] down” legislation’ ” (quoting Walsh, Partial Unconstitutionality, 85 N. Y. U. L. Rev. 738, 756 (20)). 2 This Court’s precedents likewise recognize that, outside the First Amendment context, a challenger must prove that the statute is vague as applied to him. See Holder v. Humanitarian Law Project, (20); United ; 486 U.S., at ; Hoffman (collecting cases). did not overrule these prece dents. While weakened the principle that a facial challenge requires a statute to be vague “in all applica tions,” 576 U. S., at (slip op., 1) (emphasis added), it did not address whether a statute must be vague as applied to the person challenging it. That question did not arise because the Court concluded that ACCA’s residual Cite as: 584 U. S. (2018) 17 THOMAS, J., dissenting clause was vague as applied to the crime at issue there: unlawful possession of a short-barreled shotgun. See at (slip op., at 9). In my view, is not vague as applied to respond ent. When respondent committed his burglaries in and 2009, he was “sufficiently forewarned that the statutory consequence is deportation.” De George, 341 U.S., at At the time, courts had “unanimous[ly]” concluded that residential burglary is a crime of violence, and not “a single opinion ha[d] held that [it] is not.” United F.3d 1252, 1255–1256 ; see also United (explaining that treating residential burglary as a crime of violence was “[i]n accord with common law tradition and the settled law of the federal circuits”). Residential burglary “ha[d] been considered a violent offense for hundreds of years because of the potential for mayhem if burglar encounters resident.” United States v. Pinto, The Model Penal Code had recognized that risk, see ALI, Model Penal Code Comment 3(c), p. 75 (1980); the Sentencing Com mission had recognized that risk; see United States Sen tencing Commission, Guidelines Manual (Nov. 2006); and this Court had repeatedly recognized that risk, see, e.g., ; U.S. 575, In this Court unan imously agreed that burglary is the “classic example” of a crime of violence under because it “involves a substantial risk that the burglar will use force against a victim in completing the crime.” at That same risk is present with respect to respondent’s statute of conviction—first-degree residential burglary, Cal. Penal Code Ann. 460(a) The California Supreme Court has explained that the State’s burglary laws recognize “the dangers to personal safety 18 SESSIONS v. DIMAYA THOMAS, J., dissenting created by the usual burglary situation.” 958 P.2d 83, |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | dissenting created by the usual burglary situation.” 958 P.2d 83, 89 (empha sis added). “ ‘[T]he fact that a building is used as a home increases such danger,’ ” which is why California ele vates residential burglary to a first-degree offense. People v. Rodriguez, Cal. App. 4th 121, 18 Cal. Rptr. 3d 550, 558 ; see also (“[T]he higher degree is intended to prevent those situations which are most dangerous, most likely to cause personal injury” (emphasis deleted)). Although unlawful entry is not an element of the offense, courts “unanimous[ly]” agree that the offense still involves a substantial risk of physical force. United 770 F.3d 10, 16 (CA4 2014); accord, United 696 F.3d 95, 12, 14 (CA 2012); United States v. Scanlan, 667 F.3d 896, 900 (CA7 2012); United (CA5 20); United States v. Becker, First-degree resi dential burglary requires entry into an inhabited dwelling, with the intent to commit a felony, against the will of the homeowner—the key elements that create the risk of violence. See United 11– 1180 (CA9 2011); 6–17; Becker, As this Court has explained, “[t]he main risk of burglary arises not from the simple physical act of wrongfully entering onto another’s property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party.” at Drawing on and the decision below, the Court suggests that residential burglary might not be a crime of violence because “ ‘only about seven percent of burglaries actually involve violence.’ ” Ante, at 9, n. 3 ); see Bu reau of Justice S. Catalano, National Crime Cite as: 584 U. S. (2018) 19 THOMAS, J., dissenting Victimization Survey: Victimization During Household Burglary 1 (Sept. 20), https://www.bjs.gov/content/pub/ pdf/vdhb.pdf (as last visited Apr. 13, 2018). But this statistic—which measures actual violence against a mem ber of the household, see 12—is woefully underin clusive. It excludes other potential victims besides house hold members—for example, “a police officer, or a bystande[r] who comes to investigate,” at And requires only a risk of physical force, not actual physical force, and that risk would seem to be present whenever someone is home during the burglary. Further, is not conclusive because, unlike ACCA’s residual clause, covers offenses that involve a sub stantial risk of physical force “against the person or prop- erty of another.” (Emphasis added.) Surely the ordinary case of residential burglary involves at least one of these risks. According to the statistics referenced by the Court, most burglaries involve either a forcible entry (e.g., break ing a window or slashing a door screen), an attempted forcible entry, or an unlawful entry |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | door screen), an attempted forcible entry, or an unlawful entry when someone is home. See Bureau of Justice (Table 1). Thus, under any metric, respondent’s convictions for first-degree residential burglary are crimes of violence under 3 Finally, if facial vagueness challenges are ever appro priate, I adhere to my view that a law is not facially vague “ ‘[i]f any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law.’ ” 527 U.S., 12 (THOMAS, J., dissenting) (quoting 461 U.S., at 370–371 ). The residual clause of ACCA had such a core. See 576 U. S., at (slip op., at ); at – (ALITO, J., dissenting) (slip 20 SESSIONS v. DIMAYA THOMAS, J., dissenting op., 4–15). And has an even wider core, as THE CHIEF JUSTICE explains. Thus, the Court should not have invalidated either on its face or as applied to respondent. II Even taking the vagueness doctrine and at face value, I disagree with the Court’s decision to invalidate The sole reason that the Court deems un constitutionally vague is because it reads the statute as incorporating the categorical approach—specifically, the “ordinary case” approach from ACCA’s residual clause. Although the Court mentions “[t]wo features” of that make it vague—the ordinary-case approach and an imprecise risk stand—the Court admits that the sec ond feature is problematic only in combination with the first. Ante, at 8. Without the ordinary-case approach, the Court “do[es] not doubt” the constitutionality of Ante, at But if the categorical approach renders unconsti tutionally vague, then constitutional avoidance requires us to make a reasonable effort to avoid that interpretation. And a reasonable alternative interpretation is available: Instead of asking whether the ordinary case of an alien’s offense presents a substantial risk of physical force, courts should ask whether the alien’s actual underlying conduct presents a substantial risk of physical force. I will briefly discuss the origins of the categorical approach and then explain why the Court should abandon it for A 1 The categorical approach originated with Justice Blackmun’s opinion for the Court in U.S. 575 The question in was whether ACCA’s reference to “burglary” meant burglary Cite as: 584 U. S. (2018) 21 THOMAS, J., dissenting as defined by state law or burglary in the generic sense. After “devoting pages of [its] opinion to legislative history,” (Scalia, J., concurring in part and concurring in judgment), and finding that Congress had made “an inadvertent casualty in [the] complex drafting process,” at 589–590 |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | “an inadvertent casualty in [the] complex drafting process,” at 589–590 (majority opinion), the Court concluded that ACCA referred to burglary in the generic sense, The Court then addressed how the Government would prove that a defendant was convicted of generic burglary, as opposed to another offense. at 599–602. rejected the notion that the Government could introduce evidence about the “particular facts” of the defendant’s underlying crime. Instead, the Court adopted a “categorical approach,” which focused primarily on the “statutory definition of the prior offense.” Although was interpreting one of ACCA’s enu merated offenses, this Court later extended the categorical approach to ACCA’s residual clause. See 550 U.S., 08. That extension required some reworking. Because ACCA’s enumerated-offenses clause asks whether a prior conviction “is burglary, arson, or extortion,” 18 U.S. C. instructed courts to focus on the definition of the underlying crime. The residual clause, by contrast, asks whether a prior conviction “in volves conduct that presents a serious potential risk of physical injury to another.” Thus, the Court held that the categorical approach for the residual clause asks “whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” 08 (emphasis added). This “ordinary case” approach allowed courts to apply the residual clause without inquir ing into the individual facts of the defendant’s prior crime. gave a few reasons why the categorical approach was the correct reading of ACCA, see U.S., – 22 SESSIONS v. DIMAYA THOMAS, J., dissenting 601, but the “heart of the decision” was the Court’s con cern with limiting the amount of evidence that the parties could introduce at sentencing. Specifically, the Court was wor ried about potential violations of the Sixth Amendment. If the parties could introduce evidence about the defendant’s underlying conduct, then sentencing proceedings might devolve into a full-blown minitrial, with factfinding by the judge instead of the jury. See 4–26; at 601. While this Court’s decision in Almendarez-Torres v. United States, 5 U.S. 224 allows judges to find facts about a defendant’s prior convictions, a full- blown minitrial would look “too much like” the kind of factfinding that the Sixth Amendment requires the jury to conduct. 544 U.S., 5. By construing ACCA to require a categorical approach, then, the Court was following “[t]he rule of reading statutes to avoid serious risks of unconstitutionality.” 2 I disagreed with the Court’s decision to extend the categorical approach to ACCA’s residual clause. See 550 U.S., 31– (dissenting opinion). The categorical approach was an “ ‘unnecessary exercise,’ ” I explained, because it created the |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | “ ‘unnecessary exercise,’ ” I explained, because it created the same Sixth Amendment problem that it tried to avoid. 31. Absent waiver, a defendant has the right to have a jury find “every fact that is by law a basis for imposing or increasing punish ment,” including the fact of a prior conviction. Apprendi v. New Jersey, (THOMAS, J., concur ring). The exception recognized in Almendarez-Torres for prior convictions is an aberration, has been seriously undermined by subsequent precedents, and should be reconsidered. See Mathis v. United States, 579 U. S. (2016) (THOMAS, J., concurring) (slip op., ); Shep- 7–28 (THOMAS, J., concurring in part and Cite as: 584 U. S. (2018) THOMAS, J., dissenting concurring in judgment). In my view, if the Government wants to enhance a defendant’s sentence based on his prior convictions, it must put those convictions in the indictment and prove them to a jury beyond a reasonable doubt.6 B My objection aside, the ordinary-case approach soon created problems of its own. The Court’s attempt to avoid the Scylla of the Sixth Amendment steered it straight into the Charybdis of the Fifth. The ordinary-case approach that was created to honor the individual right to a jury is now, according to the Court, so vague that it deprives individuals of due process. I see no good reason for the Court to persist in reading the ordinary-case approach into The text of does not mandate the ordinary-case approach, the con cerns that led this Court to adopt it do not apply here, and there are no prudential reasons for retaining it. In my view, we should abandon the categorical approach for 1 The text of does not require a categorical ap The INA declares an alien deportable if he is —————— 6 The Sixth Amendment is, thus, not a reason to maintain the cate gorical approach in criminal cases. Contra, ante, 3–14 (plurality opinion). Even if it were, the Sixth Amendment does not apply in immigration cases like this one. See Part II–B–2, infra. The plurality contends that, if it must contort the text of to avoid a Sixth Amendment problem in criminal cases, then it must also contort the text of in immigration cases, even though the Sixth Amendment problem does not arise in the immigration context. See ante, 3–14, 15. But, as I have explained elsewhere, this “lowest common denomi nator” approach to constitutional avoidance is both ahistorical and illogical. See (dissent ing opinion). 24 SESSIONS v. DIMAYA THOMAS, J., dissenting “convicted of an aggravated felony” after he is admitted to the United States. 8 U.S. |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | after he is admitted to the United States. 8 U.S. C. §7(a)(2)(A)(iii). Aggra vated felonies include “crime[s] of violence” as defined in §11(a)(43)(F). Section 16, in turn, defines crimes of violence as follows: “(a) an offense that has as an element the use, at tempted use, or threatened use of physical force against the person or property of another, or “(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” At first glance, is not clear about the precise question it poses. On the one hand, the statute might refer to the metaphysical “nature” of the offense and ask whether it ordinarily involves a substantial risk of physi cal force. On the other hand, the statute might refer to the underlying facts of the offense that the offender com mitted; the words “by its nature,” “substantial risk,” and “may” would mean only that an offender who engages in risky conduct cannot benefit from the fortuitous fact that physical force was not actually used during his offense. The text can bear either interpretation. See Nijhawan v. Holder, (“[I]n ordinary speech words such as ‘crime,’ ‘felony,’ ‘offense,’ and the like some times refer to a generic crime and sometimes refer to the specific acts in which an offender engaged on a specific occasion”). It is entirely natural to use words like “nature” and “offense” to refer to an offender’s actual underlying conduct.7 —————— 7 See, e.g., 18 U.S. C. (directing sentencing judges to con sider “the nature and circumstances of the offense”); Schware v. Bo of Bar Examiners of N. M., 353 U.S. (describing “the nature of the offense” committed by a bar applicant as “recruiting Cite as: 584 U. S. (2018) 25 THOMAS, J., dissenting Although both interpretations are linguistically possi ble, several factors indicate that the underlying-conduct approach is the better one. To begin, asks whether an offense “involves” a substantial risk of force. The word “involves” suggests that the offense must necessarily include a substantial risk of force. See The New Oxford Dictionary of English 962 (2001) (“include (something) as a necessary part or result”); Random House Dictionary of the English Language 05 (2d ed. 1987) (“1. to include as —————— persons to go overseas to aid the Loyalists in the Spanish Civil War”); TXO Production (O’Connor, J., dissenting) (describing “the nature of the offense at issue” as not “involving grave physical injury” but rather as a “busi ness dispute between two |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | injury” but rather as a “busi ness dispute between two companies in the oil and gas industry”); United (Blackmun, J., dissenting) (describing “the nature of the charged offense” in terms of the specific facts alleged in the indictment); (“[T]he underlying factual basis for a conviction governs whether the offense ‘by its nature consti tutes a sexual offense against an individual who is less than 18 years of age.’ ” (quoting (e)(xi) (2006))); A Fix for Animal Abusers, Boston Herald, Nov. 22, 2017, p. 16 (“prosecutors were so horrified at the nature of his offense—his torture of a neighbor’s dog”); P. W, Attorney of Convicted Ex-Official Accuses Case’s Judge, Pittsburgh Post-Gazette, Nov. p. B1 (identifying the “nature of his offense” as “taking money from an elderly, widowed client, and giving it to campaign funds”); Cross-Burning–Article Painted an Inaccurate Picture of Young Man in Question, Seattle Times, Aug. 12, 1991, p. A9 (“[The defendant] took no steps to prevent the cross that was burned from being constructed on his family’s premises and later assisted in concealing a second cross This was the nature of his offense”); N. Libman, A Parole/Probation Officer Talks With Norma Libman, Chicago Tribune, May 29, 19, p. I31 (describing “the nature of the offense” as “not serious” if “there was no definitive threat on life” or if “the dollar- and cents- amount was not great”); E. Walsh, District– U. S. Argument Delays Warrant for Escapee’s Arrest, Washington Post, May 29, 1986, p. C1 (describing “the nature of Murray’s alleged of fenses” as “point[ing] at two officers a gun that was later found to con- tain one round of ammunition”). 26 SESSIONS v. DIMAYA THOMAS, J., dissenting a necessary circumstance, condition, or consequence”); Oxford American Dictionary 349 (1980) (“1. to contain within itself, to make necessary as a condition or result”). That condition is always satisfied if the Government must prove that the alien’s underlying conduct involves a sub stantial risk of force, but it is not always satisfied if the Government need only prove that the “ordinary case” involves such a risk. See 576 U. S., at (ALITO, J., dissenting) (slip op., 2). Tellingly, the other aggravated felonies in the INA that use the word “in volves” employ the underlying-conduct ap See 8 U.S. C. §11(a)(43)(M)(i) (“an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $,000”); §11(h)(3) (“any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal injury to another”). As do the similarly worded |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | involves personal injury to another”). As do the similarly worded provisions of the Comprehensive Crime Control Act of 1984, the bill that contained See, e.g., (elevating the burden of proof for the release of “a person found not guilty only by reason of insanity of an offense involving bodily injury to, or serious damage to the property of, another person, or involving a substantial risk of such injury or damage”); 068 (establishing the sentence for drug offenses “involving” specific quantities and types of drugs); 137 (defining violent crimes in aid of racketeering to include “attempting or conspiring to com mit a crime involving maiming, assault with a dangerous weapon, or assault resulting in serious bodily injury”). A comparison of and further highlights why the former likely adopts an underlying-conduct ap Section 16(a) covers offenses that have the use, attempted use, or threatened use of physical force “as an element.” Because covers “other” offenses and is separated from by the disjunctive word “or,” the natural inference is that asks a different question. Cite as: 584 U. S. (2018) 27 THOMAS, J., dissenting In other words, must require immigration judges to look beyond the elements of an offense to determine whether it involves a substantial risk of physical force. But if the elements are insufficient, where else should immigration judges look to determine the riskiness of an offense? Two options are possible, only one of which is workable. The first option is to consult the underlying facts of the alien’s crime and then assess its riskiness. This approach would provide a definitive answer in every case. And courts are already familiar with this kind of inquiry. Cf. at (slip op., 2) (noting that “doz ens” of similarly worded laws ask courts to assess “the riskiness of conduct in which an individual defendant engages on a particular occasion”). Nothing suggests that Congress imposed a more limited inquiry when it enacted in 1984. At the time, Congress had not yet enacted ACCA’s residual clause, this Court had not yet created the categorical approach, and this Court had not yet recog nized a Sixth Amendment limit on judicial factfinding at sentencing, see 555 U.S. 132 (ALITO, J., concurring in judgment). The second option is to imagine the “ordinary case” of the alien’s crime and then assess the riskiness of that hypothetical offense. But the phrase “ordinary case” does not appear in the statute. And imagining the ordinary case, the Court reminds us, is “hopeless[ly] indetermi na[te],” “wholly ‘speculative,’ ” and mere “guesswork.” Ante, at 7, 24 (quoting at – (slip op., at 5, 7)); see |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | 24 (quoting at – (slip op., at 5, 7)); see also at (opinion of ALITO, J.) (observing that the categorical approach is “nearly impossible to apply consistently”). Because courts disfavor interpretations that make a statute impossible to apply, see A. Scalia & B. Garner, Reading Law 63 (2012), this Court should reject the ordinary-case approach for and adopt the underlying-facts approach instead. 28 SESSIONS v. DIMAYA THOMAS, J., dissenting See at (ALITO, J., dissenting) (slip op., at ) (“When another interpretation is ready at hand, why should we assume that Congress gave the clause a meaning that is impossible—or even, exceedingly diffi cult—to apply”). 2 That the categorical approach is not the better reading of should not be surprising, since the categorical approach was never really about the best reading of the text. As explained, this Court adopted that approach to avoid a potential Sixth Amendment problem with sentenc ing judges conducting minitrials to determine a defend ant’s past conduct. But even assuming the categorical approach solved this Sixth Amendment problem in crimi nal cases, no such problem arises in immigration cases. “[T]he provisions of the Constitution securing the right of trial by jury have no application” in a removal proceeding. 194 U.S., 90. And, in criminal cases, the underlying-conduct approach would be perfectly constitu tional if the Government included the defendant’s prior conduct in the indictment, tried it to a jury, and proved it beyond a reasonable doubt. See 576 U. S., at (ALITO, J., dissenting) (slip op., 2). Nothing in prohibits the Government from proceeding this way, so the plurality is wrong to suggest that the underlying-conduct approach would necessarily “ping-pong us from one consti tutional issue to another.” Ante, 4. If constitutional avoidance applies here at all, it re quires us to reject the categorical approach for According to the Court, the categorical approach is uncon stitutionally vague. And, all agree that the underlying- conduct approach would not be. See 576 U. S., at (majority opinion) (slip op., 2) (“[W]e do not doubt the constitutionality of laws that call for the application of a qualitative stand such as ‘substantial risk’ to real Cite as: 584 U. S. (2018) 29 THOMAS, J., dissenting world conduct”). Thus, if the underlying-conduct approach is a “reasonabl[e]” interpretation of it is our “plain duty” to adopt it. United States ex rel. Attorney General v. Delaware & Hudson Co., And it is reasonable, as explained above. In the Court declined to adopt the underlying- conduct approach for ACCA’s residual clause. See 576 U. S., at – (slip op., 2–13). The Court concluded that |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | S., at – (slip op., 2–13). The Court concluded that the categorical approach was the only reasonable reading of ACCA because the residual clause uses the word “convictions.” at (slip op., 3). The Court also stressed the “utter impracticability of requiring a sentencing court to reconstruct, long after the original conviction, the conduct underlying that conviction.” Neither of these arguments is persuasive with respect to the INA. Moreover, this Court has already rejected them. In Nijhawan, this Court unanimously concluded that one of the aggravated felonies in the INA—“an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $,000,” §11(a)(43)(M)(i)—applies the underlying-conduct approach, not the categorical ap Although the INA also refers to “convict[ions],” §7(a)(2)(A)(iii), the Court was not swayed by that argument. The word “convict[ion]” means only that the defendant’s underlying conduct must “ ‘be tied to the specific counts covered by the conviction,’ ” not “acquitted or dismissed counts or general conduct.” at 42. As for the supposed practical problems with proving an alien’s prior conduct, the Court did not find that argu ment persuasive either. “[T]he ‘sole purpose’ of the ‘ag gravated felony’ inquiry,” the Court explained, “ ‘is to ascertain the nature of a prior conviction; it is not an invitation to relitigate the conviction itself.’ ” And because the INA places the burden on the Government to prove an alien’s conduct by clear and convincing evidence, §9a(c)(3)(A), “uncertainties caused by the passage of 30 SESSIONS v. DIMAYA THOMAS, J., dissenting time are likely to count in the alien’s favor,” There are additional reasons why the practical problems identified in should not matter for —even assuming they should have mattered for ACCA’s residual clause, see (20) (“[I]t is not our task to assess the consequences of each approach and adopt the one that produces the least mis chief. Our charge is to give effect to the law Congress enacted”). In a removal proceeding, any difficulties with identifying an alien’s past conduct will fall on immigration judges, not federal courts. But those judges are already accustomed to finding facts about the conduct underlying an alien’s prior convictions, since some of the INA’s aggra vated felonies employ the underlying-conduct ap The BIA has instructed immigration judges to determine such conduct based on “any evidence admissible in re- moval proceedings,” not just the elements of the offense or the record of conviction. See Matter of Babaisakov, 24 I. & N. Dec. 306, 307 No one has submitted any evidence that the BIA’s approach has been “utter[ly] impracti cab[le]” or “daunting[ly] difficul[t]” in |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | approach has been “utter[ly] impracti cab[le]” or “daunting[ly] difficul[t]” in practice. Ante, at 15. And even if it were, “how much time the agency wants to devote to the resolution of particular issues is a question for the agency itself.” Ali v. Mukasey, 521 F.3d 737, 741 Hypothetical burdens on the BIA should not influence how this Court interprets In short, we should not blithely assume that the reasons why this Court adopted the categorical approach for ACCA’s residual clause also apply to the INA’s list of aggravated felonies. As Nijhawan explained, “the ‘aggra vated felony’ statute, unlike ACCA, contains some lan guage that refers to generic crimes and some language that almost certainly refers to the specific circumstances in which a crime was committed.” “The question” in each case is “to which category [the aggra- vated felony] belongs.” As I have explained, Cite as: 584 U. S. (2018) 31 THOMAS, J., dissenting belongs in the underlying-conduct category. Because that is the better reading of ’s text—or at least a reason able reading—the Court should have adopted it here. 3 I see no prudential reason for maintaining the categori cal approach for The Court notes that the Gov ernment “explicitly acknowledges” that employs the categorical ap Ante, at 9. But we cannot permit the Government’s concessions to dictate how we interpret a statute, much less cause us to invalidate a statute en acted by a coordinate branch. See United States Nat. Bank of ; Young v. United States, 315 U.S. 257, 258–259 (1942). This Court’s “traditional prac tice” is to “refus[e] to decide constitutional questions” when other grounds of decision are available, “whether or not they have been properly raised before us by the par ties.” (per curiam); see also Vermeule, Saving Constructions, 85 Geo. L. J. 1945, 1948–1949 (1997) (explaining that courts commonly “decide an antecedent statutory issue, even one waived by the parties, if its resolution could preclude a constitutional claim”). This Court has raised potential saving constructions “on our own motion” when they could avoid a ruling on constitutional vagueness grounds, even in cases where the Government was a party. United We should have followed that established practice here. Nor should stare decisis prevent us from rejecting the categorical approach for This Court has never held that incorporates the ordinary-case ap Although Leocal held that incorporates a version of the categorical approach, the Court must not feel bound by that decision, as it largely overrules it today. See ante, at 22, n. 7. Surely the Court cannot credibly invoke stare 32 SESSIONS v. DIMAYA THOMAS, J., dissenting |
Justice Thomas | 2,018 | 1 | second_dissenting | Sessions v. Dimaya | https://www.courtlistener.com/opinion/4487345/sessions-v-dimaya/ | credibly invoke stare 32 SESSIONS v. DIMAYA THOMAS, J., dissenting decisis to defend the categorical approach—the same approach it says only a “lunatic” would continue to apply. Ante, 4. If the Court views the categorical approach that way—the same way viewed it—then it must also agree that “[s]tanding by [the categorical approach] would undermine, rather than promote, the goals that stare decisis is meant to serve.” 576 U. S., at (slip op., 5). That is especially true if the Court’s decision leads to the invalidation of scores of similarly worded state and federal statutes, which seems even more likely after today than it did after Instead of adhering to an inter pretation that it thinks unconstitutional and then using that interpretation to strike down another statute, the Court should have taken this opportunity to abandon the categorical approach for once and for all. * * * The Court’s decision today is triply flawed. It unneces sarily extends our incorrect decision in It uses a constitutional doctrine with dubious origins to invalidate yet another statute (while calling into question countless more). And it does all this in the name of a statutory interpretation that we should have disced long ago. Because I cannot follow the Court down any of these rab bit holes, I respectfully dissent. |
Justice Thomas | 2,003 | 1 | majority | Raytheon Co. v. Hernandez | https://www.courtlistener.com/opinion/131147/raytheon-co-v-hernandez/ | The Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S. C. 12101 et seq., makes it unlawful for an employer, with respect to hiring, to "discriminate against a qualified individual with a disability because of the disability of such individual." 12112(a). We are asked to decide in this case whether the ADA confers preferential rehire rights on disabled employees lawfully terminated for violating workplace conduct rules. The United States Court of Appeals for the Ninth Circuit held that an employer's unwritten policy not to rehire employees who left the company for violating personal conduct rules contravenes the ADA, at least as applied to employees who were lawfully forced to resign for illegal drug use but have since been rehabilitated. Because the Ninth Circuit improperly applied a disparate-impact analysis in a disparate-treatment case in order to reach this holding, we vacate its judgment and remand the case for further proceedings consistent with this opinion. We do not, however, reach the question on which we granted certiorari. I Respondent, Joel Hernandez, worked for Hughes Missile Systems for 25 years.[1] On July 11, 1991, respondent's appearance *47 and behavior at work suggested that he might be under the influence of drugs or alcohol. Pursuant to company policy, respondent took a drug test, which came back positive for cocaine. Respondent subsequently admitted that he had been up late drinking beer and using cocaine the night before the test. Because respondent's behavior violated petitioner's workplace conduct rules, respondent was forced to resign. Respondent's "Employee Separation Summary" indicated as the reason for separation: "discharge for personal conduct (quit in lieu of discharge)." App. 12a. More than two years later, on January 24, 1994, respondent applied to be rehired by petitioner. Respondent stated on his application that he had previously been employed by petitioner. He also attached two reference letters to the application, one from his pastor, stating that respondent was a "faithful and active member" of the church, and the other from an Alcoholics Anonymous counselor, stating that respondent attends Alcoholics Anonymous meetings regularly and is in recovery. at 13a-15a. Joanne Bockmiller, an employee in the company's Labor Relations Department, reviewed respondent's application. Bockmiller testified in her deposition that since respondent's application disclosed his prior employment with the company, she pulled his personnel file and reviewed his employee separation summary. She then rejected respondent's application. Bockmiller insisted that the company had a policy against rehiring employees who were terminated for workplace misconduct. at 62a. Thus, when she reviewed the employment separation summary and found that respondent had been discharged for violating workplace conduct rules, |
Justice Thomas | 2,003 | 1 | majority | Raytheon Co. v. Hernandez | https://www.courtlistener.com/opinion/131147/raytheon-co-v-hernandez/ | that respondent had been discharged for violating workplace conduct rules, she rejected respondent's application. She testified, in particular, that she did not know that respondent was a former drug addict when she made the employment decision and did not see anything that would constitute a "record of" addiction. at 63a-64a. *48 Respondent subsequently filed a charge with the Equal Employment Opportunity Commission (EEOC). Respondent's charge of discrimination indicated that petitioner did not give him a reason for his nonselection, but that respondent believed he had been discriminated against in violation of the ADA. Petitioner responded to the charge by submitting a letter to the EEOC, in which George M. Medina, Sr., Manager of Diversity Development, wrote: "The ADA specifically exempts from protection individuals currently engaging in the illegal use of drugs when the covered entity acts on the basis of that use. Contrary to Complainant's unfounded allegation, his non-selection for rehire is not based on any legitimate disability. Rather, Complainant's application was rejected based on his demonstrated drug use while previously employed and the complete lack of evidence indicating successful drug rehabilitation. "The Company maintains it's [sic] right to deny re-employment to employees terminated for violation of Company rules and regulations. Complainant has provided no evidence to alter the Company's position that Complainant's conduct while employed by [petitioner] makes him ineligible for rehire." at 19a-20a. This response, together with evidence that the letters submitted with respondent's employment application may have alerted Bockmiller to the reason for respondent's prior termination, led the EEOC to conclude that petitioner may have "rejected [respondent's] application based on his record of past alcohol and drug use." at 94a (EEOC Determination Letter, Nov. 20, 1997). The EEOC thus found that there was "reasonable cause to believe that [respondent] was denied hire to the position of Product Test Specialist because of his disability." at 95a. The EEOC issued a right-to-sue *49 letter, and respondent subsequently filed this action alleging a violation of the ADA. Respondent proceeded through discovery on the theory that the company rejected his application because of his record of drug addiction and/or because he was regarded as being a drug addict. See 42 U.S. C. 12102(2)(B)-(C).[2] In response to petitioner's motion for summary judgment, respondent for the first time argued in the alternative that if the company really did apply a neutral no-rehire policy in his case, petitioner still violated the ADA because such a policy has a disparate impact. The District Court granted petitioner's motion for summary judgment with respect to respondent's disparate-treatment claim. However, the District Court refused to consider respondent's disparate-impact |
Justice Thomas | 2,003 | 1 | majority | Raytheon Co. v. Hernandez | https://www.courtlistener.com/opinion/131147/raytheon-co-v-hernandez/ | claim. However, the District Court refused to consider respondent's disparate-impact claim because respondent had failed to plead or raise the theory in a timely manner. The Court of Appeals agreed with the District Court that respondent had failed timely to raise his disparate-impact claim. In addressing respondent's disparate-treatment claim, the Court of Appeals proceeded under the familiar burden-shifting approach first adopted by this Court in McDonnell Douglas[3] First, the Ninth Circuit found that with respect *50 to respondent's prima facie case of discrimination, there were genuine issues of material fact regarding whether respondent was qualified for the position for which he sought to be rehired, and whether the reason for petitioner's refusal to rehire him was his past record of drug addiction.[4] -1035. The Court of Appeals thus held that with respect to respondent's prima facie case of discrimination, respondent had proffered sufficient evidence to preclude a grant of summary judgment. Because petitioner does not challenge this aspect of the Ninth Circuit's decision, we do not address it here. The Court of Appeals then moved to the next step of McDonnell Douglas, where the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for its employment Here, petitioner contends that Bockmiller applied the neutral policy against rehiring employees previously terminated for violating workplace conduct rules and that this neutral company policy constituted a legitimate and nondiscriminatory reason *51 for its decision not to rehire respondent. The Court of Appeals, although admitting that petitioner's no-rehire rule was lawful on its face, held the policy to be unlawful "as applied to former drug addicts whose only work-related offense was testing positive because of their addiction." The Court of Appeals concluded that petitioner's application of a neutral no-rehire policy was not a legitimate, nondiscriminatory reason for rejecting respondent's application: "Maintaining a blanket policy against rehire of all former employees who violated company policy not only screens out persons with a record of addiction who have been successfully rehabilitated, but may well result, as [petitioner] contends it did here, in the staff member who makes the employment decision remaining unaware of the `disability' and thus of the fact that she is committing an unlawful act. Additionally, we hold that a policy that serves to bar the reemployment of a drug addict despite his successful rehabilitation violates the ADA." In other words, while ostensibly evaluating whether petitioner had proffered a legitimate, nondiscriminatory reason for failing to rehire respondent sufficient to rebut respondent's prima facie showing of disparate treatment, the Court of Appeals held that a neutral no-rehire policy could never suffice in a |
Justice Thomas | 2,003 | 1 | majority | Raytheon Co. v. Hernandez | https://www.courtlistener.com/opinion/131147/raytheon-co-v-hernandez/ | that a neutral no-rehire policy could never suffice in a case where the employee was terminated for illegal drug use, because such a policy has a disparate impact on recovering drug addicts. In so holding, the Court of Appeals erred by conflating the analytical framework for disparate-impact and disparate-treatment claims. Had the Court of Appeals correctly applied the disparate-treatment framework, it would have been obliged to conclude that a neutral no-rehire policy is, by definition, a legitimate, non-discriminatory *52 reason under the ADA.[5] And thus the only remaining question would be whether respondent could produce sufficient evidence from which a jury could conclude that "petitioner's stated reason for respondent's rejection was in fact pretext." McDonnell Douglas, II This Court has consistently recognized a distinction between claims of discrimination based on disparate treatment and claims of discrimination based on disparate impact. The Court has said that "`[d]isparate treatment' is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or [other protected characteristic]." See also Hazen Paper Liability in a disparate-treatment case "depends on whether the protected trait actually motivated the employer's decision." By contrast, disparate-impact claims "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Under a disparate-impact theory of discrimination, "a facially neutral employment practice may be deemed [illegally discriminatory] without evidence of *53 the employer's subjective intent to discriminate that is required in a `disparate-treatment' case." Wards Cove Packing superseded by statute on other grounds, Civil Rights Act of 1991, 105, -1075, 42 U.S. C. 2000e-2(k) (1994 ed.). Both disparate-treatment and disparate-impact claims are cognizable under the ADA. See 42 U.S. C. 12112(b) (defining "discriminate" to include "utilizing standards, criteria, or methods of administration that have the effect of discrimination on the basis of disability" and "using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability"). Because "the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes," Texas Dept. of Community courts must be careful to distinguish between these theories. Here, respondent did not timely pursue a disparate-impact claim. Rather, the District Court concluded, and the Court of Appeals agreed, that respondent's case was limited to a disparate-treatment theory, that the company refused to rehire respondent because it regarded respondent |
Justice Thomas | 2,003 | 1 | majority | Raytheon Co. v. Hernandez | https://www.courtlistener.com/opinion/131147/raytheon-co-v-hernandez/ | the company refused to rehire respondent because it regarded respondent as being disabled and/or because of respondent's record of a disability. 298 F.3d, at Petitioner's proffer of its neutral no-rehire policy plainly satisfied its obligation under McDonnell Douglas to provide a legitimate, nondiscriminatory reason for refusing to rehire respondent. Thus, the only relevant question before the Court of Appeals, after petitioner presented a neutral explanation for its decision not to rehire respondent, was whether there was sufficient evidence from which a jury could conclude that petitioner did make its employment decision based on respondent's status as disabled despite petitioner's proffered explanation. Instead, the Court of Appeals concluded that, as a matter of law, a neutral no-rehire policy was not *54 a legitimate, nondiscriminatory reason sufficient to defeat a prima facie case of discrimination.[6] The Court of Appeals did not even attempt, in the remainder of its opinion, to treat this claim as one involving only disparate treatment. Instead, the Court of Appeals observed that petitioner's policy "screens out persons with a record of addiction," and further noted that the company had not raised a business necessity -1037, and n. 19, factors that pertain to disparate-impact claims but not disparate-treatment claims. See, e.g.,[7] By improperly focusing on these factors, the Court of Appeals ignored the fact that petitioner's no-rehire policy is a quintessential legitimate, nondiscriminatory reason for refusing to rehire an employee who was *55 terminated for violating workplace conduct rules. If petitioner did indeed apply a neutral, generally applicable no-rehire policy in rejecting respondent's application, petitioner's decision not to rehire respondent can, in no way, be said to have been motivated by respondent's disability. The Court of Appeals rejected petitioner's legitimate, nondiscriminatory reason for refusing to rehire respondent because it "serves to bar the re-employment of a drug addict despite his successful rehabilitation." -1037. We hold that such an analysis is inapplicable to a disparate-treatment claim. Once respondent had made a prima facie showing of discrimination, the next question for the Court of Appeals was whether petitioner offered a legitimate, nondiscriminatory reason for its actions so as to demonstrate that its actions were not motivated by respondent's disability. To the extent that the Court of Appeals strayed from this task by considering not only discriminatory intent but also discriminatory impact, we vacate its judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. JUSTICE SOUTER took no part in the decision of this case. JUSTICE BREYER took no part in the consideration or decision of this case. |
Justice White | 1,982 | 6 | majority | New York v. Ferber | https://www.courtlistener.com/opinion/110794/new-york-v-ferber/ | At issue in this case is the constitutionality of a New criminal statute which prohibits persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances. I In recent years, the exploitive use of children in the production of pornography has become a serious national problem.[1] The Federal Government and 47 States have sought to combat the problem with statutes specifically directed at the production of child pornography. At least half of such statutes do not require that the materials produced be legally obscene. Thirty-five States and the United States Congress have also passed legislation prohibiting the distribution of such materials; 20 States prohibit the distribution of material depicting children engaged in sexual conduct without requiring that the material be legally obscene.[2] *750 New is one of the 20. In 1977, the New Legislature enacted Article 263 of its Penal Law. N. Y. Penal Law, Art. 263 Section 263.05 criminalizes as a class C felony the use of a child in a sexual performance: "A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof he employs, authorizes or induces a child less than sixteen years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such child, *751 he consents to the participation by such child in a sexual performance." A "[s]exual performance" is defined as "any performance or part thereof which includes sexual conduct by a child less than sixteen years of age." 263.00(1). "Sexual conduct" is in turn defined in 263.00(3): "`Sexual conduct' means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals." A performance is defined as "any play, motion picture, photograph or dance" or "any other visual representation exhibited before an audience." 263.00(4). At issue in this case is 263.15, defining a class D felony:[3] "A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age." To "promote" is also defined: "`Promote' means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same." 263.00(5). A companion provision bans only the knowing dissemination of obscene material. 263.10. This case arose when Paul Ferber, the proprietor of a Manhattan *752 bookstore specializing in sexually |
Justice White | 1,982 | 6 | majority | New York v. Ferber | https://www.courtlistener.com/opinion/110794/new-york-v-ferber/ | the proprietor of a Manhattan *752 bookstore specializing in sexually oriented products, sold two films to an undercover police officer. The films are devoted almost exclusively to depicting young boys masturbating. Ferber was indicted on two counts of violating 263.10 and two counts of violating 263.15, the two New laws controlling dissemination of child pornography.[4] After a jury trial, Ferber was acquitted of the two counts of promoting an obscene sexual performance, but found guilty of the two counts under 263.15, which did not require proof that the films were obscene. Ferber's convictions were affirmed without opinion by the Appellate Division of the New State Supreme Court. The New Court of Appeals reversed, holding that 263.15 violated the First Amendment. The court began by noting that in light of 263.10's explicit inclusion of an obscenity standard, 263.15 could not be construed to include such a standard. Therefore, "the statute would prohibit the promotion of materials which are traditionally entitled to constitutional protection from government interference under the First Amendment." Although the court recognized the State's "legitimate interest in protecting the welfare of minors" and noted that this "interest may transcend First Amendment concerns," -526, it nevertheless found two fatal defects in the New statute. Section 263.15 was underinclusive because it discriminated against visual portrayals of children engaged in sexual activity by not also prohibiting the distribution of films of other dangerous activity. It was also overbroad because it prohibited the distribution of materials produced outside the State, as well as materials, such as medical books and educational sources, which *753 "deal with adolescent sex in a realistic but nonobscene manner." Two judges dissented. We granted the State's petition for certiorari, presenting the single question: "To prevent the abuse of children who are made to engage in sexual conduct for commercial purposes, could the New State Legislature, consistent with the First Amendment, prohibit the dissemination of material which shows children engaged in sexual conduct, regardless of whether such material is obscene?" II The Court of Appeals proceeded on the assumption that the standard of obscenity incorporated in 263.10, which follows the guidelines enunciated in[5] constitutes the appropriate line dividing protected from unprotected expression by which to measure a regulation directed at child pornography. It was on the premise that "nonobscene adolescent sex" could not be singled out for special treatment that the court found 263.15 "strikingly underinclusive." Moreover, the assumption that the constitutionally permissible regulation of pornography could not be more extensive with respect to the distribution of material depicting children may also have led the court to conclude that a |
Justice White | 1,982 | 6 | majority | New York v. Ferber | https://www.courtlistener.com/opinion/110794/new-york-v-ferber/ | may also have led the court to conclude that a narrowing construction of 263.15 was unavailable. The Court of Appeals' assumption was not unreasonable in light of our decisions. This case, however, constitutes our first examination of a statute directed at and limited to depictions of sexual activity involving children. We believe our inquiry should begin with the question of whether a State has somewhat more freedom in proscribing works which portray sexual acts or lewd exhibitions of genitalia by children. *754 A In the Court laid the foundation for the excision of obscenity from the realm of constitutionally protected expression: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Embracing this judgment, the Court squarely held in that "obscenity is not within the area of constitutionally protected speech or press." The Court recognized that "rejection of obscenity as utterly without redeeming social importance" was implicit in the history of the First Amendment: The original States provided for the prosecution of libel, blasphemy, and profanity, and the "universal judgment that obscenity should be restrained [is] reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 states, and in the 20 obscenity laws enacted by Congress from 1842 to 6." Roth was followed by 15 years during which this Court struggled with "the intractable obscenity problem." Interstate Circuit, See, e. g., Despite considerable vacillation over the proper definition of obscenity, a majority of the Members of the Court remained firm in the position that "the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities *755 of unwilling recipients or of exposure to juveniles." ; ; ; Interstate Circuit, ; ; Throughout this period, we recognized "the inherent dangers of undertaking to regulate any form of expression." Consequently, our difficulty was not only to assure that statutes designed to regulate obscene materials sufficiently defined what was prohibited, but also to devise substantive limits on what fell within the permissible scope of regnlation. In a majority of the Court agreed that a "state offense must |
Justice White | 1,982 | 6 | majority | New York v. Ferber | https://www.courtlistener.com/opinion/110794/new-york-v-ferber/ | majority of the Court agreed that a "state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." Over the past decade, we have adhered to the guidelines expressed in Miller,[6] which subsequently has been followed in the regulatory schemes of most States.[7] *756 B The Miller standard, like its predecessors, was an accommodation between the State's interests in protecting the "sensibilities of unwilling recipients" from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws. Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. For the following reasons, however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children. First. It is evident beyond the need for elaboration that a State's interest in "safeguarding the physical and psychological *757 well-being of a minor" is "compelling." Globe Newspaper "A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens." Accordingly, we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights. In the Court held that a statute prohibiting use of a child to distribute literature on the street was valid notwithstanding the statute's effect on a First Amendment activity. In we sustained a New law protecting children from exposure to nonobscene literature. Most recently, we held that the Government's interest in the "well-being of its youth" justified special treatment of indecent broadcasting received by adults as well as children. The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The legislative findings accompanying passage of the New laws reflect this concern: "[T]here has been a proliferation of exploitation of children as subjects in sexual performances. The care of children is a sacred trust and should not be abused by those who seek to profit through a commercial network based upon the exploitation of children. The public policy of the state demands the protection of children from exploitation through sexual performances." 1977 N. Y. Laws, ch. 910, 1.[8] *758 We shall not second-guess this legislative judgment. Respondent has not intimated that we do so. Suffice it to say that virtually all |
Justice White | 1,982 | 6 | majority | New York v. Ferber | https://www.courtlistener.com/opinion/110794/new-york-v-ferber/ | we do so. Suffice it to say that virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating "child pornography." The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.[9] That judgment, we think, easily passes muster under the First Amendment. *759 Second. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation.[10] Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if * not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low-profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product. Thirty-five States and Congress have concluded that restraints on the distribution of pornographic materials are required in order to effectively combat the problem, and there is a body of literature and testimony to support these legislative conclusions.[11] Cf. United Respondent does not contend that the State is unjustified in pursuing those who distribute child pornography. Rather, he argues that it is enough for the State to prohibit the distribution of materials that are legally obscene under the Miller test. While some States may find that this approach properly accommodates its interests, it does not follow *761 that the First Amendment prohibits a State from going further. The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed |
Justice White | 1,982 | 6 | majority | New York v. Ferber | https://www.courtlistener.com/opinion/110794/new-york-v-ferber/ | of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be "patently offensive" in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. "It is irrelevant to the child [who has been abused] whether or not the material has a literary, artistic, political or social value." Memorandum of Assemblyman Lasher in Support of 263.15. We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem.[12] Third. The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation.[13] "It rarely has been suggested that *762 the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute."[14] We note that were the statutes outlawing the employment of children in these films and photographs fully effective, and the constitutionality of these laws has not been questioned, the First Amendment implications would be no greater than that presented by laws against distribution: enforceable production laws would leave no child pornography to be marketed.[15] Fourth. The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis. We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance *763 or scientific or educational work. As a state judge in this case observed, if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized.[16] Simulation outside of the prohibition of the statute could provide another alternative. Nor is there any question here of censoring a particular literary theme or portrayal of sexual activity. The First Amendment interest is limited to that of rendering the portrayal somewhat more "realistic" by utilizing or photographing children. Fifth. Recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with our earlier decisions. "The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech." See also "[I]t is the content of [an] utterance that determines whether |
Justice White | 1,982 | 6 | majority | New York v. Ferber | https://www.courtlistener.com/opinion/110794/new-york-v-ferber/ | "[I]t is the content of [an] utterance that determines whether it is a protected epithet or an unprotected `fighting comment.'" at See Leaving aside the special considerations when public officials are the target, New Times a libelous publication is not protected by the Constitution. (2). Thus, it is not rare that a content-based classification of speech has been accepted because it may be appropriately generalized that within the confines of the given classification, the evil to be restricted so overwhelmingly outweighs *764 the expressive interests, if any, at stake, that no process of case-by-case adjudication is required. When a definable class of material, such as that covered by 263.15, bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment. C There are, of course, limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment. As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed. Here the nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age.[17] The category of "sexual conduct" proscribed must also be suitably limited and described. The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole. We note that the distribution *765 of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection. As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant. Smith v. (9); D Section 263.15's prohibition incorporates a definition of sexual conduct that comports with the above-stated principles. The forbidden acts to be depicted are listed with sufficient precision and represent the kind of conduct that, if it were the theme of a work, could render it legally obscene: "actual or |
Justice White | 1,982 | 6 | majority | New York v. Ferber | https://www.courtlistener.com/opinion/110794/new-york-v-ferber/ | of a work, could render it legally obscene: "actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals." 263.00(3). The term "lewd exhibition of the genitals" is not unknown in this area and, indeed, was given in Miller as an example of a permissible A performance is defined only to include live or visual depictions: "any play, motion picture, photograph or dance [or] other visual representation exhibited before an audience." 263.00(4). Section 263.15 expressly includes a scienter requirement. We hold that 263.15 sufficiently describes a category of material the production and distribution of which is not entitled to First Amendment protection. It is therefore clear that there is nothing unconstitutionally "underinclusive" about a statute that singles out this category of material for proscription.[18] It also follows that the State is not barred by *7 the First Amendment from prohibiting the distribution of unprotected materials produced outside the State.[19] III It remains to address the claim that the New statute is unconstitutionally overbroad because it would forbid the distribution of material with serious literary, scientific, or educational value or material which does not threaten the harms sought to be combated by the State. Respondent prevailed on that ground below, and it is to that issue that we now turn. The New Court of Appeals recognized that overbreadth scrutiny has been limited with respect to conductrelated regulation, but it did not apply the test enunciated in because the challenged statute, in its view, was directed at "pure speech." The court went on to find that 263.15 was fatally overbroad: "[T]he statute would prohibit the showing of any play or movie in which a child portrays a defined sexual act, real or simulated, in a nonobscene manner. It would also prohibit the sale, showing, or distributing of medical or educational materials containing photographs of such acts. *767 Indeed, by its terms, the statute would prohibit those who oppose such portrayals from providing illustrations of what they oppose." While the construction that a state court gives a state statute is not a matter subject to our review, ; this Court is the final arbiter of whether the Federal Constitution necessitated the invalidation of a state law. It is only through this process of review that we may correct erroneous applications of the Constitution that err on the side of an overly broad reading of our doctrines and precedents, as well as state-court decisions giving the Constitution too little shrift. A state court is not free to avoid a proper facial attack on federal constitutional grounds. |
Justice White | 1,982 | 6 | majority | New York v. Ferber | https://www.courtlistener.com/opinion/110794/new-york-v-ferber/ | to avoid a proper facial attack on federal constitutional grounds. By the same token, it should not be compelled to entertain an overbreadth attack when not required to do so by the Constitution. A The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court. ; United ; ; Yazoo & M. V. R. 226 U.S. 7, 9-220 In we recognized that this rule reflects two cardinal principles of our constitutional order: the personal nature of constitutional rights, 3 U.S. 420, and prudential limitations on constitutional adjudication.[20] In United at we *768 noted the "incontrovertible proposition" that it "`would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation,'" (quoting (3)). By focusing on the factual situation before us, and similar cases necessary for development of a constitutional rule,[] we face "flesh-and-blood"[22] legal problems with data "relevant and adequate to an informed judgment."[23] This practice also fulfills a valuable institutional purpose: it allows state courts the opportunity to construe a law to avoid constitutional infirmities. What has come to be known as the First Amendment overbreadth doctrine is one of the few exceptions to this principle and must be justified by "weighty countervailing policies." United at The doctrine is predicated on the sensitive nature of protected expression: "persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression." Village of ; at 5. It is for this reason that we have allowed persons to attack overly broad statutes even though the conduct of the person making the attack is clearly unprotected and could be proscribed by a law drawn with the requisite specificity. ; ; United at -22; at 5. The scope of the First Amendment overbreadth doctrine, like most exceptions to established principles, must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted. Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is "strong medicine" and have employed it with hesitation, and then "only as a last resort." We have, in consequence, insisted that the overbreadth involved be "substantial" before the statute involved will be invalidated on its face.[24] *770 |
Justice White | 1,982 | 6 | majority | New York v. Ferber | https://www.courtlistener.com/opinion/110794/new-york-v-ferber/ | the statute involved will be invalidated on its face.[24] *770 In we explained the basis for this requirement: "[T]he plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from `pure speech' toward conduct and that conducteven if expressivefalls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effectat best a predictioncannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf." We accordingly held that "particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Ibid.[25] *771 examined a regulation involving restrictions on political campaign activity, an area not considered "pure speech," and thus it was unnecessary to consider the proper overbreadth test when a law arguably reaches traditional forms of expression such as books and films. As we intimated in the requirement of substantial overbreadth extended "at the very least" to cases involving conduct plus speech. This case, which poses the question squarely, convinces us that the rationale of is sound and should be applied in the present context involving the harmful employment of children to make sexually explicit materials for distribution. The premise that a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications is hardly novel. On most occasions involving facial invalidation, the Court has stressed the embracing sweep of the statute over protected expression.[26]*772 Indeed, JUSTICE BRENNAN observed in his dissenting opinion in : "We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application, and in that sense a requirement of substantial overbreadth is already implicit in the doctrine." The requirement of substantial overbreadth is directly derived from the purpose and nature of the doctrine. While a sweeping statute, or one incapable of limitation, has the potential to repeatedly chill the exercise of expressive activity by many individuals, the extent of deterrence of protected speech can be |
Justice White | 1,982 | 6 | majority | New York v. Ferber | https://www.courtlistener.com/opinion/110794/new-york-v-ferber/ | individuals, the extent of deterrence of protected speech can be expected to decrease with the declining reach of the [27] This observation appears equally applicable to the publication of books and films as it is to activities, such as picketing or participation in election campaigns, which have previously been categorized as involving conduct plus speech. We see no appreciable difference between the position of a publisher or bookseller in doubt as to the reach of New 's child pornography law and the situation faced by the state employees with respect to that State's restriction on partisan political activity. Indeed, it could reasonably be argued that the bookseller, with an economic incentive to sell materials that may fall within the statute's scope, may be less likely to be deterred than the employee who wishes to engage in political campaign activity. Cf. This requirement of substantial overbreadth may justifiably be applied to statutory challenges which arise in defense *773 of a criminal prosecution as well as civil enforcement or actions seeking a declaratory judgment. Cf. Indeed, the Court's practice when confronted with ordinary criminal laws that are sought to be applied against protected conduct is not to invalidate the law in toto, but rather to reverse the particular conviction. ; We recognize, however, that the penalty to be imposed is relevant in determining whether demonstrable overbreadth is substantial. We simply hold that the fact that a criminal prohibition is involved does not obviate the need for the inquiry or a priori warrant a finding of substantial overbreadth. B Applying these principles, we hold that 263.15 is not substantially overbroad. We consider this the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications. New as we have held, may constitutionally prohibit dissemination of material specified in 263.15. While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic would fall prey to the statute. How often, if ever, it may be necessary to employ children to engage in conduct clearly within the reach of 263.15 in order to produce educational, medical, or artistic works cannot be known with certainty. Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute's reach. Nor will we assume that the New courts will widen the possibly invalid reach of the statute by giving an expansive construction |
Justice White | 1,978 | 6 | majority | Federal Maritime Comm'n v. Pacific Maritime Assn. | https://www.courtlistener.com/opinion/109808/federal-maritime-commn-v-pacific-maritime-assn/ | Section 5 of the Shipping Act, 96, as amended, 46 U.S. C. 84,[] requires the filing with the *43 Federal Maritime Commission (Commission) of seven categories of agreements between a common carrier by water, or "other person subject to this chapter" and another such carrier *44 or person.[2] Among those agreements that must be filed are those "controlling, regulating, preventing, or destroying competition." The Commission is empowered to "disapprove, cancel, or modify" any such agreement that it finds to be "unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or to operate to the detriment *45 of the commerce of the United States, or to be contrary to the public interest" and is directed to approve all filed agreements that do not transgress these standards. Before approval or after disapproval, agreements subject to filing are unlawful and may not be implemented.[3] Agreements that are "lawful under this section" are excepted from those provisions of the antitrust laws contained in - and 5 of Title 5 of the United States Code. Violations of the section are punishable by civil fines of not more than $,000 per day. The issue in this case is whether 5 of the Shipping Act requires the filing and the Commission's approval or disapproval of a collective-bargaining agreement between respondent Pacific Maritime Association (PMA), a collective-bargaining agent for a multiemployer bargaining unit made up of various employers of Pacific coast dockworkers,[4] and respondent International Longshoremen's and Warehousemen's Union (Union). I This case arose when eight municipal corporations, owners and operators of Pacific coast port facilities and not members of the PMA,[5] filed a petition with the Commission asserting that a 972 agreement between PMA and the Union was subject to filing and approval under 5 and was violative of 5, 6, and 7 of the Shipping Act[6] because it was unjust, *46 discriminatory, and contrary to the public interest. Prior to this time, the nonmember ports had negotiated separate agreements with the Union which contained terms and conditions that in some respects differed from those contained in the collective-bargaining contracts between PMA and the Union. Fringe-benefit provisions varied, depending on the result of individual negotiations.[7] In some respects the ports enjoyed more flexible work rules than did PMA; the ports, for example, were often permitted to use "steady crews," whereas, under the PMA contract, rotation of workers among employers was the general rule.[8] The existence of separate agreements between the Union and the public ports also enabled the Union to exert negotiating pressure on PMA by striking PMA while continuing to work for the |
Justice White | 1,978 | 6 | majority | Federal Maritime Comm'n v. Pacific Maritime Assn. | https://www.courtlistener.com/opinion/109808/federal-maritime-commn-v-pacific-maritime-assn/ | PMA by striking PMA while continuing to work for the individual ports. The ports, nevertheless, were permitted by virtue of separate agreements with PMA to secure their work force through the PMA-Union hiring halls[9] and to make the particular fringe-benefit payments *47 called for by their individual contracts by contributing to the fringe-benefit funds maintained by PMA.[0] During contract negotiations between PMA and the Union beginning in November 970, one of the issues raised was whether nonmembers should continue to be allowed to participate in PMA hiring-hall and fringe-benefit plans. These privileges PMA desired to eliminate.[] Ultimately, the parties arrived at a Supplemental Memorandum of Understanding described as follows by the court below: "In the Supplemental Memorandum the parties agreed that PMA would accept contributions from all nonmembers who executed a uniform participation agreement. This standard agreement, included in the Supplemental Memorandum, would require nonmembers, as a condition of using the joint dispatching halls for jointly registered employees, to participate in all fringe benefit programs, pay the same dues and assessments as PMA members, use steady men `in the same way a member may do so,' and be treated as a member during work stoppages." 77 U. S. App. D. C. 248, 250-25,[2] *48 It was this agreement that the public ports asserted was subject to filing and Commission action under 5. In October 972, the Commission severed for initial determination *49 the issues of its jurisdiction over the challenged agreement, and, if the Supplemental Memorandum of Understanding was otherwise covered by 5, whether there were considerations rooted in the national labor policy that would nevertheless exempt the agreement from the filing and approval requirements of the section. Thereafter, on June 24, 973, PMA and the Union arrived at a new collective-bargaining agreement, which included a revised nonmember participation agreement replacing the Supplemental Memorandum of Understanding. By additional order, the Commission extended its jurisdictional inquiry to include the new contract with its nonmember participation provisions, which, although revised, were deemed by the Commission to have essentially the same impact for present purposes as the Supplemental Memorandum of Understanding. In its subsequent report and order, Pacific Maritime Assn. Cooperative Working Arrangements, 8 F. M. C. 96 (975), the Commission first rejected the suggestion that because the case called for accommodating the Shipping Act and the labor statutes, as well as determining whether the parties had exceeded the scope of legitimate bargaining, the Commission should not itself decide the issue but should defer to the courts or to the National Labor Relations Board.[3] The Commission *50 also rejected the argument, as it |
Justice White | 1,978 | 6 | majority | Federal Maritime Comm'n v. Pacific Maritime Assn. | https://www.courtlistener.com/opinion/109808/federal-maritime-commn-v-pacific-maritime-assn/ | Board.[3] The Commission *50 also rejected the argument, as it had rejected similar arguments in New York Shipping Assn.NYSA-ILA Man-Hour/Tonnage Method of Assessment, 6 F. M. C. 38 aff'd, (CA2), cert. denied, that 5's filing requirement was not triggered because some members of PMA were neither carriers nor "other persons subject to the act" or because PMA's contract was with a labor union, which also was neither a carrier nor "other person."[4] The Commission went on to find that the purpose of the nonmember participation agreement was to place nonmembers on the same competitive basis as members of the PMA and that its effect was to control or affect competition between members and nonmembers. The Commission concluded that the agreement was thus subject to filing and approval or disapproval under 5, unless, because it was part of a collective-bargaining contract, it fell within that category of contracts that the national labor policy placed beyond the reach of the Shipping Act. The Commission had recognized this so-called "labor exemption" in United Stevedoring Corp. v. Boston Shipping Assn., 6 F. M. C. 7 (972), and it proceeded *5 to adjudicate the status of the instant agreement under the criteria announced in that case.[5] The Commission's ultimate conclusion was that the nonmember participation agreement was not entitled to exemption from filing under 5, primarily because its thrust was to *52 bring nonmembers into parity with members by requiring employers outside the bargaining unit to submit to bargaining-unit terms. The result had "a potentially severe and adverse effect upon competition," 8 F. M. C., at 208, and only a superficial effect on the collective-bargaining process. The agreement was thus subject to filing and approval under 5. The Court of Appeals for the District of Columbia Circuit set aside the Commission's order, holding that the disputed agreement was wholly beyond the Commission's jurisdiction under 5. 77 U. S. App. D. C. 248, The Commission's approach, which extends to labor agreements an exemption from Shipping Act requirements roughly equivalent to the exemption from the antitrust laws that the courts hold the labor statutes require for collective-bargaining contracts, was deemed an inadequate response to the demands of the national labor policy. Without disturbing the Commission's conclusion that the purpose and effect of the nonmember participation agreement at issue here were "to control or affect competition between members and nonmembers," 8 F. M. C., at 20, and hence that it was within the literal terms of 5, and without holding that the agreement would qualify for an antitrust exemption under the relevant cases, the Court of Appeals ruled |
Justice White | 1,978 | 6 | majority | Federal Maritime Comm'n v. Pacific Maritime Assn. | https://www.courtlistener.com/opinion/109808/federal-maritime-commn-v-pacific-maritime-assn/ | exemption under the relevant cases, the Court of Appeals ruled that any collective-bargaining contract, whatever its impact on competition, was exempt from filing with the Commission. Alternatively, the Court of Appeals held that, even if its per se rule excluding collective-bargaining agreements from the reach of 5 was infirm, the Commission had erred in refusing to exempt from filing the particular nonmember participation agreement in question here. We granted the petition for certiorari filed by the United States and the Commission, which raises two issues: whether the national labor policy requires exempting collective-bargaining contracts as a class from the filing *53 requirements of 5 and, if not, whether the agreement at issue here is nevertheless exempt from those requirements. II We cannot agree with the holding below that, whatever their effect on competition might be, collective-bargaining contracts are categorically exempt from the filing requirements of 5 of the Shipping Act. Section 5 on its face reaches any contract between carriers "controlling, regulating, preventing, or destroying competition." If a contract is of that nature, it is within the reach of 5 and subject to the Commission's jurisdiction, and it is quite untenable to suggest that collective-bargaining contracts never control, regulate, prevent, or destroy competition. See Mine ; Allen Bradley If subject to 5, a filed agreement must be approved by the Commission unless it is discriminatory or unfair, operates to the detriment of the commerce of the United States, or is contrary to the public interest. Because 5 provides that an approved agreement will not be subject to the antitrust laws, it is apparent that Congress assigned to the Commission, not to the courts, the task of initially determining which anticompetitive restraints are to be approved and which are to be disapproved under the general statutory guidelines. It is equally apparent that as a substantive matter, Congress anticipated that various anticompetitive restraints, forbidden by the antitrust laws in other contexts, would be acceptable in the shipping industry. That the Commission is the public arbiter of competition in the shipping industry is reflected in prior holdings that in reaching its decision under 5 the Commission must "consider the antitrust implications of an agreement before approving it," and should approve an anticompetitive agreement only if it is "`required by a serious transportation need, necessary *54 to secure important public benefits or in furtherance of a valid regulatory purpose of the Shipping Act.'" The Commission, nevertheless, may approve agreements "even though they are violative of the antitrust laws" The removal of the task of initially overseeing private restraints on competition from the regime of |
Justice White | 1,978 | 6 | majority | Federal Maritime Comm'n v. Pacific Maritime Assn. | https://www.courtlistener.com/opinion/109808/federal-maritime-commn-v-pacific-maritime-assn/ | initially overseeing private restraints on competition from the regime of the antitrust laws and the courts is not a historical anachronism that we are entitled to ignore. Congress responded to Federal Maritime which held that a particular system of dual rates adopted by a shipping conference violated 4 of the Shipping Act, by suspending the effect of that decision pending full study and permanent legislation. After extensive investigation, important amendments were forthcoming in 96, Stat. 763; but the Act's basic approachthat the regulation of competition in the shipping industry is to be an administrative function, subject to judicial reviewwas reaffirmed. Indeed, 5 was amended "by enlarging and clarifying the [Commission's] powers over agreements filed thereunder" by, among other things, the addition of the public interest standard to 5. H. R. Rep. No. 498, 87th Cong., st Sess., 7-8 (96). Section 5 was declared by the Antitrust Subcommittee of the House Judiciary Committee, which undertook a three-year study of "the entire gamut of antitrust problems in the ocean freight industry" to be "the heart of the Shipping Act." H. R. Rep. No. 49, 87th Cong., 2d Sess., 2, 5 (962). It is appropriate, therefore, that the Court has recognized the broad reach of 5 and resisted improvident attempts to narrow it. In a collective-bargaining agreement between PMA and the Union included a provision requiring PMA to create a sizable fund to be used to mitigate the impact of technological unemployment upon employees. PMA reserved the right to *55 determine how the fund was to be raised, and thereafter it settled upon a particular method by which its members would contribute to the fund. The issue then arose whether this latter agreement was within the Commission's jurisdiction under 5. The Commission held that, although the assessment formula arrived at was within the literal language of the section, it was exempt from filing since 5 should be applied only to those agreements that affect competition among the carriers in their dealings with the shipping and traveling public.[6] The Court of Appeals affirmed; but we reversed, rejecting the Commission's "extremely narrow view of a statute that uses expansive language." In response to the Commission's expressed desire to read 5 narrowly in order to minimize the antitrust exemption, we noted that "antitrust exemption results, not when an agreement is submitted for filing, but only when the agreement is actually approved" and that "in deciding whether to approve an agreement, the Commission is required under 5 to consider antitrust implications." Hence, "[t]o limit 5 agreements that `affect competition,' as the Commission used that phrase simply [did] |
Justice White | 1,978 | 6 | majority | Federal Maritime Comm'n v. Pacific Maritime Assn. | https://www.courtlistener.com/opinion/109808/federal-maritime-commn-v-pacific-maritime-assn/ | `affect competition,' as the Commission used that phrase simply [did] not square with the structure of the statute," and "would [render] virtually meaningless" major parts of 5's filing 390 U.S., n. 23. Because Volkswagenwerk dealt only with the agreed-upon assessment formula, the Court noted that no question had been raised about the validity of the underlying collective-bargaining contract. The opinion does not, therefore, determine one way or the other whether collective-bargaining contracts are ever within the reach of 5; but the Court did *56 emphasize the breadth of the statutory language and the determination of Congress, reflected in 5, to "subject to the scrutiny of a specialized governmental agency the myriad of restrictive agreements in the maritime industry." At the very least, the opinion counsels against implying broad exemptions for agreements, collective-bargaining contracts or otherwise, whose impact on competition is "neither de minimis nor routine." In the present case, the Court of Appeals' removal from the Commission's jurisdiction of all collective-bargaining contracts, regardless of how anticompetitive they might be, and whether or not exempt under the antitrust laws, would appear to be contrary to the plain terms of 5. The Court of Appeals was not unaware that it was depriving the Commission of the power to approve or disapprove anticompetitive contracts that 5 on its face clearly confers, but it thought its holding necessary to implement the collective-bargaining system established by the federal statutes dealing with labor-management relations, including those in the shipping industry. While there is no doubt that the courts must give all due effect to each of two seemingly overlapping statutes, we think the Court of Appeals misconceived its task here. The principal objection to Commission jurisdiction over any bargaining agreement was that under 5 agreements subject to filing cannot be implemented prior to approval or after disapproval. This alone was enough to exempt collective-bargaining contracts from filing under 5, for, as the Court of Appeals understood the collective-bargaining system mandated by the National Labor Relations Act, one of its essential elements is for the parties to be legally free "to implement promptly the compromise agreements worked out in eleventh-hour bargaining sessions" 77 U. S. App. D. C., at 259, Subjecting negotiated labor agreements to filing and approval "would make nearly impossible the maintenance or prompt restoration of industrial peace." *57 Prompt implementation of lawful collective-bargaining agreements is indeed an important consideration, but the fears of the Court of Appeals as to the possible impact of the Commission's decision on the collective-bargaining process are exaggerated and do not justify the major surgery performed on 5 by the |
Justice White | 1,978 | 6 | majority | Federal Maritime Comm'n v. Pacific Maritime Assn. | https://www.courtlistener.com/opinion/109808/federal-maritime-commn-v-pacific-maritime-assn/ | not justify the major surgery performed on 5 by the decision below. In the first place, the Commission's decision would not require the filing of all or even most of the collective-bargaining contracts entered into in the shipping industry. Because 5 applies only to agreements between at least two parties subject to the Act, see n. collective-bargaining contracts between the Union and a single employer would not have to be filed. Moreover, not all collective-bargaining agreements between the Union and PMA would be subject to the requirements of 5. Under 5, filed agreements must be approved unless they operate to the detriment of commerce, are contrary to the public interest, or otherwise fail to satisfy the specified standards. Under these standards, it would be difficult to conclude that ordinary collective-bargaining agreements establishing wages, hours, and working conditions in a bargaining unit could or would be disapproved as contrary to the public interest or detrimental to commerce. Such contracts are the product of bargaining compelled by the labor laws, which themselves were enacted pursuant to the power of Congress to regulate commerce in the public interest. They are also the kind of contracts that the courts, because of the collective-bargaining regime established by the labor laws, in the main have declared to be beyond the reach of the antitrust laws, the statutes specifically designed to protect the commerce of the United States from anticompetitive restraints. The Commission has recognized that the vast majority of collective-bargaining arrangements cannot be deemed candidates for disapproval under 5 and that they would be routinely approved even if filed. Consistent with its power under 35 of the Shipping Act, as added, 80 Stat. *58 358, 46 U.S. C. 833a, in appropriate circumstances to exempt from 5 filing requirements "any class of agreements between persons subject to this chapter or any specified activity of such persons"[7] the Commission, by adjudication, has determined that it will recognize a "labor exemption" from the filing requirements of 5 for collective-bargaining contracts falling within the boundaries of the exemption defined by its announced criteria.[8] In doing so, the Commission has been guided by its understanding of our cases, and those of other courts, that recognize and define an exemption from the antitrust laws for certain contracts between management and labor. It appears to be the intention of the Commission to exercise jurisdiction over only those collective-bargaining contracts that in its view would not be exempt from examination under antitrust laws and that should be reviewed under Shipping Act standards. We therefore doubt that the Commission's decision will have a broad impact |
Justice White | 1,978 | 6 | majority | Federal Maritime Comm'n v. Pacific Maritime Assn. | https://www.courtlistener.com/opinion/109808/federal-maritime-commn-v-pacific-maritime-assn/ | doubt that the Commission's decision will have a broad impact on labor-management relations. At least, it has not been demonstrated at this juncture that the collective-bargaining concerns cited by the Court of Appeals are sufficient to require complete exemption for labor agreements and the consequent partial emasculation of the statutory scheme for administrative review of anticompetitive agreements. *59 Second, the Commission, in any event, claims the authority, which it has exercised, see New York Shipping Assn.NYSA-ILA Man-Hour/Tonnage Method of Assessment, 6 F. M. C. 38 aff'd, (CA2), cert. denied, to issue conditional approval of filed agreements pending final decision as to their legality; and it is not clear why this mechanism is not amply responsive to the fears of undue delay or why its adequacy should now be debated since the parties could have, but did not, request early, conditional approval. The Court of Appeals did not deny that the Commission could permit implementation of filed agreements prior to a final decision, but it thought the mechanism only a partial alleviation of the problem since the parties still would face the "specter" of a later administrative invalidation of perhaps a crucial part of a collective-bargaining contract. But it is not immediately obvious why provisions of a collective-bargaining contract that appear obviously illegal to the Commission should be immediately implemented pending final decision. Furthermore, if a collective-bargaining contract having serious anticompetitive aspects is not subject to filing under 5, as the Court of Appeals would have it, the parties would in any event face the uncertainty of possible invalidation and of treble damages after long and difficult litigation in an antitrust court. At least under 5, it would be possible that an anticompetitive collective-bargaining contract that would not survive scrutiny under the antitrust laws could be approved by the Commission, if it served important regulatory goals, and hence would be insulated from antitrust attack. Indeed, a critical aspect of the regulatory plan devised by Congress is the requirement of administrative judgment with respect to all of the specified contracts required to be filed. It was therefore error for the Court of Appeals to hold that the legality of collective-bargaining contracts, challenged as anti-competitive and nonexempt, must be judicially determined under the antitrust laws without interposition of the administrative *60 judgment and without regard for Shipping Act considerations. III The Court of Appeals also ruled that even absent a blanket exemption from 5 for collective-bargaining agreements, the Commission should not have exercised 5 jurisdiction in this case but should have exempted the nonmember participation agreement from filing. In doing so, the court |
Justice White | 1,978 | 6 | majority | Federal Maritime Comm'n v. Pacific Maritime Assn. | https://www.courtlistener.com/opinion/109808/federal-maritime-commn-v-pacific-maritime-assn/ | nonmember participation agreement from filing. In doing so, the court appeared to disagree with the Commission's weighing of the impact on shipping interests of holding the agreement exempt against the impact on collective-bargaining interests of requiring filing and approval under 5. Perhaps because under the Act this kind of comparison must be the business of the Commission if all collective agreements are not exempt, the Court of Appeals offered little to support this alternative judgment. It suggested that the Commission had failed to realize that the nonmember participation agreement in the last analysis was merely an effort to force the public ports into a multiemployer bargaining unit against their will, an issue clearly within the National Labor Relations Board's authority and one in which the Commission should not intermeddle. The argument is wide of the mark. The Commission has not challenged the power of the Board to determine bargaining units; neither the Commission nor the parties have authority to change a unit certified by the Board. Rather than relying on the Board to resolve any bargaining-unit problem, if there was one, PMA and the Union agreed to impose bargaining-unit terms on employers outside the unit. Furthermore, the Court of Appeals recognized that the "Supreme Court has ruled against primary jurisdiction in the NLRB for anticompetitive agreements," 77 U. S. App. D. C., at 543 F.2d, at 40, but went on to conclude that we had removed from all primary administrative cognizance the entire question of accommodating collective-bargaining considerations and the public interest in competition. We doubt that our *6 opinions should be so broadly read. Congress has not authorized the NLRB to police, modify, or invalidate collective-bargaining contracts aimed at regulating competition or to insulate bargaining agreements from antitrust attack. But here, as we have said, Congress took the different course of committing to the Commission the initial task of approving or disapproving all agreements that control, regulate, prevent, or destroy competition. However much the courts might consider this to be a judicial function, particularly when it is necessary to accommodate the possibly conflicting policies of the labor and shipping laws, we have no warrant to ignore congressional preferences written into 5 of the Shipping Act. IV Although the Court of Appeals did not otherwise challenge the content or application of the Commission's guidelines for resolving issues as to its jurisdiction over collective-bargaining agreements, the respondents urge that the Commission has misread the relevant cases. In particular, they fault the Commission's findings with respect to the competitive impact of the nonmember participation agreement and the failure to find that the |
Justice White | 1,978 | 6 | majority | Federal Maritime Comm'n v. Pacific Maritime Assn. | https://www.courtlistener.com/opinion/109808/federal-maritime-commn-v-pacific-maritime-assn/ | nonmember participation agreement and the failure to find that the terms under challenge constituted serious antitrust violations. These submissions are unsound. It is plain from our cases that an antitrust case need not be tried and a violation found before a determination can be made that a collective-bargaining agreement is not within the labor exemption, just as it is clear that denying the exemption does not mean that there is an antitrust violation.[9] Insofar as the asserted exemption for collective-bargaining contracts is concerned, *62 the Commission found all it needed to find to assume jurisdiction and proceed with the case under 5 when it concluded that PMA and the Union had undertaken to impose employment terms and conditions on employers outside the bargaining unit. As we have previously observed: "[T]here is nothing in the labor policy indicating that the union and the employers in one bargaining unit are free to bargain about the wages, hours and working conditions of other bargaining units or to attempt to settle these matters for the entire industry." "[A] union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units." Mine 38 U. S., at 665-666. Here, both the Commission and the Court of Appeals understood the nonmember participation agreement to require nonmembers to participate in all fringe-benefit plans agreed upon between the PMA and the Union, to observe PMA-determined labor policies in the event of a work stoppage, and to observe the same work rules with respect to the hiring-hall work force. The result, the Commission found, would be higher costs for nonmembers and the elimination of what the PMA considered to be "a competitive disadvantage" to its members.[20] Accordingly, the Commission was warranted in finding that "the purpose of the supplemental agreement *63 [was] to place nonmembers on the same `competitive' basis as members of the PMA." 8 F. M. C., at 20. We are thus unpersuaded that the Commission did not make the requisite findings to sustain its view. Nor are we impressed with other arguments that in one guise or another are contentions that the Commission, for lack of ability and experience, should not purport to deal with any collective-bargaining agreement but should leave the entire matter of anticompetitive labor-management contracts to the courts and the antitrust laws. As we have said, Congress has made the Commission the arbiter of competition in the shipping industry; and if there are labor agreements so anticompetitive that they are vulnerable under the antitrust |
Justice White | 1,978 | 6 | majority | Federal Maritime Comm'n v. Pacific Maritime Assn. | https://www.courtlistener.com/opinion/109808/federal-maritime-commn-v-pacific-maritime-assn/ | agreements so anticompetitive that they are vulnerable under the antitrust laws, it is difficult to explain why the Commission should not deal with them in the first instance and either approve or disapprove them under the standards specified in 5. In summary, we think the Commission was true to 5 and that it has also demonstrated its sensitivity to the national labor policy by exempting from the filing requirements all collective-bargaining contracts that in its view would also be exempt from the antitrust laws. Because the Commission also has the power to approve filed agreements, even though anticompetitive, the Commission may also take into account any special needs of labor-management relationships in the shipping industry. We should add that since the Shipping Act contains its own standards for exempting and for approving and disapproving agreements between carriers, and because the ultimate issue in cases such as this is the accommodation of the Shipping Act and the labor laws, rather than the labor laws and the antitrust laws, it will not necessarily be a misapplication of the statutes if the exemption for collective-bargaining contracts from Shipping Act requirements is not always exactly congruent with the so-called labor exemption from the antitrust laws as understood by the courts. *64 The judgment of the Court of Appeals is reversed. It is so ordered. MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. MR. JUSTICE POWELL, with whom MR. JUSTICE BRENNAN and MR. |
Justice Rehnquist | 1,979 | 19 | dissenting | Gladstone, Realtors v. Village of Bellwood | https://www.courtlistener.com/opinion/110056/gladstone-realtors-v-village-of-bellwood/ | Title VIII of the Civil Rights Act of 1968, as amended, 42 U.S. C. 3601 et seq., which outlaws discrimination in virtually all aspects of the sale or rental of housing, provides two distinct and widely different routes into federal court. Under 810, 42 U.S. C. 3610,[1] a "person aggrieved," *117 that is, "[a]ny person who claims to have been injured by a discriminatory housing practice," may seek administrative relief from the Secretary of the Department of Housing and *118 Urban Development and, if the Secretary cannot within 30 days resolve the dispute "by informal methods of conference, conciliation, and persuasion," may bring a civil action in federal district court. In we held that the broad definition given to the term "person aggrieved" in 810 evinced "`a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.'" The second route into federal court under Title VIII 812[2]provides simply that "[t]he rights granted by sections *119 803, 804, 805, and 806 of this title may be enforced by civil actions in appropriate United States district courts" 42 U.S. C. 3612. Despite the absence from 812 of the "person aggrieved" language so crucial to our holding in regarding standing under 810, the Court today holds that "[s]tanding under 812, like that under 810, is `as broa[d] as is permitted by Article III of the Constitution.'" Ante, at 109, quoting I think that the Court's decision ignores the plain language of 812 and makes nonsense out of Title VIII's formerly sensible statutory enforcement scheme. I The doctrine of standing is comprised of both constitutional limitations on the jurisdiction of federal courts and prudential rules of self-restraint designed to bar from federal court those parties who are ill-suited to litigate the claims they assert. In its constitutional dimension, the standing inquiry asks whether the party before the court has "`such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify *120 exercise of the court's remedial powers on his behalf." quoting The crucial elements of standing are injury in fact and causation. To demonstrate the "personal stake" in the litigation necessary to satisfy the Constitution, the party must suffer "a distinct and palpable injury." that bears a "`fairly traceable' causal connection" to the challenged action. Duke Power v. Carolina Environmental Study Group, Inc., quoting Arlington Accordingly, when an objection to a party's standing to litigate in federal court is constitutionally based, "the relevant inquiry is whether the plaintiff has shown an injury to himself that is likely to |
Justice Rehnquist | 1,979 | 19 | dissenting | Gladstone, Realtors v. Village of Bellwood | https://www.courtlistener.com/opinion/110056/gladstone-realtors-v-village-of-bellwood/ | has shown an injury to himself that is likely to be redressed by a favorable decision." A plaintiff who alleges sufficient injury to satisfy these minimum constitutional limitations on federal jurisdiction may nonetheless be barred from federal court under our prudential standing rules because he asserts a generalized grievance shared in substantially equal measure by all or a large class of citizens, or because he seeks to "rest his claim to relief on the legal rights or interests of third parties" rather than his own. These prudential rules, however, are subject to modification by Congress, which may grant to any person satisfying Art. III's minimum standing requirements a right "to seek relief on the basis of the legal rights and interests of others, and, indeed, [to] invoke the general public interest in support of [his] claim." Congress did just that in enacting 810 of Title VIII, which grants to "[a]ny person who claims to have been injured by a discriminatory housing practice" a right to seek federal administrative and judicial relief. In *121 we held that the broad definition given "person aggrieved" in 810 indicated a congressional intent to accord apartment dwellers, who had not themselves suffered discrimination, an actionable right to be free from the adverse consequences flowing to them from racially discriminatory rental practices directed at third parties.[3] Plaintiffs' alleged "loss of important benefits from interracial associations," was sufficient to satisfy the injury-in-fact requirement of Art. III. In the case now before us, respondentsthe village of Bellwood, five of its residents, and one resident of a neighboring communitybrought suit against petitioner real estate firms, alleging that the firms had violated both 42 U.S. C. 1982 and 804 of Title VIII by "steering" prospective homebuyers to different areas in and around Bellwood according to their race. Like plaintiffs in the individual respondents allege that petitioners' practice of racial steering has deprived them of "the social and professional benefits of living in an integrated society."[4] App. 6, 99. Respondent village of Bellwood alleges that it has been injured "by having [its] housing market wrongfully and illegally *122 manipulated to the economic and social detriment of [its] citizens." Unlike plaintiffs in however, respondents have not proceeded under 810 of Title VIII, choosing instead to travel the direct route into federal court provided by 812. In pertinent part, 812 provides: "The rights granted by sections 803, 804, 805, and 806 may be enforced by civil actions in appropriate United States district courts without regard to the amount in controversy and in appropriate State or local courts of general jurisdiction." 42 U.S. C. |
Justice Rehnquist | 1,979 | 19 | dissenting | Gladstone, Realtors v. Village of Bellwood | https://www.courtlistener.com/opinion/110056/gladstone-realtors-v-village-of-bellwood/ | State or local courts of general jurisdiction." 42 U.S. C. 3612 (a). The language of 812 contains no indication that Congress intended to authorize the commencement of suits under Title VIII by persons who would otherwise be barred from federal court by prudential standing rules. Indeed, were 812 the only method for enforcing Title VIII, respondentswho were not themselves discriminated against by petitionerscould hardly argue that they were statutorily authorized to seek relief on the basis of legal rights and interests of third parties who had been racially "steered" into and away from certain areas in the community. The Court, however, in effect reads the broadly defined "person aggrieved" language of 810 into 812, holding that the alternative routes into federal court provided under the sections are available to precisely the same class of plaintiffs. The language and structure of Title VIII lead me to a contrary conclusion. II The term "person aggrieved" is used throughout 810no less than four timesto denominate the proper 810 claimant;[5] by contrast, in 812 Congress wholly avoided use of this broadly defined term, preferring instead the familiar "plaintiff." Noting that 812 is phrased in the passive voice, *123 the Court concludes that the absence of the "person aggrieved" language from the provision "does not indicate that standing is more limited under that provision than under 810." Ante, at 103 (emphasis added). The point of our decision in however, was that the presence of the "person aggrieved" language in 810 demonstrated Congress' affirmative intent to abrogate prudential standing rules and to expand standing under the section to the full extent permitted by Art. III of the Constitution. It thus follows that the absence of "person aggrieved" from 812 indicates that Congress did not intend to abrogate the normal prudential rules of standing with regard to 812. Consistent with 810's broad grant of standing is the language chosen by Congress to define the scope of the civil action that may be brought under the section: "[T]he person aggrieved may commence a civil action in any appropriate United States district court to enforce the rights granted or protected by this title" 42 U.S. C. 3610 (d) (emphasis added). Section 812, in contrast, authorizes the commencement of a civil action to enforce only "[t]he rights granted by," as opposed to "rights granted or protected by," 803, 804, 805, and 806. Clearly, Congress contemplated that 812 suits could be instituted only by persons alleging injury to rights expressly secured under the enumerated sections. Section 804, the provision allegedly offended by petitioners, provides in pertinent part: "[I]t shall be unlawful |
Justice Rehnquist | 1,979 | 19 | dissenting | Gladstone, Realtors v. Village of Bellwood | https://www.courtlistener.com/opinion/110056/gladstone-realtors-v-village-of-bellwood/ | by petitioners, provides in pertinent part: "[I]t shall be unlawful "(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin. "(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or *124 in the provision of services or facilities in connection therewith, because of race, color, religion, sex, or national origin. "(d) To represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available." as amended, 88 Stat. 9, 42 U.S. C. 3604. In essence, 804 grants to all persons[6] seeking housing the right not to be discriminated against on the basis of race, color, religion, sex, or national origin. Nowhere in the section are the individual respondents granted a right to reap the "social and professional benefits of living in an integrated society." Nor does 804 grant the village of Bellwood an actionable right not to have its housing market "wrongfully and illegally manipulated." Accordingly, respondents have suffered no injury to "rights granted by [ 804]." The structure of both 810 and 812 and the significant differences between the two enforcement provisions further support the conclusion that Congress intended to restrict access to federal courts under 812 to a more limited class of plaintiffs than that contemplated under 810. A "person aggrieved" proceeding under 810 must first file a complaint with the Secretary of Housing and Urban Development, who is authorized "to try to eliminate or correct the alleged discriminatory housing practice by informal methods of conference, conciliation, and persuasion." 42 U.S. C. 3610 (a). The Secretary, however, must defer to the appropriate state *125 or local agency whenever state or local fair-housing laws provide rights and remedies substantially equivalent to those secured under Title VIII. The Secretary may recommence action on the complaint only upon certification that such action is necessary to protect the rights of the parties or the interest of justice. 42 U.S. C. 3610 (c). If the Secretary's informal efforts prove futile, the "person aggrieved" may commence a civil action under Title VIII in federal district court, but only if he has no comparable judicial remedy under "substantially equivalent" state or local fair-housing legislation. 42 U.S. C. 3610 (d). The 812 "plaintiff" is not similarly encumbered. He may proceed |
Justice Rehnquist | 1,979 | 19 | dissenting | Gladstone, Realtors v. Village of Bellwood | https://www.courtlistener.com/opinion/110056/gladstone-realtors-v-village-of-bellwood/ | The 812 "plaintiff" is not similarly encumbered. He may proceed directly into federal court, deferring neither to the Secretary of Housing and Urban Development nor to state administrative and judicial processes. See 42 U.S. C. 3612 (a). The District Court is authorized to appoint an attorney for the 812 plaintiff and to waive payment of fees, costs, and security. 42 U.S. C. 3612 (b). Additionally, broader relief is available under 812. The "prevailing plaintiff" may be awarded a "permanent or temporary injunction, temporary restraining order, or other order, and actual damages and not more than $1,000 punitive damages, together with court costs and reasonable attorney fees" 42 U.S. C. 3612 (c). Section 810, by contrast, makes no allowance for damages, costs, or counsel fees, limiting the victorious claimant to injunctive relief and such other affirmative action as may be appropriate. 42 U.S. C. 3610 (d). Nor does 812 contain a provision similar to 810 (e), which provides that "[i]n any proceeding brought pursuant to [ 810], the burden of proof shall be on the complainant." Given the advantages to the claimant of proceeding under 812, it is hard to imagine why anyone would voluntarily proceed under 810 if both routes were equally available. When the carefully chosen language and the widely variant provisions of 810 and 812 are thus compared, the logic of *126 Title VIII's private enforcement mechanism becomes clear. Immediate access to federal judicial power under 812 was reserved to those directly victimized by a discriminatory housing practice; that is, those actually discriminated against on the basis of race, color, religion, sex, or national origin. Only direct victims of housing discrimination were deemed to suffer injuries of sufficient magnitude to authorize appointment of counsel and recovery of compensatory and punitive damages, costs, and attorney fees. But because discrimination in housing can injure persons other than the direct objects of the discrimination, Congress believed that the statute's fair-housing goals would be served by extending standing under 810 as broadly as constitutionally permissible. Anyone claiming to have been injured by a discriminatory housing practice, even if not himself directly discriminated against, is authorized to seek redress under 810. By barring indirect victims of housing discrimination from immediate access to federal court under 812, and thus requiring them to exhaust federal conciliation procedures as well as viable state and local remedies pursuant to 810, Congress sought to facilitate informal resolution of Title VIII disputes, to avoid federal judicial intervention when possible, and to encourage state and local involvement in the effort to eliminate housing discrimination. The legislative history of Title VIII, |
Justice Rehnquist | 1,979 | 19 | dissenting | Gladstone, Realtors v. Village of Bellwood | https://www.courtlistener.com/opinion/110056/gladstone-realtors-v-village-of-bellwood/ | to eliminate housing discrimination. The legislative history of Title VIII, while "not too helpful," supports the view that standing to commence a civil action under 812 is limited to direct victims of housing discrimination. Introduced on the Senate floor and approved unchanged by the House, Title VIII's legislative history must be culled primarily from the Congressional Record. The brief debate preceding adoption of Amendment No. 586, which amended 810 to require exhaustion of "substantially equivalent" remedies under state or local fair-housing laws as a prerequisite to the filing of a Title *127 VIII action in federal court, is particularly enlightening. Senator Miller, who introduced the amendment, explained: "I provide in the second part of my amendment that no civil action may be brought in any U. S. district court if the person aggrieved has a judicial remedy under a State or local fair housing law which provides substantially equivalent rights and remedies to this act. "I believe it is a matter of letting the State and local courts have jurisdiction. We in the Senate know that our Federal district court calendars are crowded enough, without adding to that load if there is a good remedy under State law." 114 Cong. Rec. 4987 Senator Hart added that the amendment "recognizes the desire all of us share that the State remedies, where adequate, be availed of and that unnecessary burdening litigation not further clog the court calendars." It seems unlikely that Congress would wholly frustrate the concerns moving it to adopt 810's exhaustion requirement by opening 812's direct route into federal court to all "persons aggrieved." The debate concerning the allowance of attorney's fees to prevailing plaintiffs under 812 also indicates a congressional understanding that standing to proceed immediately into federal court under 812 was limited to discriminatees. Senator Hart commented that 812 (b) and (c)which authorize the district court to waive payment of fees, costs, and security in appropriate cases and to award damages, court costs, and reasonable attorney fees to prevailing plaintiffs"reveal a clear congressional intent to permit, and even encourage, litigation by those who cannot afford to redress specific wrongs aimed at them because of the color of their skin." 114 Cong. Rec. 5514-5515 (emphasis added). The meager legislative history marshaled by the Court provides at best thin support for its expansive interpretation of standing under 812. References in the legislative history describing 812 as an "addition[al]" and "alternative" remedial *128 provision to 810, ante, at 106, and nn. 16, 17, and 18, are hardly dispositive: one need only read the two sections to conclude that they provide "alternative" |
Justice Rehnquist | 1,979 | 19 | dissenting | Gladstone, Realtors v. Village of Bellwood | https://www.courtlistener.com/opinion/110056/gladstone-realtors-v-village-of-bellwood/ | read the two sections to conclude that they provide "alternative" enforcement mechanisms. That 810 and 812 are "alternative" remedial provisions does not, however, compel the conclusion that they are equally available to all potential Title VIII claimants. The only piece of legislative history arguably supporting the Court's interpretation of 812 is the House Judiciary Committee staff's use of the term "aggrieved person" to refer to potential 812 plaintiffs. Ante, at 107 n. 18. This single, fleeting reference in the legislative history hardly seems sufficient to overwhelm the contrary indications of congressional intent found elsewhere in Title VIII's legislative history and in the carefully worded and structured provisions of 810 and 812. I think that pushed standing to the limit in construing the "person aggrieved" language of 810. I cannot join the Court in pressing the more narrowly confined language of 812 to the same limit. III Respondents also claim standing under 42 U.S. C. 1982, which provides: "All citizens of the United States shall have the same right as is enjoyed by white citizens to inherit, purchase, lease, sell, hold, and convey real and personal property." Unlike Title VIII, " 1982 is not a comprehensive open housing law." Jones v. Alfred H. Mayer Enacted as part of the Civil Rights Act of 1866, the section bars all racial discrimination, both private and public, in the sale or rental of property. It is clear that respondents have suffered no injury to the only right secured under 1982the right to be free from racially motivated interference with property rights. Their claim of standing under 1982 is thus conceptually indistinguishable from a similar claim rejected by this Court in *129 Plaintiffs in Warth brought a 1982 action against the town of Penfield, N. Y., and members of its Zoning, Planning, and Town Boards, claiming that the town's zoning ordinance effectively excluded persons of minority racial and ethnic groups. One of the plaintiffs, a nonprofit corporation organized to alleviate the housing shortage for low-and moderate-income persons in and around Penfield, based its standing to challenge the zoning ordinance on the loss to its members residing in Penfield of the "benefits of living in a racially and ethnically integrated community." This Court rejected plaintiff's claim of standing, distinguishing on the ground that 1982, unlike 810 of Title VIII, does not give residents of certain communities an actionable right to be free from the adverse consequences of racially discriminatory practices directed at and immediately harmful to others. Thus, we held plaintiff's "attempt to raise putative rights of third parties," barred by the prudential rules of standing. |
Justice Burger | 1,984 | 12 | majority | Hudson v. Palmer | https://www.courtlistener.com/opinion/111252/hudson-v-palmer/ | We granted certiorari in No. 82-1630 to decide whether a prison inmate has a reasonable expectation of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches and seizures. We also granted certiorari in No. 82-6695, the cross-petition, to determine whether our decision in which held that a negligent deprivation of property by state officials does not violate the Fourteenth Amendment if an adequate postdeprivation state remedy exists, should extend to intentional deprivations of property. I The facts underlying this dispute are relatively simple. Respondent Palmer is an inmate at the Bland Correctional Center in Bland, Va., serving sentences for forgery, uttering, grand larceny, and bank robbery convictions. On September 16, petitioner Hudson, an officer at the Correctional Center, with a fellow officer, conducted a "shakedown" search of respondent's prison locker and cell for contraband. During the "shakedown," the officers discovered a ripped pillowcase in a trash can near respondent's cell bunk. Charges *520 against Palmer were instituted under the prison disciplinary procedures for destroying state property. After a hearing, Palmer was found guilty on the charge and was ordered to reimburse the State for the cost of the material destroyed; in addition, a reprimand was entered on his prison record. Palmer subsequently brought this pro se action in United States District Court under 42 U.S. C. Respondent claimed that Hudson had conducted the shakedown search of his cell and had brought a false charge against him solely to harass him, and that, in violation of his Fourteenth Amendment right not to be deprived of property without due process of law, Hudson had intentionally destroyed certain of his noncontraband personal property during the September 16 search. Hudson denied each allegation; he moved for and was granted summary judgment. The District Court accepted respondent's allegations as true but held nonetheless, relying on that the alleged destruction of respondent's property, even if intentional, did not violate the Fourteenth Amendment because there were state tort remedies available to redress the deprivation, App. 31[1] and that the alleged harassment did not "rise to the level of a constitutional deprivation," The Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings. The court affirmed the District Court's holding that respondent was not deprived of his property without due process. The court acknowledged that we considered only a claim of negligent property deprivation in It agreed with the District Court, however, that the logic of applies equally to unauthorized intentional deprivations of property by state officials: "[O]nce it is assumed *521 that a postdeprivation remedy |
Justice Burger | 1,984 | 12 | majority | Hudson v. Palmer | https://www.courtlistener.com/opinion/111252/hudson-v-palmer/ | officials: "[O]nce it is assumed *521 that a postdeprivation remedy can cure an unintentional but negligent act causing injury, inflicted by a state agent which is unamenable to prior review, then that principle applies as well to random and unauthorized intentional acts."[2] The Court of Appeals did not discuss the availability and adequacy of existing state-law remedies; it presumably accepted as correct the District Court's statement of the remedies available under Virginia law.[3] The Court of Appeals reversed the summary judgment on respondent's claim that the shakedown search was unreasonable. The court recognized that authorized irregular unannounced shake-down searches of prison cells. But the court held that an individual prisoner has a "limited privacy right" in his cell entitling him to protection against searches conducted solely to harass or to[4] The shakedown of a single prisoner's property, said the court, is permissible *522 only if "done pursuant to an established program of conducting random searches of single cells or groups of cells reasonably designed to deter or discover the possession of contraband" or upon reasonable belief that the particular prisoner possessed contraband. Because the Court of Appeals concluded that the record reflected a factual dispute over whether the search of respondent's cell was routine or conducted to harass respondent, it held that summary judgment was inappropriate, and that a remand was necessary to determine the purpose of the cell search. We granted certiorari. We affirm in part and reverse in part. II A The first question we address is whether respondent has a right of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches.[5] As we have noted, the Court of Appeals held that the District Court's summary judgment in petitioner's favor was premature because respondent had a "limited privacy right" in his cell that might have been breached. The court concluded that, to protect this privacy right, shakedown searches of an individual's cell should be performed only "pursuant to an established program of conducting random *523 searches reasonably designed to deter or discover the possession of contraband" or upon reasonable belief that the prisoner possesses contraband. Petitioner contends that the Court of Appeals erred in holding that respondent had even a limited privacy right in his cell, and urges that we adopt the "bright line" rule that prisoners have no legitimate expectation of privacy in their individual cells that would entitle them to Fourth Amendment protection. We have repeatedly held that prisons are not beyond the reach of the Constitution. No "iron curtain" separates one from the other. Indeed, we have |
Justice Burger | 1,984 | 12 | majority | Hudson v. Palmer | https://www.courtlistener.com/opinion/111252/hudson-v-palmer/ | "iron curtain" separates one from the other. Indeed, we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration. For example, we have held that invidious racial discrimination is as intolerable within a prison as outside, except as may be essential to "prison security and discipline." Like others, prisoners have the constitutional right to petition the Government for redress of their grievances, which includes a reasonable right of access to the courts. Prisoners must be provided "reasonable opportunities" to exercise their religious freedom guaranteed under the First Amendment. Similarly, they retain those First Amendment rights of speech "not inconsistent with [their] status as prisoner[s] or with the legitimate penological objectives of the corrections system." They enjoy the protection of due process. And the Eighth Amendment ensures that they will not be subject to "cruel and unusual punishments." The continuing guarantee of these substantial rights to prison inmates is testimony to a belief that the way a society treats those who have transgressed *524 against it is evidence of the essential character of that society. However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights. See These constraints on inmates, and in some cases the complete withdrawal of certain rights, are "justified by the considerations underlying our penal system." ; see also at 545-546 and cases cited; at The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of "institutional needs and objectives" of prison facilities, at chief among which is internal security, see Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction. We have not before been called upon to decide the specific question whether the Fourth Amendment applies within a prison cell,[6] but the nature of our inquiry is well defined. *525 We must determine here, as in other Fourth Amendment contexts, if a "justifiable" expectation of privacy is at stake. The applicability of the Fourth Amendment turns on whether "the person invoking its protection can claim a `justifiable,' a `reasonable,' or a `legitimate expectation of privacy' that has been invaded by government action." and cases cited. We must decide, in Justice Harlan's words, whether a prisoner's expectation of privacy in his prison cell is the kind of expectation that "society is prepared to recognize as `reasonable.' "[7] Notwithstanding our caution in approaching claims that the Fourth |
Justice Burger | 1,984 | 12 | majority | Hudson v. Palmer | https://www.courtlistener.com/opinion/111252/hudson-v-palmer/ | "[7] Notwithstanding our caution in approaching claims that the Fourth Amendment is inapplicable in a given context, we *526 hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions. Prisons, by definition, are places of involuntary confinement of persons who have a demonstrated proclivity for antisocial criminal, and often violent, conduct. Inmates have necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown as inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others. Even a partial survey of the statistics on violent crime in our Nation's prisons illustrates the magnitude of the problem. During and the first half of 82, there were over 120 prisoners murdered by fellow inmates in state and federal prisons. A number of prison personnel were murdered by prisoners during this period. Over 29 riots or similar disturbances were reported in these facilities for the same time frame. And there were over 125 suicides in these institutions. See Prison Violence, 7 Corrections Compendium Additionally, informal statistics from the United States Bureau of Prisons show that in the federal system during there were 11 inmate homicides, 359 inmate assaults on other inmates, 227 inmate assaults on prison staff, and 10 suicides. There were in the same system in and 82 over 750 inmate assaults on other inmates and over 570 inmate assaults on prison personnel. Within this volatile "community," prison administrators are to take all necessary steps to ensure the safety of not only the prison staffs and administrative personnel, but also visitors. They are under an obligation to take reasonable *527 measures to guarantee the safety of the inmates themselves. They must be ever alert to attempts to introduce drugs and other contraband into the premises which, we can judicially notice, is one of the most perplexing problems of prisons today; they must prevent, so far as possible, the flow of illicit weapons into the prison; they must be vigilant to detect escape plots, in which drugs or weapons may be involved, before the schemes materialize. In addition to these monumental tasks, it |
Justice Burger | 1,984 | 12 | majority | Hudson v. Palmer | https://www.courtlistener.com/opinion/111252/hudson-v-palmer/ | the schemes materialize. In addition to these monumental tasks, it is incumbent upon these officials at the same time to maintain as sanitary an environment for the inmates as feasible, given the difficulties of the circumstances. The administration of a prison, we have said, is "at best an extraordinarily difficult undertaking." ; But it would be literally impossible to accomplish the prison objectives identified above if inmates retained a right of privacy in their cells. Virtually the only place inmates can conceal weapons, drugs, and other contraband is in their cells. Unfettered access to these cells by prison officials, thus, is imperative if drugs and contraband are to be ferreted out and sanitary surroundings are to be maintained. Determining whether an expectation of privacy is "legitimate" or "reasonable" necessarily entails a balancing of interests. The two interests here are the interest of society in the security of its penal institutions and the interest of the prisoner in privacy within his cell. The latter interest, of course, is already limited by the exigencies of the circumstances: A prison "shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room." We strike the balance in favor of institutional security, which we have noted is "central to all other corrections goals," 417 U. S., A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells *528 required to ensure institutional security and internal order.[8] We are satisfied that society would insist that the prisoner's expectation of privacy always yield to what must be considered the paramount interest in institutional security. We believe that it is accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents of confinement." The Court of Appeals was troubled by the possibility of searches conducted solely to harass inmates; it reasoned that a requirement that searches be conducted only pursuant to an established policy or upon reasonable suspicion would prevent such searches to the maximum extent possible. Of course, there is a risk of maliciously motivated searches, and of course, intentional harassment of even the most hardened criminals cannot be tolerated by a civilized society. However, we disagree with the court's proposed solution. The uncertainty that attends random searches of cells renders these searches perhaps the most effective weapon of the prison administrator in the constant fight against the proliferation of knives and guns, illicit drugs, and other contraband. The Court of Appeals candidly acknowledged that "the device [of random cell searches] is of obvious |
Justice Burger | 1,984 | 12 | majority | Hudson v. Palmer | https://www.courtlistener.com/opinion/111252/hudson-v-palmer/ | that "the device [of random cell searches] is of obvious utility in achieving the goal of prison security." 697 F.2d, *529 A requirement that even random searches be conducted pursuant to an established plan would seriously undermine the effectiveness of this weapon. It is simply naive to believe that prisoners would not eventually decipher any plan officials might devise for "planned random searches," and thus be able routinely to anticipate searches. The Supreme Court of Virginia identified the shortcomings of an approach such as that adopted by the Court of Appeals and the necessity of allowing prison administrators flexibility: "For one to advocate that prison searches must be conducted only pursuant to an enunciated general policy or when suspicion is directed at a particular inmate is to ignore the realities of prison operation. Random searches of inmates, individually or collectively, and their cells and lockers are valid and necessary to ensure the security of the institution and the safety of inmates and all others within its boundaries. This type of search allows prison officers flexibility and prevents inmates from anticipating, and thereby thwarting, a search for contraband." We share the concerns so well expressed by the Supreme Court and its view that wholly random searches are essential to the effective security of penal institutions. We, therefore, cannot accept even the concededly limited holding of the Court of Appeals. Respondent acknowledges that routine shakedowns of prison cells are essential to the effective administration of prisons. Brief for Respondent and Cross-Petitioner 7, n. 5. He contends, however, that he is constitutionally entitled not to be subjected to searches conducted only to harass. The crux of his claim is that "because searches and seizures to harass are unreasonable, a prisoner has a reasonable expectation of privacy not to have his cell, locker, personal effects, person invaded for such a purpose." This argument, *530 which assumes the answer to the predicate question whether a prisoner has a legitimate expectation of privacy in his prison cell at all, is merely a challenge to the reasonableness of the particular search of respondent's cell. Because we conclude that prisoners have no legitimate expectation of privacy and that the Fourth Amendment's prohibition on unreasonable searches does not apply in prison cells, we need not address this issue. Our holding that respondent does not have a reasonable expectation of privacy enabling him to invoke the protections of the Fourth Amendment does not mean that he is without a remedy for calculated harassment unrelated to prison needs. Nor does it mean that prison attendants can ride roughshod over inmates' property |
Justice Burger | 1,984 | 12 | majority | Hudson v. Palmer | https://www.courtlistener.com/opinion/111252/hudson-v-palmer/ | mean that prison attendants can ride roughshod over inmates' property rights with impunity. The Eighth Amendment always stands as a protection against "cruel and unusual punishments." By the same token, there are adequate state tort and common-law remedies available to respondent to redress the alleged destruction of his personal property. See discussion infra, at 534-536.[9] B In his complaint in the District Court, in addition to his claim that the shakedown search of his cell violated his Fourth and Fourteenth Amendment privacy rights, respondent alleged under 42 U.S. C. that petitioner intentionally destroyed certain of his personal property during the search. This destruction, respondent contended, deprived him of property without due process, in violation of the Due Process Clause of the Fourteenth Amendment. The District Court dismissed this portion of respondent's complaint for failure to state a claim. Reasoning under *531 it held that even an intentional destruction of property by a state employee does not violate due process if the state provides a meaningful postdeprivation remedy. The Court of Appeals affirmed. The question presented for our review in Palmer's cross-petition is whether our decision in should extend, as the Court of Appeals held, to intentional deprivations of property by state employees acting under color of state law.[10] In a state prisoner sued prison officials under 42 U.S. C. alleging that their negligent loss of a hobby kit he ordered from a mail-order catalog deprived him of property without due process of law, in violation of the Fourteenth Amendment. The Court of Appeals for the Eighth Circuit had affirmed the District Court's summary judgment in the prisoner's favor. We reversed, holding that the Due Process Clause of the Fourteenth Amendment is not violated when a state employee negligently deprives an individual of property, provided that the state makes available a meaningful postdeprivation remedy.[11] We viewed our decision in as consistent with prior cases recognizing that "either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some *532 meaningful means by which to assess the propriety of the State's action at some time after the initial taking. satisf[ies] the requirements of procedural due process." We reasoned that where a loss of property is occasioned by a random, unauthorized act by a state employee, rather than by an established state procedure, the state cannot predict when the loss will occur. Under these circumstances, we observed: "It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, |
Justice Burger | 1,984 | 12 | majority | Hudson v. Palmer | https://www.courtlistener.com/opinion/111252/hudson-v-palmer/ | hearing before the deprivation takes place. The loss of property, although attributable to the State as action under `color of law,' is in almost all cases beyond the control of the State. Indeed, in most cases it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation." Ibid.[12] Two Terms ago, we reaffirmed our holding in in in the course of holding that postdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action.[13] *533 While is necessarily limited by its facts to negligent deprivations of property, it is evident, as the Court of Appeals recognized, that its reasoning applies as well to intentional deprivations of property. The underlying rationale of is that when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply "impracticable" since the state cannot know when such deprivations will occur. We can discern no logical distinction between negligent and intentional deprivations of property insofar as the "practicability" of affording predeprivation process is concerned. The state can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct. Arguably, intentional acts are even more difficult to anticipate because one bent on intentionally depriving a person of his property might well take affirmative steps to avoid signalling his intent. If negligent deprivations of property do not violate the Due Process Clause because predeprivation process is impracticable, it follows that intentional deprivations do not violate that Clause provided, of course, that adequate state postdeprivation remedies are available. Accordingly, we hold that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available. For intentional, as for negligent deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy.[14] *534 Respondent presses two arguments that require at least brief comment. First, he contends that, because an agent of the state who intends to deprive a person of his property "can provide predeprivation process, then as a matter of due process he must do so." Brief for Respondent and Cross-Petitioner 8 (emphasis in original). This argument reflects a fundamental misunderstanding of There we held that postdeprivation procedures satisfy due process because the state cannot possibly know in advance of |
Justice Burger | 1,984 | 12 | majority | Hudson v. Palmer | https://www.courtlistener.com/opinion/111252/hudson-v-palmer/ | process because the state cannot possibly know in advance of a negligent deprivation of property. Whether an individual employee himself is able to foresee a deprivation is simply of no consequence. The controlling inquiry is solely whether the state is in a position to provide for predeprivation process. Respondent also contends, citing to that the deliberate destruction of his property by petitioner constituted a due process violation despite the availability of postdeprivation remedies. Brief for Respondent and Cross-Petitioner 8. In Logan, we decided a question about which our decision in left little doubt, that is, whether a postdeprivation state remedy satisfies due process where the property deprivation is effected pursuant to an established state procedure. We held that it does not. Logan plainly has no relevance here. Respondent does not even allege that the asserted destruction of his property occurred pursuant to a state procedure. Having determined that extends to intentional deprivations of property, we need only decide whether the Commonwealth of Virginia provides respondent an adequate postdeprivation remedy for the alleged destruction of his property. Both the District Court and, at least implicitly, the Court of Appeals held that several common-law remedies *535 available to respondent would provide adequate compensation for his property loss. We have no reason to question that determination, particularly given the speculative nature of respondent's arguments. Palmer does not seriously dispute the adequacy of the existing state-law remedies themselves. He asserts in this respect only that, because certain of his legal papers allegedly taken "may have contained things irreplacable [sic], and incompensable" or "may also have involved sentimental items which are of equally intangible value," Brief for Respondent and Cross-Petitioner 10-11, n. 10, a suit in tort, for example, would not "necessarily" compensate him fully. If the loss is "incompensable," this is as much so under as it would be under any other remedy. In any event, that Palmer might not be able to recover under these remedies the full amount which he might receive in a action is not, as we have said, determinative of the adequacy of the state remedies. See Palmer contends also that relief under applicable state law "is far from certain and complete" because a state court might hold that petitioner, as a state employee, is entitled to sovereign immunity. Brief for Respondent and Cross-Petitioner 11. This suggestion is unconvincing. The District Court and the Court of Appeals held that respondent's claim would not be barred by sovereign immunity. As the District Court noted, under Virginia law, "a State employee may be held liable for his intentional torts," ; see |
Justice Burger | 1,984 | 12 | majority | Hudson v. Palmer | https://www.courtlistener.com/opinion/111252/hudson-v-palmer/ | may be held liable for his intentional torts," ; see also Indeed, respondent candidly acknowledges that it is "probable that a Virginia trial court would rule that there should be no immunity bar in the present case." Brief for Respondent and Cross-Petitioner 14. Respondent attempts to cast doubt on the obvious breadth of Elder through the naked assertion that "the phrase `may *536 be held liable' could have meant only the possibility of liability under certain circumstances rather than a blanket rule" Brief for Respondent and Cross-Petitioner 13. We are equally unpersuaded by this speculation. The language of Elder is unambiguous that employees of the Commonwealth do not enjoy sovereign immunity for their intentional torts, and Elder has been so read by a number of federal courts, as respondent concedes, see Brief for Respondent and Cross-Petitioner 13, n. 13. See, e. g., ; ; ; ; (DC 80).[15] In sum, it is evident here, as in that the State has provided an adequate postdeprivation remedy for the alleged destruction of property. III We hold that the Fourth Amendment has no applicability to a prison cell. We hold also that, even if petitioner intentionally destroyed respondent's personal property during the challenged shakedown search, the destruction did not violate the Fourteenth Amendment since the Commonwealth of Virginia has provided respondent an adequate postdeprivation remedy. Accordingly, the judgment of the Court of Appeals reversing and remanding the District Court's judgment on respondent's *537A claim under the Fourth and Fourteenth Amendments is reversed. The judgment affirming the District Court's decision that respondent has not been denied due process under the Fourteenth Amendment is affirmed. It is so ordered. |
Justice Scalia | 2,011 | 9 | majority | At&T Mobility LLC v. Concepcion | https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/ | Section 2 of the Federal Arbitration Act (FAA) makes agreements to arbitrate “valid, irrevocable, and enforce able, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. We consider whether the FAA prohibits States from condition ing the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures. I In February 2002, Vincent and Liza Concepcion entered into an agreement for the sale and servicing of cellular telephones with AT&T Mobility LCC (AT&T).1 The con tract provided for arbitration of all disputes between the parties, but required that claims be brought in the parties’ “individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.” App. —————— 1 The Concepcions’ original contract was with Cingular Wireless. AT&T acquired Cingular in and renamed the company AT&T Mobility in n. 1 2 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court to Pet. for Cert 61a.2 The agreement authorized AT&T to make unilateral amendments, which it did to the arbitra tion provision on several occasions. The version at issue in this case reflects revisions made in December 2006, which the parties agree are controlling. The revised agreement provides that customers may initiate dispute proceedings by completing a one-page No tice of Dispute form available on AT&T’s Web site. AT&T may then offer to settle the claim; if it does not, or if the dispute is not resolved within 30 days, the customer may invoke arbitration by filing a separate Demand for Arbitration, also available on AT&T’s Web site. In the event the parties proceed to arbitration, the agreement specifies that AT&T must pay all costs for nonfrivolous claims; that arbitration must take place in the county in which the customer is billed; that, for claims of $10,000 or less, the customer may choose whether the arbitration proceeds in person, by telephone, or based only on submis sions; that either party may bring a claim in small claims court in lieu of arbitration; and that the arbitrator may award any form of individual relief, including injunctions and presumably punitive damages. The agreement, more over, denies AT&T any ability to seek reimbursement of its attorney’s fees, and, in the event that a customer re ceives an arbitration award greater than AT&T’s last written settlement offer, requires AT&T to pay a $7,500 minimum recovery and twice the amount of the claimant’s attorney’s fees.3 The Concepcions purchased AT&T service, which was advertised as including the provision of free phones; they —————— 2 That provision further states that “the |
Justice Scalia | 2,011 | 9 | majority | At&T Mobility LLC v. Concepcion | https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/ | phones; they —————— 2 That provision further states that “the arbitrator may not consoli date more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.” App. to Pet. for Cert. 61a. 3 The guaranteed minimum recovery was increased in to $10,000. Brief for Petitioner 7. Cite as: 563 U. S. (2011) 3 Opinion of the Court were not charged for the phones, but they were charged $30.22 in sales tax based on the phones’ retail value. In March 2006, the Concepcions filed a complaint against AT&T in the United States District Court for the Southern District of California. The complaint was later consoli dated with a putative class action alleging, among other things, that AT&T had engaged in false advertising and fraud by charging sales tax on phones it advertised as free. In March 2008, AT&T moved to compel arbitration under the terms of its contract with the Concepcions. The Concepcions opposed the motion, contending that the ar bitration agreement was unconscionable and unlawfully exculpatory under California law because it disallowed classwide procedures. The District Court denied AT&T’s motion. It described AT&T’s arbitration agreement fa vorably, noting, for example, that the informal dispute resolution process was “quick, easy to use” and likely to “promp[t] full or even excess payment to the customer without the need to arbitrate or litigate”; that the $7,500 premium functioned as “a substantial inducement for the consumer to pursue the claim in arbitration” if a dispute was not resolved informally; and that consumers who were members of a class would likely be worse off. Laster v. T-Mobile USA, Inc., *11–*12 Nevertheless, relying on the California Supreme Court’s decision in Discover the court found that the arbitration provision was unconscionable because AT&T had not shown that bilateral arbitration adequately substituted for the deterrent effects of class actions. Laster, The Ninth Circuit affirmed, also finding the provision unconscionable under California law as announced in Discover 584 F.3d 849, 855 It also held that the Discover rule was not preempted by the FAA because that rule was 4 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court simply “a refinement of the unconscionability analysis applicable to contracts generally in California.” 584 F.3d, at 857. In response to AT&T’s argument that the Con cepcions’ interpretation of California law discriminated against arbitration, the Ninth Circuit rejected the conten tion that “ ‘class proceedings will reduce the efficiency and expeditiousness of arbitration’ ” and noted that “ ‘Discover placed arbitration agreements with class action waivers on the exact same footing as contracts that |
Justice Scalia | 2,011 | 9 | majority | At&T Mobility LLC v. Concepcion | https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/ | action waivers on the exact same footing as contracts that bar class action litigation outside the context of arbitration.’ ” ). We granted certiorari, 560 U. S. II The FAA was enacted in 1925 in response to widespread judicial hostility to arbitration agreements. See Hall Street Associates, L. L. 581 Section 2, the “primary substantive provision of the Act,” Moses H. Memorial provides, in relevant part, as follows: “A written provision in any maritime transaction or a contract evidencing a transaction involving com merce to settle by arbitration a controversy thereafter arising out of such contract or transaction shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. at and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson, 561 U. S. (slip op., at 3). In line with these principles, courts must place arbitration Cite as: 563 U. S. (2011) 5 Opinion of the Court agreements on an equal footing with other contracts, Buckeye Check 443 (2006), and enforce them according to their terms, Information Sciences, The final phrase of however, permits arbitration agreements to be declared unenforceable “upon such grounds as exist at law or in equity for the revocation of any contract.” This saving clause permits agreements to arbitrate to be invalidated by “generally applicable con tract defenses, such as fraud, duress, or unconscionabil ity,” but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue. Doctor’s Associates, Inc. v. Casarotto, ; see also Perry v. Thomas, The question in this case is whether preempts California’s rule clas sifying most collective-arbitration waivers in consumer contracts as unconscionable. We refer to this rule as the Discover rule. Under California law, courts may refuse to enforce any contract found “to have been unconscionable at the time it was made,” or may “limit the application of any uncon scionable clause.” Cal. Civ. Code Ann. A finding of unconscionability requires “a ‘proce dural’ and a ‘substantive’ element, the former focusing on ‘oppression’ or ‘surprise’ due to unequal bargaining power, the latter on ‘overly harsh’ or ‘one-sided’ results.” Armen dariz v. Foundation Health Pyschcare Servs., Inc., Cal. 4th 83, 114, ; accord, Discover –, In Discover the California Supreme Court applied this framework to class-action waivers in arbitration agreements and held as follows: “[W]hen the waiver is found in a |
Justice Scalia | 2,011 | 9 | majority | At&T Mobility LLC v. Concepcion | https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/ | held as follows: “[W]hen the waiver is found in a consumer contract of 6 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of con sumers out of individually small sums of money, then the waiver becomes in practice the exemption of the party ‘from responsibility for [its] own fraud, or willful injury to the person or property of another.’ Under these circumstances, such waivers are uncon scionable under California law and should not be en forced.” (quoting Cal. Civ. Code Ann. California courts have frequently applied this rule to find arbitration agreements unconscionable. See, e.g., Cohen v. DirecTV, Inc., 1451–1453, 48 Cal. Rptr. 3d 813, 819–821 (2006); Klussman v. Cross Country 36 Cal Rptr. 3d 728, 738–739 ; III A The Concepcions argue that the Discover rule, given its origins in California’s unconscionability doctrine and California’s policy against exculpation, is a ground that “exist[s] at law or in equity for the revocation of any contract” under FAA Moreover, they argue that even if we construe the Discover rule as a prohibition on collective-action waivers rather than simply an application of unconscionability, the rule would still be applicable to all dispute-resolution contracts, since California prohibits waivers of class litigation as well. See America Online, 17–18, 108 Cal. Rptr. 2d 699, 711–713 (2001). When state law prohibits outright the arbitration of a Cite as: 563 U. S. (2011) 7 Opinion of the Court particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA. Preston v. Ferrer, But the inquiry becomes more complex when a doctrine normally thought to be generally applicable, such as duress or, as relevant here, unconscionability, is alleged to have been applied in a fashion that disfavors arbitration. In for example, we noted that the FAA’s preemptive effect might extend even to grounds tradition ally thought to exist “ ‘at law or in equity for the revocation of any contract.’ ” We said that a court may not “rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what the state legislature cannot.” An obvious illustration of this point would be a case finding unconscionable or unenforceable as against public policy consumer arbitration agreements that fail to pro vide for judicially monitored discovery. |
Justice Scalia | 2,011 | 9 | majority | At&T Mobility LLC v. Concepcion | https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/ | agreements that fail to pro vide for judicially monitored discovery. The rationaliza tions for such a holding are neither difficult to imagine nor different in kind from those articulated in Discover A court might reason that no consumer would knowingly waive his right to full discovery, as this would enable companies to hide their wrongdoing. Or the court might simply say that such agreements are exculpatory—re stricting discovery would be of greater benefit to the company than the consumer, since the former is more likely to be sued than to sue. See Discover at (arguing that class waivers are similarly one-sided). And, the reasoning would continue, because such a rule applies the general principle of uncon scionability or public-policy disapproval of exculpatory agreements, it is applicable to “any” contract and thus preserved by of the FAA. In practice, of course, the rule would have a disproportionate impact on arbitration 8 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court agreements; but it would presumably apply to contracts purporting to restrict discovery in litigation as well. Other examples are easy to imagine. The same argu ment might apply to a rule classifying as unconscionable arbitration agreements that fail to abide by the Federal Rules of Evidence, or that disallow an ultimate disposition by a jury (perhaps termed “a panel of twelve lay arbitra tors” to help avoid preemption). Such examples are not fanciful, since the judicial hostility towards arbitration that prompted the FAA had manifested itself in “a great variety” of “devices and formulas” declaring arbitration against public policy. Robert Lawrence And al though these statistics are not definitive, it is worth not ing that California’s courts have been more likely to hold contracts to arbitrate unconscionable than other contracts. Broome, An Unconscionable Application of the Uncon scionability Doctrine: How the California Courts are Cir cumventing the Federal Arbitration Act, 3 Hastings Bus. L. J. 39, 54, 66 (2006); Randall, Judicial Attitudes Toward Arbitration and the Resurgence of Unconscionability, 52 Buffalo L. Rev. 185, 186–187 (2004). The Concepcions suggest that all this is just a parade of horribles, and no genuine worry. “Rules aimed at destroy ing arbitration” or “demanding procedures incompatible with arbitration,” they concede, “would be preempted by the FAA because they cannot sensibly be reconciled with Section 2.” Brief for Respondents 32. The “grounds” available under ’s saving clause, they admit, “should not be construed to include a State’s mere preference for pro cedures that are incompatible with arbitration and ‘would wholly eviscerate arbitration agreements.’ ” ).4 —————— 4 The dissent seeks to fight off even this eminently |
Justice Scalia | 2,011 | 9 | majority | At&T Mobility LLC v. Concepcion | https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/ | 4 The dissent seeks to fight off even this eminently reasonable conces Cite as: 563 U. S. (2011) 9 Opinion of the Court We largely agree. Although ’s saving clause preserves generally applicable contract defenses, nothing in it sug gests an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAA’s objectives. Cf. ; Crosby v. National Foreign Trade Council, 530 U.S. 363, 372–373 As we have said, a federal statute’s saving clause “ ‘cannot in reason be construed as [allowing] a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself.’ ” American Telephone & Telegraph Co. v. Central Office Telephone, Inc., 5 U.S. 214, 227–228 (1998) ). We differ with the Concepcions only in the application of this analysis to the matter before us. We do not agree that rules requiring judicially monitored discovery or adher ence to the Federal Rules of Evidence are “a far cry from this case.” Brief for Respondents 32. The overarching purpose of the FAA, evident in the text of § 3, and 4, is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings. Requiring the availability of classwide arbi tration interferes with fundamental attributes of arbitra tion and thus creates a scheme inconsistent with the FAA. B The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to —————— sion. It says that to its knowledge “we have not applied the Act to strike down a state statute that treats arbitrations on par with judicial and administrative proceedings,” post, at 10 (opinion of BREYER, J.), and that “we should think more than twice before invalidating a state law that puts agreements to arbitrate and agreements to litigate ‘upon the same footing’ ” post, at 4–5. 10 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court their terms.” 489 U.S., at ; see also S. A. v. AnimalFeeds Int’l 559 U. S. (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and requires courts to compel arbitration “in accor dance with the terms of the agreement” upon the motion of either party to the agreement (assuming that the “making of the |
Justice Scalia | 2,011 | 9 | majority | At&T Mobility LLC v. Concepcion | https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/ | party to the agreement (assuming that the “making of the arbitration agreement or the failure to perform the same” is not at issue). In light of these provisions, we have held that parties may agree to limit the issues subject to arbitration, Mitsubishi Motors to arbitrate according to specific rules, and to limit with whom a party will arbitrate its disputes, at (slip op., at 19). The point of affording parties discretion in designing arbitration processes is to allow for efficient, streamlined procedures tailored to the type of dispute. It can be speci fied, for example, that the decisionmaker be a specialist in the relevant field, or that proceedings be kept confidential to protect trade secrets. And the informality of arbitral proceedings is itself desirable, reducing the cost and in creasing the speed of dispute resolution. 14 Penn Plaza LLC v. Pyett, 556 U. S. (slip op., at 20); Mitsubishi Motors at The dissent quotes Dean Witter Reynolds as “ ‘reject[ing] the suggestion that the overriding goal of the Arbitration Act was to promote the expeditious resolution of claims.’ ” Post, at 4 (opinion of BREYER, J.). That is greatly misleading. After saying (accurately enough) that “the overriding goal of the Arbitration Act was [not] to promote the expeditious reso Cite as: 563 U. S. (2011) 11 Opinion of the Court lution of claims,” but to “ensure judicial enforcement of privately made agreements to arbitrate,” 470 U.S., at Dean Witter went on to explain: “This is not to say that Congress was blind to the potential benefit of the legisla tion for expedited resolution of disputes. Far from it” It then quotes a House Report saying that “the costliness and delays of litigation can be largely eliminated by agreements for arbitration.” (quoting H. R. Rep. No. 96, 68th Cong., 1st Sess., 2 (19)). The concluding paragraph of this part of its discussion begins as follows: “We therefore are not persuaded by the argument that the conflict between two goals of the Arbitration Act—enforcement of private agreements and encour agement of efficient and speedy dispute resolution— must be resolved in favor of the latter in order to real ize the intent of the drafters.” In the present case, of course, those “two goals” do not conflict—and it is the dissent’s view that would frustrate both of them. Contrary to the dissent’s view, our cases place it beyond dispute that the FAA was designed to promote arbitration. They have repeatedly described the Act as “embod[ying] [a] national policy favoring arbitration,” Buckeye Check and “a liberal federal policy favoring arbitration agreements, notwithstanding any |
Justice Scalia | 2,011 | 9 | majority | At&T Mobility LLC v. Concepcion | https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/ | and “a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary,” Moses H. 460 U.S., at ; see also Hall Street As Thus, in Preston v. Ferrer, holding preempted a state-law rule requiring exhaustion of admin istrative remedies before arbitration, we said: “A prime objective of an agreement to arbitrate is to achieve ‘streamlined proceedings and expeditious results,’ ” which objective would be “frustrated” by requiring a dispute to be heard by an agency –358. That 12 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court rule, we said, would “at the least, hinder speedy resolution of the controversy.”5 California’s Discover rule similarly interferes with arbitration. Although the rule does not require classwide arbitration, it allows any party to a consumer contract to demand it ex post. The rule is limited to adhesion con tracts, Discover 36 Cal. 4th, –163, 113 P.3d, at 1110, but the times in which consumer contracts were anything other than adhesive are long past.6 Carbajal v. H&R Block Tax Servs., Inc., (CA7 2004); see also Hill v. Gateway Inc., 1149 (CA7 1997). The rule also requires that damages be predictably small, and that the consumer allege a scheme to cheat consumers. Discover –163, The former requirement, however, is —————— 5 Relying upon nothing more indicative of congressional understand ing than statements of witnesses in committee hearings and a press release of Secretary of Commerce Herbert Hoover, the dissent suggests that Congress “thought that arbitration would be used primarily where merchants sought to resolve disputes of fact [and] possessed roughly equivalent bargaining power.” Post, at 6. Such a limitation appears nowhere in the text of the FAA and has been explicitly rejected by our cases. “Relationships between securities dealers and investors, for example, may involve unequal bargaining power, but we [have] never theless held that agreements to arbitrate in that context are en forceable.” Gilmer v. Interstate/Johnson Lane (1991); see also at 32– (allowing arbitration of claims arising under the Age Discrimination in Employment Act of 19 despite allegations of unequal bargaining power between employers and employees). Of course the dissent’s disquisition on legislative history fails to note that it contains nothing—not even the testimony of a stray witness in committee hearings—that contemplates the existence of class arbitration. 6 Of course States remain free to take steps addressing the concerns that attend contracts of adhesion—for example, requiring class-action waiver provisions in adhesive agreements to be highlighted. Such steps cannot, however, conflict with the FAA or frustrate its purpose to ensure that private arbitration agreements are enforced according to their |
Justice Scalia | 2,011 | 9 | majority | At&T Mobility LLC v. Concepcion | https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/ | ensure that private arbitration agreements are enforced according to their terms. Cite as: 563 U. S. (2011) 13 Opinion of the Court toothless and malleable (unpub lished)), and the latter has no limiting effect, as all that is required is an allegation. Consumers remain free to bring and resolve their disputes on a bilateral basis under Dis cover and some may well do so; but there is little incentive for lawyers to arbitrate on behalf of individuals when they may do so for a class and reap far higher fees in the process. And faced with inevitable class arbitration, companies would have less incentive to continue resolving potentially duplicative claims on an individual basis. Although we have had little occasion to examine class wide arbitration, our decision in is instruc tive. In that case we held that an arbitration panel ex ceeded its power under of the FAA by imposing class procedures based on policy judgments rather than the arbitration agreement itself or some background prin ciple of contract law that would affect its interpretation. 559 U. S., at (slip op., at 20–23). We then held that the agreement at issue, which was silent on the question of class procedures, could not be interpreted to allow them because the “changes brought about by the shift from bilateral arbitration to class-action arbitration” are “fun damental.” at (slip op., at 22). This is obvious as a structural matter: Classwide arbitration includes absent parties, necessitating additional and different procedures and involving higher stakes. Confidentiality becomes more difficult. And while it is theoretically possible to select an arbitrator with some expertise relevant to the class-certification question, arbitrators are not generally knowledgeable in the often-dominant procedural aspects of certification, such as the protection of absent parties. The conclusion follows that class arbitration, to the extent it is manufactured by Discover rather than consensual, is inconsistent with the FAA. 14 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court First, the switch from bilateral to class arbitration sacrifices the principal advantage of arbitration—its in formality—and makes the process slower, more costly, and more likely to generate procedural morass than final judgment. “In bilateral arbitration, parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.” 559 U. S., at (slip op., at 21). But before an arbitrator may decide the merits of a claim in classwide procedures, he must first decide, for example, whether the class itself may be |
Justice Scalia | 2,011 | 9 | majority | At&T Mobility LLC v. Concepcion | https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/ | first decide, for example, whether the class itself may be certified, whether the named parties are suffi ciently representative and typical, and how discovery for the class should be conducted. A cursory comparison of bilateral and class arbitration illustrates the difference. According to the American Arbitration Association (AAA), the average consumer arbitration between January and August resulted in a disposition on the merits in six months, four months if the arbitration was conducted by documents only. AAA, Analysis of the AAA’s Con sumer Arbitration Caseload, online at http://www.adr.org/ si.asp?id=5027 (all Internet materials as visited Apr. 25, 2011, and available in Clerk of Court’s case file). As of September the AAA had opened 283 class arbitra tions. Of those, 121 remained active, and had been settled, withdrawn, or dismissed. Not a single one, how ever, had resulted in a final award on the merits. Brief for AAA as Amicus Curiae in O. T. No. 08–1198, pp. 22–. For those cases that were no longer active, the median time from filing to settlement, with drawal, or dismissal—not judgment on the merits—was 583 days, and the mean was 630 days. at7 —————— 7 The dissent claims that class arbitration should be compared to class litigation, not bilateral arbitration. Post, at 6–7. Whether arbi Cite as: 563 U. S. (2011) 15 Opinion of the Court Second, class arbitration requires procedural formality. The AAA’s rules governing class arbitrations mimic the Federal Rules of Civil Procedure for class litigation. Com pare AAA, Supplementary Rules for Class Arbitrations (effective Oct. 8, 2003), online at http://www.adr.org/ sp.asp?id=36, with Fed. Rule Civ. Proc. 23. And while parties can alter those procedures by contract, an alterna tive is not obvious. If procedures are too informal, absent class members would not be bound by the arbitration. For a class-action money judgment to bind absentees in litiga tion, class representatives must at all times adequately represent absent class members, and absent members must be afforded notice, an opportunity to be heard, and a right to opt out of the class. Phillips Petroleum Co. v. Shutts, At least this amount of process would presumably be required for ab sent parties to be bound by the results of arbitration. We find it unlikely that in passing the FAA Congress meant to leave the disposition of these procedural re quirements to an arbitrator. Indeed, class arbitration was not even envisioned by Congress when it passed the FAA in 1925; as the California Supreme Court admitted in Discover class arbitration is a “relatively recent development.” And it is at the very least odd to think that |
Justice Scalia | 2,011 | 9 | majority | At&T Mobility LLC v. Concepcion | https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/ | it is at the very least odd to think that an arbitrator would be entrusted with ensuring that third parties’ due process rights are satisfied. Third, class arbitration greatly increases risks to defen dants. Informal procedures do of course have a cost: The absence of multilayered review makes it more likely that errors will go uncorrected. Defendants are willing to accept the costs of these errors in arbitration, since their —————— trating a class is more desirable than litigating one, however, is not relevant. A State cannot defend a rule requiring arbitration-by-jury by saying that parties will still prefer it to trial-by-jury. 16 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court impact is limited to the size of individual disputes, and presumably outweighed by savings from avoiding the courts. But when damages allegedly owed to tens of thou sands of potential claimants are aggregated and decided at once, the risk of an error will often become unacceptable. Faced with even a small chance of a devastating loss, defendants will be pressured into settling questionable claims. Other courts have noted the risk of “in terrorem” settlements that class actions entail, see, e.g., Kohen v. Pacific Inv. Management Co. LLC, 7–8 and class arbitration would be no different. Arbitration is poorly suited to the higher stakes of class litigation. In litigation, a defendant may appeal a certifi cation decision on an interlocutory basis and, if unsuccess ful, may appeal from a final judgment as well. Questions of law are reviewed de novo and questions of fact for clear error. In contrast, 9 U.S. C. allows a court to vacate an arbitral award only where the award “was procured by corruption, fraud, or undue means”; “there was evident partiality or corruption in the arbitrators”; “the arbitrators were guilty of misconduct in refusing to postpone the hearing or in refusing to hear evidence pertinent and material to the controversy[,] or of any other misbehavior by which the rights of any party have been prejudiced”; or if the “arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award was not made.” The AAA rules do authorize judicial re view of certification decisions, but this review is unlikely to have much effect given these limitations; review un der focuses on misconduct rather than mistake. And parties may not contractually expand the grounds or nature of judicial review. Hall Street As, 552 U.S., at 578. We find it hard to believe that defendants would bet the company with no effective means of review, and even harder to believe that Congress |
Justice Scalia | 2,011 | 9 | majority | At&T Mobility LLC v. Concepcion | https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/ | means of review, and even harder to believe that Congress would have intended to Cite as: 563 U. S. (2011) 17 Opinion of the Court allow state courts to force such a decision.8 The Concepcions contend that because parties may and sometimes do agree to aggregation, class procedures are not necessarily incompatible with arbitration. But the same could be said about procedures that the Concepcions admit States may not superimpose on arbitration: Parties could agree to arbitrate pursuant to the Federal Rules of Civil Procedure, or pursuant to a discovery process rival ing that in litigation. Arbitration is a matter of contract, and the FAA requires courts to honor parties’ expecta tions. Rent-A-Center, West, 561 U. S., at (slip op., at 3). But what the parties in the aforementioned examples would have agreed to is not arbitration as envisioned by the FAA, lacks its benefits, and therefore may not be required by state law. The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system. See post, at 9. But States can not require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons. Moreover, the claim here was most unlikely to go unresolved. As noted earlier, the arbitration agreement provides that AT&T will pay claimants a minimum of $7,500 and twice their attorney’s fees if they obtain an arbitration award greater than AT&T’s last settlement offer. The District Court —————— 8 The dissent cites three large arbitration awards (none of which stems from classwide arbitration) as evidence that parties are willing to submit large claims before an arbitrator. Post, at 7–8. Those examples might be in point if it could be established that the size of the arbitral dispute was predictable when the arbitration agreement was entered. Otherwise, all the cases prove is that arbitrators can give huge awards—which we have never doubted. The point is that in class action arbitration huge awards (with limited judicial review) will be entirely predictable, thus rendering arbitration unattractive. It is not reasonably deniable that requiring consumer disputes to be arbitrated on a classwide basis will have a substantial deterrent effect on incen tives to arbitrate. 18 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court found this scheme sufficient to provide incentive for the individual prosecution of meritorious claims that are not immediately settled, and the Ninth Circuit admitted that aggrieved customers who filed claims would be “essen tially guarantee[d]” to be made n. 9. Indeed, the District Court concluded that the Concep cions were better off |
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