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Justice Stewart | 1,971 | 18 | majority | United States v. Campos-Serrano | https://www.courtlistener.com/opinion/108419/united-states-v-campos-serrano/ | The respondent was convicted in a federal district court of possession of a counterfeit alien registration receipt card in violation of 18 U.S. C. 1546,[1] and sentenced to a three-year prison term.[2] The Court *295 of Appeals reversed the conviction, holding that because of the circumstances under which Government agents had acquired the card from the respondent, it had been unconstitutionally admitted against him at the trial under We granted certiorari. We do not reach the constitutional issue, however, for we have concluded that the judgment of the Court of Appeals must be affirmed upon a discrete statutory ground. See (Brandeis, J., concurring).[3] We hold that possession of a counterfeit alien registration receipt card is not an act punishable under 18 U.S. C. [4] The statutory provision in question prohibits, inter alia, the counterfeiting or alteration of, or the possession, use, or receipt of an already counterfeited or altered "immigrant or nonimmigrant visa, permit, or other document required for entry into the United States." This offense originated in Section 22 (a) of the Immigration Act of 1924,[5] which covered only an "immigration visa or permit." The words "other document required for entry into the United States," were added in 1952 as part of the Immigration and Nationality Act. 402 (a), The legislative history of the * 1952 Act, however, does not make clear which "other" entry documents the Congress had in mind.[6] Alien registration receipt cards were first issued in 1941. They are small, simple cards containing the alien's picture and basic identification information.[7] They have no function whatsoever in facilitating the initial entry into the United States. Rather, they are issued after an alien has entered the country and taken up residence. Their essential purpose is to effectuate the registration requirement for all resident aliens established in the Alien Registration Act of 1940.[8] Until 1952, alien registration receipt cards could not even be used to facilitate re-entry into the United States by a resident alien who had left temporarily. Such an alien was required to obtain special documents authorizing his re-entry into the country, such as a visa or a re-entry permit.[9] However, in 1952less than a month *297 before final enactment of the Immigration and Nationality Actthe Immigration and Naturalization Service promulgated a regulation that allowed resident aliens to use their registration receipt cards for re-entry purposes as a permissible substitute for the specialized documents.[10] The apparent reason for this regulation was to minimize paper work and streamline administrative procedures by giving resident aliens the option of using for re-entry a document already issued and serving other purposes. |
Justice Stewart | 1,971 | 18 | majority | United States v. Campos-Serrano | https://www.courtlistener.com/opinion/108419/united-states-v-campos-serrano/ | for re-entry a document already issued and serving other purposes. Thus, the registration receipt cards may now be used in lieu of a visa or a re-entry permit on condition that the holder is returning to the United States after a temporary absence of not more than one year.[11] The Court of Appeals held that the limited, merely permissible, re-entry function of the alien registration receipt card is sufficient to make it a "document required for entry into the United States" under We cannot agree. It has long been settled that "penal statutes are to be construed strictly," Federal Communications U.S. 284, and that one "is not to be subjected to a penalty unless the words of the statute plainly impose it," "[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." United In 1546, *298 Congress did speak in "clear and definite" language. But, taken literally and given its plain and ordinary meaning, that language does not impose a criminal penalty for possession of a counterfeited alien registration receipt card. Alien registration receipt cards may be used for re-entry by certain persons into the United States. They are not required for entry. The canon of strict construction of criminal statutes, of course, "does not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature." United If an absolutely literal reading of a statutory provision is irreconcilably at war with the clear congressional purpose, a less literal construction must be considered. In this spirit, we read 1546 in conjunction with 8 U.S. C. 1101 (a) (13)another part of the 1952 Immigration and Nationality Actwhich provides that, under most circumstances, an "entry" into the United States is defined to include a "re-entry." We have held in the past that Congress did not intend these terms to be taken entirely synonymously. But Congress clearly did intend a significant overlap, and we cannot say that a document usable for "entry" into the United States under 1546 does not include some documents usable for "re-entry." Nor do we hold that 1546 applies only to those documents absolutely "required" in order to enter or re-enter the country. To do so would undermine the congressional purpose behind 1546, since the Immigration and Naturalization Service has not required that presentation of any one particular document be the exclusive condition of crossing our borders. While the apparent |
Justice Stewart | 1,971 | 18 | majority | United States v. Campos-Serrano | https://www.courtlistener.com/opinion/108419/united-states-v-campos-serrano/ | the exclusive condition of crossing our borders. While the apparent congressional purpose underlying 1546 would thus seem to bar an uncompromisingly literal construction, the precise language of the provision *299 must not be deprived of all force. The principle of strict construction of criminal statutes demands that some determinate limits be established based upon the actual words of the statute. Accordingly, a "document required for entry into the United States" cannot be construed to include any document whatsoever that the Immigration and Naturalization Service, from time to time, decides may be presented for re-entry at the border. The language of 1546 denotes a very special class of "entry" documentsdocuments whose primary raison d'être is the facilitation of entry into the country. The phrase, "required for entry into the United States," is descriptive of the nature of the documents; it is not simply an open-ended reference to future administrative regulations. If, for example, the Immigration and Naturalization Service were to allow the presentation of identification such as a driver's license at the border, the nature of such a license would not suddenly change so that it would fall into the category of a "document required for entry into the United States" under To be sure, if a counterfeit driver's license were presented to secure entry or re-entry into the country, the bearer could be prosecuted under 8 U.S. C. 1325, which provides for the punishment of "[a]ny alien who obtains entry to the United States by a willfully false or misleading representation." But mere possession of a counterfeit driver's license, far from the border, could not be prosecuted under The reason is that a driver's license is not essentially an "entry" document. Rather, its primary purpose is to allow its bearer lawfully to drive a car, and the bearer's possession of a counterfeit license, far from the border, could not be assumed to be related to the policies underlying the 1952 Immigration and Nationality Act. The same analysis applies to the alien registration receipt card. Its essential purpose is not to secure entry *300 into the United States, but to identify the bearer as a lawfully registered alien residing in the United States. It is issued to an alien after he has taken up residence in this country. It is intended to govern his activities and presence within this country. The card has been given a convenient, additional function as a permissible substitute for a visa or re-entry permit in facilitating re-entry into the United States by a resident alien. But, unlike a visa or a re-entry permit,[12] an alien registration |
Justice Stewart | 1,971 | 18 | majority | United States v. Campos-Serrano | https://www.courtlistener.com/opinion/108419/united-states-v-campos-serrano/ | unlike a visa or a re-entry permit,[12] an alien registration receipt card serves this function in only a secondary way. Unlike a visa or a re-entry permit, it is not, by its nature, a "document required for entry into the United States" under This construction of the language of 1546 is conclusively supported by that section's statutory context. In the 1952 Immigration and Nationality Act, Congress clearly regarded alien registration receipt cards as serving policies separate and distinct from those served by pure "entry" documents. Although, in 1952, those cards could be used as substitutes for visas or re-entry permits, the Congress chose to deal with them separately. In 8 U.S. C. 1306 (c) and 1306 (d), it specifically provided for the punishment of one "who procures or attempts to procure registration of himself or another person through fraud" and of one who counterfeits an alien registration receipt card. The fact that the Congress *301 did not rely on 1546 to ensure the integrity of alien registration receipt cards indicates that it did not believe that they were covered by that section. Moreover, there is a very specific overlap between 1546 and 1306. Both sections explicitly prohibit counterfeiting, and both explicitly prohibit fraud in the acquisition of documents.[13] Unless we assume that 1306 is mere surplusage, we must conclude that 1546 covers only specialized "entry" documents, and not alien registration receipt cards specifically covered in 1306.[14] For these reasons the judgment is Affirmed. MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. |
Justice Blackmun | 1,990 | 11 | dissenting | Sullivan v. Stroop | https://www.courtlistener.com/opinion/112460/sullivan-v-stroop/ | Today the Court holds that the plain language of a statute applicable by its terms to "any child support payments" compels *86 the conclusion that the statute does not apply to benefits paid to the dependent child of a disabled, retired, or deceased parent for the express purpose of supporting that child. Because I am persuaded that this crabbed interpretation of the statute is neither compelled by its language nor consistent with its purpose, and arbitrarily deprives certain families of a modest but urgently needed welfare benefit, I dissent. I I begin, as does the majority, with the plain language of the disregard provision. It refers to "any child support payments received with respect to the dependent child or children in any family applying for or receiving aid to families with dependent children (including support payments collected and paid to the family under section 67(b) of this title)."[1] U.S. C. 60(a)(8)(A)(vi) (198 ed., Supp. V) (emphasis added). This language does not support the majority's narrow interpretation. The word "any" generally means all forms or types of the thing mentioned. When coupled with the parenthetical phrase "including" it indicates that "support payments collected and paid" by the State constitute one type within the larger universe of "child support payments." As the majority recognizes, 60(a)(6)(A) requires all applicants for AFDC to "assign the State any rights to support from any other person" Thus, support payments from absent parents will almost always fall within the parenthetical clause referring to "support payments collected and paid" by the State. The plain words of the disregard provision indicate that such payments are only one of various types of child support payments; limiting the meaning of child support to an absent * parent's payments renders the statutory language "any child support payments including" meaningless. The majority's insistence that the ordinary meaning of the term "child support" excludes Title II payments makes little sense. Title II is a program of mandatory wage deductions, designed to ensure that a worker's dependents will have some income, should the worker retire, die, or become disabled. Thus, the worker is legally compelled to set aside a portion of his wages in order to earn benefits used to support his dependent children in the event he becomes unable to do so himself. A child is entitled to Title II payments only if he or she lived with, or received financial support from, the insured worker that is, only if the relationship between the child and the insured worker would (or did) give rise to a legally enforceable support obligation. U.S. C. 0(d) |
Justice Blackmun | 1,990 | 11 | dissenting | Sullivan v. Stroop | https://www.courtlistener.com/opinion/112460/sullivan-v-stroop/ | rise to a legally enforceable support obligation. U.S. C. 0(d) (198 ed. and Supp. V). The sole and express purpose of Title II children's benefits is to support dependent children. ; ; see also It is unlawful to use Title II payments for any other purpose. U.S. C. 08(e) (198 ed.).[] *88 How are Title II payments different from court-ordered payments by an absent parent? Their source is the same: a parent's wages or assets.[] Their purpose is the same: to provide for the needs of a dependent child, in lieu of the support of a working parent living in the home. The majority does not even attempt to explain why the common usage and understanding of the term "child support" would include all the types of payments the Secretary says the disregard provision covers legally compulsory payments from absent parents, voluntary payments,[] and even spousal support payments[] but would exclude Title II payments. Nonetheless, the majority insists that Title II payments do not constitute "child support." The majority points to the use of the term "child support" in Part D of Title IV to refer to court-ordered support payments by absent parents. This begs the question. Naturally, Congress was referring to compulsory support payments in Part D, because that part of the statute is concerned with "enforcing the support obligations owed by absent parents to their children." U.S. C. 61 (198 ed., Supp. V). Other types of child support, such as payments voluntarily made by absent parents, or payments made by the Government on behalf of dead, disabled, or retired parents, do not involve the same problems of enforcement.[6]*89 Nowhere in Part D did Congress actually define "child support," nor does Part D or any other provision of Title IV indicate that Congress thought the term "child support" referred only to compulsory payments or only to payments made directly by the absent parent. The majority relies on the maxim of statutory construction that identical words in two related statutes, or in different parts of the same statute, are intended to have the same meaning. Ante, at 8. Like all such maxims, however, this is merely a general assumption, and is not always valid or applicable. In for example, the Court declined to follow this maxim, because it was invoked not simply to resolve any ambiguities or doubts in the statutory language, but, as in this case, "to introduce an exception to the coverage of the [statute] where none is now apparent." The Court commented: "This might be a sensible construction of the two statutes if they were |
Justice Blackmun | 1,990 | 11 | dissenting | Sullivan v. Stroop | https://www.courtlistener.com/opinion/112460/sullivan-v-stroop/ | a sensible construction of the two statutes if they were intended to serve the same function, but plainly they were not." It went on to explain that the two statutes had different purposes, and the reason for the limited scope of one was absent in the context of the other. -7. See also District of (internal quotation marks omitted); This Court's articulation of the limits of the maxim in Atlantic Cleaners & Dyers, bears repeating, for it remains true today: "But the presumption is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent [T]he meaning well may vary to meet the purposes of the law, to be arrived at by a consideration of the language in which those purposes are expressed, and of the circumstances under which the language was employed. "It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the legislature intended it should have in each instance." I conclude that the plain language of the statute does not unequivocally support the Secretary's interpretation. It is equally consistent with the opposite conclusion that Title II payments fall within the broad, inclusive phrase "any child support payments." It is therefore proper to turn to the purpose and history of the disregard provision for aid in construing that provision. II The majority, in its conservatively restrictive approach, makes only passing reference to the hardship brought about by the DEFRA amendments. A closer look at the effect of these amendments is necessary to understand the function of the disregard provision. DEFRA changed the AFDC statutes in two ways relevant here. First, it established *91 the "mandatory filing unit" requirement that a family's application for AFDC benefits must take into account any income received by any member of the family, including all children living in the same household. U.S. C. 60(a)(8) (198 ed., Supp. V). See 8 U.S. (19). Under prior law, parents could choose to exclude from their AFDC applications children who received income from other sources. This exclusion, in some circumstances, was advantageous to the family; although the family then would not receive AFDC funds for the excluded child, that child's income would not be considered in determining its overall AFDC eligibility. Thus, in situations where a child's separate income was greater than |
Justice Blackmun | 1,990 | 11 | dissenting | Sullivan v. Stroop | https://www.courtlistener.com/opinion/112460/sullivan-v-stroop/ | in situations where a child's separate income was greater than the incremental amount of AFDC benefits the family would receive for that child, the family was better off not counting the child in its AFDC application. Along with the new requirement, however, Congress enacted the provision at issue here. The Court in Gilliard explained: "Because the 198 amendments forced families to include in the filing unit children for whom support payments were being received, the practical effect was that many families' total income was reduced. The burden of the change was mitigated somewhat by a separate amendment providing that the first $0 of child support collected by the State must be remitted to the family and not counted as income for the purpose of determining its benefit level."[7] *9 The legislative history of the DEFRA amendments supports the conclusion that the disregard provision was intended to mitigate the harsh effects of the amendments. The mandatory filing-unit provision was first proposed by the Secretary in 198, but it was dropped in Conference because of opposition in the House. See H. R. Conf. Rep. No. 97-760, p. 6 (198). In 198, the Secretary again proposed this provision, and it was approved by the Senate. S. Rep. No. 98-00, p. 16 (198). Again, there was opposition in the House, and consideration of the provision was carried over to the next session. House Committee on Ways and Means, Description of the Administration's Fiscal Year 198 Budget, Comm. Print No. 98-, pp. 9-0 In 198, the provision was added by the Senate amendments to H. R. 170, the bill that became the Deficit Reduction Act of 198 (DEFRA). The Report of the House-Senate Conference Committee explains: "The conference agreement follows the Senate amendment with the following modification: a monthly disregard of $0 of child support received by a family is established." H. R. Conf. Rep. No. 98-861, p. 107 Neither the House bill nor the Senate bill had contained a disregard provision prior to the Conference, nor is there any discussion in the legislative history of such a provision. The only plausible explanation for its sudden appearance is that it was meant to assuage the concerns of some Members of Congress about the harsh impact of the DEFRA amendments and thus to facilitate the passage of the mandatory filing-unit requirement. The burden of the DEFRA amendments falls equally on families with children receiving Title II benefits and on those with children receiving court-ordered support payments. The mitigating purpose of the disregard provision therefore applies equally to both categories of families. The purpose and history of |
Justice Blackmun | 1,990 | 11 | dissenting | Sullivan v. Stroop | https://www.courtlistener.com/opinion/112460/sullivan-v-stroop/ | to both categories of families. The purpose and history of the disregard provision support the Court of Appeals' interpretation of that provision and resolve any *9 ambiguity as to the meaning of the statutory words "any child support payments." Since the Secretary's interpretation of the disregard rule is not compelled by the language of the statute and is not supported by its purpose and legislative history, it is not entitled to deference and should be rejected by this Court. See (19) ; Chevron U. S. A. ("The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect"). III Even if the meaning of "child support" in the disregard provision were ambiguous, however, the Secretary's interpretation should still be rejected because it is so arbitrary as not to reflect a "permissible construction of the statute." The Secretary's position is that the disregard applies to legally compulsory child support payments, voluntary child support payments, and spousal support payments by absent parents, but not to Title II payments. See nn. and Consider, for example, a family consisting of a mother and three children. One of the children is of a prior marriage and receives support from her absent father. The father voluntarily sets aside a portion of his wages every month and sends them to the mother for the child's support. The disregard *9 provision applies. See n. Then the father retires and stops his voluntary contributions, but the child now receives Title II benefits each month. The disregard provision, according to the Secretary, does not apply. But then the mother obtains a court order obligating the father to make child support payments each month, and he does so. The disregard provision applies. Then the father asks the court to amend the support order, so that the Title II benefits are used to satisfy his support obligation. See n. The disregard provision, according to the Secretary, does not apply. Throughout this example, the child's and her family's financial needs remain the same. The impact of the mandatory filing-unit requirement, forcing the family to count the child's income in its AFDC application and thus reducing the level of its benefits, remains the same. The source of the child's income her father's earnings and the purpose of that income to fulfill his duty to provide for the needs of |
Justice Blackmun | 1,990 | 11 | dissenting | Sullivan v. Stroop | https://www.courtlistener.com/opinion/112460/sullivan-v-stroop/ | to fulfill his duty to provide for the needs of his dependent child remain the same. But the applicability of the disregard provision changes with the vagaries of the Secretary's regulations. The Secretary argues that his interpretation of the disregard provision is rational because the disregard serves as an incentive for absent parents to make support payments and for custodial parents to cooperate in enforcement efforts (since $0 of those payments directly benefits the family and does not merely reimburse the State for AFDC). But there is simply no indication that Congress intended to limit the applicability of the disregard provision to situations in which it would serve as an incentive. There is no mention of such a purpose in the legislative history of the provision; moreover, the Secretary points to no discussion of the need for such an incentive anywhere in the legislative history of the DEFRA amendments.[8] *9 Even if the disregard rule were intended to serve as an incentive, that does not justify applying the disregard to all court-ordered support payments, but not to Title II benefits. Not all court-ordered support payments depend on the voluntary compliance of the absent parent; some are deducted directly from the absent parent's wages just like Title II deductions. See n. Also, insofar as the disregard serves as an incentive for the custodial parent to help collect support payments, that purpose applies to Title II benefits as well as to court-ordered support payments. To qualify for Title II benefits, the custodial parent, on behalf of the child, must complete an application and, if necessary, establish paternity. If the disregard does not apply to Title II benefits, so that they serve only to reduce a family's AFDC eligibility, the custodial parent has no financial incentive to apply for them. Thus, I believe that the Secretary cannot provide any rational explanation for his view that the disregard provision does not apply to Title II payments. Even assuming that the provision is ambiguous and that Chevron deference is to *96 be considered, I cannot in good conscience defer to an administrative interpretation that results in an arbitrary and irrational reduction of welfare benefits to certain needy families. I view with regret the Court's acquiescence in an administrative effort to cut the costs of the AFDC program by any means that are available. I dissent. |
Justice Marshall | 1,974 | 15 | majority | Bellis v. United States | https://www.courtlistener.com/opinion/109046/bellis-v-united-states/ | The question presented in this case is whether a partner in a small law firm may invoke his personal privilege against self-incrimination to justify his refusal to comply with a subpoena requiring production of the partnership's financial records. *86 Until petitioner Isadore Bellis was the senior partner in Bellis, Kolsby & Wolf, a law firm in Philadelphia. The firm was formed in 19 or 1956. There were three partners in the firm, the three individuals listed in the firm name. In addition, the firm had six employees: two other attorneys who were associated with the firm, one part-time; three secretaries; and a receptionist. Petitioner's secretary doubled as the partnership's bookkeeper, under the direction of petitioner and the firm's independent accountant. The firm's financial records were therefore maintained in petitioner's office during his tenure at the firm. Bellis left the firm in late to join another law firm. The partnership was dissolved, although it is apparently still in the process of winding up its affairs. Kolsby and Wolf continued in practice together as a new partnership, at the same premises. Bellis moved to new offices, leaving the former partnership's financial records with Kolsby and Wolf, where they remained for more than three years. In February or March however, shortly before issuance of the subpoena in this case, petitioner's secretary, acting at the direction of petitioner or his attorney, removed the records from the old premises and brought them to Bellis' new office. On May 1, Bellis was served with a subpoena directing him to appear and testify before a federal grand jury and to bring with him "all partnership records currently in your possession for the partnership of Bellis, Kolsby & Wolf for the years and" App. 6. Petitioner appeared on May 9, but refused to produce the records, claiming, inter alia, his Fifth Amendment privilege, against compulsory self-incrimination. After a hearing before the District Court on May 9 and 10, the court held that petitioner's personal privilege did not extend to the partnership's financial books and records, and ordered *87 their production by May 16.[1] When petitioner reappeared before the grand jury on that date and again refused to produce the subpoenaed records, the District Court held him in civil contempt, and released him on his own recognizance pending an expedited appeal. On July 9, the Court of Appeals affirmed in a per curiam opinion. In re Grand Jury Investigation, Relying on this Court's decision in United the Court of Appeals stated that "the privilege has always been regarded as personal in the sense that it applies only to an |
Justice Marshall | 1,974 | 15 | majority | Bellis v. United States | https://www.courtlistener.com/opinion/109046/bellis-v-united-states/ | personal in the sense that it applies only to an individual's words or personal papers" and thus held that the privilege against self-incrimination did not apply to "records of an entity such as a partnership which has a recognizable juridical existence apart from its members." After MR. JUSTICE WHITE had stayed the mandate of the Court of Appeals on August 1, we granted certiorari, to consider this interpretation of the Fifth Amendment privilege and the applicability of our decision in the circumstances of this case. We affirm. It has long been established, of course, that the Fifth Amendment privilege against compulsory self-incrimination protects an individual from compelled production of his personal papers and effects as well as compelled oral testimony. In we held that "any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime" would violate the Fifth Amendment privilege. ; see also ; The privilege applies to the business records of *88 the sole proprietor or sole practitioner as well as to personal documents containing more intimate information about the individual's private life. Couch v. United ; (CA7), cert. denied, ; Stuart v. United As the Court explained in United "[t]he constitutional privilege against self-incrimination is designed to prevent the use of legal process to force from the lips of the accused individual the evidence necessary to convict him or to force him to produce and authenticate any personal documents or effects that might incriminate him." See also Curcio v. United ; Couch v. United On the other hand, an equally long line of cases has established that an individual cannot rely upon the privilege to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally. This doctrine was first announced in a series of cases dealing with corporate records. In the Court held that an officer of a corporation could not claim his privilege against compulsory self-incrimination to justify a refusal to produce the corporate books and records in response to a grand jury subpoena duces tecum directed to the corporation. A companion case, Dreier v. United held that the same result followed when the subpoena requiring production of the corporate books was directed to the individual corporate officer. In Wheeler v. United the Court held that no Fifth Amendment privilege could be claimed with respect to corporate records even though the corporation had previously been dissolved. And *89 Grant v. United applied this principle to the records |
Justice Marshall | 1,974 | 15 | majority | Bellis v. United States | https://www.courtlistener.com/opinion/109046/bellis-v-united-states/ | *89 Grant v. United applied this principle to the records of a dissolved corporation where the records were in the possession of the individual who had been the corporation's sole shareholder. To some extent, these decisions were based upon the particular incidents of the corporate form, the Court observing that a corporation has limited powers granted to it by the State in its charter, and is subject to the retained "visitorial power" of the State to investigate its activities. See, e. But any thought that the principle formulated in these decisions was limited to corporate records was put to rest in United In we held that an officer of an unincorporated association, a labor union, could not claim his privilege against compulsory self-incrimination to justify his refusal to produce the union's records pursuant to a grand jury subpoena. announced the general rule that the privilege could not be employed by an individual to avoid production of the records of an organization, which he holds in a representative capacity as custodian on behalf of the group. -700. Relying on we have since upheld compelled production of the records of a variety of organizations over individuals' claims of Fifth Amendment privilege. See, e. United v. Fleischman, ; Rogers v. United ; McPhaul v. United See also Curcio v. United These decisions reflect the Court's consistent view that the privilege against compulsory self-incrimination should be "limited to its historic function of protecting only the natural individual from compulsory incrimination through *90 his own testimony or personal records." United is only one of the many cases to emphasize that the Fifth Amendment privilege is a purely personal one, most recent among them being the Court's decision last Term in Couch v. United -328. Relying on this fundamental policy limiting the scope of the privilege, the Court in held that "the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity." Mr. Justice Murphy reasoned that "individuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges. Rather they assume the rights, duties and privileges of the artificial entity or association of which they are agents or officers and they are bound by its obligations." Since no artificial organization may utilize the personal privilege against compulsory self-incrimination, the Court found that it follows that an individual acting in his official capacity on behalf of the organization may likewise |
Justice Marshall | 1,974 | 15 | majority | Bellis v. United States | https://www.courtlistener.com/opinion/109046/bellis-v-united-states/ | his official capacity on behalf of the organization may likewise not take advantage of his personal privilege. In view of the inescapable fact that an artificial entity can only act to produce its records through its individual officers or agents, recognition of the individual's claim of privilege with respect to the financial records of the organization would substantially undermine the unchallenged rule that the organization itself is not entitled to claim any Fifth Amendment privilege, and largely frustrate legitimate governmental regulation of such organizations. Mr. Justice Murphy put it well: "The scope and nature of the economic activities of incorporated and unincorporated organizations and their representatives demand that the constitutional *91 power of the federal and state governments to regulate those activities be correspondingly effective. The greater portion of evidence of wrongdoing by an organization or its representatives is usually to be found in the official records and documents of that organization. Were the cloak of the privilege to be thrown around these impersonal records and documents, effective enforcement of many federal and state laws would be impossible. The framers of the constitutional guarantee against compulsory self-disclosure, who were interested primarily in protecting individual civil liberties, cannot be said to have intended the privilege to be available to protect economic or other interests of such organizations so as to nullify appropriate governmental regulations." See also The Court's decisions holding the privilege inapplicable to the records of a collective entity also reflect a second, though obviously interrelated, policy underlying the privilege, the protection of an individual's right to a " `private enclave where he may lead a private life.' " We have recognized that the Fifth Amendment "respects a private inner sanctum of individual feeling and thought"an inner sanctum which necessarily includes an individual's papers and effects to the extent that the privilege bars their compulsory production and authentication and "proscribes state intrusion to extract self-condemnation." Couch v. United See also Protection of individual privacy was the major theme running through the Court's decision in Boyd, see, e. 116 U. S., and it was on this basis that the Court in Wilson distinguished the corporate records involved in *92 that case from the private papers at issue in Boyd. See 221 U.S., at But a substantial claim of privacy or confidentiality cannot often be maintained with respect to the financial records of an organized collective entity. Control of such records is generally strictly regulated by statute or by the rules and regulations of the organization, and access to the records is generally guaranteed to others in the organization. In such circumstances, |
Justice Marshall | 1,974 | 15 | majority | Bellis v. United States | https://www.courtlistener.com/opinion/109046/bellis-v-united-states/ | generally guaranteed to others in the organization. In such circumstances, the custodian of the organization's records lacks the control over their content and location and the right to keep them from the view of others which would be characteristic of a claim of privacy and confidentiality. Mr. Justice Murphy recognized the significance of this in ; he pointed out that organizational records "[u]sually, if not always, are open to inspection by the members," that "this right may be enforced on appropriate occasions by available legal procedures," and that "[t]hey therefore embody no element of personal privacy." -700. And here lies the modern-day relevance of the visitorial powers doctrine relied upon by the Court in Wilson and the other cases dealing with corporate records; the Court's holding that no privilege exists "where, by virtue of their character and the rules of law applicable to them, the books and papers are held subject to examination by the [state]," can easily be understood as a recognition that corporate records do not contain the requisite element of privacy or confidentiality essential for the privilege to attach. The analysis of the Court in of course, only makes sense in the context of what the Court described as "organized, institutional activity." 322 U.S., This analysis presupposes the existence of an organization which is recognized as an independent entity apart from its individual members. The group must be relatively *93 well organized and structured, and not merely a loose, informal association of individuals. It must maintain a distinct set of organizational records, and recognize rights in its members of control and access to them. And the records subpoenaed must in fact be organizational records held in a representative capacity. In other words, it must be fair to say that the records demanded are the records of the organization rather than those of the individual under The Court in had little difficulty in concluding that the demand for production of the official records of a labor union, whether national or local, in the custody of an officer of the union, met these tests. See -703. The Court observed that a union's existence in fact, if not in law, was "as perpetual as that of any corporation," that the union operated under formal constitutions, rules, and bylaws, and that it engaged in a broad scope of activities in which it was recognized as an independent entity. The Court also pointed out that the official union books and records were distinct from the personal books and records of its members, that the union restricted the permissible uses of these records, |
Justice Marshall | 1,974 | 15 | majority | Bellis v. United States | https://www.courtlistener.com/opinion/109046/bellis-v-united-states/ | that the union restricted the permissible uses of these records, and that it recognized its members' rights to inspect them. Although the Court was aware that the individual members might legally hold title to the union records, the Court characterized this interest as a "nominal" rather than a significant personal interest in them. We think it is similarly clear that partnerships may and frequently do represent organized institutional activity so as to preclude any claim of Fifth Amendment privilege with respect to the partnership's financial records. Some of the most powerful private institutions in the Nation are conducted in the partnership form. Wall Street law firms and stock brokerage firms provide significant examples. These are often large, impersonal, *94 highly structured enterprises of essentially perpetual duration. The personal interest of any individual partner in the financial records of a firm of this scope is obviously highly attenuated. It is inconceivable that a brokerage house with offices from coast to coast handling millions of dollars of investment transactions annually should be entitled to immunize its records from SEC scrutiny solely because it operates as a partnership rather than in the corporate form. Although none of the reported cases has involved a partnership of quite this magnitude, it is hardly surprising that all of the courts of appeals which have addressed the question have concluded that 's analysis requires rejection of any claim of privilege in the financial records of a large business enterprise conducted in the partnership form. In re Mal Brothers Contracting Co., (CA3), cert. denied, ; United v. Silverstein, (CA2), cert. denied, ; United v. Wernes, See also United v. Onassis, F. Supp. 190, Even those lower courts which have held the privilege applicable in the context of a smaller partnership have frequently acknowledged that no absolute exclusion of the partnership form from the rule generally applicable to unincorporated associations is warranted. See, e. United v. Cogan, ; In re Subpoena Duces In this case, however, we are required to explore the outer limits of the analysis of the Court in Petitioner argues that in view of the modest size of the partnership involved here, it is unrealistic to consider the firm as an entity independent of its three partners; rather, he claims, the law firm embodies little more than the personal *95 legal practice of the individual partners. Moreover, petitioner argues that he has a substantial and direct ownership interest in the partnership records, and does not hold them in a representative capacity.[2] Despite the force of these arguments, we conclude that the lower courts properly applied the |
Justice Marshall | 1,974 | 15 | majority | Bellis v. United States | https://www.courtlistener.com/opinion/109046/bellis-v-united-states/ | arguments, we conclude that the lower courts properly applied the rule in the circumstances of this case. While small, the partnership here did have an established institutional identity independent of its individual partners. This was not an informal association or a temporary arrangement for the undertaking of a few projects of short-lived duration. Rather, the partnership represented a formal institutional arrangement organized for the continuing conduct of the firm's legal practice. The partnership was in *96 existence for nearly 15 years prior to its voluntary dissolution.[3] Although it may not have had a formal constitution or bylaws to govern its internal affairs, state partnership law imposed on the firm a certain organizational structure in the absence of any contrary agreement by the partners;[4] for example, it guaranteed to each of the partners the equal right to participate in the management and control of the firm, Pa. Stat. Ann., Tit. 59, 51 (e) and prescribed that majority rule governed the conduct of the firm's business, 51 (h).[5] The firm maintained a bank account in the partnership name, had stationery using the firm name on its letterhead, *97 and, in general, held itself out to third parties as an entity with an independent institutional identity. It employed six persons in addition to its partners, including two other attorneys who practiced law on behalf of the firm, rather than as individuals on their own behalf. It filed separate partnership returns for federal tax purposes, as required by 6031 of the Internal Revenue Code, 26 U.S. C. 6031.[6] State law permitted the firm to be sued, Pa. Rule Civ. Proc. 2128, and to hold title to property, Pa. Stat. Ann., Tit. 59, 13 (3), in the partnership name, and generally regarded the partnership as a distinct entity for numerous other purposes.[7] Equally important, we believe it is fair to say that petitioner is holding the subpoenaed partnership records in a representative capacity.[8] The documents which *98 petitioner has been ordered to produce are merely the financial books and records of the partnership.[9] These reflect the receipts and disbursements of the entire firm, including income generated by and salaries paid to the employees of the firm, and the financial transactions of the other partners. Petitioner holds these records subject to the rights granted to the other partners by state partnership law. Petitioner has no direct ownership interest in the records; rather, under state law, they are partnership property, and petitioner's interest in partnership property is a derivative interest subject to significant limitations. See 549-0 Petitioner has no right to use this property for other than |
Justice Marshall | 1,974 | 15 | majority | Bellis v. United States | https://www.courtlistener.com/opinion/109046/bellis-v-united-states/ | has no right to use this property for other than partnership purposes without the consent of the other partners. Pa. Stat. Ann., Tit. 59, 72 (2) (a). Petitioner is of course accountable to the partnership as *99 a fiduciary, 54 (1), and his possession of the firm's financial records is especially subject to his fiduciary obligations to the other partners. Indeed, Pennsylvania law specifically provides that "every partner shall at all times have access to and may inspect and copy any of [the partnership books]." 52.[10] To facilitate this right of access, petitioner was required to keep these financial books and records at the firm's principal place of business, at least during the active life of the partnership. The other partners in the firm wereand still areentitled to enforce these rights through legal action by demanding production of the records in a suit for a formal accountin[11] It should be noted also that petitioner was content to leave these records with the other members of the partnership at their principal place of business for more than three years after he left the firm. Moreover, the Government contends that the other partners in the firm had agreed to turn the records over to the grand jury before discovering that petitioner had removed them from their offices, and that they made an unavailing demand upon petitioner to return the records. Whether or not petitioner's present possession of these records is an unlawful infringement of the rights of the other partners, this provides additional support for our conclusion that it is the organizational character of the records and the representative aspect of petitioner's present possession of *100 them which predominates over his belatedly discovered personal interest in them. Petitioner relies heavily on language in the Court's opinion in which suggests that the "test" for determining the applicability of the Fifth Amendment privilege in this area is whether the organization "has a character so impersonal in the scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interests of its constituents, but rather to embody their common or group interests only." 322 U.S., We must admit our agreement with the Solicitor General's observation that "it is difficult to know precisely what situations the formulation in was intended to include within the protection of the privilege." Brief for United 21. The Court in after stating its test, did not really apply it, nor has any of the subsequent decisions of this Court. On its face, the test is not particularly helpful in the broad range |
Justice Marshall | 1,974 | 15 | majority | Bellis v. United States | https://www.courtlistener.com/opinion/109046/bellis-v-united-states/ | the test is not particularly helpful in the broad range of cases, including this one, where the organization embodies neither "purely personal interests" nor "group interests only," but rather some combination of the two. In any event, we do not believe that the Court's formulation in can be reduced to a simple proposition based solely upon the size of the organization. It is well settled that no privilege can be claimed by the custodian of corporate records, regardless of how small the corporation may be. Grant v. United ; Fineberg v. United ; Hair Industry, Ltd. v. United ; cf. George Campbell Painting Every State has now adopted laws permitting incorporation of professional associations, and increasing numbers of lawyers, doctors, and other professionals are choosing to conduct their business affairs *101 in the corporate form rather than the more traditional partnership. Whether corporation or partnership, many of these firms will be independent entities whose financial records are held by a member of the firm in a representative capacity. In these circumstances, the applicability of the privilege should not turn on an insubstantial difference in the form of the business enterprise. See In re Grand Jury Subpoena Duces This might be a different case if it involved a small family partnership, see United v. Slutsky, ; In re Subpoena Duces 81 F. Supp., at or, as the Solicitor General suggests, Brief for United 22-23, if there were some other pre-existing relationship of confidentiality among the partners. But in the circumstances of this case, petitioner's possession of the partnership's financial records in what can be fairly said to be a representative capacity compels our holding that his personal privilege against compulsory self-incrimination is inapplicable. Affirmed. MR. |
Justice Burger | 1,972 | 12 | dissenting | Peters v. Kiff | https://www.courtlistener.com/opinion/108589/peters-v-kiff/ | There is no longer any question, of course, that persons may not be excluded from juries on account of race. Such exclusions are plainly unlawful and deserving of condemnation. That, however, is not the issue before us. The real issue is whether such illegality necessarily voids a criminal conviction, absent any demonstration of prejudice, or basis for presuming prejudice, to the accused. Petitioner was indicted for the offense of burglary on June 6, 1966, and thereafter convicted. The conviction was reversed on direct appeal, and the case was remanded for a new trial. Petitioner was retried on December 8, 1966, was found guilty, and was sentenced to 10 years' imprisonment. Petitioner is not a Negro and the record in no way suggests that race was relevant in the proceedings against him. At trial, petitioner made no challenge to the method of selection of the grand and petit juries, and he made no challenge to the array of the petit jury. In his appeal to the Court of Appeals of Georgia, petitioner still made no claim addressed to the method of selection of the grand and petit juries. His conviction was affirmed. *508 Seven months after his trial, petitioner filed a writ of habeas corpus in the United States District Court, asserting for the first time that Negroes were systematically excluded from the grand and petit juries. If petitioner's allegations are true, then the officials responsible for the jury selection acted in violation of the Constitution, denying potential Negro jurors the equal opportunity to participate in the administration of justice. Moreover, if petitioner's allegations are true, the responsible officials are subject to criminal penalties. 18 U.S. C. 243. However, in order for petitioner's conviction to be set aside, it is not enough to show merely that there has been some unconstitutional or unlawful action at the trial level. It must be established that petitioner's conviction has resulted from the denial of federally secured rights properly asserted by him. See ; cf. The opinions in support of the majority position do not hold that if petitioner's allegations are true, he has been denied the equal protection of the laws. The Court has held in a long line of cases that a Negro defendant is denied equal protection by the systematic exclusion of Negroes from jury service. See, e. g., ; ; ; ; These decisions have been predicated from the beginning on the judicially noticeable fact "that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to |
Justice Burger | 1,972 | 12 | dissenting | Peters v. Kiff | https://www.courtlistener.com/opinion/108589/peters-v-kiff/ | and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy." *509 See also ; ; ; Ex parte This presumption of prejudice derives from the fact that the defendant is a member of the excluded class, but the Court has never intimated that a defendant is the victim of unconstitutional discrimination if he does not claim that members of his own race have been excluded. See While the opinion of MR. JUSTICE MARSHALL refrains from relying on the Equal Protection Clause, it concludes that if petitioner's allegations are true, he has been denied due process of law. The opinion seeks to equate petitioner's position with that of a defendant who has been tried before a biased tribunal or one lacking the indicia of impartiality. It has been held that an accused is denied due process if the trier of fact is mentally incompetent, has a personal interest in the outcome of the proceedings, has been subjected to pressures making a dispassionate decision unlikely, U.S. 86 cf. or has had direct personal involvement with the events underlying a criminal contempt charge. ; In re This case plainly falls in none of those categories. Although the prior cases have not required a showing that the trier of fact was actually affected by prejudice in its deliberations, in every case the circumstances were such as to create a serious "probability of unfairness." In re Recognizing this limitation, the Court in found no denial of due process where the determination of guilt had been entrusted to a jury from which persons opposed to the death penalty had been excluded. The Court rejected as "tentative and fragmentary" scientific evidence tending to show "that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt." The Court went on to state, "We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was." -518. See also 332 U.S. Here three members of the Court would establish such a per se rule without the benefit of tentative, fragmentary, or any other kind of empirical data indicating that allwhite juries tend |
Justice Burger | 1,972 | 12 | dissenting | Peters v. Kiff | https://www.courtlistener.com/opinion/108589/peters-v-kiff/ | other kind of empirical data indicating that allwhite juries tend to be prejudiced against white defendants in nonracial criminal proceedings. The opinion of MR. JUSTICE MARSHALL seeks to magnify this wholly speculative likelihood of prejudice by noting that the effect of excluding "any large and identifiable segment of the community is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable," and "that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented." Ante, at 503-504. I completely agree that juries should not be deprived of the insights of the various *511 segments of the community, for the "common-sense judgment of a jury," referred to in is surely enriched when all voices can be heard. But we are not here concerned with the essential attributes of trial by jury. In fact, since petitioner was tried two years before this Court's decision in Duncan, there was no constitutional requirement that he be tried before a jury at all. Had the State of Georgia proceeded to try petitioner before a judge, I assume the Court would not find it a denial of due process if the judge were not the embodiment of all the "qualities of human nature and varieties of human experience." I do not mean to minimize the importance of these values, but they really have very little to do with the narrow question whether petitioner was convicted by a prejudiced tribunal. Nor do I believe that the illegality of the alleged exclusion can be viewed as tipping the scales toward finding a denial of due process. The question of a jury's bias or prejudice is totally factual in nature. If the possibility of prejudice is too remote or speculative to support a finding of unconstitutionality, a different result cannot be justified by relying on the element of illegality. The constitutional and statutory prohibition against such conduct is extraneous to the due process question, for it in no way renders the possibility of prejudice less remote or less speculative. If this were a borderline case on the facts, it might conceivably be appropriate to resolve the doubt against the State due to its complicity in the alleged unlawful discrimination. But, judging from all existing authority, this is not a close case at all. The opinion of MR. JUSTICE WHITE concurring in the judgment, as I read it, rests on the statutory prohibition against racially exclusive juries found in 18 U.S. C. 243. The |
Justice Burger | 1,972 | 12 | dissenting | Peters v. Kiff | https://www.courtlistener.com/opinion/108589/peters-v-kiff/ | racially exclusive juries found in 18 U.S. C. 243. The opinion draws on dictum in Hill v. Texas, 316 U. S. *512 400, 404 (1942), a case involving a Negro defendant, as expressing the "better view" that 243 invalidates the conviction of any man tried before a jury from which persons have been excluded on account of race.[*] A closer look at the statute is warranted. From all indications, 243 was intended to serve two purposes: first, to make explicit what was implicit in the Fourteenth Amendment, that persons cannot be denied the right to serve on juries because of their race; and second, to prevent racial exclusions from juries by providing criminal penalties for persons violating the statutory command. See Ex parte ; Insofar as the statute is declarative of rights secured by the Equal Protection Clause, it provides no authority for reaching a result that the Constitution itself does not require. No case has ever held that 243 confers extra-constitutional rights on criminal defendants, and there is no support for the view that Congress intended to confer such rights when it enacted this legislation in 1875. The opinion concurring in the judgment suggests that an expansive reading of 243 is appropriate to "implement the strong statutory policy" against the exclusion *513 of persons from jury service on the basis of race. Under this interpretation, the statute is viewed not so much as safeguarding the rights of the white defendant, but as providing a prophylaxis against discriminatory action in all cases, regardless of any harm that might befall the accused. While Congress surely had the power to implement the policies of the Fourteenth Amendment in this manner, it chose instead to deter such violations of the Fourteenth Amendment by imposing criminal sanctions. It has been apparent, at least until recently, that such sanctions have not satisfactorily served to deter. But it is not for this Court to correct the inadequacies of a statutory enactment. Moreover, it does nothing to promote adherence to the policies of the Fourteenth Amendment to allow a criminal defendant who has made no objection at trial and who has no credible claim of personal prejudice to mount a post-conviction attack alleging that discriminatory jury selection has taken place in the past. |
Justice Breyer | 2,019 | 2 | majority | Taggart v. Lorenzen | https://www.courtlistener.com/opinion/4625564/taggart-v-lorenzen/ | At the conclusion of a bankruptcy proceeding, a bank- ruptcy court typically enters an order releasing the debtor from liability for most prebankruptcy debts This order, known as a discharge order, bars creditors from attempt- ing to collect any debt covered by the See 11 US C The question presented here concerns the criteria for determining when a court may hold a creditor in civil contempt for attempting to collect a debt that a discharge order has immunized from collection The Bankruptcy Court, in holding the creditors here in civil contempt, applied a standard that it described as akin to “strict liability” based on the standard’s expansive scope In re Taggart, It held that civil contempt sanctions are permis- sible, irrespective of the creditor’s beliefs, so long as the creditor was “ ‘aware of the discharge’ ” order and “ ‘in- tended the actions which violate[d]’ ” it ) The Court of Appeals for the Ninth Circuit, however, disagreed with 2 TAGGART v LORENZEN Opinion of the Court that standard Applying a subjective standard instead, it concluded that a court cannot hold a creditor in civil con- tempt if the creditor has a “good faith belief ” that the discharge order “does not apply to the creditor’s claim” In re Taggart, That is so, the Court of Appeals held, “even if the creditor’s belief is unreasonable” We conclude that neither a standard akin to strict liabil- ity nor a purely subjective standard is appropriate Rather, in our view, a court may hold a creditor in civil con- tempt for violating a discharge order if there is no fair ground of doubt as to whether the order barred the credi- tor’s conduct In other words, civil contempt may be ap- propriate if there is no objectively reasonable basis for concluding that the creditor’s conduct might be lawful I Bradley Taggart, the petitioner, formerly owned an interest in an Oregon company, Sherwood Park Business Center That company, along with two of its other owners, brought a lawsuit in Oregon state court, claiming that Taggart had breached the Business Center’s operating agreement (We use the name “Sherwood” to refer to the company, its two owners, and—in some instances—their former attorney, who is now represented by the executor of his estate The company, the two owners, and the execu- tor are the respondents in this case) Before trial, Taggart filed for bankruptcy under Chapter 7 of the Bankruptcy Code, which permits insolvent debtors to discharge their debts by liquidating assets to pay credi- tors See 11 US C 726 Ultimately, the Federal Bankruptcy Court |
Justice Breyer | 2,019 | 2 | majority | Taggart v. Lorenzen | https://www.courtlistener.com/opinion/4625564/taggart-v-lorenzen/ | See 11 US C 726 Ultimately, the Federal Bankruptcy Court wound up the proceeding and issued an order granting him a discharge Taggart’s discharge order, like many such orders, goes no further than the statute: It simply says that the debtor “shall be granted a discharge under App 60; see United Cite as: 587 U S (2019) 3 Opinion of the Court States Courts, Order of Discharge: Official Form 318 (Dec 2015), http:/ /wwwuscourtsgov / sites / default / files /form _ b318_0pdf (as last visited May 31, 2019) Section 727, the statute cited in the discharge order, states that a dis- charge relieves the debtor “from all debts that arose before the date of the order for relief,” “[e]xcept as provided in section 523” Section 523 then lists in detail the debts that are exempt from discharge The words of the discharge order, though simple, have an important effect: A discharge order “operates as an injunc- tion” that bars creditors from collecting any debt that has been discharged After the issuance of Taggart’s federal bankruptcy discharge order, the Oregon state court proceeded to enter judgment against Taggart in the prebankruptcy suit involving Sherwood Sherwood then filed a petition in state court seeking attorney’s fees that were incurred after Taggart filed his bankruptcy petition All parties agreed that, under the Ninth Circuit’s decision in In re Ybarra, a discharge order would normally cover and thereby discharge postpetition attorney’s fees stemming from prepetition litigation (such as the Oregon litigation) unless the discharged debtor “ ‘returned to the fray’ ” after filing for bankruptcy Sherwood argued that Taggart had “returned to the fray” postpeti- tion and therefore was liable for the postpetition attor- ney’s fees that Sherwood sought to collect The state trial court agreed and held Taggart liable for roughly $45,000 of Sherwood’s postpetition attorney’s fees At this point, Taggart returned to the Federal Bank- ruptcy Court He argued that he had not returned to the state-court “fray” under Ybarra, and that the discharge order therefore barred Sherwood from collecting postpeti- tion attorney’s fees Taggart added that the court should hold Sherwood in civil contempt because Sherwood had violated the discharge The Bankruptcy Court did 4 TAGGART v LORENZEN Opinion of the Court not agree It concluded that Taggart had returned to the fray Finding no violation of the discharge order, it re- fused to hold Sherwood in civil contempt Taggart appealed, and the Federal District Court held that Taggart had not returned to the fray Hence, it con- cluded that Sherwood violated the discharge order by trying to collect attorney’s |
Justice Breyer | 2,019 | 2 | majority | Taggart v. Lorenzen | https://www.courtlistener.com/opinion/4625564/taggart-v-lorenzen/ | Sherwood violated the discharge order by trying to collect attorney’s fees The District Court re- manded the case to the Bankruptcy Court The Bankruptcy Court, noting the District Court’s deci- sion, then held Sherwood in civil contempt In doing so, it applied a standard it likened to “strict liability” 522 BR, at The Bankruptcy Court held that civil con- tempt sanctions were appropriate because Sherwood had been “ ‘aware of the discharge’ ” order and “ ‘intended the actions which violate[d]’ ” it (quoting In re Hardy, 97 F3d, at ) The court awarded Taggart approximately $105,000 in attorney’s fees and costs, $5,000 in damages for emotional distress, and $2,000 in punitive damages Sherwood appealed The Bankruptcy Appellate Panel vacated these sanctions, and the Ninth Circuit affirmed the panel’s decision The Ninth Circuit applied a very different standard than the Bankruptcy Court It con- cluded that a “creditor’s good faith belief ” that the dis- charge order “does not apply to the creditor’s claim pre- cludes a finding of contempt, even if the creditor’s belief is unreasonable” 888 F3d, at Because Sherwood had a “good faith belief ” that the discharge order “did not apply” to Sherwood’s claims, the Court of Appeals held that civil contempt sanctions were improper Taggart filed a petition for certiorari, asking us to decide whether “a creditor’s good-faith belief that the discharge injunction does not apply precludes a finding of civil con- tempt” Pet for Cert I We granted certiorari II The question before us concerns the legal standard for Cite as: 587 U S (2019) 5 Opinion of the Court holding a creditor in civil contempt when the creditor attempts to collect a debt in violation of a bankruptcy discharge Two Bankruptcy Code provisions aid our efforts to find an answer The first, section 524, says that a discharge order “operates as an injunction against the commencement or continuation of an action, the employ- ment of process, or an act, to collect, recover or offset” a discharged debt 11 US C The second, section 105, authorizes a court to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title” In what circumstances do these provisions permit a court to hold a creditor in civil contempt for violating a discharge order? In our view, these provisions authorize a court to impose civil contempt sanctions when there is no objectively reasonable basis for concluding that the credi- tor’s conduct might be lawful under the discharge A Our conclusion rests on a longstanding interpretive principle: When a statutory |
Justice Breyer | 2,019 | 2 | majority | Taggart v. Lorenzen | https://www.courtlistener.com/opinion/4625564/taggart-v-lorenzen/ | conclusion rests on a longstanding interpretive principle: When a statutory term is “ ‘obviously trans- planted from another legal source,’ ” it “ ‘brings the old soil with it’ ” Hall v Hall, 584 U S (slip op, at 13) ); see (applying that principle to the Bankruptcy Code) Here, the statutes specifying that a discharge order “operates as an injunc- tion,” and that a court may issue any “order” or “judgment” that is “necessary or appropriate” to “carry out” other bankruptcy provisions, bring with them the “old soil” that has long governed how courts enforce injunctions That “old soil” includes the “potent weapon” of civil contempt Under traditional princi- 6 TAGGART v LORENZEN Opinion of the Court ples of equity practice, courts have long imposed civil contempt sanctions to “coerce the defendant into compli- ance” with an injunction or “compensate the complainant for losses” stemming from the defendant’s noncompliance with an injunction United States v Mine Workers, 330 US 258, 303–304 ; see D Dobbs & C Roberts, Law of Remedies p 132 ; J High, Law of Injunctions p 940 (2d ed 1880) The bankruptcy statutes, however, do not grant courts unlimited authority to hold creditors in civil contempt Instead, as part of the “old soil” they bring with them, the bankruptcy statutes incorporate the traditional standards in equity practice for determining when a party may be held in civil contempt for violating an injunction In cases outside the bankruptcy context, we have said that civil contempt “should not be resorted to where there is [a] fair ground of doubt as to the wrongfulness of the defendant’s conduct” California Artificial Stone Paving This standard reflects the fact that civil contempt is a “severe remedy,” ibid, and that principles of “basic fair- ness requir[e] that those enjoined receive explicit notice” of “what conduct is outlawed” before being held in civil con- tempt, 4 (per curiam) See at (noting that civil contempt usually is not appropriate unless “those who must obey” an order “will know what the court intends to require and what it means to forbid”); 11A C Wright, A Miller, & M Kane, Federal Practice and Procedure pp 430–431 (2013) (suggesting that civil contempt may be improper if a party’s attempt at compliance was “reasonable”) This standard is generally an objective one We have explained before that a party’s subjective belief that she was complying with an order ordinarily will not insulate her from civil contempt if that belief was objectively un- Cite as: 587 U S (2019) 7 Opinion of the Court reasonable As we said in |
Justice Breyer | 2,019 | 2 | majority | Taggart v. Lorenzen | https://www.courtlistener.com/opinion/4625564/taggart-v-lorenzen/ | 7 Opinion of the Court reasonable As we said in “[t]he absence of wilfulness does not relieve from civil contempt” We have not held, however, that subjective intent is always irrelevant Our cases suggest, for example, that civil contempt sanctions may be warranted when a party acts in bad faith See Chambers v NASCO, Inc, 501 US 32, 50 (1991) Thus, in McComb, we explained that a party’s “record of continuing and persistent violations” and “persistent contumacy” justified placing “the burden of any uncertainty in the decree on [the] shoulders” of the party who violated the court –193 On the flip side of the coin, a party’s good faith, even where it does not bar civil contempt, may help to deter- mine an appropriate sanction Cf (“[O]nly the least possible power adequate to the end proposed should be used in contempt cases” (quotation altered)) These traditional civil contempt principles apply straightforwardly to the bankruptcy discharge context The typical discharge order entered by a bankruptcy court is not detailed See at 2–3 Congress, however, has carefully delineated which debts are exempt from dis- charge See Under the fair ground of doubt standard, civil contempt therefore may be appropri- ate when the creditor violates a discharge order based on an objectively unreasonable understanding of the dis- charge order or the statutes that govern its scope B The Solicitor General, amicus here, agrees with the fair ground of doubt standard we adopt Brief for United States as Amicus Curiae 13–15 And the respondents stated at oral argument that it would be appropriate for courts to apply that standard in this context Tr of Oral 8 TAGGART v LORENZEN Opinion of the Court Arg 43 The Ninth Circuit and petitioner Taggart, how- ever, each believe that a different standard should apply As for the Ninth Circuit, the parties and the Solicitor General agree that it adopted the wrong standard So do we The Ninth Circuit concluded that a “creditor’s good faith belief ” that the discharge order “does not apply to the creditor’s claim precludes a finding of contempt, even if the creditor’s belief is unreasonable” 888 F3d, at But this standard is inconsistent with traditional civil contempt principles, under which parties cannot be insu- lated from a finding of civil contempt based on their sub- jective good faith It also relies too heavily on difficult-to- prove states of mind And it may too often lead creditors who stand on shaky legal ground to collect discharged debts, forcing debtors back into litigation (with its accom- panying costs) to protect the discharge that it was |
Justice Breyer | 2,019 | 2 | majority | Taggart v. Lorenzen | https://www.courtlistener.com/opinion/4625564/taggart-v-lorenzen/ | accom- panying costs) to protect the discharge that it was the very purpose of the bankruptcy proceeding to provide Taggart, meanwhile, argues for a standard like the one applied by the Bankruptcy Court This standard would permit a finding of civil contempt if the creditor was aware of the discharge order and intended the actions that vio- lated the Brief for Petitioner 19; cf 522 BR, at (applying a similar standard) Because most creditors are aware of discharge orders and intend the actions they take to collect a debt, this standard would operate much like a strict-liability standard It would authorize civil contempt sanctions for a violation of a discharge order regardless of the creditor’s subjective beliefs about the scope of the discharge order, and regardless of whether there was a reasonable basis for concluding that the credi- tor’s conduct did not violate the Taggart argues that such a standard would help the debtor obtain the “fresh start” that bankruptcy promises He adds that a standard resembling strict liability would be fair to credi- tors because creditors who are unsure whether a debt has been discharged can head to federal bankruptcy court and Cite as: 587 U S (2019) 9 Opinion of the Court obtain an advance determination on that question before trying to collect the debt See Fed Rule Bkrtcy Proc 4007(a) We doubt, however, that advance determinations would provide a workable solution to a creditor’s potential di- lemma A standard resembling strict liability may lead risk-averse creditors to seek an advance determination in bankruptcy court even where there is only slight doubt as to whether a debt has been discharged And because discharge orders are written in general terms and operate against a complex statutory backdrop, there will often be at least some doubt as to the scope of such orders Tag- gart’s proposal thus may lead to frequent use of the ad- vance determination procedure Congress, however, ex- pected that this procedure would be needed in only a small class of cases See 11 US C (noting only three categories of debts for which creditors must obtain ad- vance determinations) The widespread use of this proce- dure also would alter who decides whether a debt has been discharged, moving litigation out of state courts, which have concurrent jurisdiction over such questions, and into federal courts See 28 US C Advisory Com- mittee’s 2010 Note on subd (c)(1) of Fed Rule Civ Proc 8, 28 US C App, p 7 (noting that “whether a claim was excepted from discharge” is “in most instances” not deter- mined in bankruptcy |
Justice Breyer | 2,019 | 2 | majority | Taggart v. Lorenzen | https://www.courtlistener.com/opinion/4625564/taggart-v-lorenzen/ | discharge” is “in most instances” not deter- mined in bankruptcy court) Taggart’s proposal would thereby risk additional federal litigation, additional costs, and additional delays That result would interfere with “a chief purpose of the bank- ruptcy laws”: “ ‘to secure a prompt and effectual’ ” resolu- tion of bankruptcy cases “ ‘within a limited period’ ” ) These negative consequences, especially the costs associated with the added need to appear in federal proceedings, could work to the disadvantage of debtors as well as creditors 10 TAGGART v LORENZEN Opinion of the Court Taggart also notes that lower courts often have used a standard akin to strict liability to remedy violations of auto- matic stays See Brief for Petitioner 21 An automatic stay is entered at the outset of a bankruptcy proceeding The statutory provision that addresses the remedies for violations of automatic stays says that “an individual injured by any willful violation” of an automatic stay “shall recover actual damages, including costs and attor- neys’ fees, and, in appropriate circumstances, may recover punitive damages” 11 US C This language, however, differs from the more general language in section 105(a) The purposes of automatic stays and discharge orders also differ: A stay aims to prevent dam- aging disruptions to the administration of a bankruptcy case in the short run, whereas a discharge is entered at the end of the case and seeks to bind creditors over a much longer period These differences in language and purpose sufficiently undermine Taggart’s proposal to warrant its rejection ) We need not, and do not, decide whether the word “willful” supports a standard akin to strict liability) III We conclude that the Court of Appeals erred in applying a subjective standard for civil contempt Based on the traditional principles that govern civil contempt, the proper standard is an objective one A court may hold a creditor in civil contempt for violating a discharge order where there is not a “fair ground of doubt” as to whether the creditor’s conduct might be lawful under the discharge In our view, that standard strikes the “careful Cite as: 587 U S (2019) 11 Opinion of the Court balance between the interests of creditors and debtors” that the Bankruptcy Code often seeks to achieve Clark v Rameker, 3 US 122, Because the Court of Appeals did not apply the proper standard, we vacate the judgment below and remand the case for further proceedings consistent with this opinion It is so ordered |
Justice Brennan | 1,975 | 13 | dissenting | United Housing Foundation, Inc. v. Forman | https://www.courtlistener.com/opinion/109272/united-housing-foundation-inc-v-forman/ | I dissent. The property interests here are "securities," in my view, both because they are shares of "stock" and because they are "investment contracts." I Both the Securities Act of 1933, 15 U.S. C. 77b (1), and the Securities Exchange Act of 1934, 15 U.S. C. 78c (a) (10), define the term "security" as including, among other things, an "investment contract." The essential ingredients of an investment contract have been clear since held that "[t]he test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others." See There is no doubt that Co-op City residents invested money in a common enterprise; the only questions involve *861 whether the investment was to be productive of "profits to come solely from the efforts of others." The record discloses little of the activities of Riverbay Corporation, the owner and operator of Co-op City, as a lessor of commercial and office space. It does appear, however, that revenues well in excess of $1 million per year flow into the corporation from such activities, Appendix in Court of Appeals 361a (hereafter App.), a fact noted by the Court of Appeals. Even after deduction of expensestaxes alone take half of the grossthe residue could hardly be de minimis, even for an operation as large as Co-op City. Therein lies the patent fallacy of the Court's conclusion that this aspect of the corporation's activities is "speculative and insubstantial." Ante, at 856. The District Court rightly recognized that management by third parties is essential in a project so massive as Co-op City. Co-op City residents as stockholders were thus necessarily bound to rely on the management of Riverbay Corporation to produce income in the form of rents from the commercial and office space made an integral part of the project. As stockholders, Co-op City residents also necessarily relied on corporate management to build and operate the facility efficiently to the end that monthly charges would be minimized. The Court of Appeals held that profits were involved partly because Co-op City offered housing at bargain 500 F.2d, at The Court substitutes its own judgment in holding that "[t]he low rent derives from the substantial financial subsidies provided by the State of New York." Ante, at 855. It is simple common sense that management efficiency necessarily enters into the equation in the determination of the charges assessed against residents. But even to the extent that the resident-stockholders do benefit in reduced *862 charges from government subsidies, the benefit is not for this reason any the less a |
Justice Brennan | 1,975 | 13 | dissenting | United Housing Foundation, Inc. v. Forman | https://www.courtlistener.com/opinion/109272/united-housing-foundation-inc-v-forman/ | benefit is not for this reason any the less a profit to The welfare benefits to which the Court refers, ante, at 855, may also be profits, but those profits lack the essential ingredient of profits present here that "come solely from the efforts of others." Here the resident investors utilize the efforts of others to obtain government subsidies. Investors in Wall Street who do this every day will be surprised to learn that the benefits so obtained are not considered profits. The Court of Appeals also relied on the tax deductibility accorded to portions of the monthly carrying charges paid by Co-op City residents as a source of profit to 500 F.2d, at The Court rejects this argument with the statement that "[t]hese tax benefits are nothing more than that which is available to any homeowner" Ante, at 855. This is true but irrelevant to the question whether they constitute profits that "come solely from the efforts of others." The special federal tax provision for cooperative owners, 26 U.S. C. 216. was intended "to place the tenant stockholders of a cooperative apartment in the same position as the owner of a dwelling house so far as deductions for interest and taxes are concerned." S. Rep. No. 1631, 77th Cong., 2d Sess., 51 (1942). This tax benefit constitutes a profit both for the individual homeowners and for the "tenant stockholders of a cooperative apartment." The difference is that the profit of the individual homeowner does not "come solely from the efforts of others," whereas the profit from this source realized by a resident of Co-op City does. Setting up and operating a corporation so as to take advantage of special tax provisions is a project requiring specialized skills. If the arrangements go awry the residents can find themselves without the hoped-for tax advantages. *863 See, e. g., Thus, the investors must depend upon the "efforts of others," here Co-op City's management, properly to organize and operate the project to realize the tax advantage for In the investment was in oil leases. In Howey it involved citrus groves. Though taxation was not a factor in the Court's disposition of those cases, each of those investments was of a type offering tax advantages as a principal attraction to the investor. Cunnane, Tax Shelter Investments After the 1969 Tax Reform Act, It is no answer that the individual investor could have obtained the same tax advantages by purchasing an entire citrus business or by becoming an independent oil operator. He could, but if he did his profits from tax advantages would not then |
Justice Brennan | 1,975 | 13 | dissenting | United Housing Foundation, Inc. v. Forman | https://www.courtlistener.com/opinion/109272/united-housing-foundation-inc-v-forman/ | he did his profits from tax advantages would not then "come solely from the efforts of others." It is only when he relies on third parties to produce the profits for him that, as here, the question of investment contract analysis arises. Besides its express rejection of each of the forms of profit found by the Court of Appeals, the Court must surprise knowledgeable economists with its proposition, ante, at 852, that profits cannot assume forms other than appreciation of capital or participation in earnings.[1] All of the varieties of profit involved here accrue to the resident-stockholders in the form of money saved rather than money earned.[2] Not only would simple common sense teach that the two are the same, but a more sophisticated economic analysis also compels the conclusion that in a practical world there is no difference between *864 the two forms of income.[3] The investor finds no reason to distinguish, for example, between tax savings and after-tax income. Under a statute having as one of its "central purposes" "to protect investors," it is obvious that the Court errs in distinguishing among types of economic inducements which have no bearing on the motives of investors. Construction of the statute in terms of economic reality is more faithful to its "central" purpose "to protect investors." There can be no doubt that one of the inducements to the resident-stockholders to purchase a Co-op City apartment was the prospect of profits in one or more of the forms I have discussed. The fact that literature encouraging purchase mentioned some is important, although not conclusive, evidence. See The Information Bulletins, while not mentioning income from commercial and office space as an advantage of stock ownership, did emphasize the "reasonable price" of the housing, App. 166a, 187a, and they asserted that "every effort" would be made to keep monthly carrying charges low, at 174a, 194a. Tax benefits were also discussed as an advantage of ownership, though of course no guarantee of favorable federal and state tax treatment was made. at 175a, a. I do not deny that there are some limits to the broad statutory definition of a security, and the Court's distinction between securities and consumer goods is not frivolous. Ante, at 858. But the distinction is not useful in the resolution of the question before us. Of course, the purchase of the stock to get an apartment involves an element of consumption, but it also involves an element of investment. The variable annuity contract considered *865 in presented a not irrelevant analogous situation. What was purchased, after all, was expressly labeled |
Justice Brennan | 1,975 | 13 | dissenting | United Housing Foundation, Inc. v. Forman | https://www.courtlistener.com/opinion/109272/united-housing-foundation-inc-v-forman/ | analogous situation. What was purchased, after all, was expressly labeled "stock." In any event, what was purchased constituted an "investment contract," within Howey, for resident-stockholders of Co-op City invested "in a common enterprise with profits to come solely from the efforts of others." They therefore were purchasing securities within the purview of the Securities Act of 1933 and the Securities Exchange Act of 1934. II Moreover, both statutes define the term "security" to include "stock." Therefore, coverage under the statutes is clear under the Court's holding in that "[i]nstruments may be included within any of these definitions, as matter of law if on their face they answer to the name or description." ; see "Security" was broadly defined with the explicit object of including "the many types of instruments that in our commercial world fall within the ordinary concept of a security," H. R. Rep. No. 85, 73d Cong., 1st Sess., 11 (1933). Stock is therefore included because instruments "such as notes, bonds, and stocks, are pretty much standardized and the name alone carries well-settled meaning." Even if this principle nevertheless allows room for exception of some instruments labeled "stock," the Court's justification for excepting the stock involved in this case is singularly unpersuasive. The Court states that "[c]ommon sense suggests that people who intend to acquire only a residential apartment in a state-subsidized cooperative, for their personal use, are not likely to believe that in reality they are purchasing investment securities simply because the transaction is *866 evidenced by something called a share of stock." Ante, at 851. But even informed commentators have expressed misgivings about this question.[4] Thus the Court's justification departs unacceptably from the principle of that "[i]n the enforcement of an act such as this it is not inappropriate that promoters' offerings be judged as being what they were represented to be." 320 U.S., While the absence in the case of Co-op City stock of some features normally associated with stock is a relevant consideration, the presence of the attributes that led me to conclude that this stock constitutes an "investment contract," leads me also to conclude that it is a "stock" for purposes of the two statutes. Cf. Affiliated Ute In sum, I conclude that the interests purchased by the stockholders here were "securities" both because they were "stock" and because they were "investment contracts."[5] In my view therefore the Court of Appeals correctly held that the District Court erred in dismissing this suit.[6] *867 III At oral argument, petitioner United Housing Foundation contended strenuously that comprehensive state participation and regulation of the construction and |
Justice Brennan | 1,975 | 13 | dissenting | United Housing Foundation, Inc. v. Forman | https://www.courtlistener.com/opinion/109272/united-housing-foundation-inc-v-forman/ | that comprehensive state participation and regulation of the construction and operation of Co-op City constituted Riverbay Corporation not a capitalistic enterprise but a beneficial public housing enterprise, created by a partnership of public and private groups for the benefit of people of modest incomes. I need not disagree with this characterization to conclude that nevertheless there is a role for the federal *868 statutes to play in avoiding the danger of fraud and other evils in the raising of the massive sums the project involved. See ; H. R. Rep. No. 85, 73d Cong., 1st Sess., 2-3 (1933). No doubt New York's intensive regulation also helps avoid those evils. See N. Y. Priv. Hous. Fin. Law. But Congress contemplated concurrent state and federal regulation in enacting the securities laws. and therefore the existence of state regulation does not and cannot be a reason for excluding appropriate application of the federal statutes. Indeed, the resident-stockholder investors of Co-op City are particularly entitled to the federal protection. The District Court properly observed: "[I]f ever there was a group of people who need and deserve full and careful disclosure in connection with proposals for the use of their funds, it is this type of group. The housing selection decision is a critical one in their lives. The cost of housing demands a good percentage of their incomes. Their savings are most likely to be minimal, and they probably don't have lawyers or accountants to guide Further, they are people likely to put a great deal of credence in statements made with respect to an offering by reputable civic groups and labor unions, particularly when the proposal is stamped with the imprimatur of the state." I part from the District Court in concluding however that investors not only should be protected but, under my reading of the statutes, are protected by the securities laws. A different, perhaps better, form of redress can and will be devised for this kind of investment, but until it is these investors are not to be denied what the *869 federal statutes plainly allow See Note, Cooperative Housing Corporations and the Federal Securities Laws, 71 Colo. L. Rev. 118 The SEC, though perhaps tardily, has come to the view that these housing corporations fall within its regulatory authority because the kind of investment involved is a "security" under the statutes. I wholly agree. I would affirm the judgment of the Court of Appeals. |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | I join THE CHIEF JUSTICE’s opinion in full. I write sepa- rately to call attention to this Court’s threat to American democracy. The substance of today’s decree is not of immense per- sonal importance to me. The law can recognize as mar- riage whatever sexual attachments and living arrange- ments it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. 2 OBERGEFELL v. HODGES SCALIA, J., dissenting Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about mar- riage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Consti- tution and its Amendments neglect to mention. This practice of constitutional revision by an unelected commit- tee of nine, always accompanied (as it is today) by extrav- agant praise of liberty, robs the People of the most im- portant liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. I Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citi- zens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representa- tives, chose to expand the traditional definition of mar- riage. Many more decided not to.1 Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of govern- —————— 1 Brief for Respondents in No. 14–571, p. 14. Cite as: 576 U. S. (2015) 3 SCALIA, J., dissenting ment is supposed to work.2 The Constitution places some constraints on self-rule— constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,”3 denying “Full Faith and Credit” to the “public Acts” of other States,4 prohibiting the free exercise of religion,5 abridging |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | of other States,4 prohibiting the free exercise of religion,5 abridging the freedom of speech,6 infringing the right to keep and bear arms,7 authorizing unreasonable searches and sei- zures,8 and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people” can be exercised as the States or the People de- sire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process? Of course not. It would be surprising to find a prescrip- tion regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today): “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”10 —————— 2 Accord, Schuette v. BAMN, 572 U. S. – (2014) (plurality opinion) (slip op., at 15–17). 3 U. S. Const., Art. I, 4 Art. IV, 5 Amdt. 1. 6 7 Amdt. 2. 8 Amdt. 4. Amdt. 10. 10 United States v. Windsor, 570 U. S. (2013) (slip op., at 16) (internal quotation marks and citation omitted). 4 OBERGEFELL v. HODGES SCALIA, J., dissenting “[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”11 But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not under- stand it to prohibit a practice that remained both univer- sal and uncontroversial in the years after ratification.12 We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt what- ever that the People never decided to prohibit the limita- tion of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue. But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.13 That is so because “[t]he generations that wrote and rati- fied the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its —————— 11 at (slip op., at 17). 12 See Town of Greece v. Galloway, 572 U. S. – (2014) (slip op., –8). 13 Ante, at 10. Cite as: 576 U. S. (2015) 5 SCALIA, J., dissenting dimensions ”14 One would think that sentence would continue: “. and therefore they provided for a means by which the People could amend the Constitution,” or per- haps “. and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its mean- ing.”15 The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.17 This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judg- ment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy. Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular con- stituency is not (or should not be) relevant. Not surpris- ingly then, the Federal Judiciary is hardly a cross-section —————— 14 Ante, at 11. 15 16 Ante, at 10–11. 17 Ante, at 12–18. 6 OBERGEFELL v. HODGES SCALIA, J., dissenting of America. Take, for example, this Court, which consists of only nine men and women, all of them successful law- yers18 who studied at Harvard |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | all of them successful law- yers18 who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South- westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans1), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation. II But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that —————— 18 The predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by the fact that the American Bar Association deemed it in accord with the wishes of its members to file a brief in support of the petitioners. See Brief for American Bar Association as Amicus Curiae in Nos. 14–571 and 14– 574, pp. 1–5. 1 See Pew Research Center, America’s Changing Religious Land- scape 4 (May 12, 2015). Cite as: 576 U. S. (2015) 7 SCALIA, J., dissenting every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.20 They have discovered in the Fourteenth Amend- ment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution. The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate con- curring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.22 Of course the opinion’s showy profundities are often —————— 20 78 N.E. 2d 41 (2003). 21 Windsor, 570 U. S., at (ALITO, J., dissenting) (slip op., ). 22 If, even as the price to be paid for a fifth vote, I ever joined an opin- ion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that 8 OBERGEFELL v. HODGES SCALIA, J., dissenting profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spiritu- ality.”23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (Huh? How can a better informed under- standing of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the es- sence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may con- verge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those free- |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | comprehensive way”? It stands for nothing whatever, except those free- doms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court —————— allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie. 23 Ante, at 13. 24 Ante, at 1. 25 Cite as: 576 U. S. (2015) SCALIA, J., dissenting really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop- philosophy; it demands them in the law. The stuff con- tained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis. * * * Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”26 With each decision of ours that takes from the People a question properly left to them—with each decision that is unabash- edly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence. —————— 26 The Federalist No. 78, pp. 522, 523 (J. Cooke ed. 161) (A. Hamil- ton). Cite as: 576 U. S. (2015) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES Nos. 14–556, 14-562, 14-571 and 14–574 JAMES OBERGEFELL, ET AL., PETITIONERS 14–556 v. RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL.; VALERIA TANCO, ET AL., PETITIONERS 14–562 v. BILL HASLAM, GOVERNOR OF TENNESSEE, ET AL.; APRIL DEBOER, ET AL., PETITIONERS 14–571 v. RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.; AND GREGORY BOURKE, ET AL., PETITIONERS 14–574 v. STEVE BESHEAR, GOVERNOR OF KENTUCKY ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [June 26, 2015] JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting. The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not enti- tlement to government benefits. The Framers created our 2 OBERGEFELL v. HODGES THOMAS, J., dissenting Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distor- tion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it. I The majority’s decision today will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely based on a constitutional provision guaranteeing “due process” before a person is deprived of his “life, liberty, or prop- erty.” I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. 811–812 (2010) (THOMAS, J., concurring in part and concurring in judgment). It distorts the constitutional text, which guar- antees only whatever “process” is “due” before a person is deprived of life, liberty, and property. U. S. Const., Amdt. 14, Worse, it invites judges to do exactly what the majority has done here—“ ‘roa[m] at large in the constitu- tional field’ guided only by their personal views” as to the “ ‘fundamental rights’ ” protected by that document. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 53, 65 (12) (Rehnquist, C. J., concurring in judgment in part and dissenting in part) (Harlan, J., concurring in judgment)). By straying from the text of the Constitution, substan- tive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue Cite as: 576 U. S. (2015) 3 THOMAS, J., dissenting that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amend- ments, the States have put the issue “beyond the reach of the normal democratic process.” Brief for Petitioners in No. 14–562, p. 54. But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Con- stitution and thus put it beyond the reach of the normal democratic process for the entire Nation. That a “bare majority” of this Court, |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | the entire Nation. That a “bare majority” of this Court, ante, at 25, is able to grant this wish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provi- sion that guarantees only “due process” is but further evidence of the danger of substantive due process.1 II Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all—whether under a theory of “substantive” or “procedural” due process—a party must first identify a deprivation of “life, liberty, or property.” The majority claims these state laws deprive petitioners of “liberty,” but the concept of “liberty” it conjures up bears no resem- blance to any plausible meaning of that word as it is used in the Due Process Clauses. —————— 1 The majority states that the right it believes is “part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.” Ante, at 1. Despite the “synergy” it finds “between th[ese] two protections,” ante, at 20, the majority clearly uses equal protection only to shore up its substantive due process analysis, an analysis both based on an imaginary constitutional protection and revisionist view of our history and tradition. 4 OBERGEFELL v. HODGES THOMAS, J., dissenting A 1 As used in the Due Process Clauses, “liberty” most likely refers to “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” 1 W. Blackstone, Commen- taries on the Laws of England 130 (176) (Blackstone). That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure. Both of the Constitution’s Due Process Clauses reach back to Magna Carta. See Davidson v. New Orleans, 6 U.S. 7, 101–102 (1878). Chapter 3 of the original Magna Carta provided, “No free man shall be taken, im- prisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.” Magna Carta, ch. 3, in A. Howard, Magna Carta: Text and Commentary 43 (164). Although the 1215 version of Magna Carta was in effect for only a few weeks, this provision was later reissued in 1225 with modest changes to its wording as follows: “No freeman shall be taken, or |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | its wording as follows: “No freeman shall be taken, or imprisoned, or be disseised of his free- hold, or liberties, or free customs, or be outlawed, or ex- iled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers or by the law of the land.” 1 E. Coke, The Second Part of the Institutes of the Laws of England 45 (177). In his influential commentary on the provision many years later, Sir Edward Coke interpreted the words “by the law of the land” to mean the same thing as “by due proces of the common law.” After Magna Carta became subject to renewed interest in the 17th century, see, e.g., ib William Blackstone referred to this provision as protecting the “absolute rights Cite as: 576 U. S. (2015) 5 THOMAS, J., dissenting of every Englishman.” 1 Blackstone 123. And he formu- lated those absolute rights as “the right of personal secu- rity,” which included the right to life; “the right of personal liberty”; and “the right of private property.” He defined “the right of personal liberty” as “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” 130.2 The Framers drew heavily upon Blackstone’s formula- tion, adopting provisions in early State Constitutions that replicated Magna Carta’s language, but were modified to refer specifically to “life, liberty, or property.”3 State —————— 2 The seeds of this articulation can also be found in Henry Care’s influential treatise, English Liberties. First published in America in 1721, it described the “three things, which the Law of England principally regards and taketh Care of,” as “Life, Liberty and Estate,” and described habeas corpus as the means by which one could procure one’s “Liberty” from imprisonment. The Habeas Corpus Act, comment., in English Liberties, or the Free-born Subject’s Inheritance 185 (H. Care comp. 5th ed. 1721). Though he used the word “Liberties” by itself more broadly, see, e.g., he used “Liberty” in a narrow sense when placed alongside the words “Life” or “Estate,” see, e.g., 3 Maryland, North Carolina, and South Carolina adopted the phrase “life, liberty, or property” in provisions otherwise tracking Magna Carta: “That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land.” Md. Const., |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | peers, or by the law of the land.” Md. Const., Declaration of Rights, Art. XXI (1776), in 3 Federal and State Constitu- tions, Colonial Charters, and Other Organic Laws 1688 (F. Thorpe ed. 10); see also S. C. Const., Art. XLI (1778), in 6 ; N. C. Const., Declaration of Rights, Art. XII (1776), in 5 Massa- chusetts and New Hampshire did the same, albeit with some altera- tions to Magna Carta’s framework: “[N]o subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.” Mass. Const., pt. I, Art. XII (1780), in 3 ; see also 6 OBERGEFELL v. HODGES THOMAS, J., dissenting decisions interpreting these provisions between the found- ing and the ratification of the Fourteenth Amendment almost uniformly construed the word “liberty” to refer only to freedom from physical restraint. See Warren, The New “Liberty” Under the Fourteenth Amendment, 3 Harv. L. Rev. 431, 441–445 (126). Even one case that has been identified as a possible exception to that view merely used broad language about liberty in the context of a habeas corpus proceeding—a proceeding classically associated with obtaining freedom from physical restraint. Cf. at 444–445. In enacting the Fifth Amendment’s Due Process Clause, the Framers similarly chose to employ the “life, liberty, or property” formulation, though they otherwise deviated substantially from the States’ use of Magna Carta’s lan- guage in the Clause. See Shattuck, The True Meaning of the Term “Liberty” in Those Clauses in the Federal and State Constitutions Which Protect “Life, Liberty, and Property,” When read in light of the history of that formulation, it is hard to see how the “liberty” protected by the Clause could be inter- preted to include anything broader than freedom from physical restraint. That was the consistent usage of the time when “liberty” was paired with “life” and “property.” See And that usage avoids rendering superflu- ous those protections for “life” and “property.” If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well. See 534–535 (1884). Indeed, this Court has previously commented, “The conclusion is irresistible, that when the same phrase was employed in the Fourteenth Amendment [as was used in the Fifth Amendment], it was used in the same sense and with no greater extent.” And this —————— N. H. Const., pt. I, Art. XV (1784), in 4 Cite as: 576 U. S. (2015) 7 THOMAS, |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | in 4 Cite as: 576 U. S. (2015) 7 THOMAS, J., dissenting Court’s earliest Fourteenth Amendment decisions appear to interpret the Clause as using “liberty” to mean freedom from physical restraint. In (1877), for example, the Court recognized the relationship between the two Due Process Clauses and Magna Carta, see at 123–124, and implicitly rejected the dissent’s argument that “ ‘liberty’ ” encompassed “something more than mere freedom from physical restraint or the bounds of a prison,” That the Court appears to have lost its way in more recent years does not justify deviating from the original meaning of the Clauses. 2 Even assuming that the “liberty” in those Clauses en- compasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular gov- ernmental entitlement. The founding-era understanding of liberty was heavily influenced by John Locke, whose writings “on natural rights and on the social and governmental contract” were cited “[i]n pamphlet after pamphlet” by American writers. B. Bailyn, The Ideological Origins of the American Revolu- tion 27 (167). Locke described men as existing in a state of nature, possessed of the “perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.” J. Locke, Second Treatise of Civil Govern- ment, p. 4 (J. Gough ed. 147) (Locke). Because that state of nature left men insecure in their persons and property, they entered civil society, trading a portion of their natural liberty for an increase in their security. See 8 OBERGEFELL v. HODGES THOMAS, J., dissenting at 4. Upon consenting to that order, men ob- tained civil liberty, or the freedom “to be under no other legislative power but that established by consent in the commonwealth; nor under the dominion of any will or restraint of any law, but what that legislative shall enact according to the trust put in it.” at 13.4 This philosophy permeated the 18th-century political scene in America. A 1756 editorial in the Boston Gazette, for example, declared that “Liberty in the State of Nature” was the “inherent natural Right” “of each Man” “to make a free Use of his Reason and Understanding, and to chuse that Action which he thinks he can give the best Account of,” but that, “in Society, every Man parts with a Small |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | but that, “in Society, every Man parts with a Small Share of his natural Liberty, or lodges it in the publick Stock, that he may possess the Remainder without Con- troul.” Boston Gazette and Country Journal, No. 58, May 10, 1756, p. 1. Similar sentiments were expressed in public speeches, sermons, and letters of the time. See 1 C. —————— 4 Locke’s theories heavily influenced other prominent writers of the 17th and 18th centuries. Blackstone, for one, agreed that “natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature” and described civil liberty as that “which leaves the subject entire master of his own conduct,” except as “restrained by human laws.” 1 Blackstone 121–122. And in a “treatise routinely cited by the Founders,” Zivotofsky v. Kerry, ante, at 5 (THOMAS, J., concurring in judgment in part and dissenting in part), Thomas Rutherforth wrote, “By liberty we mean the power, which a man has to act as he thinks fit, where no law restrains him; it may therefore be called a mans right over his own actions.” 1 T. Ruth- erforth, Institutes of Natural Law 146 (1754). Rutherforth explained that “[t]he only restraint, which a mans right over his own actions is originally under, is the obligation of governing himself by the law of nature, and the law of God,” and that “[w]hatever right those of our own species may have to restrain [those actions] within certain bounds, beyond what the law of nature has prescribed, arises from some after-act of our own, from some consent either express or tacit, by which we have alienated our liberty, or transferred the right of direct- ing our actions from ourselves to them.” at 147–148. Cite as: 576 U. S. (2015) THOMAS, J., dissenting & D. Lutz, American Political Writing During the Founding Era 1760–1805, pp. 100, 308, 385 (183). The founding-era idea of civil liberty as natural liberty constrained by human law necessarily involved only those freedoms that existed outside of government. See Ham- burger, Natural Rights, Natural Law, and American Constitutions, 102 Yale L. J. 07, 18–1 (13). As one later commentator observed, “[L]iberty in the eighteenth century was thought of much more in relation to ‘negative liberty’; that is, freedom from, not freedom to, freedom from a number of social and political evils, including arbi- trary government power.” J. Reid, The Concept of Liberty in the Age of the American Revolution 56 (188). Or as one scholar put it in 1776, “[T]he common idea of liberty is |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | put it in 1776, “[T]he common idea of liberty is merely negative, and is only the absence of restraint.” R. Hey, Observations on the Nature of Civil Liberty and the Principles of Government p. 8 (1776) (Hey). When the colonists described laws that would infringe their liberties, they discussed laws that would prohibit individuals “from walking in the streets and highways on certain saints days, or from being abroad after a certain time in the evening, or restrain [them] from working up and man- ufacturing materials of [their] own growth.” Downer, A Discourse at the Dedication of the Tree of Liberty, in 1 Each of those examples involved freedoms that existed outside of government. B Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it. Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace. They 10 OBERGEFELL v. HODGES THOMAS, J., dissenting have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically re- strained, petitioners have been left alone to order their lives as they see fit. Nor, under the broader definition, can they claim that the States have restricted their ability to go about their daily lives as they would be able to absent governmental restrictions. Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petition- ers from approximating a number of incidents of marriage through private legal means, such as wills, trusts, and powers of attorney. Instead, the States have refused to grant them govern- mental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certif- icates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consor- tium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any un- derstanding of “liberty” that the Framers would have recognized. To the extent that the Framers would have recognized a natural right to marriage that fell within the broader Cite as: 576 U. S. (2015) 11 THOMAS, J., dissenting definition of liberty, it would not have included a right to governmental recognition and benefits. Instead, it would have included a right to engage in the very same activities that petitioners have been left free to engage in—making vows, holding religious ceremonies celebrating those vows, raising children, and otherwise enjoying the society of one’s spouse—without governmental interference. At the founding, such conduct was understood to predate gov- ernment, not to flow from it. As Locke had explained many years earlier, “The first society was between man and wife, which gave beginning to that between parents and children.” Locke ; see also J. Wilson, Lec- tures on Law, in 2 Collected Works of James Wilson 1068 (K. Hall and M. Hall eds. 2007) (concluding “that to the institution of marriage the true origin of society must be traced”). Petitioners misunderstand the institution of marriage when they say that it would “mean little” absent governmental recognition. Brief for Petitioners in No. 14– 556, p. 33. Petitioners’ misconception of liberty carries over into their discussion of our precedents identifying a right to marry, not one of which has expanded the concept of “lib- erty” beyond the concept of negative liberty. Those prece- dents all involved absolute prohibitions on private actions associated with marriage. (167), for example, involved a couple who was criminally prosecuted for marrying in the District of Columbia and cohabiting in Virginia, at 2–3.5 They were each sen- —————— 5 The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate. “America’s earliest laws against interracial sex and marriage were spawned by slavery.” P. What Comes Naturally: Miscegenation Law and the Making of Race in America 1 (200). For instance, Maryland’s 1664 law prohibit- ing marriages between “ ‘freeborne English women’ ” and “ ‘Negro Sla[v]es’ ” was passed as part of the very act that authorized lifelong 12 OBERGEFELL v. HODGES THOMAS, J., dissenting tenced to a year of imprisonment, suspended for a term of 25 years on the |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | imprisonment, suspended for a term of 25 years on the condition that they not reenter the Com- monwealth together during that time.6 In a similar vein, involved a man who was prohibited, on pain of criminal penalty, from “marry[ing] in Wisconsin or elsewhere” because of his outstanding child-support obligations, 87; see 77–378. And Turner v. Safley, 482 U.S. 78 (187), involved state inmates who were prohib- ited from entering marriages without the permission of the superintendent of the prison, permission that could not be granted absent compelling reasons, In none of those cases were individuals denied solely governmental —————— slavery in the colony. at 1–20. Virginia’s antimiscegenation laws likewise were passed in a 161 resolution entitled “An act for suppress- ing outlying Slaves.” Act of Apr. 161, Ch. XVI, 3 Va. Stat. 86 (W. Hening ed. 1823) (reprint 16) (italics deleted). “It was not until the Civil War threw the future of slavery into doubt that lawyers, legisla- tors, and judges began to develop the elaborate justifications that signified the emergence of miscegenation law and made restrictions on interracial marriage the foundation of post-Civil War white suprem- acy.” at 27–28. Laws defining marriage as between one man and one woman do not share this sordid history. The traditional definition of marriage has prevailed in every society that has recognized marriage throughout history. Brief for Scholars of History and Related Disciplines as Amici Curiae 1. It arose not out of a desire to shore up an invidious institu- tion like slavery, but out of a desire “to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.” And it has existed in civilizations containing all manner of views on homosexuality. See Brief for Ryan T. Anderson as Amicus Curiae 11–12 (explaining that several famous ancient Greeks wrote approvingly of the traditional definition of marriage, though same-sex sexual relations were common in Greece at the time). 6 The prohibition extended so far as to forbid even religious ceremo- nies, thus raising a serious question under the First Amendment’s Free Exercise Clause, as at least one amicus brief at the time pointed out. Brief for John J. Russell et al. as Amici Curiae in O.T. 166, No. 35, pp. 12–16. Cite as: 576 U. S. (2015) 13 THOMAS, J., dissenting recognition and benefits associated with marriage. In a concession to petitioners’ misconception of liberty, the majority characterizes petitioners’ suit as a quest to “find liberty by marrying someone of the same sex and having |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the oppo- site sex.” Ante, at 2. But “liberty” is not lost, nor can it be found in the way petitioners seek. As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment. The majority’s “better informed under- standing of how constitutional imperatives define liberty,” ante, at 1,—better informed, we must assume, than that of the people who ratified the Fourteenth Amendment—runs headlong into the reality that our Constitution is a “collection of ‘Thou shalt nots,’ ” Reid v. Covert, not “Thou shalt provides.” III The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty. A The majority apparently disregards the political process as a protection for liberty. Although men, in forming a civil society, “give up all the power necessary to the ends for which they unite into society, to the majority of the community,” Locke §, at 4, they reserve the authority to exercise natural liberty within the bounds of laws estab- lished by that society, at 13; see also Hey 54, 0–32. To protect that liberty from arbitrary inter- ference, they establish a process by which that society can 14 OBERGEFELL v. HODGES THOMAS, J., dissenting adopt and enforce its laws. In our country, that process is primarily representative government at the state level, with the Federal Constitution serving as a backstop for that process. As a general matter, when the States act through their representative governments or by popular vote, the liberty of their residents is fully vindicated. This is no less true when some residents disagree with the result; indeed, it seems difficult to imagine any law on which all residents of a State would agree. See Locke §8, at 4 (suggesting that society would cease to function if it required unanimous consent to laws). What matters is that the process established by those who created the society has been honored. That process has been honored here. The definition of marriage has been the subject of heated debate in the States. Legislatures have repeatedly taken up the matter on behalf of the People, and 35 States have put the ques- tion to the People themselves. In 32 of those 35 States, the People have opted to retain the traditional definition |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | States, the People have opted to retain the traditional definition of marriage. Brief for Respondents in No. 14–571, pp. 1a– 7a. That petitioners disagree with the result of that pro- cess does not make it any less legitimate. Their civil liberty has been vindicated. B Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect. The history of religious liberty in our country is familiar: Many of the earliest immigrants to America came seeking freedom to practice their religion without restraint. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 140, 1422– 1425 (10). When they arrived, they created their own havens for religious practice. Many of these havens were initially homogenous communities with established Cite as: 576 U. S. (2015) 15 THOMAS, J., dissenting religions. By the 1780’s, however, “America was in the wake of a great religious revival” marked by a move toward free exercise of religion. Every State save Connecticut adopted protections for religious freedom in their State Constitutions by 178, and, of course, the First Amendment enshrined protection for the free exercise of religion in the U. S. Constitution. But that protection was far from the last word on religious liberty in this country, as the Federal Government and the States have reaffirmed their commitment to religious liberty by codifying protections for religious practice. See, e.g., Reli- gious Freedom Restoration Act of 13, 42 U.S. C. et seq.; –571b (2015). Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution; it is a religious institution as well. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples. The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons as they seek to teach the principles that are so ful- filling and so central to their lives and faiths.” Religious liberty is about freedom of action in |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | and faiths.” Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious 16 OBERGEFELL v. HODGES THOMAS, J., dissenting practice.7 Although our Constitution provides some protection against such governmental restrictions on religious prac- tices, the People have long elected to afford broader pro- tections than this Court’s constitutional precedents man- date. Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional defi- nition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with poten- tially ruinous consequences for religious liberty. IV Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will ad- vance the “dignity” of same-sex couples. Ante, 13, 26, 28.8 The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity. Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Decla- ration of Independence that “all men are created equal” —————— 7 Concerns about threats to religious liberty in this context are not unfounded. During the hey-day of antimiscegenation laws in this country, for instance, Virginia imposed criminal penalties on ministers who performed marriage in violation of those laws, though their reli- gions would have permitted them to perform such ceremonies. Va. Code Ann. (160). 8 The majority also suggests that marriage confers “nobility” on indi- viduals. Ante, I am unsure what that means. People may choose to marry or not to marry. The decision to do so does not make one person more “noble” than another. And the suggestion that Americans who choose not to marry are inferior to those who decide to enter such relationships is specious. Cite as: 576 U. S. (2015) 17 THOMAS, J., dissenting and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built. The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away. The majority’s musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans. Its mischaracteriza- tion of the arguments presented by the States and their amici can have no effect on the dignity of those litigants. Its rejection of laws preserving the traditional definition of marriage can have no effect on the dignity of the people who voted for them. Its invalidation of those laws can have no effect on the dignity of the people who continue to adhere to the traditional definition of marriage. And its disdain for the understandings of liberty and dignity upon which this Nation was founded can have no effect on the dignity of Americans who continue to believe in them. * * * Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State. Today’s decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible 18 OBERGEFELL v. HODGES THOMAS, J., dissenting understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society. I respectfully dissent. Cite as: 576 U. S. (2015) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES Nos. 14–556, 14-562, 14-571 and 14–574 JAMES OBERGEFELL, ET AL., PETITIONERS 14–556 v. RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL.; VALERIA TANCO, ET AL., PETITIONERS 14–562 v. BILL HASLAM, GOVERNOR OF TENNESSEE, ET AL.; APRIL DEBOER, ET AL., PETITIONERS 14–571 v. RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.; AND GREGORY BOURKE, ET AL., PETITIONERS 14–574 v. STEVE BESHEAR, GOVERNOR OF KENTUCKY ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [June 26, 2015] JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting. Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage.1 The question in —————— 1I use the phrase “recognize marriage” as shorthand for issuing mar- 2 OBERGEFELL v. HODGES |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | marriage” as shorthand for issuing mar- 2 OBERGEFELL v. HODGES ALITO, J., dissenting these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State. I The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right. Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For clas- sical liberals, it may include economic rights now limited by government regulation. For social democrats, it may include the right to a variety of government benefits. For today’s majority, it has a distinctively postmodern meaning. To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “ ‘deeply rooted in this Nation’s history and tradi- tion.’ ” 720–721 (17). And it is beyond dispute that the right to same-sex marriage is not among those rights. See United States v. Windsor, 570 U. S. (2013) (ALITO, J., dissenting) (slip op., ). Indeed: “In this country, no State permitted same-sex mar- riage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See 440 Mass. —————— riage licenses and conferring those special benefits and obligations provided under state law for married persons. Cite as: 576 U. S. (2015) 3 ALITO, J., dissenting 30, 78 N.E.2d 41. Nor is the right to same-sex marriage deeply rooted in the traditions of other na- tions. No country allowed same-sex couples to marry until the Netherlands did so in 2000. “What [those arguing in favor of a constitutional right to same sex marriage] seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility.” at (slip op., –8) (footnote omitted). For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional pro- tection upon that right simply because they |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | confer constitutional pro- tection upon that right simply because they believe that it is fundamental. II Attempting to circumvent the problem presented by the newness of the right found in these cases, the majority claims that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental pur- pose of marriage is to promote the well-being of those who choose to marry. Marriage provides emotional fulfillment and the promise of support in times of need. And by bene- fiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, ful- filling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States 4 OBERGEFELL v. HODGES ALITO, J., dissenting encourage and formalize marriage, confer special benefits on married persons, and also impose some special obliga- tions. This understanding of the States’ reasons for recog- nizing marriage enables the majority to argue that same- sex marriage serves the States’ objectives in the same way as opposite-sex marriage. This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate. Adherents to different schools of philosophy use differ- ent terms to explain why society should formalize mar- riage and attach special benefits and obligations to per- sons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabu- lary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples. If this traditional understanding of the purpose of mar- riage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women.2 This de- —————— 2 See, e.g., |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | born to unmarried women.2 This de- —————— 2 See, e.g., Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics, D. Martin, B. Hamilton, M. Osterman, S. Curtin, & T. Matthews, Births: Final Data for 2013, 64 National Vital Statistics Reports, No. 1, p. 2 (Jan. 15, 2015), online at http://www.cdc.gov/nchs/data/nvsr/nvsr64/ Cite as: 576 U. S. (2015) 5 ALITO, J., dissenting velopment undoubtedly is both a cause and a result of changes in our society’s understanding of marriage. While, for many, the attributes of marriage in 21st- century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay. It is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe. As I wrote in Windsor: “The family is an ancient and universal human in- stitution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage—for example, the gradual ascendance of the idea that romantic love is a prereq- uisite to marriage—have had far-reaching conse- quences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time. “We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some —————— nvsr64_01.pdf (all Internet materials as visited June 24, 2015, and available in Clerk of Court’s case file); cf. Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics (NCHS), S. Ventura, Changing Patterns of Non- martial Childbearing in the United States, NCHS Data Brief, No. 18 (May 200), online at http://www.cdc.gov/ nchs/ data/databrief/db18.pdf. 6 OBERGEFELL v. HODGES ALITO, J., dissenting time to come. There are those who think that allow- ing same-sex marriage will seriously undermine the institution of marriage. Others think that recogni- tion of same-sex marriage will fortify a now-shaky institution. “At present, no one—including social scientists, phi- losophers, and historians—can predict with any cer- tainty |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | scientists, phi- losophers, and historians—can predict with any cer- tainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assess- ment. The Members of this Court have the authority and the responsibility to interpret and apply the Con- stitution. Thus, if the Constitution contained a provi- sion guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the is- sue of same-sex marriage. In our system of govern- ment, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.” 570 U. S., at (dissenting opinion) (slip op., –10) (citations and footnotes omitted). III Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences. It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent. Cite as: 576 U. S. (2015) 7 ALITO, J., dissenting Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reas- sure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools. The system of federalism established by our Constitu- tion provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex mar- riage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facili- tates the |
Justice Scalia | 2,015 | 9 | second_dissenting | Obergefell v. Hodges | https://www.courtlistener.com/opinion/2812209/obergefell-v-hodges/ | views on the entire country, the majority facili- tates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turn- about is fair play. But if that sentiment prevails, the Na- tion will experience bitter and lasting wounds. Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and im- pose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic sup- porters of same-sex marriage should worry about the scope of the power that today’s majority claims. Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that 8 OBERGEFELL v. HODGES ALITO, J., dissenting preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation. Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the ma- jority’s claim of power portends. |
Justice Rehnquist | 1,974 | 19 | majority | American Radio Assn. v. Mobile SS Assn., Inc. | https://www.courtlistener.com/opinion/109119/american-radio-assn-v-mobile-ss-assn-inc/ | Petitioners are the six maritime unions which appeared before this Court as respondents in Windward We granted their petition for certiorari to the Supreme Court of Alabama, in order to review their contentions that this case was distinguishable from Windward on the pre-emption issue, and that the temporary injunction upheld by that court had infringed rights guaranteed to them under the First and Fourteenth Amendments to the United States Constitution.[1] As in Windward, this case arises from picketing designed to publicize the adverse impact on American seamen of the operations of foreign-flag carriers which employ foreign crewmen at wages substantially below those paid to American seamen. As in Windward, the picketing occurred during 1971, but in this case it took place in Mobile, Ala., and was directed against the Aqua Glory, a ship of Liberian registry. The pickets displayed the same signs and distributed the same literature as they did in Windward,[2] and they were subject to the same instructions. *218 The picketing in each case also had similar results. In Windward, we observed: "The picketing, although neither obstructive nor violent, was not without effect. Longshoremen and other port workers refused to cross the picket lines to load and unload petitioners' vessels." Here, the Supreme Court of Alabama, in affirming a temporary injunction issued by the Alabama Circuit Court, said of petitioners' activities in Mobile: "Posting the pickets, as was done on the dock adjacent to the Aqua Glory, brought about an immediate refusal by the stevedore workers of the *219 locals of International Longshoremen's Association to cross the picket line of the appellant unions. About eighty percent of the cargo ships that enter the Port of Mobile, sail under a foreign-flag and are manned by alien crews."[3] I It is apparent from the facts already stated that the Houston picketing in Windward and the Mobile picketing here were for all practical purposes identical. Petitioners refer to Windward as "involving the union petitioners in the identical national picketing dispute as part of the Committee's program" Brief for Petitioners 7 n. 1. But petitioners contend that since the state-court plaintiffs in this case are not the foreign owners of a picketed ship, as they were in Windward, but are instead stevedoring companies which seek to service the ship[4] and a shipper who wishes to have his crops loaded on it, the question of pre-emption of state-court jurisdiction by the National Labor Relations Act should be answered differently than it was in Windward.[5] Petitioners reason that respondents could have charged them with an unfair labor practice under the secondary boycott provision of |
Justice Rehnquist | 1,974 | 19 | majority | American Radio Assn. v. Mobile SS Assn., Inc. | https://www.courtlistener.com/opinion/109119/american-radio-assn-v-mobile-ss-assn-inc/ | an unfair labor practice under the secondary boycott provision of the National Labor Relations Act, 8 (b) (4), as amended, 29 U.S. C. 158 (b) (4), and that since petitioners' activities were arguably prohibited under that section, the respondents' exclusive remedy was to seek relief from *220 the National Labor Relations Board. Cf. San Diego Building Trades Petitioners' position in this respect contrasts markedly with their posture in the Windward litigation. There petitioners, as respondents in this Court, urged that "peaceful and truthful primary picketing, non obstructive and without trespass upon private property, by American workers protesting substandard wages and benefits paid," are activities "actually protected by the Act." Brief for Respondents in No. 72-1061, O. T. 1973, p. 15. They also urged that "the American seamen's activities at bar constitutes [sic] typical lawful primary picketing, sanctioned and protected by the Act, Garner [v. Teamsters] and [Longshoremen v.] Ariadne [Co.], 397 U. S. [195,] 202 [(1970)]." Brief for Respondents in No. 72-1061, O. T. 1973, p. 16. Petitioners apparently urged the same arguments in the Texas Court of Civil Appeals, whose judgment we reviewed in Windward, because that court stated: "[A]ppellees' picketing carefully remained within the guidelines for permissible picketing on the premises of a secondary employer promulgated in Sailor's of the Pacific, 92 N. L. R. B. 547 and adopted in Local 761, Inter. of Elec., Radio and Mach."[6] Petitioners, having failed to persuade this Court in Windward that their Houston picketing was protected under 7 of the National Labor Relations Act, 29 U.S. C. 157, now contend that their Mobile picketing was at least arguably a secondary boycott prohibited by 8 (b) (4) (B) of the Act, 29 U.S. C. 158 (b) (4) (B). They would have us hold not only that there is an independent controversy between petitioner unions, representing *221 American seamen, and the contracting stevedores represented by respondent, but also that this independent dispute is subject to the jurisdiction of the Board. Acceptance of petitioners' argument would result in a rule whereby a state court had jurisdiction over a complaint for injunction filed by a foreign-ship owner claiming that picketing activities of a union were interfering with his business relationships with a contract stevedore, but the same court would have no jurisdiction where the contract stevedore sought an injunction on precisely the same grounds. The anomaly of such a result is reason enough to question it, but we believe that there is a more fundamental flaw in petitioners' claim. Even if there is a dispute between petitioners and respondents which is, in some semantic sense, |
Justice Rehnquist | 1,974 | 19 | majority | American Radio Assn. v. Mobile SS Assn., Inc. | https://www.courtlistener.com/opinion/109119/american-radio-assn-v-mobile-ss-assn-inc/ | between petitioners and respondents which is, in some semantic sense, independent of petitioners' dispute with foreign-flag ships, that dispute is subject to state-court disposition unless it satisfies the jurisdictional requirements of the NLRA. In this regard, we not that a necessary predicate for a finding by the Board of an unfair labor practice under 8 (b) (4) (i) is that the individual induced or encouraged must be employed by a "person engaged in commerce or in an industry affecting " Similarly, a necessary predicate for finding an unfair labor practice under 8 (b) (4) (ii) is that the person threatened, coerced, or restrained must have been engaged in "commerce or in an industry affecting commerce," and a necessary predicate for Board jurisdiction of unfair labor practices under 10 (a) of the Act, 29 U.S. C. 160 (a) is that they be practices "affecting " Petitioners interpret Windward as having done nothing more than establish that the maritime operations of foreign ships are not "in " They assume that Windward said nothing about either the business activities of persons seeking to deal with such ships, or about whether, for these purposes, those activities are "in commerce" or "affecting " Petitioners therefore *222 are able to state that the requirements of 8 (b) (4) and 10 are satisfied because: "Unquestionably, the Association, constituting stevedoring companies employing longshoremen to load and discharge vessels at the port of Mobile, Alabama, is an `employer' engaged in `commerce' under the Act, and equally unquestionably, respondent Malone, delivering his soybeans to the dock elevator, is a `person' engaged in `commerce,' under the Act." Brief for Petitioners 15-16. We do not believe, however, that the line of cases[7] commencing with Benz and culminating in Windward permit such a bifurcated view of the effects of a single group of pickets at a single site. In Windward we stated that our task was to determine "whether the activities complained of were activities `affecting commerce' within the meaning of the National Labor Relations Act,"[8] and we concluded that they were -106. We recognized that the picketing activities did not involve the inescapable intrusion into the affairs of foreign ships that was present in Benz and Incres, but we went on to say that *223 the latter cases "do not purport to fully delineate the threshold of interference with the maritime operations of foreign vessels which makes the LMRA inapplicable." We further observed: "At the very least, the pickets must have hoped to exert sufficient pressure so that foreign vessels would be forced to raise their operating costs to levels comparable to |
Justice Rehnquist | 1,974 | 19 | majority | American Radio Assn. v. Mobile SS Assn., Inc. | https://www.courtlistener.com/opinion/109119/american-radio-assn-v-mobile-ss-assn-inc/ | forced to raise their operating costs to levels comparable to those of American shippers, either because of lost cargo resulting from the longshoremen's refusal to load or unload the vessels, or because of wage increases awarded as a virtual self-imposed tariff to regain entry to American ports. Such a large-scale increase in operating costs would have more than a negligible impact on the `maritime operations' of these foreign ships, and the effect would be by no means limited to costs incurred while in American ports. Unlike Ariadne, the protest here could not be accommodated by a wage decision on the part of the shipowners which would affect only wages paid within this country."[9]Ibid. (Emphasis supplied.) *224 While we thus spoke in Windward of the effect of the Houston pickets on the maritime operations of foreign ships, the quoted passage shows that we fully recognized that this effect would not be produced solely by the pickets and the messages carried by their signs. It would be produced in large part by the refusal of American workmen employed by domestic stevedoring companies to cross the picket line in order to load and unload cargo coming to or from the foreign ships. Since Windward held that the Houston picketing was not in or affecting commerce, it would be wholly inconsistent to now hold, insofar as concerns Board jurisdiction over a complaint by respondents, that the employer of the longshoremen who honored the picket line, or the shipper whose goods they did not handle, was in or affecting That we found it unnecessary to expressly state this conclusion in Windward suggests not that the point is an undecided one, but that such a conclusion inevitably flows from the fact that the response of the employees of the American stevedores was a crucial part of the mechanism by which the maritime operations of the foreign ships were to be affected. The exaction of the "self-imposed *225 tariff to regain entry to American ports" does not depend upon American shippers heeding the message on the picket signs and declining to ship their cargoes in foreign bottoms. The same pressure upon the foreign-flag owners will result if longshoremen refuse to load or unload their ships. The effect of the picketing on the operations of the stevedores and shippers, and thence on these maritime operations, is precisely the same whether it be complained of by the foreign-ship owners or by persons seeking to service and deal with the ships. The fact that the jurisdiction of the state courts in this case is invoked by stevedores and shippers does |
Justice Rehnquist | 1,974 | 19 | majority | American Radio Assn. v. Mobile SS Assn., Inc. | https://www.courtlistener.com/opinion/109119/american-radio-assn-v-mobile-ss-assn-inc/ | in this case is invoked by stevedores and shippers does not convert into "commerce" activities which plainly were not such in Windward.[10] Our dissenting Brethren contend that our disposition is inconsistent with the Court's decision in Building & Trades and with the Board's decision in Sailors' of the Pacific (Moore Dry ), 92 N. L. R. B. 547 (1950). dealt with the quite different question of applying the Board's own limitation of its statutory jurisdiction to those cases which have "a substantial effect on " 23 N. L. R. B. Ann. Rep. 7 (1958) (emphasis added). The Board had promulgated a series of administratively established standards, in effect ceding to state courts and agencies disputes involving entities which admittedly "affected commerce," but whose volume of interstate business was not "sufficiently substantial to warrant the exercise of [Board] jurisdiction." 29 *226 U. S. C. 164 The standards provided that they could be "satisfied by reference to the business operations of either the primary or the secondary employer." Because of this provision, the Board had not in fact ceded its jurisdiction over the particular dispute that had been presented to the Mississippi courts. In this Court did no more than enforce the natural consequence of this fact by holding that Garmon deprived the state courts of jurisdiction. We find nothing in that holding inconsistent with what we say or hold here. Certainly does not, as MR. JUSTICE STEWART'S dissent would have it, stand for the proposition that a secondary employer's domestic business activities may be the basis for Board jurisdiction where the primary dispute is beyond its statutory authority over unfair labor practices "affecting " 29 U.S. C. 160 (a). That dissent's treatment of Moore Dry reads a great deal more into that 1950 Board decision than its language and analysis can support. The decision itself contains no reference whatever to the jurisdiction of the Board over the primary employer, the foreign-flag vessel Phopho, and neither the decision nor the Trial Examiner's report considered the jurisdictional challenge presently confronting this Court. The Trial Examiner's report, from which that dissenting opinion quotes, did state that the Board, in an apparently unreported determination, had previously dismissed a petition for election aboard the Phopho, 92 N. L. R. B. 547, 560-561. The report later acknowledged that the Board had "left somewhat obscure the precise legal basis" of its jurisdictional ruling, a comment which was evoked by the contention that because the primary employer was "clearly engaged in commerce," the ruling must have been based on a different jurisdictional defect. This Court in not only noted |
Justice Rehnquist | 1,974 | 19 | majority | American Radio Assn. v. Mobile SS Assn., Inc. | https://www.courtlistener.com/opinion/109119/american-radio-assn-v-mobile-ss-assn-inc/ | a different jurisdictional defect. This Court in not only noted that Moore *227 Dry involved a different situation, but also rather pointedly stated: "We need only say that these cases are inapposite, without, of course, intimating any view as to their result." n. 5. A 1950 Board precedent such as this can scarcely be regarded as controlling when it is clearly contrary to the thrust of this Court's Benz-Windward line of cases. Petitioners rely on Teamsters and Plumbers' for the proposition that even though the Board may not have jurisdiction over the primary labor relations of a party which is excluded from the Act's definition of "employer,"[11] it is nonetheless competent to consider secondary disputes involving such a party. In Teamsters a railroad was held to be barred from seeking relief in the state courts against a secondary boycott. The Court held that while the railroad was not a statutory "employer," it was nonetheless a "person" protected by 8 (b) (4). A similar result was reached in Door in which a non-"employer" county sought state court relief, not with respect to activities of its own employees, but with respect to a claimed secondary boycott arising from picketing against a nonunion subcontractor working on an addition to the county courthouse. While these cases establish the proposition that an entity which is not within the Act's definition of "employer" *228 may nonetheless be a "person" for purposes of protection against secondary boycotts, neither they nor any other case decided by this Court suggests that the Board has jurisdiction of 8 (b) (4) complaints if the alleged unfair labor practice does not affect Indeed, in Door the Court pointedly inquired whether the out-of-state origin of construction materials was sufficient to establish the jurisdictionally required effect on interstate Here, neither the farmer seeking to ship his soybeans, the stevedores who contracted to unload the cargo of the foreign-flag vessel, nor the longshoremen whom the stevedores employed to carry out this undertaking, were for these purposes engaged in or affecting commerce within the purview of the National Labor Relations Act. Therefore the petitioners' picketing did not even "arguably" violate 8 (b) (4) (B) of that Act. Since Congress did not intend to strain through the filament of the NLRA picketing activities which so directly affect the maritime operations of foreign vessels, we hold that the Alabama courts were competent to apply their own law in resolving the dispute between petitioners and respondents unless, as petitioners claim, such a resolution violated petitioners' rights under the First and Fourteenth Amendments. II After concluding that the state courts |
Justice Rehnquist | 1,974 | 19 | majority | American Radio Assn. v. Mobile SS Assn., Inc. | https://www.courtlistener.com/opinion/109119/american-radio-assn-v-mobile-ss-assn-inc/ | and Fourteenth Amendments. II After concluding that the state courts had jurisdiction, the Supreme Court of Alabama considered whether the picketing was protected by the First and Fourteenth Amendments. Relying on Teamsters v. Inc., it concluded that if the picketing compromised valid public policies, it was not protected by its putative purpose of conveying information. The court therefore thought that the matter narrowed to whether or not the picketing had a purpose or objective to "wrongfully interfere" with respondents' businesses. Recognizing that the unions were appealing a temporary injunction, *229 issued as a matter of equitable discretion to preserve the status quo pending final resolution of the dispute, the court inquired only whether there was evidence of a prohibited purpose sufficient to establish that the trial judge had not abused the "wide discretion" he possesses in such matters. The court found such evidence in the testimony of a local union official charged with carrying out the picketing. He had expressed the hope that union men would not cross the lines, that the port would become cluttered with foreign ships unable to load or unload, and that the docks would be shut down. On this basis the court concluded that a substantial question was presented as to whether the picketing had a prohibited purpose, and that the trial judge had not abused his discretion. Petitioners repeat their First and Fourteenth Amendment arguments before this Court. They contend that the picketing was expressive conduct informing the public of the injuries they suffer at the hands of foreign ships, and "imploring the public" to " `Buy American' or `Ship American.' " Brief for Petitioners 21. This conduct, they contend, constitutes "the lawful exercise of protected fundamental rights of free speech," and is thus not subject to injunction. We think this line of argument is foreclosed by our holding in There the Court, in an opinion by Mr. Justice Frankfurter, reviewed the cases in which we had dealt with disputes involving the interests of pickets in disseminating their message and of the State in protecting various competing economic and social interests. endorsed the view that picketing involves more than an expression of ideas, and referred to our "growing awareness that these cases involved not so much questions of free speech as review of the balance struck by a State between picketing that involved more than `publicity' and competing interests of state policy." The Court concluded *230 that our cases "established a broad field in which a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by |
Justice Rehnquist | 1,974 | 19 | majority | American Radio Assn. v. Mobile SS Assn., Inc. | https://www.courtlistener.com/opinion/109119/american-radio-assn-v-mobile-ss-assn-inc/ | its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy." We believe that in the case now before us Alabama's interference with petitioners' picketing is well within that "broad field." Petitioners seek to escape from in three ways. First, they contend that this case is squarely controlled by Food In that case, claim petitioners, picketing "identical as at bar, [designed] to peacefully and truthfully publicize substandard wages and concomitantly request the public not to patronize the picketed entity," was held to be protected. Brief for Petitioners 20. In rejecting this contention, we need only point out that Logan Valley concerned the location of picketing, not its purpose; indeed, it was on exactly this basis that the Logan Valley Court distinguished the line of cases culminating in Logan Valley established only that in some circumstances private business property can be so thoroughly clothed in the attributes of public property that it may not be completely closed as a public forum to those who wish to present otherwise lawful communications. Petitioners' second argument is that the injunction here is not supported by a "valid public policy," as required by They point out that while the Alabama Supreme Court stated the public policy to be the prevention of "wrongful interference" with respondents' businesses, it did not expressly define that term. We, however, think it obvious that in this context "wrongful interference" refers to efforts by third parties to induce employees to cease performing services essential to the conduct of their employer's business. That third-party participation is critical to picketing being categorized as *231 "wrongful interference" is clear from a case cited by the Alabama Supreme Court in its opinion in this case. In Pennington the Supreme Court of Alabama indicated that the state policy against "wrongful interference" is quite analogous to the federal policy of prohibiting secondary boycotts, and is based on similar considerations. The State's policy also appears to be based on the state interest in preserving its economy against the stagnation that could be produced by pickets' disruption of the businesses of employers with whom they have no primary dispute. At Mobile the picketing threatened to eliminate the 70% to 80% of the stevedores' business that depended on foreign shipping, and to cause serious losses for farmers whose agricultural crops required immediate harvesting and shipping.[12] Under the State may prefer these interests over petitioners' interests in conveying their "ship American" message through the speech-plus device of dockside picketing. Petitioners' final contention is that the |
Justice Rehnquist | 1,974 | 19 | majority | American Radio Assn. v. Mobile SS Assn., Inc. | https://www.courtlistener.com/opinion/109119/american-radio-assn-v-mobile-ss-assn-inc/ | device of dockside picketing. Petitioners' final contention is that the record fails to support the conclusion that a substantial question existed as to whether the picketing constituted "wrongful interference" under Alabama law. The question of whether evidence is sufficient to make out a cause of action created by state law and tried in the state courts is a matter for decision by those courts. Insofar as petitioners' argument on this score may be read to suggest that the evidence before the Alabama court would not support a finding that their activities were such as could be enjoined under we reject it. Petitioners seem to argue that the Alabama courts were bound by *232 the statements of purpose appearing on the pickets' signs and literature, and that in any event one local official's statements of his hopes and expectations as to the picketing's effect could not override those stated purposes. This argument ignores the wide latitude open to triers of fact to make factual determinations on the basis of rational inferences which arise from the nature, location, and effect of picketing. See ; Plumbers v. Graham, Concluding that the jurisdiction of the Alabama courts in this case was not pre-empted by the National Labor Relations Act, and that the action of those courts in enjoining the picketing at Mobile violated no right conferred upon petitioners by the First and Fourteenth Amendments, we affirm the judgment of the Supreme Court of Alabama. Affirmed. MR. |
Justice Stevens | 1,985 | 16 | dissenting | Richardson-Merrell Inc. v. Koller | https://www.courtlistener.com/opinion/111475/richardson-merrell-inc-v-koller/ | Everyone must agree that the litigant's freedom to choose his own lawyer in a civil case is a fundamental right. The difficult question presented by this case is whether the denial *443 of that right by a district court's disqualification order can effectively be reviewed following a judgment on the merits.[1] In my opinion, does not control the decision in this case. The strong public interest in the prompt disposition of criminal charges an interest shared by both the prosecutor and the defendant is not present to the same extent in the civil context where the defendant's interest in delay may motivate a motion to disqualify in a borderline case.[2] Moreover, in a criminal case an erroneous order disqualifying the lawyer chosen by the defendant should result in a virtually automatic reversal; review after trial on the merits is therefore "effective" to protect the right. In the civil context, I do not believe a pretrial disqualification order would similarly be effectively reviewable after the entry of a final judgment. Prejudice to a litigant's right to go to trial with the advocate of his choice is suffered the moment a disqualification order is granted. Nevertheless, after a trial with substitute counsel has been held, I would be most reluctant to subscribe to a rule requiring reversal without a showing of some impact on the outcome. Yet I believe it would be virtually impossible to demonstrate that an outcome has been affected by the change of counsel as opposed to the other myriad variables present in civil litigation. Both prejudice to the litigant's freedom of choice and the substantive basis of attorney disqualifications based on pretrial actions are "completely separate"[3] from the underlying merits. I am therefore persuaded that a disqualification *444 order fits squarely within the classic formulation of an appealable collateral order: "This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." This was the unanimous conclusion of the Courts of Appeals that addressed attorney disqualification orders prior to Flanagan, and remained the conclusion of four of the five Courts of Appeals that addressed the issue of attorney disqualifications for pretrial misconduct following that decision. I am more confident of the ability of the various Courts of Appeals to evaluate the problem of disqualification motions and supervise the local bench and bar than I am of the |
Justice Sotomayor | 2,017 | 24 | majority | McLane Co. v. EEOC | https://www.courtlistener.com/opinion/4380152/mclane-co-v-eeoc/ | Title VII of the Civil Rights Act of 964 permits the Equal Employment Opportunity Commission (EEOC) to issue a subpoena to obtain evidence from an employer that is relevant to a pending investigation. The statute autho- rizes a district court to issue an order enforcing such a subpoena. The question presented here is whether a court of appeals should review a district court’s decision to enforce or quash an EEOC subpoena de novo or for abuse of discretion. This decision should be reviewed for abuse of discretion. I A Title VII of the Civil Rights Act of 964 prohibits em- ployment discrimination on the basis of “race, color, reli- gion, sex, or national origin.” 42 U.S. C. The statute entrusts the enforce- ment of that prohibition to the EEOC. See The EEOC’s responsibilities “are triggered by the filing of a specific sworn charge of discrimination,” University of 2 MCLANE CO. v. EEOC Opinion of the Court v. EEOC, which can be filed either by the person alleging discrimination or by the EEOC itself, see When it receives a charge, the EEOC must first notify the employer, ib and must then investigate “to determine whether there is reasonable cause to believe that the charge is true,” University of 493 U.S., at This case is about one of the tools the EEOC has at its disposal in conducting its investigation: a subpoena. In order “[t]o enable the [EEOC] to make informed decisions at each stage of the enforcement process,” Title VII “con- fers a broad right of access to relevant evidence.” at 9. It provides that the EEOC “shall have access to, for the purposes of examination, any evidence of any person being investigated or proceeded against that re- lates to unlawful employment practices covered by” Title VII and “is relevant to the charge under investigation.” 42 U.S. C. And the statute enables the EEOC to obtain that evidence by “authoriz[ing] [it] to issue a subpoena and to seek an order enforcing [the subpoena].” University of ; see Under that authority, the EEOC may issue “subp[o]enas requir- ing the attendance and testimony of witnesses or the production of any evidence.” 29 U.S. C. An employer may petition the EEOC to revoke the subpoena, see ib but if the EEOC rejects the petition and the employer still “refuse[s] to obey [the] subp[o]ena,” the EEOC may ask a district court to issue an order enforcing it, see A district court’s role in an EEOC subpoena enforcement proceeding, we have twice explained, is a straightforward —————— The statute does so by conferring on the EEOC |
Justice Sotomayor | 2,017 | 24 | majority | McLane Co. v. EEOC | https://www.courtlistener.com/opinion/4380152/mclane-co-v-eeoc/ | —————— The statute does so by conferring on the EEOC the same authority given to the National Labor Relations Board to conduct investigations. See 42 U.S. C. (“For the purpose of all investigations conducted by the Commission section 6 of title 29 shall apply”). Cite as: 58 U. S. (207) 3 Opinion of the Court one. See University of ; Shell 4 U.S., A district court is not to use an en- forcement proceeding as an opportunity to test the strength of the underlying complaint. Rather, a district court should “ ‘satisfy itself that the charge is valid and that the material requested is “relevant” to the charge.’ ” University of It should do so cognizant of the “generou[s]” construction that courts have given the term “relevant.” Shell 4 U.S., at 68–69 (“virtually any material that might cast light on the allegations against the employer”). If the charge is proper and the material requested is relevant, the district court should enforce the subpoena unless the employer estab- lishes that the subpoena is “too indefinite,” has been is- sued for an “illegitimate purpose,” or is unduly burden- some. See United (“The gist of the protec- tion is in the requirement that the disclosure sought shall not be unreasonable” (internal quotation marks omitted)). B This case arises out of a Title VII suit filed by a woman named Damiana Ochoa. Ochoa worked for eight years as a “cigarette selector” for petitioner McLane Co., a supply- chain services company. According to McLane, the job is a demanding one: Cigarette selectors work in distribution centers, where they are required to lift, pack, and move large bins containing products. McLane requires employ- ees taking physically demanding jobs—both new employ- ees and employees returning from medical leave—to take a physical evaluation. According to McLane, the evalua- tion “tests range of motion, resistance, and speed” and “is designed, administered, and validated by a third party.” Brief for Petitioner 6. In 2007, Ochoa took three months of maternity leave. When she attempted to return 4 MCLANE CO. v. EEOC Opinion of the Court to work, McLane asked her to take the evaluation. Ochoa attempted to pass the evaluation three times, but failed. McLane fired her. Ochoa filed a charge of discrimination, alleging (among other things) that she had been fired on the basis of her gender. The EEOC began an investigation, and—at its request—McLane provided it with basic information about the evaluation, as well as a list of anonymous employees that McLane had asked to take the evaluation. McLane’s list included each employee’s gender, role at the company, |
Justice Sotomayor | 2,017 | 24 | majority | McLane Co. v. EEOC | https://www.courtlistener.com/opinion/4380152/mclane-co-v-eeoc/ | McLane’s list included each employee’s gender, role at the company, and evaluation score, as well as the reason each employee had been asked to take the evaluation. But the company refused to provide what the parties call “pedigree infor- mation”: the names, Social Security numbers, last known addresses, and telephone numbers of the employees who had been asked to take the evaluation. Upon learning that McLane used the evaluation nationwide, the EEOC expanded the scope of its investigation, both geographi- cally (to focus on McLane’s nationwide operations) and sub- stantively (to investigate whether McLane had discrimi- nated against its employees on the basis of age). It issued subpoenas requesting pedigree information as it related to its new investigation. But McLane refused to provide the pedigree information, and so the EEOC filed two actions in Federal District Court—one arising out of Ochoa’s charge and one arising out of a separate age- discrimination charge the EEOC itself had filed—seeking enforcement of its subpoenas. The enforcement actions were assigned to the same District Judge, who, after a hearing, declined to enforce the subpoenas to the extent that they sought the pedigree information. See *5 (D Ariz., Apr. 4, 202) (age discrimination charge); Civ. No. 2–2469 (D Ariz., Nov. 9, 202), App. to Pet. for Cert. Cite as: 58 U. S. (207) 5 Opinion of the Court 28–30 (Title VII charge).2 In the District Court’s view, the pedigree information was not “relevant” to the charges because “ ‘an individual’s name, or even an interview he or she could provide if contacted, simply could not shed light on whether the [evaluation] represents a tool of dis- crimination.’ ” App. to Pet. for Cert. 29 (quoting 202 WL 32758, at *5; some internal quotation marks omitted). The Ninth Circuit reversed. See Consistent with Circuit precedent, the panel reviewed the District Court’s decision to quash the subpoena de novo, and concluded that the District Court had erred in finding the pedigree information irrelevant. But the panel questioned in a footnote why de novo review applied, observing that its sister Circuits “appear[ed] to review issues related to enforcement of administrative subpoenas for abuse of discretion.” ; see infra, at 7 (reviewing Court of Appeals authority). This Court granted certiorari to resolve the disagree- ment between the Courts of Appeals over the appropriate standard of review for the decision whether to enforce an EEOC subpoena. 579 U. S. (206). Because the United States agrees with McLane that such a decision should be reviewed for abuse of discretion, Stephen B. Kinnaird was appointed as amicus curiae to defend the judgment |
Justice Sotomayor | 2,017 | 24 | majority | McLane Co. v. EEOC | https://www.courtlistener.com/opinion/4380152/mclane-co-v-eeoc/ | Kinnaird was appointed as amicus curiae to defend the judgment below. 580 U. S. (206). He has ably discharged his duties. —————— 2 The District Court also refused to enforce the subpoena to the extent that it sought a second category of evidence: information about when and why those employees who had been fired after taking the test had been fired. The District Court provided no explanation for not enforc- ing the subpoena to the extent it sought this information, and the Court of Appeals reversed on that ground. McLane does not challenge this aspect of the Court of Appeals’ decision. See Tr. of Oral Arg. 8. 6 MCLANE CO. v. EEOC Opinion of the Court II A When considering whether a district court’s decision should be subject to searching or deferential appellate review—at least absent “explicit statutory command”—we traditionally look to two factors. v. Underwood, 487 U.S. 552, 558 (988). First, we ask whether the “history of appellate practice” yields an answer. Second, at least where “neither a clear statutory prescription nor a historical tradition exists,” we ask whether, “ ‘as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in ques- tion.’ ” 559–560 (quoting Miller v. Fenton, 474 U.S. 04, 4 (985)). Both factors point toward abuse-of- discretion review here. First, the longstanding practice of the courts of appeals in reviewing a district court’s decision to enforce or quash an administrative subpoena is to review that decision for abuse of discretion. That practice predates even Title VII itself. As noted, Title VII confers on the EEOC the same authority to issue subpoenas that the National Labor Relations Act (NLRA) confers on the National Labor Rela- tions Board (NLRB). See n. During the three decades between the enactment of the NLRA and the incorporation of the NLRA’s subpoena-enforcement provi- sions into Title VII, every Circuit to consider the question had held that a district court’s decision whether to enforce an NLRB subpoena should be reviewed for abuse of discre- tion. See NLRB v. Consolidated Vacuum Corp., 395 F.2d 46, 49–420 (CA2 968); NLRB v. Friedman, 352 F.2d 545, 547 (CA3 965); NLRB v. Northern Trust Co., 48 F.2d 24, 29 (CA7 945); Goodyear Tire & Rubber Co. v. NLRB, 22 F.2d 450, (CA6 94). By the time Congress amended Title VII to authorize EEOC subpoenas in 972, it did so against this uniform backdrop of deferen- tial appellate review. Cite as: 58 U. S. (207) 7 Opinion of the Court Today, nearly as uniformly, the Courts of |
Justice Sotomayor | 2,017 | 24 | majority | McLane Co. v. EEOC | https://www.courtlistener.com/opinion/4380152/mclane-co-v-eeoc/ | of the Court Today, nearly as uniformly, the Courts of Appeals apply the same deferential review to a district court’s decision as to whether to enforce an EEOC subpoena. Almost every Court of Appeals reviews such a decision for abuse of discretion. See, e.g., 295–296 (CA3 200); 442 (CA4 202); EEOC v. Roadway Express, Inc., 26 F.3d 634, 638 (CA6 200); ; 448 F.3d 035, 038 ; EEOC v. Dillon Companies, Inc., 30 F.3d 27, 274 ; 77 F.3d 757, 760 (CA 204) (per curiam). As Judge Watford—writing for the panel below—recognized, the Ninth Circuit alone applies a more searching form of review. See 804 F.3d, at 056, n. 3 (“Why we review questions of relevance and undue burden de novo is unclear”); see also (CA9 988) (holding that de novo review applies). To be sure, the inquiry into the appropriate standard of review cannot be resolved by a head-counting exercise. But the “long his- tory of appellate practice” here, 487 U.S., carries significant persuasive weight. Second, basic principles of institutional capacity counsel in favor of deferential review. The decision whether to enforce an EEOC subpoena is a case-specific one that turns not on “a neat set of legal rules,” 462 U.S. 23, (983), but instead on the application of broad standards to “multifarious, fleeting, special, narrow facts that utterly resist generalization,” 487 U.S., at 56–562 In the mine run of cases, the district court’s decision whether to enforce a subpoena will turn either on whether the evi- dence sought is relevant to the specific charge before it or whether the subpoena is unduly burdensome in light of the circumstances. Both tasks are well suited to a district 8 MCLANE CO. v. EEOC Opinion of the Court judge’s expertise. The decision whether evidence sought is relevant requires the district court to evaluate the rela- tionship between the particular materials sought and the particular matter under investigation—an analysis “vari- able in relation to the nature, purposes and scope of the inquiry.” Oklahoma Press Publishing Co. v. Walling, 327 U.S. 86, 209 (946). Similarly, the decision whether a subpoena is overly burdensome turns on the nature of the materials sought and the difficulty the employer will face in producing them. These inquiries are “generally not amenable to broad per se rules,” Sprint/United Manage- ment ; rather, they are the kind of “fact-intensive, close calls” better suited to resolution by the district court than the court of appeals, Cooter & 4043 Other functional considerations also show that abuse-of- discretion review is appropriate here. For one, district courts have considerable experience in other contexts |
Justice Sotomayor | 2,017 | 24 | majority | McLane Co. v. EEOC | https://www.courtlistener.com/opinion/4380152/mclane-co-v-eeoc/ | For one, district courts have considerable experience in other contexts making decisions similar—though not identical—to those they must make in this one. See (200) (“[T]he comparatively greater expertise” of the district court may counsel in favor of deferential review). District courts decide, for instance, whether evidence is relevant at trial, Fed. Rule Evid. 40; whether pretrial criminal subpoenas are unreasonable in —————— 3 To be sure, there are pure questions of law embedded in a district court’s decision to enforce or quash a subpoena. Whether a charge is “valid,” —that is, legally sufficient—is a pure question of law. And the question whether a district court employed the correct standard of relevance, see at 68–69—as opposed to how it applied that standard to the facts of a given case—is a question of law. But “applying a unitary abuse-of- discretion standard” does not shelter a district court that makes an error of law, because “[a] district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law.” Cooter & Cite as: 58 U. S. (207) 9 Opinion of the Court scope, Fed. Rule Crim. Proc. 6(c)(2); and more. These decisions are not the same as the decisions a district court must make in enforcing an administrative subpoena. But they are similar enough to give the district court the “in- stitutional advantag[e],” that comes with greater experience. For another, as we noted in Cooter & Gell, deferential review “streamline[s] the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court,” 496 U.S., at 404—a particularly important consideration in a “satel- lite” proceeding like this one, ib designed only to facili- tate the EEOC’s investigation. B Amicus’ arguments to the contrary have aided our con- sideration of this case. But they do not persuade us that de novo review is appropriate. Amicus’ central argument is that the decision whether a subpoena should be enforced does not require the exercise of discretion on the part of the district court, and so it should not be reviewed for abuse of discretion. On amicus’ view, the district court’s primary role is to test the legal sufficiency of the subpoena, not to weigh whether it should be enforced as a substantive matter. Cf. Shell 4 U.S., (rejecting the argument that the district court should assess the validity of the underlying claim in a proceeding to enforce a subpoena). Even accepting amicus’ view of the district court’s task, however, this understanding of abuse-of-discretion review is too narrow. As commentators |
Justice Sotomayor | 2,017 | 24 | majority | McLane Co. v. EEOC | https://www.courtlistener.com/opinion/4380152/mclane-co-v-eeoc/ | this understanding of abuse-of-discretion review is too narrow. As commentators have observed, abuse-of-discretion re- view is employed not only where a decisionmaker has “a wide range of choice as to what he decides, free from the constraints which characteristically attach whenever legal rules enter the decision[making] process”; it is also em- ployed where the trial judge’s decision is given “an unu- 0 MCLANE CO. v. EEOC Opinion of the Court sual amount of insulation from appellate revision” for func- tional reasons. Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, (97); see also 22 C. Wright & K. Graham, Federal Prac- tice and Procedure §5. (2d ed. 202). And as we have explained, it is in large part due to functional concerns that we conclude the district court’s decision should be reviewed for abuse of discretion. Even if the district court’s decision can be characterized in the way that ami- cus suggests, that characterization would not be incon- sistent with abuse-of-discretion review. Nor are we persuaded by amicus’ remaining arguments. Amicus argues that affording deferential review to a dis- trict court’s decision would clash with Court of Appeals decisions instructing district courts to defer themselves to the EEOC’s determination that evidence is relevant to the charge at issue. See Director, Office of Thrift Supervision, v. Vinson & Elkins, LLP, 24 F.3d 304, 307 (CADC 997) (district courts should defer to agency appraisals of relevance unless they are “obviously wrong”); EEOC v. Lockheed Martin Corp., Aero & Naval Systems, 6 F.3d 0, 3 (CA4 997) (same). In amicus’ view, it is “analyt- ically impossible” for the court of appeals to defer to the district court if the district court must itself defer to the agency. Tr. of Oral Arg. 29. We think the better reading of those cases is that they rest on the established rule that the term “relevant” be understood “generously” to permit the EEOC “access to virtually any material that might cast light on the allegations against the employer.” Shell 4 U.S., at 68–69. A district court deciding whether evidence is “relevant” under Title VII need not defer to the EEOC’s decision on that score; it must simply answer the question cognizant of the agency’s broad authority to seek and obtain evidence. Because the statute does not set up any scheme of double deference, amicus’ arguments as to the infirmities of such a scheme are misplaced. Cite as: 58 U. S. (207) Opinion of the Court Nor do we agree that, as amicus suggests, the constitu- tional underpinnings of the Shell standard require a different result. To |
Justice Sotomayor | 2,017 | 24 | majority | McLane Co. v. EEOC | https://www.courtlistener.com/opinion/4380152/mclane-co-v-eeoc/ | underpinnings of the Shell standard require a different result. To be sure, we have described a subpoena as a “ ‘constructive’ search,” Oklahoma Press, 327 U.S., at 202, and implied that the Fourth Amendment is the source of the requirement that a subpoena not be “too indefinite,” Morton But not every decision that touches on the Fourth Amendment is subject to searching review. Subpoenas in a wide variety of other contexts also implicate the privacy interests protected by the Fourth Amendment, but courts routinely review the enforcement of such subpoenas for abuse of discretion. See, e.g., United 48 U.S. 683, (974) (pretrial subpoenas duces tecum); In re Grand Jury Sub- poena, (CA5 202) (grand jury subpoe- nas); In re Grand Jury Proceedings, F.3d 86, 20 (CA0 200) (same). And this Court has emphasized that courts should pay “great deference” to a magistrate judge’s determination of probable cause, —a decision more akin to a district court’s preenforcement review of a subpoena than the warrantless searches and seizures we considered in 57 U.S. 690 (996), on which amicus places great weight. The constitutional pedigree of Shell does not change our view of the correct standard of review. III For these reasons, a district court’s decision to enforce an EEOC subpoena should be reviewed for abuse of discre- tion, not de novo. The United States also argues that the judgment below can be affirmed because it is clear that the District Court abused its discretion. But “we are a court of review, not of first view,” 78, n. 7 (2005), and the Court of Appeals has not had the chance to 2 MCLANE CO. v. EEOC Opinion of the Court review the District Court’s decision under the appropriate standard. That task is for the Court of Appeals in the first instance. As part of its analysis, the Court of Appeals may also consider, as and to the extent it deems appropriate, any arguments made by McLane regarding the burdens imposed by the subpoena. The judgment of the Court of Appeals is hereby vacated, and the case is remanded for further proceedings con- sistent with this opinion. It is so ordered. Cite as: 58 U. S. (207) Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES No. 5–248 MCLANE COMPANY, INC., PETITIONER v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [April 3, 207] JUSTICE GINSBURG, concurring in part and dissenting in part. While I agree with the Court that “abuse of discretion” is generally the proper review standard for district court |
Justice Sotomayor | 2,017 | 24 | majority | McLane Co. v. EEOC | https://www.courtlistener.com/opinion/4380152/mclane-co-v-eeoc/ | discretion” is generally the proper review standard for district court decisions reviewing agency subpoenas, I would neverthe- less affirm the Ninth Circuit’s judgment in this case. As the Court of Appeals explained, the District Court’s re- fusal to enforce the Equal Employment Opportunity Commission’s (EEOC) subpoena for pedigree information rested on a legal error. Lower court resolution of a ques- tion of law is ordinarily reviewable de novo on appeal. Highmark Inc. v. Allcare Health Management System, Inc., 572 U. S. and n. 2 (204) (slip op., at 4, and n. 2). According to the District Court, it was not yet “nec- essary [for the EEOC] to seek such information.” 202 WL 5868959, *6 (D Ariz., Nov. 9, 202). As the Ninth Circuit correctly conveyed, however: “The EEOC does not have to show a ‘particularized necessity of access, beyond a show- ing of mere relevance,’ to obtain evidence.” 804 F.3d 05, 057 ). Because the District Court erred as a matter of law in demanding that the EEOC show more than relevance in order to gain enforcement of its sub- poena, I would not disturb the Court of Appeals’ judgment |
Justice Burger | 1,974 | 12 | majority | Miami Herald Publishing Co. v. Tornillo | https://www.courtlistener.com/opinion/109088/miami-herald-publishing-co-v-tornillo/ | The issue in this case is whether a state statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantees of a free press. I In the fall of appellee, Executive Director of the Classroom Teachers Association, apparently a teachers' collective-bargaining agent, was a candidate for the Florida House of Representatives. On September and again on September 29, appellant printed editorials critical of appellee's candidacy.[1] In *244 response to these editorials appellee demanded that appellant print verbatim his replies, defending the role of the Classroom Teachers Association and the organization's accomplishments for the citizens of Dade County. Appellant declined to print the appellee's replies, and appellee brought suit in Circuit Court, Dade County, seeking declaratory and injunctive relief and actual and punitive damages in excess of $5,000. The action was premised on Florida Statute 104.38 a "right of reply" statute which provides that if a candidate for nomination or election is assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper's charges. The reply must appear in as conspicuous a place and in the same kind of type as the charges which prompted the reply, provided it does not take up more space than the charges. Failure to comply with the statute constitutes a first-degree misdemeanor.[2] *245 Appellant sought a declaration that 104.38 was unconstitutional. After an emergency hearing requested by appellee, the Circuit Court denied injunctive relief because, absent special circumstances, no injunction could properly issue against the commission of a crime, and held that 104.38 was unconstitutional as an infringement on the freedom of the press under the First and Fourteenth Amendments to the Constitution. The Circuit Court concluded that dictating what a newspaper must print was no different from dictating what it must not print. The Circuit Judge viewed the statute's vagueness as serving "to restrict and stifle protected expression." Appellee's cause was dismissed with prejudice. On direct appeal, the Florida Supreme Court reversed, holding that 104.38 did not violate constitutional guarantees.[3] It held that free speech was enhanced and not abridged by the Florida right-of-reply statute, which in that court's view, furthered the "broad societal interest in the free flow of information to the public." It also held that the statute is *246 not impermissibly vague; the statute informs "those who are subject to it as to what conduct on their part will render them |
Justice Burger | 1,974 | 12 | majority | Miami Herald Publishing Co. v. Tornillo | https://www.courtlistener.com/opinion/109088/miami-herald-publishing-co-v-tornillo/ | as to what conduct on their part will render them liable to its penalties."[4] Civil remedies, including damages, were held to be available under this statute; the case was remanded to the trial court for further proceedings not inconsistent with the Florida Supreme Court's opinion. We postponed consideration of the question of jurisdiction to the hearing of the case on the merits. II Although both parties contend that this Court has jurisdiction to review the judgment of the Florida Supreme Court, a suggestion was initially made that the judgment of the Florida Supreme Court might not be "final" under 28 U.S. C. 1257.[5] In North Dakota State Pharmacy we reviewed a judgment of the North Dakota Supreme Court, under which the case had been remanded so that further state proceedings could be conducted respecting Snyder's application for a permit to operate a drug store. We held that to be a final judgment for purposes of our jurisdiction. Under the principles of finality enunciated in Snyder's Stores, the judgment of *2 the Florida Supreme Court in this case is ripe for review by this Court.[6] III A The challenged statute creates a right to reply to press criticism of a candidate for nomination or election. The statute was enacted in 1913, and this is only the second recorded case decided under its provisions.[7] Appellant contends the statute is void on its face because it purports to regulate the content of a newspaper in violation of the First Amendment. Alternatively it is urged that the statute is void for vagueness since no editor could know exactly what words would call the statute into operation. It is also contended that the statute fails to distinguish between critical comment which is and which is not defamatory. B The appellee and supporting advocates of an enforceable right of access to the press vigorously argue that *248 government has an obligation to ensure that a wide variety of views reach the public.[8] The contentions of access proponents will be set out in some detail.[9] It is urged that at the time the First Amendment to the Constitution[10] was ratified in 1791 as part of our Bill of Rights the press was broadly representative of the people it was serving. While many of the newspapers were intensely partisan and narrow in their views, the press collectively presented a broad range of opinions to readers. Entry into publishing was inexpensive; pamphlets and books provided meaningful alternatives to the organized press for the expression of unpopular ideas and often treated events and expressed views not covered by conventional newspapers.[11] |
Justice Burger | 1,974 | 12 | majority | Miami Herald Publishing Co. v. Tornillo | https://www.courtlistener.com/opinion/109088/miami-herald-publishing-co-v-tornillo/ | treated events and expressed views not covered by conventional newspapers.[11] A true marketplace of ideas existed in which there was relatively easy access to the channels of communication. Access advocates submit that although newspapers of the present are superficially similar to those of 1791 the press of today is in reality very different from that known in the early years of our national existence. In the past half century a communications revolution has seen the introduction of radio and television into our lives, the promise of a global community through the *249 use of communications satellites, and the specter of a "wired" nation by means of an expanding cable television network with two-way capabilities. The printed press, it is said, has not escaped the effects of this revolution. Newspapers have become big business and there are far fewer of them to serve a larger literate population.[12] Chains of newspapers, national newspapers, national wire and news services, and one-newspaper towns,[13] are the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events. Major metropolitan newspapers have collaborated to establish news services national in scope.[14] Such national news organizations provide syndicated "interpretive reporting" as well as syndicated features and commentary, all of which can serve as part of the new school of "advocacy journalism." The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspaper's being owned by the same interests which own a television station and a radio station, are important components of this trend toward *250 concentration of control of outlets to inform the public. The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion.[15] Much of the editorial opinion and commentary that is printed is that of syndicated columnists distributed nationwide and, as a result, we are told, on national and world issues there tends to be a homogeneity of editorial opinion, commentary, and interpretive analysis. The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modern media empires. In effect, it is claimed, the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues. The monopoly of the means of communication allows for little or no critical analysis of the media except in professional journals of very limited readership. "This concentration |
Justice Burger | 1,974 | 12 | majority | Miami Herald Publishing Co. v. Tornillo | https://www.courtlistener.com/opinion/109088/miami-herald-publishing-co-v-tornillo/ | except in professional journals of very limited readership. "This concentration of nationwide news organizations like other large institutionshas grown increasingly remote from and unresponsive to the popular constituencies on which they depend and which depend on them." Report of the Task Force in Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive 4 Appellee cites the report of the Commission on Freedom of the chaired by Robert M. Hutchins, in which it was stated, as long ago as 19, that "[t]he right of free *251 public expression has lost its earlier reality." Commission on Freedom of the A Free and Responsible 15 (19). The obvious solution, which was available to dissidents at an earlier time when entry into publishing was relatively inexpensive, today would be to have additional newspapers. But the same economic factors which have caused the disappearance of vast numbers of metropolitan newspapers,[16] have made entry into the marketplace of ideas served by the print media almost impossible. It is urged that the claim of newspapers to be "surrogates for the public" carries with it a concomitant fiduciary obligation to account for that stewardship.[17] From this premise it is reasoned that the only effective way to insure fairness and accuracy and to provide for some accountability is for government to take affirmative action. The First Amendment interest of the public in being informed is said to be in peril because the "marketplace of ideas" is today a monopoly controlled by the owners of the market. Proponents of enforced access to the press take comfort from language in several of this Court's decisions which suggests that the First Amendment acts as a sword as well as a shield, that it imposes obligations on the owners of the press in addition to protecting the press from government regulation. In Associated the Court, in *252 rejecting the argument that the press is immune from the antitrust laws by virtue of the First Amendment, stated: "The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom |
Justice Burger | 1,974 | 12 | majority | Miami Herald Publishing Co. v. Tornillo | https://www.courtlistener.com/opinion/109088/miami-herald-publishing-co-v-tornillo/ | publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests." (Footnote omitted.) In New York Times the Court spoke of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." It is argued that the "uninhibited, robust" debate is not "wide-open" but open only to a monopoly in control of the press. Appellee cites the plurality opinion in which he suggests seemed to invite experimentation by the in right-to-access regulation of the press.[18] *253 Access advocates note that MR. JUSTICE DOUGLAS a decade ago expressed his deep concern regarding the effects of newspaper monopolies: "Where one paper has a monopoly in an area, it seldom presents two sides of an issue. It too often hammers away on one ideological or political line using its monopoly position not to educate people, not to promote debate, but to inculcate in its readers one philosophy, one attitudeand to make money." "The newspapers that give a variety of views and news that is not slanted or contrived are few indeed. And the problem promises to get worse" The Great Rights 124-125, 127 (E. Cahn ed. 1963). They also claim the qualified support of Professor Thomas I. Emerson, who has written that "[a] limited right of access to the press can be safely enforced," *254 although he believes that "[g]overnment measures to encourage a multiplicity of outlets, rather than compelling a few outlets to represent everybody, seems a preferable course of action." T. Emerson, The System of Freedom of Expression 671 (1970). IV However much validity may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual.[19] If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years.[] The Court foresaw the problems relating to government-enforced access as early as its decision in Associated There it carefully contrasted the private "compulsion to print" called for by the Association's bylaws with the provisions of the District Court decree against appellants which "does not compel AP or its members to permit publication of anything which their `reason' tells them should not be published." 326 U.S., at n. 18. In we emphasized |
Justice Burger | 1,974 | 12 | majority | Miami Herald Publishing Co. v. Tornillo | https://www.courtlistener.com/opinion/109088/miami-herald-publishing-co-v-tornillo/ | be published." 326 U.S., at n. 18. In we emphasized that the cases then *255 before us "involve no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold." In Columbia Broadcasting System, the plurality opinion as to Part III noted: "The power of a privately owned newspaper to advance its own political, social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readersand hence advertisers to assure financial success; and, second, the journalistic integrity of its editors and publishers." An attitude strongly adverse to any attempt to extend a right of access to newspapers was echoed by other Members of this Court in their separate opinions in that case. ; at 182 n. 12 (BRENNAN, J., joined by MARSHALL, J., dissenting). Recently, while approving a bar against employment advertising specifying "male" or "female" preference, the Court's opinion in Pittsburgh took pains to limit its holding within narrow bounds: "Nor, a fortiori, does our decision authorize any restriction whatever, whether of content or layout, on stories or commentary originated by Pittsburgh its columnists, or its contributors. On the contrary, we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of views on these and other issues, however controversial." Dissenting in Pittsburgh MR. JUSTICE STEWART, joined by MR. JUSTICE DOUGLAS, expressed the view that no "government agencylocal, state, or federalcan tell *256 a newspaper in advance what it can print and what it cannot." See Associates & Aldrich We see that beginning with Associated the Court has expressed sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print. The clear implication has been that any such a compulsion to publish that which " `reason' tells them should not be published" is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated. Appellee's argument that the Florida statute does not amount to a restriction of appellant's right to speak because "the statute in question here has not prevented the Miami Herald from saying anything it wished"[21] begs the core question. Compelling editors or publishers to publish that which " `reason' tells them should not be published" is what is at issue in this case. The Florida statute operates as a command in the same sense as |
Justice Burger | 1,974 | 12 | majority | Miami Herald Publishing Co. v. Tornillo | https://www.courtlistener.com/opinion/109088/miami-herald-publishing-co-v-tornillo/ | statute operates as a command in the same sense as a statute or regulation forbidding appellant to publish specified matter. Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers. Grosjean v. American Co., The Florida statute exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print. It is correct, as appellee contends, that a newspaper is not subject to the *257 finite technological limitations of time that confront a broadcaster but it is not correct to say that, as an economic reality, a newspaper can proceed to infinite expansion of its column space to accommodate the replies that a government agency determines or a statute commands the readers should have available.[22] Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced.[23] Government-enforced right of access inescapably "dampens the vigor and limits the variety of public debate," New York Times The Court, in stated: "[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates" *258 Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising.[24] The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officialswhether fair or unfairconstitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment of the Supreme Court of Florida is |
Justice Black | 1,970 | 21 | dissenting | Rosado v. Wyman | https://www.courtlistener.com/opinion/108113/rosado-v-wyman/ | Petitioners are New York welfare recipients who contend that recently enacted New York welfare legislation which reduces the welfare benefits to which they are entitled under the Aid to Families With Dependent Children (AFDC) program is inconsistent with the federal AFDC requirements found in 402 (a) (23) of the Social Security Act, 42 U.S. C. 602 (a) (23) (1964 ed., Supp. IV). The New York statute that petitioners are challenging, 131-a of the New York Social Services Law, was enacted on March 31, Little more than a week later on April 9, petitioners filed their complaint challenging this statute. The Court today holds that "the District Court correctly exercised its discretion by proceeding to the merits" of petitioners' claim that the federal and state statutes are inconsistent. Ante, at 401. The Court reaches this conclusion despite the fact that the determination whether a State is following the federal AFDC requirements is clearly vested in the first *431 instance not in the federal courts but in the Department of Health, Education, and Welfare (HEW); despite the fact that at the very moment the District Court was deciding the merits of petitioners' claim HEW was performing its statutory duty of reviewing the New York legislation to determine if it was at odds with 402 (a) (23); and despite the fact that if HEW had been given enough time to make a decision with regard to the New York legislation, its decision might have obviated the need for this and perhaps many other lawsuits. I regret that I cannot join an opinion which fails to give due consideration to the unmistakable intent of the Social Security Act to give HEW primary jurisdiction over these highly technical and difficult welfare questions, which affirms what is to me a clear abuse of discretion by the District Court, and which plunges this Court and other federal courts into an ever-increasing and unnecessary involvement in the administration of the Nation's categorical assistance programs administered by the States.[1] Under the AFDC program, 42 U.S. C. 601-610 (1964 ed. and Supp. IV), the Federal Government provides funds to a State on the condition that the State's plan for supplementing and distributing those funds to needy individuals satisfies the various federal requirements set out in the Social Security Act. By statute, the Secretary of HEW is charged with the duty of reviewing state plans to determine if they comply with the now considerable list of federal requirements, 42 U.S. C. 602 (1964 ed. and Supp. IV), and his approval of such a plan, and only his approval, qualifies the state |
Justice Black | 1,970 | 21 | dissenting | Rosado v. Wyman | https://www.courtlistener.com/opinion/108113/rosado-v-wyman/ | such a plan, and only his approval, qualifies the state program for federal financial assistance. 42 U.S. C. 601 (1964 ed., Supp. IV). So that HEW may determine whether *432 the state plan continues at all times to meet the federal requirements, each State is required by regulation to submit all relevant changes, such as new state statutes, regulations, and court decisions, to HEW for its review. 45 CFR 201.3. If, after affording the State reasonable notice and an opportunity for a hearing, HEW determines that the state plan does not conform to the federal requirements, the federal agency then has a legal obligation to terminate federal aid to which the State would otherwise be entitled. 42 U.S. C. 604, 1316 (1964 ed., Supp. IV); 45 CFR 201.5. Waiver by the Secretary of any of the federal requirements is permitted only where the Secretary and state welfare officials have together undertaken a "demonstration" or experimental welfare project. 42 U.S. C. 1315 (1964 ed., Supp. IV). The administrative procedures that the Secretary must afford a State before denying or curtailing the use of federal funds are elaborated in 42 U.S. C. 1316 (1964 ed., Supp. IV), and this section also provides that a State can obtain judicial review in a United States court of appeals of an adverse administrative determination. This unified, coherent scheme for reviewing state welfare rules and practices was established by Congress to ensure that the federal purpose behind AFDC is fully carried out. The statutory provisions evidence a clear intent on the part of Congress to vest in HEW the primary responsibility for interpreting the federal Act and enforcing its requirements against the States. Although the agency's sanction, the power to terminate federal assistance, might seem at first glance to be a harsh and inflexible remedy, Congress wisely saw that in the vast majority of cases a credible threat of termination will be more than sufficient to bring about compliance. These procedures, if followed as Congress intended, would render unnecessary countless lawsuits by welfare recipients. In the case before the Court today it is *433 undisputed that HEW had by the time of the proceedings in the District Court commenced its own administrative proceedings to determine whether 131-a conforms to the Social Security Act's provisions. The agency had requested the New York welfare officials to provide detailed information regarding the statute and was preparing to make its statutorily required decision on the conformity or nonconformity of 131-a. It was at this point, when HEW was in the midst of performing its statutory obligation, that the District Court |
Justice Black | 1,970 | 21 | dissenting | Rosado v. Wyman | https://www.courtlistener.com/opinion/108113/rosado-v-wyman/ | midst of performing its statutory obligation, that the District Court assumed jurisdiction over petitioner's claim and decided the very state-federal issue then pending before HEW. Both Judge Hays and Judge Lumbard of the Court of Appeals were of the opinion that the District Court abused its discretion in finding that it had jurisdiction over this statutory claim, and both judges relied in part on the pendency of the identical question before the federal agency. Chief Judge Lumbard's reasoning is instructive: "[H]ere, as Judge Hays points out, the federal claim seems more apt for initial resolution by the Department of Health, Education and Welfare, than by the courts. The two issues upon a resolution of which this claim turnsthe practical effect of 131-a and the proper construction of 602 (a) (23) of the Social Security Actboth are exceedingly complex. The briefs and arguments of the parties, and the varying judicial views they have elicited, have demonstrated the wisdom of allowing HEW, with its expertise in the operation of the AFDC program and its experience in reviewing the very technical provisions of state welfare laws, an initial opportunity to consider whether or not 131-a is in compliance with 602 (a) (23). This is HEW's responsibility under the Social Security Act, see 42 U.S. C. A. 1316 I believe that *434 the district court should have declined to exercise its jurisdiction, thus permitting HEW to determine the statutory claim asserted by plaintiffs, for the Department already had initiated review proceedings concerning 131-a." I agree with the Court of Appeals that the District Court abused its discretion in taking jurisdiction over this case, but I would go further than holding that the District Court's action was a mere abuse of discretion. Ensuring that the federal courts have the benefit of HEW's expertise in the welfare area is an important but by no means the only consideration supporting the limitation of judicial intervention at this stage. Congress has given to HEW the grave responsibility of guaranteeing that in each case where federal AFDC funds are used, federal policies are followed, and it has established procedures through which HEW can enforce the federal interests against the States. I think these congressionally mandated compliance procedures should be the exclusive ones until they have run their course. The explicitness with which Congress set out the HEW compliance procedures without referring to other remedies suggests that such was the congressional intent. But more fundamentally, I think it will be impossible for HEW to fulfill its function under the Social Security Act if its proceedings can be disrupted and its |
Justice Black | 1,970 | 21 | dissenting | Rosado v. Wyman | https://www.courtlistener.com/opinion/108113/rosado-v-wyman/ | Security Act if its proceedings can be disrupted and its authority undercut by courts which rush to make precisely the same determination that the agency is directed by the Act to make. And in instances when HEW is confronted with a particularly sensitive question, the agency might be delighted to be able to pass on to the courts its statutory responsibility to decide the question. In the long run, then, judicial pre-emption of the agency's rightful responsibility can only lead to the collapse of the enforcement scheme envisioned by Congress, and I fear that this case and others have carried such a *435 process well along its way. Finally, there is the very important consideration of judicial economy and the prevention of premature and unnecessary lawsuits, particularly at this time when the courts are overrun with litigants on every subject. If courts are permitted to consider the identical questions pending before HEW for its determination, inevitably they will hand down a large number of decisions that could have been mooted if only they had postponed deciding the issues until the administrative proceedings were completed. For all these reasons I would go one step further than the Court of Appeals majority and hold that all judicial examinations of alleged conflicts between state and federal AFDC programs prior to a final HEW decision approving or disapproving the state plan are fundamentally inconsistent with the enforcement scheme created by Congress and hence such suits should be completely precluded. This preclusion of judicial action does not, of course, necessarily mean that the individual welfare recipient has no legal remedies. The precise questions of when and under what circumstances individual welfare recipients can properly seek federal judicial review are not before the Court, however, and I express no views about those issues.[2] |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | This case raises a question that I believe neither the plurality nor the dissent answers adequately: How does the Confrontation Clause apply to the panoply of crime laboratory reports and underlying technical statements written by (or otherwise made by) laboratory technicians? In this context, what, if any, are the outer limits of the “testimonial statements” rule set forth in v. Washington, ? Because I believe the question difficult, import, and not squarely addressed either today or in our earlier opinions, and because I believe additional briefing would help us find a proper, generally applicable answer, I would set this case for reargument. In the absence of doing so, I adhere to the dissenting views set forth in and v. New Mexico, 564 U.S. (2011). I also join the plurality’s opinion. I A This case is another in our series involving the inter- section of the Confrontation Clause and expert testimony. Before trial, the prosecution’s expert, Sandra Lambatos, received a copy of a report prepared by Cellmark Diagnos- tics Laboratory. That report reflected the fact that Cellmark technicians had received material from a vaginal 2 WILLIAMS v. ILLINOIS BREYER, J., concurring swab taken from the crime victim, had identified semen in that material, and had derived a profile of the male DNA that the semen contained. Lambatos then entered that profile into an Illinois State Police Crime Laboratory computerized database, which contained, among many other DNA profiles, a profile derived by the crime labora- tory from Williams’ blood (taken at an earlier time). The computer she was using showed that the two profiles matched. Lambatos then confirmed the match. Later, Lambatos testified at trial, where the prosecutor asked her three relev questions. First, the prosecutor asked whether there was “a computer match generated of the male DNA profile [derived by Cellmark] found in [the] semen from the vaginal swabs to [the] male DNA profile [found in the database] that had been identified as having originated from Sandy Williams”? App. 56. Since the computer had shown such a match, Lambatos an- swered affirmatively. Second, the prosecutor asked whether Lambatos had in- dependently “compare[d the DNA profile that Cellmark had derived from] the semen that had been identified from the vaginal swabs of [the victim] to the male DNA profile [found in the database] that had been [derived] from the blood of Sandy Williams.” Lambatos again answered affirmatively. Third, the prosecutor asked whether, in Lambatos’ ex- pert opinion, the DNA profile derived from the semen identified in the vaginal swabs of the victim was “a match to Sandy Williams.” Lambatos again answered affirmatively. |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | was “a match to Sandy Williams.” Lambatos again answered affirmatively. The Confrontation Clause problem lies in the fact that Lambatos did not have personal knowledge that the male DNA profile that Cellmark said was derived from the crime victim’s vaginal swab sample was in fact correctly derived from that sample. And no Cellmark expert testi- fied that it was true. Rather, she simply relied for her Cite as: 567 U. S. (2012) 3 BREYER, J., concurring knowledge of the fact upon Cellmark’s report. And the defend Williams had no opportunity to cross-examine the individual or individuals who produced that report. In its first conclusion, the plurality explains why it finds that admission of Lambatos’ testimony nonetheless did not violate the Confrontation Clause. That Clause concerns out-of-court statements admitted for their truth. Ante, at 15–16. Lambatos’ testimony did not introduce the Cellmark report (which other circumstial evidence supported) for its truth. Ante, at 16–21. Rather, Lam- batos used the Cellmark report only to indicate the under- lying factual information upon which she based her independent expert opinion. Under well-established principles of evidence, experts may rely on otherwise inadmissible out-of-court statements as a basis for forming an expert opinion if they are of a kind that experts in the field normally rely upon. See Fed. Rule Evid. 703; Ill. Rule Evid. 703. Nor need the prosecution enter those out- of-court statements into evidence for their truth. That, the Illinois courts held, is just what took place here. Ante, at 9–10. The dissent would abandon this well-established rule. It would not permit Lambatos to offer an expert opinion in reliance on the Cellmark report unless the prosecution also produces one or more experts who wrote or otherwise produced the report. I am willing to accept the dissent’s characterization of the present rule as artificial, see post, at 15–17 (opinion of KAGAN, J.), but I am not certain that the dissent has produced a workable alternative, see at (KENNEDY, J., dissenting) (slip op., at 7) (expressing similar view). Once one abandons the traditional rule, there would seem often to be no logical stopping place between requir- ing the prosecution to call as a witness one of the labora- tory experts who worked on the matter and requiring the prosecution to call all of the laboratory experts who did so. 4 WILLIAMS v. ILLINOIS BREYER, J., concurring Experts—especially laboratory experts—regularly rely on the technical statements and results of other experts to form their own opinions. The reality of the matter is that the introduction of a laboratory report involves layer upon layer of technical statements |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | a laboratory report involves layer upon layer of technical statements (express or implied) made by one expert and relied upon by another. Hence my general question: How does the Confrontation Clause apply to crime laboratory reports and underlying technical state- ments made by laboratory technicians? B The general question is not easy to answer. The Cali- fornia case described at the outset of the dissenting opin- ion helps to illustrate the difficulty. In that example, Cellmark, the very laboratory involved in this case, tested a DNA sample taken from the crime scene. A laboratory analyst, relying upon a report the laboratory had prepared, initially stated (at a pretrial hearing about admissibil- ity) that the laboratory had found that the crime-scene DNA sample matched a sample of the defend’s DNA. But during the hearing and after reviewing the labor- atory’s notes, the laboratory analyst realized that the written report was mistaken. In fact, the testing showed only that the crime-scene DNA matched a sample of the victim’s DNA, not the defend’s DNA. At some point during the writing of the report, someone, perhaps the testifying analyst herself, must have misread the proper original sample labeling. Upon discovering the error, the analyst corrected her testimony. The example is useful, not simply because as adapted it might show the importance of cross-examination (an importance no one doubts), but also because it can reveal the nature of the more general question before us. When the laboratory in the example received the DNA samples, it labeled them properly. The laboratory’s final report mixed up the labels. Any one of many different techni- Cite as: 567 U. S. (2012) 5 BREYER, J., concurring cians could be responsible for an error like that. And the testifying analyst might not have reviewed the underlying notes and caught the error during direct examination (or for that matter, during cross-examination). Adapting the example slightly, assume that the admis- sibility of the initial laboratory report into trial had been directly at issue. Who should the prosecution have had to call to testify? Only the analyst who signed the report noting the match? What if the analyst who made the match knew nothing about either the laboratory’s underly- ing procedures or the specific tests run in the particular case? Should the prosecution then have had to call all potentially involved laboratory technicians to testify? Six to twelve or more technicians could have been involved. (See Appendix, infra, which lists typically relev labora- tory procedures.) Some or all of the words spoken or written by each technician out of court might well have |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | written by each technician out of court might well have constituted relev statements offered for their truth and reasonably relied on by a supervisor or analyst writing the laboratory report. Indeed, petitioner’s amici argue that the technicians at each stage of the process should be subject to cross-examination. See Brief for Innocence Network as Amicus Curiae 13–23 (hereinafter Innocence Network Brief). And as is true of many hearsay statements that fall within any of the 20 or more hearsay exceptions, cross- examination could sometimes significly help to elicit the truth. See Fed. Rule Evid. 803 (listing 24 hearsay exceptions). The Confrontation Clause as interpreted in recognizes, as a limitation upon a pure “testi- monial statement” requirement, circumstances where the defend had an adequate “prior opportunity to cross- ” To what extent might the “testimonial statements” requirement embody one or more (or modified versions) of these traditional hearsay excep- tions as well? 6 WILLIAMS v. ILLINOIS BREYER, J., concurring Lower courts and treatise writers have recognized the problem. And they have come up with a variety of solu- tions. The New Wigmore, for example, lists several non- exclusive approaches to when testifying experts may rely on testing results or reports by nontestifying experts (i.e., DNA technicians or analysts), including: (1) “the domin approach,” which is simply to determine the need to testify by looking “the quality of the nontestifying expert’s report, the testifying expert’s involvement in the process, and the consequent ability of the testifying expert to use inde- pendent judgment and interpretive skill”; (2) permitting “a substitute expert to testify about forensic science results only when the first expert is unavailable” (irrespective of the lack of opportunity to cross-examine the first expert, cf. ); (3) permitting “a substitute expert” to testify if “the original test was documented in a thorough way that permits the substitute expert to evalu- ate, assess, and interpret it”; (4) permitting a DNA analyst to introduce DNA test results at trial without having “personally perform[ed] every specific aspect of each DNA test in question, provided the analyst was present during the critical stages of the test, is familiar with the process and the laboratory protocol involved, reviews the results in proximity to the test, and either initials or signs the final report outlining the results”; (5) permitting the in- troduction of a crime laboratory DNA report without the testimony of a technician where the “testing in its pre- liminary stages” only “requires the technician simply to perform largely mechanical or ministerial tasks absent some reason to believe there was error or falsification”; and (6) permitting introduction |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | believe there was error or falsification”; and (6) permitting introduction of the report without requiring the technicians to testify where there is a show- ing of “genuine unavailability.” See D. Kaye, D. Bern- stein, & J. Mnookin, The New Wigmore: Expert Evidence, 4.10.3, pp. 202, 204, 206 (2d ed. 2010) (internal quotation marks and footnote omitted); at 24 Cite as: 567 U. S. (2012) 7 BREYER, J., concurring (Supp. 2012). Some of these approaches seem more readily compatible with than others. Some seem more easily con- sidered by a rules committee (or by state courts) than by this Court. Nonetheless, all assume some kind of Craw- ford boundary—some kind of limitation upon the scope of its application—though they reflect different views as to just how and when that might be done. Answering the underlying general question just dis- cussed, and doing so soon, is import. Trial judges in both federal and state courts apply and interpret hearsay rules as part of their daily trial work. The trial of criminal cases makes up a large portion of that work. And labora- tory reports frequently constitute a portion of the evidence in ordinary criminal trials. Obviously, judges, prosecu- tors, and defense lawyers have to know, in as definitive a form as possible, what the Constitution requires so that they can try their cases accordingly. The several different opinions filed today embody sev- eral serious, but different, approaches to the difficult gen- eral question. Yet none fully deals with the underlying question as to how, after Confrontation Clause “testimonial statement” requirements apply to crime lab- oratory reports. Nor can I find a general answer in or While, as a matter of pure logic, one might use those cases to answer a narrowed version of the question presented here, see post, at 7–8 (KAGAN, J., dissenting), those cases do not fully con- sider the broader evidentiary problem presented. I conse- quently find the dissent’s response, “Been there, done that,” unsatisfactory. See post, at 21. Under these circumstances, I would have this case re- argued. I would request the parties and amici to focus specifically upon the broader “limits” question. And I would permit them to discuss, not only the possible impli- cations of our earlier post- opinions, but also any 8 WILLIAMS v. ILLINOIS BREYER, J., concurring necessary modifications of statements made in the opin- ions of those earlier cases. II In the absence of reargument, I adhere to the dissenting view set forth in and under which the Cellmark report would not be considered “tes- timonial” and barred by the Confrontation Clause. See |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | considered “tes- timonial” and barred by the Confrontation Clause. See also e, at 28–33 (setting forth similar conclusion). That view understands the Confrontation Clause as interpreted in to bar the admission of “[t]estimonial” state- ments made out of court unless the declar is unavail- able and the defend had a prior opportunity to cross- It also understands the word “testimonial” as having outer limits and as describing a constitutional heartland. And that view would leave the States with constitutional leeway to maintain traditional expert testimony rules as well as hearsay exceptions where there are strong reasons for doing so and ’s basic rationale does not apply. In particular, the States could create an exception that presumptively would allow introduction of DNA reports from accredited crime laboratories. The defend would remain free to call laboratory technicians as witnesses. Were there signific reason to question a laboratory’s technical competence or its neutrality, the presumptive exception would disappear, thereby requiring the prosecu- tion to produce any relev technical witnesses. Such an exception would lie outside ’s constitutional limits. Consider the report before us. Cellmark’s DNA report embodies technical or professional data, observations, and judgments; the employees who contributed to the report’s findings were professional analysts working on technical matters at a certified laboratory; and the employees oper- ated behind a veil of ignorance that likely prevented them Cite as: 567 U. S. (2012) 9 BREYER, J., concurring from knowing the identity of the defend in this case. Statements of this kind fall within a hearsay exception that has constituted an import part of the law of evi- dence for decades. See Fed. Rule Evid. 803(6) (“Records of Regularly Conducted Activity”); 2 J. Wigmore, Evidence pp. 1878–1899 (1904) (“Regular Entries”). And for somewhat similar reasons, I believe that such statements also presumptively fall outside the category of “testimonial” statements that the Confrontation Clause makes inadmissible. As the plurality points out, e, at 28–33, the introduc- tion of statements of this kind does not risk creating the “principal evil at which the Confrontation Clause was directed.” That evil consists of the pre-Constitution practice of using “ex parte examina- tions as evidence against the accused.” Sir Walter Raleigh’s case illustrates the point. State authorities questioned Lord Cobham, the key witness against Raleigh, outside his presence. They then used those testimonial statements in court against Raleigh. And when Raleigh asked to face and to challenge his accuser, he was denied that opportunity. See The Confrontation Clause prohibits the use of this kind of evidence because allowing it would deprive a defend of the ability to cross-examine the |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | would deprive a defend of the ability to cross-examine the witness. –62; That deprivation would prevent a defend from con- fronting the witness. And it would thereby prevent a defend from probing the witness’ perception, memory, narration, and sincerity. See, e.g., 2 K. Broun et al., McCormick on Evidence p. 125 ; E. Morgan, Some Problems of Proof Under the Anglo- American System of Litigation 119–127 (1956); 30 C. Wright & K. Graham, Federal Practice and Procedure pp. 44–49 (1997); see also M. Hale, History of the Common Law of England 258 (1713) (explaining virtues of 10 WILLIAMS v. ILLINOIS BREYER, J., concurring confronting witness); 3 W. Blackstone, Commentaries on the Laws of England 373 (18) (same). But the need for cross-examination is considerably diminished when the out-of-court statement was made by an accredited labora- tory employee operating at a remove from the investiga- tion in the ordinary course of professional work. For one thing, as the hearsay exception itself reflects, alternative features of such situations help to guaree its accuracy. An accredited laboratory must satisfy well- established professional guidelines that seek to ensure the scientific reliability of the laboratory’s results. App. 59– 60, 74, 86–87; see Brief for National District Attorneys Assn. et al. as Amici Curiae 25, n. 5 (hereinafter NDAA Brief) (noting that the standards date back 30 years); Giannelli, Regulating Crime Laboratories: The Impact of DNA Evidence, 15 Johns. L. & Pol’y 59, 72– For example, forensic DNA testing laboratories permitted to access the FBI’s Combined DNA Index System must adhere to standards governing, among other things, the organization and management of the laboratory; educa- tion, training, and experience requirements for laboratory personnel; the laboratory’s physical facilities and security measures; control of physical evidence; validation of test- ing methodologies; procedures for analyzing samples, including the reagents and controls that are used in the testing process; equipment calibration and maintenance; documentation of the process used to test each sample handled by the laboratory; technical and administrative review of every case file; proficiency testing of laboratory; personnel; corrective action that addresses any discrepan- cies in proficiency tests and casework analysis; internal and external audits of the laboratory; environmental health and safety; and outsourcing of testing to vendor laboratories. See Brief for New York County District Attorney’s Office et al. as Amici Curiae 4, n. 4 (hereinafter NY County DAO Brief); see also App. to NY County DAO Cite as: 567 U. S. (2012) 11 BREYER, J., concurring Brief A22–A49. These standards are not foolproof. Nor are they always properly applied. It is not difficult to find instances in |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | properly applied. It is not difficult to find instances in which laboratory procedures have been abused. See, e.g., Innocence Network Brief 6–11; App. to Brief for Public Defender Service for the District of Columbia et al. as Amici Curiae 1a–12a; cf. Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 Va. J. Soc. Pol’y & L. 439 (1997). Moreover, DNA testing itself has exonerated some defend- s who previously had been convicted in part upon the basis of testimony by laboratory experts. See Melendez- Diaz v. ). But if accreditation did not prevent admission of faulty evidence in some of those cases, neither did cross- examination. In the wrongful-conviction cases to which this Court has previously referred, the forensic experts all testified in court and were available for cross-examination. Hearsay’s Last Hurrah, 2009 S. Ct. Rev. 1, 72– 73 (cited study “did not identify any cases in which hear- say from forensic analysts contributed to the conviction of innocent defends”); see Garrett & at 10–12, 84, 89 (noting that cross-examination was rarely effective); see also Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 785–786 (suggesting need for greater reliance upon accreditation and oversight of accredited laboratories); at 74 (same). Similarly, the role of cross-examination is ambiguous in the laboratory example that the dissent describes. See post, at 1–2. (Apparently, the report’s error came to light and was corrected after cross-examination had concluded, see Thompson, Taroni, & Aitken, Author’s Response, 49 J. Forensic Sci. 1202 (2003), and in any 12 WILLIAMS v. ILLINOIS BREYER, J., concurring event all parties had received the correctly labeled under- lying laboratory data, see Clarke, Commentary, at 1201). For another thing, the fact that the laboratory testing takes place behind a veil of ignorance makes it unlikely that a particular researcher has a defend-related mo- tive to behave dishonestly, say, to misrepresent a step in an analysis or otherwise to misreport testing results. Cf. Michigan v. 562 U.S. (2011) (slip op., at 14) (discussing the “prospect of fabrication” as a factor in whether the Confrontation Clause requires statements “to be subject to the crucible of cross-examination”). The laboratory here, for example, did not know whether its test results might help to incriminate a particular defend- Ante, at 32–33; cf. at 310–; 564 U. S., at (slip op., at 14). Further, the statements at issue, like those of many laboratory analysts, do not easily fit within the linguistic scope of the term “testimonial statement” as we have used that term in our earlier |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | statement” as we have used that term in our earlier cases. As the plurality notes, in every post- case in which the Court has found a Confrontation Clause violation, the statement at issue had the primary purpose of accusing a targeted individual. Ante, at 29–31; see, e.g., v. Washington, 547 U.S. 813, 822 (“primary purpose is to establish or prove past events potentially relev to later criminal prosecution”); at – (slip op., at 11–12) (“primary purpose of creating an out-of-court substitute for trial testimony”). The declar was essentially an adverse witness making an accusatory, testimonial state- ment—implicating the core concerns of the Lord Cobham- type affidavits. But here the DNA report sought, not to accuse petitioner, but instead to generate objectively a profile of a then-unknown suspect’s DNA from the semen he left in committing the crime. See e, at 31–33. Finally, to bar admission of the out-of-court records at Cite as: 567 U. S. (2012) 13 BREYER, J., concurring issue here could undermine, not fortify, the accuracy of factfinding at a criminal trial. Such a precedent could bar the admission of other reliable case-specific technical information such as, say, autopsy reports. Autopsies, like the DNA report in this case, are often conducted when it is not yet clear whether there is a particular suspect or whether the facts found in the autopsy will ultimately prove relev in a criminal trial. Autopsies are typically conducted soon after death. And when, say, a victim’s body has decomposed, repetition of the autopsy may not be possible. What is to happen if the medical examiner dies before trial? E.g., 195–196, ; see also Is the Confrontation Clause “ ‘effectively’ ” to function “ ‘as a statute of limitations for murder’ ”? at 335 (KENNEDY, J., dissenting) ). In general, such a holding could also increase the risk of convicting the innocent. The New York County District Attorney’s Office and the New York City Office of the Chief Medical Examiner tell us that the additional cost and complexity involved in requiring live testimony from perhaps dozens of ordinary laboratory technicians who participate in the preparation of a DNA profile may well force a laboratory “to reduce the amount of DNA testing it conducts, and force prosecutors to forgo forensic DNA analysis in cases where it might be highly probative. In the absence of DNA testing, defends might well be prosecuted solely on the basis of eyewitness testimony, the reliability of which is often questioned.” NY County DAO Brief 10 (citing United (1967)); see also NDAA Brief 26 (such a holding “will also impact the |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | NDAA Brief 26 (such a holding “will also impact the innocent who may wait to be cleared from 14 WILLIAMS v. ILLINOIS BREYER, J., concurring suspicion or exonerated from mistaken conviction”). I find this plausible. But cf. Innocence Network Brief 3. An interpretation of the Clause that risks greater prosecution reliance upon less reliable evidence cannot be sound. Cf. (“The central concern of the Confrontation Clause is to ensure the reli- ability of the evidence against a criminal defend”). Consequently, I would consider reports such as the DNA report before us presumptively to lie outside the perimeter of the Clause as established by the Court’s precedents. Such a holding leaves the defend free to call the labora- tory employee as a witness if the employee is available. Moreover, should the defend provide good reason to doubt the laboratory’s competence or the validity of its accreditation, then the alternative safeguard of reliability would no longer exist and the Constitution would entitle defend to Confrontation Clause protection. Similarly, should the defend demonstrate the existence of a mo- tive to falsify, then the alternative safeguard of honesty would no longer exist and the Constitution would entitle the defend to Confrontation Clause protection. Cf. 2 Wigmore, Evidence at 1892 (in respect to the busi- ness records exception, “there must have been no motive to misrepresent”). Thus, the defend would remain free to show the absence or inadequacy of the alternative reliability/honesty safeguards, thereby rebutting the pre- sumption and making the Confrontation Clause applicable. No one has suggested any such problem in respect to the Cellmark Report at issue here. Because the plurality’s opinion is basically consistent with the views set forth here, I join that opinion in full. Cite as: 567 U. S. (2012) 15 BREYER, J., concurring Appendix to opinion of BREYER, J. APPENDIX This appendix outlines the way that a typical modern fo- rensic laboratory conducts DNA analysis. See NY County DAO Brief 7–8; NDAA Brief 22–23; Innocence Network Brief 13–23; see also Dept. of Justice, Office of the Inspec- tor General, The FBI DNA Laboratory: A Review of Proto- col and Practice Vulnerabilities 6–14 online at http://www.justice.gov/oig/special/0405/final.pdf (as visited June 14, 2012, and available in Clerk of Court’s case file). The DNA analysis takes place in three parts, through three different sets of laboratory experts: (1) a DNA pro- file is derived from the suspect’s DNA sample, (2) a DNA profile is derived from the crime-scene DNA sample, and (3) an analyst compares the two profiles and makes a conclusion. As many as six technicians may be involved in deriving the |
Justice Breyer | 2,012 | 2 | concurring | Williams v. Illinois | https://www.courtlistener.com/opinion/802772/williams-v-illinois/ | many as six technicians may be involved in deriving the profile from the suspect’s sample; as many as six more technicians may be involved in deriving the profile from the crime-scene sample; and an additional expert may then be required for the comparative analysis, for a total of about a dozen different laboratory experts. Each expert may make technical statements (express or implied) dur- ing the DNA analysis process that are in turn relied upon by other experts. The amici dispute how many of these experts the Confrontation Clause requires to be subject to cross-examination. Compare Innocence Network Brief 13– 23 with NY County DAO Brief 7–8 and NDAA Brief 22– 23. In charting the three-step process, the appendix first summarizes the laboratory procedures used to derive a DNA profile and then illustrates potential statements that technicians may make to explain their analysis. 16 WILLIAMS v. ILLINOIS BREYER, J., concurring Appendix to opinion of BREYER, J. A. Profile of Suspect’s Sample (Summary of Lab Process) 1. Technician #1: 2. Technician #2: Evidence Examination Extraction Forensics lab receives Tech #2 extracts DNA crime-scene evidence. from cuttings or swab- Tech #1 examines the bings, i.e., adds chemi- evidence for biological cal reagents to the fluids/materials and tests sample that break open whether the results reveal the cells and free up the the presence of a biological DNA so that it is acces- sample. If present, Tech sible for testing. #1 takes cuttings or swabbings from evidence for DNA extraction. 3. Technician #3: Quification 4. Technician #4: Tech #3 measures the Amplification amount of DNA that is Tech #4 amplifies (copies) present in the sample to the extracted DNA using ensure that there is polymerase chain reaction enough DNA for testing. (PCR), i.e., uses a highly automated process to tar- get, tag, and copy specific 6. Technicians locations (loci), raising #5 and #6: Report them to a detectable level. Techs #5 and #6 use software to determine allele calls (i.e., length) and produce a 5. Technicians #5 and #6: report. The software Electrophoresis measures the length of the DNA fragments produced by electro- phoresis, determines the alleles that corre- spond to the frag- ments, and compiles a DNA profile for the sample. The Techs record what the allele values are at each loci analyzed, which, once compiled, constitute a DNA profile. Cite as: 567 U. S. (2012) 17 BREYER, J., concurring Appendix to opinion of BREYER, J. B. Profile of Crime-Scene Sample (Examples of Statements) 7. Technician #7: 8. Technician #8: Evidence Examination Extraction “The crime-scene evidence “I used the proper was submitted |
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