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Justice White
| 1,977 | 6 |
majority
|
United States v. New York Telephone Co.
|
https://www.courtlistener.com/opinion/109755/united-states-v-new-york-telephone-co/
|
the burden involved and pose a severe threat to the autonomy of third parties who for whatever reason prefer not to render such assistance. Consequently the Court of Appeals concluded that courts should not *172 embark upon such a course without specific legislative authorization. We agree that the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed. We conclude, however, that the order issued here against respondent was clearly authorized by the All Writs Act and was consistent with the intent of Congress.[19] The All Writs Act provides: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S. C. 151 (a). The assistance of the Company was required here to implement a pen register order which we have held the District Court was empowered to issue by Rule 41. This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained: "This statute has served since its inclusion, in substance, in the original Judiciary Act as a `legislatively approved source of procedural instruments designed to achieve "the rational ends of law." ' " quoting Indeed, "[u]nless appropriately confined by *17 Congress, a federal court may avail itself of all auxiliary writs as aids in the performance of its duties, when the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it." The Court has consistently applied the Act flexibly in conformity with these principles. Although 22 of the Judicial Code, the predecessor to 151, did not expressly authorize courts, as does 151, to issue writs "appropriate" to the proper exercise of their jurisdiction but only "necessary" writs, Adams held that these supplemental powers are not limited to those situations where it is "necessary" to issue the writ or order "in the sense that the court could not otherwise physically discharge its duties." 17 U.S., at In 22 supplied the authority for a United States Court of Appeals to issue an order commanding that a prisoner be brought before the court for the purpose of arguing his own appeal. Similarly, in order to avoid frustrating the "very purpose" of 28 U.S. C. 2255, 151 furnished the District Court with authority to order
|
Justice White
| 1,977 | 6 |
majority
|
United States v. New York Telephone Co.
|
https://www.courtlistener.com/opinion/109755/united-states-v-new-york-telephone-co/
|
2255, 151 furnished the District Court with authority to order that a federal prisoner be produced in court for purposes of a hearing. United The question in was whether, despite the absence of specific statutory authority, the District Court could issue a discovery order in connection with a habeas corpus proceeding pending before it. Eight Justices agreed that the district courts have power to require discovery when essential to render a habeas corpus proceeding effective. The Court has also held that despite the absence of express statutory authority to do so, the Federal Trade Commission may petition for, and a Court of Appeals may issue, pursuant to 151, an order preventing a merger pending hearings before the Commission to avoid impairing or frustrating the Court of Appeals' jurisdiction. *174 The power conferred by the Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, Mississippi Valley Barge Line F. Supp. 1, summarily aff'd, (198); Board of 429 F.2d cert. denied, and encompasses even those who have not taken any affirmative action to hinder justice. United 19 F. 58 ; 95-9 (CA2), cert. denied,[20] Turning to the facts of this case, we do not think that the Company was a third party so far removed from the underlying controversy that its assistance could not be permissibly compelled. A United States District Court found that there was probable cause to believe that the Company's facilities were being employed to facilitate a criminal enterprise on a continuing basis. For the Company, with this knowledge, to refuse to supply the meager assistance required by the FBI in its efforts to put an end to this venture threatened obstruction of an investigation which would determine whether the Company's facilities were being lawfully used. Moreover, it can hardly be contended that the Company, a highly regulated public utility with a duty to serve the public,[21] had a substantial interest in not providing assistance. Certainly the use of pen registers is by no means offensive to it. The Company concedes that it regularly employs such devices without court order for the purposes of checking billing operations, detecting fraud, and *175 preventing violations of law.[22] It also agreed to supply the FBI with all the information required to install its own pen registers. Nor was the District Court's order in any way burdensome. The order provided that the Company be fully reimbursed at prevailing rates, and compliance with it required minimal
|
Justice White
| 1,977 | 6 |
majority
|
United States v. New York Telephone Co.
|
https://www.courtlistener.com/opinion/109755/united-states-v-new-york-telephone-co/
|
reimbursed at prevailing rates, and compliance with it required minimal effort on the part of the Company and no disruption to its operations. Finally, we note, as the Court of Appeals recognized, that without the Company's assistance there is no conceivable way in which the surveillance authorized by the District Court could have been successfully accomplished.[2] The FBI, after an exhaustive search, was unable to find a location where it could install its own pen registers without tipping off the targets of the investigation. The provision of a leased line by the Company was essential to the fulfillment of the purpose to learn the identities of those connected with the gambling operationfor which the pen register order had been issued.[24] *17 The order compelling the Company to provide assistance was not only consistent with the Act but also with more recent congressional actions. As established in Part Congress clearly intended to permit the use of pen registers by federal law enforcement officials. Without the assistance of the Company in circumstances such as those presented here, however, these devices simply cannot be effectively employed. Moreover, Congress provided in a amendment to Title I that "[a]n order authorizing the interception of a wire or oral communication shall, upon request of the applicant, direct that a communication common carrier shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively." 18 U.S. C. 2518 (4). In light of this direct *177 command to federal courts to compel, upon request, any assistance necessary to accomplish an electronic interception, it would be remarkable if Congress thought it beyond the power of the federal courts to exercise, where required, a discretionary authority to order telephone companies to assist in the installation and operation of pen registers, which accomplish a far lesser invasion of privacy.[25] We are convinced that *178 to prohibit the order challenged here would frustrate the clear indication by Congress that the pen register is a permissible law enforcement tool by enabling a public utility to thwart a judicial determination that its use is required to apprehend and prosecute successfully those employing the utility's facilities to conduct a criminal venture. The contrary judgment of the Court of Appeals is accordingly reversed. So ordered. MR. JUSTICE STEWART, concurring in part and dissenting in part. I agree that the use of pen registers is not governed by the requirements of Title I and that the District Court had authority to issue the order authorizing installation of the pen register, and so join Parts I, and I of the Court's opinion.
|
Justice White
| 1,977 | 6 |
majority
|
United States v. New York Telephone Co.
|
https://www.courtlistener.com/opinion/109755/united-states-v-new-york-telephone-co/
|
so join Parts I, and I of the Court's opinion. However, I agree with MR. JUSTICE STEVENS that the District Court lacked power to order the telephone company to assist the Government in installing the pen register, and thus join Part of his dissenting opinion. MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting in part. Today's decision appears to present no radical departure from this Court's prior holdings. It builds upon previous intimations that a federal district court's power to issue a search warrant under Fed. Rule Crim. Proc. 41 is a flexible one, not strictly restrained by statutory authorization, and it applies the same flexible analysis to the All Writs Act, 28 U.S. C. 151 (a). But for one who thinks of federal courts as courts of limited jurisdiction, the Court's decision is difficult *179 to accept. The principle of limited federal jurisdiction is fundamental; never is it more important than when a federal court purports to authorize and implement the secret invasion of an individual's privacy. Yet that principle was entirely ignored on March 19 and April 2, when the District Court granted the Government's application for permission to engage in surveillance by means of a pen register, and ordered the respondent to cooperate in the covert operation. Congress has not given the federal district courts the power either to authorize the use of a pen register, or to require private parties to assist in carrying out such surveillance. Those defects cannot be remedied by a patchwork interpretation of Rule 41 which regards the Rule as applicable as a grant of authority, but inapplicable insofar as it limits the exercise of such authority. Nor can they be corrected by reading the All Writs Act as though it gave federal judges the wide-ranging powers of an ombudsman. The Court's decision may be motivated by a belief that Congress would, if the question were presented to it, authorize both the pen register order and the order directed to the Telephone Company.[1] But the history and consistent interpretation of the federal court's power to issue search warrants conclusively show that, in these areas, the Court's rush to achieve a logical result must await congressional deliberation. From the beginning of our Nation's history, we have sought to prevent the accretion of arbitrary police powers in the federal courts; that accretion is no less dangerous and unprecedented because the first step appears to be only minimally intrusive. I Beginning with the Act of July 1, 1789, 4, and concluding with the Omnibus Crime Control and Safe Streets
|
Justice White
| 1,977 | 6 |
majority
|
United States v. New York Telephone Co.
|
https://www.courtlistener.com/opinion/109755/united-states-v-new-york-telephone-co/
|
and concluding with the Omnibus Crime Control and Safe Streets Act of 198, 219, 28, Congress has enacted a *180 series of over 5 different statutes granting federal judges the power to issue search warrants of one form or another. These statutes have one characteristic in common: they are specific in their grants of authority and in their inclusion of limitations on either the places to be searched, the objects of the search, or the requirements for the issuance of a warrant.[2] This is not a random coincidence; it is a reflection of a concern deeply imbedded in our revolutionary history for the abuses that attend any broad delegation of power to issue search warrants. In the colonial period, the oppressive British practice of allowing courts to issue "general warrants" or "writs of assistance"[] was one of the major catalysts of the struggle for independence.[4] After independence, one of the first state constitutions expressly provided that "no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws."[5] This same principle motivated the adoption of *181 the Fourth Amendment and the contemporaneous, specific legislation limiting judicial authority to issue search warrants.[] It is unnecessary to develop this historical and legislative background at any great length, for even the rough contours make it abundantly clear that federal judges were not intended to have any roving commission to issue search warrants. Quite properly, therefore, the Court today avoids the error committed by the Courts of Appeals which have held that a district court has "inherent power" to authorize the installation of a pen register on a private telephone line.[7] Federal courts have no such inherent power.[8] *182 While the Court's decision eschews the notion of inherent power, its holding that Fed. Rule Crim. Proc. 41 authorizes the District Court's pen register order is equally at odds with the 200-year history of search warrants in this country and ignores the plain meaning and legislative history of the very Rule on which it relies. Under the Court's reading of the Rule, the definition of the term "property" in the Rule places no limits on the objects of a proper search and seizure, but is merely illustrative. Ante, at 19. The Court treats Rule 41 as though it were a general authorization for district courts to issue any warrants not otherwise prohibited. Ante, at 170. This is a startling approach. On its face, the Rule grants no such open-ended authority. Instead, it follows in the steps of the dozens of enactments that preceded it: It limits the nature of the
|
Justice White
| 1,977 | 6 |
majority
|
United States v. New York Telephone Co.
|
https://www.courtlistener.com/opinion/109755/united-states-v-new-york-telephone-co/
|
enactments that preceded it: It limits the nature of the property that may be seized and the circumstances under which a valid warrant may be obtained. The continuing force of these limitations is demonstrated by the congressional actions which compose the Omnibus Crime Control and Safe Streets Act of 198. In Title I of that Act, Congress legislated comprehensively on the subject of wiretapping and electronic surveillance. Specifically, Congress granted federal judges the power to authorize electronic surveillance under certain carefully defined circumstances. As the Court demonstrates in Part of its opinion (which I join), the installation of pen register devices is not encompassed within that authority. What the majority opinion fails to point out, however, is that in Title IX of that same Act, Congress enacted another, distinct provision extending the power of federal judges to issue search *18 warrants. That statute, which formed the basis of the amendment to Rule 41, authorized the issuance of search warrants for an additional class of property, namely, "property that constitutes evidence of a criminal offense in violation of the laws of the United States." 18 U.S. C. 10a. In order to understand this provision, it must be remembered that, prior to 197, "mere evidence" could not be the subject of a constitutionally valid seizure. In this Court removed the constitutional objection to mere-evidence seizures. Title IX was considered necessary because, after there existed a category of propertymere evidencewhich could be the subject of a valid seizure incident to an arrest, but which could not be seized pursuant to a warrant. The reason mere evidence could not be seized pursuant to a warrant was that, as Congress recognized, Rule 41 did not authorize warrants for evidence.[9] Title IX was enacted to fill this gap in the law.[10] *184 Two conclusions follow ineluctably from the congressional enactment of Title IX. First, Rule 41 was never intended to be a general authorization to issue any warrant not otherwise prohibited by the Fourth Amendment. If it had been, Congress would not have perceived a need to enact Title IX, since constitutional law, as it stood in 198, did not prohibit the issuance of warrants for evidence.[11] Second, the enactment of Title IX disproves the theory that the definition of "property" in Rule 41 (h) is only illustrative. This suggestion was first put forward by the Court in The issue was not briefed in Katz, but the Court, in dicta, indicated that Rule 41 was not confined to tangible property. Whatever the merits of that suggestion in 197, it has absolutely no force at this time.
|
Justice White
| 1,977 | 6 |
majority
|
United States v. New York Telephone Co.
|
https://www.courtlistener.com/opinion/109755/united-states-v-new-york-telephone-co/
|
in 197, it has absolutely no force at this time. In 198 Congress comprehensively dealt with the issue of electronic searches in Title I. In the same Act, it provided authority for expanding the scope of property covered under Rule 41. But the definition of property in the Rule has never changed. Each item listed is tangible,[12] and the final reference to "and any other tangible items" surely must now be read as describing the outer limits of the included category.[1] It strains *185 credulity to suggest that Congress, having carefully circumscribed the use of electronic surveillance in Title I, would then, in Title IX, expand judicial authority to issue warrants for the electronic seizure of "intangibles" without the safeguards of Title I.[14] In fact, the safeguards contained in Rule 41 make it absurd to suppose that its draftsmen thought they were authorizing any form of electronic surveillance. The paragraphs relating to issuance of the warrant, Rule 41 (c), the preparation of an inventory of property in the presence of the person whose property has been taken, Rule 41 (d), and the motion for a return of property, Rule 41 (e), are almost meaningless if read as relating to electronic surveillance of any kind. To reach its result in this case, the Court has had to overlook *18 the Rule's specific language, its specific safeguards, and its legislative background. This is an extraordinary judicial effort in such a sensitive area, and I can only regard it as most unwise. It may be that a pen register is less intrusive than other forms of electronic surveillance. Congress evidently thought so. See S. Rep. No. 90th Cong., 2d Sess., 90 (198). But the Court should not try to leap from that assumption to the conclusion that the District Court's order here is covered by Rule 41. As I view this case, it is immaterial whether or not the attachment of a pen register to a private telephone line is a violation of the Fourth Amendment. If, on the one hand, the individual's privacy interest is not constitutionally protected, judicial intervention is both unnecessary and unauthorized. If, on the other hand, the constitutional protection is applicable, the focus of inquiry should not be whether Congress has prohibited the intrusion, but whether Congress has expressly authorized it, and no such authorization can be drawn from Rule 41. On either hypothesis, the order entered by the District Court on March 19, authorizing the installation of a pen register, was a nullity. It cannot, therefore, support the further order requiring the New York Telephone Company to
|
Justice White
| 1,977 | 6 |
majority
|
United States v. New York Telephone Co.
|
https://www.courtlistener.com/opinion/109755/united-states-v-new-york-telephone-co/
|
the further order requiring the New York Telephone Company to aid in the installation of the device. Even if I were to assume that the pen register order in this case was valid, I could not accept the Court's conclusion that the District Court had the power under the All Writs Act, 28 U.S. C. 151 (a), to require the New York Telephone Company to assist in its installation. This conclusion is unsupported by the history, the language, or previous judicial interpretations of the Act. The All Writs Act was originally enacted, in part, as 14 of the Judiciary Act of 1789,[15] The Act was, and *187 is, necessary because federal courts are courts of limited jurisdiction having only those powers expressly granted by Congress,[1] and the statute provides these courts with the procedural toolsthe various historic common-law writs necessary for them to exercise their limited jurisdiction.[17] The statute does not contain, and has never before been interpreted as containing, the open-ended grant of authority to federal courts that today's decision purports to uncover. Instead, in the language of the statute itself, there are two fundamental limitations on its scope. The purpose of any order authorized by the Act must be to aid the court in the exercise of its jurisdiction;[18] and the means selected must be analogous to a common-law writ. The Court's opinion ignores both limitations. *188 The Court starts from the premise that a district court may issue a writ under the Act "to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained." Ante, at 172. As stated, this premise is neither objectionable nor remarkable and conforms to the principle that the Act was intended to aid the court in the exercise of its jurisdiction. Clearly, if parties were free to ignore a court judgment or order, the court's ability to perform its duties would be undermined. And the court's power to issue an order requiring a party to carry out the terms of the original judgment is well settled. See The courts have also recognized, however, that this power is subject to certain restraints. For instance, the relief granted by the writ may not be "of a different kind" or "on a different principle" from that accorded by the underlying order or judgment. See[19] *189 More significantly, the courts have consistently recognized and applied the limitation that whatever action the court takes must be in aid of its duties and its jurisdiction.[20] The fact that a party may be better able to effectuate its rights or duties
|
Justice White
| 1,977 | 6 |
majority
|
United States v. New York Telephone Co.
|
https://www.courtlistener.com/opinion/109755/united-states-v-new-york-telephone-co/
|
may be better able to effectuate its rights or duties if a writ is issued never has been, and under the language of the statute cannot be, a sufficient basis for issuance of the writ. See 415 U.S. 1; Commercial Security 45 F.2d 152 ; J. Moore, B. Ward, & J. Lucas, 9 Moore's Federal Practice ¶ 110.29 (1975). Nowhere in the Court's decision or in the decisions of the lower courts is there the slightest indication of why a writ is necessary or appropriate in this case to aid the District Court's jurisdiction. According to the Court, the writ is necessary because the Company's refusal "threatened obstruction *190 of an investigation" Ante, at 174. Concededly, citizen cooperation is always a desired element in any government investigation, and lack of cooperation may thwart such an investigation, even though it is legitimate and judicially sanctioned.[21] But unless the Court is of the opinion that the District Court's interest in its jurisdiction was coextensive with the Government's interest in a successful investigation, there is simply no basis for concluding that the inability of the Government to achieve the purposes for which it obtained the pen register order in any way detracted from or threatened the District Court's jurisdiction. Plainly, the District Court's jurisdiction does not ride on the Government's shoulders until successful completion of an electronic surveillance. If the All Writs Act confers authority to order persons to aid the Government in the performance of its duties, and is no longer to be confined to orders which must be entered to enable the court to carry out its functions, it provides a sweeping grant of authority entirely without precedent in our Nation's history. Of course, there is precedent for such authority in the common lawthe writ of assistance. The use of that writ by the judges appointed by King George I was one British practice that the Revolution was specifically intended to terminate. See n. I can understand why the Court today does not seek to support its holding by reference to that writ, but I cannot understand its disregard of the statutory requirement that the writ be "agreeable to the usages and principles of law." *191 I The order directed against the Company in this case is not particularly offensive. Indeed, the Company probably welcomes its defeat since it will make a normal profit out of compliance with orders of this kind in the future. Nevertheless, the order is deeply troubling as a portent of the powers that future courts may find lurking in the arcane language of Rule 41 and
|
Justice Stevens
| 1,990 | 16 |
second_dissenting
|
Cruzan v. Director, Mo. Dept. of Health
|
https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/
|
Our Constitution is born of the proposition that all legitimate governments must secure the equal right of every person to "Life, Liberty, and the pursuit of Happiness."[1] In the ordinary case we quite naturally assume that these three *331 ends are compatible, mutually enhancing, and perhaps even coincident. The Court would make an exception here. It permits the State's abstract, undifferentiated interest in the preservation of life to overwhelm the best interests of Nancy Beth Cruzan, interests which would, according to an undisputed finding, be served by allowing her guardians to exercise her constitutional right to discontinue medical treatment. Ironically, the Court reaches this conclusion despite endorsing three significant propositions which should save it from any such dilemma. First, a competent individual's decision to refuse life-sustaining medical procedures is an aspect of liberty protected by the Due Process Clause of the Fourteenth Amendment. See ante, at 278-279. Second, upon a proper evidentiary showing, a qualified guardian may make that decision on behalf of an incompetent ward. See, e. g., ante, at 284-285. Third, in answering the important question presented by this tragic case, it is wise "`not to attempt, by any general statement, to cover every possible phase of the subject.'" See ante, at 278 (citation omitted). Together, these considerations suggest that Nancy Cruzan's liberty to be free from medical treatment must be understood in light of the facts and circumstances particular to her. I would so hold: In my view, the Constitution requires the State to care for Nancy Cruzan's life in a way that gives appropriate respect to her own best interests. I This case is the first in which we consider whether, and how, the Constitution protects the liberty of seriously ill patients to be free from life-sustaining medical treatment. So put, the question is both general and profound. We need not, however, resolve the question in the abstract. Our responsibility as judges both enables and compels us to treat the problem as it is illuminated by the facts of the controversy before us. *332 The most important of those facts are these: "Clear and convincing evidence" established that Nancy Cruzan is "oblivious to her environment except for reflexive responses to sound and perhaps to painful stimuli"; that "she has no cognitive or reflexive ability to swallow food or water"; that "she will never recover" these abilities; and that her "cerebral cortical atrophy is irreversible, permanent, progressive and ongoing." App. to Pet. for Cert. A94-A95. Recovery and consciousness are impossible; the highest cognitive brain function that can be hoped for is a grimace in "recognition of ordinarily
|
Justice Stevens
| 1,990 | 16 |
second_dissenting
|
Cruzan v. Director, Mo. Dept. of Health
|
https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/
|
be hoped for is a grimace in "recognition of ordinarily painful stimuli" or an "apparent response to sound." at A95.[2] After thus evaluating Nancy Cruzan's medical condition, the trial judge next examined how the interests of third parties would be affected if Nancy's parents were allowed to withdraw the gastrostomy tube that had been implanted in *333 their daughter. His findings make it clear that the parents' request had no economic motivation,[3] and that granting their request would neither adversely affect any innocent third parties nor breach the ethical standards of the medical profession.[4] He then considered, and rejected, a religious objection to his decision,[5] and explained why he concluded that the ward's constitutional "right to liberty" outweighed the general public policy on which the State relied: "There is a fundamental natural right expressed in our Constitution as the `right to liberty,' which permits an individual to refuse or direct the withholding or withdrawal of artificial death prolonging procedures when the person has no more cognitive brain function than our Ward and all the physicians agree there is no hope of further recovery while the deterioration of the brain continues with further overall worsening physical contractures. To the extent that the statute or public policy prohibits withholding or withdrawal of nutrition and hydration or euthanasia or mercy killing, if such be the definition, under all circumstances, arbitrarily and with no exceptions, it is in violation of our ward's constitutional rights by depriving her of liberty without due process of *334 law. To decide otherwise that medical treatment once undertaken must be continued irrespective of its lack of success or benefit to the patient in effect gives one's body to medical science without their [sic] consent. "The Co-guardians are required only to exercise their legal authority to act in the best interests of their Ward as they discharge their duty and are free to act or not with this authority as they may determine." at A98-A99 (footnotes omitted). II Because he believed he had a duty to do so, the independent guardian ad litem appealed the trial court's order to the Missouri Supreme Court. In that appeal, however, the guardian advised the court that he did not disagree with the trial court's decision. Specifically, he endorsed the critical finding that "it was in Nancy Cruzan's best interests to have the tube feeding discontinued."[6] That important conclusion thus was not disputed by the litigants. One might reasonably suppose that it would be dispositive: If Nancy Cruzan has no interest in continued treatment, and if she has a liberty interest in being free
|
Justice Stevens
| 1,990 | 16 |
second_dissenting
|
Cruzan v. Director, Mo. Dept. of Health
|
https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/
|
and if she has a liberty interest in being free from unwanted treatment, and if the cessation of treatment would have no adverse impact on third parties, and if no reason exists to doubt the good faith of Nancy's parents, then what possible basis could the State have for insisting upon continued medical treatment? Yet, instead of questioning or endorsing the trial court's conclusions about Nancy Cruzan's interests, the State Supreme Court largely ignored them. *335 The opinion of that court referred to four different state interests that have been identified in other somewhat similar cases, but acknowledged that only the State's general interest in "the preservation of life" was implicated by this case.[7] It defined that interest as follows: "The state's interest in life embraces two separate concerns: an interest in the prolongation of the life of the individual patient and an interest in the sanctity of life itself." Although the court did not characterize this interest as absolute, it repeatedly indicated that it outweighs any countervailing interest that is based on the "quality of life" of any individual patient.[8] In the view of the state-court majority, *336 that general interest is strong enough to foreclose any decision to refuse treatment for an incompetent person unless that person had previously evidenced, in a clear and convincing terms, such a decision for herself. The best interests of the incompetent individual who had never confronted the issueor perhaps had been incompetent since birthare entirely irrelevant and unprotected under the reasoning of the State Supreme Court's four-judge majority. The three dissenting judges found Nancy Cruzan's interests compelling. They agreed with the trial court's evaluation of state policy. In his persuasive dissent, Judge Blackmar explained that decisions about the care of chronically ill patients were traditionally private: "My disagreement with the principal opinion lies fundamentally in its emphasis on the interest of and the role of the state, represented by the Attorney General. Decisions about prolongation of life are of recent origin. For most of the world's history, and presently in most parts of the world, such decisions would never arise because the technology would not be available. Decisions about medical treatment have customarily been made by the patient, or by those closest to the patient if the patient, because of youth or infirmity, is unable to make the decisions. This is nothing new in substituted decisionmaking. The state is seldom called upon to be the decisionmaker. "I would not accept the assumption, inherent in the principal opinion, that, with our advanced technology, the state must necessarily become involved in a decision about
|
Justice Stevens
| 1,990 | 16 |
second_dissenting
|
Cruzan v. Director, Mo. Dept. of Health
|
https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/
|
the state must necessarily become involved in a decision about using extraordinary measures to prolong life. Decisions of this kind are made daily by the patient or relatives, on the basis of medical advice and their conclusion as to what is best. Very few cases reach court, and * I doubt whether this case would be before us but for the fact that Nancy lies in a state hospital. I do not place primary emphasis on the patient's expressions, except possibly in the very unusual case, of which I find no example in the books, in which the patient expresses a view that all available life supports should be made use of. Those closest to the patient are best positioned to make judgments about the patient's best interest." Judge Blackmar then argued that Missouri's policy imposed upon dying individuals and their families a controversial and objectionable view of life's meaning: "It is unrealistic to say that the preservation of life is an absolute, without regard to the quality of life. I make this statement only in the context of a case in which the trial judge has found that there is no chance for amelioration of Nancy's condition. The principal opinion accepts this conclusion. It is appropriate to consider the quality of life in making decisions about the extraordinary medical treatment. Those who have made decisions about such matters without resort to the courts certainly consider the quality of life, and balance this against the unpleasant consequences to the patient. There is evidence that Nancy may react to pain stimuli. If she has any awareness of her surroundings, her life must be a living hell. She is unable to express herself or to do anything at all to alter her situation. Her parents, who are her closest relatives, are best able to feel for her and to decide what is best for her. The state should not substitute its decisions for theirs. Nor am I impressed with the crypto-philosophers cited in the principal opinion, who declaim about the sanctity of any life without regard to its quality. They dwell in ivory towers." *338 Finally, Judge Blackmar concluded that the Missouri policy was illegitimate because it treats life as a theoretical abstraction, severed from, and indeed opposed to, the person of Nancy Cruzan. "The Cruzan family appropriately came before the court seeking relief. The circuit judge properly found the facts and applied the law. His factual findings are supported by the record and his legal conclusions by overwhelming weight of authority. The principal opinion attempts to establish absolutes, but does so
|
Justice Stevens
| 1,990 | 16 |
second_dissenting
|
Cruzan v. Director, Mo. Dept. of Health
|
https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/
|
The principal opinion attempts to establish absolutes, but does so at the expense of human factors. In so doing it unnecessarily subjects Nancy and those close to her to continuous torture which no family should be forced to endure." -430. Although Judge Blackmar did not frame his argument as such, it propounds a sound constitutional objection to the Missouri majority's reasoning: Missouri's regulation is an unreasonable intrusion upon traditionally private matters encompassed within the liberty protected by the Due Process Clause. The portion of this Court's opinion that considers the merits of this case is similarly unsatisfactory. It, too, fails to respect the best interests of the patient.[9] It, too, relies on what is tantamount to a waiver rationale: The dying patient's best interests are put to one side, and the entire inquiry is focused on her prior expressions of intent.[10] An innocent person's constitutional right to be free from unwanted medical treatment is thereby categorically limited to those patients who had the foresight to make an unambiguous statement *339 of their wishes while competent. The Court's decision affords no protection to children, to young people who are victims of unexpected accidents or illnesses, or to the countless thousands of elderly persons who either fail to decide, or fail to explain, how they want to be treated if they should experience a similar fate. Because Nancy Beth Cruzan did not have the foresight to preserve her constitutional right in a living will, or some comparable "clear and convincing" alternative, her right is gone forever and her fate is in the hands of the state legislature instead of in those of her family, her independent neutral guardian ad litem, and an impartial judgeall of whom agree on the course of action that is in her best interests. The Court's willingness to find a waiver of this constitutional right reveals a distressing misunderstanding of the importance of individual liberty. III It is perhaps predictable that courts might undervalue the liberty at stake here. Because death is so profoundly personal, public reflection upon it is unusual. As this sad case shows, however, such reflection must become more common if we are to deal responsibly with the modern circumstances of death. Medical advances have altered the physiological conditions of death in ways that may be alarming: Highly invasive treatment may perpetuate human existence through a merger of body and machine that some might reasonably regard as an insult to life rather than as its continuation. But those same advances, and the reorganization of medical care accompanying the new science and technology, have also transformed
|
Justice Stevens
| 1,990 | 16 |
second_dissenting
|
Cruzan v. Director, Mo. Dept. of Health
|
https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/
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care accompanying the new science and technology, have also transformed the political and social conditions of death: People are less likely to die at home, and more likely to die in relatively public places, such as hospitals or nursing homes.[11] *340 Ultimate questions that might once have been dealt with in intimacy by a family and its physician[12] have now become the concern of institutions. When the institution is a state hospital, *341 as it is in this case, the government itself becomes involved.[13] Dying nonetheless remains a part of "the life which characteristically has its place in the home," The "integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right," at -552, and our decisions have demarcated a "private realm of family life which the state cannot enter." The physical boundaries of the home, of course, remain crucial guarantors of the life within it. See, e. g., ; Nevertheless, this Court has long recognized that the liberty to make the decisions and choices constitutive of private life is so fundamental to our "concept of ordered liberty," that those choices must occasionally be afforded more direct protection. *342 See, e. g., ; ; ; Respect for these choices has guided our recognition of rights pertaining to bodily integrity. The constitutional decisions identifying those rights, like the common-law tradition upon which they built,[14] are mindful that the "makers of our Constitution recognized the significance of man's spiritual nature." It may truly be said that "our notions of liberty are inextricably entwined with our idea of physical freedom and self-determination." Ante, at 287 (O'CONNOR, J., concurring). Thus we have construed the Due Process Clause to preclude physically invasive recoveries of evidence not only because such procedures are "brutal" but also because they are "offensive to human dignity." We have interpreted the Constitution to interpose barriers to a State's efforts to sterilize some criminals not only because the proposed punishment would do "irreparable injury" to bodily integrity, but because "[m]arriage and procreation" concern "the basic civil rights of man." The sanctity, and individual privacy, of the human body is obviously fundamental to liberty. "Every violation of a person's bodily integrity is an invasion of his or her liberty." Yet, just as the constitutional protection for the "physical curtilage of the home is surely *343. a result of solicitude to protect the privacies of the life within," 367 U. S., at so too the constitutional protection for the human body is surely inseparable from concern for
|
Justice Stevens
| 1,990 | 16 |
second_dissenting
|
Cruzan v. Director, Mo. Dept. of Health
|
https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/
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for the human body is surely inseparable from concern for the mind and spirit that dwell therein. It is against this background of decisional law, and the constitutional tradition which it illuminates, that the right to be free from unwanted life-sustaining medical treatment must be understood. That right presupposes no abandonment of the desire for life. Nor is it reducible to a protection against batteries undertaken in the name of treatment, or to a guarantee against the infliction of bodily discomfort. Choices about death touch the core of liberty. Our duty, and the concomitant freedom, to come to terms with the conditions of our own mortality are undoubtedly "so rooted in the traditions and conscience of our people as to be ranked as fundamental," and indeed are essential incidents of the unalienable rights to life and liberty endowed us by our Creator. See The more precise constitutional significance of death is difficult to describe; not much may be said with confidence about death unless it is said from faith, and that alone is reason enough to protect the freedom to conform choices about death to individual conscience. We may also, however, justly assume that death is not life's simple opposite, or its necessary terminus,[15] but rather its completion. Our ethical tradition has long regarded an appreciation of mortality as essential to understanding life's significance. It may, in fact, be impossible to live for anything without being prepared to die for something. Certainly there was no disdain for life in Nathan Hale's most famous declaration or in Patrick Henry's; *344 their words instead bespeak a passion for life that forever preserves their own lives in the memories of their countrymen.[16] From such "honored dead we take increased devotion to that cause for which they gave the last full measure of devotion."[17] These considerations cast into stark relief the injustice, and unconstitutionality, of Missouri's treatment of Nancy Beth Cruzan. Nancy Cruzan's death, when it comes, cannot be an historic act of heroism; it will inevitably be the consequence of her tragic accident. But Nancy Cruzan's interest in life, no less than that of any other person, includes an interest in how she will be thought of after her death by those whose opinions mattered to her. There can be no doubt that her life made her dear to her family and to others. How she dies will affect how that life is remembered. The trial court's order authorizing Nancy's parents to cease their daughter's treatment would have permitted the family that cares for Nancy to bring to a close her tragedy and
|
Justice Stevens
| 1,990 | 16 |
second_dissenting
|
Cruzan v. Director, Mo. Dept. of Health
|
https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/
|
for Nancy to bring to a close her tragedy and her death. Missouri's objection to that order subordinates Nancy's body, her family, and the lasting significance of her life to the State's own interests. The decision we review thereby interferes with constitutional interests of the highest order. To be constitutionally permissible, Missouri's intrusion upon these fundamental liberties must, at a minimum, bear a reasonable relationship to a legitimate state end. See, e. g., ; Missouri asserts that its policy is related to a state interest in the protection of life. In my view, however, it is an effort to define life, rather than to protect it, that is the heart of Missouri's policy. Missouri insists, without regard to Nancy Cruzan's own interests, upon *345 equating her life with the biological persistence of her bodily functions. Nancy Cruzan, it must be remembered, is not now simply incompetent. She is in a persistent vegetative state and has been so for seven years. The trial court found, and no party contested, that Nancy has no possibility of recovery and no consciousness. It seems to me that the Court errs insofar as it characterizes this case as involving "judgments about the `quality' of life that a particular individual may enjoy," ante, at 282. Nancy Cruzan is obviously "alive" in a physiological sense. But for patients like Nancy Cruzan, who have no consciousness and no chance of recovery, there is a serious question as to whether the mere persistence of their bodies is "life" as that word is commonly understood, or as it is used in both the Constitution and the Declaration of Independence.[18] The State's unflagging determination to perpetuate Nancy Cruzan's physical existence is comprehensible only as an effort to define life's meaning, not as an attempt to preserve its sanctity. This much should be clear from the oddity of Missouri's definition alone. Life, particularly human life, is not commonly thought of as a merely physiological condition or function.[19]*346 Its sanctity is often thought to derive from the impossibility of any such reduction. When people speak of life, they often mean to describe the experiences that comprise a person's history, as when it is said that somebody "led a good life."[20] They may also mean to refer to the practical manifestation of the human spirit, a meaning captured by the familiar observation that somebody "added life" to an assembly. If there is a shared thread among the various opinions on this subject, it may be that life is an activity which is at once the matrix for, and an integration of, a person's interests.
|
Justice Stevens
| 1,990 | 16 |
second_dissenting
|
Cruzan v. Director, Mo. Dept. of Health
|
https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/
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the matrix for, and an integration of, a person's interests. In *347 any event, absent some theological abstraction, the idea of life is not conceived separately from the idea of a living person. Yet, it is by precisely such a separation that Missouri asserts an interest in Nancy Cruzan's life in opposition to Nancy Cruzan's own interests. The resulting definition is uncommon indeed. The laws punishing homicide, upon which the Court relies, ante, at 280, do not support a contrary inference. Obviously, such laws protect both the life and interests of those who would otherwise be victims. Even laws against suicide presuppose that those inclined to take their own lives have some interest in living, and, indeed, that the depressed people whose lives are preserved may later be thankful for the State's intervention. Likewise, decisions that address the "quality of life" of incompetent, but conscious, patients rest upon the recognition that these patients have some interest in continuing their lives, even if that interest pales in some eyes when measured against interests in dignity or comfort. Not so here. Contrary to the Court's suggestion, Missouri's protection of life in a form abstracted from the living is not commonplace; it is aberrant. Nor does Missouri's treatment of Nancy Cruzan find precedent in the various state-law cases surveyed by the majority. Despite the Court's assertion that state courts have demonstrated "both similarity and diversity in their approaches" to the issue before us, none of the decisions surveyed by the Court interposed an absolute bar to the termination of treatment for a patient in a persistent vegetative state. For example, In re Westchester County Medical Center on behalf of O'Connor, pertained to an incompetent patient who "was not in a coma or vegetative state. She was conscious, and capable of responding to simple questions or requests sometimes by squeezing the questioner's hand and sometimes verbally." *348 -610. Likewise, In re Storar, involved a conscious patient who was incompetent because "profoundly retarded with a mental age of about 18 months." When it decided In re Conroy, 98 N. J. 321, the New Jersey Supreme Court noted that "Ms. Conroy was not brain dead, comatose, or in a chronic vegetative state," 98 N. J., at and then distinguished In re Quinlan, 70 N. J. 10, on the ground that Karen Quinlan had been in a "persistent vegetative or comatose state." 98 N. J., at By contrast, an unbroken stream of cases has authorized procedures for the cessation of treatment of patients in persistent vegetative states.[21] Considered *349 against the background of other cases involving patients
|
Justice Stevens
| 1,990 | 16 |
second_dissenting
|
Cruzan v. Director, Mo. Dept. of Health
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https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/
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Considered *349 against the background of other cases involving patients in persistent vegetative states, instead of against the broaderand inapt category of cases involving chronically ill incompetent patients, Missouri's decision is anomolous. *350 In short, there is no reasonable ground for believing that Nancy Beth Cruzan has any personal interest in the perpetuation of what the State has decided is her life. As I have already suggested, it would be possible to hypothesize such an interest on the basis of theological or philosophical conjecture. But even to posit such a basis for the State's action is to condemn it. It is not within the province of secular government to circumscribe the liberties of the people by regnlations designed wholly for the purpose of establishing a sectarian definition of life. See My disagreement with the Court is thus unrelated to its endorsement of the clear and convincing standard of proof for cases of this kind. Indeed, I agree that the controlling facts must be established with unmistakable clarity. The critical question, however, is not how to prove the controlling facts but rather what proven facts should be controlling. In my view, the constitutional answer is clear: The best interests of the individual, especially when buttressed by the interests of all related third parties, must prevail over any general state policy that simply ignores those interests.[22] Indeed, the only apparent secular basis for the State's interest in life is the policy's persuasive impact upon people other than Nancy and her family. Yet, "[a]lthough the State may properly perform a teaching function," and although that teaching may foster respect for the sanctity of life, the State may not pursue its project by infringing constitutionally protected interests *351 for "symbolic effect." The failure of Missouri's policy to heed the interests of a dying individual with respect to matters so private is ample evidence of the policy's illegitimacy. Only because Missouri has arrogated to itself the power to define life, and only because the Court permits this usurpation, are Nancy Cruzan's life and liberty put into disquieting conflict. If Nancy Cruzan's life were defined by reference to her own interests, so that her life expired when her biological existence ceased serving any of her own interests, then her constitutionally protected interest in freedom from unwanted treatment would not come into conflict with her constitutionally protected interest in life. Conversely, if there were any evidence that Nancy Cruzan herself defined life to encompass every form of biological persistence by a human being, so that the continuation of treatment would serve Nancy's own liberty, then once
|
Justice Stevens
| 1,990 | 16 |
second_dissenting
|
Cruzan v. Director, Mo. Dept. of Health
|
https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/
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continuation of treatment would serve Nancy's own liberty, then once again there would be no conflict between life and liberty. The opposition of life and liberty in this case are thus not the result of Nancy Cruzan's tragic accident, but are instead the artificial consequence of Missouri's effort, and this Court's willingness, to abstract Nancy Cruzan's life from Nancy Cruzan's person. IV Both this Court's majority and the state court's majority express great deference to the policy choice made by the state legislature.[23] That deference is, in my view, based *352 upon a severe error in the Court's constitutional logic. The Court believes that the liberty interest claimed here on behalf of Nancy Cruzan is peculiarly problematic because "[a]n incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment or any other right." Ante, at 280. The impossibility of such an exercise affords the State, according to the Court, some discretion to interpose "a procedural requirement" that effectively compels the continuation of Nancy Cruzan's treatment. There is, however, nothing "hypothetical" about Nancy Cruzan's constitutionally protected interest in freedom from unwanted treatment, and the difficulties involved in ascertaining what her interests are do not in any way justify the State's decision to oppose her interests with its own. As this case comes to us, the crucial question and the question addressed by the Court is not what Nancy Cruzan's interests are, but whether the State must give effect to them. There is certainly nothing novel about the practice of permitting a next friend to assert constitutional rights on behalf of an incompetent patient who is unable to do so. See, e. g., ; Thus, if Nancy Cruzan's incapacity to "exercise" her rights is to alter the balance between her interests and the State's, there must be some further explanation of how it does so. The Court offers two possibilities, neither of them satisfactory. The first possibility is that the State's policy favoring life is by its nature less intrusive upon the patient's interest than any alternative. The Court suggests that Missouri's policy "results in a maintenance of the status quo," and is subject to reversal, while a decision to terminate treatment "is not susceptible *353 of correction" because death is irreversible. Ante, at 283. Yet, this explanation begs the question, for it assumes either that the State's policy is consistent with Nancy Cruzan's own interests, or that no damage is done by ignoring her interests. The first assumption is without basis in the record of this case, and would
|
Justice Stevens
| 1,990 | 16 |
second_dissenting
|
Cruzan v. Director, Mo. Dept. of Health
|
https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/
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without basis in the record of this case, and would obviate any need for the State to rely, as it does, upon its own interests rather than upon the patient's. The second assumption is unconscionable. Insofar as Nancy Cruzan has an interest in being remembered for how she lived rather than how she died, the damage done to those memories by the prolongation of her death is irreversible. Insofar as Nancy Cruzan has an interest in the cessation of any pain, the continuation of her pain is irreversible. Insofar as Nancy Cruzan has an interest in a closure to her life consistent with her own beliefs rather than those of the Missouri Legislature, the State's imposition of its contrary view is irreversible. To deny the importance of these consequences is in effect to deny that Nancy Cruzan has interests at all, and thereby to deny her personhood in the name of preserving the sanctity of her life. The second possibility is that the State must be allowed to define the interests of incompetent patients with respect to life-sustaining treatment because there is no procedure capable of determining what those interests are in any particular case. The Court points out various possible "abuses" and inaccuracies that may affect procedures authorizing the termination of treatment. See ante, at 281-282. The Court correctly notes that in some cases there may be a conflict between the interests of an incompetent patient and the interests of members of his or her family. A State's procedures must guard against the risk that the survivors' interests are not mistaken for the patient's. Yet, the appointment of the neutral guardian ad litem, coupled with the searching inquiry conducted by the trial judge and the imposition of the clear and convincing standard of proof, all effectively avoided that risk in this case. Why such procedural safeguards should not *354 be adequate to avoid a similar risk in other cases is a question the Court simply ignores. Indeed, to argne that the mere possibility of error in any case suffices to allow the State's interests to override the particular interests of incompetent individuals in every case, or to argue that the interests of such individuals are unknowable and therefore may be subordinated to the State's concerns, is once again to deny Nancy Cruzan's personhood. The meaning of respect for her personhood, and for that of others who are gravely ill and incapacitated, is, admittedly, not easily defined: Choices about life and death are profound ones, not susceptible of resolution by recourse to medical or legal rules. It may be that
|
Justice Stevens
| 1,990 | 16 |
second_dissenting
|
Cruzan v. Director, Mo. Dept. of Health
|
https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/
|
recourse to medical or legal rules. It may be that the best we can do is to ensure that these choices are made by those who will care enough about the patient to investigate his or her interests with particularity and caution. The Court seems to recognize as much when it cautions against formulating any general or inflexible rule to govern all the cases that might arise in this area of the law. Ante, at 277-278. The Court's deference to the legislature is, however, itself an inflexible rule, one that the Court is willing to apply in this case even though the Court's principal grounds for deferring to Missouri's Legislature are hypothetical circumstances not relevant to Nancy Cruzan's interests. On either explanation, then, the Court's deference seems ultimately to derive from the premise that chronically incompetent persons have no constitutionally cognizable interests at all, and so are not persons within the meaning of the Constitution. Deference of this sort is patently unconstitutional. It is also dangerous in ways that may not be immediately apparent. Today the State of Missouri has announced its intent to spend several hundred thousand dollars in preserving the life of Nancy Beth Cruzan in order to vindicate its general policy favoring the preservation of human life. Tomorrow, another State equally eager to champion an interest in the "quality of life" might favor a policy designed to ensure quick *355 and comfortable deaths by denying treatment to categories of marginally hopeless cases. If the State in fact has an interest in defining life, and if the State's policy with respect to the termination of life-sustaining treatment commands deference from the judiciary, it is unclear how any resulting conflict between the best interests of the individual and the general policy of the State would be resolved.[24] I believe the Constitution requires that the individual's vital interest in liberty should prevail over the general policy in that case, just as in this. That a contrary result is readily imaginable under the majority's theory makes manifest that this Court cannot defer to any state policy that drives a theoretical wedge between a person's life, on the one hand, and that person's liberty or happiness, on the other.[25] The consequence of such a theory *356 is to deny the personhood of those whose lives are defined by the State's interests rather than their own. This consequence may be acceptable in theology or in speculative philosophy, see -402, but it is radically inconsistent with the foundation of all legitimate government. Our Constitution presupposes a respect for the personhood of every individual, and
|
Justice Stevens
| 1,990 | 16 |
second_dissenting
|
Cruzan v. Director, Mo. Dept. of Health
|
https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/
|
presupposes a respect for the personhood of every individual, and nowhere is strict adherence to that principle more essential than in the judicial branch. See, e. g., -782 V In this case, as is no doubt true in many others, the predicament confronted by the healthy members of the Cruzan family merely adds emphasis to the best interests finding made by the trial judge. Each of us has an interest in the kind of memories that will survive after death. To that end, individual decisions are often motivated by their impact on others. A member of the kind of family identified in the trial court's findings in this case would likely have not only a normal interest in minimizing the burden that her own illness imposes on others, but also an interest in having their memories of her filled predominantly with thoughts about her past vitality rather than her current condition. The meaning and completion of her life should be controlled by persons who have her best interests at heart not by a state legislature concerned only with the "preservation of human life." The Cruzan family's continuing concern provides a concrete reminder that Nancy Cruzan's interests did not disappear with her vitality or her consciousness. However commendable may be the State's interest in human life, it cannot pursue that interest by appropriating Nancy Cruzan's life as a symbol for its own purposes. Lives do not exist in abstraction *357 from persons, and to pretend otherwise is not to honor but to desecrate the State's responsiblity for protecting life. A State that seeks to demonstrate its commitment to life may do so by aiding those who are actively struggling for life and health. In this endeavor, unfortunately, no State can lack for opportunities: There can be no need to make an example of tragic cases like that of Nancy Cruzan. I respectfully dissent.
|
Justice Douglas
| 1,971 | 10 |
majority
|
Wisconsin v. Constantineau
|
https://www.courtlistener.com/opinion/108230/wisconsin-v-constantineau/
|
Appellee is an adult resident of Hartford, Wis. She brought suit in a federal district court in Wisconsin to have a Wisconsin statute declared unconstitutional.[1] A three-judge court was convened, 28 U.S. C. 2281. That court, by a divided vote, held the Act unconstitutional, and we noted probable jurisdiction. The Act, Wis. Stat. 176.26 (1967), provides that designated persons may in writing forbid the sale or gift of intoxicating liquors to one who "by excessive drinking" produces described conditions or exhibits specified traits, such as exposing himself or family "to want" or becoming "dangerous to the peace" of the community.[2] *435 The chief of police of Hartford, without notice or hearing to appellee, caused to be posted a notice in all retail liquor outlets in Hartford that sales or gifts of liquors to appellee were forbidden for one year. Thereupon this suit was brought against the chief of police claiming damages and asking for injunctive relief. The State of Wisconsin intervened as a defendant on the injunctive phase of the case and that was the only issue tried and decided, the three-judge court holding the Act unconstitutional on its face and enjoining its enforcement. The court said: "In `posting' an individual, the particular city official or spouse is doing more than denying him the ability to purchase alcoholic beverages within *436 the city limits. In essence, he is giving notice to the public that he has found the particular individual's behavior to fall within one of the categories enumerated in the statutes. It would be naive not to recognize that such `posting' or characterization of an individual will expose him to public embarrassment and ridicule, and it is our opinion that procedural due process requires that before one acting pursuant to State statute can make such a quasi-judicial determination, the individual involved must be given notice of the intent to post and an opportunity to present his side of the matter." We have no doubt as to the power of a State to deal with the evils described in the Act. The police power of the States over intoxicating liquors was extremely broad even prior to the Twenty-first Amendment. The only issue present here is whether the label or characterization given a person by "posting," though a mark of serious illness to some, is to others such a stigma or badge of disgrace that procedural due process requires notice and an opportunity to be heard. We agree with the District Court that the private interest is such that those requirements of procedural due process must be met. It is significant
|
Justice Douglas
| 1,971 | 10 |
majority
|
Wisconsin v. Constantineau
|
https://www.courtlistener.com/opinion/108230/wisconsin-v-constantineau/
|
of procedural due process must be met. It is significant that most of the provisions of the Bill of Rights are procedural, for it is procedure that marks much of the difference between rule by law and rule by fiat. We reviewed in Cafeteria the nature of the various "private interest[s]" that have fallen on one side or the other of the line. See also Generalizations are hazardous as some state and federal administrative procedures are summary *437 by reason of necessity or history. Yet certainly where the State attaches "a badge of infamy" to the citizen, due process comes into play. "[T]he right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society." Anti-Fascist (Frankfurter, J., concurring). Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential. "Posting" under the Wisconsin Act may to some be merely the mark of illness, to others it is a stigma, an official branding of a person. The label is a degrading one. Under the Wisconsin Act, a resident of Hartford is given no process at all. This appellee was not afforded a chance to defend herself. She may have been the victim of an official's caprice. Only when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented. It is suggested that the three-judge court should have stayed its hand while the aggrieved person repaired to the state courts to obtain a construction of the Act or relief from it. The fact that Wisconsin does not raise the point does not, of course, mean that it lacks merit. Yet the suggestion is not in keeping with the precedents. Congress could, of course, have routed all federal constitutional questions through the state court systems, saving to this Court the final say when it came to review of the state court judgments. But our First Congress[3] resolved differently and created the federal court system and in time granted the federal courts various heads of *438 jurisdiction,[4] which today involve most federal constitutional rights. Once that jurisdiction was granted, the federal courts resolved those questions even when they were enmeshed with state law questions. In 1941 we gave vigor to the so-called abstention doctrine in Railroad In that case an authoritative resolution of a knotty state law question might end
|
Justice Douglas
| 1,971 | 10 |
majority
|
Wisconsin v. Constantineau
|
https://www.courtlistener.com/opinion/108230/wisconsin-v-constantineau/
|
authoritative resolution of a knotty state law question might end the litigation and not give rise to any federal constitutional claim. We, therefore, directed the District Court to retain the suit pending a determination by a state court of the underlying state law question. We applied the abstention doctrine most recently in Fornaris v. Ridge Tool Co., ante, p. 41, where a relatively new Puerto Rican statute, which had not been authoritatively construed by the Commonwealth's courts, "might be judicially confined to a more narrow ambit which would avoid all constitutional questions." We ordered the federal courts to stay their hands until the Puerto Rican courts had spoken. Speaking of we noted that the "three-judge federal court should not have proceeded to strike down an Alaska law which, if construed by the Alaska Supreme Court, might be so confined as not to have any constitutional infirmity." Ante, at 43. But the abstention rule only applies where "the issue of state law is uncertain." Thus our abstention cases have dealt with unresolved questions of state law which only a state tribunal could authoritatively construe. City *439 of In the present case the Wisconsin Act does not contain any provision whatsoever for notice and hearing. There is no ambiguity in the state statute. There are no provisions which could fairly be taken to mean that notice and hearing might be given under some circumstances or under some construction but not under others. The Act on its face gives the chief of police the power to do what he did to the appellee. Hence the naked question, uncomplicated by an unresolved state law, is whether that Act on its face is unconstitutional. As we said in abstention should not be ordered merely to await an attempt to vindicate the claim in a state court. Where there is no ambiguity in the state statute, the federal court should not abstain but should proceed to decide the federal constitutional claim. at 250-. We would negate the history of the enlargement of the jurisdiction of the federal district courts,[5] if we held the federal court should stay its hand and not decide the question before the state courts decided it. Affirmed. MR. CHIEF JUSTICE BURGER, with whom MR.
|
Justice O'Connor
| 1,988 | 14 |
majority
|
Frisby v. Schultz
|
https://www.courtlistener.com/opinion/112134/frisby-v-schultz/
|
Brookfield, Wisconsin, has adopted an ordinance that completely bans picketing "before or about" any residence. This case presents a facial First Amendment challenge to that ordinance. I Brookfield, Wisconsin, is a residential suburb of Milwaukee with a population of approximately 4,300. The appellees, Sandra C. Schultz and Robert C. Braun, are individuals strongly opposed to abortion and wish to express their views on the subject by picketing on a public street outside the Brookfield residence of a doctor who apparently performs abortions at two clinics in neighboring towns. Appellees and others engaged in precisely that activity, assembling outside the doctor's home on at least six occasions between April 20, and May 20, for periods ranging from one to one and a half hours. The size of the group varied from 11 to more than 40. The picketing was generally orderly and peaceful; the town never had occasion to invoke any of its various ordinances prohibiting obstruction of the streets, loud and unnecessary noises, or disorderly conduct. Nonetheless, the picketing generated substantial controversy and numerous complaints. The Town Board therefore resolved to enact an ordinance to restrict the picketing. On May 7, the town passed an ordinance that prohibited all picketing in residential neighborhoods except for labor picketing. But after reviewing this Court's decision in which invalidated a similar ordinance as a violation of the *477 Equal Protection Clause, the town attorney instructed the police not to enforce the new ordinance and advised the Town Board that the ordinance's labor picketing exception likely rendered it unconstitutional. This ordinance was repealed on May 15, and replaced with the following flat ban on all residential picketing: "It is unful for any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield." App. to Juris. Statement A-28. The ordinance itself recites the primary purpose of this ban: "the protection and preservation of the home" through assurance "that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy." at A-26. The Town Board believed that a ban was necessary because it determined that "the practice of picketing before or about residences and dwellings causes emotional disturbance and distress to the occupants [and] has as its object the harassing of such occupants." at A-26 A-27. The ordinance evinces a concern for public safety, noting that picketing obstructs and interferes with "the free use of public sidewalks and public ways of travel." at A-27. On May 18, appellees were informed by the town attorney that enforcement of the new,
|
Justice O'Connor
| 1,988 | 14 |
majority
|
Frisby v. Schultz
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https://www.courtlistener.com/opinion/112134/frisby-v-schultz/
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informed by the town attorney that enforcement of the new, revised ordinance would begin on May 21, Faced with this threat of arrest and prosecution, appellees ceased picketing in Brookfield and filed this suit in the United States District Court for the Eastern District of Wisconsin. The complaint was brought under 42 U.S. C. 1983 and sought declaratory as well as preliminary and permanent injunctive relief on the grounds that the ordinance violated the First Amendment. Appellees named appellants the three members of the Town Board, the Chief of Police, the town attorney, and the town itself as defendants. *478 The District Court granted appellees' motion for a preliminary injunction. The court concluded that the ordinance was not narrowly tailored enough to restrict protected speech in a public forum. The District Court's order specified that unless the appellants requested a trial on the merits within 60 days or appealed, the preliminary injunction would become permanent. Appellants requested a trial and appealed the District Court's entry of a preliminary injunction. A divided panel of the United States Court of Appeals for the Seventh Circuit affirmed. The Court of Appeals subsequently vacated this decision, however, and ordered a rehearing en banc. After rehearing, the Court of Appeals affirmed the judgment of the District Court by an equally divided vote. Contending that the Court of Appeals had rendered a final judgment holding the ordinance "to be invalid as repugnant to the Constitution," 28 U.S. C. 4 (2), appellants attempted to invoke our mandatory appellate jurisdiction. App. to Juris. Statement A-25 (citing 4 (2)). We postponed further consideration of our appellate jurisdiction until the hearing on the merits. Appellees argue that there is no jurisdiction under 4 (2) due to the lack of finality. They point out that the District Court entered only a preliminary injunction and that appellants requested a trial on the merits, which has yet to be conducted. These considerations certainly suggest a lack of finality. Yet despite the formally tentative nature of its order, the District Court appeared ready to enter a final judgment since it indicated that unless a trial was requested a permanent injunction would issue. In addition, while appellants initially requested a trial, they no longer adhere to this position and now say that they would have no additional arguments to offer at such a trial. Tr. of Oral Arg. 7. In the context of this case, however, there is no need to decide *479 whether jurisdiction is proper under 4(2). Because the question presented is of substantial importance, and because further proceedings below would
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Justice O'Connor
| 1,988 | 14 |
majority
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Frisby v. Schultz
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https://www.courtlistener.com/opinion/112134/frisby-v-schultz/
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is of substantial importance, and because further proceedings below would not likely aid our consideration of it, we choose to avoid the finality issue simply by granting certiorari. Accordingly, we dismiss the appeal and, treating the jurisdictional statement as a petition for certiorari, now grant the petition. See 28 U.S. C. 2103. Cf. Mississippi Power & Light Co. v. Mississippi ex rel. Moore, ante, at 369, n. 10. For convenience, however, we shall continue to refer to the parties as appellants and appellees, as we have in previous cases. See ibid.; II The antipicketing ordinance operates at the core of the First Amendment by prohibiting appellees from engaging in picketing on an issue of public concern. Because of the importance of "uninhibited, robust, and wide-open" debate on public issues, New York Times we have traditionally subjected restrictions on public issue picketing to careful scrutiny. See, e. g., ; United ; Of course, "[e]ven protected speech is not equally permissible in all places and at all times." To ascertain what limits, if any, may be placed on protected speech, we have often focused on the "place" of that speech, considering the nature of the forum the speaker seeks to employ. Our cases have recognized that the standards by which limitations on speech must be evaluated "differ depending on the character of the property at issue." Education Specifically, we have identified three types of fora: "the traditional public forum, the public forum created *480 by government designation, and the nonpublic forum." The relevant forum here may be easily identified: appellees wish to picket on the public streets of Brookfield. Ordinarily, a determination of the nature of the forum would follow automatically from this identification; we have repeatedly referred to public streets as the archetype of a traditional public forum. See, e. g., at ; ; "[T]ime out of mind" public streets and sidewalks have been used for public assembly and debate, the hallmarks of a traditional public forum. See ibid.; Appellants, however, urge us to disregard these "cliches." Tr. of Oral Arg. 16. They argue that the streets of Brookfield should be considered a nonpublic forum. Pointing to the physical narrowness of Brookfield's streets as well as to their residential character, appellants contend that such streets have not by tradition or designation been held open for public communication. See Brief for Appellants 23 (citing ). We reject this suggestion. Our prior holdings make clear that a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood. In which considered a statute
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Justice O'Connor
| 1,988 | 14 |
majority
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Frisby v. Schultz
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through a residential neighborhood. In which considered a statute similar to the one at issue here, ultimately striking it down as a violation of the Equal Protection Clause because it included an exception for labor picketing we expressly recognized that "public streets and sidewalks in residential neighborhoods," were "public for[a]." 7 U.S., 0-461. This rather ready identification virtually forecloses appellants' argument. See In short, our decisions identifying public streets and sidewalks as traditional public fora are not accidental invocations of a "cliche," but recognition that "[w]herever the title of *481 streets and parks may rest, they have immemorially been held in trust for the use of the public." at No particularized inquiry into the precise nature of a specific street is necessary; all public streets are held in the public trust and are properly considered traditional public fora. Accordingly, the streets of Brookfield are traditional public fora. The residential character of those streets may well inform the application of the relevant test, but it does not lead to a different test; the anti-picketing ordinance must be judged against the stringent standards we have established for restrictions on speech in traditional public fora: "In these quintessential public for[a], the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The State may enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." As makes clear, the appropriate level of scrutiny is initially tied to whether the statute distinguishes between prohibited and permitted speech on the basis of content. Appellees argue that despite its facial content-neutrality, the Brookfield ordinance must be read as containing an implied exception for labor picketing. See Brief for Appellees 20-26. The basis for appellees' argument is their belief that an express protection of peaceful labor picketing in state see Wis. Stat. 103.53(1) must take precedence over Brookfield's contrary efforts. The District Court, however, rejected this suggested interpretation of state and the Court of Appeals affirmed, albeit ultimately by an equally divided court. *482 See (original panel opinion declining to reconsider District Court's construction of state ). Following our normal practice, "we defer to the construction of a state statute given it by the lower federal courts to reflect our belief that district courts and courts of appeals are better schooled in and more able to interpret
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Justice O'Connor
| 1,988 | 14 |
majority
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Frisby v. Schultz
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appeals are better schooled in and more able to interpret the s of their respective States." See ("This Court rarely reviews a construction of state agreed upon by the two lower federal courts"). Thus, we accept the lower courts' conclusion that the Brookfield ordinance is content neutral. Accordingly, we turn to consider whether the ordinance is "narrowly tailored to serve a significant government interest" and whether it "leave[s] open ample alternative channels of communication." Because the last question is so easily answered, we address it first. Of course, before we are able to assess the available alternatives, we must consider more carefully the reach of the ordinance. The precise scope of the ban is not further described within the text of the ordinance, but in our view the ordinance is readily subject to a narrowing construction that avoids constitutional difficulties. Specifically, the use of the singular form of the words "residence" and "dwelling" suggests that the ordinance is intended to prohibit only picketing focused on, and taking place in front of, a particular residence. As JUSTICE WHITE's concurrence recounts, the lower courts described the ordinance as banning "all picketing in residential areas." Post, at 490. But these general descriptions do not address the exact scope of the ordinance and are in no way inconsistent with our reading of its text. "Picketing," after all, is defined as posting at a particular place, see Webster's Third New International Dictionary 1710 (1981), a characterization in line with viewing the ordinance as limited to activity focused on a single residence. *483 Moreover, while we ordinarily defer to lower court constructions of state statutes, see we do not invariably do so, see at We are particularly reluctant to defer when the lower courts have fallen into plain error, see which is precisely the situation presented here. To the extent they endorsed a broad reading of the ordinance, the lower courts ran afoul of the well-established principle that statutes will be interpreted to avoid constitutional difficulties. See, e. g., ; Cf. Edward J. DeBartolo Thus, unlike the lower courts' judgment that the ordinance does not contain an implied exception for labor picketing, we are unable to accept their potentially broader view of the ordinance's scope. We instead construe the ordinance more narrowly. This narrow reading is supported by the representations of counsel for the town at oral argument, which indicate that the town takes, and will enforce, a limited view of the "picketing" proscribed by the ordinance. Thus, generally speaking, "picketing would be having the picket proceed on a definite course or route in front of
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Justice O'Connor
| 1,988 | 14 |
majority
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Frisby v. Schultz
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https://www.courtlistener.com/opinion/112134/frisby-v-schultz/
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proceed on a definite course or route in front of a home." Tr. of Oral Arg. 8. The picket need not be carrying a sign, but in order to fall within the scope of the ordinance the picketing must be directed at a single residence, General marching through residential neighborhoods, or even walking a route in front of an entire block of houses, is not prohibited by this ordinance. Accordingly, we construe the ban to be a limited one; only focused picketing taking place solely in front of a particular residence is prohibited. So narrowed, the ordinance permits the more general dissemination of a message. As appellants explain, the limited nature of the prohibition makes it virtually self-evident that ample alternatives remain: *484 "Protestors have not been barred from the residential neighborhoods. They may enter such neighborhoods, alone or in groups, even marching. They may go door-to-door to proselytize their views. They may distribute literature in this manner or through the mails. They may contact residents by telephone, short of harassment." Brief for Appellants 41-42 We readily agree that the ordinance preserves ample alternative channels of communication and thus move on to inquire whether the ordinance serves a significant government interest. We find that such an interest is identified within the text of the ordinance itself: the protection of residential privacy. See App. to Juris. Statement A-26. "The State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society." 7 U. S., Our prior decisions have often remarked on the unique nature of the home, "the last citadel of the tired, the weary, and the sick," and have recognized that "[p]reserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value." One important aspect of residential privacy is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear, cf. ; the home is different. "That we are often `captives' outside the sanctuary of the home and subject to objectionable speech. does not mean we must be captives everywhere." Instead, a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability *485 to avoid intrusions. Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom. See, e. g., ;
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Justice O'Connor
| 1,988 | 14 |
majority
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Frisby v. Schultz
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https://www.courtlistener.com/opinion/112134/frisby-v-schultz/
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the government may protect this freedom. See, e. g., ; (same); ; This principle is reflected even in prior decisions in which we have invalidated complete bans on expressive activity, including bans operating in residential areas. See, e. g., ; In all such cases, we have been careful to acknowledge that unwilling listeners may be protected when within their own homes. In for example, in striking down a complete ban on handbilling, we spoke of a right to distribute literature only "to one willing to receive it." Similarly, when we invalidated a ban on door-to-door solicitation in we did so on the basis that the "home owner could protect himself from such intrusion by an appropriate sign `that he is unwilling to be disturbed.' " Kovacs, We have "never intimated that the visitor could insert a foot in the door and insist on a hearing." There simply is no right to force speech into the home of an unwilling listener. It remains to be considered, however, whether the Brookfield ordinance is narrowly tailored to protect only unwilling recipients of the communications. A statute is narrowly tailored if it targets and eliminates no more than the exact source of the "evil" it seeks to remedy. City Council of Los A complete ban can be narrowly tailored, but only if each activity within the proscription's scope is an appropriately targeted evil. For example, in Taxpayers for we upheld an ordinance that banned all signs on public property *486 because the interest supporting the regulation, an esthetic interest in avoiding visual clutter and blight, rendered each sign an evil. Complete prohibition was necessary because "the substantive evil visual blight [was] not merely a possible byproduct of the activity, but [was] created by the medium of expression itself." The same is true here. The type of focused picketing prohibited by the Brookfield ordinance is fundamentally different from more generally directed means of communication that may not be completely banned in residential areas. See, e. g., at ; ; See Cf. In such cases "the flow of information [is not] into. household[s], but to the public." Organization for a Better Here, in contrast, the picketing is narrowly directed at the household, not the public. The type of picketers banned by the Brookfield ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the targeted resident, and to do so in an especially offensive way. Moreover, even if some such picketers have a broader communicative purpose, their activity nonetheless inherently and offensively intrudes on residential privacy. The
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Justice O'Connor
| 1,988 | 14 |
majority
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Frisby v. Schultz
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activity nonetheless inherently and offensively intrudes on residential privacy. The devastating effect of targeted picketing on the quiet enjoyment of the home is beyond doubt: " `To those inside the home becomes something less than a home when and while the picketing continue[s]. [The] tensions and pressures may be psychological, not physical, but they are not, for that reason, less inimical to family privacy and truly domestic tranquility.' " ). *487 In this case, for example, appellees subjected the doctor and his family to the presence of a relatively large group of protesters on their doorstep in an attempt to force the doctor to cease performing abortions. But the actual size of the group is irrelevant; even a solitary picket can invade residential privacy. See 7 U. S., -479 ("Whether alone or accompanied by others. there are few of us that would feel comfortable knowing that a stranger lurks outside our home"). The offensive and disturbing nature of the form of the communication banned by the Brookfield ordinance thus can scarcely be questioned. Cf. (as opposed to regulation of communications due to the ideas expressed, which "strikes at the core of First Amendment values," "regulations of form and context may strike a constitutionally appropriate balance between the advocate's right to convey a message and the recipient's interest in the quality of his environment"). The First Amendment permits the government to prohibit offensive speech as intrusive when the "captive" audience cannot avoid the objectionable speech. See Consolidated Edison 7 U.S. 530, Cf. The target of the focused picketing banned by the Brookfield ordinance is just such a "captive." The resident is figuratively, and perhaps literally, trapped within the home, and because of the unique and subtle impact of such picketing is left with no ready means of avoiding the unwanted speech. Cf. 403 U. S., at Thus, the "evil" of targeted residential picketing, "the very presence of an unwelcome visitor at the home," is "created by the medium of expression itself." See Taxpayers for Accordingly, the Brookfield ordinance's *488 complete ban of that particular medium of expression is narrowly tailored. Of course, this case presents only a facial challenge to the ordinance. Particular hypothetical applications of the ordinance to, for example, a particular resident's use of his or her home as a place of business or public meeting, or to picketers present at a particular home by invitation of the resident may present somewhat different questions. Initially, the ordinance by its own terms may not apply in such circumstances, since the ordinance's goal is the protection of residential privacy,
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Justice O'Connor
| 1,988 | 14 |
majority
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Frisby v. Schultz
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since the ordinance's goal is the protection of residential privacy, App. to Juris. Statement A-26, and since it speaks only of a "residence or dwelling," not a place of business, at A-28. Cf. 7 Moreover, since our First Amendment analysis is grounded in protection of the unwilling residential listener, the constitutionality of applying the ordinance to such hypotheticals remains open to question. These are, however, questions we need not address today in order to dispose of appellees' facial challenge. Because the picketing prohibited by the Brookfield ordinance is speech directed primarily at those who are presumptively unwilling to receive it, the State has a substantial and justifiable interest in banning it. The nature and scope of this interest make the ban narrowly tailored. The ordinance leaves open ample alternative channels of communication and is content neutral. Thus, largely because of its narrow scope, the facial challenge to the ordinance must fail. The contrary judgment of the Court of Appeals is Reversed. JUSTICE WHITE, concurring in the judgment.
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Justice Douglas
| 1,972 | 10 |
dissenting
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FPC v. Florida Power & Light Co.
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https://www.courtlistener.com/opinion/108428/fpc-v-florida-power-light-co/
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There can be no doubt that Congress has constitutional power to regulate under the Commerce Clause the interstate *470 "commingling" of electric power involved in the instant case. See Connecticut Light & Power The question is whether it has done so. The Examiner explains the "electromagnetic unity" theory and tells us in electrical engineering terms why that unasserted power of Congress exists: "An electric utility system such as [respondent's] is essentially an electro-mechanical system to which all operating generators on the interconnected network are interlocked electromagnetically. This means that electric generators, under ordinary operating conditions, run either at exactly the same speed or at speeds which will result in a frequency of 60 cycles. No operating generator can change its speed by itself as long as it operates connected to the network All generators connected to the same network must follow each other as to speed and frequency whenever there is a change in frequency, and the frequency of all interlocked generators is always exactly the same. "The electric systems of [respondent] and all other interconnected systems are essentially alike as to electrical, electromagnetic and electromechanical characteristics. Because they are alike, it is possible to have presently existing interconnected operations on a very large scale, extending from the Rocky Mountains to the Atlantic Ocean and from the Canadian to the Mexican border. "If a housewife in Atlanta on the Georgia system turns on a light, every generator on [respondent's] system almost instantly is caused to produce some quantity of additional electric energy which serves to maintain the balance in the interconnected system between generation and load." 37 F. P. C. 544, 567-568. *471 Evidently undesirous of explicitly overruling the proposition that "[m]ere connection determines nothing," Jersey Central Power & Light the Court avoids validating the 's electromagnetic unity theory as the jurisdictional hold over the respondent. Instead, relying on the Commission's expertise, the Court purports to hold a narrower ground that actual flows of FP&L's electricity were in fact measured passing out of Florida through the employment of the Commission's "commingled" tracing method. Closer analysis of this latter wizardry, which had previously been rejected by the Commission, Connecticut Light & Power Co., 3 F. P. C. 132 (1942), reveals, however, that actual flows were not in fact measured but were simply hypothesized using an engineering model which, as the dissenting commissioners observed, "[assumed] the fact in issue, and thus [begged] the question of jurisdiction." The conventional tracing method previously used in cases such as this one reached an entirely different resultthat no actual interstate flow of FPL power had occurred.
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Justice Douglas
| 1,972 | 10 |
dissenting
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FPC v. Florida Power & Light Co.
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https://www.courtlistener.com/opinion/108428/fpc-v-florida-power-light-co/
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resultthat no actual interstate flow of FPL power had occurred. Jersey Central Power & Light Connecticut Light & Power The Commission's abandonment of the conventional test in favor of the commingled method will now mean that every privately owned interconnected facility in the United States (except for those isolated in Texas) is within the 's jurisdiction. Both tracing methods assume that a momentary increase in FP&L's generation over its local needs will be passed on to the interconnecting Florida Power Corp. (Corp) system located between FP&L and the state line. The conventional system assumes that such excesses will be absorbed by the first few loads reached in the Corp system and therefore will never cross the state line. On the other hand, the commingled approach assumes that the first load which the FP&L excess *4 reaches will continue to rely upon other utilities' power to a large extent and therefore will absorb only a part of the FP&L excess. The leftover FP&L excess will then travel to the next load, but again, will only supply part of those consumers' needs, with the remainder passing on to the next load, and so on, until some fractional part of the original FP&L excess crosses the state line. Extending the assumption's application, it is clear that any momentary increase in output by any generator located at any point in the ISG grid will send a surge of power throughout the entire network. If this assumption is approved, then it is difficult to perceive what remains of the Jersey Central proposition that "[m]ere connection determines nothing." These scientific facts are, of course, the basis for the grid systems, much in vogue these days. But the Commission has no authority to order a company to enter a grid. Unless it is done voluntarily, as was true here, the Commission by virtue of 202 (b) of the Federal Power Act can act only[1] "upon application of any State commission or of any person engaged in the transmission or sale of electric energy." 16 U.S. C. 824a (b). A company transmitting electric energy in interstate commerce is subject to regulation by the Commission of its wholesale rates. 16 U.S. C. 824 (b). But there is no claim here that wholesale selling is involved; and the minuscule nature of the "commingling" that has taken place and its incidental nature are doubtless the reasons why the Commission has not undertaken that phase of regulation. The case is therefore unlike Pennsylvania Water & Power All that is involved here is an effort to make respondent *473 follow the Commission's Uniform
|
Justice Douglas
| 1,972 | 10 |
dissenting
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FPC v. Florida Power & Light Co.
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https://www.courtlistener.com/opinion/108428/fpc-v-florida-power-light-co/
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an effort to make respondent *473 follow the Commission's Uniform System of Accounts.[2] 16 U.S. C. 825 (a). Rather than the engineering battle over tracing methods, the central question ought to be whether the "commingling" is so de minimis as to warrant the fastening of the federal bureaucracy on this local company. The limited purpose of this legislation was stated clearly in the Senate Report: "The decision of the Supreme Court in Public Utilities ) placed the interstate wholesale transactions of the electric utilities entirely beyond the reach of the States. Other features of this interstate *474 utility business are equally immune from State control either legally or practically." S. Rep. No. 621, 74th Cong., 1st Sess., 17.[3] While federal regulation was to be pervasive, once fastened onto a company, Congress expressed an unambiguous policy to preserve and to rely upon effective and adequate state regulation: "The revised bill would impose Federal regulation only over those matters which cannot effectively be controlled by the States. The limitation on the Federal Power Commission's jurisdiction in this regard has been inserted in each section in an effort to prevent the expansion of Federal authority over State matters." And this objective is presented in the statute's language: "It is hereby declared that Federal regulation is necessary in the public interest, such Federal regulation, however, to extend only to those matters which are not subject to regulation by the States." Public Utility Holding Company Act of 1935, 201 (a), The Commission does not assert that Florida's regulation of FP&L is inadequate. Each year the Florida Public Service Commission conducts field audits of electric utilities to ensure compliance with its accounting practices and depreciation rates.[4] Other than enhancing the slogan *475 of "federal leadership" the Commission cites no function which it might better fulfill than the state regime. The Court's result also runs counter to the expressed desire of Congress to encourage voluntary interconnection. 202 (a), Interconnection between two local companies will now subject both to federal jurisdiction if either is also connected to a grid which at some point crosses a state line. To avoid the costs associated with switching from state to federal regulation a utility may now be induced to sever such interconnections. As the dissenting commissioners recognized: "[I]nterconnections serve the objective of reliability, and reliability is strongly in the public interest. But with the present near universality of interconnections, it would seem that the Commission's opinion would as likely lead to present connections being broken as to new connections being established or existing connections strengthened." 37 F. P. C., at 559
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Justice Douglas
| 1,972 | 10 |
dissenting
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FPC v. Florida Power & Light Co.
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https://www.courtlistener.com/opinion/108428/fpc-v-florida-power-light-co/
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or existing connections strengthened." 37 F. P. C., at 559 (1967). In light of these congressional purposes I would not superimpose federal regulation on top of state regulation in case of de minimis transmissions not made by prearrangement or in case of wholesale transactions. In Jersey Central Power & Light we let federal regulation be fastened, though the energy transmitted was "small." Yet the transmissions apparently were neither accidental nor de minimis. at 66 n. 4. In the instant case respondent is a member of the Interconnected Systems Group (ISG) which covers the southeastern and central portions of the United States. *476 The Commission approved the Examiner's finding that "all 140 members of the ISG operate in parallel and are interlocked electromagnetically; and that FPL [respondent] can receive from or contribute to ISG up to 100 mw. The record further supports the Examiner's findings that FPL normally has no control over the actual transfers of electric power and energy with any particular electric system with which it is interconnected; that since electric energy can be delivered virtually instantaneously when needed on a system at a speed of 186,000 miles per second, such energy can be and is transmitted to FPL when needed from out-of-state generators, and in turn can be and is transmitted from FPL to help meet out-of-state demands; and finally, that there is a cause and effect relationship in electric energy occurring throughout every generator and point on the FPL, Corp, Georgia, and Southern systems which constitutes interstate transmission of electric energy by, to, and from FPL." 37 F. P. C., at 549. In the instant case apart from the infinitesimal and sporadic exchanges the Commission only found that "FPL [respondent] contributed 8 mw to ISG to assist a midwestern utility which had sustained a 580-mw generator loss." And that single episode could be measured in terms of seconds only. Such fleeting episodes are not in my view sufficient to displace a state regime with the federal one, since the Congress promised that as much as possible be left to the States. I would not make that a hollow promise. If we allow federal pre-emption in this case, then we have come full cycle, leaving local authorities control of electric energy only insofar as municipal plants are concerned. The federal camel has a tendency to occupy permanently any state tent. That may be a wise course; but if so, Congress should make the decision.
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Justice Scalia
| 2,004 | 9 |
majority
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Grupo Dataflux v. Atlas Global Group, LP
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https://www.courtlistener.com/opinion/134744/grupo-dataflux-v-atlas-global-group-lp/
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This case presents the question whether a party's post-filing change in citizenship can cure a lack of subject-matter jurisdiction that existed at the time of filing in an action premised upon diversity of citizenship. See 28 U.S. C. 1332. I Respondent Atlas Global Group, L. P., is a limited partnership created under Texas law. In November 1997, Atlas filed a state-law suit against petitioner Grupo Dataflux, a Mexican corporation, in the United States District Court for the Southern District of Texas. The complaint contained claims for breach of contract and in quantum meruit, seeking over $1.3 million in damages. It alleged that "[f]ederal jurisdiction is proper based upon diversity jurisdiction pursuant to 28 U.S. C. 1332(a), as this suit is between a Texas citizen [Atlas] and a citizen or subject of Mexico [Grupo Dataflux]."[1]*569 App. 19a (Complaint ¶ 3). Pretrial motions and discovery consumed almost three years. In October 2000, the parties consented to a jury trial presided over by a Magistrate Judge. On October 27, after a 6-day trial, the jury returned a verdict in favor of Atlas awarding $750,000 in damages. On November 18, before entry of the judgment, Dataflux filed a motion to dismiss for lack of subject-matter jurisdiction because the parties were not diverse at the time the complaint was filed. See Fed. Rules Civ. Proc. 12(b)(1), (h)(3). The Magistrate Judge granted the motion. The dismissal was based upon the accepted rule that, as a partnership, Atlas is a citizen of each State or foreign country of which any of its partners is a citizen. See Because Atlas had two partners who were Mexican citizens at the time of filing, the partnership was a Mexican citizen. (It was also a citizen of Delaware and Texas based on the citizenship of its other partners.) And because the defendant, Dataflux, was a Mexican corporation, aliens were on both sides of the case, and the requisite diversity was therefore absent. See On appeal, Atlas did not dispute the finding of no diversity at the time of filing. It urged the Court of Appeals to disregard this failure and reverse dismissal because the Mexican partners had left the partnership in a transaction consummated the month before trial began. Atlas argued that, since diversity existed when the jury rendered its verdict, dismissal was inappropriate. The Fifth Circuit agreed. It acknowledged the general rule that, for purposes of determining the existence of diversity *570 jurisdiction, the citizenship of the parties is to be determined with reference to the facts as they existed at the time of filing. However, relying on our decision
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Justice Scalia
| 2,004 | 9 |
majority
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Grupo Dataflux v. Atlas Global Group, LP
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https://www.courtlistener.com/opinion/134744/grupo-dataflux-v-atlas-global-group-lp/
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at the time of filing. However, relying on our decision in Caterpillar it held that the conclusiveness of citizenship at the time of filing was subject to exception when the following conditions are satisfied: "(1) [A]n action is filed or removed when constitutional and/or statutory jurisdictional requirements are not met, (2) neither the parties nor the judge raise the error until after a jury verdict has been rendered, or a dispositive ruling has been made by the court, and (3) before the verdict is rendered, or ruling is issued, the jurisdictional defect is cured." 312 F.3d, at The opinion strictly limited the exception as follows: "If at any point prior to the verdict or ruling, the issue is raised, the court must apply the general rule and dismiss regardless of subsequent changes in citizenship." The jurisdictional error in the present case not having been identified until after the jury returned its verdict; and the postfiling change in the composition of the partnership having (in the Court's view) cured the jurisdictional defect; the Court reversed and remanded with instructions to the District Court to enter judgment in favor of Atlas. We granted certiorari. II It has long been the case that "the jurisdiction of the court depends upon the state of things at the time of the action brought." This time-of-filing rule is hornbook law (quite literally[2]) *571 taught to first-year law students in any basic course on federal civil procedure. It measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filingwhether the challenge be brought shortly after filing, after the trial, or even for the first time on appeal.) We have adhered to the time-of-filing rule regardless of the costs it imposes. For example, in two executors of an estate, claiming to be New York citizens, had brought a diversity-based suit in federal court against defendants alleged to be Florida citizens. When it later developed that two of the defendants were New York citizens, the plaintiffs sought to save jurisdiction by revoking the letters testamentary for one executor and alleging that the remaining executor was in fact a British citizen. The Court rejected this attempted postfiling salvage operation, because at the time of filing the executors included a New Yorker. It dismissed the case for want of jurisdiction, even though the case had been filed about 5½ years earlier, the trial court had entered a decree ordering land to be sold 4 years earlier, the sale had been made, exceptions had been filed and overruled, and the
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Justice Scalia
| 2,004 | 9 |
majority
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Grupo Dataflux v. Atlas Global Group, LP
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https://www.courtlistener.com/opinion/134744/grupo-dataflux-v-atlas-global-group-lp/
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been made, exceptions had been filed and overruled, and the case had come to the Court on appeal from the order confirming the land sale. Writing for the Court, Chief Justice Fuller adhered to the principle set forth in that "jurisdiction depending on the condition of the party is governed by that condition, as it was at the commencement of the suit." "[J]urisdiction," he reasoned, "could no more be given by the amendment than if a citizen of Florida had sued another in *572 that court and subsequently sought to give it jurisdiction by removing from the State." 138 U.S.,[3] It is uncontested that application of the time-of-filing rule to this case would require dismissal, but Atlas contends that this Court "should accept the very limited exception created by the Fifth Circuit to the time-of-filing principle." Brief for Respondents 2. The Fifth Circuit and Atlas rely on our statement in Caterpillar, that "[o]nce a diversity case has been tried in federal court considerations of finality, efficiency, and economy become overwhelming." This statement unquestionably provided the ratio decidendi in Caterpillar, but it did not augur a new approach to deciding whether a jurisdictional defect has been cured. Caterpillar broke no new ground, because the jurisdictional defect it addressed had been cured by the dismissal of the party that had destroyed diversity. That method of curing a jurisdictional defect had long been an exception to the time-of-filing rule. "[T]he question always is, or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of some of the parties, whether they are indispensable parties, for if their interests are severable and a decree without prejudice to their rights may be made, the jurisdiction of the court should be retained and the suit dismissed as to them." Federal Rule of Civil Procedure 21 provides that "[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." By now, "it is *573 well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dropped at any time, even after judgment has been rendered." Newman-Green, Indeed, the Court held in Newman-Green that courts of appeals also have the authority to cure a jurisdictional defect by dismissing a dispensable nondiverse party. Caterpillar involved an unremarkable application of this established exception. Complete diversity had been lacking at the time of removal to federal court, because one of the plaintiffs shared Kentucky
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to federal court, because one of the plaintiffs shared Kentucky citizenship with one of the defendants. Almost three years after the District Court denied a motion to remand, but before trial, the diversity-destroying defendant settled out of the case and was dismissed. The case proceeded to a 6-day jury trial, resulting in judgment for the defendant, Caterpillar, against Lewis. This Court unanimously held that the lack of complete diversity at the time of removal did not require dismissal of the case. The sum of Caterpillar's jurisdictional analysis was an approving acknowledgment of Lewis's admission that there was "complete diversity, and therefore federal subject-matter jurisdiction, at the time of trial and judgment." The failure to explain why this solved the problem was not an oversight, because there was nothing novel to explain. The postsettlement dismissal of the diversity-destroying defendant cured the jurisdictional defect just as the dismissal of the diversity-destroying party had done in Newman-Green. In both cases, the less-than-complete diversity which had subsisted throughout the action had been converted to complete diversity between the remaining parties to the final judgment. See also at While recognizing that Caterpillar is "technically" distinguishable because the defect was cured by the dismissal of a diversity-destroying party, the Fifth Circuit reasoned that *574 "this factor was not at the heart of the Supreme Court's analysis." -173. The crux of the analysis, according to the Fifth Circuit, was Caterpillar's statement that "[o]nce a diversity case has been tried in federal court considerations of finality, efficiency, and economy become overwhelming." 519 U.S., This was indeed the crux of analysis in Caterpillar, but analysis of a different issue. It related not to cure of the jurisdictional defect, but to cure of a statutory defect, namely, failure to comply with the requirement of the removal statute, 28 U.S. C. 41(a), that there be complete diversity at the time of removal.[4] The argument to which the statement was directed took as its starting point that subject-matter jurisdiction had been satisfied: "ultimate satisfaction of the subject-matter jurisdiction requirement ought not swallow up antecedent statutory violations." The resulting holding of Caterpillar, therefore, is only that a statutory defect"Caterpillar's failure to meet the 41(a) requirement that the case be fit for federal adjudication at the time the removal petition is filed," at 73did not require dismissal once there was no longer any jurisdictional defect. III To our knowledge, the Court has never approved a deviation from the rule articulated by Chief Justice Marshall in 1829 that "[w]here there is no change of party, a jurisdiction depending on the condition of the party is
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Grupo Dataflux v. Atlas Global Group, LP
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a jurisdiction depending on the condition of the party is governed by that condition, as it was at the commencement of the suit." Conolly, 2 Pet., at Unless the Court is to manufacture a brand-new exception to the time-of-filing rule, *575 dismissal for lack of subject-matter jurisdiction is the only option available in this case. The purported cure arose not from a change in the parties to the action, but from a change in the citizenship of a continuing party. Withdrawal of the Mexican partners from Atlas did not change the fact that Atlas, the single artificial entity created under Texas law, remained a party to the action. True, the composition of the partnership, and consequently its citizenship, changed. But allowing a citizenship change to cure the jurisdictional defect that existed at the time of filing would contravene the principle articulated by Chief Justice Marshall in Conolly.[5] We decline to do today what the Court has refused to do for the past 175 years. Apart from breaking with our longstanding precedent, holding that "finality, efficiency, and judicial economy" can justify suspension of the time-of-filing rule would create an exception of indeterminate scope. The Court of Appeals sought to cabin the exception with the statement that "[i]f at any point prior to the verdict or ruling, the [absence of diversity at the time of filing] is raised, the court must apply the general rule and dismiss regardless of subsequent *576 changes in citizenship." 312 F.3d, at This limitation is unsound in principle and certain to be ignored in practice. It is unsound in principle because there is no basis in reason or logic to dismiss preverdict if in fact the change in citizenship has eliminated the jurisdictional defect. Either the court has jurisdiction at the time the defect is identified (because the parties are diverse at that time) or it does not (because the postfiling citizenship change is irrelevant). If the former, then dismissal is inappropriate; if the latter, then retention of jurisdiction postverdict is inappropriate. Only two escapes from this dilemma come to mind, neither of which is satisfactory. First, one might say that it is not any change in party citizenship that cures the jurisdictional defect, but only a change that remains unnoticed until the end of trial. That is not so much a logical explanation as a restatement of the illogic that produces the dilemma. There is no conceivable reason why the jurisdictional deficiency which continues despite the citizenship change should suddenly disappear upon the rendering of a verdict. Second, one might say that there never was a
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verdict. Second, one might say that there never was a cure, but that the party who failed to object before the end of trial forfeited his objection. This is logical enough, but comes up against the established principle, reaffirmed earlier this Term, that "a court's subject-matter jurisdiction cannot be expanded to account for the parties' litigation conduct." "A litigant generally may raise a court's lack of subject-matter jurisdiction at any time in the same civil action, even initially at the highest appellate instance." Because the Fifth Circuit's attempted limitation upon its new exception makes a casualty either of logic or of this Court's jurisprudence, there is no principled way to defend it. And principled or not, the Fifth Circuit's artificial limitation is sure to be discarded in practice. Only 8% of diversity cases concluded in 2003 actually went to trial, and the median time from filing to trial disposition was nearly two years. *577 See Administrative Office of the United States Courts, Statistics on Diversity Filings and Terminations in District Courts for Calendar Year 2003 (on file with the Clerk of Court). In such a litigation environment, an approach to jurisdiction that focuses on efficiency and judicial economy cannot possibly be held to the line drawn by the Court of Appeals. As Judge Garza observed in his dissent: "[T]here is no difference in efficiency terms between the jury verdict and, for example, the moment at which the jury retires. Nor, for that matter, is there a large difference between the verdict and mid-way through the trial. Indeed, in complicated cases requiring a great deal of discovery, the parties and the court often expend tremendous resources long before the case goes to trial." IV The dissenting opinion rests on two principal propositions: (1) the jurisdictional defect in this case was cured by a change in the composition of the partnership; and (2) refusing to recognize an exception to the time-of-filing rule in this case wastes judicial resources, while creating an exception does not. We discuss each in turn. A Unlike the dissent, our opinion does not turn on whether the jurisdictional defect here contained at least "minimal diversity."[6] Regardless of how one characterizes the acknowledged *578 jurisdictional defect, it was never cured. The only two ways in which one could conclude that it had been cured would be either (1) to acknowledge that a party's postfiling change of citizenship can cure a time-of-filing jurisdictional defect, or (2) to treat a change in the composition of a partnership like a change in the parties to the action. The Court has never, to
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the parties to the action. The Court has never, to our knowledge, done the former; and not even the dissent suggests that it ought to do so in this case.[7] The dissent diverges from our analysis by adopting the latter approach, stating that "this case seems indistinguishable from one in which there is a change in the parties to the action." Post, at 591 (internal quotation marks omitted). This equation of a dropped partner with a dropped party is flatly inconsistent with The dissent in sought to apply a "real party to the controversy" approach to determine which partners counted for purposes of jurisdictional analysis. The majority rejected that approach, * reasoning that "[t]he question presented today is not which of various parties before the Court should be considered for purposes of determining whether there is complete diversity of citizenship. There are not multiple respondents before the Court, but only one: the artificial entity called Arkoma Associates, a limited partnership." n. 1. Today's dissent counters that "[w]hile a partnership may be characterized as a single artificial entity, a district court determining whether diversity jurisdiction exists looks to the citizenship of the several persons composing [the entity]." Post, at 591, n. 8 (internal quotation marks and citations omitted). It is true that the court "looks to" the citizenship of the several persons composing the entity, but it does so for the purpose of determining the citizenship of the entity that is a party, not to determine which citizens who compose the entity are to be treated as parties. See n. 1 ;[8] There was from the beginning of this action a single plaintiff (Atlas), which, under was not diverse from the sole defendant (Dataflux). Thus, this case fails to present "two adverse parties [who] are not co-citizens." State Farm Fire & Casualty Contrary to the dissent's characterization, then, this is not a *580 case like Caterpillar or Newman-Green in which "party lineup changes simply trimmed the litigation down to an ever-present core that met the statutory requirement." Post, at 591. Rather, this is a case in which a single party changed its citizenship by changing its internal composition. The incompatibility with prior law of the dissent's attempt to treat a change in partners like a change in parties is revealed by a curious anomaly: It would produce a case unlike every other case in which dropping a party has cured a jurisdictional defect, in that no judicial action (such as granting a motion to dismiss) was necessary to get the jurisdictional spoilers out of the case. Indeed, judicial action to that
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spoilers out of the case. Indeed, judicial action to that end was not even possible: The court could hardly have "dismissed" the partners from the partnership to save jurisdiction.[9] B We now turn from consideration of the conceptual difficulties with the dissent's disposition to consideration of its practical consequences. The time-of-filing rule is what it is precisely because the facts determining jurisdiction are subject to change, and because constant litigation in response to that change would be wasteful. The dissent would have it that the time-of-filing rule applies to establish that a court has jurisdiction (and to protect that jurisdiction from later destruction), but does not apply to establish that a court lacks jurisdiction (and to prevent postfiling changes that perfect jurisdiction). Post, at 583-584. But whether destruction or perfection of jurisdiction is at issue, the policy goal *581 of minimizing litigation over jurisdiction is thwarted whenever a new exception to the time-of-filing rule is announced, arousing hopes of further new exceptions in the future. Cf. Dretke v. Haley, ante, at 394-395 (recognizing that the creation of exceptions to judge-made procedural rules will enmesh the federal courts in litigation testing the boundaries of each new exception). That litigation-fostering effect would be particularly strong for a new exception derived from such an expandable concept as the "efficiency" rationale relied upon by the dissent. The dissent argues that it is essential to uphold jurisdiction in this and similar cases because dismissal followed by refiling condemns the parties to "an almost certain replay of the case, with, in all likelihood, the same ultimate outcome." Post, at 595. But if the parties expect "the same ultimate outcome," they will not waste time and resources slogging through a new trial. They will settle, with the jury's prior verdict supplying a range for the award. Indeed, settlement instead of retrial will probably occur even if the parties do not expect the same ultimate outcome. When the stakes remain the same and the players have been shown each other's cards, they will not likely play the hand all the way through just for the sake of the game. And finally, even if the parties run the case through complete "relitigation in the very same District Court in which it was first filed in 1997," post, at 598, the "waste" will not be great. Having been through three years of discovery and pretrial motions in the current case, the parties would most likely proceed promptly to trial. Looked at in its overall effect, and not merely in its application to the sunk costs of the present case, it
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application to the sunk costs of the present case, it is the dissent's proposed rule that is wasteful. Absent uncertainty about jurisdiction (which the dissent's readiness to change settled law would preserve for the future), the obvious course, for a litigant whose suit was dismissed as Atlas's was, would have been immediately to file a new action. That is in fact what *582 Atlas did, though it later dismissed the new case without prejudice. Had that second suit been pursued instead of this one, there is little doubt that the dispute would have been resolved on the merits by now. Putting aside the time that has passed between the Fifth Circuit's decision and today, there were two years of wasted time between dismissal of the action and the Fifth Circuit's reversal of that dismissaltime that the parties could have spent litigating the merits (or engaging in serious settlement talks) instead of litigating jurisdiction. Atlas and Dataflux have thus far litigated this case for more than 6½ years, including 3½ years over a conceded jurisdictional defect. Compared with the one month it took the Magistrate Judge to apply the time-of-filing rule and when the jurisdictional problem was brought to her attention, this waste counsels strongly against any course that would impair the certainty of our jurisdictional rules and thereby encourage similar jurisdictional litigation. * * * We decline to endorse a new exception to a time-of-filing rule that has a pedigree of almost two centuries. Uncertainty regarding the question of jurisdiction is particularly undesirable, and collateral litigation on the point particularly wasteful. The stability provided by our time-tested rule weighs heavily against the approval of any new deviation. The judgment of the Fifth Circuit is reversed. It is so ordered.
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Carmell v. Texas
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An amendment to a Texas statute that went into effect on September 1, 9, authorized conviction of certain sexual offenses on the victim's testimony alone. The previous statute required the victim's testimony plus other corroborating evidence to convict the offender. The question presented is whether that amendment may be applied in a trial for offenses committed before the amendment's effective date without violating the constitutional prohibition against state "ex post facto " laws. I In 96, a Texas grand jury returned a -count indictment charging petitioner with various sexual offenses against his stepdaughter. The alleged conduct took place over more than four years, from February to March 95, when the victim was 12 to 16 years old. The conduct ceased after the victim told her mother what had happened. Petitioner was convicted on all counts. The two most serious counts charged him with aggravated sexual assault, and petitioner was sentenced to life imprisonment on those two counts. *517 For each of the other 1 offenses (5 counts of sexual assault and 8 counts of indecency with a child), petitioner received concurrent sentences of 20 years. Until September 1, 9, the following statute was in effect in Texas: "A conviction under Chapter 21, Section 22.011, or Section 22.021, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred. The requirement that the victim inform another person of an alleged offense does not apply if the victim was younger than 14 years of age at the time of the alleged offense." Tex. Code Crim. Proc. Ann., Art. 8.07 (Vernon 8).[1] We emphasize three features of this law that are critical to petitioner's case. The first is the so-called "outcry or corroboration" requirement. Under that provision, a victim's testimony can support a conviction for the specified offenses only if (1) that testimony is corroborated by other evidence, or (2) the victim informed another person of the offense within six months of its occurrence (an "outcry"). The second feature is the "child victim" provision, which is an exception to the outcry or corroboration requirement. According to this provision, if the victim was under 14 years old at the time of the alleged offense, the outcry or corroboration requirement does not apply and the victim's testimony alone can support a convictioneven without any corroborating evidence or outcry. The third feature is that Article 8.07 establishes a sufficiency *518 of the evidence
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that Article 8.07 establishes a sufficiency *518 of the evidence rule respecting the minimum quantum of evidence necessary to sustain a conviction. If the statute's requirements are not met (for example, by introducing only the uncorroborated testimony of a -year-old victim who did not make a timely outcry), a defendant cannot be convicted, and the court must enter a judgment of acquittal. See ; Conversely, if the requirements are satisfied, a conviction, in the words of the statute, "is supportable," and the case may be submitted to the jury and a conviction sustained. See ; see also[2] Texas amended Article 8.07, effective September 1, 9. The amendment extended the child victim exception to victims under 18 years old.[] For four of petitioner's counts, *5 that amendment was critical. The "outcry or corroboration" requirement was not satisfied for those convictions;[4] they rested solely on the victim's testimony. Accordingly, the verdicts on those four counts stand or fall depending on whether the child victim exception applies. Under the old law, the exception would not apply, because the victim was more than 14 years old at the time of the alleged offenses. Under the new law, the exception would apply, because the victim was under 18 years old at that time. In short, the validity of four of petitioner's convictions depends on whether the old or new law applies to his case, which, in turn, depends on whether the Ex Post Facto Clause prohibits the application of the new version of Article 8.07 to his case. As mentioned, only 4 of petitioner's total convictions are implicated by the amendment to Article 8.07; the other 11 countsincluding the 2 convictions for which petitioner received life sentencesare uncontested. Six counts are uncontested because they were committed when the victim was under 14 years old, so his convictions stand even under the old law; the other five uncontested counts were committed after the new Texas law went into effect, so there could be no ex post facto claim as to those convictions. See *520 1 What are at stake, then, are the four convictions on counts 7 through 10 for offenses committed between June 92 and July 9 when the victim was 14 or years old and the new Texas law was not in effect. Petitioner appealed his four convictions to the Court of Appeals for the Second District of Texas in Fort Worth. See 96 S.W.2d 8 Petitioner argued that under the pre-9 version of Article 8.07, which was the law in effect at the time of his alleged conduct, those convictions could not stand,
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time of his alleged conduct, those convictions could not stand, because they were based solely on the victim's testimony, and the victim was not under 14 years old at the time of the offenses, nor had she made a timely outcry. The Court of Appeals rejected petitioner's argument. Under the 9 amendment to Article 8.07, the court observed, petitioner could be convicted on the victim's testimony alone because she was under 18 years old at the time of the offenses. The court held that applying this amendment retrospectively to petitioner's case did not violate the Ex Post Facto Clause: "The statute as amended does not increase the punishment nor change the elements of the offense that the State must prove. It merely `removes existing restrictions upon the competency of certain classes of persons as witnesses' and is, thus, a rule of procedure." at 86. The Texas Court of Criminal Appeals denied discretionary review. Because the question whether the retrospective application of a statute repealing a corroboration requirement has given rise to conflicting decisions,[5] we granted petitioner's *521 pro se petition for certiorari, and appointed counsel, II To prohibit legislative Acts "contrary to the first principles of the social compact and to every principle of sound legislation,"[6] the Framers included provisions they considered to be "perhaps greater securities to liberty and republicanism than any [the Constitution] contains."[7] The provisions declare: "No State shall pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts" U. S. Const., Art. I, 10.[8] The proscription against ex post facto laws "necessarily requires some explanation; for, naked and without explanation, it is unintelligible, and means nothing." Dall. 86, 90 In Justice Chase stated that the necessary explanation is derived from English common law well known to the Framers: "The expressions `ex post facto laws, ` are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by Legislators, Lawyers, and Authors. " at 91; see also at 89 ; at 96 Specifically, the *522 phrase "ex post facto" referred only to certain types of criminal laws. Justice Chase cataloged those types as follows: "I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. d. Every law that changes the punishment, and inflicts a
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d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. " at 90[9] It is the fourth category that is at issue in petitioner's case. The common-law understanding explained by Justice Chase drew heavily upon the authoritative exposition of one of the great scholars of the common law, Richard Wooddeson. See at 91[10]*52 Wooddeson's classification divided ex post facto laws into three general categories: those respecting the crimes themselves; those respecting the legal rules of evidence; and those affecting punishment (which he further subdivided into laws creating a punishment and those making an existing punishment more severe).[11] See 2 R. Wooddeson, A Systematical View of the Laws of England 625-640 (1792) (Lecture 41) (hereinafter Wooddeson). Those three categories (the last of which was further subdivided) correlate precisely to `s four categories. Justice Chase also used language in describing the categories that corresponds directly to Wooddeson's phrasing.[12] Finally, in four *524 footnotes in Justice Chase's opinion, he listed examples of various Acts of Parliament illustrating each of the four categories. See Dall., at 89, nn. *, , ,[1] Each of these examples is exactly the same as the ones [bardbl]Wooddeson himself used in his treatise. See 2 Wooddeson 629 (case of the Earl of Strafford); at 64 ; at 68 ; at 69 `s four categories, which embraced Wooddeson's formulation, were, in turn, soon embraced by contemporary scholars. Joseph Story, for example, in writing on the Ex Post Facto Clause, stated: "The general interpretation has been, and is, that the prohibition reaches every law, whereby an act is declared a crime, and made punishable as such, when it was not a crime, when done; or whereby the act, if a crime, is aggravated in enormity, or punishment; or whereby different, or less evidence, is required to convict an offender, than was required, when the act was committed." Commentaries on the Constitution of the United States p. 212 (18). James Kent concurred in this understanding of the Clause: "[T]he words ex post facto laws were technical expressions, and meant every law that made an act done before the passing of the law, and which was innocent when done, criminal; or which aggravated a crime, and *525 made it greater than it was when committed; or which changed the punishment, and inflicted a greater punishment than the
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changed the punishment, and inflicted a greater punishment than the law annexed to the crime when committed; or which altered the legal rules of evidence, and received less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender." 1 Commentaries on American Law 408 (d ed. 186) (Lecture ). This Court, moreover, has repeatedly endorsed this understanding, including, in particular, the fourth category (sometimes quoting Chase's words verbatim, sometimes simply paraphrasing). See 5 U.S. 4, 441, n. 1 ; 42 U.S. 282, 29 ; 27 U.S. 180, 18-184 ; 59-594 ; 171 U.S. 80, 82, 87 ; ; ; 2 U.S. 77, 82 ; ; (188), overruled on other grounds, 497 U.S. 7 ; 9 Wall. 5, 8 ; Ex parte Garland, 4 Wall. 90-91 ; 25-26, 28 State courts, too, in the years following adopted Justice Chase's four-category formulation. See Boston & ; Blackf. 275, (Ind. 18); 24 Ky. 56, ; 1 Blackf. ; 7 N. C. 27, 0 ; see also Woart v. Winnick, N. H. 47, 475 (Super. Ct. 1826).[14] *526 III As mentioned earlier, Justice Chase and Wooddeson both cited several examples of ex post facto laws, and, in particular, cited the case of Sir John Fenwick as an example of the fourth category. To better understand the type of law that falls within that category, then, we turn to Fenwick's case for preliminary guidance. Those who remained loyal to James II after he was deposed by King William III in the Revolution of 1688 thought their opportunity for restoration had arrived in 1695, following the death of Queen Mary. 9 T. Macaulay, History of England 1 (1899) (hereinafter Macaulay). Sir John Fenwick, along with other Jacobite plotters including George Porter and Cardell Goodman, began concocting their scheme in the spring of that year, and over the next several months the original circle of conspirators expanded in number. at 2, 47-48, 109-110. Before the conspirators could carry out their machinations, however, three members of the group disclosed the plot to William. One by one, the participants were arrested, tried, and convicted of treason. Fenwick, though, remained in hiding while the rest of the cabal was brought to justice. During that time, the trials of his accomplices revealed that there were only two witnesses among them who could prove Fenwick's guilt, Porter and Goodman. at 170 171. As luck would have it, an act of Parliament proclaimed that two witnesses were necessary to convict a person of high treason. See An Act for Regulateing of
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person of high treason. See An Act for Regulateing of Tryals in *527 Cases of Treason and Misprision of Treason, 7 & 8 Will. III, ch. 2 (1695-1696), in 7 Statutes of the Realm 6 (reprint ).[] Thus, Fenwick knew that if he could induce either Porter or Goodman to abscond, the case against him would vanish. 9 Macaulay 171. Fenwick first tried his hand with Porter. Fenwick sent his agent to attempt a bribe, which Porter initially accepted in exchange for leaving for France. But then Porter simply pocketed the bribe, turned in Fenwick's agent (who was promptly tried, convicted, and pilloried), and proceeded to testify against Fenwick (along with Goodman) before a grand jury. at 171-17. When the grand jury returned an indictment for high treason, Fenwick attempted to flee the country himself, but was apprehended and brought before the Lord Justices in London. Sensing an impending conviction, Fenwick threw himself on the mercy of the court and offered to disclose all he knew of the Jacobite plotting, aware all the while that the judges would soon leave the city for their circuits, and a delay would thus buy him a few weeks time. at 17-174. Fenwick was granted time to write up his confession, but rather than betray true Jacobites, he concocted a confession calculated to accuse those loyal to William, hoping to introduce embarrassment and perhaps a measure of instability to the current regime. William, however, at once perceived Fenwick's design and rejected the confession, along with any expectation of mercy. at 178 *528 180, 4. Though his contrived ploy for leniency was unsuccessful in that respect, it proved successful in another: during the delay, Fenwick's wife had succeeded in bribing Goodman, the other witness against him, to leave the country.[16] Without a second witness, Fenwick could not be convicted of high treason under the statute mentioned earlier. For all his plotting, however, Fenwick was not to escape. After Goodman's absence was discovered, the House of Commons met and introduced a bill of attainder against Fenwick to correct the situation produced by the combination of bribery and the two-witness law. A lengthy debate ensued, during which the Members repeatedly discussed whether the two-witness rule should apply.[17] Ultimately, the bill passed by a close vote of 189 to 6, notwithstanding the objections of Members who (foreshadowing `s fourth category) complained that Fenwick was being attainted "upon less Evidence" than *529 would be required under the two-witness law,[18] and despite the repeated importuning against the passing of an ex post facto law.[] The bill then was taken up
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ex post facto law.[] The bill then was taken up and passed by the *50 House of Lords, and the King gave his assent. at 214 225; see also An Act to Attaint Sir John Fenwick Baronet of High Treason, 8 Will. III, ch. 4 (1696). On January 28, 1697, Sir John Fenwick was beheaded. 9 Macaulay 226-227. IV Article 8.07 is unquestionably a law "that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." Under the law in effect at the time the acts were committed, the prosecution's case was legally insufficient and petitioner was entitled to a judgment of acquittal, unless the State could produce both the victim's testimony and corroborative evidence. The amended law, however, changed the quantum of evidence necessary to sustain a conviction; under the new law, petitioner could be (and was) convicted on the victim's testimony alone, without any corroborating evidence. Under any commonsense understanding of `s fourth category, Article 8.07 plainly fits. Requiring only the victim's testimony to convict, rather than the victim's testimony plus other corroborating evidence is surely "less testimony required to convict" in any straightforward sense of those words. Indeed, the circumstances of petitioner's case parallel those of Fenwick's case 00 years earlier. Just as the relevant law in Fenwick's case required more than one witness' testimony to support a conviction (namely, the testimony of a second witness), Texas' old version of Article 8.07 required more than the victim's testimony alone to sustain a conviction (namely, other corroborating evidence).[20] And just like Fenwick's *51 bill of attainder, which permitted the House of Commons to convict him with less evidence than was otherwise required, Texas' retrospective application of the amendment to Article 8.07 permitted petitioner to be convicted with less than the previously required quantum of evidence. It is true, of course, as the Texas Court of Appeals observed, that "[t]he statute as amended does not increase the punishment nor change the elements of the offense that the State must prove." 96 S.W.2d, at 86. But that observation simply demonstrates that the amendment does not fit within `s first and third categories. Likewise, the dissent's remark that "Article 8.07 does not establish an element of the offense," post, at 559, only reveals that the law does not come within `s first category. The fact that the amendment authorizes a conviction on less evidence than previously required, however, brings it squarely within the fourth category. V The fourth category, so
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squarely within the fourth category. V The fourth category, so understood, resonates harmoniously with one of the principal interests that the Ex Post Facto Clause was designed to serve, fundamental justice.[21] *52 Justice Chase viewed all ex post facto laws as "manifestly unjust and oppressive. " Dall., at 91. Likewise, Blackstone condemned them as "cruel and unjust," 1 Commentaries on the Laws of England 46 (1765), as did every state constitution with a similar clause, see n. 25, infra. As Justice Washington explained in characterizing "[t]he injustice and tyranny" of ex post facto laws: "Why did the authors of the constitution turn their attention to this subject, which, at the first blush, would appear to be peculiarly fit to be left to the discretion of those who have the police and good government of the State under their management and control? The only answer to be given is, because laws of this character are oppressive, unjust, and tyrannical; and, as such, are condemned by the universal sentence of civilized man." 12 Wheat. 21, In short, the Ex Post Facto Clause was designed as "an additional bulwark in favour of the personal security of the subject," Dall., at 90 to protect against "the favorite and most formidable instruments of tyranny," The Federalist No. 84, p. 512 (C. Rossiter ed. 1) (A. Hamilton), that were "often used to effect the most detestable purposes," Dall., at 96 `s fourth category addresses this concern precisely. A law reducing the quantum of evidence required to convict an offender is as grossly unfair as, say, retrospectively eliminating an element of the offense, increasing the punishment for an existing offense, or lowering the burden of proof (see infra, at 540-544). In each of these instances, the government subverts the presumption of innocence by reducing the number of elements it must prove to overcome that presumption; by threatening such severe punishment so as to induce a plea to a lesser offense or a lower sentence; or by making it easier to meet the threshold for overcoming the presumption. Reducing the quantum of evidence necessary *5 to meet the burden of proof is simply another way of achieving the same end.[22] All of these legislative changes, in a sense, are mirror images of one another. In each instance, the government refuses, after the fact, to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate an easier conviction. There is plainly a fundamental fairness interest, even apart from any claim of reliance or notice, in having the government abide by
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of reliance or notice, in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.[2] Indeed, Fenwick's case is itself an illustration of this principle. Fenwick could claim no credible reliance interest in the two-witness statute, as he could not possibly have known that only two of his fellow conspirators would be able to testify as to his guilt, nor that he would be successful in bribing one of them to leave the country. Nevertheless, Parliament had enacted the two-witness law, and there was *54 a profound unfairness in Parliament's retrospectively altering the very rules it had established, simply because those rules prevented the conviction of the traitornotwithstanding the fact that Fenwick could not truly claim to be "innocent." (At least one historian has concluded that his guilt was clearly established, see 9 Macaulay 20-204, and the debate in the House of Commons bears out that conclusion, see, e. g., Proceedings 2, 20, 246, 265, 289.) Moreover, the pertinent rule altered in Fenwick's case went directly to the general issue of guilt, lowering the minimum quantum of evidence required to obtain a conviction. The Framers, quite clearly, viewed such maneuvers as grossly unfair, and adopted the Ex Post Facto Clause accordingly.[24] VI The United States as amicus asks us to revisit the accuracy of the fourth category as an original matter. None of its reasons for abandoning the category is persuasive. *55 First, pointing to Blackstone's Commentaries and a handful of state constitutions cited by Justice Chase in see Dall., at 91-92, the United States asserts that Justice Chase simply got it wrong with his four categories. Blackstone wrote: "There is still a more unreasonable method than this, which is called making of laws ex post facto; when after an action is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it" 1 Commentaries on the Laws of England, at 46 The ex post facto clauses in Ratification-era state constitutions to which Justice Chase cited are of a piece.[25] The United States directs our attention to the fact that none of these definitions mentions Justice Chase's fourth category. All of these sources, though, are perfectly consistent with Justice Chase's first category of ex post facto laws. None of them is incompatible with his four-category formulation, unless we accept the premise that Blackstone and the state constitutions purported to express the exclusive definition of an ex
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constitutions purported to express the exclusive definition of an ex post facto law. Yet none appears to do so on its face. And if those definitions were read as exclusive, the United *56 States' argument would run up against a more troubling obstacle, namely, that neither Blackstone nor the state constitutions mention `s third category either (increases in punishment). The United States, in effect, asks us to abandon two of `s categories based on the unsupported supposition that the Blackstonian and state constitutional definitions were exclusive, and upon the implicit premise that neither Wooddeson, Chase, Story, Kent, nor subsequent courts (state and federal) realized that was so. We think that simply stating the nature of the request demonstrates why it must be rejected.[26] Next, the United States contends Justice Chase was mistaken to cite the case of Sir John Fenwick as an example of an ex post facto law, because it was actually a bill of attainder. Fenwick was indeed convicted by a bill of attainder, but it does not follow that his case cannot also be an example of an ex post facto law. Clearly, Wooddeson thought it was, see 2 Wooddeson 641, as did the House of Commons, see n. and we are aware of no rule stating that a single historical event can explain one, but not two, constitutional Clauses (actually, three Clauses, see Art. III, (Treason Clause)). We think the United States' observation simply underscores the kinship between bills of attainder and ex post facto laws, see 4 U.S. 425, 468, n. 0 ; United 28 U.S. 0, 2 (46) ; see also Z. Chafee, Three Human Rights in the Constitution of 1787, pp. 92-9 (56) (hereinafter *57 Chafee), which may explain why the Framers twice placed their respective prohibitions adjacent to one another. And if the United States means to argue that category four should be abandoned because its illustrative example was a bill of attainder, this would prove entirely too much, because all of the specific examples listed by Justice Chase were passed as bills of attainder.[27] Finally, both Texas and the United States argue that we have already effectively cast out the fourth category in 497 U.S. 7 Collins held no such thing. That case began its discussion of the Ex Post Facto Clause by quoting verbatim Justice Chase's "now familiar opinion in " and his four-category definition. After noting that "[e]arly opinions of the Court portrayed this as an exclusive definition of ex post facto laws," the Court then quoted from our opinion in (25): "`It is settled, by decisions of this
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opinion in (25): "`It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post *58 facto. `"Collins, 497 U. S., (quoting -170). Collins then observed in a footnote: "The definition omits the reference by Justice Chase in to alterations in the `legal rules of evidence.' As cases subsequent to make clear, this language was not intended to prohibit the application of new evidentiary rules in trials for crimes committed before the changes." 497 U.S., at 4, n. Collins then commented that "[t]he formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause." at 4. It seems most accurate to say that Collins is rather cryptic. While calling `s four categories the "exclusive definition" of ex post facto laws, it also calls `s definition a "faithful" rendition of the "original understanding" of the Clause, even though that quotation omitted category four. And while Collins quotes a portion of omitting the fourth category, the immediately preceding paragraph in explains that the law at issue in that case did not change "[t]he quantum and kind of proof required to establish guilt," a statement distinguishing, rather than overruling, `s fourth category. If Collins had intended to resurrect a long forgotten original understanding of the Ex Post Facto Clause shorn of the fourth category, we think it strange that it would have done so in a footnote. Stranger still would be its reliance on a single case from 25, which did not even implicate, let alone purport to overrule, the fourth category, and which did not even mention Fenwick's case. But this Court does not discard longstanding precedent in this manner. Further still, Collins itself expressly overruled two of our prior cases; if the Court that day were intent on overruling part of as well, it surely would have said so directly, rather than act in such an ambiguous manner. *59 The better understanding of Collins' discussion of the Ex Post Facto Clause is that it eliminated a doctrinal hitch that had developed in our cases, which purported to define the scope of the Clause along an axis distinguishing between laws involving "substantial protections" and those that are merely "procedural." Both (188), and 170 U.S.
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those that are merely "procedural." Both (188), and 170 U.S. 4 the two cases Collins overruledrelied on just that distinction. In overruling them, the Court correctly pointed out, "the prohibition which may not be evaded is the one defined by the categories." Accordingly, Collins held that it was a mistake to stray beyond `s four categories, not that the fourth category was itself mistaken.[28] VII Texas next argues that even if the fourth category exists, it is limited to laws that retrospectively alter the burden of proof (which Article 8.07 does not do). See also post, at 572 (dissenting opinion). It comes to this conclusion on the basis of two pieces of evidence. The first is our decision in The second concerns Texas' historical understanding of Fenwick's case. *540 addressed an ex post facto challenge to certain amendments to the Missouri State Constitution made in 1865. When read together, those amendments listed a series of acts deemed criminal (all dealing with the giving of aid or comfort to anyone engaged in armed hostility against the United States), and then declared that unless a person engaged in certain professions (e. g., lawyers and clergymen) swore an oath of loyalty, he "shall, on conviction [for failing to swear the oath], be punished" by a fine, imprisonment, or both. We held that these provisions violated the Ex Post Facto Clause. Writing for the Court, Justice Field first observed that "[b]y an ex post facto law is meant one which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed; or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required." at 25-26. The Court then held the amendments violated the Ex Post Facto Clause in all these respects: some of the offenses deemed criminal by the amendments were not criminal acts before then, at 27-28; other acts were previously criminal, but now they carried a greater criminal sanction, at 28; and, most importantly for present purposes, the amendments permitted conviction on less testimony than was previously sufficient, because they "subvert the presumptions of innocence, and alter the rules of evidence, which heretofore, under the universally recognized principles of the common law, have been supposed to be fundamental and unchangeable," The Court continued: "They assume that the parties are guilty; they call upon the parties to establish their innocence; and they declare that such innocence can be shown only in one wayby an inquisition, in the form of an expurgatory oath,
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wayby an inquisition, in the form of an expurgatory oath, into the consciences of the parties." It is correct that held Missouri's constitutional amendments invalid under the fourth category because *541 they reversed the burden of proof. But nowhere suggests that a reversal of the burden of proof is all the fourth category encompasses. And we think there is no good reason to draw a line between laws that lower the burden of proof and laws that reduce the quantum of evidence necessary to meet that burden; the two types of laws are indistinguishable in all meaningful ways relevant to concerns of the Ex Post Facto Clause. See at 50 54; see also 4 Wall., at 25 As for Texas' second piece of evidence, it asserts that the law in Fenwick's case, requiring two witnesses to convict a person for high treason, traces its origins to the ancient Roman law concept known as the "rule of number," under which "the probative value of testimony would be increased if others testifying to the same facts swore an oath." Brief for Respondent 20. The "less testimony" to which Fenwick's case refers, the argument runs, concerns lowering the probative value required to convict, i. e., a reduction in the burden of proof. Even if that historical argument were correct, the same response to Texas' -based argument is applicable. But we think the historical premise is mistaken. If the testimony of one witness rather than two truly reflected a less credible showing, and if the House of Commons truly thought it labored under a lesser burden of proof, then one would expect some sort of reference to that in Fenwick's case. Yet the few direct references to the burden of proof that were made during the debates are to the contrary; they indicate something roughly the equivalent of a beyond-a-reasonabledoubt standard.[29] And at least one Member expressly declared *542 that the number of witnesses testifying bore no relationship to the overall credibility of the Crown's case.[0] It also appears that "[a]fter the middle of the 1600s there never was any doubt that the common law of England in jury trials rejected entirely" the Roman law concept of the rule of number. Wigmore, Required Numbers of Witnesses; A Brief History of the Numerical System in England, Harv. L. Rev. 8, 9 Though the treason statute at issue in Fenwick's case, and related antecedent acts, have a superficial resemblance to the rule of number, those acts in fact reflected a concern with prior monarchical abuses relating to the specific crime of treason, rather than any vestigial
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to the specific crime of treason, rather than any vestigial belief that the number of witnesses is a proxy for probative value. ; see also 7 J. Wigmore, Evidence 207, pp. 5-54 VIII Texas argues (following the holding of the Texas Court of Appeals) that the present case is controlled by and 171 U.S. 80 In Hopt, the defendant was convicted of murder. At trial, the prosecution introduced the testimony of a convicted felon that tended to inculpate the defendant. Hopt objected to the competency of the witness on the basis of a law in place at the time of the alleged murder, which stated: "`[T]he rules for determining the competency of witnesses in civil actions are applicable also to criminal actions' " The relevant civil rules, in turn, specified that "`all persons, without exception, may be witnesses in any action or proceeding,' " but "`persons against whom judgment has been rendered upon a conviction *54 for felony shall not be witnesses.'" -588. After the date of the alleged offense, but prior to defendant's trial, the last provision (excluding convicted felons from being witnesses) was repealed. The defendant argued that the retrospective application of the felon witness-competency provision violated the Ex Post Facto Clause. Because of the emphasis the parties (and the dissent) have placed on Hopt, it is worth quoting at length this Court's explanation for why it rejected the defendant's argument: "Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done; nor aggravate any crime theretofore committed; nor provide a greater punishment therefor than was prescribed at the time of its commission; nor do they alter the degree, or lessen the amount or measure, of the proof which was made neces- sary to conviction when the crime was committed. "The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute. Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offence was committed, might, in respect of that offence, be obnoxious to the constitutional inhibition upon ex post facto laws. But alterations which do not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary
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the ingredients of the offence or the ultimate facts necessary to establish guilt, butleaving untouched the nature of the crime and the amount or degree of proof essential to convictiononly remove existing restrictions upon the competency *544 of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the State, upon grounds of public policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury, can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offence charged." at also relied upon by Texas, involved a similar ex post facto challenge to the retrospective application of a law permitting the introduction of expert handwriting testimony as competent evidence, where the rule in place at the time of the offense did not permit such evidence to be introduced. Mainly on the authority of Hopt, the Court rejected Thompson's ex post facto challenge as well. Texas' reliance on Hopt is misplaced. Article 8.07 is simply not a witness competency rule.[1] It does not "simply enlarge the class of persons who may be competent to testify," and it does not "only remove existing restrictions upon the competency of certain classes of persons as witnesses." 110 U.S., at Both before and after the amendment, the victim's testimony was competent evidence. Texas Rule of Criminal Evidence 601(a) already prescribes that "[e]very person is competent to be a witness except as otherwise provided in these rules," and Rule 601(a)(2) already contains its own provision respecting child witnesses.[2]*545 As explained earlier, see 51 5, Article 8.07 is a sufficiency of the evidence rule. As such, it does not merely "regulat[e] the mode in which the facts constituting guilt may be placed before the jury," (Rule 601(a) already does that), but governs the sufficiency of those facts for meeting the burden of proof. Indeed, Hopt expressly distinguished witness competency laws from those laws that "alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed." 110 U.S., at ; see also It is profitable, in this respect, to compare the statutes in Hopt and Thompson with the text of Article 8.07. The law in Hopt proscribed a "`rul[e] for determining the competency of witnesses'" that stated "`persons convict[ed of a] felony shall not be witnesses.'" -588. The statute in Thompson, similarly, specified that "`comparison of a disputed writing shall be
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similarly, specified that "`comparison of a disputed writing shall be permitted to be made by witnesses, and such writings may be submitted to the court and jury as evidence.'" 171 U.S., at 81. Article 8.07, however, speaks in terms of whether "[a] conviction *546 is supportable on" certain evidence. It is Rule 601(a), not Article 8.07, that addresses who is "competent to testify." We think the differences in these laws are plain.[] Moreover, a sufficiency of the evidence rule resonates with the interests to which the Ex Post Facto Clause is addressed in a way that a witness competency rule does not. In particular, the elements of unfairness and injustice in subverting the presumption of innocence are directly implicated by rules lowering the quantum of evidence required to convict. Such rules will always run in the prosecution's favor, because they always make it easier to convict the accused. This is so even if the accused is not in fact guilty, because the coercive pressure of a more easily obtained conviction may induce a defendant to plead to a lesser crime rather than run the risk of conviction on a greater crime. Witness competency rules, to the contrary, do not necessarily run in the State's favor. A felon witness competency rule, for example, might help a defendant if a felon is able to relate credible exculpatory evidence. Nor do such rules necessarily affect, let alone subvert, the presumption of innocence. The issue of the admissibility of evidence is simply different from the question whether the properly admitted evidence is sufficient to convict the defendant. Evidence admissibility rules do not go to the general issue of guilt, nor to whether a conviction, as a matter of law, may be sustained. Prosecutors may satisfy all the requirements of any number of witness competency *547 rules, but this says absolutely nothing about whether they have introduced a quantum of evidence sufficient to convict the offender. Sufficiency of the evidence rules (by definition) do just thatthey inform us whether the evidence introduced is sufficient to convict as a matter of law (which is not to say the jury must convict, but only that, as a matter of law, the case may be submitted to the jury and the jury may convict). In the words of Article 8.07, "[a] conviction is supportable" when its requirements are met. IX The dissent contends that Article 8.07 is not a sufficiency of the evidence rule. It begins its argument by describing at length how the corroboration requirement "is premised on a legislative judgment that accusations made by sexual assault
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on a legislative judgment that accusations made by sexual assault victims above a certain age are not independently trustworthy." Post, at 556; see also post, at 557-559. But it does not follow from that premise that Article 8.07 cannot be a sufficiency of the evidence rule. Surely the legislature can address trustworthiness issues through witness competency rules and sufficiency of the evidence rules alike. Indeed, the statutory history to which the dissent points cuts against its own argument. Article 8.07's statutory antecedent, the dissent says, was a "replac[ement]" for the old common-law rule that seduced females were "`incompetent' " as witnesses. Post, at 557, 558. In 1891, Texas substituted a law stating that "`the female alleged to have been seduced shall be permitted to testify; but no conviction shall be had upon the testimony of the said female, unless the same is corroborated' "Post, at 558 That statute was recodified as Article 8.07 in 5, was repealed in 7, and then replaced in 75 by another version of Article 8.07. As reenacted, the law's language changed from "no conviction shall be had" to its current language that "[a] conviction is supportable." We think this legislative history, to the extent it is relevant for interpreting the current *548 law, demonstrates that Texas perceived the issue of witness trustworthiness as both an admissibility issue and as a sufficiency question; that it long ago abandoned its rule that victims of these types of crimes are incompetent as witnesses; and that Article 8.07 codifies Texas' sufficiency of the evidence solution to the trustworthiness issue. Next, the dissent argues that under Texas' law "the prosecution need not introduce the victim's testimony at all, much less any corroboration of that testimony." Post, at 559. Instead, "[u]nder both the old and new versions of the statute, a conviction could be sustained on the testimony of a single third-party witness, on purely circumstantial evidence, or in any number of other ways." Because other avenues of prosecutionbesides the victim's testimony (with or without corroboration or outcry)remain available to the State, Article 8.07 "did not change the quantity of proof necessary to convict in every case. " Post, at 560 ; see also post, at 561 ("Article 8.07 has never dictated what it takes in all cases for evidence to be sufficient to convict" ). Accordingly, the dissent urges, more evidence (in the form of corroboration) is not really required under Article 8.07. See post, at 560-561, 574. It is unclear whether the dissent's argument is that laws cannot be sufficiency of the evidence rules unless they apply to every
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sufficiency of the evidence rules unless they apply to every conviction for a particular crime, or whether the dissent means that sufficiency rules not applicable in every prosecution for a particular crime do not fall within `s fourth category, which refers to less testimony "required in order to convict the offender." Dall., at 90 Either way, the argument fails. Fenwick's case once again provides the guide. The dissent agrees that "[t]he treason statute in effect at the time of John Fenwick's conspiracy, like the Treason Clause of our Constitution, embodied a quantitative sufficiency [of the evidence] rule." Post, at 57. But, it argues, Fenwick's *549 law and the Treason Clause are different from Article 8.07; with the first two laws, "two witnesses [were] necessary to support a conviction," whereas with Article 8.07, the victim's testimony plus corroboration is not "necessary to convict in every case," post, at 560 But a closer look at Fenwick's law and at the Treason Clause shows that this supposed distinction is simply incorrect. Fenwick's law stated that no person could be convicted of high treason "but by and upon the Oaths and Testimony of Two lawfull Witnesses unlesse the Party indicted and arraigned or tryed shall willingly without violence in open Court confesse the same or shall stand Mute or refuse to plead" See n. And the Treason Clause, of course, states that "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. " U. S. Const., Art. III, Plainly, in neither instance were two witnesses "necessary to support a conviction," as the dissent claims. Accordingly, its assertion that Article 8.07 "is nothing like the two-witness rule on which Fenwick vainly relied" appears erroneous, as does its accusation that our reliance on Fenwick's case "simply will not wash." Post, at 57.[4] The dissent's final argument relies upon Hopt and runs something like this. The "effect" of Article 8.07, it claims, is the same, in certain cases, as a witness credibility rule. See post, at 559, 56-566, 575. However differently Hopt type *550 laws and Article 8.07 may seem to operate on their face, in practical application (at least in certain instances) their consequences are no different, and, accordingly, they ought to be treated alike. For example, if there were a rule declaring a victim to be incompetent to testify unless she was under a certain age at the time of the offense, or had made an outcry within a specified period of time, or had other corroborating evidence, and the
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period of time, or had other corroborating evidence, and the prosecution attempted to rest its case on the victim's testimony alone without satisfying those requirements, the end result would be a judgment of acquittal. Post, at 564-565. Likewise, under Article 8.07, if the prosecution attempts to rest its case on the victim's testimony alone without satisfying the Article's requirements, the result would also be an acquittal. Thus, Hopt -type laws and Article 8.07 should be treated the same way for ex post facto purposes. This argument seeks to make Hopt controlling by ignoring what the case says. Hopt specifically distinguished laws that "alter the degree, or lessen the amount or measure, of the proof" required to convict from those laws that merely respect what kind of evidence may be introduced at trial. See The above argument, though, simply denies any meaningful distinction between those types of laws, on the premise that they produce the same results in some situations. See post, at 56 ("Such a victim is of course not literally forbidden from testifying, but that cannot make the difference for Ex Post Facto Clause purposes between a sufficiency of the evidence rule and a witness competency rule"); post, at 571 ("Hopt cannot meaningfully be distinguished from the instant case"). In short, the argument finds Hopt controlling by erasing the case's controlling distinction. The argument also pays no heed to the example laid down by Fenwick's case. Surely we can imagine a witness competency rule that would operate in a manner similar to the law in that case (e. g., a witness to a treasonous act is not *551 competent to testify unless corroborated by another witness). Plainly, the imagined rule does not mean that Fenwick's case is not an example of an ex post facto law. But if that is so, why should it be any different for Article 8.07? Just as we can imagine a witness competency rule that would operate similarly to the statute in Fenwick's case, the above argument imagines a witness competency rule that operates similarly to Article 8.07. If the former does not change our view of the law in Fenwick's case, why should the latter change our view in the present circumstances? Moreover, the argument fails to account for what `s fourth category actually says, and tells only half the story of what a witness competency rule does. As for what says, the fourth category applies to "[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of
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the law required at the time of the commission of the offence, in order to convict the offender." Dall., at 90 The last six words are crucial. The relevant question is whether the law affects the quantum of evidence required to convict; a witness competency rule that (in certain instances at least) has the practical effect of telling us what evidence would result in acquittal does not really speak to `s fourth category. As for relating only half the story, the dissent's argument rests on the assertion that sometimes a witness competency rule will result in acquittals in the same instances in which Article 8.07 would also demand an acquittal. That may be conceded, but it is only half the storyand, as just noted, not the most relevant half. The other half concerns what a witness competency rule has to say about the evidence "required in order to convict the offender." The answer is, nothing at all. As mentioned earlier, see at 546 547, prosecutors may satisfy all the requirements of any number of witness competency rules, but this says absolutely nothing about whether they have introduced a quantum of *552 evidence sufficient to convict the offender. Sufficiency of the evidence rules, however, tell us precisely that.[5] X For these reasons, we hold that petitioner's convictions on counts 7 through 10, insofar as they are not corroborated by other evidence, cannot be sustained under the Ex Post Facto Clause, because Texas' amendment to Article 8.07 falls within `s fourth category. It seems worth remembering, at this point, Joseph Story's observation about the Clause: "`If the laws in being do not punish an offender, let him go unpunished; let the legislature, admonished of the *55 defect of the laws, provide against the commission of future crimes of the same sort. The escape of one delinquent can never produce so much harm to the community, as may arise from the infraction of a rule, upon which the purity of public justice, and the existence of civil liberty, essentially depend.' " Commentaries on the Constitution 18, at 211, n. 2. And, of course, nothing in the Ex Post Facto Clause prohibits Texas' prospective application of its amendment. Accordingly, the judgment of the Texas Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
|
Justice Stewart
| 1,971 | 18 |
dissenting
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NLRB v. Natural Gas Util. Dist. of Hawkins Cty.
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https://www.courtlistener.com/opinion/108347/nlrb-v-natural-gas-util-dist-of-hawkins-cty/
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I agree with the Court that federal, rather than state, law governs the determination of whether an employer is a "political subdivision" of the State within the meaning of 2 (2) of the National Labor Relations Act, as amended, 29 U.S. C. 152 (2). But I cannot agree that the Board erred in this case in concluding that the respondent is not entitled to exemption under the Act. In determining that the respondent Utility District was not a "political subdivision" of the State, the Board followed its settled policy of weighing all relevant factors, with particular emphasis here on the circumstances that the District is neither "created directly by the State" nor "administered by State-appointed or elected officials" and is "autonomous in the conduct of its day-to-day affairs." On the other side, the Board gave less weight to the State's characterization of a utility district as an arm of the State for purposes of exemption from state taxes and conferral of the power of eminent domain. This approach seems wholly acceptable to me, inasmuch *610 as state tax exemption and the power of eminent domain are not attributes peculiar to political subdivisions nor attributes with any discernible impact on labor relations. Attributes which would implicate labor policy, such as the payment of wages out of public funds or restrictions upon the right of the employees to strike, are not present here. The Court points to provisions that the records of the District be available for public inspection, and that the commissioners of the District hold hearings and make written findings. These factors are said to "betoken a state, rather than a private, instrumentality." The question, however, is not whether the District is a state instrumentality, but whether it is a "political subdivision" of the State. And the provisions in question hardly go to that issue. The Board's reasonable construction of the Act is entitled to great weight and it is not our function to weigh the facts de novo and displace its evaluation with our own. The Board here has made a reasoned decision which does no violence to the purposes of the Act. Accordingly, I would reverse the judgment of the Court of Appeals and remand the case with instructions to enforce the Board's order.
|
Justice Powell
| 1,976 | 17 |
majority
|
Simon v. Eastern Ky. Welfare Rights Organization
|
https://www.courtlistener.com/opinion/109462/simon-v-eastern-ky-welfare-rights-organization/
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Several indigents and organizations composed of indigents brought this suit against the Secretary of the Treasury and the Commissioner of Internal Revenue. They asserted that the Internal Revenue Service (IRS) violated the Internal Revenue Code of 14 (Code) and the Administrative Procedure Act (APA) by issuing a Revenue Ruling allowing favorable tax treatment to a nonprofit hospital that offered only emergency-room services to indigents. We conclude that these plaintiffs lack standing to bring this suit. I The Code, in its original version and by subsequent amendment, accords advantageous treatment to several types of nonprofit corporations, including exemption of *29 their income from taxation and deductibility by benefactors of the amounts of their donations. Nonprofit hospitals have never received these benefits as a favored general category, but an individual nonprofit hospital has been able to claim them if it could qualify as a corporation "organized and operated exclusively for charitable. purposes" within the meaning of 501 (c) (3) of the Code, 26 U.S. C. 501 (c) (3).[1] As the Code does not define the term "charitable," the status of each nonprofit hospital is determined on a case-by-case basis by the IRS. In recognition of the need of nonprofit hospitals for some guidelines on qualification as "charitable" corporations, the IRS in 16 issued Revenue Ruling 56-185.[2] This Ruling established the position of the IRS to be "that the term `charitable' in its legal sense and as it is used in section 501 (c) (3) of the Code contemplates an implied public trust constituted for some public benefit." In addition, the Ruling set out four "general requirements" that a hospital had to meet, "among other *30 things," to be considered a charitable organization by the IRS. Only one of those requirements is important here, and it reads as follows: "It must be operated to the extent of its financial ability for those not able to pay for the services rendered and not exclusively for those who are able and expected to pay. It is normal for hospitals to charge those able to pay for services rendered in order to meet the operating expenses of the institution, without denying medical care or treatment to others unable to pay. The fact that its charity record is relatively low is not conclusive that a hospital is not operated for charitable purposes to the full extent of its financial ability. It may furnish services at reduced rates which are below cost, and thereby render charity in that manner. It may also set aside earnings which it uses for improvements and additions to hospital facilities. It must not,
|
Justice Powell
| 1,976 | 17 |
majority
|
Simon v. Eastern Ky. Welfare Rights Organization
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https://www.courtlistener.com/opinion/109462/simon-v-eastern-ky-welfare-rights-organization/
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for improvements and additions to hospital facilities. It must not, however, refuse to accept patients in need of hospital care who cannot pay for such services. Furthermore, if it operates with the expectation of full payment from all those to whom it renders services, it does not dispense charity merely because some of its patients fail to pay for the services rendered." Revenue Ruling 56-185 remained the announced policy with respect to a nonprofit hospital's "charitable" status for 13 years, until the IRS issued Revenue Ruling 69-545 on November 3, 1969.[3] This new Ruling described two unidentified hospitals, referred to simply as Hospital A and Hospital B, which differed significantly in both *31 corporate structure and operating policies.[4] The description of Hospital A included the following paragraph: "The hospital operates a full time emergency room and no one requiring emergency care is denied treatment. The hospital otherwise ordinarily limits admissions to those who can pay the cost of their hospitalization, either themselves, or through private health insurance, or with the aid of public programs such as Medicare. Patients who cannot meet the financial requirements for admission are ordinarily referred to another hospital in the community that does serve indigent patients." Despite Hospital A's apparent failure to operate "to the extent of its financial ability for those not able to pay for the services rendered," as required by Revenue Ruling 56-185, the IRS in this new Ruling held Hospital A exempt as a charitable corporation under 501 (c) (3).[5] Noting that Revenue Ruling 56-185 had set out requirements *32 for serving indigents "more restrictive" than those applied to Hospital A, the IRS stated that "Revenue Ruling 56-185 is hereby modified to remove therefrom the requirements relating to caring for patients without charge or at rates below cost." II Issuance of Revenue Ruling 69-545 led to the filing of this suit in July 1971 in the United States District Court for the District of Columbia, by a group of organizations and individuals. The plaintiff organizations described themselves as an unincorporated association[6] and several nonprofit corporations[7] each of which included low-income persons among its members and represented the interests of all such persons in obtaining hospital care and services. The 12 individual plaintiffs[8] described themselves as subsisting below the poverty income levels established by the Federal Government and suffering from medical conditions requiring hospital services. The organizations sued on behalf of their members, and each individual sued on his own behalf and as representative of all other persons similarly situated. Each of the individuals described an occasion on which he or a member
|
Justice Powell
| 1,976 | 17 |
majority
|
Simon v. Eastern Ky. Welfare Rights Organization
|
https://www.courtlistener.com/opinion/109462/simon-v-eastern-ky-welfare-rights-organization/
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individuals described an occasion on which he or a member of his family had been disadvantaged in seeking needed hospital services because of indigency. Most involved the refusal of a hospital to admit the person because of his inability to pay a deposit or an advance fee, even though in some instances the *33 person was enrolled in the Medicare program. At least one plaintiff was denied emergency-room treatment because of his inability to pay immediately. And another was treated in the emergency room but then billed and threatened with suit although his indigency had been known at the time of treatment. According to the complaint, each of the hospitals involved in these incidents had been determined by the Secretary and the Commissioner to be a tax-exempt charitable corporation, and each received substantial private contributions. The Secretary and the Commissioner were the only defendants. The complaint alleged that by extending tax benefits to such hospitals despite their refusals fully to serve the indigent, the defendants were "encouraging" the hospitals to deny services to the individual plaintiffs and to the members and clients of the plaintiff organizations. Those persons were alleged to be suffering "injury in their opportunity and ability to receive hospital services in nonprofit hospitals which receive benefits as `charitable' organizations" under the Code. They also were alleged to be among the intended beneficiaries of the Code sections that grant favorable tax treatment to "charitable" organizations. Plaintiffs made two principal claims. The first was that in issuing Revenue Ruling 69-545 the defendants had violated the Code, and that in granting charitable-corporation treatment to nonprofit hospitals that refused fully to serve indigents the defendants continued the violation. Their theory was that the legislative history of the Code, regulations of the IRS, and judicial precedent had established the term "charitable" in the Code to mean "relief of the poor," and that the challenged Ruling and current practice of the IRS departed from that interpretation. Plaintiffs' second claim was that the issuance of Revenue Ruling 69-545 without a *34 public hearing and an opportunity for submission of views had violated the rulemaking procedures of the APA, 5 U.S. C. 553. The theory of this claim was that the Ruling should be considered a "substantive" rule as opposed to the "interpretative" type of rule that is exempted from the requirements of 553.[9] Plaintiffs sought various forms of declaratory and injunctive relief.[10] By a motion to dismiss, defendants challenged plaintiffs' standing, suggested the nonjusticiability of the subject matter of the suit, and asserted that in any event the action was barred by the Anti-Injunction
|
Justice Powell
| 1,976 | 17 |
majority
|
Simon v. Eastern Ky. Welfare Rights Organization
|
https://www.courtlistener.com/opinion/109462/simon-v-eastern-ky-welfare-rights-organization/
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in any event the action was barred by the Anti-Injunction Act,[11] the tax limitation in the Declaratory Judgment Act,[12] and the *35 doctrine of sovereign immunity. The District Court denied this motion without opinion. On subsequent cross-motions for summary judgment the court considered but rejected each of defendants' arguments against its reaching the merits. The court then held that Revenue Ruling 69-545 was "improperly promulgated" and "without effect" insofar as it permitted nonprofit hospitals to qualify for tax treatment as charities without their offering "special financial consideration to persons unable to pay."[13] The Court of Appeals for the District of Columbia Circuit reversed. 165 U. S. App. C. 239, It agreed with the District Court's rejection of defendants' jurisdictional contentions, but held on the merits that Revenue Ruling 69-545 was founded upon a permissible definition of "charitable" and was not contrary to congressional intent in the Code. As to the plaintiffs' APA claim, which the District Court had not reached, the Court of Appeals held that Revenue Ruling 69-545 was an "interpretative" ruling and thus exempt from the APA's rulemaking requirements. Plaintiffs sought a writ of certiorari in No. 74-1110 to review the Court of Appeals' judgment on the merits. Defendants filed a cross-petition in No. 74-1124 seeking review of that court's decision on the jurisdictional issues if plaintiffs' petition should be granted. We granted both petitions and consolidated them. 421 * Since we deal with defendants' contentions in No. 74-1124 first, and find it unnecessary to reach the issues raised by plaintiffs in No. 74-1110, we shall refer to defendants below as petitioners and to plaintiffs below as respondents. III In this Court petitioners have argued that a policy of the IRS to tax or not to tax certain individuals or organizations, whether embodied in a Revenue Ruling or otherwise developed, cannot be challenged by third parties whose own tax liabilities are not affected. Their theory is that the entire history of this country's revenue system, including but not limited to the evolution of the Code, manifests a consistent congressional intent to vest exclusive authority for the administration of the tax laws in the Secretary and his duly authorized delegates, subject to oversight by the appropriate committees of Congress itself. It is argued that allowing third-party suits questioning the tax treatment accorded other taxpayers would transfer determination of general revenue policy away from those to whom Congress has entrusted it and vest it in the federal courts.[14] *37 In addition, petitioners analogize the discretion vested in the IRS with respect to administration of the tax laws to the discretion
|
Justice Powell
| 1,976 | 17 |
majority
|
Simon v. Eastern Ky. Welfare Rights Organization
|
https://www.courtlistener.com/opinion/109462/simon-v-eastern-ky-welfare-rights-organization/
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respect to administration of the tax laws to the discretion of a public prosecutor as to when and whom to prosecute. They thus invoke the settled doctrine that the exercise of prosecutorial discretion cannot be challenged by one who is himself neither prosecuted nor threatened with prosecution. See Linda R. Petitioners also renew their jurisdictional contentions that this action is barred by the Anti-Injunction Act, the Declaratory Judgment Act, and the doctrine of sovereign immunity. We do not reach either the question of whether a third party ever may challenge IRS treatment of another, or the question of whether there is a statutory or an immunity bar to this suit. We conclude that the District Court should have granted petitioners' motion to dismiss on the ground that respondents' complaint failed to establish their standing to sue.[15] IV No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies. See The concept of standing is part of this limitation. Unlike other associated doctrines, for example, that which restrains federal courts from deciding *38 political questions, standing "focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated." As we reiterated last Term, the standing question in its Art. III aspect "is whether the plaintiff has `alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." In sum, when a plaintiff's standing is brought into issue the relevant inquiry is whether, assuming justiciability of the claim, the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision. Absent such a showing, exercise of its power by a federal court would be gratuitous and thus inconsistent with the Art. III limitation.[16] Respondents brought this action under 10 of the APA, 5 U.S. C. 702, which gives a right to judicial review to any person "adversely affected or aggrieved by agency action within the meaning of a relevant statute."[17] In Data Processing this Court held the constitutional standing requirement under this section to be allegations which, if true, would establish that the plaintiff had been injured in fact by *39 the action he sought to have reviewed. Reduction of the threshold requirement to actual injury redressable by the court represented a substantial broadening of access to the federal courts over that previously thought to be the constitutional minimum
|
Justice Powell
| 1,976 | 17 |
majority
|
Simon v. Eastern Ky. Welfare Rights Organization
|
https://www.courtlistener.com/opinion/109462/simon-v-eastern-ky-welfare-rights-organization/
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courts over that previously thought to be the constitutional minimum under this statute.[18] But, as this Court emphasized in Sierra "broadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury." See also United The necessity that the plaintiff who seeks to invoke judicial power stand to profit in some personal interest remains an Art. III requirement. A federal court cannot ignore this requirement without overstepping its assigned role in our system of adjudicating only actual cases and controversies.[19] It is according to this settled principle that the allegations of both the individual respondents and the respondent organizations must be tested for sufficiency. A We note at the outset that the five respondent organizations, which described themselves as dedicated to *40 promoting access of the poor to health services, could not establish their standing simply on the basis of that goal. Our decisions make clear that an organization's abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by Art. III. Sierra see Insofar as these organizations seek standing based on their special interest in the health problems of the poor their complaint must fail. Since they allege no injury to themselves as organizations, and indeed could not in the context of this suit, they can establish standing only as representatives of those of their members who have been injured in fact, and thus could have brought suit in their own right. The standing question in this suit therefore turns upon whether any individual respondent has established an actual injury,[20] or whether the respondent organizations have established actual injury to any of their indigent members. B The obvious interest of all respondents, to which they claim actual injury, is that of access to hospital services. In one sense, of course, they have suffered injury to that interest. The complaint alleges specific occasions on which each of the individual respondents sought but was denied hospital services solely due to his indigency,[21] and *41 in at least some of the cases it is clear that the needed treatment was unavailable, as a practical matter, anywhere else. The complaint also alleges that members of the respondent organizations need hospital services but live in communities in which the private hospitals do not serve indigents. We thus assume, for purpose of analysis, that some members have been denied service. But injury at the hands of a hospital is insufficient by itself to establish a
|
Justice Powell
| 1,976 | 17 |
majority
|
Simon v. Eastern Ky. Welfare Rights Organization
|
https://www.courtlistener.com/opinion/109462/simon-v-eastern-ky-welfare-rights-organization/
|
of a hospital is insufficient by itself to establish a case or controversy in the context of this suit, for no hospital is a defendant. The only defendants are officials of the Department of the Treasury, and the only claims of illegal action respondents desire the courts to adjudicate are charged to those officials. "Although the law of standing has been greatly changed in [recent] years, we have steadfastly adhered to the requirement that, at least in the absence of a statute expressly conferring standing, federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction." Linda R.[22] In other words, the "case or controversy" limitation of Art. III still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury *42 that results from the independent action of some third party not before the court. The complaint here alleged only that petitioners, by the adoption of Revenue Ruling 69-545, had "encouraged" hospitals to deny services to indigents.[23] The implicit corollary of this allegation is that a grant of respondents' requested relief, resulting in a requirement that all hospitals serve indigents as a condition to favorable tax treatment, would "discourage" hospitals from denying their services to respondents. But it does not follow from the allegation and its corollary that the denial of access to hospital services in fact results from petitioners' new Ruling, or that a court-ordered return by petitioners to their previous policy would result in these respondents' receiving the hospital services they desire. It is purely speculative whether the denials of service *43 specified in the complaint fairly can be traced to petitioners' "encouragement" or instead result from decisions made by the hospitals without regard to the tax implications. It is equally speculative whether the desired exercise of the court's remedial powers in this suit would result in the availability to respondents of such services. So far as the complaint sheds light, it is just as plausible that the hospitals to which respondents may apply for service would elect to forgo favorable tax treatment to avoid the undetermined financial drain of an increase in the level of uncompensated services. It is true that the individual respondents have alleged, upon information and belief, that the hospitals that denied them service receive substantial donations deductible by the donors. This allegation could support an inference that these hospitals, or some of them, are so financially dependent upon the favorable tax treatment afforded charitable organizations that they
|
Justice Powell
| 1,976 | 17 |
majority
|
Simon v. Eastern Ky. Welfare Rights Organization
|
https://www.courtlistener.com/opinion/109462/simon-v-eastern-ky-welfare-rights-organization/
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upon the favorable tax treatment afforded charitable organizations that they would admit respondents if a court required such admission as a condition to receipt of that treatment. But this inference is speculative at best.[24] The Solicitor General states in his brief that, nationwide, private philanthropy accounts for only 4% of private hospital revenues. Respondents introduced in the District Court a statement to Congress by an official of a hospital association describing the importance to nonprofit hospitals of the favorable tax treatment they receive as charitable corporations. Such conflicting evidence supports the commonsense proposition that the dependence upon special tax benefits may vary from hospital to hospital. Thus, respondents' allegation that *44 certain hospitals receive substantial charitable contributions, without more, does not establish the further proposition that those hospitals are dependent upon such contributions. Prior decisions of this Court establish that unadorned speculation will not suffice to invoke the federal judicial power. In Linda R. the mother of an illegitimate child averred that state-court interpretation of a criminal child support statute as applying only to fathers of legitimate children violated the Equal Protection Clause of the Fourteenth Amendment. She sought an injunction requiring the district attorney to enforce the statute against the father of her child. We held that the mother lacked standing, because she had "made no showing that her failure to secure support payments results from the nonenforcement, as to her child's father, of [the statute]." The prospect that the requested prosecution in fact would result in the payment of child supportinstead of jailing the fatherwas "only speculative." Similarly, last Term in we held that low-income persons seeking the invalidation of a town's restrictive zoning ordinance lacked standing because they had failed to show that the alleged injury, inability to obtain adequate housing within their means, was fairly attributable to the challenged ordinance instead of to other factors. In language directly applicable to this litigation, we there noted that plaintiffs relied "on little more than the remote possibility, unsubstantiated by allegations of fact, that their situation might have been better had [defendants] acted otherwise, and might improve were the court to afford relief." The principle of Linda R. S. and Warth controls this case. As stated in Warth, that principle is that indirectness of injury, while not necessarily fatal to standing, *45 "may make it substantially more difficult to meet the minimum requirement of Art. III: to establish that, in fact, the asserted injury was the consequence of the defendants' actions, or that prospective relief will remove the harm." Respondents have failed to carry this burden. Speculative inferences are
|
Justice Scalia
| 2,011 | 9 |
concurring
|
Arizona Christian School Tuition Organization v. Winn
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https://www.courtlistener.com/opinion/214467/arizona-christian-school-tuition-organization-v-winn/
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Taxpayers ordinarily do not have standing to challenge federal or state expenditures that allegedly violate the Constitution. See DaimlerChrysler 547 U.S. 332, 343–345 n we created a narrow exception for taxpayers rais ing Establishment Clause challenges to government ex penditures. Today’s majority and dissent struggle with whether respondents’ challenge to the Arizona tuition tax credit falls within that narrow exception. Under a princi pled reading of Article their struggles are unnecessary. is an anomaly in our jurisprudence, irreconcilable with the Article restrictions on federal judicial power that our opinions have established. would repudiate that misguided decision and enforce the Constitution. See Hein v. Freedom From Religion Foundation, nc., 55 U.S. 2 ARZONA CHRSTAN SCHOOL TUTON ORGANZATON v. WNN SCALA, J., concurring 587, 68 (SCALA, J., concurring in judgment). nevertheless join the Court’s opinion because it finds respondents lack standing by applying rather than distinguishing it away on unprincipled grounds. Cf. Hein, at 628–63. Cite as: 563 U. S. (20) KAGAN, J., dissenting SUPREME COURT OF THE UNTED STATES Nos. 09–987 and 09–99 ARZONA CHRSTAN SCHOOL TUTON ORGANZA- TON, PETTONER 09–987 v. KATHLEEN M. WNN ET AL. GALE GARROTT, DRECTOR, ARZONA DEPART- MENT OF REVENUE, PETTONER 09–99 v. KATHLEEN M. WNN ET AL. ON WRTS OF CERTORAR TO THE UNTED STATES COURT OF APPEALS FOR THE NNTH CRCUT [April 4, 20] JUSTCE KAGAN, with whom JUSTCE GNSBURG, JUSTCE BREYER, and JUSTCE SOTOMAYOR join, dissent ing. Since its inception, the Arizona private-school-tuition tax credit has cost the State, by its own estimate, nearly $350 million in diverted tax revenue. The Arizona tax payers who instituted this suit (collectively, Plaintiffs) allege that the use of these funds to subsidize school tui tion organizations (STOs) breaches the Establishment Clause’s promise of religious neutrality. Many of these STOs, the Plaintiffs claim, discriminate on the basis of a child’s religion when awarding scholarships. For almost half a century, litigants like the Plaintiffs have obtained judicial review of claims that the govern ment has used its taxing and spending power in violation of the Establishment Beginning in and continuing in case after case for 2 ARZONA CHRSTAN SCHOOL TUTON ORGANZATON v. WNN KAGAN, J., dissenting over four decades, this Court and others have exercised jurisdiction to decide taxpayer-initiated challenges not materially different from this one. Not every suit has succeeded on the merits, or should have. But every tax payer-plaintiff has had her day in court to contest the government’s financing of religious activity. Today, the Court breaks from this precedent by refusing to hear taxpayers’ claims that the government has uncon stitutionally subsidized religion through its
|
Justice Scalia
| 2,011 | 9 |
concurring
|
Arizona Christian School Tuition Organization v. Winn
|
https://www.courtlistener.com/opinion/214467/arizona-christian-school-tuition-organization-v-winn/
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that the government has uncon stitutionally subsidized religion through its tax system. These litigants lack standing, the majority holds, because the funding of religion they challenge comes from a tax credit, rather than an appropriation. A tax credit, the Court asserts, does not injure objecting taxpayers, because it “does not extract and spend [their] funds in service of an establishment.” Ante, at 5 (internal quotation marks and alterations omitted). This novel distinction in standing law between appro priations and tax expenditures has as little basis in prin ciple as it has in our precedent. Cash grants and targeted tax breaks are means of accomplishing the same govern ment objective—to provide financial support to select individuals or organizations. Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge the subsidy. Still worse, the Court’s arbitrary distinction threatens to eliminate all occasions for a taxpayer to contest the gov ernment’s monetary support of religion. Precisely because appropriations and tax breaks can achieve identical objec tives, the government can easily substitute one for the other. Today’s opinion thus enables the government to end-run ’s guarantee of access to the Judiciary. From now on, the government need follow just one simple rule— subsidize through the tax system—to preclude taxpayer Cite as: 563 U. S. (20) 3 KAGAN, J., dissenting challenges to state funding of religion. And that result—the effective demise of taxpayer stand ing—will diminish the Establishment Clause’s force and meaning. Sometimes, no one other than taxpayers has suffered the injury necessary to challenge government sponsorship of religion. Today’s holding therefore will prevent federal courts from determining whether some subsidies to sectarian organizations comport with our Constitution’s guarantee of religious neutrality. Because believe these challenges warrant consideration on the merits, respectfully dissent from the Court’s decision. As the majority recounts, this Court has held that pay ing taxes usually does not give an individual Article standing to challenge government action. Ante, at 6–0. Taxpayers cannot demonstrate the requisite injury be cause each person’s “interest in the moneys of the Treas ury is comparatively minute and indeterminable.” (decided with Massachusetts v. Mellon). Given the size and com plexity of government budgets, it is a “fiction” to contend that an unlawful expenditure causes an individual “any measurable economic harm.” (plu rality opinion). Nor can taxpayers in the ordinary case establish causation (i.e., that the disputed government measure affects their tax burden) or
|
Justice Scalia
| 2,011 | 9 |
concurring
|
Arizona Christian School Tuition Organization v. Winn
|
https://www.courtlistener.com/opinion/214467/arizona-christian-school-tuition-organization-v-winn/
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that the disputed government measure affects their tax burden) or redressability (i.e., that a judicial remedy would result in tax reductions). Ante, at 8–9. On these points, all agree. The disagreement concerns their relevance here. This case is not about the general prohibition on taxpayer standing, and cannot be resolved on that basis. This case is instead about the exception to the rule—the principle established decades ago in that taxpayers may chal lenge certain government actions alleged to violate the 4 ARZONA CHRSTAN SCHOOL TUTON ORGANZATON v. WNN KAGAN, J., dissenting Establishment The Plaintiffs have standing if their suit meets ’s requirements—and it does so under any fair reading of that decision. Taxpayers have standing, held, when they allege that a statute enacted pursuant to the legislature’s taxing and spending power violates the Establishment –06. n this situation, the Court ex plained, a plaintiff can establish a two-part nexus “be tween the [taxpayer] status asserted and the claim sought to be adjudicated.” First, by challenging legislative action taken under the taxing and spending clause, the taxpayer shows “a logical link between [her] status and the type of enactment attacked.” Second, by invoking the Establishment Clause—a specific limitation on the legislature’s taxing and spending power—the taxpayer demonstrates “a nexus between [her] status and the precise nature of the constitutional in fringement alleged.” Because of these connections, held, taxpayers alleging that the government is using tax proceeds to aid religion have “the necessary stake in the outcome of the litigation to satisfy Article” They are “proper and appropriate part[ies]”— indeed, often the only possible parties—to seek judicial enforcement of the Constitution’s guarantee of religious neutrality. That simple restatement of the standard should be enough to establish that the Plaintiffs have standing. They attack a provision of the Arizona tax code that the legislature enacted pursuant to the State Constitution’s taxing and spending clause ( nexus, part ). And they allege that this provision violates the Establishment Clause ( nexus, part 2). By satisfying both of ’s conditions, the Plaintiffs have demonstrated their “stake as taxpayers” in enforcing constitutional restraints on the provision of aid to STOs. ndeed, the connection in this case between “the [taxpayer] status asserted and the Cite as: 563 U. S. (20) 5 KAGAN, J., dissenting claim sought to be adjudicated,” ib could not be any tighter: As noted when this Court previously addressed a different issue in this lawsuit, the Plaintiffs invoke the Establishment Clause to challenge “an integral part of the State’s tax statute” that “is reflected on state tax forms” and that “is part of the
|
Justice Scalia
| 2,011 | 9 |
concurring
|
Arizona Christian School Tuition Organization v. Winn
|
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on state tax forms” and that “is part of the calculus necessary to determine tax liability.” ( ) (KENNEDY, J., dissenting) (emphasis added). Finding standing here is merely a matter of applying would therefore affirm the Court of Appeals’ determination (not questioned even by the eight judges who called for rehearing en banc on the merits) that the Plaintiffs can pursue their claim in federal court. The majority reaches a contrary decision by distinguish ing between two methods of financing religion: A taxpayer has standing to challenge state subsidies to religion, the Court announces, when the mechanism used is an appro priation, but not when the mechanism is a targeted tax break, otherwise called a “tax expenditure.” n the for mer case, but not in the latter, the Court declares, the taxpayer suffers cognizable injury. Ante, –5. —————— “Tax expenditures” are monetary subsidies the government bestows on particular individuals or organizations by granting them preferen tial tax treatment. The co-chairmen of the National Commission on Fiscal Responsibility and Reform recently referred to these tax breaks as “the various deductions, credits and loopholes that are just spending by another name.” Washington Post, Feb. 20, 20, p. A9, col. 3; see also 2 U.S. C. (defining “tax expenditures,” for purposes of the Federal Government’s budgetary process, as “those revenue losses attributable to provisions of the tax laws which allow a special exclusion, exemption, or deduction from gross income or which provide a special credit, a preferential rate of tax, or a deferral of tax liability”); S. Surrey & P. McDaniel, Tax Expenditures 3 (explaining that tax expenditures “represent government spending for favored activities or groups, effected through the tax system rather than through direct grants, loans, or other forms of government assistance”). 6 ARZONA CHRSTAN SCHOOL TUTON ORGANZATON v. WNN KAGAN, J., dissenting But this distinction finds no support in case law, and just as little in reason. n the decades since no court—not one—has differentiated between appropriations and tax expenditures in deciding whether litigants have standing. Over and over again, courts (including this one) have faced Establishment Clause challenges to tax credits, deductions, and exemptions; over and over again, these courts have reached the merits of these claims. And that is for a simple reason: Taxpayers experience the same injury for standing purposes whether government subsidi zation of religion takes the form of a cash grant or a tax measure. The only rationale the majority offers for its newfound distinction—that grants, but not tax expendi tures, somehow come from a complaining taxpayer’s own wallet—cannot bear the weight the Court places on
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taxpayer’s own wallet—cannot bear the weight the Court places on it. f is still good law—and the majority today says noth ing to the contrary—then the Plaintiffs should be able to pursue their claim on the merits. A Until today, this Court has never so much as hinted that litigants in the same shoes as the Plaintiffs lack standing under To the contrary: We have faced the identical situation five times—including in a prior incarnation of this very case!—and we have five times resolved the suit without questioning the plaintiffs’ standing. Lower fed eral courts have followed our example and handled the matter in the same way. count 4 separate cases (involv ing 20 appellate and district courts) that adjudicated taxpayer challenges to tax expenditures alleged to violate the Establishment 2 suspect have missed a few. —————— 2 See aff’g (ED Mich. 999); rev’g (MD Tenn. 2000); Cite as: 563 U. S. (20) 7 KAGAN, J., dissenting have not found any instance of a court dismissing such a claim for lack of standing. Consider the five cases in which this Court entertained suits filed by taxpayers alleging that tax expenditures unlawfully subsidized religion. We first took up such a challenge in v. Tax Comm’n of City of New 397 U.S. 664, 666–667 (970), where we upheld the constitu tionality of a property tax exemption for religious organi zations. Next, in 735–736, 738–739 (973), we decided that the Establishment Clause permitted a state agency to issue tax-exempt bonds to sectarian institutions. The same day, in Committee for Public Ed. & Religious 789–794 (973), we struck down a state tax deduction for parents who paid tuition at religious and other private schools. A decade later, in 390–39 we considered, but this time rejected, a similar Establishment Clause challenge to a state tax deduction for expenses incurred in attending such schools. And most recently, we decided a preliminary issue in this —————— aff’g No. 00–cv–02392–J ; 676 F.2d 5 aff’g ; Rhode sland Federation of Teachers, (CA 980), aff’g ; Public Funds for Public Schools of N. aff’g 444 F. Supp. 228 (NJ 978); Freedom from Religion Foundation, ; ; Leverett v. United States Bur. of HHS, No. Civ. A. 99–S–670, 2003 WL 277080, (D Colo., June 9, 2003); (SD owa 992); Minnesota Civ. Liberties Union v. Roemer, 452 F. Supp. 36 (Minn. 978); (per curiam) (three-judge court); Committee for Public Ed. & Religious (three judge court); United Ams. for Public Schools v. Franchise Tax Bd. of Cal., No. C–73–0090 (three-judge court), re printed in App. to Juris. Statement in Franchise Tax Bd.
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printed in App. to Juris. Statement in Franchise Tax Bd. of Cal. v. United Ams. for Public Schools, O. T. 973, No. 73–78, pp. –4. 8 ARZONA CHRSTAN SCHOOL TUTON ORGANZATON v. WNN KAGAN, J., dissenting very case, ruling that the Tax njunction Act, 28 U.S. C. posed no barrier to the Plaintiffs’ litigation of their Establishment Clause claim. See 542 U.S., at 2.3 The Court in all five of these cases divided sharply on the merits of the disputes. But in one respect, the Justices were unanimous: Not a single one thought to question the litigants’ standing. The Solicitor General, participating here as amicus curiae, conceded at oral argument that under the Federal Government’s—and now the Court’s—view of taxpayer standing, each of these five cases should have been dis missed for lack of jurisdiction. “[The Court:] So if you are right, the Court was without authority to decide [and] Hibbs [v.] this very case, just a few years ago? [Solicitor General:] Right. [M]y answer to you is yes. [The Court:] just want to make sure heard your answer to the—you said the answer is yes. n other words, you agree those cases were wrongly de cided. [Y]ou would have said there would have been no standing in those cases. —————— 3 Wehave also several times summarily affirmed lower court deci sions adjudicating taxpayer challenges to tax expenditures alleged to violate the Establishment See summarily aff’g 56, n. 3 (CA3) (holding that “plaintiffs, as taxpayers, have standing under ” to challenge a tax deduction for dependents attending religious and other private schools); (973), summarily aff’g (three-judge court) (noting that no party had questioned the standing of taxpayers to contest tax credits for private-school tuition payments); Franchise Tax Bd. of summarily aff’g No. C–73–0090 (three-judge court) (invalidating a tax credit for children attend ing private schools). Cite as: 563 U. S. (20) 9 KAGAN, J., dissenting [Solicitor General:] No taxpayer standing.” Tr. of Oral Arg. 0–2. Nor could the Solicitor General have answered differently. Each of these suits, as described above, alleged that a state tax expenditure violated the Establishment And each relied only on taxpayer standing as the basis for federal-court review.4 The Court today speculates that “the plaintiffs in those cases could have advanced argu ments for jurisdiction independent of” Ante, at 8. But whatever could have been, in fact not one of them did so. And the Court itself understood the basis of standing in these five cases. This and every federal court has an independent obligation to consider standing, even when the parties do not call it
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consider standing, even when the parties do not call it into question. See, e.g., FW/PBS, To do any thing else would risk an unlawful exercise of judicial authority. And in these cases the Court had an additional prompt: n several of them, amici, including the United States, contested—or at least raised as a question—the plaintiffs’ standing as taxpayers to pursue their claims.5 The Court, moreover, was well aware at the time of the issues presented by taxpayer standing. We decided three of the cases within a year of elaborating the general bar on —————— 4 See App. in O. T. 2003, No. 02–809, pp. 7–8 (com plaint); Pet. for Cert. in O. T. 982, No. 82–95, p. 7; App. in Committee for Public Ed. & Religious O. T. No. 72–694, p. 9a (complaint); App. in O. T. No. 7–523, p. 5 (complaint); App. in v. Tax Comm’n of City of New O. T. 969, No. 35, pp. 5–7 (complaint). 5 See, e.g., Brief for United States as Amicus Curiae in v. ; Brief for United States as Amicus Curiae in ; Brief for Honorable Trent Franks et al. as Amici Curiae in ; Brief for United States Catholic Conference as Amicus Curiae in v. Tax Comm’n of City of New at 23–24. 0 ARZONA CHRSTAN SCHOOL TUTON ORGANZATON v. WNN KAGAN, J., dissenting taxpayer suits, see, e.g., United States v. Richardson, 48 U.S. 66 ; and the fourth just after we held that bar applicable to a different kind of Establish ment Clause claim, see Valley Forge Christian College v. Americans United for Separation of Church and State, nc., ndeed, the decisions on their face reflect the Court’s recognition of what gave the plain tiffs standing; in each, we specifically described the plain tiffs as taxpayers who challenged the use of the tax system to fund religious activities. See ; ; 762; –736; –667. n short, we considered and decided all these cases be cause we thought taxpayer standing existed. The majority shrugs off these decisions because they did not discuss what was taken as obvious. Ante, at 7. But we have previously stressed that the Court should not “disregard the implications of an exercise of judicial au thority assumed to be proper for over 40 years.” Brown Shoe ; see U.S. 589, (finding standing partly because the Court, in deciding similar cases, had “not questioned the standing of taxpayer plain tiffs to raise Establishment Clause challenges”); Bank of United (Mar shall, C. J.) (prior decisions exercising but not discussing jurisdiction “have much weight, as they show that [a jurisdictional
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jurisdiction “have much weight, as they show that [a jurisdictional flaw] neither occurred to the bar or the bench”). And that principle has extra force here, because we have relied on some of these decisions to support the Court’s jurisdiction in other cases. Pause on that for a moment: The very decisions the majority today so easily dismisses are featured in our prior cases as exemplars of jurisdiction. So in School Dist. of Grand we relied on and to Cite as: 563 U. S. (20) KAGAN, J., dissenting conclude that taxpayers had standing to challenge a pro gram of aid to religious and other private schools. 473 U.S., 80, n. 5, overruled in part on other grounds by And in (recall, an earlier iteration of this case), we rejected a different jurisdictional objection in part by relying on and We called those cases “adjudications of great moment discerning no [jurisdictional] barrier” and warned that they could not “be written off as reflecting nothing more than unexamined custom or unthinking habit.” n. 3 (internal quotation marks and citations omitted). Until today, that is—when the majority does write off these adjudications and reaches a result against all precedent. B Our taxpayer standing cases have declined to distin guish between appropriations and tax expenditures for a simple reason: Here, as in many contexts, the distinction is one in search of a difference. To begin to see why, con sider an example far afield from and, indeed, from religion. magine that the Federal Government decides it should pay hundreds of billions of dollars to insolvent banks in the midst of a financial crisis. Suppose, too, that many millions of taxpayers oppose this bailout on the ground (whether right or wrong is immaterial) that it uses their hard-earned money to reward irresponsible business behavior. n the face of this hostility, some Members of Congress make the following proposal: Rather than give the money to banks via appropriations, the Government will allow banks to subtract the exact same amount from the tax bill they would otherwise have to pay to the U. S. Treasury. Would this proposal calm the furor? Or would most taxpayers respond by saying that a subsidy is a subsidy (or a bailout is a bailout), whether accomplished by the one means or by the other? Surely the latter; in 2 ARZONA CHRSTAN SCHOOL TUTON ORGANZATON v. WNN KAGAN, J., dissenting deed, we would think the less of our countrymen if they failed to see through this cynical proposal. And what ordinary people would appreciate, this Court’s case law also recognizes—that targeted tax
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would appreciate, this Court’s case law also recognizes—that targeted tax breaks are often “economically and functionally indistinguishable from a direct monetary subsidy.” (THOMAS, J., concurring). Tax credits, deductions, and exemptions provided to an individual or organization have “much the same effect as a cash grant to the [recipient] of the amount of tax it would have to pay” absent the tax break. “Our opinions,” therefore, “have long recognized the reality that [tax expenditures] are a form of subsidy that is administered through the tax system.” Arkansas Writers’ Project, nc. v. Ragland, 48 U.S. 22, 236 (987) (SCALA, J., dissenting) (internal quotation marks omitted). Or again: Tax breaks “can be viewed as a form of government spending,” Camps New found/Owatonna, nc. v. Town of Harrison, 589–590, n. 22 even assuming the diverted tax funds do not pass through the public treasury. And once more: Both special tax benefits and cash grants “repre sen[t] a charge made upon the state,” 43 U.S., at 790–79 (internal quotation marks omitted); both de plete funds in the government’s coffers by transferring money to select recipients.6 —————— 6 The majority observes that special tax benefits may in fact “in creas[e] government revenues” by “spur[ring] economic activity.” Ante, at 8 (internal quotation marks omitted). That may be so in the long run (although the only non-speculative effect is to immediately dimin ish funds in the public treasury). But as the majority acknowledges, ib this possibility holds just as true for appropriations; that is why we (optimistically) refer to some government outlays as “investments.” The insight therefore cannot help the majority distinguish between tax expenditures and appropriations. Cite as: 563 U. S. (20) 3 KAGAN, J., dissenting For just this reason, government budgeting rules rou tinely insist on calculation of tax subsidies, in addition to appropriations. The President must provide information on the estimated cost of tax expenditures in the budget he submits to Congress each year. See 3 U.S. C. n. Similarly, congressional budget committees must report to all Members on the level of tax expenditures in the federal budget. See 2 U.S. C. Many States—including Arizona—likewise compute the impact of targeted tax breaks on the public treasury, in recognition that these measures are just spending under a different name, see n. The Arizona Department of Revenue must issue an annual report “detailing the approximate costs in lost revenue for all state tax expenditures.” – 005(A)(4) The most recent report notes the significance of this accounting in the budget process. t explains that “the fiscal impact of implementing” targeted tax breaks, including the STO credit challenged here,
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implementing” targeted tax breaks, including the STO credit challenged here, is “similar to a direct expenditure of state funds.” Arizona Dept. of Revenue, Revenue mpact of Arizona’s Tax Ex penditures FY /0, p. ; see also Surrey, Tax ncentives as a Device for mplement ing Government Policy: A Comparison with Direct Gov ernment Expenditures, 77 (970) (“A dollar is a dollar—both for the person who receives it and the government that pays it, whether the dollar comes with a tax credit label or a direct expenditure label”). And because these financing mechanisms result in the same bottom line, taxpayers challenging them can allege the same harm. Our prior cases have often recognized the cost that targeted tax breaks impose on taxpayers gener ally. “When the Government grants exemptions or allows deductions” to some, we have observed, “all taxpayers are affected; the very fact of the exemption or deduction means that other taxpayers can be said to be indirect and 4 ARZONA CHRSTAN SCHOOL TUTON ORGANZATON v. WNN KAGAN, J., dissenting vicarious ‘donors.’ ” Bob Jones Univ. v. United States, 46 U.S. 5, 59 And again: “Every tax exemption constitutes a subsidy that affects nonqualifying taxpayers, forcing them to” bear its cost. Texas Monthly, nc. v. Bullock, 489 U.S. 4 (989) ndeed, we have specifically compared the harm arising from a tax subsidy with that arising from a cash grant, and declared those injuries equivalent because both kinds of support deplete the public fisc. “n either case,” we stated, “the alleged injury is based on the asserted effect of the alleg edly illegal activity on public revenues, to which the tax payer contributes.” DaimlerChrysler 547 U.S. 332, 344 This taxpayer injury of course fails to establish standing in the mine-run case, whatever form the state aid takes. See, e.g., 43–344; ante, at 6– 0; But the key is this: Whenever taxpayers have standing under to challenge an appropriation, they should also have standing to contest a tax expendi ture. Their access to the federal courts should not depend on which type of financial subsidy the State has offered. Consider some further examples of the point, but this time concerning state funding of religion. Suppose a State desires to reward Jews—by, say, $500 per year—for their religious devotion. Should the nature of taxpayers’ con cern vary if the State allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend? Or assume a State wishes to subsidize the ownership of cruci fixes. t could purchase the religious symbols in bulk and distribute them to all takers.
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religious symbols in bulk and distribute them to all takers. Or it could mail a reim bursement check to any individual who buys her own and submits a receipt for the purchase. Or it could authorize that person to claim a tax credit equal to the price she paid. Now, really—do taxpayers have less reason to com plain if the State selects the last of these three options? The Court today says they do, but that is wrong. The effect of each form of subsidy is the same, on the public Cite as: 563 U. S. (20) 5 KAGAN, J., dissenting fisc and on those who contribute to it. Regardless of which mechanism the State uses, taxpayers have an identical stake in ensuring that the State’s exercise of its taxing and spending power complies with the Constitution.7 Here, the mechanism Arizona has selected is a dollar for-dollar tax credit to aid school tuition organizations. Each year come April 5, the State tells Arizonans: Either pay the full amount of your tax liability to the State, or subtract up to $500 from your tax bill by contributing that sum to an STO. See To claim the credit, an individual makes a notation on her tax return and splits her tax payment into two checks, one made out to the State and the other to the STO. As this Court recognized in the STO payment is therefore “cost less” to the individual, ; it comes out of what she otherwise would be legally obligated to pay the State— hence, out of public resources. And STOs capitalize on this aspect of the tax credit for all it is worth—which is quite a lot. To drum up support, STOs highlight that “donations” are made not with an individual’s own, but with other people’s—i.e., taxpayers’—money. One STO advertises that “[w]ith Arizona’s scholarship tax credit, you can send children to our community’s [religious] day schools and it won’t cost you a dime!” Brief for Respon dents 3 (internal quotation marks and emphasis omit ted). Another urges potential donors to “imagine giving [to charity] with someone else’s money. Stop magining, —————— 7 The majority indicates that some persons could challenge these hypothetical government actions based on individualized injury, sepa rate and apart from taxpayer status. See ante, at –2, 7–8. That is quite right; indeed, some parents or children likely have standing to challenge the Arizona tax credit on such grounds. But this possibility does not detract from the point made here. The purpose of these illustrations is to show that if taxpayer status is the thing
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is to show that if taxpayer status is the thing alleged to confer standing, it should do so irrespective of the form of the govern ment subsidy. 6 ARZONA CHRSTAN SCHOOL TUTON ORGANZATON v. WNN KAGAN, J., dissenting thanks to Arizona tax laws you can!” (internal quotation marks and emphasis omitted). And so Arizo nans do just that: t is, after all, good fun to spend other people’s money. By the State’s reckoning, from 998 to 2008 the credit cost Arizona almost $350 million in redi rected tax revenue.8 The Plaintiffs contend that this expenditure violates the Establishment f the legislature had appropriated these monies for STOs, the Plaintiffs would have standing, beyond any dispute, to argue the merits of their claim in federal court. But the Plaintiffs have no such recourse, the Court today holds, because Arizona funds STOs through a tax credit rather than a cash grant. No less than in the hypothetical examples offered above, here too form prevails over substance, and differences that make no difference determine access to the Judiciary. And the casualty is a historic and vital method of enforcing the Constitution’s guarantee of religious neutrality. C The majority offers just one reason to distinguish ap propriations and tax expenditures: A taxpayer experiences injury, the Court asserts, only when the government “extracts and spends” her very own tax dollars to aid religion. Ante, at 5 (internal quotation marks and altera tions omitted). n other words, a taxpayer suffers legally —————— 8 See Arizona Dept. of Revenue, Revenue mpact of Arizona’s Tax Expenditures FY /0, p. 48 ; FY 2008/09, p. 54 ; FY 2007/08, p. 58 (prelimi nary Nov. 7, 2008); FY 2006/07, p. 65 ; FY 2005/06, p. 73 ; FY 2004/05, p. 72 ; FY 2003/04, p. ; FY /03, p. ; FY /02, p. 7 ; FY 2000/0, p. 73 (preliminary Nov. 5, /final July 2003); FY 999/00, p. 72 Cite as: 563 U. S. (20) 7 KAGAN, J., dissenting cognizable harm if but only if her particular tax dollars wind up in a religious organization’s coffers. See also Tr. of Oral Arg. 4 (Solicitor General proposing that the “key point” was: “f you placed an electronic tag to track and monitor each cent that the [Plaintiffs] pay in tax,” none goes to religious STOs). And no taxpayer can make this showing, the Court concludes, if the government subsi dizes religion through tax credits, deductions, or exemp tions (rather than through appropriations).9 The majority purports to rely on to support this new “extraction” requirement. t plucks the three words “extrac[t] and
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new “extraction” requirement. t plucks the three words “extrac[t] and spen[d]” from the midst of the opinion, and suggests that they severely constrict the decision’s scope. Ante, at 5 ( 392 U.S., at 06). And it notes that partly relied on James Madison’s famed argu ment in the Memorial and Remonstrance Against Reli gious Assessments: “ ‘[T]he same authority which can force a citizen to contribute three pence only of his property for —————— 9 Even taken on its own terms, the majority’s reasoning does not jus tify the conclusion that the Plaintiffs lack standing. Arizona’s tuition tax-credit program in fact necessitates the direct expenditure of funds from the state treasury. After all, the statute establishing the initiative requires the Arizona Department of Revenue to certify STOs, maintain an STO registry, make the registry available to the public on request and post it on a website, collect annual reports filed by STOs, and send written notice to STOs that have failed to comply with statutory re quirements. –502(A)–(C), 43–506 Presumably all these activities cost money, which comes from the state treasury. Thus, on the majority’s own theory, the government has “extract[ed] and spen[t]” the Plaintiffs’ (along with other taxpayers’) dollars to implement the challenged program, and the Plaintiffs should have standing. (The majority, after all, makes clear that nothing in its analysis hinges on the size or proportion of the Plaintiffs’ contribution. Ante,) But applying the majority’s theory in this way reveals the hollowness at its core. Can anyone believe that the Plaintiffs have suffered injury through the costs involved in administering the program, but not through the far greater costs of granting the tax expenditure in the first place? 8 ARZONA CHRSTAN SCHOOL TUTON ORGANZATON v. WNN KAGAN, J., dissenting the support of any one establishment, may force him to conform to any other establishment in all cases whatso ever.’ ” 392 U.S., at 03 ( 2 Writings of James Madison 83, 86 (G. ed. 90)); see ante, at 2–4. And that is all the majority can come up with. But as indicated earlier, everything of import in cuts against the majority’s position. Here is how stated its holding: “[W]e hold that a taxpayer will have standing consistent with Article to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of” the Establishment –06. Noth ing in that straightforward sentence supports the idea that a taxpayer can challenge only legislative action that disburses his particular contribution to the state treasury. And here is how primarily justified its holding: “[O]ne
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treasury. And here is how primarily justified its holding: “[O]ne of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general.” at 03. That evil arises even if the specific dollars that the government uses do not come from citizens who object to the preference. Likewise, the two-part nexus test, which is the heart of ’s doctrinal analysis, contains no hint of an extraction requirement. See And finally, James Madison provides no comfort to today’s majority. He referred to “three pence” exactly because it was, even in 785, a meaningless sum of money; then, as today, the core injury of a religious establishment had naught to do with any given individual’s out-of-pocket loss. See infra, at 2–23 (further discussing Madison’s views). So the majority is left with nothing, save for three words used to describe the particular facts in that case: n not a single non-trivial respect could the Court recognize its handiwork in the majority’s depiction. The injury to taxpayers that perceived arose Cite as: 563 U. S. (20) 9 KAGAN, J., dissenting whenever the legislature used its taxing-and-spending power to channel tax dollars to religious activities. n that and subsequent cases (including the five in this Court involving tax expenditures), a taxpayer pleaded the requi site harm by stating that public resources were funding religion; the tracing of particular dollars (whether by the Solicitor General’s “electronic tag” or other means) did not enter into the question. See DaimlerChrysler Corp., 547 U.S., 48 (describing how the Court’s under standing of the Establishment Clause’s history led the Court to view the alleged “injury” as the expenditure of “ ‘tax money’ in aid of religion” ( 392 U.S., at 06)). And for all the reasons already given, that standard is met regardless whether the funding is provided via cash grant or tax expenditure. See at –6. Taxpayers pick up the cost of the subsidy in either form. See So taxpayers have an interest in preventing the use of either mechanism to infringe religious neutrality.0 —————— 0 On this traditional view of the harm to taxpayers arising from state financing of religion, the Plaintiffs here can satisfy not only Article ’s injury requirement, but also its causation and redressability require ments. The majority’s contrary position, ante, at 5–6, stems from its miscasting of the injury involved; once that harm is stated correctly, all the rest follows. To wit: The Plaintiffs allege they suffer injury
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rest follows. To wit: The Plaintiffs allege they suffer injury when the State funnels public resources to religious organizations through the tax credit. Arizona, they claim, has caused this injury by enacting legislation that establishes the credit. And an injunction limiting the credit’s operation would redress the harm by preventing the allegedly unlawful diversion of tax revenues. The Plaintiffs need not, as the majority insists, show that this remedy would “affect their tax payments,” ante, at 6, any more than the taxpayer in had to establish that her tax burden would decrease absent the Government’s funding of religious schools. As we have previously recognized, when taxpayers object to the spending of tax money in violation of the Estab lishment Clause (whether through tax credits or appropriations), “an injunction against the spending would redress [their] injury, regard less of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally.” DaimlerChrysler 20 ARZONA CHRSTAN SCHOOL TUTON ORGANZATON v. WNN KAGAN, J., dissenting ndeed, the majority’s new conception of injury is at odds not merely with but also (if ironically) with our cases precluding taxpayer standing generally. See ; ante, at 6–0. Today’s majority insists that legisla tion challenged under the Establishment Clause must “extrac[t] and spen[d] a conscientious dissenter’s funds.” Ante, at 5. But we have rejected taxpayer standing in other contexts because each taxpayer’s share of treasury funds is “minute and indeterminable.” Frothingham, 262 U.S., at No taxpayer can point to an expenditure (by cash grant or otherwise) and say that her own tax dollars are in the mix; in fact, they almost surely are not. “[]t is,” as we have noted, “a complete fiction to argue that an unconstitutional expenditure causes an individual taxpayer any measurable economic harm.” Hein, 55 U.S., at That is as true in Estab lishment Clause cases as in any others. Taxpayers have standing in these cases despite their foreseeable failure to show that the alleged constitutional violation involves their own tax dollars, not because the State has used their particular funds. And something still deeper is wrong with the majority’s “extract and spend” requirement: t does not measure what matters under the Establishment Let us indulge the Court’s fiction that a taxpayer’s “.00000000000 penny” is somehow involved in an ordi nary appropriation of public funds for religious activity (thus supposedly distinguishing it from a tax expenditure). Still, consider the following example: magine the nternal Revenue Service places a checkbox on tax returns asking filers if they object to the government using their taxes to aid religion. f the government
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Arizona Christian School Tuition Organization v. Winn
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https://www.courtlistener.com/opinion/214467/arizona-christian-school-tuition-organization-v-winn/
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government using their taxes to aid religion. f the government keeps “yes” money sepa rate from “no” money and subsidizes religious activities only from the nonobjectors’ account, the majority’s analy sis suggests that no taxpayer would have standing to allege a violation of the Establishment The funds Cite as: 563 U. S. (20) 2 KAGAN, J., dissenting used, after all, would not have been “extracted from a citizen and handed to a religious institution in violation of the citizen’s conscience.” Ante, at 6. But this Court has never indicated that States may insulate subsidies to religious organizations from legal challenge by eliciting the consent of some taxpayers. And the Court has of course been right not to take this approach. Taxpayers incur the same harm, and should have the same ability to bring suit, whether the government stores tax funds in one bank account or two. None of the principles underly ing the Establishment Clause suggests otherwise. James Madison, whom the Court again rightly labels “the leading architect of the religion clauses,” ante, ( 392 U.S., at 03; internal quotation marks omitted), had something important to say about the mat ter of “extraction.” As the majority notes, Madison’s Me morial and Remonstrance criticized a tax levy proposed in Virginia to aid teachers of the Christian religion. Ante, at 2–3. But Madison’s passionate opposition to that pro posal informs this case in a manner different than the majority suggests. The Virginia tax in fact would not have extracted any monies (not even “three pence”) from unwill ing citizens, as the Court now requires. The plan allowed conscientious objectors to opt out of subsidizing religion by contributing their assessment to an alternative fund for the construction and maintenance of county schools. See —————— The opt-out provision described county schools as “seminaries of learning.” A Bill for Establishing A Provision for Teachers of the Christian Religion, reprinted in Everson v. Board of Ed. of Ewing, 330 U.S. (947) (supplemental appendix to dissent of Rutledge, J.). n 785, that phrase had no particular religious connotation: t “meant schools for general education, not schools for the training of ministers.” Berg & Mistakes in Locke v. Davey and the Future of State Payments for Services Provided by Religious nstitutions, 40 Tulsa L. Rev. 227, 244, n. 3 ; see also, e.g., 2 S. Johnson, Dictionary of the English Language (773) (“seminary” means “place of educa tion, from whence scholars are transplanted into life”). 22 ARZONA CHRSTAN SCHOOL TUTON ORGANZATON v. WNN KAGAN, J., dissenting A Bill Establishing A Provision for Teachers of the Chris tian Religion,
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Justice Scalia
| 2,011 | 9 |
concurring
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Arizona Christian School Tuition Organization v. Winn
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https://www.courtlistener.com/opinion/214467/arizona-christian-school-tuition-organization-v-winn/
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Establishing A Provision for Teachers of the Chris tian Religion, reprinted in 330 U.S. (947) (supplemental appendix to dissent of Rutledge, J.); Letter from James Madison to Thomas Jefferson (Jan. 9, 785), reprinted in 2 Writings of James Madison, 3; see also Blasi, School Vouch ers and Religious Liberty: Seven Questions from Madi son’s Memorial and Remonstrance, 784 (the tax provision “permitted each taxpayer to specify which Christian denomination should re ceive his payment” and “[t]hose who did not wish to sup port a church could direct their assessment to a pro posed common school fund”). ndeed, the Virginia Assessment was specifically “designed to avoid any charges of coercion of dissenters to pay taxes to support religious teachings with which they disagreed.” Feldman, ntellectual Origins of the Establishment Clause, 77 N. Y. U. L. Rev. 346, 3832 —————— 2 The majority speculates that the Virginia General Assembly would have given some of the monies collected from conscientious objectors to schools with a sectarian bent. Ante, Because the Assessment never became law, no one can know which county schools would have received aid; indeed, the first of these schools did not open its doors until decades later. See W. First Liberty 26 (2003); see gener ally J. Buck, Development of Public Schools in Virginia 607–952 (952). But historians and legal scholars have uniformly understood the opt-out provision as a considered attempt to accommodate taxpay ers who did not want their tax dollars to go to religion. See Berg & at 244, n. 3 (the “provision for payment to a school fund was not an effort to support religious schools as part of support for education overall,” but rather “was an effort to accommodate the possibility of non-Christian taxpayers”); T. Buckley, Church and State in Revolutionary Virginia, 776–787, p. 33 (977) (under the “text of the proposed bill nonbelievers would [not] be forced to contribute to religion” because “[t]he assessment had been carefully drafted to permit those who preferred to support education rather than religion to do so”); see also, e.g., ; Underkuffler-Freund, Separation of the Religious and the Secular: A Foundational Challenge to First Amendment Theory, 9–890, n. 265 Cite as: 563 U. S. (20) 23 KAGAN, J., dissenting n this respect, the Virginia Assessment is just like the Arizona tax credit. Although both funnel tax funds to religious organizations (and so saddle all taxpayers with the cost), neither forces any given taxpayer to pay for the subsidy out of her pocket. Madison thought that feature of the Assessment insufficient to save it. By relying on the selfsame aspect of the
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Justice Scalia
| 2,011 | 9 |
concurring
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Arizona Christian School Tuition Organization v. Winn
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https://www.courtlistener.com/opinion/214467/arizona-christian-school-tuition-organization-v-winn/
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save it. By relying on the selfsame aspect of the Arizona scheme to deny the Plain tiffs’ claim of injury, the majority betrays Madison’s vision. Today’s decision devastates taxpayer standing in Estab lishment Clause cases. The government, after all, often uses tax expenditures to subsidize favored persons and activities. Still more, the government almost always has this option. Appropriations and tax subsidies are readily interchangeable; what is a cash grant today can be a tax break tomorrow. The Court’s opinion thus offers a road map—more truly, just a one-step instruction—to any government that wishes to insulate its financing of reli gious activity from legal challenge. Structure the funding as a tax expenditure, and will not stand in the way. No taxpayer will have standing to object. However bla tantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts. And by ravaging in this way, today’s decision damages one of this Nation’s defining constitutional com mitments. “Congress shall make no law respecting an establishment of religion”—ten simple words that have stood for over 200 years as a foundation stone of American religious liberty. Ten words that this Court has long understood, as James Madison did, to limit ; Adams & Emmerich, Heritage of Religious Liberty, 37 U. Pa. L. Rev. 559, 573 (989); “Nonpreferential” Aid to Religion: A False Claim About Original ntent, and n. 08 (985–986); L. Pfeffer, Church State and Freedom 0 (rev. ed. 967). 24 ARZONA CHRSTAN SCHOOL TUTON ORGANZATON v. WNN KAGAN, J., dissenting means eliminate) the government’s power to finance reli gious activity. The Court’s ruling today will not shield all state subsidies for religion from review; as the Court notes, some persons alleging Establishment Clause viola tions have suffered individualized injuries, and therefore have standing, independent of their taxpayer status. See ante, at –2, 7–8. But arose because “the taxing and spending power [may] be used to favor one religion over another or to support religion in general,” 392 U.S., at 03, without causing particularized harm to discrete persons. t arose because state sponsorship of religion sometimes harms individuals only (but this “only” is no small matter) in their capacity as contributing members of our national community. n those cases, the Court thought, our Constitution’s guarantee of religious neutral ity still should be enforced. Because that judgment was right then, and remains right today, respectfully dissent
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Justice Ginsburg
| 2,002 | 5 |
majority
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Columbus v. Ours Garage & Wrecker Service, Inc.
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https://www.courtlistener.com/opinion/121161/columbus-v-ours-garage-wrecker-service-inc/
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Federal preemption prescriptions relating to motor carriers, contained in 49 U.S. C. 14501(c) (1994 ed., Supp. V), specifically save to States "safety regulatory authority with respect to motor vehicles," 14501(c)(2)(A). This case presents the question whether the state power preserved in 14501(c)(2)(A) may be delegated to municipalities, permitting them to exercise safety regulatory authority over local tow-truck operations. The federal legislation preempts provisions by "a State [or] political subdivision of a State related to a price, route, or service of any motor carrier with respect to the transportation of property." 14501(c)(1). As an exception to this general rule, Congress provided that the preemption directive "shall not restrict the safety regulatory authority of a State with respect to motor vehicles." 14501(c)(2)(A). Section 14501(c)(1)'s statement of the general rule explicitly includes "State[s]" and their "political subdivision[s]." The exception for safety regulation, however, specifies only "State[s]" and does not mention "political subdivision[s]." 14501(c)(2)(A). We hold that 14501(c) does not bar a State from delegating to municipalities and other local units the State's authority to establish safety regulations governing motor carriers of property, including tow trucks. A locality, as 14501(c) recognizes, is a "political subdivision " of the State. Ordinarily, a political subdivision may exercise whatever portion *429 of state power the State, under its own constitution and laws, chooses to delegate to the subdivision. Absent a clear statement to the contrary, Congress' reference to the "regulatory authority of a State" should be read to preserve, not preempt, the traditional prerogative of the States to delegate their authority to their constituent parts. I The Interstate Commerce Act, as amended by the Federal Aviation Administration Authorization Act of 1994, and the ICC Termination Act of 1995, generally preempts state and local regulation "related to a price, route, or service of any motor carrier with respect to the transportation of property"; enumerated matters, however, are not covered by the preemption provision. The Act prescribes: "(1) General Rule.Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier with respect to the transportation of property. "(2) Matters not covered.Paragraph (1) "(A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization; "(B) does not apply to
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Justice Ginsburg
| 2,002 | 5 |
majority
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Columbus v. Ours Garage & Wrecker Service, Inc.
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https://www.courtlistener.com/opinion/121161/columbus-v-ours-garage-wrecker-service-inc/
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insurance requirements and self-insurance authorization; "(B) does not apply to the transportation of household goods; and "(C) does not apply to the authority of a State or a political subdivision of a State to enact or enforce a law, regulation, or other provision relating to the price of for-hire motor vehicle transportation by a tow truck, *430 if such transportation is performed without the prior consent or authorization of the owner or operator of the motor vehicle. "(3) State standard transportation practices. "(A) Continuation.[Section 14501(c)(1)] shall not affect any authority of a State, political subdivision of a State, or political authority of 2 or more States to enact or enforce a law, regulation, or other provision, with respect to the intrastate transportation of property by motor carriers, related to[inter alia] uniform cargo liability rules if such law, regulation, or provision meets [various enumerated] requirements." 49 U.S. C. 14501(c). Tow trucks, all parties to this case agree, are "motor carrier[s] of property" falling within 14501(c)'s compass. This reading is corroborated by 14501(c)(2)(C), which relates to nonconsensual tows, e. g., of illegally parked or abandoned vehicles. That provision plainly indicates that tow trucks qualify as "motor carrier[s] of property"; it exempts from federal preemption state and local regulation of "the price of for-hire motor vehicle transportation by a tow truck" when the towing "is performed without the prior consent of the [towed vehicle's] owner or operator." Petitioner, the City of Columbus, Ohio (City), extensively regulates the operation of any tow truck that seeks to pick up vehicles within city limits. Columbus' regulations require tow-truck operators to obtain city licenses, submit to city inspections, meet city standards for insurance and recordkeeping, and conform their vehicles to the City's detailed equipment requirements. See Columbus, Ohio, City Code 549.02-549.06 ; App. to Pet. for Cert. 37a52a. Plaintiff-respondent Ours Garage and Wrecker Service, Inc., joined by a trade association of tow-truck operators, the Towing and Recovery Association of Ohio (TRAO), brought suit in Federal District Court against the City of Columbus *431 and two city officials to enjoin enforcement of the City's towtruck regulations. The complaint alleged that Columbus' regulations were preempted by 14501(c)(1). On crossmotions for summary judgment, the District Court ruled for the plaintiffs; the court declared the City's tow-truck regulations preempted and enjoined their enforcement. Columbus and its officials appealed to the United States Court of Appeals for the Sixth Circuit. During the pendency of Columbus' appeal, the Sixth Circuit decided held that city of Toledo tow-truck regulations, resembling those of Columbus, were preempted by 14501(c).[1] The court observed first that 14501(c)(1)'s preemption
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Justice Ginsburg
| 2,002 | 5 |
majority
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Columbus v. Ours Garage & Wrecker Service, Inc.
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https://www.courtlistener.com/opinion/121161/columbus-v-ours-garage-wrecker-service-inc/
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preempted by 14501(c).[1] The court observed first that 14501(c)(1)'s preemption rule explicitly applies to "a State [or] political subdivision of a State," while the exception for safety regulations, 14501(c)(2)(A), refers only to the "authority of a State." The contrast in statutory language indicated to the court that Congress meant to limit the safety exception to States alone. This reading, the court further reasoned, was consistent with Congress' deregulatory purpose. "Congress intended to encourage market forces through the elimination of a myriad of complicated and potentially conflicting state regulations," the court observed; "yet another level of regulation at the local level," the court inferred, "would be disfavored." Eleven weeks after rendering its judgment in the Sixth Circuit decided this case. Holding dispositive, the appeals court affirmed the District Court's injunction against enforcement of Columbus' tow-truck regulations. The Courts of Appeals have divided on the question whether 14501(c)(2)(A)'s safety regulation exception to preemption *432 encompasses municipal regulations. Compare ; ; and R. of Atlanta, with Ace Auto & Towing, We granted certiorari to resolve the conflict, see and now reverse the Sixth Circuit's judgment. II We begin our consideration of the question presented with an observation that is beyond genuine debate. Had 49 U.S. C. 14501(c) contained no reference at all to "political subdivision[s] of a State," the preemption provision's exception for exercises of the "safety regulatory authority of a State," 14501(c)(2)(A), undoubtedly would have embraced both state and local regulation. Accord, post, at 445 (Scalia, J., dissenting). The Court's decision in Wisconsin Public would have been definitive. There the Court considered a provision of the Federal Insecticide, Fungicide, and Rodenticide Act authorizing a "State [to] regulate the sale or use of any federally registered pesticide or device in the State," 7 U.S. C. 136v(a); the provision was "silent with reference to local governments." "Mere silence," we held, "cannot suffice to establish a clear and manifest purpose to pre-empt local authority." As Justice White stated for the Court in Mortier, "[w]hen considering pre-emption, `we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' " ). Furthermore, Justice White explained: "The principle is well settled that local governmental units are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them in its absolute discretion. The exclusion of political subdivisions cannot be inferred from the express authorization to the States because political subdivisions are components of the very entity the statute empowers."
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Justice Ginsburg
| 2,002 | 5 |
majority
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Columbus v. Ours Garage & Wrecker Service, Inc.
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https://www.courtlistener.com/opinion/121161/columbus-v-ours-garage-wrecker-service-inc/
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subdivisions are components of the very entity the statute empowers." -608 This case is a closer call than Mortier. Here, the general preemption provision, 14501(c)(1)from which 14501(c) (2)(A) excepts "the safety regulatory authority of a State" explicitly preempts regulation both by "a State" and by a "political subdivision of a State." The exception for state safety regulation is the first in a series of four statutory exceptions to the preemption rule. The third exception in the series, covering regulation of prices for nonconsensual tow-truck services, matches the general preemption provision; it explicitly applies to the "authority of a State or a political subdivision of a State." 14501(c)(2)(C). States and their political subdivisions are likewise linked in almost every other provision of 14501. See 14501(a), 14501(b)(1), 14501(c)(3)(A), 14501(c)(3)(B), 14501(c)(3)(C). Respondents Ours Garage and TRAO, in line with several Courts of Appeals, home in on the statute's repeated references to both States and their political subdivisions; in contrast, they urge, the singularly bare reference to "[s]tate" authority in 14501(c)(2)(A)'s exception for safety regulation must mean that Congress intended to limit the exception to States alone. See Brief for Respondents 15-16, 26-29. Respondents rely particularly on In that case, we observed: "Where Congress includes particular language in one section of a statute *434 but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." (cited in ; ; and 219 F. 3d, at ). The dissent asserts the same argument vigorously. In its words: "The only conceivable reason" for the separate enumeration of States and their political subdivisions in 14501(c)(1) is to "establish two separate categories of state powerstate power exercised through political subdivisions and state power exercised by the State directly that are later treated differently in the exceptions to the rule." Post, at 445. We acknowledge that 14501(c)'s "disparate inclusion [and] exclusion" of the words "political subdivisions" support an argument of some force, one that could not have been made in Mortier. Nevertheless, reading 14501(c)'s set of exceptions in combination, and with a view to the basic tenets of our federal system pivotal in Mortier, we conclude that the statute does not provide the requisite "clear and manifest indication that Congress sought to supplant local authority." Respondents Ours Garage and TRAO, as just noted, contrast the first statutory exception to 14501(c)'s preemption rule, i. e., the exception preserving "the safety regulatory authority of a State," 14501(c)(2)(A), with the third exception, preserving the "authority of a State or a political subdivision to enact or enforce a law,
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Justice Ginsburg
| 2,002 | 5 |
majority
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Columbus v. Ours Garage & Wrecker Service, Inc.
|
https://www.courtlistener.com/opinion/121161/columbus-v-ours-garage-wrecker-service-inc/
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or a political subdivision to enact or enforce a law, regulation, or other provision relating to the price" charged for nonconsensual towing, 14501(c)(2)(C). See Brief for Respondents 15-16. The nonconsensual towing exception tracks the language and structure of the general preemption rule, omitting only the reference to a "political authority of 2 or more States." Similarly styled, the fourth exception, for carrier-requested regulations in areas such as "uniform cargo liability" and antitrust immunity, 14501(c)(3), completely parallels the wording *435 of 14501(c)(1): It provides that preemption "shall not affect any authority of a State, political subdivision of a State, or political authority of 2 or more States to enact or enforce a law, regulation, or other provision" in those areas. The safety exception of 14501(c)(2)(A), however, does not borrow language from 14501(c)(1). It simply states that preemption "shall not restrict the safety regulatory authority of a State." Notably, the second statutory exception, on which respondents train no attention, is stated with similar economy. That exception mentions neither States nor political subdivisions; it simply says that the general preemption rule, 14501(c)(1), "does not apply to the transportation of household goods," 14501(c)(2)(B). Yet it is abundantly clear that, notwithstanding this difference in verbal formulation, 14501(c)(2)(B), like its neighbor 14501(c)(2)(C), permits both state and local regulation. Accord, post, at 446 (Scalia, J., dissenting). The inclusion of the phrase "the authority of a State or a political subdivision of a State to enact or enforce a law, regulation, or other provision" no doubt synchronizes the nonconsensual towing provision with 14501(c)(1)'s main rule. The parallel structure of 14501(c)(1) and 14501(c)(2)(C) does not imply, however, that 14501(c)(2)(A)'s concise statement must be read to use the term "State" restrictively. Respondents' inference from the absence of "political subdivision of a State" in 14501(c)(2)(A) would be more persuasive if the omission were the sole difference in the expression of the general rule and the safety exception. In contrast to 14501(c)(2)(C) and (c)(3), however, neither the safety exception nor the household-goods exception refers to the "authority to enact or enforce a law, regulation, or other provision."[2] The Russello presumptionthat *436 the presence of a phrase in one provision and its absence in another reveals Congress' designgrows weaker with each difference in the formulation of the provisions under inspection. Respondents' restrictive reading of the term "State," we note, introduces an interpretive conundrum of another kind. Section 14501(c)(1) preempts the power of both States and localities to "enact or enforce a law, regulation, or other provision." (Emphasis added.) Those conjoined words travel together. If, as Ours Garage and TRAO argue, the safety exception
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