author_name
stringclasses 26
values | year
int64 1.97k
2.02k
| label
int64 0
200
| category
stringclasses 5
values | case_name
stringlengths 9
127
| url
stringlengths 55
120
| text
stringlengths 1k
3.91k
|
|---|---|---|---|---|---|---|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
person to sell his labor upon such terms as he deems proper is the same as the right of the purchaser of labor to prescribe [working] conditions.” (invalidating federal law prohibiting interstate railroad employers from discharging or discriminating against employees based on their mem- bership in labor organizations); accord (invalidating state law prohibit- ing employers from requiring employees, as a condition of employment, to refrain or draw from union membership). The NLGA the NLRA operate on a different prem- ise, that employees must have the capacity to act collec- tively in order to match their employers’ clout in setting terms conditions of employment. For decades, the Court’s decisions have reflected that understing. See Jones & Laughlin (upholding the NLRA against employer assault); cf. United States v. Darby, 312 U.S. 100 (1941) (upholding the FLSA). A The end of the 19th century beginning of the 20th was a tumultuous era in the history of our Nation’s labor relations. Under economic conditions then prevailing, workers often had to accept employment on whatever terms employers dictated. See 75 Cong. Rec. 4502 (1932). Aiming to secure better pay, shorter workdays, safer workplaces, workers increasingly sought to b together to make their dems effective. See ; H. Millis & E. 4 EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting Brown, From the Wagner Act to Taft-Hartley: A Study of National Labor Policy Labor Relations 7–8 (1950). Employers, in turn, engaged in a variety of tactics to hinder workers’ efforts to act in concert for their mutual benefit. See J. The Yellow Dog Contract 11 (1932). Notable among such devices was the “yellow-dog contract.” Such agreements, which employers required employees to sign as a condition of employment, typically commed employees to abstain from joining labor un- ions. See Many of the employer-designed agreements cast an even wider net, “proscrib[ing] all manner of concerted activities.” Finkin, The Meaning Contemporary Vitality of the Norris-LaGuardia Act, 93 Neb. L. Rev. 6, 16 ; see 9–60, 65–66. As a prominent United States Senator observed, contracts of the yellow-dog genre rendered the “laboring man absolutely helpless” by “waiv[ing] his right to free association” by requiring that he “singly present any grievance he has.” 75 Cong. Rec. 4504 (remarks of Sen. Norris). Early legislative efforts to protect workers’ rights to b together were unavailing. See, e.g., 6 U.S., at ; Frankfurter & Legislation Affecting Labor Injunctions, 38 Yale L. J. 879, 889–8 (1929). Courts, including this one, invalidated the legislation based on then-ascendant notions about employers’ employees’ constitutional right to “liberty of contract.” See 6 U.S., at ; Frankfurter & at 8–891.
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
contract.” See 6 U.S., at ; Frankfurter & at 8–891. While stating that legislatures could curtail contractual “liberty” in the interest of public health, safety, the general welfare, courts placed outside those bounds legislative action to redress the bargaining power imbalance workers faced. See 6 U.S., at 16–19. In the 1930’s, legislative efforts to safeguard vulnerable workers found more receptive audiences. As the Great Cite as: 584 U. S. (2018) 5 GINSBURG, J., dissenting Depression shifted political winds further in favor of worker-protective laws, Congress passed two statutes aimed at protecting employees’ associational rights. First, in 1932, Congress passed the NLGA, which regulates the employer-employee relationship indirectly. Section 2 of the Act declares: “Whereas the individual unorganized worker is commonly helpless to exercise actual liberty of con- tract to protect his freedom of labor, it is nec- essary that he have full freedom of association, self- organization, designation of representatives of his own choosing, that he shall be free from the interference, restraint, or coercion of employers in the designation of such representatives or in self- organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S. C. 02. Section 3 provides that federal courts shall not enforce “any undertaking or promise in conflict the public policy declared in 03.1 In adopting these provi- sions, Congress sought to render ineffective employer- imposed contracts proscribing employees’ concerted activity of any every kind. See 75 Cong. Rec. 4504–4505 (remarks of Sen. Norris) (“[o]ne of the objects” of the NLGA was to “outlaw” yellow-dog contracts); Finkin, (contracts prohibiting “all manner of concerted activities apart from union membership or support were understood to be ‘yellow dog’ contracts”). While banning court enforcement of contracts proscribing con- —————— 1 Other provisions of the NLGA further rein in federal-court authority to disturb employees’ concerted activities. See, e.g., 29 U.S. C. 04(d) (federal courts lack jurisdiction to enjoin a person from “aiding any person participating or interested in any labor dispute who is being proceeded against in, or [who] is prosecuting, any action or suit in any court of the United States or of any State”). 6 EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting certed action by employees, the NLGA did not directly prohibit coercive employer practices. But Congress did so three years later, in 1935, when it enacted the NLRA. Relevant here, of the NLRA guar- antees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
choosing, to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection.” 29 U.S. C. 57 (emphasis added). Section 8(a)(1) safeguards those rights by making it an “unfair labor practice” for an employer to “interfere restrain, or coerce employees in the exercise of the rights guaranteed in [].” 58(a)(1). To oversee the Act’s guarantees, the Act estab- lished the National Labor Relations Board (Board or NLRB), an independent regulatory agency empowered to administer “labor policy for the Nation.” San Diego Build- ing Trades ; see 29 U.S. C. 60. Unlike earlier legislative efforts, the NLGA the NLRA had staying power. When a case challenging the NLRA’s constitutionality made its way here, the Court, in retreat from its Lochner-era contractual-“liberty” deci- sions, upheld the Act as a permissible exercise of legisla- tive authority. See Jones & Laughlin 301 U.S., at 33–34. The Court recognized that employees have a “fun- damental right” to join together to advance their common interests that Congress, in lieu of “ignor[ing]” that right, had elected to “safeguard” it. B Despite the NLRA’s prohibitions, the employers in the cases now before the Court required their employees to sign contracts stipulating to submission of wage hours claims to binding arbitration, to do so only one-by- Cite as: 584 U. S. (2018) 7 GINSBURG, J., dissenting one.2 When employees subsequently filed wage hours claims in federal court sought to invoke the collective- litigation procedures provided for in the FLSA Federal Rules of Civil Procedure,3 the employers moved to compel individual arbitration. The Arbitration Act, in their view, requires courts to enforce their take-it-or-leave-it arbitra- tion agreements as written, including the collective- litigation abstinence demed therein. In resisting enforcement of the group-action foreclo- sures, the employees involved in this litigation do not urge —————— 2 The Court’s opinion opens the question: “Should employees employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration?” Ante, at 1. Were the “agreements” genuinely bilateral? Petitioner Epic Systems Corporation e-mailed its employees an arbitration agreement requiring resolution of wage hours claims by individual arbitration. The agreement provided that if the employees “continue[d] to work at Epic,” they would “be deemed to have accepted th[e] Agreement.” App. to Pet. for Cert. in No. 16–285, p. 30a. Ernst & Young similarly e-mailed its employees an arbitration agreement, which that the employees’ continued employment would indicate their assent to the agreement’s terms. See App. in No. 16–300, p. 37. Epic’s Ernst & Young’s employees thus faced a Hobson’s choice: accept arbitration on their employer’s
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
thus faced a Hobson’s choice: accept arbitration on their employer’s terms or give up their jobs. 3 The FLSA establishes an opt-in collective-litigation procedure for employees seeking to recover unpaid wages overtime pay. See 29 U.S. C. In particular, it authorizes “one or more employees” to maintain an action “in behalf of himself or themselves other employees similarly situated.” “Similarly situated” employees may become parties to an FLSA collective action ( may share in the recovery) only if they file written notices of consent to be joined as parties. The Federal Rules of Civil Procedure provide two collective-litigation procedures relevant here. First, Rule 20(a) permits individuals to join as plaintiffs in a single action if they assert claims arising out of the same transaction or occurrence their claims involve common questions of law or fact. Second, Rule establishes an opt-out class-action procedure, pursuant to which “[o]ne or more members of a class” may bring an action on behalf of the entire class if specified prerequisites are met. 8 EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting that they must have access to a judicial forum.4 They argue only that the NLRA prohibits their employers from denying them the right to pursue work-related claims in concert in any forum. If they may be stopped by employer- dictated terms from pursuing collective procedures in court, they maintain, they must at least have access to similar procedures in an arbitral forum. C Although the NLRA safeguards, first foremost, workers’ rights to join unions to engage in collective bargaining, the statute speaks more embracively. In addition to protecting employees’ rights “to form, join, or assist labor organizations” “to bargain collectively through representatives of their own choosing,” the Act protects employees’ rights “to engage in other concerted activities for the purpose of mutual aid or protection.” 29 U.S. C. 57 (emphasis added); see, e.g., NLRB v. Washington Aluminum Co., ( protected unorganized employees when they walked off the job to protest cold working conditions). See 1 J. Higgins, The Developing Labor Law 209 (“Section 7 protects not only union-related activity but ‘other concerted activities for mutual aid or protec- tion.’ ”); 1 N. Lareau, Labor Employment Law01[1], p. 1–2 (“Section 7 extended to employees three federally protected rights: (1) the right to form join unions; (2) the right to bargain collectively (negotiate) employers about terms conditions of employ- ment; (3) the right to work in concert another employee or employees to achieve employment-related goals.” (emphasis added)). —————— 4 Notably, one employer specified that if the provisions confining em- ployees to individual proceedings are “unenforceable,” “any
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
provisions confining em- ployees to individual proceedings are “unenforceable,” “any claim brought on a class, collective, or representative action basis must be filed in court.” App. to Pet. for Cert. in No. 16–285, 5a. Cite as: 584 U. S. (2018) 9 GINSBURG, J., dissenting Suits to enforce workplace rights collectively fit com- fortably under the umbrella “concerted activities for the purpose of mutual aid or protection.” 29 U.S. C. 57. “Concerted” means “[p]lanned or accomplished together; combined.” American Heritage Dictionary 381 “Mutual” means “reciprocal.” When employees meet the requirements for litigation of shared legal claims in joint, collective, class proceedings, the litigation of their claims is undoubtedly “accomplished together.” By joining hs in litigation, workers can spread the costs of litigation reduce the risk of em- ployer retaliation. See infra, –28. Recognizing employees’ right to engage in collective employment litigation shielding that right from em- ployer blockage are firmly rooted in the NLRA’s design. Congress expressed its intent, when it enacted the NLRA, to “protec[t] the exercise by workers of full freedom of association,” thereby remedying “[t]he inequality of bar- gaining power” workers faced. 29 U.S. C. 51; see, e.g., Eastex, (the Act’s policy is “to protect the right of workers to act together to better their working conditions” (internal quotation marks omitted)); City 465 U.S., at (“[I]n enacting of the NLRA, Congress sought generally to equalize the bargaining power of the employee that of his employer by allowing employees to b together in confronting an employer regarding the terms conditions of their employment.”). See –6. There can be no serious doubt that collective litigation is one way workers may associate one another to improve their lot. Since the Act’s earliest days, the Board federal courts have understood ’s “concerted activities” clause to protect myriad ways in which employees may join together to advance their shared interests. For example, the Board federal courts have affirmed that the Act shields employees from employer interference when they partici- 10 EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting pate in concerted appeals to the media, e.g., 505– 506 (CA2 1942), legislative bodies, e.g., Bethlehem Ship- building government agencies, e.g., Moss Planing Mill Co., 103 N. L. R. B. 414, 418–419, enf’d, “The 74th Congress,” this Court has noted, “knew well enough that labor’s cause often is advanced on fronts other than collective bargaining grievance settlement in the immediate employment context.” Eastex, 437 U.S., 65. Crucially important here, for over 75 years, the Board has held that the NLRA safeguards employees from em- ployer interference when they pursue joint, collective, class suits related to
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
interference when they pursue joint, collective, class suits related to the terms conditions of their employment. See, e.g., Spsco Oil Royalty Co., 42 N. L. R. B. 942, 948–949 (1942) (three employees’ joint filing of FLSA suit ranked as concerted activity protected by the NLRA); Poultrymen’s Service Corp., 41 N. L. R. B. 444, 460–463, n. 28 (1942) (same respect to employee’s filing of FLSA suit on behalf of himself others similarly situated), enf’d, ; Sarkes Tarzian, Inc., 149 N. L. R. B. 149, (1964) (same respect to employees’ filing class libel suit); United Parcel Service, Inc., 252 N. L. R. B. 1015, 1018 (1980) (same respect to employee’s filing class action regarding break times), enf’d, ; Harco Trucking, LLC, 344 N. L. R. B. 478, 478–479 (2005) (same respect to employee’s maintaining class action regarding wages). For decades, federal courts have en- dorsed the Board’s view, comprehending that “the filing of a labor related civil action by a group of employees is ordinarily a concerted activity protected by” Leviton Mfg. ; see, e.g., Cite as: 584 U. S. (2018) 11 GINSBURG, J., dissenting (similar).5 The Court pays scant heed to this longsting line of decisions.6 D In face of the NLRA’s text, history, purposes, longsting construction, the Court nevertheless con- cludes that collective proceedings do not fall in the scope of None of the Court’s reasons for diminishing should carry the day. 1 The Court relies principally on the ejusdem generis canon. See ante, at 12. Observing that ’s “other con- certed activities” clause “appears at the end of a detailed list of activities,” the Court says the clause should be read —————— 5 The Court cites, as purported evidence of contrary agency precedent, a 2010 “Guideline Memorum” that the NLRB’s then-General Counsel issued to his staff. See ante, at 4, 19, 22. The General Counsel appeared to conclude that employees have a right to file collective suits, but that employers can nonetheless require employees to sign arbitration agreements waiving the right to maintain such suits. See Memorum GC 10–06, p. 7 (June 16, 2010). The memorum sought to address what the General Counsel viewed as tension between longsting precedent recognizing a right to pursue collective employment litigation more recent court decisions broadly constru- ing the FAA. The memorum did not bind the Board, the Board never adopted the memorum’s position as its own. See D. R. Horton, 357 N. L. R. B. 22, 2282 enf. denied in relevant part, ; Tr. of Oral Arg. 41. Indeed, shortly after the General Counsel issued the memorum, the Board rejected its
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
the General Counsel issued the memorum, the Board rejected its analysis, finding that it conflicted Board precedent, rested on erroneous factual premises, “defie[d] logic,” was internally incoher- ent. D. R. Horton, 357 N. L. R. B., at 2282–2283. 6 In the Board held that employer-imposed contracts barring group litigation in any forum—arbitral or judicial—are unlawful. D. R. Horton, 357 N. L. R. B. 22. In so ruling, the Board simply applied its precedents recognizing that (1) employees have a right to engage in collective employment litigation (2) employers cannot lawfully require employees to sign away their rights. See It broke no new ground. But cf. ante, at 2, 19. 12 EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting to “embrace” only activities “similar in nature” to those set forth first in the list, (internal quotation marks omitted), i.e., “ ‘self-organization,’ ‘form[ing], join[ing], or assist[ing] labor organizations,’ ‘bargain[ing] collec- tively,’ ” The Court concludes that should, there- fore, be read to protect “things employees ‘just do’ for themselves.” (Sutton, J., concurring in part dissenting in part); emphasis de- leted). It is far from apparent why joining hs in litiga- tion would not qualify as “things employees just do for themselves.” In any event, there is no sound reason to employ the ejusdem generis canon to narrow ’s protec- tions in the manner the Court suggests. The ejusdem generis canon may serve as a useful guide where it is doubtful Congress intended statutory words or phrases to have the broad scope their ordinary meaning conveys. See Russell Motor Car Co. v. United States, 1 U.S. 514, 519 (19). Courts must take care, however, not to deploy the canon to undermine Congress’ efforts to draft encompassing legislation. See United States v. Powell, (“[W]e would be justified in narrowing the statute only if such a narrow reading was supported by evidence of congressional intent over above the language of the statute.”). Nothing suggests that Congress envisioned a cramped construction of the NLRA. Quite the opposite, Congress expressed an em- bracive purpose in enacting the legislation, i.e., to “pro- tec[t] the exercise by workers of full freedom of associa- tion.” 29 U.S. C. 51; see 2 In search of a statutory hook to support its application of the ejusdem generis canon, the Court turns to the NLRA’s “structure.” Ante, at 12. Citing a hful of provisions that touch upon unionization, collective bar- Cite as: 584 U. S. (2018) 13 GINSBURG, J., dissenting gaining, picketing, strikes, the Court asserts that the NLRA “establish[es] a regulatory regime” governing each of the activities protected by Ante, at 12–13.
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
governing each of the activities protected by Ante, at 12–13. That regime, the Court says, offers “specific guidance” “rules” regulating each protected activity. Ante, at 13. Observing that none of the NLRA’s provisions explicitly regulates employees’ resort to collective litigation, the Court insists that “it is hard to fathom why Congress would take such care to regulate all the other matters mentioned in [] yet remain mute about this matter alone—unless, of course, [] doesn’t speak to class collective action procedures in the first place.” This argument is conspicuously flawed. When Congress enacted the NLRA in 1935, the only activity Congress addressed any specificity was employees’ selection of collective-bargaining representatives. See The Act did not offer “specific guidance” about employees’ rights to “form, join, or assist labor organizations.” Nor did it set forth “specific guidance” for any activity falling in ’s “other concerted activities” clause. The only provision that touched upon an activity falling in that clause : “Nothing in this Act shall be construed so as to interfere or impede or diminish in any way the right to strike.” That provision hardly offered “specific guidance” regarding employees’ right to strike. Without much in the original Act to support its “struc- ture” argument, the Court cites several provisions that Congress added later, in response to particular concerns. Compare –457 –143 (1947) (adding to provide guidance regarding employees’ employers’ collective-bargaining obligations); 61 Stat. 141–142 (amending adding to proscribe specified labor organization practices); (adding (7) to place restrictions on labor organiza- tions’ right to picket employers). It is difficult to compre- hend why Congress’ later inclusion of specific guidance 14 EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting regarding some of the activities protected by sheds any light on Congress’ initial conception of ’s scope. But even if each of the provisions the Court cites had been included in the original Act, they still would provide little support for the Court’s conclusion. For going on 80 years now, the Board federal courts—including this one—have understood to protect numerous activities for which the Act provides no “specific” regulatory guid- ance. See –10. 3 In a related argument, the Court maintains that the NLRA does not “even whispe[r]” about the “rules [that] should govern the adjudication of class or collective actions in court or arbitration.” Ante, at 13. The employees here involved, of course, do not look to the NLRA for the proce- dures enabling them to vindicate their employment rights in arbitral or judicial forums. They assert that the Act establishes their right to act in concert using existing, generally available procedures, see
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
to act in concert using existing, generally available procedures, see to do so free from employer interference. The FLSA the Federal Rules on joinder class actions provide the procedures pursuant to which the employees may ally to pursue shared legal claims. Their employers cannot law- fully cut off their access to those procedures, they urge, out according them access to similar procedures in arbitral forums. See, e.g., American Arbitration Assn., Supplementary Rules for Class Arbitrations To the employees’ argument, the Court replies: If the employees “really take existing class collective action rules as they find them, they surely take them subject to the limitations inherent in those rules—including the principle that parties may (as here) contract to depart from them in favor of individualized arbitration proce- dures.” Ante, The freedom to depart asserted by the Court, as already underscored, is entirely one sided. Cite as: 584 U. S. (2018) 15 GINSBURG, J., dissenting See at 2–5. Once again, the Court ignores the reality that sparked the NLRA’s passage: Forced to face their employers out company, employees ordinarily are no match for the enterprise that hires them. Employ- ees gain strength, however, if they can deal their employers in numbers. That is the very reason why the NLRA secures against employer interference employees’ right to act in concert for their “mutual aid or protection.” 29 U.S. C. §51, 157, 158. 4 Further attempting to sow doubt about ’s scope, the Court asserts that class collective procedures were “hardly known when the NLRA was adopted in 1935.” Ante, at 11. In particular, the Court notes, the FLSA’s collective-litigation procedure postdated “by years” Rule “didn’t create the modern class action until 1966.” First, one may ask, is there any reason to suppose that Congress intended to protect employees’ right to act in concert using only those procedures forums available in 1935? Congress framed in broad terms, “en- trust[ing]” the Board “responsibility to adapt the Act to changing patterns of industrial life.” 6 ; see Pennsyl- vania Dept. of (1998) (“[T]he fact that a statute can be applied in situa- tions not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.” (inter- nal quotation marks omitted)). With fidelity to Congress’ aim, the Board federal courts have recognized that the NLRA shields employees from employer interference when they, e.g., join together to file complaints administra- tive agencies, even if those agencies did not exist in 1935. See, e.g., Wray Electric Contracting, Inc., 210 N. L. R. B. 757, 762 (1974) (the NLRA protects concerted filing of 16 EPIC SYSTEMS CORP. v. LEWIS GINSBURG,
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
concerted filing of 16 EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting complaint the Occupational Safety Health Administration). Moreover, the Court paints an ahistorical picture. As Judge Wood, writing for the Seventh Circuit, cogently explained, the FLSA’s collective-litigation procedure the modern class action were “not written on a clean slate.” By 1935, permissive joinder was scarcely uncommon in courts of equity. See 7 C. A. Miller, & M. Kane, Federal Practice Procedure 651 Nor were representative class suits novelties. Indeed, their origins trace back to medieval times. See S. Yeazell, From Medieval Group Litigation to the Modern Class Action 38 (1987). And beyond question, “[c]lass suits long have been a part of American jurisprudence.” 7A 751, at 12 (3d ed. 2005); see Supreme Tribe of See Brief for Constitutional Accountability Center as Amicus Curiae 5–16 (describing group litigation’s “rich history”). Early instances of joint proceedings include cases in which employees allied to sue an employer. E.g., 65 S. W. 844 (11) (suit to recover wages brought by ten mem- bers of city police force on behalf of themselves other officers); (suit by two employees to recover for injuries sustained while residing in housing provided by their employer). It takes no imagination, then, to comprehend that Congress, when it enacted the NLRA, likely meant to protect employees’ joining together to engage in collective litigation.7 —————— 7 The Court additionally suggests that something must be amiss be- cause the employees turn to the NLRA, rather than the FLSA, to resist enforcement of the collective-litigation waivers. See ante, at But the employees’ reliance on the NLRA is hardly a reason to “raise a judicial eyebrow.” Ante, at 15. The NLRA’s guiding purpose is to protect employees’ rights to work together when addressing shared Cite as: 584 U. S. (2018) 17 GINSBURG, J., dissenting E Because I would hold that employees’ rights include the right to pursue collective litigation regarding their wages hours, I would further hold that the employer- dictated collective-litigation stoppers, i.e., “waivers,” are unlawful. As earlier recounted, see (1) makes it an “unfair labor practice” for an employer to “interfere restrain, or coerce” employees in the exer- cise of their rights. 29 U.S. C. 58(a)(1). Beyond genuine dispute, an employer “interfere[s] ” “restrain[s]” employees in the exercise of their rights by mating that they prospectively renounce those rights in individual employment agreements.8 The law could hardly be otherwise: Employees’ rights to b together to meet their employers’ superior strength would be worth precious little if employers could condition employment on workers signing away those rights. See National Licorice Properly as- sessed,
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
signing away those rights. See National Licorice Properly as- sessed, then, the “waivers” rank as unfair labor practices outlawed by the NLRA, therefore unenforceable in court. See Kaiser (“[O]ur cases leave no doubt that illegal promises will not be enforced in cases controlled by the federal law.”).9 —————— workplace grievances of whatever kind. 8 See, e.g., Bethany Medical Center, 328 N. L. R. B. 4, 1105–1106 (1999) (holding employer violated (1) by conditioning employees’ rehiring on the surrender of their right to engage in future walkouts); Mel Security Bureau Inc., 202 N. L. R. B. 117, 119, 122 (holding employer violated (1) by conditioning employee’s rein- statement to former position on agreement that employee would refrain from filing charges the Board from circulating work-related petitions, instead, would “mind his own business”). 9 I would similarly hold that the NLGA renders the collective- litigation waivers unenforceable. That Act declares it the public policy of the United States that workers “shall be free from the interference, restraint, or coercion of employers” when they engage in “concerted 18 EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting II Today’s decision rests largely on the Court’s finding in the Arbitration Act “emphatic directions” to enforce arbi- tration agreements according to their terms, including collective-litigation prohibitions. Ante, Nothing in the FAA or this Court’s case law, however, requires subor- dination of the NLRA’s protections. Before addressing the —————— activities” for their “mutual aid or protection.” 29 U.S. C. 02; see Section 3 provides that federal courts shall not enforce any “promise in conflict the [Act’s] ” 03. Because employer- extracted collective-litigation waivers interfere employees’ ability to engage in “concerted activities” for their “mutual aid or protection,” see at 8–11, the arm-twisted waivers collide the NLGA’s policy; thus, no federal court should enforce them. See Finkin, The Meaning Contemporary Vitality of the Norris-LaGuardia Act, Boys Markets, provides no support for the Court’s contrary conclusion. See ante, In Boys Markets, an employer a union had entered into a collective- bargaining agreement, which provided that labor disputes would be resolved through arbitration that the union would not engage in strikes, pickets, or boycotts during the life of the agreement. 398 U.S., at 8–9. When a dispute later arose, the union bypassed arbitration called a strike. The question presented: Whether a federal district court could enjoin the strike order the parties to arbitrate their dispute. The case required the Court to reconcile the NLGA’s limitations on federal courts’ authority to enjoin employees’ concerted activities, see 29 U.S. C. 04, of the Labor Management Relations Act, 1947, which grants federal courts
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
the Labor Management Relations Act, 1947, which grants federal courts the power to enforce collective-bargaining agreements, see 29 U.S. C. 85(a). The Court concluded that permitting district courts to enforce no-strike arbitration provisions in collective-bargaining agree- ments would encourage employers to enter into such agreements, thereby furthering federal labor –253. That case has little relevance here. It did not consider the enforceability of arbitration provisions that require employees to arbitrate disputes only one-by-one. Nor did it consider the enforceability of arbitration provi- sions that an employer has unilaterally imposed on employees, as opposed to provisions negotiated through collective-bargaining processes in which employees can leverage their collective strength. Cite as: 584 U. S. (2018) 19 GINSBURG, J., dissenting interaction between the two laws, I briefly recall the FAA’s history the domain for which that Act was designed. A 1 Prior to 1925, American courts routinely declined to order specific performance of arbitration agreements. See Cohen & Dayton, The New Federal Arbitration Law, 12 Va. L. Rev. 5, 270 (19). Growing backlogs in the courts, which delayed the resolution of commercial dis- putes, prompted the business community to seek legisla- tion enabling merchants to enter into binding arbitration agreements. See The business community’s aim was to secure to merchants an expeditious, economical means of resolving their disputes. See The Ameri- can Bar Association’s Committee on Commerce, Trade Commercial Law took up the reins in 1921, drafting the legislation Congress enacted, relatively few changes, four years later. See Committee on Commerce, Trade & Commercial Law, The United States Arbitration Law Its Application, 11 A. B. A. J. (1925). The legislative hearings debate leading up to the FAA’s passage evidence Congress’ aim to enable mer- chants of roughly equal bargaining power to enter into binding agreements to arbitrate commercial disputes. See, e.g., 65 Cong. Rec. 11080 (19) (remarks of Rep. Mills) (“This bill provides that where there are commercial contracts there is disagreement under the contract, the court can [en]force an arbitration agreement in the same way as other portions of the contract.”); Joint Hear- ings on S. 1005 H. R. 646 before the Subcommittees of the Committees on the Judiciary, 68th Cong., 1st Sess. (19) (Joint Hearings) (consistently focusing on the need for binding arbitration of commercial disputes).10 —————— 10 American Bar Association member Julius H. Cohen, credited 20 EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting The FAA’s legislative history shows that Congress did not intend the statute to apply to arbitration provi- sions in employment In brief, when the legisla- tion was introduced, organized labor voiced concern. See Hearing on S.
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
was introduced, organized labor voiced concern. See Hearing on S. 4213 S. 4214 before the Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 9 (19) (Hearing). Herbert Hoover, then Secretary of Commerce, suggested that if there were “objection[s]” to including “workers’ contracts in the law’s scheme,” Con- gress could amend the legislation to say: “but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in interstate or foreign commerce.” Congress adopted Secretary Hoover’s suggestion virtually verbatim in of the Act, see Joint Hearings 2; 9 U.S. C. labor expressed no further opposition, see H. R. Rep. No. 96, 68th Cong., 1st Sess., 1 (19).11 Congress, it bears repetition, envisioned application of the Arbitration Act to voluntary, negotiated agreements. See, e.g., 65 Cong. Rec. 1931 (remarks of Rep. Graham) (the FAA provides an “opportunity to enforce an agreement to arbitrate, when voluntarily placed in the —————— drafting the legislation, wrote shortly after the FAA’s passage that the law was designed to provide a means of dispute resolution “particularly adapted to the settlement of commercial disputes.” Cohen & Dayton, The New Federal Arbitration Law, 12 Va. L. Rev. 5, (19). Arbitration, he a colleague explained, is “peculiarly suited to the disposition of the ordinary disputes between merchants as to questions of fact—quantity, quality, time of delivery, compliance terms of payment, excuses for non-performance, the like.” “It has a place” they noted, “in the determination of the simpler questions of law” that “arise out of th[e] daily relations between mer- chants, [for example,] the passage of title, [] the existence of war- ranties.” 11 For fuller discussion of Congress’ intent to exclude employment contracts from the FAA’s scope, see Circuit City Stores, Cite as: 584 U. S. (2018) 21 GINSBURG, J., dissenting document by the parties to it”). Congress never endorsed a policy favoring arbitration where one party sets the terms of an agreement while the other is left to “take it or leave it.” Hearing 9 (remarks of Sen. Walsh) (internal quotation marks omitted); see Prima (“We note that categories of contracts otherwise in the Arbitration Act but in which one of the parties character- istically has little bargaining power are expressly excluded from the reach of the Act. See”). 2 In recent decades, this Court has veered away from Congress’ intent simply to afford merchants a speedy economical means of resolving commercial disputes. See Sternlight, Panacea or Corporate Tool?: Debunking the Supreme Court’s Preference for Binding Arbitration, 74 Wash. U. L. Q. 637, 644–674 (tracing the
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
Arbitration, 74 Wash. U. L. Q. 637, 644–674 (tracing the Court’s evolving interpretation of the FAA’s scope). In 1983, the Court declared, for the first time in the FAA’s then 58- year history, that the FAA evinces a “liberal federal policy favoring arbitration.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., (involving an arbitration agreement between a hospital a construc- tion contractor). Soon thereafter, the Court ruled, in a series of cases, that the FAA requires enforcement of agreements to arbitrate not only contract claims, but statutory claims as well. E.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., ; Shearson/American Express Inc. v. McMahon, 482 U.S. 220 (1987). Further, in 1991, the Court concluded in that the FAA requires enforcement of agreements to arbitrate claims arising under the Age Discrimination in Employment Act of 1967, a workplace antidiscrimina- tion statute. Then, in 2001, the Court ruled in Circuit City 22 EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting Stores, that the Arbitration Act’s exemption for employment contracts should be construed narrowly, to exclude from the Act’s scope only transportation workers’ Employers have availed themselves of the opportunity opened by court decisions expansively interpreting the Arbitration Act. Few employers imposed arbitration agreements on their employees in the early 19’s. After Gilmer Circuit City, however, employers’ exaction of arbitration clauses in employment contracts grew steadily. See, e.g., Economic Policy Institute (EPI), A. The Growing Use of Matory Arbitration 1–2, 4 available at https://www.epi.org/files/pdf/135056.pdf (All Internet materials as visited May 18, 2018) (data indicate only 2.1% of nonunionized companies imposed matory arbitration agreements on their employees in 1992, but 53.9% do today). Moreover, in response to sub- sequent decisions addressing class arbitration,12 employ- ers have increasingly included in their arbitration agree- ments express group-action waivers. See Ruan 1129; —————— 12 In Green Tree Financial a plurality suggested arbitration might proceed on a class basis where not expressly precluded by an agreement. After Bazzle, companies increasingly placed explicit collective-litigation waivers in consumer employee arbitration agreements. See Gilles, Opting Out of Liability: The Forthcoming, Near-Total Demise of the Modern Class Action, 409–410 (2005). In AT&T Mobility LLC v. Concepcion, American Express Co. v. Italian Colors Restaurant, the Court held enforce- able class-action waivers in the arbitration agreements at issue in those cases. No surprise, the number of companies incorporating express class-action waivers in consumer employee arbitration agreements spiked. See Carlton Fields Class Action Survey: Best Practices in Reducing Cost Managing Risk in Class Action Litigation 29 available at https://www.classactionsurvey.com/pdf/-class-action- survey.pdf Cite as: 584 U. S. (2018) GINSBURG, J., dissenting (estimating that1% of nonunionized employees
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
S. (2018) GINSBURG, J., dissenting (estimating that1% of nonunionized employees are now subject to express class-action waivers in matory arbitration agreements). It is, therefore, this Court’s exorbitant application of the FAA—stretching it far beyond contractual disputes between merchants— that led the NLRB to confront, for the first time in the precise question whether employers can use arbitra- tion agreements to insulate themselves from collective employment litigation. See D. R. Horton, 357 N. L. R. B. 22 enf. denied in relevant part, Compare ante, –4 (suggesting the Board broke new ground in when it concluded that the NLRA prohibits employer-imposed arbitration agreements that mate individual arbitration) at 10–11 (NLRB decisions recognizing a right to engage in collec- tive employment litigation), (NLRB decisions finding employer-dictated waivers of rights unlawful). As I see it, in relatively recent years, the Court’s Arbi- tration Act decisions have taken many wrong turns. Yet, even accepting the Court’s decisions as they are, nothing compels the destructive result the Court reaches today. Cf. R. Bork, The Tempting of America 169 (19) (“Judges live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”). B Through the Arbitration Act, Congress sought “to make arbitration agreements as enforceable as other contracts, but not more so.” Prima n. 12. Congress thus provided in of the FAA that the terms of a written arbitration agreement “shall be valid, irrevoca- ble, enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. (emphasis added). Pursuant to this “saving clause,” arbitration agreements terms may be invali- EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting dated based on “generally applicable contract defenses, such as fraud, duress, or unconscionability.” Doctor’s Associates, ; see ante, at 7. Illegality is a traditional, generally applicable contract defense. See 5 R. Lord, Williston on Contracts 2.1 (4th ed. 2009). “[A]uthorities from the earliest time to the present unanimously hold that no court will lend its assistance in any way towards carrying out the terms of an illegal con- tract.” Kaiser 455 U.S., at ). For the reasons at 8–17, I would hold that the arbitration agreements’ employer-dictated collective-litigation waivers are unlawful. By declining to enforce those adhesive waivers, courts would place them on the same footing as any other contract provision incompatible controlling federal law. The FAA’s saving clause can thus achieve harmonization of the FAA the NLRA out under- mining federal labor The Court urges that our case law—most forcibly, AT&T Mobility —rules out reconciliation of the NLRA the FAA through the latter’s
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
out reconciliation of the NLRA the FAA through the latter’s saving clause. See ante, –9. I disagree. True, the Court’s Arbitration Act decisions establish that the saving clause “offers no refuge” for defenses that discrimi- nate against arbitration, “either by name or by more subtle methods.” Ante, at 7. The Court, therefore, has rejected saving clause salvage where state courts have invoked generally applicable contract defenses to discrim- inate “covertly” against arbitration. Kindred Nursing Centers L. P. v. Clark, 581 U. S. (slip op., at 5). In Concepcion, the Court held that the saving clause did not spare the California Supreme Court’s invocation of unconscionability doctrine to establish a rule blocking enforcement of class-action waivers in adhesive consumer –344, 346–352. Class proceed- Cite as: 584 U. S. (2018) 25 GINSBURG, J., dissenting ings, the Court said, would “sacrific[e] the principal ad- vantage of arbitration—its informality— mak[e] the process slower, more costly, more likely to generate procedural morass than final judgment.” Accordingly, the Court concluded, the California Supreme Court’s rule, though derived from unconscionability doc- trine, impermissibly disfavored arbitration, therefore could not st. 46–352. Here, however, the Court is not asked to apply a gener- ally applicable contract defense to generate a rule discrim- inating against arbitration. At issue is application of the ordinarily superseding rule that “illegal promises will not be enforced,” Kaiser 455 U.S., at to invalidate arbitration provisions at odds the NLRA, a path- marking federal statute. That statute neither discrimi- nates against arbitration on its face, nor by covert opera- tion. It requires invalidation of all employer-imposed contractual provisions prospectively waiving employees’ rights. See n. 8; cf. Kindred Nursing Centers, 581 U. S., at n. 2 (slip op., at 7, n. 2) (States may enforce generally applicable rules so long as they do not “single out arbitration” for disfavored treatment). C Even assuming that the FAA the NLRA were in- harmonious, the NLRA should control. Enacted later in time, the NLRA should qualify as “an implied repeal” of the FAA, to the extent of any genuine conflict. See Posa- Moreover, the NLRA should prevail as the more pinpointed, subject-matter specific legislation, given that it speaks directly to group action by employees to improve the terms conditions of their employment. See Radzanower v. Touche Ross & Co., 4 U.S. 148, (“a specific statute” generally “will not be controlled or nullified by a EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting general one” (internal quotation marks omitted)).13 Citing statutory examples, the Court asserts that when Congress wants to override the FAA, it does so expressly. See ante, at 13–14.
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
the FAA, it does so expressly. See ante, at 13–14. The statutes the Court cites, however, are of recent vintage.14 Each was enacted during the time this Court’s decisions increasingly alerted Congress that it would be wise to leave not the slightest room for doubt if it wants to secure access to a judicial forum or to provide a green light for group litigation before an arbitrator or court. See CompuCredit 116 (GINSBURG, J., dissenting). The Congress that drafted the NLRA in 1935 was scarcely on similar alert. III The inevitable result of today’s decision will be the underenforcement of federal state statutes designed to advance the well-being of vulnerable workers. See gener- ally Sternlight, Disarming Employees: How American Employers Are Using Matory Arbitration To Deprive Workers of Legal Protections, 80 Brooklyn L. Rev. 1309 (2015). The probable impact on wage hours claims of the kind asserted in the cases now before the Court is all too evident. Violations of minimum-wage overtime laws are widespread. See Ruan 1–1111; A. et al., Broken Laws, Unprotected Workers: Violations of Em- ployment Labor Laws in America’s Cities 11–16, 21– 22 (2009). One study estimated that in Chicago, Los —————— 13 Enacted, as was the NLRA, after passage of the FAA, the NLGA qualifies as a statute more specific than the FAA. Indeed, the NLGA expressly addresses the enforceability of contract provisions that interfere employees’ ability to engage in concerted activities. See n. 9. Moreover, the NLGA contains an express repeal provision, which provides that “[a]ll acts parts of acts in conflict [the Act’s] provisions are repealed.” 29 U.S. C. 15. 14 See (2002); 120 Stat. 27 (2006); 1 Stat. 6 (2010); 1 Stat. 2035 (2010). Cite as: 584 U. S. (2018) 27 GINSBURG, J., dissenting Angeles, New York City alone, low-wage workers lose nearly $3 billion in legally owed wages each year. at 6. The U. S. Department of Labor, state labor depart- ments, state attorneys general can uncover obtain recoveries for some violations. See EPI, B. Meixell & R. Eisenbrey, An Epidemic of Wage Theft Is Costing Workers Hundreds of Millions of Dollars a Year 2 available at https://www.epi.org/files/2014/wage-theft.pdf. Because of their limited resources, however, government agencies must rely on private parties to take a lead role in enforc- ing wage hours laws. See Brief for State of Maryl et al. as Amici Curiae 29–33; Glover, The Structural Role of Private Enforcement Mechanisms in Public Law, 53 Wm. & Mary L. Rev. 1137, 1150–1151 (Department of Labor investigates fewer than 1% of FLSA-covered employers each year). If employers can stave off collective
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
FLSA-covered employers each year). If employers can stave off collective employment litiga- tion aimed at obtaining redress for wage hours infrac- tions, the enforcement gap is almost certain to widen. Expenses entailed in mounting individual claims will often far outweigh potential recoveries. See at 1184–1185 (because “the FLSA systematically tends to generate low- value claims,” “mechanisms that facilitate the economics of claiming are required”); Sutherl v. Ernst & Young LLP, (finding that an employee utilizing Ernst & Young’s arbitration pro- gram would likely have to spend $200,000 to recover only $1,867.02 in overtime pay an equivalent amount in liquidated damages); cf. Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, the Erasure of Rights, 1 Yale L. J. 2804, (2015) (analyzing available data from the consumer con- text to conclude that “private enforcement of small-value claims depends on collective, rather than individual, ac- tion”); Amchem Products, 617 (1997) (class actions help “overcome the problem that 28 EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting small recoveries do not provide the incentive for any indi- vidual to bring a solo action prosecuting his or her rights” (internal quotation marks omitted)).15 Fear of retaliation may deter potential claimants from seeking redress alone. See, e.g., Ruan 1119–1121; –25. Further inhibiting single- file claims is the slim relief obtainable, even of the injunc- tive kind. See (1979) (“[T]he scope of injunctive relief is dictated by the extent of the violation established.”). The upshot: Em- ployers, aware that employees will be disinclined to pur- sue small-value claims when confined to proceeding one- by-one, will no doubt perceive that the cost-benefit balance of underpaying workers tips heavily in favor of skirting legal obligations. In stark contrast to today’s decision,16 the Court has repeatedly recognized the centrality of group action to the effective enforcement of antidiscrimination statutes. With Court approbation, concerted legal actions have played a critical role in enforcing prohibitions against workplace discrimination based on race, sex, other protected characteristics. See, e.g., Griggs v. Duke Power Co., 401 U.S. 4 (1971); Automobile In this context, the Court has comprehended that government entities charged enforcing antidiscrimination statutes are unlikely to be funded at levels that could even begin to compensate for a significant dropoff in private enforcement efforts. See —————— 15 Based on a 2015 study, the Bureau of Consumer Financial Protec- tion found that “pre-dispute arbitration agreements are being widely used to prevent consumers from seeking relief from legal violations on a class basis, that consumers rarely file individual lawsuits or arbitration cases to obtain such relief.” 16 The Court observes
|
Justice Ginsburg
| 2,018 | 5 |
dissenting
|
Epic Systems Corp. v. Lewis
|
https://www.courtlistener.com/opinion/4499694/epic-systems-corp-v-lewis/
|
arbitration cases to obtain such relief.” 16 The Court observes that class actions can be abused, see ante, at but under its interpretation, even two employees would be stopped from proceeding together. Cite as: 584 U. S. (2018) 29 GINSBURG, J., dissenting 3 U.S. 400, 401 (1968) (per curiam) (“When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult that the Nation would have to rely in part upon private litigation as a means of securing broad compliance the law.”). That reality, as just noted, holds true for enforcement of wage hours laws. See I do not read the Court’s opinion to place in jeopardy discrimination complaints asserting disparate-impact pattern-or-practice claims that call for proof on a group- wide basis, see Brief for NAACP Legal Defense & Educa- tional Fund, Inc., et al. as Amici Curiae 19–25, which some courts have concluded cannot be maintained by solo complainants, see, e.g., (pattern-or-practice method of proving race discrimination is unavailable in non-class actions). It would be grossly exorbitant to read the FAA to devastate Title VII of the Civil Rights Act of 1964, 42 U.S. C. 000e et seq., other laws enacted to elimi- nate, root branch, class-based employment discrimi- nation, see Albemarle Paper 417, 421 With fidelity to the Legislature’s will, the Court could hardly hold otherwise. I note, finally, that individual arbitration of employee complaints can give rise to anomalous results. Arbitration agreements often include provisions requiring that out- comes be kept confidential or barring arbitrators from giving prior proceedings precedential effect. See, e.g., App. to Pet. for Cert. in No. 16–285, p. 34a (Epic’s agreement); App. in No. 16–300, p. 46 (Ernst & Young’s agreement). As a result, arbitrators may render conflicting awards in cases involving similarly situated employees—even em- ployees working for the same employer. Arbitrators may resolve differently such questions as whether certain jobs are exempt from overtime laws. Cf. Encino Motor Cars, 30 EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting LLC v. Navarro, ante, p. (Court divides on whether “service advisors” are exempt from overtime-pay require- ments). With confidentiality no-precedential-value provisions operative, irreconcilable answers would remain unchecked. * * * If these untoward consequences stemmed from legisla- tive choices, I would be obliged to accede to them. But the edict that employees wage hours claims may seek relief only one-by-one does not come from Congress. It is the result of take-it-or-leave-it labor contracts hark- ing back to the type called “yellow dog,” of the readi- ness of this Court to enforce those unbargained-for agree- ments. The FAA dems
|
Justice Rehnquist
| 1,993 | 19 |
majority
|
United States v. IDAHO Ex Rel. DIRECTOR, IDAHO DEPARTMENT OF WATER RESOURCES
|
https://www.courtlistener.com/opinion/112851/united-states-v-idaho-ex-rel-director-idaho-department-of-water/
|
The McCarran Amendment allows a State to join the United States as a defendant in a comprehensive water right adjudication. 43 U.S. C. 666(a). This case arises from Idaho's joinder of the United States in a suit for the adjudication of water rights in the Snake River. Under Idaho Code 42-1414 all water right claimants, including the United States, must pay "filing fees" when they submit their notices of claims. Idaho collects these fees to "financ[e] the costs of adjudicating water rights," 42-1414; the United States estimates that in its case the fees could exceed $10 million. We hold that the McCarran Amendment does not waive the United States' sovereign immunity from fees of this kind. Discovered by the Lewis and Clark expedition, the Snake Riverthe "Mississippi of Idaho"is 1,038 miles long and the principal tributary to the Columbia River. It rises in the mountains of the Continental Divide in northwest Wyoming and enters eastern Idaho through the Palisades Reservoir. Near Heise, Idaho, the river leaves the mountains and meanders westerly across southern Idaho's Snake River plain for the entire breadth of the Statesome 400 miles. On the western edge of Idaho, near Weiser, the Snake enters Oregon for a while and then turns northward, forming the Oregon-Idaho boundary for 216 miles. In this stretch, the river traverses Hells Canyon, the Nation's deepest river gorge. From the northeastern corner of Oregon, the river marks the Washington-Idaho boundary until Lewiston, Idaho, where it bends westward into Washington and finally flows into the Columbia just south of Pasco, Washington. From elevations of 10,000 feet, the Snake descends to 3,000 feet and, together with its many tributaries, provides the only water for most of Idaho. See generally T. Palmer, The Snake River *4 This litigation followed the enactment by the Idaho Legislature in 1985 and 1986 of legislation providing for the Snake River Basin Adjudication. That legislation stated that "the director of the department of water resources shall petition the [state] district court to commence an adjudication within the terms of the McCarran [A]mendment." Idaho Code 42-1406A(1) The 1985 and 1986 legislation also altered Idaho's methods for "financing the costs of adjudicating water rights"; it provided that the Director of the Idaho Department of Water Resources shall not accept a "notice of claim" from any water claimant unless such notice "is submitted with a filing fee based upon the fee schedule." 42 1414. "Failure to pay the variable water use fee in accordance with the timetable provided shall be cause for the department to reject and return the notice of claim to the
|
Justice Rehnquist
| 1,993 | 19 |
majority
|
United States v. IDAHO Ex Rel. DIRECTOR, IDAHO DEPARTMENT OF WATER RESOURCES
|
https://www.courtlistener.com/opinion/112851/united-states-v-idaho-ex-rel-director-idaho-department-of-water/
|
to reject and return the notice of claim to the claimant." Idaho uses these funds "to pay the costs of the department attributable to general water rights adjudications" and "to pay for judicial expenses directly relating to the Snake river adjudication." 42-1777(1) and (2). The Director of the Idaho Department of Water Resources filed a petition in the District Court of the Fifth Judicial District naming the United States and all other water users as defendants. The District Court entered an order commencing the adjudication, which was affirmed by the Supreme Court of Idaho. In re Snake River Basin Water System, cert. denied sub nom. Boise-Kuna Irrigation When the United States attempted to submit its notices of claims unaccompanied by filing fees, the director refused to accept them. The United States then filed a petition for a writ of mandamus with the state court to compel the director to accept its notices without fees, asserting that the McCarran Amendment does not waive federal sovereign immunity from payment of filing fees. The District Court granted Idaho summary judgment on the immunity issue: "The ordinary, contemporary and common meaning of the *5 language of McCarran is that Congress waived all rights to assert any facet of sovereign immunity in a general adjudication of all water rightswhich is being conducted in accordance with state law." App. to Pet. for Cert. 86a (emphasis in original). The Supreme Court of Idaho affirmed by a divided vote. It concluded that the McCarran Amendment "express[es] a `clear intent' of congress to subject the United States to all of the state court processes of an `adjudication' of its water rights with the sole exception of costs." The court also "decline[d] to read the term judgment for costs as including the term filing fees." Whereas "costs" are charges that a prevailing party may recover from its opponent as part of the judgment, "fees are compensation paid to an officer, such as the court, for services rendered to individuals in the course of litigation." Two justices wrote separate dissents, asserting that the McCarran Amendment does not waive sovereign immunity from filing fees. We granted certiorari, and now reverse. The McCarran Amendment provides in relevant part: "Consent is given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law,
|
Justice Rehnquist
| 1,993 | 19 |
majority
|
United States v. IDAHO Ex Rel. DIRECTOR, IDAHO DEPARTMENT OF WATER RESOURCES
|
https://www.courtlistener.com/opinion/112851/united-states-v-idaho-ex-rel-director-idaho-department-of-water/
|
process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain *6 review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit." 43 U.S. C. 666(a). According to Idaho, the amendment requires the United States to comply with all state laws applicable to general water right adjudications. Idaho argues that the first sentence of the amendment, the joinder provision, allows joinder of the United States as a defendant in suits for the adjudication of water rights. It then construes the amendment's second sentence, the pleading provision, to waive the United States' immunity from all state laws pursuant to which those adjudications are conducted. Idaho relies heavily on the language of the second sentence stating that the United States shall be "deemed to have waived any right to plead that the State laws are inapplicable." Because the "filing fees" at issue here are assessed in connection with a comprehensive adjudication of water rights, Idaho contends that they fall within the McCarran Amendment's waiver of sovereign immunity. The United States, on the other hand, contends that the critical language of the second sentence renders it amenable only to state substantive law of water rights, and not to any of the state adjective law governing procedure, fees, and the like. The Government supports its position by arguing that the phrase "the State laws" in the second sentence must be referring to the same "State law" mentioned in the first sentence, and that since the phrase in the first sentence is clearly directed to substantive state water law, the phrase in the second sentence must be so directed as well. There is no doubt that waivers of federal sovereign immunity must be "unequivocally expressed" in the statutory text. See ; Department of ; United "Any such waiver must be strictly construed in favor of the United States," and not enlarged beyond what the language of the statute requires, But just as "`we should not take it upon ourselves to extend the waiver beyond
|
Justice Rehnquist
| 1,993 | 19 |
majority
|
United States v. IDAHO Ex Rel. DIRECTOR, IDAHO DEPARTMENT OF WATER RESOURCES
|
https://www.courtlistener.com/opinion/112851/united-states-v-idaho-ex-rel-director-idaho-department-of-water/
|
not take it upon ourselves to extend the waiver beyond that which Congress intended[,] [n]either, however, should we assume the authority to narrow the waiver that Congress intended.' " We are unable to accept either party's contention. The argument of the United States is weak, simply as a matter of grammar, because the critical term in the second sentence is "the State laws, " while the corresponding language in the first sentence is "State law." And such a construction would render the amendment's consent to suit largely nugatory, allowing the Government to argue for some special federal rule defeating established state-law rules governing pleading, discovery, and the admissibility of evidence at trial. We do not believe that Congress intended to create such a legal no-man's land in enacting the McCarran Amendment. We rejected a similarly technical argument of the Government in construing the McCarran Amendment in United saying "[w]e think that argument is extremely technical; and we decline to confine [the McCarran Amendment] so narrowly." We also reject Idaho's contention. In several of our cases exemplifying the rule of strict construction of a waiver of sovereign immunity, we rejected efforts to assess monetary liability against the United States for what are normal incidents of litigation between private parties. See, e. g., United ; Library of ; *8 And the McCarran Amendment's "cost proviso," of course, expressly forbids the assessment of costs against the United States: "[N]o judgment for costs shall be entered against the United States." The Supreme Court of Idaho pointed out in its opinion that "fees" and "costs" mean two different things in the context of Idaho, and we agree with this observation. "Fees" are generally those amounts paid to a public official, such as the clerk of the court, by a party for particular charges typically delineated by statute; in contrast, "costs" are those items of expense incurred in litigation that a prevailing party is allowed by rule to tax against the losing party. See 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 2666, pp. 173-174 Before Idaho altered its system for recovering its expenses in conducting comprehensive water right adjudications in 1985 and 1986, Idaho courts, at the time of entry of final judgment, used to proportionately tax the "costs" of the adjudication against all parties to the suit, and not simply against the losing parties. Idaho Code 42-1401 (1948). When Idaho revised this system, many of the items formerly taxed as "costs" to the parties at the conclusion of the adjudication were denominated as "fees," and required to be paid into
|
Justice Rehnquist
| 1,993 | 19 |
majority
|
United States v. IDAHO Ex Rel. DIRECTOR, IDAHO DEPARTMENT OF WATER RESOURCES
|
https://www.courtlistener.com/opinion/112851/united-states-v-idaho-ex-rel-director-idaho-department-of-water/
|
were denominated as "fees," and required to be paid into court at the outset. This suggests that although the general distinction between fees and costs may be accurate, in the context of this proceeding the line is blurred, indeed. While we therefore accept the proposition that the critical language of the second sentence of the McCarran Amendment submits the United States generally to state adjective law, as well as to state substantive law of water rights, we do not believe it subjects the United States to the payment of the sort of fees that Idaho sought to exact here. The cases mentioned above dealing with waivers of sovereign immunity as to monetary exactions from the United States in litigation show that we have been particularly alert to require *9 a specific waiver of sovereign immunity before the United States may be held liable for them. We hold that the language of the second sentence making "the State laws" applicable to the United States in comprehensive water right adjudications is not sufficiently specific to meet this requirement. The judgment of the Supreme Court of Idaho is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice Stevens, concurring in the judgment.
|
Justice Breyer
| 2,010 | 2 |
majority
|
Hertz Corp. v. Friend
|
https://www.courtlistener.com/opinion/1735/hertz-corp-v-friend/
|
The federal diversity jurisdiction statute provides that “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” 28 U.S. C. (emphasis added). We seek here to resolve different inter pretations that the Circuits have given this phrase. In doing so, we place primary weight upon the need for judi cial administration of a jurisdictional statute to remain as simple as possible. And we conclude that the phrase “principal place of business” refers to the place where the corporation’s high level officers direct, control, and coordi nate the corporation’s activities. Lower federal courts have often metaphorically called that place the corpora tion’s “nerve center.” See, e.g., Wisconsin Knife v. National Metal Crafters, ; Scot Typewriter 5 (SDNY 1959) (Weinfeld, J.). We believe that the “nerve center” will typically be found at a corporation’s headquarters. 2 HERTZ CORP. v. FRIEND Opinion of the Court I In September 2007, respondents Melinda Friend and John Nhieu, two California citizens, sued petitioner, the Hertz Corporation, in a California state court. They sought damages for what they claimed were violations of California’s wage and hour laws. App. to Pet. for Cert. 20a. And they requested relief on behalf of a potential class composed of California citizens who had allegedly suffered similar harms. Hertz filed a notice seeking removal to a federal court. 28 U.S. C. 1441(a). Hertz claimed that the plaintiffs and the defendant were citizens of different States. (c)(1). Hence, the federal court possessed diversity-of-citizenship jurisdiction. Friend and Nhieu, however, claimed that the Hertz Corporation was a California citizen, like themselves, and that, hence, diver sity jurisdiction was lacking. To support its position, Hertz submitted a declaration by an employee relations manager that sought to show that Hertz’s “principal place of business” was in New Jersey, not in California. The declaration stated, among other things, that Hertz operated facilities in 44 States; and that California—which had about 12% of the Nation’s population, Pet. for Cert. 8—accounted for 273 of Hertz’s 1,606 car rental locations; about 2,300 of its 11,230 full time employees; about $811 million of its $4.371 billion in annual revenue; and about 3.8 million of its approximately 21 million annual transactions, i.e., rentals. The declara tion also stated that the “leadership of Hertz and its do mestic subsidiaries” is located at Hertz’s “corporate head quarters” in Park Ridge, New Jersey; that its “core executive and administrative functions are carried out” there and “to a lesser extent” in Oklahoma City, Okla homa; and that
|
Justice Breyer
| 2,010 | 2 |
majority
|
Hertz Corp. v. Friend
|
https://www.courtlistener.com/opinion/1735/hertz-corp-v-friend/
|
a lesser extent” in Oklahoma City, Okla homa; and that its “major administrative operations are found” at those two locations. App. to Pet. for Cert. 26a–30a. Cite as: 559 U. S. (2010) 3 Opinion of the Court The District Court of the Northern District of California accepted Hertz’s statement of the facts as undisputed. But it concluded that, given those facts, Hertz was a citi zen of California. In reaching this conclusion, the court applied Ninth Circuit precedent, which instructs courts to identify a corporation’s “principal place of business” by first determining the amount of a corporation’s business activity State by State. If the amount of activity is “sig nificantly larger” or “substantially predominates” in one State, then that State is the corporation’s “principal place of business.” If there is no such State, then the “principal place of business” is the corporation’s “ ‘nerve center,’ ” i.e., the place where “ ‘the majority of its executive and admin istrative functions are performed.’ ” Friend v. Hertz, No. C–07–5222 MMC p. 3 (hereinaf ter Order); Tosco Applying this test, the District Court found that the “plurality of each of the relevant business activities” was in California, and that “the differential between the amount of those activities” in California and the amount in “the next closest state” was “significant.” Order 4. Hence, Hertz’s “principal place of business” was Califor nia, and diversity jurisdiction was thus lacking. The District Court consequently remanded the case to the state courts. Hertz appealed the District Court’s remand order. 28 U.S. C. The Ninth Circuit affirmed in a brief memorandum opinion. Hertz filed a petition for certiorari. And, in light of differences among the Circuits in the application of the test for corpo rate citizenship, we granted the writ. Compare Tosco at and Capitol Indemnity v. Russellville Steel (ap plying “total activity” test and looking at “all corporate activities”), with Wisconsin Knife at 4 HERTZ CORP. v. FRIEND Opinion of the Court (applying “nerve center” test). II At the outset, we consider a jurisdictional objection. Respondents point out that the statute permitting Hertz to appeal the District Court’s remand order to the Court of Appeals, 28 U.S. C. constitutes an exception to a more general jurisdictional rule that remand orders are “not reviewable on appeal.” They add that the language of refers only to “court[s] of appeals,” not to the Supreme Court. The statute also says that if “a final judgment on the appeal” in a court of appeals “is not issued before the end” of 60 days (with a possible 10-day extension), “the appeal shall be
|
Justice Breyer
| 2,010 | 2 |
majority
|
Hertz Corp. v. Friend
|
https://www.courtlistener.com/opinion/1735/hertz-corp-v-friend/
|
days (with a possible 10-day extension), “the appeal shall be denied.” And respondents draw from these statutory circumstances the conclusion that Congress intended to permit review of a remand order only by a court of appeals, not by the Supreme Court (at least not if, as here, this Court’s grant of certiorari comes after ’s time period has elapsed). This argument, however, makes far too much of too little. We normally do not read statutory silence as implic itly modifying or limiting Supreme Court jurisdiction that another statute specifically grants. Felker v. Turpin, 518 U.S. 651, 660–661 (1996); Ex parte Yerger, 104–105 (19). Here, another, pre-existing federal stat ute gives this Court jurisdiction to “revie[w] [b]y writ of certiorari” cases that, like this case, are “in the courts of appeals” when we grant the writ. 28 U.S. C. This statutory jurisdictional grant replicates similar grants that yet older statutes provided. See, e.g., 62 Stat. 928; –939 (amending ); ; Evarts Act, This history provides particularly strong reasons not to read ’s silence or ambiguous language as modifying or limiting our pre-existing jurisdiction. We thus interpret ’s “60-day” requirement as Cite as: 559 U. S. (2010) 5 Opinion of the Court simply requiring a court of appeals to reach a decision within a specified time—not to deprive this Court of sub sequent jurisdiction to review the case. See Aetna Casu alty & Surety 466–467 (1947); III We begin our “principal place of business” discussion with a brief review of relevant history. The Constitution provides that the “judicial Power shall extend” to “Contro versies between Citizens of different States.” Art. III, This language, however, does not automatically confer diversity jurisdiction upon the federal courts. Rather, it authorizes Congress to do so and, in doing so, to determine the scope of the federal courts’ jurisdiction within constitu tional limits. 233–234 (1922); Congress first authorized federal courts to exercise diversity jurisdiction in 1789 when, in the First Judiciary Act, Congress granted federal courts authority to hear suits “between a citizen of the State where the suit is brought, and a citizen of another State.” The statute said nothing about corporations. In 1809, Chief Justice Marshall, writing for a unanimous Court, described a corporation as an “invisible, intangible, and artificial being” which was “certainly not a citizen.” Bank of United But the Court held that a corporation could invoke the federal courts’ diversity jurisdiction based on a pleading that the corporation’s shareholders were all citizens of a different State from the defendants, as “the term citizen ought to be understood as it is used in
|
Justice Breyer
| 2,010 | 2 |
majority
|
Hertz Corp. v. Friend
|
https://www.courtlistener.com/opinion/1735/hertz-corp-v-friend/
|
citizen ought to be understood as it is used in the constitution, and as it is used in other laws. That is, to describe the real persons who come into court, in this case, under their corporate name.” at 91–92. In Louisville, C. & C. R. 6 HERTZ CORP. v. FRIEND Opinion of the Court (1844), the Court modified this initial approach. It held that a corporation was to be deemed an artificial person of the State by which it had been created, and its citizenship for jurisdictional purposes determined accordingly. at 558–559. Ten years later, the Court in held that the reason a corporation was a citizen of its State of incorpora tion was that, for the limited purpose of determining corporate citizenship, courts could conclusively (and artifi cially) presume that a corporation’s shareholders were citizens of the State of incorporation. at 327–328. And it reaffirmed –326. Whatever the rationale, the practical upshot was that, for diversity purposes, the federal courts considered a corporation to be a citizen of the State of its incorporation. 13F C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure pp. 1–7 (3d ed. 2009) (hereinafter Wright & Miller). In 1928 this Court made clear that the “state of incorpo ration” rule was virtually absolute. It held that a corpora tion closely identified with State A could proceed in a federal court located in that State as long as the corpora tion had filed its incorporation papers in State B, perhaps a State where the corporation did no business at all. See Black and White Taxicab & Transfer 522–525 (refusing to question corporation’s reincorporation motives and finding diversity jurisdiction). Subsequently, many in Congress and those who testified before it pointed out that this interpretation was at odds with diversity jurisdiction’s basic rationale, namely, opening the federal courts’ doors to those who might otherwise suffer from local prejudice against out-of-state parties. See, e.g., S. Rep. No. 530, 72d Cong., 1st Sess., 2, 4–7 (1932). Through its choice of the State of incorporation, a corporation could manipulate federal-court jurisdiction, for example, opening the federal courts’ doors in a State where it conducted nearly all its Cite as: 559 U. S. (2010) 7 Opinion of the Court business by filing incorporation papers elsewhere. at 4 (“Since the Supreme Court has decided that a corpora tion is a citizen it has become a common practice for corporations to be incorporated in one State while they do business in another. And there is no doubt but that it often occurs simply for the purpose of being able to
|
Justice Breyer
| 2,010 | 2 |
majority
|
Hertz Corp. v. Friend
|
https://www.courtlistener.com/opinion/1735/hertz-corp-v-friend/
|
often occurs simply for the purpose of being able to have the advantage of choosing between two tribunals in case of litigation”). See also Hearings on S. 937 et al. before a Subcommittee of the Senate Committee on the Judiciary, 72d Cong., 1st Sess., 4–5 (1932) (Letter from Sen. George W. Norris to Attorney General William D. Mitchell (May 24, 1930)) (citing a “common practice for individuals to incorporate in a foreign State simply for the purpose of taking litigation which may arise into the Federal courts”). Although various legislative proposals to curtail the corpo rate use of diversity jurisdiction were made, see, e.g., S. 937, S. 939, H. R. 11508, 72d Cong., 1st Sess. (1932), none of these proposals were enacted into law. At the same time as federal dockets increased in size, many judges began to believe those dockets contained too many diversity cases. A committee of the Judicial Confer ence of the United States studied the matter. See Reports of the Proceedings of the Regular Annual Meeting and Special Meeting (Sept. 24–26 & Mar. 19–20, 1951), in H. R. Doc. No. 365, 82d Cong., 2d Sess., pp. 26–27 (1952). And on March 12, 1951, that committee, the Committee on Jurisdiction and Venue, issued a report (hereinafter Mar. Committee Rept.). Among its observations, the committee found a general need “to prevent frauds and abuses” with respect to juris diction. The committee recommended against eliminating diversity cases altogether. Instead it recommended, along with other proposals, a statutory amendment that would make a corporation a citizen both of the State of its incorporation and any State from which it received more than half of its gross income. – 8 HERTZ CORP. v. FRIEND Opinion of the Court 15 (requiring corporation to show that “less than fifty per cent of its gross income was derived from business trans acted within the state where the Federal court is held”). If, for example, a citizen of California sued (under state law in state court) a corporation that received half or more of its gross income from California, that corporation would not be able to remove the case to federal court, even if Delaware was its State of incorporation. During the spring and summer of 1951 committee mem bers circulated their report and attended circuit confer ences at which federal judges discussed the report’s rec ommendations. Reflecting those criticisms, the committee filed a new report in September, in which it revised its corporate citizenship recommendation. It now proposed that “ ‘a corporation shall be deemed a citizen of the state of its original creation
|
Justice Breyer
| 2,010 | 2 |
majority
|
Hertz Corp. v. Friend
|
https://www.courtlistener.com/opinion/1735/hertz-corp-v-friend/
|
deemed a citizen of the state of its original creation [and] shall also be deemed a citizen of a state where it has its principal place of busi ness.’ ” Judicial Conference of the United States, Report of the Committee on Jurisdiction and Venue 4 (Sept. 24, 1951) (hereinafter Sept. Committee Rept.)—the source of the present-day statutory language. See Hearings on H. R. 2516 et al. before Subcommittee No. 3 of the House Committee on the Judiciary, 85th Cong., 1st Sess., 9 (1957) (hereinafter House Hearings). The committee wrote that this new language would provide a “simpler and more practical formula” than the “gross income” test. Sept. Committee Rept. 2. It added that the language “ha[d] a precedent in the jurisdictional provisions of the Bankruptcy Act.” at 2–3. In mid-1957 the committee presented its reports to the House of Representatives Committee on the Judiciary. House Hearings 9–27; see also H. Rep. No. 1706, 85th Cong., 2d Sess., 27–28 (1958) (hereinafter H. R. Rep. 1706) (reprinting Mar. and Sept. Committee Repts.); S. Rep. No. 1830, 85th Cong., 2d Sess., 15–31 (1958) (hereinafter S. Rep. 1830) (same). Judge Albert Maris, representing Cite as: 559 U. S. (2010) 9 Opinion of the Court Judge John Parker (who had chaired the Judicial Confer ence Committee), discussed various proposals that the Judicial Conference had made to restrict the scope of diversity jurisdiction. In respect to the “principal place of business” proposal, he said that the relevant language “ha[d] been defined in the Bankruptcy Act.” House Hear ings 37. He added: “All of those problems have arisen in bankruptcy cases, and as I recall the cases—and I wouldn’t want to be bound by this statement because I haven’t them before me—I think the courts have generally taken the view that where a corporation’s interests are rather widespread, the principal place of business is an actual rather than a theoretical or legal one. It is the actual place where its business operations are co ordinated, directed, and carried out, which would or dinarily be the place where its officers carry on its day-to-day business, where its accounts are kept, where its payments are made, and not necessarily a State in which it may have a plant, if it is a big corpo ration, or something of that sort. “But that has been pretty well worked out in the bankruptcy cases, and that law would all be available, you see, to be applied here without having to go over it again from the beginning.” The House Committee reprinted the Judicial Conference Committee Reports along with other reports and
|
Justice Breyer
| 2,010 | 2 |
majority
|
Hertz Corp. v. Friend
|
https://www.courtlistener.com/opinion/1735/hertz-corp-v-friend/
|
the Judicial Conference Committee Reports along with other reports and relevant testimony and circulated it to the general public “for the purpose of inviting further suggestions and comments.” at III. Subsequently, in 1958, Congress both codified the courts’ traditional place of incorporation test and also enacted into law a slightly modified version of the Confer ence Committee’s proposed “principal place of business” language. A corporation was to “be deemed a citizen of any State by which it has been incorporated and of the 10 HERTZ CORP. v. FRIEND Opinion of the Court State where it has its principal place of business.” 72 Stat. 415. IV The phrase “principal place of business” has proved more difficult to apply than its originators likely expected. Decisions under the Bankruptcy Act did not provide the firm guidance for which Judge Maris had hoped because courts interpreting bankruptcy law did not agree about how to determine a corporation’s “principal place of busi ness.” Compare (CA1 1906) (holding that a corporation’s “principal office, rather than a factory, mill, or mine constitutes the ‘principal place of business’ ”), with Continental Coal v. Roszelle Bros., (identifying the “principal place of business” as the location of mining activities, rather than the “principal office”); see also Friedenthal, New Limitations on Federal Jurisdiction, 11 Stan. L. Rev. 213, 223 (1959) (“The cases under the Bank ruptcy Act provide no rigid legal formula for the determi nation of the principal place of business”). After Congress’ amendment, courts were similarly uncertain as to where to look to determine a corporation’s “principal place of business” for diversity purposes. If a corporation’s headquarters and executive offices were in the same State in which it did most of its business, the test seemed straightforward. The “principal place of business” was located in that State. See, e.g., Long v. Silver, ; Pinnacle Con sultants, Ltd. v. Leucadia Nat. 906– 907 (CA2 1996). But suppose those corporate headquarters, including executive offices, are in one State, while the corporation’s plants or other centers of business activity are located in other States? In 1959 a distinguished federal district judge, Edward Weinfeld, relied on the Second Circuit’s Cite as: 559 U. S. (2010) 11 Opinion of the Court interpretation of the Bankruptcy Act to answer this ques tion in part: “Where a corporation is engaged in far-flung and var ied activities which are carried on in different states, its principal place of business is the nerve center from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all ac tivities without regard to
|
Justice Breyer
| 2,010 | 2 |
majority
|
Hertz Corp. v. Friend
|
https://www.courtlistener.com/opinion/1735/hertz-corp-v-friend/
|
direct, control and coordinate all ac tivities without regard to locale, in the furtherance of the corporate objective. The test applied by our Court of Appeals, is that place where the corporation has an ‘office from which its business was directed and con trolled’—the place where ‘all of its business was under the supreme direction and control of its officers.’ ” Scot Typewriter 170 F. Supp., at 5. Numerous Circuits have since followed this rule, applying the “nerve center” test for corporations with “far-flung” business activities. See, e.g., Topp v. Compair Inc., 814 F.2d 830, 834 (CA1 1987); see also 15 J. Moore et al., Moore’s Federal Practice p. 102–112.1 (3d ed. 2009) (hereinafter Moore’s). Scot’s analysis, however, did not go far enough. For it did not answer what courts should do when the operations of the corporation are not “far-flung” but rather limited to only a few States. When faced with this question, various courts have focused more heavily on where a corporation’s actual business activities are located. See, e.g., Diaz- Rodriguez v. Pep Boys 60–61 (CA1 2005); R. G. Barry v. Mushroom Makers, Inc., 612 F.2d 651, 656–657 (CA2 1979); see also 15 Moore’s at 102–112.1. Perhaps because corporations come in many different forms, involve many different kinds of business activities, and locate offices and plants for different reasons in differ ent ways in different regions, a general “business activi ties” approach has proved unusually difficult to apply. 12 HERTZ CORP. v. FRIEND Opinion of the Court Courts must decide which factors are more important than others: for example, plant location, sales or servicing centers; transactions, payrolls, or revenue generation. See, e.g., R. G. Barry at 656–657 (place of sales and advertisement, office, and full-time employees); at 61–62 (place of stores and in ventory, employees, income, and sales). The number of factors grew as courts explicitly com bined aspects of the “nerve center” and “business activity” tests to look to a corporation’s “total activities,” sometimes to try to determine what treatises have described as the corporation’s “center of gravity.” See, e.g., Gafford v. General Elec. ; Amoco Rocmount v. Anschutz ; 13F Wright & Miller at 100. A major treatise confirms this growing complexity, listing Circuit by Circuit, cases that highlight different factors or empha size similar factors differently, and reporting that the “federal courts of appeals have employed various tests”— tests which “tend to overlap” and which are sometimes described in “language” that “is imprecise.” 15 Moore’s at 102–112. See also § [13], at 102–112 to 102–122 (describing, in 14 pages, major tests as looking to the
|
Justice Breyer
| 2,010 | 2 |
majority
|
Hertz Corp. v. Friend
|
https://www.courtlistener.com/opinion/1735/hertz-corp-v-friend/
|
(describing, in 14 pages, major tests as looking to the “nerve center,” “locus of operations,” or “center of corporate activities”). Not surprisingly, differ ent circuits (and sometimes different courts within a single circuit) have applied these highly general multifac tor tests in different ways. [11]–[13] (noting that the First Circuit “has never explained a basis for choosing between ‘the center of corporate activity’ test and the ‘locus of operations’ test”; the Second Circuit uses a “two-part test” similar to that of the Fifth, Ninth, and Eleventh Circuits involving an initial determination as to whether “a corporation’s activities are centralized or de centralized” followed by an application of either the “place of operations” or “nerve center” test; the Third Circuit Cite as: 559 U. S. (2010) 13 Opinion of the Court applies the “center of corporate activities” test searching for the “headquarters of a corporation’s day-to-day activ ity”; the Fourth Circuit has “endorsed neither [the ‘nerve center’ or ‘place of operations’] test to the exclusion of the other”; the Tenth Circuit directs consideration of the “total activity of the company considered as a whole”). See also 13F Wright & Miller (describing, in 73 pages, the “nerve center,” “corporate activities,” and “total activity” tests as part of an effort to locate the corporation’s “center of gravity,” while specifying different ways in which differ ent circuits apply these or other factors). This complexity may reflect an unmediated judicial effort to apply the statutory phrase “principal place of business” in light of the general purpose of diversity juris diction, i.e., an effort to find the State where a corporation is least likely to suffer out-of-state prejudice when it is sued in a local court, (1856). But, if so, that task seems doomed to failure. After all, the relevant purposive concern—prejudice against an out-of-state party—will often depend upon factors that courts cannot easily measure, for example, a corporation’s image, its history, and its advertising, while the factors that courts can more easily measure, for exam ple, its office or plant location, its sales, its employment, or the nature of the goods or services it supplies, will some times bear no more than a distant relation to the likeli hood of prejudice. At the same time, this approach is at war with administrative simplicity. And it has failed to achieve a nationally uniform interpretation of federal law, an unfortunate consequence in a federal legal system. V A In an effort to find a single, more uniform interpretation of the statutory phrase, we have reviewed the Courts of Appeals’ divergent and increasingly complex interpreta 14 HERTZ CORP.
|
Justice Breyer
| 2,010 | 2 |
majority
|
Hertz Corp. v. Friend
|
https://www.courtlistener.com/opinion/1735/hertz-corp-v-friend/
|
of Appeals’ divergent and increasingly complex interpreta 14 HERTZ CORP. v. FRIEND Opinion of the Court tions. Having done so, we now return to, and expand, Judge Weinfeld’s approach, as applied in the Seventh Circuit. See, e.g., Scot Typewriter 170 F. Supp., at 5; Wisconsin Knife 781 F.2d, at We con clude that “principal place of business” is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corpora tion’s “nerve center.” And in practice it should normally be the place where the corporation maintains its head quarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office where the corpora tion holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion). Three sets of considerations, taken together, convince us that this approach, while imperfect, is superior to other possibilities. First, the statute’s language supports the approach. The statute’s text deems a corporation a citizen of the “State where it has its principal place of business. ” 28 U.S. C. The word “place” is in the singular, not the plural. The word “principal” re quires us to pick out the “main, prominent” or “leading” place. 12 Oxford English Dictionary 495 (2d ed. 1989) (def. (A)(I)(2)). Cf. Commissioner v. Soliman, 506 U.S. 168, 174 (interpreting “principal place of business” for tax purposes to require an assessment of “whether any one business location is the ‘most important, consequen tial, or influential’ one”). And the fact that the word “place” follows the words “State where” means that the “place” is a place within a State. It is not the State itself. A corporation’s “nerve center,” usually its main head quarters, is a single place. The public often (though not always) considers it the corporation’s main place of busi ness. And it is a place within a State. By contrast, the Cite as: 559 U. S. (2010) 15 Opinion of the Court application of a more general business activities test has led some courts, as in the present case, to look, not at a particular place within a State, but incorrectly at the State itself, measuring the total amount of business activi ties that the corporation conducts there and determining whether they are “significantly larger” than in the next ranking State. This approach invites greater litigation and can lead to strange results, as the Ninth Circuit has since recognized. Namely, if a “corporation may be deemed
|
Justice Breyer
| 2,010 | 2 |
majority
|
Hertz Corp. v. Friend
|
https://www.courtlistener.com/opinion/1735/hertz-corp-v-friend/
|
has since recognized. Namely, if a “corporation may be deemed a citizen of California on th[e] basis” of “activities [that] roughly reflect California’s larger population nearly every national retailer—no matter how far flung its operations— will be deemed a citizen of California for diversity pur poses.” 1029–1030 (2009). But why award or decline diversity jurisdiction on the basis of a State’s population, whether measured directly, indirectly (say proportionately), or with modifications? Second, administrative simplicity is a major virtue in a jurisdictional statute. (1990) (SCALIA, J., concurring in judgment) (eschewing “the sort of vague boundary that is to be avoided in the area of subject-matter jurisdiction wherever possible”). Complex jurisdictional tests complicate a case, eating up time and money as the parties litigate, not the merits of their claims, but which court is the right court to decide those claims. Cf. Navarro Savings Assn. v. Lee, 446 U.S. 458, 464, n. 13 (1980). Complex tests produce appeals and reversals, encourage gamesmanship, and, again, diminish the likelihood that results and settlements will reflect a claim’s legal and factual merits. Judicial resources too are at stake. Courts have an independent obligation to de termine whether subject-matter jurisdiction exists, even when no party challenges it. v. Y & H 546 U.S. 500, 514 (2006) ). So courts benefit from straightforward rules under which they can readily assure themselves of their power to hear a case. at 514. Simple jurisdictional rules also promote greater predict ability. Predictability is valuable to corporations making business and investment decisions. Cf. First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 621 (1983) (recognizing the “need for certainty and predictability of result while generally protecting the justified expectations of parties with interests in the cor poration”). Predictability also benefits plaintiffs deciding whether to file suit in a state or federal court. A “nerve center” approach, which ordinarily equates that “center” with a corporation’s headquarters, is simple to apply comparatively speaking. The metaphor of a cor porate “brain,” while not precise, suggests a single loca tion. By contrast, a corporation’s general business activi ties more often lack a single principal place where they take place. That is to say, the corporation may have sev eral plants, many sales locations, and employees located in many different places. If so, it will not be as easy to de termine which of these different business locales is the “principal” or most important “place.” Third, the statute’s legislative history, for those who accept it, offers a simplicity-related interpretive bench mark. The Judicial Conference provided an initial version of its
|
Justice Breyer
| 2,010 | 2 |
majority
|
Hertz Corp. v. Friend
|
https://www.courtlistener.com/opinion/1735/hertz-corp-v-friend/
|
mark. The Judicial Conference provided an initial version of its proposal that suggested a numerical test. A corpora tion would be deemed a citizen of the State that accounted for more than half of its gross income. Mar. Committee Rept. 14–15; see The Conference changed its mind in light of criticism that such a test would prove too complex and impractical to apply. Sept. Committee Rept. 2; see also H. Rep. 1706, ; S. Rep. 1830, at 31. That history suggests that the words “principal place of busi ness” should be interpreted to be no more complex than Cite as: 559 U. S. (2010) 17 Opinion of the Court the initial “half of gross income” test. A “nerve center” test offers such a possibility. A general business activities test does not. B We recognize that there may be no perfect test that satisfies all administrative and purposive criteria. We recognize as well that, under the “nerve center” test we adopt today, there will be hard cases. For example, in this era of telecommuting, some corporations may divide their command and coordinating functions among officers who work at several different locations, perhaps communicat ing over the Internet. That said, our test nonetheless points courts in a single direction, towards the center of overall direction, control, and coordination. Courts do not have to try to weigh corporate functions, assets, or reve nues different in kind, one from the other. Our approach provides a sensible test that is relatively easier to apply, not a test that will, in all instances, automatically gener ate a result. We also recognize that the use of a “nerve center” test may in some cases produce results that seem to cut against the basic rationale for 28 U.S. C. see su pra, at 6. For example, if the bulk of a company’s business activities visible to the public take place in New Jersey, while its top officers direct those activities just across the river in New York, the “principal place of business” is New York. One could argue that members of the public in New Jersey would be less likely to be prejudiced against the corporation than persons in New York—yet the corpora tion will still be entitled to remove a New Jersey state case to federal court. And note too that the same corporation would be unable to remove a New York state case to fed eral court, despite the New York public’s presumed preju dice against the corporation. We understand that such seeming anomalies will arise. 18 HERTZ CORP. v. FRIEND Opinion of the Court However,
|
Justice Breyer
| 2,010 | 2 |
majority
|
Hertz Corp. v. Friend
|
https://www.courtlistener.com/opinion/1735/hertz-corp-v-friend/
|
18 HERTZ CORP. v. FRIEND Opinion of the Court However, in view of the necessity of having a clearer rule, we must accept them. Accepting occasionally counterin tuitive results is the price the legal system must pay to avoid overly complex jurisdictional administration while producing the benefits that accompany a more uniform legal system. The burden of persuasion for establishing diversity jurisdiction, of course, remains on the party asserting it. Kokkonen v. Guardian Life Ins. of America, 511 U.S. 377 (1994); v. General Motors Acceptance ; see also 13E Wright & Miller at 119. When challenged on allegations of jurisdictional facts, the parties must support their allega tions by competent proof. at ; 15 Moore’s at 102–32 to 102–32.1. And when faced with such a challenge, we reject suggestions such as, for example, the one made by petitioner that the mere filing of a form like the Securities and Exchange Commis sion’s Form 10–K listing a corporation’s “principal execu tive offices” would, without more, be sufficient proof to establish a corporation’s “nerve center.” See, e.g., SEC Form 10–K, online at http://www.sec.gov/about/forms/ form10-k.pdf. (as visited Feb. 19, 2010, and available in Clerk of Court’s case file). Cf. Dimmitt & Owens Finan cial, 787 F.2d 11, 1190–1192 (distinguishing “principal executive office” in the tax lien context, see 26 U.S. C. from “principal place of business” under 28 U.S. C. Such possi bilities would readily permit jurisdictional manipulation, thereby subverting a major reason for the insertion of the “principal place of business” language in the diversity statute. Indeed, if the record reveals attempts at manipu lation—for example, that the alleged “nerve center” is nothing more than a mail drop box, a bare office with a computer, or the location of an annual executive retreat— the courts should instead take as the “nerve center” the Cite as: 559 U. S. (2010) 19 Opinion of the Court place of actual direction, control, and coordination, in the absence of such manipulation. VI Petitioner’s unchallenged declaration suggests that Hertz’s center of direction, control, and coordination, its “nerve center,” and its corporate headquarters are one and the same, and they are located in New Jersey, not in California. Because respondents should have a fair op- portunity to litigate their case in light of our holding, however, we vacate the Ninth Circuit’s judgment and remand the case for further proceedings consistent with this opinion. It is so ordered
|
Justice Sotomayor
| 2,011 | 24 |
concurring
|
Williamson v. Mazda Motor of America, Inc.
|
https://www.courtlistener.com/opinion/205315/williamson-v-mazda-motor-of-america-inc/
|
As the Court notes, this is not the first case in which the Court has encountered the express pre-emption provision and saving clause of the National Traffic and Motor Vehi cle Safety Act of 1966, 15 U.S. C. et seq. (1988 ed.) (recodified without substantive change at 49 U.S. C. et seq. (2006 ed. and Supp. III)). In the Court concluded that the “saving clause (like the express pre-emption provision) does not bar the ordinary working of conflict pre-emption principles,” and therefore engaged in an implied pre-emption analysis. The majority and dissent in agreed that “a court should not find pre-emption too readily in the absence of clear evidence of a conflict.” I agree with the majority’s resolution of this case and with its reasoning. I write separately only to emphasize the Court’s rejection of an overreading of that has developed since that opinion was issued. does not stand, as the California Court of Appeal, 918–919, 555– 556 (2008), other courts, and some of respondents’ amici seem to believe, for the proposition that any time an agency gives manufacturers a choice between two or more options, a tort suit that imposes liability on the basis of 2 WILLIAMSON v. MAZDA MOTOR OF AMERICA, INC. SOTOMAYOR, J., concurring one of the options is an obstacle to the achievement of a federal regulatory objective and may be pre-empted.* Rather, turned on the fact that the agency, via Fed eral Motor Vehicle Safety Standard 208, “deliberately sought variety—a mix of several different passive re straint systems.” ; ante, at 7. As the United States notes, “a conflict results only when the Safety Act (or regulations implementing the Safety Act) does not just set out options for compliance, but also pro vides that the regulated parties must remain free to choose among those options.” Brief for United States as Amicus Curiae 8. In other words, the mere fact that an agency regulation allows manufacturers a choice between options is insufficient to justify implied pre-emption; courts should only find pre-emption where evidence exists that an agency has a regulatory objective—e.g., obtaining a mix of passive restraint mechanisms, as in —whose achievement depends on manufacturers having a choice between options. A link between a regulatory objective and the need for manufacturer choice to achieve that objective is the lynchpin of implied pre-emption when there is a saving clause. Absent strong indications from the agency that it needs manufacturers to have options in order to achieve a “sig nificant regulatory objective,” ante, at 5, state tort suits are not “obstacle[s] to the accomplishment of the full purposes
|
Justice Sotomayor
| 2,011 | 24 |
concurring
|
Williamson v. Mazda Motor of America, Inc.
|
https://www.courtlistener.com/opinion/205315/williamson-v-mazda-motor-of-america-inc/
|
are not “obstacle[s] to the accomplishment of the full purposes and objectives” of federal law, v. Davidowitz, As the majority explains, the agency here gave no indication that its safety goals required the mixture of seatbelt types that resulted from manufacturers’ ability to choose different options. —————— *See, e.g., 230–232 (CA5 2007); ; Cite as: 562 U. S. (2011) 3 SOTOMAYOR, J., concurring Ante, at 8–12 (distinguishing the regulatory record in this case from that in ). Especially in light of the “statutory saving clause that foresees the likelihood of a continued meaningful role for state tort law,” ante, at 11, respondents have not carried their burden of establishing that the agency here “deliber ately sought variety” to achieve greater safety, 529 U.S., at 878. Therefore, the Williamsons’ tort suit does not present an obstacle to any “significant federal regula tory objective,” ante, at 5, and may not be pre-empted. For these reasons, I concur. Cite as: 562 U. S. (2011) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 08–1314 DELBERT WILLIAMSON, ET AL., PETITIONERS v. MAZDA MOTOR OF AMERICA, INC., ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF CALI- FORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE [February 23, 2011] JUSTICE THOMAS, concurring in the judgment. The Court concludes that the National Traffic and Mo tor Vehicle Safety Act of 1966 (Safety Act) and Federal Motor Vehicle Safety Standard 208 (FMVSS 208) do not pre-empt the Williamsons’ state tort lawsuit. I agree. But I reach this result by a more direct route: the Safety Act’s saving clause, which speaks directly to this question and answers it. See 49 U.S. C. I The plain text of the Safety Act resolves this case. Congress has instructed that “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” This saving clause “explicitly preserv[es] state common law actions.” v. Levine, 555 U. S. (2009) (THOMAS, J., concurring in judgment) (slip op., at 18). Here, Mazda complied with FMVSS 208 when it chose to install a simple lap belt. According to Mazda, the Wil liamsons’ lawsuit alleging that it should have installed a lap-and-shoulder seatbelt instead is pre-empted. That argument is foreclosed by the saving clause; the William sons’ state tort action is not pre-empted. The majority does not rely on the Safety Act’s saving clause because this Court effectively read it out of the 2 WILLIAMSON v. MAZDA MOTOR OF AMERICA, INC. THOMAS, J., concurring in judgment statute in 529 U.S. 861 In the Court
|
Justice Sotomayor
| 2,011 | 24 |
concurring
|
Williamson v. Mazda Motor of America, Inc.
|
https://www.courtlistener.com/opinion/205315/williamson-v-mazda-motor-of-america-inc/
|
in judgment statute in 529 U.S. 861 In the Court interpreted the saving clause as simply cancelling out the statute’s express pre emption clause with respect to common-law tort actions. This left the Court free to consider the effect of conflict pre-emption principles on such tort actions. See at 869. But it makes no sense to read the express pre-emption clause in conjunction with the saving clause. See at 898 The express pre-emption clause bars States from having any safety “standard appli cable to the same aspect of performance” as a federal standard unless it is “identical” to the federal one. That clause pre-empts States from establish ing “objective rule[s] prescribed by a legislature or an administrative agency” in competition with the federal standards; it says nothing about the tort lawsuits that are the focus of the saving clause.* Read inde pendently of the express pre-emption clause, the saving clause simply means what it says: FMVSS 208 does not pre-empt state common-law actions. II As in rather than following the plain text of the statute, the majority’s analysis turns on whether the tort lawsuit here “ ‘stands as an obstacle to the accomplish ment and execution of the full purposes and objectives’ ” of FMVSS 208. Ante, at 5 ). I have rejected purposes-and objectives pre-emption as inconsistent with the Constitu —————— * See also (addressing a similar express pre-emption clause and saving clause in the Federal Boat Safety Act, and holding that it is “perfectly rational” for Congress to bar state “administrative and legislative regulations” while allowing “private damages remedies” to compensate accident victims). Cite as: 562 U. S. (2011) 3 THOMAS, J., concurring in judgment tion because it turns entirely on extratextual “judicial suppositions.” at (slip op., at 22); see also Haywood v. Drown, 556 U. S. (2009) (dissent ing opinion) (slip op., at 26–27). Pre-emption occurs “by direct operation of the Suprem acy Clause,” (1984), which “requires that pre-emptive effect be given only to those federal standards and policies that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bi cameral and presentment procedures.” 555 U. S., at (slip op., at 5) (opinion of THOMAS, J.). In short, pre-emption must turn on the text of a federal statute or the regulations it authorizes. See at (slip op., at 6); see also Purposes-and-objectives pre-emption—which by design roams beyond statutory or regulatory text—is thus wholly illegitimate. It instructs courts to pre-empt state laws based on judges’ “conceptions of a policy which Congress has not expressed and which is not plainly
|
Justice Sotomayor
| 2,011 | 24 |
concurring
|
Williamson v. Mazda Motor of America, Inc.
|
https://www.courtlistener.com/opinion/205315/williamson-v-mazda-motor-of-america-inc/
|
which Congress has not expressed and which is not plainly to be inferred from the legislation which it has enacted.” at 75 (Stone, J., dissenting); (opinion of Stevens, J.) (expressing concern about judges “running amok with our potentially boundless (and perhaps inade quately considered) [purposes-and-objectives pre-emption doctrine]”); see also at (slip op., at 13– 21) (opinion of THOMAS, J.) (recounting the history of the doctrine). The majority’s purposes-and-objectives pre-emption analysis displays the inherent constitutional problem with the doctrine. The Court begins with FMVSS 208, which allowed manufacturers to install either simple lap or lap and-shoulder seatbelts in the rear aisle seat of 1993 mini vans. The majority then turns to what it considers the primary issue: whether “that choice [was] a significant regulatory objective.” Ante, at 8 (emphasis added). Put 4 WILLIAMSON v. MAZDA MOTOR OF AMERICA, INC. THOMAS, J., concurring in judgment more plainly, the question is whether the regulators really wanted manufacturers to have a choice or did not really want them to have a choice but gave them one anyway. To answer that question, the majority engages in a “freewheeling, extratextual, and broad evaluatio[n] of the ‘purposes and objectives’ ” of FMVSS 208. at (slip op., at 23) (opinion of THOMAS, J.). The Court wades into a sea of agency musings and Government litigating positions and fishes for what the agency may have been thinking 20 years ago when it drafted the rele vant provision. After scrutinizing the 1989 Federal Regis ter, a letter written in 1994, and the Solicitor General’s present-day assurances, the Court finds that Department of Transportation liked the idea of lap-and-shoulder seat belts in all seats, but did not require them, primarily for cost-efficiency reasons and also because of some concern for ingress-egress around the belt mounts. Ante, at 8–11. From all of this, the majority determines that although the regulators specifically and intentionally gave manu facturers a choice between types of seatbelts, that choice was not a “significant regulatory objective” and so does not pre-empt state tort lawsuits. That the Court in reached an opposite conclusion reveals the utterly unconstrained nature of purposes-and objectives pre-emption. There is certainly “considerable similarity between this case and” Ante, at 2. Just as in this case, involved a choice offered to car manufacturers in FMVSS 208: whether to install airbags. Ante, at 8. And just as in this case, the Court in relied on “history, the agency’s contemporaneous explana tion, and the Government’s current understanding” to determine the significance of that choice. Ante, at 7–8. Yet the Court concluded that “giving auto manufac turers a choice
|
Justice Sotomayor
| 2,011 | 24 |
concurring
|
Williamson v. Mazda Motor of America, Inc.
|
https://www.courtlistener.com/opinion/205315/williamson-v-mazda-motor-of-america-inc/
|
the Court concluded that “giving auto manufac turers a choice among different kinds of passive restraint devices was a significant objective of the federal regula tion,” ante, at 6, and thus found the s’ lawsuit pre Cite as: 562 U. S. (2011) 5 THOMAS, J., concurring in judgment empted. The dispositive difference between this case and — indeed, the only difference—is the majority’s “psycho analysis” of the regulators. United (Jackson, J., concurring) (describing reliance on legislative history). The majority cites no difference on the face of FMVSS 208 between the airbag choice addressed in and the seatbelt choice at issue in this case. According to the majority, to determine whether FMVSS 208 pre-empts a tort suit, courts apparently must embark on the same expedition undertaken here: sifting through the Federal Register, examining agency ruminations, and asking the Government what it currently thinks. Pre emption is then proper if the court decides that the regula tors thought the choice especially important, but not if the choice was only somewhat important. This quest roves far from the Safety Act and analyzes pre-emption based on a formless inquiry into how strongly an agency felt about the regulation it enacted 20 years ago. “[F]reeranging speculation about what the purposes of the [regulation] must have been” is not constitutionally proper in any case. at (slip op., at 15) (opinion of THOMAS, J.). The Supremacy Clause com mands that the “[l]aws of the United States,” not the unenacted hopes and dreams of the Department of Trans portation, “shall be the supreme Law of the Land.” U. S. Const., Art. VI, cl. 2. The impropriety is even more obvi ous here because the plain text of the Safety Act resolves this case. For these reasons, I concur in the judgment
|
Justice Scalia
| 1,990 | 9 |
concurring
|
Butterworth v. Smith
|
https://www.courtlistener.com/opinion/112396/butterworth-v-smith/
|
The Court holds that the Florida statute is unconstitutional "insofar as [it] prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended." Ante, at 626. I join the Court's opinion because I interpret that to refer to the information contained within the witness' testimony, but not necessarily to the fact that the witness conveyed that information to the grand jury. I take that to be the meaning of the Court's later clarification that we affirm "respondent's First Amendment right to make a truthful statement of information he acquired on his own." Ante this page. I think there is considerable doubt whether a witness can be prohibited, even while the grand jury is sitting, from making public what he knew before he entered the grand jury room. Quite a different question is presented, however, by a witness' disclosure of the grand jury proceedings, which is knowledge he acquires not "on his own" but only by virtue of being made a witness. And it discloses those proceedings for the witness to make public, not what he knew, but what it was he told the grand jury he knew. There may be quite good reasons why the State would want the latter information which is in a way information of the State's own creation to remain confidential even after the term of the grand jury has expired. It helps to assure, for one thing, that grand jurors will not be intimidated in the execution of their duties by the fear of unjustified public criticism to which they cannot respond. To allow them to respond, on the *637 other hand by denying that the witness in fact said what he claims to have said, or by pointing out the contradictory testimony of other witnesses would have its own adverse effects, including the subjection of grand jurors to a degree of press attention and public prominence that might in the long run deter citizens from fearless performance of their grand jury service. I do not say that these state interests are necessarily sufficient, but only that they are not presented by the narrow question we decide today.
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
In these cases, we decide whether the District Court properly enjoined a Mississippi state court's proposed congressional redistricting plan and whether it properly fashioned its own congressional reapportionment plan rather than order at-large elections. I The 2000 census caused Mississippi to lose one congressional seat, reducing its representation in the House of Representatives from five Members to four. The state legislature, however, failed to pass a new redistricting plan after the decennial census results were published in 2001. In anticipation of the March 1, state-law deadline for the qualification of candidates, see (Lexis 2001), appellant and cross-appellee Beatrice Branch and others (state plaintiffs) filed suit in a Mississippi State Chancery Court in October 2001, asking the state court to issue a redistricting plan for the congressional elections. In November 2001, appellee and cross-appellant John Smith and others (federal plaintiffs) filed a similar action under Rev. Stat. 1979, 42 U.S. C. 1983, in the United District Court for the Southern District of Mississippi, claiming that the current districting plan, Miss. Code Ann. 23-15-1037 *259 (Lexis 2001), dividing the State into five, rather than four, congressional districts, was unconstitutional and unenforceable. The federal plaintiffs asked the District Court to enjoin the current redistricting plan, and subsequently asked it to enjoin any plan developed by a state court (which they asserted would violate Article I, 4, of the Constitution, and, in any event, could not be enforced until the state court's assertion of redistricting authority was precleared under 5 of the Voting Rights Act of 42 U.S. C. 1973c), and asked that it order at-large elections pursuant to Miss. Code Ann. 23-15-1039 (2001) and 2 U.S. C. 2a(c)(5), or, alternatively, devise its own redistricting plan. A three-judge District Court was convened pursuant to 28 U.S. C. 2284. Initially the District Court did not interfere with the State Chancery Court's efforts to develop a redistricting plan. In an order filed on December 5, 2001, (SD Miss.), the District Court permitted the state plaintiffs to intervene and deferred ruling on the federal plaintiffs' motion for a preliminary injunction. In staying its hand, the District Court recognized that "`the Constitution leaves with the primary responsibility for apportionment of their federal congressional districts,'" ), but concluded that "if it is not clear to this court by January 7, that the State authorities can have a redistricting plan in place by March 1, we will assert our jurisdiction and if necessary, we will draft and implement a plan for reapportioning the state congressional districts," 189 F. Supp. 2d, ; see also On the eve of the State Chancery
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
; see also On the eve of the State Chancery Court trial, the Mississippi Supreme Court denied petitions for writs of prohibition and mandamus filed by a state defendant and others challenging the Chancery Court's jurisdiction to engage in congressional redistricting. It held that the Chancery Court *260 had jurisdiction to issue a redistricting plan. In re Mauldin, Civ. No. 2001-M-01891 (Dec. 13, 2001), App. to Juris. Statement 110a. Following trial, on December 21, 2001, the State Chancery Court adopted a redistricting plan submitted by the state plaintiffs. On December 26, the state attorney general submitted that plan, along with the Mississippi Supreme Court's Mauldin decision (which arguably changed the process for drawing congressional districts by authorizing the Chancery Court to create a redistricting plan), to the Department of Justice (DOJ) for preclearance. On February 14, DOJ sent a letter to the state attorney general requesting additional information about the Mauldin decision, because "the information sent to date regarding this change in voting procedure is insufficient." App. to Juris. Statement a. The letter advised that the "sixty-day review period will begin when we receive the information specified." at 196a. The state attorney general provided additional information on February 19 and 20, Meanwhile, in January the District Court, expressing "serious doubts whether the Mississippi Supreme Court's Order and the plan adopted by the Chancery Court pursuant to that order will be precleared prior to the March 1 candidate qualification deadline," had begun to develop its own redistricting plan, On February 4, it promulgated a redistricting plan to be used absent the timely preclearance of the Chancery Court plan. (SD Miss.). On February 19, it ordered that, if the Chancery Court redistricting plan was not "precleared before the close of business on Monday, February 25," then the District Court's plan would fix the Mississippi congressional districts for the elections. February 25th came and went with no action by DOJ. On February 26, the District Court enjoined the State from using the Chancery Court plan and ordered use of the District Court's own plan in the elections and all succeeding elections until the State produced *261 a constitutional redistricting plan that was precleared. 189 F. Supp. 2d The court said that the basis for its injunction and order was "reflected in our opinion of February 19, that is, the failure of the timely preclearance under 5 of the Voting Rights Act of the Hinds County Chancery Court's plan." However, "in the event that on appeal it is determined that we erred in our February 19 ruling," the court put forth as its "alternative
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
February 19 ruling," the court put forth as its "alternative holding" that Article I, 4, of the United Constitution prohibited the State Chancery Court from issuing a redistricting plan without express authorization from the state legislature. The State did not file a notice of appeal. On April 1, DOJ informed the State in a letter that "it would be inappropriate for the Attorney General to make a determination concerning [the State's preclearance] submission now" because the District Court's injunction rendered the state-court plan incapable of administration. App. 29. The state plaintiffs intervenors in the District Court filed a timely notice of appeal from the District Court and a jurisdictional statement. The federal plaintiffs filed a jurisdictional statement on conditional cross-appeal. We noted probable jurisdiction in both appeals and consolidated them. II At the outset we should observe two critical distinctions between these cases and the one that was before us in In the Federal District Court had refused to abstain or defer to state-court redistricting proceedings. In reversing, we reminded the federal courts of "`what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.'" at ). We held that "[a]bsent evidence that these state branches will fail timely to perform *262 that duty, a federal court must neither affirmatively obstruct state reapportionment nor permit federal litigation to be used to impede it." 507 U.S., at In the present cases, unlike in there is no suggestion that the District Court failed to allow the state court adequate opportunity to develop a redistricting plan. The second distinction is that the state-court plan here, unlike that in was subject to 5 of the Voting Rights Act, 42 U.S. C. 1973c. The District Court rested its injunction of the state-court plan on the ground that necessary preclearance had not been obtained. It is that challenged premise that we examine first. Section 5 of the Voting Rights Act provides that whenever a covered jurisdiction, such as Mississippi, see "shall enact or seek to administer" a change in "any voting qualification or prerequisite to voting, or standard, practice, or procedure," the State must obtain preclearance from the District Court for the District of Columbia or the Attorney General before the change may be enforced. 42 U.S. C. 1973c. The Act requires preclearance of all voting changes, ; see Dougherty County Bd. of and there is no dispute that this includes voting changes mandated by order of a state court, see, e. g., In re McMillin,
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
of a state court, see, e. g., In re McMillin, Rather, the controversy pertains to the proviso in 1973c to the effect that, where the preclearance submission is made to the Attorney General, the voting change may be enforced if "the Attorney General has not interposed an objection within sixty days after such submission." Appellants in No. 01-1437 (originally the state plaintiffs) assert that the District Court erred in believing that the Chancery Court's plan lacked preclearance. It was automatically rendered enforceable, they contend, by DOJ's failure to object within the 60-day period running from the state attorney general's initial submission on December 26, 2001 or, in the alternative, it was subsequently rendered enforceable *263 by DOJ's failure to object within the 60-day period running from the state attorney general's submission of additional information on February 20, We consider each of these contentions in turn. A Under 5, a jurisdiction seeking administrative preclearance must prove that the change is nondiscriminatory in purpose and effect. It bears the burden of providing the Attorney General information sufficient to make that proof, and failure to do so will cause the Attorney General to object, see ; 28 CFR 51.52(c) In DOJ's view, however, incomplete state submissions do not start the 60-day clock for review. See 51., 51.37. The regulations implementing 5 authorize a DOJ request for additional information from a jurisdiction that has initially "omitted information considered necessary for the evaluation of the submission." 51.37(a). If the jurisdiction responds by supplying the additional information (or stating that it is unavailable), the 60-day clock begins to run from the date the response is received. 51.37(c). We have upheld these regulations as being "wholly reasonable and consistent with the Act." ; accord, DOJ's February 14 request for additional information was within the Attorney General's discretion under 28 CFR 51.37, thereby postponing the 60-day time period for objections until the requested information was received. The request was neither frivolous nor unwarranted. See n. 13. DOJ believed that the Mississippi Supreme Court's Mauldin order, holding that the Chancery Court had jurisdiction to engage in redistricting, was a change in voting procedures, and it sought additional information demonstrating that this change would not have *264 the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group, as required under 5. The fact that the District Court identified the same issue as posing a hurdle to preclearance further suggests that DOJ's request was not -509. The request for more information was not frivolous or unwarranted
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
The request for more information was not frivolous or unwarranted at the time it was made, regardless of whether it ultimately develops that Mauldin and the Chancery Court's assertion of jurisdiction to redistrict are not voting changes that required preclearance. B Appellants contend that even if the State Chancery Court's plan was not precleared by operation of law on February 25, it was precleared on April 22, 60 days after the state attorney general submitted the additional information requested. We think not. Section 5 provides that "[w]henever a [covered jurisdiction] shall enact or seek to administer" a voting change, such a change may be enforced if it is submitted to the Attorney General and there is no objection by the Attorney General within 60 days. 42 U.S. C. 1973c Clearly the State Chancery Court's redistricting plan was not "enacted" by the State of Mississippi. An "enactment" is the product of legislation, not adjudication. See Webster's New International Dictionary 841 (2d ed. 1949) (defining "enact" as "[t]o make into an act or law; esp., to perform the legislative act with reference to (a bill) which gives it the validity of law"); Black's Law Dictionary 910 (7th ed. 1999) (defining "legislate" as "[t]o make or enact laws"). The web of state and federal litigation before us is the consequence of the Mississippi Legislature's failure to enact a plan. The Chancery Court's redistricting plan, then, could be eligible for preclearance only if the State was "seek[ing] to administer" it. *265 There is no doubt that the State was "seek[ing] to administer" the changes for which preclearance was sought when the Mississippi attorney general made his initial submission to DOJ on December 26, 2001, and when he provided additional information regarding the state-court plan on February 20, On February 26, however, the District Court "enjoined [the State] from implementing the congressional redistricting plan adopted by the [state court]," 189 F. Supp. 2d, at and the State never appealed that injunction. Uncontrovertibly, the State was no longer "seek[ing] to administer" the state-court plan, and thus the 60-day time period for DOJ review was no longer running. The passing of 60 days from the date of the State's February 20, submission of the additional requested information had no legal significance, and the state-court plan was not rendered enforceable by operation of law. Appellants' argument that their appeal, as intervenors, is sufficient to demonstrate that the State still "seek[s] to administer" the state-court plan is invalid on its face. The actions of a private party are not the actions of a State and cannot satisfy
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
are not the actions of a State and cannot satisfy the prerequisite to 5 preclearance. C Since we affirm the injunction on the basis of the District Court's principal stated ground that the state-court plan had not been precleared and had no prospect of being precleared in time for the election, we have no occasion to address the District Court's alternative holding that the State Chancery Court's redistricting plan was unconstitutional a holding that the District Court specified was set forth to cover the eventuality of the principal stated ground's being rejected on appeal and therefore we vacate it as a basis for the injunction. The District Court's alternative holding is not to be regarded as supporting the injunction we have affirmed on the principal ground, or as binding upon state and *2 federal officials should Mississippi seek in the future to administer a redistricting plan adopted by the Chancery Court. III Having determined that the District Court properly enjoined enforcement of the state-court redistricting plan, we turn to the propriety of the redistricting plan that the District Court itself adopted. Cross-appellees in No. 01-1596 (originally the state plaintiffs) and the United as amicus curiae, argue that the District Court was required to draw (as it did) single-member congressional districts; cross-appellants in No. 01-1596 (originally the federal plaintiffs) contend that it was required to order at-large elections for the congressional seats. We must decide whether, as cross-appellees contend, the District Court was governed by the provisions of 2 U.S. C. 2c; or, as cross-appellants contend, by the provisions of 2 U.S. C. 2a(c)(5). A Article I, 4, cl. 1, of the Constitution provides that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." It reserves to Congress, however, the power "at any time by Law [to] make or alter such Regulations, except as to the Places of chusing Senators." Pursuant to this authority, Congress in 1929 enacted the current statutory scheme governing apportionment of the House of Representatives. 2 U.S. C. 2a(a), (b). In 1941, Congress added to those provisions a subsection addressing what is to be done pending redistricting: "Until a State is redistricted in the manner provided by the law thereof after any apportionment, the Representatives to which such State is entitled under such apportionment shall be elected in the following manner: (1) If there is no change in the number of Representatives, they shall be elected from the districts then *267 prescribed by the law of such State, and if any of
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
by the law of such State, and if any of them are elected from the State at large they shall continue to be so elected; (2) if there is an increase in the number of Representatives, such additional Representative or Representatives shall be elected from the State at large and the other Representatives from the districts then prescribed by the law of such State; (3) if there is a decrease in the number of Representatives but the number of districts in such State is equal to such decreased number of Representatives, they shall be elected from the districts then prescribed by the law of such State; (4) if there is a decrease in the number of Representatives but the number of districts in such State is less than such number of Representatives, the number of Representatives by which such number of districts is exceeded shall be elected from the State at large and the other Representatives from the districts then prescribed by the law of such State; or (5) if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large." 2a(c). In 26 years after 2a(c) was enacted, Congress adopted 2c, which provides, as relevant here: "In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative." The tension between these two provisions is apparent: Section 2c requires entitled to more than one Representative *268 to elect their Representatives from single-member districts, rather than from multimember districts or the State at large. Section 2a(c), however, requires multimember districts or at-large elections in certain situations; and with particular relevance to the present cases, in which Mississippi, by reason of the 2000 census, lost a congressional seat, 2a(c)(5) requires at-large elections. Cross-appellants would reconcile the two provisions by interpreting the introductory phrase of 2a(c) ("Until a State is redistricted in the manner provided by the law thereof after any apportionment") and the phrase "established by law" in 2c to refer exclusively to legislative redistricting so that 2c tells the legislatures what to do (single-member districting) and 2a(c) provides what will happen absent legislative action in
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
2a(c) provides what will happen absent legislative action in the present cases, the mandating of at-large elections. The problem with this reconciliation of the provisions is that the limited role it assigns to 2c (governing legislative apportionment but not judicial apportionment) is contradicted both by the historical context of 2c's enactment and by the consistent understanding of all courts in the almost 40 years since that enactment. When Congress adopted 2c in the immediate issue was precisely the involvement of the courts in fashioning electoral plans. The Voting Rights Act of had recently been enacted, assigning to the federal courts jurisdiction to involve themselves in elections. See (as amended and codified at 42 U.S. C. 1973 et seq.). Even more significant, our decisions in and had ushered in a new era in which federal courts were overseeing efforts by badly malapportioned to conform their congressional electoral districts to the constitutionally required one-person, one-vote standards. In a world in which the role of federal courts in redistricting disputes had been transformed from spectating, see U.S. 549 to directing, *269 the risk arose that judges forced to fashion remedies would simply order at-large elections. At the time Congress enacted 2c, at least six District Courts, two of them specifically invoking 2 U.S. C. 2a(c)(5), had suggested that if the state legislature was unable to redistrict to correct malapportioned congressional districts, they would order the State's entire congressional delegation to be elected at large. On March 26, a three-judge District Court ordered that, pending enactment of a constitutional redistricting plan by the Michigan Legislature, all Michigan Representatives would be elected at large. On October 19, a three-judge District Court entered a similar order for the State of Texas. See On February 3, a three-judge District Court in Arkansas, whose House delegation had decreased from six to four Members after the 1960 census, stated that under 2a(c)(5), "if the Legislature had taken no action [after the 1960 apportionment] the congressmen would have been required to run at large," and that the same reasoning would compel the court to require at-large elections if the legislature adopted malapportioned congressional districts. On August 5, a three-judge District Court in Missouri, whose House delegation had decreased from 11 to 10 Members after the 1960 census, informed the State that if it was unable to redistrict in accordance with the Constitution, then pursuant to the "command of Section 2(a)(c) [sic]," "the congressional elections for Missouri will be ordered conducted at large until new and constitutional districts are created." aff'd, In 229 F. Supp. 1, 3-4 and three-judge District
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
aff'd, In 229 F. Supp. 1, 3-4 and three-judge District Courts stayed their hands but *0 held forth the possibility of requiring at-large elections. With all this threat of judicially imposed at-large elections, and (as far as we are aware) no threat of a legislatively imposed change to at-large elections, it is most unlikely that 2c was directed solely at legislative reapportionment. Nor have the courts ever thought so. To the contrary, every court that has addressed the issue has held that 2c requires courts, when they are remedying a failure to redistrict constitutionally, to draw single-member districts whenever possible. The first court to examine 2c, just two weeks after the statute was enacted, was the three-judge District Court in Missouri that had previously threatened to order at-large elections in accordance with 2a(c)(5). In its decision on December 29, that court observed that the enactment of 2c had "relieved [it] of the prior existing Congressional command to order that the 1968 and succeeding congressional elections in Missouri be held at large," 9 F. Supp. 952, aff'd, (1), and accordingly reversed its prior position and stated that it would fashion a districting plan if the State failed to fulfill its duty. Four years later, the Supreme Court of Virginia denied a writ of mandamus directing at-large elections to replace an allegedly unconstitutional Redistricting Act, on the ground that by reason of 2c "we cannot legally issue the writ." The next year the Supreme Court of California reached the same conclusion that 2c required it to establish single-member districts, see a conclusion that it reaffirmed in see Assembly of State of 4, In (WD Mo.), aff'd sub nom. 456 U.S. 9 the District Court concluded that "nothing in section 2c suggests any limitation on its applicability," and declined to order at-large elections *1 pursuant to 2a(c)(5) because 2c "appears to prohibit at-large elections." And in the District Court reached a substantially identical result, although contemplating that 2a(c) provided a "stop-gap measure" in the "event that no constitutional redistricting plan exists on the eve of a congressional election, and there is not enough time for either the Legislature or the courts to develop an acceptable plan," and n. 23. It bears noting that this Court affirmed two of the District Court decisions described above, see and one without discussing 2c, and one summarily. And in we observed in dictum that "[i]n Congress reinstated the single-member district requirement" that had existed before the enactment of 2a(c). Of course the implausibility (given the circumstances of its enactment) that 2c was meant to apply only to
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
its enactment) that 2c was meant to apply only to legislative reapportionment, and the unbroken unanimity of state and federal courts in opposition to that interpretation, would be of no consequence if the text of 2c (and of 2a(c)) unmistakably demanded that interpretation. But it does not. Indeed, it is more readily susceptible of the opposite interpretation. The clause "there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled" could, to be sure, be so interpreted that the phrase "by law" refers only to legislative action. Its more common meaning, however, encompasses judicial decisions as well. See, e. g., ; Swidler & Berlin v. United ; United v. Frady, 1 (referring to the judicially established standard of review for a 28 U.S. C. 2255 motion as "long-established law"); see *2 also 2254(d)(1) ("clearly established Federal law, as determined by the Supreme Court of the United "); We think, therefore, that while 2c assuredly envisions legislative action, it also embraces action by state and federal courts when the prescribed legislative action has not been forthcoming. We might note that giving "by law" its less common meaning would cause the immediately following clause of 2c ("and Representatives shall be elected only from districts so established" ) to exclude all courts from redistricting, including even state courts acting pursuant to state legislative authorization in the event of legislative default. It is hard to see what plausible congressional purpose this would serve. When, as here, the situation (a decrease in the number of Representatives, all of whom were formerly elected from single-member districts) enables courts to prescribe at-large elections under paragraph (5) of 2a(c) (assuming that section subsists, see infra, at 3), it can be said that there is a constitutional fallback. But what would occur if the situation called for application of paragraphs (1) to (4) of 2a(c), none of which is constitutionally enforceable when (as is usual) the decennial census has shown a proscribed degree of disparity in the voting population of the established districts? The absolute prohibition of 2c ("Representatives shall be elected only from [single-member] districts [legislatively] established") would be subject to no exception, and courts would (despite ) be congressionally forbidden to act when the state legislature has not redistricted. Only when it is utterly unavoidable should we interpret a statute to require an unconstitutional result and that is far from the situation here. In sum, 2c is as readily enforced by courts as it is by state legislatures, and is just as binding on
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
is by state legislatures, and is just as binding on courts federal or state as it is on legislatures. *3 B Having determined that in enacting 2 U.S. C. 2c, Congress mandated that are to provide for the election of their Representatives from single-member districts, and that this mandate applies equally to courts remedying a state legislature's failure to redistrict constitutionally, we confront the remaining question: what to make of 2a(c)? As observed earlier, the texts of 2c and 2a(c)(5) are in tension. Representatives cannot be "elected only from districts," 2c, while being elected "at large," 2a(c). Some of the courts confronted with this conflict have concluded that 2c repeals 2a(c) by implication. See 541 F. Supp., at 9; Assembly of State of 30 Cal. 3d, at 3-4, There is something to be said for that position especially since paragraphs (1) through (4) of 2a(c) have become (because of postenactment decisions of this Court) in virtually all situations plainly unconstitutional. (The unlikely exception is the situation in which the decennial census makes no districting change constitutionally necessary.) Eighty percent of the section being a dead letter, why would Congress adhere to the flotsam of paragraph (5)? We have repeatedly stated, however, that absent "a clearly expressed congressional intention," U.S. 535, "repeals by implication are not favored," Universal Interpretive Shuttle An implied repeal will only be found where provisions in two statutes are in "irreconcilable conflict," or where the latter Act covers the whole subject of the earlier one and "is clearly intended as a substitute." (6). So while there is a strong argument that 2c was a substitute for 2a(c), we think the better answer is that 2a(c) where what it prescribes is constitutional (as it is with regard to paragraph (5)) continues to apply. *4 Section 2a(c) is, of course, only provisionally applicable. It governs the manner of election for Representatives in any election held "[u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment." That language clashes with 2c only if it is interpreted to forbid judicial redistricting unless the state legislature has first acted. On that interpretation, whereas 2c categorically instructs courts to redistrict, 2a(c)(5) forbids them to do anything but order at-large elections unless the state legislature has acted. But there is of course no need for such an interpretation. "Until a State is redistricted" can certainly refer to redistricting by courts as well as by legislatures. Indeed, that interpretation would seem the preferable one even if it were not a necessary means of reconciling
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
even if it were not a necessary means of reconciling the two sections. Under prior versions of 2a(c), its default or stopgap provisions were to be invoked for a State "until the legislature of such State [had] redistrict[ed] such State." Act of Jan. 16, 1901, ch. 93, 4, 31 Stat. 7 ; see Act of Feb. 7, 1891, ch. 116, 4, ("until such State be redistricted as herein prescribed by the legislature of said State" ); Act of Feb. 25, 1882, ch. 20, 3, ("shall be elected at large, unless the Legislatures of said have provided or shall otherwise provide" ). These provisions are in stark contrast to the text of the current 2a(c): "[u]ntil a State is redistricted in the manner provided by the law thereof." If the more expansive (and more natural) interpretation of 2a(c) is adopted, its condition can be met and its demand for at-large elections suspended by the very court that follows the command of 2c. For when a court, state or federal, redistricts pursuant to 2c, it necessarily does so "in the manner provided by [state] law." It must follow the "policies and preferences of the State, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature," except, of course, *5 when "adherence to state policy detract[s] from the requirements of the Federal Constitution." Federal constitutional prescriptions, and federal statutory commands such as that of 2c, are appropriately regarded, for purposes of 2a(c), as a part of the state election law. Thus, 2a(c) is inapplicable unless the state legislature, and state and federal courts, have all failed to redistrict pursuant to 2c. How long is a court to await that redistricting before determining that 2a(c) governs a forthcoming election? Until, we think, the election is so imminent that no entity competent to complete redistricting pursuant to state law (including the mandate of 2c) is able to do so without disrupting the election process. Only then may 2a(c)'s stopgap provisions be invoked. Thus, 2a(c) cannot be properly applied neither by a legislature nor a court as long as it is feasible for federal courts to effect the redistricting mandated by 2c. So interpreted, 2a(c) continues to function as it always has, as a last-resort remedy to be applied when, on the eve of a congressional election, no constitutional redistricting plan exists and there is no time for either the State's legislature or the courts to develop one. Cf. 543 F. Supp., -78. There remains to be considered Mississippi's at-large election provision, which reads as
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
to be considered Mississippi's at-large election provision, which reads as follows: "Should an election of representatives in Congress occur after the number of representatives to which the state is entitled shall be changed, in consequence of a new apportionment being made by Congress, and before the districts shall have been changed to conform to the new apportionment, representatives shall be chosen as follows: In case the number of representatives to which the state is entitled be increased, then one (1) member shall be chosen in each district as organized, and the additional member or members shall be chosen by the electors of the state at large; and if the number of representatives *6 shall be diminished, then the whole number shall be chosen by the electors of the state at large." Miss. Code Ann. 23-15-1039 (Lexis 2001). There has been no interpretation of this provision by the Mississippi courts. We believe it was designed to track 2 U.S. C. 2a(c)(2) and (5), and should be deemed operative when those provisions would be. That is to say, (1) the phrase "and before the districts shall have been changed to conform to the new apportionment" envisions both legislatively and judicially prescribed change, and (2) the statute does not come into play as long as it remains feasible for a state or federal court to complete redistricting. In these cases, the District Court properly completed the redistricting of Mississippi pursuant to 2 U.S. C. 2c and thus neither Mississippi Code 23-15-1039 nor 2 U.S. C. 2a(c) was applicable. IV JUSTICE O'CONNOR'S opinion concurring in part and dissenting in part (hereinafter dissent) agrees that the District Court properly acted to remedy a constitutional violation, see post, at 300-301, but contends that it should have looked to 2a(c) rather than 2c in selecting an appropriate remedy. We think not. We have explained why it makes sense for 2c to apply until there is no longer any reasonable prospect for redistricting according to state law whereupon 2a(c) applies. If, like the dissent, we were to forgo such analysis and simply ask, in the abstract, which of the two provisions has primacy, we would probably still select 2c the only one cast in absolute, rather than conditional, terms. The dissent gives not the hint of a reason why it believes 2a(c) has primacy. It says that "[t]he text of 2a(c) directs federal courts to order at-large elections `[u]ntil a State is redistricted in the manner provided by the law thereof.'" Post, at 301. But it is equally true that 2c directs federal courts to redistrict
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
is equally true that 2c directs federal courts to redistrict absolutely and without qualification. *7 The dissent does contemplate a role for federal courts in redrawing congressional districts, but only "after a State has been redistricted" in the first instance. Post, at 300. It is not entirely clear which entities the dissent considers competent to do this initial redistricting certainly the legislature, and perhaps also state courts, but only if such "courts are part of the `manner provided by the law thereof.'" Post, at 300, n. 1. But the dissent also says that "a court should enforce 2a(c) before a `State is redistricted in the manner provided by the law thereof,' and a court should enforce 2c after a State" has been initially redistricted, post, at 300 which (if one takes the words at face value) leaves no room for any court to do the initial redistricting. We assume the dissent does not mean precisely what it has said. The dissent implicitly differentiates between federal and state courts effectively holding that state courts may undertake the initial redistricting that would satisfy 2a(c)'s prerequisite, but federal courts may not. It presumably rests this distinction upon the belief that state courts are capable of redistricting "`in the manner provided by the law thereof,'" whereas federal courts are not. See post, at 300, n. 1. To read that phrase as potentially including state but not federal courts, the dissent takes the word "manner" to refer to process or procedures, rather than substantive requirements. See (If the State's process for redistricting includes courts, then and only then may courts redistrict, rendering 2a(c) inapplicable.) But such a reading renders the phrase "in the manner provided by the law thereof" redundant of the requirement that the State be "redistricted." Of course the State has not been redistricted if districts have been drawn by someone without authority to redistrict. Should an ambitious county clerk or individual legislator sit down and draw up a districting map, no one would think that the State has, within the meaning of the statute, been "redistricted." In our view, the word "manner" refers to the State's substantive "policies and preferences" *8 for redistricting, 412 U. S., at as expressed in a State's statutes, constitution, proposed reapportionment plans, see ib or a State's "traditional districting principles," ; see also Thus, when a federal court redistricts a State in a manner that complies with that State's substantive districting principles, it does so "`in the manner provided by the law thereof.'" See at 4-5.[*] While it certainly remains preferable for
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
thereof.'" See at 4-5.[*] While it certainly remains preferable for the State's legislature to complete its constitutionally required redistricting pursuant to the requirements of 2c, see or for the state courts to do so if they can, see 507 U. S., at we have long since crossed the Rubicon that seems to impede the dissent, see, e. g., When the State, through its legislature or other authorized body, cannot produce the needed decision, then federal courts are "left to embark on [the] delicate task" of redistricting, The dissent claims that we have read the statutory phrase "[u]ntil a State is redistricted" to mean "[u]ntil the election is so imminent that no entity competent to complete redistricting pursuant to the mandate of 2c is able to do so without disrupting the election process." Post, at 298. From that premise, it proceeds to mount a vigorous (and, in the principles it espouses, highly edifying) "plain meaning" attack upon our holding. Unfortunately, the premise is patently false. We, no less than the dissent, acknowledge that *9 "the text tells us `how long' 2a(c) should govern: `until a State is redistricted in the manner provided by the law thereof,'" post, at 299. The issue is not how long 2a(c) governs, but how long a court (under the continuing mandate of 2a(c)) should wait before ordering an at-large election. The dissent treats 2a(c) as though it prescribes (in its application to the facts of the present case) the immediate establishment of statewide districts (i. e., an at-large election) for all Representatives. It prescribes no such thing. All it says is that "[u]ntil [the] State is redistricted in the manner provided by the law thereof," Representatives "shall be elected from the State at large." The only point at which 2a(c) issues a command the only point at which it bites is at election time. Only if, at election time, redistricting "in the manner provided by [state] law" has not occurred, does 2a(c) become operative. So despite the dissent's ardent protestations to the contrary, see ib the dissent, no less than we, must confront the question "[h]ow long is a court to await that redistricting before determining that 2a(c) governs a forthcoming election?" Surely the dissent cannot possibly believe that, since "the text tells us `how long' 2a(c) should govern," ib a court can declare, immediately after congressional reapportionment, and before the state legislature has even had a chance to act, that the State's next elections for Representatives will be at large. We say that the state legislature (and the state and federal courts) should
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
the state legislature (and the state and federal courts) should be given the full time available right up until the time when further delay will disrupt the election process to reapportion according to state law. Since the dissent disagrees with that, we wonder what its own timeline might be. But to claim that there is no timeline simply to assert that "[] 2a(c) contains no imminence requirement," is absurd. The dissent suggests that our reading of 2c runs afoul of the Court's anticommandeering jurisprudence, see post, at 301-302, but in doing so the dissent fails to recognize that *280 the state legislature's obligation to prescribe the "Times, Places and Manner" of holding congressional elections is grounded in Article I, 4, cl. 1, of the Constitution itself and not any mere statutory requirement. Here, as acknowledged by the dissent, the federal plaintiffs "alleged a constitutional violation" failure to provide for the election of the proper number of Representatives in accordance with Article I, 2, cl. 1 "and the federal court drew a plan to remedy that violation," post, at 301. In crafting its remedy, the District Court appropriately followed the "Regulations" Congress prescribed in 2c "Regulations" that Article I, 4, cl. 1, of the Constitution expressly permits Congress to make, see at 2. To be sure, 2c "envisions legislative action," at 2, but in the context of Article I, 4, cl. 1, such "Regulations" are expressly allowed. In enacting 2c (and 2a(c), for that matter), Congress was not placing a statutory obligation on the state legislatures as it was in New York v. United ; rather, it was regulating (as the Constitution specifically permits) the manner in which a State is to fulfill its pre-existing constitutional obligations under Article I, 2 and 4. Our interpretation of 2c no more permits a commandeering of the machinery of state government than does the dissent's understanding of 2a(c). Under our view, if the State fails to redistrict, then federal courts may do so. Under the dissent's view, if the State fails to redistrict (and loses congressional seats), then the federal courts must order at-large elections pursuant to 2a(c)(5). See, e. g., post, at 299-300. If our reading of 2c runs afoul of any anticommandeering principles, then the dissent commits the same sin. Another straw man erected by the dissent is to be found in its insistence as though in response to an argument of ours that "[s]ince 2a(c) was enacted decades before the Baker line of cases, this subsequent development cannot change the interpretation of
|
Justice Scalia
| 2,003 | 9 |
majority
|
Branch v. Smith
|
https://www.courtlistener.com/opinion/127905/branch-v-smith/
|
of cases, this subsequent development cannot change the interpretation of 2a(c)." Post, at 307. But we have never said that those cases changed the meaning of *281 2a(c); we have said that they help to explain the meaning of 2c, which was enacted after they were decided. And it is, of course, the most rudimentary rule of statutory construction (which one would have thought familiar to dissenters so prone to preachment on that subject, see, e. g., post, at 298, 304, 307) that courts do not interpret statutes in isolation, but in the context of the corpus juris of which they are a part, including later-enacted statutes: "The correct rule of interpretation is, that if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them. If a thing contained in a subsequent statute, be within the reason of a former statute, it shall be taken to be within the meaning of that statute; and if it can be gathered from a subsequent statute in pari materia, what meaning the legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute." United v. Freeman, That is to say, the meaning of 2c (illuminated by the line of cases) sheds light upon the meaning of 2a(c). Finally, the dissent gives the statutory phrase "redistricted in the manner provided by the law thereof" a meaning that is highly unusual. It means, according to the dissent, "redistricted as state law requires," even when state law is unconstitutional so that even an unconstitutional redistricting satisfies the "until" clause of 2a(c), and enables 2c to be applied. We know of no other instance in which a federal statute acknowledges to be "state law" a provision that violates the Supremacy Clause and is therefore a legal nullity. It is particularly peculiar for the dissent to allow an unconstitutional redistricting to satisfy the "until" clause when it will not allow a nonprecleared redistricting to satisfy the "until" clause (in those subject to 5 of the *282 Voting Rights Act, 42 U.S. C. 1973c). See post, at 310-312. That is to say, in the dissent's view a redistricted State is not "redistricted" within the meaning of 2a(c) if the districts have not been precleared, but it is "redistricted" even if the districts are patently unconstitutional (so long as they have been precleared, or the State is not subject to the preclearance requirement). Section 2a(c), of course, has no "preclearance exception."
|
Justice Souter
| 1,994 | 20 |
majority
|
Livadas v. Bradshaw
|
https://www.courtlistener.com/opinion/117852/livadas-v-bradshaw/
|
California law requires employers to pay allwages due immediately upon an employee's discharge, imposes a penalty for refusal to pay promptly, precludes any private contractual waiver of these minimum labor standards, and places responsibility for enforcing these provisions on the State Commissioner of Labor (Commissioner or Labor Commissioner), ostensibly for the benefit of all employees. Respondent, the Labor Commissioner,[1] has construed a further provision of state law as barring enforcement of these wage and penalty claims on behalf of individuals like petitioner, whose terms and conditions of employment are governed by a collective-bargaining agreement containing an arbitration clause. We hold that federal law pre-empts this policy, as abridging the exercise of such employees' rights under the National Labor Relations Act (NLRA or Act), 29 U.S. C. 151 et seq., and that redress for this unlawful refusal to enforce may be had under 2 U.S. C. 1983. Until her discharge on January 2, petitioner Karen Livadas worked as a grocery clerk in a Vallejo, California, Safeway supermarket. The terms and conditions of her employment were subject to a collective-bargaining agreement between Safeway and Livadas's union, Local 373 of the United Food and Commercial Workers, AFLCO. Unexceptionally, the agreement provided that "[d]isputes as to the interpretation or application of the agreement," including grievances arising from allegedly unjust discharge or suspension, would be subject to binding arbitration. See Food *111 Store Contract, United Food & Commercial Workers Union, Local 373, AFLCO, Solano and Napa Counties 18.2, 18.3 (Food Store Contract).[2] When notified of her discharge, Livadas demanded immediate payment of wages owed her, as guaranteed to all California workers by state law, see Cal. Lab. Code Ann. 201[3] but her store manager refused, referring to the company practice of making such payments by check mailed from a central corporate payroll office. On January 5, Livadas received a check from Safeway, in the full amount owed for her work through January 2. On January 9, Livadas filed a claim against Safeway with the California Division of Labor Standards Enforcement (DLSE or Division), asserting that under 203 of the Labor Code the company was liable to her for a sum equal to three days' wages, as a penalty for the delay between discharge and the date when payment was in fact received.[]*112 Livadas requested the Commissioner to enforce the claim.[5] By an apparently standard form letter dated February 7, the Division notified Livadas that it would take no action on her complaint: "t is our understanding that the employees working for Safeway are covered by a collective bargaining agreement which contains an arbitration clause. The
|
Justice Souter
| 1,994 | 20 |
majority
|
Livadas v. Bradshaw
|
https://www.courtlistener.com/opinion/117852/livadas-v-bradshaw/
|
a collective bargaining agreement which contains an arbitration clause. The provisions of Labor Code Section 229 preclude this Division from adjudicating any dispute concerning the interpretation or application of any collective bargaining agreement containing an arbitration clause. "Labor Code Section 203 requires that the wages continue at the `same rate' until paid. n order to establish what the `same rate' was, it is necessary to look to the *113 collective bargaining agreement and `apply' that agreement. The courts have pointed out that such an application is exactly what the provisions of Labor Code 229 prohibit."[6] App. 16. The letter made no reference to any particular aspect of Livadas's claim making it unfit for enforcement, and the Commissioner's position is fairly taken to be that DLSE enforcement of 203 claims, as well as other claims for which relief is pegged to an employee's wage rate, is generally unavailable to employees covered by collective-bargaining agreements.[7] Livadas brought this action in the United States District Court under Rev. Stat. 1979, 2 U.S. C. 1983, alleging that the nonenforcement policy, reflecting the Commissioner's reading of Labor Code 229, was pre-empted as conflicting with Livadas's rights under 7 of the NLRA, as amended, 29 U.S. C. 157, because the policy placed a *11 penalty on the exercise of her statutory right to bargain collectively with her employer. She stressed that there was no dispute about the amount owed and that neither she nor Safeway had begun any grievance proceeding over the penalty.[8] Livadas sought a declaration that the Commissioner's interpretation of 229 was pre-empted, an injunction against adherence to the allegedly impermissible policy, and an order requiring the Commissioner either to process her penalty claim or (if it would be time barred under state law) pay her damages in the amount the Commissioner would have obtained if the Commissioner had moved against the employer in time. The District Court granted summary judgment for Livadas, holding the labor pre-emption claim cognizable under 1983, see Golden State Transit and the Commissioner's policy pre-empted as interfering with her 7 right, see, e. g., Golden State Transit by denying her the benefit of a minimum labor standard, namely, the right to timely payment of final wages secured by Labor Code 201 and 203. The District Court treated as irrelevant the Commissioner's assertion that the policy was consistent with state law (e. g., Labor Code 229) and rejected the defense that it was required by federal law, namely, 301 of the Labor-Management Relations Act, 197 (LMRA), 29 U.S. C. 185(a), which has been read to pre-empt state-court resolution of disputes
|
Justice Souter
| 1,994 | 20 |
majority
|
Livadas v. Bradshaw
|
https://www.courtlistener.com/opinion/117852/livadas-v-bradshaw/
|
which has been read to pre-empt state-court resolution of disputes turning on the rights of parties under collective-bargaining agreements. *115 The District Court explained that resolution of the claim under 203 "requires reference only to a calendar, not to the [collective-bargaining agreement]," and granted petitioner all requested relief.[9] A divided panel of the Court of Appeals for the Ninth Circuit reversed. The court acknowledged that federal law gives Livadas a right to engage in collective bargaining and that 1983 would supply a remedy for official deprivation of that right, but the panel majority concluded that no federal right had been infringed. The court reasoned that the policy was based on the Commissioner's reading of Labor Code 229, whose function of keeping state tribunals from adjudicating claims in a way that would interfere with the operation of federal labor policy is, by definition, consistent with the dictates of federal law. Noting that Livadas did not assert pre-emption of 229 itself or object to the California courts' interpretation of it, the majority concluded that her case reduced to an assertion that the Commissioner had misinterpreted state law, an error for which relief could be obtained in California courts. Livadas could not claim to be "penalized," the Appeals panel then observed, for she stood "in the same position as every other employee in the state when it comes to seeking the Commissioner's enforcement. Every employee is subject to an eligibility determination, and every employee. is subject to the risk that the Commissioner will get it wrong." The Ninth Circuit majority concluded by invoking the "general policies of federal labor law" strongly favoring the arbitration of disputes and reasoning that, "Congress would not want state officials erring *116 on the side of adjudicating state law disputes whenever it is a close call as to whether a claim is preempted."[] We granted certiorari, to address the important questions of federal labor law implicated by the Commissioner's policy, and we now reverse. A A state rule predicating benefits on refraining from conduct protected by federal labor law poses special dangers of interference with congressional purpose. n a unanimous Court held that a state policy of withholding unemployment benefits solely because an employee had filed an unfair labor practice charge with the National Labor Relations Board had a "direct tendency to frustrate the purpose of Congress" and, if not pre-empted, would "defeat or handicap a valid national objective by withdraw[ing] state benefits simply because" an employee engages in conduct protected *117 and encouraged by the NLRA. ; see Golden State This case is fundamentally no different from
|
Justice Souter
| 1,994 | 20 |
majority
|
Livadas v. Bradshaw
|
https://www.courtlistener.com/opinion/117852/livadas-v-bradshaw/
|
see Golden State This case is fundamentally no different from Nash.[11] Just as the respondent state commission in that case offered an employee the choice of pursuing her unfair labor practice claim or receiving unemployment compensation, the Commissioner has presented Livadas and others like her with the choice of having statelaw rights under 201 and 203 enforced or exercising the right to enter into a collective-bargaining agreement with an arbitration clause. This unappetizing choice, we conclude, was not intended by Congress, see infra, at 130, and cannot ultimately be reconciled with a statutory scheme premised on the centrality of the right to bargain collectively and the desirability of resolving contract disputes through arbitration. *118 Cf. Metropolitan ns.[12] B 1 The Commissioner's answers to this pre-emption conclusion flow from two significant misunderstandings of law. First, the Commissioner conflates the policy that Livadas challenges with the state law on which it purports to rest, Labor Code 229, assuming that if the statutory provision is consistent with federal law, her policy must be But *119 on this logic, a policy of issuing general search warrants would be justified if it were adopted to implement a state statute codifying word-for-word the "good-faith" exception to the valid warrant requirement recognized in United The relationship between policy and state statute and between the statute and federal law is, in any event, irrelevant. The question presented by this case is not whether Labor Code 229 is valid under the Federal Constitution or whether the Commissioner's policy is, as a matter of state law, a proper interpretation of 229. Pre-emption analysis, rather, turns on the actual content of respondent's policy and its real effect on federal rights. See ; see[13] Having sought to lead us to the wrong question, the Commissioner proposes the wrong approach for answering it, defending the distinction drawn in the challenged statutory interpretation, between employees represented by unions and those who are not, as supported by a "rational basis," see, *120 e. g., Brief for Respondent 17. But such reasoning mistakes a standard for validity under the Equal Protection and Due Process Clauses for what the Supremacy Clause requires. The power to tax is no less the power to destroy, merely because a state legislature has an undoubtedly rational and "legitimate" interest in raising revenue. n labor pre-emption cases, as in others under the Supremacy Clause, our office is not to pass judgment on the reasonableness of state policy, see, e. g., Golden State t is instead to decide if a state rule conflicts with or otherwise "stands as an obstacle to the accomplishment
|
Justice Souter
| 1,994 | 20 |
majority
|
Livadas v. Bradshaw
|
https://www.courtlistener.com/opinion/117852/livadas-v-bradshaw/
|
with or otherwise "stands as an obstacle to the accomplishment and execution of the full purposes and objectives" of the federal law.[1] That is not to say, of course, that the several rationales for the policy urged on the Court by the Commissioner and amici are beside the point here. f, most obviously, the Commissioner's policy were actually compelled by federal law, as she argues it is, we could hardly say that it was, simultaneously, pre-empted; at the least, our task would then be one of harmonizing statutory law. But we entertain this and other justifications claimed, not because constitutional analysis under the Supremacy Clause is an open-ended balancing act, simply weighing the federal interest against the intensity of local feeling, see but because claims of justification can sometimes help us to discern congressional purpose, the "ultimate touchstone" of our enquiry. Malone ; see New York Telephone 2 We begin with the most complete of the defenses mounted by the Commissioner, one that seems (or seemed until recently, at least) to be at the heart of her position: that the challenged policy, far from being pre-empted by federal law, is positively compelled by it, and that even if the Commissioner had been so inclined, the LMRA 301 would have precluded enforcement of Livadas's penalty claim. The nonenforcement policy, she suggests, is a necessary emanation from this Court's 301 pre-emption jurisprudence, marked as it has been by repeated admonitions that courts should steer clear of collective-bargaining disputes between parties who have provided for arbitration. See, e. g., AllisChalmers Because, this argument runs (and Livadas was told in the DLSE no-action letter), disposition of a union-represented employee's penalty claim entails the "interpretation or application" of a collective-bargaining agreement (since determining the amount owed turns on the contractual rate of pay agreed) resort to a state tribunal would lead it into territory that Congress, in enacting 301, meant to be covered exclusively by arbitrators. This reasoning, however, mistakes both the functions 301 serves in our national labor law and our prior decisions according that provision pre-emptive effect. To be sure, we have read the text of 301[15] not only to grant federal courts jurisdiction over claims asserting breach of collectivebargaining *122 agreements but to authorize the development of federal common-law rules of decision, in large part to assure that agreements to arbitrate grievances would be enforced, regardless of the vagaries of state law and lingering hostility toward extrajudicial dispute resolution, see Textile ; see ; Avco (" 301 was fashioned by Congress to place sanctions behind agreements to arbitrate grievance disputes"). And in
|
Justice Souter
| 1,994 | 20 |
majority
|
Livadas v. Bradshaw
|
https://www.courtlistener.com/opinion/117852/livadas-v-bradshaw/
|
place sanctions behind agreements to arbitrate grievance disputes"). And in we recognized an important corollary to the Lincoln Mills rule: while 301 does not preclude state courts from taking jurisdiction over cases arising from disputes over the interpretation of collective-bargaining agreements, state contract law must yield to the developing federal common law, lest common terms in bargaining agreements be given different and potentially inconsistent interpretations in different jurisdictions. See -.[16] And while this sensible "acorn" of 301 pre-emption recognized in Lucas Flour has sprouted modestly in more recent decisions of this Court, see, e. g., ("[]f the policies that animate 301 are to be given their proper range the pre-emptive effect of 301 must extend beyond suits alleging contract violations"), it has not yet become, nor may it, a sufficiently "mighty oak," see Golden State to supply the cover the Commissioner seeks here. To the contrary, the pre-emption rule has been applied only to assure that the *123 purposes animating 301 will be frustrated neither by state laws purporting to determine "questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement," nor by parties' efforts to renege on their arbitration promises by "relabeling" as tort suits actions simply alleging breaches of duties assumed in collective-bargaining agreements, ; see Republic Steel (emphasis deleted). n and in v. Norge Div. of Magic Chef, nc., we underscored the point that 301 cannot be read broadly to pre-empt nonnegotiable rights conferred on individual employees as a matter of state law,[17] and we stressed that itis the legal character of a claim, as "independent" of rights under the collective-bargaining agreement, (and not whether a grievance arising from "precisely the same set of facts" could be pursued, ) that decides whether a state *12 cause of action may go forward.[18] Finally, we were clear that when the meaning of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished, see These principles foreclose even a colorable argument that a claim under Labor Code 203 was pre-empted here. As the District Court aptly observed, the primary text for deciding whether Livadas was entitled to a penalty was not the Food Store Contract, but a calendar. The only issue raised by Livadas's claim, whether Safeway "willfully fail[ed] to pay" her wages promptly upon severance, Cal. Lab. Code *125 Ann. 203 was a question of state law, entirely independent of any understanding
|
Justice Souter
| 1,994 | 20 |
majority
|
Livadas v. Bradshaw
|
https://www.courtlistener.com/opinion/117852/livadas-v-bradshaw/
|
a question of state law, entirely independent of any understanding embodied in the collective-bargaining agreement between the union and the employer. There is no indication that there was a "dispute" in this case over the amount of the penalty to which Livadas would be entitled, and makes plain in so many words that when liability is governed by independent state law, the mere need to "look to" the collective-bargaining agreement for damages computation is no reason to hold the state-law claim defeated by 301. See 86 U.S.,[19] Beyond the simple need to refer to bargained-for wage rates in computing the penalty, the collective-bargaining agreement is irrelevant to the dispute (if any) between Livadas and Safeway. There is no suggestion here that Livadas's union sought or purported to bargain away her protections under 201 or 203, a waiver that we have said would (especially in view of Labor Code 219) have to be "`clear and unmistakable,' " see ), for a court even to consider whether it could be given effect, nor is there any indication that the parties to the collective-bargaining agreement understood their arbitration pledge to cover these state-law claims. See generally v. nterstate/Johnson Lane Corp., ; cf. Food Store Contract 18.8. But even if such suggestions or indications were to be found, the Commissioner could not invoke them to defend her policy, which makes no effort to take such factors into account before denying enforcement.[20] *126 C 1 Before this Court, however, the Commissioner does not confine herself to the assertion that Livadas's claim would have been pre-empted by LMRA 301. ndeed, largely putting aside that position, she has sought here to cast the policy in different terms, as expressing a "conscious decision," see Brief for Respondent 1, to keep the State's "hands off" the claims of employees protected by collective-bargaining agreements, either because the Division's efforts and resources are more urgently needed by others or because official restraint will actually encourage the collectivebargaining and arbitral processes favored by federal law. The latter, more ambitious defense has been vigorously taken up by the Commissioner's amici, who warn that invalidation of the disputed policy would sound the death knell for other, more common governmental measures that take account of collective-bargaining processes or treat workers represented by unions differently from others in any respect. Although there surely is no bar to our considering these alternative explanations, cf. we note, as is often the case with such late-blooming rationales, that the overlap between what the Commissioner now claims to be state policy and what the state legislature has enacted into law
|
Justice Souter
| 1,994 | 20 |
majority
|
Livadas v. Bradshaw
|
https://www.courtlistener.com/opinion/117852/livadas-v-bradshaw/
|
policy and what the state legislature has enacted into law is awkwardly inexact. First, if the Commissioner's policy (or California *1 law) were animated simply by the frugal desire to conserve the State's money for the protection of employees not covered by collective-bargaining agreements, the Commissioner's emphasis, in the letter to Livadas and in this litigation, on the need to "interpret" or "apply" terms of a collectivebargaining agreement would be entirely misplaced. Nor is the nonenforcement policy convincingly defended as giving parties to a collective-bargaining agreement the "benefit of their bargain," see Brief for Respondent 18, n. 13, by assuring them that their promise to arbitrate is kept and not circumvented. Under the Commissioner's policy, enforcement does not turn on what disputes the parties agreed would be resolved by arbitration (the bargain struck), see or on whether the contractual wage rate is even subject to (arbitrable) dispute. Rather, enforcement turns exclusively on the fact that the contracting parties consented to any arbitration at all. Even if the Commissioner could permissibly presume that state-law claims are generally intended to be arbitrated, but cf. at[21] her policy goes still further. Even in cases when it could be said with "positive assurance," *128 Warrior & that the parties did not intend that state-law claims be subject to arbitration, cf. Food Store Contract 18.8 (direct wage claim not involving interpretation of agreement may be submitted "to any other tribunal or agency which is authorized and empowered" to enforce it), the Commissioner would still deny enforcement, on the stated basis that the collective-bargaining agreement nonetheless contained "an arbitration clause" and because the claim would, on her view, entail "interpretation," of the agreement's terms. Such an irrebuttable presumption is not easily described as the benefit of the parties' "bargain." The Commissioner and amici finally suggest that denying enforcement to union-represented employees' claims under 201 and 203 (and other Labor Code provisions) is meant to encourage parties to bargain collectively for their own rules about the payment of wages to discharged workers. But with this suggestion, the State's position simply slips any tether to California law. f California's goal really were to stimulate such freewheeling bargaining on these subjects, the enactment of Labor Code 219, expressly and categorically prohibiting the modification of these Labor Code rules by "private agreement," would be a very odd way to pursue it.[22] Cf. Cal. Lab. Code Ann. 2.3 (allowing parties to collective-bargaining agreement to arrive at different rule for vacation pay). n short, the policy, the rationales, and the state law are not coherent. 2 Even at face value, however, neither
|
Justice Souter
| 1,994 | 20 |
majority
|
Livadas v. Bradshaw
|
https://www.courtlistener.com/opinion/117852/livadas-v-bradshaw/
|
are not coherent. 2 Even at face value, however, neither the "hands off" labels nor the vague assertions that general labor law policies are thereby advanced much support the Commissioner's defense here. The former merely takes the position discussed and rejected earlier, that a distinction between claimants represented by unions and those who are not is "rational," the *129 former being less "in need" than the latter. While we hardly suggest here that every distinction between unionrepresented employees and others is invalid under the NLRA, see infra, at 131-132, the assertion that represented employees are less "in need" precisely because they have exercised federal rights poses special dangers that advantages conferred by federal law will be canceled out and its objectives undermined. Cf. Metropolitan ("t would turn the policy that animated the Wagner Act on its head to understand it to have penalized workers who have chosen to join a union by preventing them from benefiting from state labor regulations imposing minimal standards on nonunion employers"). Accordingly, as we observed in Metropolitan the widespread practice in Congress and in state legislatures has assumed the contrary, bestowing basic employment guarantees and protections on individual employees without singling out members of labor unions (or those represented by them) for disability; see at ;[23] accord, -12. Nor do professions of "neutrality" lay the dangers to rest. The pre-empted action in Golden State could easily have been redescribed as following a "hands-off" policy, in that the city sought to avoid endorsing either side in the course of a labor dispute, see (city did not seek "to place its weight on one side or the other of the scales of economic warfare"), and the respondent commission in Nash may have understood its policy as expressing neutrality between the parties in a yet-to-bedecided *130 unfair labor practice dispute. See Rum Creek Coal Sales, nc. v. Caperton, Nor need we pause long over the assertion that nonenforcement of valid state-law claims is consistent with federal labor law by "encouraging" the operation of collective bargaining and arbitration process. Denying represented employees basic safety protections might "encourage" collective bargaining over that subject, and denying union employers the protection of generally applicable state trespass law might lead to increased bargaining over the rights of labor pickets, cf. Rum Creek, but we have never suggested that labor law's bias toward bargaining is to be served by forcing employees or employers to bargain for what they would otherwise be entitled to as a matter of course. See generally Metropolitan (emphasis deleted and internal quotation marks omitted).[2] The precedent cited by the Commissioner
|
Justice Souter
| 1,994 | 20 |
majority
|
Livadas v. Bradshaw
|
https://www.courtlistener.com/opinion/117852/livadas-v-bradshaw/
|
internal quotation marks omitted).[2] The precedent cited by the Commissioner and amici as supporting the broadest "hands off" view, Fort Halifax Packing is not in point. n that case we held that there was no federal pre-emption of a Maine statute that allowed employees and employers to contract for plant-closing severance payments different from those otherwise mandated by state law. That decision, however, does not even purport to address the question supposedly presented here: while there was mention of state latitude *131 to "balance the desirability of a particular substantive labor standard against the right of self-determination regarding the terms and conditions of employment," see the policy challenged here differs in two crucial respects from the "unexceptional exercise of the [State's] police power," defended in those terms in our earlier case. Most fundamentally, the Maine law treated all employees equally, whether or not represented by a labor organization. All were entitled to the statutory severance payment, and all were allowed to negotiate agreements providing for different benefits. See Second, the minimum protections of Maine's plant-closing law were relinquished not by the mere act of signing an employment contract (or collective-bargaining agreement), but only by the parties' express agreement on different terms, see[25] While the Commissioner and her amici call our attention to a number of state and federal laws that draw distinctions between union and nonunion represented employees, see, e. g., D. C. Code Ann. 36-3 ("Unless otherwise specified in a collective agreement [w]henever an employer discharges an employee, the employer shall pay the employee's wages earned not later than the working day following such discharge"); 29 U.S. C. 203(o ) ("Hours [w]orked" for Fair Labor Standards Act measured according to "express terms of or practice under bona fide collective-bargaining agreement"), virtually all share the important second feature observed in Coyne, that unionrepresented employees have the full protection of the minimum standard, absent any agreement for something different. These "opt out" statutes are thus manifestly different in their operation (and their effect on federal rights) *132 from the Commissioner's rule that an employee forfeits his state-law rights the moment a collective-bargaining agreement with an arbitration clause is entered into. But cf. Metropolitan 60 U. S., at Hence, our holding that the Commissioner's unusual policy is irreconcilable with the structure and purposes of the Act should cast no shadow on the validity of these familiar and narrowly drawn opt-out provisions.[26] Having determined that the Commissioner's policy is in fact pre-empted by federal law, we find strong support in our precedents for the position taken by both courts below that Livadas is
|
Justice Souter
| 1,994 | 20 |
majority
|
Livadas v. Bradshaw
|
https://www.courtlistener.com/opinion/117852/livadas-v-bradshaw/
|
the position taken by both courts below that Livadas is entitled to seek relief under 2 U.S. C. 1983 for the Commissioner's abridgment of her NLRA rights. Section 1983 provides a federal cause of action for the deprivation, under color of law, of a citizen's "rights, privileges, or immunities secured by the Constitution and laws" of the United States, and we have given that provision the effect its terms require, as affording redress for violations of federal statutes, as well as of constitutional norms. We have, it is true, recognized that even the broad statutory text does not authorize a suit for every alleged violation of federal law. A particular statutory provision, for example, may be so manifestly precatory that it could not fairly be read to impose a "binding obligatio[n]" on a governmental unit, Pennhurst State School and 51 U.S. 1, or its terms may be so "vague and amorphous" that determining whether a "deprivation" might have occurred would strain judicial competence. See 79 U.S. 18, 31-32 And Congress itself might make it clear that violation of a statute will not give rise to liability under 1983, either by express words or by providing a comprehensive alternative enforcement scheme. See Middlesex County Sewerage 53 U.S. 1 But apart from these exceptional cases, 1983 remains a generally and presumptively available remedy for claimed violations of federal law. See 98 U.S. 39, 3 Our conclusion that Livadas is entitled to seek redress under 1983 is, if not controlled outright, at least heavily foreshadowed by our decision in Golden State We began there with the recognition that not every instance of federal pre-emption gives rise to a 1983 cause of action, see 93 U.S., at 8, and we explained that to decide the availability of 1983 relief a court must look to the nature of the federal law accorded pre-emptive effect and the character of the interest claimed under it, [] We had no difficulty concluding, however, as we had often before, see, e. g., (195), that the NLRA protects interests of employees and employers against abridgment by a State, as well as by private actors; that the obligations it imposes on governmental actors are not so "vague and amorphous" as to exceed judicial competence to decide; and that Congress had not meant to foreclose relief under 1983. n so concluding, we contrasted the intricate scheme provided to remedy violations by private actors to the complete absence of provision for relief from governmental *13 interference, see 93 U.S., at 8-9. ndeed, the only issue seriously in dispute in Golden State was whether
|
Justice Souter
| 1,994 | 20 |
majority
|
Livadas v. Bradshaw
|
https://www.courtlistener.com/opinion/117852/livadas-v-bradshaw/
|
only issue seriously in dispute in Golden State was whether the freedom to resort to "peaceful methods of economic pressure," which we had recognized as implicit in the structure of the Act, could support 1983 liability in the same manner as official abridgment of those rights enumerated in the text would do. bid. The Court majority said yes, explaining that "[a] rule of law that is the product of judicial interpretation of a vague, ambiguous, or incomplete statutory provision is no less binding than a rule that is based on the plain meaning of a statute." bid. The right Livadas asserts, to complete the collectivebargaining process and agree to an arbitration clause, is, if not provided in so many words in the NLRA, see n. at least as immanent in its structure as the right of the cab company in Golden State And the obligation to respect it on the part of the Commissioner and others acting under color of law is no more "vague and amorphous" than the obligation in Golden State. Congress, of course, has given no more indication of any intent to foreclose actions like Livadas's than the sort brought by the cab company. Finding no cause for special caution here, we hold that Livadas's claim is properly brought under 1983. V n an effort to give wide berth to federal labor law and policy, the Commissioner declines to enforce unionrepresented employees' claims rooted in nonwaivable rights ostensibly secured by state law to all employees, without regard to whether the claims are valid under state law or preempted by LMRA 301. Federal labor law does not require such a heavy-handed policy, and, indeed, cannot permit it. We do not suggest here that the NLRA automatically defeats all state action taking any account of the collectivebargaining process or every state law distinguishing unionrepresented *1 employees from others. t is enough that we find the Commissioner's policy to have such direct and detrimental effects on the federal statutory rights of employees that it must be pre-empted. The judgment of the Court of Appeals for the Ninth Circuit is accordingly Reversed.
|
Justice Ginsburg
| 2,006 | 5 |
concurring
|
DaimlerChrysler Corp. v. Cuno
|
https://www.courtlistener.com/opinion/145658/daimlerchrysler-corp-v-cuno/
|
Today's decision, the Court rightly points out, is solidly grounded in longstanding precedent, Frothingham v. Mellon, decided with and decisions that antedate current jurisprudence on standing to sue. See ante, at 343, 345. Frothingham held nonjusticiable a federal taxpayer's suit challenging a federal-spending program. See Doremus applied Frothingham's reasoning to a state taxpayer's These decisions exclude from federal-court cognizance claims, not delineated by Congress, presenting generalized grievances. An exception to Frothingham's rule, recognized post-Doremus in covers certain alleged violations of the Establishment Clause. The Flast exception has not been extended to other areas. See Bowen v. Kendrick, 487 U. S. *355 589, 618 (1988); cf. Enrich, Saving the States from Themselves: Commerce Clause Constraints on State Tax Incentives for Business, One can accept, as I do, the nonjusticiability of Frothingham-type federal and state taxpayer suits in federal court without endorsing as well the limitations on standing later declared in ; Valley Christian ; ; and See -66 ; Valley -515 ; -795 and the overturned Court of Appeals opinion, ; Defenders of -585 ; Sunstein, What's Standing after Lujan? Of Citizen Suits, "Injuries," and Article III, ); Fletcher, The Structure of Standing, 98 Yale L. J. 221, 267-270 (1988) (commenting on Flast and Valley ). Noting this large reservation, I concur in the judgment, and in the balance of the Court's opinion.
|
Justice Marshall
| 1,973 | 15 |
majority
|
Federal Maritime Comm'n v. Seatrain Lines, Inc.
|
https://www.courtlistener.com/opinion/108783/federal-maritime-commn-v-seatrain-lines-inc/
|
Section 15 of the Shipping Act, 1916, as amended, 46 U.S. C. 814, requires all persons subject to the Act to file with the Federal Maritime Commission[1]*727 every agreement within specified categories reached with any other person subject to the Act. The section further empowers the Commission to disapprove, cancel, or modify any such agreement which it finds to be unjustly discriminatory, to the detriment of the commerce of the United States, contrary to the public interest, or violative of the terms of the Act.[2] The Commission is *728 directed to approve all other agreements, and the statute expressly provides that agreements so approved are exempt from the antitrust laws.[3] The question presently before us is whether a contract which calls for the acquisition of all the assets of one carrier by another carrier and which creates no ongoing obligations is an "agreement" within the meaning of this section. The question is of some importance, since if such contracts are not approved by the Commission, the antitrust laws are fully applicable to them. See Carnation Cf. United But cf. United States Navigation ; Far East On the other hand, if they are within the Commission's jurisdiction, the Commission may approve them even though they are violative of the antitrust laws, although the Commission must take antitrust principles into account in reaching its decision. See Volkswagenwerk ; *729 In this case, the Court of Appeals for the District of Columbia Circuit concluded that 15 did not confer jurisdiction upon the Commission to approve discrete acquisition-of-assets agreements. In so holding, it followed a prior District Court decision in United but declined to follow a Ninth Circuit holding that the Commission had such jurisdiction. See Matson Navigation We granted certiorari in order to resolve this conflict and because the case posed an important issue concerning the interface between the antitrust laws and the Commission's regulatory powers. We conclude that in enacting 15, Congress did not intend to invest the Commission with the power to shield from antitrust liability merger or acquisition-of-assets agreements which impose no ongoing responsibilities. Rather, Congress intended to invest the Commission with jurisdiction over only those agreements, or those portions of agreements, which created ongoing rights and responsibilities and which, therefore, necessitated continuous Commission supervision. We therefore affirm the judgment below. I This case was initiated when respondent Seatrain Lines, Inc. (Seatrain) filed a protest with the Commission against an agreement reached between Pacific Far East Lines, Inc. (PFEL) and Oceanic Steamship (Oceanic), both of which are also respondents here, whereby Oceanic agreed to sell all its assets to PFEL.
|
Justice Marshall
| 1,973 | 15 |
majority
|
Federal Maritime Comm'n v. Seatrain Lines, Inc.
|
https://www.courtlistener.com/opinion/108783/federal-maritime-commn-v-seatrain-lines-inc/
|
whereby Oceanic agreed to sell all its assets to PFEL. Under the terms of the agreement, Oceanic promised to transfer its entire fleet and all the related equipment together with Oceanic's interest in two container ships then being constructed and all of Oceanic's employees to *730 PFEL. Although Oceanic did not formally merge with PFEL and retained its corporate existence, it was left as a shell corporation wholly without assets. However, Oceanic undertook no continuing obligation not to re-enter the business and compete with PFEL. On October 6, 1970, Oceanic and PFEL notified the Commission of the agreement, but accompanied the notification with an express statement that, in their view, the agreement was not within the Commission's jurisdiction. The Commission published notice of the agreement, see and allowed 10 days for interested parties to protest and request a hearing. Seatrain filed such a request on October 21, 1970, alleging that it was a potential competitor of PFEL and that the acquisition agreement would have anticompetitive consequences and, hence, was contrary to the public-interest standard of the statute. Instead of holding a hearing to investigate these allegations, however, the Commission issued a summary order denying the request for an investigation and approving the agreement. The Commission held that "[w]hile section 15 of the Shipping Act, 1916, requires notice and opportunity for hearing, prior to agreement approval, there is no requirement of law that the mere filing of a protest is sufficient to require that a hearing be held before the Commission may grant approval of any protested agreement." Finding that "the likelihood of any impact at all upon [Seatrain's] operations which might result from approval of the agreement is a matter of mere speculation," the Commission concluded that "Seatrain has no standing in this matter, and that its protest is without substance."[4] *731 After Seatrain's petition to reopen was denied, it appealed the Commission's ruling to the Court of Appeals.[5] Seatrain argued that the Commission was required to hold a hearing on its objection, while the United States, as statutory respondent,[6] and Oceanic and PFEL, as intervenors, argued that the Commission lacked jurisdiction over the agreement. In a comprehensive opinion, the Court of Appeals found it unnecessary to reach the hearing issue, since it found that the Commission "lacks jurisdiction under Section 15 of the Shipping Act, 1916, to approve arrangements of the type involved here, which do not require the continued existence or participation of the parties in such arrangements." 148 U. S. App. D. C. 424, 441, The Court therefore vacated the Commission's decision and directed that the agreement
|
Justice Marshall
| 1,973 | 15 |
majority
|
Federal Maritime Comm'n v. Seatrain Lines, Inc.
|
https://www.courtlistener.com/opinion/108783/federal-maritime-commn-v-seatrain-lines-inc/
|
therefore vacated the Commission's decision and directed that the agreement be removed from its docket. The case then came here on the Commission's petition for certiorari. II At the outset, it must be recognized that the statutory language neither clearly embraces nor clearly excludes discrete merger or acquisition-of-assets agreements. The situation is therefore fundamentally different from that posed in Volkswagenwerk relied upon heavily by petitioner, where we held in the context of an ongoing agreement that the Commission's ruling that the agreement was without its 15 jurisdiction "simply does not square with the structure of the statute." In this case, the statute is ambiguous in its scope and must therefore be read in *732 light of its history and the governing statutory presumptions. By its terms, the statute requires those covered by it to "file immediately with the Commission a true copy, or, if oral, a true and complete memorandum, of every agreement or modification or cancellation thereof" which falls into any one of seven categories. These are agreements "[1] fixing or regulating transportation rates or fares; [2] giving or receiving special rates, accommodations, or other special privileges or advantages; [3] controlling, regulating, preventing, or destroying competition; [4] pooling or apportioning earnings, losses, or traffic; [5] allotting ports or restricting or otherwise regulating the number and character of sailings between ports; [6] limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; [7] or in any manner providing for an exclusive, preferential, or cooperative working arrangement." None of these seven categories expressly refers to a one-time merger or acquisition-of-assets agreement which imposes no continuing obligation and which, indeed, effectively destroys one of the parties to the agreement. The Commission vigorously argues that such agreements can be interpreted as falling within the third categorywhich concerns agreements "controlling, regulating, preventing, or destroying competition."[7] Without more, we might be inclined to agree that many merger agreements probably *733 fit within this category. But a broad reading of the third category would conflict with our frequently expressed view that exemptions from antitrust laws are strictly construed, see, e. g., United and that "[r]epeals of the antitrust laws by implication from a regulatory statute are strongly disfavored, and have only been found in cases of plain repugnancy between the antitrust and regulatory provisions." United As we observed only recently: "When relationships are governed in the first instance by business judgment and not regulatory coercion, courts must be hesitant to conclude that Congress intended to override the fundamental national policies embodied in the antitrust laws." Otter Tail Power
|
Justice Marshall
| 1,973 | 15 |
majority
|
Federal Maritime Comm'n v. Seatrain Lines, Inc.
|
https://www.courtlistener.com/opinion/108783/federal-maritime-commn-v-seatrain-lines-inc/
|
national policies embodied in the antitrust laws." Otter Tail Power See also ; Pan American World Airways, ; ; United This principle has led us to construe the Shipping Act as conferring only a "limited antitrust exemption" in light of the fact that "antitrust laws represent a fundamental national economic policy." Carnation 218.[8] Our reluctance to construe the third category of agreements broadly so as to include discrete merger arrangements is bolstered by the structure of the Act. It should be noted that of the seven categories, six are expressly *734 limited to ongoing arrangements in which both parties undertake continuing responsibilities. Indeed, even the third category refers to agreements "controlling," "regulating" and "preventing" competitionall of which are continuing activities. Only the reference to the destruction of competition supports the Commission's argument that the provision was intended to cover one-time, discrete transactions. But even this reference must be read in light of the final, comprehensive category which refers to agreements "in any manner providing for an exclusive, preferential, or cooperative working arrangement." As the Court of Appeals noted, this last category was clearly meant as a catchall provision, "intended to summarize the type of agreements covered." 148 U. S. App. D. C., at Cf. It is, of course, a familiar canon of statutory construction that such clauses are to be read as bringing within a statute categories similar in type to those specifically enumerated. See 2 J. Sutherland, Statutes and Statutory Construction 4908 et seq. (3d ed. 1943) and cases there cited. Since the summary provision is explicitly limited to "working arrangement[s]" (emphasis added), it is reasonable to conclude that Congress intended this limitation to apply to the specifically enumerated categories as well.[9] This reading of the statute is especially compelling in light of the rest of the statutory scheme, which simply does not make sense if the statute is read to encompass one-time agreements creating no continuing obligations. For example, the statute directs the Commission to "disapprove, *735 cancel or modify any agreement whether or not previously approved by it, that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of this chapter" (emphasis added). The statute thus envisions a continuing supervisory role for the Commission and invests it with power to disallow an agreement after a period of time even though it had initially
|
Justice Marshall
| 1,973 | 15 |
majority
|
Federal Maritime Comm'n v. Seatrain Lines, Inc.
|
https://www.courtlistener.com/opinion/108783/federal-maritime-commn-v-seatrain-lines-inc/
|
after a period of time even though it had initially been permitted. But it is hard to see how the Commission can exercise this supervisory function when there are no continuing obligations to supervise. And we think it unlikely that Congress intended to permit the Commission to approve acquisition-of-assets agreements, allow them to go into effect, and then, sometime in the indefinite future, resuscitate the expired company and unscramble the assets under its continuing power to disapprove agreements previously approved. Similarly, the provision in the Act which provides that "[t]he Commission shall disapprove any agreement. on a finding of inadequate policing of the obligations under it" makes no sense unless the agreements create continuing obligations to police. The statutory requirement that "continued approval" shall not be permitted for agreements "between carriers not members of the same conference or conferences of carriers serving different trades that would otherwise be naturally competitive, unless in the case of agreements between carriers, each carrier, or in the case of agreement between conferences, each conference, retains the right of independent action," suggests an ongoing relationship between the contracting parties. And the requirement that the contracting parties "adopt and maintain reasonable procedures for promptly and fairly *736 hearing and considering shippers' requests and complaints" can only be understood in the context of a continuing relationship between the contracting parties. In short, while the statute neither expressly includes nor expressly excludes one-time acquisition-of-assets arrangements, the words must be read in context, and the context makes undeniably clear the ongoing, supervisory role which the Commission was intended to perform. As the Court of Appeals concluded, "[t]he whole structure of Section 15, not only the first paragraph listing the type agreement covered, shows an intent to grant the Commission authority to deal with agreements of a continuing nature." 148 U. S. App. D. C., at III This construction of the Shipping Act is strongly supported by the legislative history of the Act and by Congress' treatment of other industries in contemporaneous and related statutes. As this Court recognized in most of the legislative history of the Act is contained in the so-called Alexander Report which culminated a comprehensive investigation into the shipping industry by the House Committee on the Merchant Marine and Fisheries chaired by Congressman Alexander. See House Committee on the Merchant Marine and Fisheries, Report on Steamship Agreements and Affiliations in the American Foreign and Domestic Trade, H. R. Doc. No. 805, 63d Cong., 2d Sess. (1914) (hereinafter Alexander Report). Although legislation designed to carry out the Report's recommendations initially failed to pass, see H. R. 17328,
|
Justice Marshall
| 1,973 | 15 |
majority
|
Federal Maritime Comm'n v. Seatrain Lines, Inc.
|
https://www.courtlistener.com/opinion/108783/federal-maritime-commn-v-seatrain-lines-inc/
|
Report's recommendations initially failed to pass, see H. R. 17328, 63d Cong., 2d Sess., a substantially similar bill was enacted in the next Congress and was clearly intended to write the Alexander proposals into law. See H. R. Rep. No. 659, 64th Cong., 1st Sess., 27; S. Rep. No. 689, 64th Cong., 1st Sess., 7. *737 After examining some 80 steamship agreements and conference arrangements, the Alexander Committee concluded that "practically all the established lines operating to and from American ports work in harmonious cooperation, either through written or oral agreements, conference arrangements, or gentlemen's understandings." Alexander Report 281. The Committee found that this network of agreements, many of them secret, provided a comprehensive system for fixing rates and suppressing competition. See As the Committee described the resulting competitive structure of the industry, "The primary object of [the] conferences and agreements is to prevent new lines from being organized in a trade and to crush existing lines which refuse to comply with conditions prescribed by the combination, or which, for other reasons, are not acceptable as members of the conference. The methods which have been adopted from time to time to eliminate competition show the futility of a weak line attempting to enter a trade in opposition to the combined power of the established lines when united by agreement. By resorting to the use of the `fighting ship,' or to unlimited rate cutting, the conference lines soon exhaust the resources of their antagonists. By distributing the loss resulting from the rate war over the several members of the conference, each constituent line suffers proportionately a much smaller loss than the one line which is fighting the entire group. Moreover, the federated lines can conduct the competitive struggle with the comfortable assurance that, following the retirement of the competing line, they are in a position to reimburse themselves through an increase in rates. To allow conferences, therefore, generally means giving the trade to the lines now enjoying it. Only a powerful *738 line can hope to fight its way into the trade, and with the inevitable result, if successful, that it will join the combination or be allowed to exist by virtue of some rate understanding." Alexander Report 304-305. Yet despite these findings, the Committee decided against recommending the outright banning of the conference system. Instead, it chose to place that system under government supervision and to invest an administrative agency with the power to approve or disapprove various conference arrangements. The Committee's reasons for this decision are crucial to the issue presently before us. The Committee found that: "[O]pen competition
|
Justice Marshall
| 1,973 | 15 |
majority
|
Federal Maritime Comm'n v. Seatrain Lines, Inc.
|
https://www.courtlistener.com/opinion/108783/federal-maritime-commn-v-seatrain-lines-inc/
|
issue presently before us. The Committee found that: "[O]pen competition can not be assured for any length of time by ordering existing agreements terminated. The entire history of steamship agreements shows that in ocean commerce there is no happy medium between war and peace when several lines engage in the same trade. Most of the numerous agreements and conference arrangements discussed in the foregoing report were the outcome of rate wars, and represent a truce between the contending lines. To terminate existing agreements would necessarily bring about one of two results: the lines would either engage in rate wars which would mean the elimination of the weak and the survival of the strong, or, to avoid a costly struggle, they would consolidate through common ownership. Neither result can be prevented by legislation, and either would mean a monopoly fully as effective, and it is believed more so, than can exist by virtue of an agreement." Thus, the Committee chose to permit continuation of the conference system, but to curb its abuses by requiring government approval of conference agreements. It did *739 so because it feared that if conferences were abolished, the result would be a net decrease in competition through the mergers and acquisition-of-assets agreements that would result from unregulated rate wars. It is readily apparent that the Commission's reading of the statute would frustrate this legislative purpose. The Committee gave the Commission power to insulate certain anticompetitive arrangements in order to prevent outright mergers. Yet the Commission would have us construe this authority in such a way as to allow it to shield the mergers themselvesthe very thing which Congress intended to prevent. Cf. Carnation -220. The illogical nature of the Commission's argument is especially apparent when one remembers that at the time the Act was passed, the Commission was arguably not permitted to take antitrust policies into account when ruling on proposed agreements. We have construed the "public interest" standard contained in the Act as requiring the Commission to consider the antitrust implications of an agreement before approving it. See Volkswagenwerk n. 20; -244. Cf. Mediterranean Pools Investigation, 9 F. M. C. 264, 289 But the "public interest" criterion was not added to the Act until 1961. See Thus, under the petitioner's interpretation, at the time the Act was passed, the Commission was arguably required to approve merger agreements despite strong antitrust objections to them if the other criteria of the Act were met. We simply cannot believe that Congress intended to require approval of the very arrangements which, as the legislative history clearly shows, it wanted to
|
Justice Marshall
| 1,973 | 15 |
majority
|
Federal Maritime Comm'n v. Seatrain Lines, Inc.
|
https://www.courtlistener.com/opinion/108783/federal-maritime-commn-v-seatrain-lines-inc/
|
which, as the legislative history clearly shows, it wanted to prevent. The legislative history also demonstrates that the Alexander Committee used the term "agreements" as *740 a word of art and that mergers and other arrangements creating no continuing rights and obligations were not included within its definition. As the District Court in United observed, "The catalog or `full classification of these agreements' (i. e., the `agreements' to which the Alexander Committee's attention was primarily directed and to which its recommendations were exclusively directed) does not include a single agreement of merger or other form of corporate reorganization. The `agreements' represented in the Report are all `on-going' in nature. Most of these `agreements' are cooperative working arrangements. These `agreements' describe practices or regular activities in which two or more shipping companies have agreed to participate over a considerable period of time. None of the `agreements' studied by the Alexander Committee bears the slightest resemblance to an agreement of merger, which is essentially a single, discrete event, which transforms the relationship of the merging parties at the instant of merger." -659[10] *741 Moreover, in the few places where the Committee did discuss mergers, it distinguished sharply between such arrangements and the ongoing agreements to which its recommendations were directed. For example, in summarizing its findings the Committee wrote: "The numerous methods of controlling competition between water carriers in the domestic trade, referred to in the preceding pages, may be grouped under three headings, viz, (1) control through the acquisition of water lines or the ownership of accessories to the lines; (2) control through agreements or understandings; and (3) control through special practices." Alexander Report 409 (emphasis added). As the Reynolds court concluded, "Consistently throughout the Report, mergers and other corporate reorganizations, when occasionally mentioned, are referred to by the terms `consolidation by ownership' and `control through acquisition,' or variations thereof. Never is the word `agreement' used in the Report to refer to a merger agreement. *742 It is clear that the Alexander Committee distinguished conceptually between agreements in the sense of on-going, cooperative agreements and agreements of `consolidation' or `acquisition' (of which merger agreements are a form)." Finally, an examination of contemporaneous and related statutes makes clear that when Congress intended to bring acquisitions and mergers under control, it did so in unambiguous language. For example, only a few years prior to passage of the Shipping Act, Congress expressly dealt with mergers involving water carriers. In the Panama Canal Act, 49 U.S. C. 5 (14), Congress provided that: "[I]t shall be unlawful for any carrier [as defined in the Interstate Commerce
|
Justice Marshall
| 1,973 | 15 |
majority
|
Federal Maritime Comm'n v. Seatrain Lines, Inc.
|
https://www.courtlistener.com/opinion/108783/federal-maritime-commn-v-seatrain-lines-inc/
|
unlawful for any carrier [as defined in the Interstate Commerce Act] to own, lease, operate, control, or have any interest whatsoever (by stock ownership or otherwise, either directly indirectly, through any holding company, or by stockholders or directors in common, or in any other manner) in any common carrier by water operated through the Panama Canal or elsewhere with which such carrier aforesaid does or may compete for traffic or any vessel carrying freight or passengers upon said water route or elsewhere with which said railroad or other carrier aforesaid does or may compete for traffic." Similarly, when Congress meant to require agency approval for mergers and acquisitions, it did so unambiguously. Thus, the Interstate Commerce Act, 49 U.S. C. 5 (2) (a) (i) authorizes the Interstate Commerce Commission to give its approval "for two or more carriers to consolidate or merge their properties or franchises, or any part thereof, into one corporation for the ownership, management, and operation of the properties *743 theretofore in separate ownership." In the same manner, the Federal Communications Act, 47 U.S. C. 222 (b) (1) provides: "It shall be lawful, upon application to and approval by the [Federal Communications] Commission as hereinafter provided, for any two or more domestic telegraph carriers to effect a consolidation or merger; and for any domestic telegraph carrier, as a part of any such consolidation or merger or thereafter, to acquire all or any part of the domestic telegraph properties, domestic telegraph facilities, or domestic telegraph operations of any carrier which is not primarily a telegraph carrier." Examination of the Federal Aviation Act is particularly instructive in this regard. Title 49 U.S. C. 1382 (a) requires air carriers to file with the Civil Aeronautics Board for prior approval "every contract or agreement for pooling or apportioning earnings, losses, traffic, service, or equipment, or relating to the establishment of transportation rates, fares, charges, or classifications, or otherwise eliminating destructive, oppressive, or wasteful competition, or for regulating stops, schedules, and character of service, or for other cooperative working arrangements." This provision closely parallels 15 of the Shipping Act, and was obviously modeled after it. Yet Congress clearly thought the provision insufficient to bring discrete merger and acquisition agreements within the Civil Aeronautics Board's jurisdiction, since it enacted another, separate provision requiring Board approval when air carriers "consolidate or merge their properties." 49 U.S. C. 1378 (a) (1).[11] *744 IV In light of these specific grants of merger approval authority, we are unwilling to construe the ambiguous provisions of 15 to serve this purposea purpose for which it obviously was not intended.
|
Justice Marshall
| 1,973 | 15 |
majority
|
Federal Maritime Comm'n v. Seatrain Lines, Inc.
|
https://www.courtlistener.com/opinion/108783/federal-maritime-commn-v-seatrain-lines-inc/
|
this purposea purpose for which it obviously was not intended. As the Court of Appeals found, the House Committee which wrote 15 "neither sought information nor had discussion on ship sale agreements. They were neither part of the problem nor part of the solution." 148 U. S. App. D. C., at If, as petitioner contends, there is now a compelling need to fill the gap in the Commission's regulatory *745 authority, the need should be met in Congress where the competing policy questions can be thrashed out and a resolution found. We are not ready to meet that need by rewriting the statute and legislative history ourselves. But the Commission contends that since it is charged with administration of the statutory scheme, its construction of the statute over an extended period should be given great weight. See, e. g., This proposition may, as a general matter, be conceded, although it must be tempered with the caveat that an agency may not bootstrap itself into an area in which it has no jurisdiction by repeatedly violating its statutory mandate. In this case, however, there is a disjunction between the abstract principle and the empirical data. The court below made a detailed study of the prior Commission cases relied upon by petitioner to bolster its interpretation of the statute and concluded that none of them involved assertion of jurisdiction over a case such as this, where the agreement in question imposed no ongoing obligations. We find it unnecessary to decide whether every prior case decided by the Commission can be reconciled with our opinion today. It is sufficient to note that the cases do not demonstrate the sort of longstanding, clearly articulated interpretation of the statute which would be entitled to great judicial deference, particularly in light of the clear indications that Congress did not intend to vest the Commission with the authority it is now seeking to assert. As this Court held in a related context, "The construction put on a statute by the agency charged with administering it is entitled to deference by the courts, and ordinarily that construction will be affirmed if it has a `reasonable basis in law.' But the courts are the final authorities on issues of *746 statutory construction, FTC v. Colgate-Palmolive 380 U.S. and `are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.'" Volkswagenwerk In this case, we find that the Commission overstepped the limits which Congress placed on its jurisdiction. The judgment of
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
The proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United 654–655 (1929) (Holmes, J., dissenting). Today’s decision rests on a very different principle: no freedom for expres sion that offends prevailing standards of political correct ness in our country’s institutions of higher learning. The Hastings College of the Law, a state institution, permits student organizations to register with the law school and severely burdens speech by unregistered groups. Hastings currently has more than 60 registered groups and, in all its history, has denied registration to exactly one: the Christian Legal Society (CLS). CLS claims that Hastings refused to register the group because the law school administration disapproves of the group’s viewpoint and thus violated the group’s free speech rights. Rejecting this argument, the Court finds that it has been Hastings’ policy for 20 years that all registered or ganizations must admit any student who wishes to join. Deferring broadly to the law school’s judgment about the permissible limits of student debate, the Court concludes 2 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting that this “accept-all-comers” policy, ante, at 1, is both viewpoint-neutral and consistent with Hastings’ pro claimed policy of fostering a diversity of viewpoints among registered student groups. The Court’s treatment of this case is deeply disappoint ing. The Court does not address the constitutionality of the very different policy that Hastings invoked when it denied CLS’s application for registration. Nor does the Court address the constitutionality of the policy that Hastings now purports to follow. And the Court ignores strong evidence that the accept-all-comers policy is not viewpoint neutral because it was announced as a pretext to justify viewpoint discrimination. Brushing aside incon venient precedent, the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups—groups to which, as Hastings candidly puts it, these institutions “do not wish to lend their name[s].” Brief for Respondent Hastings College of Law 11; see also I The Court provides a misleading portrayal of this case. As related by the Court, (1) Hastings, for the past 20 years, has required any student group seeking registration to admit any student who wishes to join, ante, ; (2) the effects of Hastings’ refusal to register CLS have been of questionable importance, see ante, at 24–25; and (3) this case is about CLS’s desire to obtain “a state subsidy,” ante, at 15. I begin by correcting the picture. A The Court bases all of its analysis on
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
picture. A The Court bases all of its analysis on the proposition that the relevant Hastings’ policy is the so-called accept all-comers policy. This frees the Court from the difficult task of defending the constitutionality of either the policy that Hastings actu—and repeatedly—invoked when it Cite as: 561 U. S. (2010) 3 ALITO, J., dissenting denied registration, i.e., the school’s written Nondiscrimi nation Policy, or the policy that Hastings belatedly un veiled when it filed its brief in this Court. Overwhelming evidence, however, shows that Hastings denied CLS’s application pursuant to the Nondiscrimination Policy and that the accept-all-comers policy was nowhere to be found until it was mentioned by a former dean in a deposition taken well after this case began. The events that gave rise to this litigation began in 2004, when a small group of Hastings students sought to register a Hastings chapter of CLS, a national organiza tion of Christian lawyers and law students. All CLS members must sign a Statement of Faith affirming belief in fundamental Christian doctrines, including the belief that the Bible is “the inspired Word of God.” App. 226. In early 2004, the national organization adopted a resolution stating that “[i]n view of the clear dictates of Scripture, unrepentant participation in or advocacy of a sexu immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS mem bership.” The resolution made it clear that “a sexu immoral lifestyle,” in CLS’s view, includes engag ing in “acts of sexual conduct outside of God’s design for marriage between one man and one woman.” It was shortly after this resolution was passed that the Hastings chapter of CLS applied to register with the law school. Hastings sponsors an active program of “registered student organizations” (RSOs) pursuant to the law school’s avowed responsibility to “ensure an opportunity for the expression of a variety of viewpoints” and promote “the highest standards of freedom of expression,” App. to Pet. for Cert. 82a, 74a. During the 2004–2005 school year, Hastings had more than 60 registered groups, including political groups (e.g., the Hastings Democratic Caucus and the Hastings Republicans), religious groups (e.g., the 4 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting Hastings Jewish Law Students Association and the Hast ings Association of Muslim Law Students), groups that promote social causes (e.g., both pro-choice and pro-life groups), groups organized around racial or ethnic identity (e.g., the Black Law Students Association, the Korean American Law Society, La
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
Black Law Students Association, the Korean American Law Society, La Raza Law Students Associa tion, and the Middle Eastern Law Students Association), and groups that focus on gender or sexuality (e.g., the Clara Foltz Feminist Association and Students Raising Consciousness at Hastings). See App. 236–245; Brief for Petitioner 3–4. Not surprisingly many of these registered groups were and are dedicated to expressing a message. For example, Silenced Right, a pro-life group, taught that “all human life from the moment of conception until natural death is sacred and has inherent dignity,” while Law Students for Choice aimed to “defend and expand repro ductive rights,” The American Constitution Society sought “to counter a narrow conservative vi sion” of American law,” and the UC Hastings Student Animal Defense Fund aimed “at protecting the lives and advancing the interests of animals through the legal system,” Groups that are granted registration are entitled to meet on university grounds and to access multiple chan nels for communicating with students and faculty— including posting messages on designated bulletin boards, sending mass e-mails to the student body, distributing material through the Student Information Center, and participating in the annual student organizations fair. App. to Pet. for Cert. 7a, 85a. They may also apply for limited travel funds, at 7a, which appear to total about $4,000 to $5,000 per year, App. 217—or less than $85 per registered group. Most of the funds available to RSOs come from an annual student activity fee that every stu dent must pay. See App. to Pet. for Cert. 89a–93a. Cite as: 561 U. S. (2010) 5 ALITO, J., dissenting When CLS applied for registration, Judy Hansen Chap man, the Director of Hastings’ Office of Student Services, sent an e-mail to an officer of the chapter informing him that “CLS’s bylaws did not appear to be compliant” with the Hastings Nondiscrimination Policy, App. 228, 277, a written policy that provides in pertinent part that “[t]he University of California, Hastings College of the Law shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation,” As far as the record re flects, Ms. Chapman made no mention of an accept-all applicants policy. A few days later, three officers of the chapter met with Ms. Chapman, and she reiterated that the CLS bylaws did not comply with “the religion and sexual orientation provi sions of the Nondiscrimination Policy and that they would need to be amended in order for CLS to become a regis tered student organization.” About a week later, Hastings sent CLS a letter to
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
About a week later, Hastings sent CLS a letter to the same effect. at 228–229, 293–295. On both of these occasions, it appears that not a word was said about an accept-all-comers policy. When CLS refused to change its membership require ments, Hastings denied its request for registration—thus making CLS the only student group whose application for registration has ever been rejected. Brief in Opposition 4. In October 2004, CLS brought this action under 42 U.S. C. against the law school’s dean and other school officials, claiming, among other things, that the law school, by enacting and enforcing the Nondiscrimination Policy, had violated CLS’s First Amendment right to freedom of speech. App. 78. In May 2005, Hastings filed an answer to CLS’s first amended complaint and made an admission that is signifi cant for present purposes. In its complaint, CLS had alleged that the Nondiscrimination Policy discriminates 6 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting against religious groups because it prohibits those groups “from selecting officers and members dedicated to a par ticular set of religious ideals or beliefs” but “permits politi cal, social and cultural student organizations to select officers and members dedicated to their organization’s ideals and beliefs.” In response, Hastings admitted that its Nondiscrimination Policy “permits politi cal, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs.” The Court states that “Hastings interprets the Nondiscrimination Policy, as it relates to the RSO program, to mandate acceptance of all comers.” Ante, at 4. But this admission in Hastings’ answer shows that Hastings had not adopted this inter pretation when its answer was filed. Within a few months, however, Hastings’ position changed. In July 2005, Mary Kay Kane, then the dean of the law school, was deposed, and she stated: “It is my view that in order to be a registered student organization you have to allow all of our students to be members and full participants if they want to.” App. 343. In a declaration filed in October 2005, Ms. Chapman provided a more developed explanation, stating: “Hastings interprets the Nondiscrimination Policy as requiring that student or ganizations wishing to register with Hastings allow any Hastings student to become a member and/or seek a lead ership position in the organization.” Hastings claims that this accept-all-comers policy has existed since 1990 but points to no evidence that the policy was ever put in writing or brought to the attention of members of the law school community prior
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
the attention of members of the law school community prior to the dean’s deposition. Indeed, Hastings has adduced no evidence of the policy’s existence before that date. And while Dean Kane and Ms. Chapman stated, well after this litigation had begun, that Hastings had such a policy, neither they nor any other Hastings official has ever stated in a deposi Cite as: 561 U. S. (2010) 7 ALITO, J., dissenting tion, affidavit, or declaration when this policy took effect. Hastings’ effort to portray the accept-all-comers policy as merely an interpretation of the Nondiscrimination Policy runs into obvious difficulties. First, the two policies are simply not the same: The Nondiscrimination Policy proscribes discrimination on a limited number of specified grounds, while the accept-all-comers policy outlaws all selectivity. Second, the Nondiscrimination Policy applies to everything that Hastings does, and the law school does not follow an accept-all-comers policy in activities such as admitting students and hiring faculty. In an effort to circumvent this problem, the Court writes that “Hastings interprets the Nondiscrimination Policy, as it relates to the RSO program, to mandate acceptance of all comers.” Ante, at 4 (emphasis added). This puts Hastings in the implausible position of maintaining that the Non discrimination Policy means one thing as applied to the RSO program and something quite different as applied to all of Hastings’ other activities. But the Nondiscrimina tion Policy by its terms applies fully to all components of the law school, “including administration [and] faculty.” App. 220. Third, the record is replete with evidence that, at least until Dean Kane unveiled the accept-all-comers policy in July 2005, Hastings routinely registered student groups with bylaws limiting membership and leadership positions to those who agreed with the groups’ viewpoints. For example, the bylaws of the Hastings Democratic Caucus provided that “any full-time student at Hastings may become a member of HDC so long as they do not exhibit a consistent disregard and lack of respect for the objective of the organization as stated in Article 3, Section 1.” App. to Pet. for Cert. 118a (emphasis added). The constitution of the Association of Trial Lawyers of America at Hastings provided that every member must “adhere to the objec tives of the Student Chapter as well as the mission of 8 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting ATLA.” at 110a. A student could become a member of the Vietnamese American Law Society so long as the student did not “exhibit a consistent disregard and lack of respect for the objective of the organization,”
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
and lack of respect for the objective of the organization,” which cen ters on a “celebrat[ion] [of] Vietnamese culture.” at 146a–147a. Silenced Right limited voting membership to students who “are committed” to the group’s “mission” of “spread[ing] the pro-life message.” at 142a–143a. La Raza limited voting membership to “students of Raza background.” App. 192. Since Hastings requires any student group applying for registration to submit a copy of its bylaws, see at 249–250, Hastings cannot claim that it was unaware of such provisions. And as noted, CLS was denied registration precisely because Ms. Chapman re viewed its bylaws and found them unacceptable. We are told that, when CLS pointed out these discrep ancies during this litigation, Hastings took action to en sure that student groups were in fact complying with the law school’s newly disclosed accept-all-comers policy. For example, Hastings asked La Raza to revise its bylaws to allow all students to become voting members. App. to Pet. for Cert. 66a. See also Brief for State of Michigan et al. as Amici Curiae 2, n. 1 (relating anecdot that Hastings recently notified the Hastings Democrats that “to main tain the ’s standing as a student organization,” it must “open its membership to all students, regardless of party affiliation”). These belated remedial efforts suggest, if anything, that Hastings had no accept-all-comers policy until this litigation was well under way. Fin, when Hastings filed its brief in this Court, its policy, which had already evolved from a policy prohibiting certain specified forms of discrimination into an accept-all comers policy, underwent yet another transformation. Now, Hastings claims that it does not re have an accept-all-comers policy; it has an accept-some-comers policy. Hastings’ current policy, we are told, “does not Cite as: 561 U. S. (2010) 9 ALITO, J., dissenting foreclose neutral and gener applicable membership requirements unrelated to ‘status or beliefs.’ ” Brief for Respondent Hastings College of Law 5. Hastings’ brief goes on to note with seeming approval that some regis tered groups have imposed “even conduct requirements.” Hastings, however, has not told us which “conduct requirements” are allowed and which are not—although presumably requirements regarding sexual conduct fall into the latter category. When this case was in the District Court, that court took care to address both the Nondiscrimination Policy and the accept-all-comers policy. See, e.g., App. to Pet. for Cert. 8a–9a, 16a–17a, 21a–24a, 26a, 27a, 32a, 44a, 63a. On appeal, however, a panel of the Ninth Circuit, like the Court today, tot ignored the Nondiscrimination Policy. CLS’s argument in the Ninth Circuit centered on the Nondiscrimination Policy, and CLS argued
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
Ninth Circuit centered on the Nondiscrimination Policy, and CLS argued strenuously, as it had in the District Court, that prior to the former dean’s deposition, numerous groups had been permitted to re strict membership to students who shared the groups’ views.1 Nevertheless, the Ninth Circuit disposed of CLS’s —————— 1 CLS consistently argued in the courts below that Hastings had ap plied its registration policy in a discriminatory manner. See, e.g., Plaintiff’s Notice of Motion for Summary Judgment and Memorandum in Support of Motion for Summary Judgment in No. C 04–4484–JSW (ND Cal.), pp. 6–7 (“Hastings allows other registered student organiza tions to require that their members and/or leaders agree with the organization’s beliefs and purposes”). CLS took pains to bring forward evidence to substantiate this claim. See at 7–8. CLS’s brief in the Court of Appeals reiterated its contention that Hastings had not required all RSOs to admit all student applicants. CLS’s brief stated that “Hastings allows other registered student organizations to require that their leaders and/or members agree with the organization’s beliefs and purposes.” Brief for Appellant in No. 06– 15956 (CA9), pp. 14–15 (citing examples). See also 4–55 (“Hast ings routinely recognizes student groups that limit membership or leadership on the basis of belief. Hastings’ actual practice demon strates that the forum is not reserved to student organizations that do 10 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting appeal with a two-sentence, not-precedential opinion that solely addressed the accept-all-comers policy. Christian Legal Soc. Chapter of Univ. of Cal. v. Kane, 319 Fed. Appx. 645–646 (2009). Like the majority of this Court, the Ninth Circuit relied on the following Joint Stipulation, which the parties filed in December 2005, well after Dean Kane’s deposition: “Hastings requires that registered student organiza tions allow any student to participate, become a mem ber, or seek leadership positions in the organization, regardless of their status or beliefs.” App. 221. Citing the binding effect of stipulations, the majority sternly rejects what it terms “CLS’s unseemly attempt to escape from the stipulation and shift its target to [the Nondiscrimination Policy].” Ante, at 11–12. I agree that the parties must be held to their Joint Stipulation, but the terms of the stipulation should be respected. What was admitted in the Joint Stipulation filed in December 2005 is that Hastings had an accept-all comers policy. CLS did not stipulate that its application had been denied more than a year earlier pursuant to such a policy. On the contrary, the Joint Stipulation notes that the reason repeatedly given
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
contrary, the Joint Stipulation notes that the reason repeatedly given by Hasting at that time was that the CLS bylaws did not comply with the Nondis crimination Policy. See App. 228–229. Indeed, the parties did not even stipulate that the accept-all-comers policy existed in the fall of 2004. In addition, Hastings itself is now attempting to walk away from this stipulation by disclosing that its real policy is an accept-some-comers policy. —————— not discriminate on the basis of belief”). Responding to these argu ments, the law school remarked that CLS “repeatedly ass that ‘Hastings routinely recognizes student groups that limit membership or leadership on the basis of belief.’ ” Brief for Appellees in No. 06–15956 (CA9), p. 4. Cite as: 561 U. S. (2010) 11 ALITO, J., dissenting The majority’s insistence on the binding effect of stipu lations contrasts sharply with its failure to recognize the binding effect of a party’s admissions in an answer. See American Title Insurance Co. v. Corp., 861 F.2d 224, 226 (“Factual assertions in pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the party who made them”); Bakersfield Westar Ambulance, (quoting As noted above, Hastings admitted in its answer, which was filed prior to the former dean’s deposi tion, that at least as of that time, the law school did not follow an accept-all-comers policy and instead allowed “political, social, and cultural student organizations to select officers and members who are dedicated to a par ticular set of ideals or beliefs.” App. 93. B The Court also distorts the record with respect to the effect on CLS of Hastings’ decision to deny registration. The Court quotes a letter written by Hastings’ general counsel in which she stated that Hastings “ ‘would be pleased to provide [CLS] the use of Hastings facilities for its meetings and activities.’ ” Ante, at 6 (quoting App. 294). Later in its opinion, the Court reiterates that “Hast ings offered CLS access to school facilities to conduct meetings,” ante, at 24, but the majority does not mention that this offer was subject to important qualifications. As Hastings’ attorney put it in the District Court, Hastings told CLS: “ ‘Hastings allows community groups to some degree to use its facilities, sometimes on a pay basis, I understand, if they’re available after priority is given to registered organizations’. We offered that.” App. 442. The Court also fails to mention what happened when CLS attempted to take advantage of Hastings’ offer. On August 19, 2005, the local CLS president sent an e-mail to 12 CHRISTIAN LEGAL SOC. CHAPTER OF
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
sent an e-mail to 12 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting Ms. Chapman requesting permission to set up an “advice table” on a campus patio on August 23 and 24 so that members of CLS could speak with students at the begin ning of the fall semester. This request— merely to set up a table on a patio—could hardly have interfered with any other use of the law school’s premises or cost the school any money. But although the request was labeled “time sensitive,” ib Ms. Chapman did not respond until the dates in question had passed, and she then advised the student that all further inquiries should be made through CLS’s attorney. at 297–298. In September 2005, CLS tried again. Through counsel, CLS sought to reserve a room on campus for a guest speaker who was scheduled to appear on a specified date. at 302–303. Noting Ms. Chapman’s tardy response on the prior occasion, the attorney asked to receive a re sponse before the scheduled date, but once again no an swer was given until after the date had passed. at 300. Other statements in the majority opinion make it seem as if the denial of registration did not hurt CLS at all. The Court notes that CLS was able to hold Bible-study meet ings and other events. Ante, at 6. And “[a]lthough CLS could not take advantage of RSO-specific methods of com munication,” the Court states, “the advent of electronic media and social-networking sites reduces the importance of those channels.” Ante, at 24. At the beginning of the 2005 school year, the Hastings CLS group had seven members, App. to Pet. for Cert. a, so there can be no suggestion that the group flourished. And since one of CLS’s principal claims is that it was subjected to discrimination based on its viewpoint, the majority’s emphasis on CLS’s ability to endure that dis crimination—by using private facilities and means of communication—is quite amazing. This Court does not customarily brush aside a claim of Cite as: 561 U. S. (2010) ALITO, J., dissenting unlawful discrimination with the observation that the effects of the discrimination were re not so bad. We have never before taken the view that a little viewpoint discrimination is acceptable. Nor have we taken this approach in other discrimination cases. C Fin, I must comment on the majority’s emphasis on funding. According to the majority, CLS is “seeking what is effectively a state subsidy,” ante, at 15, and the question presented in this case centers on
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
15, and the question presented in this case centers on the “use of school funds,” ante, at 1. In fact, funding plays a very small role in this case. Most of what CLS sought and was denied—such as permission to set up a table on the law school patio— would have been virtu cost free. If every such activity is regarded as a matter of funding, the First Amendment rights of students at public universities will be at the mercy of the administration. As CLS notes, “[t]o univer sity students, the campus is their world. The right to meet on campus and use campus channels of communica tion is at least as important to university students as the right to gather on the town square and use local communi cation forums is to the citizen.” Reply Brief for Petitioner II To appreciate how far the Court has strayed, it is in structive to compare this case with Healy v. James, 408 U.S. 169 (1972), our only First Amendment precedent involving a public college’s refusal to recognize a student group. The group in Healy was a local chapter of the Students for a Democratic Society (SDS). When the stu dents who applied for recognition of the chapter were asked by a college committee whether they would “ ‘re spond to issues of violence as other S.D.S. chapters have,’ ” their answer was that their “ ‘action would have to be 14 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting dependent upon each issue.’ ” at 172–173. They simi larly refused to provide a definitive answer when asked whether they would be willing to “use any means possible” to achieve their aims. The president of the college refused to allow the group to be recognized, con cluding that the philosophy of the SDS was “antithetical to the school’s policies” and that it was doubtful that the local chapter was independent of the national organiza tion, the “ ‘published aims and philosophy’ ” of which in cluded “ ‘disruption and violence.’ ” at 174–175, and n. 4. The effects of nonrecognition in Healy were largely the same as those present here. The SDS was denied the use of campus facilities, as well as access to the customary means used for communication among the members of the college community. 181–182. The lower federal courts held that the First Amendment rights of the SDS chapter had not been violated, and when the case reached this Court, the college, much like today’s majority, sought to minimize the
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
the college, much like today’s majority, sought to minimize the effects of nonrecognition, arguing that the SDS members “still may meet as a group off campus, that they still may distribute written material off campus, and that they still may meet together infor m on campus as individuals.” at 182–183. This Court took a different view. The Court held that the denial of recognition substanti burdened the stu dents’ right to freedom of association. After observing that “[t]he primary impediment to free association flowing from nonrecognition is the denial of use of campus facilities for meetings and other appropriate purposes,” the Court continued: “Petitioners’ associational interests also were cir cumscribed by the denial of the use of campus bulletin boards and the school newspaper. If an organization is to remain a viable entity in a campus community in Cite as: 561 U. S. (2010) 15 ALITO, J., dissenting which new students enter on a regular basis, it must possess the means of communicating with these stu dents. Moreover, the organization’s ability to partici pate in the intellectual give and take of campus de bate, and to pursue its stated purposes, is limited by denial of access to the customary media for communi cating with the administration, faculty members, and other students. Such impediments cannot be viewed as insubstantial.” –182. It is striking that all of these same burdens are now borne by CLS. CLS is prevented from using campus facili ties—unless at some future time Hastings chooses to provide a timely response to a CLS request and allow the group, as a favor or perhaps in exchange for a fee, to set up a table on the patio or to use a room that would other wise be unoccupied. And CLS, like the SDS in Healy, has been cut off from “the customary media for communicating with the administration, faculty members, and other students.” –182. It is also telling that the Healy Court, unlike today’s majority, refused to defer to the college president’s judg ment regarding the compatibility of “sound educational policy” and free speech rights. The same deference argu ments that the majority now accepts were made in defense of the college president’s decision to deny recognition in Healy. Respondents in that case emphasized that the college president, not the courts, had the responsibility of administering the institution and that the courts should allow him “ ‘wide discretion in determining what ac tions are most compatible with its educational objectives.’ ” Brief for Respondents in Healy v. James, O. T. 1971, No. 71–452, pp. 7–8. A supporting amicus contended
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
T. 1971, No. 71–452, pp. 7–8. A supporting amicus contended that college officials “must be allowed a very broad discretion in formulating and implementing policies.” Brief for Board of Trustees, California State Colleges 6. Another argued 16 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting that universities should be permitted to impose restric tions on speech that would not be tolerated elsewhere. Brief for American Association of Presidents of Independ ent Colleges and Universities 11–12. The Healy Court would have none of this. Unlike the Court today, the Healy Court emphatic rejected the proposition that “First Amendment protections should apply with less force on college campuses than in the community at large.” And on one key question after another—whether the local SDS chapter was independent of the national organization, whether the group posed a substantial threat of material disruption, and whether the students’ responses to the committee’s questions about violence and disruption signified a will ingness to engage in such activities—the Court drew its own conclusions, which differed from the college president’s. The Healy Court was true to the principle that when it comes to the interpretation and application of the right to free speech, we exercise our own independent judgment. We do not defer to Congress on such matters, see Sable Communications of Cal., (1989), and there is no reason why we should bow to uni versity administrators. In the end, I see only two possible distinctions between Healy and the present case. The first is that Healy did not involve any funding, but as I have noted, funding plays only a small part in this case. And if Healy would other wise prevent Hastings from refusing to register CLS, I see no good reason why the potential availability of funding should enable Hastings to deny all of the other rights that go with registration. This leaves just one way of distinguishing Healy: the identity of the student group. In Healy, the Court warned that the college president’s views regarding the philosophy of the SDS could not “justify the denial of First Amend Cite as: 561 U. S. (2010) 17 ALITO, J., dissenting ment rights.” Here, too, disapproval of CLS cannot justify Hastings’ actions.2 III The Court pays little attention to Healy and instead focuses solely on the question whether Hastings’ registra tion policy represents a permissible regulation in a limited public forum. While I think that Healy is largely control ling, I am content to address the constitutionality of Hast ings’ actions under our limited public forum cases, which
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
Hast ings’ actions under our limited public forum cases, which lead to exactly the same conclusion. In this case, the forum consists of the RSO program. Once a public university opens a limited public forum, it “must respect the lawful boundaries it has itself set.” Rosen v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). The university “may not exclude speech where its distinction is not ‘reasonable in light of the purpose served by the forum.’ ” (quoting Corne lius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985)). And the university must maintain strict viewpoint neutrality. Board of Regents of Univ. of Wis. ; Rosen This requirement of viewpoint neutrality extends to the expression of religious viewpoints. In an unbroken line of decisions analyzing private religious speech in limited public forums, we have made it perfectly clear that “[r]eligion is [a] viewpoint from which ideas are conveyed.” —————— 2 The Court attempts to distinguish Healy on the ground that there the college “explicitly denied the student group official recognition because of the group’s viewpoint.” Ante, at 17, n. 15. The same, how ever, is true here. CLS was denied recognition under the Nondiscrimi nation Policy because of the viewpoint that CLS sought to express through its membership requirements. See ; infra, at 18–23. And there is strong evidence that Hastings abruptly shifted from the Nondiscrimination Policy to the accept-all-comers policy as a pretext for viewpoint discrimination. See infra, at 31–35. 18 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting Good News 112, and n. 4 (2001). See Rosen, ; Lamb’s ; v. Vincent, 454 U.S. 263, 277 (1981). We have applied this analysis in cases in which student speech was restricted because of the speaker’s religious viewpoint, and we have consistently concluded that such restrictions constitute viewpoint discrimination. E.g., Rosen, at 845–846; n. 5, 269, 277; see also Good News at 106– 107, 109–110; Lamb’s at 392–393, 394. We have also stressed that the rules applicable in a limited public forum are particularly important in the university setting, where “the State acts against a background of tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.” Rosen, IV Analyzed under this framework, Hastings’ refusal to register CLS pursuant to its Nondiscrimination Policy plainly fails.3 As previously noted, when Hastings refused —————— 3 CLS sought a declaratory judgment that this policy is unconstitu tional and an injunction prohibiting its enforcement. See App. 80. Particularly in light of
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
prohibiting its enforcement. See App. 80. Particularly in light of Hastings’ practice of changing its announced policies, these requests are not moot. It is well settled that the volun tary cessation of allegedly unlawful conduct does not moot a case in which the legality of that conduct is challenged. See City of Mesquite v. Aladdin’s Castle, Inc., ; see also Allee v. Medrano, ; DeFunis v. Odegaard, 416 U.S. 312, 318 (per curiam). If the rule were otherwise, the courts would be compelled to leave “ ‘[t]he defendant free to return to his old ways.’ ” United ). Here, there is certainly a risk that Hastings will “return to [its] old ways,” and therefore CLS’s requests for declaratory and injunctive relief with respect to the Non Cite as: 561 U. S. (2010) 19 ALITO, J., dissenting to register CLS, it claimed that the CLS bylaws impermis sibly discriminated on the basis of religion and sexual orientation. As interpreted by Hastings and applied to CLS, both of these grounds constituted viewpoint discrimination. Religion. The First Amendment protects the right of “ ‘expressive association’ ”—that is, “the right to associate for the purpose of speaking.” (2006) ). And the Court has recognized that “[t]he forced inclusion of an unwanted person in a group in fringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.” With one important exception, the Hastings Nondis crimination Policy respected that right. As Hastings stated in its answer, the Nondiscrimination Policy “per mit[ted] political, social, and cultural student organiza tions to select officers and members who are dedicated to a particular set of ideals or beliefs.” App. 93. But the policy singled out one category of expressive associations for disfavored treatment: groups formed to express a religious message. Only religious groups were required to admit students who did not share their views. An environmen talist group was not required to admit students who re —————— discrimination Policy are not moot. If, as the Court assumes, the parties stipulated that the only relevant policy is the accept-all-comers policy, then the District Court should not have addressed the constitu tionality of the Nondiscrimination Policy. But the District Court approved both policies, and the Court of Appeals affirmed the judg ment. That judgment remains binding on CLS, so it is only appropriate that CLS be permitted to challenge that determination now. The question of the constitutionality of the Nondiscrimination Policy falls comfortably within the question presented, and CLS raised that issue in its brief.
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
question presented, and CLS raised that issue in its brief. See Brief for Petitioner 41–46. 20 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting jected global warming. An animal rights group was not obligated to accept students who supported the use of animals to test cosmetics. But CLS was required to admit avowed atheists. This was patent viewpoint discrimina tion. “By the very terms of the [Nondiscrimination Policy], the University select[ed] for disfavored treatment those student [groups] with religious viewpoints.” Rosen, 515 U.S., It is no wonder that the Court makes no attempt to defend the constitutionality of the Nondiscrimination Policy. Unlike the Court, JUSTICE STEVENS attempts a defense, contending that the Nondiscrimination Policy is viewpoint neutral. But his arguments are squarely contrary to established precedent. JUSTICE STEVENS first argues that the Nondiscrimina tion Policy is viewpoint neutral because it “does not regu late expression or belief at all” but instead regulates con duct. See ante, at 2 (concurring opinion). This Court has held, however, that the particular conduct at issue here constitutes a form of expression that is protected by the First Amendment. It is now well established that the First Amendment shields the right of a group to engage in expressive association by limiting membership to persons whose admission does not significantly interfere with the group’s ability to convey its views. See at 648; 4 U.S. 609, (1984); see also New York State Assn., (acknowledging that an “association might be able to show that it is organized for specific expressive purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion”); at 2–269 (“[T]he First Amendment rights of speech and association extend to the campuses of state universities”). Indeed, the opinion of the Court, which Cite as: 561 U. S. (2010) 21 ALITO, J., dissenting JUSTICE STEVENS joins, acknowledges this rule. See ante, at JUSTICE STEVENS also maintains that the Nondiscrimi nation Policy is viewpoint neutral because it prohibits all groups, both religious and secular, from engaging in reli gious speech. See ante, at 3. This argument is also con trary to established law. In Rosen, the dissent, which JUSTICE STEVENS joined, made exactly this argu ment. See –896 (opinion of Souter, J.). The Court disagreed, holding that a policy that treated secular speech more favorably than religious speech dis criminated on the basis of 515 U.S., The Court reaffirmed this holding in Good News
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
515 U.S., The Court reaffirmed this holding in Good News 533 U.S., at 112, and n. 4. Here, the Nondiscrimination Policy permitted member ship requirements that expressed a secular viewpoint. See App. 93. (For example, the Hastings Democratic Caucus and the Hastings Republicans were allowed to exclude members who disagreed with their parties’ platforms.) But religious groups were not permitted to express a religious viewpoint by limiting membership to students who shared their religious viewpoints. Under established —————— 4 In Rosen the university argued that the denial of student activity funding for all groups that sought to express a religious view point was “faci neutral.” See Brief for Respondents in Rosen v. Rector & Visitors of Univ. of Va., O. T. 1994, No. 94–329, p. 2; 515 U.S., at 824–825. The Rosen dissenters agreed that the univer sity’s policy did not constitute viewpoint discrimination because “it applie[d] to Muslim and Jewish and Buddhist advocacy as well as to Christian,” and it “applie[d] to agnostics and atheists as well as it does to deists and theists.” at 895–896 (opinion of Souter, J.); cf. ante, at 2–3 (opinion of STEVENS, J.) (asserting that under Hastings’ Nondis crimination Policy “all acts of religious discrimination” are prohibited (emphasis added)). But the Court flatly rejected this argument. See 515 U.S., (“Religion may be a vast area of inquiry, but it also provides, as it did here, a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered”). 22 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ ALITO, J., dissenting precedent, this was viewpoint discrimination.5 It bears emphasis that permitting religious groups to limit membership to those who share the groups’ beliefs would not have the effect of allowing other groups to dis criminate on the basis of religion. It would not mean, for example, that fraternities or sororities could exclude stu dents on that basis. As our cases have recognized, the right of expressive association permits a group to exclude an applicant for membership only if the admission of that person would “affec[t] in a significant way the group’s ability to advocate public or private viewpoints.” 530 U.S., Groups that do not engage in expressive association have no such right. Similarly, groups that are dedicated to expressing a viewpoint on a secular topic (for example, a political or ideological viewpoint) would have no basis for limiting membership based on religion be cause the presence of members with diverse religious beliefs would have no effect on the group’s ability to ex press its
|
Justice Alito
| 2,010 | 8 |
dissenting
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
no effect on the group’s ability to ex press its views. But for religious groups, the situation is very different. This point was put well by a coalition of Muslim, Christian, Jewish, and Sikh groups: “Of course there is a strong interest in prohibiting religious discrimi nation where religion is irrelevant. But it is fundamen t confused to apply a rule against religious discrimina tion to a religious association.” Brief for American Islamic Congress et al. as Amici Curiae 3. Sexual orientation. The Hastings Nondiscrimination Policy, as interpreted by the law school, also discriminated on the basis of viewpoint regarding sexual morality. CLS —————— 5 It is not at all clear what JUSTICE STEVENS means when he refers to religious “status” as opposed to religious belief. See ante, at 2, n. 1. But if by religious status he means such things as the religion into which a person was born or the religion of a person’s ancestors, then prohibiting discrimination on such grounds would not involve viewpoint discrimination. Such immutable characteristics are quite different from viewpoint. Cite as: 561 U. S. (2010) 23 ALITO, J., dissenting has a particular viewpoint on this subject, namely, that sexual conduct outside marriage between a man and a woman is wrongful. Hastings would not allow CLS to express this viewpoint by limiting membership to persons willing to express a sincere agreement with CLS’s views. By contrast, nothing in the Nondiscrimination Policy prohibited a group from expressing a contrary viewpoint by limiting membership to persons willing to endorse that group’s beliefs. A Free Love could require mem bers to affirm that they reject the traditional view of sex ual morality to which CLS adheres. It is hard to see how this can be viewed as anything other than viewpoint discrimination. V Hastings’ current policy, as announced for the first time in the brief filed in this Court, fares no better than the policy that the law school invoked when CLS’s application was denied. According to Hastings’ brief, its new policy, contrary to the position taken by Hastings officials at an earlier point in this litigation, re does not require a student group to accept all comers. Now, Hastings ex plains, its policy allows “neutral and gener applicable membership requirements unrelated to ‘status or beliefs.’ ” Brief for Respondent Hastings College of Law 5. As ex amples of permissible membership requirements, Hast ings mentions academic standing, writing ability, “dues, attendance, and even conduct requirements.” (em phasis added). It seems doubtful that Hastings’ new policy permits registered groups to condition membership eligibility on whatever “conduct requirements” they
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.