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Justice Souter
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Sosa v. Alvarez-Machain
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https://www.courtlistener.com/opinion/137006/sosa-v-alvarez-machain/
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refinement." (179) In the years of the early Republic, this law of nations comprised two principal elements, the first covering the general norms governing the behavior of national states with each other: "the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights," E. de Vattel, Law of Nations, Preliminaries 3 (J. Chitty et al. transl. and ed. 1883) (hereinafter Vattel) (footnote omitted), or "that code of public instruction which defines the rights and prescribes the duties of nations, in their intercourse with each other," 1 James Kent Commentaries *1. This aspect of the law of nations thus occupied the executive and legislative domains, not the judicial. See 4 W. Blackstone, Commentaries on the Laws of England 8 (179) (hereinafter Commentaries) ("[O]ffences against" the law of nations are "principally incident to whole states or nations"). *715 The law of nations included a second, more pedestrian element, however, that did fall within the judicial sphere, as a body of judge-made law regulating the conduct of individuals situated outside domestic boundaries and consequently carrying an international savor. To Blackstone, the law of nations in this sense was implicated "in mercantile questions, such as bills of exchange and the like; in all marine causes, relating to freight, average, demurrage, insurances, bottomry; [and] in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills." at 7. The law merchant emerged from the customary practices of international traders and admiralty required its own transnational regulation. And it was the law of nations in this sense that our precursors spoke about when the Court explained the status of coast fishing vessels in wartime grew from "ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law." The Paquete 175 U.S. 77, 8 There was, finally, a sphere in which these rules binding individuals for the benefit of other individuals overlapped with the norms of state relationships. Blackstone referred to it when he mentioned three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy. 4 Commentaries 8. An assault against an ambassador, for example, impinged upon the sovereignty of the foreign nation and if not adequately redressed could rise to an issue of war. See Vattel 43-44. It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the time threatening serious consequences in international affairs, that was probably on minds of the men who drafted the
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was probably on minds of the men who drafted the ATS with its reference to tort. 2 Before there was any ATS, a distinctly American preoccupation with these hybrid international norms had taken *71 shape owing to the distribution of political power from independence through the period of confederation. The Continental Congress was hamstrung by its inability to "cause infractions of treaties, or of the law of nations to be punished," J. Madison, Journal of the Constitutional Convention 0 (E. Scott ed. 1893), and in 1781 the Congress implored the to vindicate rights under the law of nations. In words that echo Blackstone, the congressional resolution called upon state legislatures to "provide expeditious, exemplary and adequate punishment" for "the violation of safe conducts or passports, of hostility against such as are in amity with the United infractions of the immunities of ambassadors and other public ministers [and] "infractions of treaties and conventions to which the United are a party." 21 Journals of the Continental Congress 113-1137 (G. Hunt ed. 1912) (hereinafter Journals of the Continental Congress). The resolution recommended that the "authorise suits for damages by the party injured, and for compensation to the United for damage sustained by them from an injury done to a foreign power by a citizen." ; cf. Vattel 43-44 ("Whoever offends a public minister should be punished, and the state should, at the expense of the delinquent, give full satisfaction to the sovereign who has been offended in the person of his minister"). Apparently only one State acted upon the recommendation, see Public Records of the State of Connecticut, 1782, pp. 82, 83 (L. Larabee ed. 1982) (1942 compilation, exact date of Act unknown), but Congress had done what it could to signal a commitment to enforce the law of nations. Appreciation of the Continental Congress's incapacity to deal with this class of cases was intensified by the so-called Marbois incident of May 1784, in which a French adventurer, De Longchamps, verbally and physically assaulted the Secretary of the French Legion in Philadelphia. See Respublica[11] Congress called again for state legislation addressing such matters, and concern over the inadequate vindication of the law of nations persisted through the time of the Constitutional Convention. See 1 Records of the Federal Convention of 1787, p. 25 (M. Farrand ed. 1911) (speech of J. Randolph). During the Convention itself, in fact, a New York City constable produced a reprise of the Marbois affair and Secretary Jay reported to Congress on the Dutch Ambassador's protest, with the explanation that "`the federal government does not appear to be vested
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that "`the federal government does not appear to be vested with any judicial Powers competent to the Cognizance and Judgment of such Cases.'" Casto, Law of Nations 494, and n. 152. The Framers responded by vesting the Supreme Court with original jurisdiction over "all Cases affecting Ambassadors, other public ministers and Consuls." U. S. Const., Art. III, 2, and the First Congress followed through. The Judiciary Act reinforced this Court's original jurisdiction over suits brought by diplomats, see ch. 20, 13, created alienage jurisdiction, 11, and, of course, included the ATS, 9. See generally Randall, Federal Jurisdiction over International Law Claims: Inquiries into the Alien Tort Statute, 18 N. Y. U. J. Int'l L. & Pol. 1, 15-21 (hereinafter *718 Randall) (discussing foreign affairs implications of the Judiciary Act); W. Casto, The Supreme Court in the Early Republic 27-53 3 Although Congress modified the draft of what became the Judiciary Act, see generally Warren, New Light on the History of the Federal Judiciary Act of 1789, it made hardly any changes to the provisions on aliens, including what became the ATS, see Casto, Law of Nations 498. There is no record of congressional discussion about private actions that might be subject to the jurisdictional provision, or about any need for further legislation to create private remedies; there is no record even of debate on the section. Given the poverty of drafting history, modern commentators have necessarily concentrated on the text, remarking on the innovative use of the word "tort," see, e. g., Sweeney, A Tort only in Violation of the Law of Nations, and the statute's mixture of terms expansive ("all suits"), see, e. g., Casto, Law of Nations 500, and restrictive ("for a tort only"), see, e. g., Randall 28-31 (limiting suits to torts, as opposed to commercial actions, especially by British plaintiffs).[12] The historical scholarship has also placed the ATS within the competition between federalist and antifederalist forces over the national role in foreign relations. But despite considerable scholarly attention, it is fair to say *719 that a consensus understanding of what Congress intended has proven elusive. Still, the history does tend to support two propositions. First, there is every reason to suppose that the First Congress did not pass the ATS as a jurisdictional convenience to be placed on the shelf for use by a future Congress or state legislature that might, some day, authorize the creation of causes of action or itself decide to make some element of the law of nations actionable for the benefit of foreigners. The anxieties of the preconstitutional period cannot be
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of foreigners. The anxieties of the preconstitutional period cannot be ignored easily enough to think that the statute was not meant to have a practical effect. Consider that the principal draftsman of the ATS was apparently Oliver Ellsworth,[13] previously a member of the Continental Congress that had passed the 1781 resolution and a member of the Connecticut Legislature that made good on that congressional request. See generally W. Brown, The Life of Oliver Ellsworth (1905). Consider, too, that the First Congress was attentive enough to the law of nations to recognize certain offenses expressly as criminal, including the three mentioned by Blackstone. See An Act for the Punishment of Certain Crimes Against the United 8, -114 (murder or robbery, or other capital crimes, punishable as piracy if committed on the high seas), and 28, It would have been passing strange for Ellsworth and this very Congress to vest federal courts expressly with jurisdiction to entertain civil causes brought by aliens alleging violations of the law of nations, but to no effect whatever until the Congress should take further action. There is too much in the historical record to believe that Congress would have enacted the ATS only to leave it lying fallow indefinitely. *720 The second inference to be drawn from the history is that Congress intended the ATS to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations. Uppermost in the legislative mind appears to have been offenses against ambassadors, see ; violations of safe conduct were probably understood to be actionable, ib and individual actions arising out of prize captures and piracy may well have also been contemplated, But the common law appears to have understood only those three of the hybrid variety as definite and actionable, or at any rate, to have assumed only a very limited set of claims. As Blackstone had put it, "offences against this law [of nations] are principally incident to whole states or nations," and not individuals seeking relief in court. 4 Commentaries 8. 4 The sparse contemporaneous cases and legal materials referring to the ATS tend to confirm both inferences, that some, but few, torts in violation of the law of nations were understood to be within the common law. In (No. 1,07) (SC 1795), the District Court's doubt about admiralty jurisdiction over a suit for damages brought by a French privateer against the mortgagee of a British slave ship was assuaged by assuming that the ATS was a jurisdictional basis for the court's action. Nor is (No. 9,895) (Pa. 1793), to the contrary,
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action. Nor is (No. 9,895) (Pa. 1793), to the contrary, a case in which the owners of a British ship sought damages for its seizure in United waters by a French privateer. The District Court said in dictum that the ATS was not the proper vehicle for suit because "[i]t cannot be called a suit for a tort only, when the property, as well as damages for the supposed trespass, are sought for." But the judge gave no intimation that further legislation would have been needed to give the District Court jurisdiction over a suit limited to damages. *721 Then there was the 1795 opinion of Attorney General William Bradford, who was asked whether criminal prosecution was available against Americans who had taken part in the French plunder of a British slave colony in Sierra Leone. 1 Op. Atty. Gen. 57. Bradford was uncertain, but he made it clear that a federal court was open for the prosecution of a tort action growing out of the episode: "But there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United ; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United" Although it is conceivable that Bradford (who had prosecuted in the Marbois incident, see Casto, Law of Nations 503, n. 201) assumed that there had been a violation of a treaty, 1 Op. Atty. Gen., at 58, that is certainly not obvious, and it appears likely that Bradford understood the ATS to provide jurisdiction over what must have amounted to common law causes of action. B Against these indications that the ATS was meant to underwrite litigation of a narrow set of common law actions derived from the law of nations, Sosa raises two main objections. First, he claims that this conclusion makes no sense in view of the Continental Congress's 1781 recommendation to state legislatures to pass laws authorizing such suits. Sosa thinks state legislation would have been "absurd," Reply Brief for Petitioner Sosa 5, if common law remedies had been available. Second, Sosa juxtaposes Blackstone's treatise mentioning violations of the law of nations as occasions for criminal remedies, against the statute's innovative reference to "tort," as evidence that there was no familiar *722 set of legal actions for exercise of jurisdiction under the ATS. Neither argument is convincing. The notion that it would have been absurd
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is convincing. The notion that it would have been absurd for the Continental Congress to recommend that pass positive law to duplicate remedies already available at common law rests on a misunderstanding of the relationship between common law and positive law in the late 18th century, when positive law was frequently relied upon to reinforce and give standard expression to the "brooding omnipresence"[14] of the common law then thought discoverable by reason. As Blackstone clarified the relation between positive law and the law of nations, "those acts of parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of [its] decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without which it must cease to be a part of the civilized world." 4 Commentaries 7. Indeed, Sosa's argument is undermined by the 1781 resolution on which he principally relies. Notwithstanding the undisputed fact (per Blackstone) that the common law afforded criminal law remedies for violations of the law of nations, the Continental Congress encouraged state legislatures to pass criminal statutes to the effect, and the first Congress did the[15] *723 Nor are we convinced by Sosa's argument that legislation conferring a right of action is needed because Blackstone treated international law offenses under the rubric of "public wrongs," whereas the ATS uses a word, "tort," that was relatively uncommon in the legal vernacular of the day. It is true that Blackstone did refer to what he deemed the three principal offenses against the law of nations in the course of discussing criminal sanctions, observing that it was in the interest of sovereigns "to animadvert upon them with a becoming severity, that the peace of the world may be maintained," 4 Commentaries 8.[1] But Vattel explicitly linked *724 the criminal sanction for offenses against ambassadors with the requirement that the state, "at the expense of the delinquent, give full satisfaction to the sovereign who has been offended in the person of his minister." Vattel 43-44. Cf. Stephens, Individuals Enforcing International Law: The Comparative and Historical Context, The 1781 resolution goes a step further in showing that a private remedy was thought necessary for diplomatic offenses under the law of nations. And the Attorney General's Letter of 1795, as well as the two early federal precedents discussing the ATS, point to a prevalent assumption that Congress did not intend the ATS to sit on the shelf until some future time when it might enact further legislation. In sum,
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future time when it might enact further legislation. In sum, although the ATS is a jurisdictional statute creating no new causes of action, the reasonable inference from the historical materials is that the statute was intended to have practical effect the moment it became law. The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time. IV We think it is correct, then, to assume that the First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations, though we have found no basis to suspect Congress had any examples in mind beyond those torts corresponding to Blackstone's three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy. We assume, too, that no development in the two centuries from the enactment of 1350 to the birth of the *725 modern line of cases beginning with 30 F.2d 87 has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law; Congress has not in any relevant way amended 1350 or limited civil common law power by another statute. Still, there are good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind. Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized. This requirement is fatal to Alvarez's claim. A A series of reasons argue for judicial caution when considering the kinds of individual claims that might implement the jurisdiction conferred by the early statute. First, the prevailing conception of the common law has changed since 1789 in a way that counsels restraint in judicially applying internationally generated norms. When 1350 was enacted, the accepted conception was of the common law as "a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute." Black and White Taxicab & Transfer 27 U.S. 518, Now, however, in most cases where a court is asked to state or formulate a common law principle in a new context, there is a general understanding that the law is not so much found or discovered as
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the law is not so much found or discovered as it is either made or created. Holmes explained famously in 1881 that "in substance the growth of the law is legislative [because t]he very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. *72 I mean, of course, considerations of what is expedient for the community concerned." The Common Law 31- (Howe ed. 193). One need not accept the Holmesian view as far as its ultimate implications to acknowledge that a judge deciding in reliance on an international norm will find a substantial element of discretionary judgment in the decision. Second, along with, and in part driven by, that conceptual development in understanding common law has come an equally significant rethinking of the role of the federal courts in making it. Erie R. 304 U.S. 4 was the watershed in which we denied the existence of any federal "general" common law, which largely withdrew to havens of specialty, some of them defined by express congressional authorization to devise a body of law directly, e. g., Textile ; Fed. Rule Evid. 501 (evidentiary privileges in federal-question cases). Elsewhere, this Court has thought it was in order to create federal common law rules in interstitial areas of particular federal interest. E. g., United v. Kimbell Foods, Inc., 72-727[17] And although we have even assumed competence to make judicial rules of decision of particular importance to foreign relations, such as the act of state doctrine, see Banco Nacional de 37 U.S. 398, (194), the general practice has been to look for legislative guidance before exercising innovative authority over substantive law. It would be remarkable to take a more aggressive role in exercising a jurisdiction that remained largely in shadow for much of the prior two centuries. *727 Third, this Court has recently and repeatedly said that a decision to create a private right of action is one better left to legislative judgment in the great majority of cases. Correctional Services 534 U.S. 1, 8 ; 5 U.S. 275, 28-287 The creation of a private right of action raises issues beyond the mere consideration whether underlying primary conduct should be allowed or not, entailing, for example, a decision to permit enforcement without the check imposed by prosecutorial discretion. Accordingly, even when Congress has made it clear by statute that a rule applies to purely domestic conduct, we are reluctant to infer intent to provide a private cause of action where the statute does not supply one expressly. While
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action where the statute does not supply one expressly. While the absence of congressional action addressing private rights of action under an international norm is more equivocal than its failure to provide such a right when it creates a statute, the possible collateral consequences of making international rules privately actionable argue for judicial caution. Fourth, the subject of those collateral consequences is itself a reason for a high bar to new private causes of action for violating international law, for the potential implications for the foreign relations of the United of recognizing such causes should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs. It is one thing for American courts to enforce constitutional limits on our own State and Federal Governments' power, but quite another to consider suits under rules that would go so far as to claim a limit on the power of foreign governments over their own citizens, and to hold that a foreign government or its agent has transgressed those limits. Cf. 31-4. Yet modern international law is very much concerned with just such questions, and apt to stimulate calls for vindicating private interests in 1350 cases. Since many attempts by federal courts to craft remedies for the violation *728 of new norms of international law would raise risks of adverse foreign policy consequences, they should be undertaken, if at all, with great caution. Cf. 72 F.2d 774, (expressing doubt that 1350 should be read to require "our courts [to] sit in judgment of the conduct of foreign officials in their own countries with respect to their own citizens"). The fifth reason is particularly important in light of the first four. We have no congressional mandate to seek out and define new and debatable violations of the law of nations, and modern indications of congressional understanding of the judicial role in the field have not affirmatively encouraged greater judicial creativity. It is true that a clear mandate appears in the Torture Victim Protection Act of 1991, 10 Stat. 73, providing authority that "establish[es] an unambiguous and modern basis for" federal claims of torture and extrajudicial killing, H. R. Rep. No. 102-37, pt. 1, p. 3 (1991). But that affirmative authority is confined to specific subject matter, and although the legislative history includes the remark that 1350 should "remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law," Congress as a body has done nothing to promote such suits. Several times, indeed, the
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done nothing to promote such suits. Several times, indeed, the Senate has expressly declined to give the federal courts the task of interpreting and applying international human rights law, as when its ratification of the International Covenant on Civil and Political Rights declared that the substantive provisions of the document were not self-executing. 138 Cong. Rec. 8071 B These reasons argue for great caution in adapting the law of nations to private rights. JUSTICE SCALIA, post, p. 739 (opinion concurring in part and concurring in judgment), concludes that caution is too hospitable, and a word is in order *729 to summarize where we have come so far and to focus our difference with him on whether some norms of today's law of nations may ever be recognized legitimately by federal courts in the absence of congressional action beyond 1350. All Members of the Court agree that 1350 is only jurisdictional. We also agree, or at least JUSTICE SCALIA does not dispute, post, at 739, 744, that the jurisdiction was originally understood to be available to enforce a small number of international norms that a federal court could properly recognize as within the common law enforceable without further statutory authority. JUSTICE SCALIA concludes, however, that two subsequent developments should be understood to preclude federal courts from recognizing any further international norms as judicially enforceable today, absent further congressional action. As described before, we now tend to understand common law not as a discoverable reflection of universal reason but, in a positivistic way, as a product of human choice. And we now adhere to a conception of limited judicial power first expressed in reorienting federal diversity jurisdiction, see Erie R. 304 U.S. 4 that federal courts have no authority to derive "general" common law. Whereas JUSTICE SCALIA sees these developments as sufficient to close the door to further independent judicial recognition of actionable international norms, other considerations persuade us that the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today. Erie did not in terms bar any judicial recognition of new substantive rules, no matter what the circumstances, and post-Erie understanding has identified limited enclaves in which federal courts may derive some substantive law in a common law way. For two centuries we have affirmed that the domestic law of the United recognizes the law of nations. See, e. g., 37 U. S., 23 ("[I]t is, of course, true that United *730 courts apply international law as a part of our own
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courts apply international law as a part of our own in appropriate circumstances");[18]The Paquete ; The Nereide, ("[T]he Court is bound by the law of nations which is a part of the law of the land"); see also Texas Industries, 451 U.S. 30, 41 It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals. We think an attempt to justify such a position would be particularly unconvincing in light of what we know about congressional understanding bearing on this issue lying at the intersection of the judicial and legislative powers. The First Congress, which reflected the understanding of the framing generation and included some of the Framers, assumed that federal courts could properly identify some international norms as enforceable in the exercise of 1350 jurisdiction. We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism. Later Congresses *731 seem to have shared our view. The position we take today has been assumed by some federal courts for 24 years, ever since the Second Circuit decided 30 F.2d 87 and for practical purposes the point of today's disagreement has been focused since the exchange between Judge Edwards and Judge Bork in 72 F.2d 774 Congress, however, has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has responded to its most notable instance by enacting legislation supplementing the judicial determination in some detail. See While we agree with JUSTICE SCALIA to the point that we would welcome any congressional guidance in exercising jurisdiction with such obvious potential to affect foreign relations, nothing Congress has done is a reason for us to shut the door to the law of nations entirely. It is enough to say that Congress may do that at any time (explicitly, or implicitly by treaties or statutes that occupy the field), just as it may modify or cancel any judicial decision so far as it rests on recognizing an international norm as such.[19] C We must still, however, derive a standard or set of standards for assessing the particular claim Alvarez raises, and *7 for this action it suffices to look to the historical antecedents. Whatever the ultimate criteria for accepting a cause of action subject to jurisdiction under 1350, we are persuaded that federal courts should not recognize private claims under federal common
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federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when 1350 was enacted. See, e.g., United v. Smith, 13-180, This limit upon judicial recognition is generally consistent with the reasoning of many of the courts and judges who faced the issue before it reached this Court. See ; 1 (suggesting that the "limits of section 1350's reach" be defined by "a handful of heinous actions each of which violates definable, universal and obligatory norms"); see also In re Estate of Marcos Human Rights Litigation, 25 F.3d 1, 15 And the determination whether a norm is sufficiently definite to support a cause of action[20] should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of *733 making that cause available to litigants in the federal courts.[21] Thus, Alvarez's detention claim must be gauged against the current state of international law, looking to those sources we have long, albeit cautiously, recognized. *734 "[W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." The Paquete To begin with, Alvarez cites two well-known international agreements that, despite their moral authority, have little utility under the standard set out in this opinion. He says that his abduction by Sosa was an "arbitrary arrest" within the meaning of the Universal Declaration of Human Rights (Declaration), G. A. Res. 217A (III), U. N. Doc. A/810 (1948). And he traces the rule against arbitrary arrest not only to the Declaration, but also to article nine of the International Covenant on Civil and Political Rights (Covenant), Dec. 1, 19, 999 U. N. T. S. 171,[22] to which the United is a party, and to various other conventions to which it is not. But the Declaration does not of its own force impose obligations as a matter of international law. See Humphrey, The UN Charter and the Universal Declaration of Human Rights, in The International Protection of Human Rights 39, 50 (E. Luard ed. 197) (quoting Eleanor Roosevelt calling the
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50 (E. Luard ed. 197) (quoting Eleanor Roosevelt calling the Declaration "`a statement of principles setting up a common standard of achievement for all peoples and all nations'" *735 and "`not a treaty or international agreement impos[ing] legal obligations'").[23] And, although the Covenant does bind the United as a matter of international law, the United ratified the Covenant on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts. See Accordingly, Alvarez cannot say that the Declaration and Covenant themselves establish the relevant and applicable rule of international law. He instead attempts to show that prohibition of arbitrary arrest has attained the status of binding customary international law. Here, it is useful to examine Alvarez's complaint in greater detail. As he presently argues it, the claim does not rest on the cross-border feature of his abduction.[24] Although the District Court granted relief in part on finding a violation of international law in taking Alvarez across the border from Mexico to the United the Court of Appeals rejected that ground of liability for failure to identify a norm of requisite force prohibiting a forcible abduction across a border. Instead, it relied on the conclusion that the law of the United did not authorize Alvarez's arrest, because the DEA lacked extraterritorial authority under 21 U.S. C. 878, and because Federal Rule of Criminal Procedure 4(d)(2) limited the warrant for Alvarez's arrest to "the jurisdiction of the United"[25] It is this position that Alvarez takes now: *73 that his arrest was arbitrary and as such forbidden by international law not because it infringed the prerogatives of Mexico, but because no applicable law authorized it.[2] Alvarez thus invokes a general prohibition of "arbitrary" detention defined as officially sanctioned action exceeding positive authorization to detain under the domestic law of some government, regardless of the circumstances. Whether or not this is an accurate reading of the Covenant, Alvarez cites little authority that a rule so broad has the status of a binding customary norm today.[27] He certainly cites nothing to justify the federal courts in taking his broad rule as the predicate for a federal lawsuit, for its implications would be breathtaking. His rule would support a cause of action in federal court for any arrest, anywhere in the world, unauthorized by the law of the jurisdiction in which it took place, and would create a cause of action for any seizure of an alien in violation of the Fourth Amendment, supplanting the actions under Rev. Stat. 42 U.S. C. 1983, and *737 that now
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Rev. Stat. 42 U.S. C. 1983, and *737 that now provide damages remedies for such violations. It would create an action in federal court for arrests by state officers who simply exceed their authority; and for the violation of any limit that the law of any country might place on the authority of its own officers to arrest. And all of this assumes that Alvarez could establish that Sosa was acting on behalf of a government when he made the arrest, for otherwise he would need a rule broader still. Alvarez's failure to marshal support for his proposed rule is underscored by the Restatement (Third) of Foreign Relations Law of the United (198), which says in its discussion of customary international human rights law that a "state violates international law if, as a matter of state policy, it practices, encourages, or condones prolonged arbitrary detention." 2 702. Although the Restatement does not explain its requirements of a "state policy" and of "prolonged" detention, the implication is clear. Any credible invocation of a principle against arbitrary detention that the civilized world accepts as binding customary international law requires a factual basis beyond relatively brief detention in excess of positive authority. Even the Restatement's limits are only the beginning of the enquiry, because although it is easy to say that some policies of prolonged arbitrary detentions are so bad that those who enforce them become enemies of the human race, it may be harder to say which policies cross that line with the certainty afforded by Blackstone's three common law offenses. In any event, the label would never fit the reckless policeman who botches his warrant, even though that officer might pay damages under municipal law. E. g.,[28] *738 Whatever may be said for the broad principle Alvarez advances, in the present, imperfect world, it expresses an aspiration that exceeds any binding customary rule having the specificity we require.[29] Creating a private cause of action to further that aspiration would go beyond any residual common law discretion we think it appropriate to exercise.[30] It is enough to hold that a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy. * * * The judgment of the Court of Appeals is Reversed. *739 JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, concurring in part and concurring in the judgment.
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Massachusetts v. Upton
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https://www.courtlistener.com/opinion/111172/massachusetts-v-upton/
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Last Term, in we held that the Fourth Amendment's requirement of probable cause for the issuance of a warrant is to be applied, not according to a fixed and rigid formula, but rather in the light of the "totality of the circumstances" made known to the magistrate. We also emphasized that the task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant. In this case, the Supreme Judicial Court of Massachusetts, interpreting the probable-cause requirement of the Fourth Amendment to the United States Constitution, continued to rely on the approach set forth in cases such as and Since this approach was rejected in we grant the petition for certiorari in this case and reverse the judgment of the Supreme Judicial Court. At noon on September 11, 1980, Lieutenant Beland of the Yarmouth Police Department assisted in the execution of a search warrant for a motel room reserved by one Richard Kelleher at the Snug Harbor Motel in West Yarmouth. The search produced several items of identification, including *79 credit cards, belonging to two persons whose homes had recently been burglarized. Other items taken in the burglaries, such as jewelry, silver, and gold, were not found at the motel. At 3:0 p. m. on the same day, Lieutenant Beland received a call from an unidentified female who told him that there was "a motor home full of stolen stuff" parked behind #5 Jefferson Ave., the home of respondent George Upton and his mother. She stated that the stolen items included jewelry, silver, and gold. As set out in Lieutenant Beland's affidavit in support of a search warrant: "She further stated that George Upton was going to move the motor home any time now because of the fact that Ricky Kelleher's motel room was raided and that George [Upton] had purchased these stolen items from Ricky Kelleher. This unidentified female stated that she had seen the stolen items but refused to identify herself because `he'll kill me,' referring to George Upton. I then told this unidentified female that I knew who she was, giving her the name of Lynn Alberico, who I had met on May 1, 1980, at George Upton's repair shop off Summer St., in Yarmouthport. She was identified to me by George Upton as being his girlfriend, Lynn Alberico. The unidentified female admitted that she was the girl that I had named, stating that she was surprised that I knew who she was.
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Massachusetts v. Upton
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that she was surprised that I knew who she was. She then told me that she'd broken up with George Upton and wanted to burn him. She also told me that she wouldn't give me her address or phone number but that she would contact me in the future, if need be." See n. n. Following the phone call, Lieutenant Beland went to Upton's house to verify that a motor home was parked on the property. Then, while other officers watched the premises, Lieutenant Beland prepared the application for a search warrant, *730 setting out all the information noted above in an accompanying affidavit. He also attached the police reports on the two prior burglaries, along with lists of the stolen property. A Magistrate issued the warrant, and a subsequent search of the motor home produced the items described by the caller and other incriminating evidence. The discovered evidence led to Upton's conviction on multiple counts of burglary, receiving stolen property, and related crimes. On appeal to the Supreme Judicial Court, respondent argued that the search warrant was not supported by a sufficient showing of "probable cause" under the Fourth Amendment. With respect to our opinion, that court said: "It is not clear that the opinion has announced a significant change in the appropriate Fourth Amendment treatment of applications for search warrants. Looking at what the Court did on the facts before it, and rejecting an expansive view of certain general statements not essential to the decision, we conclude that the opinion deals principally with what corroboration of an informant's tip, not adequate by itself, will be sufficient to meet probable cause standards." 458 N. E. d, at 70. Prior to the Fourth Amendment was understood by many courts to require strict satisfaction of a "two-pronged test" whenever an affidavit supporting the issuance of a search warrant relies on an informant's tip. It was thought that the affidavit, first, must establish the "basis of knowledge" of the informant the particular means by which he came by the information given in his report; and, second, that it must provide facts establishing either the general "veracity" of the informant or the specific "reliability" of his report in the particular case. The Massachusetts court apparently viewed as merely adding a new wrinkle to this two-pronged test: where an informant's veracity and/or basis of knowledge are not sufficiently clear, substantial corroboration of the tip may save an otherwise invalid warrant. *731 "We do not view the opinion as decreeing a standardless `totality of the circumstances' test. The informant's veracity and the basis of
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Massachusetts v. Upton
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https://www.courtlistener.com/opinion/111172/massachusetts-v-upton/
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the circumstances' test. The informant's veracity and the basis of his knowledge are still important but, where the tip is adequately corroborated, they are not elements indispensible [sic] to a finding of probable cause. It seems that, in a given case, the corroboration may be so strong as to satisfy probable cause in the absence of any other showing of the informant's `veracity' and any direct statement of the `basis of [his] knowledge.' " 458 N. E. d, at 71. Turning to the facts of this case, the Massachusetts court reasoned, first, that the basis of the informant's knowledge was not "forcefully apparent" in the affidavit. 458 N.E.d, at 71. Although the caller stated that she had seen the stolen items and that they were in the motor home, she did not specifically state that she saw them in the motor home. Second, the court concluded that "[n]one of the common bases for determining the credibility of an informant or the reliability of her information is present here." The caller was not a "tried and true" informant, her statement was not against penal interest, and she was not an "ordinary citizen" providing information as a witness to a crime. "She was an anonymous informant, and her unverified assent to the suggestion that she was Lynn Alberico does not take her out of that category." 458 N.E.d, at 7. Finally, the court felt that there was insufficient corroboration of the informant's tip to make up for its failure to satisfy the two-pronged test. The facts that tended to corroborate the informant's story were that the motor home was where it was supposed to be, that the caller knew of the motel raid which took place only three hours earlier, and that the caller knew the name of Upton and his girlfriend. But, much as the Supreme Court of Illinois did in the opinion we reviewed in the Massachusetts court reasoned that each item of corroborative evidence either related to innocent, nonsuspicious conduct or related to an event that took place in *73 public. To sustain the warrant, the court concluded, more substantial corroboration was needed. The court therefore held that the warrant violated the Fourth Amendment to the United States Constitution and reversed respondent's convictions. We think that the Supreme Judicial Court of Massachusetts misunderstood our decision in We did not merely refine or qualify the "two-pronged test." We rejected it as hypertechnical and divorced from "the factual and practical considerations of everday life on which reasonable and prudent men, not legal technicians, act." Our statement on that score was explicit.
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Massachusetts v. Upton
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legal technicians, act." Our statement on that score was explicit. "[W]e conclude that it is wiser to abandon the `two-pronged test' established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations." 4 U. S., at 38. This "totality-of-the-circumstances" analysis is more in keeping with the "practical, common-sense decision" demanded of the magistrate. We noted in that "the `two-pronged test' has encouraged an excessively technical dissection of informants' tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate." at 34-35 This, we think, is the error of the Massachusetts court in this case. The court did not consider Lieutenant Beland's affidavit in its entirety, giving significance to each relevant piece of information and balancing the relative weights of all the various indicia of reliability (and unreliability) attending the tip. Instead, the court insisted on judging bits and pieces of information in isolation against the artificial standards provided by the two-pronged test. The Supreme Judicial Court also erred in failing to grant any deference to the decision of the Magistrate to issue a warrant. Instead of merely deciding whether the evidence *733 viewed as a whole provided a "substantial basis" for the Magistrate's finding of probable cause, the court conducted a de novo probable-cause determination. We rejected just such after-the-fact, de novo scrutiny in at 3. "A grudging or negative attitude by reviewing courts toward warrants," United 380 U.S. 10, is inconsistent both with the desire to encourage use of the warrant process by police officers and with the recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case. at 37, n. 10.[*] A deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant. Examined in light of Lieutenant Beland's affidavit provides a substantial basis for the issuance of the warrant. No single piece of evidence in it is conclusive. But the pieces fit neatly together and, so viewed, support the Magistrate's determination that there was "a fair probability that contraband or evidence of a crime" would be found in Upton's motor home. 4 U.S., at 38. The informant claimed to have seen the stolen goods and gave a description of them which tallied with the items taken in recent burglaries. She knew of the raid on the motel room which produced evidence connected to those burglaries and that the room
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Massachusetts v. Upton
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https://www.courtlistener.com/opinion/111172/massachusetts-v-upton/
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evidence connected to those burglaries and that the room had been reserved by Kelleher. She explained the connection between *734 Kelleher's motel room and the stolen goods in Upton's motor home. And she provided a motive both for her attempt at anonymity fear of Upton's retaliation and for furnishing the information her recent breakup with Upton and her desire "to burn him." The Massachusetts court dismissed Lieutenant Beland's identification of the caller as a mere "unconfirmed guess." 390 Mass., n. 458 N.E.d, at 71, n. But "probable cause does not demand the certainty we associate with formal trials." at 4. Lieutenant Beland noted that the caller "admitted that she was the girl I had named, stating that she was surprised that I knew who she was." It is of course possible that the caller merely adopted Lieutenant Beland's suggestion as "a convenient cover for her true identity." 390 Mass., 458 N.E.d, at 7. But given the caller's admission, her obvious knowledge of who Alberico was and how she was connected with Upton, and her explanation of her motive in calling, Lieutenant Beland's inference appears stronger than a mere uninformed and unconfirmed guess. It is enough that the inference was a reasonable one and conformed with the other pieces of evidence making up the total showing of probable cause. In concluding that there was probable cause for the issuance of this warrant, the Magistrate can hardly be accused of approving a mere "hunch" or a bare recital of legal conclusions. The informant's story and the surrounding facts possessed an internal coherence that gave weight to the whole. Accordingly, we conclude that the information contained in Lieutenant Beland's affidavit provided a sufficient basis for the "practical, common-sense decision" of the Magistrate. "Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." United *735 The judgment of the Supreme Judicial Court of Massachusetts is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE BRENNAN and JUSTICE MARSHALL dissent from the summary disposition of this case and would deny the petition for certiorari. JUSTICE STEVENS, concurring in the judgment.
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Yates v. Evatt
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https://www.courtlistener.com/opinion/112603/yates-v-evatt/
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[] This murder case comes before us for the third time, to review a determination by the Supreme Court of South Carolina that instructions allowing the jury to apply unconstitutional presumptions were harmless error. We hold that the State Supreme Court employed a deficient standard of review, find that the errors were not harmless, and reverse. *394 I A Petitioner, Dale Robert Yates, and an accomplice, Henry Davis, robbed a country store in Greenville County, South Carolina. After shooting and wounding the proprietor, petitioner fled. Davis then killed a woman before he was shot to death by the proprietor. Petitioner was arrested soon after the robbery and charged with multiple felonies.[1] Although he killed no one, the State prosecuted him for murder as an accomplice.[2] The trial record shows that for some time petitioner and Davis had planned to commit a robbery and selected T. P. Wood's Store in Greenville as an easy target. After parking Davis' car outside, they entered the store, petitioner armed with a handgun and Davis with a knife. They found no one inside except the proprietor, Willie Wood, who was standing behind the counter. Petitioner and Davis brandished their weapons, and petitioner ordered Wood to give them all the money in the cash register. When Wood hesitated, Davis repeated the demand. Wood gave Davis approximately $3,000 in cash. Davis handed the money to petitioner and ordered Wood to lie across the counter. Wood, who had a pistol beneath his jacket, refused and stepped back from the counter with his hands down at his side. Petitioner meanwhile was backing away from the counter toward the entrance to the store, with his gun pointed at Wood. Davis told him to shoot. Wood raised his hands as if to protect himself, whereupon petitioner fired twice. One bullet pierced Wood's left hand and tore a flesh wound in his chest, but the other shot missed. Petitioner then screamed, "Let's go," and ran out with the money. App. 57. He jumped into Davis' car on the passenger side and waited. When Davis *395 failed to emerge, petitioner moved across the seat and drove off. Inside the store, Wood, though wounded, ran around the counter pursued by Davis, who jumped on his back. As the two struggled, Wood's mother, Helen Wood, emerged from an adjacent office. She screamed when she saw the scuffle and ran toward the two men to help her son. Wood testified that his mother "reached her left arm around and grabbed [Davis]. So, all three of us stumbled around the counter, out in the aisle." During the
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Yates v. Evatt
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stumbled around the counter, out in the aisle." During the struggle, Mrs. Wood was stabbed once in the chest and died at the scene within minutes.[3] Wood managed to remove the pistol from under his jacket and fire five shots at Davis, killing him instantly. The police arrested petitioner a short while later and charged him as an accomplice to the murder of Mrs. Wood. Under South Carolina law, "where two persons combine to commit an unlawful act, and in execution of the criminal act, a homicide is committed by one of the actors as a probable or natural consequence of those acts [sic], all present participating in the unlawful act are as guilty as the one who committed the fatal act." Petitioner's primary defense to the murder charge was that Mrs. Wood's death was not the probable or natural consequence of the robbery he had planned with Davis. Petitioner testified that he had brought a weapon with him only to induce the store owner to empty the cash register, and that neither he nor Davis intended to kill anyone during the robbery.[4] App. 37, 42-44, 49, 77-78. *396 The prosecution's case for murder rested on petitioner's agreement with Davis to commit an armed robbery. From this the State argued they had planned to kill any witnesses at the scene, and had thereby rendered homicide a probable or natural result of the robbery, in satisfaction of the requirement for accomplice liability. In his closing argument to the jury, the prosecutor asserted that petitioner and Davis had planned to rob without leaving "any witnesses in the store." They entered the store "with the idea of stabbing the proprietor to death; a quiet killing, with [petitioner's] pistol as a backup." As a result of this agreement, the prosecutor concluded, "[i]t makes no difference who actually struck the fatal blow, the hand of one is the hand of all." The prosecutor also addressed the required element of malice. "Mr. Yates," he argued, "is equally guilty. The malice required was in his heart," making him guilty of murder even though he did not actually kill the victim. The trial judge charged the jury that murder under South Carolina law "is the unlawful killing of any human being with malice aforethought either express or implied." The judge continued: "In order to convict one of murder, the State must not only prove the killing of the deceased by the Defendant, but that it was done with malice aforethought, and such proof must be beyond any reasonable doubt. Malice is defined in the law of homicide as
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Yates v. Evatt
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doubt. Malice is defined in the law of homicide as a technical term, which imports wickedness and excludes any just cause or excuse for your action. It is something which springs from wickedness, from depravity, from a depraved spirit, from a heart devoid of social duty, and fatally bent on creating mischief. The words `express' or `implied' do not mean different kinds of malice, but they mean different *397 ways in which the only kind of malice known to the law may be shown. "Malice may be expressed as where previous threats of vengeance have been made or is where someone lies in wait for someone else to come by so that they might attack them, or any other circumstances which show directly that an intent to kill was really and actually entertained. "Malice may also be implied as where, although no expressed intention to kill was proved by direct evidence, it is indirectly and necessarily inferred from facts and circumstances which are, themselves, proved. Malice is implied or presumed by the law from the willful, deliberate, and intentional doing of an unlawful act without any just cause or excuse. In its general signification, malice means the doing of a wrongful act, intentionally, without justification or excuse. "I tell you, however, that if the facts proven are sufficient to raise a presumption of malice, that presumption is rebuttable, that is, it is not conclusive on you, but it is rebuttable by the rest of the evidence. I tell you, also, that malice is implied or presumed from the use of a deadly weapon. I further tell you that when the circumstances surrounding the use of that deadly weapon have been put in evidence and testified to, the presumption is removed. And it ultimately remains the responsibility for you, ladies and gentlemen, under all the evidence to make a determination as to whether malice existed in the mind and heart of the killer at the time the fatal blow was struck." The judge went on to instruct the jury on the theory of accomplice liability. The jury returned guilty verdicts on the murder charge and on all the other counts in the indictment.[5]*398 The Supreme Court of South Carolina affirmed the conviction, and we denied certiorari. cert. denied, B Petitioner thereafter sought a writ of habeas corpus from the State Supreme Court, asserting that the jury charge "that malice is implied or presumed from the use of a deadly weapon" was an unconstitutional burden-shifting instruction both under state precedent, and under our decision in While the state habeas petition was pending,
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Yates v. Evatt
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our decision in While the state habeas petition was pending, we delivered another opinion on unconstitutional burden-shifting jury instructions, Although petitioner brought this decision to the attention of the state court, it denied relief without opinion, and petitioner sought certiorari here. We granted the writ, vacated the judgment of the Supreme Court of South Carolina, and remanded the case for further consideration in light of Francis. On remand, the State Supreme Court found the jury instruction unconstitutional, but denied relief on the ground that its decision in State v. was not to be applied retroactively. Petitioner again sought review here, and again we granted certiorari, out of concern that the State Supreme Court had not complied with the mandate to reconsider its earlier decision in light of In an opinion by JUSTICE STEVENS, we unanimously held the state court had erred in failing to consider the retroactive application of Francis. We then addressed that question and held that Francis was merely an application of the principle settled by our prior decision in and should, for that reason, be applied retroactively in petitioner's habeas proceeding. *399 We accordingly reversed the judgment of the State Supreme Court and remanded for further proceedings not inconsistent with our opinion. On the second remand, the Supreme Court of South Carolina stated that it was "[a]cquiescing in the conclusion that the trial judge's charge on implied malice constituted an improper mandatory presumption." State v. Yates, 301 S. C. 216-, On reviewing the record, the court found "two erroneous charges regarding implied malice. First, the trial judge charged the `willful, deliberate, and intentional doing of an unlawful act without any just cause or excuse' [implied malice]. Second, he charged. `malice is implied or presumed from the use of a deadly weapon'." Despite this determination that two jury instructions were unconstitutional, the State Supreme Court again denied relief after a majority of three justices found the instructions to have been harmless error. The court described its enquiry as one to determine "whether it is beyond a reasonable doubt that the jury would have found it unnecessary to rely on the erroneous mandatory presumption regarding the element of malice." The court then stated that on "the facts of this case, as charged by the trial judge, the element of malice relied on by the State is that of the killer, Henry Davis." Reviewing the facts, the court stated that "Davis lunged at Mrs. Wood with his knife [and] Mrs. Wood fell to the floor from knife wounds in her chest and died within moments." 391 S.E.2d, at The court
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chest and died within moments." 391 S.E.2d, at The court described the crime as "Henry Davis' brutal multiple stabbing of Mrs. Wood," and held "beyond a reasonable doubt [that] the jury would have found it unnecessary to rely on either erroneous mandatory presumption in concluding that Davis acted with malice in killing Mrs. Wood." The state court gave no citation to the record *400 for its description of Mrs. Wood's death as resulting from a multiple stabbing and multiple wounds. The remaining two justices on the State Supreme Court dissented. After first expressing doubt that this Court's mandate authorized them to review for harmless error, the dissenters disagreed that the erroneous jury instructions were harmless. They found that the trial judge "failed to articulate that the jury must find the killer acted with malicious intent." Following this error, "the jury could have mistakenly inferred from the confusing instructions that the intent required in order to prove murder was that of Yates because he carried a gun. The unconstitutional instruction which allowed the jury to presume intent. would have eclipsed Yates' defense of withdrawal, and prejudiced his right to a fair trial." -223, -535. Because the Supreme Court of South Carolina appeared to have applied the wrong standard for determining whether the challenged instructions were harmless error, and to have misread the record to which the standard was applied, we granted certiorari to review this case a third time. II A This Court held in 524, that a jury instruction stating that "`the law presumes that a person intends the ordinary consequences of his voluntary acts'" violated the requirement of the Due Process Clause that the prosecution prove each element of a crime beyond a reasonable doubt. See In re Winship, We applied this principle in to instructions that the "`acts of a person of sound mind and discretion are presumed to be the product of the person's will' and that a person `is presumed to intend the natural and probable consequences of his acts.'" Although the jury had been *401 told that these presumptions were rebuttable, we held them to be as pernicious in this context as conclusive presumptions because they shifted the burden of proof on intent to the defendant. -318. In charging the jurors on the issue of malice in this case, the trial judge instructed them on two mandatory presumptions, each of which the Supreme Court of South Carolina has since held to be unconstitutional under Sandstrom and Francis. The jury was told that "malice is implied or presumed" from the "willful, deliberate, and intentional doing of
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Yates v. Evatt
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or presumed" from the "willful, deliberate, and intentional doing of an unlawful act" and from the "use of a deadly weapon." App. 96. With respect to the unlawful act presumption, the jury was told that the "presumption is rebuttable, that is, it is not conclusive on you, but it is rebuttable by the rest of the evidence." Following the description of the deadly weapon presumption, the jurors were told that it was their responsibility "under all the evidence to make a determination as to whether malice existed in the mind and heart of the killer."[6] We think a reasonable juror would have understood the unlawful act presumption to mean that upon introduction of evidence tending to rebut malice, the jury should consider all evidence bearing on the issue of malice, together with the *402 presumption, which would still retain some probative significance. A reasonable juror would have understood the deadly weapon presumption to mean that its probative force should be considered along with all other evidence tending to prove or disprove malice. Although the presumptions were rebuttable in these ways, the mandate to apply them remained,[7] as did their tendency to shift the burden of proof on malice from the prosecution to petitioner. Respondents do not challenge the conclusion of the Supreme Court of South Carolina that each presumption violated Sandstrom and Francis, and the constitutionality of neither one is in issue. B Having concluded that the instructions were constitutionally erroneous, the Supreme Court of South Carolina correctly treated them as subject to further review for harmless error, consistently with in which we held that the taint of an unconstitutional burden-shifting jury instruction may be harmless, citing[8] The Chapman *403 test is whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." ; see ); ; To say that an error did not "contribute" to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous. When, for example, a trial court has instructed a jury to apply an unconstitutional presumption, a reviewing court can hardly infer that the jurors failed to consider it, a conclusion that would be factually untenable in most cases, and would run counter to a sound presumption of appellate practice, that jurors are reasonable and generally follow the instructions they are given. See To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on
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unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. Thus, to say that an instruction to *404 apply an unconstitutional presumption did not contribute to the verdict is to make a judgment about the significance of the presumption to reasonable jurors, when measured against the other evidence considered by those jurors independently of the presumption. Before reaching such a judgment, a court must take two quite distinct steps. First, it must ask what evidence the jury actually considered in reaching its verdict. If, for example, the fact presumed is necessary to support the verdict, a reviewing court must ask what evidence the jury considered as tending to prove or disprove that fact.[9] Did the jury look at only the predicate facts, or did it consider other evidence bearing on the fact subject to the presumption? In answering this question, a court does not conduct a subjective enquiry into the jurors' minds. The answer must come, instead, from analysis of the instructions given to the jurors and from application of that customary presumption that jurors follow instructions and, specifically, that they consider relevant evidence on a point in issue when they are told that they may do so. Once a court has made the first enquiry into the evidence considered by the jury, it must then weigh the probative force of that evidence as against the probative force of the presumption standing alone. To satisfy Chapman's reasonable-doubt standard, it will not be enough that the jury considered evidence from which it could have come to the verdict without reliance on the presumption. Rather, the issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption. Since that enquiry cannot be a subjective one into the jurors' *405 minds, a court must approach it by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption. It is only when the effect of the presumption is comparatively minimal to this degree that it can be said, in Chapman's words, that the presumption did not contribute to the verdict rendered. Because application of the harmless-error test to an erroneous presumption thus requires an identification and evaluation of the evidence considered by the jury in addition to the presumption itself, we need to say a
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Yates v. Evatt
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addition to the presumption itself, we need to say a word about an assumption made in many opinions applying the Chapman rule, which state that the harmlessness of an error is to be judged after a review of the entire record. See, e. g., at ; United That assumption is simply that the jury considered all the evidence bearing on the issue in question before it made the findings on which the verdict rested. If, on the contrary, that assumption were incorrect, an examination of the entire record would not permit any sound conclusion to be drawn about the significance of the error to the jury in reaching the verdict. This point must always be kept in mind when reviewing erroneous presumptions for harmless error, because the terms of some presumptions so narrow the jury's focus as to leave it questionable that a reasonable juror would look to anything but the evidence establishing the predicate fact in order to *406 infer the fact presumed.[10] When applying a harmless-error analysis in presumption cases, therefore, it is crucial to ascertain from the trial court's instructions that the jurors, as reasonable persons, would have considered the entire trial record, before looking to that record to assess the significance of the erroneous presumption. C The Supreme Court of South Carolina failed to apply the proper harmless-error standard to the rebuttable presumptions at issue in this case. As a threshold matter, the State Supreme Court did not undertake any explicit analysis to support its view of the scope of the record to be considered in applying Chapman. It is even more significant, however, that the state court did not apply the test that Chapman formulated. Instead, the court employed language taken out of context from and sought merely to determine whether it was beyond a reasonable doubt that the jury "would have found it unnecessary to rely" on the unconstitutional presumptions.[11] *407 Enquiry about the necessity for reliance, however, does not satisfy all of Chapman's concerns. It can tell us that the verdict could have been the same without the presumptions, when there was evidence sufficient to support the verdict independently of the presumptions' effect. But the enquiry will not tell us whether the jury's verdict did rest on that evidence as well as on the presumptions, or whether that evidence was of such compelling force as to show beyond a reasonable doubt that the presumptions must have made no difference in reaching the verdict obtained. Because the State Supreme Court's standard of review apparently did not take these latter two issues into consideration, reversal
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Yates v. Evatt
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https://www.courtlistener.com/opinion/112603/yates-v-evatt/
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did not take these latter two issues into consideration, reversal is required. III Although our usual practice in cases like this is to reverse and remand for a new determination under the correct standard, we have the authority to make our own assessment of the harmlessness of a constitutional error in the first instance. See Because this case has already been remanded twice, once for harmless-error analysis, we think we would serve judicial economy best by proceeding now to determine whether the burden-shifting jury instructions were harmless. We begin by turning to the State's domestic law of accomplice murder and the elements it entails. The State Supreme Court decided that the trial judge "correctly and precisely" charged the jury on "the common law rule of murder," which required proof of malice.[12]State v. Yates, 280 S. C., at Petitioner was charged as an accomplice to the alleged murder of Mrs. Wood by Davis, *408 and the state court determined that on "the facts of this case, as charged by the trial judge, the element of malice relied on by the State is that of the killer, Henry Davis." 301 S. C., In light of the fact that the Supreme Court of South Carolina has approved the trial judge's jury instructions, we will accept his charge on malice as the proper statement of South Carolina law on the subject. The trial judge told the jury that malice is the equivalent of an "intention to kill," without legal justification or excuse.[13] There is no question that either presumption on malice could have been employed by the jury in reaching its verdict. The evidence showed clearly that Davis used a deadly weapon, a knife, and intended to commit, and did commit, an unlawful act without legal justification, not only armed robbery, but the killing itself. The first step in determining whether these instructions contributed to the jury's verdict is to determine what evidence the jury considered on the issue of intent, independently of the presumptions themselves. The record reveals some evidence rebutting malice, including petitioner's testimony that neither he nor Davis intended to kill anyone. This left the jury free to look beyond the unlawful act presumption and to consider all the evidence on malice. The *409 jury can reasonably be expected to have done so. Likewise, under the deadly weapon presumption, as we have construed it, the jury was instructed to consider all the evidence, not just the presumption itself. Since we can thus infer with confidence that the jury considered all the evidence tending to prove or disprove Davis' intent to kill,
|
Justice Souter
| 1,991 | 20 |
majority
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Yates v. Evatt
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https://www.courtlistener.com/opinion/112603/yates-v-evatt/
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evidence tending to prove or disprove Davis' intent to kill, it is correct simply to follow the general rule of the post-Chapman cases that the whole record be reviewed in assessing the significance of the errors. An examination of the entire record reveals that, as to Willie Wood, there was clear evidence of Davis' intent to kill: Instead of leaving the store when he could have, Davis pursued Wood with a deadly weapon in his hand and attacked Wood by jumping on his back. This evidence was enhanced by the fact that Davis had at least two reasons to kill Wood. He could have thought it necessary to avoid being himself killed or injured by Wood, and he also could have thought it necessary to avoid being identified by Wood to the police. As probative as this was of Davis' intent to kill Wood, however, there was nothing in the instructions that allowed the jurors to consider this evidence in assessing Davis' intent to kill Wood's mother. Application of a theory of transferred intent would, of course, have allowed the jury to equate Davis' malice in accosting Willie Wood with malice in the killing of Mrs. Wood. See 2 C. Torcia, Wharton's Criminal Law 144 ("Under the common-law doctrine of transferred intent, a defendant, who intends to kill one person but instead kills a bystander, is deemed the author of whatever kind of homicide would have been committed had he killed the intended victim"); American Law Institute, Model Penal Code 2.03(2) But the jury was not charged on a theory of transferred intent, and we are therefore barred from treating evidence of intent to kill Wood as underlying the necessary finding of intent to kill Wood's mother. *410 The evidence of Davis' intent to kill Mrs. Wood is far less clear. The prosecution argued that petitioner and Davis entered the store with the intention of killing any witnesses they found inside, and while this inference from the evidence was undoubtedly permissible, it was not compelled as a rational necessity. Petitioner testified that neither he nor Davis had planned to kill anyone, and the record shows that petitioner left the store not knowing whether he had, in fact, killed Willie Wood. Petitioner further testified that he heard a woman scream as he left the store, yet the evidence is clear that he made no effort to return and kill her. App. 57, 61. Hence, the jury could have taken petitioner's behavior as confirming his claim that he and Davis had not originally planned to kill nyone whom they might find inside
|
Justice Souter
| 1,991 | 20 |
majority
|
Yates v. Evatt
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https://www.courtlistener.com/opinion/112603/yates-v-evatt/
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originally planned to kill nyone whom they might find inside the store. Nor do the specific circumstances of Mrs. Wood's death reveal anything clear about Davis' intent toward her. The Supreme Court of South Carolina, to be sure, viewed the record as showing that Davis directed his attention specifically to Mrs. Wood, and attacked her with a repetitiveness ruling out the possibility of inadvertence. The state court's majority described Davis as having "lunged at Mrs. Wood with his knife" and inflicted "wounds" to her chest during a "brutal multiple stabbing." 301 S. C., -, 391 S.E.2d, at -532. The state court's description of the evidence as tending to prove Davis' malice is not, however, supported by the record. The only eyewitness to the homicide, Willie Wood, testified that it was Mrs. Wood who ran into the store and "reached her left arm around and grabbed" Davis, after which "the three of [them] stumbled around the counter, out in the aisle." There was no other testimony on how Mrs. Wood encountered Davis. The pathologist who performed an autopsy on Mrs. Wood testified that she died of a single wound to the chest and that "[t]here were no other wounds that I noted on the external surface of the body." App. 32. *411 There was no other testimony or physical evidence that Mrs. Wood suffered any wounds beyond the fatal one to her chest. The record thus does not support the state court's assertion that Davis "lunged" at Mrs. Wood, or its description of Mrs. Wood's "wounds" as resulting from a "multiple stabbing." The prosecutor in his summation even conceded that "it appeared [Mrs. Wood] tried to grab Mr. Davis." The most that can be said with certainty is that Mrs. Wood joined the struggle between Davis and Wood and was stabbed during the course of it. She could have been killed inadvertently by Davis, and we cannot rule out that possibility beyond a reasonable doubt. In sum, the evidentiary record simply is not clear on Davis' intent to kill the victim. Without more, we could not infer beyond a reasonable doubt that the presumptions did not contribute to the jury's finding of Davis' intent to-kill Mrs. Wood and to the ensuing verdict of petitioner's guilt as Davis' accomplice. IV The burden-shifting jury instructions found to have been erroneous in this case may not be excused as harmless error. The judgment of the Supreme Court of South Carolina is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE SCALIA, with whom JUSTICE
|
Justice Stevens
| 2,002 | 16 |
dissenting
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McKune v. Lile
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https://www.courtlistener.com/opinion/121146/mckune-v-lile/
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No one could possibly disagree with the plurality's statement that "offering inmates minimal incentives to participate [in a rehabilitation program] does not amount to compelled self-incrimination prohibited by the Fifth Amendment." Ante, at 9. The question that this case presents, however, is whether the State may punish an inmate's assertion of his Fifth Amendment privilege with the same mandatory sanction that follows a disciplinary conviction for an offense such as theft, sodomy, riot, arson, or assault. Until today the Court has never characterized a threatened harm as "a minimal incentive." Nor have we ever held that a person who has made a valid assertion of the privilege may nevertheless be ordered to incriminate himself and sanctioned for disobeying such an order. This is truly a watershed case. Based on an ad hoc appraisal of the benefits of obtaining confessions from sex offenders, balanced against the cost of honoring a bedrock constitutional right, the plurality holds that it is permissible to punish the assertion of the privilege with what it views as modest sanctions, provided that those sanctions are not given a "punitive" label. As I shall explain, the sanctions are in fact severe, but even if that were not so, the plurality's policy judgment does not justify the evisceration of a constitutional right. Despite the plurality's *55 meandering attempt to justify its unprecedented departure from a rule of law that has been settled since the days of John Marshall, I respectfully dissent. I The text of the Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." It is well settled that the prohibition "not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also `privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.' " If a person is protected by the privilege, he may "refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant." at 78 ). Prison inmatesincluding sex offendersdo not forfeit the privilege at the jail house gate. 465 U. S., at It is undisputed that respondent's statements on the admission of responsibility and sexual history forms could incriminate him in a future prosecution for perjury or any other offense to which he is forced to confess.[1] It is also *56 clear
|
Justice Stevens
| 2,002 | 16 |
dissenting
|
McKune v. Lile
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https://www.courtlistener.com/opinion/121146/mckune-v-lile/
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he is forced to confess.[1] It is also *56 clear that he invoked his Fifth Amendment right by refusing to participate in the SATP on the ground that he would be required to incriminate himself. Once he asserted that right, the State could have offered respondent immunity from the use of his statements in a subsequent prosecution. Instead, the Kansas Department of Corrections (Department) ordered respondent either to incriminate himself or to lose his medium-security status. In my opinion that order, coupled with the threatened revocation of respondent's Level III privileges, unquestionably violated his Fifth Amendment rights. Putting to one side the plurality's evaluation of the policy judgments made by Kansas, its central submission is that the threatened withdrawal of respondent's Level III and medium-security status is not sufficiently harmful to qualify as unconstitutional compulsion. In support of this position, neither the plurality nor Justice O'Connor cites a single Fifth Amendment case in which a person invoked the privilege and was nevertheless required to answer a potentially incriminating question.[] The privilege against self-incrimination may have been born of the rack and the Star Chamber, see L. Levy, Origins of the Fifth Amendment 4 (I. Dee ed. 1999); but the Framers had a *57 broader view of compulsion in mind when they drafted the Fifth Amendment.[3] We know, for example, that the privilege was thought to protect defendants from the moral compulsion associated with any statement made under oath.[4] In addition, the language of the Amendment, which focuses on a courtroom setting in which a defendant or a witness in a criminal trial invokes the privilege, encompasses the compulsion inherent in any judicial order overruling an assertion of the privilege. As Chief Justice Marshall observed in United (No. 14,69e) (CC Va. 1807): "If, in such a case, he say upon his oath that his answer would incriminate himself, the court can demand no other testimony of the fact." Our holding in that the privilege applies to the States through the Fourteenth Amendment, determined that the right to remain silent is itself a liberty interest protected by that Amendment. We explained that "[t]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringementthe right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty *58 for such silence." Since Malloy, we have construed the text to prohibit not only direct orders to testify, but also indirect compulsion effected by comments on a defendant's refusal to take the stand, and we have
|
Justice Stevens
| 2,002 | 16 |
dissenting
|
McKune v. Lile
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https://www.courtlistener.com/opinion/121146/mckune-v-lile/
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a defendant's refusal to take the stand, and we have recognized that compulsion can be presumed from the circumstances custodial interrogation, see ). Without requiring the deprivation of any other liberty interest, we have found prohibited compulsion in the threatened loss of the right to participate in political associations, (19), forfeiture of government contracts, 414 U. S., loss of employment, Uniformed Sanitation Men Assn., and disbarment, None of our opinions contains any suggestion that compulsion should have a different meaning in the prison context. Nor is there any support in our Fifth Amendment jurisprudence for the proposition that nothing short of losing one's livelihood is sufficient to constitute compulsion. Accord, 414 U. S., 3. The plurality's suggestion that our decision in supports a novel interpretation of the Fifth Amendment, see ante, at 39, is inconsistent with the central rationale of that case. In Meachum, a group of prison inmates urged the Court to hold that the Due Process Clause entitled them to a hearing prior to their transfer to a substantially less favorable facility. Relying on the groundbreaking decisions in 8 U.S. 471 and *59 which had rejected the once-prevailing view that a prison inmate had no more rights than a "slave of the State,"[5] the prisoners sought to extend those holdings to require judicial review of "any substantial deprivation imposed by prison authorities." The Court recognized that after Wolff and its progeny, convicted felons retain "a variety of important rights that the courts must be alert to protect." Although Meachum refused to expand the constitutional rights of inmates, we did not narrow the protection of any established right. Indeed, Justice White explicitly limited the holding to prison conditions that "do not otherwise violate the Constitution,"[6] Not a word in our discussion of the privilege in Ohio Adult Parole ante, at 43, requires a heightened showing of compulsion in the prison context to establish a Fifth Amendment That case is wholly unlike this one because was not ordered to incriminate himself and was not punished for refusing to do so. He challenged Ohio's clemency procedures, arguing, inter alia, that an interview with members of the clemency board offered to inmates one week before their clemency hearing presented him with a Hobson's choice that violated the privilege against self-incrimination. He could either take advantage of the interview and risk incriminating himself, or decline the interview, in which case the clemency board might draw adverse inferences from his decision not to testify. We concluded that the prisoner who was offered "a voluntary interview" is in the same position as *60 any defendant
|
Justice Stevens
| 2,002 | 16 |
dissenting
|
McKune v. Lile
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https://www.courtlistener.com/opinion/121146/mckune-v-lile/
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interview" is in the same position as *60 any defendant faced with the option of either testifying or accepting the risk that adverse inferences may be drawn from his silence. 53 U. S.,at 86. Respondent was directly ordered by prison authorities to participate in a program that requires incriminating disclosures, whereas no one ordered to do anything. Like a direct judicial order to answer questions in the courtroom, an order from the State to participate in the SATP is inherently coercive. Cf. 414 U. S., Moreover, the penalty for refusing to participate in the SATP is automatic. Instead of conjecture and speculation about the indirect consequences that may flow from a decision to remain silent, we can be sure that defiance of a direct order carries with it the stigma of being a lawbreaker or a problem inmate, as well as other specified penalties. The penalty involved in this case is a mandated official response to the assertion of the privilege. In ante, at 4-43, we held that a prison disciplinary proceeding did not violate the privilege, in part, because the State had not "insisted [nor] asked that Palmigiano waive his Fifth Amendment privilege," and it was "undisputed that an inmate's silence in and of itself [was] insufficient to support an adverse decision by the Disciplinary Board." -318. We distinguished the "penalty cases," and not because they involved civilians as opposed to prisoners, as the plurality assumes, ante, at but because in those cases the "refusal to submit to interrogation and to waive the Fifth Amendment privilege, standing alone and without regard to other evidence, resulted in loss of employment or opportunity to contract with the State," whereas Palmigiano's silence "was given no more evidentiary value than was warranted *61 by the facts his case." And, in a subsequent "penalty" case, we distinguished on the ground that refusing to incriminate oneself "was only one of a number of factors to be considered by the finder of fact in assessing a penalty, and was given no more probative value than the facts of the case warranted," while in "refusal to waive the Fifth Amendment privilege [led] automatically and without more to imposition of sanctions." 431 U.S., 08, n. 5. Similarly, in while "the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege," because revocation was not automatic under the Minnesota statute, we concluded that " could not reasonably have feared that the assertion of the privilege would have led to revocation."[7] These decisions recognized that there is an appreciable difference
|
Justice Stevens
| 2,002 | 16 |
dissenting
|
McKune v. Lile
|
https://www.courtlistener.com/opinion/121146/mckune-v-lile/
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revocation."[7] These decisions recognized that there is an appreciable difference between an official sanction for disobeying a direct order and a mere risk of adverse consequences stemming from a voluntary choice. The distinction is not a novel one, nor is it simply offered to "justify departing from this Court's precedents," ante, at 44. Rather it is a distinction that we have drawn throughout our cases; therefore, it is the plurality's *6 disregard for both factors that represents an unjustified departure. Unlike and respondent cannot invoke his Fifth Amendment rights and then gamble on whether the Department will revoke his Level III status; the punishment is mandatory. The fact that this case involves a prison inmate, as did and is not enough to render those decisions controlling authority. Since we have already said inmates do not forfeit their Fifth Amendment rights at the jailhouse gate, 465 U. S., at the plurality must point to something beyond respondent's status as a prisoner to justify its departure from our precedent. II The plurality and Justice O'Connor hold that the consequences stemming from respondent's invocation of the privilege are not serious enough to constitute compulsion. The threat of transfer to Level I and a maximum-security unit is not sufficiently coercive in their vieweither because the consequence is not really a penalty, just the loss of a benefit, or because it is a penalty, but an insignificant one. I strongly disagree. It took respondent several years to acquire the status that he occupied in 1994 when he was ordered to participate in the SATP. Because of the nature of his convictions, in 1983 the Department initially placed him in a maximum-security classification. Not until 1989 did the Department change his "security classification to `medium by exception' because of his good behavior." 99 P.d 171, 17 Thus, the sanction at issue threatens to deprive respondent of a status in the prison community that it took him six years to earn and which he had successfully maintained for five more years when he was ordered to incriminate himself. Moreover, abruptly "busting" his custody back to Level I, App. 94, would impose the same stigma on him as would a disciplinary conviction for any of the most serious offenses described in petitioners' formal *63 statement of Internal Management Policy and Procedure (IMPP). As the District Court found, the sanctions imposed on respondent "mirror the consequences imposed for serious disciplinary infractions." 4 F. Supp. d 115, This same loss of privileges is considered serious enough by prison authorities that it is used as punishment for theft, drug abuse, assault,
|
Justice Stevens
| 2,002 | 16 |
dissenting
|
McKune v. Lile
|
https://www.courtlistener.com/opinion/121146/mckune-v-lile/
|
it is used as punishment for theft, drug abuse, assault, and possession of dangerous contraband.[8] The punitive consequences of the discipline include not only the dignitary and reputational harms flowing from the transfer, but a serious loss of tangible privileges as well. Because he refused to participate in the SATP, respondent's visitation rights will be restricted. He will be able to earn only $0.60 per day, as compared to Level III inmates, who can potentially earn minimum wage. His access to prison organizations and activities will be limited. He will no longer be able to send his family more than $30 per pay period. He will be prohibited from spending more than $0 per payroll period at the canteen, rather than the $1 he could spend at Level III, and he will be restricted in what property he can keep in his cell. App. 7-8. In addition, because he will be transferred to a maximum-security unit, respondent will be forced to share a cell with three other *64 inmates rather than one, and his movement outside the cell will be substantially curtailed. The District Court found that the maximum-security unit is "a more dangerous environment occupied by more serious offenders." 4 F. Supp. d, at[9] Perhaps most importantly, respondent will no longer be able to earn his way back up to Level III status through good behavior during the remainder of his sentence. App. 17 ("To complete Level I, an inmate mustdemonstrate a willingness to participate in recommended programs and/or work assignments for a full review cycle"). The plurality's glib attempt to characterize these consequences as a loss of potential benefits rather than a penalty is wholly unpersuasive. The threatened transfer to Level I and to a maximum-security unit represents a significant, adverse change from the status quo. Respondent achieved his medium-security status after six years of good behavior and maintained that status during five more years. During that time, an inmate unquestionably develops settled expectations regarding the conditions of his confinement. These conditions then form the baseline against which any change must be measured, and rescinding them now surely constitutes punishment. Paying attention to the baseline is not just "superficially appealing," ante, at 46. We have recognized that the government *65 can extend a benefit in exchange for incriminating statements, see 53 U. S., at 88 ("[T]his pressure to speak in the hope of improving [one's] chance of being granted clemency does not make the interview compelled"), but cannot threaten to take away privileges as the cost of invoking Fifth Amendment rights, see, e. g., 414 U. S., ;
|
Justice Stevens
| 2,002 | 16 |
dissenting
|
McKune v. Lile
|
https://www.courtlistener.com/opinion/121146/mckune-v-lile/
|
Fifth Amendment rights, see, e. g., 414 U. S., ; 385 U. S., at Based on this distinction, nothing that I say in this dissent calls into question the constitutionality of downward adjustments for acceptance of responsibility under the United States Sentencing Guidelines, ante, at 47. Although such a reduction in sentence creates a powerful incentive for defendants to confess, it completely avoids the constitutional issue that would be presented if the Guidelines operated like the scheme here and authorized an upward adjustment whenever a defendant refused to accept responsibility. Similarly, taking into account an attorney's acceptance of responsibility or contrition in deciding whether to reinstate his membership to the bar of this Court, see ante, at is obviously different from disbarring an attorney for invoking his privilege. By obscuring the distinction between penalties and incentives, it is the plurality that calls into question both the Guidelines and plea bargaining. See U.S. 1, -4 ("Nor does this record indicate that he was being punished for exercising a constitutional right. [H]omicide defendants who are willing to plead non vult may be treated more leniently than those who go to trial, but withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as our cases sustaining plea bargaining remain undisturbed").[10] *66 Even if the change in respondent's status could properly be characterized as a loss of benefits to which he had no entitlement, the question at hand is not whether the Department could have refused to extend those benefits in the first place, but rather whether revoking them at this point constitutes a penalty for asserting the Fifth Amendment privilege. See 8 U.S. 5, The plurality contends that the transfer from medium to maximum security and the associated loss of Level III status is not intended to punish prisoners for asserting their Fifth Amendment rights, but rather is merely incidental to the prison's legitimate interest in making room for participants *67 in the program. Ante, at 38. Of course, the Department could still house participants together without moving those who refuse to participate to more restrictive conditions of confinement and taking away their privileges. Moreover, petitioners have not alleged that respondent is taking up a bed in a unit devoted to the SATP; therefore, all the Department would have to do is allow respondent to stay in his current medium-security cell. If need be, the Department could always transfer respondent to another mediumsecurity unit. Given the absence of evidence in the record that the Department has a shortage of medium-security beds, or even that there is
|
Justice Stevens
| 2,002 | 16 |
dissenting
|
McKune v. Lile
|
https://www.courtlistener.com/opinion/121146/mckune-v-lile/
|
a shortage of medium-security beds, or even that there is a separate unit devoted to participants in the SATP, the only plausible explanation for the transfer to maximum security and loss of Level III status is that it serves as punishment for refusing to participate in the program. Justice O'Connor recognizes that the transfer is a penalty, but finds insufficient coercion because the "changes in [respondent's] living conditions seem to [her] minor." Ante, at 51 (opinion concurring in judgment). The coerciveness of the penalty in this case must be measured not by comparing the quality of life in a prison environment with that in a free society, but rather by the contrast between the favored and disfavored classes of prisoners. It is obviously impossible to measure precisely the significance of the difference between being housed in a four-person, maximum-security cell in the most dangerous area of the prison, on the one hand, and having a key to one's own room, the right to take a shower, and the ability to move freely within adjacent areas during certain hours, on the otheror to fully appreciate the importance of visitation privileges, being able to send more than $30 per pay period to family, having access to the yard for exercise, and the opportunity to participate in group activities. What is perfectly clear, however, is that it is the aggregate effect of those penalties that creates compulsion. Nor is it coincidental that petitioners have selected this same *68 group of sanctions as the punishment to be imposed for the most serious s of prison rules. Considering these consequences as a whole and comparing the Department's treatment of respondent to the rest of the prison population, it is perfectly clear that the penalty imposed is "constitutionally indistinguishable from the coercive provisions we struck down in Gardner, Sanitation Men, and " 431 U. S., 07.[11] III The SATP clearly serves legitimate therapeutic purposes. The goal of the program is to rehabilitate sex offenders, and the requirement that participants complete admission of responsibility and sexual history forms may well be an important component of that process. Mental health professionals seem to agree that accepting responsibility for past sexual misconduct is often essential to successful treatment, and that treatment programs can reduce the risk of recidivism by sex offenders. See Winn, Strategic and Systematic Management of Denial in Cognitive/Behavioral Treatment of Sexual Offenders, 8 Sexual Abuse: J. Research and Treatment 5, 6-7 The program's laudable goals, however, do not justify reduced constitutional protection for those ordered to participate. "We have already rejected the notion that citizens may
|
Justice Stevens
| 2,002 | 16 |
dissenting
|
McKune v. Lile
|
https://www.courtlistener.com/opinion/121146/mckune-v-lile/
|
participate. "We have already rejected the notion that citizens may be forced to incriminate themselves because it serves a governmental need." 431 U. S., 08. *69 The benefits of obtaining confessions from sex offenders may be substantial, but "claims of overriding interests are not unusual in Fifth Amendment litigation," and until today at least "they have not fared well." The State's interests in law enforcement and rehabilitation are present in every criminal case. If those interests were sufficient to justify impinging on prisoners' Fifth Amendment right, inmates would soon have no privilege left to invoke. The plurality's willingness to sacrifice prisoners' Fifth Amendment rights is also unwarranted because available alternatives would allow the State to achieve the same objectives without impinging on inmates' privilege. 48 U.S. 78, The most obvious alternative is to grant participants use immunity. See n. 7 ; 45 U. S., at 318 Petitioners have not provided any evidence that the program's therapeutic aims could not be served equally well by granting use immunity. Participants would still obtain all the therapeutic benefits of accepting responsibility and admitting past misconduct; they simply would not incriminate themselves in the process. At least one State already offers such protection, see Ky. Rev. Stat. Ann. § 197.4 (West 001) and there is no indication that its choice is incompatible with rehabilitation. In fact, the program's rehabilitative goals would likely be furthered by ensuring free and open discussion *70 without the threat of prosecution looming over participants' therapy sessions. The plurality contends that requiring immunity will undermine the therapeutic goals of the program because once "inmates know society will not punish them for their past offenses, they may be left with the false impression that society does not consider those crimes to be serious ones." Ante, at 34. See also Brief for 18 States as Amici Curiae 11 ("By subjecting offenders to prosecution for newly revealed offenses, and by adhering to its chosen policy of mandatory reporting for cases of suspected child sexual abuse, Kansas reinforces the sensible notion that wrongdoing carries consequences"). The idea that an inmate who is confined to prison for almost 0 years for an offense could be left with the impression that his crimes are not serious or that wrongdoing does not carry consequences is absurd. Moreover, the argument starts from a false premise. Granting use immunity does not preclude prosecution; it merely prevents the State from using an inmate's own words, and the fruits thereof, against him in a subsequent prosecution. New 4 U.S. 450, The plurality's concern might be justified if the State were required
|
Justice Stevens
| 2,002 | 16 |
dissenting
|
McKune v. Lile
|
https://www.courtlistener.com/opinion/121146/mckune-v-lile/
|
plurality's concern might be justified if the State were required to grant transactional immunity, but we have made clear since Kastigar that use immunity is sufficient to alleviate a potential Fifth Amendment 6 U.S., at 453. Nor is a State required to grant use immunity in order to have a sex offender treatment program that involves admission of responsibility. Alternatively, the State could continue to pursue its rehabilitative goals without violating participants' Fifth Amendment rights by offering inmates a voluntary program. The United States points out that an inmate's participation in the sexual offender treatment program operated by the Federal Bureau of Prisons is entirely voluntary. "No loss of institutional privileges flows from an inmate's decision not to participate *71 in the program."[1] If an inmate chooses to participate in the federal program, he will be transferred from his "parent facility" to a "more desirable" prison, but if he refuses to participate in the first place, as respondent attempted to do, he suffers no negative consequences. Tr. of Oral Arg. 1-. Although the inmates in the federal program are not granted use immunity, they are not compelled to participate. Indeed, there is reason to believe successful rehabilitation is more likely for voluntary participants than for those who are compelled to accept treatment. See Abel, Mittelman, Becker, Rathner, & Rouleau, Predicting Child Molesters' Response to Treatment, 58 Annals N. Y. Acad. of Sciences 3 (1988) (finding that greater perceived pressure to participate in treatment is strongly correlated with the dropout rate). Through its treatment program, Kansas seeks to achieve the admirable goal of reducing recidivism among sex offenders. In the process, however, the State demands an impermissible and unwarranted sacrifice from the participants. No matter what the goal, inmates should not be compelled to forfeit the privilege against self-incrimination simply because the ends are legitimate or because they have been convicted of sex offenses. Particularly in a case like this one, in which respondent has protested his innocence all along and is being compelled to confess to a crime that he still insists he did not commit, we ought to ask ourselveswhat if this is one of those rare cases in which the jury made a *7 mistake and he is actually innocent? And in answering that question, we should consider that even members of the Star Chamber thought they were pursuing righteous ends. I respectfully dissent.
|
Justice Alito
| 2,020 | 8 |
dissenting
|
Maine Community Health Options v. United States
|
https://www.courtlistener.com/opinion/4748669/maine-community-health-options-v-united-states/
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Twice this Term, we have made the point that we have basically gotten out of the business of recognizing private rights of action not expressly created by Congress. Just a month ago in Comcast Corp. v. National Assn. of African American-Owned Media, 589 U. S. – (2020) (slip op., at 5–6), after noting a 1975 decision1 inferring a private —————— 1 N.M. 2 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES ALITO, J., dissenting right of action under 42 U.S. C. we wrote the follow- ing about that decision: “That was during a period when the Court often ‘as- sumed it to be a proper judicial function to provide such remedies as are necessary to make effective a statute’s purpose.’ Ziglar v. Abbasi, 582 U. S. (2017) (slip op., at 8) (internal quotation marks omitted). With the passage of time, of course, we have come to appreciate that, ‘[l]ike substantive federal law itself, private rights of action to enforce federal law must be created by Congress’ and ‘[r]aising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tri- bunals.’ –287 (internal quotation marks omitted).” A month before that, in Hernández v. Mesa, 589 U. S. (2020), we made the same point and accordingly refused to infer a cause of action under the Fourth Amendment for an allegedly unjustified cross-border shooting. We reasoned that “a lawmaking body that enacts a provision that creates a right may not wish to pursue the provision’s purpose to the extent of authorizing private suits for damages.” at (slip op., at 5). Other recent opinions are similar. See, e.g., Ziglar v. Abbasi, 582 U. S. –, (2017) (slip op., at 9–12, 23); Jesner v. Arab Bank, PLC, 584 U. S. – (slip op., at 18–19); at (THOMAS, J., concurring) (slip op., at 1); at – (ALITO, J., concurring in part and concurring in judgment) (slip op., at 1, 3–4); at (GORSUCH, J., concurring in part and con- curring in judgment) (slip op., at 1). Today, however, the Court infers a private right of action that has the effect of providing a massive bailout for insur- ance companies that took a calculated risk and lost. These companies chose to participate in an Affordable Care Act program that they thought would be profitable. I assume Cite as: 590 U. S. (2020) 3 ALITO, J., dissenting for the sake of argument that the Court is correct in holding that of the Affordable Care Act created an obligation that was not rescinded by subsequent appropriations rid- ers.
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Justice Alito
| 2,020 | 8 |
dissenting
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Maine Community Health Options v. United States
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https://www.courtlistener.com/opinion/4748669/maine-community-health-options-v-united-states/
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obligation that was not rescinded by subsequent appropriations rid- ers. Thus, for present purposes, I do not dispute the thrust of the analysis in Parts I–III of the opinion of the Court. I My disagreement concerns the critical question that the Court decides in the remainder of its opinion. In order for petitioners to recover, federal law must provide a right of action for damages. The Tucker Act, 28 U.S. C. un- der which petitioners brought suit, provides a waiver of sov- ereign immunity and a grant of federal-court jurisdiction, but it does not create any right of action. See, e.g., United Nor does any other federal statute expressly create such a right of action. The Court, however, holds that of the Afford- able Care Act does so by implication. Because says that the United States “shall pay” for the companies’ losses, 42 U.S. C. the Court finds it is proper to infer a private right of action to recover for these losses. This is an important step. Under the Court’s decision, billions of taxpayer dollars will be turned over to insurance companies that bet unsuccessfully on the success of the pro- gram in question. This money will have to be paid even though Congress has pointedly declined to appropriate money for that purpose. Not only will today’s decision have a massive immediate impact, its potential consequences go much further. The Court characterizes provisions like as “rare,” ante, at 26, but the phrase the “Secretary shall pay”––the language that the Court construes as creating a cause of action––ap- pears in many other federal statutes. II The Court concludes that it is proper for us to recognize 4 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES ALITO, J., dissenting a right of action to collect damages from the United States under any statute that “ ‘can fairly be interpreted as man- dating compensation.’ ” Ante, at 24. The Court is correct that prior cases have set out this test, but as the Court acknowledges, we have “[r]arely” had to determine whether it was met. See ante, at 26. And we have certainly never inferred such a right in a case even remotely like these. Nor has any prior case provided a reasoned explanation of the basis for the test. In United States v. 424 U.S. 392 (1976), the Court simply lifted the language in question from an opinion of the old United States Court of Claims before holding that the test was not met in the case at hand. at 400–402 (citing Eastport S. S. Corp. v. United States, (1967)). The Court
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Justice Alito
| 2,020 | 8 |
dissenting
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Maine Community Health Options v. United States
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https://www.courtlistener.com/opinion/4748669/maine-community-health-options-v-united-states/
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Eastport S. S. Corp. v. United States, (1967)). The Court of Claims opinion, in turn, did not ex- plain the origin or basis for this test. See at 372 F. 2d, at And not only have later cases parroted this language, they have expanded it. In United (empha- sis added), the Court wrote that “[i]t is enough that a statute be reasonably amenable to the reading that it mandates a right of recovery in damages.” Despite the uncertain foundation of this test, our post- decisions have simply taken it as a given. I would not continue that practice. Before holding that this test re- quires the payment of billions of dollars that Congress has pointedly refused to appropriate, we ought to be sure that there is a reasonable basis for this test. And that is ques- tionable.2 III There is obvious tension between what the Court now —————— 2 Moreover, there is at least an argument that the Court’s application of the test here is itself in conflict with United States v. 424 U.S. 392, 400 (1976), which also directed that the “grant of a right of action must be made with specificity.” Cite as: 590 U. S. (2020) 5 ALITO, J., dissenting calls the “money-mandating” test, ante, at 26–27, and our recent decisions regarding the recognition of private rights of action. Take the statute at issue in our Comcast decision. That provision, 42 U.S. C. states: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and prop- erty as is enjoyed by white citizens.” (Emphasis added.) Our opinion in Comcast suggested that we might not find this “shall have” language sufficient to justify the recogni- tion of a damages claim if the question came before us today as a matter of first impression. See 589 U. S., at – (slip op., at 5–6). But if that is so, how can we reach a dif- ferent conclusion with respect to the “shall pay” language in of the Affordable Care Act? Similarly, the Fourth Amendment provides that “[t]he right of the people to be secure against unreasonable seizures shall not be violated.” (Emphasis added.) Can this rights-mandating language be distinguished from what the Court describes as the “money-mandating” language found in ? See Hernández, 589 U. S., at – (slip op., at 8, 19–20) to Fourth Amendment claim arising in a “new context”).
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Justice Alito
| 2,020 | 8 |
dissenting
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Maine Community Health Options v. United States
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https://www.courtlistener.com/opinion/4748669/maine-community-health-options-v-united-states/
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19–20) to Fourth Amendment claim arising in a “new context”). One might argue that the assumptions underlying the en- actment of the Tucker Act justify our exercising more lee- way in inferring rights of action that may be asserted under that Act. When the Tucker Act was enacted in 1887, Con- gress undoubtedly assumed that the federal courts would “ ‘[r]ais[e] up causes of action,’ ” 532 U.S. 275, 287 in the manner of a common-law court. At that time, federal courts often applied general common 6 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES ALITO, J., dissenting law. But since Erie R. the federal courts have lacked this power. Yet the “money- mandating” test that the Court applies today, ante, at 26– 27, and n. 13, bears a disquieting resemblance to the sort of test that a common-law court might use in deciding whether to create a new cause of action. To be sure, some of the claims asserted under the Tucker Act, most notably contract claims, are governed by the new federal common law that applies in limited areas involving “ ‘uniquely fed- eral interests.’ ” Boyle v. United Technologies Corp., 487 U.S. 500, 504 ; see also And the recognition of an implied right to recover on such claims is thus easy to reconcile with the post-Erie regime. There may also be some sharply defined categories of claims3 that may be properly asserted simply as a matter of precedent.4 But the exercise of common-law power in cases like the ones now before us is a different matter. An argument based on Congress’s assumptions in enact- ing the Tucker Act would present a question that is similar to one we have confronted under the Alien Tort Statute —————— 3 Takings claims are an example. During the period when federal courts applied general common law, such claims were brought under the Tucker Act, apparently on the theory of implied contract. See, e.g., Hur- ; United States v. Lynah, 188 U.S. 445, 458– (1903). But the Court rejected the argument that a takings claim could be based “exclusively on the Constitution, without reference to any statute of the United States, or to any contract arising under an act of Congress.” 4 Compare (suggesting that private remedies might be available for contract claims); United States v. Mitchell, 463 U.S. 206, 224–228 (1983) (relying on “fiduciary relationship [that] arises when the Government assumes control over forests and prop- erty belonging to Indians” to create cause of action); (adjudicating suit brought by former service mem- bers for compensation while they were prisoners of war),
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Justice Alito
| 2,020 | 8 |
dissenting
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Maine Community Health Options v. United States
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https://www.courtlistener.com/opinion/4748669/maine-community-health-options-v-united-states/
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mem- bers for compensation while they were prisoners of war), with Bowen v. Massachusetts, (rejecting cause of action cognizable under the Tucker Act based on “shall pay” requirement under the Medicaid Act, 42 U.S. C. Cite as: 590 U. S. (2020) 7 ALITO, J., dissenting (ATS), a provision like the Tucker Act that grants federal jurisdiction but does not itself create any right of action. Our cases have assumed that the ATS was enacted on the as- sumption that it would provide a jurisdictional basis for plaintiffs to assert common-law claims, see but our recent cases have held that even there, we should exer- cise “great caution” before recognizing any new claims not created by statute, See also Jesner, 584 U. S., at – (slip op., at 18–19); There is every reason to believe that a similar caution should guide cases under the Tucker Act—especially when billions of dollars of federal funds are at stake. The money-mandating test that the Court applies here is in stark tension with this precedent. Despite its importance, the legitimacy of inferring a right of action under has not received much attention in these cases. The Federal Circuit addressed the question in passing in a footnote, and in this Court, the briefing and argument focused primarily on other issues. No attempt was made to reconcile our ap- proach to inferring rights of action in Tucker Act cases with our broader jurisprudence. I am unwilling to endorse the Court’s holding in these cases without understanding how the “money-mandating” test on which the Court relies fits into our general approach to the recognition of implied rights of action.5 Because the —————— 5 The Court claims that the logic of this opinion “suggests that a federal statute could never provide a cause of action for damages absent magic words explicitly inviting suit.” Ante, at 25, n. 12. But all I suggest is that the Court request briefing on the question of inferring causes of ac- tion to recover damages under the Tucker Act. The Court makes no effort to explain how the test it applies here can be reconciled with our general approach to inferring private rights of action but is apparently content to allow that inconsistency to remain. 8 MAINE COMMUNITY HEALTH OPTIONS v. UNITED STATES ALITO, J., dissenting briefing and argument that we have received have not fully addressed this important question, I would request supple- mental briefing and set the cases for re-argument next Term. For these reasons, I respectfully dissent. —————— The Court is flatly wrong in saying that the test in —whether a
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Justice Stewart
| 1,977 | 18 |
majority
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Dothard v. Rawlinson
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https://www.courtlistener.com/opinion/109725/dothard-v-rawlinson/
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Appellee Dianne Rawlinson sought employment with the Alabama Board of Corrections as a prison guard, called in Alabama a "correctional counselor." After her application was rejected, she brought this class suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. 00e et seq. (1970 ed. and Supp. V), and under 42 U.S. C. 1983, alleging that she had been denied employment because of her sex in violation of federal law. A three-judge Federal District Court for the Middle District of Alabama decided in her favor. We noted probable jurisdiction of this appeal from the District Court's judgment.[1] I At the time she applied for a position as correctional counselor trainee, Rawlinson was a 22-year-old college graduate whose major course of study had been correctional psychology. She was refused employment because she failed to meet the minimum 1-pound weight requirement established *324 by an Alabama statute. The statute also establishes a height minimum of 5 feet 2 inches.[2] After her application was rejected because of her weight, Rawlinson filed a charge with the Equal Employment Opportunity Commission, and ultimately received a right-to-sue letter.[3] She then filed a complaint in the District Court on behalf of herself and other similarly situated women, challenging the statutory height and weight minima as violative of Title VII and the Equal Protection Clause of the Fourteenth Amendment.[4] A three-judge court was convened.[5] While the suit was pending, the Alabama Board of Corrections * adopted Administrative Regulation 4, establishing gender criteria for assigning correctional counselors to maximum-security institutions for "contact positions," that is, positions requiring continual close physical proximity to inmates of the institution.[6] Rawlinson amended her class-action *326 complaint by adding a challenge to Regulation 4 as also violative of Title VII and the Fourteenth Amendment. Like most correctional facilities in the United[7] Alabama's prisons are segregated on the basis of sex. Currently the Alabama Board of Corrections operates four major all-male penitentiariesHolman Prison, Kilby Corrections Facility, G. K. Fountain Correction Center, and Draper Correctional Center. The Board also operates the Julia Tutwiler Prison for Women, the Frank Lee Youth Center, the Number Four Honor Camp, the State Cattle Ranch, and nine Work Release Centers, one of which is for women. The Julia Tutwiler Prison for Women and the four male penitentiaries are maximum-security institutions. Their inmate living quarters are for the most part large dormitories, with communal showers and toilets that are open to the dormitories and hallways. The Draper and Fountain penitentiaries carry on extensive farming operations, making necessary a large number of strip searches for contraband when
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Justice Stewart
| 1,977 | 18 |
majority
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Dothard v. Rawlinson
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necessary a large number of strip searches for contraband when prisoners re-enter the prison buildings. A correctional counselor's primary duty within these institutions is to maintain security and control of the inmates *327 by continually supervising and observing their activities.[8] To be eligible for consideration as a correctional counselor, an applicant must possess a valid Alabama driver's license, have a high school education or its equivalent, be free from physical defects, be between the ages of ½ years and 45 years at the time of appointment, and fall between the minimum height and weight requirements of 5 feet 2 inches, and 1 pounds, and the maximum of 6 feet 10 inches, and 300 pounds. Appointment is by merit, with a grade assigned each applicant based on experience and education. No written examination is given. At the time this litigation was in the District Court, the Board of Corrections employed a total of 435 people in various correctional counselor positions, 56 of whom were women. Of those 56 women, 21 were employed at the Julia Tutwiler Prison for Women, 13 were employed in noncontact positions at the four male maximum-security institutions, and the remaining 22 were employed at the other institutions operated by the Alabama Board of Corrections. Because most of Alabama's prisoners are held at the four maximum-security male penitentiaries, 336 of the 435 correctional counselor jobs were in those institutions, a majority of them concededly in the "contact" classification.[9] Thus, even though meeting the statutory height and weight requirements, women applicants could under Regulation 4 compete *328 equally with men for only about 25% of the correctional counselor jobs available in the Alabama prison system. II In enacting Title VII, Congress required "the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification." The District Court found that the minimum statutory height and weight requirements that applicants for employment as correctional counselors must meet constitute the sort of arbitrary barrier to equal employment opportunity that Title VII forbids.[10] The appellants assert that the District Court erred both in finding that the height and weight standards discriminate against women, and in its refusal to find that, even if they do, these standards are justified as "job related." A The gist of the claim that the statutory height and weight requirements discriminate against women does not involve an assertion of purposeful discriminatory motive.[11] It is asserted, *329 rather, that these facially neutral qualification standards work in fact disproportionately to exclude women from eligibility for employment by
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Justice Stewart
| 1,977 | 18 |
majority
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Dothard v. Rawlinson
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https://www.courtlistener.com/opinion/109725/dothard-v-rawlinson/
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fact disproportionately to exclude women from eligibility for employment by the Alabama Board of Corrections. We dealt in and Albemarle Paper v. with similar allegations that facially neutral employment standards disproportionately excluded Negroes from employment, and those cases guide our approach here. Those cases make clear that to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern. Once it is thus shown that the employment standards are discriminatory in effect, the employer must meet "the burden of showing that any given requirement [has] a manifest relationship to the employment in question." If the employer proves that the challenged requirements are job related, the plaintiff may then show that other selection devices without a similar discriminatory effect would also "serve the employer's legitimate interest in `efficient and trustworthy workmanship.'" Albemarle Paper v. quoting McDonnell Douglas Although women 14 years of age or older compose 52.75% of the Alabama population and 36.89% of its total labor force, they hold only 12.9% of its correctional counselor positions. In considering the effect of the minimum height and weight standards on this disparity in rate of hiring between the sexes, the District Court found that the 5'2"-requirement would operate to exclude 33.29% of the women in the United between the ages of 18-79, while excluding only 1.28% of men between the same ages. The 1-pound weight restriction would exclude 22.29% of the women and 2.35% of the men in this age group. When the height and weight restrictions are combined, Alabama's statutory standards would exclude 41.13% of the female population *330 while excluding less than 1% of the male population.[12] Accordingly, the District Court found that Rawlinson had made out a prima facie case of unlawful sex discrimination. The appellants argue that a showing of disproportionate impact on women based on generalized national statistics should not suffice to establish a prima facie case. They point in particular to Rawlinson's failure to adduce comparative statistics concerning actual applicants for correctional counselor positions in Alabama. There is no requirement, however, that a statistical showing of disproportionate impact must always be based on analysis of the characteristics of actual applicants. See The application process itself might not adequately reflect the actual potential applicant pool, since otherwise qualified people might be discouraged from applying because of a self-recognized inability to meet the very standards challenged as being discriminatory. See U.S. 324, A potential applicant could easily determine her height and weight and conclude that to make an application would be
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Justice Stewart
| 1,977 | 18 |
majority
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Dothard v. Rawlinson
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https://www.courtlistener.com/opinion/109725/dothard-v-rawlinson/
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weight and conclude that to make an application would be futile. Moreover, reliance on general population demographic data was not misplaced where there was no reason to suppose that physical height and weight characteristics of Alabama men and women differ markedly from those of the national population. *331 For these reasons, we cannot say that the District Court was wrong in holding that the statutory height and weight standards had a discriminatory impact on women applicants. The plaintiffs in a case such as this are not required to exhaust every possible source of evidence, if the evidence actually presented on its face conspicuously demonstrates a job requirement's grossly discriminatory impact. If the employer discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own. In this case no such effort was made.[13] B We turn, therefore, to the appellants' argument that they have rebutted the prima facie case of discrimination by showing that the height and weight requirements are job related. These requirements, they say, have a relationship to strength, a sufficient but unspecified amount of which is essential to effective job performance as a correctional counselor. In the District Court, however, the appellants produced no evidence correlating the height and weight requirements with the requisite amount of strength thought essential to good job performance. Indeed, they failed to offer evidence of any kind in specific justification of the statutory standards.[14] *332 If the job-related quality that the appellants identify is bona fide, their purpose could be achieved by adopting and validating a test for applicants that measures strength directly.[15] Such a test, fairly administered, would fully satisfy the standards of Title VII because it would be one that "measure[s] the person for the job and not the person in the abstract." But nothing in the present record even approaches such a measurement. For the reasons we have discussed, the District Court was not in error in holding that Title VII of the Civil Rights Act of 1964, as amended, prohibits application of the statutory height and weight requirements to Rawlinson and the class she represents. III Unlike the statutory height and weight requirements, Regulation 4 explicitly discriminates against women on the basis of their sex.[16] In defense of this overt discrimination, *333 the appellants rely on 703 (e) of Title VII, 42 U.S. C. 00e-2 (e), which permits sex-based discrimination "in those certain instances where sex is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." The District Court rejected the
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Justice Stewart
| 1,977 | 18 |
majority
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Dothard v. Rawlinson
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https://www.courtlistener.com/opinion/109725/dothard-v-rawlinson/
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that particular business or enterprise." The District Court rejected the bona-fide-occupational-qualification (bfoq) defense, relying on the virtually uniform view of the federal courts that 703 (e) provides only the narrowest of exceptions to the general rule requiring equality of employment opportunities. This view has been variously formulated. In the Court of Appeals for the Fifth Circuit held that "discrimination based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively." (Emphasis in original.) In an earlier case, Weeks v. Southern Bell Tel. & Tel. the same court said that an employer could rely on the bfoq exception only by proving "that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved." See also But whatever the verbal formulation, the federal courts have agreed that it is impermissible under Title VII to refuse to hire an individual woman or man on the basis of stereotyped characterizations of the sexes,[17] and the District *334 Court in the present case held in effect that Regulation 4 is based on just such stereotypical assumptions. We are persuadedby the restrictive language of 703 (e), the relevant legislative history,[18] and the consistent interpretation of the Equal Employment Opportunity Commission[19] that the bfoq exception was in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex.[] In the particular factual circumstances of this case, however, we conclude that the District Court erred in rejecting the State's contention that Regulation 4 falls within the narrow ambit of the bfoq exception. The environment in Alabama's penitentiaries is a peculiarly inhospitable one for human beings of whatever sex. Indeed, a Federal District Court has held that the conditions of confinement in the prisons of the State, characterized by "rampant violence" and a "jungle atmosphere," are constitutionally intolerable. (MD Ala.). The record in the present case shows that *335 because of inadequate staff and facilities, no attempt is made in the four maximum-security male penitentiaries to classify or segregate inmates according to their offense or level of dangerousnessa procedure that, according to expert testimony, is essential to effective penological administration. Consequently, the estimated % of the male prisoners who are sex offenders are scattered throughout the penitentiaries' dormitory facilities. In this environment of violence and disorganization, it would be an oversimplification to characterize Regulation 4 as an exercise in "romantic paternalism." Cf. In the usual case,
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Justice Stewart
| 1,977 | 18 |
majority
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Dothard v. Rawlinson
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https://www.courtlistener.com/opinion/109725/dothard-v-rawlinson/
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an exercise in "romantic paternalism." Cf. In the usual case, the argument that a particular job is too dangerous for women may appropriately be met by the rejoinder that it is the purpose of Title VII to allow the individual woman to make that choice for herself.[21] More is at stake in this case, however, than an individual woman's decision to weigh and accept the risks of employment in a "contact" position in a maximum-security male prison. The essence of a correctional counselor's job is to maintain prison security. A woman's relative ability to maintain order in a male, maximum-security, unclassified penitentiary of the type Alabama now runs could be directly reduced by her womanhood. There is a basis in fact for expecting that sex offenders who have criminally assaulted women in the past would be moved to do so again if access to women were established within the prison. There would also be a real risk that other inmates, deprived of a normal heterosexual environment, would assault women guards because they were women.[22] In a prison system where violence is the order *336 of the day, where inmate access to guards is facilitated by dormitory living arrangements, where every institution is understaffed, and where a substantial portion of the inmate population is composed of sex offenders mixed at random with other prisoners, there are few visible deterrents to inmate assaults on women custodians. Appellee Rawlinson's own expert testified that dormitory housing for aggressive inmates poses a greater security problem than single-cell lockups, and further testified that it would be unwise to use women as guards in a prison where even 10% of the inmates had been convicted of sex crimes and were not segregated from the other prisoners.[23] The likelihood that inmates would assault a woman because she was a woman would pose a real threat not only to the victim of the assault but also to the basic control of the penitentiary and protection of its inmates and the other security personnel. The employee's very womanhood would thus directly undermine her capacity to provide the security that is the essence of a correctional counselor's responsibility. There was substantial testimony from experts on both sides of this litigation that the use of women as guards in "contact" positions under the existing conditions in Alabama maximum-security male penitentiaries would pose a substantial security problem, directly linked to the sex of the prison guard. On the basis of that evidence, we conclude that the District Court was in error in ruling that being male is not a bona fide occupational qualification
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Justice Stewart
| 1,977 | 18 |
majority
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Dothard v. Rawlinson
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https://www.courtlistener.com/opinion/109725/dothard-v-rawlinson/
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that being male is not a bona fide occupational qualification for the job of *337 correctional counselor in a "contact" position in an Alabama male maximum-security penitentiary.[24] The judgment is accordingly affirmed in part and reversed in part, and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, concurring in the result and concurring in part. I agree with, and join, Parts I and III of the Court's opinion in this case and with its judgment. While I also agree with the Court's conclusion in Part II of its opinion, holding that the District Court was "not in error" in holding the statutory height and weight requirements in this case to be invalidated by Title VII, ante, at 332, the issues with which that Part deals are bound to arise so frequently that I feel obliged to separately state the reasons for my agreement with its result. I view affirmance of the District Court in this respect as essentially dictated by the peculiarly limited factual and legal justifications offered below by appellants on behalf of the statutory requirements. For that reason, I do not believeand do not read the Court's opinion as holdingthat all or even many of the height and weight requirements imposed by on applicants for a multitude of law enforcement agency jobs are pretermitted by today's decision. I agree that the statistics relied upon in this case are sufficient, absent rebuttal, to sustain a finding of a prima *338 facie violation of 703 (a) (2), in that they reveal a significant discrepancy between the numbers of men, as opposed to women, who are automatically disqualified by reason of the height and weight requirements. The fact that these statistics are national figures of height and weight, as opposed to statewide or pool-of-labor-force statistics, does not seem to me to require us to hold that the District Court erred as a matter of law in admitting them into evidence. See ; cf. Zenith It is for the District Court, in the first instance, to detormine whether these statistics appear sufficiently probative of the ultimate fact in issuewhether a given job qualification requirement has a disparate impact on some group protected by Title VII. Hazelwood School Dist. v. United ante, at 312-313; see at ; ; see also McAllister v. United ; United v. Yellow Cab In making this determination, such statistics are to be considered in light of all other relevant facts and circumstances. Cf. U.S.
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Justice Stewart
| 1,977 | 18 |
majority
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Dothard v. Rawlinson
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light of all other relevant facts and circumstances. Cf. U.S. 324, The statistics relied on here do not suffer from the obvious lack of relevancy of the statistics relied on by the District Court in Hazelwood School Dist. v. United ante, at 308. A reviewing court cannot say as a matter of law that they are irrelevant to the contested issue or so lacking in reliability as to be inadmissible. If the defendants in a Title VII suit believe there to be any reason to discredit plaintiffs' statistics that does not appear on their face, the opportunity to challenge them is available to the defendants just as in any other lawsuit. They may endeavor to impeach the reliability of the statistical evidence, they may offer rebutting evidence, or they may disparage in arguments or in briefs the probative weight which *339 the plaintiffs' evidence should be accorded. Since I agree with the Court that appellants made virtually no such effort, ante, at 331, I also agree with it that the District Court cannot be said to have erred as a matter of law in finding that a prima facie case had been made out in the instant case. While the District Court's conclusion is by no means required by the proffered evidence, I am unable to conclude that the District Court's finding in that respect was clearly erroneous. In other cases there could be different evidence which could lead a district court to conclude that height and weight are in fact an accurate enough predictor of strength to justify, under all the circumstances, such minima. Should the height and weight requirements be found to advance the job-related qualification of strength sufficiently to rebut the prima facie case, then, under our cases, the burden would shift back to appellee Rawlinson to demonstrate that other tests, without such disparate effect, would also meet that concern. Albemarle Paper v. But, here, the District Court permissibly concluded that appellants had not shown enough of a nexus even to rebut the inference. Appellants, in order to rebut the prima facie case under the statute, had the burden placed on them to advance job-related reasons for the qualification. McDonnell Douglas This burden could be shouldered by offering evidence or by making legal arguments not dependent on any new evidence. The District Court was confronted, however, with only one suggested job-related reason for the qualificationthat of strength. Appellants argued only the job-relatedness of actual physical strength; they did not urge that an equally job-related qualification for prison guards is the appearance of strength. As the Court notes,
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Justice Stewart
| 1,977 | 18 |
majority
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Dothard v. Rawlinson
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guards is the appearance of strength. As the Court notes, the primary job of correctional counselor in Alabama prisons "is to maintain security and control of the inmates.," ante, at 326, a function that I at least would * imagine is aided by the psychological impact on prisoners of the presence of tall and heavy guards. If the appearance of strength had been urged upon the District Court here as a reason for the height and weight minima, I think that the District Court would surely have been entitled to reach a different result than it did. For, even if not perfectly correlated, I would think that Title VII would not preclude a State from saying that anyone under 5'2" or 1 pounds, no matter how strong in fact, does not have a sufficient appearance of strength to be a prison guard. But once the burden has been placed on the defendant, it is then up to the defendant to articulate the asserted job-related reasons underlying the use of the minima. McDonnell Douglas at ; ; Albemarle Paper v. Because of this burden, a reviewing court is not ordinarily justified in relying on arguments in favor of a job qualification that were not first presented to the trial court. Cf. United v. Arnold, Schwinn & U.S. 365, ; ; (13). As appellants did not even present the "appearance of strength" contention to the District Court as an asserted job-related reason for the qualification requirements, I agree that their burden was not met. The District Court's holding thus did not deal with the question of whether such an assertion could or did rebut appellee Rawlinson's prima facie case. MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, concurring in part and dissenting in part. I agree entirely with the Court's analysis of Alabama's height and weight requirements for prison guards, and with its finding that these restrictions discriminate on the basis of sex in violation of Title VII. Accordingly, I join Parts I and II of the Court's opinion. I also agree with much of the Court's general discussion in Part III of the bona-fide-occupational-qualification *341 exception contained in 703 (e) of Title VII.[1] The Court is unquestionably correct when it holds "that the bfoq exception was in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex." Ante, at 334. See I must, however, respectfully disagree with the Court's application of the bfoq exception in this case. The Court properly rejects two proffered justifications for denying women jobs as prison guards.
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Justice Stewart
| 1,977 | 18 |
majority
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Dothard v. Rawlinson
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https://www.courtlistener.com/opinion/109725/dothard-v-rawlinson/
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two proffered justifications for denying women jobs as prison guards. It is simply irrelevant here that a guard's occupation is dangerous and that some women might be unable to protect themselves adequately. Those themes permeate the testimony of the state officials below, but as the Court holds, "the argument that a particular job is too dangerous for women" is refuted by the "purpose of Title VII to allow the individual woman to make that choice for herself." Ante, at 335. Some women, like some men, undoubtedly are not qualified and do not wish to serve as prison guards, but that does not justify the exclusion of all women from this employment opportunity. Thus, "[i]n the usual case," ibid., the Court's interpretation of the bfoq exception would mandate hiring qualified women for guard jobs in maximum-security institutions. The highly successful experiences of other allowing such job opportunities, see briefs for the of California and Washington as amici curiae, confirm that absolute disqualification of women is not, in the words of Title VII, "reasonably necessary to the normal operation" of a maximum-security prison. What would otherwise be considered unlawful discrimination against women is justified by the Court, however, on the *342 basis of the "barbaric and inhumane" conditions in Alabama prisons, conditions so bad that state officials have conceded that they violate the Constitution. See To me, this analysis sounds distressingly like saying two wrongs make a right. It is refuted by the plain words of 703 (e). The statute requires that a bfoq be "reasonably necessary to the normal operation of that particular business or enterprise." But no governmental "business" may operate "normally" in violation of the Constitution. Every action of government is constrained by constitutional limitations. While those limits may be violated more frequently than we would wish, no one disputes that the "normal operation" of all government functions takes place within them. A prison system operating in blatant violation of the Eighth Amendment is an exception that should be remedied with all possible speed, as Judge Johnson's comprehensive order in is designed to do. In the meantime, the existence of such violations should not be legitimatized by calling them "normal." Nor should the Court accept them as justifying conduct that would otherwise violate a statute intended to remedy age-old discrimination. The Court's error in statutory construction is less objectionable, however, than the attitude it displays toward women. Though the Court recognizes that possible harm to women guards is an unacceptable reason for disqualifying women, it relies instead on an equally speculative threat to prison discipline supposedly generated by the
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Justice Stewart
| 1,977 | 18 |
majority
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Dothard v. Rawlinson
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https://www.courtlistener.com/opinion/109725/dothard-v-rawlinson/
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equally speculative threat to prison discipline supposedly generated by the sexuality of female guards. There is simply no evidence in the record to show that women guards would create any danger to security in Alabama prisons significantly greater than that which already exists. All of the dangerswith one exception discussed beloware inherent in a prison setting, whatever the gender of the guards. *343 The Court first sees women guards as a threat to security because "there are few visible deterrents to inmate assaults on women custodians." Ante, at 336. In fact, any prison guard is constantly subject to the threat of attack by inmates, and "invisible" deterrents are the guard's only real protection. No prison guard relies primarily on his or her ability to ward off an inmate attack to maintain order. Guards are typically unarmed and sheer numbers of inmates could overcome the normal complement. Rather, like all other law enforcement officers, prison guards must rely primarily on the moral authority of their office and the threat of future punishment for miscreants. As one expert testified below, common sense, fairness, and mental and emotional stability are the qualities a guard needs to cope with the dangers of the job. App. 81. Well qualified and properly trained women, no less than men, have these psychological weapons at their disposal. The particular severity of discipline problems in the Alabama maximum-security prisons is also no justification for the discrimination sanctioned by the Court. The District Court found in that guards "must spend all their time attempting to maintain control or to protect themselves." 406 F. Supp., at If male guards face an impossible situation, it is difficult to see how women could make the problem worse, unless one relies on precisely the type of generalized bias against women that the Court agrees Title VII was intended to outlaw. For example, much of the testimony of appellants' witnesses ignores individual differences among members of each sex and reads like "ancient canards about the proper role of women." The witnesses claimed that women guards are not strict disciplinarians; that they are physically less capable of protecting themselves and subduing unruly inmates; that inmates take advantage of them as they did their mothers, while male guards are strong father figures *344 who easily maintain discipline, and so on.[2] Yet the record shows that the presence of women guards has not led to a single incident amounting to a serious breach of security in any Alabama institution.[3] And, in any event, "[g]uards rarely enter the cell blocks and dormitories," 406 F. Supp., at where the danger
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Justice Stewart
| 1,977 | 18 |
majority
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Dothard v. Rawlinson
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blocks and dormitories," 406 F. Supp., at where the danger of inmate attacks is the greatest. *345 It appears that the real disqualifying factor in the Court's view is "[t]he employee's very womanhood." Ante, at 336. The Court refers to the large number of sex offenders in Alabama prisons, and to "[t]he likelihood that inmates would assault a woman because she was a woman." In short, the fundamental justification for the decision is that women as guards will generate sexual assaults. With all respect, this rationale regrettably perpetuates one of the most insidious of the old myths about womenthat women, wittingly or not, are seductive sexual objects. The effect of the decision, made I am sure with the best of intentions, is to punish women because their very presence might provoke sexual assaults. It is women who are made to pay the price in lost job opportunities for the threat of depraved conduct by prison inmates. Once again, "[t]he pedestal upon which women have been placed has, upon closer inspection, been revealed as a cage." Sail'er Inn, It is particularly ironic that the cage is erected here in response to feared misbehavior by imprisoned criminals.[4] The Court points to no evidence in the record to support the asserted "likelihood that inmates would assault a woman because she was a woman." Ante, at 336. Perhaps the Court relies upon common sense, or "innate recognition," Brief for Appellants 51. But the danger in this emotionally laden context is that common sense will be used to mask the "`romantic paternalism'" and persisting discriminatory attitudes *346 that the Court properly eschews. Ante, at 335. To me, the only matter of innate recognition is that the incidence of sexually motivated attacks on guards will be minute compared to the "likelihood that inmates will assault" a guard because he or she is a guard. The proper response to inevitable attacks on both female and male guards is not to limit the employment opportunities of law-abiding women who wish to contribute to their community, but to take swift and sure punitive action against the inmate offenders. Presumably, one of the goals of the Alabama prison system is the eradication of inmates' antisocial behavior patterns so that prisoners will be able to live one day in free society. Sex offenders can begin this process by learning to relate to women guards in a socially acceptable manner. To deprive women of job opportunities because of the threatened behavior of convicted criminals is to turn our social priorities upside down.[5] Although I do not countenance the sex discrimination *347 condoned
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Justice Stewart
| 1,977 | 18 |
majority
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Dothard v. Rawlinson
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https://www.courtlistener.com/opinion/109725/dothard-v-rawlinson/
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Although I do not countenance the sex discrimination *347 condoned by the majority, it is fortunate that the Court's decision is carefully limited to the facts before it. I trust the lower courts will recognize that the decision was impelled by the shockingly inhuman conditions in Alabama prisons, and thus that the "extremely narrow [bfoq] exception" recognized here, ante, at 334, will not be allowed "to swallow the rule" against sex discrimination. See Expansion of today's decision beyond its narrow factual basis would erect a serious roadblock to economic equality for women. MR. JUSTICE WHITE, concurring in No. 76-255 and dissenting in No. 76-422. I join the Court's opinion in Hazelwood School Dist. v. United No. 76-255, ante, p. 299, but with reservations with respect to the relative neglect of applicant pool data in finding a prima facie case of employment discrimination and heavy reliance on the disparity between the areawide percentage of black public school teachers and the percentage of blacks on Hazelwood's teaching staff. Since the issue is whether Hazelwood discriminated against blacks in hiring after Title VII became applicable to it in 1972, perhaps the Government should have looked initially to Hazelwood's hiring practices in the 1972-1973 and 1973-1974 academic years with respect to the available applicant pool, rather than to history and to comparative work-force statistics from other school districts. Indeed, there is evidence in the record suggesting that Hazelwood, with a black enrollment of only 2%, hired a higher percentage of black applicants than of white applicants for these two years. The Court's opinion, of course, permits Hazelwood to introduce applicant pool data on remand in order to rebut the prima facie case of a discriminatory pattern or practice. This may be the only fair and realistic allocation of the evidence burden, but arguably the United should have been required to adduce evidence as to the applicant pool *348 before it was entitled to its prima facie presumption. At least it might have been required to present some defensible ground for believing that the racial composition of Hazelwood's applicant pool was roughly the same as that for the school districts in the general area, before relying on comparative work-force data to establish its prima facie case. In Dothard v. Rawlinson, No. 76-422, I have more trouble agreeing that a prima facie case of sex discrimination was made out by statistics showing that the Alabama height and weight requirements would exclude a larger percentage of women in the United than of men. As in Hazelwood, the issue is whether there was discrimination in dealing with actual
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Justice Stewart
| 1,977 | 18 |
majority
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Dothard v. Rawlinson
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issue is whether there was discrimination in dealing with actual or potential applicants; but in Hazelwood there was at least a colorable argument that the racial composition of the areawide teacher work force was a reasonable proxy for the composition of the relevant applicant pool and hence that a large divergence between the percentage of blacks on the teaching staff and the percentage in the teacher work force raised a fair inference of racial discrimination in dealing with the applicant pool. In Dothard, however, I am unwilling to believe that the percentage of women applying or interested in applying for jobs as prison guards in Alabama approximates the percentage of women either in the national or state population. A plaintiff could, of course, show that the composition of the applicant pool was distorted by the exclusion of nonapplicants who did not apply because of the allegedly discriminatory job requirement. But no such showing was made or even attempted here; and although I do not know what the actual fact is, I am not now convinced that a large percentage of the actual women applicants, or of those who are seriously interested in applying, for prison guard positions would fail to satisfy the height and weight requirements. Without a more satisfactory record on this issue, I cannot conclude that appellee Rawlinson has either made out a prima facie case for the invalidity of the restrictions or otherwise proved that she was *349 improperly denied employment as a prison guard. There being no showing of discrimination, I do not reach the question of justification; nor, since she does not meet the threshold requirements for becoming a prison guard, need I deal with the gender-based requirements for contact positions. I dissent from the Court's judgment in Dothard insofar as it affirms the judgment of the District Court.
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Justice Stevens
| 1,977 | 16 |
concurring
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Dixon v. Love
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https://www.courtlistener.com/opinion/109651/dixon-v-love/
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While I join the opinion of the Court, I believe it is important to point out that the Court has not rejected the constitutional analysis of the District Court. The District Court held that a driver's license may not be revoked on the basis of an ex parte determination that certain facts "indicate. disrespect for the traffic laws." This Court does not disagree. It merely holds that the District Court erred in its assumption that appellee's license was revoked on the authority of the first sentence of Rule 6-206 (a)3 (1975),[1] which the District Court construed to require such a determination.[2] *117 The Court interprets the Secretary's action as resting on the second sentence of Rule 6-206 (a)3 which provides that a person's license must be revoked if it has been suspended three times in 10 years. Appellee's license had already been suspended twice. A third suspension would have been required under a different rule because appellee had three convictions in one year.[3] Consequently, appellee's license was subject to mandatory revocation, see ante, at 111 n. 8, and no prior hearing was necessary. MR. JUSTICE BRENNAN, concurring in the result. My Brother STEVENS' concurring opinion makes clear that appellee's license was revoked under a valid regulation making *118 revocation mandatory if his license had been suspended three times within 10 years. Rule 6-206 (a)3 (1975). Appellee's license was properly suspended for a third time within a 10-year period when he was convicted of a speeding violation on March 31, 1976. This suspension, and both earlier suspensions, were based on convictions for traffic offenses which appellee does not contest here. Under these circumstances, the requirement of a prior hearing mandated by is not applicable since, as my Brother STEVENS demonstrates, a hearing was unnecessary to establish what was already clearthat the revocation of appellee's license was mandatory.
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Justice Powell
| 1,986 | 17 |
concurring
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Sheet Metal Workers v. EEOC
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https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
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I join Parts I, II, III, and VI of JUSTICE BRENNAN's opinion. I further agree that 706(g) does not limit a court in all cases to granting relief only to actual victims of discrimination. I write separately with respect to the issues raised in Parts IV and V to explain why I think the remedy ordered under the circumstances of this case violated neither Title VII nor the Constitution. I Petitioners contend that the Fund order and the membership goal imposed by the District Court and upheld by the Court of Appeals are forbidden by 706(g) because that provision authorizes an award of preferential relief only to the actual victims of unlawful discrimination. The plain language of Title VII does not clearly support a view that all remedies must be limited to benefiting victims. And although the matter is not entirely free from doubt, I am unpersuaded by petitioners' reliance on the legislative history of Title VII. Rather, in cases involving particularly egregious conduct a district court may fairly conclude that an injunction *484 alone is insufficient to remedy a proven violation of Title VII. This is such a case. The history of petitioners' contemptuous racial discrimination and their successive attempts to evade all efforts to end that discrimination is well stated in Part I of the Court's opinion. Under these circumstances the District Court acted within the remedial authority granted by 706(g) in establishing the Fund order and numerical goal at issue in this case. This Court's decision in is not to the contrary. There, the question whether Title VII might ever authorize a remedy that benefits those who were not victims of discrimination was not before us, although there is language in the opinion suggesting an answer to that question. II There remains for consideration the question whether the Fund order and membership goal contravene the equal protection component of the Due Process Clause of the Fifth Amendment because they may deny benefits to white individuals based on race. I have recently reiterated what I believe to be the standard for assessing a constitutional challenge to a racial classification: " `Any preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees.' There are two prongs to this examination. First, any racial classification `must be justified by a compelling governmental interest' ; see ; cf. Second, the means chosen by the State to effectuate its purpose must be `narrowly tailored to the achievement of that *485 goal" The finding by the District Court and
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Justice Powell
| 1,986 | 17 |
concurring
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Sheet Metal Workers v. EEOC
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that *485 goal" The finding by the District Court and the Court of Appeals that petitioners have engaged in egregious violations of Title VII establishes, without doubt, a compelling governmental interest sufficient to justify the imposition of a racially classified remedy. It would be difficult to find defendants more determined to discriminate against minorities. My inquiry, therefore, focuses on whether the District Court's remedy is "narrowly tailored," see to the goal of eradicating the discrimination engaged in by petitioners. I believe it is. The Fund order is supported not only by the governmental interest in eradicating petitioners' discriminatory practices, it also is supported by the societal interest in compliance with the judgments of federal courts. Cf. United The Fund order was not imposed until after petitioners were held in contempt. In requiring the Union to create the Fund, the District Court expressly considered " `the consequent seriousness of the burden' to the defendants." App. to Pet. for Cert. 156, Moreover, the focus of the Fund order was to give minorities opportunities that for years had been available informally only to nonminorities. The burden this imposes on nonminorities is slight. Under these circumstances, I have little difficulty concluding that the Fund order was carefully structured to vindicate the compelling governmental interests present in this case. The percentage goal raises a different question. In this Court upheld the constitutionality of the "minority business enterprise" provision of the Public Works Employment Act of 1977, which required, absent administrative waiver, that at least 10% of federal funds granted for local public works projects be used by grantees to procure services or supplies from businesses owned by minority group members. In my *486 concurring opinion, I relied on four factors that had been applied by Courts of Appeals when considering the proper scope of race-conscious hiring remedies. Those factors were: (i) the efficacy of alternative remedies; (ii) the planned duration of the remedy; (iii) the relationship between the percentage of minority workers to be employed and the percentage of minority group members in the relevant population or work force; and (iv) the availability of waiver provisions if the hiring plan could not be met. at 510-5. A final factor of primary importance that I considered in as well as in was "the effect of the [remedy] upon innocent third parties." Application of those factors demonstrates that the goal in this case comports with constitutional requirements. First, it is doubtful, given petitioners' history in this litigation, that the District Court had available to it any other effective remedy. That court, having had the parties before it
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Justice Powell
| 1,986 | 17 |
concurring
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Sheet Metal Workers v. EEOC
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https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
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effective remedy. That court, having had the parties before it over a period of time, was in the best position to judge whether an alternative remedy, such as a simple injunction, would have been effective in ending petitioners' discriminatory practices. Here, the court imposed the 29% goal in only after declaring that "[i]n light of Local 28's and JAC's failure to `clean house' this court concludes that the imposition of a remedial racial goal is essential to place the defendants in a position of compliance with the 1964 Civil Rights Act."[1] On these facts, it is fair to conclude that absent *487 authority to set a goal as a benchmark against which it could measure progress in eliminating discriminatory practices, the District Court may have been powerless to provide an effective remedy. Second, the goal was not imposed as a permanent requirement, but is of limited duration. Third, the goal is directly related to the percentage of nonwhites in the relevant work force. As a fourth factor, my concurring opinion in considered whether waiver provisions were available in the event that the hiring goal could not be met. The requirement of a waiver provision or, more generally, of flexibility with respect to the imposition of a numerical goal reflects a recognition that neither the Constitution nor Title VII requires a particular racial balance in the workplace. Indeed, the Constitution forbids such a requirement if imposed for its own sake. "We have recognized, however, that in order to remedy the effects of prior discrimination, it may be necessary to take race into account." Thus, a court may not choose a remedy for the purpose of attaining a particular racial balance; rather, remedies properly are confined to the elimination of proven discrimination. A goal is a means, useful in limited circumstances, to assist a court in determining whether discrimination has been eradicated. The flexible application of the goal requirement in this case demonstrates that it is not a means to achieve racial balance. The contempt order was not imposed for the Union's failure to achieve the goal, but for its failure to take the prescribed steps that would facilitate achieving the goal. Additional * flexibility is evidenced by the fact that this goal, originally set to be achieved by 1981, has been twice delayed and is now set for 1987.[2] It is also important to emphasize that on the record before us, it does not appear that nonminorities will be burdened directly, if at all. Petitioners' counsel conceded at oral argument that imposition of the goal would not require the layoff of
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Justice Powell
| 1,986 | 17 |
concurring
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Sheet Metal Workers v. EEOC
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https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
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imposition of the goal would not require the layoff of nonminority union workers, and that therefore the District Court's order did not disadvantage existing union members. Tr. of Oral Arg. 21. This case is thus distinguishable from where the plurality opinion noted that "layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives." In contrast to the layoff provision in the goal at issue here is akin to a hiring goal. In the plurality observed: "In cases involving valid hiring goals, the burden to be borne by individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose."[3] My view that the imposition of flexible goals as a remedy for past discrimination may be permissible under the Constitution *489 is not an endorsement of their indiscriminate use. Nor do I imply that the adoption of such a goal will always pass constitutional muster.[4] JUSTICE O'CONNOR, concurring in part and dissenting in part. I join Parts II-A, III, and VI of the Court's opinion. I would reverse the judgment of the Court of Appeals on statutory grounds insofar as the membership "goal" and the Fund order are concerned, and I would not reach petitioners' constitutional claims. I agree with JUSTICE WHITE, however, that the membership "goal" in this case operates as a rigid racial quota that cannot feasibly be met through good-faith efforts by Local 28. In my view, 703(j), 42 U.S. C. 2000e-2(j), and 706(g), 42 U.S. C. 2000e-5(g), read together, preclude courts from ordering racial quotas such as this. I therefore dissent from the Court's judgment insofar as it affirms the use of these mandatory quotas. In the Court interpreted 706(g) as embodying a policy against court-ordered remedies under Title VII that award racial preferences in employment to individuals who have not been subjected to unlawful discrimination. See The dissenting opinion in Stotts urged precisely the position advanced by JUSTICE BRENNAN's plurality opinion today that any such policy extends only to awarding make-whole relief *490 to particular nonvictims of discrimination, and does not bar classwide racial preferences in certain cases. The Court unquestionably rejected that view in Stotts. Although technically dicta, the discussion of 706(g) in Stotts was an important part of the Court's rationale for the result it reached, and accordingly is entitled to greater weight than the Court gives it today. See It is now clear, however that a majority of the Court believes that the
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Justice Powell
| 1,986 | 17 |
concurring
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Sheet Metal Workers v. EEOC
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https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
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however that a majority of the Court believes that the last sentence of 706(g) does not in all circumstances prohibit a court in a Title VII employment discrimination case from ordering relief that may confer some racial preferences with regard to employment in favor of nonvictims of discrimination. See ante, at 444-475 (opinion of BRENNAN, J.); ante, at 483-484 (opinion of POWELL, J.); post, at 499 (opinion of WHITE, J.). Even assuming that some forms of race-conscious affirmative relief, such as racial hiring goals, are permissible as remedies for egregious and pervasive violations of Title VII, in my view the membership "goal" and Fund order in this case were impermissible because they operate not as goals but as racial quotas. Such quotas run counter to 703(j) of Title VII, and are thus impermissible under 706(g) when that section is read in light of 703(j), as I believe it should be. The plurality asserts that 703(j) in no way "qualifies or proscribes a court's authority to order relief otherwise appropriate under 706(g) in circumstances where an illegal discriminatory act or practice is established." Ante, at 464, n. 37. According to the plurality, 703(j) merely provides that an employer or union does not engage in unlawful discrimination simply on account of a racial imbalance in its work force or membership, and thus is not required to institute preferential quotas to avoid Title VII liability. Thus, the plurality concedes that 703(j) is aimed at racial quotas, but interprets it as limiting only the substantive liability of employers and unions, not the remedial powers of courts. * This interpretation of 703(j) is unduly narrow. Section 703(j) provides: "Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area" In the
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Justice Powell
| 1,986 | 17 |
concurring
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Sheet Metal Workers v. EEOC
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https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
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in any community, State, section, or other area" In the Court stated that "Section 703(j) speaks to substantive liability under Title VII." While this is one purpose of 703(j), the Court in Weber had no occasion to consider whether it was the exclusive purpose. In my view, the words "Nothing contained in this title shall be interpreted to require" plainly make 703(j) applicable to the interpretation of any provision of Title VII, including 706(g). Therefore, when a court interprets 706(g) as authorizing it to require an employer to adopt a racial quota, that court contravenes 703(j) to the extent that the relief imposed as a purported remedy for a violation of Title VII's substantive provisions in fact operates to require racial preferences "on account of [a racial] imbalance." In addition, since 703(j) by its terms limits the circumstances in which an employer or union may *492 be required to extend "preferential treatment to any individual or to any group because of race," the plurality's distinction between make-whole and classwide relief is plainly ruled out insofar as 703(j) is concerned. The plurality's restrictive reading of 703(j) rests largely on its view of the legislative history, which the plurality claims establishes that Congress simply did not consider the use of racial preferences to remedy past discrimination when it enacted Title VII. According to the plurality, the sole focus of concern over racial quotas involved the scope of substantive liability under Title VII: the fear was that employers or unions would be found liable for violating Title VII merely on account of a racial imbalance. This reading of the legislative history ignores authoritative statements relied on by the Court in Stotts, -582 addressing the relief courts could order, and making plain that racial quotas, at least, were not among the permissible remedies for past discrimination. See, e. g., 0 Cong. Rec. 6549 (1964) ("Contrary to the allegations of some opponents of this title, there is nothing in it that will give any power to the Commission or to any court to require hiring, firing, or promotion of employees in order to meet a racial `quota' or to achieve a certain racial balance") (Sen. Humphrey); (memorandum of Republican House sponsors); (statement of Senate sponsors in a bipartisan newsletter delivered to Senators supporting the bill during an attempted filibuster). The plurality's reading of the legislative history also defies common sense. Legislators who objected to racial quotas obviously did so because of the harm that such quotas would impose on innocent nonminority workers as well as because *493 of the restriction on employer freedom
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Justice Powell
| 1,986 | 17 |
concurring
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Sheet Metal Workers v. EEOC
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https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
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well as because *493 of the restriction on employer freedom that would follow from an across-the-board requirement of racial balance in every workplace. Racial quotas would inflict such harms on nonminority workers whether such quotas were imposed directly by federal law in the form of a requirement that every work force be racially balanced, or imposed as part of a court-ordered remedy for an employer's violations of Title VII. The legislative history, fairly read, indicates that such racial quotas are impermissible as a means of enforcing Title VII, and that even racial preferences short of quotas should be used only where clearly necessary if these preferences would benefit nonvictims at the expense of innocent nonminority workers. At bottom, the plurality recognizes that this is so, although it prefers to cut the congressional rejection of racial quotas loose from any statutory moorings and make this policy simply another factor that should inform the remedial discretion of district courts. Indeed, notwithstanding its claim that 703(j) is irrelevant to interpretation of 706(g), The plurality tacitly concedes that racial quotas are improper, and that they are improper by virtue of 703(j). The plurality says that in considering whether to grant race-conscious affirmative relief "the court should exercise its discretion with an eye towards Congress' concern that race-conscious affirmative measures not be invoked simply to create a racially balanced work force." Ante, at 475. Since this is precisely the congressional concern that the plurality locates in 703(j), the plurality appears to recognize that 703(j) is relevant, after all, to the choice of remedies under 706(g). Moreover, the plurality indicates that a hiring or membership goal must be applied flexibly in order that the goal not be "used simply to achieve and maintain racial balance, but rather as a benchmark against which the court [can] gauge [an employer's or union's] efforts to remedy past discrimination." Ante, at 478. It is fair to infer that the plurality approves the use of the membership goal in this case only because, in *494 its view, that goal can be characterized as "a means by which [the court] can measure petitioners' compliance with its orders, rather than as a strict racial quota." The plurality correctly indicates that, as to any racial goal ordered by a court as a remedy for past discrimination, the employer always has a potential defense by virtue of 706(g) against a claim that it was required to hire a particular employee, to wit, that the employee was not hired for "reasons unrelated to discrimination." Ante, at 474, n. 45. Although the plurality gives no clues as
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Justice Powell
| 1,986 | 17 |
concurring
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Sheet Metal Workers v. EEOC
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474, n. 45. Although the plurality gives no clues as to the scope of this defense, it is clear that an employer would remain free to refuse to hire unqualified minority applicants, even if as a result the employer failed to meet a racial hiring goal. Thus, an employer's undoubted freedom to refuse to hire unqualified minority applicants, even in the face of a court-ordered racial hiring goal, operates as one important limitation on the extent of any racially preferential treatment that can result from such a goal. The plurality offers little guidance as to what separates an impermissible quota from a permissible goal. Reference to benchmarks such as the percentage of minority workers in the relevant labor pool will often be entirely proper in order to estimate how an employer's work force would be composed absent past discrimination. But it is completely unrealistic to assume that individuals of each race will gravitate with mathematical exactitude to each employer or union absent unlawful discrimination. That, of course, is why there must be a substantial statistical disparity between the composition of an employer's work force and the relevant labor pool, or the general population, before an intent to discriminate may be inferred from such a disparity. Thus, the use of a rigid quota turns a sensible rule of thumb into an unjustified conclusion about the precise extent to which past discrimination has lingering effects, or into an unjustified prediction about what would happen in the future in the *495 absence of continuing discrimination. The imposition of a quota is therefore not truly remedial, but rather amounts to a requirement of racial balance, in contravention of 703(j)'s clear policy against such requirements. To be consistent with 703(j), a racial hiring or membership goal must be intended to serve merely as a benchmark for measuring compliance with Title VII and eliminating the lingering effects of past discrimination, rather than as a rigid numerical requirement that must unconditionally be met on pain of sanctions. To hold an employer or union to achievement of a particular percentage of minority employment or membership, and to do so regardless of circumstances such as economic conditions or the number of available qualified minority applicants, is to impose an impermissible quota. By contrast, a permissible goal should require only a good-faith effort on the employer's or union's part to come within a range demarcated by the goal itself. This understanding of the difference between goals and quotas essentially comports with the definitions jointly adopted by the EEOC and the Departments of Justice and Labor in a 1973 memorandum, and
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Justice Powell
| 1,986 | 17 |
concurring
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Sheet Metal Workers v. EEOC
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https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
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Departments of Justice and Labor in a 1973 memorandum, and reaffirmed on several occasions since then by the EEOC and the Department of Labor. Memorandum Permissible Goals and Timetables in State and Local Government Employment Practices (Mar. 23, 1973), reprinted in 2 CCH Employment Practices ¶ 3776 (hereinafter Memorandum); see (1976) ; Office of Federal Contract Compliance Programs v. Priester Construction Co., No. 78-OFCCP- (Feb. 22, 1983), summarized in OFCCP Order No. 970a3, reprinted in 2 BNA AACM D:9121 (1983). In the view of these federal agencies, which are charged with responsibility for enforcing equal employment opportunity laws, a quota "would impose a fixed number or percentage which must be attained, or which cannot be exceeded," and would do so "regardless of the number *496 of potential applicants who meet necessary qualifications." Memorandum, 2 CCH Employment Practices, at 3856. By contrast, a goal is "a numerical objective, fixed realistically in terms of the number of vacancies expected, and the number of qualified applicants available in the relevant job market." An employer's failure to meet a goal despite good-faith efforts "is not subject to sanction, because [the employer] is not expected to displace existing employees or to hire unneeded employees to meet [the] goal." This understanding of the difference between goals and quotas seems to me workable and far more consistent with the policy underlying 703(j) and 706(g) than the plurality's forced distinction between make-whole relief and classwide relief. If, then, some racial preferences may be ordered by a court as a remedy for past discrimination even though the beneficiaries may be nonvictims, I would employ a distinction such as this between quotas and goals in setting standards to inform use by district courts of their remedial powers under 706(g) to fashion such relief. If, as the Court holds, Title VII sometimes allows district courts to employ race-conscious remedies that may result in racially preferential treatment for nonvictims, it does so only where such remedies are truly necessary. In fashioning any such remedy, including racial hiring goals, the court should exercise caution and "take care to tailor its orders to fit the nature of the violation it seeks to correct." Ante, at 476. As the plurality suggests, goals should generally be temporary measures rather than efforts to maintain a previously achieved racial balance, and should not unnecessarily trammel the interests of nonminority employees. Furthermore, the use of goals is least likely to be consistent with 703(j) where the adverse effects of any racially preferential treatment attributable to the goals will be "concentrated upon a relatively small, ascertainable group of non-minority
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Justice Powell
| 1,986 | 17 |
concurring
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Sheet Metal Workers v. EEOC
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https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
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be "concentrated upon a relatively small, ascertainable group of non-minority persons." 753 F.2d 72, 86 In sum, the creation of racial preferences by courts, even in *497 the more limited form of goals rather than quotas, must be done sparingly and only where manifestly necessary to remedy violations of Title VII if the policy underlying 703(j) and 706(g) is to be honored. In this case, I agree with JUSTICE WHITE that the membership "goal" established by the District Court's successive orders in this case has been administered and will continue to operate "not just [as] a minority membership goal but also [as] a strict racial quota that the union was required to attain." Post, at 499 (dissenting). It is important to realize that the membership "goal" ordered by the District Court goes well beyond a requirement, such as the ones the plurality discusses approvingly, that a union "admit qualified minorities roughly in proportion to the number of qualified minorities in the work force." Ante, at 449. The "goal" here requires that the racial composition of Local 28's entire membership mirror that of the relevant labor pool by August 31, 1987, without regard to variables such as the number of qualified minority applicants available or the number of new apprentices needed. The District Court plainly stated that "[i]f the goal is not attained by that date, defendants will face fines that will threaten their very existence." App. to Pet. for Cert. A-123. I see no reason not to take the District Court's mandatory language at face value, and certainly none is supplied by the plurality's conclusory assertion that "the District Court has been willing to accommodate legitimate reasons for petitioners' failure to comply with court orders." Ante, at 478-479, n. 49. As Judge Winter persuasively argued in dissent below, the District Court was clearly not willing to take due account of the economic conditions that led to a sharp decline in the demand for the union skills involved in this case. Indeed, notwithstanding that petitioners have "voluntarily indentured 45% nonwhites in the apprenticeship classes since January 1981," the District Court ordered the JAC to indenture one nonwhite apprentice for every white apprentice. *498 753 F. 2d, at 89. The Court of Appeals set this portion of the District Court's order aside as an abuse of discretion, ib but the District Court's willingness to impose such a rigid hiring quota certainly suggests that the District Court intended the membership "goal" to be equally absolute. It is no answer to these observations that the District Court on two previous occasions postponed the final
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Justice Powell
| 1,986 | 17 |
concurring
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Sheet Metal Workers v. EEOC
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https://www.courtlistener.com/opinion/111747/sheet-metal-workers-v-eeoc/
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the District Court on two previous occasions postponed the final date for full compliance with the membership goal. At the time of the Court of Appeals' decision, Local 28's membership was approximately 10.8% nonwhite, at 87, and at oral argument counsel for petitioners represented that Local 28's membership of about 3,100 workers is now approximately 15.5% nonwhite. See Tr. of Oral Arg. 13. Absent an enormous expansion in the size of the apprentice program which would be feasible only if the demand for the services of Local 28's members were dramatically to increase it is beyond cavil that neither the "voluntary" 45% minority ratio now employed for apprenticeship classes nor the District Court's 1-to-1 order could achieve the 29.23% membership goal by Aug. 31, 1987. Indeed, at oral argument counsel for respondents conceded as much. See I do not question that petitioners' past violations of Title VII were egregious, or that in some respects they exhibited inexcusable recalcitrance in the face of the District Court's earlier remedial orders. But the timetable with which petitioners were ordered to comply was quite unrealistic and clearly could not be met by good-faith efforts on petitioners' part. In sum, the membership goal operates as a rigid membership quota, which will in turn spawn a sharp curtailment in the opportunities of nonminorities to be admitted to the apprenticeship program. Indeed, in order for the District Court's timetable to be met, this fixed quota would appear to require "the replacement of journeymen by apprentices on a strictly racial basis." 753 F.2d, at 95 *499 Whether the unequivocal rejection of racial quotas by the Congress that enacted Title VII is said to be expressed in 706(g), in 703(j), or in both, a "remedy" such as this membership quota cannot stand. For similar reasons, I believe that the Fund order, which created benefits for minority apprentices that nonminority apprentices were precluded from enjoying, operated as a form of racial quota. Accordingly, I would reverse the judgment of the Court of Appeals on statutory grounds insofar as the membership "goal" and Fund order are concerned, without reaching petitioners' constitutional claims.
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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Petitioner Yaser Hamdi, a presumed American citizen, has been imprisoned without charge or hearing in the Norfolk and Charleston Naval Brigs for more than two years, on the allegation that he is an enemy combatant who bore arms against his country for the Taliban His father claims to the contrary, that he is an inexperienced aid worker caught in the wrong place at the wrong time This case brings into conflict the competing demands of national security and our citizens' constitutional right to personal liberty Although I share the plurality's evident unease as it seeks to reconcile the two, I do not agree with its resolution Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art I, 9, cl 2, allows Congress to relax the usual protections temporarily Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause Accordingly, I would reverse the judgment below I The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite *555 imprisonment at the will of the Executive Blackstone stated this principle clearly: "Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper there would soon be an end of all other rights and immunities To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government "To make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus If
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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be examined into (if necessary) upon a habeas corpus If there be no cause expressed, the gaoler is not bound to detain the prisoner For the law judges in this respect, that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him" 1 W Blackstone, Commentaries on the Laws of England 131-133 (1765) (hereinafter Blackstone) These words were well known to the Founders Hamilton quoted from this very passage in The Federalist No p 444 (G Carey & J McClellan eds 2001) The two ideas central to Blackstone's understanding due process as the right secured, and habeas corpus as the instrument by which due process could be insisted upon by a citizen illegally imprisoned *556 found expression in the Constitution's Due Process and Suspension Clauses See Amdt 5; Art I, 9, cl 2 The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property When a citizen was deprived of liberty because of alleged criminal conduct, those procedures typically required committal by a magistrate followed by indictment and trial See, e g, 2 & 3 Philip & Mary, ch 10 (1555); 3 J Story, Commentaries on the Constitution of the United States 1783, p 661 (1833) (hereinafter Story) (equating "due process of law" with "due presentment or indictment, and being brought in to answer thereto by due process of the common law") The Due Process Clause "in effect affirms the right of trial according to the process and proceedings of the common law" See also T Cooley, General Principles of Constitutional Law 224 (1880) ("When life and liberty are in question, there must in every instance be judicial proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal, with proper jurisdiction, and a conviction and judgment before the punishment can be inflicted" (internal quotation marks omitted)) To be sure, certain types of permissible noncriminal detention that is, those not dependent upon the contention that the citizen had committed a criminal act did not require the protections of criminal procedure However, these fell into a limited number of well-recognized exceptions civil commitment of the mentally ill, for example, and temporary detention in quarantine of the infectious See Opinion on the Writ of Habeas Corpus, Wilm 77, 88-92, 97 Eng Rep 29, 36-37 (H L 1758) (Wilmot, J) It is unthinkable that the Executive could render otherwise criminal grounds for detention noncriminal merely
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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Executive could render otherwise criminal grounds for detention noncriminal merely by disclaiming an intent to prosecute, or by asserting that it was incapacitating dangerous offenders rather than punishing wrongdoing *557 Cf These due process rights have historically been vindicated by the writ of habeas corpus In England before the founding, the writ developed into a tool for challenging executive confinement It was not always effective For example, in Darnel's Case, 3 How St Tr 1 (K B 1627), King Charles I detained without charge several individuals for failing to assist England's war against France and Spain The prisoners sought writs of habeas corpus, arguing that without specific charges, "imprisonment shall not continue on for a time, but for ever; and the subjects of this kingdom may be restrained of their liberties perpetually" The Attorney General replied that the Crown's interest in protecting the realm justified imprisonment in "a matter of state not ripe nor timely" for the ordinary process of accusation and trial The court denied relief, producing widespread outrage, and Parliament responded with the Petition of Right, accepted by the King in 1628, which expressly prohibited imprisonment without formal charges, see 3 Car 1, ch 1, 5, 10 The struggle between subject and Crown continued, and culminated in the Habeas Corpus Act of 1679, 31 Car 2, ch 2, described by Blackstone as a "second magna carta, and stable bulwark of our liberties" 1 Blackstone 133 The Act governed all persons "committed or detained for any crime" 3 In cases other than felony or treason plainly expressed in the warrant of commitment, the Act required release upon appropriate sureties (unless the commitment was for a nonbailable offense) Where the commitment was for felony or high treason, the Act did not require immediate release, but instead required the Crown to commence criminal proceedings within a specified time 7 If the prisoner was not "indicted some Time in the next Term," *558 the judge was "required to set at Liberty the Prisoner upon Bail" unless the King was unable to produce his witnesses Able or no, if the prisoner was not brought to trial by the next succeeding term, the Act provided that "he shall be discharged from his Imprisonment" English courts sat four terms per year, see 3 Blackstone 275-277, so the practical effect of this provision was that imprisonment without indictment or trial for felony or high treason under 7 would not exceed approximately three to six months The writ of habeas corpus was preserved in the Constitution the only common-law writ to be explicitly mentioned See Art
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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the only common-law writ to be explicitly mentioned See Art I, 9, cl 2 Hamilton lauded "the establishment of the writ of habeas corpus" in his Federalist defense as a means to protect against "the practice of arbitrary imprisonments in all ages, [one of] the favourite and most formidable instruments of tyranny" The Federalist No Indeed, availability of the writ under the new Constitution (along with the requirement of trial by jury in criminal cases, see Art III, 2, cl 3) was his basis for arguing that additional, explicit procedural protections were unnecessary See The Federalist No 83, at 433 II The allegations here, of course, are no ordinary accusations of criminal activity Yaser Esam Hamdi has been imprisoned because the Government believes he participated in the waging of war against the United States The relevant question, then, is whether there is a different, special procedure for imprisonment of a citizen accused of wrongdoing by aiding the enemy in wartime A JUSTICE O'CONNOR, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained *559 until the cessation of hostilities and then released Ante, at 518-519 That is probably an accurate description of wartime practice with respect to enemy aliens The tradition with respect to American citizens, however, has been quite different Citizens aiding the enemy have been treated as traitors subject to the criminal process As early as 1350, England's Statute of Treasons made it a crime to "levy War against our Lord the King in his Realm, or be adherent to the King's Enemies in his Realm, giving to them Aid and Comfort, in the Realm, or elsewhere" Stat 5, c 2 In his 1762 Discourse on High Treason, Sir Michael Foster explained: "With regard to Natural-born Subjects there can be no Doubt They owe Allegiance to the Crown at all Times and in all Places "The joining with Rebels in an Act of Rebellion, or with Enemies in Acts of Hostility, will make a Man a Traitor: in the one Case within the Clause of Levying War, in the other within that of Adhering to the King's enemies "States in Actual Hostility with Us, though no War be solemnly Declared, are Enemies within the meaning of the Act And therefore in an Indictment on the Clause of Adhering to the King's Enemies, it is sufficient to Aver that the Prince or State Adhered to is an Enemy, without shewing any War Proclaimed And if the Subject of a Foreign Prince in Amity with Us, invadeth
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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Subject of a Foreign Prince in Amity with Us, invadeth the Kingdom without Commission from his Sovereign, He is an Enemy And a Subject of England adhering to Him is a Traitor within this Clause of the Act" A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746 in the County of Surry, and of Other Crown Cases, Introduction, 1, p 183; Ch 2, 8, p 216; 12, p 219 *560 Subjects accused of levying war against the King were routinely prosecuted for treason Eg, Harding's Case, 2 Ventris 315, 86 Eng Rep 461 (K B 1690); Trial of Parkyns, 13 How St Tr 63 ; Trial of Vaughan, 13 How St Tr 485 ; Trial of Downie, 24 How St Tr 1 (1794) The Founders inherited the understanding that a citizen's levying war against the Government was to be punished criminally The Constitution provides: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort"; and establishes a heightened proof requirement (two witnesses) in order to "convic[t]" of that offense Art III, 3, cl 1 In more recent times, too, citizens have been charged and tried in Article III courts for acts of war against the United States, even when their noncitizen co-conspirators were not For example, two American citizens alleged to have participated during World War I in a spying conspiracy on behalf of Germany were tried in federal court See United ; United A German member of the same conspiracy was subjected to military process See United States ex rel During World War II, the famous German saboteurs of Ex parte Quirin, received military process, but the citizens who associated with them (with the exception of one citizen-saboteur, discussed below) were punished under the criminal process See ; L Fisher, Nazi Saboteurs on Trial 80- (2003); see also The modern treason statute is 18 US C 2381; it basically tracks the language of the constitutional provision Other provisions of Title 18 criminalize various acts of warmaking and adherence to the enemy See, eg, 32 (destruction of aircraft or aircraft facilities), 2332a (use of *561 weapons of mass destruction), 2332b (acts of terrorism transcending national boundaries), 2339A (providing material support to terrorists), 2339B (providing material support to certain terrorist organizations), 2382 (misprision of treason), 2383 (rebellion or insurrection), 23 (seditious conspiracy), 2390 (enlistment to serve in armed hostility against the United States) See also 31 CFR 595204 (2003) ; 50 US C 1705(b) (criminalizing violations of 31
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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(2003) ; 50 US C 1705(b) (criminalizing violations of 31 CFR 595204) The only citizen other than Hamdi known to be imprisoned in connection with military hostilities in Afghanistan against the United States was subjected to criminal process and convicted upon a guilty plea See United ; Seelye, N Y Times, Oct 5, p A1, col 5 B There are times when military exigency renders resort to the traditional criminal process impracticable English law accommodated such exigencies by allowing legislative suspension of the writ of habeas corpus for brief periods Blackstone explained: "And yet sometimes, when the state is in real danger, even this [i e, executive detention] may be a necessary measure But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient For the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing In like manner this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with it[s] liberty *562 for a while, in order to preserve it for ever" 1 Blackstone 132 Where the Executive has not pursued the usual course of charge, committal, and conviction, it has historically secured the Legislature's explicit approval of a suspension In England, Parliament on numerous occasions passed temporary suspensions in times of threatened invasion or rebellion E g, 1 W & M, c 7 (1688) (threatened return of James II); 7 & ; 17 Geo 2, c 6 (1744) (threatened French invasion); 19 Geo 2, c 1 (1746) (threatened rebellion in Scotland); 17 Geo 3, c 9 (1777) (the American Revolution) Not long after Massachusetts had adopted a clause in its constitution explicitly providing for habeas corpus, see Mass Const pt 2, ch 6, art VII (1780), reprinted in 3 Federal and State Constitutions, Colonial Charters and Other Organic Laws 1888, 1910 (F Thorpe ed 1909), it suspended the writ in order to deal with Shay's Rebellion, see Act for Suspending the Privilege of the Writ of Habeas Corpus, ch 10, 1786 Mass Acts p 510 Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" Art I,
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Justice Scalia
| 2,004 | 9 |
dissenting
|
Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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or Invasion the public Safety may require it" Art I, 9, cl 2 Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I See Ex parte Bollman, ; Ex parte Merryman, ; 3 Story 1336, 8-209 The Suspension Clause was by design a safety valve, the Constitution's only "express provision for exercise of extraordinary authority because of a crisis," Youngstown Sheet & Tube Very early in the Nation's history, President Jefferson unsuccessfully sought a suspension of habeas corpus to deal with Aaron Burr's conspiracy to overthrow the Government See 16 Annals of Congress 402-425 During the Civil War, Congress passed its first Act authorizing Executive suspension of the writ of habeas corpus, see Act of Mar 3, 1863, to the relief of those many who thought President Lincoln's unauthorized proclamations of suspension (e g, Proclamation No 1, (1862)) unconstitutional Later Presidential proclamations of suspension relied upon the congressional authorization, e g, Proclamation No 7, (1863) During Reconstruction, Congress passed the Ku Klux Klan Act, which included a provision authorizing suspension of the writ, invoked by President Grant in quelling a rebellion in nine South Carolina counties See Act of Apr 20, 1871, ch 22, 4, ; A Proclamation [of Oct 17, 1871], 7 Compilation of the Messages and Papers of the Presidents 136-138 (J Richardson ed 1899) (hereinafter Messages and Papers); Two later Acts of Congress provided broad suspension authority to governors of U S possessions The Philippine Civil Government Act of 1902 provided that the Governor of the Philippines could suspend the writ in case of rebellion, insurrection, or invasion Act of July 1, 1902, ch 1369, 5, In 1905 the writ was suspended for nine months by proclamation of the Governor See The Hawaiian Organic Act of 1900 likewise provided that the Governor of Hawaii could suspend the writ in case of rebellion or invasion (or threat thereof) Ch 339, 67, III Of course the extensive historical evidence of criminal convictions and habeas suspensions does not necessarily refute the Government's position in this case When the writ is *564 suspended, the Government is entirely free from judicial oversight It does not claim such total liberation here, but argues that it need only produce what it calls "some evidence" to satisfy a habeas court that a detained individual is an enemy combatant See Brief for Respondents 34 Even if suspension of the writ on the one hand, and committal for criminal charges on the other
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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one hand, and committal for criminal charges on the other hand, have been the only traditional means of dealing with citizens who levied war against their own country, it is theoretically possible that the Constitution does not require a choice between these alternatives I believe, however, that substantial evidence does refute that possibility First, the text of the 1679 Habeas Corpus Act makes clear that indefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ In the United States, this Act was read as "enforc[ing] the common law," Ex parte Watkins, and shaped the early understanding of the scope of the writ As noted above, see 7 of the Act specifically addressed those committed for high treason, and provided a remedy if they were not indicted and tried by the second succeeding court term That remedy was not a bobtailed judicial inquiry into whether there were reasonable grounds to believe the prisoner had taken up arms against the King Rather, if the prisoner was not indicted and tried within the prescribed time, "he shall be discharged from his Imprisonment" 31 Car 2, c 2, 7 The Act does not contain any exception for wartime That omission is conspicuous, since 7 explicitly addresses the offense of "High Treason," which often involved offenses of a military nature See cases Writings from the founding generation also suggest that, without exception, the only constitutional alternatives are to charge the crime or suspend the writ In 1788, Thomas Jefferson wrote to James Madison questioning the need for a Suspension Clause in cases of rebellion in the proposed *565 Constitution His letter illustrates the constraints under which the Founders understood themselves to operate: "Why suspend the Hab corp in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime Of course the judge will remand them If the publick safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies; let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages" 13 Papers of Thomas Jefferson 442 (July 31, 1788) (J Boyd ed 1956) A similar view was reflected in the 1807 House debates over suspension during the armed uprising that came to be known as Burr's conspiracy: "With regard to those persons who may be implicated in the conspiracy, if the writ of habeas corpus be not suspended, what will be the
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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of habeas corpus be not suspended, what will be the consequence? When apprehended, they will be brought before a court of justice, who will decide whether there is any evidence that will justify their commitment for farther prosecution From the communication of the Executive, it appeared there was sufficient evidence to authorize their commitment Several months would elapse before their final trial, which would give time to collect evidence, and if this shall be sufficient, they will not fail to receive the punishment merited by their crimes, and inflicted by the laws of their country" 16 Annals of Congress, at 405 (remarks of Rep Burwell) The absence of military authority to imprison citizens indefinitely in wartime whether or not a probability of treason had been established by means less than jury trial was confirmed by three cases decided during and immediately after the War of 1812 In the first, In re Stacy, 10 Johns *566 *328 (N Y 1813), a citizen was taken into military custody on suspicion that he was "carrying provisions and giving information to the enemy" Stacy petitioned for a writ of habeas corpus, and, after the defendant custodian attempted to avoid complying, Chief Justice Kent ordered attachment against him Kent noted that the military was "without any color of authority in any military tribunal to try a citizen for that crime" and that it was "holding him in the closest confinement, and contemning the civil authority of the state" at *333-*334 Two other cases, later with approval by this Court in Ex parte upheld verdicts for false imprisonment against military officers In Smith v Shaw, 12 Johns *257 (N Y 1815), the court affirmed an award of damages for detention of a citizen on suspicion that he was, among other things, "an enemy's spy in time of war" The court held that "[n]one of the offences charged against Shaw were cognizable by a court-martial, except that which related to his being a spy; and if he was an American citizen, he could not be charged with such an offence He might be amenable to the civil authority for treason; but could not be punished, under martial law, as a spy" "If the defendant was justifiable in doing what he did, every citizen of the United States would, in time of war, be equally exposed to a like exercise of military power and authority" Finally, in M'Connell v Hampton, 12 Johns *234 (N Y 1815), a jury awarded $9,000 for false imprisonment after a military officer confined a citizen on charges of treason; the judges
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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officer confined a citizen on charges of treason; the judges on appeal did not question the verdict but found the damages excessive, in part because "it does not appear that [the defendant] knew [the plaintiff] was a citizen" See generally Wuerth, The President's Power to Detain "Enemy Combatants": Modern Lessons from Mr Madison's Forgotten War, *567 President Lincoln, when he purported to suspend habeas corpus without congressional authorization during the Civil War, apparently did not doubt that suspension was required if the prisoner was to be held without criminal trial In his famous message to Congress on July 4, he argued only that he could suspend the writ, not that even without suspension, his imprisonment of citizens without criminal trial was permitted See Special Session Message, 6 Messages and Papers 20-31 Further evidence comes from this Court's decision in Ex parte There, the Court issued the writ to an American citizen who had been tried by military commission for offenses that included conspiring to overthrow the Government, seize munitions, and liberate prisoners of war The Court rejected in no uncertain terms the Government's assertion that military jurisdiction was proper "under the `laws and usages of war,'" at 121: "It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed," ibid[1] is not exactly this case, of course, since the petitioner was threatened with death, not merely imprisonment But the reasoning and conclusion of logically cover the present case The Government justifies imprisonment of Hamdi on principles of the law of war and admits that, absent the war, it would have no such authority But if the *568 law of war cannot be applied to citizens where courts are open, then Hamdi's imprisonment without criminal trial is no less unlawful than 's trial by military tribunal responded to the argument, repeated by the Government in this case, that it is dangerous to leave suspected traitors at large in time of war: "If it was dangerous, in the distracted condition of affairs, to leave unrestrained of his liberty, because he `conspired against the government, afforded aid and comfort to rebels, and in the people to insurrection,' the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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district, with proofs of his guilt, and, if indicted, try him according to the course of the common law If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended" Thus, criminal process was viewed as the primary means and the only means absent congressional action suspending the writ not only to punish traitors, but to incapacitate them The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain" The Federalist No 45, p 238 (J Madison) No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime Many safeguards in the Constitution reflect these concerns Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that *569 Use shall be for a longer Term than two Years" US Const, Art I, 8, cl 12 Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II As Hamilton explained, the President's military authority would be "much inferior" to that of the British King: "It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature" The Federalist No 69, p 357 A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions IV The Government argues that our more recent jurisprudence ratifies its indefinite imprisonment of a citizen within the territorial jurisdiction of federal courts It places primary reliance upon Ex parte Quirin, a World War II case upholding the trial by military commission of eight German saboteurs, one of whom, Herbert Haupt, was a U S citizen The case was not this Court's finest hour The Court upheld the commission and
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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this Court's finest hour The Court upheld the commission and denied relief in a brief per curiam issued the day after oral argument concluded, see unnumbered note; a week later the Government carried out the commission's death sentence upon six saboteurs, including Haupt The Court eventually explained its reasoning in a written opinion issued several months later *570 Only three paragraphs of the Court's lengthy opinion dealt with the particular circumstances of Haupt's case See -38, 45-46 The Government argued that Haupt, like the other petitioners, could be tried by military commission under the laws of war In agreeing with that contention, Quirin purported to interpret the language of quoted above (the law of war "can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed") in the following manner: "Elsewhere in its opinion the Court was at pains to point out that a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents We construe the Court's statement as to the inapplicability of the law of war to 's case as having particular reference to the facts before it From them the Court concluded that not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war " In my view this seeks to revise rather than describe it had involved (among other issues) two separate questions: (1) whether the military trial of was justified by the laws of war, and if not (2) whether the President's suspension of the writ, pursuant to congressional authorization, prevented the issuance of habeas corpus The Court's categorical language about the law of war's inapplicability to citizens where the courts are open (with no exception mentioned for citizens who were prisoners of war) was contained in its discussion of the first point See 4 Wall, at 121 The factors pertaining to whether could reasonably be considered a belligerent and prisoner of war, *571 while mentioned earlier in the opinion, see were made relevant and brought to bear in the Court's later discussion, see of whether came within the statutory provision that effectively made an exception to Congress's authorized suspension of the writ for (as the Court described it) "all parties, not prisoners of war, resident in their respective jurisdictions, who were citizens of
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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war, resident in their respective jurisdictions, who were citizens of states in which the administration of the laws in the Federal tribunals was unimpaired," thus understood was in accord with the traditional law of habeas corpus I have described: Though treason often occurred in wartime, there was, absent provision for special treatment in a congressional suspension of the writ, no exception to the right to trial by jury for citizens who could be called "belligerents" or "prisoners of war"[2] But even if Quirin gave a correct description of or made an irrevocable revision of it, Quirin would still not justify denial of the writ here In Quirin it was uncontested that the petitioners were members of enemy forces They were "admitted enemy invaders," 317 US, at 47 and it was "undisputed" that they had landed in the United States in service of German forces, The specific holding of the Court was only that, "upon the conceded facts," the petitioners were "plainly within [the] boundaries" of military jurisdiction, [3] But where those jurisdictional facts are not concededwhere *572 the petitioner insists that he is not a belligerent Quirin left the pre-existing law in place: Absent suspension of the writ, a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release[4] *573 V It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus A suspension of the writ could, of course, lay down conditions for continued detention, similar to those that today's opinion prescribes under the Due Process Clause Cf Act of Mar 3, 1863, But there is a world of difference between the people's representatives' determining the need for that suspension (and prescribing the conditions for it), and this Court's doing so The plurality finds justification for Hamdi's imprisonment in the Authorization for Use of Military Force, 115 Stat 224, which provides: "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons" 2(a) *574 This is not remotely a congressional suspension of the writ, and no one claims that it is Contrary to the plurality's view, I do not think this statute even authorizes detention
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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view, I do not think this statute even authorizes detention of a citizen with the clarity necessary to satisfy the interpretive canon that statutes should be construed so as to avoid grave constitutional concerns, see Edward J DeBartolo Corp v Florida Gulf Coast Building & Constr Trades Council, 485 US 568, ; with the clarity necessary to comport with cases such as Ex parte Endo, 323 US 283, and Duncan v Kahanamoku, 327 US 304, ; or with the clarity necessary to overcome the statutory prescription that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress" 18 US C 4001(a)[5] But even if it * did, I would not permit it to overcome Hamdi's entitlement to habeas corpus relief The Suspension Clause of the Constitution, which carefully circumscribes the conditions under which the writ can be withheld, would be a sham if it could be evaded by congressional prescription of requirements other than the common-law requirement of committal for criminal prosecution that render the writ, though available, unavailing If the Suspension Clause does not guarantee the citizen that he will either be tried or released, unless the conditions for suspending the writ exist and the grave action of suspending the writ has been taken; if it merely guarantees the citizen that he will not be detained unless Congress by ordinary legislation says he can be detained; it guarantees him very little indeed It should not be thought, however, that the plurality's evisceration of the Suspension Clause augments, principally, the power of Congress As usual, the major effect of its constitutional improvisation is to increase the power of the Court Having found a congressional authorization for detention of citizens where none clearly exists; and having discarded the categorical procedural protection of the Suspension Clause; the plurality then proceeds, under the guise of the Due Process Clause, to prescribe what procedural protections it thinks appropriate It "weigh[s] the private interest against the Government's asserted interest," ante, at 529 (internal quotation marks omitted), andjust as though writing a new Constitutioncomes up with an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a "neutral" military officer rather than judge and jury See ante, at 533-534 It claims authority to engage in this sort of "judicious balancing" from Mathews v Eldridge, 424 US 319 a case involving the withdrawal of disability benefits! Whatever the merits of this technique when newly *576 recognized property
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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the merits of this technique when newly *576 recognized property rights are at issue (and even there they are questionable), it has no place where the Constitution and the common law already supply an answer Having distorted the Suspension Clause, the plurality finishes up by transmogrifying the Great Writdisposing of the present habeas petition by remanding for the District Court to "engag[e] in a factfinding process that is both prudent and incremental," ante, at 539 "In the absence of [the Executive's prior provision of procedures that satisfy due process], a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved" Ante, at 538 This judicial remediation of executive default is unheard of The role of habeas corpus is to determine the legality of executive detention, not to supply the omitted process necessary to make it legal See Preiser v Rodriguez, 411 US 475, 4 ("[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and the traditional function of the writ is to secure release from illegal custody"); 1 Blackstone 132-133 It is not the habeas court's function to make illegal detention legal by supplying a process that the Government could have provided, but chose not to If Hamdi is being imprisoned in violation of the Constitution (because without due process of law), then his habeas petition should be granted; the Executive may then hand him over to the criminal authorities, whose detention for the purpose of prosecution will be lawful, or else must release him There is a certain harmony of approach in the plurality's making up for Congress's failure to invoke the Suspension Clause and its making up for the Executive's failure to apply what it says are needed proceduresan approach that reflects what might be called a Mr Fix-it Mentality The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the *577 other two branches' actions and omissions Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free The problem with this approach is not only
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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set free The problem with this approach is not only that it steps out of the courts' modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people VI Several limitations give my views in this matter a relatively narrow compass They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla Where the citizen is captured outside and held outside the United States, the constitutional requirements may be different Cf Johnson v Eisentrager, 339 US 763, ; Reid v Covert, 354 US 1, (Harlan, J, concurring in result); Rasul v Bush, ante, at 502-504 (SCALIA, J, dissenting) Moreover, even within the United States, the accused citizen-enemy combatant may lawfully be detained once prosecution is in progress or in contemplation See, eg, County of Riverside v McLaughlin, 500 US 44 ; United States v Salerno, 481 US 739 The Government has been notably successful in securing conviction, and hence long-term custody or execution, of those who have waged war against the state I frankly do not know whether these tools are sufficient to meet the Government's security needs, including the need to obtain intelligence through interrogation It is far beyond *578 my competence, or the Court's competence, to determine that But it is not beyond Congress's If the situation demands it, the Executive can ask Congress to authorize suspension of the writwhich can be made subject to whatever conditions Congress deems appropriate, including even the procedural novelties invented by the plurality today To be sure, suspension is limited by the Constitution to cases of rebellion or invasion But whether the attacks of September 11, 2001, constitute an "invasion," and whether those attacks still justify suspension several years later, are questions for Congress rather than this Court See 3 Story 1336, 8-209[6] If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court * * * The Founders well understood the difficult tradeoff between safety and freedom "Safety from external danger," Hamilton declared, "is the most powerful director of national conduct Even the ardent love of liberty will, after a time, give way to its dictates The violent destruction of life and property incident to war; the continual
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Justice Scalia
| 2,004 | 9 |
dissenting
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Hamdi v. Rumsfeld
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https://www.courtlistener.com/opinion/137001/hamdi-v-rumsfeld/
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destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights To be more safe, they, at length, become willing to run the risk of being less free" The Federalist No 8, p 33 (A Hamilton) *579 The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisisthat, at the extremes of military exigency, inter arma silent leges Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent
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Justice Kennedy
| 1,991 | 4 |
majority
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Masson v. New Yorker Magazine, Inc.
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https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
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In this libel case, a public figure claims he was defamed by an author who, with full knowledge of the inaccuracy, used quotation marks to attribute to him comments he had not made. The First Amendment protects authors and journalists who write about public figures by requiring a plaintiff to prove that the defamatory statements were made with what we have called "actual malice," a term of art denoting deliberate or reckless falsification. We consider in this opinion whether the attributed quotations had the degree of falsity required to prove this state of mind, so that the public figure can defeat a motion for summary judgment and proceed to a trial on the merits of the defamation claim. I Petitioner Jeffrey Masson trained at Harvard University as a Sanskrit scholar, and in 1970 became a professor of Sanskrit & Indian Studies at the University of Toronto. He spent eight years in psychoanalytic training, and qualified as *500 an analyst in Through his professional activities, he came to know Dr. Kurt Eissler, head of the Sigmund Freud Archives, and Dr. Anna Freud, daughter of Sigmund Freud and a major psychoanalyst in her own right. The Sigmund Freud Archives, located at Maresfield Gardens outside of London, serves as a repository for materials about Freud, including his own writings, letters, and personal library. The materials, and the right of access to them, are of immense value to those who study Freud and his theories, life, and work. In Eissler and Anna Freud hired petitioner as projects director of the archives. After assuming his post, petitioner became disillusioned with Freudian psychology. In a 1981 lecture before the Western New England Psychoanalytical Society in New Haven, Connecticut, he advanced his theories of Freud. Soon after, the board of the archives terminated petitioner as projects director. Respondent Janet Malcolm is an author and a contributor to respondent The New Yorker, a weekly magazine. She contacted petitioner in 1982 regarding the possibility of an article on his relationship with the archives. He agreed, and the two met in person and spoke by telephone in a series of interviews. Based on the interviews and other sources, Malcolm wrote a lengthy article. One of Malcolm's narrative devices consists of enclosing lengthy passages in quotation marks, reporting statements of Masson, Eissler, and her other subjects. During the editorial process, Nancy Franklin, a member of the fact-checking department at The New Yorker, called petitioner to confirm some of the facts underlying the article. According to petitioner, he expressed alarm at the number of errors in the few passages Franklin discussed with
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Justice Kennedy
| 1,991 | 4 |
majority
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Masson v. New Yorker Magazine, Inc.
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https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
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number of errors in the few passages Franklin discussed with him. Petitioner contends that he asked permission to review those portions of the article which attributed quotations or information to him, but was brushed off with a never-fulfilled promise *501 to "get back to [him]." App. 67. Franklin disputes petitioner's version of their conversation. The New Yorker published Malcolm's piece in December as a two-part series. In with knowledge of at least petitioner's general allegation that the article contained defamatory material, respondent Alfred A. Knopf, published the entire work as a book, entitled In the Freud Archives. Malcolm's work received complimentary reviews. But this gave little joy to Masson, for the book portrays him in a most unflattering light. According to one reviewer: "Masson the promising psychoanalytic scholar emerges gradually, as a grandiose egotist mean-spirited, selfserving, full of braggadocio, impossibly arrogant and, in the end, a self-destructive fool. But it is not Janet Malcolm who calls him such: his own words reveal this psychological profile a self-portrait offered to us through the efforts of an observer and listener who is, surely, as wise as any in the psychoanalytic profession." Coles, Freudianism Confronts Its Malcontents, Boston Globe, May 27, pp. 58, 60. Petitioner wrote a letter to the New York Times Book Review calling the book "distorted." In response, Malcolm stated: "Many of [the] things Mr. Masson told me (on tape) were discreditable to him, and I felt it best not to include them. Everything I do quote Mr. Masson as saying was said by him, almost word for word. (The `almost' refers to changes made for the sake of correct syntax.) I would be glad to play the tapes of my conversation with Mr. Masson to the editors of The Book Review whenever they have 40 or 50 short hours to spare." App. 222-223. Petitioner brought an action for libel under California law in the United States District Court for the Northern District of California. During extensive discovery and repeated *502 amendments to the complaint, petitioner concentrated on various passages alleged to be defamatory, dropping some and adding others. The tape recordings of the interviews demonstrated that petitioner had, in fact, made statements substantially identical to a number of the passages, and those passages are no longer in the case. We discuss only the passages relied on by petitioner in his briefs to this Court. Each passage before us purports to quote a statement made by petitioner during the interviews. Yet in each instance no identical statement appears in the more than 40 hours of taped interviews. Petitioner
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Justice Kennedy
| 1,991 | 4 |
majority
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Masson v. New Yorker Magazine, Inc.
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https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
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in the more than 40 hours of taped interviews. Petitioner complains that Malcolm fabricated all but one passage; with respect to that passage, he claims Malcolm omitted a crucial portion, rendering the remainder misleading. (a) "Intellectual Gigolo." Malcolm quoted a description by petitioner of his relationship with Eissler and Anna Freud as follows: "`Then I met a rather attractive older graduate student and I had an affair with her. One day, she took me to some art event, and she was sorry afterward. She said, "Well, it is very nice sleeping with you in your room, but you're the kind of person who should never leave the roomyou're just a social embarrassment anywhere else, though you do fine in your own room." And you know, in their way, if not in so many words, Eissler and Anna Freud told me the same thing. They like me well enough "in my own room." They loved to hear from me what creeps and dolts analysts are. I was like an intellectual gigoloyou get your pleasure from him, but you don't take him out in public.'" In the Freud Archives 38. The tape recordings contain the substance of petitioner's reference to his graduate student friend, App. 95, but no suggestion that Eissler or Anna Freud considered him, or that he considered himself, an "`intellectual gigolo.'" Instead, petitioner said: *503 "They felt, in a sense, I was a private asset but a public liability. They liked me when I was alone in their living room, and I could talk and chat and tell them the truth about things and they would tell me. But that I was, in a sense, much too junior within the hierarchy of analysis, for these important training analysts to be caught dead with me." (b) "Sex, Women, Fun." Malcolm quoted petitioner as describing his plans for Maresfield Gardens, which he had hoped to occupy after Anna Freud's death: "`It was a beautiful house, but it was dark and sombre and dead. Nothing ever went on there. I was the only person who ever came. I would have renovated it, opened it up, brought it to life. Maresfield Gardens would have been a center of scholarship, but it would also have been a place of sex, women, fun. It would have been like the change in The Wizard of Oz, from black-and-white into color.'" In the Freud Archives 33. The tape recordings contain a similar statement, but in place of the references to "sex, women, fun" and The Wizard of Oz, petitioner commented: "[I]t is an incredible storehouse. I mean,
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Justice Kennedy
| 1,991 | 4 |
majority
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Masson v. New Yorker Magazine, Inc.
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https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
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Oz, petitioner commented: "[I]t is an incredible storehouse. I mean, the library, Freud's library alone is priceless in terms of what it contains: all his books with his annotations in them; the Schreber case annotated, that kind of thing. It's fascinating." App. 127. Petitioner did talk, earlier in the interview, of his meeting with a London analyst: "I like him. So, and we got on very well. That was the first time we ever met and you know, it was buddy-buddy, and we were to stay with each other and [laughs] we were going to pass women on to each other, and we were going to have a great time together when I lived in the Freud house. We'd have great parties there and we were [laughs] *504 ". going to really, we were going to live it up." (c) "It Sounded Better." Petitioner spoke with Malcolm about the history of his family, including the reasons his grandfather changed the family name from Moussaieff to Masson, and why petitioner adopted the abandoned family name as his middle name. The article contains the passage: "`My father is a gem merchant who doesn't like to stay in any one place too long. His father was a gem merchant, tooa Bessarabian gem merchant, named Moussaieff, who went to Paris in the twenties and adopted the name Masson. My parents named me Jeffrey Lloyd Masson, but in 1975 I decided to change my middle name to Moussaieffit sounded better.'" In the Freud Archives 36. In the most similar tape-recorded statement, Masson explained at considerable length that his grandfather had changed the family name from Moussaieff to Masson when living in France, "[j]ust to hide his Jewishness." Petitioner had changed his last name back to Moussaieff, but his thenwife Terry objected that "nobody could pronounce it and nobody knew how to spell it, and it wasn't the name that she knew me by." Petitioner had changed his name to Moussaieff because he "just liked it." "[I]t was sort of part of analysis: a return to the roots, and your family tradition and so on." In the end, he had agreed with Terry that "it wasn't her name after all," and used Moussaieff as a middle instead of a last name. App. 87-89. (d) "I Don't Know Why I Put It In." The article recounts part of a conversation between Malcolm and petitioner about the paper petitioner presented at his 1981 New Haven lecture: "[I] asked him what had happened between the time of the lecture and the present to change him from a Freudian
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Justice Kennedy
| 1,991 | 4 |
majority
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Masson v. New Yorker Magazine, Inc.
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https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
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lecture and the present to change him from a Freudian *505 psychoanalyst with somewhat outré views into the bitter and belligerent anti-Freudian he had become. "Masson sidestepped my question. `You're right, there was nothing disrespectful of analysis in that paper,' he said. `That remark about the sterility of psychoanalysis was something I tacked on at the last minute, and it was totally gratuitous. I don't know why I put it in.'" In the Freud Archives 53. The tape recordings instead contain the following discussion of the New Haven lecture: Masson: "So they really couldn't judge the material. And, in fact, until the last sentence I think they were quite fascinated. I think the last sentence was an in, [sic] possibly, gratuitously offensive way to end a paper to a group of analysts. Uh, " Malcolm: "What were the circumstances under which you put it [in]?" Masson: "That it was, was true. ". I really believe it. I didn't believe anybody would agree with me. ". But I felt I should say something because the paper's still well within the analytic tradition in a sense. ". It's really not a deep criticism of Freud. It contains all the material that would allow one to criticize Freud but I didn't really do it. And then I thought, I really must say one thing that I really believe, that's not going to appeal to anybody and that was the very last sentence. Because I really do believe psychoanalysis is entirely sterile" App. 176. (e) "Greatest Analyst Who Ever Lived." The article contains the following self-explanatory passage: *506 "A few days after my return to New York, Masson, in a state of elation, telephoned me to say that Farrar, Straus & Giroux has taken The Assault on Truth [Masson's book]. `Wait till it reaches the best-seller list, and watch how the analysts will crawl,' he crowed. `They move whichever way the wind blows. They will want me back, they will say that Masson is a great scholar, a major analyst after Freud, he's the greatest analyst who ever lived. Suddenly they'll be calling, begging, cajoling: "Please take back what you've said about our profession; our patients are quitting." They'll try a short smear campaign, then they'll try to buy me, and ultimately they'll have to shut up. Judgment will be passed by history. There is no possible refutation of this book. It's going to cause a revolution in psychoanalysis. Analysis stands or falls with me now.'" In the Freud Archives 162. This material does not appear in the tape recordings. Petitioner did make
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Justice Kennedy
| 1,991 | 4 |
majority
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Masson v. New Yorker Magazine, Inc.
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https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
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does not appear in the tape recordings. Petitioner did make the following statements on related topics in one of the taped interviews with Malcolm: ". I assure you when that book comes out, which I honestly believe is an honest book, there is nothing, you know, mean-minded about it. It's the honest fruit of research and intellectual toil. And there is not an analyst in the country who will say a single word in favor of it." App. 136. "Talk to enough analysts and get them right down to these concrete issues and you watch how different it is from my position. It's utterly the opposite and that's finally what I realized, that I hold a position that no other analyst holds, including, alas, Freud. At first I thought: Okay, it's me and Freud against the rest of the analytic world, or me and Freud and Anna Freud and Kur[t] Eissler and Vic Calef and Brian Bird and Sam *507 Lipton against the rest of the world. Not so, it's me. it's me alone." The tape of this interview also contains the following exchange between petitioner and Malcolm: Masson: ". analysis stands or falls with me now." Malcolm: "Well that's a very grandiose thing to say." Masson: "Yeah, but it's got nothing to do with me. It's got to do with the things I discovered." (f) "He Had The Wrong Man." In discussing the archives' board meeting at which petitioner's employment was terminated, Malcolm quotes petitioner as giving the following explanation of Eissler's attempt to extract a promise of confidentiality: "`[Eissler] was always putting moral pressure on me. "Do you want to poison Anna Freud's last days? Have you no heart? You're going to kill the poor old woman." I said to him, "What have I done? You're doing it. You're firing me. What am I supposed to dobe grateful to you?" "You could be silent about it. You could swallow it. I know it is painful for you. But you could just live with it in silence." "Why should I do that?" "Because it is the honorable thing to do." Well, he had the wrong man.'" In the Freud Archives 67. From the tape recordings, on the other hand, it appears that Malcolm deleted part of petitioner's explanation (italicized below), and petitioner argues that the "wrong man" sentence relates to something quite different from Eissler's entreaty that silence was "the honorable thing." In the tape recording, petitioner states: "But it was wrong of Eissler to do that, you know. He was constantly putting various kinds of moral pressure on
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Justice Kennedy
| 1,991 | 4 |
majority
|
Masson v. New Yorker Magazine, Inc.
|
https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
|
He was constantly putting various kinds of moral pressure on me and, `Do you want to poison Anna Freud's last days? Have you no heart?' He called me: `Have you no heart? You're going to kill the poor old woman. *508 Have you no heart? Think of what she's done for you and you are now willing to do this to her.' I said, `What have I, what have I done? You did it. You fired me. What am I supposed to do: thank you? be grateful to you?' He said, `Well you could never talk about it. You could be silent about it. You could swallow it. I know it's painful for you but just live with it in silence.' `Fuck you,' I said, `Why should I do that? Why? You know, why should one do that?' `Because it's the honorable thing to do and you will save face. And who knows? If you never speak about it and you quietly and humbly accept our judgment, who knows that in a few years if we don't bring you back?' Well, he had the wrong man." App. 215-216. Malcolm submitted to the District Court that not all of her discussions with petitioner were recorded on tape, in particular conversations that occurred while the two of them walked together or traveled by car, while petitioner stayed at Malcolm's home in New York, or while her tape recorder was inoperable. She claimed to have taken notes of these unrecorded sessions, which she later typed, then discarding the handwritten originals. Petitioner denied that any discussion relating to the substance of the article occurred during his stay at Malcolm's home in New York, that Malcolm took notes during any of their conversations, or that Malcolm gave any indication that her tape recorder was broken. Respondents moved for summary judgment. The parties agreed that petitioner was a public figure and so could escape summary judgment only if the evidence in the record would permit a reasonable finder of fact, by clear and convincing evidence, to conclude that respondents published a defamatory statement with actual malice as defined by our cases. The District Court analyzed each of the passages and held that the alleged inaccuracies did not raise a jury question. The court found that the allegedly fabricated quotations were either substantially true, or were "`one of a number of possible * rational interpretations' of a conversation or event that `bristled with ambiguities,'" and thus were entitled to constitutional protection. The court also ruled that the "he had the wrong man" passage involved an exercise of
|
Justice Kennedy
| 1,991 | 4 |
majority
|
Masson v. New Yorker Magazine, Inc.
|
https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
|
"he had the wrong man" passage involved an exercise of editorial judgment upon which the courts could not -1404. The Court of Appeals affirmed, with one judge dissenting. The court assumed for much of its opinion that Malcolm had deliberately altered each quotation not found on the tape recordings, but nevertheless held that petitioner failed to raise a jury question of actual malice, in large part for the reasons stated by the District Court. In its examination of the "intellectual gigolo" passage, the court agreed with the District Court that petitioner could not demonstrate actual malice because Malcolm had not altered the substantive content of petitioner's self-description, but went on to note that it did not consider the "intellectual gigolo" passage defamatory, as the quotation merely reported Kurt Eissler's and Anna Freud's opinions about petitioner. In any event, concluded the court, the statement would not be actionable under the "`incremental harm branch' of the `libelproof' doctrine," ). The dissent argued that any intentional or reckless alteration would prove actual malice, so long as a passage within quotation marks purports to be a verbatim rendition of what was said, contains material inaccuracies, and is -1570. We granted certiorari, and now reverse. II A Under California law, "[l]ibel is a false and unprivileged publication by writing which exposes any person to hatred, *510 contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." Cal. Civ. Code Ann. 45 (West 1982). False attribution of statements to a person may constitute libel, if the falsity exposes that person to an injury comprehended by the statute. See ; ; ; cf. It matters not under California law that petitioner alleges only part of the work at issue to be false. "[T]he test of libel is not quantitative; a single sentence may be the basis for an action in libel even though buried in a much longer text," though the California courts recognize that "[w]hile a drop of poison may be lethal, weaker poisons are sometimes diluted to the point of impotency." The First Amendment limits California's libel law in various respects. When, as here, the plaintiff is a public figure, he cannot recover unless he proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice, i. e., with "knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Mere negligence does not suffice. Rather, the plaintiff must demonstrate that the author "in fact entertained serious doubts
|
Justice Kennedy
| 1,991 | 4 |
majority
|
Masson v. New Yorker Magazine, Inc.
|
https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
|
must demonstrate that the author "in fact entertained serious doubts as to the truth of his publication," St. or acted with a "high degree of awareness of probable falsity," Actual malice under the New York Times standard should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will. See Greenbelt Cooperative *5 Publishing Assn., We have used the term actual malice as a shorthand to describe the First Amendment protections for speech injurious to reputation, and we continue to do so here. But the term can confuse as well as enlighten. In this respect, the phrase may be an unfortunate one. See Harte-Hanks Communications, In place of the term actual malice, it is better practice that jury instructions refer to publication of a statement with knowledge of falsity or reckless disregard as to truth or falsity. This definitional principle must be remembered in the case before us. B In general, quotation marks around a passage indicate to the reader that the passage reproduces the speaker's words verbatim. They inform the reader that he or she is reading the statement of the speaker, not a paraphrase or other indirect interpretation by an author. By providing this information, quotations add authority to the statement and credibility to the author's work. Quotations allow the reader to form his or her own conclusions and to assess the conclusions of the author, instead of relying entirely upon the author's characterization of her subject. A fabricated quotation may injure reputation in at least two senses, either giving rise to a conceivable claim of defamation. First, the quotation might injure because it attributes an untrue factual assertion to the speaker. An example would be a fabricated quotation of a public official admitting he had been convicted of a serious crime when in fact he had not. Second, regardless of the truth or falsity of the factual matters asserted within the quoted statement, the attribution may result in injury to reputation because the manner of expression or even the fact that the statement was made indicates a negative personal trait or an attitude the speaker does not hold. John Lennon once was quoted as saying of * the Beatles, "We're more popular than Jesus Christ now." Time, Aug. 12, 1966, p. 38. Supposing the quotation had been a fabrication, it appears California law could permit recovery for defamation because, even without regard to the truth of the underlying assertion, false attribution of the statement could have injured his reputation. Here, in like manner, one need not determine
|
Justice Kennedy
| 1,991 | 4 |
majority
|
Masson v. New Yorker Magazine, Inc.
|
https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
|
his reputation. Here, in like manner, one need not determine whether petitioner is or is not the greatest analyst who ever lived in order to determine that it might have injured his reputation to be reported as having so proclaimed. A self-condemnatory quotation may carry more force than criticism by another. It is against self-interest to admit one's own criminal liability, arrogance, or lack of integrity, and so all the more easy to credit when it happens. This principle underlies the elemental rule of evidence which permits the introduction of statements against interest, despite their hearsay character, because we assume "that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true." Advisory Committee's Notes on Fed. Rule Evid. 804(b)(3), 28 U.S. C. App., p. 789 ). Of course, quotations do not always convey that the speaker actually said or wrote the quoted material. "Punctuation marks, like words, have many uses. Writers often use quotation marks, yet no reasonable reader would assume that such punctuation automatically implies the truth of the quoted material." Baker v. Los Angeles In Baker, a television reviewer printed a hypothetical conversation between a station vice president and writer/producer, and the court found that no reasonable reader would conclude the plaintiff in fact had made the statement attributed to him. Writers often use quotations as in Baker, and a reader will not reasonably understand the quotations to indicate reproduction of a conversation that took place. In other *513 instances, an acknowledgment that the work is so-called docudrama or historical fiction, or that it recreates conversations from memory, not from recordings, might indicate that the quotations should not be interpreted as the actual statements of the speaker to whom they are attributed. The work at issue here, however, as with much journalistic writing, provides the reader no clue that the quotations are being used as a rhetorical device or to paraphrase the speaker's actual statements. To the contrary, the work purports to be nonfiction, the result of numerous interviews. At least a trier of fact could so conclude. The work contains lengthy quotations attributed to petitioner, and neither Malcolm nor her publishers indicate to the reader that the quotations are anything but the reproduction of actual conversations. Further, the work was published in The New Yorker, a magazine which at the relevant time seemed to enjoy a reputation for scrupulous factual accuracy. These factors would, or at least could, lead a reader to take the quotations at face value. A defendant may be able to argue to the jury
|
Justice Kennedy
| 1,991 | 4 |
majority
|
Masson v. New Yorker Magazine, Inc.
|
https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
|
A defendant may be able to argue to the jury that quotations should be viewed by the reader as nonliteral or reconstructions, but we conclude that a trier of fact in this case could find that the reasonable reader would understand the quotations to be nearly verbatim reports of statements made by the subject. C The constitutional question we must consider here is whether, in the framework of a summary judgment motion, the evidence suffices to show that respondents acted with the requisite knowledge of falsity or reckless disregard as to truth or falsity. This inquiry in turn requires us to consider the concept of falsity; for we cannot discuss the standards for knowledge or reckless disregard without some understanding of the acts required for liability. We must consider whether the requisite falsity inheres in the attribution of words to the petitioner which he did not speak. *514 In some sense, any alteration of a verbatim quotation is false. But writers and reporters by necessity alter what people say, at the very least to eliminate grammatical and syntactical infelicities. If every alteration constituted the falsity required to prove actual malice, the practice of journalism, which the First Amendment standard is designed to protect, would require a radical change, one inconsistent with our precedents and First Amendment principles. Petitioner concedes that this absolute definition of falsity in the quotation context is too stringent, and acknowledges that "minor changes to correct for grammar or syntax" do not amount to falsity for purposes of proving actual malice. Brief for Petitioner 18, 36-37. We agree, and must determine what, in addition to this technical falsity, proves falsity for purposes of the actual malice inquiry. Petitioner argues that, excepting correction of grammar or syntax, publication of a quotation with knowledge that it does not contain the words the public figure used demonstrates actual malice. The author will have published the quotation with knowledge of falsity, and no more need be shown. Petitioner suggests that by invoking more forgiving standards the Court of Appeals would permit and encourage the publication of falsehoods. Petitioner believes that the intentional manufacture of quotations does not "represen[t] the sort of inaccuracy that is commonplace in the forum of robust debate to which the New York Times rule applies," Bose Corp., and that protection of deliberate falsehoods would hinder the First Amendment values of robust and well-informed public debate by reducing the reliability of information available to the public. We reject the idea that any alteration beyond correction of grammar or syntax by itself proves falsity in the sense relevant to
|
Justice Kennedy
| 1,991 | 4 |
majority
|
Masson v. New Yorker Magazine, Inc.
|
https://www.courtlistener.com/opinion/112633/masson-v-new-yorker-magazine-inc/
|
syntax by itself proves falsity in the sense relevant to determining actual malice under the First Amendment. An interviewer who writes from notes often will engage in the task of attempting a reconstruction of the speaker's statement. That author would, we may assume, *515 act with knowledge that at times she has attributed to her subject words other than those actually used. Under petitioner's proposed standard, an author in this situation would lack First Amendment protection if she reported as quotations the substance of a subject's derogatory statements about himself. Even if a journalist has tape-recorded the spoken statement of a public figure, the full and exact statement will be reported in only rare circumstances. The existence of both a speaker and a reporter; the translation between two media, speech and the printed word; the addition of punctuation; and the practical necessity to edit and make intelligible a speaker's perhaps rambling comments, all make it misleading to suggest that a quotation will be reconstructed with complete accuracy. The use or absence of punctuation may distort a speaker's meaning, for example, where that meaning turns upon a speaker's emphasis of a particular word. In other cases, if a speaker makes an obvious misstatement, for example by unconscious substitution of one name for another, a journalist might alter the speaker's words but preserve his intended meaning. And conversely, an exact quotation out of context can distort meaning, although the speaker did use each reported word. In all events, technical distinctions between correcting grammar and syntax and some greater level of alteration do not appear workable, for we can think of no method by which courts or juries would draw the line between cleaning up and other changes, except by reference to the meaning a statement conveys to a reasonable reader. To attempt narrow distinctions of this type would be an unnecessary departure from First Amendment principles of general applicability, and, just as important, a departure from the underlying purposes of the tort of libel as understood since the latter half of the 16th century. From then until now, the tort action for defamation has existed to redress injury to the plaintiff's reputation by a statement that is defamatory and false. See *516 As we have recognized, "[t]he legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood." (19). If an author alters a speaker's words but effects no material change in meaning, including any meaning conveyed by the manner or fact of expression, the speaker suffers no injury to reputation
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