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Justice Kennedy
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majority
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Gonzales v. Carhart
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https://www.courtlistener.com/opinion/145744/gonzales-v-carhart/
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comprehensive statistics indicating what percentage of all D & Es are performed in this manner. Intact D & E, like regular D & E, begins with dilation of the cervix. Sufficient dilation is essential for the To achieve intact extraction some doctors thus may attempt to dilate the cervix to a greater degree. This approach has been called "serial" dilation. ; Planned Doctors who attempt at the outset to perform intact D & E may dilate for two full days or use up to 25 osmotic dilators. See, e.g., Dilation and Extraction 110; *1622 In an intact D & E procedure the doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping it apart. One doctor, for example, testified: "If I know I have good dilation and I reach in and the fetus starts to come out and I think I can accomplish it, the abortion with an intact delivery, then I use my forceps a little bit differently. I don't close them quite so much, and I just gently draw the tissue out attempting to have an intact delivery, if possible." App. in No. 05-1382, at 74. Rotating the fetus as it is being pulled decreases the odds of dismemberment. ; App. in No. 05-380, pp. 40-41; 5 Appellant's App. in No. 04-3379(CA8), p. 1469. A doctor also "may use forceps to grasp a fetal part, pull it down, and re-grasp the fetus at a higher levelsometimes using both his hand and a forcepsto exert traction to retrieve the fetus intact until the head is lodged in the [cervix]." -887. Intact D & E gained public notoriety when, in Dr. Martin Haskell gave a presentation describing his method of performing the operation. Dilation and Extraction 110-111. In the usual intact D & E the fetus' head lodges in the cervix, and dilation is insufficient to allow it to pass. See, e.g., ; App. in No. 05-380, at 577; App. in No. 05-1382, at 74, 282. Haskell explained the next step as follows: "`At this point, the right-handed surgeon slides the fingers of the left [hand] along the back of the fetus and "hooks" the shoulders of the fetus with the index and ring fingers (palm down). "`While maintaining this tension, lifting the cervix and applying traction to the shoulders with the fingers of the left hand, the surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base
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Gonzales v. Carhart
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his middle finger until he feels it contact the base of the skull under the tip of his middle finger. "`[T]he surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening. "`The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient.'" H.R.Rep. No. -58, p. 3 (2003). This is an abortion doctor's clinical description. Here is another description from a nurse who witnessed the same method performed on a 26½-week fetus and who testified before the Senate Judiciary Committee: "`Dr. Haskell went in with forceps and grabbed the baby's legs and pulled them down into the birth canal. Then he delivered the baby's body and the armseverything but the head. The doctor kept the head right inside the uterus. "`The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall. "`The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp. "`He cut the umbilical cord and delivered the placenta. He threw the baby *1623 in a pan, along with the placenta and the instruments he had just used.'" Dr. Haskell's approach is not the only method of killing the fetus once its head lodges in the cervix, and "the process has evolved" since his presentation. Planned 320 F.Supp.2d, Another doctor, for example, squeezes the skull after it has been pierced "so that enough brain tissue exudes to allow the head to pass through." App. in No. 05-380, at 41; see also Still other physicians reach into the cervix with their forceps and crush the fetus' skull. Others continue to pull the fetus out of the woman until it disarticulates at the neck, in effect decapitating it. These doctors then grasp the head with forceps, crush it, and remove it. ; see also Planned Some doctors performing an intact D & E attempt to remove the fetus without collapsing the skull. See Yet one doctor would not allow delivery of a live fetus younger than 24 weeks because "the objective of [his] procedure is to perform an abortion," not a
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Justice Kennedy
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Gonzales v. Carhart
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of [his] procedure is to perform an abortion," not a birth. App. in No. 05-1382, at 408-409. The doctor thus answered in the affirmative when asked whether he would "hold the fetus' head on the internal side of the [cervix] in order to collapse the skull" and kill the fetus before it is born. ; see also Another doctor testified he crushes a fetus' skull not only to reduce its size but also to ensure the fetus is dead before it is removed. For the staff to have to deal with a fetus that has "some viability to it, some movement of limbs," according to this doctor, "[is] always a difficult situation." App. in No. 05-380, at 94; see D & E and intact D & E are not the only second-trimester abortion methods. Doctors also may abort a fetus through medical induction. The doctor medicates the woman to induce labor, and contractions occur to deliver the fetus. Induction, which unlike D & E should occur in a hospital, can last as little as 6 hours but can take longer than 48. It accounts for about five percent of second-trimester abortions before 20 weeks of gestation and 15 percent of those after 20 weeks. Doctors turn to two other methods of second-trimester abortion, hysterotomy and hysterectomy, only in emergency situations because they carry increased risk of complications. In a hysterotomy, as in a cesarean section, the doctor removes the fetus by making an incision through the abdomen and uterine wall to gain access to the uterine cavity. A hysterectomy requires the removal of the entire uterus. These two procedures represent about07% of second-trimester abortions. Nat. Abortion ; Planned -963. B After Dr. Haskell's procedure received public attention, with ensuing and increasing public concern, bans on "`partial birth abortion'" proliferated. By the time of the decision, about 30 States had enacted bans designed to prohibit the -996, and nn. 12-13, (THOMAS, J., dissenting); see also H.R.Rep. No. -58, at 4-5. In Congress also acted to ban partial-birth abortion. President Clinton vetoed the congressional legislation, and the Senate failed to override the veto. Congress approved another bill banning the procedure in but President Clinton again vetoed it. In 2003, after this Court's decision in Congress passed the Act at issue here. H.R.Rep. No. -58, at 12-14. On November 5, 2003, President *1624 Bush signed the Act into law. It was to take effect the following day. (a) ( ed., Supp. IV). The Act responded to in two ways. First, Congress made factual findings. Congress determined that this Court in "was required to
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Gonzales v. Carhart
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findings. Congress determined that this Court in "was required to accept the very questionable findings issued by the district court judge," 2(7), notes following ( ed., Supp. IV), p. 768, ¶ (7) (Congressional Findings), but that Congress was "not bound to accept the same factual findings," ib ¶ (8). Congress found, among other things, that "[a] moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited." ¶ (1). Second, and more relevant here, the Act's language differs from that of the Nebraska statute struck down in See -922, (quoting Neb.Rev.Stat. Ann. 28-328(1), 28-326(9) (Supp.1999)). The operative provisions of the Act provide in relevant part: "(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the enactment. "(b) As used in this section "(1) the term `partial-birth abortion' means an abortion in which the person performing the abortion "(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and "(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus; and "(2) the term `physician' means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which the doctor performs such activity, or any other individual legally authorized by the State to perform abortions: Provided, however, That any individual who is not a physician or not otherwise legally authorized by the State to perform abortions, but who nevertheless directly performs a partial-birth abortion, shall be subject to the provisions of this section. "(d)(1) A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician's conduct was necessary to save
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Justice Kennedy
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Gonzales v. Carhart
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Board on whether the physician's conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. "(2) The findings on that issue are admissible on that issue at the trial of the defendant. Upon a motion of the defendant, the court shall delay the beginning *1625 of the trial for not more than 30 days to permit such a hearing to take place. "(e) A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section, or for an offense under section 2, 3, or 4 of this title based on a violation of this section." ( ed., Supp. IV). The Act also includes a provision authorizing civil actions that is not of relevance here. 1531(c). C The District Court in concluded the Act was unconstitutional for two reasons. First, it determined the Act was unconstitutional because it lacked an exception allowing the procedure where necessary for the health of the -1030. Second, the District Court found the Act deficient because it covered not merely intact D & E but also certain other D & Es. The Court of Appeals for the Eighth Circuit addressed only the lack of a health -804. The court began its analysis with what it saw as the appropriate question"whether `substantial medical authority' supports the medical necessity of the banned " (quoting ). This was the proper framework, according to the Court of Appeals, because "when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women's health by including a health " 413 F.3d, The court rejected the Attorney General's attempt to demonstrate changed evidentiary circumstances since and considered itself bound by 's conclusion that a health exception was (explaining "[t]he record in [the] case and the record in [were] similar in all significant respects"). It invalidated the Act. D The District Court in Planned concluded the Act was unconstitutional "because it (1) pose[d] an undue burden on a woman's ability to choose a second trimester abortion; (2)[was] unconstitutionally vague; and (3) require[d] a health exception as set forth by" -1035. The Court of Appeals for the Ninth Circuit agreed. Like the Court of Appeals for the Eighth Circuit, it concluded the absence of a health exception rendered the Act unconstitutional. The court interpreted to require a health exception unless "there is consensus in the medical community that
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Gonzales v. Carhart
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exception unless "there is consensus in the medical community that the banned procedure is never medically necessary to preserve the health of women." Even after applying a deferential standard of review to Congress' factual findings, the Court of Appeals determined "substantial disagreement exists in the medical community regarding whether" the procedures prohibited by the Act are ever necessary to preserve a woman's health. The Court of Appeals concluded further that the Act placed an undue burden on a woman's ability to obtain a second-trimester abortion. The court found the textual differences between the Act and the Nebraska statute struck down in insufficient to distinguish D & E and intact D & -1180. As a result, according to the Court of Appeals, the Act imposed an undue burden because it prohibited D & Finally, the Court of Appeals found the Act void for vagueness. Abortion doctors testified they were uncertain *1626 which procedures the Act made criminal. The court thus concluded the Act did not offer physicians clear warning of its regulatory reach. -1184. Resting on its understanding of the remedial framework established by this Court in v. Planned of Northern New Eng., the Court of Appeals held the Act was unconstitutional on its face and should be permanently -1191. II The principles set forth in the joint opinion in Planned of Southeastern did not find support from all those who join the instant opinion. See (SCALIA, J., joined by THOMAS, J., inter alios, concurring in judgment in part and dissenting in part). Whatever one's views concerning the joint opinion, it is evident a premise central to its conclusionthat the government has a legitimate and substantial interest in preserving and promoting fetal lifewould be repudiated were the Court now to affirm the judgments of the Courts of Appeals. involved a challenge to The opinion contains this summary: "It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy
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Justice Kennedy
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Gonzales v. Carhart
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State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each." (opinion of the Court). Though all three holdings are implicated in the instant cases, it is the third that requires the most extended discussion; for we must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child. To implement its holding, rejected both Roe's rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion -876, 878, On this point overruled the holdings in two cases because they undervalued the State's interest in potential life. See (joint opinion) and ). We assume the following principles for the purposes of this opinion. Before viability, a State "may not prohibit any woman from making the ultimate decision to terminate her pregnancy." It also may not impose upon this right an undue burden, which exists if a regulation's "purpose or effect is to place a substantial obstacle in the path of a woman *1627 seeking an abortion before the fetus attains viability." On the other hand, "[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose." in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar. III We begin with a determination of the Act's operation and effect. A straightforward reading of the Act's text demonstrates its purpose and the scope of its provisions: It regulates and proscribes, with exceptions or qualifications to be discussed, performing the intact D & E Respondents agree the Act encompasses intact D & E, but they contend its additional reach is both unclear and excessive. Respondents assert that, at the least, the Act is void for vagueness because its scope is indefinite. In the alternative, respondents argue the Act's text proscribes all D & Es. Because D & E is the most common second-trimester abortion method, respondents suggest the Act imposes an undue burden. In this litigation the Attorney General does not dispute that the Act would impose an undue burden if it covered standard D & We conclude that the Act is not void for vagueness, does
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Gonzales v. Carhart
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https://www.courtlistener.com/opinion/145744/gonzales-v-carhart/
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conclude that the Act is not void for vagueness, does not impose an undue burden from any overbreadth, and is not invalid on its face. A The Act punishes "knowingly perform[ing]" a "partial-birth abortion." 1531(a) ( ed., Supp. IV). It defines the unlawful abortion in explicit terms. 1531(b)(1). First, the person performing the abortion must "vaginally delive[r] a living fetus." 1531(b)(1)(A). The Act does not restrict an abortion procedure involving the delivery of an expired fetus. The Act, furthermore, is inapplicable to abortions that do not involve vaginal delivery (for instance, hysterotomy or hysterectomy). The Act does apply both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb. See, e.g., Planned -972. We do not understand this point to be contested by the parties. Second, the Act's definition of partial-birth abortion requires the fetus to be delivered "until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the " 1531(b)(1)(A) ( ed., Supp. IV). The Attorney General concedes, and we agree, that if an abortion procedure does not involve the delivery of a living fetus to one of these "anatomical `landmarks'"where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the motherthe prohibitions of the Act do not apply. Brief for Petitioner in No. 05-380, p. 46. Third, to fall within the Act, a doctor must perform an "overt act, other than completion of delivery, that kills the partially delivered living fetus." 1531(b)(1)(B) ( ed., Supp. IV). For purposes of criminal liability, the overt act causing the fetus' death must be separate from delivery. And the overt act must *1628 occur after the delivery to an anatomical landmark. This is because the Act proscribes killing "the partially delivered" fetus, which, when read in context, refers to a fetus that has been delivered to an anatomical landmark. Fourth, the Act contains scienter requirements concerning all the actions involved in the prohibited abortion. To begin with, the physician must have "deliberately and intentionally" delivered the fetus to one of the Act's anatomical landmarks. 1531(b)(1)(A). If a living fetus is delivered past the critical point by accident or inadvertence, the Act is inapplicable. In addition, the fetus must have been delivered "for the purpose of performing an overt act that the [doctor]
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the purpose of performing an overt act that the [doctor] knows will kill [it]." If either intent is absent, no crime has occurred. This follows from the general principle that where scienter is required no crime is committed absent the requisite state of mind. See generally 1 W. LaFave, Substantive Criminal Law 5.1 (2d ed.2003) (hereinafter LaFave); 1 C. Torcia, Wharton's Criminal Law 27 (15th ed.1993). B Respondents contend the language described above is indeterminate, and they thus argue the Act is unconstitutionally vague on its face. "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." ; Posters `N' The Act satisfies both requirements. The Act provides doctors "of ordinary intelligence a reasonable opportunity to know what is prohibited." Indeed, it sets forth "relatively clear guidelines as to prohibited conduct" and provides "objective criteria" to evaluate whether a doctor has performed a prohibited Posters `N' at -526, Unlike the statutory language in that prohibited the delivery of a "`substantial portion'" of the fetus where a doctor might question how much of the fetus is a substantial portionthe Act defines the line between potentially criminal conduct on the one hand and lawful abortion on the other. (quoting Neb. Rev.Stat. Ann. 28-326(9) (Supp.1999)). Doctors performing D & E will know that if they do not deliver a living fetus to an anatomical landmark they will not face criminal liability. This conclusion is buttressed by the intent that must be proved to impose liability. The Court has made clear that scienter requirements alleviate vagueness concerns. Posters `N' The Act requires the doctor deliberately to have delivered the fetus to an anatomical landmark. 1531(b)(1)(A) ( ed., Supp. IV). Because a doctor performing a D & E will not face criminal liability if he or she delivers a fetus beyond the prohibited point by mistake, the Act cannot be described as "a trap for those who act in good faith." at 99 * Respondents likewise have failed to show that the Act should be invalidated on its face because it encourages arbitrary or discriminatory enforcement. at The scienter requirements narrow the scope of the Act's prohibition and limit prosecutorial discretion. It cannot be said that the Act "vests virtually complete discretion in the hands of [law enforcement] to determine whether the [doctor] has satisfied [its provisions]." (invalidating a statute regulating loitering). Respondents' arguments concerning arbitrary enforcement, furthermore, are somewhat speculative. This is a preenforcement challenge,
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Gonzales v. Carhart
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enforcement, furthermore, are somewhat speculative. This is a preenforcement challenge, where "no evidence has been, or could be, introduced to indicate whether the [Act] has been enforced in a discriminatory manner or with the aim of inhibiting [constitutionally protected conduct]." Hoffman The Act is not vague. C We next determine whether the Act imposes an undue burden, as a facial matter, because its restrictions on second-trimester abortions are too broad. A review of the statutory text discloses the limits of its reach. The Act prohibits intact D & E; and, notwithstanding respondents' arguments, it does not prohibit the D & E procedure in which the fetus is removed in parts. 1 The Act prohibits a doctor from intentionally performing an intact D & The dual prohibitions of the Act, both of which are necessary for criminal liability, correspond with the steps generally undertaken during this type of First, a doctor delivers the fetus until its head lodges in the cervix, which is usually past the anatomical landmark for a breech presentation. See (b)(1)(A) ( ed., Supp. IV). Second, the doctor proceeds to pierce the fetal skull with scissors or crush it with forceps. This step satisfies the overt-act requirement because it kills the fetus and is distinct from delivery. See 1531(b)(1)(B). The Act's intent requirements, however, limit its reach to those physicians who carry out the intact D & E after intending to undertake both steps at the outset. The Act excludes most D & Es in which the fetus is removed in pieces, not intact. If the doctor intends to remove the fetus in parts from the outset, the doctor will not have the requisite intent to incur criminal liability. A doctor performing a standard D & E procedure can often "tak[e] about 10-15 `passes' through the uterus to remove the entire fetus." Planned 320 F.Supp.2d, Removing the fetus in this manner does not violate the Act because the doctor will not have delivered the living fetus to one of the anatomical landmarks or committed an additional overt act that kills the fetus after partial delivery. 1531(b)(1) ( ed., Supp. IV). A comparison of the Act with the Nebraska statute struck down in confirms this point. The statute in prohibited "`deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such *1630 procedure knows will kill the unborn child and does kill the unborn child.'" (quoting Neb.Rev. Stat. Ann. 28-326(9) (Supp.1999)). The Court concluded that this statute encompassed D & E because
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Gonzales v. Carhart
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Court concluded that this statute encompassed D & E because "D & E will often involve a physician pulling a `substantial portion' of a still living fetus, say, an arm or leg, into the vagina prior to the death of the fetus." The Court also rejected the limiting interpretation urged by Nebraska's Attorney General that the statute's reference to a "procedure" that "`kill[s] the unborn child'" was to a distinct procedure, not to the abortion procedure as a whole. Congress, it is apparent, responded to these concerns because the Act departs in material ways from the statute in It adopts the phrase "delivers a living fetus," 1531(b)(1)(A) ( ed., Supp. IV), instead of "`delivering a living unborn child, or a substantial portion thereof,'" (quoting Neb.Rev.Stat. Ann. 28-326(9) (Supp.1999)). The Act's language, unlike the statute in expresses the usual meaning of "deliver" when used in connection with "fetus," namely, extraction of an entire fetus rather than removal of fetal pieces. See Stedman's Medical Dictionary 470 (defining deliver as "[t]o assist a woman in childbirth" and "[t]o extract from an enclosed place, as the fetus from the womb, an object or foreign body"); see also I. Dox, B. Melloni, G. Eisner, & J. Melloni, The HarperCollins Illustrated Medical Dictionary 1 (4th ed.2001); Merriam Webster's Collegiate Dictionary 306 The Act thus displaces the interpretation of "delivering" dictated by the Nebraska statute's reference to a "substantial portion" of the fetus. (indicating that the Nebraska "statute itself specifies that it applies both to delivering `an intact unborn child' or `a substantial portion thereof'"). In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result. See, e.g., 2A N. Singer, Sutherland on Statutes and Statutory Construction 47:28 Here, unlike in the language does not require a departure from the ordinary meaning. D & E does not involve the delivery of a fetus because it requires the removal of fetal parts that are ripped from the fetus as they are pulled through the cervix. The identification of specific anatomical landmarks to which the fetus must be partially delivered also differentiates the Act from the statute at issue in 1531(b)(1)(A) ( ed., Supp. IV). The Court in interpreted "`substantial portion'" of the fetus to include an arm or a The Act's anatomical landmarks, by contrast, clarify that the removal of a small portion of the fetus is not prohibited. The landmarks also require the fetus to be delivered so that it is partially "outside the body of the " 1531(b)(1)(A). To come within the ambit of the Nebraska statute, on the other
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within the ambit of the Nebraska statute, on the other hand, a substantial portion of the fetus only had to be delivered into the vagina; no part of the fetus had to be outside the body of the mother before a doctor could face criminal sanctions. By adding an overt-act requirement Congress sought further to meet the Court's objections to the state statute considered in Compare (b)(1) ( ed., Supp. IV) with Neb. Rev.Stat. Ann. 28-326(9) (Supp.1999). The Act makes the distinction the Nebraska statute failed to draw (but the Nebraska Attorney General advanced) by differentiating between the overall partial-birth *1631 abortion and the distinct overt act that kills the fetus. See 530 U.S., -944, The fatal overt act must occur after delivery to an anatomical landmark, and it must be something "other than [the] completion of delivery." 1531(b)(1)(B). This distinction matters because, unlike intact D & E, standard D & E does not involve a delivery followed by a fatal act. The canon of constitutional avoidance, finally, extinguishes any lingering doubt as to whether the Act covers the prototypical D & E "`[T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.'" Edward J. DeBartolo S. Ct. 1392, It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic "`canon of construction under which in cases involving abortion, a permissible reading of a statute [was] to be avoided at all costs.'" (KENNEDY, J., dissenting) (quoting (O'Connor, J., dissenting)). put this novel statutory approach to rest. (KENNEDY, J., dissenting). need not be interpreted to have revived it. We read that decision instead to stand for the uncontroversial proposition that the canon of constitutional avoidance does not apply if a statute is not "genuinely susceptible to two constructions." ; see also In the Court found the statute covered D & -945, Here, by contrast, interpreting the Act so that it does not prohibit standard D & E is the most reasonable reading and understanding of its terms. 2 Contrary arguments by the respondents are unavailing. Respondents look to situations that might arise during D & E, situations not examined in They contendrelying on the testimony of numerous abortion doctorsthat D & E may result in the delivery of a living fetus beyond the Act's anatomical landmarks in a significant fraction of cases. This is so, respondents say, because doctors cannot predict the amount the cervix will dilate before the abortion
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Gonzales v. Carhart
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predict the amount the cervix will dilate before the abortion It might dilate to a degree that the fetus will be removed largely intact. To complete the abortion, doctors will commit an overt act that kills the partially delivered fetus. Respondents thus posit that any D & E has the potential to violate the Act, and that a physician will not know beforehand whether the abortion will proceed in a prohibited manner. Brief for Respondent Planned et al. in No. 05-1382, p. 38. This reasoning, however, does not take account of the Act's intent requirements, which preclude liability from attaching to an accidental intact D & If a doctor's intent at the outset is to perform a D & E in which the fetus would not be delivered to either of the Act's anatomical landmarks, but the fetus nonetheless is delivered past one of those points, the requisite and prohibited scienter is not present. (b)(1)(A) ( ed., Supp. IV). When a doctor in that situation completes an abortion by performing an intact *1632 D & E, the doctor does not violate the Act. It is true that intent to cause a result may sometimes be inferred if a person "knows that that result is practically certain to follow from his conduct." 1 LaFave 5.2(a), at 341. Yet abortion doctors intending at the outset to perform a standard D & E procedure will not know that a prohibited abortion "is practically certain to follow from" their conduct. A fetus is only delivered largely intact in a small fraction of the overall number of D & E abortions. Planned 320 F.Supp.2d, The evidence also supports a legislative determination that an intact delivery is almost always a conscious choice rather than a happenstance. Doctors, for example, may remove the fetus in a manner that will increase the chances of an intact delivery. See, e.g., App. in No. 05-1382, at 74, 452. And intact D & E is usually described as involving some manner of serial dilation. See, e.g., Dilation and Extraction 110. Doctors who do not seek to obtain this serial dilation perform an intact D & E on far fewer occasions. See, e.g., -858 This evidence belies any claim that a standard D & E cannot be performed without intending or foreseeing an intact D & Many doctors who testified on behalf of respondents, and who objected to the Act, do not perform an intact D & E by accident. On the contrary, they begin every D & E abortion with the objective of removing the fetus as intact as possible. See,
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objective of removing the fetus as intact as possible. See, e.g., ; see also This does not prove, as respondents suggest, that every D & E might violate the Act and that the Act therefore imposes an undue burden. It demonstrates only that those doctors who intend to perform a D & E that would involve delivery of a living fetus to one of the Act's anatomical landmarks must adjust their conduct to the law by not attempting to deliver the fetus to either of those points. Respondents have not shown that requiring doctors to intend dismemberment before delivery to an anatomical landmark will prohibit the vast majority of D & E abortions. The Act, then, cannot be held invalid on its face on these grounds. IV Under the principles accepted as controlling here, the Act, as we have interpreted it, would be unconstitutional "if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." 505 U.S., The abortions affected by the Act's regulations take place both previability and postviability; so the quoted language and the undue burden analysis it relies upon are applicable. The question is whether the Act, measured by its text in this facial attack, imposes a substantial obstacle to late-term, but previability, abortions. The Act does not on its face impose a substantial obstacle, and we reject this further facial challenge to its validity. A The Act's purposes are set forth in recitals preceding its operative provisions. A description of the prohibited abortion procedure demonstrates the rationale for the congressional enactment. The Act proscribes a method of abortion in which a fetus is killed just inches before *1633 completion of the birth process. Congress stated as follows: "Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life." Congressional Findings (14)(N), in notes following ( ed., Supp. IV), p. 769. The Act expresses respect for the dignity of human life. Congress was concerned, furthermore, with the effects on the medical community and on its reputation caused by the practice of partial-birth abortion. The findings in the Act explain: "Partial-birth abortion confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order
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all but the head, out of the womb, in order to end that life." Congressional Findings (14)(J), There can be no doubt the government "has an interest in protecting the integrity and ethics of the medical profession." ; see also Under our precedents it is clear the State has a significant role to play in regulating the medical profession. reaffirmed these governmental objectives. The government may use its voice and its regulatory authority to show its profound respect for the life within the woman. A central premise of the opinion was that the Court's precedents after Roe had "undervalue[d] the State's interest in potential life." ; see also The plurality opinion indicated "[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it." This was not an idle assertion. The three premises of must coexist. See (opinion of the Court). The third premise, that the State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, cannot be set at naught by interpreting 's requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn. The Act's ban on abortions that involve partial delivery of a living fetus furthers the Government's objectives. No one would dispute that, for many, D & E is a procedure itself laden with the power to devalue human life. Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. Congress determined that the abortion methods it proscribed had a "disturbing similarity to the killing of a newborn infant," Congressional Findings (14)(L), in notes following ( ed., Supp. IV), p. 769, and thus it was concerned with "draw[ing] a *1634 bright line that clearly distinguishes abortion and infanticide." Congressional Findings (14)(G), The Court has in the past confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned.
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extinguish life and are close to actions that are condemned. Glucksberg found reasonable the State's "fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia." -735, and n. 23, Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. (opinion of the Court). While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05-380, pp. 22-24. Severe depression and loss of esteem can follow. See In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. See, e.g., Nat. Abortion n. 22 ; see also It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. ("States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning"). The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form. It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions. The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand. The State's interest in respect for life is advanced by the dialogue that better informs the
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life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion. It is objected that the standard D & E is in some respects as brutal, if not more, than the intact D & E, so that the legislation accomplishes little. What we have already said, however, shows ample justification for the regulation. Partial-birth abortion, as defined by the Act, differs from a standard D & E because the former *1635 occurs when the fetus is partially outside the mother to the point of one of the Act's anatomical landmarks. It was reasonable for Congress to think that partial-birth abortion, more than standard D & E, "undermines the public's perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world." Congressional Findings (14)(K), in notes following ( ed., Supp. IV), p. 769. There would be a flaw in this Court's logic, and an irony in its jurisprudence, were we first to conclude a ban on both D & E and intact D & E was overbroad and then to say it is irrational to ban only intact D & E because that does not proscribe both procedures. In sum, we reject the contention that the congressional purpose of the Act was "to place a substantial obstacle in the path of a woman seeking an abortion." 505 U.S., B The Act's furtherance of legitimate government interests bears upon, but does not resolve, the next question: whether the Act has the effect of imposing an unconstitutional burden on the abortion right because it does not allow use of the barred procedure where "`necessary, in appropriate medical judgment, for [the] preservation of the health of the '" -328, (quoting ). The prohibition in the Act would be unconstitutional, under precedents we here assume to be controlling, if it "subject[ed] [women] to significant health risks." ; see also (opinion of the Court). In the parties agreed a health exception to the challenged parental-involvement statute was necessary "to avert serious and often irreversible damage to [a pregnant minor's] health." 546 U.S., Here, by contrast, whether the Act creates significant health risks for women has been a contested factual question. The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their position. Respondents presented evidence that intact D & E may be the safest method of abortion, for reasons similar
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may be the safest method of abortion, for reasons similar to those adduced in See Abortion doctors testified, for example, that intact D & E decreases the risk of cervical laceration or uterine perforation because it requires fewer passes into the uterus with surgical instruments and does not require the removal of bony fragments of the dismembered fetus, fragments that may be sharp. Respondents also presented evidence that intact D & E was safer both because it reduces the risks that fetal parts will remain in the uterus and because it takes less time to complete. Respondents, in addition, proffered evidence that intact D & E was safer for women with certain medical conditions or women with fetuses that had certain anomalies. See, e.g., -929; Nat. Abortion ; Planned -983. These contentions were contradicted by other doctors who testified in the District Courts and before Congress. They concluded that the alleged health advantages were based on speculation without scientific studies to support them. They considered D & E always to be a safe alternative. See, e.g., ; Nat. Abortion 330 F.Supp.2d, ; Planned *1636 There is documented medical disagreement whether the Act's prohibition would ever impose significant health risks on women. See, e.g., ; see also Nat. Abortion The three District Courts that considered the Act's constitutionality appeared to be in some disagreement on this central factual question. The District Court for the District of Nebraska concluded "the banned procedure is, sometimes, the safest abortion procedure to preserve the health of women." The District Court for the Northern District of California reached a similar conclusion. Planned (finding intact D & E was "under certain circumstances significantly safer than D & E by disarticulation"). The District Court for the Southern District of New York was more skeptical of the purported health benefits of intact D & It found the Attorney General's "expert witnesses reasonably and effectively refuted [the plaintiffs'] proffered bases for the opinion that [intact D & E] has safety advantages over other second-trimester abortion procedures." Nat. Abortion 330 F.Supp.2d, In addition it did "not believe that many of [the plaintiffs'] purported reasons for why [intact D & E] is medically necessary [were] credible; rather [it found them to be] theoretical or false." The court nonetheless invalidated the Act because it determined "a significant body of medical opinion holds that D & E has safety advantages over induction and that [intact D & E] has some safety advantages (however hypothetical and unsubstantiated by scientific evidence) over D & E for some women in some circumstances." The question becomes whether the
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some women in some circumstances." The question becomes whether the Act can stand when this medical uncertainty persists. The Court's precedents instruct that the Act can survive this facial attack. The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty. See ; ; ; ; ; see also (KENNEDY, J., dissenting); This traditional rule is consistent with which confirms the State's interest in promoting respect for human life at all stages in the pregnancy. Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures. The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community. In the controlling opinion held an informed-consent requirement in the abortion context was "no different from a requirement that a doctor give certain specific information about any medical " (joint opinion). The opinion stated "the doctor-patient relation here is entitled to the same solicitude it receives in other contexts." ; see also (criticizing Roe's trimester framework because, inter alia, it "left this Court to serve as the country's ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States" ); (upholding a restriction on the performance of abortions to licensed physicians despite the respondents' contention "all health evidence contradicts the claim that there is any health basis for the law" ). Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. See at The medical uncertainty over whether the Act's prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden. The conclusion that the Act does not impose an undue burden is supported by other considerations. Alternatives are available to the prohibited As we have noted, the Act does not proscribe D & One District Court found D & E to have extremely low rates of medical complications. Planned Another indicated D & E was "generally the safest method of abortion during the second trimester." ; see also Nat. Abortion In addition the Act's prohibition only applies to the delivery of "a living fetus." (b)(1)(A) ( ed., Supp. IV). If the intact D & E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the The
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the Act that allows the doctor to perform the The instant cases, then, are different from Planned of Central in which the Court invalidated a ban on saline amniocentesis, the then-dominant second-trimester abortion method. The Court found the ban in Danforth to be "an unreasonable or arbitrary regulation designed to inhibit, and having the effect of inhibiting, the vast majority of abortions after the first 12 weeks." Here the Act allows, among other means, a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right. In reaching the conclusion the Act does not require a health exception we reject certain arguments made by the parties on both sides of these cases. On the one hand, the Attorney General urges us to uphold the Act on the basis of the congressional findings alone. Brief for Petitioner in No. 05-380, at 23. Although we review congressional factfinding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress' findings. The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake. See As respondents have noted, and the District Courts recognized, some recitations in *1638 the Act are factually incorrect. See Nat. Abortion 330 F.Supp.2d, 488-491. Whether or not accurate at the time, some of the important findings have been superseded. Two examples suffice. Congress determined no medical schools provide instruction on the prohibited Congressional Findings (14)(B), in notes following ( ed., Supp. IV), p. 769. The testimony in the District Courts, however, demonstrated intact D & E is taught at medical schools. Nat. Abortion ; Planned Congress also found there existed a medical consensus that the prohibited procedure is never medically necessary. Congressional Findings (1), in notes following ( ed., Supp. IV), p. 767. The evidence presented in the District Courts contradicts that conclusion. See, e.g., ; Nat. Abortion ; Planned Uncritical deference to Congress' factual findings in these cases is inappropriate. On the other hand, relying on the Court's opinion in respondents contend that an abortion regulation must contain a health exception "if `substantial medical authority supports the proposition that banning a particular procedure could endanger women's health.'" Brief for Respondents in No. 05-380, p. 19 (quoting ); see also Brief for Respondent Planned et al. in No. 05-1382, at 12 (same). As illustrated by respondents' arguments and the decisions of the Courts of Appeals, has been interpreted to leave no margin of error for legislatures to act in the face of medical uncertainty. 413 F.3d, ; Planned ; see also Nat.
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medical uncertainty. 413 F.3d, ; Planned ; see also Nat. Abortion (explaining the standard under "is a virtually insurmountable evidentiary hurdle"). A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations. The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman's health, given the availability of other abortion procedures that are considered to be safe alternatives. V The considerations we have discussed support our further determination that these facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge. The Government has acknowledged that preenforcement, as-applied challenges to the Act can be maintained. Tr. of Oral Arg. in No. 05-380, pp. -23. This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used. In an as-applied *1639 challenge the nature of the medical risk can be better quantified and balanced than in a facial attack. The latitude given facial challenges in the First Amendment context is inapplicable here. Broad challenges of this type impose "a heavy burden" upon the parties maintaining the suit. What that burden consists of in the specific context of abortion statutes has been a subject of some question. Compare with (opinion of the Court) (indicating a spousal-notification statute would impose an undue burden "in a large fraction of the cases in which [it] is relevant" and holding the statutory provision facially invalid). See also Janklow v. Planned Sioux Falls Clinic, We need not resolve that debate. As the previous sections of this opinion explain, respondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases. (opinion of the Court). We note that the statute here applies to
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the Court). We note that the statute here applies to all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications. It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop. "[I]t would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation." United (19) For this reason, "[a]s-applied challenges are the basic building blocks of constitutional adjudication." Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L.Rev. 13, 1328 The Act is open to a proper as-applied challenge in a discrete case. Cf. Wisconsin Right to Life, No as-applied challenge need be brought if the prohibition in the Act threatens a woman's life because the Act already contains a life (a) ( ed., Supp. IV). * * * Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman's right to abortion based on its overbreadth or lack of a health For these reasons the judgments of the Courts of Appeals for the Eighth and Ninth Circuits are reversed. It is so ordered.
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Justice O'Connor
| 1,985 | 14 |
dissenting
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Tennessee v. Garner
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The Court today holds that the Fourth Amendment prohibits a police officer from using deadly force as a last resort to *23 apprehend a criminal suspect who refuses to halt when fleeing the scene of a nighttime burglary. This conclusion rests on the majority's balancing of the interests of the suspect and the public interest in effective law enforcement. Ante, at 8. Notwithstanding the venerable common-law rule authorizing the use of deadly force if necessary to apprehend a fleeing felon, and continued acceptance of this rule by nearly half the States, ante, at 14, 16-17, the majority concludes that Tennessee's statute is unconstitutional inasmuch as it allows the use of such force to apprehend a burglary suspect who is not obviously armed or otherwise dangerous. Although the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the history of the Fourth Amendment and to the general implications of the Court's reasoning. By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the Fourth Amendment supports such a right, and I accordingly dissent. I The facts below warrant brief review because they highlight the difficult, split-second decisions police officers must make in these circumstances. Memphis Police Officers Elton Hymon and Leslie Wright responded to a late-night call that a burglary was in progress at a private residence. When the officers arrived at the scene, the caller said that "they" were breaking into the house next door. App. in No. 81-5605 (CA6), p. 7. The officers found the residence had been forcibly entered through a window and saw lights *24 on inside the house. Officer Hymon testified that when he saw the broken window he realized "that something was wrong inside," but that he could not determine whether anyone either a burglar or a member of the household was within the residence. As Officer Hymon walked behind the house, he heard a door slam. He saw Edward Eugene Garner run away from the house through the dark and cluttered backyard. Garner crouched next to a 6-foot-high fence. Officer Hymon thought Garner was an adult and was unsure whether Garner was armed because Hymon "had no idea what was in the hand [that he could not
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Justice O'Connor
| 1,985 | 14 |
dissenting
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Tennessee v. Garner
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idea what was in the hand [that he could not see] or what he might have had on his person." In fact, Garner was 15 years old and unarmed. Hymon also did not know whether accomplices remained inside the house. The officer identified himself as a police officer and ordered Garner to halt. Garner paused briefly and then sprang to the top of the fence. Believing that Garner would escape if he climbed over the fence, Hymon fired his revolver and mortally wounded the suspected burglar. Appellee-respondent, the deceased's father, filed a 42 U.S. C. action in federal court against Hymon, the city of Memphis, and other defendants, for asserted violations of Garner's constitutional rights. The District Court for the Western District of Tennessee held that Officer Hymon's actions were justified by a Tennessee statute that authorizes a police officer to "use all the necessary means to effect the arrest," if "after notice of the intention to arrest the defendant, he either flee or forcibly resist." Tenn. Code Ann. 40-7-108 (1982). As construed by the Tennessee courts, this statute allows the use of deadly force only if a police officer has probable cause to believe that a person has committed a felony, the officer warns the person that he intends to arrest him, and the officer reasonably believes that no means less than such force will prevent the escape. See, e. g., The District Court held that the Tennessee statute is constitutional and that Hymon's actions as authorized by that statute did not violate Garner's constitutional rights. The Court of Appeals for the Sixth Circuit reversed on the grounds that the Tennessee statute "authorizing the killing of an unarmed, nonviolent fleeing felon by police in order to prevent escape" violates the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. The Court affirms on the ground that application of the Tennessee statute to authorize Officer Hymon's use of deadly force constituted an unreasonable seizure in violation of the Fourth Amendment. The precise issue before the Court deserves emphasis, because both the decision below and the majority obscure what must be decided in this case. The issue is not the constitutional validity of the Tennessee statute on its face or as applied to some hypothetical set of facts. Instead, the issue is whether the use of deadly force by Officer Hymon under the circumstances of this case violated Garner's constitutional rights. Thus, the majority's assertion that a police officer who has probable cause to seize a suspect "may not always do so by killing him," ante, at 9, is
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Justice O'Connor
| 1,985 | 14 |
dissenting
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Tennessee v. Garner
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always do so by killing him," ante, at 9, is unexceptionable but also of little relevance to the question presented here. The same is true of the rhetorically stirring statement that "[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable." ante, at 11. The question we must address is whether the Constitution allows the use of such force to apprehend a suspect who resists arrest by attempting to flee the scene of a nighttime burglary of a residence. II For purposes of Fourth Amendment analysis, I agree with the Court that Officer Hymon "seized" Garner by shooting him. Whether that seizure was reasonable and therefore permitted by the Fourth Amendment requires a careful balancing *26 of the important public interest in crime prevention and detection and the nature and quality of the intrusion upon legitimate interests of the individual. United In striking this balance here, it is crucial to acknowledge that police use of deadly force to apprehend a fleeing criminal suspect falls within the "rubric of police conduct necessarily [involving] swift action predicated upon the on-the-spot observations of the officer on the beat." The clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain and often dangerous circumstances. Moreover, I am far more reluctant than is the Court to conclude that the Fourth Amendment proscribes a police practice that was accepted at the time of the adoption of the Bill of Rights and has continued to receive the support of many state legislatures. Although the Court has recognized that the requirements of the Fourth Amendment must respond to the reality of social and technological change, fidelity to the notion of constitutional as opposed to purely judicial limits on governmental action requires us to impose a heavy burden on those who claim that practices accepted when the Fourth Amendment was adopted are now constitutionally impermissible. See, e. g., United ; Cf. United The public interest involved in the use of deadly force as a last resort to apprehend a fleeing burglary suspect relates primarily to the serious nature of the crime. Household burglaries not only represent the illegal entry into a person's home, but also "pos[e] real risk of serious harm to others." According to recent Department of Justice statistics, "[t]hree-fifths of all rapes in the home, *27 three-fifths of all home robberies, and about a third of home aggravated and simple assaults are committed by burglars." Bureau of Justice Statistics Bulletin, Household Burglary 1 (January 1985). During the period 1973-1982,
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Justice O'Connor
| 1,985 | 14 |
dissenting
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Tennessee v. Garner
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https://www.courtlistener.com/opinion/111397/tennessee-v-garner/
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Bulletin, Household Burglary 1 (January 1985). During the period 1973-1982, 2.8 million such violent crimes were committed in the course of burglaries. Victims of a forcible intrusion into their home by a nighttime prowler will find little consolation in the majority's confident assertion that "burglaries only rarely involve physical violence." Ante, at 21. Moreover, even if a particular burglary, when viewed in retrospect, does not involve physical harm to others, the "harsh potentialities for violence" inherent in the forced entry into a home preclude characterization of the crime as "innocuous, inconsequential, minor, or `nonviolent.' " See also Restatement of Torts 131, Comment g (1934) (burglary is among felonies that normally cause or threaten death or serious bodily harm); R. Perkins & R. Boyce, Criminal Law 1110 (3d ed. 1982) (burglary is dangerous felony that creates unreasonable risk of great personal harm). Because burglary is a serious and dangerous felony, the public interest in the prevention and detection of the crime is of compelling importance. Where a police officer has probable cause to arrest a suspected burglar, the use of deadly force as a last resort might well be the only means of apprehending the suspect. With respect to a particular burglary, subsequent investigation simply cannot represent a substitute for immediate apprehension of the criminal suspect at the scene. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Challenge of Crime in a Free Society 97 (1967). Indeed, the Captain of the Memphis Police Department testified that in his city, if apprehension is not immediate, it is likely that the suspect will not be caught. App. in No. 81-5605 (CA6), p. 334. Although some law enforcement agencies may choose to assume the risk that a criminal will remain at large, the *28 Tennessee statute reflects a legislative determination that the use of deadly force in prescribed circumstances will serve generally to protect the public. Such statutes assist the police in apprehending suspected perpetrators of serious crimes and provide notice that a lawful police order to stop and submit to arrest may not be ignored with impunity. See, e. g., (CA6), cert. denied, ; The Court unconvincingly dismisses the general deterrence effects by stating that "the presently available evidence does not support [the] thesis" that the threat of force discourages escape and that "there is a substantial basis for doubting that the use of such force is an essential attribute to the arrest power in all felony cases." Ante, at 10, 11. There is no question that the effectiveness of police use of deadly force is arguable
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Justice O'Connor
| 1,985 | 14 |
dissenting
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Tennessee v. Garner
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the effectiveness of police use of deadly force is arguable and that many States or individual police departments have decided not to authorize it in circumstances similar to those presented here. But it should go without saying that the effectiveness or popularity of a particular police practice does not determine its constitutionality. Cf. Moreover, the fact that police conduct pursuant to a state statute is challenged on constitutional grounds does not impose a burden on the State to produce social science statistics or to dispel any possible doubts about the necessity of the conduct. This observation, I believe, has particular force where the challenged practice both predates enactment of the Bill of Rights and continues to be accepted by a substantial number of the States. Against the strong public interests justifying the conduct at issue here must be weighed the individual interests implicated in the use of deadly force by police officers. The *29 majority declares that "[t]he suspect's fundamental interest in his own life need not be elaborated upon." Ante, at 9. This blithe assertion hardly provides an adequate substitute for the majority's failure to acknowledge the distinctive manner in which the suspect's interest in his life is even exposed to risk. For purposes of this case, we must recall that the police officer, in the course of investigating a nighttime burglary, had reasonable cause to arrest the suspect and ordered him to halt. The officer's use of force resulted because the suspected burglar refused to heed this command and the officer reasonably believed that there was no means short of firing his weapon to apprehend the suspect. Without questioning the importance of a person's interest in his life, I do not think this interest encompasses a right to flee unimpeded from the scene of a burglary. Cf. ("[T]he policeman's hands should not be tied merely because of the possibility that the suspect will fail to cooperate with legitimate actions by law enforcement personnel"). The legitimate interests of the suspect in these circumstances are adequately accommodated by the Tennessee statute: to avoid the use of deadly force and the consequent risk to his life, the suspect need merely obey the valid order to halt. A proper balancing of the interests involved suggests that use of deadly force as a last resort to apprehend a criminal suspect fleeing from the scene of a nighttime burglary is not unreasonable within the meaning of the Fourth Amendment. Admittedly, the events giving rise to this case are in retrospect deeply regrettable. No one can view the death of an unarmed and apparently nonviolent
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Justice O'Connor
| 1,985 | 14 |
dissenting
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Tennessee v. Garner
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can view the death of an unarmed and apparently nonviolent 15-year-old without sorrow, much less disapproval. Nonetheless, the reasonableness of Officer Hymon's conduct for purposes of the Fourth Amendment cannot be evaluated by what later appears to have been a preferable course of police action. The officer pursued a suspect in the darkened backyard of a house that from all indications had just been burglarized. The *30 police officer was not certain whether the suspect was alone or unarmed; nor did he know what had transpired inside the house. He ordered the suspect to halt, and when the suspect refused to obey and attempted to flee into the night, the officer fired his weapon to prevent escape. The reasonableness of this action for purposes of the Fourth Amendment is not determined by the unfortunate nature of this particular case; instead, the question is whether it is constitutionally impermissible for police officers, as a last resort, to shoot a burglary suspect fleeing the scene of the crime. Because I reject the Fourth Amendment reasoning of the majority and the Court of Appeals, I briefly note that no other constitutional provision supports the decision below. In addition to his Fourth Amendment claim, appellee-respondent also alleged violations of due process, the Sixth Amendment right to trial by jury, and the Eighth Amendment proscription of cruel and unusual punishment. These arguments were rejected by the District Court and, except for the due process claim, not addressed by the Court of Appeals. With respect to due process, the Court of Appeals reasoned that statutes affecting the fundamental interest in life must be "narrowly drawn to express only the legitimate state interests at stake." The Court of Appeals concluded that a statute allowing police use of deadly force is narrowly drawn and therefore constitutional only if the use of such force is limited to situations in which the suspect poses an immediate threat to others. Whatever the validity of Tennessee's statute in other contexts, I cannot agree that its application in this case resulted in a deprivation "without due process of law." Cf. Nor do I believe that a criminal suspect who is shot while trying to avoid apprehension has a cognizable claim of a deprivation of his Sixth Amendment right to trial by jury. See Finally, because there is no indication that the use *31 of deadly force was intended to punish rather than to capture the suspect, there is no valid claim under the Eighth Amendment. See 441 U.S. 5, Accordingly, I conclude that the District Court properly entered judgment against appellee-respondent, and I
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Justice O'Connor
| 1,985 | 14 |
dissenting
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Tennessee v. Garner
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the District Court properly entered judgment against appellee-respondent, and I would reverse the decision of the Court of Appeals. III Even if I agreed that the Fourth Amendment was violated under the circumstances of this case, I would be unable to join the Court's opinion. The Court holds that deadly force may be used only if the suspect "threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm." Ante, at 11. The Court ignores the more general implications of its reasoning. Relying on the Fourth Amendment, the majority asserts that it is constitutionally unreasonable to use deadly force against fleeing criminal suspects who do not appear to pose a threat of serious physical harm to others. By declining to limit its holding to the use of firearms, the Court unnecessarily implies that the Fourth Amendment constrains the use of any police practice that is potentially lethal, no matter how remote the risk. Cf. Los Although it is unclear from the language of the opinion, I assume that the majority intends the word "use" to include only those circumstances in which the suspect is actually apprehended. Absent apprehension of the suspect, there is no "seizure" for Fourth Amendment purposes. I doubt that the Court intends to allow criminal suspects who successfully escape to return later with claims against officers who used, albeit unsuccessfully, deadly force in their futile attempt to capture the fleeing suspect. The Court's opinion, despite its broad language, actually decides only that the *32 shooting of a fleeing burglary suspect who was in fact neither armed nor dangerous can support a action. The Court's silence on critical factors in the decision to use deadly force simply invites second-guessing of difficult police decisions that must be made quickly in the most trying of circumstances. Cf. Police are given no guidance for determining which objects, among an array of potentially lethal weapons ranging from guns to knives to baseball bats to rope, will justify the use of deadly force. The Court also declines to outline the additional factors necessary to provide "probable cause" for believing that a suspect "poses a significant threat of death or serious physical injury," ante, at 3, when the officer has probable cause to arrest and the suspect refuses to obey an order to halt. But even if it were appropriate in this case to limit the use of deadly force to that ambiguous class of suspects, I believe the class should include nighttime residential burglars who
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Justice O'Connor
| 1,985 | 14 |
dissenting
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Tennessee v. Garner
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https://www.courtlistener.com/opinion/111397/tennessee-v-garner/
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I believe the class should include nighttime residential burglars who resist arrest by attempting to flee the scene of the crime. We can expect an escalating volume of litigation as the lower courts struggle to determine if a police officer's split-second decision to shoot was justified by the danger posed by a particular object and other facts related to the crime. Thus, the majority opinion portends a burgeoning area of Fourth Amendment doctrine concerning the circumstances in which police officers can reasonably employ deadly force. IV The Court's opinion sweeps broadly to adopt an entirely new standard for the constitutionality of the use of deadly force to apprehend fleeing felons. Thus, the Court "lightly brushe[s] aside," a longstanding police practice that predates the Fourth Amendment and continues to receive the approval of nearly half of the state legislatures. I cannot accept the majority's creation of a constitutional right to flight for burglary suspects *33 seeking to avoid capture at the scene of the crime. Whatever the constitutional limits on police use of deadly force in order to apprehend a fleeing felon, I do not believe they are exceeded in a case in which a police officer has probable cause to arrest a suspect at the scene of a residential burglary, orders the suspect to halt, and then fires his weapon as a last resort to prevent the suspect's escape into the night. I respectfully dissent.
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Justice Brennan
| 1,974 | 13 |
majority
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Regional Rail Reorganization Act Cases
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These direct appeals and the cross-appeal are from a judgment of a three-judge District Court for the Eastern District of Pennsylvania that declared the Regional Rail Reorganization Act of 1973 (Rail Act), 45 U.S. C. 701 et seq. (1970 ed., Supp. III), unconstitutional in part and enjoined its enforcement.[1] 383 F. *108 Supp. 510 We noted probable jurisdiction, post, p. 801. We reverse. I Introduction A rail transportation crisis seriously threatening the national welfare was precipitated when eight major railroads in the northeast and midwest region of the country[2] entered reorganization proceedings under 77 of the Bankruptcy Act, 11 U.S. C. 205.[3] After interim measures *109 proved to be insufficient,[4] Congress concluded that solution of the crisis required reorganization of the railroads, stripped of excess facilities, into a single, viable system operated by a private, for-profit corporation. Since such a system cannot be created under 77 rail reorganization law, and since significant federal financing would be necessary to make such a plan workable, Congress supplemented 77 with the Rail Act, which became effective on January 2, The salient features of the Rail Act are: 1. Reorganization of each railroad in 77 reorganization must proceed pursuant to the Rail Act unless the district court having jurisdiction over its reorganization (a) finds, within 120 days after January 2, "that the railroad is reorganizable on an income basis within a reasonable time under section [77] and that the public interest would be better served by such a reorganization *110 than by a reorganization under this chapter,"[5] or (b) within 180 days after January 2, "finds that this chapter does not provide a process which would be fair and equitable to the estate of the railroad in reorganization." 207 (b), 45 U.S. C. 7 (b) (1970 ed., Supp. III).[6] Appeals from 207 (b) orders may be taken within 10 days of entry to a Special Court constituted under 209 (b), 45 U.S. C. 9 (b) (1970 ed., Supp. III), and must be decided by the Special Court within 80 days after the appeal is taken. Section 207 (b) expressly provides that "[t]here shall be no review of the decision of the special court."[7] *111 2. Appellant United States Railway Association (USRA) is established as a new Government corporation. 201 (a), 45 U.S. C. 1 (a) (1970 ed., Supp. III). USRA must prepare a "Final System Plan" for restructuring the railroads in reorganization into a "financially self-sustaining rail service system." 206 (a) (1), 45 U.S. C. 6 (a) (1) (1970 ed., Supp. III). See 201, 202, 204-206, 45 U.S. C. 1, 2, 7-6 (1970 ed.,
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| 1,974 | 13 |
majority
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202, 204-206, 45 U.S. C. 1, 2, 7-6 (1970 ed., Supp. III). The Final System Plan must provide for transfer of designated rail properties by the railroads in reorganization to a private state-incorporated corporation, Consolidated Rail Corporation (Conrail), 301 (a), 45 U.S. C. 741 (a) (1970 ed., Supp. III), in return for securities of Conrail, plus up to $500 million of USRA obligations guaranteed by the United States, and "the other benefits accruing to such railroad by reason of such transfer." 206 (d) (1), 45 U.S. C. 6 (d) (1) (1970 ed., Supp. III); see also 0, 45 U.S. C. 720 (1970 ed., Supp. III).[8] *112 3. USRA must submit a proposed Final System Plan to Congress within 570 days after January 2, 207 (c), 207 (d), 208 (a), 45 U.S. C. 7 (c), 7 (d), 8 *113 (a) (1970 ed., Supp. III), that is, by July 26, 1975.[9] The Plan becomes "effective" if neither House of Congress disapproves it within 60 continuous session days *1 after submission. 102 (4), 208 (a), 45 U.S. C. 702 (4), 8 (a) (1970 ed., Supp. III).[10] USRA is required to transmit the Plan within 90 days after its effective *115 date to the Special Court which, under 209 (b), is given exclusive jurisdiction of all "proceedings with respect to the final system plan." 45 U.S. C. 9 (b) (1970 ed., Supp. III). The Special Court "within 10 days after deposit of" Conrail securities and USRA obligations "shall order the trustee or trustees of each railroad in reorganization to convey forthwith" to Conrail "all right, title, and interest in the rail properties of such railroad in reorganization" designated in the Final System Plan. 303 (b), 45 U.S. C. 743 (b) (1970 ed., Supp. III). 4. The Special Court next determines whether the conveyances of the rail properties to Conrail "(A) are in the public interest and are fair and equitable to the estate of each railroad in reorganization in accordance with the standard of fairness and equity applicable to the approval of a plan of reorganization under section [77] [or] (B) whether the transfers or conveyances are more fair and equitable than is required as a constitutional minimum." 303 (c), 45 U.S. C. 743 (c) *1 (1970 ed., Supp. III). If the Special Court finds that the transfer is not fair and equitable, the Special Court must reallocate, or order issuance of additional, Conrail securities and USRA obligations (subject to the overall $500 million limitation on USRA obligations for this purpose), or enter a judgment against Conrail, or decree a combination of these remedies.
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Justice Brennan
| 1,974 | 13 |
majority
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judgment against Conrail, or decree a combination of these remedies. 303 (c) (2). The Special Court is not authorized to enter a judgment against the United States. Section 303 provides also that if the Special Court decides that the consideration exchanged for the rail properties is "more fair and equitable than is required as a constitutional minimum," 303 (c) (1) (B), it shall make necessary adjustments so that the "constitutional minimum" is not exceeded. 303 (c) (3). Appeal from 303 (c) determinations is to this Court. 303 (d).[11] 5. Although railroads in reorganization subject to the Act are free to abandon service and dispose as they wish of any rail properties not designated for transfer under the Final System Plan, 304 (a)-(c), 45 U.S. C. 744 *117 (a)-(c) (1970 ed., Supp. III), until that Plan becomes effective none "may discontinue service or abandon any line of railroad unless authorized to do so by [USRA] and unless no affected State or local or regional transportation authority reasonably opposes such action." 304 (f). II Proceedings in the District Court Constitutional questions concerning the Act are raised in this litigation by parties with interests in the Penn Central Transportation (Penn Central), the largest of the eight railroads in reorganization.[12] The principal *118 contention of the plaintiffs in the District Court was that the Rail Act in two respects effects a taking of rail properties of Penn Central without payment of just compensation, in violation of the Fifth Amendment. They contended, first, that the Conrail securities and USRA obligations and other benefits to be received would not be the constitutionally required equivalent of the rail properties compelled by 303 (b) to be transferred. This is the "conveyance taking" issue. This claim was rejected by the District Court as -518. They contended, second, that a taking of their property without just compensation will result from the severe inhibitions imposed upon discontinuance of service and abandonment of lines. In particular, they claimed that 304 (f) compels continuation of rail operations pending implementation of the Final System Plan even if erosion of the Penn Central estate beyond constitutional limits occurs during this period. This is the "erosion taking" issue. The District Court agreed that 304 (f) required continued operations to this extent, and viewed the huge operating losses already incurred by Penn Central as making this contention ripe for determination, saying: "[W]e are persuaded that a significant possibility exists that a point of erosion either has been or may soon be reached so that it can be said that [the contention of plaintiffs below] of interim unconstitutional
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Justice Brennan
| 1,974 | 13 |
majority
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said that [the contention of plaintiffs below] of interim unconstitutional *119 taking by continued loss operations is ripe for adjudication." The District Court rejected the argument of the United States, USRA, and the Penn Central Trustees that if in fact the constitutional limit of permissible uncompensated erosion should be passed, plaintiffs would have an adequate remedy at law in the Court of Claims under the Tucker Act, 28 U.S. C. 91. The District Court construed the Rail Act as precluding a Tucker Act remedy, stating: "We are persuaded that the legislative history supports the conclusion that Congress intended that financial obligations be limited to the express terms of the Act. Article I, Section 9, Clause 7 [of the Constitution] provides that no money shall be drawn from the Treasury of the United States except in consequence of an appropriation made by law. Section 3 (b) [of the Rail Act], and section 4 entitled `Authorization for Appropriations' place an express ceiling on expenditures. Section 0 describes the maximum obligational authority of [USRA], and the authorization for appropriation is limited to `such amounts as are necessary to discharge the obligations of the United States arising under this section.' (Emphasis supplied.) Judicial review is delineated with specificity in Sections 209 (a) and 303 with no mention of the Court of Claims." -529. The District Court therefore declared 304 (f) governing interim abandonments "null and void as violative of the Fifth Amendment of the United States Constitution, to the extent that it would require continued operation of rail services at a loss in violation of the constitutional rights of the owners and creditors of a railroad." *120 It consequently enjoined defendants below "from taking any action to enforce the provisions of Section 304 (f) with respect to any abandonment, cessation, or reduction of service which has been or may hereafter be determined by a court of competent jurisdiction to be necessary for the preservation of rights guaranteed by the United States Constitution." The District Court also declared that 303 relating to the final conveyance of rail properties pursuant to the Final System Plan is "null and void as contravening the Fifth Amendment. insofar as it fails to provide compensation for interim erosion pending final implementation of the Final System Plan" Finally, the District Court enjoined USRA "from certifying a Final System Plan to the Special Court pursuant to Section 209 (c)." The Rail Act was also challenged in the District Court as not "uniform" within the requirement of Art. I, 8, cl. 4, of the Constitution, which provides that Congress shall have the power
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Justice Brennan
| 1,974 | 13 |
majority
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the Constitution, which provides that Congress shall have the power to enact "uniform Laws on the subject of Bankruptcies throughout the United States." The District Court dismissed this contention as without merit except as to one provision of 207 (b). The section provides that if any reorganization court determines in the 180-day proceedings under 207 (b) that the Act does not provide a fair and equitable process for the reorganization of a debtor, the debtor shall not be reorganized pursuant to the Act, and the reorganization court "shall dismiss the reorganization proceeding." The District Court declared this part of 207 (b) "null and void, as violative of Article I, Section 8, Clause 4"[13] and enjoined *1 "all parties from enforcing, or taking any action to implement, so much of Section 207 (b) as purports to require dismissal of pending proceedings for reorganization under Section 77 of the Bankruptcy Act." III The Issues for Decision The major issues dividing the parties are (1) whether an action at law in the Court of Claims under the Tucker Act, 28 U.S. C. 91, will be available to recover any deficiency of constitutional dimension in the compensation provided under the Rail Act for either the alleged "erosion taking" or the alleged "conveyance taking," and (2) if the Tucker Act remedy is available, whether it is an adequate remedy. The United States, USRA, and the Penn Central Trustees contend that if resort to a supplemental remedy under the Tucker Act is necessary, it is both available and adequate. The plaintiffs below contend that the Rail Act precludes resort to the Tucker Act remedy, and if it does not, that the remedy is inadequate. The Special Court, speaking through Judge Friendly, comprehensively canvassed both issues, and in a thorough opinion, concluded that the Rail Act does not bar any necessary resort to the Tucker Act remedy and that the remedy is adequate. Our independent examination of the issues brings us to the same conclusion, substantially for the reasons stated by Judge Friendly in Parts VII and VIII-A of the Special Court opinion.[] *122 Also disputed is the District Court's ruling on the uniformity of the Rail Act under the Bankruptcy Clause. We hold that the currently operable portions of the Act are uniform. IV A The Alleged "Erosion Taking" In its opening brief, the United States, speaking for all federal parties except USRA, argued that the case involved no "erosion taking" because, as a matter of law, compelled-loss operations pending implementation of the Final System Plan would not constitute a taking of the property of the
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Justice Brennan
| 1,974 | 13 |
majority
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Regional Rail Reorganization Act Cases
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would not constitute a taking of the property of the claimants against the bankrupt railroad estates. The argument was that the general rule that if the railroad "be taken to have granted to the public an interest in the use of the railroad it may withdraw its grant by discontinuing the use when that use can be kept up only at a loss," Brooks-Scanlon ; see also ; Railroad Comm'n of is qualified by the requirement that a railroad estate suffer interim losses for a reasonable period pending good-faith efforts to develop a feasible reorganization plan if the public interest in continued *123 rail service justifies the requirement. Continental Illinois Nat. Bank & Trust ; see also ; New Haven Inclusion U.S. 392, The United States maintained that the Rail Act represented just such a good-faith effort. In its Reply Brief 3-4, however, it abandoned the position that the Final System Plan was sure to be implemented within a reasonable period: "Difficulties now unforeseen and unanticipated could in fact delay final implementation of the final system plan. For example, Congress could, in theory, successively disapprove several proposed final system plans. Thus, whatever the probabilities, the parties and this Court have no absolute assurance that the plan will in fact be implemented within a reasonable time. For that reason, we have determined that a taking of property through interim erosion, although extremely unlikely, remains a theoretical possibility under the Rail Act. "Accordingly, we believe that an injunction preventing [USRA] from denying applications for discontinuance of service under Section 304 (f) in those circumstances might be appropriate unless, as we contend, a remedy for any otherwise uncompensated taking will be available under the Tucker Act. We are therefore persuaded that this Court must reach and decide the `Tucker Act question' presented by these appeals." (Footnote omitted.) We conclude in any event that the availability of a Tucker Act remedy if the Rail Act effects an "erosion taking" is ripe for adjudication. It is true that there has been no definitive determination that erosion of the Penn Central estate has reached unconstitutional dimensions *1 that is, that the estate has suffered losses unreasonable even in light of the public interest in continued rail service pending reorganization. But the Penn Central Reorganization Court found that Penn Central is not "reorganizable on an income basis within a reasonable time under 77 of the Bankruptcy Act." And it was stipulated in the District Court that Penn Central sustained ordinary net losses from mid-1970 through 1973 aggregating approximately $851 million, and that in the two months following
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Justice Brennan
| 1,974 | 13 |
majority
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Regional Rail Reorganization Act Cases
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approximately $851 million, and that in the two months following enactment of the Rail Act on January 2, Penn Central had deficits in net railway operating income, total income, net income, and income available for fixed charges. It is therefore reasonable to conclude that compelled continued rail operations under these conditions pending implementation of the Final System Plan may accelerate erosion of the interests of plaintiffs below through accrual of post-bankruptcy claims having priority over their claims. Thus, failure to decide the availability of the Tucker Act would raise the distinct possibility that those plaintiffs would suffer an "erosion taking" without adequate assurance that compensation will ever be provided.[15] Yet there must be at the time of *125 taking "reasonable, certain and adequate provision for obtaining compensation." Cherokee ; see also Joslin Mfg. ; United Therefore we must determine if the Tucker Act is available. B Availability of the Tucker Act Remedy for Any "Erosion Taking" The Tucker Act, 28 U.S. C. 91, provides in pertinent part: "The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract *126 with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." A claim founded upon a taking of property for public use by operation of the Rail Act without just compensation in violation of the Fifth Amendment plainly would fall within the literal words of "any claim against the United States founded upon the Constitution" The District Court, however, inquired whether the Rail Act affirmatively provided the Tucker Act remedy, and held that to "read a Tucker Act remedy into the [Rail] Act" would be "judicial legislation on a grand, if not arrogant, scale." The District Court made the wrong inquiry. The question is not whether the Rail Act expresses an affirmative showing of congressional intent to permit recourse to a Tucker Act remedy. Rather, it is whether Congress has in the Rail Act withdrawn the Tucker Act grant of jurisdiction to the Court of Claims to hear a suit involving the Rail Act "founded upon the Constitution." For we agree with the Special Court that "the true issue is whether there is sufficient proof that Congress intended to prevent such recourse. The [Rail] Act being admittedly silent on the point, the issue becomes whether the scheme of the [Rail] Act, supplemented by the legislative history, sufficiently evidences a Congressional intention to withdraw a remedy that
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Justice Brennan
| 1,974 | 13 |
majority
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Regional Rail Reorganization Act Cases
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sufficiently evidences a Congressional intention to withdraw a remedy that would otherwise exist." Our decisions affirm that this is the correct inquiry. The general rule is that whether or not the United States so intended, "[i]f there is a taking, the claim is `founded upon the Constitution' and within the jurisdiction of the Court of Claims to hear and determine." United "[I]f the authorized action does constitute a taking of property for *127 which there must be just compensation under the Fifth Amendment, the Government has impliedly promised to pay that compensation and has afforded a remedy for its recovery by a suit in the Court of Claims."[] See also In Yearsley, the Court, speaking through Mr. Chief Justice Hughes, went on to hold that "it cannot be doubted that the remedy to obtain compensation from the Government is as comprehensive as the requirement of the Constitution." (Emphasis supplied.) We turn then to the inquiry whether the Rail Act withdrew the Tucker Act remedy "that would otherwise exist." The argument that it should be so read rests on provisions of the Rail Act said plainly to evince Congress' determination that no federal funds beyond those expressly committed by the Act were to be paid for the rail properties. The first provision referred to is 209 which provides for the impaneling of the Special Court and the consolidation before it of "all judicial proceedings with respect to the final system plan." The argument attaches significance to the omission in 303 of any authority in the Special Court to enter a judgment against the United States. Reliance is also placed on two of the Act's funding provisions. Section 0 (b), captioned "Maximum *128 obligational authority," provides that the "aggregate amount of [USRA] obligations which may be outstanding at any one time shall not exceed $1,500,000,000 of which the aggregate amount issued to [Conrail] shall not exceed $1,000,000,000" and that "[a]ny modification to [these] limitations shall be made by joint resolution adopted by the Congress." Section 4 explicitly appropriates up to $12,500,000 to the Secretary of Transportation, to pay the expenses of "preparing the reports and exercising other functions to be performed by him under this chapter," appropriates up to $5,000,000 to the Interstate Commerce Commission for its use in carrying out its functions, and appropriates up to $26,000,000 to USRA "for purposes of carrying out its administrative expenses" But these provisions at least equally support the inference that Congress was so convinced that the huge sums provided would surely equal or exceed the required constitutional minimum that it never focused upon the
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Justice Brennan
| 1,974 | 13 |
majority
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Regional Rail Reorganization Act Cases
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the required constitutional minimum that it never focused upon the possible need for a suit in the Court of Claims. That this may very well have been the case is evident in a statement in the House Report: "The timely implementation of the Final System Plan cannot be obstructed by controversy over the payment for the properties. The Committee is of the opinion that provisions of this title of the [Rail] Act, and especially the provision for deficiency judgment and payment of obligations of [USRA] are more than adequate to guarantee that the creditors of the bankrupt railroad will receive all that they may Constitutionally claim. In view of these extraordinary protections, no litigation should be permitted to delay the Final System Plan." H. Rep. 55. That inference also finds support in the provision of *129 303 (c) (3) that authorizes the Special Court to reduce payments to bankrupt estates if they "are fairer and more equitable than is required as a constitutional minimum." That provision suggests that Congress thought the compensation made possible by the Rail Act could well exceed that required by the Constitution, and gave no consideration to withdrawal of the Tucker Act remedy because it was sure the Rail Act itself provided at least the constitutional minimum compensation. Finally, the manner in which Congress in 601, 45 U.S. C. 791 (1970 ed., Supp. III), expressly addressed the Rail Act's "Relationship to other laws" plainly implies that Congress gave no thought to consideration of withdrawal of the Tucker Act remedy. Section 601 (a) (2) provides that the "antitrust laws are inapplicable with respect to any action taken to formulate or implement the final system plan"; 601 (b) provides that "[t]he provisions of the Interstate Commerce Act and the Bankruptcy Act are inapplicable to transactions under this chapter to the extent necessary to formulate and implement the final system plan whenever a provision of any such Act is inconsistent with this chapter"; 601 (c) provides that, "[t]he provisions of section 4332 (2) (C) of Title 42 [National Environmental Policy Act of 1969] shall not apply with respect to any action taken under authority of this chapter before the effective date of the final system plan." Yet despite this clear evidence that Congress was aware of the necessity to deal expressly with inconsistent laws, Congress nowhere addresses the Tucker Act question. It is argued that any uncertainty in the scheme and text of the Rail Act is cleared up by legislative history from the House and the Senate that discloses that Congress meant the Rail Act to withdraw the
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| 1,974 | 13 |
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discloses that Congress meant the Rail Act to withdraw the jurisdiction of the Court of Claims under the Tucker Act. To the contrary, *130 we read the legislative history as disclosing no more than a repeatedly emphasized belief that the Rail Act's provisions for compensation for the rail properties assured payment of the constitutional minimum. This is plainly the import of the oft-stated view that the taxpayers would not be unduly burdened by the sums provided, see, e. g., 119 Cong. Rec. 36354 (remarks of Rep. Metcalfe); ; and also of Senator Hartke's explanation of the Conference Report to the Senate, which included the statement: "If we did nothing while continuing to mandate rail service, there is the distinct possibility in view of the prior action of Congress that a number of these people could make a claim against the Government which could be sustained in the Court of Claims."[17] *131 As the Special Court remarked, and we agree, this statement in context is "not inconsistent with the view that the Senator was so convinced that the bill, as amended in conference, contained such adequate compensation provisions that a suit in the Court of Claims could not prevail, particularly in view of what he had characterized as a `rather slim' chance of the creditors getting their money through liquidation, rather than as meaning that such a claim could not be maintained." We do not think that the argument in support of reading the Rail Act to withdraw the Tucker Act remedy is aided by the colloquy on the House side between the House managers of the bill, 119 Cong. Rec. 42947[18] That colloquy does not even concern the withdrawal *132 of Court of Claims jurisdiction. It concerns only the deficiency judgment against Conrail and the powers of the Special Court. Finally, reliance is put upon what is referred to as "subsequent legislative history" in the form of statements by Congressmen during Oversight Hearings of the House Subcommittee on Transportation and Aeronautics on June and on an amicus brief filed in this Court on behalf of 36 Congressmen. But post-passage remarks of legislators, however explicit, cannot serve to change the legislative intent of Congress expressed before the Act's passage. See, e. g., United Such statements "represent only the personal views of these legislators. since the statements were [made] after passage of the Act." National Woodwork Manufacturers Moreover, during oral argument before this Court, Representative Adams, spokesman for the congressional group, expressly conceded that circumstances might arise when the Tucker Act remedy would be available: "QUESTION: So you do anticipate a situation
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| 1,974 | 13 |
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would be available: "QUESTION: So you do anticipate a situation where the Tucker Act would be available? "MR. ADAMS: Oh, yes. Let's say, for example, that after this is all overand this is the three-judge court's problemthat if a party comes in and says, *133 you held us beyond the constitutional limit on erosion and at that point we are of the opinion that it went just too long, it was unreasonable, but that is a specific individual case at that point. "QUESTION: And so the Tucker Act, you think, would be available in that situation? "MR. ADAMS: Of course. We did not repeal the Tucker Act."[19] (Emphasis supplied.) In sum, we cannot find that the legislative history supports the argument that the Rail Act should be construed to withdraw the Tucker Act remedy. The most that can be said is that the Rail Act is ambiguous on the question. In that circumstance, applicable canons of statutory construction require us to conclude that the Rail Act is not to be read to withdraw the remedy under the Tucker Act. One canon of construction is that repeals by implication are disfavored. See, e. g., Mercantile National ; United ; Rather, since the Tucker Act and the Rail Act are "capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard *134 each as effective." Moreover, the Rail Act is the later of the two statutes and we agree with the Special Court: "A new statute will not be read as wholly or even partially amending a prior one unless there exists a `positive repugnancy' between the provisions of the new and those of the old that cannot be reconciled. This principle rests on a sound foundation. Presumably Congress had given serious thought to the earlier statute, here the broadly based jurisdiction of the Court of Claims. Before holding that the result of the earlier consideration has been repealed or qualified, it is reasonable for a court to insist on the legislature's using language showing that it has made a considered determination to that end." The other relevant canon of construction that comes into play is that when a statute is ambiguous, "construction should go in the direction of constitutional policy." United There are clearly grave doubts whether the Rail Act would be constitutional if a Tucker Act remedy were not available as compensation for any unconstitutional erosion not compensated under the Act itself. In such case, as the Special Court observed, "[w]hen one admissible construction will preserve a statute from unconstitutionality
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"[w]hen one admissible construction will preserve a statute from unconstitutionality and another will condemn it, the former is favored even if language, and arguably the legislative history point somewhat more strongly in another way." In other words our "task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations." 292 U.S. fully supports *135 our conclusion. Lynch presented a situation requiring this Court to determine whether a statute that effected an unconstitutional taking was also to be construed to withdraw a cause of action created by an earlier statute. The Economy Act of provided in 17 that "all laws granting or pertaining to yearly renewable term insurance are hereby repealed" District Courts, affirmed by the Courts of Appeals for the Fifth Circuit, and the Seventh Circuit, dismissed, on the basis of this provision, suits by beneficiaries of yearly renewable term policies brought under 405 of the War Risk Insurance Act of 1917, expressly authorizing suits in the district courts respecting any "disagreement as to a claim under the contract of insurance." The beneficiaries' claim was that there was an actionable "disagreement" within the meaning of 405 because the Government had violated the terms of the policies by failing to pay the premiums when the insureds became totally and permanently disabled and had refused payment of benefits after the insureds died. This Court unanimously reversed the dismissals. Section 17 of the Economy Act was held to effect an unconstitutional taking of vested property rights in the beneficiaries created by the insurance contracts. The question then became whether 17 had repealed the remedy of a suit in the district court provided by 405 of the Insurance Act. The Court held, speaking through Mr. Justice Brandeis, that 17 would not be read as depriving the beneficiaries of that remedy in the absence of a clear indication from Congress that the remedy was taken away. The Court said: "Fifth. There is a suggestion that although, in repealing all laws `granting or pertaining to yearly renewable term insurance,' Congress intended to take *136 away the contractual right, it also intended to take away the remedy; that since it had power to take away the remedy, the statute should be given effect to that extent, even if void insofar as it purported to take away the contractual right. The suggestion is at war with settled rules of construction. It is true that a statute bad in part is not necessarily void in its entirety. A provision within the legislative
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necessarily void in its entirety. A provision within the legislative power may be allowed to stand if it is separable from the bad. But no provision however unobjectionable in itself, can stand unless it appears both that, standing alone, the provision can be given legal effect and that the legislature intended the unobjectionable provision to stand in case other provisions held bad should fall. Here, both those essentials are absent. There is no separate provision in 17 dealing with the remedy; and it does not appear that Congress wished to deny the remedy if the repeal of the contractual right was held void under the Fifth Amendment." Similarly, "[t]here is no separate provision in [the Rail Act] dealing with the [Tucker Act] remedy; and it does not appear [from the statute or its legislative history] that Congress wished to deny the remedy" if the Rail Act should cause an "erosion taking" that would require the payment of just compensation. We accordingly hold that the Tucker Act remedy is not barred by the Rail Act but is available to provide just compensation for any "erosion taking" effected by the Rail Act. V A The Alleged "Conveyance Taking" The District Court declined to decide whether the provisions governing the procedures for and terms of the *137 final conveyance of rail properties to Conrail (the "conveyance taking" issue) violate the Fifth Amendment, thus rendering the Rail Act invalid in its entirety.[20] The District Court was "persuaded that these issues are " Briefly, the challenges to the final-conveyance provisions assert that the Rail Act is basically an eminent domain statute and, because compensation is not in cash but largely in stock of an unproved entity, will necessarily work an unconstitutional taking.[] A variant of the argument is that, even if a reorganization statute, the Rail Act would be unconstitutional unless the Tucker Act remedy is now held to assure payment of any amount by which the market value of stocks and securities awarded by the Special Court is less than the value of the rail properties conveyed. The New Haven Trustee goes further; he argues that even if a reorganization statute, the Rail Act violates substantive due process by failing to assure the "fair and equitable equivalent" of the rail properties valued at their "highest and best use." The New Haven Trustee also contends that the conveyance provisions constitute a taking such as that threatened by interim erosion: they require operations of the railroad to continue, albeit in a different form, even if the liquidation value for "highest and best use" is greater than
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liquidation value for "highest and best use" is greater than the value of the railroad as a going concern. Finally, the *138 New Haven Trustee and the creditor parties contend that the conveyance provisions deny procedural due process, because they mandate the final conveyance before any meaningful determination of its fairness, and because no provision is made for creditor or stockholder consideration of or voting upon the Final System Plan. All of the parties now urge that the "conveyance taking" issues are ripe for adjudication. However, because issues of ripeness involve, at least in part, the existence of a live "Case or Controversy,"[22] we cannot rely upon concessions of the parties and must determine whether the issues are ripe for decision in the "Case or Controversy" sense. Further, to the extent that questions of ripeness involve the exercise of judicial restraint from unnecessary decision of constitutional issues,[23] the Court must determine whether to exercise that restraint and cannot be bound by the wishes of the parties. The District Court's holding of prematurity was influenced by the statutory scheme that requires several decisional steps before the final conveyance. The possibility that the reorganization court might determine under 207 (b) that the Rail Act process is not fair and equitable to the railroad estate, or that Congress might disapprove the Final System Plan, 208 (a), or that the Special Court would not order the final conveyance pursuant to 303 (b), led the District Court to conclude that the question whether the final-conveyance provisions are constitutional was "too speculative to warrant anticipatory *139 judicial determinations."[] But subsequent to the District Court's opinion, the Penn Central Reorganization Court determined that the Rail Act did not provide a process that would be fair and equitable to the estate, In re Penn Central Trans. On appeal to the Special Court under 207 (b), that determination has been reversed, although the Special Court has not rendered its judgment, pending our decision of this See n. We agree with the parties that this change in circumstance has substantially altered the posture of the case as *0 regards the maturity of the final-conveyance issues. Whatever may have been the case at the time of the District Court decision, there can be little doubt, for reasons to be detailed, that some of the "conveyance taking" issues can and must be decided at this time. And, since ripeness is peculiarly a question of timing, it is the situation now rather than the situation at the time of the District Court's decision that must govern.[25] First, the implementation of the Rail Act
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that must govern.[25] First, the implementation of the Rail Act will now lead inexorably to the final conveyance, although the exact date of that conveyance cannot be presently determined. It is true that Congress can reject the first plan presented to it by the USRA, 208 (a), and that the Rail Act, while prescribing with precision the timing of the presentation of that plan, 207 (c) and (d), does not mandate the presentation of successive plans at any particular time. The Rail Act does, however, contemplate that USRA will continue to present plans, 208 (b), until one becomes "effective," 209 (a). Thus, we must assume there will be compliance with the Rail Act's mandatory terms in this respect and that a Final System Plan will at some time be certified to the Special Court. 209 (c).[26] *1 Second, the Special Court is mandated to order the conveyance of rail properties included in the Final System Plan and is granted no discretion not to order the transfer.[27] While mandatory language does not necessarily deny a court of equity flexibility, Hecht v. Bowles, *2 3 U.S. 3, the central scheme of the Rail Act defers decision of any controversies over the terms of the transfer of rail properties until after the transfer has occurred. H. Rep. 55; S. Rep. No. 93-601, p. 34 (hereinafter S. Rep.).[28] The Special Court's opinion suggests that the mandatory order to convey probably could not prevent the Special Court from refusing to order the conveyance, indirectly if not by a direct injunction, if it were convinced that appellees' constitutional rights were certain to be ; But the possibility that a court may later decline to enforce the Rail Act as written because of its unconstitutionality cannot constitute a contingency itself pretermitting earlier consideration of the constitutionality of the Act. Cf. It appears, then, that the conveyance of Penn Central's rail properties to Conrail cannot be prevented by the debtor or its creditors or stockholder; and, while the exact terms of the conveyance remain to be decided, an order of the Special Court directing the conveyance is *3 virtually a certainty. The Rail Act empowers no court, including this Court, to prevent it. Thus, occurrence of the conveyance allegedly violative of Fifth Amendment rights is in no way hypothetical or speculative. Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect. ; ; "One does not have to await
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into effect. ; ; "One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough."[29] True, there are situations where, even though an allegedly injurious event is certain to occur, the Court may delay resolution of constitutional questions until a time closer to the actual occurrence of the disputed event, when a better factual record might be available. Cf. Public *4 Affairs Several factors militate, however, against that course in this First, decisions to be made now or in the short future may be affected by whether or not the "conveyance taking" issues are now decided. The constitutionality of the final conveyance may be interwoven with the validity of the abandonment provisions. See n. The Penn Central Trustees may delay expending funds for maintenance in the interval before the final conveyance if constitutional doubts linger about ultimate reorganization under the Rail Act. See Reply Brief for Penn Central Trustees 12. Second, the Act is a carefully structured method for planning and implementing a reorganization scheme. It necessitates the present denial to the railroads in reorganization of options otherwise available. For example, the New Haven Trustee filed in the District Court a motion to dismiss the 77 proceeding, and to set up an equity receivership to liquidate Penn Central's assets. So long as reorganization under the Rail Act remains possible, an equity receivership is not available. Third, and particularly significant, because of the structure of the Act there is no better time to decide the constitutionality of the Act's mandatory conveyance scheme to minimize or prevent irreparable injury. The precise contours of the Final System Plan will not be known until shortly before its certification to the Special Court.[30]*5 Until that Plan has been finally developed, the courts will not have any more settled facts concerning the rail properties to be conveyed, the valuation of those properties, or the value of Conrail stock and other securities to be transferred to the Penn Central estate than they do now. After the Final System Plan is effective, the Rail Act prohibits initial judicial review of its terms except by the Special Court. 209 (a), 303 (b) (2). And this review is to occur after conveyance, not before.[31] Further, as all parties agree, the conveyance, because of its complexity and because of the long time lapse probable before valuation review is completed, in practical effect will be irreversible once it is made. Thus, we will be in no better position later than we are now to confront the validity of the
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than we are now to confront the validity of the final-conveyance provisions. Rather, delay in decision will create the serious risk that consideration of the validity of those provisions may either be too hasty to afford protection of rights or too late to prevent the conveyance or assure compensation if the Rail Act were found unconstitutional.[32] We hold, therefore, that the basic "conveyance taking" issues are now ripe for adjudication. This does not mean however that we need decide now all of the contentions pressed upon us. "Even where some of the provisions *6 of a comprehensive legislative enactment are ripe for adjudication, portions of the enactment not immediately involved are not thereby thrown open for a judicial determination of constitutionality." Communist For example, the controversy over the proper valuation theory to be applied to both the rail properties and the stock of Conrail provided as compensation depends upon contingencies that argue forcefully for postponement of its resolution. The parties have stipulated that it will be impossible to ascertain until the Final System Plan is effective which rail properties will be transferred to Conrail, or their value on any valuation theory, or the value of the consideration to be exchanged for the rail properties. App. 205, 319, 3. Thus, it cannot be determined now what impact any particular theory of valuation may have when applied to either side of the equation, nor can we know where the interests of the various parties liethat is, which methods of valuation would result in higher compensation to the estate or lower cost to Conrail. Rulings on these questions would plainly be rulings upon "hypothetical situations that may or may not [arise]." Longshoremen's 2 Moreover, valuation issues peculiarly require a much more developed record than has been prepared. Without evidence of actual figures supporting various valuation theories, a court is not able to discern "what legal issues it is deciding, what effect its decision will have on the adversaries, [or] some useful purpose to be achieved in deciding them." Public Service 4 Clearly the record on these issues does not yet provide the "confining circumstances of particular situations," Communist which best inform constitutional adjudication. *7 Finally, there will be ample opportunity later to litigate valuation controversies after the factual record has matured. The Rail Act in terms vests the Special Court with the initial responsibility for valuation determinations,[33] subject to review by this Court. In that circumstance, we should surely await the Special Court's determinations. Public Service at 6. Were we to attempt decisions of valuation questions before the Special Court's determinations, we would
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of valuation questions before the Special Court's determinations, we would necessarily be forced to a speculative interpretation of a statute not clear on the subject of valuation before the court entrusted with its construction has given us the benefit of its views.[34] Cf. Public Service Great Atlantic & Pacific Tea v. Grosjean, In sum, of the "conveyance taking" issues, we hold ripe for adjudication the questions (a) of the availability of the Tucker Act remedy if the consideration exchanged upon final conveyance of the rail properties is less than the constitutional minimum, (b) whether stocks, however valued, can be part of the consideration for the rail properties, and (c) whether procedural due process will be denied by the statutory process for conveyance. We hold further that decision of the questions concerning the *8 method of valuation to be applied to either the rail properties or the consideration therefore is B Availability of Tucker Act Remedy for Any "Conveyance Taking" Whether the Rail Act precludes the availability of the Tucker Act remedy for any amount by which the consideration exchanged for the rail properties finally conveyed falls short of the constitutional minimum need not detain us. The reasons that led to our conclusion that the Rail Act, insofar as it may work an unconstitutional taking due to interim erosion, does not render a Tucker Act remedy unavailable apply equally to the "conveyance taking" issue. No party has suggested that a difference in result can be supported. The Rail Act authorizes inclusion in the Final System Plan of different kinds of consideration in exchange for the rail properties, subject to adjustment by the Special Court to assure fairness and equity. Congress fully expected that this consideration would provide the minimum compensation required by the Constitution; it wished to provide no more. If, however, that hopeful expectation should not be fulfilled, and the consideration exchanged for the rail properties should prove to be less than the constitutional minimum, the Tucker Act will be available as the jurisdictional basis for a suit in the Court of Claims for a cash award to cover any constitutional shortfall. C Adequacy of the Tucker Act Remedy for "Conveyance Taking" It is argued, however, that, even if a Tucker Act remedy remains open, the remedy is inadequate because it fails to cure basic deficiencies in the conveyance provisions of *9 the Rail Act.[35] We hold, to the contrary, that while the conveyance provisions of the Rail Act might raise serious constitutional questions if a Tucker Act suit were precluded, the availability of the Tucker Act guarantees an adequate
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precluded, the availability of the Tucker Act guarantees an adequate remedy at law for any taking which might occur as a result of the final-conveyance provisions. Further, with the Tucker Act remedy, the payment of "fair and equitable consideration" in compliance with the reorganization statutes is assured, and procedural due process is satisfied. Primarily, it is contended that the Tucker Act remedy is inadequate because the "conveyance taking" is an exercise of the eminent domain power and therefore requires full cash payment for the rail properties.[36] Since our reasons *150 supporting the availability of the Tucker Act remedy assume that the basic compensation scheme of the Act is valid but could result in payment of less than the constitutional minimum, it might indeed be inconsistent with the Rail Act to suppose that a Tucker Act suit would lie for the entire value, in cash, of the rail properties. This argument fails, however, for two reasons. First, it is extremely questionable whether, even if the Rail Act were on its face an acquisition of private property for public use, the entire value of the property acquired would have to be paid in cash. More important, we believe that there is nothing in the Act fundamentally at odds with the expressed purpose of Congress to supplement the reorganization laws, see H. Rep. 29, and, with the Tucker Act, the Rail Act is valid as a reorganization statute. No decision of this Court holds that compensation other than money is an inadequate form of compensation under eminent domain statutes. Statements can be found in opinions that the compensation "must be a full and perfect equivalent for the property taken," Monongahela Navigation v. United States, 8 U.S. 312, ; must reimburse "the full and perfect equivalent in money of the property taken," United ; and must be the "full monetary equivalent of the property taken," United 397 U.S. ; see also Almota Farmers Elevator & Warehouse v. United States,[37] Yet, in none of these cases was compensation *151 in a form other than cash at issue. The clear implication of other decisions is that consideration other than cashfor example, any special benefits[38] to a property owner's remaining propertiesmay be counted in the determination of just compensation. 7 U.S. 548, ; see 3 P. Nichols, Eminent Domain 8.62 et seq.[39] We need not, however, determine whether compensation in the form of securities would be constitutional if the Rail Act were merely an eminent domain statute; *152 for the arguments in favor of this construction have no merit. First, it is contended that despite the express
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no merit. First, it is contended that despite the express provision of 301 (b) that Conrail "shall not be an agency or instrumentality of the Federal Government," 45 U.S. C. 741 (b) (1970 ed., Supp. III), federal participation through federally appointed members of the board of directors constitutes Conrail a federal instrumentality.[40] From that premise the contention proceeds that the conveyance is an exercise of eminent domain. But Conrail is not a federal instrumentality by reason of the federal representation on its board of directors. That representation was provided to protect the United States' important interest in assuring payment of the obligations guaranteed by the United States. Full voting control of Conrail will shift to the shareholders if federal obligations fall below 50% of Conrail's indebtedness. The responsibilities of the federal directors are not different from those of the other directorsto operate Conrail at a profit for the benefit of its shareholders. Thus, Conrail will be basically a private, not a governmental, enterprise. Second, it is contended that the Rail Act's provisions for a compelled conveyance and for the continuation of rail services pending formulation of the Final System Plan constitute the Act a condemnation statute. We see *153 no significance in these features of the Act either. Congress, in enacting those provisions, clearly intended to legislate pursuant to the bankruptcy power. The Rail Act, like 77 of the Bankruptcy Act, which the Rail Act supplements, merely "advances another step in the direction of liberalizing the law on the subject of bankruptcies," Continental Illinois Nat. Bank & Trust 6 and "far-reaching though [it] be, [it has] not gone beyond the limit of congressional power" That is the teaching of where the Court sustained the "cram-down" provision of 77 authorizing a reorganization court to confirm a plan despite its rejection by creditors. The Court said: "We think that the provisions for confirmation by the courts over the creditors' objection are within the bankruptcy powers of Congress. Those powers are adequate to eliminate claims by administrative valuations with judicial review and they are adequate to require creditors to acquiesce in a fair adjustment of their claims, so long as the creditor gets all the value of his lien and his share of any free assets."[41] Similarly, under *154 the Rail Act, the Special Court has the duty to provide the railroad estates with the "fair and equitable" equivalent in Conrail securities for the rail properties conveyed. Finally, it is argued that there are defects in the Rail Act's provisions for judicial review that identify the Act as an exercise of the eminent
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that identify the Act as an exercise of the eminent domain power. The argument is frivolous. Although the time has not yet arrived for the mandatory transfer to Conrail, the reorganization courts have had a full opportunity to assess the fairness of the Rail Act's scheme to the rail estates. 207 (b). The Special Court has reviewed those determinations and under 303 (c) will have an opportunity to review the terms of the transfer, although not the conveyance itself. In addition, neither the Rail Act itself nor the procedures thereunder finally determine the interests of the respective creditors. Those will be decided in the 77 reorganization courts, which will distribute to creditors the consideration received for the rail properties. There are, therefore, ample adequate "[s]afeguards to protect the rights of secured creditors to the extent of the value of the property." Wright v. Union Central Life Ins. ; cf. North American v. We are not to be understood to intimate that the Rail Act proceeding could not result in a compensable taking. We hold only that, since the Rail Act does not on its face exceed the broad scope of congressional power under the Bankruptcy Clause, cf. Continental Illinois Nat. Bank & Trust[42] Congress has not formulated an unconstitutional reorganization plan in compelling a reorganization wherein the compensation to appellees consists of Conrail and USRA securities and other benefits "so long as the creditor gets *155 all the value of his lien and his share of any free assets." This Act does differ from other reorganization statutes such as 77, however, in that it requires a conveyance before it is possible to ascertain whether this last condition will be met. Thus, the conveyance is mandated without any prior judicial finding that there will be adequate resources in the reorganized company of whatever kind to compensate the debtor estates and, eventually, their creditors. Because of this congressional insistence upon accomplishing the transfer whatever the ultimate equity of the compensation provisions, any deficiency of constitutional magnitude in the value of the limited compensation provided under the Act will indeed be a taking of private property for public use. Cf. North American v. at 0.[43] Since we have already determined, however, that there would then be recourse to a Tucker Act suit in the Court of Claims for a cash award to cover any constitutional shortfall, the Rail Act does provide adequate assurance that any taking will be compensated. The remaining contentions regarding the validity of the final-conveyance provisions require little discussion in view of the availability of a Tucker Act suit. The
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view of the availability of a Tucker Act suit. The first contention is that, even if considered as a reorganization statute, the Rail Act fails to assure that creditors will receive the full value of their liens in stock or securities. However, we have already held that, because of the possibility that the Rail Act will work a taking, there must be assurance of consideration equal to any constitutional shortfall, and that a Tucker Act remedy is available to provide that assurance. Thus, the value of *156 the stocks and securities provided under the Act is backed up by what is essentially a guarantee of cash payment for any lack of fairness and equity of constitutional dimensions. The Tucker Act remedy fulfills perfectly, then, the function of the underwriting provision approved in the New Haven Inclusion U. S., at 486-488. Similarly, the availability of the Tucker Act cures what might otherwise be a troublesome problem of procedural due process. The Tucker Act assures that the railroad estates and the creditors will eventually be made whole for the assets conveyed. Complainants evidence no interest in retaining their property for longer than the Rail Act requires. Indeed, their position is really that they want to be free to dispose of it sooner. Thus, there is no interest asserted in retaining the properties themselves; the only interest is in making sure that creditors receive fair compensation for those properties. On the other hand, the procedural sequence is vital to accomplishing the goals of the Act. If judicial review of the terms of the transfer was required before the conveyance could occur, the conveyance might well come too late to resolve the rail transportation crisis. As long as creditors are assured fair value, with interest, for their properties, the Constitution requires nothing more. VI Validity of the Rail Act Under Uniformity Requirement of Bankruptcy Clause We consider finally the contention that, because the Rail Act's provisions apply only to railroads in reorganization in the "region," the statute lacks the uniformity required by Art. I, 8, cl. 4, of the Constitution giving Congress power "To establish uniform Laws on the subject of Bankruptcies throughout the United States." The District Court held that "recourse to the bankruptcy *157 clause to justify Congressional action is necessary only if that action impairs the obligation of contracts." In that respect, the court found that the Rail Act adds virtually nothing to the powers already granted to reorganization courts under the "uniform and admittedly valid provisions of 77 of the Bankruptcy Act. Authority to order conveyances free and clear of
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Bankruptcy Act. Authority to order conveyances free and clear of liens, and to `cram down' a plan of reorganization, already exists under 77, and is not newly created or added by the [Rail] Act." The court determined, however, that one provision of the Rail Act is "newly created or added by the [Rail] Act." Section 207 (b) requires the reorganization court to dismiss the 77 proceeding if it finds that the railroad is not reorganizable on an income basis within a reasonable time, and that the Rail Act does not provide a process which would be fair and equitable to the estate of the railroad in reorganization. The District Court noted that the New Haven Inclusion held that inasmuch as the plan disposed of the New Haven's assets to the Penn Central for continued operations, 77 could be used to reorganize the enterprise as an investment holding company, "at least where the plan contemplates that the bulk of the rail properties will continue to be operated as a railroad by someone." The District Court held that 207 (b) of the Rail Act precludes a like reorganization under 77 by requiring dismissal of the 77 proceedings, and to that extent violates the uniformity clause since this dismissal relates only to debtors within the region covered by the Rail Act. We need not decide whether the District Court was correct in this respect. Following the decision of the District Court, the Penn Central Reorganization Court issued its 180-day order finding that, although Penn Central is not *158 reorganizable on an income basis under 77, the Rail Act does not provide a process which would be fair and equitable to the debtor's estate. 870-8. Rather than dismiss the 77 proceeding as required by 207 (b), however, the court stayed its order pending an appeal to the Special Court. The Special Court found that the processes prescribed in the Rail Act are fair and equitable if a remedy exists under the Tucker Act, and -911. The Rail Act expressly provides that this holding is nonreviewable. 207 (b). Although we need not address today the issue whether the judgment of the Special Court is subject to review, we do hold that the Tucker Act remedy is available for any uncompensated taking occurring under the Rail Act. That holding obviates the possibility that the Penn Central Reorganization Court will ever confront the provisions for dismissal of a 77 proceeding under 207 (b) of the Rail Act. There remains, however, another aspect of the uniformity issue for decision. Appellees urge that the entire Rail Act violates the
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decision. Appellees urge that the entire Rail Act violates the uniformity clause. The argument is that the uniformity required by the Constitution is geographic, Hanover National and since the Rail Act operates only in a single statutorily defined region, the Act is geographically nonuniform. The argument has a certain surface appeal but is without merit because it overlooks the flexibility inherent in the constitutional provision. Section 77 was upheld against a like challenge on the ground of the "capacity of the bankruptcy clause to meet new conditions as they have been disclosed as a result of the tremendous growth of business and development of human activities from 1800 to the present day." Continental Illinois Nat. Bank & Trust v. Chicago, R. I. & *159 P. R. 294 U. S., at 6. The Court therefore held that, though 77 was a distinctive and far-reaching statute, treating railroad bankruptcies as a distinctive and special problem, it was not "beyond the limit of congressional power."[44] The uniformity provision does not deny Congress power to take into account differences that exist between different parts of the country, and to fashion legislation to resolve geographically isolated problems. "The problem dealt with [under the Bankruptcy Clause] may present significant variations in different parts of the country." We therefore agree with the Special Court that the uniformity clause was not intended "to hobble Congress by forcing it into nationwide enactments to deal with conditions calling for remedy only in certain regions." The national rail transportation crisis that produced the Rail Act centered in the problems of the rail carriers operating in the region defined by the Act, and these were the problems Congress addressed.[45] No railroad reorganization *0 proceeding, within the meaning of the Rail Act, was pending outside that defined region on the effective date of the Act or during the 180-day period following the statute's effective date. Thus the Rail Act in fact operates uniformly upon all bankrupt railroads then operating in the United States and uniformly with respect to all creditors of each of these railroads. The uniformity clause requires that the Rail Act apply equally to all creditors and all debtors, and plainly this Act fulfills those requirements. Vanston Bondholders Protective U.S. 156, "No provision of the Act restricts the right of any creditor wheresoever located to obtain relief because of regionalism." Our construction of the Bankruptcy Clause's uniformity provision comports with this Court's construction of other "uniform" provisions of the Constitution. The Head Money (4), involved the levy on ships' agents or owners of a 50-cent tax for any passenger not a
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Justice Brennan
| 1,974 | 13 |
majority
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Regional Rail Reorganization Act Cases
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https://www.courtlistener.com/opinion/109117/regional-rail-reorganization-act-cases/
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owners of a 50-cent tax for any passenger not a United States citizen who entered an American port from a foreign port "by steam or sail vessel." Individuals engaged in transporting passengers from Holland to the United States challenged the levy as contrary to Art. I, 8, cl. 1, under which Congress is empowered to lay and collect "all Duties, Imposts and Excises [which] shall be uniform throughout the United States." The argument was that the head tax violated the uniformity clause because it was not also levied on noncitizen passengers entering this country by rail or other inland mode of conveyance. The Court upheld the tax, stating: "The tax is uniform when it operates with the same force and effect in every place where the subject of it is found. The tax in this case is uniform *1 and operates precisely alike in every port of the United States where such passengers can be landed." That the tax was not imposed on noncitizens entering the Nation across inland borders did not render the tax nonuniform since "the evil to be remedied by this legislation has no existence on our inland borders, and immigration in that quarter needed no such regulation." Similarly, the Rail Act is designed to solve "the evil to be remedied," and thus satisfies the uniformity requirement of the Bankruptcy Clause. The argument that the Rail Act differs from the head tax statute because by its own terms the Rail Act applies only to one designated region is without merit. The definition of the region does not obscure the reality that the legislation applies to all railroads under reorganization pursuant to 77 during the time the Act applies. Reversed. MR. JUSTICE STEWART dissents from the opinion and judgment of the Court, substantially for the reasons set out in Part II of the dissenting opinion of MR. JUSTICE DOUGLAS. MR.
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Justice Ginsburg
| 2,006 | 5 |
dissenting
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Hartman v. Moore
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https://www.courtlistener.com/opinion/145662/hartman-v-moore/
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The Court of Appeals, reviewing the record so far made, determined that "[t]he evidence of retaliatory motive [came] close to the proverbial smoking gun." The record also indicated that the postal inspectors engaged in "unusual prodding," strenuously urging a reluctant U. S. Attorney's Office to press charges against Moore. Following Circuit precedent, the Court of Appeals held that "once a plaintiff shows [conduct sheltered by the First Amendment] to have been a motivating factor in the decision to press charges," the burden shifts to the defending officials to show that the case would have been pursued anyway. Recognizing that this case is now directed against the instigating postal inspectors alone, not the prosecutor, I would not assign to the plaintiff the burden of pleading and proving the absence of probable cause for the prosecution. Instead, in agreement with the Court of Appeals, I would assign to the postal inspectors who urged the prosecution the burden of showing that, had there been no retaliatory motive and importuning, the U. S. Attorney's Office nonetheless would have pursued the case. Under the Court's proof burden allocation, which saddles plaintiffthe alleged victimwith the burden to plead and prove lack of probable cause, only entirely "baseless prosecutions" *267 would be checked. So long as the retaliators present evidence barely sufficient to establish probable cause and persuade a prosecutor to act on their thin information, they could accomplish their mission cost free. Their victim, on the other hand, would incur not only the costs entailed in mounting a defense, he likely would sustain a reputational loss as well, and neither loss would be compensable under federal law. Under the D. C. Circuit's more speechprotective formulation, "[a] Bivens [v. Six Unknown Fed. Narcotics Agents,] recovery remains possible in those rare cases where strong motive evidence combines with weak probable cause to support a finding that the [investigation and ensuing] prosecution would not have occurred but for the [defending] officials' retaliatory animus." That such situations "are likely to be rare," it seems to me, does not warrant "structuring a cause of action," ante, at 264, that precludes relief when they do arise. For reasons fully developed in the D. C. Circuit's opinion, I conclude that, in full accord with this Court's decision in Mt. Healthy City Bd. of the Court of Appeals' decision strikes the proper balance. I would, therefore, affirm the Circuit's judgment.
|
Justice Rehnquist
| 1,986 | 19 |
concurring
|
Longshoremen v. Davis
|
https://www.courtlistener.com/opinion/111673/longshoremen-v-davis/
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The Court holds that appellant Union's federal pre-emption claim must be considered on the merits by Alabama courts even though the Union never once raised the claim in the Alabama trial court until a post-trial motion following an adverse jury verdict. By allowing a defendant to save its pre-emption claim until after it sees the verdict, this ruling poses a sufficient threat to orderly judicial proceedings that it can be justified only if Congress has mandated such a result. Because Congress clearly has not mandated any such result, I disagree with Part II of the Court's opinion. Appellee Davis sued the Union in the Circuit Court of Mobile County alleging fraud and misrepresentation. Davis had been first a trainee ship superintendent and then a ship superintendent in the employ of Ryan-Walsh Stevedoring Co. in Mobile. Although the ship superintendents were theoretically superior to the longshoremen, they were paid *400 less salary and their compensation was generally lower than that of the longshoremen, who worked for hourly wages. One of Davis' fellow ship superintendents contacted the Union to see about the possibility of organizing the superintendents and affiliating with the Union. At a meeting of the superintendents to discuss that possibility, several of them expressed a fear of being discharged for participating in union-related activities. Testimony at trial indicated that one Benny Holland, a union representative, had assured the superintendents that the Union would get them their jobs back with backpay if they were discharged. As a result of the meeting, a number of the ship superintendents including Davis signed pledge cards and an application for a union charter from the ILA. Sure enough, first another superintendent and then Davis were discharged by Ryan-Walsh, and the Union did not succeed in getting them their jobs back, with or without backpay. Davis then filed this suit, which the Union defended on the merits throughout the trial; at the conclusion of the trial the jury returned a verdict in Davis' favor for $75,000. Only at this point, in a motion for judgment notwithstanding the verdict, did the Union first raise its pre-emption claim, a technique that the Court now sanctions. The Supreme Court of Alabama refused to consider the claim, observing that Alabama Circuit Courts are courts of general jurisdiction having authority to try, inter alia, cases involving fraud and misrepresentation. That court held that the Union's pre-emption claim was an affirmative defense under the Alabama Rules of Civil Procedure, and had to be affirmatively pleaded in order to be considered. I agree with this Court that Congress could, if it wished, forbid
|
Justice Rehnquist
| 1,986 | 19 |
concurring
|
Longshoremen v. Davis
|
https://www.courtlistener.com/opinion/111673/longshoremen-v-davis/
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with this Court that Congress could, if it wished, forbid Alabama to impose any such procedural rule, but I am convinced that Congress has done no such thing. The Court relies on what it apparently considers to be the similar case of There Congress did provide quite explicitly that state courts *401 should be deprived of jurisdiction in cases where mortgage foreclosure proceedings in those courts were also the subject of a petition in bankruptcy in federal court. Congress said: " `(o) Except upon petition made to and granted by the judge after hearing and report by the conciliation commissioner, the following proceedings shall not be instituted, or if instituted at any time prior to the filing of a petition under this section, shall not be maintained, in any court or otherwise, against the farmer or his property, at any time after the filing of the petition under this section, and prior to the confirmation or other disposition of the composition or extension proposal by the court: " `(2) proceedings for foreclosure of a mortgage on land. or for recovery of possession of land.' " (emphasis deleted). In the present case, by contrast, Congress has never said a word about pre-emption of state-court jurisdiction. This Court, in a long line of cases beginning with has enunciated a judicial doctrine of pre-emption in labor relations cases based on the implied intent of Congress. But as the Court noted in Garner: "The national Labor Management Relations Act, as we have before pointed out, leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible." Thus when the Court speaks of the pre-emption of "subject-matter jurisdiction" here, it must rely on a far more dimly refracted version of congressional intent than did the Kalb Court: not what Congress said, but what this Court thinks Congress might have said had it been confronted with *402 the situation. This is far too thin a reed to support the perverse application of the doctrine in the present case. The Court also places undue reliance upon its opinion in Construction There the claim of federal pre-emption had been properly presented by the union at every stage of Georgia proceedings. This Court, on direct review of a judgment of the Supreme Court of Georgia, held that Congress had denied to the Georgia courts the authority to issue an injunction because the matter was "within the exclusive powers of the National Labor Relations Board." The Court's opinion
|
Justice Rehnquist
| 1,986 | 19 |
concurring
|
Longshoremen v. Davis
|
https://www.courtlistener.com/opinion/111673/longshoremen-v-davis/
|
powers of the National Labor Relations Board." The Court's opinion in Curry refers to state-court "jurisdiction," but as Justice Frankfurter explained, "the term `jurisdiction'. is a verbal coat of many colors." United The Court's opinion today implicitly suggests that the word "jurisdiction" is to lawyers what a term like Bombycilla cedrorum (cedar waxwing) is to ornithologists: a description of one and only one particular species recognized throughout the world. We all know that the term "jurisdiction" does not partake of that specialized a meaning. Nothing in Curry, and certainly nothing in Kalb, foreordains the result in this case. State-court judges and trial courts of general jurisdiction in Alabama and in the other 49 States are experts primarily in state law, not federal law. Indeed, with the advancing march of federal legislation in areas heretofore left to state law, it would be an impossible task for any judge federal or state to keep abreast of the various areas in which there might be federal pre-emption. Here Alabama, by application of a neutral statute with a precise counterpart in the Federal Rules of Civil Procedure, has said that a defendant who wishes to claim federal pre-emption as a defense to state-court exercise of jurisdiction may not wait to raise that claim until after the case has gone to verdict. The Court, saying otherwise, allows a sophisticated defendant as in the present case to gamble on obtaining *403 a favorable verdict and raise a pre-emption defense only if it loses on the merits. To me this result defies common sense; if Congress had ordained it, I would reach it albeit with reluctance. But it is this Court, not Congress, that has ordained the result. I believe the Court is mistaken in doing so, and I therefore cannot join Part II of its opinion. Having concluded that National Labor Relations Act pre-emption is "jurisdictional," and hence may be raised at any time, the Court goes on to decide that the Union has not carried its burden of showing that the conduct at issue here was "arguably" protected or prohibited by the Act. With this I agree. Accordingly, I join Parts I and III of the Court's opinion and concur in the judgment. JUSTICE BLACKMUN, concurring in part and dissenting in part. The Court today reaffirms that a pre-empted cause of action, as defined in San Diego Building Trades is a claim that a state court is without power to adjudicate. Ante, at 3. I fully agree, and therefore join Parts I and II of the Court's opinion. But I believe that the
|
Justice Rehnquist
| 1,986 | 19 |
concurring
|
Longshoremen v. Davis
|
https://www.courtlistener.com/opinion/111673/longshoremen-v-davis/
|
II of the Court's opinion. But I believe that the standard enunciated in Part III to determine the pre-emption vel non of a particular cause of action is erroneous, as well as at odds with the principles and policies of I therefore dissent from Part III of the Court's opinion and from its judgment. In this Court held that when an activity is protected or prohibited by the Act, or arguably protected or prohibited, courts must defer to the exclusive competence of the National Labor Relations Board. In the absence of the Board's clear determination that an activity is neither protected nor prohibited, nor arguably so, courts must stay their hand. "[W]hether federal law does apply is to be decided" by the Board. 7 U.S. 223, (emphasis added). The Court today purports to follow but nonetheless requires that the party "claiming *404 pre-emption must carry the burden of showing at least an arguable case before the jurisdiction of a state court will be ousted," ante, at 6, and proceeds to require here that the Union make a showing "sufficient to permit the Board to find that Davis was an employee, not a supervisor." Ante, at 5. In transforming the notion that some activities are arguably protected or prohibited into a requirement that a party claiming pre-emption make out an "arguable case," ante, at 6, it seems to me that the Court misses the point of its decision in As a result of the decision today, a court, under the guise of weighing the sufficiency of the evidence, will be making precisely the determination that makes clear is for the Board, and only the Board, to make. To understand how far the Court strays from the practical and congressionally mandated standard articulated in it is sufficient to look to the basis of the broad pre-emption doctrine. Under the Act, some activities are protected and some are prohibited; other activities are subject to state regulation, while still others, not at issue in this case, are to be left unregulated by both federal and state authorities. Thus, the determination of whether an activity falls within the sphere of protected or prohibited is the crucial question under federal law, and one which this Court recognized is not always an easy determination to make. Accordingly, Congress deprived state courts of jurisdiction over actually or arguably protected or prohibited conduct and "confide[d] primary interpretation and application of its rules to a specific and specially constituted tribunal," thereby ensuring that the federal scheme would be administered uniformly with the wisdom and insight resulting from specialized expertise and
|
Justice Rehnquist
| 1,986 | 19 |
concurring
|
Longshoremen v. Davis
|
https://www.courtlistener.com/opinion/111673/longshoremen-v-davis/
|
with the wisdom and insight resulting from specialized expertise and experience. quoted in[1] Permitting courts to *405 determine whether activity is protected or prohibited could result in a court's finding unlawful an activity that the Board might embrace as lawful. In an attempt to garner support for its holding, the Court relies on Marine Such reliance is misplaced. Indeed, in the Court reaffirmed recognizing that the definition of "labor organization," like the definition of "supervisor," is "of a kind most wisely entrusted initially to the agency charged with the day-to-day administration of the Act as a whole." In this Court held that only the Board could determine whether the union met the statutory definition of a "labor organization." The Court in in dicta, then reviewed the evidence that was presented. Such evidence was certainly not intended to be held up as the benchmark of the showing required successfully to claim that an activity is arguably protected; the Court made clear that that evidence was sufficient to show that the conduct was actually protected: "This was a case, therefore, where a state court was shown not simply the arguable possibility of Labor Board jurisdiction over the controversy before it, but that the Board had actually determined the underlying issue upon which its jurisdiction depended" (emphasis added). at[2] *406 Thus, in the Court was presented with actual determinations by the Board; under that is the only kind of showing sufficient to take the pre-emption decision out of the hands of the Board. The present case underscores the signal merit of[3] Davis was fired for union activities. According to Davis, he was assured by the Union that, if fired, he could obtain reinstatement. Davis' ability to obtain reinstatement turns on whether Davis is a supervisor. If Davis is a supervisor, the Act would not protect him against retaliatory actions by his *407 employer based on his union activities and Davis' suit would be cognizable in state court for the Union's alleged intentional misrepresentation. However, if Davis is not a supervisor, the employer would have committed an unfair labor practice in firing him, and Davis would be entitled to redress by the Board. Thus, the issue here falls within the rubric of "arguably" the conduct at issue is arguably protected because Davis may be a statutory employee, not a supervisor.[4] The crucial question then was whether Davis was a supervisor. The task of identifying supervisors is an "aging but nevertheless persistently vexing problem." Supervisory status is an inherently fact-specific determination that turns on an individual's duties, not job title or classification. See, e.
|
Justice Rehnquist
| 1,986 | 19 |
concurring
|
Longshoremen v. Davis
|
https://www.courtlistener.com/opinion/111673/longshoremen-v-davis/
|
an individual's duties, not job title or classification. See, e. g., Winco Petroleum Co., 241 N. L. R. B. 1118 (1979) (giving an employee the title "supervisor" or even theoretical power to perform some supervisory functions does not convert a rank-and-file employee into a statutory supervisor); Pattern Makers Assn., 199 N. L. R. B. 96 (1972) (shop foreman with supervisory authority who worked with tools 40% of his time was supervisor despite contract which defined supervisory employees as persons who did not work with tools of trade). It is precisely because of the difficulty in assessing the statutory supervisory status of an individual, and the need for uniformity in the interpretation of the federal labor laws, that this Court, in Hanna Mining held that state law can be applied only if the supervisory status of the individuals in question "has been settled with unclouded legal significance."[5] at 190. The supervisory status of Davis has never been settled by the Board. Thus, in asserting that Davis was arguably a supervisor, the Union "advance[d] an interpretation of the Act that is not plainly contrary to its language and that has not been `authoritatively rejected' by the courts or the Board." Ante, at 5, quoting 370 U. S., at That is the only kind of showing that is properly required under[6] I therefore dissent from Part III of the Court's opinion and from its judgment.
|
Justice O'Connor
| 2,001 | 14 |
majority
|
Rogers v. Tennessee
|
https://www.courtlistener.com/opinion/118425/rogers-v-tennessee/
|
This case concerns the constitutionality of the retroactive application of a judicial decision abolishing the common law "year and a day rule." At common law, the year and a day rule provided that no defendant could be convicted of murder unless his victim had died by the defendant's act within a year and a day of the act. See, e. Louisville, E. & St. L. R. ; 4 W. Blackstone, Commentaries on the Laws of England 197-198 (1769). The Supreme Court of Tennessee abolished the rule as it had existed at common law in Tennessee and applied its decision to petitioner to uphold his conviction. The question before us is whether, in doing so, the court denied petitioner due process of law in violation of the Fourteenth Amendment. *454 I Petitioner Wilbert K. Rogers was convicted in Tennessee state court of second degree murder. According to the undisputed facts, petitioner stabbed his victim, James Bowdery, with a butcher knife on May 6, 1994. One of the stab wounds penetrated Bowdery's heart. During surgery to repair the wound to his heart, Bowdery went into cardiac arrest, but was resuscitated and survived the procedure. As a result, however, he had developed a condition known as "cerebral hypoxia," which results from a loss of oxygen to the brain. Bowdery's higher brain functions had ceased, and he slipped into and remained in a coma until August 7, when he died from a kidney infection (a common complication experienced by comatose patients). Approximately 15 months had passed between the stabbing and Bowdery's death which, according to the undisputed testimony of the county medical examiner, was caused by cerebral hypoxia "`secondary to a stab wound to the heart.' " Based on this evidence, the jury found petitioner guilty under Tennessee's criminal homicide statute. The statute, which makes no mention of the year and a day rule, defines criminal homicide simply as "the unlawful killing of another person which may be first degree murder, second degree murder, voluntary manslaughter, criminally negligent homicide or vehicular homicide." Petitioner appealed his conviction to the Tennessee Court of Criminal Appeals, arguing that, despite its absence from the statute, the year and a day rule persisted as part of the common law of Tennessee and, as such, precluded his conviction. The Court of Criminal Appeals rejected that argument and affirmed the conviction. The court held that Tennessee's Criminal Sentencing Reform Act of 1989 (1989 Act), which abolished all common law defenses in criminal actions in Tennessee, had abolished the rule. See (e)(2) The court also rejected *455 petitioner's further contention that the
|
Justice O'Connor
| 2,001 | 14 |
majority
|
Rogers v. Tennessee
|
https://www.courtlistener.com/opinion/118425/rogers-v-tennessee/
|
The court also rejected *455 petitioner's further contention that the legislative abolition of the rule constituted an ex post facto violation, noting that the 1989 Act had taken effect five years before petitioner committed his crime. No. 02C01-9611CR-00418 App. 7. The Supreme Court of Tennessee affirmed on different grounds. The court observed that it had recognized the viability of the year and a day rule in Tennessee in and that, "[d]espite the paucity of case law" on the rule in Tennessee, "both parties agree that the rule was a part of the common law of this State." Turning to the rule's present status, the court noted that the rule has been legislatively or judicially abolished by the "vast majority" of jurisdictions recently to have considered the issue. The court concluded that, contrary to the conclusion of the Court of Criminal Appeals, the 1989 Act had not abolished the rule. After reviewing the justifications for the rule at common law, however, the court found that the original reasons for recognizing the rule no longer exist. Accordingly, the court abolished the rule as it had existed at common law in Tennessee. The court disagreed with petitioner's contention that application of its decision abolishing the rule to his case would violate the Ex Post Facto Clauses of the State and Federal Constitutions. Those constitutional provisions, the court observed, refer only to legislative Acts. The court then noted that in this Court held that due process prohibits retroactive application of any "`judicial construction of a criminal statute [that] is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue.' " (quoting ) (alteration in original). The court concluded, however, that application of its decision to petitioner would *456 not offend this We granted certiorari, and we now affirm. II Although petitioner's claim is one of due process, the Constitution's Ex Post Facto Clause figures prominently in his argument. The Clause provides simply that "[n]o State shall pass any ex post facto Law." Art. I, 10, cl. 1. The most well-known and oft-repeated explanation of the scope of the Clause's protection was given by Justice Chase, who long ago identified, in dictum, four types of laws to which the Clause extends: "1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law
|
Justice O'Connor
| 2,001 | 14 |
majority
|
Rogers v. Tennessee
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https://www.courtlistener.com/opinion/118425/rogers-v-tennessee/
|
the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender." (emphasis deleted). Accord, ; As the text of the Clause makes clear, it "is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government." We have observed, however, that limitations on ex post facto judicial decision making are inherent in the notion of due process. In we considered the South Carolina Supreme Court's retroactive application *457 of its construction of the State's criminal trespass statute to the petitioners in that case. The statute prohibited "entry upon the lands of another after notice from the owner or tenant prohibiting such entry" n. 1 The South Carolina court construed the statute to extend to patrons of a drug store who had received no notice prohibiting their entry into the store, but had refused to leave the store when asked. Prior to the court's decision, South Carolina cases construing the statute had uniformly held that conviction under the statute required proof of notice before entry. None of those cases, moreover, had given the "slightest indication that that requirement could be satisfied by proof of the different act of remaining on the land after being told to leave." We held that the South Carolina court's retroactive application of its construction to the store patrons violated due process. Reviewing decisions in which we had held criminal statutes "void for vagueness" under the Due Process Clause, we noted that this Court has often recognized the "basic principle that a criminal statute must give fair warning of the conduct that it makes a crime." ; see -352 and ). Deprivation of the right to fair warning, we continued, can result both from vague statutory language and from an unforeseeable and retroactive judicial expansion of statutory language that appears narrow and precise on its face. For that reason, we concluded that "[i]f a judicial construction of a criminal statute is `unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,' [the construction] must not be given retroactive effect." We found that the South *458 Carolina court's construction of the statute violated this principle because it was so clearly at odds with the statute's plain language and had no support in prior South Carolina Relying largely upon Bouie,
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Justice O'Connor
| 2,001 | 14 |
majority
|
Rogers v. Tennessee
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https://www.courtlistener.com/opinion/118425/rogers-v-tennessee/
|
no support in prior South Carolina Relying largely upon Bouie, petitioner argues that the Tennessee court erred in rejecting his claim that the retroactive application of its decision to his case violates due process. Petitioner contends that the Ex Post Facto Clause would prohibit the retroactive application of a decision abolishing the year and a day rule if accomplished by the Tennessee Legislature. He claims that the purposes behind the Clause are so fundamental that due process should prevent the Supreme Court of Tennessee from accomplishing the same result by judicial decree. Brief for Petitioner 8-18. In support of this claim, petitioner takes Bouie to stand for the proposition that "[i]n evaluating whether the retroactive application of a judicial decree violates Due Process, a critical question is whether the Constitution would prohibit the same result attained by the exercise of the state's legislative power." Brief for Petitioner 12. To the extent petitioner argues that the Due Process Clause incorporates the specific prohibitions of the Ex Post Facto Clause as identified in Calder, petitioner misreads Bouie. To be sure, our opinion in Bouie does contain some expansive language that is suggestive of the broad interpretation for which petitioner argues. Most prominent is our statement that "[i]f a state legislature is barred by the Ex Post Facto Clause from passing a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction." -354; see also ; This language, however, was dicta. Our decision in Bouie was rooted firmly in well established notions of due process. See Its rationale rested on core due process concepts of notice, foreseeability, and, in particular, the right to fair warning as those concepts bear on the constitutionality of attaching criminal penalties to what previously had been innocent conduct. See, e. 352, 354-355. And we couched its holding squarely in terms of that established due process right, and not in terms of the ex post facto related dicta to which petitioner points. Contrary to petitioner's suggestion, nowhere in the opinion did we go so far as to incorporate jot-for-jot the specific categories of Calder into due process limitations on the retroactive application of judicial Nor have any of our subsequent decisions addressing Bouie -type claims interpreted Bouie as extending so far. Those decisions instead have uniformly viewed Bouie as restricted to its traditional due process roots. In doing so, they have applied Bouie `s check on retroactive judicial decision making not by reference to the ex post facto categories set out in Calder, but,
|
Justice O'Connor
| 2,001 | 14 |
majority
|
Rogers v. Tennessee
|
https://www.courtlistener.com/opinion/118425/rogers-v-tennessee/
|
the ex post facto categories set out in Calder, but, rather, in accordance with the more basic and general principle of fair warning that Bouie so clearly articulated. See, e. United ; 430 U. S., at -192 ; (upholding defendant's conviction *460 under statute prohibiting "crimes against nature" because, unlike in Bouie, the defendant "[could] make no claim that [the statute] afforded no notice that his conduct might be within its scope"); (trial court's construction of the term "arrest" as including a traffic citation, and application of that construction to defendant to revoke his probation, was unforeseeable and thus violated due process); (reversing conviction under state obscenity law because it did "not giv[e] fair notice" that the location of the allegedly obscene exhibition was a vital element of the offense). Petitioner observes that the Due Process and Ex Post Facto Clauses safeguard common interestsin particular, the interests in fundamental fairness (through notice and fair warning) and the prevention of the arbitrary and vindictive use of the laws. Brief for Petitioner 12-18. While this is undoubtedly correct, see, e. petitioner is mistaken to suggest that these considerations compel extending the strictures of the Ex Post Facto Clause to the context of common law judgin The Ex Post Facto Clause, by its own terms, does not apply to courts. Extending the Clause to courts through the rubric of due process thus would circumvent the clear constitutional text. It also would evince too little regard for the important institutional and contextual differences between legislating, on the one hand, and common law decisionmaking, on the other. Petitioner contends that state courts acting in their common law capacity act much like legislatures in the exercise of their lawmaking function, and indeed may in some cases even be subject to the same kinds of political influences and pressures that justify ex post facto limitations upon legislatures. Brief for Petitioner 12-18; Reply Brief for Petitioner 15. A court's "opportunity for discrimination," however, "is more limited than [a] legislature's, in that [it] can only act *461 in construing existing law in actual litigation." James v. United Moreover, "[g]iven the divergent pulls of flexibility and precedent in our case law system," ib incorporation of the Calder categories into due process limitations on judicial decision making would place an unworkable and unacceptable restraint on normal judicial processes and would be incompatible with the resolution of uncertainty that marks any evolving legal system. That is particularly so where, as here, the allegedly impermissible judicial application of a rule of law involves not the interpretation of a statute but an act of
|
Justice O'Connor
| 2,001 | 14 |
majority
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Rogers v. Tennessee
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https://www.courtlistener.com/opinion/118425/rogers-v-tennessee/
|
not the interpretation of a statute but an act of common law judgin In the context of common law doctrines (such as the year and a day rule), there often arises a need to clarify or even to reevaluate prior opinions as new circumstances and fact patterns present themselves. Such judicial acts, whether they be characterized as "making" or "finding" the law, are a necessary part of the judicial business in in which the criminal law retains some of its common law elements. Strict application of ex post facto principles in that context would unduly impair the incremental and reasoned development of precedent that is the foundation of the common law system. The common law, in short, presupposes a measure of evolution that is incompatible with stringent application of ex post facto principles. It was on account of concerns such as these that Bouie restricted due process limitations on the retroactive application of judicial interpretations of criminal statutes to those that are "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." 378 U. S., We believe this limitation adequately serves the common law context as well. It accords common law courts the substantial leeway they must enjoy as they engage in the daily task of formulating and passing upon criminal defenses and interpreting such doctrines as causation and intent, reevaluating *462 and refining them as may be necessary to bring the common law into conformity with logic and common sense. It also adequately respects the due process concern with fundamental fairness and protects against vindictive or arbitrary judicial lawmaking by safeguarding defendants against unjustified and unpredictable breaks with prior law. Accordingly, we conclude that a judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." Justice Scalia makes much of the fact that, at the time of the framing of the Constitution, it was widely accepted that courts could not "change" the law, see post, at 472-473, 477-478 (dissenting opinion), and that (according to Justice Scalia) there is no doubt that the Ex Post Facto Clause would have prohibited a legislative decision identical to the Tennessee court's decision here, see post, at 469-471, 478. This latter argument seeks at bottom merely to reopen what has long been settled by the constitutional text and our own decisions: that the Ex Post Facto Clause does not apply
|
Justice O'Connor
| 2,001 | 14 |
majority
|
Rogers v. Tennessee
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https://www.courtlistener.com/opinion/118425/rogers-v-tennessee/
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decisions: that the Ex Post Facto Clause does not apply to judicial decision makin The former argument is beside the point. Common law courts at the time of the framing undoubtedly believed that they were finding rather than making law. But, however one characterizes their actions, the fact of the matter is that common law courts then, as now, were deciding cases, and in doing so were fashioning and refining the law as it then existed in light of reason and experience. Due process clearly did not prohibit this process of judicial evolution at the time of the framing, and it does not do so today. III Turning to the particular facts of the instant case, the Tennessee court's abolition of the year and a day rule was not unexpected and indefensible. The year and a day rule is widely viewed as an outdated relic of the common law. Petitioner *463 does not even so much as hint that good reasons exist for retaining the rule, and so we need not delve too deeply into the rule and its history here. Suffice it to say that the rule is generally believed to date back to the 13th century, when it served as a statute of limitations governing the time in which an individual might initiate a private action for murder known as an "appeal of death"; that by the 18th century the rule had been extended to the law governing public prosecutions for murder; that the primary and most frequently cited justification for the rule is that 13th century medical science was incapable of establishing causation beyond a reasonable doubt when a great deal of time had elapsed between the injury to the victim and his death; and that, as practically every court recently to have considered the rule has noted, advances in medical and related science have so undermined the usefulness of the rule as to render it without question obsolete. See, e. ; ; ; ; see generally Comment, For this reason, the year and a day rule has been legislatively or judicially abolished in the vast majority of jurisdictions recently to have addressed the issue. See 992 S.W.2d, n. 4 Citing Bouie, petitioner contends that the judicial abolition of the rule in other jurisdictions is irrelevant to whether he had fair warning that the rule in Tennessee might similarly be abolished and, hence, to whether the Tennessee court's decision was unexpected and indefensible as applied to him. Brief for Petitioner 28-30. In discussing the apparent meaning of the South Carolina statute in Bouie, we noted that "[i]t
|
Justice O'Connor
| 2,001 | 14 |
majority
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Rogers v. Tennessee
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https://www.courtlistener.com/opinion/118425/rogers-v-tennessee/
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the South Carolina statute in Bouie, we noted that "[i]t would be a rare situation in which the meaning of a statute of another State sufficed to afford a person `fair warning' that his own *464 State's statute meant something quite different from what its words said." -360. This case, however, involves not the precise meaning of the words of a particular statute, but rather the continuing viability of a common law rule. Common law courts frequently look to the decisions of other jurisdictions in determining whether to alter or modify a common law rule in light of changed circumstances, increased knowledge, and general logic and experience. Due process, of course, does not require a person to apprise himself of the common law of all 50 in order to guarantee that his actions will not subject him to punishment in light of a developing trend in the law that has not yet made its way to his State. At the same time, however, the fact that a vast number of jurisdictions have abolished a rule that has so clearly outlived its purpose is surely relevant to whether the abolition of the rule in a particular case can be said to be unexpected and indefensible by reference to the law as it then existed. Finally, and perhaps most importantly, at the time of petitioner's crime the year and a day rule had only the most tenuous foothold as part of the criminal law of the State of Tennessee. The rule did not exist as part of Tennessee's statutory criminal code. And while the Supreme Court of Tennessee concluded that the rule persisted at common law, it also pointedly observed that the rule had never once served as a ground of decision in any prosecution for murder in the State. Indeed, in all the reported Tennessee cases, the rule has been mentioned only three times, and each time in dicta. The first mention of the rule in Tennessee, and the only mention of it by the Supreme Court of that State, was in in In Percer, the court reversed the defendant's conviction for second degree murder because the defendant was not present in court when the verdict was announced and because the proof failed to show that the murder occurred prior to the finding of the indictment. In discussing the latter ground *465 for its decision, the court quoted the rule that "`it is for the State to show that the crime was committed before the indictment was found, and, where it fails to do so, a conviction will be reversed.' "
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Justice O'Connor
| 2,001 | 14 |
majority
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Rogers v. Tennessee
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https://www.courtlistener.com/opinion/118425/rogers-v-tennessee/
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fails to do so, a conviction will be reversed.' " The court then also quoted the rule that "`[i]n murder, the death must be proven to have taken place within a year and a day from the date of the injury received.' " 118 Tenn., ). While petitioner relies on this case for the proposition that the year and a day rule was firmly entrenched in the common law of Tennessee, we agree with the Supreme Court of Tennessee that the case cannot establish nearly so much. After reciting the rules just mentioned, the court in Percer went on to point out that the indictment was found on July 6, 1906; that it charged that the murder was committed sometime in May 1906; and that the only evidence of when the victim died was testimony from a witness stating that he thought the death occurred sometime in July, but specifying neither a date nor a year. From this, the court concluded that it did "not affirmatively appear" from the evidence "whether the death occurred before or after the finding of the indictment." 118 Tenn., The court made no mention of the year and a day rule anywhere in its legal analysis or, for that matter, anywhere else in its opinion. Thus, whatever the import of the court's earlier quoting of the rule, it is clear that the rule did not serve as the basis for the Percer court's decision. The next two references to the rule both were by the Tennessee Court of Criminal Appeals in cases in which the date of the victim's death was not even in issue. Sixty-seven years after Percer, the court in noted the existence of the rule in rejecting the defendants' contentions that insufficient evidence existed to support the jury's conclusion that they had caused the victim's death in a drag-racing crash. *466 Twenty-one years after that, in a defendant referred to the rule in arguing that the operative cause of his victim's death was removal of life support rather than a gunshot wound at the defendant's hand. The victim had died within 10 days of receiving the wound. The Court of Criminal Appeals rejected the defendant's argument, concluding, as it had in this case, that the year and a day rule had been abolished by the 1989 Act. It went on to hold that the evidence of causation was sufficient to support the conviction. at 773-. Ruane, of course, was decided after petitioner committed his crime, and it concluded that the year and a day rule no longer existed in Tennessee for a
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Justice O'Connor
| 2,001 | 14 |
majority
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Rogers v. Tennessee
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https://www.courtlistener.com/opinion/118425/rogers-v-tennessee/
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a day rule no longer existed in Tennessee for a reason that the high court of that State ultimately rejected. But we note the case nonetheless to complete our account of the few appearances of the common law rule in the decisions of the Tennessee courts. These cases hardly suggest that the Tennessee court's decision was "unexpected and indefensible" such that it offended the due process principle of fair warning articulated in Bouie and its progeny. This is so despite the fact that, as Justice Scalia correctly points out, the court viewed the year and a day rule as a "substantive principle" of the common law of Tennessee. See post, at 480. As such, however, it was a principle in name only, having never once been enforced in the State. The Supreme Court of Tennessee also emphasized this fact in its opinion, see and rightly so, for it is surely relevant to whether the court's abolition of the rule in petitioner's case violated due process limitations on retroactive judicial decision makin And while we readily agree with Justice Scalia that fundamental due process prohibits the punishment of conduct that cannot fairly be said to have been criminal at the time the conduct occurred, see, e. post, at 470, 478, 480, nothing suggests that is what took place here. There is, in short, nothing to indicate that the Tennessee court's abolition of the rule in petitioner's case represented *467 an exercise of the sort of unfair and arbitrary judicial action against which the Due Process Clause aims to protect. Far from a marked and unpredictable departure from prior precedent, the court's decision was a routine exercise of common law decision making in which the court brought the law into conformity with reason and common sense. It did so by laying to rest an archaic and outdated rule that had never been relied upon as a ground of decision in any reported Tennessee case. The judgment of the Supreme Court of Tennessee is accordingly affirmed. It is so ordered.
|
Justice Rehnquist
| 1,996 | 19 |
concurring
|
Lonchar v. Thomas
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https://www.courtlistener.com/opinion/118015/lonchar-v-thomas/
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I agree with the Court that the judgment of the Court of Appeals should be reversed, but I am in sufficient disagreement with the Court's reasoning to write separately. I disagree with the Court's statement that "the Court of Appeals order vacating the stay is lawful only if dismissal of the petition would have been lawful." Ante, at 319. This statement, I believe, misreads our opinion in and ignores our reasoning in The order under review does not dispose of a petition for a writ of habeas corpus; it vacates a stay of execution. The Court dismisses this distinction as a "preliminary matter," which "makes no difference," because "the Court of Appeals order vacating the stay is lawful only if dismissal of the petition would have been lawful." Ante, at 319. In my view, *335 the fact that we are reviewing an order vacating a stay is anything but "preliminary." The Court is correct inasmuch as the underlying petition's likelihood of success is one factor to be considered in determining whether a stay should be entered. See Rule 9 of the Rules Governing 2254 Cases sets forth the grounds upon which a habeas petition may be dismissed other than the merits. Under Rule 9(b), a petition may be dismissed if it is found to be successive or abusive. Under Rule 9(a) it may also be dismissed "if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred." 28 U.S. C. 2254 Rule 9(a). In this case, there was no basis for denying a stay on the ground that petitioner's habeas claims are without merit; for the purposes of considering the stay application, it is undisputed that those claims are substantial. Because the habeas petition was petitioner's first, it would also have been inappropriate to deny a stay on the ground that the petition could have been dismissed under Rule 9(b). I agree with the majority, ante, at 326, that, on the record before us, the petition likewise could not have been dismissed under Rule 9(a), because the Rule's elements were not satisfied. Although the District Court determined that petitioner engaged in delay, it made no determination that the delay prejudiced the State's ability to respond to the petition, within the meaning of Rule 9(a), by depriving the State of adequate
|
Justice Rehnquist
| 1,996 | 19 |
concurring
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Lonchar v. Thomas
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https://www.courtlistener.com/opinion/118015/lonchar-v-thomas/
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meaning of Rule 9(a), by depriving the State of adequate time to respond or otherwise. However, an applicant's likelihood of success is not the only consideration in determining whether he is entitled to a stay. *336 See at The Habeas Rules say little if anything about this determination, and understandably so. It must be remembered the statutes governing habeas corpus, 28 U.S. C. 2241-2255, were enacted in 1948, before the writ developed into a vehicle for federal courts "to reexamine federal constitutional issues even after trial and review by a state," and long before this Court declined to declare the death penalty unconstitutional, in and It would have been difficult for Congress to have anticipated the issues that arise in a system in which state death sentences are presumptively valid, but are "reexamined" in federal court before execution to consider constitutional challenges to the manner in which they were imposed. In the typical noncapital habeas case, it is relatively easy to rule on an application to stay execution of a state sentence by consulting ordinary principles governing stays. Rarely, if ever, does a noncapital petitioner seek a stay of his sentence before the district court has passed on the merits of his petition. When a petitioner does make such a request, he usually has little chance of success on the merits, since he has been confined pursuant to a presumptively valid final judgment of conviction rendered by a state court. See 28 U.S. C. 2254(d). If, after entertaining his petition, the district court awards the writ, the "stay equities" shift in favor of the petitioner, who will be enlarged unless the State can demonstrate that the equities counsel otherwise. This easily managed system can be adapted to govern capital habeas cases, so long as the capital petitioner files his habeas petition sufficiently in advance of his execution date. If he files in a timely fashion, the district court may then consider the petition in due course, without in any way disturbing the sentence or execution date before ruling on the *337 petition's merits. But if, as in this case, the petitioner instead files an "eleventh hour" federal habeas petition, the customary principles must be revised accordingly. The district court may feel that it simply does not have time before the date of execution to adequately consider the merits of petitioner's claims, and will naturally be disposed, as the District Court was here, to enter a stay to enable it to do so.[1] In so doing, the district court sets aside a scheduled state execution of sentence, imposed by a presumptively
|
Justice Rehnquist
| 1,996 | 19 |
concurring
|
Lonchar v. Thomas
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https://www.courtlistener.com/opinion/118015/lonchar-v-thomas/
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a scheduled state execution of sentence, imposed by a presumptively valid final state judgment of conviction, on the basis of a tentative assessment that the judgment violates a federal constitutional right. Unless the eleventh-hour nature of the petition is taken into account, the late filing may induce the federal court to disregard federal-state comity and "frustrate the States' sovereign power to punish offenders," when such interference might have been avoided by timely filing.[2] The customary principles must also be revised to account for an attempt by a petitioner to manipulate the district court into granting relief where relief is clearly precluded. In this Court demonstrated how last-minute or manipulative uses of the stay power constitute equitable grounds which can justify the denial of an application for stay of a state-court order of execution. The Court *338 vacated a stay of execution issued on behalf of Robert Alton Harris, a California prisoner, pending consideration of a 42 U.S. C. 1983 action alleging that his method of execution violated the Eighth Amendment. See Because Harris had not raised the Eighth Amendment claim in any of the four federal habeas corpus petitions he had filed over 10 years, the Court considered the 1983 claim "an obvious attempt to avoid the application of to bar this successive claim for relief." We could have vacated the stay on the basis of the successive-petition bar alone, but we explicitly did not: "Even if we were to assume, however, that Harris could avoid the application of McCleskey to bar his claim, we would not consider it on the merits. Whether his claim is framed as a habeas petition or as a 1983 action, Harris seeks an equitable remedy. Equity must take into consideration the State's strong interest in proceeding with its judgment and Harris' obvious attempt at manipulation. This claim could have been brought more than a decade ago. There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief." Our order confirms that "abusive delay"waiting until the last minute to submit a claim that could have been submitted earlierand "obvious attempt[s] at manipulation"in that case, asking the court to exercise its equitable powers in defiance of a clearly applicable legal rule precluding relief on the meritsconstitute equities to be considered in ruling on the prayer for relief. More important, because we explained that this misconduct constituted sufficient grounds to deny Harris' stay application, "[e]ven if" McCleskey
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Justice Rehnquist
| 1,996 | 19 |
concurring
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Lonchar v. Thomas
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https://www.courtlistener.com/opinion/118015/lonchar-v-thomas/
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sufficient grounds to deny Harris' stay application, "[e]ven if" McCleskey did not bar *339 his claim, we made clear that such abuse may tip the scales decisively against a stay applicant regardless of the applicant's likelihood of success on the merits.[3] Gomez also confirms that a habeas petitioner's misconduct in applying for a stay may disentitle him to the stay even if the petition is his first. The inequitable conduct Gomez criticized, abusive delay and manipulation, may be present in any stay application. In Gomez we did not equivocate when we said: "Equity must take into consideration [an] obvious attempt at manipulation. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief." It may be admitted that there would be a stronger presumption in favor of deciding the merits of a first-time petition than for a successive petition. The successive nature of a petition gives rise to an additional concern counseling against review of the merits: that the petitioner is frustrating the State's attempts to execute its judgment by exploiting the fact that ordinary principles of res judicata do not apply in habeas corpus. It does not follow, however, that because a first-time petitioner does not abuse the writ under Rule 9(b) he may never be found to have engaged in the misconduct we criticized in Gomez; it means only that misconduct by such a petitioner is less likely to result in a refusal to grant a stay in order to consider the merits of the petition. The majority attempts to distinguish Gomez because the matter before the Court in that case was "not a first habeas petition." Ante, at 321. This reading is wholly implausible, because the first paragraph of the Court's order had already discussed the fact that Harris was not a first-time petitioner. *340 If the paragraph about Harris' misconduct in relation to his application, quoted above, had legal significance only if his petition was successive, it would have been superfluous. To support its view that a stay must be granted if a first federal habeas petition is not dismissed, the Court relies on our decision in But Barefoot and the present case arose in different contexts. The question presented and decided in Barefoot only addressed how the merits of the habeas petition may determine whether the petitioner obtains a stay. ; The issue in the present case is quite different: whether a petitioner's course of conduct in seeking the writ may be considered by the district court in deciding whether to grant a stay. To the
|
Justice Rehnquist
| 1,996 | 19 |
concurring
|
Lonchar v. Thomas
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https://www.courtlistener.com/opinion/118015/lonchar-v-thomas/
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court in deciding whether to grant a stay. To the extent that the Court's reading of Barefoot depends on the belief that a decision on a first federal habeas petition is somehow necessary to validate a state conviction, the Court ignores Barefoot `s assertion to the contrary: "The role of federal habeas proceedings is secondary and limited. Federal courts are not forums in which to relitigate state trials. The procedures adopted to facilitate the orderly consideration and disposition of habeas petitions are not legal entitlements that a defendant has a right to pursue irrespective of the contribution these procedures make toward uncovering constitutional error." -888. And, contrary to the Court's refusal to consider whether Barefoot `s "rationale" might brook a distinction between seasonable and eleventh-hour first habeas petitions, ante, at 321, our opinion warned that federal habeas corpus is not "a *341 means by which a defendant is entitled to delay an execution indefinitely." 463 U.S., I nonetheless agree with the Court that the Court of Appeals erred in vacating the stay granted in this case by the District Court. The District Court did not consider whether petitioner's conduct in court constituted misconduct so abusive that it disentitled him to a stay; it focused solely on the likelihood that petitioner's habeas petition might be dismissed. Although the court determined that petitioner had "abused the writ," it did not rely on this finding to deny a stay, correctly concluding that a first habeas petition may not be dismissed on the basis of abuse of the writ. App. 61-62. There was no determination that petitioner's habeas petition could be dismissed under Rule 9(a). There is no other ground under which to dismiss a first petition other than the merits, and the Court of Appeals erred in concluding otherwise. Although the findings supporting the District Court's determination that petitioner abused the writ would go a long way toward supporting affirmance on the ground that petitioner's misconduct disentitled him to a stay, reversal is still in order. I agree with the Court that petitioner's conduct in the next-friend proceedings "neither aggravate nor mitigate Lonchar's delay in filing." Ante, at 331. Petitioner may not be blamed for having asserted his competence and his control over his habeas claims, because our case law required the District Court to establish as much. See Nor should he be blamed for his brother's and sister's desire to protect him, although it would be a different case if the record established that his relatives and he were colluding to stay his execution but avoid putting his claims before the court,
|
per_curiam
| 1,982 | 200 |
per_curiam
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Boag v. MacDougall
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https://www.courtlistener.com/opinion/110593/boag-v-macdougall/
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Petitioner, who was then an inmate of the Arizona Department of Corrections Reception and Treatment Center, filed a crudely written complaint in the United States District Court for the District of Arizona, in which he alleged, inter alia, that he had been placed in solitary confinement on March 3, 1980, without any notice of charges or any hearing, that he was threatened with violence when he asked what the charges were, and that he was still in "the hole" a week later. The District Court dismissed the complaint on the ground that the case was moot because petitioner had been transferred to another facility. On appeals, the Court of Appeals did not endorse the District Court's mootness rationale, and rightfully so, since the transfer did not moot the damages claim. Nevertheless, the Court of Appeals affirmed, concluding *365 that first, district courts have "especially broad" discretion to dismiss frivolous actions against prison officials under 28 U.S. C. 1915(d), and second, petitioner's action is frivolous because it does not state a claim upon which relief can be granted. We need not address the permissible contours of the Court of Appeals' first conclusion, for its second conclusion is erroneous as a matter of law. Construing petitioner's inartful pleading liberally, as instructs the federal courts to do in pro se actions, it states a cause of action. See On the basis of the record before us, we cannot find a sufficient ground for affirming the dismissal of the complaint.[*] The motion of petitioner for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
|
Justice White
| 1,989 | 6 |
majority
|
Wards Cove Packing Co. v. Atonio
|
https://www.courtlistener.com/opinion/112270/wards-cove-packing-co-v-atonio/
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Title V of the Civil Rights Act of 194, as amended, 42 U.S. C. 2000e et seq., makes it an unfair employment practice for an employer to discriminate against any individual with respect to hiring or the terms and condition of employment because of such individual's race, color, religion, sex, or national origin; or to limit, segregate, or classify his employees in ways that would adversely affect any employee because of the employee's race, color, religion, sex, or national origin.[1] 2000e-2(a). construed Title V to proscribe "not only overt discrimination but also practices that are fair in form but discriminatory in practice." Under this basis for liability, which is known as the "disparate-impact" theory and which is involved in this case, a facially neutral *4 employment practice may be deemed violative of Title V without evidence of the employer's subjective intent to discriminate that is required in a "disparate-treatment" case. I The claims before us are disparate-impact claims, involving the employment practices of petitioners, two companies that operate salmon canneries in remote and widely separated areas of Alaska. The canneries operate only during the salmon runs in the summer months. They are inoperative and vacant for the rest of the year. In May or June of each year, a few weeks before the salmon runs begin, workers arrive and prepare the equipment and facilities for the canning operation. Most of these workers possess a variety of skills. When salmon runs are about to begin, the workers who will operate the cannery lines arrive, remain as long as there are fish to can, and then depart. The canneries are then closed down, winterized, and left vacant until the next spring. During the off-season, the companies employ only a small number of individuals at their headquarters in Seattle and Astoria, Oregon, plus some employees at the winter shipyard in Seattle. The length and size of salmon runs vary from year to year, and hence the number of employees needed at each cannery also varies. Estimates are made as early in the winter as possible; the necessary employees are hired, and when the time comes, they are transported to the canneries. Salmon must be processed soon after they are caught, and the work during the canning season is therefore intense.[2] For this *47 reason, and because the canneries are located in remote regions, all workers are housed at the canneries and have their meals in company-owned mess halls. Jobs at the canneries are of two general types: "cannery jobs" on the cannery line, which are unskilled positions; and "noncannery jobs," which fall into
|
Justice White
| 1,989 | 6 |
majority
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Wards Cove Packing Co. v. Atonio
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https://www.courtlistener.com/opinion/112270/wards-cove-packing-co-v-atonio/
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which are unskilled positions; and "noncannery jobs," which fall into a variety of classifications. Most noncannery jobs are classified as skilled positions.[3] Cannery jobs are filled predominantly by nonwhites: Filipinos and Alaska Natives. The Filipinos are hired through, and dispatched by, Local 37 of the International Longshoremen's and Warehousemen's Union pursuant to a hiring hall agreement with the local. The Alaska Natives primarily reside in villages near the remote cannery locations. Noncannery jobs are filled with predominantly white workers, who are hired during the winter months from the companies' offices in Washington and Oregon. Virtually all of the noncannery jobs pay more than cannery positions. The predominantly white noncannery workers and the predominantly nonwhite cannery employees live in separate dormitories and eat in separate mess halls. In 1974, respondents, a class of nonwhite cannery workers who were (or had been) employed at the canneries, brought this Title V action against petitioners. Respondents alleged that a variety of petitioners' hiring/promotion practices e. g., nepotism, a rehire preference, a lack of objective hiring criteria, separate hiring channels, a practice of not promoting from within were responsible for the racial stratification *48 of the work force and had denied them and other nonwhites employment as noncannery workers on the basis of race. Respondents also complained of petitioners' racially segregated housing and dining facilities. All of respondents' claims were advanced under both the disparate-treatment and disparate-impact theories of Title V liability. The District Court held a bench trial, after which it entered 172 findings of fact. 34 EPD ¶ 34,437, pp. 33,822-33,83 It then rejected all of respondents' disparate-treatment claims. It also rejected the disparate-impact challenges involving the subjective employment criteria used by petitioners to fill these noncannery positions, on the ground that those criteria were not subject to attack under a disparate-impact theory. Petitioners' "objective" employment practices (e. g., an English language requirement, alleged nepotism in hiring, failure to post noncannery openings, the rehire preference, etc.) were found to be subject to challenge under the disparate-impact theory, but these claims were rejected for failure of proof. Judgment was entered for petitioners. On appeal, a panel of the Ninth Circuit affirmed, but that decision was vacated when the Court of Appeals agreed to hear the case en banc, The en banc hearing was ordered to settle an intracircuit conflict over the question whether subjective hiring practices could be analyzed under a disparate-impact model; the Court of Appeals held as this Court subsequently ruled in that disparate-impact analysis could be applied to subjective hiring practices. The Ninth Circuit also concluded that
|
Justice White
| 1,989 | 6 |
majority
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Wards Cove Packing Co. v. Atonio
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https://www.courtlistener.com/opinion/112270/wards-cove-packing-co-v-atonio/
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to subjective hiring practices. The Ninth Circuit also concluded that in such a case, "[o]nce the plaintiff class has shown disparate impact caused by specific, identifiable employment practices or criteria, the burden shifts to the employer," to "prov[e the] business necessity" of the challenged practice, Because the en banc holding on subjective employment practices reversed *49 the District Court's contrary ruling, the en banc Court of Appeals remanded the case to a panel for further proceedings. On remand, the panel applied the en banc ruling to the facts of this case. It held that respondents had made out a prima facie case of disparate impact in hiring for both skilled and unskilled noncannery positions. The panel remanded the case for further proceedings, instructing the District Court that it was the employer's burden to prove that any disparate impact caused by its hiring and employment practices was justified by business necessity. Neither the en banc court nor the panel disturbed the District Court's rejection of the disparate-treatment claims.[4] Petitioners sought review of the Court of Appeals' decision in this Court, challenging it on several grounds. Because some of the issues raised by the decision below were matters *50 on which this Court was evenly divided in we granted certiorari, for the purpose of addressing these disputed questions of the proper application of Title V's disparate-impact theory of liability. In holding that respondents had made out a prima facie case of disparate impact, the Court of Appeals relied solely on respondents' statistics showing a high percentage of nonwhite workers in the cannery jobs and a low percentage of such workers in the noncannery positions.[5] Although statistical proof can alone make out a prima facie case, see U.S. 324, ; School the Court of Appeals' ruling here misapprehends our precedents and the purposes of Title V, and we therefore reverse. "There can be no doubt," as there was when a similar mistaken analysis had been undertaken by the courts below in "that the comparison fundamentally misconceived the role of statistics in employment discrimination cases." The "proper comparison [is] between the racial composition of [the at-issue jobs] and the racial composition of the qualified population in the relevant labor market." It is such a comparison between the racial composition of the qualified persons in the labor market and the persons holding at-issue jobs that generally forms *51 the proper basis for the initial inquiry in a disparate-impact case. Alternatively, in cases where such labor market statistics will be difficult if not impossible to ascertain, we have recognized that certain other statistics
|
Justice White
| 1,989 | 6 |
majority
|
Wards Cove Packing Co. v. Atonio
|
https://www.courtlistener.com/opinion/112270/wards-cove-packing-co-v-atonio/
|
to ascertain, we have recognized that certain other statistics such as measures indicating the racial composition of "otherwise-qualified applicants" for at-issue jobs are equally probative for this purpose. See, e. g., New York City Transit[] It is clear to us that the Court of Appeals' acceptance of the comparison between the racial composition of the cannery work force and that of the noncannery work force, as probative of a prima facie case of disparate impact in the selection of the latter group of workers, was flawed for several reasons. Most obviously, with respect to the skilled noncannery jobs at issue here, the cannery work force in no way reflected "the pool of qualified job applicants" or the "qualified population in the labor force." Measuring alleged discrimination in the selection of accountants, managers, boat captains, electricians, doctors, and engineers and the long list of other "skilled" noncannery positions found to exist by the District Court, see 34 EPD ¶ 34,437, p. 33,832 by comparing the number of nonwhites occupying these jobs to the number of nonwhites filling cannery worker positions is nonsensical. If the absence of minorities holding such skilled positions is due to a dearth of qualified nonwhite applicants (for reasons that are not petitioners' fault),[7] petitioners' *52 selection methods or employment practices cannot be said to have had a "disparate impact" on nonwhites. One example illustrates why this must be so. Respondents' own statistics concerning the noncannery work force at one of the canneries at issue here indicate that approximately 17% of the new hires for medical jobs, and 15% of the new hires for officer worker positions, were nonwhite. See App. to Brief for Respondents B-1. If it were the case that less than 15 to 17% of the applicants for these jobs were nonwhite and that nonwhites made up a lower percentage of the relevant qualified labor market, it is hard to see how respondents, without more, cf. would have made out a prima facie case of disparate impact. Yet, under the Court of Appeals' theory, simply because nonwhites comprise 52% of the cannery workers at the cannery in question, see App. to Brief for Respondents B-1, respondents would be successful in establishing a prima facie case of racial discrimination under Title V. Such a result cannot be squared with our cases or with the goals behind the statute. The Court of Appeals' theory, at the very least, would mean that any employer who had a segment of his work force that was for some reason racially imbalanced, could be haled
|
Justice White
| 1,989 | 6 |
majority
|
Wards Cove Packing Co. v. Atonio
|
https://www.courtlistener.com/opinion/112270/wards-cove-packing-co-v-atonio/
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for some reason racially imbalanced, could be haled into court and forced to engage in the expensive and time-consuming task of defending the "business necessity" of the methods used to select the other members of his work force. The only practicable option for many employers would be to adopt racial quotas, insuring that no portion of their work forces deviated in racial composition from the other portions thereof; this is a result that Congress expressly rejected in drafting Title V. See 42 U.S. C. 2000e-2(j); see also -994, and n. 2 (opinion of O'CONNOR, J.). The Court of Appeals' theory would "leave the employer little choice but to engage in a subjective quota system of employment selection. This, of course, is far from the intent of Title V." Albemarle Paper The Court of Appeals also erred with respect to the unskilled noncannery positions. Racial imbalance in one segment of an employer's work force does not, without more, establish a prima facie case of disparate impact with respect to the selection of workers for the employer's other positions, even where workers for the different positions may have somewhat fungible skills (as is arguably the case for cannery and unskilled noncannery workers). As long as there are no barriers or practices deterring qualified nonwhites from applying for noncannery positions, see n. if the percentage of selected applicants who are nonwhite is not significantly less than the percentage of qualified applicants who are nonwhite, the employer's selection mechanism probably does not operate with a disparate impact on minorities.[8] Where this is the case, the percentage of nonwhite workers found in other positions in the employer's labor force is irrelevant to the question of a prima facie statistical case of disparate impact. As noted above, a contrary ruling on this point would almost inexorably lead to the use of numerical quotas in the workplace, a result that Congress and this Court have rejected repeatedly in the past. Moreover, isolating the cannery workers as the potential "labor force" for unskilled noncannery positions is at once both too broad and too narrow in its focus. It is too broad because the vast majority of these cannery workers did not *54 seek jobs in unskilled noncannery positions; there is no showing that many of them would have done so even if none of the arguably "deterring" practices existed. Thus, the pool of cannery workers cannot be used as a surrogate for the class of qualified job applicants because it contains many persons who have not (and would not) be noncannery job applicants. Conversely, if respondents
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| 1,989 | 6 |
majority
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Wards Cove Packing Co. v. Atonio
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(and would not) be noncannery job applicants. Conversely, if respondents propose to use the cannery workers for comparison purposes because they represent the "qualified labor population" generally, the group is too narrow because there are obviously many qualified persons in the labor market for noncannery jobs who are not cannery workers. The peculiar facts of this case further illustrate why a comparison between the percentage of nonwhite cannery workers and nonwhite noncannery workers is an improper basis for making out a claim of disparate impact. Here, the District Court found that nonwhites were "overrepresent[ed]" among cannery workers because petitioners had contracted with a predominantly nonwhite union (local 37) to fill these positions. See 34 EPD ¶ 33,437, p. 33,829. As a result, if petitioners (for some permissible reason) ceased using local 37 as its hiring channel for cannery positions, it appears (according to the District Court's findings) that the racial stratification between the cannery and noncannery workers might diminish to statistical insignificance. Under the Court of Appeals' approach, therefore, it is possible that with no change whatsoever in their hiring practices for noncannery workers the jobs at issue in this lawsuit petitioners could make respondents' prima facie case of disparate impact "disappear." But if there would be no prima facie case of disparate impact in the selection of noncannery workers absent petitioners' use of local 37 to hire cannery workers, surely petitioners' reliance on the union to fill the cannery jobs not at issue here (and its resulting "overrepresentation" of nonwhites in those positions) does not standing alone make out a prima facie case of disparate impact. Yet it is precisely *55 such an ironic result that the Court of Appeals reached below. Consequently, we reverse the Court of Appeals' ruling that a comparison between the percentage of cannery workers who are nonwhite and the percentage of noncannery workers who are nonwhite makes out a prima facie case of disparate impact. Of course, this leaves unresolved whether the record made in the District Court will support a conclusion that a prima facie case of disparate impact has been established on some basis other than the racial disparity between cannery and noncannery workers. This is an issue that the Court of Appeals or the District Court should address in the first instance. I Since the statistical disparity relied on by the Court of Appeals did not suffice to make out a prima facie case, any inquiry by us into whether the specific challenged employment practices of petitioners caused that disparity is pretermitted, as is any inquiry into
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| 1,989 | 6 |
majority
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Wards Cove Packing Co. v. Atonio
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caused that disparity is pretermitted, as is any inquiry into whether the disparate impact that any employment practice may have had was justified by business considerations.[9] Because we remand for further proceedings, however, on whether a prima facie case of disparate impact has been made in defensible fashion in this case, we address two other challenges petitioners have made to the decision of the Court of Appeals. *5 A First is the question of causation in a disparate-impact case. The law in this respect was correctly stated by JUSTICE O'CONNOR's opinion last Term in : "[W]e note that the plaintiff's burden in establishing a prima facie case goes beyond the need to show that there are statistical disparities in the employer's work force. The plaintiff must begin by identifying the specific employment practice that is challenged. Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." Cf. also Indeed, even the Court of Appeals whose decision petitioners assault on this score noted that "it is essential that the practices identified by the cannery workers be linked causally with the demonstrated adverse impact." Notwithstanding the Court of Appeals' apparent adherence to the proper inquiry, petitioners contend that that court erred by permitting respondents to make out their case by offering "only [one] set of cumulative comparative statistics as evidence of the disparate impact of each and all of [petitioners' hiring] practices." Brief for Petitioners 31. Our disparate-impact cases have always focused on the impact of particular hiring practices on employment opportunities for minorities. Just as an employer cannot escape liability under Title V by demonstrating that, "at the bottom line," his work force is racially balanced (where particular hiring practices may operate to deprive minorities of employment opportunities), see 457 U. S., at *57 450, a Title V plaintiff does not make out a case of disparate impact simply by showing that, "at the bottom line," there is racial imbalance in the work force. As a general matter, a plaintiff must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack. Such a showing is an integral part of the plaintiff's prima facie case in a disparate-impact suit under Title V. Here, respondents have alleged that several "objective" employment practices (e. g., nepotism, separate hiring channels, rehire preferences), as well as the use of "subjective
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Justice White
| 1,989 | 6 |
majority
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Wards Cove Packing Co. v. Atonio
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https://www.courtlistener.com/opinion/112270/wards-cove-packing-co-v-atonio/
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channels, rehire preferences), as well as the use of "subjective decision making" to select noncannery workers, have had a disparate impact on nonwhites. Respondents base this claim on statistics that allegedly show a disproportionately low percentage of nonwhites in the at-issue positions. However, even if on remand respondents can show that nonwhites are underrepresented in the at-issue jobs in a manner that is acceptable under the standards set forth in Part this alone will not suffice to make out a prima facie case of disparate impact. Respondents will also have to demonstrate that the disparity they complain of is the result of one or more of the employment practices that they are attacking here, specifically showing that each challenged practice has a significantly disparate impact on employment opportunities for whites and nonwhites. To hold otherwise would result in employers being potentially liable for "the myriad of innocent causes that may lead to statistical imbalances in the composition of their work forces." Some will complain that this specific causation requirement is unduly burdensome on Title V plaintiffs. But liberal civil discovery rules give plaintiffs broad access to employers' records in an effort to document their claims. Also, employers falling within the scope of the Uniform Guidelines on Employee Selection Procedures, 29 CFR 107.1 et seq. *58 are required to "maintain records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group[s]." See 107.4(A). This includes records concerning "the individual components of the selection process" where there is a significant disparity in the selection rates of whites and nonwhites. See 107.4(C). Plaintiffs as a general matter will have the benefit of these tools to meet their burden of showing a causal link between challenged employment practices and racial imbalances in the work force; respondents presumably took full advantage of these opportunities to build their case before the trial in the District Court was held.[10] Consequently, on remand, the courts below are instructed to require, as part of respondents' prima facie case, a demonstration that specific elements of the petitioners' hiring process have a significantly disparate impact on nonwhites. B If, on remand, respondents meet the proof burdens outlined above, and establish a prima facie case of disparate impact with respect to any of petitioners' employment practices, the case will shift to any business justification petitioners offer for their use of these practices. This phase of the disparate-impact case contains two components: first, a consideration of the justifications an employer offers for his use of
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Justice White
| 1,989 | 6 |
majority
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Wards Cove Packing Co. v. Atonio
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of the justifications an employer offers for his use of these practices; and second, the availability of alternative practices to achieve the same business ends, with less racial impact. See, e. g., Albemarle Paper v. We consider these two components in turn. *59 (1) Though we have phrased the query differently in different cases, it is generally well established that at the justification stage of such a disparate-impact case, the dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer. See, e. g., -999; New York City Transit n. 31; The touchstone of this inquiry is a reasoned review of the employer's justification for his use of the challenged practice. A mere insubstantial justification in this regard will not suffice, because such a low standard of review would permit discrimination to be practiced through the use of spurious, seemingly neutral employment practices. At the same time, though, there is no requirement that the challenged practice be "essential" or "indispensable" to the employer's business for it to pass muster: this degree of scrutiny would be almost impossible for most employers to meet, and would result in a host of evils we have identified above. See at 52-53. In this phase, the employer carries the burden of producing evidence of a business justification for his employment practice. The burden of persuasion, however, remains with the disparate-impact plaintiff. To the extent that the Ninth Circuit held otherwise in its en banc decision in this case, see 810 F.2d, -148, or in the panel's decision on remand, see 447 suggesting that the persuasion burden should shift to petitioners once respondents established a prima facie case of disparate impact its decisions were erroneous. "[T]he ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times." (emphasis added). This rule conforms with the usual method for allocating persuasion and production burdens *0 in the federal courts, see Fed. Rule Evid. 301, and more specifically, it conforms to the rule in disparate-treatment cases that the plaintiff bears the burden of disproving an employer's assertion that the adverse employment action or practice was based solely on a legitimate neutral consideration. See Texas Dept. of Community 25-258 We acknowledge that some of our earlier decisions can be read as suggesting otherwise. See at 100-1008 But to the extent that those cases speak of an employer's "burden of proof" with respect to a legitimate business justification defense, see, e. g., they should have been understood
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Justice White
| 1,989 | 6 |
majority
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Wards Cove Packing Co. v. Atonio
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https://www.courtlistener.com/opinion/112270/wards-cove-packing-co-v-atonio/
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justification defense, see, e. g., they should have been understood to mean an employer's production but not persuasion burden. Cf., e. g., 42 U.S. 393, The persuasion burden here must remain with the plaintiff, for it is he who must prove that it was "because of such individual's race, color," etc., that he was denied a desired employment opportunity. See 42 U.S. C. 2000e-2(a). (2) Finally, if on remand the case reaches this point, and respondents cannot persuade the trier of fact on the question of petitioners' business necessity defense, respondents may still be able to prevail. To do so, respondents will have to persuade the factfinder that "other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate [hiring] interest[s]"; by so demonstrating, respondents would prove that "[petitioners were] using [their] tests merely as a `pretext' for discrimination." Albemarle Paper ; see also ; at 1005-100 If respondents, having established a prima facie case, come forward with alternatives to petitioners' hiring practices that *1 reduce the racially disparate impact of practices currently being used, and petitioners refuse to adopt these alternatives, such a refusal would belie a claim by petitioners that their incumbent practices are being employed for nondiscriminatory reasons. Of course, any alternative practices which respondents offer up in this respect must be equally effective as petitioners' chosen hiring procedures in achieving petitioners' legitimate employment goals. Moreover, "[f]actors such as the cost or other burdens of proposed alternative selection devices are relevant in determining whether they would be equally as effective as the challenged practice in serving the employer's legitimate business goals." "Courts are generally less competent than employers to restructure business practices," Furnco Construction 438 U.S. 57, ; consequently, the judiciary should proceed with care before mandating that an employer must adopt a plaintiff's alternative selection or hiring practice in response to a Title V suit. IV For the reasons given above, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
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Justice Sotomayor
| 2,015 | 24 |
second_dissenting
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Glossip v. Gross
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https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
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Petitioners, three inmates on Oklahoma’s death row, challenge the constitutionality of the State’s lethal injec tion protocol. The State plans to execute petitioners using three drugs: midazolam, rocuronium bromide, and potas sium chloride. The latter two drugs are intended to para lyze the inmate and stop his heart. But they do so in a torturous manner, causing burning, searing pain. It is thus critical that the first drug, midazolam, do what it is supposed to do, which is to render and keep the inmate unconscious. Petitioners claim that midazolam cannot be expected to perform that function, and they have presented ample evidence showing that the State’s planned use of this drug poses substantial, constitutionally intolerable risks. Nevertheless, the Court today turns aside petitioners’ plea that they at least be allowed a stay of execution while they seek to prove midazolam’s inadequacy. The Court achieves this result in two ways: first, by deferring to the District Court’s decision to credit the scientifically unsup ported and implausible testimony of a single expert wit ness; and second, by faulting petitioners for failing to satisfy the wholly novel requirement of proving the avail ability of an alternative means for their own executions. 2 GLOSSIP v. GROSS SOTOMAYOR, J., dissenting On both counts the Court errs. As a result, it leaves peti tioners exposed to what may well be the chemical equiva lent of being burned at the stake. I A The Eighth Amendment succinctly prohibits the inflic tion of “cruel and unusual punishments.” Seven years ago, in the Court addressed the application of this mandate to Kentucky’s lethal injec tion protocol. At that time, Kentucky, like at least 29 of the 35 other States with the death penalty, utilized a series of three drugs to perform executions: (1) sodium thiopental, a “fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection”; (2) pancuronium bro mide, “a paralytic agent that inhibits all muscular-skeletal movements and stops respiration”; and (3) potassium chloride, which “interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.” In it was undisputed that absent a “proper dose of sodium thiopental,” there would be a “substantial, consti tutionally unacceptable risk of suffocation from the admin istration of pancuronium bromide and pain from the injec tion of potassium chloride.” That is because, if given to a conscious inmate, pancuronium bromide would leave him or her asphyxiated and unable to demonstrate “any outward sign of distress,” while potassium chloride would cause “excruciating pain.” (Stevens, J., concurring in judgment). But the petitioners
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Justice Sotomayor
| 2,015 | 24 |
second_dissenting
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Glossip v. Gross
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“excruciating pain.” (Stevens, J., concurring in judgment). But the petitioners conceded that if administered as intended, Kentucky’s method of execution would nevertheless “result in a humane death,” as the “proper administra tion” of sodium thiopental “eliminates any meaningful risk that a prisoner would experience pain from the subse Cite as: 576 U. S. 3 SOTOMAYOR, J., dissenting quent injections of pancuronium and potassium chloride,” Based on that premise, the Court ultimately rejected the challenge to Kentucky’s protocol, with the plurality opinion concluding that the State’s procedures for administering these three drugs ensured there was no “objectively intolerable risk” of severe pain. –62 B For many years, Oklahoma performed executions using the same three drugs at issue in After was decided, however, the primary producer of sodium thio pental refused to continue permitting the drug to be used in executions. Ante, at 4–5. Like a number of other States, Oklahoma opted to substitute pentobarbital, an other barbiturate, in its place. But in March 14, shortly before two scheduled executions, Oklahoma found itself unable to secure this drug. App. 144. The State rescheduled the executions for the following month to give it time to locate an alternative anesthetic. In less than a week, a group of officials from the Okla- homa Department of Corrections and the Attorney General’s office selected midazolam to serve as a replacement for pentobarbital. 148–149. Soon thereafter, Oklahoma used midazolam for the first time in its execution of Clayton Lockett. That execution did not go smoothly. Ten minutes after an intravenous (IV) line was set in Lockett’s groin area and 100 milli grams of midazolam were administered, an attending physician declared Lockett unconscious. 92–393. When the paralytic and potassium chloride were adminis tered, however, Lockett awoke. Various witnesses reported that Lockett began to writhe against his re straints, saying, “[t]his s*** is f***ing with my mind,” “something is wrong,” and “[t]he drugs aren’t working.” State offi 4 GLOSSIP v. GROSS SOTOMAYOR, J., dissenting cials ordered the blinds lowered, then halted the execu tion. But 10 minutes later— approximately 40 minutes after the execution began— Lockett was pronounced dead. The State stayed all future executions while it sought to determine what had gone wrong in Lockett’s. Five months later, the State released an investigative report identify ing a flaw in the IV line as the principal difficulty: The IV had failed to fully deliver the lethal drugs into Lockett’s veins. An autopsy determined, however, that the concentration of midazolam in Lockett’s blood was more than sufficient to render an average person uncon scious. In response to this report, the
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Justice Sotomayor
| 2,015 | 24 |
second_dissenting
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Glossip v. Gross
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https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
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average person uncon scious. In response to this report, the State modified its lethal injection protocol. The new protocol contains a number of procedures designed to guarantee that members of the execution team are able to insert the IV properly, and charges them with ensuring that the inmate is uncon scious. at 57–66, 1–9. But the protocol continues to authorize the use of the same three-drug formula used to kill Lockett—though it does increase the intended dose of midazolam from 100 milligrams to 500 milligrams. The State has indicated that it plans to use this drug combination in all upcoming executions, subject to only an immaterial substitution of paralytic agents. Ante, at 7–8. C In June 14, inmates on Oklahoma’s death row filed a 42 U.S. C. suit against respondent prison officials challenging the constitutionality of Oklahoma’s method of execution. After the State released its revised execution protocol, the four inmates whose executions were most imminent—Charles along with petitioners Rich ard Glossip, John Grant, and Benjamin Cole—moved for a preliminary injunction. They contended, among other Cite as: 576 U. S. 5 SOTOMAYOR, J., dissenting things, that the State’s intended use of midazolam would violate the Eighth Amendment because, unlike sodium thiopental or pentobarbital, the drug “is incapable of producing a state of unawareness that will be reliably maintained after either of the other two pain-producing drugs is injected.” Amended Complaint ¶101. The District Court held a 3-day evidentiary hearing, at which petitioners relied principally on the testimony of two experts: Dr. David Lubarsky, an anesthesiologist, and Dr. Larry Sasich, a doctor of pharmacy. The State, in turn, based its case on the testimony of Dr. Roswell Evans, also a doctor of pharmacy. To a great extent, the experts’ testimony overlapped. All three experts agreed that midazolam is from a class of sedative drugs known as benzodiazepines (a class that includes Valium and Xanax), and that it has no analge sic—or pain-relieving—effects. App. 5 260– 261 (Sasich), 311 They further agreed that while midazolam can be used to render someone unconscious, it is not approved by the Federal Drug Administration (FDA) for use as, and is not in fact used as, a “sole drug to pro duce and maintain anesthesia in surgical proceedings.” ; see ; at 262 (Sasich). Finally, all three experts recognized that midazolam is subject to a ceiling effect, which means that there is a point at which increasing the dose of the drug does not result in any greater effect. 243 (Sasich), 331 The experts’ opinions diverged, however, on the crucial questions of how this ceiling effect
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Justice Sotomayor
| 2,015 | 24 |
second_dissenting
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Glossip v. Gross
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https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
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however, on the crucial questions of how this ceiling effect operates, and whether it will prevent midazolam from keeping a condemned inmate unconscious when the second and third lethal injection drugs are administered. Dr. Lubarsky testified that while benzodiazepines such as midazolam may, like barbiturate drugs such as sodium thiopental and pento barbital, induce unconsciousness by inhibiting neuron 6 GLOSSIP v. GROSS SOTOMAYOR, J., dissenting function, they do so in a materially different way. at 7. More specifically, Dr. Lubarsky explained that both barbiturates and benzodiazepines initially cause sedation by facilitating the binding of a naturally occurring chemi cal called gamma-aminobutyric acid (GABA) with GABA receptors, which then impedes the flow of electrical im pulses through the neurons in the central nervous system. But at higher doses, barbiturates also act as a GABA substitute and mimic its neuron-suppressing ef fects. By contrast, benzodiazepines lack this mim icking function, which means their effect is capped at a lower level of sedation. Critically, according to Dr. Lubarsky, this ceiling on midazolam’s sedative effect is reached before full anesthesia can be achieved. Thus, in his view, while “midazolam unconsciousness is sufficient” for “minor procedure[s],” Tr. of Preliminary Injunction Hearing 132–133 (Tr.), it is incapable of keep ing someone “insensate and immobile in the face of [more] noxious stimuli,” including the extreme pain and discom fort associated with administration of the second and third drugs in Oklahoma’s lethal injection protocol, App. 218. Dr. Sasich endorsed Dr. Lubarsky’s description of the ceiling effect, and offered similar reasons for reaching the same conclusion. See In support of these assertions, both experts cited a variety of evidence. Dr. Lubarsky emphasized, in particu lar, Arizona’s 14 execution of Joseph Wood, which had been conducted using midazolam and the drug hydromor phone rather than the three-drug cocktail Oklahoma intends to employ.1 Despite being adminis tered 750 milligrams of midazolam, Wood had continued breathing and moving for nearly two hours—which, ac —————— 1 Hydromorphone is a powerful analgesic similar to morphine or hero in. See R. Stoelting & S. Hillier, Pharmacology & Physiology in Anes thetic Practice 87–88 (4th ed. 06) (Stoelting & Hillier). Cite as: 576 U. S. 7 SOTOMAYOR, J., dissenting cording to Dr. Lubarsky, would not have occurred “during extremely deep levels of anesthesia.” Both experts also cited various scientific articles and textbooks to support their conclusions. For instance, Dr. Lubarsky relied on a study measuring the brain activity of rats that were administered midazolam, which showed that the drug’s impact significantly tailed off at higher doses. See Hovinga et al., Pharmacokinetic-EEG Effect Relationship of Midazolam in
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Justice Sotomayor
| 2,015 | 24 |
second_dissenting
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Glossip v. Gross
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https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
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See Hovinga et al., Pharmacokinetic-EEG Effect Relationship of Midazolam in Aging BN/BiRij Rats, 107 British J. Pharmacology 171, 173, Fig. 2 (1992). He also pointed to a pharmacology textbook that confirmed his description of how benzodiazepines and barbiturates produce their effects, see Stoelting & Hillier 127–128, 140–144, and a survey article concluding that “[m]idazolam cannot be used alone to maintain adequate anesthesia,” Reves, Fragen, Vinik, & Greenblatt, Midazolam: Pharmacology and Uses, 62 Anesthesiology 310, 318 (Reves). For his part, Dr. Sasich referred to a separate survey article, which similarly recognized and described the ceiling effect to which benzodiazepines are subject. See Saari, Uusi- Oukari, Ahonen, & Olkkola, Enhancement of GABAergic Activity: Neuropharmacological Effects of Benzodiazepines and Therapeutic Use in Anesthesiology, 63 Pharamacolog ical Rev. 243, 244, 250 (11) (Saari). By contrast, Dr. Evans, the State’s expert, asserted that a 500-milligram dose of midazolam would “render the person unconscious and ‘insensate’ during the remainder of the [execution] procedure.” App. 294. He rested this conclusion on two interrelated propositions. First, observing that a therapeutic dose of midazolam to treat anxiety is less than 5 milligrams for a 70-kilogram adult, Dr. Evans emphasized that Oklahoma’s planned administration of 500 milligrams of the drug was “at least 100 times the normal therapeutic dose.” While he acknowledged that “[t]here are no studies that have been done administering that much midazolam to 8 GLOSSIP v. GROSS SOTOMAYOR, J., dissenting anybody,” he noted that deaths had occurred in doses as low as 0.04 to 0.07 milligrams per kilogram (2.8 to 4.9 milligrams for a 70-kilogram adult), and contended that a 500-milligram dose would itself cause death within less than an hour—a conclusion he characterized as “essentially an extrapolation from a toxic effect.” ; see 08. Second, in explaining how he reconciled his opinion with the evidence of midazolam’s ceiling effect, Dr. Evans testi fied that while “GABA receptors are found across the entire body,” midazolam’s ceiling effect is limited to the “spinal cord” and there is “no ceiling effect” at the “higher level of [the] brain.” 11–312. Consequently, in his view, “as you increase the dose of midazolam, it’s a linear effect, so you’re going to continue to get an impact from higher doses of the drug,” until eventually “you’re paralyzing the brain,” Dr. Evans also understood the chemical source of midazolam’s ceiling effect somewhat differently from petitioners’ experts. Although he agreed that midazolam produces its effect by “binding to [GABA] receptors,” he appeared to believe that midazolam produced sedation by “inhibiting GABA” from attaching to GABA receptors, not by promot ing GABA’s sedative effects, Thus, when
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Justice Sotomayor
| 2,015 | 24 |
second_dissenting
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Glossip v. Gross
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https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
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receptors, not by promot ing GABA’s sedative effects, Thus, when asked about Dr. Lubarsky’s description of the ceiling effect, Dr. Evans characterized the phenomenon as stemming from “the competitive nature of substances trying to attach to GABA receptors.” Dr. Evans cited no scholarly research in support of his opinions. Instead, he appeared to rely primarily on two sources: the Web site www.drugs.com, and a “Material Safety Data Sheet” produced by a midazolam manufacturer. See Both simply contained general infor mation that covered the experts’ areas of agreement. Cite as: 576 U. S. 9 SOTOMAYOR, J., dissenting D The District Court denied petitioners’ motion for a preliminary injunction. It began by making a series of factual findings regarding the characteristics of midazo lam and its use in Oklahoma’s execution protocol. Most relevant here, the District Court found that “[t]he proper administration of 500 milligrams of midazolam would make it a virtual certainty that an individual will be at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from the application of the second and third drugs.” Respecting petition ers’ contention that there is a “ceiling effect which pre vents an increase in dosage from having a corresponding incremental effect on anesthetic depth,” the District Court concluded: “Dr. Evans testified persuasively that whatever the ceiling effect of midazolam may be with respect to anesthesia, which takes effect at the spinal cord level, there is no ceiling effect with respect to the ability of a 500 milligram dose of midazolam to effectively para lyze the brain, a phenomenon which is not anesthesia but does have the effect of shutting down respiration and eliminating the individual’s awareness of pain.” Having made these findings, the District Court held that petitioners had shown no likelihood of success on the merits of their Eighth Amendment claim for two inde pendent reasons. First, it determined that petitioners had “failed to establish that proceeding with [their] execu tion[s] on the basis of the revised protocol presents ‘an objectively intolerable risk of harm.’ ” Sec ond, the District Court held that petitioners were unlikely to prevail because they had not identified any “ ‘known and available alternative’ ” means by which they could be executed—a requirement it understood to impose. 10 GLOSSIP v. GROSS SOTOMAYOR, J., dissenting The District Court concluded that the State “ha[d] affirmatively shown that sodium thiopental and pentobarbital, the only alternatives to which the [petition ers] have even alluded, are not available to the [State].” The Court of Appeals for the Tenth Circuit affirmed. It, like the District Court, held that petitioners
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Justice Sotomayor
| 2,015 | 24 |
second_dissenting
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Glossip v. Gross
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https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
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Circuit affirmed. It, like the District Court, held that petitioners were unlikely to prevail on the merits because they had failed to prove the existence of “ ‘known and available alternatives.’ ” “In any event,” the court continued, it was unable to conclude that the District Court’s factual findings had been clearly erroneous, and thus petitioners had also “failed to estab lish that the use of midazolam in their executions creates a demonstrated risk of severe pain.” Petitioners and Charles filed a petition for certiorari and an application to stay their executions. The Court denied the stay application, and Charles was executed on January 15, See 574 U. S. (SOTOMAYOR, J., dissenting from denial of certiorari). The Court subsequently granted certiorari and, at the request of the State, stayed petition ers’ pending executions. II I begin with the second of the Court’s two holdings: that the District Court properly found that petitioners did not demonstrate a likelihood of showing that Oklahoma’s execution protocol poses an unconstitutional risk of pain. In reaching this conclusion, the Court sweeps aside sub stantial evidence showing that, while midazolam may be able to induce unconsciousness, it cannot be utilized to maintain unconsciousness in the face of agonizing stimuli. Instead, like the District Court, the Court finds comfort in Dr. Evans’ wholly unsupported claims that 500 milligrams of midazolam will “paralyz[e] the brain.” In so holding, Cite as: 576 U. S. 11 SOTOMAYOR, J., dissenting the Court disregards an objectively intolerable risk of severe pain. A Like the Court, I would review for clear error the Dis trict Court’s finding that 500 milligrams of midazolam will render someone sufficiently unconscious “ ‘to resist the noxious stimuli which could occur from the application of the second and third drugs.’ ” Ante, at 18–19 (quoting App. 77). Unlike the Court, however, I would do so without abdicating our duty to examine critically the factual predi cates for the District Court’s finding—namely, Dr. Evans’ testimony that midazolam has a “ceiling effect” only “at the spinal cord level,” and that a “500 milligram dose of midazolam” can therefore “effectively paralyze the brain.” To be sure, as the Court observes, such scien tific testimony may at times lie at the boundaries of fed eral courts’ expertise. See ante, at 17–18. But just because a purported expert says something does not make it so. Especially when important constitutional rights are at stake, federal district courts must carefully evaluate the premises and evidence on which scientific conclusions are based, and appellate courts must ensure that the courts below have in fact carefully considered
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Justice Sotomayor
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second_dissenting
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Glossip v. Gross
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https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
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ensure that the courts below have in fact carefully considered all the evidence presented. Clear error exists “when although there is evidence to support” a finding, “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., Here, given the numerous flaws in Dr. Evans’ testimony, there can be little doubt that the District Court clearly erred in relying on it. To begin, Dr. Evans identified no scientific literature to support his opinion regarding midazolam’s properties at higher-than-normal doses. Apart from a Material Safety Data Sheet that was relevant only insofar as it suggests 12 GLOSSIP v. GROSS SOTOMAYOR, J., dissenting that a low dose of midazolam may occasionally be toxic, see ante, at 27—an issue I discuss further below—Dr. Evans’ testimony seems to have been based on the Web site www.drugs.com. The Court may be right that “peti tioners do not identify any incorrect statements from drugs.com on which Dr. Evans relied.” Ante, at 27. But that is because there were no statements from drugs.com that supported the critically disputed aspects of Dr. Evans’ opinion. If anything, the Web site supported petitioners’ contentions, as it expressly cautioned that midazolam “[s]hould not be used alone for maintenance of anesthe sia,” App. H to Pet. for Cert. 61, and contained no warn ing that an excessive dose of midazolam could “paralyze the brain,” see at 6528–6529. Most importantly, nothing from drugs.com—or, for that matter, any other source in the record—corroborated Dr. Evans’ key testimony that midazolam’s ceiling effect is limited to the spinal cord and does not pertain to the brain. Indeed, the State appears to have disavowed Dr. Evans’ spinal-cord theory, refraining from even mention ing it in its brief despite the fact that the District Court expressly relied on this testimony as the basis for finding that larger doses of midazolam will have greater anesthetic effects. App. 78. The Court likewise assiduously avoids defending this theory. That is likely because this aspect of Dr. Evans’ testi- mony was not just unsupported, but was directly refuted by the studies and articles cited by Drs. Lubarsky and Sasich. Both of these experts relied on academic texts describing benzodiazepines’ ceiling effect and explaining why it pre vents these drugs from rendering a person completely insensate. See Stoelting & Hillier 141, 144 (describing midazolam’s ceiling effect and contrasting the drug with barbiturates); Saari 244 (observing that “abolishment of perception of environmental stimuli cannot usually be generated”). One study further made clear that the ceiling Cite as:
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Justice Sotomayor
| 2,015 | 24 |
second_dissenting
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Glossip v. Gross
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https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
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One study further made clear that the ceiling Cite as: 576 U. S. 13 SOTOMAYOR, J., dissenting effect is apparent in the brain. See These scientific sources also appear to demonstrate that Dr. Evans’ spinal-cord theory—i.e., that midazolam’s ceiling effect is limited to the spinal cord—was premised on a basic misunderstanding of midazolam’s mechanism of action. I say “appear” not because the sources themselves are unclear about how midazolam operates: They plainly state that midazolam functions by promoting GABA’s inhibitory effects on the central nervous system. See, e.g., Stoelting & Hillier 140. Instead, I use “appear” because discerning the rationale underlying Dr. Evans’ testimony is difficult. His spinal-cord theory might, however, be explained at least in part by his apparent belief that rather than promoting GABA’s inhibitory effects, midazolam produces sedation by “compet[ing]” with GABA and thus “inhibit[ing]” GABA’s effect. App. 312–313.2 Regardless, I need not delve too deeply into Dr. Evans’ alternative scientific reality. It suffices to say that to the extent that Dr. Evans’ testimony was based on his understanding of the source of midazolam’s pharmacological properties, that understanding was wrong. —————— 2 The Court disputes this characterization of Dr. Evans’ testimony, insisting that Dr. Evans accurately described midazolam’s properties in the written report he submitted prior to the hearing below, and sug gesting that petitioners’ experts would have “dispute[d] the accuracy” of this explanation were it in fact wrong. Ante, at 25. But Dr. Evans’ written report simply said midazolam “produces different levels of central nervous system (CNS) depression through binding to [GABA] receptors.” App. 293. That much is true. Only after Drs. Sasich and Lubarsky testified did Dr. Evans further claim that midazolam pro duced CNS depression by binding to GABA receptors and thereby preventing GABA itself from binding to those receptors—which is where he went wrong. The Court’s further observation that Dr. Lubarsky also used a variant on the word “inhibiting” in his testimony—in saying that GABA’s “ ‘inhibition of brain activity is accentuated by midazolam,’ ” ante, at 25 (quoting App. 232)—is completely nonresponsive. “Inhibit ing” is a perfectly good word; the problem here is the manner in which Dr. Evans used it in a sentence. 14 GLOSSIP v. GROSS SOTOMAYOR, J., dissenting These inconsistencies and inaccuracies go to the very heart of Dr. Evans’ expert opinion, as they were the key components of his professed belief that one can extrapolate from what is known about midazolam’s effect at low doses to conclude that the drug would “paralyz[e] the brain” at Oklahoma’s planned dose. All three experts recognized that there had been no scientific
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Justice Sotomayor
| 2,015 | 24 |
second_dissenting
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Glossip v. Gross
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https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
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All three experts recognized that there had been no scientific testing on the use of this amount of midazolam in conjunction with these particular lethal injection drugs. See ante, at 19; App. 176 243–244 (Sasich), 327 For this rea son, as the Court correctly observes, “extrapolation was reasonable.” Ante, at But simply because extrapola tion may be reasonable or even required does not mean that every conceivable method of extrapolation can be credited, or that all estimates stemming from purported extrapolation are worthy of belief. Dr. Evans’ view was that because 40 milligrams of midazolam could be used to induce unconsciousness, App. 294, and because more drug will generally produce more effect, a significantly larger dose of 500 milligrams would not just induce unconscious ness but allow for its maintenance in the face of extremely painful stimuli, and ultimately even cause death itself. In his words: “[A]s you increase the dose of midazolam, it’s a linear effect, so you’re going to continue to get an impact from higher doses of the drug.” If, however, there is a ceiling with respect to midazolam’s effect on the brain—as petitioners’ experts established there is—then such simplistic logic is not viable. In this context, more is not necessarily better, and Dr. Evans was plainly wrong to presume it would be. If Dr. Evans had any other basis for the “extrapolation” that led him to conclude 500 milligrams of midazolam would “paralyz[e] the brain,” it was even fur ther divorced from scientific evidence and logic. Having emphasized that midazolam had been known to cause approximately 80 deaths, Dr. Evans asserted that his Cite as: 576 U. S. 15 SOTOMAYOR, J., dissenting opinion regarding the efficacy of Oklahoma’s planned use of the drug represented “essentially an extrapolation from a toxic effect.” ; see at 308. Thus, Dr. Evans appeared to believe—and again, I say “appeared” because his rationale is not clear—that because midazolam caused some deaths, it would neces sarily cause complete unconsciousness and then death at especially high doses. But Dr. Evans also thought, and Dr. Lubarsky confirmed, that these midazolam fatalities had occurred at very low doses—well below what any expert said would produce unconsciousness. See at 7, 308. These deaths thus seem to represent the rare, unfortunate side effects that one would expect to see with any drug at normal therapeutic doses; they provide no indication of the effect one would expect midazolam to have on the brain at substantially higher doses. Deaths occur with almost any product. One might as well say that because some people occasionally die from eating one peanut,
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Justice Sotomayor
| 2,015 | 24 |
second_dissenting
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Glossip v. Gross
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https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
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that because some people occasionally die from eating one peanut, one hundred peanuts would necessarily induce a coma and death in anyone.3 In sum, then, Dr. Evans’ conclusions were entirely unsupported by any study or third-party source, contra dicted by the extrinsic evidence proffered by petitioners, inconsistent with the scientific understanding of midazo lam’s properties, and apparently premised on basic logical errors. Given these glaring flaws, the District Court’s —————— 3 For all the reasons discussed in Part II–B, infra, and contrary to the Court’s claim, see ante, at n. 4, there are good reasons to doubt that 500 milligrams of midazolam will, in light of the ceiling effect, inevita bly kill someone. The closest the record comes to providing support for this contention is the fleeting mention in the FDA-approved product label that one of the possible consequences of midazolam overdosage is coma. See ante, at 21, n. 5. Moreover, even if this amount of the drug could kill some people in “under an hour,” ante, at n. 4, that would not necessarily mean that the condemned would be insensate during the approximately 10 minutes it takes for the paralytic and potassium chloride to do their work. 16 GLOSSIP v. GROSS SOTOMAYOR, J., dissenting acceptance of Dr. Evans’ claim that 500 milligrams of midazolam would “paralyz[e] the brain” cannot be credited. This is not a case “[w]here there are two permissible views of the evidence,” and the District Court chose one; rather, it is one where the trial judge credited “one of two or more witnesses” even though that witness failed to tell “a coherent and facially plausible story that is not contra dicted by extrinsic evidence.” In other words, this is a case in which the District Court clearly erred. See B Setting aside the District Court’s erroneous factual finding that 500 milligrams of midazolam will necessarily “paralyze the brain,” the question is whether the Court is nevertheless correct to hold that petitioners failed to demonstrate that the use of midazolam poses an “objec tively intolerable risk” of severe pain. See 553 U.S., at 50 (internal quotation marks omit ted). I would hold that they made this showing. That is because, in stark contrast to Dr. Evans, petitioners’ ex perts were able to point to objective evidence indicating that midazolam cannot serve as an effective anesthetic that “render[s] a person insensate to pain caused by the second and third [lethal injection] drugs.” Ante, at 23. As observed above, these experts cited multiple sources supporting the existence of midazolam’s ceiling effect. That evidence alone provides ample reason to doubt
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Justice Sotomayor
| 2,015 | 24 |
second_dissenting
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Glossip v. Gross
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https://www.courtlistener.com/opinion/2812588/glossip-v-gross/
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ceiling effect. That evidence alone provides ample reason to doubt mid azolam’s efficacy. Again, to prevail on their claim, peti tioners need only establish an intolerable risk of pain, not a certainty. See Here, the State is attempting to use midazolam to produce an effect the drug has never previously been demonstrated to produce, and despite studies indicating that at some point increasing the dose will not actually increase the drug’s effect. The State is thus proceeding in the face of a very real risk that Cite as: 576 U. S. 17 SOTOMAYOR, J., dissenting the drug will not work in the manner it claims. Moreover, and perhaps more importantly, the record provides good reason to think this risk is substantial. The Court insists that petitioners failed to provide “probative evidence” as to whether “midazolam’s ceiling effect occurs below the level of a 500-milligram dose and at a point at which the drug does not have the effect of rendering a person insensate to pain.” Ante, at 23. It emphasizes that Dr. Lubarsky was unable to say “at what dose the ceiling effect occurs,” and could only estimate that it was “ ‘[p]robably after about 40 to 50 milligrams.’ ” Ante, at 23 (quoting App. 225). But the precise dose at which midazolam reaches its ceiling effect is irrelevant if there is no dose at which the drug can, in the Court’s words, render a person “insensate to pain.” Ante, at 23. On this critical point, Dr. Lubarsky was quite clear.4 He explained that the drug “does not work to produce” a “lack of consciousness as noxious stim uli are applied,” and is “not sufficient to produce a surgical plane of anesthesia in human beings.” App. 4. He also —————— 4 Dr. Sasich, as the Court emphasizes, was perhaps more hesitant to reach definitive conclusions, see ante, at 19–21, and n. 5, 23–24, but the statements highlighted by the Court largely reflect his (truthful) observations that no testing has been done at doses of 500 milligrams, and his inability to pinpoint the precise dose at which midazolam's ceiling effect might be reached. Dr. Sasich did not, as the Court sug gests, claim that midazolam’s ceiling effect would be reached only after a person became fully insensate to pain. Ante, at 24. What Dr. Sasich actually said was: “As the dose increases, the benzodiazepines are expected to produce sedation, amnesia, and finally lack of response to stimuli such as pain (unconsciousness).” App. 243. In context, it is clear that Dr. Sasich was simply explaining that a drug like midazolam can be
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