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Justice Scalia | 2,011 | 9 | dissenting | Brown v. Plata | https://www.courtlistener.com/opinion/217287/brown-v-plata/ | an entire system is unconstitutional because it may produce constitutional violations. The drawbacks of structural injunctions have been described at great length elsewhere. See, e.g., Lewis, at 385–393 (1996) (THOMAS, J., concurring); Mis (THOMAS, J., concurring); Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 1983 Duke L. J. 1265. This case illustrates one of their most Cite as: 563 U. S. (2011) 7 SCALIA, J., dissenting pernicious aspects: that they force judges to engage in a form of factfinding-as-policymaking that is outside the traditional judicial role. The factfinding judges tradition ally engage in involves the determination of past or pre sent facts based (except for a limited set of materials of which courts may take “judicial notice”) exclusively upon a closed trial record. That is one reason why a district judge’s factual findings are entitled to plain-error review: because having viewed the trial first hand he is in a better position to evaluate the evidence than a judge reviewing a cold record. In a very limited category of cases, judges have also traditionally been called upon to make some predictive judgments: which custody will best serve the interests of the child, for example, or whether a particular one-shot injunction will remedy the plaintiff’s grievance. When a judge manages a structural injunction, however, he will inevitably be required to make very broad empiri cal predictions necessarily based in large part upon policy views—the sort of predictions regularly made by legis lators and executive officials, but inappropriate for the Third Branch. This feature of structural injunctions is superbly illus trated by the District Court’s proceeding concerning the decrowding order’s effect on public safety. The PLRA requires that, before granting “[p]rospective relief in [a] civil action with respect to prison conditions,” a court must “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” 18 U.S. C. Here, the Dis trict Court discharged that requirement by making the “factual finding” that “the state has available methods by which it could readily reduce the prison population to 137.5% design capacity or less without an adverse impact on public safety or the operation of the criminal justice system.” Juris. Statement App., O. T. 2009, No. 09-416, p. 253a. It found the evidence “clear” that prison overcrowd 8 BROWN v. PLATA SCALIA, J., dissenting ing would “perpetuate a criminogenic prison system that itself threatens public safety,” at 186a, and volun teered its opinion that “[t]he population could be reduced even further with the reform of California’s antiquated sentencing policies and other related changes |
Justice Scalia | 2,011 | 9 | dissenting | Brown v. Plata | https://www.courtlistener.com/opinion/217287/brown-v-plata/ | reform of California’s antiquated sentencing policies and other related changes to the laws.” at 253a. It “reject[ed] the testimony that inmates released early from prison would commit additional new crimes,” at 200a, finding that “shortening the length of stay through earned credits would give inmates incentives to participate in programming designed to lower recidi vism,” at 204a, and that “slowing the flow of technical parole violators to prison, thereby substantially reducing the churning of parolees, would by itself improve both the prison and parole systems, and public safety.” at 209a. It found that “the diversion of offenders to commu nity correctional programs has significant beneficial ef fects on public safety,” at 214a, and that “additional rehabilitative programming would result in a significant population reduction while improving public safety,” at 216a. The District Court cast these predictions (and the Court today accepts them) as “factual findings,” made in reliance on the procession of expert witnesses that testified at trial. Because these “findings” have support in the record, it is difficult to reverse them under a plain-error standard of review. Ante, at 38. And given that the District Court devoted nearly 10 days of trial and 70 pages of its opinion to this issue, it is difficult to dispute that the District Court has discharged its statutory obligation to give “sub stantial weight to any adverse impact on public safety.” But the idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful. Of course they were relying largely on their own beliefs about penology and recidivism. And of course different district judges, of different policy views, would have “found” that rehabilitation would not work Cite as: 563 U. S. (2011) 9 SCALIA, J., dissenting and that releasing prisoners would increase the crime rate. I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism. Yet, because they have been branded “factual findings” entitled to deferential review, the policy preferences of three District Judges now govern the operation of California’s penal system. It is important to recognize that the dressing-up of pol icy judgments as factual findings is not an error pecu- |
Justice Scalia | 2,011 | 9 | dissenting | Brown v. Plata | https://www.courtlistener.com/opinion/217287/brown-v-plata/ | icy judgments as factual findings is not an error pecu- liar to this case. It is an unavoidable concomitant of insti tutional-reform litigation. When a district court issues an injunction, it must make a factual assessment of the an ticipated consequences of the injunction. And when the injunction undertakes to restructure a social institution, assessing the factual consequences of the injunction is necessarily the sort of predictive judgment that our sys tem of government allocates to other government officials. But structural injunctions do not simply invite judges to indulge policy preferences. They invite judges to indulge incompetent policy preferences. Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions. Thus, in the proceeding below the District Court determined that constitutionally adequate medical services could be provided if the prison population was 137.5% of design capacity. This was an empirical finding it was utterly unqualified to make. Admittedly, the court did not generate that number entirely on its own; it heard the numbers 130% and 145% bandied about by various 10 BROWN v. PLATA SCALIA, J., dissenting witnesses and decided to split the difference. But the ability of judges to spit back or even average-out numbers spoon-fed to them by expert witnesses does not render them competent decisionmakers in areas in which they are otherwise unqualified. The District Court also relied heavily on the views of the Receiver and Special Master, and those reports play a starring role in the Court’s opinion today. The Court notes that “the Receiver and the Special Master filed reports stating that overcrowding posed a significant barrier to their efforts” and deems those reports “persuasive evi dence that, absent a reduction in overcrowding, any rem edy might prove unattainable and would at the very least require vast expenditures of resources by the State.” Ante, at 31–32. The use of these reports is even less consonant with the traditional judicial role than the District Court’s reliance on the expert testimony at trial. The latter, even when, as here, it is largely the expression of policy judg ments, is at least subject to cross-examination. Relying on the un-cross-examined findings of an investigator, sent into the field to prepare a factual report and give sugges tions on how to improve the prison system, bears no re semblance to ordinary judicial decisionmaking. It is true that the PLRA contemplates the appointment of Special Masters (although not Receivers), but Special Masters are authorized only to “conduct hearings and prepare pro posed findings of fact” and “assist in the development |
Justice Scalia | 2,011 | 9 | dissenting | Brown v. Plata | https://www.courtlistener.com/opinion/217287/brown-v-plata/ | pro posed findings of fact” and “assist in the development of remedial plans,” 18 U.S. C. This does not authorize them to make factual findings (unconnected to hearings) that are given seemingly wholesale deference. Neither the Receiver nor the Special Master was selected by California to run its prisons, and the fact that they may be experts in the field of prison reform does not justify the judicial imposition of their perspectives on the state. Cite as: 563 U. S. (2011) 11 SCALIA, J., dissenting C My general concerns associated with judges’ running social institutions are magnified when they run prison systems, and doubly magnified when they force prison officials to release convicted criminals. As we have previ ously recognized: “[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and re- form. [T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Running a prison is an inordinately difficult under taking that requires expertise, planning, and the com mitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal sys tem is involved, federal courts have additional reason to accord deference to the appropriate prison authorities.” 84–85 (1987) (internal quotation marks omitted). These principles apply doubly to a prisoner-release order. As the author of today’s opinion explained earlier this Term, granting a writ of habeas corpus “ ‘disturbs the State’s significant interest in repose for concluded litiga tion, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.’ ” v. Richter, 562 U. S. (2011) (slip op., at 13) (KENNEDY, J., dissenting)). Recognizing that habeas relief must be granted sparingly, we have reversed the Ninth Circuit’s erroneous grant of habeas relief to individual 12 BROWN v. PLATA SCALIA, J., dissenting California prisoners four times this Term alone. Cullen v. Pinholster, 563 U. S. (2011); Felkner v. Jackson, 562 U. S. (2011) (per curiam); Swarthout v. U. S. (2011) (per curiam); And yet here, the Court affirms an order granting the functional equivalent of 46,000 writs of habeas corpus, based on its paean to courts’ “substantial flexibility when making these judgments.” Ante, at 41. It seems that the Court’s respect for state sovereignty has vanished in the case where |
Justice Scalia | 2,011 | 9 | dissenting | Brown v. Plata | https://www.courtlistener.com/opinion/217287/brown-v-plata/ | respect for state sovereignty has vanished in the case where it most matters. II The Court’s opinion includes a bizarre coda noting that “[t]he State may wish to move for modification of the three-judge court’s order to extend the deadline for the required reduction to five years.” Ante, at 46–47. The Dis trict Court, it says, “may grant such a request provided that the State satisfies necessary and appropriate precon ditions designed to ensure the measures are taken to implement the plan without undue delay”; and it gives vague suggestions of what these preconditions “may in clude,” such as “interim benchmarks.” Ante, at 47. It also invites the District Court to “consider whether it is appro priate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reof fend,” and informs the State that it “should devise systems to select those prisoners least likely to jeopardize public safety.” The legal effect of this passage is unclear—I suspect intentionally so. If it is nothing but a polite reminder to the State and to the District Court that the injunction is subject to modification, then it is entirely unnecessary. As both the State and the District Court are undoubtedly aware, a party is always entitled to move to modify an equitable decree, and the PLRA contains an express provi sion authorizing District Courts to modify or terminate Cite as: 563 U. S. (2011) 13 SCALIA, J., dissenting prison injunctions. See 18 U.S. C. I suspect, however, that this passage is a warning shot across the bow, telling the District Court that it had better modify the injunction if the State requests what we invite it to request. Such a warning, if successful, would achieve the benefit of a marginal reduction in the inevitable mur ders, robberies, and rapes to be committed by the released inmates. But it would achieve that at the expense of in tellectual bankruptcy, as the Court’s “warning” is en- tirely alien to ordinary principles of appellate review of injunctions. When a party moves for modification of an injunction, the district court is entitled to rule on that motion first, subject to review for abuse of discretion if it declines to modify the order. Horne v. Flores, 557 U. S. (2009) (slip op., at 10, 20). Moreover, when a district court enters a new decree with new benchmarks, the selection of those benchmarks is also reviewed under a deferential, abuse-of-discretion standard of review—a point the Court appears to recognize. Ante, at 45. Appel late courts are not supposed to “affirm” |
Justice Scalia | 2,011 | 9 | dissenting | Brown v. Plata | https://www.courtlistener.com/opinion/217287/brown-v-plata/ | at 45. Appel late courts are not supposed to “affirm” injunctions while preemptively noting that the State “may” request, and the District Court “may” grant, a request to extend the State’s deadline to release prisoners by three years based on some suggestions on what appropriate preconditions for such a modification “may” include. Of course what is really happening here is that the Court, overcome by common sense, disapproves of the results reached by the District Court, but cannot remedy them (it thinks) by applying ordinary standards of appel late review. It has therefore selected a solution unknown in our legal system: A deliberately ambiguous set of sug gestions on how to modify the injunction, just deferential enough so that it can say with a straight face that it is “affirming,” just stern enough to put the District Court on notice that it will likely get reversed if it does not follow them. In doing this, the Court has aggrandized itself, 14 BROWN v. PLATA SCALIA, J., dissenting grasping authority that appellate courts are not supposed to have, and using it to enact a compromise solution with no legal basis other than the Court’s say-so. That we are driven to engage in these extralegal activities should be a sign that the entire project of permitting district courts to run prison systems is misbegotten. But perhaps I am being too unkind. The Court, or at least a majority of the Court’s majority, must be aware that the judges of the District Court are likely to call its bluff, since they know full well it cannot possibly be an abuse of discretion to refuse to accept the State’s proposed modifications in an injunction that has just been approved (affirmed) in its present form. An injunction, after all, does not have to be perfect; only good enough for govern ment work, which the Court today says this is. So perhaps the coda is nothing more than a ceremonial washing of the hands—making it clear for all to see, that if the terrible things sure to happen as a consequence of this outrageous order do happen, they will be none of this Court’s respon sibility. After all, did we not want, and indeed even sug gest, something better? III In view of the incoherence of the Eighth Amendment claim at the core of this case, the nonjudicial features of institutional reform litigation that this case exemplifies, and the unique concerns associated with mass prisoner releases, I do not believe this Court can affirm this injunc tion. I will state my approach briefly: In my view, |
Justice Scalia | 2,011 | 9 | dissenting | Brown v. Plata | https://www.courtlistener.com/opinion/217287/brown-v-plata/ | tion. I will state my approach briefly: In my view, a court may not order a prisoner’s release unless it determines that the prisoner is suffering from a violation of his consti tutional rights, and that his release, and no other relief, will remedy that violation. Thus, if the court determines that a particular prisoner is being denied constitutionally required medical treatment, and the release of that pris oner (and no other remedy) would enable him to obtain Cite as: 563 U. S. (2011) 15 SCALIA, J., dissenting medical treatment, then the court can order his release; but a court may not order the release of prisoners who have suffered no violations of their constitutional rights, merely to make it less likely that that will happen to them in the future. This view follows from the PLRA’s text that I discussed at the outset, 18 U.S. C. “[N]arrowly drawn” means that the relief applies only to the “particu lar [prisoner] or [prisoners]” whose constitutional rights are violated; “extends no further than necessary” means that prisoners whose rights are not violated will not obtain relief; and “least intrusive means necessary to correct the violation of the Federal right” means that no other relief is available.* I acknowledge that this reading of the PLRA would se verely limit the circumstances under which a court could issue structural injunctions to remedy allegedly unconsti tutional prison conditions, although it would not eliminate them entirely. If, for instance, a class representing all prisoners in a particular institution alleged that the tem perature in their cells was so cold as to violate the Eighth Amendment, or that they were deprived of all exercise time, a court could enter a prisonwide injunction ordering that the temperature be raised or exercise time be pro vided. Still, my approach may invite the objection that the PLRA appears to contemplate structural injunctions in general and mass prisoner-release orders in particular. The statute requires courts to “give substantial weight to —————— * Any doubt on this last score, at least as far as prisoner-release or ders are concerned, is eliminated by of the statute, which provides that to enter a prisoner-release order the court must find “by clear and convincing evidence that— (i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” 16 BROWN v. PLATA SCALIA, J., dissenting any adverse impact on public safety or the operation of a criminal justice system caused by the relief” and author izes them to appoint Special Masters, |
Justice Scalia | 2,011 | 9 | dissenting | Brown v. Plata | https://www.courtlistener.com/opinion/217287/brown-v-plata/ | the relief” and author izes them to appoint Special Masters, (a)(1)(A), (f), provisions that seem to presuppose the possibility of a structural remedy. It also sets forth criteria under which courts may issue orders that have “the purpose or effect of reducing or limiting the prisoner population,” (g)(4). I do not believe that objection carries the day. In addi tion to imposing numerous limitations on the ability of district courts to order injunctive relief with respect to prison conditions, the PLRA states that “[n]othing in this section shall be construed to repeal or detract from otherwise applicable limitations on the remedial powers of the courts.” (a)(1)(C). The PLRA is therefore best understood as an attempt to constrain the discretion of courts issuing structural injunctions—not as a mandate for their use. For the reasons I have outlined, structural injunctions, especially prisoner-release orders, raise grave separation-of-powers concerns and veer significantly from the historical role and institutional capability of courts. It is appropriate to construe the PLRA so as to constrain courts from entering injunctive relief that would exceed that role and capability. * * * The District Court’s order that California release 46,000 prisoners extends “further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs” who have been denied needed medical care. 18 U.S. C. It is accordingly forbidden by the PLRA—besides defying all sound conception of the proper role of judges. Cite as: 563 U. S. (2011) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 09–1233 EDMUND G. BROWN, JR., GOVERNOR OF CAL- IFORNIA, ET AL., APPELLANTS v. MARCIANO PLATA ET AL. |
Justice Rehnquist | 1,977 | 19 | majority | Vendo Co. v. Lektro-Vend Corp. | https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/ | I After nine years of litigation in the Illinois state courts, the Supreme of Illinois affirmed a judgment in favor of petitioner and against respondents in the amount of $7,363,500. Shortly afterwards the United States District for the Northern District of Illinois enjoined, at the behest of respondents, state proceedings to collect the judgment. The order of the United States District was affirmed by the of Appeals for the Seventh Circuit, and we granted certiorari to consider the important question of the relationship between state and federal courts which such an injunction raises. II The Illinois state-court litigation arose out of commercial dealings between petitioner and respondents. In 15 petitioner Vendo a vending machine manufacturer located in Kansas City, Mo., acquired most of the assets of Stoner Manufacturing, which was thereupon reorganized as respondent Stoner Investments, Inc. Respondent Harry H. Stoner and members of his family owned all of the stock of Stoner Manufacturing, and that of Stoner Investments. Stoner Manufacturing had engaged in the manufacture of vending machines which dispensed candy, and as a part of the acquisition agreement it undertook to refrain from owning or managing any business engaged in the manufacture or sale of vending machines. Pursuant to an employment contract, respondent Harry Stoner was employed by petitioner as a consultant for five years at a salary of $50,000, and he agreed that during the term of his contract and for five years thereafter he would not *627 compete with petitioner in the business of manufacturing vending machines. In 165, petitioner sued respondents[1] in state court for breach of these noncompetition covenants. Shortly thereafter, respondents sued petitioner in the United States District for the Northern District of Illinois, complaining that petitioner had violated 1 and 2 of the Sherman Act, 15 U.S. C. 1 and 2. Respondents alleged that the covenants against competition were unreasonable restraints of trade because they were not reasonably limited as to time and place, and that the purpose of petitioner's state-court lawsuit was to "unlawfully harass" respondents and to "eliminate the competition" of respondents. App. 22, 25. Respondents set up this federal antitrust claim as an affirmative defense to petitioner's state-court suit. However, prior to any ruling by the state courts on the merits of this defense, respondents voluntarily withdrew it. The state-court litigation ran its protracted course,[2] including *628 two trials, two appeals to the State Appellate and an appeal to the Supreme of Illinois. In September 174, the latter court affirmed a judgment in favor of petitioner and against respondents in an amount exceeding $7 million. Vendo During the entire |
Justice Rehnquist | 1,977 | 19 | majority | Vendo Co. v. Lektro-Vend Corp. | https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/ | in an amount exceeding $7 million. Vendo During the entire nine-year course of the state-court litigation, respondents' antitrust suit in the District was, in the words of the of Appeals, allowed to lie "dormant." But the day after a Circuit Justice of this *62 had denied a stay of execution pending petition for certiorari to the Supreme of Illinois, respondents moved in the District for a preliminary injunction against collection of the Illinois judgment. The District in due course granted this motion. That court found that it "appear[ed] that the [noncompetition] covenants were overly broad," and that there was "persuasive evidence that Vendo's activities in its litigation against the Stoner interests in Illinois state court were not a genuine attempt to use the adjudicative process legitimately." Recognizing that there is a "paucity of authority" on the issue, the District held that the injunctive-relief provision of the Clayton Act, 15 U.S. C. 26, constitutes an express exception to 28 U.S. C. 2283, the "Anti-Injunction Act." The court further found that collection efforts would eliminate two of the three plaintiffs and thus that the injunction was necessary to protect the jurisdiction of the court, within the meaning of that exception to 2283. The of Appeals affirmed, finding that 16 of the Clayton Act was an express exception to 2283. The court did not reach the issue of whether an injunction was necessary to protect the jurisdiction of the District In this petitioner renews its contention that principles of equity, comity, and federalism, as well as the Anti-Injunction Act, barred the issuance of the injunction by the District Petitioner also asserts in its brief on the merits that the United States District was required to give full faith and credit to the judgment entered by the Illinois courts.[4] Because we agree with petitioner that the District 's order violated the Anti-Injunction Act, we reach none of its other contentions. *630 III The Anti-Injunction Act, 28 U.S. C. 2283, provides: "A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." The origins and development of the present Act, and of the statutes which preceded it, have been amply described in our prior opinions and need not be restated here. The most recent of these opinions are and Atlantic Coast Line R. Suffice it to say that the Act is an absolute prohibition against any injunction of any state-court proceedings, unless the injunction falls |
Justice Rehnquist | 1,977 | 19 | majority | Vendo Co. v. Lektro-Vend Corp. | https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/ | any injunction of any state-court proceedings, unless the injunction falls within one of the three specifically defined exceptions in the Act. The Act's purpose is to forestall the inevitable friction between the state and federal courts that ensues from the injunction of state judicial proceedings by a federal court. Oklahoma Packing Respondents' principal contention is that, as the of Appeals held, 16 of the Clayton Act, which authorizes a private action to redress violations of the antitrust laws, comes within the "expressly authorized" exception to 2283. We test this proposition mindful of our admonition that "[a]ny doubts as to the propriety of a federal injunction against state court proceedings should be resolved in favor of permitting the state courts to proceed in an orderly fashion to finally determine the controversy." Atlantic Coast Line R. at 27. This cautious approach is mandated by the "explicit wording of 2283" and the "fundamental principle of a dual system of *631 courts." We have no occasion to construe the section more broadly: "[It is] clear beyond cavil that the prohibition is not to be whittled away by judicial improvisation." Clothing v. Richman Bros. (155). Our inquiry, of course, begins with the language of 16 of the Clayton Act, which is the statute claimed to "expressly authorize" the injunction issued here. It provides, in pertinent part: "[A]ny person shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings." 15 U.S. C. 26. On its face, the language merely authorizes private injunctive relief for antitrust violations. Not only does the statute not mention 2283 or the enjoining of state-court proceedings, but the granting of injunctive relief under 16 is by the terms of that section limited to "the same conditions and principles" employed by courts of equity, and by "the rules governing such proceedings." In 173 the predecessor to 2283 was enacted specifically to limit the general equity powers of a federal court. 27 (124); Toucey v. New York Life Ins. (141). When 16 was enacted in 114 the bar of the Anti-Injunction Act had long constrained the equitable power of federal courts to issue injunctions. Thus, on its face, 16 is far from an express exception to the Anti-Injunction Act, and may be fairly read as virtually incorporating the |
Justice Rehnquist | 1,977 | 19 | majority | Vendo Co. v. Lektro-Vend Corp. | https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/ | Act, and may be fairly read as virtually incorporating the prohibitions *632 of the Anti-Injunction Act with restrictive language not found, for example, in 42 U.S. C. 183. See discussion of infra. Respondents rely, as did the of Appeals and the District on the following language from : ". [I]t is clear that, in order to qualify as an `expressly authorized' exception to the anti-injunction statute, an Act of Congress must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, that could be frustrated if the federal court were not empowered to enjoin a state court proceeding. This is not to say that in order to come within the exception an Act of Congress must, on its face and in every one of its provisions, be totally incompatible with the prohibition of the anti-injunction statute. The test, rather, is whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by the stay of a state court proceeding." -. (Emphasis added, footnote omitted.) But we think it is clear that neither this language from nor 's ratio decidendi supports the result contended for by respondents. The private action for damages conferred by the Clayton Act is a "uniquely federal right or remedy," in that actions based upon it may be brought only in the federal courts. See General Investment v. Lake Shore & Mich. So. R. (122). It thus meets the first part of the test laid down in the language quoted from But that authorization for private actions does not meet the second part of the test; it is not an "Act of Congress [which] could be given its intended scope only by the stay of a state court proceeding," Crucial to our determination in that 42 U.S. C. *633 183 fulfilled this requirementbut wholly lacking herewas our recognition that one of the clear congressional concerns underlying the enactment of 183 was the possibility that state courts, as well as other branches of state government, might be used as instruments to deny citizens their rights under the Federal Constitution. This determination was based on our review of the legislative history of 183; similar review of the legislative history underlying 16 demonstrates that that section does not meet this aspect of the test. Section 183 on its face, of course, contains no reference to 2283, nor does it expressly authorize injunctions against state-court proceedings. But, as recognized, such language need not invariably be present in order for |
Justice Rehnquist | 1,977 | 19 | majority | Vendo Co. v. Lektro-Vend Corp. | https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/ | such language need not invariably be present in order for a statute to come within the "expressly authorized" exception if there exists sufficient evidence in the legislative history demonstrating that Congress recognized and intended the statute to authorize injunction of state-court proceedings. In Part IV of our opinion in we examined in extenso the purpose and legislative history underlying 183, originally 1 of the Civil Rights Act of 1871. We recounted in detail that statute's history which made it abundantly clear that by its enactment Congress demonstrated its direct and explicit concern to make the federal courts available to protect civil rights against unconstitutional actions of state courts. We summarized our conclusion in these words: "This legislative history makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts." *634 Thus, in absence of express language authorization for enjoining state-court proceedings in 183 actions was cured by the presence of relevant legislative history. In this case, however, neither the respondents nor the courts below have called to our attention any similar legislative history in connection with the enactment of 16 of the Clayton Act. It is not suggested that Congress was concerned with the possibility that state-court proceedings would be used to violate the Sherman or Clayton Acts. Indeed, it seems safe to say that of the many and varied anticompetitive schemes which 16 was intended to combat, Congress in no way focused upon a scheme using litigation in the state courts. The relevant legislative history of 16 simply suggests that in enacting 16 Congress was interested in extending the right to enjoin antitrust violations to private citizens.[5]*635 The critical aspects of the legislative history recounted in which led us to conclude that 183 was within the "expressly authorized" exception to 2283 are wholly absent from the relevant history of 16 of the Clayton Act. This void is not filled by other evidence of congressional authorization. Section 16 undoubtedly embodies congressional policy favoring private enforcement of the antitrust laws, and undoubtedly there exists a strong national interest in antitrust enforcement.[6] However, contrary to certain language in the opinion *636 of the District 403 F. Supp., the importance of the federal policy to be "protected" by the injunction is not the focus of the inquiry. Presumptively, all |
Justice Rehnquist | 1,977 | 19 | majority | Vendo Co. v. Lektro-Vend Corp. | https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/ | injunction is not the focus of the inquiry. Presumptively, all federal policies enacted into law by Congress are important, and there will undoubtedly arise particular situations in which a particular policy would be fostered by the granting of an injunction against a pending state-court action. If we were to accept respondents' contention that 16 could be given its "intended scope" only by allowing such injunctions, then 2283 would be completely eviscerated since the ultimate logic of this position can mean no less than that virtually all federal statutes[7] authorizing injunctive relief are exceptions to 2283. Certainly *637 all federal injunctive statutes are enacted to provide for the suspension of activities antithetical to the federal policies underlying the injunctive statute or related statutes. If the injunction would issue under the general rules of equity practicerequiring, inter alia, a showing of irreparable injurybut for the bar of 2283, then clearly 2283 in some sense may be viewed as frustrating or restricting federal policy since the activity inconsistent with the federal policy may not be enjoined because of 2283's bar.[8] Thus, were we to accede *638 to respondent's interpretation of the "intended scope" language, an exception to 2283 would always be found to be "necessary" to give the injunctive Act its full intended scope, and 2283 would place no additional limitation on the right *63 to enjoin state proceedings. The Anti-Injunction Act, a fixture in federal law since 173, would then be a virtual dead letter whenever the plaintiff seeks an injunction under a federal injunctive statute. Whether or not the state proceeding could be enjoined would rest solely upon the traditional principles of equity and comity. However, as we emphasized in the prohibitions of 2283 exist separate and apart from these traditional principles, and we cannot read the "intended scope" language as rendering this specific and longstanding statutory provision inoperative simply because important federal policies are fostered by the statute under which the injunction is sought. Congress itself has found that these policies, in the ordinary case, must give way to the policies underlying 2283. Given the clear prohibition of 2283, the courts will not sit to balance and weigh the importance of various federal policies in seeking to determine which are sufficiently important to override historical concepts of federalism underlying 2283; by the statutory scheme it has enacted, Congress has clearly reserved this judgment unto itself.[] *640 Our conclusion that the "importance," or the potential restriction in scope, of the federal injunction statute does not control for 2283 purposes is consistent with the analysis of those very few statutes which we |
Justice Rehnquist | 1,977 | 19 | majority | Vendo Co. v. Lektro-Vend Corp. | https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/ | with the analysis of those very few statutes which we have in the past held to be exceptions to the Anti-Injunction Act. See and nn. 12-16. The original version of the Anti-Injunction Act itself was amended in 1874 to allow federal courts to enjoin state-court proceedings which interfere with the administration of a federal bankruptcy proceeding. Rev. Stat. 720. The Interpleader Act of 126, 28 U.S. C. 2361, the Frazier-Lemke Act, 11 U.S. C. 203 (140 ed.), and the Federal Habeas Corpus Act, 28 U.S. C. 2251, while not directly referring to 2283, have nonetheless explicitly authorized injunctive relief against state-court proceedings. The Act of 1851 limiting liability of shipowners, 46 U.S. C. 185, provided that, after deposit of certain funds in the court by the shipowner, "all claims and proceedings against the owner with respect to the matter in question shall cease." The statutory procedures for removal of a case from state court to federal court provide that the removal acts as a stay of the state-court proceedings. 28 U.S. C. 1446 (e). By limiting the statutory exceptions of 2283 and its predecessors to these few instances, we have clearly recognized that the Act countenancing the federal injunction must necessarily *641 interact with, or focus upon, a state judicial proceeding.[10] Section 16 of the Clayton Act, which does not by its very essence contemplate or envision any necessary interaction with state judicial proceedings, is clearly not such an Act. IV Although the of Appeals did not reach the issue, the District found that, in addition to being "expressly authorized," the injunction was "necessary in aid of its jurisdiction," a separate exception to 2283. The rationale of the District was as follows: "The also holds that 2283 authorizes an injunction here because further collection efforts would eliminate two plaintiffs, Stoner Investments and Lektro-Vend Corp., as parties under the case or controversy provisions of Article III since they would necessarily be controlled by Vendo. Vendo's offer to place the Stoner Investment and Lektro-Vend stock under control of the does not meet this problem because as a matter of substance Vendo would control both plaintiff and defendant, requiring dismissal under Article III. Thus the injunction is also necessary to protect the jurisdiction of the" 403 F. Supp., -537. In Toucey v. New York Life Ins. -135, we acknowledged the existence of a historical exception to the Anti-Injunction Act in cases where the federal court has obtained jurisdiction over the res, prior to the state-court action. Although the "necessary in aid of" exception to 2283 may be fairly read as incorporating this historical |
Justice Rehnquist | 1,977 | 19 | majority | Vendo Co. v. Lektro-Vend Corp. | https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/ | to 2283 may be fairly read as incorporating this historical in rem exception, see C. Wright, Federal s 47, p. 204 the federal and state actions here are simply in personam. *642 The traditional notion is that in personam actions in federal and state court may proceed concurrently, without interference from either court, and there is no evidence that the exception to 2283 was intended to alter this balance. We have never viewed parallel in personam actions as interfering with the jurisdiction of either court; as we stated in Kline v. Burke Construction (122): "[A]n action brought to enforce [a personal liability] does not tend to impair or defeat the jurisdiction of the court in which a prior action for the same cause is pending. Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res adjudicata." No case of this has ever held that an injunction to "preserve" a case or controversy fits within the "necessary in aid of its jurisdiction" exception; neither have the parties directed us to any other federal-court decisions so holding. The District 's legal conclusion is not only unsupported by precedent, but the factual premises upon which it rests are not persuasive. First, even if the two corporate plaintiffs would cease to litigate the case after execution of the state-court judgment, there is no indication that Harry Stoner himself would lose his standing to vindicate his rights, or that the case could not go forward. Nor does it appear that the two corporate plaintiffs would necessarily be removed from the lawsuit. As far as the record indicates, there are currently minority shareholders in those corporations whose ownership interests would not be affected by petitioner's acquisition of majority stock control of the corporations. Under the applicable rules for shareholder derivative actions, *643 see Fed. Rule Civ. Proc. 23.1, the shareholders could presumably pursue the corporate rights of action, which would inure to their benefit, even if the corporations themselves chose not to do so. Finally, petitioner offered to enter a consent decree which assuredly would eliminate any possibility of petitioner's acquiring control of the corporations. See App. 20-210, 258. The injunction in this case was therefore, even under the District s' legal theory, not necessary in aid of that court's jurisdiction. Our conclusion that neither of the bases relied upon |
Justice Rehnquist | 1,977 | 19 | majority | Vendo Co. v. Lektro-Vend Corp. | https://www.courtlistener.com/opinion/109732/vendo-co-v-lektro-vend-corp/ | jurisdiction. Our conclusion that neither of the bases relied upon by the District constitutes an exception to 2283 is more than consistent with the recognition that any doubt must be resolved against the finding of an exception to 2283, Atlantic Coast Line R. 38 U. S., at 27; a holding that there is an exception present in this case would demonstrably involve "judicial improvisation." Clothing 348 U. S., at Reversed and remanded. MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in the result. Although I agree that the decision of the of Appeals should be reversed, I do so for reasons that differ significantly from those expressed by the plurality. According to the plurality's analysis, 16 of the Clayton Act, 15 U.S. C. 26, is not an expressly authorized exception to the Anti-Injunction Act, 28 U.S. C. 2283, because it is not "an `Act of Congress. [which] could be given its intended scope only by the stay of a state-court proceeding,' [, ]." Ante, at 632. I do not agree that this is invariably the case; since I am of the opinion, however, that the state-court proceeding in this case should not have been enjoined by the federal court, I concur in the result. In my opinion, application of the test for deciding whether a statute is an "expressly authorized" exception to the Anti-Injunction Act shows that 16 is such an exception *644 under narrowly limited circumstances. Nevertheless, consistently with the decision in California Motor Transport v. Trucking[*] I would hold that no injunction may issue against currently pending state-court proceedings unless those proceedings are themselves part of a "pattern of baseless, repetitive claims" that are being used as an anticompetitive device, all the traditional prerequisites for equitable relief are satisfied, and the only way to give the antitrust laws their intended scope is by staying the state proceedings. Cf. California Motor Transport v. Trucking *645 See also Otter Tail Power v. United States, (173). In my view, the District failed properly to apply the California Motor Transport rule. The court believed that it was enough that Vendo's activities in the single state-court proceeding involved in this case were not genuine attempts to use the state adjudicative process legitimately. In reaching this conclusion, the court looked to Vendo's purpose in conducting the state litigation and to several negative consequences that the litigation had for respondents. The court, however, did not find a "pattern of baseless, repetitive claims," nor could it have done so under the circumstances. Only one state-court proceeding was involved in this case, and it resulted |
Justice Stevens | 1,979 | 16 | majority | Hutto v. Finney | https://www.courtlistener.com/opinion/109919/hutto-v-finney/ | [] After finding that conditions in the Arkansas penal system constituted cruel and unusual punishment, the District Court entered a series of detailed remedial orders. On appeal to the United States Court of Appeals for the Eighth Circuit, petitioners[1] challenged two aspects of that relief: (1) an order placing a maximum limit of 30 days on confinement in punitive isolation; and (2) an award of attorney's fees to be paid out of Department of Correction funds. The Court of * Appeals affirmed and assessed an additional attorney's fee to cover services on We granted certiorari, and now affirm. This litigation began in ; it is a sequel to two earlier cases holding that conditions in the Arkansas prison system violated the Eighth and Fourteenth Amendments.[2] Only a brief summary of the facts is necessary to explain the basis for the remedial orders. The routine conditions that the ordinary Arkansas convict had to endure were characterized by the District Court as "a dark and evil world completely alien to the free world." That characterization was amply supported by the evidence.[3]*682 The punishments for misconduct not serious enough to result in punitive isolation were cruel,[4] unusual,[5] and unpredictable.[6] t is the discipline known as "punitive isolation" that is most relevant for present purposes. Confinement in punitive isolation was for an indeterminate period of time. An average of 4, and sometimes as many as 10 or 11, prisoners were crowded into windowless 8′ x 10′ cells containing no furniture other than a source of water and a toilet that could only be flushed from outside the cell. At night the prisoners were given mattresses to spread on the floor. Although some prisoners suffered from infectious diseases such as hepatitis and venereal disease, mattresses were removed and jumbled together each morning, *683 then returned to the cells at random in the evening. Prisoners in isolation received fewer than 1,000 calories a day;[7] their meals consisted primarily of 4-inch squares of "grue," a substance created by mashing meat, potatoes, oleo, syrup, vegetables, eggs, and seasoning into a paste and baking the mixture in a pan. After finding the conditions of confinement unconstitutional, the District Court did not immediately impose a detailed remedy of its own. nstead, it directed the Department of Correction to "make a substantial start" on improving conditions and to file reports on its progress. Holt When the Department's progress proved unsatisfactory, a second hearing was held. The District Court found some improvements, but concluded that prison conditions remained unconstitutional. Holt Again the court offered prison administrators an opportunity to devise a plan |
Justice Stevens | 1,979 | 16 | majority | Hutto v. Finney | https://www.courtlistener.com/opinion/109919/hutto-v-finney/ | court offered prison administrators an opportunity to devise a plan of their own for remedying the constitutional violations, but this time the court issued guidelines, identifying four areas of change that would cure the worst evils: improving conditions in the isolation cells, increasing inmate safety, eliminating the barracks sleeping arrangements, and putting an end to the trusty system. The Department was ordered to move as rapidly as funds became available. After this order was affirmed on appeal, more hearings were held in 1972 and to review the Department's progress. Finding substantial improvements, the District Court concluded that continuing supervision was no longer necessary. The court held, *684 however, that its prior decrees would remain in effect and noted that sanctions, as well as an award of costs and attorney's fees, would be imposed if violations occurred. (Holt ). The Court of Appeals reversed the District Court's decision to withdraw its supervisory jurisdiction, and the District Court held a fourth set of hearings. t found that, in some respects, conditions had seriously deteriorated since when the court had withdrawn its supervisory jurisdiction. Cummins Farm, which the court had condemned as overcrowded in because it housed 1,000 inmates, now had a population of about 1,500. The situation in the punitive isolation cells was particularly disturbing. The court concluded that either it had misjudged conditions in these cells in or conditions had become much worse since then. There were twice as many prisoners as beds in some cells. And because inmates in punitive isolation are often violently antisocial, overcrowding led to persecution of the weaker prisoners. The "grue" diet was still in use, and practically all inmates were losing weight on it. The cells had been vandalized to a "very substantial" extent. Because of their inadequate numbers, guards assigned to the punitive isolation cells frequently resorted to physical violence, using nightsticks and Mace in their efforts to maintain order. Prisoners were sometimes left in isolation for months, their release depending on "their attitudes as appraised by prison personnel." The court concluded that the constitutional violations identified earlier had not been cured. t entered an order that placed limits on the number of men that could be confined in one cell, required that each have a bunk, discontinued the "grue" diet, and set 30 days as the maximum isolation sentence. The District Court gave detailed consideration to *685 the matter of fees and expenses, made an express finding that petitioners had acted in bad faith, and awarded counsel "a fee of $20,000.00 to be paid out of Department of Correction funds." The Court of |
Justice Stevens | 1,979 | 16 | majority | Hutto v. Finney | https://www.courtlistener.com/opinion/109919/hutto-v-finney/ | paid out of Department of Correction funds." The Court of Appeals affirmed and assessed an additional $2,500 to cover fees and expenses on The Eighth Amendment's ban on inflicting cruel and unusual punishments, made applicable to the States by the Fourteenth Amendment, "proscribe[s] more than physically barbarous punishments." t prohibits penalties that are grossly disproportionate to the offense, U.S. 349, as well as those that transgress today's "`broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'" at quoting Confinement in a prison or in an isolation cell is a form of punishment subject to scrutiny under Eighth Amendment standards. Petitioners do not challenge this proposition; nor do they disagree with the District Court's original conclusion that conditions in Arkansas' prisons, including its punitive isolation cells, constituted cruel and unusual punishment. Rather, petitioners single out that portion of the District Court's most recent order that forbids the Department to sentence inmates to more than 30 days in punitive isolation. Petitioners assume that the District Court held that indeterminate sentences to punitive isolation always constitute cruel and unusual punishment. This assumption misreads the District Court's holding. Read in its entirety, the District Court's opinion makes it abundantly clear that the length of isolation sentences was not considered in a vacuum. n the court's words, punitive isolation "is not necessarily unconstitutional, but it may be, depending on the duration of the confinement and the conditions *686 thereof." 410 F. Supp.,[8] t is perfectly obvious that every decision to remove a particular inmate from the general prison population for an indeterminate period could not be characterized as cruel and unusual. f new conditions of confinement are not materially different from those affecting other prisoners, a transfer for the duration of a prisoner's sentence might be completely unobjectionable and well within the authority of the prison administrator. Cf. t is equally plain, however, that the length of confinement cannot be ignored in deciding whether the confinement meets constitutional standards. A filthy, overcrowded cell and a diet of *687 "grue" might be tolerable for a few days and intolerably cruel for weeks or months. The question before the trial court was whether past constitutional violations had been remedied. The court was entitled to consider the severity of those violations in assessing the constitutionality of conditions in the isolation cells. The court took note of the inmates' diet, the continued overcrowding, the rampant violence, the vandalized cells, and the "lack of professionalism and good judgment on the part of maximum security personnel." and 278. The length of time each inmate spent in isolation was simply |
Justice Stevens | 1,979 | 16 | majority | Hutto v. Finney | https://www.courtlistener.com/opinion/109919/hutto-v-finney/ | length of time each inmate spent in isolation was simply one consideration among many. We find no error in the court's conclusion that, taken as a whole, conditions in the isolation cells continued to violate the prohibition against cruel and unusual punishment. n fashioning a remedy, the District Court had ample authority to go beyond earlier orders and to address each element contributing to the violation. The District Court had given the Department repeated opportunities to remedy the cruel and unusual conditions in the isolation cells. f petitioners had fully complied with the court's earlier orders, the present time limit might well have been unnecessary. But taking the long and unhappy history of the litigation into account, the court was justified in entering a comprehensive order to insure against the risk of inadequate compliance.[9] *688 The order is supported by the interdependence of the conditions producing the violation. The vandalized cells and the atmosphere of violence were attributable, in part, to overcrowding and to deep-seated enmities growing out of months of constant daily friction.[10] The 30-day limit will help to correct these conditions.[11] Moreover, the limit presents little danger of interference with prison administration, for the Commissioner of Correction himself stated that prisoners should not ordinarily be held in punitive isolation for more than 14 days. Finally, the exercise of discretion in this case is entitled to special deference because of the trial judge's years of experience with the problem at hand and his recognition of the limits on a federal court's authority in a case of this kind.[12] Like the Court of Appeals, we find no error in the inclusion of a 30-day limitation on sentences to punitive isolation as a part of the District Court's comprehensive remedy. *689 The Attorney General of Arkansas, whose office has represented petitioners throughout this litigation, contends that any award of fees is prohibited by the Eleventh Amendment. He also argues that the Court of Appeals incorrectly held that fees were authorized by the Civil Rights Attorney's Fees Awards Act of We hold that the District Court's award is adequately supported by its finding of bad faith and that the Act supports the additional award by the Court of Appeals. A. The District Court Award Although the Attorney General argues that the finding of bad faith does not overcome the State's Eleventh Amendment protection, he does not question the accuracy of the finding made by the District Court and approved by the Court of Appeals.[13] Nor does he question the settled rule that a losing litigant's bad faith may justify an allowance of |
Justice Stevens | 1,979 | 16 | majority | Hutto v. Finney | https://www.courtlistener.com/opinion/109919/hutto-v-finney/ | a losing litigant's bad faith may justify an allowance of fees to the prevailing party.[14] He merely argues that the order requiring *690 that the fees be paid from public funds violates the Eleventh Amendment. n the landmark decision in Ex parte Young, the Court held that, although prohibited from giving orders directly to a State, federal courts could enjoin state officials in their official capacities. And in when the Court held that the Amendment grants the States an immunity from retroactive monetary relief, it reaffirmed the principle that state officers are not immune from prospective injunctive relief. Aware that the difference between retroactive and prospective relief "will not in many instances be that between day and night," the Court emphasized in Edelman that the distinction did not immunize the States from their obligation to obey costly federal-court orders. The cost of compliance is "ancillary" to the prospective order enforcing federal law.[15] The line between retroactive and prospective relief cannot be so rigid that it defeats the effective enforcement of prospective relief. The present case requires application of that principle. n exercising their prospective powers under Ex parte Young and federal courts are not reduced to issuing injunctions against state officers and hoping for compliance. Once issued, an injunction may be enforced. Many of the court's most effective enforcement weapons involve financial penalties. A criminal contempt prosecution for "resistance to [the court's] lawful order" may result in a jail term or a fine. 18 U.S. C. 401 ( ed.). Civil contempt proceedings may yield a conditional jail term or fine. United Civil contempt may also be punished by a remedial fine, which compensates the party who won the injunction for the effects of his opponent's noncompliance. ; f a state agency refuses to adhere to a court order, a financial penalty may be the most effective means of insuring compliance. The principles of federalism that inform Eleventh Amendment doctrine surely do not require federal courts to enforce their decrees only by sending high state officials to jail.[16] The less intrusive power to impose a fine is properly treated as ancillary to the federal court's power to impose injunctive relief. n this case, the award of attorney's fees for bad faith served the same purpose as a remedial fine imposed for civil contempt. t vindicated the District Court's authority over a recalcitrant litigant. Compensation was not the sole motive for the award; in setting the amount of the fee, the court said that it would "make no effort to adequately compensate counsel for the work that they have done or for |
Justice Stevens | 1,979 | 16 | majority | Hutto v. Finney | https://www.courtlistener.com/opinion/109919/hutto-v-finney/ | counsel for the work that they have done or for the time that they have spent on the case." 410 F. Supp., The court did allow a "substantial" fee, however, because "the allowance thereof may incline the Department to act in such a manner that further protracted litigation about the prisons will not be necessary." [17] We see no reason to distinguish *692 this award from any other penalty imposed to enforce a prospective injunction.[18] Hence the substantive protections of the Eleventh Amendment do not prevent an award of attorney's fees against the Department's officers in their official capacities. nstead of assessing the award against the defendants in their official capacities, the District Court directed that the fees are "to be paid out of Department of Correction funds." Although the Attorney General objects to the form of the order,[19] no useful purpose would be served by requiring that it be recast in different language. We have previously approved directives that were comparable in their actual impact on the State without pausing to attach significance to the language used by the District Court.[20] Even if it might have *693 been better form to omit the reference to the Department of Correction, the use of that language is surely not reversible error. B. The Court of Appeals Award Petitioners, as the losing litigants in the Court of Appeals, were ordered to pay an additional $2,500 to counsel for the prevailing parties "for their services on this " The order does not expressly direct the Department of Correction to pay the award, but since petitioners are sued in their official capacities, and since they are represented by the Attorney General, it is obvious that the award will be paid with state funds. t is also clear that this order is not supported by any finding of bad faith. t is founded instead on the provisions of the Civil Rights Attorney's Fees Awards Act of Stat. 2641, 42 U.S. C. 1988 ( ed.). The Act declares that, in suits under 42 U.S. C. 1983 and certain other statutes, federal courts may award prevailing parties reasonable attorney's fees "as part of the costs."[21] As this Court made clear in Congress has plenary power to set aside the States' immunity from retroactive relief in order to enforce the Fourteenth Amendment. When it passed the Act, Congress undoubtedly intended to exercise that power and to authorize fee awards *694 payable by the States when their officials are sued in their official capacities. The Act itself could not be broader. t applies to "any" action brought to enforce |
Justice Stevens | 1,979 | 16 | majority | Hutto v. Finney | https://www.courtlistener.com/opinion/109919/hutto-v-finney/ | be broader. t applies to "any" action brought to enforce certain civil rights laws. t contains no hint of an exception for States defending injunction actions; indeed, the Act primarily applies to laws passed specifically to restrain state action. See, e. g., 42 U.S. C. 1983. The legislative history is equally plain: "[]t is intended that the attorneys' fees, like other items of costs, will be collected either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party)." S. Rep. No. 94-1011, p. 5 (footnotes omitted). The House Report is in accord: "The greater resources available to governments provide an ample base from which fees can be awarded to the prevailing plaintiff in suits against governmental officials or entities." H. R. Rep. No. 94-1558, p. 7 The Report adds in a footnote that: "Of course, the 11th Amendment is not a bar to the awarding of counsel fees against state governments." at 7 n. 14. Congress' intent was expressed in deeds as well as words. t rejected at least two attempts to amend the Act and immunize state and local governments from awards.[22] The Attorney General does not quarrel with the rule established in Rather, he argues that these plain indications of legislative intent are not enough. n his view, Congress must enact express statutory language making the States liable if it wishes to abrogate their immunity.[23] The Attorney General points out that this Court has *695 sometimes refused to impose retroactive liability on the States in the absence of an extraordinarily explicit statutory mandate. See ; see also But these cases concern retroactive liability for prelitigation conduct rather than expenses incurred in litigation seeking only prospective relief. The Act imposes attorney's fees "as part of the costs." Costs have traditionally been awarded without regard for the States' Eleventh Amendment immunity. The practice of awarding costs against the States goes back to 1849 in this Court. See Missouri v. owa, ; North (collecting cases). The Court has never viewed the Eleventh Amendment as barring such awards, even in suits between States and individual litigants.[24] *696 n Fairmont Creamery the State challenged this Court's award of costs, but we squarely rejected the State's claim of immunity. Far from requiring an explicit abrogation of state immunity, we relied on a statutory mandate that was entirely silent on the question of state liability.[25] The power to make the award was supported by "the inherent authority of the Court |
Justice Stevens | 1,979 | 16 | majority | Hutto v. Finney | https://www.courtlistener.com/opinion/109919/hutto-v-finney/ | award was supported by "the inherent authority of the Court in the orderly administration of justice as between all parties litigant." A federal court's interest in orderly, expeditious proceedings "justifies [it] in treating the state just as any other litigant and in imposing costs upon it" when an award is called for.[26] Just as a federal court may treat a State like any other litigant when it assesses costs, so also may Congress amend its definition of taxable costs and have the amended class of costs apply to the States, as it does to all other litigants, without expressly stating that it intends to abrogate the States' Eleventh Amendment immunity. For it would be absurd to require an express *697 reference to state litigants whenever a filing fee, or a new item, such as an expert witness' fee, is added to the category of taxable costs.[27] There is ample precedent for Congress' decision to authorize an award of attorney's fees as an item of costs. n England, costs "as between solicitor and client," are routinely taxed today, and have been awarded since 1278. Alyeska Pipeline Service 247 n. 18. n America, although fees are not routinely awarded, there are a large number of statutory and common-law situations in which allowable costs include counsel fees.[28] ndeed, the federal statutory definition of costs, which was enacted before the Civil War and which remains in effect today, includes certain fixed attorney's fees as recoverable costs.[29] n Fairmont Creamery itself, the Court awarded these statutory attorney's fees against the *698 State of Minnesota along with other taxable costs,[30] even though the governing statute said nothing about state liability. t is much too late to single out attorney's fees as the one kind of litigation cost whose recovery may not be authorized by Congress without an express statutory waiver of the States' immunity.[31] *699 Finally, the Attorney General argues that, even if attorney's fees may be awarded against a State, they should not be awarded in this case, because neither the State nor the Department is expressly named as a defendant. Although the Eleventh Amendment prevented respondents from suing the State by name, their injunctive suit against prison officials was, for all practical purposes, brought against the State. The actions of the Attorney General himself show that. His office has defended this action since it began. See Holt The State apparently paid earlier fee awards; and it was the State's lawyers who decided to bring this appeal, thereby risking another award.[32] *700 Like the Attorney General, Congress recognized that suits brought against individual officers for |
Justice Stevens | 1,979 | 16 | majority | Hutto v. Finney | https://www.courtlistener.com/opinion/109919/hutto-v-finney/ | General, Congress recognized that suits brought against individual officers for injunctive relief are for all practical purposes suits against the State itself. The legislative history makes it clear that in such suits attorney's fee awards should generally be obtained "either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party)." S. Rep. No. 94-1011, p. 5 Awards against the official in his individual capacity, in contrast, were not to be affected by the statute; in injunctive suits they would continue to be awarded only "under the traditional bad faith standard recognized by the Supreme Court in Alyeska." at 5 n. 7. There is no indication in this case that the named defendants litigated in bad faith before the Court of Appeals. Consequently, the Department of Correction is the entity intended by Congress to bear the burden of the counsel-fees award. The judgment of the Court of Appeals is accordingly affirmed. t is so ordered. MR. |
Justice Rehnquist | 1,988 | 19 | dissenting | Bendix Autolite Corp. v. Midwesco Enterprises, Inc. | https://www.courtlistener.com/opinion/112108/bendix-autolite-corp-v-midwesco-enterprises-inc/ | This case arises because of two peculiar, if not unique, rules of Ohio law. The first is that even though a foreign corporation may be subject to process under the state "long-arm" *899 statute, it is nonetheless not "present" in the State for purposes of tolling the statute of limitations. The second is that a foreign corporation installing machinery or equipment sold by it in interstate commerce is not required to appoint a statutory agent in order to transact business in Ohio. Ohio Rev. Code 1703.02 (Supp. 1987). The Court dwells heavily upon the first peculiarity of Ohio law, but makes no mention of the second. Midwesco agreed to deliver and install a boiler system at a Bendix plant in Fostoria, Ohio. On the basis of the sparse record before us, it is fair to say that while the sale may have been a transaction in interstate commerce, there is no reason at all to think that the installation was such. Cases such as Allenberg Cotton and Dahnke-Walker Milling on which the Court relies, deal with transactions respecting goods which are "in the stream of interstate commerce." A State may not require licensure of a foreign corporation which seeks only to engage in this sort of transaction. But a State may require licensure when a foreign corporation engages in intrastate commerce. Eli Lilly & And where a foreign corporation is engaged in both interstate and intrastate commerce in a particular commodity, a State may require licensure in order to sue in connection with an intrastate aspect of the business. Union Brokerage Thus, Midwesco's immunity from Ohio's requirement that foreign corporations appoint a statutory agent before doing business in the State is not by reason of any federal constitutional right, but by reason of a provision of the Ohio statutes. And if Ohio could have insisted that Midwesco appoint a statutory agent before it engaged in that portion of its transaction with Bendix which was intrastate commerce, I see no reason why it may not also treat Midwesco as it would treat any other entity which has done intrastate business in Ohio, *900 incurred liability, and thereafter withdrawn from the State. Ohio seeks to do no more, I think, when it applies its tolling statute to Bendix's action against Midwesco under these circumstances. I see no discrimination against interstate commerce here, and I would reverse the judgment of the Court of Appeals. |
Justice Powell | 1,972 | 17 | majority | United States v. United States Dist. Court for Eastern Dist. of Mich. | https://www.courtlistener.com/opinion/108581/united-states-v-united-states-dist-court-for-eastern-dist-of-mich/ | The issue before us is an important one for the people of our country and their Government. It involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval. Successive Presidents for more than one-quarter of a century have authorized such surveillance in varying degrees,[1] without guidance from the Congress or a definitive decision of this Court. This case brings the issue here for the first time. Its resolution is a matter of national concern, requiring sensitivity both to the Government's right to protect itself from unlawful subversion and attack and to the citizen's right to be secure in his privacy against unreasonable Government intrusion. This case arises from a criminal proceeding in the United District Court for the Eastern District of Michigan, in which the United charged three defendants with conspiracy to destroy Government property in violation of 18 U.S. C. 371. One of the defendants, Plamondon, was charged with the dynamite bombing of an office of the Central Intelligence Agency in Ann Arbor, Michigan. During pretrial proceedings, the defendants moved to compel the United to disclose certain electronic *300 surveillance information and to conduct a hearing to determine whether this information "tainted" the evidence on which the indictment was based or which the Government intended to offer at trial. In response, the Government filed an affidavit of the Attorney General, acknowledging that its agents had overheard conversations in which Plamondon had participated. The affidavit also stated that the Attorney General approved the wiretaps "to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government."[2] The logs of the surveillance *301 were filed in a sealed exhibit for in camera inspection by the District Court. On the basis of the Attorney General's affidavit and the sealed exhibit, the Government asserted that the surveillance was lawful, though conducted without prior judicial approval, as a reasonable exercise of the President's power (exercised through the Attorney General) to protect the national security. The District Court held that the surveillance violated the Fourth Amendment, and ordered the Government to make full disclosure to Plamondon of his overheard conversations. The Government then filed in the Court of Appeals for the Sixth Circuit a petition for a writ of mandamus to set aside the District Court order, which was stayed pending final disposition of the case. After concluding that it had jurisdiction,[3] that court held that the surveillance was unlawful and that the District Court had properly |
Justice Powell | 1,972 | 17 | majority | United States v. United States Dist. Court for Eastern Dist. of Mich. | https://www.courtlistener.com/opinion/108581/united-states-v-united-states-dist-court-for-eastern-dist-of-mich/ | surveillance was unlawful and that the District Court had properly required disclosure of the overheard conversations, We granted certiorari, I Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S. C. 2510-2520, authorizes the use of electronic surveillance for classes of crimes carefully *302 specified in 18 U.S. C. 2516. Such surveillance is subject to prior court order. Section 2518 sets forth the detailed and particularized application necessary to obtain such an order as well as carefully circumscribed conditions for its use. The Act represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression. Much of Title III was drawn to meet the constitutional requirements for electronic surveillance enunciated by this Court in and Together with the elaborate surveillance requirements in Title III, there is the following proviso, 18 U.S. C. 2511 (3): "Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (; 47 U.S. C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, *303 or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power." (Emphasis supplied.) The Government relies on 2511 (3). It argues that "in excepting national security surveillances from the Act's warrant requirement Congress recognized the President's authority to conduct such surveillances without prior judicial approval." Brief for United 7, 28. The section thus is viewed as a recognition or affirmance of a constitutional authority in the President to conduct warrantless domestic security surveillance such as that involved in this case. We think the language of 2511 (3), as well as the legislative history of the statute, refutes this interpretation. The relevant language is that: |
Justice Powell | 1,972 | 17 | majority | United States v. United States Dist. Court for Eastern Dist. of Mich. | https://www.courtlistener.com/opinion/108581/united-states-v-united-states-dist-court-for-eastern-dist-of-mich/ | the statute, refutes this interpretation. The relevant language is that: "Nothing contained in this chapter shall limit the constitutional power of the President to take such measures as he deems necessary to protect" against the dangers specified. At most, this is an implicit recognition that the President does have certain powers in the specified areas. Few would doubt this, as the section refersamong other thingsto protection "against actual or potential attack or other hostile acts of a foreign power." But so far as the use of the President's electronic surveillance power is concerned, the language is essentially neutral. Section 2511 (3) certainly confers no power, as the language is wholly inappropriate for such a purpose. It merely provides that the Act shall not be interpreted to limit or disturb such power as the President may have under the Constitution. In short, Congress simply left presidential powers where it found them. This view is reinforced by the general context of Title III. Section 2511 (1) broadly prohibits the use of electronic *304 surveillance "[e]xcept as otherwise specifically provided in this chapter." Subsection (2) thereof contains four specific exceptions. In each of the specified exceptions, the statutory language is as follows: "It shall not be unlawful to intercept" the particular type of communication described.[4] The language of subsection (3), here involved, is to be contrasted with the language of the exceptions set forth in the preceding subsection. Rather than stating that warrantless presidential uses of electronic surveillance "shall not be unlawful" and thus employing the standard language of exception, subsection (3) merely disclaims any intention to "limit the constitutional power of the President." The express grant of authority to conduct surveillances is found in 2516, which authorizes the Attorney General to make application to a federal judge when surveillance may provide evidence of certain offenses. These offenses are described with meticulous care and specificity. Where the Act authorizes surveillance, the procedure to be followed is specified in 2518. Subsection (1) thereof requires application to a judge of competent jurisdiction for a prior order of approval, and states in detail the information required in such application.[5]*305 Subsection (3) prescribes the necessary elements of probable cause which the judge must find before issuing an order authorizing an interception. Subsection (4) sets forth the required contents of such an order. *306 Subsection (5) sets strict time limits on an order. Provision is made in subsection (7) for "an emergency situation" found to exist by the Attorney General (or by the principal prosecuting attorney of a State) "with respect to conspiratorial activities threatening the national security |
Justice Powell | 1,972 | 17 | majority | United States v. United States Dist. Court for Eastern Dist. of Mich. | https://www.courtlistener.com/opinion/108581/united-states-v-united-states-dist-court-for-eastern-dist-of-mich/ | State) "with respect to conspiratorial activities threatening the national security interest." In such a situation, emergency surveillance may be conducted "if an application for an order approving the interception is made within forty-eight hours." If such an order is not obtained, or the application therefore is denied, the interception is deemed to be a violation of the Act. In view of these and other interrelated provisions delineating permissible interceptions of particular criminal activity upon carefully specified conditions, it would have been incongruous for Congress to have legislated with respect to the important and complex area of national security in a single brief and nebulous paragraph. This would not comport with the sensitivity of the problem involved or with the extraordinary care Congress exercised in drafting other sections of the Act. We therefore think the conclusion inescapable that Congress only intended to make clear that the Act simply did not legislate with respect to national security surveillances.[6] The legislative history of 2511 (3) supports this interpretation. Most relevant is the colloquy between Senators Hart, Holland, and McClellan on the Senate floor: "Mr. HOLLAND. The section [2511 (3)] from which the Senator [Hart] has read does not affirmatively *307 give any power. We are not affirmatively conferring any power upon the President. We are simply saying that nothing herein shall limit such power as the President has under the Constitution. We certainly do not grant him a thing. "There is nothing affirmative in this statement. "Mr. McCLELLAN. Mr. President, we make it understood that we are not trying to take anything away from him. "Mr. HOLLAND. The Senator is correct. "Mr. HART. Mr. President, there is no intention here to expand by this language a constitutional power. Clearly we could not do so. "Mr. McCLELLAN. Even though intended, we could not do so. "Mr. HART. However, we are agreed that this language should not be regarded as intending to grant any authority, including authority to put a bug on, that the President does not have now. "In addition, Mr. President, as I think our exchange makes clear, nothing in section 2511 (3) even attempts to define the limits of the President's national security power under present law, which I have always found extremely vague Section 2511 (3) merely says that if the President has such a power, then its exercise is in no way affected by title III."[7] (Emphasis supplied.) *308 One could hardly expect a clearer expression of congressional neutrality. The debate above explicitly indicates that nothing in 2511 (3) was intended to expand or to contract or to define whatever |
Justice Powell | 1,972 | 17 | majority | United States v. United States Dist. Court for Eastern Dist. of Mich. | https://www.courtlistener.com/opinion/108581/united-states-v-united-states-dist-court-for-eastern-dist-of-mich/ | intended to expand or to contract or to define whatever presidential surveillance powers existed in matters affecting the national security. If we could accept the Government's characterization of 2511 (3) as a congressionally prescribed exception to the general requirement of a warrant, it would be necessary to consider the question of whether the surveillance in this case came within the exception and, if so, whether the statutory exception was itself constitutionally valid. But viewing 2511 (3) as a congressional disclaimer and expression of neutrality, we hold that the statute is not the measure of the executive authority asserted in this case. Rather, we must look to the constitutional powers of the President. II It is important at the outset to emphasize the limited nature of the question before the Court. This case raises no constitutional challenge to electronic surveillance as specifically authorized by Title III of the Omnibus Crime Control and Safe Streets Act of 18. Nor is there any question or doubt as to the necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest. ; Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were *309 "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government" (emphasis supplied). There is no evidence of any involvement, directly or indirectly, of a foreign power.[8] Our present inquiry, though important, is therefore a narrow one. It addresses a question left open by at 358 n. 23: "Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security" The determination of this question requires the essential Fourth Amendment inquiry into the "reasonableness" of the search and seizure in question, and the way in which that "reasonableness" derives content and meaning *310 through reference to the warrant clause. We begin the inquiry by noting that the President of the United has the fundamental duty, under Art. II, 1, of the Constitution, to "preserve, protect and defend the Constitution of the United" Implicit in that duty is the power to protect our Government against those who would subvert or overthrow it by unlawful means. In the discharge of this duty, the Presidentthrough the Attorney General may find it necessary to employ electronic surveillance to obtain intelligence information on the plans of those who plot unlawful acts against the |
Justice Powell | 1,972 | 17 | majority | United States v. United States Dist. Court for Eastern Dist. of Mich. | https://www.courtlistener.com/opinion/108581/united-states-v-united-states-dist-court-for-eastern-dist-of-mich/ | the plans of those who plot unlawful acts against the Government.[9] The use of such surveillance in internal security cases has been sanctioned more or less continuously by various Presidents and Attorneys General since July 1946.[10]*311 Herbert Brownell, Attorney General under President Eisenhower, urged the use of electronic surveillance both in internal and international security matters on the grounds that those acting against the Government "turn to the telephone to carry on their intrigue. The success of their plans frequently rests upon piecing together shreds of information received from many sources and many nests. The participants in the conspiracy are often dispersed and stationed in various strategic positions in government and industry throughout the country."[11] Though the Government and respondents debate their seriousness and magnitude, threats and acts of sabotage against the Government exist in sufficient number to justify investigative powers with respect to them.[12] The covertness and complexity of potential unlawful conduct *312 against the Government and the necessary dependency of many conspirators upon the telephone make electronic surveillance an effective investigatory instrument in certain circumstances. The marked acceleration in technological developments and sophistication in their use have resulted in new techniques for the planning, commission, and concealment of criminal activities. It would be contrary to the public interest for Government to deny to itself the prudent and lawful employment of those very techniques which are employed against the Government and its law-abiding citizens. It has been said that "[t]he most basic function of any government is to provide for the security of the individual and of his property." And unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered. As Chief Justice Hughes reminded us in : "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses." But a recognition of these elementary truths does not make the employment by Government of electronic surveillance a welcome developmenteven when employed with restraint and under judicial supervision. There is, understandably, a deep-seated uneasiness and apprehension that this capability will be used to intrude upon cherished privacy of law-abiding citizens.[13] We *313 look to the Bill of Rights to safeguard this privacy. Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance. Silverman v. United Our decision in refused to lock |
Justice Powell | 1,972 | 17 | majority | United States v. United States Dist. Court for Eastern Dist. of Mich. | https://www.courtlistener.com/opinion/108581/united-states-v-united-states-dist-court-for-eastern-dist-of-mich/ | surveillance. Silverman v. United Our decision in refused to lock the Fourth Amendment into instances of actual physical trespass. Rather, the Amendment governs "not only the seizure of tangible items, but extends as well to the recording of oral statements without any `technical trespass under local property law.'" That decision implicitly recognized that the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails[14] necessitate the application of Fourth Amendment safeguards. National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of "ordinary" crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. "Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure *314 power," History abundantly documents the tendency of Governmenthowever benevolent and benign its motives to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. Senator Hart addressed this dilemma in the floor debate on 2511 (3): "As I read itand this is my fearwe are saying that the President, on his motion, could declare name your favorite poisondraft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activists to be a clear and present danger to the structure or existence of the Government."[15] The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society. III As the Fourth Amendment is not absolute in its terms, our task is to examine and balance the basic values at stake in this case: the duty of Government *315 to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression. If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not |
Justice Powell | 1,972 | 17 | majority | United States v. United States Dist. Court for Eastern Dist. of Mich. | https://www.courtlistener.com/opinion/108581/united-states-v-united-states-dist-court-for-eastern-dist-of-mich/ | needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant requirement would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it. Though the Fourth Amendment speaks broadly of "unreasonable searches and seizures," the definition of "reasonableness" turns, at least in part, on the more specific commands of the warrant clause. Some have argued that "[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable," United v.[16] This view, however, overlooks the second clause of the Amendment. The warrant clause of the Fourth Amendment is not dead language. Rather, it has been "a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow `weighed' against the claims of police efficiency. It is, or should *316 be, an important working part of our machinery of government, operating as a matter of course to check the `well-intentioned but mistakenly overzealous executive officers' who are a part of any system of law enforcement." See also United v. ; Davis v. United Over two centuries ago, Lord Mansfield held that common-law principles prohibited warrants that ordered the arrest of unnamed individuals who the officer might conclude were guilty of seditious libel. "It is not fit," said Mansfield, "that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer." Leach v. Three of the King's Messengers, 19 How. St. Tr. 1001, 1027 (1765). Lord Mansfield's formulation touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation. Inherent in the concept of a warrant is its issuance by a "neutral and detached magistrate." ; The further requirement of "probable cause" instructs the magistrate that baseless searches shall not proceed. These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive *317 Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility |
Justice Powell | 1,972 | 17 | majority | United States v. United States Dist. Court for Eastern Dist. of Mich. | https://www.courtlistener.com/opinion/108581/united-states-v-united-states-dist-court-for-eastern-dist-of-mich/ | Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.[17] It may well be that, in the instant case, the Government's surveillance of Plamondon's conversations was a reasonable one which readily would have gained prior judicial approval. But this Court "has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end." -357. The Fourth Amendment contemplates a prior judicial judgment,[18] not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A. B. A. J. 943-944 (13). The independent check upon executive discretion is not *318 satisfied, as the Government argues, by "extremely limited" post-surveillance judicial review.[19] Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions. Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights. It is true that there have been some exceptions to the warrant requirement. (19); (18); McDonald v. United ; Carroll v. United But those exceptions are few in number and carefully delineated, ; in general, they serve the legitimate needs of law enforcement officers to protect their own well-being and preserve evidence from destruction. Even while carving out those exceptions, the Court has reaffirmed the principle that the "police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure," ; The Government argues that the special circumstances applicable to domestic security surveillances necessitate a further exception to the warrant requirement. It is urged that the requirement of prior judicial review would obstruct the President in the discharge of his constitutional duty to protect domestic security. We are told further that these surveillances are directed primarily to the collecting and maintaining of intelligence with *319 respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions. It is |
Justice Powell | 1,972 | 17 | majority | United States v. United States Dist. Court for Eastern Dist. of Mich. | https://www.courtlistener.com/opinion/108581/united-states-v-united-states-dist-court-for-eastern-dist-of-mich/ | attempt to gather evidence for specific criminal prosecutions. It is said that this type of surveillance should not be subject to traditional warrant requirements which were established to govern investigation of criminal activity, not ongoing intelligence gathering. Brief for United 15-16, 23-24; Reply Brief for United 2-3. The Government further insists that courts "as a practical matter would have neither the knowledge nor the techniques necessary to determine whether there was probable cause to believe that surveillance was necessary to protect national security." These security problems, the Government contends, involve "a large number of complex and subtle factors" beyond the competence of courts to evaluate. Reply Brief for United 4. As a final reason for exemption from a warrant requirement, the Government believes that disclosure to a magistrate of all or even a significant portion of the information involved in domestic security surveillances "would create serious potential dangers to the national security and to the lives of informants and agents. Secrecy is the essential ingredient in intelligence gathering; requiring prior judicial authorization would create a greater `danger of leaks because in addition to the judge, you have the clerk, the stenographer and some other officer like a law assistant or bailiff who may be apprised of the nature' of the surveillance." Brief for United 24-25. These contentions in behalf of a complete exemption from the warrant requirement, when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration. We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent *320 periods of our history. There is, no doubt, pragmatic force to the Government's position. But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure. We cannot accept the Government's argument that |
Justice Powell | 1,972 | 17 | majority | United States v. United States Dist. Court for Eastern Dist. of Mich. | https://www.courtlistener.com/opinion/108581/united-states-v-united-states-dist-court-for-eastern-dist-of-mich/ | prior warrant procedure. We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance. Nor do we believe prior judicial approval will fracture the secrecy essential to official intelligence gathering. The investigation of criminal activity has long *321 involved imparting sensitive information to judicial officers who have respected the confidentialities involved. Judges may be counted upon to be especially conscious of security requirements in national security cases. Title III of the Omnibus Crime Control and Safe Streets Act already has imposed this responsibility on the judiciary in connection with such crimes as espionage, sabotage, and treason, 2516 (1) (a) and (c), each of which may involve domestic as well as foreign security threats. Moreover, a warrant application involves no public or adversary proceedings: it is an ex parte request before a magistrate or judge. Whatever security dangers clerical and secretarial personnel may pose can be minimized by proper administrative measures, possibly to the point of allowing the Government itself to provide the necessary clerical assistance. Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government's domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur. IV We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion *322 as to, the issues which may be involved with respect to activities of foreign powers or their agents.[20] Nor does our decision rest on the language |
Justice Powell | 1,972 | 17 | majority | United States v. United States Dist. Court for Eastern Dist. of Mich. | https://www.courtlistener.com/opinion/108581/united-states-v-united-states-dist-court-for-eastern-dist-of-mich/ | their agents.[20] Nor does our decision rest on the language of 2511 (3) or any other section of Title III of the Omnibus Crime Control and Safe Streets Act of 18. That Act does not attempt to define or delineate the powers of the President to meet domestic threats to the national security. Moreover, we do not hold that the same type of standards and procedures prescribed by Title III are necessarily applicable to this case. We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of "ordinary crime." The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime. Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment *323 if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection. As the Court said in : "In cases in which the Fourth Amendment requires that a warrant to search be obtained, `probable cause' is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. In determining whether a particular inspection is reasonableand thus in determining whether there is probable cause to issue a warrant for that inspectionthe need for the inspection must be weighed in terms of these reasonable goals of code enforcement." It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e. g., the District Court for the District of Columbia or the Court |
Justice Powell | 1,972 | 17 | majority | United States v. United States Dist. Court for Eastern Dist. of Mich. | https://www.courtlistener.com/opinion/108581/united-states-v-united-states-dist-court-for-eastern-dist-of-mich/ | District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in 2518. The above paragraph does not, of course, attempt to guide the congressional judgment but rather to delineate the present scope of our own opinion. We do not attempt to detail the precise standards for domestic security warrants any more than our decision in sought to set the refined requirements for the specified criminal surveillances which now constitute Title III. We do *324 hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe. V As the surveillance of Plamondon's conversations was unlawful, because conducted without prior judicial approval, the courts below correctly held that Alderman v. United (19), is controlling and that it requires disclosure to the accused of his own impermissibly intercepted conversations. As stated in Alderman, "the trial court can and should, where appropriate, place a defendant and his counsel under enforceable orders against unwarranted disclosure of the materials which they may be entitled to inspect."[21] The judgment of the Court of Appeals is hereby Affirmed. THE CHIEF JUSTICE concurs in the result. MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR. |
per_curiam | 1,988 | 200 | per_curiam | Buchanan v. Stanships, Inc. | https://www.courtlistener.com/opinion/112024/buchanan-v-stanships-inc/ | Federal Rule of Appellate Procedure 4(a)(4) provides that if any party files a timely motion "under Rule 59 [of the Federal Rules of Civil Procedure] to alter or amend the judgment," then the time for appeal "shall run from the entry of the order granting or denying" such a motion. The Rule specifically indicates that a notice of appeal filed before the *266 disposition of such a motion "shall have no effect" but that a "new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion." In this case, we are asked to determine whether a prevailing party's motion for costs constitutes a Rule 59 motion and thereby renders ineffective a notice of appeal filed prior to the disposition of that motion. I Petitioners, a widow and her minor child, brought this wrongful-death action against respondents in the United States District Court for the Middle District of Louisiana under the Death on the High Seas Act, ch. 111, 46 U.S. C. 761 et seq. The court initially granted summary judgment for respondents, but the Court of Appeals for the Fifth Circuit reversed this ruling. On remand, the District Court conducted a bench trial. Then, on January 26, the court entered judgment in favor of respondents, dismissing petitioners' suit with prejudice. Pet. for Cert. 15. The judgment made no mention of costs. The next day petitioners filed a notice of appeal in the District Court pursuant to Federal Rule of Appellate Procedure 3. On January 29, respondents filed an application for the allowance of costs, styled as a "Motion to Alter or Amend Judgment." The motion asked that the District Court "amend its judgment" to reflect that respondents were "entitled to recover their taxable costs," and specifically invoked Rule 59 of the Federal Rules of Civil Procedure. The District Court issued an order granting respondents' request the next day. Petitioners did not file a second notice of appeal following the District Court's order granting respondents' motion. Respondents subsequently moved the Court of Appeals to dismiss petitioners' appeal for lack of subject-matter jurisdiction due to failure to file a timely notice of appeal. *267 Respondents argued that Rule 4(a)(4) of the Federal Rules of Appellate Procedure rendered petitioners' first notice of appeal void because the motion for the allowance of costs was a Rule 59(e) motion. Relying on its prior decision in Harcon Barge (CA5) (en banc), cert. denied, the Court of Appeals agreed and dismissed petitioners' appeal. Pet. for Cert. 25. See also Petitioners seek certiorari, noting that the Court |
per_curiam | 1,988 | 200 | per_curiam | Buchanan v. Stanships, Inc. | https://www.courtlistener.com/opinion/112024/buchanan-v-stanships-inc/ | 25. See also Petitioners seek certiorari, noting that the Court of Appeals' decision is in tension with our decision in and in conflict with decisions of the Ninth Circuit and the Eleventh Circuit, see ; Alimenta (U. S. A.), ; II Federal Rule of Civil Procedure 59(e) concerns "motion[s] to alter or amend the judgment." The Rule requires that such motions be filed within 10 days of the initial entry of judgment. "[T]he federal courts generally have invoked Rule 59(e) only to support reconsideration of matters properly encompassed in a decision on the merits." White, In White, we held that a motion for attorney's fees under 42 U.S. C. 1988 was not a Rule 59(e) motion. We reasoned that because 1988 provides for fees independently of the underlying cause of action and only for a "prevailing party," a motion for fees required an inquiry "separate from the decision on the merits an inquiry that cannot even commence until one party has `prevailed.' " 455 U.S., -452. Cf. cert. granted, (presenting issue whether a different rule applies when fees are not provided for independently, as by 1988, but as an aspect *268 of the underlying action). Such a motion therefore " `does not imply a change in the judgment, but merely seeks what is due because of the judgment.' " ). Respondents' postjudgment motion for costs similarly sought only what was due because of the judgment. Because the Death on the High Seas Act contains no provision regarding costs, respondents' motion for costs necessarily was predicated on Federal Rule of Civil Procedure 54(d). Assessment of such costs does not involve reconsideration of any aspect of the decision on the merits. Under Rule 54(d), the "prevailing party" automatically is entitled to costs "unless the court otherwise directs." Indeed, the Rule contemplates that applications for costs will be presented in the first instance not to the court but to the clerk; a district judge need not take up the issue at all unless the losing party makes a timely motion for judicial review. Fed. Rule Civ. Proc. 54(d) ("On motion served within 5 days [after the clerk's taxing of costs], the action of the clerk may be reviewed by the court"); 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 2679, p. 396 (2d ed. 1983). A sharp distinction between the judgment on the merits and an award of costs under Rule 54(d) also is evident in Rule 58's instruction that "[e]ntry of the judgment shall not be delayed for the taxing of costs." Thus it is apparent that |
per_curiam | 1,988 | 200 | per_curiam | Buchanan v. Stanships, Inc. | https://www.courtlistener.com/opinion/112024/buchanan-v-stanships-inc/ | for the taxing of costs." Thus it is apparent that the Rules "attemp[t] to divorce the process of entering judgment from that of determining and assessing the costs." 10 Wright, Miller, & Kane, 2679, p. 392. While a different issue may be presented if expenses of this sort were provided as an aspect of the underlying action, we are satisfied that a motion for costs filed pursuant to Rule 54(d) does not seek "to alter or amend the judgment" within the meaning of Rule 59(e). Instead, such a request for costs raises issues wholly collateral to the judgment in the main cause of action, issues to which Rule 59(e) *269 was not intended to apply. White, Cf. ; Respondents' inaccurate designation of their costs request as a Rule 59(e) motion cannot change this fact. Nor can respondents' incorrect label deprive petitioners of the benefit of their timely notice of appeal. Because respondents' motion, properly viewed, was a Rule 54(d) motion for costs rather than a Rule 59(e) motion to alter or amend a judgment, petitioners' notice of appeal was timely under the Federal Rules of Appellate Procedure. Certiorari is therefore granted, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Stevens | 1,984 | 16 | majority | Mabry v. Johnson | https://www.courtlistener.com/opinion/111208/mabry-v-johnson/ | The question presented is whether a defendant's acceptance of a prosecutor's proposed plea bargain creates a constitutional right to have the bargain specifically enforced. In the late evening of May 22, 1970, three members of a family returned home to find a burglary in progress. Shots were exchanged resulting in the daughter's death and the wounding of the father and respondent one of the burglars. Respondent was tried and convicted on three charges: burglary, assault, and murder. The murder conviction was set aside by the Arkansas Supreme Court, Thereafter, plea negotiations ensued At the time of the negotiations respondent was serving his concurrent 21- and 12-year sentences on the burglary and assault convictions. On Friday, October 27, a deputy *506 prosecutor proposed to respondent's attorney that in exchange for a plea of guilty to the charge of accessory after a felony murder, the prosecutor would recommend a sentence of 21 years to be served concurrently with the burglary and assault sentences. On the following day, counsel communicated the offer to respondent who agreed to accept it. On the next Monday the lawyer called the prosecutor "and communicated [respondent's] acceptance of the offer." App. 10. The prosecutor then told counsel that a mistake had been made and withdrew the offer. He proposed instead that in exchange for a guilty plea he would recommend a sentence of 21 years to be served consecutively to respondent's other sentences. Respondent rejected the new offer and elected to stand trial. On the second day of trial, the judge declared a mistrial and plea negotiations resumed, ultimately resulting in respondent's acceptance of the prosecutor's second offer. In accordance with the plea bargain, the state trial judge imposed a 21-year sentence to be served consecutively to the previous sentences. After exhausting his state remedies, respondent filed a petition for a writ of habeas corpus under 28 U.S. C. 2254.[1] The District Court dismissed the petition, finding that respondent had understood the consequences of his guilty plea, that he had received the effective assistance of counsel, and that because the evidence did not establish that respondent had detrimentally relied on the prosecutor's first proposed plea agreement, respondent had no right to enforce it. The Court of Appeals reversed, over Judge John R. Gibson's dissent. The majority concluded that "fairness" precluded the prosecution's withdrawal of a plea proposal once accepted by respondent. Because of a *507 conflict in the Circuits,[2] coupled with our concern that an important constitutional question had been wrongly decided, we granted certiorari, We now reverse.[3] Respondent can obtain federal habeas corpus relief only if |
Justice Stevens | 1,984 | 16 | majority | Mabry v. Johnson | https://www.courtlistener.com/opinion/111208/mabry-v-johnson/ | reverse.[3] Respondent can obtain federal habeas corpus relief only if his custody is in violation of the Federal Constitution.[4] A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.[5] It is the ensuing guilty plea that implicates the *508 Constitution. Only after respondent pleaded guilty was he convicted, and it is that conviction which gave rise to the deprivation of respondent's liberty at issue here.[6] It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.[7] It is also well settled that plea agreements are consistent with the requirements of voluntariness and intelligence because each side may obtain advantages when a guilty plea is exchanged for sentencing concessions, the agreement is no less voluntary than any other bargained-for exchange.[8] It is only *509 when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired. In we stated the applicable standard: " `[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e. g. bribes).' " (in turn quoting (Tuttle, J., dissenting to panel opinion)), rev'd on other grounds, Thus, only when it develops that the defendant was not fairly apprised of its consequences can his plea be challenged under the Due Process Clause. illustrates the point. We began by acknowledging that the conditions for a valid plea "presuppose fairness in securing agreement between an accused and a prosecutor. The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known." It follows that when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand: "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled."[9] *510 Santobello demonstrates |
Justice Stevens | 1,984 | 16 | majority | Mabry v. Johnson | https://www.courtlistener.com/opinion/111208/mabry-v-johnson/ | or consideration, such promise must be fulfilled."[9] *510 Santobello demonstrates why respondent may not successfully attack his plea of guilty. Respondent's plea was in no sense induced by the prosecutor's withdrawn offer; unlike Santobello, who pleaded guilty thinking he had bargained for a specific prosecutorial sentencing recommendation which was not ultimately made, at the time respondent pleaded guilty he knew the prosecution would recommend a 21-year consecutive sentence. Respondent does not challenge the District Court's finding that he pleaded guilty with the advice of competent counsel and with full awareness of the consequences he knew that the prosecutor would recommend and that the judge could impose the sentence now under attack.[10] Respondent's plea was thus in no sense the product of governmental deception; it rested on no "unfulfilled promise" and fully satisfied the test for voluntariness and intelligence. Thus, because it did not impair the voluntariness or intelligence of his guilty plea, respondent's inability to enforce the prosecutor's offer is without constitutional significance.[11]*511 Neither is the question whether the prosecutor was negligent or otherwise culpable in first making and then withdrawing his offer relevant. The Due Process Clause is not a code of ethics for prosecutors; its concern is with the manner in which persons are deprived of their liberty.[12] Here respondent was not deprived of his liberty in any fundamentally unfair way. Respondent was fully aware of the likely consequences when he pleaded guilty; it is not unfair to expect him to live with those consequences now. The judgment of the Court of Appeals is Reversed. |
Justice Burger | 1,976 | 12 | dissenting | Craig v. Boren | https://www.courtlistener.com/opinion/109570/craig-v-boren/ | I am in general agreement with MR. JUSTICE REHNQUIST'S dissent, but even at the risk of compounding the obvious confusion created by those voting to reverse the District Court, I will add a few words. At the outset I cannot agree that appellant Whitener has standing arising from her status as a saloonkeeper to assert the constitutional rights of her customers. In this Court "a litigant may only assert his own constitutional rights or immunities." United There are a few, but strictly limited exceptions to that rule; despite the most creative efforts, this case fits within none of them. *216 This is not 396 U.S. 9 or for there is here no barrier whatever to Oklahoma males 18-20 years of age asserting, in an appropriate forum, any constitutional rights they may claim to purchase 3.2% beer. Craig's successful litigation of this very issue was prevented only by the advent of his 21st birthday. There is thus no danger of interminable dilution of those rights if appellant Whitener is not permitted to litigate them here. Cf. Nor is this controlled by It borders on the ludicrous to draw a parallel between a vendor of beer and the intimate professional physician-patient relationship which undergirded relaxation of standing rules in that case. Even in Eisenstadt, the Court carefully limited its recognition of third-party standing to cases in which the relationship between the claimant and the relevant third party "was not simply the fortuitous connection between a vendor and potential vendees, but the relationship between one who acted to protect the rights of a minority and the minority itself." This is plainly not the case here. See also ; 411 U.S. 3, In sum, permitting a vendor to assert the constitutional rights of vendees whenever those rights are arguably infringed introduces a new concept of constitutional standing to which I cannot subscribe. On the merits, we have only recently recognized that our duty is not "to create substantive constitutional rights in the name of guaranteeing equal protection of the laws." San Antonio School Thus, even interests of such importance in our society as public education and housing do not qualify as "fundamental rights" for equal protection purposes because they have no *217 textually independent constitutional status. See ; Though today's decision does not go so far as to make gender-based classifications "suspect," it makes gender a disfavored classification. Without an independent constitutional basis supporting the right asserted or disfavoring the classification adopted, I can justify no substantive constitutional protection other than the normal protection afforded by the Equal Protection Clause. The means employed by |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | Sometimes two different tribunals are asked to decide the same issue. When that happens, the deci of the first tribunal usually must be followed by the second, at least if the issue is really the same. Allowing the same issue to be decided more than once wastes litigants’ re- sources and adjudicators’ time, and it encourages parties who lose before one tribunal to shop around for another. The doctrine of collateral estoppel or issue preclu is designed to prevent this from occurring. This case concerns the application of issue preclu in the context of trademark law. Petitioner, B&B Hardware, Inc. (B&B), and respondent Hargis Industries, Inc. (Har- gis), both use similar trademarks; B&B owns SEALTIGHT while Hargis owns SEALTITE. Under the Lanham Act, as amended, 15 U.S. C. et seq., an applicant can seek to register a trademark through an administrative process within the United States Patent and Trademark Office (PTO). But if another party be- 2 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court lieves that the PTO should not register a mark because it is too similar to its own, that party can oppose registration before the Trademark Trial and Appeal Board (TTAB). Here, Hargis tried to register the mark SEALTITE, but B&B opposed SEALTITE’s registration. After a lengthy proceeding, the TTAB agreed with B&B that SEALTITE should not be registered. In addition to permitting a party to object to the regis- tration of a mark, the Lanham Act allows a mark owner to sue for trademark infringement. Both a registration proceeding and a suit for trademark infringement, more- over, can occur at the same time. In this case, while the TTAB was deciding whether SEALTITE should be regis- tered, B&B and Hargis were also litigating the SEALTIGHT versus SEALTITE dispute in federal court. In both registration proceedings and infringement litiga- tion, the tribunal asks whether a likelihood of confu exists between the mark sought to be protected (here, SEALTIGHT) and the other mark (SEALTITE). The question before this Court is whether the District Court in this case should have applied issue preclu to the TTAB’s deci that SEALTITE is confusingly similar to SEALTIGHT. Here, the Eighth Circuit rejected issue preclu for reasons that would make it difficult for the doctrine ever to apply in trademark disputes. We disagree with that narrow understanding of issue preclu. Instead, consistent with principles of law that apply in innumerable contexts, we hold that a court should give preclusive effect to TTAB decis if the ordinary ele- ments of issue preclu are met. We therefore reverse the judgment of |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | issue preclu are met. We therefore reverse the judgment of the Eighth Circuit and remand for further proceedings. I A Trademark law has a long history, going back at least to Cite as: 575 U. S. (2015) 3 Opinion of the Court Roman times. See Restatement (Third) of Unfair Compe- tition Comment b The principle underlying trademark protection is that distinctive marks—words, names, symbols, and the like—can help distinguish a particular artisan’s goods from those of others. One who first uses a distinct mark in commerce thus acquires rights to that mark. See 2 J. McCarthy, Trademarks and Unfair Competition (4th ed. 2014) (hereinafter McCarthy). Those rights include preventing others from using the mark. See 1 A. LaLonde, Gilson on Trademarks (2014) (hereinafter Gilson). Though federal law does not create trademarks, see, e.g., Trade-Mark Cases, Congress has long played a role in protecting them. In 6, Con- gress enacted the Lanham Act, the current federal trade- mark scheme. As relevant here, the Lanham Act creates at least two adjudicative mechanisms to help protect marks. First, a trademark owner can register its mark with the PTO. Second, a mark owner can bring a suit for infringement in federal court. Registration is significant. The Lanham Act confers “important legal rights and benefits” on trademark owners who register their marks. 3 McCarthy at 19–21 see also at 19–34 (listing seven of the “procedural and substantive legal advantages” of registration). Regis- tration, for instance, serves as “constructive notice of the registrant’s claim of ownership” of the mark. 15 U.S. C. It also is “prima facie evidence of the validity of the registered mark and of the registration of the mark, of the owner’s ownership of the mark, and of the owner’s exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate.” And once a mark has been regis- tered for five years, it can become “incontestable.” 1115(b) To obtain the benefits of registration, a mark owner files 4 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court an application with the PTO. The application must include, among other things, “the date of the appli- cant’s first use of the mark, the date of the applicant’s first use of the mark in commerce, the goods in connection with which the mark is used, and a drawing of the mark.” (a)(2). The usages listed in the application—i.e., those goods on which the mark appears along with, if applicable, their channels of distribution—are critical. See, e.g., 3 McCarthy at 20–83 (“[T]he applicant’s right |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | critical. See, e.g., 3 McCarthy at 20–83 (“[T]he applicant’s right to register must be made on the basis of the goods described in the application”); at 20–85 (ex- plaining that if an “application does not delimit any spe- cific trade channels of distribution, no limitation will be” applied). The PTO generally cannot register a mark which “so resembles” another mark “as to be likely, when used on or in connection with the goods of the applicant, to cause confu, or to cause mistake, or to deceive.” 15 U.S. C. If a trademark examiner believes that registration is warranted, the mark is published in the Official Gazette of the PTO. At that point, “[a]ny person who believes that he would be damaged by the registration” may “file an opposition.” Opposition proceedings occur before the TTAB (or panels thereof). The TTAB consists of administrative trademark judges and high- ranking PTO officials, including the Director of the PTO and the Commiser of Trademarks. Opposition proceedings before the TTAB are in many ways “similar to a civil action in a federal district court.” TTAB Manual of Procedure (2014) (hereinafter TTAB Manual), online at http://www.uspto.gov (as visited Mar. 20, 2015, and available in Clerk of Court’s case file). These proceedings, for instance, are largely governed by the Federal Rules of Civil Procedure and Evidence. See 37 CFR 2.122(a) (2014). The TTAB also allows discovery and depositions. See 2.123(a). The Cite as: 575 U. S. (2015) 5 Opinion of the Court party opposing registration bears the burden of proof, see and if that burden cannot be met, the opposed mark must be registered, see 15 U.S. C. The primary way in which TTAB proceedings differ from ordinary civil litigation is that “proceedings before the Board are conducted in writing, and the Board’s actions in a particular case are based upon the written record therein.” TTAB Manual In other words, there is no live testimony. Even so, the TTAB allows parties to submit transcribed testimony, taken under oath and subject to cross-examination, and to request oral argument. See 37 CFR 2.129. When a party opposes registration because it believes the mark proposed to be registered is too similar to its own, the TTAB evaluates likelihood of confu by apply- ing some or all of the 13 factors set out in In re E. I. DuPont DeNemours & Co., After the TTAB decides whether to register the mark, a party can seek review in the U. S. Court of Appeals for the Federal Circuit, or it can file a new action in district court. See 15 U.S. C. |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | a new action in district court. See 15 U.S. C. In district court, the parties can conduct additional discovery and the judge resolves regis- tration de novo. see also 3 McCarthy (explaining differences between the forums); cf. Kappos v. Hyatt, 566 U. S. (2012) (de novo review for analogous scheme in patent law). The Lanham Act, of course, also creates a federal cause of action for trademark infringement. The owner of a mark, whether registered or not, can bring suit in federal court if another is using a mark that too closely resembles the plaintiff ’s. The court must decide whether the de- fendant’s use of a mark in commerce “is likely to cause confu, or to cause mistake, or to deceive” with regards to the plaintiff ’s mark. See 15 U.S. C. (regis- tered marks); (unregistered marks). In infringement litigation, the district court considers the full 6 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court range of a mark’s usages, not just those in the application. B Petitioner B&B and respondent Hargis both manufac- ture metal fasteners. B&B manufactures fasteners for the aerospace industry, while Hargis manufactures fasteners for use in the construction trade. Although there are obvious differences between space shuttles and A-frame buildings, both aerospace and construction engineers prefer fasteners that seal things tightly. Accordingly, both B&B and Hargis want their wares associated with tight seals. A feud of nearly two decades has sprung from this seemingly commonplace set of facts. In B&B registered SEALTIGHT for “threaded or unthreaded metal fasteners and other related hardwar[e]; namely, self-sealing nuts, bolts, screws, rivets and wash- ers, all having a captive o-ring, for use in the aerospace industry.” App. 223a (capitalization omitted). In 1996, Hargis sought to register SEALTITE for “self-piercing and self-drilling metal screws for use in the manufacture of metal and post-frame buildings.” App. 70a (capitalization omitted). B&B opposed Hargis’ registration because, although the two companies sell different products, it believes that SEALTITE is confusingly similar to SEALTIGHT. The twists and turns in the SEALTIGHT versus SEALTITE controversy are labyrinthine. The question whether either of these marks should be registered, and if so, which one, has bounced around within the PTO for about two decades; related infringement litigation has been before the Eighth Circuit three times; and two sepa- rate juries have been empaneled and returned verdicts. The full story could fill a long, unhappy book. For purposes here, we pick up the story in 2002, when the PTO published SEALTITE in the Official Gazette. This prompted opposition proceedings before the TTAB, Cite as: 575 |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | This prompted opposition proceedings before the TTAB, Cite as: 575 U. S. (2015) 7 Opinion of the Court complete with discovery, including depositions. B&B ar- gued that SEALTITE could not be registered because it is confusingly similar to SEALTIGHT. B&B explained, for instance, that both companies have an online presence, the largest distributor of fasteners sells both companies’ products, and consumers sometimes call the wrong com- pany to place orders. Hargis rejoined that the companies sell different products, for different uses, to different types of consumers, through different channels of trade. Invoking a number of the DuPont factors, the TTAB sided with B&B. The Board considered, for instance, whether SEALTIGHT is famous (it’s not, said the Board), how the two products are used (differently), how much the marks resemble each other (very much), and whether customers are actually confused (perhaps sometimes). See App. to Pet. for Cert. 55a–71a. Concluding that “the most critical factors in [its] likelihood of confu analysis are the similarities of the marks and the similarity of the goods,” at 70a, the TTAB determined that SEALTITE—when “used in connection with ‘self-piercing and self-drilling metal screws for use in the manufacture of metal and post-frame buildings’ ”—could not be regis- tered because it “so resembles” SEALTIGHT when “used in connection with fasteners that provide leakproof protec- tion from liquids and gases, fasteners that have a captive o-ring, and ‘threaded or unthreaded metal fastners and other related hardware for use in the aerospace indus- try’ as to be likely to cause confu,” at 71a. Despite a right to do so, Hargis did not seek judicial review in either the Federal Circuit or District Court. All the while, B&B had sued Hargis for infringement. Before the District Court ruled on likelihood of confu, however, the TTAB announced its deci. After a series of proceedings not relevant here, B&B argued to the Dis- trict Court that Hargis could not contest likelihood of confu because of the preclusive effect of the TTAB 8 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court deci. The District Court disagreed, reasoning that the TTAB is not an Article III court. The jury returned a verdict for Hargis, finding no likelihood of confu. B&B appealed to the Eighth Circuit. Though accepting for the sake of argument that agency decis can ground issue preclu, the panel majority affirmed for three reasons: first, because the TTAB uses different factors than the Eighth Circuit to evaluate likelihood of confu; second, because the TTAB placed too much emphasis on the appearance and sound of the two marks; and |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | on the appearance and sound of the two marks; and third, because Hargis bore the burden of persua before the TTAB, while B&B bore it before the District Court. 716 F.3d 1020 (2013). Judge Colloton dissented, concluding that issue preclu should apply. After calling for the views of the Solicitor General, we granted certiorari. 573 U. S. (2014). II The first question that we must address is whether an agency deci can ever ground issue preclu. The District Court rejected issue preclu because agencies are not Article III courts. The Eighth Circuit did not adopt that view, and, given this Court’s cases, it was right to take that course. This Court has long recognized that “the determination of a question directly involved in one action is conclusive as to that question in a second suit.” The idea is straightfor- ward: Once a court has decided an issue, it is “forever settled as between the parties,” thereby “protect[ing]” against “the expense and vexation attending multiple lawsuits, conserv[ing] judicial resources, and foster[ing] reliance on judicial action by minimizing the possibility of inconsistent verdicts,” In short, “a losing Cite as: 575 U. S. (2015) 9 Opinion of the Court litigant deserves no rematch after a defeat fairly suffered.” Fed. Sav. & Loan 107 (1991). Although the idea of issue preclu is straightforward, it can be challenging to implement. The Court, therefore, regularly turns to the Restatement (Second) of Judgments for a statement of the ordinary elements of issue preclu- See, e.g., ; New ; (1998). The Restatement explains that subject to certain well-known exceptions, the general rule is that “[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Restatement (Second) of Judgments p. 250 (1980); see also at (listing exceptions such as whether appellate review was available or whether there were “differences in the quality or extensiveness of the procedures followed”). Both this Court’s cases and the Restatement make clear that issue preclu is not limited to those situations in which the same issue is before two courts. Rather, where a single issue is before a court and an administrative agency, preclu also often applies. Indeed, this Court has explained that because the principle of issue preclu- was so “well established” at common law, in those situations in which Congress has authorized agencies to resolve disputes, “courts may take it as given that Con- gress has legislated |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | may take it as given that Con- gress has legislated with the expectation that the principle [of issue preclu] will apply except when a statutory purpose to the contrary is evident.” This reflects the Court’s longstanding view that “ ‘[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it 10 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.’ ” University of Tenn. v. 478 U.S. 788, 797–798 (1986) ); see also Hayfield Northern R. (noting Utah Construction); Kremer v. Chemical Constr. Corp., 456 U.S. 461, 484–485, n. 26 (1982) (characterizing Utah Construc- tion’s discus of administrative preclu as a hold- ing); Restatement (Second) of Judgments at 266 (explaining that, with some limits, “a valid and final adju- dicative determination by an administrative tribunal has the same effects under the rules of res judicata, subject to the same exceptions and qualifications, as a judgment of a court”). Although apparently accepting and Utah Con- struction,1 Hargis argues that we should not read the Lanham Act (or, presumably, many other federal statutes) as authorizing issue preclu. Otherwise, Hargis warns, the Court would have to confront “ ‘grave and doubtful questions’ as to the Lanham Act’s consistency with the Seventh Amendment and Article III of the Constitution.” Brief for Respondent 38 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909)). We are not persuaded. At the outset, we note that Hargis does not argue that giving issue preclusive effect to the TTAB’s deci would be unconstitutional. Instead, Hargis contends only that —————— 1 See Brief for Respondent 28 (acknowledging that administrative “[p]reclu’s status as part of the common-law backdrop means that courts may presume its application” absent contrary indication from Congress) (citing ); Brief for Respondent 34 (explaining that Utah Construction determined that “an administrative board’s factfinding could have preclusive effect in an Article III suit raising damages claims over which the board had no jurisdiction”). Cite as: 575 U. S. (2015) 11 Opinion of the Court we should read the Lanham Act narrowly because a broad reading might be unconstitutional. See, e.g., Brief for Respondent 37, 39, 40, 41–42. The likely reason that Hargis has not directly advanced a constitutional argu- ment is that, at least as to a jury trial right, Hargis did not even list the Seventh Amendment as an authority in its appellee brief to the Eighth Circuit. |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | an authority in its appellee brief to the Eighth Circuit. Moreover, although Hargis pressed an Article III argument below, in its oppo- sition to certiorari in this Court, Hargis seemingly con- ceded that TTAB decis can sometimes ground issue preclu, though it now protests otherwise. See Supplemental Brief in Opposition 2. To the extent, if any, that there could be a meritorious constitutional objection, it is not before us. See We reject Hargis’ statutory argument that we should jettison administrative preclu in whole or in part to avoid potential constitutional concerns. As to the Seventh Amendment, for instance, the Court has already held that the right to a jury trial does not negate the issue- preclusive effect of a judgment, even if that judgment was entered by a juryless tribunal. See Parklane Co. v. Shore, It would seem to follow naturally that although the Seventh Amendment creates a jury trial right in suits for trademark damages, see Dairy Queen, 479–480 (1962), TTAB decis still can have preclusive effect in such suits. Hargis disputes this reasoning even though it admits that in 1791 “ ‘a party was not entitled to have a jury determine issues that had been previously adjudi- cated by a chancellor in equity.’ ” Brief for Respondent 39 (quoting Parklane ). Instead, Hargis contends that issue preclu should not apply to TTAB registration decis because there were no agencies at common law. But our precedent holds that the Seventh Amendment does not strip competent tribunals of the 12 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court power to issue judgments with preclusive effect; that logic would not seem to turn on the nature of the competent tribunal. And at the same time, adopting Hargis’ view would dramatically undercut agency preclu, despite what the Court has already said to the contrary. Nothing in Hargis’ avoidance argument is weighty enough to over- come these weaknesses. The claim that we should read the Lanham Act narrowly to avoid Article III concerns is equally unavailing—and for similar reasons. Hargis argues that because it might violate Article III if an agency could make a deci with preclusive effect in a later proceeding before a federal court, we should conclude, as a statutory matter, that issue preclu is unavailable. Such a holding would not fit with our precedent. For instance, in the Court, relying on Utah Construction, explained that absent a contrary indication, Congress presumptively intends that an agency’s determination (there, a state agency) has preclusive –799; see also To be sure, the Court has never addressed whether such preclu- offends |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | sure, the Court has never addressed whether such preclu- offends Article III. But because this Court’s cases are so clear, there is no ambiguity for this Court to sidestep through constitutional avoidance.2 III The next question is whether there is an “evident” rea- son why Congress would not want TTAB decis to —————— 2 Our dissenting colleagues argue that Utah Construction’s conclu- that courts “have not hesitated” to apply administrative preclu- 384 U.S., at was mistaken and certainly should not be applied to statutes—such as the Lanham Act—enacted prior to 1966. We do not decide who reads the history better. The Court has repeat- edly endorsed Utah Construction and, importantly, neither party chal- lenges its historical accuracy. For the same reason, we do not decide whether such preclu is unconstitutional because the issue is not before us. Cite as: 575 U. S. (2015) 13 Opinion of the Court receive preclusive effect, even in those cases in which the ordinary elements of issue preclu are met. We conclude that nothing in the Lanham Act bars the application of issue preclu in such cases. The Lanham Act’s text certainly does not forbid issue preclu. Nor does the Act’s structure. Granted, one can seek judicial review of a TTAB registration deci in a de novo district court action, and some courts have con- cluded from this that Congress does not want unreviewed TTAB decis to ground issue preclu. See, e.g., American Heritage Life Ins. But that conclu does not follow. Ordinary preclu law teaches that if a party to a court proceeding does not challenge an adverse deci- that deci can have preclusive effect in other cases, even if it would have been reviewed de novo. See Restatement (Second) of Judgments Comment a and Illustration 1 (explaining that the failure to pursue an appeal does not undermine issue preclu and including an example of an apparently unappealed district court’s dismissal for failure to state a claim); cf. Federated De- partment Stores, (noting “the res judicata consequences of a final, unap- pealed judgment on the merits”). This case is also unlike where a plaintiff claim- ing discrimination first went to an agency and then sued in court about the same alleged conduct. See 501 U.S., at 111. The Court concluded, quite sensibly, that the struc- ture of that scheme indicated that the agency deci could not ground issue preclu. When exhausting an administrative process is a prerequisite to suit in court, giving preclusive effect to the agency’s determination in that very administrative process could render the judicial suit “strictly pro forma.” ; see also |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | render the judicial suit “strictly pro forma.” ; see also at 795–796 (similar analysis). Here, if a party urged a dis- trict court reviewing a TTAB registration deci to give 14 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court preclusive effect to the very TTAB deci under review, would apply. But that is not this case. What matters here is that registration is not a prerequi- site to an infringement action. Rather, it is a separate proceeding to decide separate rights. Neither is issue preclu a one-way street. When a district court, as part of its judgment, decides an issue that overlaps with part of the TTAB’s analysis, the TTAB gives preclusive effect to the court’s judgment. See App. to Pet. for Cert. 54a– 55a (giving preclusive effect to the District Court’s ear- lier deci regarding SEALTIGHT’s distinctiveness be- cause the issue “was actually litigated and necessarily determined”). Hargis also argues that allowing TTAB decis to have issue-preclusive effect will adversely affect the regis- tration process. Because of the TTAB’s “ ‘limited jurisdic- tion’ ” and “ ‘the narrowness of the issues’ ” before it, Hargis contends, the Court should infer that TTAB proceedings are supposed to be more streamlined than infringement litigation. See Brief for Respondent 30 (quoting TTAB Manual But, the argument goes, if TTAB deci- s can have issue-preclusive effect in infringement litigation, parties may spend more time and energy before the TTAB, thus bogging down the registration process. This concern does not change our conclu. Issue pre- clu is available unless it is “evident,” at 108, that Congress does not want it. Here, if a stream- lined process in all registration matters was particularly dear to Congress, it would not have authorized de novo challenges for those “dissatisfied” with TTAB decis. 15 U.S. C. Plenary review serves many func- tions, but ensuring a streamlined process is not one of them. Moreover, as explained below, for a great many registration decis issue preclu obviously will not apply because the ordinary elements will not be met. For those registrations, nothing we say today is relevant. Cite as: 575 U. S. (2015) 15 Opinion of the Court IV At last we turn to whether there is a categorical reason why registration decis can never meet the ordinary elements of issue preclu, e.g., those elements set out in of the Restatement (Second) of Judgments. Although many registrations will not satisfy those ordinary ele- ments, that does not mean that none will. We agree with Professor McCarthy that issue preclu applies where “the issues in the two cases |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | issue preclu applies where “the issues in the two cases are indeed identical and the other rules of collateral estoppel are carefully observed.” 6 McCarthy at 32–244; see also 3 Gilson p. 11–319 (“Ultimately, Board decis on likelihood of confu should be given preclusive effect on a case-by-case basis”). A The Eighth Circuit’s primary objection to issue preclu- was that the TTAB considers different factors than it does. Whereas the TTAB employs some or all of the DuPont factors to assess likelihood of confu, the Eighth Circuit looks to similar, but not identical, factors identified in 1091 (CA8 1980). The court’s instinct was sound: “[I]ssues are not identical if the second action involves application of a different legal standard, even though the factual setting of both suits may be the same.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice & Proce- dure p. 449 (2d ed. 2002) (hereinafter Wright & Miller). Here, however, the same likelihood-of-confu standard applies to both registration and infringement. To begin with, it does not matter that registration and infringement are governed by different statutory provi- s. Often a single standard is placed in different stat- utes; that does not foreclose issue preclu. See, e.g., Smith v. Bayer Corp., 564 U. S. (2011) (slip op., at 7). Neither does it matter that the TTAB and the Eighth 16 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court Circuit use different factors to assess likelihood of confu- For one thing, the factors are not fundamentally different, and “[m]inor variations in the application of what is in essence the same legal standard do not defeat preclu.” at n. 9 (slip op., at 12, n. 9). More important, if federal law provides a single standard, par- ties cannot escape preclu simply by litigating anew in tribunals that apply that one standard differently. A contrary rule would encourage the very evils that issue preclu helps to prevent. The real question, therefore, is whether likelihood of confu for purposes of registration is the same standard as likelihood of confu for purposes of infringement. We conclude it is, for at least three reasons. First, the operative language is essentially the same; the fact that the registration provi separates “likely” from “to cause confu, or to cause mistake, or to deceive” does not change that reality.3 See 2 Gilson –17 (explaining that “the same statutory test” applies). Sec- ond, the likelihood-of-confu language that Congress used in these Lanham Act provis has been central to trademark registration since at least 1881. See Act of Mar. 3, 1881, ch. 138, (using |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | 1881. See Act of Mar. 3, 1881, ch. 138, (using a “likely to cause confu” standard for registration). That could hardly have been by accident. And third, district courts can cancel registrations during infringement litigation, —————— 3 Compare 15 U.S. C. (“Any person who shall use in commerce any mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confu, or to cause mistake, or to deceive shall be liable in a civil action by the registrant for the remedies hereinafter provided” (emphasis added)) with (“No trademark shall be refused registration unless it [c]onsists of or comprises a mark which so resembles a mark registered in the Patent and Trademark Office as to be likely, when used on or in connection with the goods of the applicant, to cause confu, or to cause mistake, or to deceive” (emphasis added)). Cite as: 575 U. S. (2015) 17 Opinion of the Court just as they can adjudicate infringement in suits seeking judicial review of registration decis. See 15 U.S. C. 3 McCarthy There is no reason to think that the same district judge in the same case should apply two separate standards of likelihood of confu. Hargis responds that the text is not actually the same because the registration provi asks whether the marks “resemble” each other, 15 U.S. C. while the infringement provi is directed towards the “use in commerce” of the marks, Indeed, according to Hargis, the distinction between “resembl[ance]” and “use” has been key to trademark law for over a century. There is some force to this argument. It is true that “a party opposing an application to register a mark before the Board often relies only on its federal registration, not on any common-law rights in usages not encompassed by its registration,” and “the Board typically analyzes the marks, goods, and channels of trade only as set forth in the appli- cation and in the opposer’s registration, regardless of whether the actual usage of the marks by either party differs.” Brief for United States as Amicus Curiae 23; see also (explaining that “the Board typically reviews only the usages encompassed by the registration”) (citing 3 Gilson 3 McCarthy at 20–45 (ex- plaining that for registration “it is the mark as shown in the application and as used on the goods described in the application which must be considered, not the mark as actually used”). This means that unlike in infringement litigation, “[t]he Board’s determination that a likelihood of confu |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | infringement litigation, “[t]he Board’s determination that a likelihood of confu does or does not exist will not resolve the confu- issue with respect to non-disclosed usages.” Brief for United States as Amicus Curiae 23. Hargis’ argument falls short, however, because it mis- takes a reason not to apply issue preclu in some or even many cases as a reason never to apply issue preclu- Just because the TTAB does not always consider the 18 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court same usages as a district court does, it does not follow that the Board applies a different standard to the usages it does consider.4 If a mark owner uses its mark in ways that are materially the same as the usages included in its registration application, then the TTAB is deciding the same likelihood-of-confu issue as a district court in infringement litigation. By contrast, if a mark owner uses its mark in ways that are materially unlike the usages in its application, then the TTAB is not deciding the same issue. Thus, if the TTAB does not consider the market- place usage of the parties’ marks, the TTAB’s deci should “have no later preclusive effect in a suit where actual usage in the marketplace is the paramount issue.” 6 McCarthy at 32–246. Materiality, of course, is essential—trivial variations between the usages set out in an application and the use of a mark in the marketplace do not create different “is- sues,” just as trivial variations do not create different “marks.” See generally 4 at 23–265 (explain- ing that “adding descriptive or non-distinctive” elements to another’s mark generally will not negate confu). Otherwise, a party could escape the preclusive effect of an adverse judgment simply by adding an immaterial feature to its mark. That is not the law. See, e.g., Restatement (Second) of Judgments Comment c, at 252–253 (ex- plaining that “issue” must be understood broadly enough “to prevent repetitious litigation of what is essentially the same dispute”); United (applying issue preclu where a party sought to “litigate twice an issue arising from virtually identical facts” because the “factual differ- —————— 4 The parties dispute whether and how often the TTAB considers usages beyond those listed in the application and registration. We do not resolve that dispute here. Suffice it to say that when the TTAB adjudicates a usage within its authority, that adjudication can ground issue preclu. See Restatement (Second) of Judgments (1980). Cite as: 575 U. S. (2015) 19 Opinion of the Court ences” were “of no legal significance”). A fortiori, if the TTAB |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | were “of no legal significance”). A fortiori, if the TTAB considers a different mark alto- gether, issue preclu would not apply. Needless to say, moreover, if the TTAB has not decided the same issue as that before the district court, there is no reason why any deference would be warranted. For a similar reason, the Eighth Circuit erred in holding that issue preclu could not apply here because the TTAB relied too heavily on “appearance and sound.” App. to Pet. for Cert. 10a. Undoubtedly there are cases in which the TTAB places more weight on certain factors than it should. When that happens, an aggrieved party should seek judicial review. The fact that the TTAB may have erred, however, does not prevent preclu. As Judge Colloton observed in dissent, “ ‘issue preclu prevent[s] relitigation of wrong decis just as much as right ones.’ ” ); see also Restatement (Second) of Judgments Comment j, at 284 (explaining that “refusal to give the first judgment preclusive effect should not be based simply on a conclu that [it] was patently erroneous”). B Hargis also argues that registration is categorically incompatible with issue preclu because the TTAB uses procedures that differ from those used by district courts. Granted, “[r]edetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation.” Montana, 440 U.S., at 164, n. 11; see also Parklane 439 U.S., at 331, and n. 15 (similar). But again, this only suggests that sometimes issue preclu might be inappropriate, not that it always is. No one disputes that the TTAB and district courts use different procedures. Most notably, district courts feature 20 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court live witnesses. Procedural differences, by themselves, however, do not defeat issue preclu. Equity courts used different procedures than did law courts, but that did not bar issue preclu. See Nor is there reason to think that the state agency in used proce- dures identical to those in federal court; nonetheless, the Court held that preclu could apply. See 478 U.S., at 796–799. Rather than focusing on whether procedural differences exist—they often will—the correct inquiry is whether the procedures used in the first proceeding were fundamentally poor, cursory, or unfair. See Montana, 440 U.S., at 164, n. 11. Here, there is no categorical “reason to doubt the quality, extensiveness, or fairness,” ib of the agency’s proce- dures. In large part they are exactly the same as in fed- eral court. See 37 CFR 2.122(a). For instance, although the “[t]he scope of |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | 37 CFR 2.122(a). For instance, although the “[t]he scope of discovery in Board proceedings is generally narrower than in court proceedings”— reflecting the fact that there are often fewer usages at issue—the TTAB has adopted almost the whole of Federal Rule of Civil Procedure 26. TTAB Manual see also It is conceivable, of course, that the TTAB’s procedures may prove ill-suited for a particular issue in a particular case, e.g., a party may have tried to introduce material evidence but was prevented by the TTAB from doing so, or the TTAB’s bar on live testimony may materi- ally prejudice a party’s ability to present its case. The ordinary law of issue preclu, however, already ac- counts for those “rare” cases where a “compelling showing of unfairness” can be made. Restatement (Second) of Judgments Comments g and j, at 283–284. The Eighth Circuit likewise erred by concluding that Hargis bore the burden of persua before the TTAB. B&B, the party opposing registration, bore the burden, see (b); TTAB Manual just as it did in the infringement action. Hargis does not defend the Cite as: 575 U. S. (2015) 21 Opinion of the Court deci below on this ground. C Hargis also contends that the stakes for registration are so much lower than for infringement that issue preclu should never apply to TTAB decis. Issue preclu may be inapt if “the amount in controversy in the first action [was] so small in relation to the amount in contro- versy in the second that preclu would be plainly un- fair.” Restatement (Second) of Judgments Comment j, at 283–284. After all, “[f]ew litigants would spend $50,000 to defend a $5,000 claim.” Wright & Miller at 612. Hargis is wrong, however, that this exception to issue preclu applies to every registration. To the contrary: When registration is opposed, there is good reason to think that both sides will take the matter seriously. The benefits of registration are substantial. Registra- tion is “prima facie evidence of the validity of the regis- tered mark,” 15 U.S. C. and is a precondition for a mark to become “incontestable,” Incontestability is a powerful protection. See, e.g., Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., (holding that an incontestable mark cannot be challenged as merely descriptive); see also (explaining that “Con- gress determined that ‘trademarks should receive nationally the greatest protection that can be given them’ ” and that “[a]mong the new protections created by the Lanham Act were the statutory provis that allow a federally registered mark to become incontestable” (quot- ing S. Rep. No. 1333, 79th |
Justice Alito | 2,015 | 8 | majority | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | to become incontestable” (quot- ing S. Rep. No. 1333, 79th Cong., 2d Sess., 6 (6))). The importance of registration is undoubtedly why Congress provided for de novo review of TTAB decis in district court. It is incredible to think that a district court’s adjudication of particular usages would not have preclusive effect in another district court. Why would 22 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. Opinion of the Court unchallenged TTAB decis be different? Congress’ creation of this elaborate registration scheme, with so many important rights attached and backed up by plenary review, confirms that registration decis can be weighty enough to ground issue preclu. V For these reasons, the Eighth Circuit erred in this case. On remand, the court should apply the following rule: So long as the other ordinary elements of issue preclu are met, when the usages adjudicated by the TTAB are mate- rially the same as those before the district court, issue preclu should apply. The judgment of the United States Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 575 U. S. (2015) 1 GINSBURG, J., concurring SUPREME COURT OF THE UNITED STATES No. 13–352 B & B HARDWARE, INC., PETITIONER v. HARGIS INDUSTRIES, INC., DBA SEALTITE BUILDING FASTENERS, DBA EAST TEXAS FASTENERS ET AL. |
Justice Marshall | 1,981 | 15 | dissenting | FCC v. WNCN Listeners Guild | https://www.courtlistener.com/opinion/110437/fcc-v-wncn-listeners-guild/ | Under 309 (a) and 310 (d) of the Communications Act of 1934, as amended, 47 U.S. C. 151 et seq. *605 (Act), the Federal Communications Commission (Commission) may not approve an application for a radio license transfer, assignment, or renewal unless it finds that such change will serve "the public interest, convenience, and necessity."[1] Any party in interest may petition the Commission to deny the application, 309 (d) (1), and the Commission must hold a hearing if "a substantial and material question of fact is presented," 309 (d) (2). In my judgment, the Court of Appeals correctly held that in certain limited circumstances, the Commission may be obliged to hold a hearing to consider whether a proposed change in a licensee's entertainment program format is in the "public interest."[2] Accordingly, I would affirm the judgment of the Court of Appeals insofar as it vacated the Commission's "Policy Statement."[3] I At the outset, I should point out that my understanding of the Court of Appeals' format cases is very different from the Commission's.[4] Both in its Policy Statement and in its brief before this Court, the Commission has insisted that the format doctrine espoused by the Court of Appeals "favor[s] a system of pervasive governmental regulation,"[5] requiring "`comprehensive, discriminating, and continuing state surveillance.'"[6]*606 The Commission further contends that enforcement of the format doctrine would impose "common carrier" obligations on broadcasters and substitute for "the imperfect system of free competition a system of broadcast programming by government decree."[7] Were this an accurate description of the format doctrine I would join the Court in reversing the judgment below.[8] However, I agree with the Court of Appeals that "the actual features of [its format doctrine] are scarcely visible in [the Commission's] highly-colored portrait." 197 U. S. App. D. C. 319, In fact, the Court of Appeals accepted the Commission's conclusion that entertainment program formats should ordinarily be left to competitive forces. The court emphasized that the format doctrine "was not intended as an alternative to format allocation by market forces," and "fully recognized that market forces do generally provide diversification of formats." It explained that "the Commission's obligation to consider format issues arises only when there is strong prima facie evidence that the market has in fact broken down," ib and suggested that a breakdown in the market may be inferred when notice of a format change "precipitate[s] an outpouring of protest," 610 F. 2d, at 842, or "significant public grumbling," The Court of Appeals further stated that "[n]o public interest issue is raised if (1) there is an adequate substitute in the service |
Justice Marshall | 1,981 | 15 | dissenting | FCC v. WNCN Listeners Guild | https://www.courtlistener.com/opinion/110437/fcc-v-wncn-listeners-guild/ | if (1) there is an adequate substitute in the service area for the format being abandoned, (2) there *607 is no substantial support for the endangered format as evidenced by an outcry of public protest, (3) the devotees of the endangered format are too few to be served by the available frequencies, or (4) the format is not financially viable." 610 F.2d, at Finally, the Court of Appeals indicated that the Commission's obligation to hold an evidentiary hearing is limited to those situations in which the record presents substantial questions of material fact. 610 F. 2d, at 843. The Court of Appeals thus made clear that the format doctrine comes into play only in a few limited situations. Consequently, the issue presented by these cases is not whether the Commission may adopt a general policy of relying on licensee discretion and market forces to ensure diversity in entertainment programming formats. Rather, the question before us is whether the Commission may apply its general policy on format changes indiscriminately and without regard to the effect in particular cases. II Although the Act does not define "public interest, convenience, and necessity," it is difficult to quarrel with the basic premise of the Court of Appeals' format cases that the term includes "a concern for diverse entertainment programming." 610 F. 2d, at 842.[9] This Court has indicated that one of the Act's goals is "to secure the maximum benefits of radio to all the people of the United" National[10]*608 And we have recognized "the long-established regulatory goals of diversification of programming." At the same time, our cases have acknowledged that the Commission enjoys broad discretion in determining how best to accomplish this goal. See ; National The Commission has concluded that a general policy of relying on market forces is the best method for promoting diversity in entertainment programming formats. As the majority notes, ante, at 595, this determination largely rests on the Commission's predictions about licensee behavior and the functioning of the radio broadcasting market. I agree with the majority that predictions of this sort are within the Commission's institutional competence. I am also willing to assume that a general policy of disregarding format changes in making the "public interest" determination required by the Act is not inconsistent with the Commission's statutory obligation to give individualized consideration to each application. The Commission has broad rulemaking powers under the Act,[11] and we have approved efforts by the Commission to implement the Act's "public interest" requirement through rules and policies of general application. See, e. g., United v. Storer ; National The problem with |
Justice Marshall | 1,981 | 15 | dissenting | FCC v. WNCN Listeners Guild | https://www.courtlistener.com/opinion/110437/fcc-v-wncn-listeners-guild/ | e. g., United v. Storer ; National The problem with the particular Policy Statement challenged here, however, is that it lacks the flexibility we have required of such general regulations and policies. See, e. g., United v. Storer National *609 The Act imposes an affirmative duty on the Commission to make a particularized "public interest" determination for each application that comes before it. As we explained in National the Commission must, in each case, "exercise an ultimate judgment whether the grant of a license would serve the `public interest, convenience, or necessity.'" The Policy Statement completely forecloses any possibility that the Commission will re-examine the validity of its general policy on format changes as it applies to particular situations. Thus, even when it can be conclusively demonstrated that a particular radio market does not function in the manner predicted by the Commission, the Policy Statement indicates that the Commission will blindly assume that a proposed format change is in the "public interest." This result would occur even where reliance on the market to ensure format diversity is shown to be misplaced, and where it thus appears that action by the Commission is necessary to promote the public interest in diversity. This outcome is not consistent with the Commission's statutory responsibilities. Moreover, our cases have indicated that an agency's discretion to proceed in complex areas through general rules is intimately connected to the existence of a "safety valve" procedure that allows the agency to consider applications for exemptions based on special circumstances. See E. I. du Pont de Nemours & v. Train, ; Permian Basin Area Rate Cases, ; ; United v. Storer ; National See also WAIT ; American (en banc), cert. denied, ; WBEN, Inc. v. United (CA2), cert. denied, *610 For example, in National we upheld the Commission's Chain Regulations, but we emphasized the need for flexibility in administering the rules. We noted that the "Commission provided that `networks will be given full opportunity, on proper application. to call our attention to any reasons why the principle should be modified or held inapplicable.'" And we concluded: "The Commission therefore did not bind itself inflexibly to the licensing policies expressed in the regulations. In each case that comes before it the Commission must still exercise an ultimate judgment whether the grant of a license would serve the `public interest, convenience, or necessity.' If time and changing circumstances reveal that the `public interest' is not served by application of the Regulations, it must be assumed that the Commission will act in accordance with its statutory obligations." Similarly, in upholding the |
Justice Marshall | 1,981 | 15 | dissenting | FCC v. WNCN Listeners Guild | https://www.courtlistener.com/opinion/110437/fcc-v-wncn-listeners-guild/ | in accordance with its statutory obligations." Similarly, in upholding the Commission's Multiple Ownership Rules in United v. Storer we noted that the regulations allowed an opportunity for a "full hearing" for applicants "that set out adequate reasons why the Rules should be waived or amended."[12] *611 This "safety valve" feature is particularly essential where, as here, the agency's decision that a general policy promotes the public interest is based on predictions and forecasts that by definition lack complete factual support. As the Court of Appeals admonished the Commission in a related context: "The Commission is charged with administration in the `public interest.' That an agency may discharge its responsibilities by promulgating rules of general application which, in the overall perspective, establish the `public interest' for a broad range of situations, does not relieve it of an obligation to seek out the `public interest' in particular, individualized cases. A general rule implies that a commission need not re-study the entire problem de novo and reconsider policy every time it receives an application for a waiver of the rule. On the other hand, a general rule, deemed valid because its overall objectives are in the public interest, may not be in the `public interest' if extended to an applicant who proposes a new service that will not undermine the policy, served by the rule, that has been adjudged in the public interest." WAIT Radio v. 418 F.2d, at In my judgment, this requirement of flexibility compels the Commission to provide a procedure through which listeners can attempt to show that a particular radio market differs from the Commission's paradigm, and thereby persuade the Commission to give particularized consideration to a proposed format change. Indeed, until the Policy Statement was published, the Commission had resolved to "take an extra hard look at the reasonableness of any proposal which would deprive a community of its only source of a particular type of programming."[13] As I see it, the Court of Appeals' format doctrine was merely an attempt by that court to delineate *612 the circumstances in which the Commission must temper its general policy in view of special circumstances. Perhaps the court would have been better advised to leave the task of defining these situations to the Commission.[14] But one need not endorse every feature of the Court of Appeals' approach to conclude that the court correctly invalidated the Commission's Policy Statement because of its omission of a "safety valve" procedure. This omission is not only a departure from legal precedents; it is also a departure both from the Commission's consistent policies and its |
Justice Marshall | 1,981 | 15 | dissenting | FCC v. WNCN Listeners Guild | https://www.courtlistener.com/opinion/110437/fcc-v-wncn-listeners-guild/ | a departure both from the Commission's consistent policies and its admissions here. For the Commission concedes that the radio market is an imperfect reflection of listener preferences,[15] and that listeners have programming interests that may not be reflected in the marketplace. The Commission has long recognized its obligation to examine program formats in making the "public interest" determination required by the Act. As early as the Commission's predecessor, the Federal Radio Commission, adopted the position that licensees were expected to provide a balanced program schedule designed to serve all substantial groups in their communities. Great Lakes 3 F. R. C. Ann. Rep. 32, 34, rev'd on other grounds, The Commission's famous "Blue Book,"[16] published in 1946, reaffirmed the emphasis on a well-balanced program structure and declared that the Commission has "an affirmative duty, in its public interest determinations, to give full consideration to program service."[17] As the Commission explained: "It has long been an established policy of broadcasters themselves and of the Commission that the American *613 system of broadcasting must serve significant minorities among our population, and the less dominant needs and tastes which most listeners have from time to time."[18] This theme was reiterated in the Commission's 1960 Program Statement,[19] which set forth 14 specific categories of programming that were deemed "major elements usually necessary to meet the public interest, needs and desires of the community,"[20] and which emphasized the necessity of each broadcaster's programming serving the "tastes and needs" of its local community.[21] To ensure that licensee programming serves the needs of the community, the Commission has, for example, decreed that licensees have a special obligation to provide programs for children, even going so far as to declare that licensees must provide "a reasonable amount of [children's] programming which is designed to educate and inform and not simply to entertain."[22] Moreover, in examining renewal applications, the Commission has considered claims that a licensee does not provide adequate children's programming,[23] or programming for women and children,[24] or for a substantial Spanish-American community,[25] or that the licensee has ignored issues of significance to the Negro community,[26] or has not provided programming of specific interest to residents of a particular *614 area.[27] In each case, the Commission reviewed submissions ranging from general summaries to transcripts of programs, to determine whether the licensee's programming met the public-interest standard. There is an obvious inconsistency between the Commission's recognition that the "public interest" standard requires it to consider licensee programming in the situations described above and its Policy Statement on review of entertainment program formats. Indeed, the sole instance in which the Commission |
Justice Marshall | 1,981 | 15 | dissenting | FCC v. WNCN Listeners Guild | https://www.courtlistener.com/opinion/110437/fcc-v-wncn-listeners-guild/ | program formats. Indeed, the sole instance in which the Commission will not consider listener complaints about programming is when they pertain to proposed changes in entertainment program formats. The Policy Statement attempts to explain this exceptional treatment of format changes by drawing a distinction between entertainment and nonentertainment programming. The Policy Statement suggests that the Commission reviews only nonentertainment programming, and even then, only in special circumstances. Thus, the Policy Statement argues that the fairness doctrine and political broadcasting rules issued pursuant to 315, 47 U.S. C. 315, allow the Commission to exercise direct control *615 of programming. In these areas, reasons the Statement, the Commission's role "is limited to directing the licensee to broadcast some additional material so as not to completely ignore the viewpoints of others in the community."[28] This "limited involvement in licensee decisionmaking in the area of news and public affairs"[29] is contrasted, in the Commission's view, to "the pervasive, censorial nature of the involvement in format regulation."[30] The majority presumably concludes that the Commission has provided a rational explanation for distinguishing between entertainment and nonentertainment programming. With all due respect, I disagree. In the first place, the distinction the Commission tries to draw between entertainment and nonentertainment programming is questionable. It is not immediately apparent, for example, why children's programming necessarily falls on the "nonentertainment" side of the spectrum, and the Commission has provided no explanation of how it decides the category to which particular programming belongs. Second, I see no reason why the Commission's review of entertainment programming cannot be as limited as its review of nonentertainment programming. Nothing prevents the Commission from limiting its role in reviewing format changes to "directing the licensee to broadcast additional material," thereby ensuring that the viewpoints of listeners who complain about a proposed format change are not completely ignored. Third, and most important, neither the fairness doctrine nor the political broadcasting rules have anything to do with the various situations described above in which the Commission has not hesitated to consider program formats in making the "public interest" determination. The fairness doctrine imposes an obligation on licensees to devote a "reasonable percentage" *616 of broadcast time to controversial issues of public importance, and it requires that the coverage be fair in that it accurately reflect the opposing views. See Red Lion v. The political broadcasting rules regulate broadcasts by candidates for federal and nonfederal public office. See The Law of Political and Cablecasting, 69 F. C. C. 2d 2209 The Commission's examination of whether a broadcaster's format includes programming directed at women or at residents of the |
Justice Marshall | 1,981 | 15 | dissenting | FCC v. WNCN Listeners Guild | https://www.courtlistener.com/opinion/110437/fcc-v-wncn-listeners-guild/ | includes programming directed at women or at residents of the local community, or its requirement that licensees provide programming designed to serve the unique needs of children, simply has nothing to do with either the fairness doctrine or the political broadcasting rules. Thus, the Commission's purported justification for its inconsistency is no explanation at all, and I am puzzled by the majority's apparent conclusion that it provides a rational basis for the Commission's policy. The majority attempts to minimize the inconsistency in the Commission's treatment of entertainment and nonentertainment programming by postulating that the difference "is not as pronounced as it may seem," ante, at 602. This observation, even if accurate, is simply beside the point. What is germane is the Commission's failure to consider listener complaints about entertainment programming to the same extent and in the same manner as it reviews complaints about nonentertainment programming. Thus, whereas the Commission will hold an evidentiary hearing to review complaints about nonentertainment programming where "`it appears that the licensee has act[ed] unreasonably or in bad faith,'" ), the Commission will not consider an identical complaint about a licensee's change in its entertainment programming. As I have indicated. see neither the Commission nor the majority is able to offer a satisfactory explanation for this inconsistency. *617 Nor can the Commission find refuge in its claim that "`[e]ven after all relevant facts [h]ad been fully explored in an evidentiary hearing, [the Commission] would have no assurance that a decision finally reached by [the Commission] would contribute more to listener satisfaction than the result favored by station management.'" Policy Statement, 60 F. C. C. 2d 858, 865 (1976), quoting Notice of Inquiry, 57 F. C. C. 2d 580, 586 (1976). The same must be true of the decisions the Commission makes after reviewing listener complaints about nonentertainment programming, and I do not see why the Commission finds this result acceptable in one situation but not in the other. Much the same can be said for the majority's suggestion that the Commission should be spared the burden of "presuming to grasp, measure and weigh elusive and difficult factors" such as determining the number of listeners who favor a particular change and measuring the intensity of their preferences, ante, at 601. But insofar as the Commission confronts these same "elusive and difficult factors" in reviewing nonentertainment programming, it need only apply the expertise it has acquired in dealing with these problems to review of entertainment programming. III Since I agree with the Court of Appeals that there may be situations in which the Commission is obliged to |
Justice Marshall | 1,981 | 15 | dissenting | FCC v. WNCN Listeners Guild | https://www.courtlistener.com/opinion/110437/fcc-v-wncn-listeners-guild/ | may be situations in which the Commission is obliged to consider format changes in making the "public interest" determination mandated by the Act, it seems appropriate to comment briefly on the Commission's claim that the "`acute practical problem[s]' inherent in format regulation render entirely speculative any benefits that such regulation might produce."[31] One of the principal reasons given in the Policy Statement for rejecting entertainment format regulation is that it would be "administratively a fearful and comprehensive * nightmare."[32] that would impose "enormous costs on the participants and the Commission alike."[33] But at oral argument before the Court of Appeals, Commission counsel conceded that the "`administrative nightmare'" argument was an "`exaggeration'" which was not "`very significant at all'" to the Commission's ultimate conclusion. 197 U. S. App. D. C., at 330, 610 F. 2d, at 849. The Commission's reliance on claims that its own counsel later concedes to lack merit hardly strengthens one's belief in the rationality of its decisionmaking. Although it has abandoned the "administrative nightmare" argument before this Court, the Commission nonetheless finds other "intractable" administrative problems in format regulation. For example, it insists that meaningful classification of radio broadcasts into format types is impractical, and that it is impossible to determine whether a proposed format change is in the public interest because the intensity of listener preferences cannot be measured.[34] Moreover, the Commission argues that format regulation will discourage licensee innovation and experimentation with formats, and that its effect on format diversity will therefore be counterproductive. None of these claims has merit. Broadcasters have operated under the format doctrine during the past 10 years, yet the Commission is unable to show that there has been no innovation and experimentation with formats during this period. Indeed, a Commission staff study on the effectiveness of market allocation of formats indicates that licensees have been aggressive in developing diverse entertainment formats under the format-doctrine regime.[35] This "evidence" *619 a welcome contrast to the Commission's speculationundermines the Commission's claim that format regulation will disserve the "public interest" because it will inhibit format diversity. The Commission's claim that it is impossible to classify formats, is largely overcome by the Court of Appeals' suggestion that the Commission could develop "a format taxonomy which, even if imprecise at the margins, would be sustainable so long as not irrational."[36] 197 U. S. App. D. C., at 334, 610 F. 2d, at 853. Even more telling is the staff study relied on by the Commission to show that there is broad format diversity in major radio markets, for the study used a format classification based on |
Justice Marshall | 1,981 | 15 | dissenting | FCC v. WNCN Listeners Guild | https://www.courtlistener.com/opinion/110437/fcc-v-wncn-listeners-guild/ | markets, for the study used a format classification based on industry practice.[37] As the Court of Appeals noted, it is somewhat ironic that the Commission had no trouble "endorsing the validity of a study largely premised on classifications it claims are impossible to make." [38] To be sure, courts do not sit to second-guess the assessments *620 of specialized agencies like the Commission. But where, as here, the agency's position rests on speculations that are refuted by the agency's own administrative record. I am not persuaded that deference is due.[39] IV The Commission's Policy Statement is defective because it lacks a "safety valve" procedure that would allow the necessary flexibility in the application of the Commission's general policy on format changes to particular cases. In my judgment, the Court of Appeals' format doctrine was a permissible attempt by that court to provide the Commission with some guidance regarding the types of situations in which a re-examination of general policy might be necessary. Even if one were to conclude that the Court of Appeals described these situations too specifically, a view I do not share, I still think that the Court of Appeals correctly held that the Commission's Policy Statement must be vacated. I respectfully dissent. |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | The Court holds today that it is “grossly disproportion ate” and hence unconstitutional for any judge or jury to impose a sentence of life without parole on an offender less than 18 years old, unless he has committed a homicide. Although the text of the Constitution is silent regarding the permissibility of this sentencing practice, and al though it would not have offended the standards that prevailed at the founding, the Court insists that the stan dards of American society have evolved such that the Constitution now requires its prohibition. The news of this evolution will, I think, come as a sur prise to the American people. Congress, the District of Columbia, and 37 States allow judges and juries to con sider this sentencing practice in juvenile nonhomicide cases, and those judges and juries have decided to use it in the very worst cases they have encountered. The Court does not conclude that life without parole itself is a cruel and unusual punishment. It instead re jects the judgments of those legislatures, judges, and juries regarding what the Court describes as the “moral” question of whether this sentence can ever be “propor tionat[e]” when applied to the category of offenders at 2 GRAHAM v. FLORIDA THOMAS, J., dissenting issue here. Ante, (internal quotation marks omitted), ante, (STEVENS, J., concurring). I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judg ments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in Article III gives us that authority. I respectfully dissent. I The Court recounts the facts of Terrance Jamar Gra ham’s case in detail, so only a summary is necessary here. At age 16 years and 6 months, Graham and two masked accomplices committed a burglary at a small Florida restaurant, during which one of Graham’s accomplices twice struck the restaurant manager on the head with a steel pipe when he refused to turn over money to the intruders. Graham was arrested and charged as an adult. He later pleaded guilty to two offenses, including armed burglary with assault or battery, an offense punishable by life imprisonment under Florida law. Fla. Stat. 810.02(2)(b) (2007). The trial court with held adjudication on both counts, however, and sentenced Graham to probation, the first 12 months of which he spent in a county detention facility. Graham reoffended just six months after his release. At a probation revocation hearing, a judge found by a pre ponderance of the evidence that, at age 17 years and 11 |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | of the evidence that, at age 17 years and 11 months, Graham invaded a home with two accomplices and held the homeowner at gunpoint for approximately 30 minutes while his accomplices ransacked the residence. As a result, the judge concluded that Graham had violated his probation and, after additional hearings, adjudicated Graham guilty on both counts arising from the restaurant robbery. The judge imposed the maximum sentence al lowed by Florida law on the armed burglary count, life Cite as: 560 U. S. (2010) 3 THOMAS, J., dissenting imprisonment without the possibility of parole. Graham argues, and the Court holds, that this sentence violates the Eighth Amendment’s Cruel and Unusual Punishments Clause because a life-without-parole sen tence is always “grossly disproportionate” when imposed on a person under 18 who commits any crime short of a homicide. rief for Petitioner 24; ante, at 21. II A The Eighth Amendment, which applies to the States through the Fourteenth, provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” It is by now well established that the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous “ ‘methods of punishment,’ ” v. Michigan, 501 U.S. 957, 979 (11) (opinion of SCALIA, J.) (quoting Granucci, “Nor Cruel and Unusual Punishments In flicted”: The Original Meaning, 842 (1969))—specifically methods akin to those that had been considered cruel and unusual at the time the ill of Rights was adopted, (THOMAS, J., concurring in judgment). With one arguable exception, see (1910); at 0–4 (opinion of SCALIA, J.) (discussing the scope and relevance of Weems’ holding), this Court applied the Clause with that under standing for nearly 170 years after the Eighth Amend ment’s ratification. More recently, however, the Court has held that the Clause authorizes it to proscribe not only methods of punishment that qualify as “cruel and unusual,” but also any punishment that the Court deems “grossly dispropor tionate” to the crime committed. Ante, at 8 (internal quotation marks omitted). This latter interpretation is 4 GRAHAM v. FLORIDA THOMAS, J., dissenting entirely the Court’s creation. As has been described else where at length, there is virtually no indication that the Cruel and Unusual Punishments Clause originally was understood to require proportionality in sentencing. See –985 (opinion of SCALIA, J.). Here, it suffices to recall just two points. First, the Clause does not expressly refer to proportionality or invoke any synonym for that term, even though the Framers were familiar with the concept, as evidenced by several found ing-era state constitutions that required (albeit without defining) proportional |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | found ing-era state constitutions that required (albeit without defining) proportional punishments. See at 977–978. In addition, the penal statute adopted by the First Con gress demonstrates that proportionality in sentencing was not considered a constitutional command.1 See at 980–981 (noting that the statute prescribed capital pun ishment for offenses ranging from “ ‘run[ning] away with goods or merchandise to the value of fifty dollars,’ ” to “murder on the high seas” (quoting )); see also Preyer, Penal Measures in the American Colonies: An Overview, 348–349, 353 (explaining that crimes in the late 18th-century colonies —————— 1 THE CHIEF JUSTICE’s concurrence suggests that it is unnecessary to remark on the underlying question whether the Eighth Amendment requires proportionality in sentencing because “[n]either party here asks us to reexamine our precedents” requiring “proportionality be tween noncapital offenses and their corresponding punishments.” Ante, at 2 (opinion concurring in judgment). I disagree. oth the Court and the concurrence do more than apply existing noncapital proportionality precedents to the particulars of Graham’s claim. The Court radically departs from the framework those precedents establish by applying to a noncapital sentence the categorical proportionality review its prior decisions have reserved for death penalty cases alone. See Part III, infra. The concurrence, meanwhile, breathes new life into the case-by case proportionality approach that previously governed noncapital cases, from which the Court has steadily, and wisely, retreated since See Part IV, infra. In dissenting from both choices to expand proportionality review, I find it essential to reexamine the foundations on which that doctrine is built. Cite as: 560 U. S. (2010) 5 THOMAS, J., dissenting generally were punished either by fines, whipping, or public “shaming,” or by death, as intermediate sentencing options such as incarceration were not common). The Court has nonetheless invoked proportionality to declare that capital punishment—though not unconstitu tional per se—is categorically too harsh a penalty to apply to certain types of crimes and certain classes of offenders. See (plurality opin ion) (rape of an adult woman); v. Louisiana, 554 U. S. (rape of a child); Enmund v. Florida, 458 U.S. 782 (felony murder in which the defendant participated in the felony but did not kill or intend to kill); (plurality opinion) (juveniles under 16); v. Simmons, 543 U.S. 551 (2005) (juveniles under 18); v. Virginia, 536 U.S. 304 (2002) (mentally retarded offenders). In adopting these categorical proportionality rules, the Court intrudes upon areas that the Constitution reserves to other (state and federal) organs of government. The Eighth Amend ment prohibits the government from inflicting a cruel and unusual method of punishment upon a defendant. Other |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | cruel and unusual method of punishment upon a defendant. Other constitutional provisions ensure the defendant’s right to fair process before any punishment is imposed. ut, as members of today’s majority note, “[s]ociety changes,” ante, (STEVENS, J., concurring), and the Eighth Amendment leaves the unavoidably moral question of who “deserves” a particular nonprohibited method of punishment to the judgment of the legislatures that authorize the penalty, the prosecutors who seek it, and the judges and juries that impose it under circumstances they deem appropriate. The Court has nonetheless adopted categorical rules that shield entire classes of offenses and offenders from the death penalty on the theory that “evolving standards of decency” require this result. Ante, (internal quota tion marks omitted). The Court has offered assurances that these standards can be reliably measured by “ ‘objec 6 GRAHAM v. FLORIDA THOMAS, J., dissenting tive indicia’ ” of “national consensus,” such as state and federal legislation, jury behavior, and (surprisingly, given that we are talking about “national” consensus) interna tional opinion. Ante, 0 (quoting ); see also ante, 0–16, 29–31. Yet even assuming that is true, the Framers did not provide for the constitutionality of a particular type of punishment to turn on a “snapshot of American public opinion” taken at the moment a case is decided. y holding otherwise, the Court pretermits in all but one direction the evolution of the standards it describes, thus “calling a constitutional halt to what may well be a pen dulum swing in social attitudes,” at 869 and “stunt[ing] legislative consideration” of new questions of penal policy as they emerge, at (slip op., at 2) (ALITO, J., dissenting). ut the Court is not content to rely on snapshots of community consensus in any event. Ante, 6 (“Commu nity consensus, while ‘entitled to great weight,’ is not itself determinative” (quoting at (slip op., at 24))). Instead, it reserves the right to reject the evidence of consensus it finds whenever its own “independent judg ment” points in a different direction. Ante, 6. The Court thus openly claims the power not only to approve or disapprove of democratic choices in penal policy based on evidence of how society’s standards have evolved, but also on the basis of the Court’s “independent” perception of how those standards should evolve, which depends on what the Court concedes is “ ‘ “necessarily a moral judgment” ’ ” regarding the propriety of a given punish ment in today’s society. Ante, (quoting at (slip op., at 8)). The categorical proportionality review the Court em ploys in capital cases thus lacks a principled foundation. The Court’s |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | in capital cases thus lacks a principled foundation. The Court’s decision today is significant because it does Cite as: 560 U. S. (2010) 7 THOMAS, J., dissenting not merely apply this standard—it remarkably expands its reach. For the first time in its history, the Court declares an entire class of offenders immune from a noncapital sentence using the categorical approach it previously reserved for death penalty cases alone. Until today, the Court has based its categorical propor tionality rulings on the notion that the Constitution gives special protection to capital defendants because the death penalty is a uniquely severe punishment that must be reserved for only those who are “most deserving of execu tion.” ; see ; ; Lockett v. Ohio, Of course, the Eighth Amendment itself makes no distinction between capital and noncapital sentencing, but the “ ‘bright line’ ” the Court drew between the two penalties has for many years served as the principal justification for the Court’s will ingness to reject democratic choices regarding the death penalty. See Today’s decision eviscerates that distinction. “Death is different” no longer. The Court now claims not only the power categorically to reserve the “most severe punish ment” for those the Court thinks are “ ‘the most deserving of execution,’ ” 543 U.S., (quoting 536 U.S., ), but also to declare that “less culpable” persons are categorically exempt from the “second most severe penalty.” Ante, at 21 (emphasis added). No reli able limiting principle remains to prevent the Court from immunizing any class of offenders from the law’s third, fourth, fifth, or fiftieth most severe penalties as well. The Court’s departure from the “death is different” distinction is especially mystifying when one considers how long it has resisted crossing that divide. Indeed, for a time the Court declined to apply proportionality principles 8 GRAHAM v. FLORIDA THOMAS, J., dissenting to noncapital sentences at all, emphasizing that “a sen tence of death differs in kind from any sentence of impris onment, no matter how long.” (emphasis added). ased on that rationale, the Court found that the excessiveness of one prison term as com pared to another was “properly within the province of legislatures, not courts,” at –276, precisely because it involved an “invariably subjective determination, there being no clear way to make ‘any constitutional dis tinction between one term of years and a shorter or longer term of years,’ ” (per curiam) (quoting at ; emphasis added). Even when the Court broke from that understanding in its 5-to-4 decision in (striking down as “grossly disproportionate” a life-without parole sentence imposed on a |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | as “grossly disproportionate” a life-without parole sentence imposed on a defendant for passing a worthless check), the Court did so only as applied to the facts of that case; it announced no categorical rule. at 288, 303. Moreover, the Court soon cabined Solem’s ra tionale. The controlling opinion in the Court’s very next noncapital proportionality case emphasized that principles of federalism require substantial deference to legislative choices regarding the proper length of prison sentences. 501 U.S., at 9 (“[M]arked divergences both in underlying theories of sentencing and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure”); (“[D]iffering attitudes and percep tions of local conditions may yield different, yet rational, conclusions regarding the appropriate length of prison terms for particular crimes”). That opinion thus concluded that “successful challenges to the proportionality of [prison] sentences [would be] exceedingly rare.” at 1001 (internal quotation marks omitted). They have been rare indeed. In the 28 years since Cite as: 560 U. S. (2010) 9 THOMAS, J., dissenting Solem, the Court has considered just three such chal lenges and has rejected them all, see ; ; largely on the theory that criti cisms of the “wisdom, cost-efficiency, and effectiveness” of term-of-years prison sentences are “appropriately directed at the legislature[s],” not the courts, 28 (plurality opinion). The Court correctly notes that those decisions were “closely divided,” ante, at 8, but so was Solem itself, and it is now fair to describe Solem as an outlier.2 Remarkably, the Court today does more than return to Solem’s case-by-case proportionality standard for noncapi tal sentences; it hurtles past it to impose a categorical proportionality rule banning life-without-parole sentences not just in this case, but in every case involving a juvenile nonhomicide offender, no matter what the circumstances. Neither the Eighth Amendment nor the Court’s prece dents justify this decision. III The Court asserts that categorical proportionality re view is necessary here merely because Graham asks for a categorical rule, see ante, 0, and because the Court —————— 2 Courts and commentators interpreting this Court’s decisions have reached this conclusion. See, e.g., United 76 (“[I]nstances of gross disproportionality [in noncapital cases] will be hen’s-teeth rare”); arkow, The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity, (“Solem now stands as an outlier”); Note, The Capital Punishment Exception: A Case for Constitutionalizing the Substantive Criminal Law, 104 Colum. L. Rev. 426, 445 (2004) (observing that outside of the capital context, “propor tionality review has been virtually dormant”); Steiker & Steiker, Opening a Window or uilding |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | virtually dormant”); Steiker & Steiker, Opening a Window or uilding a Wall? The Effect of Eighth Amend ment Death Penalty Law and Advocacy on Criminal Justice More roadly, (“Eighth Amendment challenges to excessive incarceration [are] essentially non-starters”). 10 GRAHAM v. FLORIDA THOMAS, J., dissenting thinks clear lines are a good idea, see ante, at 25. I find those factors wholly insufficient to justify the Court’s break from past practice. First, the Court fails to ac knowledge that a petitioner seeking to exempt an entire category of offenders from a sentencing practice carries a much heavier burden than one seeking case-specific relief under Solem. Unlike the petitioner in Solem, Graham must establish not only that his own life-without-parole sentence is “grossly disproportionate,” but also that such a sentence is always grossly disproportionate whenever it is applied to a juvenile nonhomicide offender, no matter how heinous his crime. Cf. United States v. Salerno, 481 U.S. 739 Second, even applying the Court’s categorical “evolving standards” test, neither objective evidence of national consensus nor the notions of culpability on which the Court’s “independent judgment” relies can justify the categorical rule it declares here. A According to the Court, proper Eighth Amendment analysis “begins with objective indicia of national consen sus,”3 and “[t]he clearest and most reliable objective evi dence of contemporary values is the legislation enacted by the country’s legislatures,” ante, 0–11 (internal quota —————— 3 The Court ignores entirely the threshold inquiry of whether subject ing juvenile offenders to adult penalties was one of the “modes or acts of punishment that had been considered cruel and unusual at the time that the ill of Rights was adopted.” Ford v. Wainwright, 477 U.S. 3, 405 (1986). As the Court has noted in the past, however, the evidence is clear that, at the time of the Founding, “the common law set a rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted [even] capital punishment to be imposed on a person as young as age 7.” 492 U.S. 361, 368 (citing 4 W. lackstone, Commentaries *23–*24; 1 M. Hale, Pleas of the Crown 24–29 (1800)). It thus seems exceedingly unlikely that the imposition of a life-without-parole sentence on a person of Graham’s age would run afoul of those standards. Cite as: 560 U. S. (2010) 11 THOMAS, J., dissenting tion marks omitted). As such, the analysis should end quickly, because a national “consensus” in favor of the Court’s result simply does not exist. The laws of all 50 States, the Federal Government, and the District of Co lumbia provide |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | the Federal Government, and the District of Co lumbia provide that juveniles over a certain age may be tried in adult court if charged with certain crimes.4 See ante, at 33–35 (Appendix to opinion of the Court). Forty five States, the Federal Government, and the District of Columbia expose juvenile offenders charged in adult court to the very same range of punishments faced by adults charged with the same crimes. See ante, at 33–34, Part I. Eight of those States do not make life-without-parole sentences available for any nonhomicide offender, regard less of age.5 All remaining jurisdictions—the Federal Government, the other 37 States, and the District— authorize life-without-parole sentences for certain non homicide offenses, and authorize the imposition of such sentences on persons under 18. See Only five States —————— 4 Although the details of state laws vary extensively, they generally permit the transfer of a juvenile offender to adult court through one or more of the following mechanisms: (1) judicial waiver, in which the juvenile court has the authority to waive jurisdiction over the offender and transfer the case to adult court; (2) concurrent jurisdiction, in which adult and juvenile courts share jurisdiction over certain cases and the prosecutor has discretion to file in either court; or (3) statutory provisions that exclude juveniles who commit certain crimes from juvenile-court jurisdiction. See Dept. of Justice, Juvenile Offenders and Victims: 19 National Report 89, 104 (19) (hereinafter 19 DOJ National Report); Feld, Unmitigated Punishment: Adolescent Criminal Responsibility and LWOP Sentences, 10 J. Law & Family Studies 11, 38–39 (2007). 5 Alaska entitles all offenders to parole, regardless of their crime. (g) The other seven States provide parole eligibility to all offenders, except those who commit certain homicide crimes. Conn. Gen. Stat. ; Haw. Rev. Stat. (13 and 2008 Supp. Pamphlet); Me. Rev. Stat. Ann., Tit. 17–a, (2006); Mass. Gen. Laws Ann., ch. 265, ; N. J. Stat. Ann. §C:11–3(b)(2)–(3) (West 2005); N. M. Stat. Ann. 18–14 ; Vt. Stat. Ann., Tit. 13, 303 12 GRAHAM v. FLORIDA THOMAS, J., dissenting prohibit juvenile offenders from receiving a life-without parole sentence that could be imposed on an adult con victed of the same crime.6 No plausible claim of a consensus against this sentenc ing practice can be made in light of this overwhelming legislative evidence. The sole fact that federal law author izes this practice singlehandedly refutes the claim that our Nation finds it morally repugnant. The additional reality that 37 out of 50 States (a supermajority of 74%) permit the practice makes the claim utterly implausible. Not only is there no consensus |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | the claim utterly implausible. Not only is there no consensus against this penalty, there is a clear legislative consensus in favor of its availability. Undaunted, however, the Court brushes this evidence aside as “incomplete and unavailing,” declaring that “ ‘[t]here are measures of consensus other than legisla tion.’ ” Ante, 1 (quoting 554 U. S., at (slip op., at 22)). This is nothing short of stunning. Most im portantly, federal civilian law approves this sentencing practice.7 And although the Court has never decided how many state laws are necessary to show consensus, the Court has never banished into constitutional exile a sen tencing practice that the laws of a majority, let alone a supermajority, of States expressly permit.8 —————— 6 –1.3–401(4)(b) (authorizing manda tory life sentence with possibility for parole after 40 years for juveniles convicted of class 1 felonies); Kan. Stat. Ann. §1–4622, 4643 (2007); (West 2006); ; –18–222(1) ; 7 Although the Court previously has dismissed the relevance of the Uniform Code of Military Justice to its discernment of consensus, see v. Louisiana, 554 U. S. (statement of KENNEDY, J., respecting denial of rehearing), juveniles who enlist in the military are nonetheless eligible for life-without-parole sentences if they commit certain nonhomicide crimes. See 10 U.S. C. (permitting enlistment at age 17), 856a, 920 (2006 ed., Supp. II). 8 554 U. S., at (slip op., 2, 23) (prohibiting capital Cite as: 560 U. S. (2010) 13 THOMAS, J., dissenting Moreover, the consistency and direction of recent legis lation—a factor the Court previously has relied upon when crafting categorical proportionality rules, see 536 U.S., at 315–316; –566— underscores the consensus against the rule the Court announces here. In my view, the Court cannot point to a national consensus in favor of its rule without assuming a consensus in favor of the two penological points it later discusses: (1) Juveniles are always less culpable than similarly-situated adults, and (2) juveniles who commit nonhomicide crimes should always receive an opportunity to demonstrate rehabilitation through parole. Ante, 7– 18, 23–25. ut legislative trends make that assumption untenable. First, States over the past 20 years have consistently increased the severity of punishments for juvenile offend ers. See 19 DOJ National Report 89 (referring to the 10’s as “a time of unprecedented change as State legis —————— punishment for the rape of a child where only six States had enacted statutes authorizing the punishment since Furman v. Georgia, 408 U.S. 238 (1972) (per curiam)); v. Simmons, 568 (2005) (prohibiting capital punishment for offenders younger than 18 where 18 of 38 death-penalty States precluded imposition of |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | 18 where 18 of 38 death-penalty States precluded imposition of the penalty on persons under 18 and the remaining 12 States did not permit capital punishment at all); v. Virginia, 314–315 (2002) (prohibiting capital punishment of mentally retarded persons where 18 of 38 death-penalty States precluded imposition of the penalty on such persons and the remaining States did not authorize capital punishment at all); 829 (plurality opinion) (prohibiting capital punishment of offenders under 16 where 18 of 36 death-penalty States precluded imposition of the penalty on such persons and the remaining States did not permit capital punishment at all); Enmund v. Florida, 458 U.S. 782, 789 (prohibiting capital punishment for felony murder without proof of intent to kill where eight States allowed the punish ment without proof of that element); 593 (holding capital punishment for the rape of a woman uncon stitutional where “[a]t no time in the last 50 years have a majority of the States authorized death as a punishment for rape”). 14 GRAHAM v. FLORIDA THOMAS, J., dissenting latures crack[ed] down on juvenile crime”); (noting that, during that period, “legislatures in 47 States and the District of Columbia enacted laws that made their juvenile justice systems more punitive,” principally by “ma[king] it easier to transfer juvenile offenders from the juvenile justice system to the [adult] criminal justice system”); 04. This, in my view, reveals the States’ widespread agreement that juveniles can sometimes act with the same culpability as adults and that the law should permit judges and juries to consider adult sentences—including life without parole—in those rare and unfortunate cases. See Feld, Unmitigated Punishment: Adolescent Criminal Responsibility and LWOP Sentences, 10 J. Law & Family Studies 11, 69–70 (2007) (noting that life-without-parole sentences for juveniles have increased since the 1980’s); Amnesty International & Human Rights Watch, The Rest of Their Lives: Life Without Parole for Child Offenders in the United States 2, 31 (2005) (same). Second, legislatures have moved away from parole over the same period. Congress abolished parole for federal offenders in 1984 amid criticism that it was subject to “gamesmanship and cynicism,” reyer, Federal Sentenc ing Guidelines Revisited, 11 Fed. Sentencing Rep. 180 (19) and several States have followed suit, see T. Hughes, D. Wilson, & A. eck, Dept. of Justice, ureau of Justice Statistics, Trends in State Parole, 10–2000, p. 1 (2001) (noting that, by the end of 2000, 16 States had abolished parole for all offenses, while another 4 States had abolished it for certain ones). In light of these devel opments, the argument that there is nationwide consensus that parole must be |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | argument that there is nationwide consensus that parole must be available to offenders less than 18 years old in every nonhomicide case simply fails. The Court nonetheless dismisses existing legislation, Cite as: 560 U. S. (2010) 15 THOMAS, J., dissenting pointing out that life-without-parole sentences are rarely imposed on juvenile nonhomicide offenders—123 times in recent memory9 by the Court’s calculation, spread out across 11 States.10 Ante, 1–13. ased on this rarity of use, the Court proclaims a consensus against the practice, implying that laws allowing it either reflect the consensus of a prior, less civilized time or are the work of legislatures tone-deaf to moral values of their constituents that this Court claims to have easily discerned from afar. See ante, 1. This logic strains credulity. It has been rejected before. (joint opinion of Stewart, Powell, and STEVENS, JJ.) (“[T]he relative —————— 9 I say “recent memory” because the research relied upon by the Court provides a headcount of juvenile nonhomicide offenders presently incarcerated in this country, but does not provide more specific infor mation about all of the offenders, such as the dates on which they were convicted. 10 When issued, the Court’s opinion relied on a letter the Court had requested from the ureau of Prisons (OP), which stated that there were six juvenile nonhomicide offenders then serving life-without parole sentences in the federal system. After the Court released its opinion, the Acting Solicitor General disputed the OP’s calculations and stated that none of those six offenders was serving a life without parole sentence solely for a juvenile nonhomicide crime completed before the age of 18. See Letter from Neal Kumar Katyal, Acting Solicitor General, U. S. Dept. of Justice, to Clerk of the Supreme Court (May 24, 2010) (available in Clerk of Court’s case file) (noting that five of the six inmates were convicted for participation in unlawful con spiracies that began when they were juveniles but continued after they reached the age of 18, and noting that the sixth inmate was convicted of murder as a predicate offense under the Racketeer Influenced and Corrupt Organizations Act). The Court has amended its opinion in light of the Acting Solicitor General’s letter. In my view, the inconsis tency between the OP’s classification of these six offenders and the Solicitor General’s is irrelevant. The fact remains that federal law, and the laws of a supermajority of States, permit this sentencing practice. And, as will be explained, see infra this page and 16–20, judges and jurors have chosen to impose this sentence in the very worst cases they have encountered. |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | this sentence in the very worst cases they have encountered. 16 GRAHAM v. FLORIDA THOMAS, J., dissenting infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se. Rather, [it] may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases”). It should also be re jected here. That a punishment is rarely imposed demon strates nothing more than a general consensus that it should be just that—rarely imposed. It is not proof that the punishment is one the Nation abhors. The Court nonetheless insists that the 26 States that authorize this penalty, but are not presently incarcerating a juvenile nonhomicide offender on a life-without-parole sentence, cannot be counted as approving its use. The mere fact that the laws of a jurisdiction permit this pen alty, the Court explains, “does not indicate that the pen alty has been endorsed through deliberate, express, and full legislative consideration.” Ante, 6. ut this misapplies the Court’s own evolving standards test. Under that test, “[i]t is not the burden of [a State] to establish a national consensus approving what their citi zens have voted to do; rather, it is the ‘heavy burden’ of petitioners to establish a national consensus against it.” (quoting (joint opinion of Stewart, Powell, and STEVENS, JJ.); some emphasis added). In light of this fact, the Court is wrong to equate a jurisdiction’s disuse of a legislatively authorized penalty with its moral opposition to it. The fact that the laws of a jurisdiction permit this sentencing practice demonstrates, at a minimum, that the citizens of that jurisdiction find tolerable the possibility that a jury of their peers could impose a life-without parole sentence on a juvenile whose nonhomicide crime is sufficiently depraved. The recent case of 16-year-old Keighton udder illus trates this point. Just weeks before the release of this opinion, an Oklahoma jury sentenced udder to life with Cite as: 560 U. S. (2010) 17 THOMAS, J., dissenting out parole after hearing evidence that he viciously at tacked a 17-year-old girl who gave him a ride home from a party. See Stogsdill, Teen Gets Life Terms in Stabbing, Rape Case, Tulsa World, Apr. 2, 2010, p. A10; Stogsdill, Delaware County Teen Sentenced in Rape, Assault Case, Tulsa World, May 4, 2010, p. A12. udder allegedly put the girl’s head “ ‘into a headlock and sliced her throat,’ ” raped her, stabbed her about 20 times, beat her, and pounded her face into the rocks alongside a dirt road. Teen Gets Life Terms in |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | rocks alongside a dirt road. Teen Gets Life Terms in Stabbing, Rape Case, at A10. Miraculously, the victim survived. udder’s crime was rare in its brutality. The sentence the jury imposed was also rare. According to the study relied upon by this Court, Oklahoma had no such offender in its prison system before udder’s offense. P. Annino, D. Rasmussen, & C. Rice, Juvenile Life Without Parole for Non-Homicide Offenses: Florida Compared to Nation 2, 14 (Table A). Without his conviction, there fore, the Court would have counted Oklahoma’s citizens as morally opposed to life-without-parole sentences for juve niles nonhomicide offenders. Yet Oklahoma’s experience proves the inescapable flaw in that reasoning: Oklahoma citizens have enacted laws that allow Oklahoma juries to consider life-without-parole sentences in juvenile nonhomicide cases. Oklahoma juries invoke those laws rarely—in the unusual cases that they find exceptionally depraved. I cannot agree with the Court that Oklahoma citizens should be constitutionally disabled from using this sentencing practice merely be cause they have not done so more frequently. If anything, the rarity of this penalty’s use underscores just how judi cious sentencing judges and juries across the country have been in invoking it. This fact is entirely consistent with the Court’s intuition that juveniles generally are less culpable and more capable of growth than adults. See infra, at 21–22. Graham’s own 18 GRAHAM v. FLORIDA THOMAS, J., dissenting case provides another example. Graham was statutorily eligible for a life-without-parole sentence after his first crime. ut the record indicates that the trial court did not give such a sentence serious consideration at Graham’s initial plea hearing. It was only after Graham subse quently violated his parole by invading a home at gun point that the maximum sentence was imposed. In sum, the Court’s calculation th23 juvenile non homicide life-without-parole sentences have been imposed nationwide in recent memory, even if accepted, hardly amounts to strong evidence that the sentencing practice offends our common sense of decency.11 —————— 11 ecause existing legislation plainly suffices to refute any consensus against this sentencing practice, I assume the accuracy of the Court’s evidence regarding the frequency with which this sentence has been imposed. ut I would be remiss if I did not mention two points about the Court’s figures. First, it seems odd that the Court counts only those juveniles sentenced to life without parole and excludes from its analysis all juveniles sentenced to lengthy term-of-years sentences (e.g., 70 or 80 years’ imprisonment). It is difficult to argue that a judge or jury imposing such a long sentence—which effectively denies the offender any material opportunity |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | a long sentence—which effectively denies the offender any material opportunity for parole—would express moral outrage at a life-without-parole sentence. Second, if objective indicia of consensus were truly important to the Court’s analysis, the statistical information presently available would be woefully inadequate to form the basis of an Eighth Amendment rule that can be revoked only by constitutional amendment. The only evidence submitted to this Court regarding the frequency of this sen tence’s imposition was a single study completed after this Court granted certiorari in this case. See P. Annino, D. Rasmussen, & C. Rice, Juvenile Life Without Parole for Non-Homicide Offenses: Florida Compared to Nation 2 Although I have no reason to question the professionalism with which this study was conducted, the study itself acknowledges that it was incomplete and the first of its kind. See The Court’s questionable decision to “complete” the study on its own does not materially increase its reliability. For one thing, by finishing the study itself, the Court prohibits the parties from ever disputing its findings. Complicating matters further, the original study sometimes relied on third-party data rather than data from the States themselves, see ; the study has never been peer reviewed; Cite as: 560 U. S. (2010) 19 THOMAS, J., dissenting Finally, I cannot help but note that the statistics the Court finds inadequate to justify the penalty in this case are stronger than those supporting at least one other penalty this Court has upheld. Not long ago, this Court, joined by the author of today’s opinion, upheld the applica tion of the death penalty against a 16-year-old, despite the fact that no such punishment had been carried out on a person of that age in this country in nearly 30 years. See Whatever the statistical frequency with which life-without-parole sentences have been imposed on juvenile nonhomicide offenders in the last 30 years, it is surely greater than zero. In the end, however, objective factors such as legislation and the frequency of a penalty’s use are merely ornaments in the Court’s analysis, window dressing that accompanies its judicial fiat.12 y the Court’s own decree, “[c]ommunity —————— and specific data on all 123 offenders (age, date of conviction, crime of conviction, etc.), have not been collected, making verification of the Court’s headcount impossible. The Court inexplicably blames Florida for all of this. See ante, 2. ut as already noted, it is not Florida’s burden to collect data to prove a national consensus in favor of this sentencing practice, but Graham’s “heavy burden” to prove a consensus against it. See 6. 12 I confine to |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | a consensus against it. See 6. 12 I confine to a footnote the Court’s discussion of foreign laws and sentencing practices because past opinions explain at length why such factors are irrelevant to the meaning of our Constitution or the Court’s discernment of any longstanding tradition in this Nation. See –325 (Rehnquist, C. J., dissenting). Here, two points suffice. First, despite the Court’s attempt to count the actual number of juvenile nonhomicide offenders serving life-without-parole sentences in other nations (a task even more challenging than counting them within our borders), the laws of other countries permit juvenile life-without parole sentences, see Child Rights Information, Network, C. de la Vega, M. Montesano, & A. Solter, Human Rights Advocates, Statement on Juvenile Sentencing to Human Rights Council, 10th Sess. (“Eleven countries have laws with the potential to permit the sentencing of child offenders to life without the possibility of release,” online at http://www.crin.org/resources/infoDetail.asp?ID=19806) (as visited May 14, 2010, and available in Clerk of Court’s case file)). 20 GRAHAM v. FLORIDA THOMAS, J., dissenting consensus is not itself determinative.” Ante, 6. Only the independent moral judgment of this Court is sufficient to decide the question. See C Lacking any plausible claim to consensus, the Court shifts to the heart of its argument: its “independent judg ment” that this sentencing practice does not “serv[e] legiti mate penological goals.” Ante, 6–17. The Court begins that analysis with the obligatory preamble that “ ‘[t]he Eighth Amendment does not mandate adoption of any one penological theory,’ ” ante, at 20 (quoting 501 U.S., at 9 ), then promptly mandates the adoption of the theories the Court deems best. First, the Court acknowledges that, at a minimum, the imposition of life-without-parole sentences on juvenile nonhomicide offenders serves two “legitimate” penological goals: incapacitation and deterrence. Ante, at 21–23. y definition, such sentences serve the goal of incapacitation by ensuring that juvenile offenders who commit armed burglaries, or those who commit the types of grievous sex crimes described by THE CHIEF JUSTICE, no longer threaten their communities. See ante, at 9 (opinion con curring in judgment). That should settle the matter, since the Court acknowledges that incapacitation is an “impor tant” penological goal. Ante, at 22. Yet, the Court finds this goal “inadequate” to justify the life-without-parole sentences here. Ante, at 22 (emphasis added). A similar fate befalls deterrence. The Court acknowledges that such sentences will deter future juvenile offenders, at least to —————— Second, present legislation notwithstanding, democracies around the world remain free to adopt life-without-parole sentences for juvenile offenders tomorrow if they see fit. Starting today, ours can |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | offenders tomorrow if they see fit. Starting today, ours can count itself among the few in which judicial decree prevents voters from making that choice. Cite as: 560 U. S. (2010) 21 THOMAS, J., dissenting some degree, but rejects that penological goal, not as illegitimate, but as insufficient. Ante, at 21 (“[A]ny limited deterrent effect provided by life without parole is not enough to justify the sentence.” (emphasis added)). The Court looks more favorably on rehabilitation, but laments that life-without-parole sentences do little to promote this goal because they result in the offender’s permanent incarceration. Ante, at 23. Of course, the Court recognizes that rehabilitation’s “utility and proper implementation” are subject to debate. Ante, at 23. ut that does not stop it from declaring that a legislature may not “forswea[r] the rehabilitative ideal.” In other words, the Eighth Amendment does not mandate “any one penological theory,” ante, at 20 (internal quotation marks omitted), just one the Court approves. Ultimately, however, the Court’s “independent judg ment” and the proportionality rule itself center on retribu tion—the notion that a criminal sentence should be pro portioned to “ ‘the personal culpability of the criminal offender.’ ” Ante, 6, 20–21 ). The Court finds that retribu tive purposes are not served here for two reasons. 1 First, quoting –570, the Court concludes that juveniles are less culpable than adults because, as compared to adults, they “have a ‘ “lack of maturity and an underdeveloped sense of responsibility,” ’ ” and “their characters are ‘not as well formed.’ ” Ante, at 17. As a general matter, this statement is entirely consis tent with the evidence recounted above that judges and juries impose the sentence at issue quite infrequently, despite legislative authorization to do so in many more cases. See Part III–, Our society tends to treat the average juvenile as less culpable than the average adult. ut the question here does not involve the average 22 GRAHAM v. FLORIDA THOMAS, J., dissenting juvenile. The question, instead, is whether the Constitu tion prohibits judges and juries from ever concluding that an offender under the age of 18 has demonstrated suffi cient depravity and incorrigibility to warrant his perma nent incarceration. In holding that the Constitution imposes such a ban, the Court cites “developments in psychology and brain sci ence” indicating that juvenile minds “continue to mature through late adolescence,” ante, 7 (citing rief for American Medical Association et al. as Amici Curiae 16– 24; rief for American Psychological Association et al. as Amici Curiae 22–27 (hereinafter APA rief)), and that juveniles are “more likely [than adults] |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | APA rief)), and that juveniles are “more likely [than adults] to engage in risky behaviors,” ut even if such generalizations from social science were relevant to constitutional rulemaking, the Court misstates the data on which it relies. The Court equates the propensity of a fairly substantial number of youths to engage in “risky” or antisocial behav iors with the propensity of a much smaller group to com mit violent crimes. Ante, at 25–29. ut research relied upon by the amici cited in the Court’s opinion differenti ates between adolescents for whom antisocial behavior is a fleeting symptom and those for whom it is a lifelong pat tern. See Adolescence-Limited and Life-Course- Persistent Antisocial ehavior: A Developmental Taxon omy, 100 Psychological Rev. 674, 678 (13) (cited in APA rief 8, 17, 20) (distinguishing between adolescents who are “antisocial only during adolescence” and a smaller group who engage in antisocial behavior “at every life stage” despite “drift[ing] through successive systems aimed at curbing their deviance”). That research further suggests that the pattern of behavior in the latter group often sets in before 18. See (“The well-documented resistance of antisocial personality dis order to treatments of all kinds seems to suggest that the life-course-persistent style is fixed sometime before age Cite as: 560 U. S. (2010) 23 THOMAS, J., dissenting 18”). And, notably, it suggests that violence itself is evi dence that an adolescent offender’s antisocial behavior is not transient. See A Review of Research on the Taxonomy of Life-Course Persistent Versus Adolescence- Limited Antisocial ehavior, in Taking Stock: the Status of Criminological Theory 277, 292–293 (F. Cullen, J. Wright, & K. levins eds. 2006) (observing that “life course persistent” males “tended to specialize in serious offenses (carrying a hidden weapon, assault, robbery, violating court orders), whereas adolescence-limited” ones “specialized in non-serious offenses (theft less than $5, public drunkenness, giving false information on applica tion forms, pirating computer software, etc.)”). In sum, even if it were relevant, none of this psychologi cal or sociological data is sufficient to support the Court’s “ ‘moral’ ” conclusion that youth defeats culpability in every case. Ante, 8 (quoting ); see ; R. Epstein, The Case Against Adolescence 171 (2007) (reporting on a study of juvenile reasoning skills and concluding that “most teens are capable of conventional, adult-like moral reasoning”). The Court responds that a categorical rule is nonethe less necessary to prevent the “ ‘unacceptable likelihood’ ” that a judge or jury, unduly swayed by “ ‘the brutality or cold-blooded nature’ ” of a juvenile’s nonhomicide crime, will sentence him to a life-without-parole sentence for which |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | crime, will sentence him to a life-without-parole sentence for which he possesses “ ‘insufficient culpability,’ ” ante, (quoting at 572–573). I find that justifica tion entirely insufficient. The integrity of our criminal justice system depends on the ability of citizens to stand between the defendant and an outraged public and dispas sionately determine his guilt and the proper amount of punishment based on the evidence presented. That proc ess necessarily admits of human error. ut so does the process of judging in which we engage. As between the two, I find far more “unacceptable” that this Court, 24 GRAHAM v. FLORIDA THOMAS, J., dissenting swayed by studies reflecting the general tendencies of youth, decree that the people of this country are not fit to decide for themselves when the rare case requires differ ent treatment. 2 That is especially so because, in the end, the Court does not even believe its pronouncements about the juvenile mind. If it did, the categorical rule it announces today would be most peculiar because it leaves intact state and federal laws that permit life-without-parole sentences for juveniles who commit homicides. See ante, 8–19. The Court thus acknowledges that there is nothing inherent in the psyche of a person less than 18 that prevents him from acquiring the moral agency necessary to warrant a life without-parole sentence. Instead, the Court rejects over whelming legislative consensus only on the question of which acts are sufficient to demonstrate that moral agency. The Court is quite willing to accept that a 17-year-old who pulls the trigger on a firearm can demonstrate suffi cient depravity and irredeemability to be denied reentry into society, but insists that a 17-year-old who rapes an 8 year-old and leaves her for dead does not. See ante, 7– 19; cf. ante, at 9 (ROERTS, C. J., concurring in judgment) (describing the crime of life-without-parole offender Mi lagro Cunningham). Thus, the Court’s conclusion that life-without-parole sentences are “grossly disproportion ate” for juvenile nonhomicide offenders in fact has very little to do with its view of juveniles, and much more to do with its perception that “defendants who do not kill, in tend to kill, or foresee that life will be taken are categori cally less deserving of the most serious forms of punish ment than are murderers.” Ante, 8. That the Court is willing to impose such an exacting constraint on democratic sentencing choices based on such an untestable philosophical conclusion is remarkable. The Cite as: 560 U. S. (2010) 25 THOMAS, J., dissenting question of what acts are “deserving” of what punishments is bound |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | of what acts are “deserving” of what punishments is bound so tightly with questions of morality and social conditions as to make it, almost by definition, a question for legislative resolution. It is true that the Court previ ously has relied on the notion of proportionality in holding certain classes of offenses categorically exempt from capi tal punishment. See ut never before today has the Court relied on its own view of just deserts to impose a categorical limit on the imposition of a lesser punishment. Its willingness to cross that well-established boundary raises the question whether any democratic choice regarding appropriate punishment is safe from the Court’s ever-expanding constitutional veto. IV Although the concurrence avoids the problems associ ated with expanding categorical proportionality review to noncapital cases, it employs noncapital proportionality analysis in a way that raises the same fundamental concern. Although I do not believe Solem merits stare decisis treatment, Graham’s claim cannot prevail even under that test (as it has been limited by the Court’s subsequent precedents). Solem instructs a court first to compare the “gravity” of an offender’s conduct to the “harshness of the penalty” to determine whether an “inference” of gross disproportionality exists. 463 U.S., at 290–291. Only in “the rare case” in which such an inference is present should the court proceed to the “ob jective” part of the inquiry—an intra- and interjurisdic tional comparison of the defendant’s sentence with others similarly situated. 501 U.S., 1005 Under the Court’s precedents, I fail to see how an “in ference” of gross disproportionality arises here. The con currence notes several arguably mitigating facts— Graham’s “lack of prior criminal convictions, his youth and 26 GRAHAM v. FLORIDA THOMAS, J., dissenting immaturity, and the difficult circumstances of his upbring ing.” Ante, (ROERTS, C. J., concurring in judgment). ut the Court previously has upheld a life-without-parole sentence imposed on a first-time offender who committed a nonviolent drug crime. See 002– 1004. Graham’s conviction for an actual violent felony is surely more severe than that offense. As for Graham’s age, it is true that held juveniles categorically ineli gible for capital punishment, but as the concurrence ex plains, was based on the “explicit conclusion that [juveniles] ‘cannot with reliability be classified among the worst offenders’ ”; it did “not establish that juveniles can never be eligible for life without parole.” Ante, at 5 (ROERTS, C. J., concurring in judgment) (quoting (emphasis added in opinion of ROERTS, C. J.)). In my view, ’s principles are thus not gener ally applicable outside the capital sentencing context. y holding otherwise, the concurrence relies |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | the capital sentencing context. y holding otherwise, the concurrence relies on the same type of subjective judgment as the Court, only it restrains itself to a case-by-case rather than a categorical ruling. The concurrence is quite ready to hand Graham “the general presumption of diminished culpability” for juveniles, ante, apparently because it believes that Graham’s armed burglary and home invasion crimes were “certainly less serious” than murder or rape, It recoils only from the prospect that the Court would extend the same presumption to a juvenile who commits a sex crime. See ante, 0. I simply cannot accept that these subjective judgments of proportionality are ones the Eighth Amendment authorizes us to make. The “objective” elements of the Solem test provide no additional support for the concurrence’s conclusion. The concurrence compares Graham’s sentence to “similar” sentences in Florida and concludes that Graham’s sen tence was “far more severe.” Ante, at 8 (ROERTS, C. J, concurring in judgment). ut strangely, the concurrence Cite as: 560 U. S. (2010) 27 THOMAS, J., dissenting uses average sentences for burglary or robbery offenses as examples of “similar” offenses, even though it seems that a run-of-the-mill burglary or robbery is not at all similar to Graham’s criminal history, which includes a charge for armed burglary with assault, and a probation violation for invading a home at gunpoint. And even if Graham’s sentence is higher than ones he might have received for an armed burglary with assault in other jurisdictions, see ante, at 8–9, this hardly seems relevant if one takes seriously the principle that “ ‘[a]bsent a constitutionally imposed uniformity inimical to tradi tional notions of federalism, some State will always bear the distinction of treating particular offenders more se verely than any other State.’ ” (quoting 445 U.S., at 282; emphasis added). Applying Solem, the Court has upheld a 25-years-to-life sentence for theft under Califor nia’s recidivist statute, despite the fact that the State and its amici could cite only “a single instance of a similar sentence imposed outside the context of California’s three strikes law, out of a prison population [then] approaching two million individuals.” 538 U.S., 7 (REYER, J., dissenting). It has also upheld a life-without-parole sentence for a first-time drug offender in Michigan charged with possessing 672 grams of cocaine despite the fact that only one other State would have authorized such a stiff penalty for a first-time drug offense, and even that State required a far greater quantity of cocaine (10 kilo grams) to trigger the penalty. See at 1026 (White, J., dissenting). Graham’s sentence is cer tainly less rare |
Justice Thomas | 2,010 | 1 | dissenting | Graham v. Florida | https://www.courtlistener.com/opinion/146790/graham-v-florida/ | (White, J., dissenting). Graham’s sentence is cer tainly less rare than the sentences upheld in these cases, so his claim fails even under Solem * * * oth the Court and the concurrence claim their deci sions to be narrow ones, but both invite a host of line 28 GRAHAM v. FLORIDA THOMAS, J., dissenting drawing problems to which courts must seek answers beyond the strictures of the Constitution. The Court holds that “[a] State is not required to guarantee eventual free dom to a juvenile offender convicted of a nonhomicide crime,” but must provide the offender with “some mean ingful opportunity to obtain release based on demon strated maturity and rehabilitation.” Ante, at 24. ut what, exactly, does such a “meaningful” opportunity en tail? When must it occur? And what Eighth Amendment principles will govern review by the parole boards the Court now demands that States empanel? The Court provides no answers to these questions, which will no doubt embroil the courts for years.13 V The ultimate question in this case is not whether a life without-parole sentence ‘fits’ the crime at issue here or the crimes of juvenile nonhomicide offenders more generally, but to whom the Constitution assigns that decision. The Florida Legislature has concluded that such sentences should be available for persons under 18 who commit certain crimes, and the trial judge in this case decided to impose that legislatively authorized sentence here. e cause a life-without-parole prison sentence is not a “cruel and unusual” method of punishment under any standard, —————— 13 It bears noting that Colorado, one of the five States that prohibit life-without-parole sentences for juvenile nonhomicide offenders, permits such offenders to be sentenced to mandatory terms of impris onment for up to 40 years. –1.3–401(4)(b) In light of the volume of state and federal legislation that presently permits life-without-parole sentences for juvenile nonhomicide offend ers, it would be impossible to argue that there is any objective evidence of agreement that a juvenile is constitutionally entitled to a parole hearing any sooner than 40 years after conviction. See Tr. of Oral Arg. 6–7 (counsel for Graham, stating that, “[o]ur position is that it should be left up to the States to decide. We think that the Colorado provision would probably be constitutional”). Cite as: 560 U. S. (2010) 29 THOMAS, J., dissenting the Eighth Amendment gives this Court no authority to reject those judgments. It would be unjustifiable for the Court to declare other wise even if it could claim that a bare majority of state laws supported its independent moral view. The fact |
Justice Rehnquist | 1,996 | 19 | majority | Hercules, Inc. v. United States | https://www.courtlistener.com/opinion/118004/hercules-inc-v-united-states/ | Petitioners in this case incurred substantial costs defending, and then settling, third-party tort claims arising out of their performance of Government contracts. In this action under the Tucker Act, they sought to recover these costs from the Government on alternative theories of contractual indemnification or warranty of specifications provided by the Government. We hold that they may not do so. When the United States had armed forces stationed in Southeast Asia in the 1960's, it asked several chemical manufacturers, including petitioners Hercules Incorporated (Hercules) and Wm. T. Thompson Company (Thompson), to manufacture and sell it a specific phenoxy herbicide, code-named Agent Orange. The Department of Defense wanted to spray the defoliant in high concentrations on tree and plant life in order to both eliminate the enemy's hiding places and destroy its food supplies. From 1964 to 1968, the Government, pursuant to the Defense Production Act of 1950 (DPA), as amended, 50 U.S. C. App. 2061 et seq. ( ed. and Supp. V), entered into a series of fixed-price production contracts with petitioners. The military prescribed the formula and detailed specifications for manufacture. The contracts also instructed the suppliers to mark the drums containing the herbicide with a 3-inch orange band with "[n]o *420 further identification as to conten[t]." Lodging 30 (available in clerk's office case file). Petitioners fully complied. In the late 1970's, Vietnam veterans and their families began filing lawsuits against nine manufacturers of Agent Orange, including petitioners. The plaintiffs alleged that the veterans' exposure to dioxin, a toxic byproduct found in Agent Orange and believed by many to be hazardous, had caused various health problems. The lawsuits were consolidated in the Eastern District of New York and a class action was certified. In re "Agent Orange" Product Liability Litigation, District Judge Pratt awarded petitioners summary judgment on the basis of the Government contractor defense in May 1983. In re "Agent Orange" Product Liability Litigation, Before the judgment was entered, however, the case was transferred to Chief Judge Weinstein, who withdrew Judge Pratt's opinion, ruled that the viability of the Government contractor defense could not be determined before trial, and reinstated petitioners as defendants. See In re "Agent Orange" Product Liability Litigation, In May hours before the start of trial,the parties settled. The defendants agreed to create a $180 million settlement fund with each manufacturer contributing on a market-share basis. Hercules' share was $18,772,568; Thompson's was $3,096,. Petitioners also incurred costs defending these suits exceeding $9 million combined.[1] *421 Petitioners want the United States to reimburse them for the costs of defending and settling this litigation. They attempted to |
Justice Rehnquist | 1,996 | 19 | majority | Hercules, Inc. v. United States | https://www.courtlistener.com/opinion/118004/hercules-inc-v-united-states/ | costs of defending and settling this litigation. They attempted to recover first in District Court under tort theories of contribution and noncontractual indemnification. Having failed there,[2] they each sued the Government in the United States Claims Court, invoking jurisdiction under 28 U.S. C. 1491, and raising various claims sounding in contract.[3] On the Government's motions, the Claims Court granted summary judgment against petitioners and dismissed both complaints. Hercules, ; Wm. T. Thompson v.United States, 26 Cl.Ct. 17 The two cases were consolidated for appeal and a divided panel of the Court of Appeals for the Federal Circuit affirmed. The court held that petitioners' claim of implied warranty of specifications failed because petitioners could not prove causation between the alleged breach and the damages. The court explained that, had petitioners pursued the class-action litigation to completion, the Government contractor defense would have barred the imposition of tort liability against them. The Government contractor defense, which many courts recognized before the Agent Orange settlement, but which this Court did not consider *422 until afterward, shields contractors from tort liability for products manufactured for the Government in accordance with Government specifications, if the contractor warned the United States about any hazards known to the contractor but not to the Government. Because the Court of Appeals believed petitioners could have availed themselves of this defense, the court held that, by settling, petitioners voluntarily assumed liability for which the Government was not responsible. It also rejected Thompson's claim of contractual indemnification. Thompson had argued that the Government, pursuant to 707 of the DPA, 50 U.S. C. App. 2157 ( ed.), impliedly promised to indemnify Thompson for any liabilities incurred in performing under the DPA. Not persuaded, the court held that 707 did not create indemnification, but only provided a defense to a suit brought against the contractor by a disgruntled customer whose work order the DPA contract displaced. We granted certiorari, and now affirm the judgment below but on different grounds.[4] We begin by noting the limits of federal jurisdiction. "[T]he United States, as sovereign, `is immune from suit save as it consents to be sued and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.' " United States v. Testan, 424 U. S.392, 399 (1976), quoting United Congress created the Claims Court[5] to permit "a special and limited class of cases" to proceed against the United States, and the court "can take cognizance only of those [claims] which by the terms of some act of Congress are committed to it," ; United The Tucker |
Justice Rehnquist | 1,996 | 19 | majority | Hercules, Inc. v. United States | https://www.courtlistener.com/opinion/118004/hercules-inc-v-united-states/ | of Congress are committed to it," ; United The Tucker Act confers upon the court jurisdiction to hear and determine, inter alia, claims against the United States founded upon any "express or implied" contract with the United States. 28 U.S. C. 1491(a). We have repeatedly held that this jurisdiction extends only to contracts either express or implied in fact, and not to claims on contracts implied in law. 256 U.S. 5, ; ; United ; United Each material term or contractual obligation, as well as the contract as a whole, is subject to this jurisdictional limitation. See, e. g., at 580- ; The distinction between "implied in fact" and "implied in law," and the consequent limitation, is well established in *424 our cases. An agreement implied in fact is "founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding." Baltimore & Ohio R. See also By contrast, an agreement implied in law is a "fiction of law" where "a promise is imputed to perform a legal duty, as to repay money obtained by fraud or duress." Baltimore & Ohio R. at Petitioners do not contend that their contracts contain express warranty or indemnification provisions. Therefore, for them to prevail, they must establish that, based on the circumstances at the time of contracting, there was an implied agreement between the parties to provide the undertakings that petitioners allege. We consider petitioners' warranty-of-specifications and contractual-indemnification claims in turn. The seminal case recognizing a cause of action for breach of contractual warranty of specifications is United In that case, Spearin had contracted to build a dry dock in accordance with the Government's plans which called for the relocation of a storm sewer. After Spearin had moved the sewer, but before he had completed the dry dock, the sewer broke and caused the site to flood. The United States refused to pay for the damages and annulled the contract. Spearin filed suit to recover the balance due on his work and lost profits. This Court held that "if the contractor is bound to build according to plans and specifications prepared by [the Government], the contractor will not be responsible for the consequences of defects in the plans and specifications." From this, petitioners contend the United States is responsible for *425 costs incurred in defending and settling the third-party tort claims. Neither the warranty nor Spearin extends that far. When the Government provides specifications directing how a contract is to |
Justice Rehnquist | 1,996 | 19 | majority | Hercules, Inc. v. United States | https://www.courtlistener.com/opinion/118004/hercules-inc-v-united-states/ | the Government provides specifications directing how a contract is to be performed, the Government warrants that the contractor will be able to perform the contract satisfactorily if it follows the specifications. The specifications will not frustrate performance or make it impossible. It is quite logical to infer from the circumstance of one party providing specifications for performance that that party warrants the capability of performance. But this circumstance alone does not support a further inference that would extend the warranty beyond performance to third-party claims against the contractor. In this case, for example, it would be strange to conclude that the United States, understanding the herbicide's military use, actually contemplated a warranty that would extend to sums a manufacturer paid to a third party to settle claims such as are involved in the present action. It seems more likely that the Government would avoid such an obligation, because reimbursement through contract would provide a contractor with what is denied to it through tort law. See Stencel Aero Engineering[6] *426 As an alternative basis for recovery, Thompson contends that the context in which the Government compelled it to manufacture Agent Orange constitutes an implied-in-fact agreement by the Government to indemnify for losses to third parties.[7] The Government required Thompson to produce under authority of the DPA and threat of civil and criminal fines, imposed detailed specifications, had superior knowledge of the hazards, and, to a measurable extent, seized Thompson's processing facilities. Under these conditions, petitioner contends, the contract must be read to include an implied agreement to protect the contractor and indemnify its losses. We cannot agree. The circumstances surrounding the contracting are only relevant to the extent that they help us deduce what the parties to the contract agreed to in fact. These conditions here do not, we think, give rise to an implied-in-fact indemnity agreement.[8] There is also reason to think that a contracting *427 officer would not agree to the open-ended indemnification alleged here. The Anti-Deficiency Act bars a federal employee or agency from entering into a contract for future payment of money in advance of, or in excess of, an existing appropriation. 31 U.S. C. 1.[9] Ordinarily no federal appropriation covers contractors' payments to third-party tort claimants in these circumstances, and the Comptroller General has repeatedly ruled that Government procurement agencies may not enter into the type of open-ended indemnity for third-party liability that petitioner Thompson claims to have implicitly received under the Agent Orange contracts.[10] We view the Anti-Deficiency Act, and the contracting *428 officer's presumed knowledge of its prohibition, as strong evidence that the officer |
Justice Rehnquist | 1,996 | 19 | majority | Hercules, Inc. v. United States | https://www.courtlistener.com/opinion/118004/hercules-inc-v-united-states/ | knowledge of its prohibition, as strong evidence that the officer would not have provided, in fact, the contractual indemnification Thompson claims. In an effort to avoid the Act's reach, Thompson argues that the Anti-Deficiency Act is not applicable to an implied-in-fact indemnity because such an indemnification is "judicially fashioned" and is "not an express contractual provision." Brief for Petitioners 41. However, "[t]he limitation upon the authority to impose contract obligations upon the United States is as applicable to contracts by implication as it is to those expressly made." When Thompson contracted with the United States, statutory mechanisms existed under which a Government contracting officer could provide an indemnity agreement to specified classes of contractors under specified conditions. See, e. g., 50 U.S. C. 1431 ( ed., Supp. V) (permitting the President, whenever he deems it necessary to facilitate national defense, to authorize Government contracting without regard to other provisions of law regulating the making of contracts; in 1958, the President, in Executive Order No. 10789, delegated this authority to the Department of Defense, provided that the contracts were "within the limits of the amounts appropriated and the contract authorization therefor" and "[p]roper records of all actions taken under the authority" were maintained; in 1971, the President amended the Order to specify the conditions under which indemnification could be provided to defense contractors); 10 U.S. C. 2354 (1956 statute authorizing indemnification provisions in contracts of a military department for research or development); 42 U.S. C. 2210 ). These statutes, set out in meticulous detail and each supported by a panoply of implementing regulations,[11] would be entirely unnecessary if an implied agreement to indemnify could arise from the circumstances of contracting. We will not interpret the DPA contracts so as to render these statutes and regulations superfluous. Cf. Astoria Federal Sav. & Loan[12] We find unpersuasive Thompson's argument that 707 of the DPA[13] reveals Congress' intent to hold harmless manufacturers for any liabilities which flow from compliance with an order issued under the DPA. Thompson reads the provision too broadly. The statute plainly provides immunity, not indemnity. By expressly providing a defense to liability, *430 Congress does not implicitly agree that, if liability is imposed notwithstanding that defense, the Government will reimburse the unlucky defendant.[14] We think Thompson's reliance on Ryan Stevedoring is likewise misplaced; there, in an action between private parties, we held that the stevedore was liable to the shipowner for the amount the latter paid in damages to an injured employee of the former. Here Thompson claims a breach of warranty by its customer, not by its seller and |
Justice Scalia | 1,993 | 9 | concurring | Itel Containers Int'l Corp. v. Huddleston | https://www.courtlistener.com/opinion/112820/itel-containers-intl-corp-v-huddleston/ | I join all of the Court's opinion except those sections disposing of the petitioner's "negative" Foreign Commerce Clause and Import-Export Clause arguments (Parts IV and V, respectively). As to those sections, I concur only in the judgment of the Court. I have previously recorded my view that the Commerce Clause contains no "negative" component, no self-operative prohibition upon the States' regulation of commerce. "The historical record provides no grounds for reading the Commerce Clause to be other than what it saysan authorization for Congress to regulate commerce." Tyler Pipe Industries, ; see also American Trucking Assns., On stare decisis grounds, however, I will enforce a self-executing, "negative" Commerce Clause in two circumstances: (1) against a state law that facially discriminates against interstate commerce,[1] and (2) against a state law that *79 is indistinguishable from a type of law previously held unconstitutional by this Court.[2] These acknowledgments of precedent serve the principal purposes of stare decisis, which are to protect reliance interests and to foster stability in the law. I do not believe, however, that either of those purposes is significantly furthered by continuing to apply the vague and open-ended tests that are the current content of our negative Commerce Clause jurisprudence, such as the four-factor test set forth in Complete Auto Transit, or the "balancing" approach of Unlike the prohibition on rank discrimination against interstate commerce, which has long and consistently appeared in the precedents of this Court, see New Energy Co. of those tests are merely the latest in a series of doctrines that we have successively applied, and successively discarded, over the years, to invalidate nondiscriminatory state taxation and regulationincluding, for example, the "original package" doctrine, see the "uniformity" test, see Case of the State Freight Tax -280 ; cf. Cooley v. Board of Wardens of Port of Philadelphia ex rel. Society for Relief of Distressed Pilots, the "directness" test, see and the "privilege of doing interstate business" rule, see Spector Motor Service, Like almost all their predecessors, these latest tests are so uncertain in their application (and in their anticipated lifespan) *80 that they can hardly be said to foster stability or to engender reliance deserving of stare decisis protection. I have not hitherto had occasion to consider an asserted application of the negative Commerce Clause to commerce "with foreign Nations"as opposed to commerce "among the several States"but the basic point that the Commerce Clause is a power conferred upon Congress (and not a power denied to the States) obviously applies to all portions of the Clause. I assume that, for reasons of stare decisis, I must |
Justice Scalia | 1,993 | 9 | concurring | Itel Containers Int'l Corp. v. Huddleston | https://www.courtlistener.com/opinion/112820/itel-containers-intl-corp-v-huddleston/ | I assume that, for reasons of stare decisis, I must apply the same categorical prohibition against laws that facially discriminate against foreign commerce as I do against laws that facially discriminate against interstate commercethough it may be that the rule is not as deeply rooted in our precedents for the former field. I need not reach that issue in the present case, since the Tennessee tax is nothing more than a garden-variety state sales tax that clearly does not discriminate against foreign commerce. As with the Interstate Commerce Clause, however, stare decisis cannot bind me to a completely indeterminate test such as the "four-factored test plus two" found in Japan Line, which combines Complete Auto with two additional tests. Japan Line, like Complete Auto and Pike, ultimately asks courts to make policy judgmentsessentially, whether nondiscriminatory state regulations of various sorts are "worth" their effects upon interstate or foreign commerce. One element of Japan Line, however, the so-called "speak with one voice" test, has a peculiar effect that underscores the inappropriateness of our engagement in this enterprise of applying a negative Commerce Clause. Applied literally, this test would always be satisfied, since no state law can ever actually "prevent this Nation from `speaking with one voice' in regulating foreign commerce," Japan Line, or "interfere with [the United States'] ability `to speak with one voice,' " Brief for United States as Amicus Curiae 24 The National Government *81 can always explictly pre-empt the offending state law. What, then, does the "one voice" test mean? Today, the Court relies on two considerations in determining that Tennessee's tax passes it: (1) that federal treaties, statutes and regulations restrict a State's ability to tax containers in certain defined circumstances, and the state tax here does not fall within those proscriptions; and (2) that the Government has filed an amicus brief in support of the State. Ante, at 75-. The first of these considerations, however, does not distinguish the ad valorem property tax invalidated in Japan Line, which would also not violate the Container Conventions or the relevant federal statutes and regulations as construed in today's opinion, ante, at 65-66, 71. The second consideration does distinguish Japan Line, and it thus appears that a ruling on the constitutionality of a state law ultimately turns on the position of the Executive Branch. Having appropriated a power of Congress for its own use, the Court now finds itself, at least in the area of foreign commerce, incompetent to wield that power, and passes it off (out of "due regard" for foreign-policy expertise) to the President. Ante, at I |
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