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Justice Burger | 1,977 | 12 | majority | Nolde Brothers, Inc. v. Bakery Workers | https://www.courtlistener.com/opinion/109613/nolde-brothers-inc-v-bakery-workers/ | ; John Wiley & ; Our prior decisions have indeed held that the arbitration duty is a creature of the collective-bargaining agreement and that a party cannot be compelled to arbitrate any matter in *251 the absence of a contractual obligation to do so. Adherence to these principles, however, does not require us to hold that termination of a collective-bargaining agreement automatically extinguishes a party's duty to arbitrate grievances arising under the contract. Carried to its logical conclusion that argument would preclude the entry of a post-contract arbitration order even when the dispute arose during the life of the contract but arbitration proceedings had not begun before termination. The same would be true if arbitration processes began but were not completed, during the contract's term. Yet it could not seriously be contended in either instance that the expiration of the contract would terminate the parties' contractual obligation to resolve such a dispute in an arbitral, rather than a judicial forum. See John Wiley & ; Machine ; Procter & Gamble Ind. cert. denied, U.S. 830 Nolde concedes as much by limiting its claim of nonarbitrability to those disputes which clearly arise after the contract's expiration. Brief for Petitioner 22. Our holding in John Wiley & is instructive on this matter. There we held that a dispute over employees' rights to severance pay[6] under an expired collective-bargaining agreement was arbitrable even though there was no longer any contract between the parties. In their expired agreement, the parties had agreed to submit to arbitration: "`any differences, grievance or dispute between the Employer and the Union arising out of or relating to this agreement, or its interpretation or application or enforcement.'" *252 The Court had little difficulty interpreting that language to require the arbitration of the Union's post-termination severance-pay claim since that claim was "based solely on the Union's construction of the agreement in such a way that [the Employer] would have been required to discharge certain obligations notwithstanding the expiration of the agreement." at We thus determined that the parties' obligations under their arbitration clause survived contract termination when the dispute was over an obligation arguably created by the expired agreement. It is true that the Union there first sought to arbitrate the question of post-contract severance pay while the agreement under which it claimed such benefits was still in effect. But that factor was not dispositive in our determination of arbitrability. Indeed, that very distinction was implicitly rejected shortly thereafter in Piano rev'g (CA7), on the basis of John Wiley & and supra.[7] We decline to depart from that course in |
Justice Burger | 1,977 | 12 | majority | Nolde Brothers, Inc. v. Bakery Workers | https://www.courtlistener.com/opinion/109613/nolde-brothers-inc-v-bakery-workers/ | and supra.[7] We decline to depart from that course in the instant case, for, on the record before us, the fact that the Union asserted its claim to severance pay shortly after, rather than before, contract termination does not control the arbitrability of that claim. The parties agreed to resolve all disputes by resort to the mandatory grievance-arbitration machinery established by their collective-bargaining agreement. The severance-pay dispute, as we have noted, would have been subject to resolution under those procedures had it arisen during the contract's term. However, even though the parties could have so provided, *253 there is nothing in the arbitration clause that expressly excludes from its operation a dispute which arises under the contract, but which is based on events that occur after its termination. The contract's silence, of course, does not establish the parties' intent to resolve post-termination grievances by arbitration. But in the absence of some contrary indication, there are strong reasons to conclude that the parties did not intend their arbitration duties to terminate automatically with the contract. Any other holding would permit the employer to cut off all arbitration of severance-pay claims by terminating an existing contract simultaneously with closing business operations. By their contract the parties clearly expressed their preference for an arbitral, rather than a judicial, interpretation of their obligations under the collective-bargaining agreement. Their reasons for doing so, as well as the special role of arbitration in the employer-employee relationship, have long been recognized by this Court: "The labor arbitrator is usually chosen because of the parties' confidence in his knowledge of the common law of the shop and their trust in his personal judgment to bring to bear considerations which are not expressed in the contract as criteria for judgment. The ablest judge cannot be expected to bring the same experience and competence to bear upon the determination of a grievance, because he cannot be similarly informed." Warrior & Gulf Nav. 363 U. S., at Indeed, it is because of his special experience, expertise, and selection by the parties that courts generally defer to an arbitrator's interpretation of the collective-bargaining agreement: "[T]he question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction *254 of the contract, the courts have no business overruling him because their interpretation of the contract is different from his." Enterprise Wheel & Car While the termination of the collective-bargaining agreement works an obvious change in the relationship between employer and union, it would |
Justice Burger | 1,977 | 12 | majority | Nolde Brothers, Inc. v. Bakery Workers | https://www.courtlistener.com/opinion/109613/nolde-brothers-inc-v-bakery-workers/ | change in the relationship between employer and union, it would have little impact on many of the considerations behind their decision to resolve their contractual differences through arbitration. The contracting parties' confidence in the arbitration process and an arbitrator's presumed special competence in matters concerning bargaining agreements does not terminate with the contract. Nor would their interest in obtaining a prompt and inexpensive resolution of their disputes by an expert tribunal. Hence, there is little reason to construe this contract to mean that the parties intended their contractual duty to submit grievances and claims arising under the contract to terminate immediately on the termination of the contract; the alternative remedy of a lawsuit is the very remedy the arbitration clause was designed to avoid. It is also noteworthy that the parties drafted their broad arbitration clause against a backdrop of well-established federal labor policy favoring arbitration as the means of resolving disputes over the meaning and effect of collective-bargaining agreements. Congress has expressly stated: "Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement." 29 U.S. C. 173 (d). In order to effectuate this policy, this Court has established a strong presumption favoring arbitrability: "[T]o be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery *255 of arbitration. [a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." Warrior & Gulf Nav. at -583. The parties must be deemed to have been conscious of this policy when they agree to resolve their contractual differences through arbitration. Consequently, the parties' failure to exclude from arbitrability contract disputes arising after termination, far from manifesting an intent to have arbitration obligations cease with the agreement, affords a basis for concluding that they intended to arbitrate all grievances arising out of the contractual relationship. In short, where the dispute is over a provision of the expired agreement, the presumptions favoring arbitrability must be negated expressly or by clear implication. We therefore agree with the conclusion of the Court of Appeals that, on this record, the Union's claim for severance pay under the expired collective-bargaining agreement is subject to resolution under the arbitration provisions of that contract.[8] Affirmed. MR. JUSTICE STEWART, with whom MR. |
Justice Kennedy | 1,991 | 4 | majority | Renne v. Geary | https://www.courtlistener.com/opinion/112627/renne-v-geary/ | [] Petitioners seek review of a decision of the United States Court of Appeals for the Ninth Circuit holding that Article II, 6(b), of the California Constitution violates the First and Fourteenth Amendments to the Constitution of the United States. Section 6(b) reads: "No political party or party central committee may endorse, support, or oppose a candidate for nonpartisan office." Its companion provision, 6(a), provides that "[a]ll judicial, school, county, and city offices shall be nonpartisan." I In view of our determination that the case is nonjusticiable, the identity of the parties has crucial relevance. Petitioners are the City and County of San Francisco, its board of supervisors, and certain local officials. The individual respondents are 10 registered voters residing in the City and County of San Francisco. They include the chairman and three members of the San Francisco Republican County Central Committee and one member of the San Francisco Democratic County Central Committee. Election Action, an association *315 of voters, is also a respondent, but it asserts no interest in relation to the issues before us different from that of the individual voters. Hence, we need not consider it further. Respondents filed this suit in the United States District Court for the Northern District of California. Their third cause of action challenged 6(b) and petitioners' acknowledged policy, based on that provision, of deleting any references to a party endorsement from the candidate statements included in voter pamphlets. As we understand it, petitioners print the pamphlets and pay the postage required to mail them to voters. The voter pamphlets contain statements prepared by candidates for office and arguments submitted by interested persons concerning other measures on the ballot. The complaint sought a declaration that Article II, 6, is unconstitutional and an injunction preventing petitioners from editing candidate statements to delete references to party endorsements. The District Court granted summary judgment for respondents on their third cause of action, declaring 6(b) unconstitutional and enjoining petitioners from enforcing it. The court entered judgment on this claim pursuant to Federal Rule of Civil Procedure 54(b), and petitioners appealed. A Ninth Circuit panel reversed, but the en banc Court of Appeals affirmed the District Court's decision, We granted certiorari, to determine whether 6(b) violates the First Amendment. At oral argument, doubts arose concerning the justiciability of that issue in the case before us. Having examined the complaint and the record, we hold that respondents have not demonstrated a live controversy ripe for resolution by the federal courts. As a consequence of our finding of nonjusticiability, we vacate the Ninth Circuit's judgment and remand with |
Justice Kennedy | 1,991 | 4 | majority | Renne v. Geary | https://www.courtlistener.com/opinion/112627/renne-v-geary/ | nonjusticiability, we vacate the Ninth Circuit's judgment and remand with instructions to dismiss respondents' third cause of action. *316 II Concerns of justiciability go to the power of the federal courts to entertain disputes, and to the wisdom of their doing so. We presume that federal courts lack jurisdiction "unless `the contrary appears affirmatively from the record.'" quoting King Bridge "`It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers.'" at n. 8, quoting A Proper resolution of the justiciability issues presented here requires examination of the pleadings and record to determine the nature of the dispute and the interests of the parties in having it resolved in this judicial proceeding. According to the complaint, the respondent committee members "desire to endorse, support, and oppose candidates for city and county office through their county central committees, and to publicize such endorsements by having said endorsements printed in candidate's statements published in the voter's pamphlet." App. 4, ¶ 36. All respondents "desire to read endorsements of candidates for city and county office as part of candidate's statements printed in the San Francisco voter's pamphlet." The complaint alleges that in the past certain of these petitioners "have deleted all references in candidate's statements for City and County offices to endorsements by political party central committees or officers or members of such committees," and that they will continue such deletions in the future unless restrained by court order. ¶ Respondents believe an actual controversy exists because they contend 6 and any other law relied upon to refuse to print the endorsements are unconstitutional in that they "abridge [respondents'] *317 rights to free speech and association," while petitioners dispute these contentions. ¶ 39. The third cause of action concludes with general assertions that respondents have been harmed by the past and threatened deletion of endorsements from candidate statements, and that because of those deletions they have suffered and will suffer irreparable injury to their rights of free speech and association. An affidavit submitted by the chairman of the Republican committee in connection with respondents' motion for summary judgment illuminates and supplements the allegations of the complaint. It indicates the committee has a policy of endorsing candidates for nonpartisan offices: "In 1987, the Republican Committee endorsed Arlo Smith for District Attorney, Michael Hennessey for Sheriff, and John Molinari for Mayor, despite objections from some that such endorsements are prohibited by California Constitution Article [II], Section 6. It is the plan and intention |
Justice Kennedy | 1,991 | 4 | majority | Renne v. Geary | https://www.courtlistener.com/opinion/112627/renne-v-geary/ | Article [II], Section 6. It is the plan and intention of the Republican Committee to endorse candidates for nonpartisan offices in as many future elections as possible. The Republican Committee would like to have such endorsements publicized by endorsed candidates in their candidate's statements in the San Francisco voter's pamphlet, and to encourage endorsed candidates to so publish their endorsements by the Republican Committee. "In the future, I and other Republican Committee members would like to use our titles as Republican County Committeemen in endorsements we make of local candidates which are printed in the San Francisco voter's pamphlet. We cannot presently do so as [petitioner] Jay Patterson has a policy of deleting the word `Republican' from all such endorsements." An affidavit submitted by a Democratic committeeman states that "[i]n elections since 1986, the Democratic committee *318 has declined to endorse candidates for nonpartisan office solely out of concern that committee members may be criminally or civilly prosecuted for violation of the endorsement ban contained in" 6. It also provides two examples of elections in which the word "Democratic" had been deleted from candidate statements. One involved an endorsement by a committee member of one of these respondents, then a candidate for local office, and in another the respondent committee member wished to mention that position in his own candidate statement. Those elections occurred prior to the adoption of 6(b), but at least one and perhaps both were held at a time when a California appellate court had found a ban on party endorsements implicit in the state constitutional provision designating which offices are nonpartisan, now 6(a). See overruled by B Respondents' allegations indicate that, relevant to this suit, petitioners interpret 6(b) to apply to three different categories of speakers. First, as suggested by the language of the provision, it applies to party central committees. Second, petitioners' reliance on 6(b) to edit candidate statements demonstrates that they believe the provision applies as well to the speech of candidates for nonpartisan office, at least in the forum provided by the voter pamphlets. Third, petitioners have interpreted 6(b) to apply to members and officers of party central committees, as shown by their policy of deleting references to endorsements by these individuals from candidate statements. The first of these interpretations flows from the plain language of 6(b), while the second and third require inferences from the text. As an initial matter, serious questions arise concerning the standing of respondents to defend the rights of speakers *319 in any of these categories except to the extent that certain respondents in the third category may |
Justice Kennedy | 1,991 | 4 | majority | Renne v. Geary | https://www.courtlistener.com/opinion/112627/renne-v-geary/ | the extent that certain respondents in the third category may assert their own rights. In their capacity as voters, respondents only allege injury flowing from application of 6(b) to prevent speech by candidates in the voter pamphlets. We have at times permitted First Amendment claims by those who did not themselves intend to engage in speech, but instead wanted to challenge a restriction on speech they desired to hear. See, e. g., Virginia State Bd. of There is reason to doubt, however, that the injury alleged by these voters can be redressed by a declaration of 6(b)'s invalidity or an injunction against its enforcement. See ASARCO (party seeking to invoke authority of federal courts must show injury "likely to be redressed by the requested relief"); ; A separate California statute, the constitutionality of which was not litigated in this case, provides that a candidate's statement "shall not include the party affiliation of the candidate, nor membership or activity in partisan political organizations." Cal. Elec. Code Ann. 10012 This statute might be construed to prevent candidates from mentioning party endorsements in voter pamphlets, even in the absence of 6(b). Overlapping enactments can be designed to further differing state interests, and invalidation of one may not impugn the validity of another. The respondent committee members allege injury to their rights, either through their committees or as individual committee members, to endorse candidates for nonpartisan offices, and also allege injury from the inability of candidates to include those endorsements in voter pamphlets. Respondents *320 of course have standing to claim that 6(b) has been applied in an unconstitutional manner to bar their own speech. Apart, though, from the possibility of an overbreadth challenge, an alternative we discuss below, the standing of the committee members to litigate based on injuries to the rights of their respective committees is unsettled. See -545 It may be that rights the committee members can exercise only in conjunction with the other members of the committee must be defended by the committee itself. Nor is it clear, putting aside our concerns about redressability, that the committee members have third-party standing to assert the rights of candidates, since no obvious barrier exists that would prevent a candidate from asserting his or her own rights. See C Justiciability concerns not only the standing of litigants to assert particular claims, but also the appropriate timing of judicial intervention. See Regional Rail Reorganization Act Cases, Respondents have failed to demonstrate a live dispute involving the actual or threatened application of 6(b) to bar particular speech. Respondents' generalized claim that petitioners have deleted party |
Justice Kennedy | 1,991 | 4 | majority | Renne v. Geary | https://www.courtlistener.com/opinion/112627/renne-v-geary/ | particular speech. Respondents' generalized claim that petitioners have deleted party endorsements from candidate statements in past elections does not demonstrate a live controversy. So far as we can discern from the record, those disputes had become moot by the time respondents filed suit. While the mootness exception for disputes capable of repetition yet evading review has been applied in the election context, see that doctrine will not revive a dispute which became moot before the action commenced. "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief *321. if unaccompanied by any continuing, present adverse effects." ; see Los The allegation that the Democratic committee has not endorsed candidates "[i]n elections since 1986" for fear of the consequences of violating 6, App. 12, provides insufficient indication of a controversy continuing at the time this litigation began or arising thereafter. The affidavit provides no indication whom the Democratic committee wished to endorse, for which office, or in what election. Absent a contention that 6(b) prevented a particular endorsement, and that the controversy had not become moot prior to the litigation, this allegation will not support an action in federal court. Nor can a ripe controversy be found in the fact that the Republican committee endorsed candidates for nonpartisan elections in 1987, the year this suit was filed. Whether or not all of those endorsements involved elections pending at the time this action commenced, a point on which the affidavit is not clear, we have no reason to believe that 6(b) had any impact on the conduct of those involved. The committee made these endorsements "despite objections from some that such endorsements are prohibited" by the provision at issue. App. 15. Nothing in the record suggests that any action was taken to enforce 6(b) as a result of those endorsements. We know of no adverse consequences suffered by the Republican committee or its members due to the apparent violation of 6(b). We also have no indication that any of the three endorsed candidates desired or attempted to include the party's endorsement in a candidate statement. We also discern no ripe controversy in the allegations that respondents desire to endorse candidates in future elections, either as individual committee members or through their committees. Respondents do not allege an intention to endorse any particular candidate, nor that a candidate wants to include a party's or committee member's endorsement in a candidate statement. We possess no factual record of an actual *322 or imminent application of 6(b) sufficient to present the constitutional issues in "clean-cut and concrete |
Justice Kennedy | 1,991 | 4 | majority | Renne v. Geary | https://www.courtlistener.com/opinion/112627/renne-v-geary/ | sufficient to present the constitutional issues in "clean-cut and concrete form." Rescue ; see Socialist Labor ; Public Affairs Associates, ; Alabama State Federation of We do not know the nature of the endorsement, how it would be publicized, or the precise language petitioners might delete from the voter pamphlet. To the extent respondents allege that a committee or a committee member wishes to "support" or "oppose" a candidate other than through endorsements, they do not specify what form that support or opposition would take. The record also contains no evidence of a credible threat that 6(b) will be enforced, other than against candidates in the context of voter pamphlets. The only instances disclosed by the record in which parties endorsed specific candidates did not, so far as we can tell, result in petitioners taking any enforcement action. While the record indicates that the Democratic committee feared prosecution of its members if it endorsed a candidate, we find no explanation of what criminal provision that conduct might be held to violate. Petitioners' counsel indicated at oral argument that 6(b) carries no criminal penalties, and may only be enforced by injunction. Nothing in the record suggests that petitioners have threatened to seek an injunction against county committees or their members if they violate 6(b). While petitioners have threatened not to allow candidates to include endorsements by county committees or their members in the voter pamphlets prepared by the government, we do not believe deferring adjudication will impose a substantial hardship on these respondents. In all probability, respondents can learn which candidates have been endorsed by particular parties or committee members through other means. If respondents or their committees do desire to make a particular endorsement in the future, and a candidate wishes to *323 include the endorsement in a voter pamphlet, the constitutionality of petitioners' refusal to publish the endorsement can be litigated in the context of a concrete dispute. Postponing consideration of the questions presented, until a more concrete controversy arises, also has the advantage of permitting the state courts further opportunity to construe 6(b), and perhaps in the process to "materially alter the question to be decided." ; see also It is not clear from the language of the provision, for instance, that it applies to individual members of county committees. This apparent construction of the provision by petitioners, which may give respondents standing in this case, could be held invalid by the state courts. State courts also may provide further definition to 6(b)'s operative language, "endorse, support, or oppose." "Determination of the scope and constitutionality of legislation in |
Justice Kennedy | 1,991 | 4 | majority | Renne v. Geary | https://www.courtlistener.com/opinion/112627/renne-v-geary/ | oppose." "Determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function." D We conclude with a word about the propriety of resolving the facial constitutionality of 6(b) without first addressing its application to a particular set of facts. In some First Amendment contexts, we have permitted litigants injured by a particular application of a statute to assert a facial overbreadth challenge, one seeking invalidation of the statute because its application in other situations would be unconstitutional. See We have some doubt that respondents' complaint should be construed to assert a facial challenge to 6(b). Beyond question, the gravamen of the complaint is petitioners' application of 6(b) to delete party endorsements from candidate statements in voter pamphlets. While the complaint seeks a declaration *324 of 6(b)'s unconstitutionality, the only injunctive relief it requests relates to the editing of candidate statements. References to other applications of 6(b) are at best conclusory. But even if one may read the complaint to assert a facial challenge, the better course might have been to address in the first instance the constitutionality of 6(b) as applied in the context of voter pamphlets. "It is not the usual judicial practice, nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarilythat is, before it is determined that the statute would be valid as applied. Such a course would convert use of the overbreadth doctrine from a necessary means of vindicating the plaintiff's right not to be bound by a statute that is unconstitutional into a means of mounting gratuitous wholesale attacks upon state and federal laws." Board of Trustees of State University of N. ; see also If the as-applied challenge had been resolved first in this case, the problems of justiciability that determine our disposition might well have concluded the litigation at an earlier stage. III The free speech issues argued in the briefs filed here have fundamental and far-reaching import. For that very reason, we cannot decide the case based upon the amorphous and ill-defined factual record presented to us. Rules of justiciability serve to make the judicial process a principled one. Were we to depart from those rules, our disposition of the case would lack the clarity and force which ought to inform the exercise of judicial authority. The judgment is vacated, and the case is remanded with instructions to dismiss respondents' third cause of action without prejudice. It is so ordered. |
Justice Stewart | 1,971 | 18 | majority | Griffin v. Breckenridge | https://www.courtlistener.com/opinion/108362/griffin-v-breckenridge/ | This litigation began when the petitioners filed a complaint in the United States District Court for the Southern District of Mississippi, seeking compensatory and punitive damages and alleging, in substantial part, as follows: "2. The plaintiffs are Negro citizens of the United States and residents of Kemper County, Mississippi. *90 "3. The defendants, Lavon Breckenridge and James Calvin Breckenridge, are white adult citizens of the United States residing in DeKalb, Kemper County, Mississippi. ". On July 2, 1966, the plaintiffs were passengers in an automobile belonging to and operated by R. G. Grady of Memphis, Tennessee. They were travelling upon the federal, state and local highways in and about DeKalb, Mississippi, performing various errands and visiting friends. "5. On July 2, 1966 defendants, acting under a mistaken belief that R. G. Grady was a worker for Civil Rights for Negroes, wilfully and maliciously conspired, planned, and agreed to block the passage of said plaintiffs in said automobile upon the public highways, to stop and detain them and to assault, beat and injure them with deadly weapons. Their purpose was to prevent said plaintiffs and other Negro-Americans, through such force, violence and intimidation, from seeking the equal protection of the laws and from enjoying the equal rights, privileges and immunities of citizens under the laws of the United States and the State of Mississippi, including but not limited to their rights to freedom of speech, movement, association and assembly; their right to petition their government for redress of their grievances; their rights to be secure in their persons and their homes; and their rights not to be enslaved nor deprived of life and liberty other than by due process of law. "6. Pursuant to their conspiracy, defendants drove their truck into the path of Grady's automobile and blocked its passage over the public road. Both defendants then forced Grady and said plaintiffs to get out of Grady's automobile and prevented said plaintiffs from escaping while defendant James *91 Calvin Breckenridge clubbed Grady with a blackjack, pipe or other kind of club by pointing firearms at said plaintiffs and uttering threats to kill and injure them if defendants' orders were not obeyed, thereby terrorizing them to the utmost degree and depriving them of their liberty. "7. Pursuant to their conspiracy, defendants wilfully, intentionally, and maliciously menaced and assaulted each of the said plaintiffs by pointing firearms and wielding deadly blackjacks, pipes or other kind of clubs, while uttering threats to kill and injure said plaintiffs, causing them to become stricken with fear of immediate injury and death and to suffer. extreme terror, |
Justice Stewart | 1,971 | 18 | majority | Griffin v. Breckenridge | https://www.courtlistener.com/opinion/108362/griffin-v-breckenridge/ | of immediate injury and death and to suffer. extreme terror, mental anguish and emotional and physical distress. "8. Pursuant to defendants' conspiracy, defendant James Calvin Breckenridge then wilfully, intentionally and maliciously clubbed each of said plaintiffs on and about the head, severely injuring all of them, while both defendants continued to assault said plaintiffs and prevent their escape by pointing their firearms at them. "12. By their conspiracy and acts pursuant thereto, the defendants have wilfully and maliciously, directly and indirectly, intimidated and prevented the plaintiffs and other Negro-Americans from enjoying and exercising their rights, privileges and immunities as citizens of the United States and the State of Mississippi, including but not limited to, their rights to freedom of speech, movement, association and assembly; the right to petition their government for redress of grievances; their right to be secure in their person; their right not to be enslaved nor deprived of life, liberty or property other than by due process of law, and their *92 rights to travel the public highways without restraint in the same terms as white citizens in Kemper County, Mississippi" The jurisdiction of the federal court was invoked under the language of Rev. Stat. 1980, 2 U.S. C. 1985 (3), which provides: "If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws [and] in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators." The District Court dismissed the complaint for failure to state a cause of action, relying on the authority of this Court's opinion in which in effect construed the above language of 1985 (3) as reaching only conspiracies under color of state law. The Court of Appeals for the Fifth Circuit affirmed the judgment of dismissal. Judge Goldberg's thorough opinion for that court expressed "serious doubts" as to the "continued vitality" of and stated that "it would not surprise us if |
Justice Stewart | 1,971 | 18 | majority | Griffin v. Breckenridge | https://www.courtlistener.com/opinion/108362/griffin-v-breckenridge/ | of and stated that "it would not surprise us if were disapproved and if 1985 (3) were held to embrace private conspiracies to interfere with rights of national citizenship," but concluded that "[s]ince we *93 may not adopt what the Supreme Court has expressly rejected, we obediently abide the mandate in Collins," We granted certiorari, to consider questions going to the scope and constitutionality of 2 U.S. C. 1985 (3). I was decided years ago. The complaint in that case alleged that the plaintiffs were members of a political club that had scheduled a meeting to adopt a resolution opposing the Marshall Plan, and to send copies of the resolution to appropriate federal officials; that the defendants conspired to deprive the plaintiffs of their rights as citizens of the United States peaceably to assemble and to equal privileges and immunities under the laws of the United States; that, in furtherance of the conspiracy, the defendants proceeded to the meeting site and, by threats and violence, broke up the meeting, thus interfering with the right of the plaintiffs to petition the Government for the redress of grievances; and that the defendants did not interfere or conspire to interfere with the meetings of other political groups with whose opinions the defendants agreed. The Court held that this complaint did not state a cause of action under 1985 (3):[1] "The complaint makes no claim that the conspiracy or the overt acts involved any action by state officials, or that defendants even pretended to act under color of state law. It is not shown that defendants had or claimed any protection or immunity from the law of the State, or that they in fact enjoyed such because of any act or omission by state authorities." "What we have here is not a conspiracy to affect in any way these plaintiffs' equality of protection by *9 the law, or their equality of privileges and immunities under the law. There is not the slightest allegation that defendants were conscious of or trying to influence the law, or were endeavoring to obstruct or interfere with it. Such private discrimination is not inequality before the law unless there is some manipulation of the law or its agencies to give sanction or sanctuary for doing so." The Court was careful to make clear that it was deciding no constitutional question, but simply construing the language of the statute, or more precisely, determining the applicability of the statute to the facts alleged in the complaint:[2] "We say nothing of the power of Congress to authorize such civil actions as respondents |
Justice Stewart | 1,971 | 18 | majority | Griffin v. Breckenridge | https://www.courtlistener.com/opinion/108362/griffin-v-breckenridge/ | power of Congress to authorize such civil actions as respondents have commenced or otherwise to redress such grievances as they assert. We think that Congress has not, in the narrow class of conspiracies defined by this statute, included the conspiracy charged here. We therefore reach no constitutional questions." Nonetheless, the Court made equally clear that the construction it gave to the statute was influenced by the constitutional problems that it thought would have otherwise been engendered: "It is apparent that, if this complaint meets the requirements of this Act, it raises constitutional problems of the first magnitude that, in the light of history, are not without difficulty. These would *95 include issues as to congressional power under and apart from the Fourteenth Amendment, the reserved power of the States, the content of rights derived from national as distinguished from state citizenship, and the question of separability of the Act in its application to those two classes of rights." Mr. Justice Burton filed a dissenting opinion, joined by MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS. The dissenters thought that "[t]he language of the statute refutes the suggestion that action under color of state law is a necessary ingredient of the cause of action which it recognizes." Further, the dissenters found no constitutional difficulty in according to the statutory words their apparent meaning: "Congress certainly has the power to create a federal cause of action in favor of persons injured by private individuals through the abridgment of federally created constitutional rights. It seems to me that Congress has done just this in [ 1985 (3)]. This is not inconsistent with the principle underlying the Fourteenth That amendment prohibits the respective states from making laws abridging the privileges or immunities of citizens of the United States or denying to any person within the jurisdiction of a state the equal protection of the laws. Cases holding that those clauses are directed only at state action are not authority for the contention that Congress may not pass laws supporting rights which exist apart from the Fourteenth " II Whether or not was correctly decided on its own facts is a question with which we need not here be concerned. But it is clear, in the light of *96 the evolution of decisional law in the years that have passed since that case was decided, that many of the constitutional problems there perceived simply do not exist. Little reason remains, therefore, not to accord to the words of the statute their apparent meaning. That meaning is confirmed by judicial construction of related laws, by the structural |
Justice Stewart | 1,971 | 18 | majority | Griffin v. Breckenridge | https://www.courtlistener.com/opinion/108362/griffin-v-breckenridge/ | confirmed by judicial construction of related laws, by the structural setting of 1985 (3) itself, and by its legislative history. And a fair reading of the allegations of the complaint in this case clearly brings them within this meaning of the statutory language. As so construed, and as applied to this complaint, we have no doubt that the statute was within the constitutional power of Congress to enact. III We turn, then, to an examination of the meaning of 1985 (3). On their face, the words of the statute fully encompass the conduct of private persons. The provision speaks simply of "two or more persons in any State or Territory" who "conspire or go in disguise on the highway or on the premises of another." Going in disguise, in particular, is in this context an activity so little associated with official action and so commonly connected with private marauders that this clause could almost never be applicable under the artificially restrictive construction of Collins. And since the "going in disguise" aspect must include private action, it is hard to see how the conspiracy aspect, joined by a disjunctive, could be read to require the involvement of state officers. The provision continues, specifying the motivation required "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." This language is, of course, similar to that of 1 of the Fourteenth Amendment, * which in terms speaks only to the States,[3] and judicial thinking about what can constitute an equal protection deprivation has, because of the Amendment's wording, focused almost entirely upon identifying the requisite "state action" and defining the offending forms of state law and official conduct. A century of Fourteenth Amendment adjudication has, in other words, made it understandably difficult to conceive of what might constitute a deprivation of the equal protection of the laws by private persons. Yet there is nothing inherent in the phrase that requires the action working the deprivation to come from the State. See, e. g., United Indeed, the failure to mention any such requisite can be viewed as an important indication of congressional intent to speak in 1985 (3) of all deprivations of "equal protection of the laws" and "equal privileges and immunities under the laws," whatever their source. The approach of this Court to other Reconstruction civil rights statutes in the years since Collins has been to "accord [them] a sweep as broad as [their] language." United ; Moreover, very similar language in |
Justice Stewart | 1,971 | 18 | majority | Griffin v. Breckenridge | https://www.courtlistener.com/opinion/108362/griffin-v-breckenridge/ | as [their] language." United ; Moreover, very similar language in closely related statutes has early and late received an interpretation quite inconsistent with that given to 1985 (3) in Collins. In construing the exact criminal counterpart of 1985 (3), the Court in United observed that the statute was "not limited to take effect only in case [of state action]," but "was framed to protect from invasion by private persons, the equal privileges *98 and immunities under the laws, of all persons and classes of persons," In United the Court considered the closest remaining criminal analogue to 1985 (3), 18 U.S. C. 21.[] Mr. Justice Frankfurter's plurality opinion, without contravention from the concurrence or dissent, concluded that "if language is to carry any meaning at all it must be clear that the principal purpose of [ 21], unlike [18 U.S. C. 22], was to reach private action rather than officers of a State acting under its authority. Men who `go in disguise upon the public highway, or upon the premises of another' are not likely to be acting in official capacities." "Nothing in [the] terms [of 21] indicates that color of State law was to be relevant to prosecution under it." A like construction of 1985 (3) is reinforced when examination is broadened to take in its companion statutory provisions. There appear to be three possible forms for a state action limitation on 1985 (3)that there must be action under color of state law, that there must be interference with or influence upon state authorities, or that there must be a private conspiracy so massive and effective that it supplants those authorities and thus satisfies the state action requirement.[5] The Congress *99 that passed the Civil Rights Act of 1871, 2 of which is the parent of 1985 (3), dealt with each of these three situations in explicit terms in other parts of the same Act. An element of the cause of action established by the first section, now 2 U.S. C. 1983, is that the deprivation complained of must have been inflicted under color of state law.[6] To read any such requirement into 1985 (3) would thus deprive that section of all independent effect. As for interference with state officials, 1985 (3) itself contains another clause dealing explicitly with that situation.[7] And 3 of the 1871 Act provided for military action at the command of the President should massive private lawlessness render state authorities powerless to protect the federal rights of classes of citizens, such a situation being defined by the Act as constituting a state denial of equal protection. |
Justice Stewart | 1,971 | 18 | majority | Griffin v. Breckenridge | https://www.courtlistener.com/opinion/108362/griffin-v-breckenridge/ | the Act as constituting a state denial of equal protection. Given the existence of these three provisions, it is almost impossible to believe that Congress intended, in the dissimilar language of the portion of 1985 (3) now before us, simply to duplicate the coverage of one or more of them. The final area of inquiry into the meaning of 1985 (3) lies in its legislative history. As originally introduced in the 2d Congress, the section was solely a criminal provision outlawing certain conspiratorial acts done with *100 intent "to do any act in violation of the rights, privileges, or immunities of another person" Cong. Globe, 2d Cong., 1st Sess., App. 68 (1871). Introducing the bill, the House sponsor, Representative Shellabarger, stressed that "the United States always has assumed to enforce, as against the States, and also persons, every one of the provisions of the Constitution." at App. 69 (emphasis supplied). The enormous sweep of the original language led to pressures for amendment, in the course of which the present civil remedy was added. The explanations of the added language centered entirely on the animus or motivation that would be required, and there was no suggestion whatever that liability would not be imposed for purely private conspiracies. Representative Willard, draftsman of the limiting amendment, said that his version "provid[ed] that the essence of the crime should consist in the intent to deprive a person of the equal protection of the laws and of equal privileges and immunities under the laws; in other words, that the Constitution secured, and was only intended to secure, equality of rights and immunities, and that we could only punish by United States laws a denial of that equality." at App. 188. Representative Shellabarger's explanation of the amendment was very similar: "The object of the amendment is to confine the authority of this law to the prevention of deprivations which shall attack the equality of rights of American citizens; that any violation of the right, the animus and effect of which is to strike down the citizen, to the end that he may not enjoy equality of rights as contrasted with his and other citizens' rights, shall be within the scope of the remedies of this section."[8] *101 Other supporters of the bill were even more explicit in their insistence upon coverage of private action. Shortly before the amendment was introduced, Representative Shanks urged, "I do not want to see [this measure] so amended that there shall be taken out of it the frank assertion of the power of the national Government to protect life, liberty, and |
Justice Stewart | 1,971 | 18 | majority | Griffin v. Breckenridge | https://www.courtlistener.com/opinion/108362/griffin-v-breckenridge/ | power of the national Government to protect life, liberty, and property, irrespective of the act of the State." at App. 11. At about the same time, Representative Coburn asked: "Shall we deal with individuals, or with the State as a State? If we can deal with individuals, that is a less radical course, and works less interference with local governments. It would seem more accordant with reason that the easier, more direct, and more certain method of dealing with individual criminals was preferable, and that the more thorough method of superseding State authority should only be resorted to when the deprivation of rights and the condition of outlawry was so general as to prevail in all quarters in defiance of or by permission of the local government." After the amendment had been proposed in the House, Senator Pool insisted in support of the bill during Senate debate that "Congress must deal with individuals, not States. It must punish the offender against the rights of the citizen" It is thus evident that all indicatorstext, companion provisions, and legislative historypoint unwaveringly to 1985 (3)'s coverage of private conspiracies. That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others, For, though the supporters of the legislation insisted on coverage of private conspiracies, they were equally emphatic that they did not believe, in the words of Representative Cook, "that Congress has a right to punish an assault and battery when committed by two or more persons *102 within a State." The constitutional shoals that would lie in the path of interpreting 1985 (3) as a general federal tort law can be avoided by giving full effect to the congressional purposeby requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment. See the remarks of Representatives Willard and Shellabarger, The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.[9] The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.[10] IV We return to the petitioners' complaint to determine whether it states a cause of action under 1985 (3) as so construed. To come within the legislation a complaint must allege that the defendants did (1) "conspire or go in disguise on the highway or on the premises of another" |
Justice Stewart | 1,971 | 18 | majority | Griffin v. Breckenridge | https://www.courtlistener.com/opinion/108362/griffin-v-breckenridge/ | disguise on the highway or on the premises of another" (2) "for the purpose of depriving, either directly *103 or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." It must then assert that one or more of the conspirators (3) did, or caused to be done, "any act in furtherance of the object of [the] conspiracy," whereby another was (a) "injured in his person or property" or (b) "deprived of having and exercising any right or privilege of a citizen of the United States." The complaint fully alleges, with particulars, that the respondents conspired to carry out the assault. It further asserts that "[t]heir purpose was to prevent [the] plaintiffs and other Negro-Americans, through force, violence and intimidation, from seeking the equal protection of the laws and from enjoying the equal rights, privileges and immunities of citizens under the laws of the United States and the State of Mississippi," including a long list of enumerated rights such as free speech, assembly, association, and movement. The complaint further alleges that the respondents were "acting under a mistaken belief that R. G. Grady was a worker for Civil Rights for Negroes." These allegations clearly support the requisite animus to deprive the petitioners of the equal enjoyment of legal rights because of their race. The claims of detention, threats, and battery amply satisfy the requirement of acts done in furtherance of the conspiracy. Finally, the petitionerswhether or not the nonparty Grady was the main or only target of the conspiracyallege personal injury resulting from those acts. The complaint, then, states a cause of action under 1985 (3). Indeed, the conduct here alleged lies so close to the core of the coverage intended by Congress that it is hard to conceive of wholly private conduct that would come within the statute if this does not. We must, accordingly, consider whether Congress had constitutional power to enact a statute that imposes liability under federal law for the conduct alleged in this complaint. *10 V The constitutionality of 1985 (3) might once have appeared to have been settled adversely by United and which held unconstitutional its criminal counterpart, then 5519 of the Revised Statutes.[11] The Court in those cases, however, followed a severability rule that required invalidation of an entire statute if any part of it was unconstitutionally overbroad, unless its different parts could be read as wholly independent provisions. E. g., This Court has long since firmly rejected that rule in such cases as United Consequently, we need not find |
Justice Stewart | 1,971 | 18 | majority | Griffin v. Breckenridge | https://www.courtlistener.com/opinion/108362/griffin-v-breckenridge/ | in such cases as United Consequently, we need not find the language of 1985 (3) now before us constitutional in all its possible applications in order to uphold its facial constitutionality and its application to the complaint in this case. That 1985 (3) reaches private conspiracies to deprive others of legal rights can, of itself, cause no doubts of its constitutionality. It has long been settled that 18 U.S. C. 21, a criminal statute of far broader phrasing (see n. reaches wholly private conspiracies and is constitutional. E. g., In re Quarles, ; 1 U.S. 263, ; United ; Ex parte Yarbrough, See generally Our inquiry therefore, need go only to identifying a source of congressional power to reach the private conspiracy alleged by the complaint in this case. A Even as it struck down Rev. Stat. 5519 in United the Court indicated that parts of its coverage would, if severable, be constitutional under the *105 Thirteenth 106 U.S., at 60-61. And surely there has never been any doubt of the power of Congress to impose liability on private persons under 2 of that amendment, "for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States." Civil Rights Cases, See also ; 1 U.S. 7, ; 392 U. S., at -0. Not only may Congress impose such liability, but the varieties of private conduct that it may make criminally punishable or civilly remediable extend far beyond the actual imposition of slavery or involuntary servitude. By the Thirteenth Amendment, we committed ourselves as a Nation to the proposition that the former slaves and their descendants should be forever free. To keep that promise, "Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation." at 0. We can only conclude that Congress was wholly within its powers under 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men. B Our cases have firmly established that the right of interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference. Thompson, 39 U.S. 618, 629-631; at 62-6 ; United States 383 U.S. 75, 757-760 and n. |
Justice Stewart | 1,971 | 18 | majority | Griffin v. Breckenridge | https://www.courtlistener.com/opinion/108362/griffin-v-breckenridge/ | 62-6 ; United States 383 U.S. 75, 757-760 and n. 17; ; Slaughter-House Cases, ; 8-9; Passenger Cases, 92 (Taney, C.J., dissenting). The "right to pass freely from State to State" has been explicitly recognized as "among the rights and privileges of National citizenship." at That right, like other rights of national citizenship, is within the power of Congress to protect by appropriate legislation. E. g., United States v. ; United 31-315; Ex parte Yarbrough, ; 00 U.S. 112, (concurring and dissenting opinion). The complaint in this case alleged that the petitioners "were travelling upon the federal, state and local highways in and about" DeKalb, Kemper County, Mississippi. Kemper County is on the Mississippi-Alabama border. One of the results of the conspiracy, according to the complaint, was to prevent the petitioners and other Negroes from exercising their "rights to travel the public highways without restraint in the same terms as white citizens in Kemper County, Mississippi." Finally, the conspiracy was alleged to have been inspired by the respondents' erroneous belief that Grady, a Tennessean, was a worker for Negro civil rights. Under these allegations it is open to the petitioners to prove at trial that they had been engaging in interstate travel or intended to do so, that their federal right to travel interstate was one of the rights meant to be discriminatorily impaired by the conspiracy, that the conspirators intended to drive out-of-state civil rights workers from the State, or that they meant to deter the petitioners from associating with such persons. This and other evidence could make it clear that the petitioners had suffered from conduct that Congress may reach under its power to protect the right of interstate travel. *107 C In identifying these two constitutional sources of congressional power, we do not imply the absence of any other. More specifically, the allegations of the complaint in this case have not required consideration of the scope of the power of Congress under 5 of the Fourteenth [12] By the same token, since the allegations of the complaint bring this cause of action so close to the constitutionally authorized core of the statute, there has been no occasion here to trace out its constitutionally permissible periphery. The judgment is reversed, and the case is remanded to the United States District Court for the Southern District of Mississippi for further proceedings consistent with this opinion. It is so ordered. MR. |
Justice Scalia | 1,994 | 9 | majority | Liteky v. United States | https://www.courtlistener.com/opinion/112935/liteky-v-united-states/ | Section 455(a) of Title 28 of the United States Code requires a federal judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." This case presents the question whether required recusal under this provision is subject to the limitation that has come to be known as the "extrajudicial source" doctrine. *542 I In the 1991 trial at issue here, petitioners were charged with willful destruction of property of the United States in violation of 18 U.S. C. 1361. The indictment alleged that they had committed acts of vandalism, including the spilling of human blood on walls and various objects, at the Fort Benning Military Reservation. Before trial petitioners moved to disqualify the District Judge pursuant to 28 U.S. C. 455(a). The motion relied on events that had occurred during and immediately after an earlier trial, involving petitioner Bourgeois, before the same District Judge. In the 1983 bench trial, Bourgeois, a Catholic priest of the Maryknoll order, had been tried and convicted of various misdemeanors committed during a protest action, also on the federal enclave of Fort Benning. Petitioners claimed that recusal was required in the present case because the judge had displayed "impatience, disregard for the defense and animosity" toward Bourgeois, Bourgeois' codefendants, and their beliefs. The alleged evidence of that included the following words and acts by the judge: stating at the outset of the trial that its purpose was to try a criminal case and not to provide a political forum; observing after Bourgeois' opening statement (which described the purpose of his protest) that the statement ought to have been directed toward the anticipated evidentiary showing; limiting defense counsel's cross-examination; questioning witnesses; periodically cautioning defense counsel to confine his questions to issues material to trial; similarly admonishing witnesses to keep answers responsive to actual questions directed to material issues; admonishing Bourgeois that closing argument was not a time for "making a speech" in a "political forum"; and giving Bourgeois what petitioners considered to be an excessive sentence. The final asserted ground for disqualification and the one that counsel for petitioners described at oral argument as the most seriouswas the judge's interruption of the closing argument of one of Bourgeois' codefendants, *543 instructing him to cease the introduction of new facts, and to restrict himself to discussion of evidence already presented. The District Judge denied petitioners' disqualification motion, stating that matters arising from judicial proceedings were not a proper basis for recusal. At the outset of the trial, Bourgeois' counsel informed the judge that he intended to focus his defense on the political motivation |
Justice Scalia | 1,994 | 9 | majority | Liteky v. United States | https://www.courtlistener.com/opinion/112935/liteky-v-united-states/ | he intended to focus his defense on the political motivation for petitioners' actions, which was to protest United States Government involvement in El Salvador. The judge said that he would allow petitioners to state their political purposes in opening argument and to testify about them as well, but that he would not allow long speeches or discussions concerning Government policy. When, in the course of opening argument, Bourgeois' counsel began to explain the circumstances surrounding certain events in El Salvador, the prosecutor objected, and the judge stated that he would not allow discussion about events in El Salvador. He then instructed defense counsel to limit his remarks to what he expected the evidence to show. At the close of the prosecution's case, Bourgeois renewed his disqualification motion, adding as grounds for it the District Judge's "admonishing [him] in front of the jury" regarding the opening statement, and the District Judge's unspecified "admonishing [of] others," in particular Bourgeois' two pro se codefendants. The motion was again denied. Petitioners were convicted of the offense charged. Petitioners appealed, claiming that the District Judge violated 28 U.S. C. 455(a) in refusing to recuse himself. The Eleventh Circuit affirmed the convictions, agreeing with the District Court that "matters arising out of the course of judicial proceedings are not a proper basis for recusal." We granted certiorari. II Required judicial recusal for bias did not exist in England at the time of Blackstone. 3 W. Blackstone, Commentaries *544 *361. Since 1792, federal statutes have compelled district judges to recuse themselves when they have an interest in the suit, or have been counsel to a party. See Act of May 8, 1792, ch. 36, 11,. In 1821, the basis of recusal was expanded to include all judicial relationship or connection with a party that would in the judge's opinion make it improper to sit. Act of Mar. 3, 1821, ch. 51, Not until 1911, however, was a provision enacted requiring district-judge recusal for bias in general. In its current form, codified U.S. C. 144, that provision reads as follows: "Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. "The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the |
Justice Scalia | 1,994 | 9 | majority | Liteky v. United States | https://www.courtlistener.com/opinion/112935/liteky-v-united-states/ | shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith." Under 144 and its predecessor, there came to be generally applied in the courts of appeals a doctrine, more standard in its formulation than clear in its application, requiring to take its classic formulation found in an oft-cited opinion by Justice Douglas for this Courtthat "[t]he alleged bias and prejudice to be disqualifying [under 144] must stem from an extrajudicial source." United We say that the doctrine was less than entirely clear in its application for *545 several reasons. First, Grinnell (the only opinion of ours to recite the doctrine) clearly meant by "extrajudicial source" a source outside the judicial proceeding at handwhich would include as extrajudicial sources earlier judicial proceedings conducted by the same judge (as are at issue here).[1] Yet many, perhaps most, Courts of Appeals considered knowledge (and the resulting attitudes) that a judge properly acquired in an earlier proceeding not to be "extrajudicial." See, e. g., (CA9), cert. denied, ; Secondly, the doctrine was often quoted as justifying the refusal to consider trial rulings as the basis for 144 recusal. See, e. g., ; Liberty Lobby, (CADC), cert. denied, But trial rulings have a judicial expression rather than a judicial source. They may well be based upon extrajudicial knowledge or motives. Cf. In re International Business Machines And finally, even in cases in which the "source" of the bias or prejudice was clearly the proceedings themselves (for example, testimony introduced or an event occurring at trial which produced unsuppressible judicial animosity), the supposed doctrine would not necessarily be applied. See, e. g., cert. denied, ; *546 Whatever the precise contours of the "extrajudicial source" doctrine (a subject to which we will revert shortly), it is the contention of petitioners that the doctrine has no application to 455(a). Most Courts of Appeals to consider the matter have rejected this contention, see United ; United ; ; United ; United cert. denied, ; cert. denied, ; United Some, however, have agreed with it, see United ; cf. United cert. denied, To understand the arguments pro and con it is necessary to appreciate the major changes in prior law effected by the revision of 455 in 1974. Before 1974, 455 was nothing more |
Justice Scalia | 1,994 | 9 | majority | Liteky v. United States | https://www.courtlistener.com/opinion/112935/liteky-v-united-states/ | of 455 in 1974. Before 1974, 455 was nothing more than the then-current version of the 1821 prohibition against a judge's presiding who has an interest in the case or a relationship to a party. It read, quite simply: "Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein." 28 U.S. C. 455 (1970 ed.). The 1974 revision made massive changes, so that 455 now reads as follows: *547 "(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. "(b) He shall also disqualify himself in the following circumstances: "(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; "(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; "(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; "(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; "(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: "(i) Is a party to the proceeding, or an officer, director, or trustee of a party; "(ii) Is acting as a lawyer in the proceeding; "(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; "(iv) Is to the judge's knowledge likely to be a material witness in the proceeding." *548 Almost all of the revision (paragraphs (b)(2) through (b)(5)) merely rendered objective and spelled out in detail the "interest" and "relationship" grounds of recusal that had previously been covered by |
Justice Scalia | 1,994 | 9 | majority | Liteky v. United States | https://www.courtlistener.com/opinion/112935/liteky-v-united-states/ | "relationship" grounds of recusal that had previously been covered by 455. But the other two paragraphs of the revision brought into 455 elements of general "bias and prejudice" recusal that had previously been addressed only by 144. Specifically, paragraph (b)(1) entirely duplicated the grounds of recusal set forth in 144 ("bias or prejudice"), but (1) made them applicable to all justices, judges, and magistrates (and not just district judges), and (2) placed the obligation to identify the existence of those grounds upon the judge himself, rather than requiring recusal only in response to a party affidavit. Subsection (a), the provision at issue here, was an entirely new "catchall" recusal provision, covering both "interest or relationship" and "bias or prejudice" grounds, see but requiring them all to be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal was required whenever "impartiality might reasonably be questioned." What effect these changes had upon the "extrajudicial source" doctrinewhether they in effect render it obsolete, of continuing relevance only to 144, which seems to be properly invocable only when 455(a) can be invoked anyway depends upon what the basis for that doctrine was. Petitioners suggest that it consisted of the limitation of 144 to "personal bias or prejudice," bias or prejudice officially acquired being different from "personal" bias or prejudice. And, petitioners point out, while 455(b)(1) retains the phrase "personal bias or prejudice," 455(a) proscribes all partiality, not merely the "personal" sort. It is true that a number of Courts of Appeals have relied upon the word "personal" in restricting 144 to extrajudicial sources, see, e. g., *549 ; And several cases have cited the absence of that word as a reason for excluding that restriction from 455(a), see United cert. denied, ; and n. 6 (CA1), cert. denied, It seems to us, however, that that mistakes the basis for the "extrajudicial source" doctrine. Petitioners' suggestion that we relied upon the word "personal" in our Grinnell opinion is simply in error. The only reason Grinnell gave for its "extrajudicial source" holding was citation of our opinion almost half a century earlier in But that case, and the case which it in turn cited, Ex parte American Steel Barrel Co., relied not upon the word "personal" in 144, but upon its provision requiring the recusal affidavit to be filed 10 days before the beginning of the court term. That requirement was the reason we found it obvious in Berger that the affidavit "must be based upon facts antedating |
Justice Scalia | 1,994 | 9 | majority | Liteky v. United States | https://www.courtlistener.com/opinion/112935/liteky-v-united-states/ | Berger that the affidavit "must be based upon facts antedating the trial, not those occurring during the trial," ; and the reason we said in American Steel Barrel that the recusal statute "was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, but to prevent his future action in the pending cause," In our view, the proper (though unexpressed) rationale for Grinnell, and the basis of the modern "extrajudicial source" doctrine, is not the statutory term "personal"for several reasons. First and foremost, that explanation is simply not the semantic success it pretends to be. Bias and prejudice seem to us not divided into the "personal" kind, which is offensive, and the official kind, which is perfectly all right. As generally used, these are pejorative terms, describing dispositions that are never appropriate. It is common to speak of "personal bias" or "personal prejudice" without meaning the adjective to do anything except emphasize the *550 idiosyncratic nature of bias and prejudice, and certainly without implying that there is some other "nonpersonal," benign category of those mental states. In a similar vein, one speaks of an individual's "personal preference," without implying that he could also have a "nonpersonal preference." Secondly, interpreting the term "personal" to create a complete dichotomy between court-acquired and extrinsically acquired bias produces results so intolerable as to be absurd. Imagine, for example, a lengthy trial in which the presiding judge for the first time learns of an obscure religious sect, and acquires a passionate hatred for all its adherents. This would be "official" rather than "personal" bias, and would provide no basis for the judge's recusing himself. It seems to us that the origin of the "extrajudicial source" doctrine, and the key to understanding its flexible scope (or the so-called "exceptions" to it), is simply the pejorative connotation of the words "bias or prejudice." Not all unfavorable disposition towards an individual (or his case) is properly described by those terms. One would not say, for example, that world opinion is biased or prejudiced against Adolf Hitler. The words connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant's prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant's prior criminal activities that he will vote |
Justice Scalia | 1,994 | 9 | majority | Liteky v. United States | https://www.courtlistener.com/opinion/112935/liteky-v-united-states/ | of a defendant's prior criminal activities that he will vote guilty regardless of the facts). The "extrajudicial source" doctrine is one application of this pejorativeness requirement to the terms "bias" and "prejudice" as they are used in 144 and 455(b)(1) with specific reference to the work of judges. The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, *551 who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task. As Judge Jerome Frank pithily put it: "Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions." In re J. P. Linahan, Inc., Also not subject to deprecatory characterization as "bias" or "prejudice" are opinions held by judges as a result of what they learned in earlier proceedings. It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant. It is wrong in theory, though it may not be too far off the mark as a practical matter, to suggest, as many opinions have, that "extrajudicial source" is the only basis for establishing disqualifying bias or prejudice. It is the only common basis, but not the exclusive one, since it is not the exclusive reason a predisposition can be wrongful or inappropriate. A favorable or unfavorable predisposition can also deserve to be characterized as "bias" or "prejudice" because, even though it springs from the facts adduced or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment. cert. denied,) With this understanding of the "extrajudicial source" limitation in 144 and 455(b)(1), we turn to the question whether it appears in 455(a) as well. Petitioners' argument for the negative based upon the mere absence of the *552 word "personal" is, for the reasons described above, not persuasive. Petitioners also rely upon the categorical nature of 455's language: Recusal is required whenever there exists a genuine question concerning a judge's impartiality, and not merely when the question arises from an extrajudicial source. A similar "plain-language" argument could be made, however, with regard to 144 and 455(b)(1): They apply |
Justice Scalia | 1,994 | 9 | majority | Liteky v. United States | https://www.courtlistener.com/opinion/112935/liteky-v-united-states/ | made, however, with regard to 144 and 455(b)(1): They apply whenever bias or prejudice exists, and not merely when it derives from an extrajudicial source. As we have described, the latter argument is invalid because the pejorative connotation of the terms "bias" and "prejudice" demands that they be applied only to judicial predispositions that go beyond what is normal and acceptable. We think there is an equivalent pejorative connotation, with equivalent consequences, to the term "partiality." See American Heritage Dictionary 1319 ("partiality" defined as "[f]avorable prejudice or bias"). A prospective juror in an insurance-claim case may be stricken as partial if he always votes for insurance companies; but not if he always votes for the party whom the terms of the contract support. "Partiality" does not refer to all favoritism, but only to such as is, for some reason, wrongful or inappropriate. Impartiality is not gullibility. Moreover, even if the pejorative connotation of "partiality" were not enough to import the "extrajudicial source" doctrine into 455(a), the "reasonableness" limitation (recusal is required only if the judge's impartiality "might reasonably be questioned") would have the same effect. To demand the sort of "child-like innocence" that elimination of the "extrajudicial source" limitation would require is not reasonable. Declining to find in the language of 455(a) a limitation which (petitioners acknowledge) is contained in the language of 455(b)(1) would cause the statute, in a significant sense, to contradict itself. As we have described, 455(a) expands the protection of 455(b), but duplicates some of its protection as wellnot only with regard to bias and prejudice but also with regard to interest and relationship. Within the *553 area of overlap, it is unreasonable to interpret 455(a) (unless the language requires it) as implicitly eliminating a limitation explicitly set forth in 455(b). It would obviously be wrong, for example, to hold that "impartiality could reasonably be questioned" simply because one of the parties is in the fourth degree of relationship to the judge. Section 455(b)(5), which addresses the matter of relationship specifically, ends the disability at the third degree of relationship, and that should obviously govern for purposes of 455(a) as well. Similarly, 455(b)(1), which addresses the matter of personal bias and prejudice specifically, contains the "extrajudicial source" limitationand that limitation (since nothing in the text contradicts it) should govern for purposes of 455(a) as well.[2] *554 Petitioners suggest that applying the "extrajudicial source" limitation to 455(a) will cause disqualification of a trial judge to be more easily obtainable upon remand of a case by an appellate court than upon direct motion. We do not see why |
Justice Scalia | 1,994 | 9 | majority | Liteky v. United States | https://www.courtlistener.com/opinion/112935/liteky-v-united-states/ | court than upon direct motion. We do not see why that necessarily follows; and if it does, why it is necessarily bad. Federal appellate courts' ability to assign a case to a different judge on remand rests not on the recusal statutes alone, but on the appellate courts' statutory power to "require such further proceedings to be had as may be just under the circumstances," 28 U.S. C. 2106. That may permit a different standard, and there may be pragmatic reasons for a different standard. We do not say sobut merely say that the standards applied on remand are irrelevant to the question before us here. For all these reasons, we think that the "extrajudicial source" doctrine, as we have described it, applies to 455(a). As we have described it, however, there is not much doctrine to the doctrine. The fact that an opinion held by a judge derives from a source outside judicial proceedings is not a necessary condition for "bias or prejudice" recusal, since predispositions developed during the course of a trial will sometimes (albeit rarely) suffice. Nor is it a sufficient condition for "bias or prejudice" recusal, since some opinions acquired outside the context of judicial proceedings (for example, the judge's view of the law acquired in scholarly reading) will not suffice. Since neither the presence of an extrajudicial source necessarily establishes bias, nor the absence of an extrajudicial source necessarily precludes bias, it would be *555 better to speak of the existence of a significant (and often determinative) "extrajudicial source" factor, than of an "extrajudicial source" doctrine, in recusal jurisprudence. The facts of the present case do not require us to describe the consequences of that factor in complete detail. It is enough for present purposes to say the following: First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. See United 384 U. S., at In and of themselves (i. e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course |
Justice Scalia | 1,994 | 9 | majority | Liteky v. United States | https://www.courtlistener.com/opinion/112935/liteky-v-united-states/ | make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. An example of the latter (and perhaps of the former as well) is the statement that was alleged to have been made by the District Judge in a World War I espionage case against German-American defendants: "One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans" because their "hearts are reeking with disloyalty." Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, *556 and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administrationeven a stern and short-tempered judge's ordinary efforts at courtroom administration remain immune. III Applying the principles we have discussed to the facts of the present case is not difficult. None of the grounds petitioners assert required disqualification. As we have described, petitioners' first recusal motion was based on rulings made, and statements uttered, by the District Judge during and after the 1983 trial; and petitioner Bourgeois' second recusal motion was founded on the judge's admonishment of Bourgeois' counsel and codefendants. In their briefs here, petitioners have referred to additional manifestations of alleged bias in the District Judge's conduct of the trial below, including the questions he put to certain witnesses, his alleged "anti-defendant tone," his cutting off of testimony said to be relevant to defendants' state of mind, and his post-trial refusal to allow petitioners to appeal in forma pauperis.[3] All of these grounds are inadequate under the principles we have described above: They consist of judicial rulings, routine trial administration efforts, and ordinary admonishments (whether or not legally supportable) to counsel and to witnesses. All occurred in the course of judicial proceedings, and neither (1) relied upon knowledge acquired outside such proceedings nor (2) displayed deep-seated and unequivocal antagonism that would render fair judgment impossible. The judgment of the Court of Appeals is Affirmed. *557 JUSTICE KENNEDY, with whom JUSTICE BLACKMUN, JUSTICE STEVENS, and JUSTICE SOUTER join, concurring in the judgment. |
Justice Marshall | 1,988 | 15 | majority | Westfall v. Erwin | https://www.courtlistener.com/opinion/111980/westfall-v-erwin/ | Respondent William Erwin and his wife respondent Emely Erwin brought a state-law tort suit against petitioners, federal employees in the Executive Branch, alleging that he had suffered injuries as a result of petitioners' negligence in performing official acts. The issue presented is whether these federal officials are absolutely immune from liability under state tort law for conduct within the scope of their employment without regard to whether the challenged conduct was discretionary in nature. I Respondents William and Emely Erwin commenced this tort action in state court. At the time of the alleged tort, William Erwin was employed by the Federal Government as a civilian warehouseman at the Anniston Army Depot in Anniston, Alabama. Petitioners were supervisors at the Depot.[1] Respondents' complaint alleged that while working at the Depot William Erwin came into contact with bags of *294 toxic soda ash that "were improperly and negligently stored." 1 Record, Complaint ¶ 3. The complaint stated that William Erwin suffered chemical burns to his eyes and throat when he inhaled soda ash dust that had spilled from its bag. William Erwin also asserted that the soda ash "should not have been routed to the warehouse where [he] was working," and that "someone should have known that it was there and provided [him] with some warning as to its presence and danger before [he] inhaled it." 1 Record, Doc. No. 4, p. 1. The complaint charged petitioners with negligence "in proximately causing, permitting, or allowing [him] to inhale the. soda ash." 1 Record, Complaint ¶ 6. Petitioners removed the action to the United States District Court for the Northern District of Alabama pursuant to 28 U.S. C. 1442(a)(1). The District Court held that petitioners were absolutely immune from suit and granted summary judgment in their favor. After finding that the alleged tort was committed while petitioners were acting within the scope of their employment, the court held that "any federal employee is entitled to absolute immunity for ordinary torts committed within the scope of their jobs." Civ. Action No. CV85-H-874-S, p. 2 The Court of Appeals reversed, reasoning that a federal employee enjoys immunity " `only if the challenged conduct is a discretionary act and is within the outer perimeter of the actor's line of duty.' " The court held that the District Court erred in failing to consider whether the challenged conduct was discretionary, in addition to being within the scope of petitioners' duties, before finding that petitioners were absolutely immune from suit. Summary judgment was inappropriate, the court concluded, because respondents had "alleged undisputed facts sufficient to create a material |
Justice Marshall | 1,988 | 15 | majority | Westfall v. Erwin | https://www.courtlistener.com/opinion/111980/westfall-v-erwin/ | respondents had "alleged undisputed facts sufficient to create a material question of whether or not [petitioners'] complained-of acts were discretionary." *295 We granted certiorari, to resolve the dispute among the Courts of Appeals as to whether conduct by federal officials must be discretionary in nature, as well as being within the scope of their employment, before the conduct is absolutely immune from state-law tort liability.[2] We affirm. II In and this Court held that the scope of absolute official immunity afforded federal employees is a matter of federal law, "to be formulated by the courts in the absence of legislative action by Congress." The purpose of such official immunity is not to protect an erring official, but to insulate the decisionmaking process from the harassment of prospective litigation. The provision of immunity rests on the view that the threat of liability will make federal officials unduly timid in carrying out their official duties, and that effective government will be promoted if officials are freed of the costs of vexatious and often frivolous damages suits. See ; This Court always has recognized, however, that official immunity comes at a great cost. An injured party with an otherwise meritorious tort claim is denied compensation simply because he had the misfortune to be injured by a federal official. Moreover, absolute immunity contravenes the basic tenet that individuals be held accountable for their wrongful conduct. We therefore have held that absolute immunity for federal officials is justified only when "the contributions of immunity to effective *296 government in particular contexts outweigh the perhaps recurring harm to individual citizens."[3] Petitioners initially ask that we endorse the approach followed by the Fourth and Eighth Circuits, see General Electric ; and by the District Court in the present action, that all federal employees are absolutely immune from suits for damages under state tort law "whenever their conduct falls within the scope of their official duties." Brief for Petitioners 12. Petitioners argue that such a rule would have the benefit of eliminating uncertainty as to the scope of absolute immunity for state-law tort actions, and would most effectively ensure that federal officials act free of inhibition. Neither the purposes of the doctrine of official immunity nor our cases support such a broad view of the scope of absolute immunity, however, and we refuse to adopt this position. The central purpose of official immunity, promoting effective government, would not be furthered by shielding an official from state-law tort liability without regard to whether the alleged tortious conduct is discretionary in nature. When an official's conduct is not the product |
Justice Marshall | 1,988 | 15 | majority | Westfall v. Erwin | https://www.courtlistener.com/opinion/111980/westfall-v-erwin/ | in nature. When an official's conduct is not the product of independent judgment, the threat of liability cannot detrimentally inhibit *297 that conduct. It is only when officials exercise decisionmaking discretion that potential liability may shackle "the fearless, vigorous, and effective administration of policies of government." Because it would not further effective governance, absolute immunity for nondiscretionary functions finds no support in the traditional justification for official immunity. Moreover, in we explicitly rejected the suggestion that official immunity attaches solely because conduct is within the outer perimeter of an official's duties. Doe involved a damages action for both constitutional violations and common-law torts against the Public Printer and the Superintendent of Documents arising out of the public distribution of a congressional committee's report. After recognizing that the distribution of documents was " `within the outer perimeter' of the statutory duties of the Public Printer and the Superintendent of Documents," the Court stated: "[I]f official immunity automatically attaches to any conduct expressly or impliedly authorized by law, the Court of Appeals correctly dismissed the complaint against these officials. This, however, is not the governing rule." The Court went on to evaluate the level of discretion exercised by these officials, finding that they "exercise discretion only with respect to estimating the demand for particular documents and adjusting the supply accordingly." The Court rejected the claim that these officials enjoyed absolute immunity for all their official acts, and held instead that the officials were immune from suit only to the extent that the Government officials ordering the printing would be immune for the same conduct. See -324. The key importance of Doe lies in its analysis of discretion as a critical factor in evaluating the legitimacy of official immunity. As Doe's analysis makes clear, absolute immunity from state-law tort actions should be available only when the conduct of federal officials is within the scope *298 of their official duties and the conduct is discretionary in nature.[4] As an alternative position, petitioners contend that even if discretion is required before absolute immunity attaches, the requirement is satisfied as long as the official exercises "minimal discretion." Brief for Petitioners 15. If the precise conduct is not mandated by law, petitioners argue, then the act is "discretionary" and the official is entitled to absolute immunity from state-law tort liability. We reject such a wooden interpretation of the discretionary function requirement. Because virtually all official acts involve some modicum of choice, petitioners' reading of the requirement would render it essentially meaningless. Furthermore, by focusing entirely on the question whether a federal official's precise conduct is controlled by |
Justice Marshall | 1,988 | 15 | majority | Westfall v. Erwin | https://www.courtlistener.com/opinion/111980/westfall-v-erwin/ | question whether a federal official's precise conduct is controlled by law or regulation, petitioners' approach ignores the balance of potential benefits and costs of absolute immunity under the circumstances and thus loses sight of the underlying purpose of official immunity doctrine. See 412 U. S., Conduct by federal officials will often involve the exercise of a modicum of choice and yet be largely unaffected by the prospect of tort liability, making the provision of absolute immunity unnecessary and unwise. *299 In the present case, the Court of Appeals, reviewing a summary judgment determination, held that petitioners were not entitled to official immunity solely because they were acting within the scope of their official duties, and that there was a material question whether the challenged conduct was discretionary. Applying the foregoing reasoning to this case, it is clear that the court was correct in reversing the District Court's grant of summary judgment. Petitioners have the burden of proving that they are entitled to absolute immunity from the tort suit. Respondent William Erwin asserted that petitioners' "duties only require them to follow established procedures and guidelines," and that they "are not involved in any policy-making work for the United States Government." 1 Record, Doc. No. 4, p. 2. In response, petitioners have not presented any evidence relating to their official duties or to the level of discretion they exercise. Petitioners aver merely that the alleged tortious conduct was "within the scope of their official duties." 1 Record, Exh. A, p. 2. As we stated above, federal officials are not absolutely immune from state-law tort liability for all actions committed within the outer perimeter of their duties. A material issue of fact thus exists as to whether petitioners exercised sufficient discretion in connection with the alleged tort to warrant the shield of absolute immunity. Because this case comes to us on summary judgment and the relevant factual background is undeveloped, we are not called on to define the precise boundaries of official immunity or to determine the level of discretion required before immunity may attach. In deciding whether particular governmental functions properly fall within the scope of absolute official immunity, however, courts should be careful to heed the Court's admonition in Doe to consider whether the contribution to effective government in particular contexts outweighs the potential harm to individual citizens. Courts must not lose sight of the purposes of the official immunity *300 doctrine when resolving individual claims of immunity or formulating general guidelines. We are also of the view, however, that Congress is in the best position to provide guidance for the |
Justice Rehnquist | 1,979 | 19 | majority | Leo Sheep Co. v. United States | https://www.courtlistener.com/opinion/110046/leo-sheep-co-v-united-states/ | This is one of those rare cases evoking episodes in this country's history that, if not forgotten, are remembered as dry facts and not as adventure. Admittedly the issue is mundane: Whether the Government has an implied easement to build a road across land that was originally granted to the Union Pacific Railroad under the Union Pacific Act of 1862a grant that was part of a governmental scheme to subsidize the construction of the transcontinental railroad. But that issue is posed against the backdrop of a fascinating chapter in our history. As this Court noted in another case involving the Union Pacific Railroad, "courts, in construing a statute, may with propriety recur to the history of the times when it was passed; and this is frequently necessary, in order to ascertain the reason as well as the meaning of particular provisions in it." United In this spirit we relate the events underlying passage of the Union Pacific Act of 1862. *670 I The early 19th centuryfrom the Louisiana Purchase in 1803 to the Gadsden Purchase in 1853saw the acquisition of the territory we now regard as the American West.[1] During those years, however, the area remained a largely untapped resource for the settlers on the eastern seaboard of the United States did not keep pace with the rapidly expanding western frontier. A vaguely delineated area forbiddingly referred to as the "Great American Desert" can be found on more than one map published before 1850, embracing much of the United States' territory west of the Missouri River. As late as 1860, for example, the entire population of the State of Nebraska was less than 30,000 persons, which represented one person for every five square miles of land area within the State. With the discovery of gold at Sutter's Mill in California in 1848, the California gold rush began and with it a sharp increase in settlement of the West. Those in the East with visions of instant wealth, however, confronted the unenviable choice among an arduous 4-month overland trek, risking yellow fever on a 35-day voyage via the Isthmus of Panama, and a better than 4-month voyage around Cape Horn. They obviously yearned for another alternative, and interest focused on the transcontinental railroad. The idea of a transcontinental railroad predated the California gold rush. From the time that Asa Whitney had proposed a relatively practical plan for its construction in 1844, it had, in the words of one of this century's leading historians of the era, "engaged the eager attention of promoters and politicians *671 until dozens of schemes were in |
Justice Rehnquist | 1,979 | 19 | majority | Leo Sheep Co. v. United States | https://www.courtlistener.com/opinion/110046/leo-sheep-co-v-united-states/ | promoters and politicians *671 until dozens of schemes were in the air."[2] The building of the railroad was not to be the unalloyed product of the free-enterprise system. There was indeed the inspiration of men like Thomas Durant and Leland Stanford and the perspiration of a generation of immigrants, but animating it all was the desire of the Federal Government that the West be settled. This desire was intensified by the need to provide a logistical link with California in the heat of the Civil War. That the venture was much too risky and much too expensive for private capital alone was evident in the years of fruitless exhortation; private investors would not move without tangible governmental inducement.[3] In the mid-19th century there was serious disagreement as *672 to the forms that inducement could take. Mr. Justice Story, in his Commentaries on the Constitution, described one extant school of thought which argued that "internal improvements," such as railroads, were not within the enumerated constitutional powers of Congress.[4] Under such a theory, the direct subsidy of a transcontinental railroad was constitutionally suspectan uneasiness aggravated by President Andrew Jackson's 1830 veto of a bill appropriating funds to construct a road from Maysville to Lexington within the State of Kentucky.[5] The response to this constitutional "gray" area, and source of political controversy, was the "checkerboard" land-grant scheme. The Union Pacific Act of 1862 granted public land to the Union Pacific Railroad for each mile of track that it laid.[6] Land surrounding the railway right-of-way was divided into "checkerboard" blocks. Odd-numbered lots were granted to the Union Pacific; even-numbered lots were reserved by the Government. As a result, Union Pacific land in the area of the right-of-way was usually surrounded by public land, and vice versa. The historical explanation for this peculiar disposition is that it was apparently an attempt to disarm the "internal improvement" opponents by establishing a grant scheme with "demonstrable" benefits. As one historian notes in describing an 1827 federal land grant intended to facilitate private construction of a road between Columbus and Sandusky, Ohio: "Though awkwardly stated, and not fully developed in the Act of 1827, this was the beginning of a practice to be followed in most future instances of granting land for the *673 construction of specific internal improvements: donating alternate sections or one half of the land within a strip along the line of the project and reserving the other half for sale. In later donations the price of the reserved sections was doubled so that it could be argued, as the Congressional Globe shows ad infinitum, |
Justice Rehnquist | 1,979 | 19 | majority | Leo Sheep Co. v. United States | https://www.courtlistener.com/opinion/110046/leo-sheep-co-v-united-states/ | could be argued, as the Congressional Globe shows ad infinitum, that by giving half the land away and thereby making possible construction of the road, canal, or railroad, the government would recover from the reserved sections as much as it would have received from the whole." P. Gates, History of Public Land Law Development 345-346 (1968).[7] In 1850 this technique was first explicitly employed for the subsidization of a railroad when the Illinois delegation in Congress, which included Stephen A. Douglas, secured the enactment of a bill that granted public lands to aid the construction of the Illinois Central Railroad.[8] The Illinois Central and proposed connecting lines to the south were granted nearly three million acres along rights of way through Illinois, Mississippi, and Alabama, and by the end of 1854 the main line of the Illinois Central from Chicago to Cairo, Ill., had been put into operation. Before this line was constructed, public lands had gone begging at the Government's minimum price; within a few years after its completion, the railroad had disposed of more than one million acres and was rapidly *674 selling more at prices far above those at which land had been originally offered by the Government. The "internal improvements" theory was not the only obstacle to a transcontinental railroad. In 1853 Congress had appropriated moneys and authorized Secretary of War Jefferson Davis to undertake surveys of various proposed routes for a transcontinental railroad. Congress was badly split along sectional lines on the appropriate location of the routeso badly split that Stephen A. Douglas, now a Senator from Illinois, in 1854 suggested the construction of a northern, central, and southern route, each with connecting branches in the East.[9] That proposal, however, did not break the impasse. The necessary impetus was provided by the Civil War. Senators and Representatives from those States which seceded from the Union were no longer present in Congress, and therefore the sectional overtones of the dispute as to routes largely disappeared. Although there were no major engagements during the Civil War in the area between the Missouri River and the west coast which would be covered by any transcontinental railroad, there were two minor engagements which doubtless made some impression upon Congress of the necessity for being able to transport readily men and materials into that area for military purposes. Accounts of the major engagements of the Civil War do not generally include the Battle of Picacho Pass, because in the words of Edwin Corle, author of The Gila, "[i]t could be called nothing more than a minor skirmish today."[10] It was |
Justice Rehnquist | 1,979 | 19 | majority | Leo Sheep Co. v. United States | https://www.courtlistener.com/opinion/110046/leo-sheep-co-v-united-states/ | called nothing more than a minor skirmish today."[10] It was *675 fought 42 miles northwest of Tucson, Ariz., on April 15, 1862, between a small contingent of Confederate cavalry commanded by Captain Sherod Hunter and Union troops under Colonel James H. Carleton consisting of infantry, cavalry, and artillery components known as the "California Volunteers." The battle was a draw, with the Union forces losing three men and the badly outnumbered Confederates apparently suffering two men killed and two captured. Following the battle, the Confederate forces abandoned Tucson, which they had previously occupied, and Carleton's Union forces entered that city on May 20, 1862. The Battle of Glorieta Pass has similarly endured anonymity. Also described as La Glorieta Pass or Apache Canyon, Glorieta Pass lies in the upper valley of the Pecos River, in the southern foothills of the Sangre de Cristo range of the Rocky Mountains near Santa Fe, N. M. Here in the early spring of 1862 a regiment of Colorado volunteers, having moved by forced marches from Denver to Ft. Union, turned back Confederate forces led by Brigadier General Henry Sibley which, until this encounter, had marched triumphantly northward up the Rio Grande Valley from Ft. Bliss. As a result of the Battle of Glorieta Pass, New Mexico was saved for the Union, and Sibley's forces fell back in an easterly direction through Texas before the advance of Carleton's column of Californians.[11] These engagements gave some immediacy to the comments of Congressman Edwards of New Hampshire during the debate on the Pacific Railroad bill: "If this Union is to be preserved, if we are successfully to combat the difficulties around us, if we are to crush out *676 this rebellion against the lawful authority of the Government, and are to have an entire restoration, it becomes us, with statesmanlike prudence and sagacity, to look carefully into the future, and to guard in advance against all possible considerations which may threaten the dismemberment of the country hereafter." Cong. Globe, 37th Cong., 2d Sess., 1703 (1862). As is often the case, war spurs technological development, and Congress enacted the Union Pacific Act in May 1862. Perhaps not coincidentally, the Homestead Act was passed the same month. The Union Pacific Act specified a route west from the 100th meridian, between a site in the Platte River Valley near the cities of Kearney and North Platte, Neb., to California. The original plan was for five eastern terminals located at various points on or near the Missouri River; but in fact Omaha was the only terminal built according to the plan.[12] The land |
Justice Rehnquist | 1,979 | 19 | majority | Leo Sheep Co. v. United States | https://www.courtlistener.com/opinion/110046/leo-sheep-co-v-united-states/ | the only terminal built according to the plan.[12] The land grants made by the Union Pacific Act included all *677 the odd-numbered lots within 10 miles on either side of the track. When the Union Pacific's original subscription drive for private investment proved a failure, the land grant was doubled by extending the checkerboard grants to 20 miles on either side of the track. Private investment was still sluggish, and construction did not begin until July 1865, three months after the cessation of Civil War hostilities.[13] Thus began a race with the Central Pacific Railroad, which was laying track eastward from Sacramento, for the Government land grants which went with each mile of track laid. The race culminated in the driving of the golden spike at Promontory, Utah, on May 10, 1869. II This case is the modern legacy of these early grants. Petitioners, the Leo Sheep Co. and the Palm Livestock Co., are the Union Pacific Railroad's successors in fee to specific odd-numbered *678 sections of land in Carbon County, Wyo. These sections lie to the east and south of the Seminoe Reservoir, an area that is used by the public for fishing and hunting. Because of the checkerboard configuration, it is physically impossible to enter the Seminoe Reservoir sector from this direction without some minimum physical intrusion upon private land. In the years immediately preceding this litigation, the Government had received complaints that private owners were denying access over their lands to the reservoir area or requiring the payment of access fees. After negotiation with these owners failed, the Government cleared a dirt road extending from a local county road to the reservoir across both public domain lands and fee lands of the Leo Sheep Co. It also erected signs inviting the public to use the road as a route to the reservoir. Petitioners initiated this action pursuant to 28 U.S. C. 2409a to quiet title against the United States. The District Court granted petitioners' motion for summary judgment, but was reversed on appeal by the Court of Appeals for the Tenth Circuit. The latter court concluded that when Congress granted land to the Union Pacific Railroad, it implicitly reserved an easement to pass over the odd-numbered sections in order to reach the even-numbered sections that were held by the Government. Because this holding affects property rights in 150 million acres of land in the Western United States, we granted certiorari, and now reverse. The Government does not claim that there is any express reservation of an easement in the Union Pacific Act that would authorize the construction |
Justice Rehnquist | 1,979 | 19 | majority | Leo Sheep Co. v. United States | https://www.courtlistener.com/opinion/110046/leo-sheep-co-v-united-states/ | in the Union Pacific Act that would authorize the construction of a public road on the Leo Sheep Co.'s property. Section 3 of the 1862 Act sets out a few specific reservations to the "checkerboard" grant. The grant was not to include land "sold, reserved, or otherwise disposed of by the United States," such as land to which there were homestead claims. Mineral lands were also excepted from the operation of the Act. *6 Given the existence of such explicit exceptions, this Court has in the past refused to add to this list by divining some "implicit" congressional intent. In Missouri, K. & T. R. for example, this Court in an opinion by Mr. Justice Field noted that the intent of Congress in making the Union Pacific grants was clear: "It was to aid in the construction of the road by a gift of lands along its route, without reservation of rights, except such as were specifically mentioned" The Court held that although a railroad right-of-way under the grant may not have been located until years after 1862, by the clear terms of the Act only claims established prior to 1862 overrode the railroad grant; conflicting claims arising after that time could not be given effect. To overcome the lack of support in the Act itself, the Government here argues that the implicit reservation of the asserted easement is established by "settled rules of property law" and by the Unlawful Inclosures of Public Lands Act of 1885. Where a private landowner conveys to another individual a portion of his lands in a certain area and retains the rest, it is presumed at common law that the grantor has reserved an easement to pass over the granted property if such passage is necessary to reach the retained property. These rights-of-way are referred to as "easements by necessity."[] There are two problems with the Government's reliance on that notion in this case. First of all, whatever right of passage a private landowner might have, it is not at all clear that it would include the right to construct a road for public access to a recreational area.[15] More importantly, the easement is not *680 actually a matter of necessity in this case because the Government has the power of eminent domain. Jurisdictions have generally seen eminent domain and easements by necessity as alternative ways to effect the same result. For example, the State of Wyoming no longer recognizes the common-law easement by necessity in cases involving landlocked estates. It provides instead for a procedure whereby the landlocked owner can have an access |
Justice Rehnquist | 1,979 | 19 | majority | Leo Sheep Co. v. United States | https://www.courtlistener.com/opinion/110046/leo-sheep-co-v-united-states/ | a procedure whereby the landlocked owner can have an access route condemned on his behalf upon payment of the necessary compensation to the owner of the servient estate.[16] For similar reasons other state courts have held that the "easement by necessity" doctrine is not available to the sovereign.[17] The applicability of the doctrine of easement by necessity in this case is, therefore, somewhat strained, and ultimately of *681 little significance. The pertinent inquiry in this case is the intent of Congress when it granted land to the Union Pacific in 1862. The 1862 Act specifically listed reservations to the grant, and we do not find the tenuous relevance of the common-law doctrine of ways of necessity sufficient to overcome the inference prompted by the omission of any reference to the reserved right asserted by the Government in this case. It is possible that Congress gave the problem of access little thought; but it is at least as likely that the thought which was given focused on negotiation, reciprocity considerations, and the power of eminent domain as obvious devices for ameliorating disputes.[18] So both as a matter of common-law *682 doctrine and as a matter of construing congressional intent, we are unwilling to imply rights-of-way, with the substantial impact that such implication would have on property rights granted over 100 years ago, in the absence of a stronger case for their implication than the Government makes here. The Government would have us decide this case on the basis of the familiar canon of construction that, when grants to federal lands are at issue, any doubts "are resolved for the Government, not against it." But this Court long ago declined to apply this canon in its full vigor to grants under the railroad Acts. In 1885 this Court observed: "The solution of [ownership] questions [involving the railroad grants] depends, of course, upon the construction given to the acts making the grants; and they are to receive such a construction as will carry out the intent of Congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent we must look to the condition of the country when the acts were passed, as well as to the purpose declared on their face, and read all parts of them together." Winona & St. Peter R. The Court harmonized the longstanding rule enunciated most recently in with the doctrine of Winona in United when it said: "It is undoubtedly, as urged by the plaintiffs in error, the well-settled rule |
Justice Rehnquist | 1,979 | 19 | majority | Leo Sheep Co. v. United States | https://www.courtlistener.com/opinion/110046/leo-sheep-co-v-united-states/ | as urged by the plaintiffs in error, the well-settled rule of this court that public grants are construed strictly against the grantees, but they are not to be so construed as to defeat the intent of the legislature, *683 or to withhold what is given either expressly or by necessary or fair implication. ". When an act, operating as a general law, and manifesting clearly the intention of Congress to secure public advantages, or to subserve the public interests and welfare by means of benefits more or less valuable, offers to individuals or to corporations as an inducement to undertake and accomplish great and expensive enterprises or works of a quasi public character in or through an immense and undeveloped public domain, such legislation stands upon a somewhat different footing from merely a private grant, and should receive at the hands of the court a more liberal construction in favor of the purposes for which it was enacted." Thus, invocation of the canon reiterated in does little to advance the Government's position in this case. Nor do we find the Unlawful Inclosures of Public Lands Act of 1885 of any significance in this controversy. That Act was a response to the "range wars," the legendary struggle between cattlemen and farmers during the last half of the 19th century. Cattlemen had entered Kansas, Nebraska, and the Dakota Territory before other settlers, and they grazed their herds freely on public lands with the Federal Government's acquiescence.[19] To maintain their dominion over the ranges, cattlemen used homestead and pre-emption laws to gain control of water sources in the range lands. With monopoly control of such sources, the cattlemen found that ownership over a relatively small area might yield effective control of thousands of acres of grassland. Another exclusionary technique was the illegal fencing of public lands, which was often the product of the checkerboard pattern of railroad grants. By placing fences near the borders of their parts of the *684 checkerboard, cattlemen could fence in thousands of acres of public lands. Reports of the Secretary of the Interior indicated that vast areas of public grazing land had been preempted by such fencing patterns.[20] In response Congress passed the Unlawful Inclosures Act of 1885.[21] Section 1 of the Unlawful Inclosures Act states that "[a]ll inclosures of any public lands constructed by any person. to any of which land included within the inclosure the person had no claim or color of title made or acquired in good faith are declared to be unlawful." 43 U.S. C. 1061. Section 3 further provides: "No person, by force, |
Justice Rehnquist | 1,979 | 19 | majority | Leo Sheep Co. v. United States | https://www.courtlistener.com/opinion/110046/leo-sheep-co-v-united-states/ | C. 1061. Section 3 further provides: "No person, by force, threats, intimidation, or by any fencing or inclosing, or any other unlawful means, shall prevent or obstruct, or shall combine and confederate with others to prevent or obstruct, any person from peaceably entering upon or establishing a settlement or residence on any tract of public land subject to settlement or entry under the public land laws of the United States, or shall prevent or obstruct free passage or transit over or through the public lands: Provided, This section shall not be held to affect the right or title of persons, who have gone upon, improved, or occupied said lands under the land laws of the United States, claiming title thereto, in good faith." 43 U.S. C. 1063. The Government argues that the prohibitions of this Act should somehow be read to include the Leo Sheep Co.'s refusal to acquiesce in a public road over its property, and that such a conclusion is supported by this Court's opinion in *685 We find, however, that Camfield does not afford the support that the Government seeks. That case involved a fence that was constructed on odd-numbered lots so as to enclose 20,000 acres of public land, thereby appropriating it to the exclusive use of Camfield and his associates. This Court analyzed the fence from the perspective of nuisance law, and concluded that the Unlawful Inclosures Act was an appropriate exercise of the police power. There is nothing, however, in the Camfield opinion to suggest that the Government has the authority asserted here. In fact, the Court affirmed the grantee's right to fence completely his own land. "So long as the individual proprietor confines his enclosure to his own land, the Government has no right to complain, since he is entitled to the complete and exclusive enjoyment of it, regardless of any detriment to his neighbor; but when, under the guise of enclosing his own land, he builds a fence which is useless for that purpose, and can only have been intended to enclose the lands of the Government, he is plainly within the statute, and is guilty of an unwarrantable appropriation of that which belongs to the public at large." Obviously, if odd-numbered lots are individually fenced, the access to even-numbered lots is obstructed. Yet the Camfield Court found that this was not a violation of the Unlawful Inclosures Act. In that light we cannot see how the Leo Sheep Co.'s unwillingness to entertain a public road without compensation can be a violation of that Act. It is certainly true that the problem |
Justice Rehnquist | 1,979 | 19 | majority | Leo Sheep Co. v. United States | https://www.courtlistener.com/opinion/110046/leo-sheep-co-v-united-states/ | of that Act. It is certainly true that the problem we confront today was not a matter of great concern during the time the 1862 railroad grants were made. The order of the day was the open rangebarbed wire had not made its presence feltand the type of incursions on *686 private property necessary to reach public land was not such an interference that litigation would serve any motive other than spite.[22] Congress obviously believed that when development came, it would occur in a parallel fashion on adjoining public and private lands and that the process of subdivision, organization of a polity, and the ordinary pressures of commercial and social intercourse would work itself into a pattern of access roads.[23] The Camfield case expresses similar sentiments. After the passage quoted above conceding the authority of a private landowner to fence the entire perimeter of his odd-numbered lot, the Court opined that such authority was of little practical significance "since a separate enclosure of each section would only become desirable when the country had been settled, and roads had been built which would give access to each section." It is some testament to common sense that the present case is virtually unprecedented, *687 and that in the 117 years since the grants were made, litigation over access questions generally has been rare. Nonetheless, the present times are litigious ones and the 37th Congress did not anticipate our plight. Generations of land patents have issued without any express reservation of the right now claimed by the Government. Nor has a similar right been asserted before.[24] When the Secretary of the Interior has discussed access rights, his discussion has been colored by the assumption that those rights had to be purchased.[25] This Court has traditionally recognized the special need for certainty and predictability where land titles are concerned, and we are unwilling to upset settled expectations to accommodate some ill-defined power to construct public *688 thoroughfares without compensation.[26] The judgment of the Court of Appeals for the Tenth Circuit is accordingly Reversed. MR. JUSTICE WHITE took no part in the consideration or decision of this case. |
Justice Burger | 1,979 | 12 | majority | NLRB v. Catholic Bishop of Chicago | https://www.courtlistener.com/opinion/110040/nlrb-v-catholic-bishop-of-chicago/ | This case arises out of the National Labor Relations Board's exercise of jurisdiction over lay faculty members at two groups of Catholic high We granted certiorari to consider two questions: (a) Whether teachers in schools operated by a church to teach both religious and secular subjects are within the jurisdiction granted by the National Labor Relations Act; and (b) if the Act authorizes such jurisdiction, does its exercise violate the guarantees of the Religion Clauses of the First Amendment? *492 I One group of schools is operated by the Catholic Bishop of Chicago, a corporation sole; the other group is operated by the Diocese of Fort Wayne-South Bend, Inc. The group operated by the Catholic Bishop of Chicago consists of two schools, Quigley North and Quigley South.1] Those schools are termed "minor seminaries" because of their role in educating high school students who may become priests. At one time, only students who manifested a positive and confirmed desire to be priests were admitted to the Quigley In 1970, the requirement was changed so that students admitted to these schools need not show a definite inclination toward the priesthood. Now the students need only be recommended by their parish priest as having a potential for the priesthood or for Christian leadership. The schools continue to provide special religious instruction not offered in other Catholic secondary The Quigley schools also offer essentially the same college-preparatory curriculum as public secondary Their students participate in a variety of extracurricular activities which include secular as well as religious events. The schools are recognized by the State and accredited by a regional educational organization.2] The Diocese of Fort Wayne-South Bend, Inc., has five high 3] Unlike the Quigley schools, the special recommendation *493 of a priest is not a prerequisite for admission. Like the Quigley schools, however, these high schools seek to provide a traditional secular education but oriented to the tenets of the Roman Catholic faith; religious training is also mandatory. These schools are similarly certified by the State.4] In and separate representation petitions were filed with the Board by interested union organizations for both the Quigley and the Fort Wayne-South Bend schools; representation was sought only for lay teachers.5] The schools challenged the assertion of jurisdiction on two grounds: (a) that they do not fall within the Board's discretionary jurisdictional criteria; and (b) that the Religion Clauses of the First Amendment preclude the Board's jurisdiction. The Board rejected the jurisdictional arguments on the basis of its decision in Roman Catholic Archdiocese of Baltimore, 216 N. L. R. B. 249 There the Board explained that |
Justice Burger | 1,979 | 12 | majority | NLRB v. Catholic Bishop of Chicago | https://www.courtlistener.com/opinion/110040/nlrb-v-catholic-bishop-of-chicago/ | N. L. R. B. 249 There the Board explained that its policy was to decline jurisdiction over religiously sponsored organizations "only when they are completely religious, not just religiously associated." Because neither group of schools was found to fall within the Board's "completely religious" category, the Board ordered elections. Catholic Bishop of Chicago, 220 N. L. R. B. 3596] *494 In the Board-supervised election at the Quigley schools, the Quigley Education Alliance, a union affiliated with the Illinois Education Association, prevailed and was certified as the exclusive bargaining representative for 46 lay teachers. In the Diocese of Fort Wayne-South Bend, the Community Alliance for Teachers of Catholic High Schools, a similar union organization, prevailed and was certified as the representative for the approximately 180 lay teachers. Notwithstanding the Board's order, the schools declined to recognize the unions or to bargain. The unions filed unfair labor practice complaints with the Board under 8 (a) (1) and (5) of the National Labor Relations Act, as amended, 29 U.S. C. 158 (a) (1) and (5). The schools opposed the General Counsel's motion for summary judgment, again challenging the Board's exercise of jurisdiction over religious schools on both statutory and constitutional grounds. The Board reviewed the record of previous proceedings and concluded that all of the arguments had been raised or could have been raised in those earlier proceedings. Since the arguments had been rejected previously, the Board granted summary judgment, holding that it had properly exercised its statutory discretion in asserting jurisdiction over these 7] The Board concluded that the schools had violated the Act and ordered that they cease their unfair labor practices and that they bargain collectively with the unions. Catholic *495 Bishop of Chicago, 224 N. L. R. B. 1221 ; Diocese of Fort Wayne-South Bend, Inc., 224 N. L. R. B. 1226 II The schools challenged the Board's orders in petitions to the Court of Appeals for the Seventh Circuit. That court denied enforcement of the Board's orders.8] The court considered the Board's actions in relation to its discretion in choosing to extend its jurisdiction only to religiously affiliated schools that were not "completely religious." It concluded that the Board had not properly exercised its discretion, because the Board's distinction between "completely religious" and "merely religiously associated" failed to provide a workable guide for the exercise of discretion: "We find the standard itself to be a simplistic black or white, purported rule containing no borderline demarcation of where `completely religious' takes over or, on the other hand, ceases. In our opinion the dichotomous `completely religiousmerely religiously associated' standard provides |
Justice Burger | 1,979 | 12 | majority | NLRB v. Catholic Bishop of Chicago | https://www.courtlistener.com/opinion/110040/nlrb-v-catholic-bishop-of-chicago/ | our opinion the dichotomous `completely religiousmerely religiously associated' standard provides no workable guide to the exercise of discretion. The determination that an institution is so completely a religious entity as to exclude any viable secular components obviously implicates very sensitive questions of faith and tradition. See, e. g., Wisconsin v.] Yoder, ]." The Court of Appeals recognized that the rejection of the Board's policy as to church-operated schools meant that the Board would extend its jurisdiction to all church-operated *496 The court therefore turned to the question of whether the Board could exercise that jurisdiction, consistent with constitutional limitations. It concluded that both the Free Exercise Clause and the Establishment Clause of the First Amendment foreclosed the Board's jurisdiction. It reasoned that from the initial act of certifying a union as the bargaining agent for lay teachers the Board's action would impinge upon the freedom of church authorities to shape and direct teaching in accord with the requirements of their religion. It analyzed the Board's action in this way: "At some point, factual inquiry by courts or agencies into such matters separating secular from religious training] would almost necessarily raise First Amendment problems. If history demonstrates, as it does, that Roman Catholics founded an alternative school system for essentially religious reasons and continued to maintain them as an `integral part of the religious mission of the Catholic Church,' ], 616 ], courts and agencies would be hard pressed to take official or judicial notice that these purposes were undermined or eviscerated by the determination to offer such secular subjects as mathematics, physics, chemistry, and English literature." The court distinguished local regulations which required fire inspections or state laws mandating attendance, reasoning that they did not "have the clear inhibiting potential upon the relationship between teachers and employers with which the present Board order is directly concerned." The court held that interference with management prerogatives, found acceptable in an ordinary commercial setting, was not acceptable in an area protected by the First Amendment. "The real difficulty is found in the chilling aspect that the requirement of bargaining will impose on the exercise of the bishops' control of the religious mission of the " *497 III The Board's assertion of jurisdiction over private schools is, as we noted earlier, a relatively recent development. Indeed, in 1951 the Board indicated that it would not exercise jurisdiction over nonprofit, educational institutions because to do so would not effectuate the purposes of the Act. Trustees of Columbia University in the City of New York, 97 N. L. R. B. 424. In 1970, however, the Board |
Justice Burger | 1,979 | 12 | majority | NLRB v. Catholic Bishop of Chicago | https://www.courtlistener.com/opinion/110040/nlrb-v-catholic-bishop-of-chicago/ | N. L. R. B. 424. In 1970, however, the Board pointed to what it saw as an increased involvement in commerce by educational institutions and concluded that this required a different position on jurisdiction. In Cornell University, 183 N. L. R. B. 329, the Board overruled its Columbia University decision. Cornell University was followed by the assertion of jurisdiction over nonprofit, private secondary Shattuck School, 189 N. L. R. B. 886 See also Judson School, 209 N. L. R. B. 677 The Board now asserts jurisdiction over all private, nonprofit, educational institutions with gross annual revenues that meet its jurisdictional requirements whether they are secular or religious. See, e. g., Academia San Jorge, 234 N. L. R. B. 1 (advisory opinion stating that Board would not assert jurisdiction over Catholic educational institution which did not meet jurisdictional standards); Windsor School, Inc., 199 N. L. R. B. 457, 200 N. L. R. B. 991 (declining jurisdiction where private, proprietary school did not meet jurisdictional amounts). That broad assertion of jurisdiction has not gone unchallenged. But the Board has rejected the contention that the Religion Clauses of the First Amendment bar the extension of its jurisdiction to church-operated Where the Board has declined to exercise jurisdiction, it has done so only on the grounds of the employer's minimal impact on commerce. Thus, in Association of Hebrew Teachers of Metropolitan Detroit, 210 N. L. R. B. 1053 the Board did not assert jurisdiction over the Association which offered *498 courses in Jewish culture in after-school classes, a nursery school, and a college. The Board termed the Association an "isolated instance of an] atypical employer." It explained: "Whether an employer falls within a given `class' of enterprise depends upon those of its activities which are predominant and give the employing enterprise its character. T]he fact that an employer's activity. is dedicated to a sectarian religious purpose is not a sufficient reason for the Board to refrain from asserting jurisdiction." Cf. Board of Jewish Education of Greater Washington, D. C., 210 N. L. R. B. 1037 In the same year the Board asserted jurisdiction over an Association chartered by the State of New York to operate diocesan high Henry M. Hald High School Assn., 213 N. L. R. B. 415 It rejected the argument that its assertion of jurisdiction would produce excessive governmental entanglement with religion. In the Board's view, the Association had chosen to entangle itself with the secular world when it decided to hire lay teachers. at 418 n. 7.9] When it ordered an election for the lay professional employees at five parochial |
Justice Burger | 1,979 | 12 | majority | NLRB v. Catholic Bishop of Chicago | https://www.courtlistener.com/opinion/110040/nlrb-v-catholic-bishop-of-chicago/ | an election for the lay professional employees at five parochial high schools in Baltimore in the Board reiterated its belief that exercise of its jurisdiction is not contrary to the First Amendment: "T]he Board's policy in the past has been to decline jurisdiction over similar institutions only when they are completely religious, not just religiously associated, and the Archdiocese concedes that instruction is not limited to religious subjects. That the Archdiocese seeks to provide an education based on Christian principles does not lead to a contrary conclusion. Most religiously associated institutions seek to operate in conformity with *499 their religious tenets." Roman Catholic Archdiocese of Baltimore, 216 N. L. R. B., The Board also rejected the First Amendment claims in Cardinal Timothy Manning, Roman Catholic Archbishop of the Archdiocese of Los Angeles, 223 N. L. R. B. 1218, 1218 : "Regulation of labor relations does not violate the First Amendment when it involves a minimal intrusion on religious conduct and is necessary to obtain the Act's] objective." (Emphasis added.) The Board thus recognizes that its assertion of jurisdiction over teachers in religious schools constitutes some degree of intrusion into the administration of the affairs of church-operated Implicit in the Board's distinction between schools that are "completely religious" and those "religiously associated" is also an acknowledgment of some degree of entanglement. Because that distinction was measured by a school's involvement with commerce, however, and not by its religious association, it is clear that the Board never envisioned any sort of religious litmus test for determining when to assert jurisdiction. Nevertheless, by expressing its traditional jurisdictional standards in First Amendment terms, the Board has plainly recognized that intrusion into this area could run afoul of the Religion Clauses and hence preclude jurisdiction on constitutional grounds. IV That there are constitutional limitations on the Board's actions has been repeatedly recognized by this Court even while acknowledging the broad scope of the grant of jurisdiction. The First Amendment, of course, is a limitation on the power of Congress. Thus, if we were to conclude that the Act granted the challenged jurisdiction over these teachers we would be required to decide whether that was constitutionally permissible under the Religion Clauses of the First Amendment. *500 Although the respondents press their claims under the Religion Clauses, the question we consider first is whether Congress intended the Board to have jurisdiction over teachers in church-operated In a number of cases the Court has heeded the essence of Mr. Chief Justice Marshall's admonition in by holding that an Act of Congress ought not be construed to violate the |
Justice Burger | 1,979 | 12 | majority | NLRB v. Catholic Bishop of Chicago | https://www.courtlistener.com/opinion/110040/nlrb-v-catholic-bishop-of-chicago/ | Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available. Moreover, the Court has followed this policy in the interpretation of the Act now before us and related statutes. In for example, the Court considered claims that serious First Amendment questions would arise if the Railway Labor Act were construed to allow compulsory union dues to be used to support political candidates or causes not approved by some members. The Court looked to the language of the Act and the legislative history and concluded that they did not permit union dues to be used for such political purposes, thus avoiding "serious doubt of the Act's] constitutionality." Similarly in a case involving the Board's assertion of jurisdiction over foreign seamen, the Court declined to read the National Labor Relations Act so as to give rise to a serious question of separation of powers which in turn would have implicated sensitive issues of the authority of the Executive over relations with foreign nations. The international implications of the case led the Court to describe it as involving "public questions particularly high in the scale of our national interest." Because of those questions the Court held that before sanctioning the Board's exercise of jurisdiction " `there must be present the affirmative intention of the Congress clearly expressed.' " ). *501 The values enshrined in the First Amendment plainly rank high "in the scale of our national values." In keeping with the Court's prudential policy it is incumbent on us to determine whether the Board's exercise of its jurisdiction here would give rise to serious constitutional questions. If so, we must first identify "the affirmative intention of the Congress clearly expressed" before concluding that the Act grants jurisdiction. V In recent decisions involving aid to parochial schools we have recognized the critical and unique role of the teacher in fulfilling the mission of a church-operated school. What was said of the schools in is true of the schools in this case: "Religious authority necessarily pervades the school system." The key role played by teachers in such a school system has been the predicate for our conclusions that governmental aid channeled through teachers creates an impermissible risk of excessive governmental entanglement in the affairs of the church-operated For example, in at we wrote: "In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to |
Justice Burger | 1,979 | 12 | majority | NLRB v. Catholic Bishop of Chicago | https://www.courtlistener.com/opinion/110040/nlrb-v-catholic-bishop-of-chicago/ | that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation." (Emphasis added.) Only recently we again noted the importance of the teacher's function in a church school: "Whether the subject is `remedial reading,' `advanced reading,' or simply `reading,' a teacher remains a teacher, and the danger that religious doctrine will become intertwined with secular instruction persists." Cf. *502 Good intentions by governmentor third partiescan surely no more avoid entanglement with the religious mission of the school in the setting of mandatory collective bargaining than in the well-motivated legislative efforts consented to by the church-operated schools which we found unacceptable in Meek, and Wolman. The Board argues that it can avoid excessive entanglement since it will resolve only factual issues such as whether an anti-union animus motivated an employer's action. But at this stage of our consideration we are not compelled to determine whether the entanglement is excessive as we would were we considering the constitutional issue. Rather, we make a narrow inquiry whether the exercise of the Board's jurisdiction presents a significant risk that the First Amendment will be infringed. Moreover, it is already clear that the Board's actions will go beyond resolving factual issues. The Court of Appeals' opinion refers to charges of unfair labor practices filed against religious 1126. The court observed that in those cases the schools had responded that their challenged actions were mandated by their religious creeds. The resolution of such charges by the Board, in many instances, will necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school's religious mission. It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.10] The Board's exercise of jurisdiction will have at least one other impact on church-operated The Board will be called upon to decide what are "terms and conditions of *503 employment" and therefore mandatory subjects of bargaining. See 29 U.S. C. 158 (d). Although the Board has not interpreted that phrase as it relates to educational institutions, similar state provisions provide insight into the effect of mandatory bargaining. The Oregon Court of Appeals noted that "nearly everything that goes on in the schools affects teachers and is therefore arguably a `condition of employment.' " Springfield Education The Pennsylvania Supreme Court aptly summarized the effect of mandatory bargaining when it |
Justice Burger | 1,979 | 12 | majority | NLRB v. Catholic Bishop of Chicago | https://www.courtlistener.com/opinion/110040/nlrb-v-catholic-bishop-of-chicago/ | Court aptly summarized the effect of mandatory bargaining when it observed that the "introduction of a concept of mandatory collective bargaining, regardless of how narrowly the scope of negotiation is defined, necessarily represents an encroachment upon the former autonomous position of management." Pennsylvania Labor Relations Cf. Clark County School 117- See M. Lieberman & M. Moskow, Collective Negotiations for Teachers 221-247 (1966). Inevitably the Board's inquiry will implicate sensitive issues that open the door to conflicts between clergy-administrators and the Board, or conflicts with negotiators for unions. What we said in applies as well here: "P]arochial schools involve substantial religious activity and purpose. "The substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid." (Footnote omitted.) Mr. Justice Douglas emphasized this in his concurring opinion in noting "the admitted and obvious fact that the raison d'êetre of parochial schools is the propagation of a religious faith." * The church-teacher relationship in a church-operated school differs from the employment relationship in a public or other nonreligious school. We see no escape from conflicts flowing from the Board's exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow. We therefore turn to an examination of the National Labor Relations Act to decide whether it must be read to confer jurisdiction that would in turn require a decision on the constitutional claims raised by respondents. VI There is no clear expression of an affirmative intention of Congress that teachers in church-operated schools should be covered by the Act. Admittedly, Congress defined the Board's jurisdiction in very broad terms; we must therefore examine the legislative history of the Act to determine whether Congress contemplated that the grant of jurisdiction would include teachers in such In enacting the National Labor Relations Act in 1935, Congress sought to protect the right of American workers to bargain collectively. The concern that was repeated throughout the debates was the need to assure workers the right to organize to counterbalance the collective activities of employers which had been authorized by the National Industrial Recovery Act. But congressional attention focused on employment in private industry and on industrial recovery. See, e. g., 79 Cong. Rec. 7573 (1935) (remarks of Sen. Wagner), 2 National Labor Relations Board, Legislative of the National Labor Relations Act, 1935, pp. 2341-2343 (1949). Our examination of the statute and its legislative history indicates that Congress simply gave no consideration to church-operated It is not without significance, however, that the Senate Committee on Education and Labor chose |
Justice Burger | 1,979 | 12 | majority | NLRB v. Catholic Bishop of Chicago | https://www.courtlistener.com/opinion/110040/nlrb-v-catholic-bishop-of-chicago/ | however, that the Senate Committee on Education and Labor chose a college professor's dispute with the college as an example of *505 employer-employee relations not covered by the Act. S. Rep. No. 573, 74th Cong., 1st Sess., 7 (1935), 2 Legislative Congress' next major consideration of the jurisdiction of the Board came during the passage of the Labor Management Relations Act of 1947the Taft-Hartley Act. In that Act Congress amended the definition of "employer" in 2 of the original Act to exclude nonprofit hospitals. 29 U.S. C. 152 (2) (1970 ed.). There was some discussion of the scope of the Board's jurisdiction but the consensus was that nonprofit institutions in general did not fall within the Board's jurisdiction because they did not affect commerce. See H. R. 3020, 80th Cong., 1st Sess. (1947), 1 National Labor Relations Board, Legislative of the Labor Management Relations Act, 1947, p. 34 (1948) (hereinafter Leg. Hist.); H. R. Rep. No. 245, 80th Cong., 1st Sess., 12 (1947), 1 Leg. Hist. 303; H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 3, 32 (1947), 1 Leg. Hist. 507, 536; 93 Cong. Rec. 4997 (1947), 2 Leg. Hist. 1464 (remarks of Sens. Tydings and Taft).11] The most recent significant amendment to the Act was passed in removing the exemption of nonprofit hospitals. Stat. 395. The Board relies upon that amendment as showing that Congress approved the Board's exercise of jurisdiction over church-operated A close examination of that legislative history, however, reveals nothing to indicate an affirmative intention that such schools be within the Board's jurisdiction. Since the Board did not assert jurisdiction over teachers in a church-operated *506 school until after the amendment, nothing in the history of the amendment can be read as reflecting Congress' tacit approval of the Board's action. During the debate there were expressions of concern about the effect of the bill on employees of religious hospitals whose religious beliefs would not permit them to join a union. 120 Cong. Rec. 12946, 16914 Legislative of the Coverage of Nonprofit Hospitals under the National Labor Relations Act, 93d Cong., 2d Sess., 331-332 (remarks of Sen. Ervin and Rep. Erlenborn). The result of those concerns was an amendment which reflects congressional sensitivity to First Amendment guarantees: "Any employee of a health care institution who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any labor organization as a condition |
Justice Burger | 1,979 | 12 | majority | NLRB v. Catholic Bishop of Chicago | https://www.courtlistener.com/opinion/110040/nlrb-v-catholic-bishop-of-chicago/ | join or financially support any labor organization as a condition of employment; except that such employee may be required, in lieu of periodic dues and initiation fees, to pay sums equal to such dues and initiation fees to a nonreligious charitable fund exempt from taxation under section 501 (c) (3) of title 26, chosen by such employee from a list of at least three such funds, designated in a contract between such institution and a labor organization, or if the contract fails to designate such funds, then to any such fund chosen by the employee." 29 U.S. C. 169. The absence of an "affirmative intention of the Congress clearly expressed" fortifies our conclusion that Congress did not contemplate that the Board would require church-operated schools to grant recognition to unions as bargaining agents for their teachers. The Board relies heavily upon Associated There the Court held that the First Amendment was no bar to the application of the Act to the Associated Press, an organization engaged in collecting information and news throughout the world and distributing it to its members. Perceiving nothing to suggest that application of the Act would infringe First Amendment guarantees of press freedoms, the Court sustained Board jurisdiction. Here, on the contrary, the record affords abundant evidence that the Board's exercise of jurisdiction over teachers in church-operated schools would implicate the guarantees of the Religion Clauses. Accordingly, in the absence of a clear expression of Congress' intent to bring teachers in church-operated schools within the jurisdiction of the Board, we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses. Affirmed. APPENDIX TO OPINION OF THE COURT Q. by Hearing Officer] Now, we have had quite a bit of testimony already as to liturgies, and I don't want to beat a dead horse; but let me ask you one question: If you know, how many liturgies are required at Catholic parochial high schools; do you know? A. I think our first problem with that would be defining liturgies. That word would have many definitions. Do you want to go into that? Q. I believe you defined it before, is that correct, when you first testified? A. I am not sure. Let me try briefly to do it again, okay? Q. Yes. A. A liturgy can range anywhere from the strictest sense of the word, which is the sacrifice of the Mass in the Roman *508 Catholic terminology. It can go from that all |
Justice Burger | 1,979 | 12 | majority | NLRB v. Catholic Bishop of Chicago | https://www.courtlistener.com/opinion/110040/nlrb-v-catholic-bishop-of-chicago/ | Roman *508 Catholic terminology. It can go from that all the way down to a very informal group in what we call shared prayer. Two or three individuals praying together and reflecting their own reactions to a scriptural reading. All of theseand there is a big spectrum in between those two extremesall of these are popularly referred to as liturgies. Q. I see. A. Now, possibly in repeating your question, you could give me an idea of that spectrum, I could respond more accurately. Q. Well, let us stick with the formal Masses. If you know, how many Masses are required at Catholic parochial high schools? A. Some have none, none required. Some would have two or three during the year where what we call Holy Days of Obligation coincide with school days. Some schools on those days prefer to have a Mass within the school day so the students attend there, rather than their parish churches. Some schools feel that is not a good idea; they should always be in their parish church; so that varies a great deal from school to school. MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | In reviewing congressional legislation under the Commerce Clause, we defer to what is often a merely implicit congressional judgment that its regulation addresses a subject substantially affecting interstate commerce "if there is any rational basis for such a finding." ; ; see quoting If that congressional determination is within the realm of reason, "the only remaining question for judicial inquiry is whether `the means chosen by Congress [are] reasonably adapted to the end permitted by the Constitution.' " at quoting Heart of Atlanta v. United ; see also at[1] *604 The practice of deferring to rationally based legislative judgments "is a paradigm of judicial restraint." FCC v. Beach Communications, In judicial review under the Commerce Clause, it reflects our respect for the institutional competence of the Congress on a subject expressly assigned to it by the Constitution and our appreciation of the legitimacy that comes from Congress's political accountability in dealing with matters open to a wide range of possible choices. See ; at ; United ; cf. Williamson v. Lee Optical of Okla., It was not ever thus, however, as even a brief overview of Commerce Clause history during the past century reminds us. The modern respect for the competence and primacy of Congress in matters affecting commerce developed only after one of this Court's most chastening experiences, when it perforce repudiated an earlier and untenably expansive conception of judicial review in derogation of congressional commerce power. A look at history's sequence will serve to show how today's decision tugs the Court off course, leading it to suggest opportunities for further developments that would be at odds with the rule of restraint to which the Court still wisely states adherence. I Notwithstanding the Court's recognition of a broad commerce power in Congress saw few occasions to exercise that power prior to Reconstruction, see generally 2 C. The Supreme Court in United History 729-739 and it was really the passage of the Interstate Commerce Act of 1887 that opened a new age of congressional reliance on the Commerce Clause for authority to exercise general police powers at the national level, see at *605 729-730. Although the Court upheld a fair amount of the ensuing legislation as being within the commerce power, see, e. g., ; Shreveport Rate Cases, ; see generally the period from the turn of the century to 19 is better noted for a series of cases applying highly formalistic notions of "commerce" to invalidate federal social and economic legislation, see, e. g., ; A. L. A. Schechter Poultry ; ; (8) These restrictive views of commerce subject |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | Poultry ; ; (8) These restrictive views of commerce subject to congressional power complemented the Court's activism in limiting the enforceable scope of state economic regulation. It is most familiar history that during this same period the Court rinely invalidated state social and economic legislation under an expansive conception of Fourteenth Amendment substantive due process. See, e. g., Louis K. Liggett ; ; (5) See generally L. Tribe, American Constitutional *606 Law 568-574 (2d ed. 1988). The fulcrums of judicial review in these cases were the notions of liberty and property characteristic of laissez-faire economics, whereas the Commerce Clause cases turned on what was ostensibly a structural limit of federal power, but under each conception of judicial review the Court's character for the first third of the century showed itself in exacting judicial scrutiny of a legislature's choice of economic ends and of the legislative means selected to reach them. It was not merely coincidental, then, that sea changes in the Court's conceptions of its authority under the Due Process and Commerce Clauses occurred virtually together, in 19, with West Coast Hotel In West Coast Hotel, the Court's rejection of a due process challenge to a state law fixing minimum wages for women and children marked the abandonment of its expansive protection of contractual freedom. Two weeks later, Jones & Laughlin affirmed congressional commerce power to authorize NLRB injunctions against unfair labor practices. The Court's finding that the regulated activity had a direct enough effect on commerce has since been seen as beginning the abandonment, for practical purposes, of the formalistic distinction between direct and indirect effects. In the years following these decisions, deference to legislative policy judgments on commercial regulation became the powerful theme under both the Due Process and Commerce Clauses, see United -148, 152; United ; United v. Wrightwood Dairy and in due course that deference became articulate in the standard of rationality review. In due process litigation, the Court's statement of a rational *607 basis test came quickly. See United ; see also Williamson v. Lee Optical The parallel formulation of the Commerce Clause test came later, only because complete elimination of the direct/indirect effects dichotomy and acceptance of the cumulative effects doctrine, 3 U.S. 111, ; United v. Wrightwood Dairy so far settled the pressing issues of congressional power over commerce as to leave the Court for years with any need to phrase a test explicitly deferring to rational legislative judgments. The moment came, however, with the challenge to congressional Commerce Clause authority to prohibit racial discrimination in places of public accommodation, when the Court |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | racial discrimination in places of public accommodation, when the Court simply made explicit what the earlier cases had implied: "where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end." 9 U. S., at discussing United see Heart of Atlanta v. United -259. Thus, under commerce, as under due process, adoption of rational basis review expressed the recognition that the Court had no sustainable basis for subjecting economic regulation as such to judicial policy judgments, and for the past half century the Court has no more turned back in the direction of formalistic Commerce Clause review (as in deciding whether regulation of commerce was sufficiently direct) than it has inclined toward reasserting the substantive authority of Lochner due process (as in the inflated protection of contractual autonomy). See, e. g., 392 U. S., at 198; v. United ; 452 U. S., at 277. *608 II There is today, however, a backward glance at both the old pitfalls, as the Court treats deference under the rationality rule as subject to gradation according to the commercial or noncommercial nature of the immediate subject of the challenged regulation. See ante, at 558-561. The distinction between what is patently commercial and what is not looks much like the old distinction between what directly affects commerce and what touches it only indirectly. And the act of calibrating the level of deference by drawing a line between what is patently commercial and what is less purely so will probably resemble the process of deciding how much interference with contractual freedom was fatal. Thus, it seems fair to ask whether the step taken by the Court today does anything but portend a return to the untenable jurisprudence from which the Court extricated itself almost 60 years ago. The answer is not reassuring. To be sure, the occasion for today's decision reflects the century's end, not its beginning. But if it seems anomalous that the Congress of the United has taken to regulating school yards, the Act in question is still probably no more remarkable than state regulation of bake shops 90 years ago. In any event, there is no reason to hope that the Court's qualification of rational basis review will be any more successful than the efforts at substantive economic review made by our predecessors as the century began. Taking the Court's opinion on its own terms, Justice Breyer has explained both the hopeless porosity of "commercial" character as a |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | explained both the hopeless porosity of "commercial" character as a ground of Commerce Clause distinction in America's highly connected economy, and the inconsistency of this categorization with our rational basis precedents from the last 50 years. Further glosses on rationality review, moreover, may be in the offing. Although this case turns on commercial character, the Court gestures toward two other considerations that it might sometime entertain in applying rational basis *609 scrutiny (apart from a statutory obligation to supply independent proof of a jurisdictional element): does the congressional statute deal with subjects of traditional state regulation, and does the statute contain explicit factual findings supporting the otherwise implicit determination that the regulated activity substantially affects interstate commerce? Once again, any appeal these considerations may have depends on ignoring the painful lesson learned in 19, for neither of the Court's suggestions would square with rational basis scrutiny. A The Court observes that the Gun-Free School Zones Act operates in two areas traditionally subject to legislation by the education and enforcement of criminal law. The suggestion is either that a connection between commerce and these subjects is remote, or that the commerce power is simply weaker when it touches subjects on which the have historically been the primary legislators. Neither suggestion is tenable. As for remoteness, it may or may not be wise for the National Government to deal with education, but Justice Breyer has surely demonstrated that the commercial prospects of an illiterate State or Nation are not rosy, and no argument should be needed to show that hijacking interstate shipments of cigarettes can affect commerce substantially, even though the have traditionally prosecuted robbery. And as for the notion that the commerce power diminishes the closer it gets to customary state concerns, that idea has been flatly rejected, and not long ago. The commerce power, we have often observed, is plenary. at ; United ; see ; 9 Wheat., at Justice Harlan put it this way in speaking for the Court in : *610 "There is no general doctrine implied in the Federal Constitution that the two governments, national and state, are each to exercise its powers so as not to interfere with the free and full exercise of the powers of the other. [I]t is clear that the Federal Government, when acting within a delegated power, may override countervailing state interests As long ago as [1925], the Court put to rest the contention that state concerns might constitutionally `weigh' the importance of an otherwise valid federal statute regulating commerce." -196 See also United ; ; United Nor is there any |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | See also United ; ; United Nor is there any contrary authority in the reasoning of our cases imposing clear statement rules in some instances of legislation that would significantly alter the state-national balance. In the absence of a clear statement of congressional design, for example, we have refused to interpret ambiguous federal statutes to limit fundamental state legislative prerogatives, at -, our understanding being that such prerogatives, through which "a State defines itself as a sovereign," are "powers with which Congress does not readily interfere," 501 U.S., at 461. Likewise, when faced with two plausible interpretations of a federal criminal statute, we generally will take the alternative that does not force us to impute an intention to Congress to use its full commerce power to regulate conduct traditionally and ably regulated by the See United v. Enmons, ; United v. ; Rewis v. United These clear statement rules, however, are merely rules of statutory interpretation, to be relied upon only when the *611 terms of a statute allow, United v. Culbert, ; see ; United v. and in cases implicating Congress's historical reluctance to trench on state legislative prerogatives or to enter into spheres already occupied by the ; United v. ; see Rewis v. United at 811-. They are rules for determining intent when legislation leaves intent subject to question. But our hesitance to presume that Congress has acted to alter the state-federal status quo (when presented with a plausible alternative) has no relevance whatever to the enquiry whether it has the commerce power to do so or to the standard of judicial review when Congress has definitely meant to exercise that power. Indeed, to allow our hesitance to affect the standard of review would inevitably degenerate into the sort of substantive policy review that the Court found indefensible 60 years ago. The Court does not assert (and could not plausibly maintain) that the commerce power is wholly devoid of congressional authority to speak on any subject of traditional state concern; but if congressional action is not forbidden absolutely when it touches such a subject, it will stand or fall depending on the Court's view of the strength of the legislation's commercial justification. And here once again history raises its objections that the Court's previous essays in overriding congressional policy choices under the Commerce Clause were ultimately seen to suffer two fatal weaknesses: when dealing with Acts of Congress (as distinct from state legislation subject to review under the theory of dormant commerce power) nothing in the Clause compelled the judicial activism, and nothing ab the judiciary as |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | compelled the judicial activism, and nothing ab the judiciary as an institution made it a superior source of policy on the subject Congress dealt with. There is no reason to expect the lesson would be different another time. *612 B There remain questions ab legislative findings. The Court of Appeals expressed the view, that the result in this case might well have been different if Congress had made explicit findings that guns in schools have a substantial effect on interstate commerce, and the Court today does not repudiate that position, see ante, at 562-563. Might a court aided by such findings have subjected this legislation to less exacting scrutiny (or, put another way, should a court have deferred to such findings if Congress had made them)?[2] The answer to either question must be no, although as a general matter findings are important and to be hoped for in the difficult cases. It is only natural to look for help with a hard job, and reviewing a claim that Congress has exceeded the commerce power is much harder in some cases than in others. A challenge to congressional regulation of interstate garbage hauling would be easy to resolve; review of congressional regulation of gun possession in school yards is more difficult, both because the link to interstate commerce is less obvious and because of our initial ignorance of the relevant facts. In a *613 case comparable to this one, we may have to dig hard to make a responsible judgment ab what Congress could reasonably find, because the case may be close, and because judges tend not to be familiar with the facts that may or may not make it close. But while the ease of review may vary from case to case, it does not follow that the standard of review should vary, much less that explicit findings of fact would even directly address the standard. The question for the courts, as all agree, is not whether as a predicate to legislation Congress in fact found that a particular activity substantially affects interstate commerce. The legislation implies such a finding, and there is no reason to entertain claims that Congress acted ultra vires intentionally. Nor is the question whether Congress was correct in so finding. The only question is whether the legislative judgment is within the realm of reason. See 452 U. S., at -277; 9 U. S., at ; Railroad Retirement Bd. v. Alton R. ; cf. FCC v. Beach Communications, (in the equal protection context, "those attacking the rationality of the legislative classification have the burden to negate |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | rationality of the legislative classification have the burden to negate every conceivable basis which might support it[;] it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature") ; ; Williamson v. Lee Optical Congressional findings do not, however, directly address the question of reasonableness; they tell us what Congress actually has found, not what it could rationally find. If, indeed, the Court were to make the existence of explicit congressional findings dispositive in some close or difficult cases something other than rationality review would be afoot. The resulting congressional obligation to justify its policy choices on the merits would imply *614 either a judicial authority to review the justification (and, hence, the wisdom) of those choices, or authority to require Congress to act with some high degree of deliberateness, of which express findings would be evidence. But review for congressional wisdom would just be the old judicial pretension discredited and abandoned in 19, and review for deliberateness would be as patently unconstitutional as an Act of Congress mandating long opinions from this Court. Such a legislative process requirement would function merely as an excuse for covert review of the merits of legislation under standards never expressed and more or less arbitrarily applied. Under such a regime, in any case, the rationality standard of review would be a thing of the past. On the other hand, to say that courts applying the rationality standard may not defer to findings is not, of course, to say that findings are pointless. They may, in fact, have great value in telling courts what to look for, in establishing at least one frame of reference for review, and in citing to factual authority. The research underlying Justice Breyer's dissent was necessarily a major undertaking; help is welcome, and it not incidentally shrinks the risk that judicial research will miss material scattered across the public domain or buried under pounds of legislative record. Congressional findings on a more particular plane than this record illustrates would accordingly have earned judicial thanks. But thanks do not carry the day as long as rational possibility is the touchstone, and I would not allow for the possibility, as the Court's opinion may, ante, at 563, that the addition of congressional findings could in principle have affected the fate of the statute here. III Because Justice Breyer's opinion demonstrates beyond any doubt that the Act in question passes the rationality review that the Court continues to espouse, today's decision may be seen as only a misstep, its reasoning and its suggestions *615 |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | as only a misstep, its reasoning and its suggestions *615 not quite in gear with the prevailing standard, but hardly an epochal case. I would not argue otherwise, but I would raise a caveat. Not every epochal case has come in epochal trappings. Jones & Laughlin did not reject the & many direct-indirect standard in so words; it just said the relation of the regulated subject matter to commerce was direct -43. But we know what happened. I respectfully dissent. Justice Breyer, with whom Justice Stevens, Justice Ser, and Justice Ginsburg join, dissenting. The issue in this case is whether the Commerce Clause authorizes Congress to enact a statute that makes it a crime to possess a gun in, or near, a school. 18 U.S. C. ง 922(q)(1)(A) (1988 ed., Supp. V). In my view, the statute falls well within the scope of the commerce power as this Court has understood that power over the last half century. I In reaching this conclusion, I apply three basic principles of Commerce Clause interpretation. First, the power to "regulate Commerce among the several" U. S. Const., Art. I, ง 8, cl. 3, encompasses the power to regulate local activities insofar as they significantly affect interstate commerce. See, e. g., ; 3 U.S. 111, As the majority points ante, at 559, the Court, in describing how much of an effect the Clause requires, sometimes has used the word "substantial" and sometimes has not. Compare, e. g., at ("substantial economic effect"), with ; see also ; *616 (speaking of "close and substantial relation " between activity and commerce, not of "substantial effect") ; (words of Commerce Clause do not "comprehend commerce, which is completely internal and which does notaffect other "). And, as the majority also recognizes in quoting Justice Cardozo, the question of degree (how much effect) requires an estimate of the "size" of the effect that no verbal formulation can capture with precision. See ante, at 567. I use the word "significant" because the word "substantial" implies a somewhat narrower power than recent precedent suggests. See, e. g., v. United ; But to speak of "substantial effect" rather than "significant effect" would make no difference in this case. Second, in determining whether a local activity will likely have a significant effect upon interstate commerce, a court must consider, not the effect of an individual act (a single instance of gun possession), but rather the cumulative effect of all similar instances (i. e., the effect of all guns possessed in or near schools). See, e. g., As this Court put the matter almost |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | See, e. g., As this Court put the matter almost 50 years ago: "[I]t is enough that the individual activity when multiplied into a general practice contains a threat to the interstate economy that requires preventative regulation." Mandeville Island Farms, v. American Crystal Sugar Third, the Constitution requires us to judge the connection between a regulated activity and interstate commerce, not directly, but at one remove. Courts must give Congress a degree of leeway in determining the existence of a significant factual connection between the regulated activity and interstate commerceโboth because the Constitution delegates the commerce power directly to Congress and because the *6 determination requires an empirical judgment of a kind that a legislature is more likely than a court to make with accuracy. The traditional words "rational basis" capture this leeway. See at -277. Thus, the specific question before us, as the Court recognizes, is not whether the "regulated activity sufficiently affected interstate commerce," but, rather, whether Congress could have had "a rational basis " for so concluding. Ante, at 557 I recognize that we must judge this matter independently. "[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so." And, I also recognize that Congress did not write specific "interstate commerce" findings into the law under which Lopez was convicted. Nonetheless, as I have already noted, the matter that we review independently (i. e., whether there is a "rational basis") already has considerable leeway built into it. And, the absence of findings, at most, deprives a statute of the benefit of some extra leeway. This extra deference, in principle, might change the result in a close case, though, in practice, it has not made a critical legal difference. See, e. g., ; ; cf. Turner Broadcasting System, v. FCC, ("Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review"); ("After Congress has legislated repeatedly in an area of national concern, its Members gain experience that may reduce the need for fresh hearings or prolonged debate"). It would seem particularly unfortunate to make the validity of *618 the statute at hand turn on the presence or absence of findings. Because Congress did make findings (though not until after Lopez was prosecuted), doing so would appear to elevate form over substance. See งง 320904 (2)(F), (G), 108 Stat. 2, 18 U.S. C. งง 922(q)(1)(F), (G). In addition, despite the Court of Appeals' suggestion to the contrary, see there is no special need here for |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | the contrary, see there is no special need here for a clear indication of Congress' rationale. The statute does not interfere with the exercise of state or local authority. Cf., e. g., Moreover, any clear statement rule would apply only to determine Congress' intended result, not to clarify the source of its authority or measure the level of consideration that went into its decision, and here there is no doubt as to which activities Congress intended to regulate. See ibid.; (to subject to suits for money damages, Congress need only make that intent clear, and need not refer explicitly to the Eleventh Amendment); U.S. 226, II Applying these principles to the case at hand, we must ask whether Congress could have had a rational basis for finding a significant (or substantial) connection between gun-related school violence and interstate commerce. Or, to put the question in the language of the explicit finding that Congress made when it amended this law in 1994: Could Congress rationally have found that "violent crime in school zones," through its effect on the "quality of education," significantly (or substantially) affects "interstate" or "foreign commerce"? 18 U.S. C. งง 922(q)(1)(F), (G). As long as one views the commerce connection, not as a "technical legal conception," but as "a practical one," Swift & v. United 196 *619 U. S. 5, (5) the answer to this question must be yes. Numerous reports and studiesโgenerated both inside and side governmentโmake clear that Congress could reasonably have found the empirical connection that its law, implicitly or explicitly, asserts. (See Appendix, infra, at 631, for a sample of the documentation, as well as for complete citations to the sources referenced below.) For one thing, reports, hearings, and other readily available literature make clear that the problem of guns in and around schools is widespread and extremely serious. These materials report, for example, that four percent of American high school students (and six percent of inner-city high school students) carry a gun to school at least occasionally, Centers for Disease Control 2342; Sheley, McGee, & Wright 679; that 12 percent of urban high school students have had guns fired at them, ibid.; that 20 percent of those students have been threatened with guns, ibid.; and that, in any 6month period, several hundred thousand schoolchildren are victims of violent crimes in or near their schools, U. S. Dept. of Justice 1 ; House Select Committee Hearing 15 And, they report that this widespread violence in schools through the Nation significantly interferes with the quality of education in those schools. See, e. g., House Judiciary |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | of education in those schools. See, e. g., House Judiciary Committee Hearing 44 (linking school violence to drop rate); U. S. Dept. of Health (school-violence victims suffer academically); compare U. S. Dept. of Justice 1 (gun violence worst in inner-city schools), with National Center 47 (drop rates highest in inner cities). Based on reports such as these, Congress obviously could have thought that guns and learning are mutually exclusive. Senate Labor and Human Resources Committee Hearing 39 ; U. S. Dept. of Health 118, 123-124 Congress could therefore have found a substantial educational problemโteachers unable to teach, students unable to learnโand concluded that guns near schools contribute substantially to the size and scope of that problem. *620 Having found that guns in schools significantly undermine the quality of education in our Nation's classrooms, Congress could also have found, given the effect of education upon interstate and foreign commerce, that gun-related violence in and around schools is a commercial, as well as a human, problem. Education, although far more than a matter of economics, has long been inextricably intertwined with the Nation's economy. When this Nation began, most workers received their education in the workplace, typically (like Benjamin Franklin) as apprentices. See generally Seybolt; Rorabaugh; U. S. Dept. of Labor (1950). As late as the 1920's, many workers still received general education directly from their employersโfrom large corporations, such as General Electric, Ford, and Goodyear, which created schools within their firms to help both the worker and the firm. See Bolino 15-25. (Through most of the 19th century fewer than one percent of all Americans received secondary education through attending a high school. See) As public school enrollment grew in the early 20th century, see Becker 218 the need for industry to teach basic educational skills diminished. But, the direct economic link between basic education and industrial productivity remained. Scholars estimate that nearly a quarter of America's economic growth in the early years of this century is traceable directly to increased schooling, see Denison 243; that investment in "human capital" (through spending on education) exceeded investment in "physical capital" by a ratio of almost two to one, see Schultz 26 (1961); and that the economic returns to this investment in education exceeded the returns to conventional capital investment, see, e. g., Davis & Morrall 48-49. In recent years the link between secondary education and business has strengthened, becoming both more direct and more important. Scholars on the subject report that technological changes and innovations in management techniques have altered the nature of the workplace so that more jobs now demand greater |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | of the workplace so that more jobs now demand greater educational skills. See, e. g., MIT 32 *621 (only ab one-third of handtool company's 1,000 workers were qualified to work with a new process that requires high-school-level reading and mathematical skills); Cyert & Mowery 68 (gap between wages of high school drops and better trained workers increasing); U. S. Dept. of Labor 41 (job openings for drops declining over time). There is evidence that "service, manufacturing or construction jobs are being displaced by technology that requires a better-educated worker or, more likely, are being exported overseas," Gordon, Ponticell, & Morgan 26; that "workers with truly few skills by the year 2000 will find that only one job of ten will remain," ibid.; and that "[o]ver the long haul the best way to encourage the growth of high-wage jobs is to upgrade the skills of the work force. [B]etter-trained workers become more productive workers, enabling a company to become more competitive and expand." Henkoff 60. Increasing global competition also has made primary and secondary education economically more important. The portion of the American economy attributable to international trade nearly tripled between 1950 and 1980, and more than 70 percent of American-made goods now compete with imports. Marshall 205; Marshall & Tucker 33. Yet, lagging worker productivity has contributed to negative trade balances and to real hourly compensation that has fallen below wages in 10 other industrialized nations. See National Center 57; Handbook of Labor Statistics 561, 576 ; Neef & Kask 28, 31. At least some significant part of this serious productivity problem is attributable to students who emerge from classrooms with the reading or mathematical skills necessary to compete with their European or Asian counterparts, see, e. g., MIT 28, and, presumably, to high school drop rates of 20 to 25 percent (up to 50 percent in inner cities), see, e. g., National Center 47; Chubb & Hanushek 215. Indeed, Congress has said, when writing other statutes, that *622 "functionally or technologically illiterate" Americans in the work force "erod[e]" our economic "standing in the international marketplace," ง 6002(a)(3), and that "[o]ur Nation is paying the price of scientific and technological illiteracy, with our productivity declining, our industrial base ailing, and our global competitiveness dwindling," H. R. Rep. No. 98-6, pt. 1, p. 19 Finally, there is evidence that, today more than ever, many firms base their location decisions upon the presence, or absence, of a work force with a basic education. See MacCormack, Newman, & Rosenfield 73; Coffee 296. Scholars on the subject report, for example, that today, "[h]igh speed |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | on the subject report, for example, that today, "[h]igh speed communication and transportation make it possible to produce most products and services anywhere in the world," National Center 38; that "[m]odern machinery and production methods can therefore be combined with low wage workers to drive costs down," ibid.; that managers can perform "`back office functions anywhere in the world now,' " and say that if they "`can't get enough skilled workers here' " they will "`move the skilled jobs of the country,' " ; with the consequence that "rich countries need better education and retraining, to reduce the supply of unskilled workers and to equip them with the skills they require for tomorrow's jobs," Survey of Global Economy In light of this increased importance of education to individual firms, it is no surprise that half of the Nation's manufacturers have become involved with setting standards and shaping curricula for local schools, Maturi 65-68, that 88 percent think this kind of involvement is important, that more than 20 have recently passed educational reforms to attract new business, Overman 61-62, and that business magazines have begun to rank cities according to the quality of their schools, see Boyle 24. The economic links I have just sketched seem fairly obvious. Why then is it not equally obvious, in light of those links, that a widespread, serious, and substantial physical *623 threat to teaching and learning also substantially threatens the commerce to which that teaching and learning is inextricably tied? That is to say, guns in the hands of six percent of inner-city high school students and gun-related violence through a city's schools must threaten the trade and commerce that those schools support. The only question, then, is whether the latter threat is (to use the majority's terminology) "substantial." The evidence of (1) the extent of the gun-related violence problem, see (2) the extent of the resulting negative effect on classroom learning, see ib and (3) the extent of the consequent negative commercial effects, see when taken together, indicate a threat to trade and commerce that is "substantial." At the very least, Congress could rationally have concluded that the links are "substantial." Specifically, Congress could have found that gun-related violence near the classroom poses a serious economic threat (1) to consequently inadequately educated workers who must endure low paying jobs, see, e. g., National Center 29, and (2) to communities and businesses that might (in today's "information society") otherwise gain, from a well-educated work force, an important commercial advantage, see, e. g., Becker 10 of a kind that location near a railhead or harbor |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | of a kind that location near a railhead or harbor provided in the past. Congress might also have found these threats to be no different in kind from other threats that this Court has found within the commerce power, such as the threat that loan sharking poses to the "funds" of "numerous localities," v. United and that unfair labor practices pose to instrumentalities of commerce, see Consolidated Edison v. NLRB, As I have pointed Congress has written that "the occurrence of violent crime in school zones" has brought ab a "decline in the quality of education" that "has an adverse impact on interstate commerce and the foreign commerce of the United" 18 U.S. C. งง 922(q)(1)(F), (G). The violence-related facts, the educational *624 facts, and the economic facts, taken together, make this conclusion rational. And, because under our case law, see at 615-6; infra, at 627-628, the sufficiency of the constitutionally necessary Commerce Clause link between a crime of violence and interstate commerce turns simply upon size or degree, those same facts make the statute constitutional. To hold this statute constitutional is not to "obliterate" the "distinction between what is national and what is local," ante, at 567 (citation omitted; internal quotation marks omitted); nor is it to hold that the Commerce Clause permits the Federal Government to "regulate any activity that it found was related to the economic productivity of individual citizens," to regulate "marriage, divorce, and child custody," or to regulate any and all aspects of education. Ante, at 564. First, this statute is aimed at curbing a particularly acute threat to the educational processโthe possession (and use) of life-threatening firearms in, or near, the classroom. The empirical evidence that I have discussed above unmistakably documents the special way in which guns and education are incompatible. See This Court has previously recognized the singularly disruptive potential on interstate commerce that acts of violence may have. See Second, the immediacy of the connection between education and the national economic wellbeing is documented by scholars and accepted by society at large in a way and to a degree that may not hold true for other social institutions. It must surely be the rare case, then, that a statute strikes at conduct that (when considered in the abstract) seems so removed from commerce, but which (practically speaking) has so significant an impact upon commerce. In sum, a holding that the particular statute before us falls within the commerce power would not expand the scope of that Clause. Rather, it simply would apply pre-existing law to changing economic circumstances. See Heart of |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | apply pre-existing law to changing economic circumstances. See Heart of Atlanta *625 v. United It would recognize that, in today's economic world, gun-related violence near the classroom makes a significant difference to our economic, as well as our social, well-being. In accordance with well-accepted precedent, such a holding would permit Congress "to act in terms of economic realities," would interpret the commerce power as "an affirmative power commensurate with the national needs," and would acknowledge that the "commerce clause does not operate so as to render the nation powerless to defend itself against economic forces that Congress decrees inimical or destructive of the national economy." North American v. (citing Swift & v. United 196 U. S., at ). III The majority's holdingโthat ง 922 falls side the scope of the Commerce Clauseโcreates three serious legal problems. First, the majority's holding runs contrary to modern Supreme Court cases that have upheld congressional actions despite connections to interstate or foreign commerce that are less significant than the effect of school violence. In v. United the Court held that the Commerce Clause authorized a federal statute that makes it a crime to engage in loan sharking ("[e]xtortionate credit transactions") at a local level. The Court said that Congress may judge that such transactions, "though purely intra state, affect inter state commerce." 402 U.S., at Presumably, Congress reasoned that threatening or using force, say with a gun on a street corner, to collect a debt occurs sufficiently often so that the activity (by helping organized crime) affects commerce among the But, why then cannot Congress also reason that the threat or use of forceโthe frequent consequence of possessing a gunโin or near a school occurs sufficiently often so that such activity (by inhibiting basic education) affects *626 commerce among the ? The negative impact upon the national economy of an inability to teach basic skills seems no smaller (nor less significant) than that of organized crime. In this Court upheld, as within the commerce power, a statute prohibiting racial discrimination at local restaurants, in part because that discrimination discouraged travel by African Americans and in part because that discrimination affected purchases of food and restaurant supplies from other See ; Heart of Atlanta (Black, J., concurring in and in Heart of Atlanta ). In this Court found an effect on commerce caused by an amusement park located several miles down a country road in the middle of Alabamaโbecause some customers (the Court assumed), some food, 15 paddleboats, and a juke box had come from of state. See at 304-305, In both of these cases, |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | of state. See at 304-305, In both of these cases, the Court understood that the specific instance of discrimination (at a local place of accommodation) was part of a general practice that, considered as a whole, caused not only the most serious human and social harm, but had nationally significant economic dimensions as well. See ; It is difficult to distinguish the case before us, for the same critical elements are present. Businesses are less likely to locate in communities where violence plagues the classroom. Families will hesitate to move to neighborhoods where students carry guns instead of books. (Congress expressly found in 1994 that "parents may decline to send their children to school" in certain areas "due to concern ab violent crime and gun violence." 18 U.S. C. ง 922(q)(1)(E).) And (to look at the matter in the most narrowly commercial manner), interstate publishers therefore will sell fewer books and other firms will sell fewer school supplies where the threat of violence disrupts learning. Most importantly, like the local racial discrimination at issue in and the local instances here, taken *627 together and considered as a whole, create a problem that causes serious human and social harm, but also has nationally significant economic dimensions. In 3 U.S. 111 this Court sustained the application of the Agricultural Adjustment Act of 1938 to wheat that Filburn grew and consumed on his own local farm because, considered in its totality, (1) homegrown wheat may be "induced by rising prices" to "flow into the market and check price increases," and (2) even if it never actually enters the market, homegrown wheat nonetheless "supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market" and, in that sense, "competes with wheat in commerce." To find both of these effects on commerce significant in amount, the Court had to give Congress the benefit of the doubt. Why would the Court, to find a significant (or "substantial") effect here, have to give Congress any greater leeway? See also United v. Women's Sportswear Mfrs. Assn., 336 U.S. ; Mandeville Island Farms, v. American Crystal Sugar 334 U. S., at The second legal problem the Court creates comes from its apparent belief that it can reconcile its holding with earlier cases by making a critical distinction between "commercial" and noncommercial "transaction[s]." Ante, at 561. That is to say, the Court believes the Constitution would distinguish between two local activities, each of which has an identical effect upon interstate commerce, if one, but not the other, is "commercial" in nature. |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | if one, but not the other, is "commercial" in nature. As a general matter, this approach fails to heed this Court's earlier warning not to turn "questions of the power of Congress" upon "formula[s]" that would give *628 "controlling force to nomenclature such as `production' and `indirect' and foreclose consideration of the actual effects of the activity in question upon interstate commerce." See also United 116-1 ); Swift & v. United 196 U. S., at ("[C]ommerce among the is not a technical legal conception, but a practical one, drawn from the course of business"). Moreover, the majority's test is not consistent with what the Court saw as the point of the cases that the majority now characterizes. Although the majority today attempts to categorize and as involving intrastate "economic activity," ante, at 559, the Courts that decided each of those cases did not focus upon the economic nature of the activity regulated. Rather, they focused upon whether that activity affected interstate or foreign commerce. In fact, the Court expressly held that Filburn's consumption of homegrown wheat, "though it may not be regarded as commerce, " could nevertheless be regulatedโ"whatever its nature "โso long as "it exerts a substantial economic effect on interstate commerce." at More importantly, if a distinction between commercial and noncommercial activities is to be made, this is not the case in which to make it. The majority clearly cannot intend such a distinction to focus narrowly on an act of gun possession standing by itself, for such a reading could not be reconciled with either the civil rights cases ( and ) or โin each of those cases the specific transaction (the race-based exclusion, the use of force) was not itself "commercial." And, if the majority instead means to distinguish generally among broad categories of activities, differentiating what is educational from what is commercial, then, as a *629 practical matter, the line becomes almost impossible to draw. Schools that teach reading, writing, mathematics, and related basic skills serve both social and commercial purposes, and one cannot easily separate the one from the other. American industry itself has been, and is again, involved in teaching. See When, and to what extent, does its involvement make education commercial? Does the number of vocational classes that train students directly for jobs make a difference? Does it matter if the school is public or private, nonprofit or profit seeking? Does it matter if a city or State adopts a voucher plan that pays private firms to run a school? Even if one were to ignore these practical questions, why should there |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | one were to ignore these practical questions, why should there be a theoretical distinction between education, when it significantly benefits commerce, and environmental pollution, when it causes economic harm? See Regardless, ifthere is a principled distinction that could work both here and in future cases, Congress (even in the absence of vocational classes, industry involvement, and private management) could rationally conclude that schools fall on the commercial side of the line. In 1990, the year Congress enacted the statute before us, primary and secondary schools spent $230 billionโthat is, nearly a quarter of a trillion dollarsโwhich accounts for a significant portion of our $5.5 trillion gross domestic product for that year. See Statistical Abstract 147, 442 The business of schooling requires expenditure of these funds on student transportation, food and custodial services, books, and teachers' salaries. See U. S. Dept. of Education 4, 7 These expenditures enable schools to provide a valuable serviceโ namely, to equip students with the skills they need to survive in life and, more specifically, in the workplace. Certainly, Congress has often analyzed school expenditure as if it were a commercial investment, closely analyzing whether schools are efficient, whether they justify the significant resources *630 they spend, and whether they can be restructured to achieve greater returns. See, e. g., S. Rep. No. 100-222, p. 2 (1987) (federal school assistance is "a prudent investment"); Senate Appropriations Committee Hearing (private sector management of public schools); cf. Chubb & Moe 185-229 (school choice); Hanushek 85-122 (performance based incentives for educators); Gibbs (decision in Hartford, Conn., to contract public school system). Why could Congress, for Commerce Clause purposes, not consider schools as roughly analogous to commercial investments from which the Nation derives the benefit of an educated work force? The third legal problem created by the Court's holding is that it threatens legal uncertainty in an area of law that, until this case, seemed reasonably well settled. Congress has enacted many statutes (more than 100 sections of the United Code), including criminal statutes (at least 25 sections), that use the words "affecting commerce" to define their scope, see, e. g., 18 U.S. C. ง 844(i) (destruction of buildings used in activity affecting interstate commerce), and other statutes that contain no jurisdictional language at all, see, e. g., 18 U.S. C. ง 922(o )(1) (possession of machineguns). Do these, or similar, statutes regulate noncommercial activities? If so, would that alter the meaning of "affecting commerce" in a jurisdictional element? Cf. United v. Staszcuk, 5 F.2d 53, (Stevens, J.) (evaluation of Congress' intent "requires more than a consideration of the consequences |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | Congress' intent "requires more than a consideration of the consequences of the particular transaction"). More importantly, in the absence of a jurisdictional element, are the courts nevertheless to take 3 U. S., (and later similar cases) as inapplicable, and to judge the effect of a single noncommercial activity on interstate commerce with considering similar instances of the forbidden conduct? However these questions are eventually resolved, the legal uncertainty now created will restrict Congress' ability to enact criminal laws aimed at criminal behavior that, considered problem by problem rather *631 than instance by instance, seriously threatens the economic, as well as social, well-being of Americans. IV In sum, to find this legislation within the scope of the Commerce Clause would permit "Congress to act in terms of economic realities." North American v. 327 U. S., at (citing Swift & v. United 196 U. S., at ). It would interpret the Clause as this Court has traditionally interpreted it, with the exception of one wrong turn subsequently corrected. See (holding that the commerce power extends "to all the external concerns of the nation, and to those internal concerns which affect the generally"); United 312 U. S., 6-1 ("The conclusion is inescapable that [the child labor case] was a departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since the decision It should be and now is overruled"). Upholding this legislation would do no more than simply recognize that Congress had a "rational basis" for finding a significant connection between guns in or near schools and (through their effect on education) the interstate and foreign commerce they threaten. For these reasons, I would reverse the judgment of the Court of Appeals. Respectfully, I dissent. APPENDIX TO OPINION OF BREYER, J. Congressional Materials (in reverse chronological order) Private Sector Management of Public Schools, Hearing before the Subcommittee on Labor, Health and Human Services, and Education and Related Agencies of the Senate Committee on Appropriations, 103d Cong., 2d Sess. ). *632 Children and Gun Violence, Hearings before the Subcommittee on Juvenile Justice of the Senate Committee on the Judiciary, 103d Cong., 1st Sess. ). Keeping Every Child Safe: Curbing the Epidemic of Violence, Joint Hearing before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources and the House Select Committee on Children, Yh, and Families, 103d Cong., 1st Sess. Recess from Violence: Making our Schools Safe, Hearing before the Subcommittee on Education, Arts and Humanities of the Senate Committee on Labor and Human Resources, 103d Cong., 1st Sess. ). |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | on Labor and Human Resources, 103d Cong., 1st Sess. ). Preparing for the Economy of the 21st Century, Hearings before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, 102d Cong., 2d Sess. Children Carrying Weapons: Why the Recent Increase, Hearing before the Senate Committee on the Judiciary, 102d Cong., 2d Sess. Yh Violence Prevention, Hearing before the Senate Committee on Governmental Affairs, 102d Cong., 2d Sess. School Drop Prevention and Basic Skills Improvement Act of 1990, ง 2(a)(2), Excellence in Mathematics, Science and Engineering Education Act of 1990, 20 U.S. C. ง 5301(a)(5) (1988 ed., Supp. V). Oversight Hearing on Education Reform and American Business and the Implementation of the Hawkins-Stafford Amendments of 1988, Hearing before the Subcommittee on Elementary, Secondary, and Vocational Training of the *633 House Committee on Education and Labor, 101st Cong., 2d Sess. U. S. Power in a Changing World, Report Prepared for the Subcommittee on International Economic Policy and Trade of the House Committee on Foreign Affairs, 101st Cong., 2d Sess., 43-66 Gun Free School Zones Act of 1990, Hearing before the Subcommittee on Crime of the House Committee on the Judiciary, 101st Cong., 2d Sess. ). Restoring American Productivity: The Role of Education and Human Resources, Hearing before the Senate Committee on Labor and Human Resources, 101st Cong., 1st Sess. Children and Guns, Hearing before the House Select Committee on Children, Yh, and Families, 101st Cong., 1st Sess. ). Education and Training for a Competitive America Act of 1988, Title VI, S. Rep. No. 100-222 (1987). Education and Training for American Competitiveness, Hearings before the House Committee on Education and Labor, 100th Cong., 1st Sess. (1987). Competitiveness and the Quality of the American Work Force, Hearings before the Subcommittee on Education and Health of the Joint Economic Committee, 100th Cong., 1st Sess., pts. 1 and 2 (1987). Oversight Hearing on Illiteracy,Joint Hearing before the Subcommittee on Elementary, Secondary, and Vocational Education of the House Committee on Education and Labor and the Subcommittee on Education, Arts and Humanities of the Senate Committee on Labor and Human Resources, 99th Cong., 2d Sess. (1986). *634 Oversight on Illiteracy in the United Hearings before the Subcommittee on Elementary, Secondary, and Vocational Education of the House Committee on Education and Labor, 99th Cong., 2d Sess. (1986). Crime and Violence in the Schools, Hearing before the Subcommittee on Juvenile Justice of the Senate Committee on the Judiciary, 98th Cong., 2d Sess. (1984). H. R. Rep. No. 98-6, pts. 1 and 2 S. Rep. No. 98-151 Education for Economic Security Act, Hearings |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | S. Rep. No. 98-151 Education for Economic Security Act, Hearings before the Subcommittee on Education, Arts and Humanities of the Senate Committee on Labor and Human Resources, 98th Cong., 1st Sess. ง 825, (1974). I. Clarke, Art and Industry: Instruction in Drawing Applied to the Industrial and Fine Arts, S. Exec. Doc. No. 209, 46th Cong., 2d Sess., pt. 2 (1891). Other Federal Government Materials (in reverse chronological order) U. S. Dept. of Education, Office of Educational Research and Improvement, First Findings: The Educational Quality of the Workforce Employer Survey (Feb. 1995). Economic Report of the President 108 U. S. Dept. of Commerce, Statistical Abstract of the United ). U. S. Dept. of Education, Office of Educational Research and Improvement, Public School Education Financing for School Year 1989-90 ). Economic Report of the President 101 U. S. Dept. of Labor, Secretary's Commission on Achieving Necessary Skills, Skills and Tasks For Jobs: A SCANS Report for America 2000 *635 U. S. Dept. of Labor, Employment and Training Administration,Beyond the School Doors: The Literacy Needs of Job Seekers Served by the U. S. Department of Labor U. S. Dept. of Justice, Bureau of Justice Statistics, School Crime: A National Crime Victimization Survey Report ). U. S. Dept. of Commerce, Bureau of Census, 1990 Census of Population: Education in the United 474 U. S. Dept. of Justice, Office ofJuvenile Justice and Delinquency Prevention, Weapons in Schools, OJJDP Bulletin 1 ). U. S. Dept. of Labor, Bureau of Labor Statistics, Handbook of Labor Statistics 281, 561, 576 ). Bishop, Incentives for Learning: Why American High School Students Compare So Poorly to their Counterparts Overseas, in1 U. S. Dept. ofLabor, Commission on Workforce Quality & Labor Market Efficiency, Investing in People 1 Rumberger & Levin, Schooling for the Modern Workplace, in 1 U. S. Dept. of Labor, Commission on Workforce Quality & Labor Market Efficiency, Investing in People 85 U. S. Dept. of Education and U. S. Department of Labor, The Bottom Line: Basic Skills in the Workplace 12 (1988). U. S. Dept. of Labor, Employment and Training Administration, Estimating Educational Attainment of Future Employment Demand for ). U. S. Dept. of Health, Education, and Welfare, National Institute of Education, Violent SchoolsโSafe Schools: The Safe School Study Report to Congress ). *636 U. S. Dept. of Labor, Bureau of Apprenticeship, Apprenticeship Past and Present (1950) (U. S. Dept. of Labor (1950)). Other Readily Available Materials (in alphabetical order) Akin & Garfinkel, School Expenditures and the Economic Returns to Schooling, 12 J. Human Resources 462 (1977). American Council on Education, Business-Higher Education Forum, America's Competitive Challenge: |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | American Council on Education, Business-Higher Education Forum, America's Competitive Challenge: A Report to the President of the United Applebome, Employers Wary of School System, N. Y. Times, Feb. 20, 1995, p. A1, col. 1. Are Real Estate Firms Ready to Ride on the Infobahn?: Information Highway of Technology, 36 National Real Estate Investor, Oct. 1994, p. 6. Aring, What the `V' Word is Costing America's Economy: Vocational Education, 74 Phi Delta Kappan 396 G. Atkinson, The Economics of Education Becker, The Adam Smith Address: Education, Labor Force Quality, and the Economy, Business Economics, Jan. 1992, p. 7 ). G. Becker, Human Capital ). I. Berg, Education and Jobs: The Great Training Robbery (1970). Berryman, The Economy, Literacy Requirements, and AtRisk Adults, in Literacy and the Marketplace: Improving the Literacy of Low-Income Single Mothers 22 Bishop, Is the Test Score Decline Responsible for the Productivity Growth Decline?, 79 Am. Econ. Rev. 8 Bishop, High School Performance and Employee Recruitment, 13 J. Labor Research 41 Blackburn, What Can Explain the Increase in Earnings Inequality Among Males?, 29 Industrial Relations 441 *6 Boissiere, Knight, & Sabot, Earnings, Schooling, Ability and Cognitive Skills, 75 Am. Econ. Rev. 1016 A. Bolino, A Century of Human Capital by Education and Training (Bolino). Boyle, Expansion Management's Education Quotient, Economic Development Rev., Winter 1992, pp. 23-25 (Boyle). Brandel, Wake Up Get Smart, New England Business, May 1991, p. 46. Callahan & Rivara, Urban High School Yh and Handguns: A School-Based Survey, Card & Krueger, Does School Quality Matter? Returns to Education and the Characteristics of Public Schools in the United 100 J. Pol. Econ. 1 A. Carnevale, America and the New Economy: How New Competitive Standards are Radically Changing American Workplaces A. Carnevale and J. Porro, Quality Education: School Reform for the New American Economy 31-32 Center to Prevent Handgun Violence, Caught in the Crossfire: A Report on Gun Violence in our Nation's Schools Centers For Disease Control, Leads from the Morbidity and Mortality Weekly Report, Chubb & Hanushek, Reforming Educational Reform, in Setting National Priorities 213 (Chubb & Hanushek). J. Chubb & T. Moe, Politics, Markets, and America's Schools (Chubb & Moe). Coffee, Survey: Worker Skills, Training More Important in Site Selection, Site Selection, Apr. p. 296 (Coffee). E. Cohn, The Economics of Education (rev. ed. 1979). *638 Council on Competitiveness, Competitiveness Index 5 Council on Competitiveness, Elevating the Skills of the American Workforce Council on Competitiveness, Governing America: A Competitiveness Policy Agenda for The New Administration 33-39 R. Cyert & D. Mowery, Technology and Employment: Innovation and Growth in the U. S. Economy (1987) (Cyert & |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | and Growth in the U. S. Economy (1987) (Cyert & Mowery). J. Cynoweth, Enhancing Literacy for Jobs and Productivity: Council of State Policy and Planning Agencies Report J. Davis & J. Morrall, Evaluating Educational Investment (1974) (Davis & Morrall). Denison, Education and Growth, in Economics and Education 2 (Denison). M. Dertouzos, R. Lester, & R. Solow, MIT Commission on Industrial Productivity, Made In America: Regaining the Productive Edge A. DeYoung, Economics and American Education: A Historical and Critical Overview of the Impact of Economic Theories on Schooling in the United Downs, America's Educational Failures Will Hurt Real Estate, National Real Estate Investor, Aug. 1988, p. 34. Doyle, The Role of Private Sector Management in Public Education, 76 Phi Delta Kappan 128 Education and Economic Development (C. Anderson & M. Bowman eds. 1965). Education Commission of the Task Force on Education for Economic Growth, Action for Excellence Educational Testing Service, Developing the Skills and Knowledge of the Workforce *639 Finding What Really Works in Education, Chief Executive, May 1994, p. 48. Ganderton & Griffin, Impact of Child Quality on Earnings: The Productivity-of-Schooling Hypothesis, 11 Contemporary Policy Issues 39 Garver, "Success Story!": The Evolution of Economic Development in Broward County, Florida, 11 Economic Development Review 85 Gibbs, Schools for Profit, Time, Oct. 1994, p. 48 (Gibbs). Gintis, Education, Technology, and the Characteristics of Worker Productivity, 61 Am. Econ. Rev. 266 Glazer, A Human Capital Policy for the Cities, Public Interest, Summer p. 27. Glazer, Violence in Schools: Can Anything be Done to Curb the Growing Violence?, The CQ Researcher, Sept. 11, 1992, pp. 785-808. E. Gordon, J. Ponticell, & R. Morgan, Closing the Literacy Gap in American Business 23 (Gordon, Ponticell, & Morgan). E. Hanushek, Making Schools Work: Improving Performance and Controlling Costs (Hanushek). Henkoff, Where Will the Jobs Come From?, Fortune, Oct. 19, 1992, p. 58 (Henkoff). Herbert, Reading, Writing, Reloading, N. Y. Times, Dec. 14, 1994, p. A23, col. 1. Industry's New Schoolhouse, N. Y. Times, Jan. 9, 1994, section 4A, p. 22, col. 3, Education Life Supp. Introducing the EQ (Education Quotient), Expansion Management, Sept./Oct. 1991, pp. 18-24. Investment in Education: The Equity-Efficiency Quandary (T. Schultz ed. 1972). *640 Itzkoff, America's Unspoken Economic Dilemma: Falling Intelligence Levels, 18 J. Social, Pol. & Econ. Studies 311 Johnson, The Private Sector Should Help U. S. Schools, Financier, Sept. 1991, p. 34. Johnson & Stafford, Social Returns to Quantity and Quality of Schooling, 8 J. Human Resources 139 W. Johnston & A. Packer, Workforce 2000: Work and Workers for the Twenty-first Century (1987). Jorgenson, The Contribution of Education to U. S. Economic |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | (1987). Jorgenson, The Contribution of Education to U. S. Economic Growth, 1948-73, in Education and Economic Productivity 95 (E. Dean ed. 1984). Kirkland, Are Service Jobs Good Jobs?, Fortune, June 10, 1985, p. 38. J. Kozol, Illiterate America 13 J. Kozol, Where Stands the Republic? Illiteracy: A Warning and a Challenge to the Nation's Press 9 (1986). M. Levin & A. Shank, Educational Investment in an Urban Society: Costs, Benefits, and Public Policy (1970). Link & Ratledge, Social Returns to Quantity and Quality of Education: A Further Statement, 10 J. Human Resources 78 Lyne, The Skills Gap: U. S. Work-Force Woes Complicate Business-Location Equation, Site Selection, Aug. 1992, p. 642. MacCormack, Newman, & Rosenfield, The New Dynamics of Global Manufacturing Site Location, 35 Sloan Management Review, No. 4, p. 69 (MacCormack, Newman, & Rosenfield). F. Machlup, Education and Economic Growth (1970). Markey, The Labor Market Problems of Today's High School Drops, Monthly Labor Review, June 1988, p. 36. *641 Marshall, The Implications of Internationalization for Labor Market Institutions and Industrial Relations Systems, in Rethinking Employment Policy 205 (Marshall). R. Marshall & M. Tucker, Thinking for a Living: Work, Skills, and the Future of the American Economy 33 (Marshall & Tucker). Maturi, The Workforce Lure: Education/Training Carries More Weight in Siting Decisions, Industry Week, May 16, 1994, pp. 65-68 (Maturi). M. Maurice, F. Sellier, & J. Silvestre, The Social Foundations of Industrial Power: A Comparison of France and Germany (1986). Mikulecky, Job Literacy: The Relationship Between School Preparation and Workplace Actuality, Reading Research Quarterly 400 (1982). Mikulecky & Ehlinger, The Influence of Metacognitive Aspects of Literacy on Job Performance of Electronics Technicians, 18 J. Reading Behavior 41 (1986). MIT Commission on Industrial Productivity, Education and Training in the United : Developing the Human Resources We Need for Technological Advance and Competitiveness, in 2 Working Papers of the MIT Commission on Industrial Productivity (MIT). Mitchell, The Impact of International Trade on U. S. Employment, in American Labor in a Changing World Economy 5 Morgan & Sirageldin, A Note on the Quality Dimension in Education, 76 J. Pol. Econ. 1069 National Academy of Education, Economic Dimensions of Education (1979). National Center on Education and the Economy, America's Choice: High Skills or Low Wages! (National Center). *642 National Commission on Excellence in Education, A Nation at Risk 8-9 National Commission on Jobs and Small Business, Making America Work Again: Jobs, Small Business, and the International Challenge (1987). National Governor's Association, Making America Work 35-36, 77-96 (1987). National Institute of Justice, Research in Brief, J. Toby, Violence in Schools 3 National School Safety Center, Weapons |
Justice Souter | 1,995 | 20 | second_dissenting | United States v. Lopez | https://www.courtlistener.com/opinion/117927/united-states-v-lopez/ | Toby, Violence in Schools 3 National School Safety Center, Weapons in Schools Neef & Kask, Manufacturing Productivity and Labor Costs in 14 Economies, Monthly Labor Review, Dec. 1991, p. 24 (Neef & Kask). Neff, Recharging U. S. Competitiveness: Perhaps We Should Use Germany's Education System as a Benchmark, Industry Week, Jan. 20, 1992, p. 21. O'Connor, Education's Significance as Quality-of-Life Location Factor Parallels Nationwide Reformist Movement, Site Selection Handbook, Aug. 1988, p. 846. M. O'Donoghue, Economic Dimensions in Education Organisation for Economic Co-operation and Development, Education and the Economy in a Changing Society Overman, Skilled Lure New Business, HRMagazine, Jan. 1994, pp. 61-62 (Overman). Packer, Taking Action on the SCANS Report, Educational Leadership, Mar. 1992, p. 27. R. Perlman, The Economics of Education: Conceptual Problems and Policy Issues R. Price, Fighting Violence with `All the Mushy Stuff,' USA Today, May 9, 1994, p. 9A. D. Prothrow-Stith & M. Weissman, Deadly Consequences *643 G. Psacharopoulos, Returns to Education: An International Comparison M. Rasell & E. Appelbaum, Investment in Learning: An Assessment of the Economic Return Ray & Mickelson, Corporate Leaders, Resistant Yh, and School Reform in Sunbelt City: The Political Economy of Education, Social Problems 8 R. Reich, The Work of Nations D. Riddle, Service-Led Growth: The Role of the Service Sector in World Development (1986). W. Rorabaugh, The Craft Apprentice: From Franklin to the Machine Age in America (1986) (Rorabaugh). Rumberger & Daymont, The Economic Value of Academic and Vocational Training Acquired in High School, in Yh and the Labor Market 157 (M. Borus ed. 1984). Ruttenberg, The Limited Promise of Public Health Methodologies to Prevent Yh Violence, 103 Yale L. J. 1885 Ryscavage & Henle, Earnings Inequality Accelerates in the 1980's, Monthly Labor Review, Dec. 1990, p. 3. T. Schultz, Education and Productivity Schultz, Investment in Human Capital, American Economic Review, Mar. 1961, p. 3, reprinted in 1 Economics of Education 13 (Schultz (1961)). S. Seninger, Labor Force Policies for Regional Economic Development: The Role of Employment and Training Programs R. Seybolt, Apprenticeship & Apprenticeship Education in Colonial New England & New York (19) (Seybolt). Sheley, McGee, & Wright, Gun-Related Violence in and Around Inner-City Schools, 146 Am. J. Diseases in Children 677 (Sheley, McGee, & Wright). *644 Stone & Boundy, School Violence: The Need for a Meaningful Response, 28 Clearinghouse Review 453 Strane, Locating in Rural America Could be a Competitive Advantage, 12 Telemarketing, Oct. p. 92. R. Sturm, How Do Education and Training Affect a Country's Economic Performance? A Literature Survey A Survey of The Global Economy, The Economist, Oct. 1, 1994, p. (Survey of Global Economy). |
Justice Stewart | 1,977 | 18 | majority | Lockport v. Citizens for Community Action at Local Level, Inc. | https://www.courtlistener.com/opinion/109614/lockport-v-citizens-for-community-action-at-local-level-inc/ | New York law provides that a new county charter will go into effect only if it is approved in a referendum election by separate majorities of the voters who live in the cities within the county, and of those who live outside the cities. A three-judge Federal District Court held that these requirements violate the Equal Protection Clause of the Fourteenth Amendment. We noted probable jurisdiction of this direct appeal from the District Court's judgment under 28 U.S. C. 1253. I County government in New York has traditionally taken the form of a single-branch legislature, exercising general governmental powers. General governmental powers are also exercised by the county's constituent cities, villages, and towns. The allocation of powers among these subdivisions can be changed, and a new form of county government adopted, pursuant to referendum procedures specified in Art. IX of the New York Constitution[1] and implemented by 33 *261 of the Municipal Home Rule Law.[2] Under those procedures a county board of supervisors may submit a proposed charter to the voters for approval. If a majority of the voting city *262 dwellers and a majority of the voting noncity dwellers both approve, the charter is adopted.[3] In November 1972, a proposed charter for the county of Niagara was put to referendum. The charter created the new offices of County Executive and County Comptroller, and continued the county's existing power to establish tax rates, equalize assessments, issue bonds, maintain roads, and administer health and public welfare services. No explicit provision for redistribution of governmental powers from the cities or towns to the county government was made. The city voters approved the charter by a vote of 18,220 to 14,914. The noncity voters disapproved the charter by a vote of 11,594 to 10,665.[4] A majority of those voting in the entire county thus favored the charter.[5] *263 The appellees, a group of Niagara County voters, filed suit pursuant to 42 U.S. C. 1983 in the United States District Court for the Western District of New York, seeking a declaration that the New York constitutional and statutory provisions governing adoption of the charter form of county government are unconstitutional, and an order directing the appropriate New York officials to file the Niagara County charter as a duly enacted local law. A three-judge court was convened. Before its decision was announced, however, another new charter was put to referendum in Niagara County in November 1974. Again a majority of the city dwellers who voted approved the charter, a majority of the noncity voters disapproved it, and an aggregate majority of all those in the |
Justice Stewart | 1,977 | 18 | majority | Lockport v. Citizens for Community Action at Local Level, Inc. | https://www.courtlistener.com/opinion/109614/lockport-v-citizens-for-community-action-at-local-level-inc/ | it, and an aggregate majority of all those in the county who voted approved it.[6] The District Court subsequently found the concurrent-majority requirements of the New York Constitution and the New York Municipal Home Rule Law violative of the Equal Protection Clause of the Fourteenth Amendment, and ordered implementation of the 1972 Charter.[7] On appeal this Court vacated that judgment and remanded the cause "for reconsideration in light of the provisions of [the] new charter adopted by Niagara County in 1974." In subsequent proceedings on remand, the District Court found that there was "no substantial difference between the *264 two Charters" and that the 1974 County Charter had superseded the 1972 Charter.[8] Pursuant to its previous constitutional adjudication, the court decreed that the 1974 Charter "is in full force and effect as the instrument defining the form of local government for Niagara County."[9] II The impact of the Equal Protection Clause on the exercise of the electoral franchise under state law is hardly a novel concern of the federal judiciary. It was made clear more than 15 years ago in that the subject is a justiciable one, and ever since the seminal case of it has been established that the Equal Protection Clause cannot tolerate the disparity in individual voting strength that results when elected officials represent districts of unequal population, since "the fundamental *265 principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State."[10] In the case before us the District Court, though recognizing that "the precise issue here presented appears to be one of first impression," concluded that the rule of controlled its resolution. "Reasoning by analogy," the court held, in short, that the dual-majority requirement of New York law "is unconstitutional because it violates the one man, one vote principle." In assessing the correctness of the District Court's judgment it is thus appropriate to begin by recalling the basic rationale of the decisions of this Court in which that principle was first developed and applied. The rationale is, at bottom, so simple as to be almost self-evident. Beginning with cases in which the principle emerged involved challenges to state legislative apportionment systems that gave "the same number of representatives to unequal numbers of constituents." The Court concluded that in voting for their legislators, all citizens have an equal interest in representative democracy, and that the concept of equal protection therefore requires that their votes be given equal weight.[11] See, e. g., ; ; ; ; ; |
Justice Stewart | 1,977 | 18 | majority | Lockport v. Citizens for Community Action at Local Level, Inc. | https://www.courtlistener.com/opinion/109614/lockport-v-citizens-for-community-action-at-local-level-inc/ | equal weight.[11] See, e. g., ; ; ; ; ; ; The equal protection principles applicable in gauging the fairness of an election involving the choice of legislative representatives are of limited relevance, however, in analyzing the propriety of recognizing distinctive voter interests in a "single-shot" referendum. In a referendum, the expression of voter will is direct, and there is no need to assure that the voters' views will be adequately represented through their representatives in the legislature. The policy impact of a referendum is also different in kind from the impact of choosing representativesinstead of sending legislators off to the state capitol to vote on a multitude of issues, the referendum puts one discrete issue to the voters. That issue is capable, at least, of being analyzed to determine whether its adoption or rejection will have a disproportionate impact on an identifiable group of voters. If it is found to have such a disproportionate impact, the question then is whether a State can recognize that impact either by limiting the franchise to those voters specially affected or by giving their votes a special weight. This question has been confronted by the Court in two types of cases: those dealing with elections involving "special-interest" governmental bodies of limited jurisdiction, and those dealing with bond referenda. The Court has held that the electorate of a special-purpose unit of government, such as a water storage district, may be apportioned to give greater influence to the constituent groups found to be most affected by the governmental unit's functions. Salyer Land But the classification of voters into "interested" and "noninterested" groups must still be reasonably precise, as demonstrates. The Court assumed in that case that the voting constituency in school district elections could be limited to those "primarily interested *267 in school affairs," but concluded that the State's classification of voters on the asserted basis of that interest was so imprecise that the exclusion of otherwise qualified voters was impermissible.[12] In the bond referenda cases, the local government had either limited the electoral franchise to property owners, or weighted property owners' votes more heavily than those of nonproperty owners by using a "dual box" separate-majority approval system quite similar to the one at issue in the present case. ; ; In the Cipriano case, involving revenue bonds, it was apparent that all voters had an identity of interest in passage of the bond issue, and limitation of the electoral franchise to "property taxpayers" was, plainly, invidiously discriminatory. The other two cases, however, involved general obligation bonds. There, as in Salyer and Kramer, the validity |
Justice Stewart | 1,977 | 18 | majority | Lockport v. Citizens for Community Action at Local Level, Inc. | https://www.courtlistener.com/opinion/109614/lockport-v-citizens-for-community-action-at-local-level-inc/ | obligation bonds. There, as in Salyer and Kramer, the validity of the classification depended upon whether the group interests were sufficiently different to justify total or partial withholding of the electoral franchise from one of them. In support of the classifications, it was argued that property owners have a more substantial stake in the adoption of obligation bonds than do nonproperty owners, because the taxes of the former directly and substantially fund the bond obligation. The Court rejected that argument for limiting the electoral franchise, however, noting that nonproperty owners also share in the tax burden when the tax on rental property or commercial businesses is passed on in the form of higher prices. Although the interests of the two groups are concededly not *268 identical, the Court held that they are sufficiently similar to prevent a state government from distinguishing between them by artificially narrowing or weighting the electoral franchise in favor of the property taxpayers.[13] These decisions do not resolve the issues in the present case. Taken together, however, they can be said to focus attention on two inquiries: whether there is a genuine difference in the relevant interests of the groups that the state electoral classification has created; and, if so, whether any resulting enhancement of minority voting strength nonetheless amounts to invidious discrimination in violation of the Equal Protection Clause. III The argument that the provisions of New York law in question here are unconstitutional rests primarily on the premise that all voters in a New York county have identical interests in the adoption or rejection of a new charter, and that any distinction, therefore, between voters drawn on the basis of residence and working to the detriment of an identifiable class is an invidious discrimination. If the major premise were demonstrably correctif it were clear that all voters in Niagara County have substantially identical interests in the adoption of a new county charter, regardless of where they reside within the countythe District Court's judgment would have to be affirmed under our prior cases. That major premise, however, simply cannot be accepted. To the contrary, it appears that the challenged provisions of New York law rest on the State's identification of the distinctive interests of the residents of *269 the cities and towns within a county rather than their interests as residents of the county as a homogeneous unit. This identification is based in the realities of the distribution of governmental powers in New York, and is consistent with our cases that recognize both the wide discretion the States have in forming and allocating governmental tasks |
Justice Stewart | 1,977 | 18 | majority | Lockport v. Citizens for Community Action at Local Level, Inc. | https://www.courtlistener.com/opinion/109614/lockport-v-citizens-for-community-action-at-local-level-inc/ | discretion the States have in forming and allocating governmental tasks to local subdivisions, and the discrete interests that such local governmental units may have qua units. ; ; General-purpose local government in New York is entrusted to four different units: counties, cities, towns, and villages. The State is divided into 62 counties; each of the 57 counties outside of New York City is divided into towns, or towns and one or more cities. Villages, once formed, are still part of the towns in which they are located. The New York Legislature has conferred home rule and general governmental powers on all of these subdivisions, and their governmental activities may on occasion substantially overlap.[14] The cities often perform functions within their jurisdiction that the county may perform for noncity residents; similarly villages perform some functions for their residents that the town provides for the rest of the town's inhabitants. Historically towns provided their areas with major social services that more recently have been transferred to counties; towns exercise more regulatory power than counties; and both towns and counties can create special taxing and improvement districts to administer services. See 13 New York Temporary State Commission on the Constitutional Convention, Local Government 20 (1967). *270 Acting within a fairly loose state apportionment of political power, the relative energy and organization of these various subdivisions will often determine which one of them in a given area carries out the major tasks of local government. Since the cities have the greatest autonomy within this scheme, changes serving to strengthen the county structure may have the most immediate impact on the functions of the towns as deliverers of government services.[15] The provisions of New York law here in question clearly contemplate that a new or amended county charter will frequently operate to transfer "functions or duties" from the towns or cities to the county, or even to "abolish one or more offices, departments, agencies or units of government."[16] Although the 1974 Charter does not explicitly transfer governmental functions or duties from the towns to Niagara County, the executive-legislative form of government it provides would significantly enhance the county's organizational and service delivery capacity, for the purpose of "greater efficiency and responsibility in county government." Niagara County Charter, 1972. The creation of the offices of County Executive and Commissioner of Finance clearly reflects this purpose. Such anticipated organizational changes, no less than explicit transfers of functions, could effectively shift any pre-existing balance of power between town and county governments toward county predominance.[17] In terms of efficient delivery *271 of government services, such a shift might be |
Justice Stewart | 1,977 | 18 | majority | Lockport v. Citizens for Community Action at Local Level, Inc. | https://www.courtlistener.com/opinion/109614/lockport-v-citizens-for-community-action-at-local-level-inc/ | delivery *271 of government services, such a shift might be all to the good, but it may still be viewed as carrying a cost quite different for town voters and their existing town governments from that incurred by city voters and their existing city governments. The ultimate question then is whether, given the differing interests of city and noncity voters in the adoption of a new county charter in New York, those differences are sufficient under the Equal Protection Clause to justify the classifications made by New York law. ; Salyer Land ; If that question were posed in the context of annexation proceedings, the fact that the residents of the annexing city and the residents of the area to be annexed formed sufficiently different constituencies with sufficiently different interests could be readily perceived. The fact of impending union alone would not so merge them into one community of interest as constitutionally to require that their votes be aggregated in any referendum to approve annexation. Cf. Similarly a proposal that several school districts join to form a consolidated unit could surely be subject to voter approval in each constituent school district. Yet in terms of recognizing constituencies with separate and potentially opposing interests, the structural decision to annex or consolidate is similar in impact to the decision to restructure county government in New York. In each case, separate voter approval requirements are based on *272 the perception that the real and long-term impact of a restructuring of local government is felt quite differently by the different county constituent units that in a sense compete to provide similar governmental services. Voters in these constituent units are directly and differentially affected by the restructuring of county government, which may make the provider of public services more remote and less subject to the voters' individual influence. The provisions of New York law here in question no more than recognize the realities of these substantially differing electoral interests.[18] Granting to these provisions the presumption of constitutionality to which every duly enacted state and federal law is entitled,[19] we are unable to *273 conclude that they violate the Equal Protection Clause of the Fourteenth Amendment. For the reasons stated in this opinion the judgment is reversed. It is so ordered. THE CHIEF JUSTICE concurs in the judgment. |
Justice White | 1,986 | 6 | majority | Poland v. Arizona | https://www.courtlistener.com/opinion/111664/poland-v-arizona/ | The question presented is whether the Double Jeopardy Clause bars a further capital sentencing proceeding when, on appeal from a sentence of death, the reviewing court finds the evidence insufficient to support the only aggravating factor on which the sentencing judge relied, but does not find the evidence insufficient to support the death penalty. I In 1977 petitioners Patrick and Michael Poland, disguised as police officers, stopped a Purolator van that was making cash deliveries to various banks in northern Arizona. After removing some $281,000 in cash from the van, petitioners took the two Purolator guards to a lake and dumped them into the water in sacks weighted with rocks. Autopsies indicated *149 that the most probable cause of the guards' death was drowning, although one may have died of a heart attack. It was not possible to determine if the guards were drugged, but there was no evidence of a struggle. The jury disbelieved petitioners' alibi defense and convicted them of first-degree murder. Pursuant to former (A) (Supp. 1973), the trial judge then sat as sentencer in a separate proceeding. At the hearing, the prosecution, relying on the evidence presented at trial, argued that two statutory aggravating circumstances were present: (1) that petitioners had "committed the offense as consideration for the receipt, or in expectation of the receipt, of [something] of pecuniary value," former (E)(5) (Supp. 1973); and (2) that petitioners had "committed the offense in an especially heinous, cruel, or depraved manner," former (E)(6) (Supp. 1973). The trial judge made the following finding with respect to the "pecuniary gain" aggravating circumstance: "The court finds the aggravating circumstance in 13-454 E(3) [sic] is not present. This presumes the legislative intent was to cover a contract killing. If this presumption is inaccurate, the evidence shows the defendants received something of pecuniary value, cash in the amount of $281,000.00. "This, then, would be an aggravating circumstance." App. -16. The judge found that the "especially heinous, cruel, [or] depraved" aggravating circumstance was present, stating that the murders were "shockingly evil, insensate, and marked by debasement." Finding that this aggravating circumstance outweighed the mitigating evidence, the judge sentenced petitioners to death. On appeal, petitioners argued that the evidence was insufficient to support the judge's finding of the "especially heinous, cruel, or depraved" aggravating circumstance. They *0 also argued that the jury's verdict was tainted by a jury-room discussion of evidence not admitted at trial. The Arizona Supreme Court agreed that the jury's verdict was tainted, necessitating reversal and retrial. The court next held that the evidence on which the State relied at the |
Justice White | 1,986 | 6 | majority | Poland v. Arizona | https://www.courtlistener.com/opinion/111664/poland-v-arizona/ | that the evidence on which the State relied at the first sentencing hearing was insufficient to support a finding of the "especially heinous, cruel, or depraved" aggravating circumstance. Finally, the court stated that the trial court "mistook the law when it did not find that the defendants `committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.' " The court explained that this aggravating circumstance is not limited to situations involving contract killings, see and added that "[u]pon retrial, if the defendants are again convicted of first degree murder, the court may find the existence of this aggravating circumstance." 645 P. 2d, at 801. On remand, petitioners were again convicted of first-degree murder. At the sentencing hearing, the prosecution, relying on the evidence presented at the second trial and also presenting additional evidence, argued that the "pecuniary gain" and "especially heinous, cruel, or depraved" aggravating factors were present in each petitioner's case. The prosecution alleged a third aggravating circumstance in petitioner Patrick Poland's case: previous conviction of "a felony involving the use or threat of violence on another person," (E)(2) (Supp. 1973).[1] The trial judge found all of the aggravating circumstances alleged by the prosecution, and again sentenced both petitioners to death. *1 Petitioners argued on appeal, as they had at their second sentencing hearing, that the Double Jeopardy Clause barred reimposition of the death penalty. Their theory was that the Arizona Supreme Court's decision on their first appeal that the evidence failed to support the "especially heinous, cruel, or depraved" aggravating circumstance amounted to an "acquittal" of the death penalty. Cf. ; A majority of the Arizona Supreme Court rejected this argument, stating: "Our holding in Poland I was simply that the death penalty could not be based solely upon [the `especially heinous, cruel, or depraved'] aggravating circumstance because there was insufficient evidence to support it. This holding was not tantamount to a death penalty `acquittal.' " (Patrick), Accord, (Michael), The court found the evidence still insufficient to support the "especially heinous, cruel, or depraved" aggravating circumstance, but sufficient to support the "pecuniary gain" aggravating circumstance with respect to both defendants and the "prior conviction involving violence" circumstance with respect to Patrick Poland. (Patrick), at -406, 698 P.2d, at -201; accord, (Michael), After again reviewing and independently weighing the mitigating and aggravating circumstances, the court concluded that the death penalty was appropriate in each petitioner's case. We granted certiorari to consider whether reimposing the death penalties on petitioners violated the Double Jeopardy Clause. We hold that it did not. *2 |
Justice White | 1,986 | 6 | majority | Poland v. Arizona | https://www.courtlistener.com/opinion/111664/poland-v-arizona/ | Double Jeopardy Clause. We hold that it did not. *2 II In this Court held that a defendant sentenced to life imprisonment by a capital sentencing jury is protected by the Double Jeopardy Clause against imposition of the death penalty in the event that he obtains reversal of his conviction and is retried and reconvicted. The Court recognized the usual rule to be that when a defendant obtains reversal of his conviction on appeal, "the original conviction has been nullified and `the slate wiped clean.' Therefore, if the defendant is convicted again, he constitutionally may be subjected to whatever punishment is lawful, subject only to the limitation that he receive credit for time served." ). However, the Court found that its prior decisions had created an exception to this rule: "[T]he `clean slate' rationale. is inapplicable whenever a jury agrees or an appellate court decides that the prosecution has not proved its case."[2] Although it is usually "impossible to conclude that a sentence less than the statutory maximum `constitute[s] a decision to the effect that the government *3 has failed to prove its case,' " ), the Court found that by "enacting a capital sentencing procedure that resembles a trial on the issue of guilt or innocence, explicitly requires the jury to determine whether the prosecution has `proved its case,' "[3] Accordingly, the Court held that the jury's decision to sentence to life imprisonment after his first conviction should be treated as an "acquittal" of the death penalty under the Double Jeopardy Clause. Recently, the Court held that the rationale of applies to the Arizona capital sentencing scheme at issue in this case. [4] In Rumsey, the *4 trial judge erred in exactly the same way as the trial judge did at petitioners' first sentencing hearing in these cases, by construing the "pecuniary gain" aggravating circumstance as limited to "murder for hire" situations. Unlike the trial judge in this case, however, the trial judge in Rumsey found no aggravating circumstances, and entered a sentence of life This Court held that "[t]he double jeopardy principle relevant to [Rumsey's] case is the same as that invoked in : an acquittal on the merits by the sole decisionmaker in the proceeding is final and bars retrial on the same charge." Under and Rumsey, therefore, the relevant inquiry in the cases before us is whether the sentencing judge or the reviewing court has "decid[ed] that the prosecution has not proved its case" for the death penalty and hence has "acquitted" petitioners. III At no point during petitioners' first capital sentencing hearing and appeal did |
Justice White | 1,986 | 6 | majority | Poland v. Arizona | https://www.courtlistener.com/opinion/111664/poland-v-arizona/ | point during petitioners' first capital sentencing hearing and appeal did either the sentencer or the reviewing court hold that the prosecution had "failed to prove its case" that petitioners deserved the death penalty. Plainly, the sentencing judge did not acquit, for he imposed the death penalty. While the Arizona Supreme Court held that the sentencing judge erred in relying on the "especially heinous, cruel, or depraved" aggravating circumstance, it did not hold that the prosecution had failed to prove its case for the death penalty. Indeed, the court clearly indicated that there had been no such failure by remarking that "the trial court mistook the law when it did not find that the defendants `committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value,' " and that *5 "[u]pon retrial, if the defendants are again convicted of first degree murder, the court may find the existence of this aggravating circumstance," 645 P. 2d, at 800, 801. Petitioners argue, however, that the Arizona Supreme Court "acquitted" them of the death penalty by finding the "evidence [insufficient] to support the sole aggravating circumstances found by the sentencer." Brief for Petitioners 16. Petitioners' implicit argument is, first, that the sentencing judge "acquitted" them of the "pecuniary gain" aggravating circumstance, and second, that the Double Jeopardy Clause rendered this "acquittal" final, so that the evidence relating to this circumstance was effectively removed from the case at the time of petitioners' first appeal.[5] We reject the fundamental premise of petitioners' argument, namely, that a capital sentencer's failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an "acquittal" of that circumstance for double jeopardy purposes. indicates that the proper inquiry is whether the sentencer or reviewing court has "decided that the prosecution has not proved its case" that the death penalty is appropriate.[6] We are not prepared *6 to extend further and view the capital sentencing hearing as a set of minitrials on the existence of each aggravating circumstance. Such an approach would push the analogy on which is based past the breaking point. Aggravating circumstances are not separate penalties or offenses, but are "standards to guide the making of [the] choice" between the alternative verdicts of death and life Thus, under Arizona's capital sentencing scheme, the judge's finding of any particular aggravating circumstance does not of itself "convict" a defendant (i. e., require the death penalty), and the failure to find any particular aggravating circumstance does not "acquit" a defendant (i. e., preclude the death penalty). It is true that the sentencer |
Justice White | 1,986 | 6 | majority | Poland v. Arizona | https://www.courtlistener.com/opinion/111664/poland-v-arizona/ | preclude the death penalty). It is true that the sentencer must find some aggravating circumstance before the death penalty may be imposed, and that the sentencer's finding, albeit erroneous, that no aggravating circumstance is present is an "acquittal" barring a second death sentence proceeding. This is because "the law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that `even though innocent he may be found guilty.' " United This concern with protecting the finality of acquittals is not implicated when, as in these cases, a defendant is sentenced to death, i. e., "convicted." There is no cause to shield such a defendant from further litigation; further litigation is the only hope he has. The defendant may argue on appeal that the evidence presented at his sentencing hearing was as a matter of law insufficient to support the aggravating circumstances *7 on which his death sentence was based, but the Double Jeopardy Clause does not require the reviewing court, if it sustains that claim, to ignore evidence in the record supporting another aggravating circumstance which the sentencer has erroneously rejected. Such a rule would have the odd and unacceptable result of requiring a reviewing court to enter a death penalty "acquittal" even though that court is of the view that the State has "proved its case." Our decisions in Burks and do not support such a rule, which would certainly give the prosecution cause to "complain of prejudice." Burks, 437 U. S., We hold, therefore, that the trial judge's rejection of the "pecuniary gain" aggravating circumstance in this case was not an "acquittal" of that circumstance for double jeopardy purposes, and did not foreclose its consideration by the reviewing court. Furthermore, because the reviewing court did not find the evidence legally insufficient to justify imposition of the death penalty, there was no death penalty "acquittal" by that court. The Double Jeopardy Clause, therefore, did not foreclose a second sentencing hearing at which the "clean slate" rule applied. The judgment of the Supreme Court of Arizona is Affirmed. |
Justice Scalia | 2,006 | 9 | dissenting | Day v. McDonough | https://www.courtlistener.com/opinion/145664/day-v-mcdonough/ | The Court today disregards the Federal Rules of Civil Procedure (Civil Rules) in habeas corpus cases, chiefly because it believes that this departure will make no difference. See ante, at 209. Even if that were true, which it is not, I could not join this novel presumption against applying the Civil Rules. The Civil Rules "govern the procedure in the United States district courts in all suits of a civil nature." Rule 1. This includes "proceedings for habeas corpus," Rule 81(a)(2), but only "to the extent that the practice in such proceedings is not set forth in statutes of the United States [or] the Rules Governing Section 2254 Cases" (Habeas Rules), Civil Rule 81(a)(2); see also Habeas Rule 11. Thus, "[t]he Federal Rules of Civil Procedure apply in the context of habeas suits to the extent that they are not inconsistent with the Habeas Corpus Rules," and do not contradict or undermine the provisions of the habeas corpus statute, As the Court notes, the Civil Rules adopt the traditional forfeiture rule for unpleaded limitations defenses. See ante, at 207- (citing Rules 8(c), 12(b), (a)). The Court does not identify any "inconsisten[cy]" between this forfeiture rule and the statute, Rules, or historical practice of habeas proceedingsbecause there is none. Forfeiture of the limitations defense is demonstrably not inconsistent with traditional habeas practice, because, as the Court acknowledges, habeas practice included no statute of limitations until 1996. Ante, at 202, n. 1; see also infra, at 214-216. Forfeiture is perfectly consistent with Habeas Rule 5(b), which now provides that the State's "answer must state whether any *213 claim in the petition is barred by statute of limitations." (Emphasis added.) And forfeiture is also consistent with (and indeed, arguably suggested by) Habeas Rule 4, because Rule 4 provides for sua sponte screening and dismissal of habeas petitions only prior to the filing of the State's responsive pleading.[1] Most importantly, applying the forfeiture rule to the limitations period of 28 U.S. C. 2244(d) does not contradict or undermine any provision of the habeas statute. Quite the contrary, on its most natural reading, the statute calls for the forfeiture rule. AEDPA expressly enacted, without further qualification, "[a] 1-year period of limitation" for habeas applications by persons in custody pursuant to the judgments of state courts. 2244(d)(1) (emphasis added). We have repeatedly stated that the enactment of time-limitation periods such as that in 2244(d), without further elaboration, produces defenses that are nonjurisdictional and thus subject to waiver and forfeiture. See ; see also ; Absent some affirmative incompatibility with habeas practice, there is no reason why |
Justice Scalia | 2,006 | 9 | dissenting | Day v. McDonough | https://www.courtlistener.com/opinion/145664/day-v-mcdonough/ | affirmative incompatibility with habeas practice, there is no reason why a habeas limitations period should be any different. By imposing an unqualified "period of limitation" against the background understanding that a defense of "limitations" must be raised in the answer, see Civil Rules 8(c), 12(b), the statute implies that the usual forfeiture rule is applicable. *214 Instead of identifying an inconsistency between habeas corpus practice and the usual civil forfeiture rule, the Court urges that "it would make scant sense to distinguish in this regard AEDPA's time bar from other threshold constraints on federal habeas petitioners" that may be raised sua sponteante, at 209namely, exhaustion of state remedies, procedural default, nonretroactivity, and (prior to AEDPA) abuse of the writ. See ; But unlike AEDPA's statute of limitations, these defenses were all created by the habeas courts themselves, in the exercise of their traditional equitable discretion, see because they were seen as necessary to protect the interests of comity and finality that federal collateral review of state criminal proceedings necessarily implicates. See ; ; ; 5 Unlike these other defenses, no time limitationnot even equitable lacheswas imposed to vindicate comity and finality. AEDPA's 1-year limitations period is entirely a recent creature of statute. See ante, at 202, n. 1. If comity and finality did not compel any time limitation at all, it follows a fortiori that they do not compel making a legislatively created, forfeitable time limitation nonforfeitable. In fact, prior to the enactment of AEDPA, we affirmatively rejected the notion that habeas courts' traditionally broad discretionary powers would support their imposition of a time bar. Historically, "there [wa]s no statute of limitations governing federal habeas, and the only laches recognized [wa]s that which affects the State's ability to defend against the claims raised on habeas"which was imposed by *2 Rule, and not until ; see also United ; 17A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 4268.2, pp. 497-498 (hereinafter Wright & Miller). We repeatedly asserted that the passage of time alone could not extinguish the habeas corpus rights of a person subject to unconstitutional incarceration. See Pennsylvania ex rel. ; 354 U.S. 6, For better or for worse, this doctrine was so well entrenched that the lower courts regularly entertained petitions filed after even extraordinary delays. See, e. g., ; ; 845 F.2d 53, 53-55 And in when enactment of the former Habeas Rule 9(a) "introduce[d] for the first time an element of laches into habeas corpus," 17A Wright & Miller 4268.2, at 498by adopting the rule against "`prejudicial delay'" to which the Court refers, |
Justice Scalia | 2,006 | 9 | dissenting | Day v. McDonough | https://www.courtlistener.com/opinion/145664/day-v-mcdonough/ | the rule against "`prejudicial delay'" to which the Court refers, ante, at 202, n. 1even that limited doctrine was treated as subject to the very same pleading requirements and forfeiture rule that the Court rejects today for the stricter limitations period of 2244(d). See ; see also There is, therefore, no support for the notion that the traditional equitable discretion that governed habeas proceedings permitted the dismissal of habeas petitions on the sole ground of untimeliness. Whether or not it should have, see it did not. The Court's reliance on pre-existing equitable doctrines like procedural default and nonretroactivity is, therefore, utterly misplaced. Nothing in our tradition of refusing to dismiss habeas petitions as untimely *216 justifies the Court's decision to beef up the presumptively forfeitable "limitations period" of 2244(d) by making it the subject of sua sponte dismissal. In what appears to be the chief ground of its decision, the Court also observes that "the Magistrate Judge, instead of acting sua sponte, might have informed the State of its obvious computation error and entertained an amendment to the State's answer" under Civil Rule (a). Ante, at 209. Although "an amendment to the State's answer might have obviated this controversy," the Court concedes, "we see no dispositive difference between that route, and the one taken here." But this consideration cuts in the opposite direction. If there truly were no "dispositive difference" between following and disregarding the rules that Congress has enacted, the natural conclusion would be that there is no compelling reason to disregard the Civil Rules.[2] Legislatively enacted rules are surely entitled to more respect than this apparent presumption that, when nothing substantial hangs on the point, they do not apply as written. And, unlike the novel regime that the Court adopts today, which will apparently require the development of new rules from scratch, there already exists a well-developed body of law to govern the district courts' exercise of discretion under Rule *217 (a). See 6 Wright & Miller 1484-1488 Ockham is offended by today's decision, even if no one else is. But, in fact, there are at least two notable differences between the Civil Rules and the sua sponte regime of such cases as and Caspariboth of which involve sufficiently significant departures from ordinary civil practice as to require clear authorization from the statute, the Rules, or historical habeas practice. First, the regime allows the forfeited procedural defense to be raised for the first time on appeal, either by the State or by the appellate court sua sponte. See ; Ordinary civil practice does not allow a forfeited affirmative |
Justice Scalia | 2,006 | 9 | dissenting | Day v. McDonough | https://www.courtlistener.com/opinion/145664/day-v-mcdonough/ | ; Ordinary civil practice does not allow a forfeited affirmative defense whose underlying facts were not developed below to be raised for the first time on appeal. See ; Metropolitan Housing Development The ability to raise even constitutional errors in criminal trials for the first time on appeal is narrowly circumscribed. See Fed. Rule Crim. Proc. 52(b); United Comity and finality justified this departure from ordinary practice for historically rooted equitable defenses such as exhaustion. See But limitations was not such a defense. Also, and the like raise the possibility that the courts can impose a procedural defense over the State's affirmative decision to waive that defense. The Court takes care to point out that this is not such a case, ante, at 210-211, but it invites such cases in the future. After all, the principal justification for allowing such defenses to be raised sua sponte is that they "`implicat[e] values beyond the concerns of the parties,'" including "`judicial efficiency and conservation of judicial resources'" and "the expeditious handling of habeas proceedings." Ante, at 205, ). There are *218 many reasons why the State may wish to disregard the statute of limitations, including the simple belief that it would be unfair to impose the limitations defense on a particular defendant. On the Court's reasoning, a district court would not abuse its discretion in overriding the State's conscious waiver of the defense in order to protect such "`values beyond the concerns of the parties,'" ante, at 205.[3] Under the Civil Rules, by contrast, amending a party's pleading over his objection would constitute a clear abuse of the trial court's discretion. In sum, applying the ordinary rule of forfeiture to the AEDPA statute of limitations creates no inconsistency with the Habeas Rules. On the contrary, it is the Court's unwarranted *219 expansion of the timeliness rule enacted by Congress that is inconsistent with the statute, the Habeas Rules, the Civil Rules, and traditional practice. I would hold that the ordinary forfeiture rule, as codified in the Civil Rules, applies to the limitations period of 2244(d). I respectfully dissent. |
Justice White | 1,982 | 6 | concurring | Underwriters Assur. Co. v. NC Guaranty Assn. | https://www.courtlistener.com/opinion/110674/underwriters-assur-co-v-nc-guaranty-assn/ | I agree with much of the discussion in the majority opinion on the scope and function of the principles of res judicata. I also agree with the majority that "it is clear that the Rehabilitation Court had personal jurisdiction over all parties necessary to its determination that the North Carolina Association could not satisfy pre-rehabilitation claims out of the North Carolina deposit." Ante, at 711. The only parties over which the Indiana court needed jurisdiction in order to prohibit the Association from moving against the North Carolina deposit were the Association and Underwriters National Assurance Co. (UNAC). It had *717 jurisdiction over the latter in a rehabilitation proceeding, because Indiana was the State of incorporation; it had jurisdiction over the Association because, as the majority opinion amply demonstrates in Part I, the Association appeared before the court as a party and participated in the Rehabilitation Plan. With jurisdiction over UNAC and the Association, the Indiana court clearly had the authority to adjudicate the amount and character of the claim that the Association had against UNAC, including its claim against the North Carolina deposit. This is true regardless of the jurisdiction the Indiana court may or may not have had over any other parties with potential interests in the controversial deposit. There are at least two such parties: the trustees and the North Carolina policyholders. In my view, the Indiana court did not have jurisdiction to determine the interests of either of these parties in the controverted fund. Neither of these parties appeared before the Indiana court, and I am quite unconvinced that the Indiana court had jurisdiction over the North Carolina deposit in the sense that it could adjudicate the validity of or scale down the lien on that fund held by nonappearing North Carolina policyholders and trustees. I agree with the majority, therefore, that it is proper for this Court to reserve at least the issue of whether the trustees "have an interest in the deposit, independent of that asserted by the North Carolina Association, which was not considered by the Rehabilitation Court." Ante, at 716, n. 25. As for the policyholders, as I understand the opinion of the North Carolina court, under North Carolina law the Association was subrogated to the rights of the policyholders when it entered the service contract and undertook to make the policyholders whole. The policyholders thus no longer have an independent interest in the deposit.[*] See 48 N. C. App. 508, 518, *718 The authority of the Indiana court so to resolve the claims of the Association existed regardless of that court's jurisdiction |
Justice White | 1,982 | 6 | concurring | Underwriters Assur. Co. v. NC Guaranty Assn. | https://www.courtlistener.com/opinion/110674/underwriters-assur-co-v-nc-guaranty-assn/ | claims of the Association existed regardless of that court's jurisdiction over any particular asset of UNAC, including the North Carolina deposit. In a creditor received a judgment against a corporation in state court. While the creditor's claim was being litigated in state court, a federal court appointed a receiver of the corporation's property. This Court held that the judgment from the state court regarding the creditor's claim had to be recognized as res judicata in the federal court, despite the fact that neither the corporation nor the receiver had undertaken to defend in the state court. The Court adopted a two-fold distinction between control over claims and over assets: "In so far as [a court order] determines, or recognizes a prior determination of the existence and amount of the indebtedness of the defendant to the several creditors seeking to participate, it does not deal directly with any of the property. [This] function, which is spoken of as the liquidation of a claim, is strictly a proceeding in personam. There is no inherent reason why the adjudication of the liability of the debtor in personam may not be had in some court other than that which has control of the res." The reasoning of Riehle was specifically applied to judgments between States under the Full Faith and Credit Clause in : "[T]he distribution of assets of a debtor among creditors ordinarily has a `twofold aspect.' It deals `directly with the property' when it fixes the time and manner of distribution. But proof and allowance of claims are matters distinct from distribution." at 548-. Thus, in my view, jurisdiction over the deposit is simply not relevant to the question of the res judicata effect of the Indiana court's judgment as to the Association. *719 The Rehabilitation Plan fully determined the nature of the claim that the Association would have against UNAC and established the manner in which it could collect on those claims. Ante, at 698-700. That decision must be given res judicata effect by the North Carolina court vis-a-vis the Association, unless the Indiana court failed to follow the procedural requirements of the Due Process Clause. I believe those requirements were met in this case, and, therefore, I concur in the judgment of the Court reversing the decision below. |
Justice Rehnquist | 1,999 | 19 | dissenting | Dickinson v. Zurko | https://www.courtlistener.com/opinion/118302/dickinson-v-zurko/ | The issue in this case is whether, at the time of the enactment of the Administrative Procedure Act (APA or Act) over 50 years ago, judicial review of factfinding by the Patent and Trademark Office (PTO) under the "clearly erroneous" standard was an "additional requiremen[t] recognized by law." 5 U.S. C. 559. It is undisputed that, until today's decision, *171 both the patent bench and the patent bar had concluded that the stricter "clearly erroneous" standard was indeed such a requirement placed upon the PTO.[*] Agency factfinding was thus reviewed under this stricter standard; in my view, properly so, since the APA by its plain text was intended to bring some uniformity to judicial review of agencies by raising the minimum standards of review and not by lowering those standards which existed at the time. Section 12 of the APA, which was ultimately codified as 559, provided that "[n]othing in this Act shallbe held to diminish the constitutional rights of any person or to limit or repeal additional requirements imposed by statute or otherwise recognized by law." Pub. L. 404, 79th Cong., As a result, we must decide whether the "clearly erroneous" standard was indeed otherwise recognized by law in 1946. This case therefore turns on whether the 89 or so cases identified by the Court can be read as establishing a requirement placed upon agencies that was more demanding than the uniform minimum standards created by the APA. In making this determination, I would defer, not to agencies in general as the Court does today, but to the Court of Appeals for the Federal Circuit, the specialized Article III court charged with review of patent appeals. In this case the unanimous en banc Federal Circuit and the patent bar both agree that these cases recognized the "clearly erroneous" standard as an "additional requirement" placed on the PTO beyond the APA's minimum procedures. I see no reason to reject their sensible and plausible resolution of the issue. Nor do I agree with the Court, ante, at 154-155, that either the plain language of 559 or the original 12 impose any sort of "clear statement rule" on the common law. Section *172 12 of the APA expressly stated that requirements which predated the APA and were "otherwise recognized by law" were unaffected by the Act. If Congress had meant "otherwise recognized by law" to mean "clearly recognized by law," it certainly could have said so, but did not. I also reject the notion that 559's separate textual requirement that subsequent statutes superseding or modifying the APA must do so "expressly," 5 |
Justice Scalia | 2,005 | 9 | majority | Johanns v. Livestock Marketing Assn. | https://www.courtlistener.com/opinion/142895/johanns-v-livestock-marketing-assn/ | For the third time in eight years, we consider whether a federal program that finances generic advertising to promote an agricultural product violates the First Amendment In these cases, unlike the previous two, the dispositive question is whether the generic advertising at issue is the Government's own speech and therefore is exempt from First Amendment scrutiny I A The Beef Promotion and Research Act of 1985 (Beef Act or Act), announces a federal policy of promoting the marketing and consumption of "beef and beef products," using funds raised by an assessment on cattle sales and importation 7 US C 2901(b) The statute directs the Secretary of Agriculture to implement this policy by issuing a Beef Promotion and Research Order (Beef Order or Order), 2903, and specifies four key terms it must contain: The Secretary is to appoint a Cattlemen's Beef Promotion and Research Board (Beef Board or Board), whose members are to be a geographically representative group of beef producers and importers, nominated by trade associations 2904(1) The Beef Board is to convene an Operating Committee, composed of 10 Beef Board members and 10 representatives *554 named by a federation of state beef councils 2904(4)(A) The Secretary is to impose a $1-per-head assessment (or "checkoff") on all sales or importation of cattle and a comparable assessment on imported beef products 2904(8) And the assessment is to be used to fund beef-related projects, including promotional campaigns, designed by the Operating Committee and approved by the Secretary 2904(4)(B), (C) The Secretary promulgated the Beef Order with the specified terms The assessment is collected primarily by state beef councils, which then forward the proceeds to the Beef Board 7 CFR 1172(a)(5) [1] The Operating Committee proposes projects to be funded by the checkoff including promotion and research 1167(a) The Secretary or his designee (see 222(a)(1)(viii)(X), 279(a)(8)(xxxii)) approves each project and, in the case of promotional materials, the content of each communication 1168(e), 1169; App 114, 143 The Beef Order was promulgated in 1986 on a temporary basis, subject to a referendum among beef producers on whether to make it permanent 7 US C 2903, 2906(a) In May 1988, a large majority voted to continue it Since that time, more than $1 billion has been collected through the checkoff, and a large fraction of that sum has been spent on promotional projects authorized by the Beef Actmany using the familiar trademarked slogan "Beef It's What's for Dinner" App 50 In fiscal year 2000, for example, the Beef Board collected over $48 million in assessments and spent over $29 million on domestic promotion The Board |
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