author_name
stringclasses 26
values | year
int64 1.97k
2.02k
| label
int64 0
200
| category
stringclasses 5
values | case_name
stringlengths 9
127
| url
stringlengths 55
120
| text
stringlengths 1k
3.91k
|
|---|---|---|---|---|---|---|
Justice O'Connor | 1,984 | 14 | majority | Hawaii Housing Authority v. Midkiff | https://www.courtlistener.com/opinion/111196/hawaii-housing-authority-v-midkiff/ | federal courts should abstain from decision when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided. By abstaining in such cases, federal courts will avoid both unnecessary adjudication of federal questions and "needless friction with state policies" However, federal courts need not abstain on Pullman grounds when a state statute is not "fairly subject to an interpretation which will render unnecessary" adjudication of the federal constitutional question. See Pullman abstention is limited to uncertain questions of state law because "[a]bstention from the exercise of federal jurisdiction is the exception, not the rule." Colorado River Water Conservation In these cases, there is no uncertain question of state law. The Act unambiguously provides that "[t]he use of the power. to condemn is for a public use and purpose." Haw. Rev. Stat. 516-83(a)(12) (1977); see also 516-83(a)(10), (11), (13). There is no other provision of the Act or, for that matter, of Hawaii law which would suggest that *237 516-83(a)(12) does not mean exactly what it says. Since "the naked question, uncomplicated by [ambiguous language], is whether the Act on its face is unconstitutional," abstention from federal jurisdiction is not required. The dissenting judge in the Court of Appeals suggested that, perhaps, the state courts could make resolution of the federal constitutional questions unnecessary by their construction of the Act. See -812. In the abstract, of course, such possibilities always exist. But the relevant inquiry is not whether there is a bare, though unlikely, possibility that state courts might render adjudication of the federal question unnecessary. Rather, "[w]e have frequently emphasized that abstention is not to be ordered unless the statute is of an uncertain nature, and is obviously susceptible of a limiting construction." These statutes are not of an uncertain nature and have no reasonable limiting construction. Therefore, Pullman abstention is unnecessary.[4] B The dissenting judge also suggested that abstention was required under the standards articulated in Under Younger-abstention doctrine, interests of comity and federalism counsel federal courts to abstain from jurisdiction whenever federal claims have been or could be presented in ongoing state judicial proceedings that concern *238 important state interests. See Middlesex Ethics Younger abstention is required, however, only when state court proceedings are initiated "before any proceedings of substance on the merits have taken place in the federal court." In other cases, federal courts must normally fulfill their duty to adjudicate federal questions properly brought before them. In these cases, state judicial proceedings had not been initiated at the time proceedings of substance took place in federal |
Justice O'Connor | 1,984 | 14 | majority | Hawaii Housing Authority v. Midkiff | https://www.courtlistener.com/opinion/111196/hawaii-housing-authority-v-midkiff/ | at the time proceedings of substance took place in federal court. Appellees filed their federal court complaint in February 1979, asking for temporary and permanent relief. The District Court temporarily restrained HHA from proceeding against appellees' estates. At that time, no state judicial proceedings were in process. Indeed, in June 1979, when the District Court granted, in part, appellees' motion for a preliminary injunction, state court proceedings still had not been initiated. Rather, HHA filed its first eminent domain lawsuit after the parties had begun filing motions for summary judgment in the District Court in September 1979. Whether issuance of the February temporary restraining order was a substantial federal court action or not, issuance of the June preliminary injunction certainly was. See A federal court action in which a preliminary injunction is granted has proceeded well beyond the "embryonic stage," and considerations of economy, equity, and federalism counsel against Younger abstention at that point. The only extant proceedings at the state level prior to the September 1979 eminent domain lawsuit in state court were HHA's administrative hearings. But the Act clearly states that these administrative proceedings are not part of, and are not themselves, a judicial proceeding, for "mandatory arbitration shall be in advance of and shall not constitute any part of any action in condemnation or eminent domain." Haw. Rev. Stat. 516-51(b) Since Younger is not a *239 bar to federal court action when state judicial proceedings have not themselves commenced, see Middlesex County Ethics ; Fair Assessment in Real Estate abstention for HHA's administrative proceedings was not required. III The majority of the Court of Appeals next determined that the Act violates the "public use" requirement of the Fifth and Fourteenth Amendments. On this argument, however, we find ourselves in agreement with the dissenting judge in the Court of Appeals. A The starting point for our analysis of the Act's constitutionality is the Court's decision in In Berman, the Court held constitutional the District of Columbia Redevelopment Act of 1945. That Act provided both for the comprehensive use of the eminent domain power to redevelop slum areas and for the possible sale or lease of the condemned lands to private interests. In discussing whether the takings authorized by that Act were for a "public use," the Court stated: "We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the |
Justice O'Connor | 1,984 | 14 | majority | Hawaii Housing Authority v. Midkiff | https://www.courtlistener.com/opinion/111196/hawaii-housing-authority-v-midkiff/ | is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it *240 be Congress legislating concerning the District of Columbia. or the States legislating concerning local affairs. This principle admits of no exception merely because the power of eminent domain is involved." The Court explicitly recognized the breadth of the principle it was announcing, noting: "Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established." The "public use" requirement is thus coterminous with the scope of a sovereign's police powers. There is, of course, a role for courts to play in reviewing a legislature's judgment of what constitutes a public use, even when the eminent domain power is equated with the police power. But the Court in Berman made clear that it is "an extremely narrow" one. The Court in Berman cited with approval the Court's decision in Old Dominion v. United States, which held that deference to the legislature's "public use" determination is required "until it is shown to involve an impossibility." The Berman Court also cited to United States ex rel. which emphasized that "[a]ny departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their view *241 on that question at the moment of decision, a practice which has proved impracticable in other fields." In short, the Court has made clear that it will not substitute its judgment for a legislature's judgment as to what constitutes a public use "unless the use be palpably without reasonable foundation." United States v. Gettysburg Electric R. 160 U.S. 8, To be sure, |
Justice O'Connor | 1,984 | 14 | majority | Hawaii Housing Authority v. Midkiff | https://www.courtlistener.com/opinion/111196/hawaii-housing-authority-v-midkiff/ | v. Gettysburg Electric R. 160 U.S. 8, To be sure, the Court's cases have repeatedly stated that "one person's property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid." See, e. g., 281 U.S. ; Madisonville Traction v. St. Bernard Mining -252 ; Fallbrook Irrigation Thus, in Missouri Pacific R. v. Nebraska, where the "order in question was not, and was not claimed to be, a taking of private property for a public use under the right of eminent domain," the Court invalidated a compensated taking of property for lack of a justifying public purpose. But where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Cla See Rindge v. Los ; ; cf. On this basis, we have no trouble concluding that the Hawaii Act is constitutional. The people of Hawaii have attempted, much as the settlers of the original 13 Colonies did,[5] to reduce the perceived social and economic evils of a *242 land oligopoly traceable to their monarchs. The land oligopoly has, according to the Hawaii Legislature, created artificial deterrents to the normal functioning of the State's residential land market and forced thousands of individual homeowners to lease, rather than buy, the land underneath their homes. Regulating oligopoly and the evils associated with it is a classic exercise of a State's police powers. See Exxon v. Governor of Maryland, ; see also People of Puerto (CA1), cert. denied, We cannot disapprove of Hawaii's exercise of this power. Nor can we condemn as irrational the Act's approach to correcting the land oligopoly problem. The Act presumes that when a sufficiently large number of persons declare that they are willing but unable to buy lots at fair prices the land market is malfunctioning. When such a malfunction is signalled, the Act authorizes HHA to condemn lots in the relevant tract. The Act limits the number of lots any one tenant can purchase and authorizes HHA to use public funds to ensure that the market dilution goals will be achieved. This is a comprehensive and rational approach to identifying and correcting market failure. Of course, this Act, like any other, may not be successful in achieving its intended goals. But "whether in fact the provision will accomplish its objectives is not the question: the [constitutional requirement] is satisfied if the [state] Legislature rationally could have believed that the [Act] would promote its objective." Western & Southern Life |
Justice O'Connor | 1,984 | 14 | majority | Hawaii Housing Authority v. Midkiff | https://www.courtlistener.com/opinion/111196/hawaii-housing-authority-v-midkiff/ | the [Act] would promote its objective." Western & Southern Life Ins. v. State Bd. of Equalization, ; see also Minnesota v. Clover Leaf Creamery 4 ; When the legislature's purpose is legitimate and its *243 means are not irrational, our cases make clear that empirical debates over the wisdom of takings no less than debates over the wisdom of other kinds of socioeconomic legislation are not to be carried out in the federal courts. Redistribution of fees simple to correct deficiencies in the market determined by the state legislature to be attributable to land oligopoly is a rational exercise of the eminent domain power. Therefore, the Hawaii statute must pass the scrutiny of the Public Use Cla[6] B The Court of Appeals read our cases to stand for a much narrower proposition. First, it read our "public use" cases, especially Berman, as requiring that government possess and use property at some point during a taking. Since Hawaiian lessees retain possession of the property for private use throughout the condemnation process, the court found that the Act exacted takings for private -797. Second, it determined that these cases involved only "the review of congressional determination[s] that there was a public use, not the review of state legislative determination[s]." Because state legislative determinations are involved in the instant cases, the Court of Appeals decided that more rigorous judicial scrutiny of the public use determinations was appropriate. The court concluded that the Hawaii Legislature's professed purposes were mere "statutory rationalizations." We disagree with the Court of Appeals' analysis. The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private *244 purpose. The Court long ago rejected any literal requirement that condemned property be put into use for the general public. "It is not essential that the entire community, nor even any considerable portion, directly enjoy or participate in any improvement in order [for it] to constitute a public " Rindge v. Los "[W]hat in its immediate aspect [is] only a private transaction may be raised by its class or character to a public affair." As the unique way titles were held in Hawaii skewed the land market, exercise of the power of eminent domain was justified. The Act advances its purposes without the State's taking actual possession of the land. In such cases, government does not itself have to use property to legitimate the taking; it is only the taking's purpose, and not its mechanics, that must pass scrutiny under the Public Use |
Justice O'Connor | 1,984 | 14 | majority | Hawaii Housing Authority v. Midkiff | https://www.courtlistener.com/opinion/111196/hawaii-housing-authority-v-midkiff/ | its mechanics, that must pass scrutiny under the Public Use Cla Similarly, the fact that a state legislature, and not the Congress, made the public use determination does not mean that judicial deference is less appropriate.[7] Judicial deference is required because, in our system of government, legislatures are better able to assess what public purposes should be advanced by an exercise of the taking power. State legislatures are as capable as Congress of making such determinations within their respective spheres of authority. See 348 U. S., Thus, if a legislature, state or federal, determines there are substantial reasons for an exercise of the taking power, courts must defer to its determination that the taking will serve a public *245 IV The State of Hawaii has never denied that the Constitution forbids even a compensated taking of property when executed for no reason other than to confer a private benefit on a particular private party. A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void. But no purely private taking is involved in these cases. The Hawaii Legislature enacted its Land Reform Act not to benefit a particular class of identifiable individuals but to attack certain perceived evils of concentrated property ownership in Hawaii a legitimate public purpose. Use of the condemnation power to achieve this purpose is not irrational. Since we assume for purposes of these appeals that the weighty demand of just compensation has been met, the requirements of the Fifth and Fourteenth Amendments have been satisfied. Accordingly, we reverse the judgment of the Court of Appeals, and remand these cases for further proceedings in conformity with this opinion. It is so ordered. JUSTICE MARSHALL took no part in the consideration or decision of these cases. |
Justice Kennedy | 2,007 | 4 | dissenting | Cunningham v. California | https://www.courtlistener.com/opinion/145761/cunningham-v-california/ | The dissenting opinion by Justice ALITO, which I join in full, well explains why the Court continues in a wrong and unfortunate direction in the cases following See, e.g., United ; ; ; see also ; The discussion in his dissenting opinion is fully sufficient to show why, in my respectful view, the Court's analysis and holding are mistaken. It does seem appropriate to add this brief, further comment. In my view the line of cases remains incorrect. Yet there may be a principled rationale permitting those cases to control within the central sphere of their concern, while reducing the collateral, widespread harm to the criminal justice system and the corrections process now resulting from the Court's wooden, unyielding insistence on expanding the doctrine far beyond its necessary boundaries. The Court could distinguish between sentencing enhancements based on the nature of the offense, where the principle would apply, and sentencing enhancements based on the nature of the offender, where it would not. California attempted to make this initial distinction. Compare Cal. Rule of Court 4.421(a) (Criminal Cases) (West 2006) (listing aggravating "[f]acts relating to the crime"), with Rule 4.421(b) (listing aggravating "[f]acts relating to the defendant"). The Court should not foreclose its efforts. California, as the Court notes, experimented earlier with an indeterminate sentencing system. Ante, at 858. The State reposed vast power and discretion in a nonjudicial agency to set a release date for convicted felons. That system, it seems, would have been untouched by When the State sought to reform its system, it might have chosen to give its judges the authority to sentence to a maximum but to depart downward for unexplained reasons. That too, by considerable irony, would be untouched by Instead, California sought to use a system based on guided discretion. the Court holds today, forecloses this option. As dissenting opinions have suggested before, the Constitution ought not to be interpreted to strike down all aspects of sentencing systems that grant judicial discretion with some legislative direction and control. Judges and legislators must have the capacity to develop consistent standards, standards that individual juries empaneled for only a short time cannot elaborate in any permanent way. See, e.g., (opinion of O'Connor, J.); (opinion of KENNEDY, J.) (explaining that "[s]entencing guidelines are a prime example of [the] collaborative process" between courts and legislatures). Judges and sentencing officials have a broad view and long-term commitment to correctional systems. Juries do not. Judicial officers and corrections professionals, under the guidance and control of the legislature, should be encouraged to participate in an ongoing manner to improve the various |
Justice Kennedy | 2,007 | 4 | dissenting | Cunningham v. California | https://www.courtlistener.com/opinion/145761/cunningham-v-california/ | to participate in an ongoing manner to improve the various sentencing schemes in our country. This system of guided discretion would be permitted to a large extent if the Court confined the rule to sentencing *873 enhancements based on the nature of the offense. These would include, for example, the fact that a weapon was used; violence was employed; a stated amount of drugs or other contraband was involved; or the crime was motivated by the victim's race, gender, or other status protected by statute. Juries could consider these matters without serious disruption because these factors often are part of the statutory definition of an aggravated crime in any event and because the evidence to support these enhancements is likely to be a central part of the prosecution's case. On the other hand, judicial determination is appropriate with regard to factors exhibited by the defendant. These would include, for example, prior convictions; cooperation or noncooperation with law enforcement; remorse or the lack of it; or other aspects of the defendant's history bearing upon his background and contribution to the community. This is so even if the relevant facts were to be found by the judge by a preponderance of the evidence. These are facts that should be taken into account at sentencing but have little if any significance for whether the defendant committed the crime. See Berman & Bibas, Making Sentencing Sensible, 4 Ohio St. J.Crim. L. 37, 55-57 (2006). The line between offense and offender would not always be clear, but in most instances the nature of the offense is defined in a manner that ensures the problem of categories would not be difficult. suffers from a similar line-drawing problem between facts that must be considered by the jury and other considerations that a judge can take into account. The main part of the holding could be retained with far less systemic disruption. It is to be regretted that the Court's decision today appears to foreclose consideration of this approach or other reasonable efforts to develop systems of guided discretion within the general constraint that imposes. |
Justice Brennan | 1,986 | 13 | majority | Lee v. Illinois | https://www.courtlistener.com/opinion/111681/lee-v-illinois/ | Petitioner and a codefendant, charged with committing a double murder, were tried jointly in a bench trial. Neither defendant testified at trial. In finding petitioner guilty as charged, the trial judge expressly relied on portions of the co-defendant's confession, obtained by police at the time of arrest, as substantive evidence against petitioner. The question for decision is whether such reliance by the judge upon the codefendant's confession violated petitioner's rights as secured by the Confrontation Clause of the Sixth Amendment,[1] as applied to the through the Fourteenth Amendment. *532 I In February 12, police officers of East St. Louis asked petitioner Millie Lee to come to the police station to help identify a badly burned body that the police had discovered in an apartment in the housing complex in which Lee lived. While Lee was examining photographs of the body, a detective noticed that she began to cry. The detective advised Lee of her Miranda rights, and began to question her about the whereabouts of her aunt, Mattie Darden,[2] with whom Lee shared an apartment. After giving a number of confused and conflicting accounts concerning when she had last seen or talked to her aunt, Lee finally admitted that she and her boyfriend, Edwin Thomas, had been involved in the stabbing of both Aunt Beedie and her friend, Odessa Harris, and that the body was her Aunt Beedie's. At that point, the officers questioning Lee again read her her Miranda rights, placed her under arrest, and continued to question her. After concluding their interview with Lee, the police presented her with a typewritten account of her statement, which included at the top of the first page a recitation and waiver of her Miranda rights. Lee read and signed each page of the confession. Petitioner's codefendant, Edwin Thomas, arrived at the police station, ostensibly for "questioning" about the homicides, while police officers were still in the process of interviewing Lee; nonetheless, the police apparently were sufficiently informed of Thomas' involvement such that upon his arrival, he was read his rights and confronted by an officer with his alleged participation in the murders. Thomas indicated at that point that he "wanted to think about" whether to talk to the police. During her questioning by the police, Millie Lee had asked to see Edwin Thomas; after being advised of his rights, Thomas asked if he could see Lee. After they obtained Lee's confession, the police allowed the two to meet. Lee *533 and Thomas were permitted to kiss and to hug, and one of the officers then asked Lee, in the presence of |
Justice Brennan | 1,986 | 13 | majority | Lee v. Illinois | https://www.courtlistener.com/opinion/111681/lee-v-illinois/ | of the officers then asked Lee, in the presence of Thomas, "what was the statement you had just given us implicating Edwin?" Lee said to Thomas: "They know about the whole thing, don't you love me Edwin, didn't you in fact say that we wouldn't let one or the other take the rap alone." Brief for Respondent 6. At that point, Thomas gave a statement to the police, which was later typed and then presented to Thomas for his review and signature. According to Lee's statement, on the evening of February 11, 12, she and Thomas were at home in the apartment that Lee shared with Aunt Beedie when the aunt and her friend Odessa Harris arrived at approximately 8:30 or 9 p.m. Aunt Beedie and Odessa went into the bedroom, while Lee did the dishes in the kitchen. Thomas, who had been watching television, joined Lee in the kitchen, and the two apparently had "two or three words not really an argument." Odessa then came out of the bedroom to the kitchen and asked "what the hell was going on." As related in Lee's confession, Odessa "said we ought to be ashamed of ourselves arguing and making all that noise. I told her it was none of her business that she didn't live here." Odessa returned to the bedroom. App. 6. As Lee's account further related, after Odessa returned to the bedroom Lee called her back into the kitchen in order to confirm whether Aunt Beedie had "really" paid the rent. Odessa assured Lee that the rent had indeed been paid, and then complained once more about the fact that Lee and Thomas had been arguing. As Odessa left the kitchen to return to the bedroom, she passed Thomas and gave him "dirty looks." When Odessa turned her head Thomas got up from his chair and stabbed Odessa in the back with a 24-inch-long knife. Odessa fell on the floor, and called out to Aunt Beedie. Lee explained that she then "ran, well I don't know if I ran or walked into the bedroom. Edwin was standing over by the kitchen cabinet with the knife in his hand with blood on it. Odessa was *534 laying there moaning. When I went into the bedroom my aunt Beety was sitting on the bed and then she got up and had a knife in her hand. I don't know where the knife came from, my aunt usually kept her gun by her bed. I don't know what kind of gun it is. When my aunt got up off the bed she |
Justice Brennan | 1,986 | 13 | majority | Lee v. Illinois | https://www.courtlistener.com/opinion/111681/lee-v-illinois/ | is. When my aunt got up off the bed she told me to get out of her way or she would kill me and then she swung at me with the knife. I ran into the kitchen and got a butcher knife that was sitting on the kitchen table and then I went back into the bedroom where my aunt was and then I stabbed her. I kept stabbing her. The first time I stabbed her, I hit her in the chest, I kept stabbing her and I really don't know where else I stabbed her, I had my eyes closed some of the time." Lee's statement also included an account of some of the circumstances leading up to the killing: "Me, and Edwin had talked about stop[p]ing aunt Mattie from harassing me before. She would come in drunk or would get on the phone and tell people that I never did anything for her that I wouldn't give her anything to eat, or anything since I had a boyfriend. Edwin used to get mad when my aunt would talk about me and that he couldn't take much more of what my auntie was doing, that when he began talking about doing something to aunt Beetty [sic] but he never said what. Odessa was always jumping up in my face and one time about a month ago me and Odessa got into an argument about my dress that I let Odessa use and Edwin seen her get in my face that time. He, Edwin just couldn't stand to see my auntie or Odessa harass me anymore. Things just kept adding up and adding up and the night that we killed Odessa and my aunt Beetty [sic] Edwin just couldn't take anymore." Thomas' confession paralleled Lee's in several respects. It described the argument between himself and Lee, the confrontation *535 with Odessa in the kitchen, and the stabbings of Odessa and then Aunt Beedie. However, Thomas' statement provided an altogether different version of how he and Lee came to commit the murders. Most significantly, Thomas stated that he and Lee had previously discussed killing Aunt Beedie, and referred to conversations immediately prior to the murders that suggested a premeditated plan to kill. According to Thomas, after Odessa scolded Lee for arguing with Thomas: "This is when I asked [Lee] `did she still want to go through with it?' I was referring to what we had plained [sic] before about killing Aunt Beedie. We had talked about doing something to Aunt Beedie, but we had not figure out just what we would |
Justice Brennan | 1,986 | 13 | majority | Lee v. Illinois | https://www.courtlistener.com/opinion/111681/lee-v-illinois/ | but we had not figure out just what we would do. We had never before discussed doing anything to Odessa just Aunt Beedie, because we were tired of Aunt Beedie getting drunk, and coming home and `going off' on [Lee]. After asking [Lee], `did she still want to do it?' [Lee] first gave me a funny look, as though she was not going to do it, she stared into space for awhile, then she looked at me and said, `yes.' "We decided that if we did something to Aunt Beedie, we had to do something [sic] with Odessa. We wanted Odessa to leave, but she stayed there. We had plained [sic] that [Lee] was suppose [sic] to get Odessa to stand, with her back toward the front room, looking into the kitchen, while I would grab her from the back, using the big knife." Lee's statement, by contrast, suggested that it was Thomas who had been provoked by Aunt Beedie's behavior and Thomas who had snapped the night of the murders. Her statement made no mention of an alleged decision by herself and Thomas to "go through with it," nor, of course, did it indicate that the two had formulated a plan to induce Odessa to return to the kitchen where Thomas would kill her. On *536 the contrary, Lee asserted that on the night of the killings "Edwin just couldn't take anymore." Lee and Thomas were charged in a two-count indictment with murder. Count one charged them with the murder of Aunt Beedie, and count two with the murder of Odessa. They were appointed separate counsel for trial. On the day of trial, counsel for the two defendants withdrew motions for severance and for trial by jury. In withdrawing the motion for separate trials, counsel for Thomas explained that "[s]ince we are having a Bench Trial, the Court would only consider the evidence proper to each defendant, we feel that there is no longer any need for that motion." The court then asked petitioner's lawyer whether that was her understanding as well. She replied: "Yes, your Honor. I have conferred with Miss Lee. We would ask the Court to consider the evidence separately for each defendant." The judge replied: "It will be done that way." Tr. 3. Neither defendant testified at trial, except on behalf of their respective motions to suppress their statements on the ground that they were given involuntarily, motions that were denied by the trial judge. At trial both the prosecution and the defendants relied heavily on the confessions. In closing, counsel for petitioner called the |
Justice Brennan | 1,986 | 13 | majority | Lee v. Illinois | https://www.courtlistener.com/opinion/111681/lee-v-illinois/ | on the confessions. In closing, counsel for petitioner called the court's attention to Lee's confession, and argued that it showed that Lee was "not responsible for the death of Odessa Harris. As I read her statement, she was not personally involved in the stabbing of Odessa Harris. Mr. Thomas was." Counsel maintained that under Illinois law, in order to be guilty of murder a person must be involved before or during the commission of the offense, and that Lee's confession simply could not fairly be read to support such a finding. With respect to Aunt Beedie's killing, counsel urged the court to consider the lesser charge of voluntary manslaughter. According to counsel, Lee's statement indicated that Aunt Beedie had had *537 a knife, that Lee and Aunt Beedie had struggled, and that the stabbing occurred as a result of that struggle. Counsel suggested that Lee had acted either upon the "unreasonable belief that her act of stabbing Mattie Darden constituted self-defense" or, in the alternative, that the killing "was the result of a sudden and intense passion resulting from serious provocation." Brief for Petitioner 5. In rebuttal, the prosecutor described Lee's arguments in support of lesser offenses as "interesting." He answered the suggestion that the evidence showed insufficient intent to support murder by asserting that "once you read the confession of Millie Lee, you will note that she indicates in her statement that before anything begins, that she and Edwin spoke together at which time Edwin asked her, `Are you ready?' And she, after thinking awhile, said, `Yes.' " The prosecutor maintained that this exchange, which he incorrectly attributed to Lee's statement, and which had in fact appeared only in Thomas' confession, demonstrated a willingness on the part of Lee to "go through with whatever plan" the two had formulated with respect to the victims, and thus that there had been an agreement to kill. The State also argued in closing again erroneously drawing from Thomas', not Lee's, confession that Lee "did in fact aid and assist and encourage this whole operation, by drawing Odessa out of the bedroom"; the prosecutor argued that this was evident from Thomas' statement that it was necessary to kill Odessa in order to go ahead with the plan to kill Aunt Beedie. To prove Lee's intent to kill and to rebut her theories of self-defense and sudden and intense passion, the State pointed to Thomas' assertion that he had asked Lee if she was willing to go through with what they had talked about, and her reply "I'm scared, but I will |
Justice Brennan | 1,986 | 13 | majority | Lee v. Illinois | https://www.courtlistener.com/opinion/111681/lee-v-illinois/ | talked about, and her reply "I'm scared, but I will go through with it."[3] Tr. 236. *538 In finding Lee guilty of the murders of Aunt Beedie and Odessa, and explaining why he rejected Lee's assertions that she had not participated in the killing of Odessa and that she acted either in self-defense or under intense and sudden passion with respect to the stabbing of Aunt Beedie, the trial judge expressly relied on Thomas' confession and his version of the killings, particularly with respect to the decision to kill Aunt Beedie allegedly made earlier by Lee and Thomas. Lee's contentions, the judge declared, were "disputed by the statement of her co-defendant, who stated that he asked Miss Lee do you want to go through with it. A previously conceived plan to dispose of Miss Darden. And after some thinking she responded that she did. There is no showing that they acted under a sudden and intense passion, in fact prior to the stabbing, according to his own confession, the defendant took a knife and awaited the arrival of Miss Harris into the kitchen, in fact had his co-defendant call her so she could come out. Now that isn't a sudden and intense passion." App. 25. Lee was sentenced to a term of 40 years' incarceration for the murder of Odessa, and life imprisonment for the murder of Aunt Beedie. On appeal, Lee contended, among other things, that her Confrontation Clause rights were violated by the trial court's consideration of Thomas' confession against her. The state appeals court conceded that the trial court considered Thomas' confession in finding Lee guilty, but held that since the defendants' confessions were "interlocking," they did not fall within the rule of which, the court stated, was that the "admission of a codefendant's extrajudicial statement that inculpates the *539 other defendant violates the defendant's Sixth Amendment right to confront witnesses against him." The court did not explain what it meant by saying that the confessions were "interlocking," how the confessions interlocked, or how or why the analysis would be altered when confessions did interlock. The Illinois Supreme Court denied leave to appeal. We granted certiorari. II The State of Illinois concedes that this case involves the use of a codefendant's confession as substantive evidence against petitioner. Brief for Respondent 9. Illinois also correctly recognizes that the admissibility of the evidence as a matter of state law is not the issue in this case; rather, it properly identifies the question presented to be "whether that substantive use of the hearsay confession denied Petitioner rights guaranteed her under |
Justice Brennan | 1,986 | 13 | majority | Lee v. Illinois | https://www.courtlistener.com/opinion/111681/lee-v-illinois/ | of the hearsay confession denied Petitioner rights guaranteed her under the Confrontation Clause." It contends, in essence, that Lee's Sixth Amendment rights were not violated because Thomas was unavailable and his statement was "reliable" enough to warrant its untested admission into evidence against Lee. See We need not address the question of Thomas' availability, for we hold that Thomas' statement, as the confession of an accomplice, was presumptively unreliable and that it did not bear sufficient independent "indicia of reliability" to overcome that presumption. A In this Court unanimously held that the Confrontation Clause was applicable to the and in doing so, remarked that it "cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him." Citing and quoting from such cases as In re Oliver, and we observed that "[t]here are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in the expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Pointer, On one level, the right to confront and cross-examine adverse witnesses contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails. To foster such a system, the Constitution provides certain safeguards to promote to the greatest possible degree society's interest in having the accused and accuser engage in an open and even contest in a public trial. The Confrontation Clause advances these goals by ensuring that convictions will not be based on the charges of unseen and unknown and hence unchallengeable individuals. But the confrontation guarantee serves not only symbolic goals. The right to confront and to cross-examine witnesses is primarily a functional right that promotes reliability in criminal trials. In we identified how the mechanisms of confrontation and cross-examination advance the pursuit of truth in criminal trials. Confrontation, we noted, "(1) insures that the witness will give his statements under oath thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the `greatest legal engine ever invented for the discovery of truth'; (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness making his statement, thus aiding the jury in assessing his credibility" (footnote omitted). *541 Our |
Justice Brennan | 1,986 | 13 | majority | Lee v. Illinois | https://www.courtlistener.com/opinion/111681/lee-v-illinois/ | the jury in assessing his credibility" (footnote omitted). *541 Our cases recognize that this truthfinding function of the Confrontation Clause is uniquely threatened when an accomplice's confession is sought to be introduced against a criminal defendant without the benefit of cross-examination. As has been noted, such a confession "is hearsay, subject to all the dangers of inaccuracy which characterize hearsay generally. More than this, however, the arrest statements of a co-defendant have traditionally been viewed with special suspicion. Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant's statements about what the defendant said or did are less credible than ordinary hearsay evidence." Thus, in we reversed a conviction because a confession purportedly made by the defendant's accomplice was read to the jury by the prosecutor. Because the accomplice in that case, while called to the witness stand, invoked his privilege against self-incrimination and refused to answer questions put to him, we held that the defendant's "inability to cross-examine [the accomplice] as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause." This holding, on which the Court was unanimously agreed, was premised on the basic understanding that when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination. Over the years since Douglas, the Court has spoken with one voice in declaring presumptively unreliable accomplices' confessions that incriminate defendants. Even Justice Harlan, who was generally averse to what he regarded as an expansive reading of the confrontation right, stated that he "would be prepared to hold as a matter of due process that a confession of an accomplice resulting from formal police interrogation cannot be introduced as evidence of the guilt of *542 an accused, absent some circumstances indicating authorization or adoption." Our ruling in illustrates the extent of the Court's concern that the admission of this type of evidence will distort the truthfinding process. In we held that the Confrontation Clause rights of the petitioner were violated when his codefendant's confession was admitted at their joint trial, despite the fact that the judge in that case had carefully instructed the jury that the confession was admissible only against the codefendant. We based our decision in on the fact that a confession that incriminates an accomplice is so "inevitably suspect" and "devastating" that the ordinarily sound assumption that a jury will be able to follow faithfully its instructions could not be applied. Although in the |
Justice Brennan | 1,986 | 13 | majority | Lee v. Illinois | https://www.courtlistener.com/opinion/111681/lee-v-illinois/ | faithfully its instructions could not be applied. Although in the present case the state court apparently relied on in reaching its decision, this is not strictly speaking a case because we are not here concerned with the effectiveness of limiting instructions in preventing spill-over prejudice to a defendant when his codefendant's confession is admitted against the codefendant at a joint trial. Rather, this case is strikingly similar to Douglas. Here, as in Douglas, the State sought to use hearsay evidence as substantive evidence against the accused. In both cases, the hearsay in question was a confession made by an alleged accomplice, and in neither case was the defendant able to confront and cross-examine the declarant. Whatever differences there are between the cases show clearly that in the present case the Confrontation Clause concerns are of even greater consequence than in Douglas. In Douglas, the accomplice's confession was read by the prosecutor to the un-cooperative declarant in order to "refresh [his] recollection," and was thus technically not evidence that was admitted against the accused; in the present case, Thomas' statement was, of course, admitted into evidence by *543 the judge following a suppression hearing. Moreover, here, unlike Douglas, it is not necessary to speculate as to whether the factfinder would consider the uncross-examined hearsay; the judge expressly so relied. In this case the Court does not address a hypothetical. The danger against which the Confrontation Clause was erected the conviction of a defendant based, at least in part, on presumptively unreliable evidence actually occurred. B Illinois contends that Thomas' statement bears sufficient "indicia of reliability" to rebut the presumption of unreliability that attaches to codefendants' confessions, citing as support our decision in While we agree that the presumption may be rebutted, we are not persuaded that it has been in this case. In we recognized that even if certain hearsay[4] evidence does not fall within "a firmly rooted hearsay exception" and is thus presumptively unreliable and inadmissible for Confrontation Clause purposes, it may nonetheless meet Confrontation Clause reliability standards if it is supported by a "showing of particularized guarantees of trustworthiness." However, we also emphasized that "[r]eflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that `there is no material departure from the reason of the general rule.' " *544 quoting Illinois' asserted grounds for holding Thomas' statement to be reliable with respect to Lee's culpability simply do not meet this standard.[5] First, contrary to Illinois' contention, |
Justice Brennan | 1,986 | 13 | majority | Lee v. Illinois | https://www.courtlistener.com/opinion/111681/lee-v-illinois/ | do not meet this standard.[5] First, contrary to Illinois' contention, the circumstances surrounding the confession do not rebut the presumption that Thomas' statement could not be trusted as regards Lee's participation in the murders. When Thomas was taken in for questioning and read his rights he refused to talk to the police. The confession was elicited only after Thomas was told that Lee had already implicated him and only after he was implored by Lee to share "the rap" with her. The unsworn statement was given in response to the questions of police, who, having already interrogated Lee, no doubt knew what they were looking for, and the statement was not tested in any manner by contemporaneous cross-examination by counsel, or its equivalent. Although, as the State points out, the confession was found to be voluntary for Fifth Amendment purposes, such a finding does not bear on the question of whether the confession was also free from any desire, motive, or impulse Thomas may have had either to mitigate the appearance of his own culpability by spreading the blame or to overstate Lee's involvement in retaliation for her having implicated him in the murders. It is worth noting that the record indicates that Thomas not only had a theoretical motive to distort the facts to Lee's detriment, but that he also was actively considering the possibility of becoming her adversary: prior to trial, Thomas contemplated becoming a witness for the State against Lee. This record evidence documents a reality of the criminal process, namely, that once partners in a crime recognize that the "jig is up," they tend to *545 lose any identity of interest and immediately become antagonists, rather than accomplices. We also reject Illinois' second basis for establishing reliability, namely, that because Lee's and Thomas' confessions "interlock" on some points, Thomas' confession should be deemed trustworthy in its entirety. Obviously, when co-defendants' confessions are identical in all material respects, the likelihood that they are accurate is significantly increased. But a confession is not necessarily rendered reliable simply because some of the facts it contains "interlock" with the facts in the defendant's statement. See The true danger inherent in this type of hearsay is, in fact, its selective reliability. As we have consistently recognized, a codefendant's confession is presumptively unreliable as to the passages detailing the defendant's conduct or culpability because those passages may well be the product of the codefendant's desire to shift or spread blame, curry favor, avenge himself, or divert attention to another. If those portions of the codefendant's purportedly "interlocking" statement which bear to any |
Justice Brennan | 1,986 | 13 | majority | Lee v. Illinois | https://www.courtlistener.com/opinion/111681/lee-v-illinois/ | of the codefendant's purportedly "interlocking" statement which bear to any significant degree on the defendant's participation in the crime are not thoroughly substantiated by the defendant's own confession, the admission of the statement poses too serious a threat to the accuracy of the verdict to be countenanced by the Sixth Amendment. In other words, when the discrepancies between the statements are not insignificant, the codefendant's confession may not be admitted. In this case, the confessions overlap in their factual recitations to a great extent. However, they clearly diverge with respect to Lee's participation in the planning of her aunt's death, Lee's facilitation of the murder of Odessa, and certain factual circumstances relevant to the couple's premeditation. For example, Lee's confession states that Thomas was "talking about doing something to aunt Beetty [sic] but he never said what," App. 12, and does not refer at all to the joint plan to *546 do "something to Aunt Beedie" which Thomas repeatedly mentions in his confession. Nor does Lee's confession give any indication that Lee and Thomas colluded to "do something [sic] with Odessa," as does Thomas' statement. Lee states that she called Odessa into the kitchen only to discuss the rent and that Thomas assaulted Odessa after Odessa had left the kitchen, given Thomas a "dirty loo[k]," and was walking toward the bedroom. By contrast, Thomas indicates that "[Lee] was suppose [sic] to get Odessa to stand, with her back toward the front room, looking into the kitchen" so that Thomas could stab her from the back, and that he actually attacked Odessa while she was in the kitchen at Lee's beckoning. Finally, there are certain factual discrepancies in the two statements which bear on Lee's alleged pre-existing intent to kill the two women. For example, Thomas states that the couple had thought to put on gloves before the killings, while Lee states that they put on gloves only to dispose of the bodies. The subjects upon which these two confessions do not "interlock" cannot in any way be characterized as irrelevant or trivial. The discrepancies between the two go to the very issues in dispute at trial: the roles played by the two defendants in the killing of Odessa, and the question of premeditation in the killing of Aunt Beedie. In sum, we are not convinced that there exist sufficient "indicia of reliability," flowing from either the circumstances surrounding the confession or the "interlocking" character of the confessions, to overcome the weighty presumption against the admission of such uncross-examined evidence. We therefore hold that on the record before us, there is |
Justice Burger | 1,981 | 12 | concurring | University of Texas v. Camenisch | https://www.courtlistener.com/opinion/110470/university-of-texas-v-camenisch/ | I join the Court's opinion, but I consider it important to emphasize several aspects of the case, especially as to the regulations. It is undisputed that the University stood willing to permit respondent to have a sign-language interpreter present in the classroom at respondent's expense, and in fact had allowed that for some time prior to the filing of this lawsuit. It is also undisputed that the University's refusal to pay for an *399 interpreter was based solely on the fact that respondent did not meet the University's established income criteria for financial assistance to graduate students.[*] The Court's opinion, of course, is not to be read as intimating that respondent has any likelihood of success on the merits of his claim. The Court holds no more than that, since there has been no trial, respondent has a right to present evidence in support of his claim. The trial court must, among other things, decide whether the federal regulations at issue, which go beyond the carefully worded nondiscrimination provision of 504, exceed the powers of the Secretary under 504. The Secretary has no authority to rewrite the statutory scheme by means of regulations. Southeastern Community ; see also Pennhurst State School & Hospital v. Halderman, ante, at 17 ("[I]f Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously"). |
Justice White | 1,985 | 6 | dissenting | Shea v. Louisiana | https://www.courtlistener.com/opinion/111355/shea-v-louisiana/ | Last Term, in we held that the rule announced by the Court in should not be applied retroactively in collateral attacks on criminal convictions. We concluded that the prophylactic purpose of the Edwards rule, the justifiable failure of police and prosecutors to foresee the Court's decision in Edwards, and the substantial disruption of the criminal justice system that retroactive application of Edwards would entail all indicated the wisdom of holding Edwards nonretroactive. Today, however, the majority concludes that notwithstanding the substantial reasons for restricting the application of Edwards to cases involving interrogations that postdate the Court's opinion in Edwards, the Edwards rule must be applied retroactively to all cases in which the process of direct appeal had not yet been completed when Edwards was decided. In so holding, the majority apparently adopts a rule long advocated by a shifting minority in United : namely, the rule that any new constitutional decision except, perhaps, one that constitutes a "clear break with the past" must be applied to all cases pending on direct appeal at the time it is handed down. *62 Two concerns purportedly underlie the majority's decision. The first is that retroactivity is somehow an essential attribute of judicial decisionmaking, and that when the Court announces a new rule and declines to give it retroactive effect, it has abandoned the judicial role and assumed the function of a legislature or, to use the term Justice Harlan employed in describing the problem, a "super-legislature." The second (and not completely unrelated) concern is fairness. It is the business of a court, the majority reasons, to treat like cases alike; accordingly, it is unfair for one litigant to receive the benefit of a new decision when another, identically situated, is denied the same benefit. The majority's concerns are no doubt laudable, but I cannot escape the conclusion that the rule they have spawned makes no sense. As a means of avoiding what has come to be known as the super-legislature problem, the rule announced by the majority is wholly inadequate. True, the Court is not and cannot be a legislature, super or otherwise. But I should think that concerns about the supposed usurpation of legislative authority by this Court generally go more to the substance of the Court's decisions than to whether or not they are retroactive. Surely those who believe that the Court has overstepped the bounds of its legitimate authority in announcing a new rule of constitutional law will find little solace in a decision holding the new rule retroactive. If a decision is in some sense illegitimate, |
Justice White | 1,985 | 6 | dissenting | Shea v. Louisiana | https://www.courtlistener.com/opinion/111355/shea-v-louisiana/ | rule retroactive. If a decision is in some sense illegitimate, making it retroactive is a useless gesture that will fool no one. If, on the other hand, the decision is a salutary one, but one whose purposes are ill-served by retroactive application, retroactivity may be worse than useless, imposing costs on the criminal justice system that will likely be uncompensated for by any perceptible gains in "judicial legitimacy." The futility of this latest attempt to use retroactivity doctrine to avoid the super-legislature difficulty is highlighted by *63 the majority's unwillingness to commit itself to the logic of its position. For even as it maintains that retroactivity is essential to the judicial function, today's majority, like the majority in continues to hold out the possibility that a "really" new rule one that marks a clear break with the past may not have to be applied retroactively even to cases pending on direct review at the time the new decision is handed down. See ante, at 57 and 59, n. 5; Of course, if the majority were truly concerned with the super-legislature problem, it would be "clear break" decisions that would trouble it the most. Indeed, one might expect that a Court as disturbed about the problem as the majority purports to be would swear off such decisions altogether, not reserve the power both to issue them and to decline to apply them retroactively. In leaving open the possibility of an exception for "clear break" decisions, the majority demonstrates the emptiness of its proposed solution to the super-legislature problem. The claim that the majority's rule serves the interest of fairness is equally hollow. Although the majority finds it intolerable to apply a new rule to one case on direct appeal but not to another, it is perfectly willing to tolerate disparate treatment of defendants seeking direct review of their convictions and prisoners attacking their convictions in collateral proceedings. As I have stated before, see ; it seems to me that the attempt to distinguish between direct and collateral challenges for purposes of retroactivity is misguided. Under the majority's rule, otherwise identically situated defendants may be subject to different constitutional rules, depending on just how long ago now-unconstitutional conduct occurred and how quickly cases proceed through the criminal justice system. The disparity is no different in kind from that which occurs when the benefit of a new constitutional rule is retroactively afforded to the defendant in whose *64 case it is announced but to no others; the Court's new approach equalizes nothing except the numbers of defendants within the disparately treated |
Justice White | 1,985 | 6 | dissenting | Shea v. Louisiana | https://www.courtlistener.com/opinion/111355/shea-v-louisiana/ | nothing except the numbers of defendants within the disparately treated classes. The majority recognizes that the distinction between direct review and habeas is problematic, but justifies its differential treatment by appealing to the need to draw "the curtain of finality," ante, at 60, on those who were unfortunate enough to have exhausted their last direct appeal at the time Edwards was decided. Yet the majority offers no reasons for its conclusion that finality should be the decisive factor. When a conviction is overturned on direct appeal on the basis of an Edwards violation, the remedy offered the defendant is a new trial at which any inculpatory statements obtained in violation of Edwards will be excluded. It is not clear to me why the majority finds such a burdensome remedy more acceptable when it is imposed on the State on direct review than when it is the result of a collateral attack. The disruption attendant upon the remedy does not vary depending on whether it is imposed on direct review or habeas;[1] accordingly, *65 if the remedy must be granted to defendants on direct appeal, there is no strong reason to deny it to prisoners attacking their convictions collaterally. Conversely, if it serves no worthwhile purpose to grant the remedy to a defendant whose conviction was final before Edwards, it is hard to see why the remedy should be available on direct review. The underlying flaw of the majority's opinion is its failure to articulate the premises on which the retroactivity doctrine it announces actually rests. In recognizing that a decision marking a clear break from the past may not be retroactive and in holding that the concern of finality trumps considerations of fairness that might otherwise dictate retroactivity in collateral proceedings, the majority implicitly recognizes that there is in fact more at issue in decisions involving retroactivity than treating like cases alike. In short, the majority recognizes that there are reasons why certain decisions ought not be retroactive. But the rules the majority announces fail to reflect any thoughtful inquiry into what those reasons might be. By contrast, the principles of retroactivity set forth in and most recently applied in provide a rational framework for thinking about the question whether retroactive application of any particular decision makes sense that is, whether the benefits of retroactivity outweigh its costs. Because the Court has already determined *66 that the relevant considerations set forth in Linkletter (the purpose of the new rule, the extent of law enforcement officials' justifiable reliance on the prior rule, and the effects on the criminal justice system |
Justice Kennedy | 2,013 | 4 | majority | Fisher v. University of Texas at Austin | https://www.courtlistener.com/opinion/931125/fisher-v-university-of-texas-at-austin/ | The University of Texas at Austin considers race as one of various factors in its undergraduate admissions process. Race is not itself assigned a numerical value for each ap- plicant, but the University has committed itself to increasing racial minority enrollment on campus. It refers to this goal as a “critical mass.” Petitioner, who is Cauca- sian, sued the University after her application was re- jected. She contends that the University’s use of race in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The parties asked the Court to review whether the judgment below was consistent with “this Court’s deci- sions interpreting the Equal Protection Clause of the Four- teenth Amendment, including v. Bollinger, 539 U.S. 306” Pet. for Cert. i. The Court concludes that the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in and Regents of Univ. of Cal. v. 438 U.S. 265, 305 (1978) Because the Court of Appeals did not apply the correct standard of strict 2 FISHER v. UNIVERSITY OF TEXAS AT AUSTIN Opinion of the Court scrutiny, its decision affirming the District Court’s grant of summary judgment to the University was incorrect. That decision is vacated, and the case is remanded for further proceedings. I A Located in Austin, Texas, on the most renowned campus of the Texas state university system, the University is one of the leading institutions of higher education in the Na- tion. Admission is prized and competitive. In 2008, when petitioner sought admission to the University’s entering class, she was 1 of 29,501 applicants. From this group 12,843 were admitted, and 6,715 accepted and enrolled. Petitioner was denied admission. In recent years the University has used three different programs to evaluate candidates for admission. The first is the program it used for some years before 1997, when the University considered two factors: a numerical score reflecting an applicant’s test scores and academic perform- ance in high school (Academic Index or AI), and the applicant’s race. In this system was held unconsti- tutional by the United States Court of Appeals for the Fifth Circuit. It ruled the University’s consideration of race violated the Equal Protection Clause because it did not further any compelling government interest. Hopwood v. Texas, The second program was adopted to comply with the Hopwood decision. The University stopped considering race in admissions and substituted instead a new holistic metric of a candidate’s potential contribution to the Uni- versity, to be used in conjunction with the Academic In- dex. This “Personal Achievement Index” (PAI) measures a |
Justice Kennedy | 2,013 | 4 | majority | Fisher v. University of Texas at Austin | https://www.courtlistener.com/opinion/931125/fisher-v-university-of-texas-at-austin/ | Academic In- dex. This “Personal Achievement Index” (PAI) measures a student’s leadership and work experience, awards, extra- curricular activities, community service, and other special circumstances that give insight into a student’s back- Cite as: 570 U. S. (2013) 3 Opinion of the Court ground. These included growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the appli- cant, and the general socioeconomic condition of the stu- dent’s family. Seeking to address the decline in minority enrollment after Hopwood, the University also expanded its outreach programs. The Texas State Legislature also responded to the Hop wood decision. It enacted a measure known as the Top Ten Percent Law, codified at (West 2009). Also referred to as H. B. 588, the Top Ten Percent Law grants automatic admission to any pub- lic state college, including the University, to all students in the top 10% of their class at high schools in Texas that comply with certain standards. The University’s revised admissions process, coupled with the operation of the Top Ten Percent Law, resulted in a more racially diverse environment at the University. Before the admissions program at issue in this case, in the last year under the post-Hopwood AI/PAI system that did not consider race, the entering class was 4.5% African- American and 16.9% Hispanic. This is in contrast with the pre-Hopwood and Top Ten Percent regime, when race was explicitly considered, and the University’s enter- ing freshman class was 4.1% African-American and 14.5% Hispanic. Following this Court’s decisions in v. Bollinger, and the University adopted a third admissions program, the 2004 program in which the University reverted to explicit con- sideration of race. This is the program here at issue. In the Court upheld the use of race as one of many “plus factors” in an admissions program that considered the overall individual contribution of each candidate. In by contrast, the Court held unconstitutional Michi- gan’s undergraduate admissions program, which automat- 4 FISHER v. UNIVERSITY OF TEXAS AT AUSTIN Opinion of the Court ically awarded points to applicants from certain racial minorities. The University’s plan to resume race-conscious admis- sions was given formal expression in June 2004 in an in- ternal document entitled Proposal to Consider Race and Ethnicity in Admissions (Proposal). Supp. App. 1a. The Proposal relied in substantial part on a study of a subset of undergraduate classes containing between 5 and 24 students. It showed that few of these classes had signifi- cant enrollment by members of racial minorities. In addi- tion the Proposal relied on what it |
Justice Kennedy | 2,013 | 4 | majority | Fisher v. University of Texas at Austin | https://www.courtlistener.com/opinion/931125/fisher-v-university-of-texas-at-austin/ | minorities. In addi- tion the Proposal relied on what it called “anecdotal” reports from students regarding their “interaction in the classroom.” The Proposal concluded that the University lacked a “critical mass” of minority students and that to remedy the deficiency it was necessary to give explicit consideration to race in the undergraduate admissions program. To implement the Proposal the University included a student’s race as a component of the PAI score, begin- ning with applicants in the fall of 2004. The University asks students to classify themselves from among five predefined racial categories on the application. Race is not assigned an explicit numerical value, but it is undisputed that race is a meaningful factor. Once applications have been scored, they are plotted on a grid with the Academic Index on the x-axis and the Personal Achievement Index on the y-axis. On that grid students are assigned to so-called cells based on their individual scores. All students in the cells falling above a certain line are admitted. All students below the line are not. Each college—such as Liberal Arts or Engineering— admits students separately. So a student is considered initially for her first-choice college, then for her second choice, and finally for general admission as an undeclared major. Petitioner applied for admission to the University’s 2008 Cite as: 570 U. S. (2013) 5 Opinion of the Court entering class and was rejected. She sued the University and various University officials in the United States Dis- trict Court for the Western District of Texas. She alleged that the University’s consideration of race in admissions violated the Equal Protection Clause. The parties cross- moved for summary judgment. The District Court granted summary judgment to the University. The United States Court of Appeals for the Fifth Circuit affirmed. It held that required courts to give substantial deference to the University, both in the definition of the compelling interest in diversity’s benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal. Applying that standard, the court upheld the Uni- versity’s admissions plan. Over the dissent of seven judges, the Court of Appeals denied petitioner’s request for rehearing en banc. See 644 F.3d 301, 303 (per curiam). Petitioner sought a writ of certiorari. The writ was granted. 565 U. S. (2012). B Among the Court’s cases involving racial classifications in education, there are three decisions that directly ad- dress the question of considering racial minority status as a positive or favorable factor in a university’s admissions process, with the goal of achieving the educational benefits of a more diverse student |
Justice Kennedy | 2,013 | 4 | majority | Fisher v. University of Texas at Austin | https://www.courtlistener.com/opinion/931125/fisher-v-university-of-texas-at-austin/ | of achieving the educational benefits of a more diverse student body: ; and We take those cases as given for purposes of deciding this case. We begin with the principal opinion authored by Justice Powell in In the Court considered a system used by the medical school of the University of California at Davis. From an entering class of 100 stu- dents the school had set aside 16 seats for minority appli- cants. In holding this program impermissible under the Equal Protection Clause Justice Powell’s opinion stated 6 FISHER v. UNIVERSITY OF TEXAS AT AUSTIN Opinion of the Court certain basic premises. First, “decisions based on race or ethnic origin by faculties and administrations of state universities are reviewable under the Fourteenth Amend- ment.” The principle of equal protection admits no “artificial line of a ‘two- class theory’ ” that “permits the recognition of special wards entitled to a degree of protection greater than that accorded others.” It is therefore irrelevant that a system of racial preferences in admissions may seem benign. Any racial classification must meet strict scrutiny, for when government decisions “touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.” Next, Justice Powell identified one compelling interest that could justify the consideration of race: the interest in the educational benefits that flow from a diverse student body. Redressing past discrimination could not serve as a compelling interest, because a university’s “broad mission [of] education” is incompatible with making the “judicial, legislative, or administrative findings of constitutional or statutory violations” necessary to justify remedial racial classification. at 307–309. The attainment of a diverse student body, by contrast, serves values beyond race alone, including enhanced class- room dialogue and the lessening of racial isolation and stereotypes. The academic mission of a university is “a special concern of the First Amendment.” Part of “ ‘the business of a university [is] to provide that atmosphere which is most conducive to speculation, exper- iment, and creation,’ ” and this in turn leads to the ques- tion of “ ‘who may be admitted to study.’ ” (Frankfurter, J., concurring in judgment). Justice Powell’s central point, however, was that this Cite as: 570 U. S. (2013) 7 Opinion of the Court interest in securing diversity’s benefits, although a per- missible objective, is complex. “It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of |
Justice Kennedy | 2,013 | 4 | majority | Fisher v. University of Texas at Austin | https://www.courtlistener.com/opinion/931125/fisher-v-university-of-texas-at-austin/ | student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though im- portant element.” (separate opinion). In and the Court endorsed the precepts stated by Justice Powell. In Grut ter, the Court reaffirmed his conclusion that obtaining the educational benefits of “student body diversity is a compel- ling state interest that can justify the use of race in uni- versity admissions.” As and observed, however, this follows only if a clear precondition is met: The particular admis- sions process used for this objective is subject to judicial review. Race may not be considered unless the admissions process can withstand strict scrutiny. “Nothing in Justice Powell’s opinion in signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis.” “To be narrowly tailored, a race-conscious admissions program cannot use a quota system,” but instead must “remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application,” Strict scru- tiny requires the university to demonstrate with clarity that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary to the accomplishment of its purpose.” 8 FISHER v. UNIVERSITY OF TEXAS AT AUSTIN Opinion of the Court (internal quotation marks omitted). While these are the cases that most specifically address the central issue in this case, additional guidance may be found in the Court’s broader equal protection jurispru- dence which applies in this context. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people,” Rice v. Cayetano, 528 U.S. 495, 517 (2000) (internal quotation marks omitted), and therefore “are contrary to our traditions and hence consti- tutionally suspect,” (1954). “ ‘[B]ecause racial characteristics so seldom pro- vide a relevant basis for disparate treatment,’ ” Richmond v. J. A. Co., (Stevens, J., dissenting)), “the Equal Protection Clause demands that racial classifications be subjected to the ‘most rigid scrutiny.’ ” (1967). To implement these canons, judicial review must begin from the position that “any official action that treats a person differently on account of his race or ethnic origin is inherently suspect.” (Stewart, J., dissenting); (1964). Strict scrutiny is a |
Justice Kennedy | 2,013 | 4 | majority | Fisher v. University of Texas at Austin | https://www.courtlistener.com/opinion/931125/fisher-v-university-of-texas-at-austin/ | inherently suspect.” (Stewart, J., dissenting); (1964). Strict scrutiny is a searching examination, and it is the government that bears the burden to prove “ ‘that the reasons for any [racial] classification [are] clearly iden- tified and unquestionably legitimate,’ ” at (quoting 448 at 533–535 (Stevens, J., dissenting)). II made clear that racial “classifications are consti- tutional only if they are narrowly tailored to further com- pelling governmental interests.” And endorsed Justice Powell’s conclusion in that Cite as: 570 U. S. (2013) 9 Opinion of the Court “the attainment of a diverse student body is a consti- tutionally permissible goal for an institution of higher education.” 438 U. S., at 3–312 Thus, under strict scrutiny must be applied to any admissions program using racial categories or classifications. According to a university’s “educational judg- ment that such diversity is essential to its educational mission is one to which we defer.” concluded that the decision to pursue “the educa- tional benefits that flow from student body diversity,” that the University deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under A court, of course, should ensure that there is a reasoned, principled explanation for the academic deci- sion. On this point, the District Court and Court of Appeals were correct in finding that calls for de- ference to the University’s conclusion, “ ‘based on its experience and expertise,’ ” (quoting 645 F. Supp. 2d 587, 603 (WD Tex. 2009)), that a diverse stu- dent body would serve its educational goals. There is disagreement about whether was consistent with the principles of equal protection in approving this compel- ling interest in diversity. See post, (SCALIA, J., con- curring); post, at 4–5 (THOMAS, J., concurring); post, –2 (GINSBURG, J., dissenting). But the parties here do not ask the Court to revisit that aspect of ’s holding. A university is not permitted to define diversity as “some specified percentage of a particular group merely because of its race or ethnic origin.” at 307 “That would amount to out- right racial balancing, which is patently unconstitutional.” “Racial balancing is not trans- formed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’ ” 10 FISHER v. UNIVERSITY OF TEXAS AT AUSTIN Opinion of the Court Parents Involved in Community Once the University has established that its goal of di- versity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implemen- tation. The University must prove that |
Justice Kennedy | 2,013 | 4 | majority | Fisher v. University of Texas at Austin | https://www.courtlistener.com/opinion/931125/fisher-v-university-of-texas-at-austin/ | scrutiny in its implemen- tation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. made clear that it is for the courts, not for university administrators, to ensure that “[t]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” (internal quotation marks omitted). True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in it remains at all times the University’s obligation to demon- strate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each applicant is evalu- ated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” strict scrutiny does require a court to examine with care, and not defer to, a university’s “serious, good faith consideration of workable race-neutral alternatives.” See –340 (empha- sis added). Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: Cite as: 570 U. S. (2013) Opinion of the Court The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the edu- cational benefits of diversity. If “ ‘a nonracial approach could promote the substantial interest about as well and at tolerable administrative expense,’ ” Wygant v. Jackson Bd. of Ed., (quoting Greenawalt, Judicial Scrutiny of “Benign” Racial Prefer- ence in Law School Admissions, 578–579 (1975)), then the university may not consider race. A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative action plan in issue. But strict scrutiny imposes on the univer- sity the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice. Rather than perform this searching examination, how- ever, the Court of Appeals held petitioner could challenge only “whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith.” And in considering such a challenge, the court would “presume the University acted in good faith” and place on petitioner the burden of |
Justice Kennedy | 2,013 | 4 | majority | Fisher v. University of Texas at Austin | https://www.courtlistener.com/opinion/931125/fisher-v-university-of-texas-at-austin/ | in good faith” and place on petitioner the burden of rebutting that presumption. –232. The Court of Appeals held that to “second-guess the merits” of this aspect of the University’s decision was a task it was “ill-equipped to perform” and that it would attempt only to “ensure that [the University’s] decision to adopt a race-conscious ad- missions policy followed from [a process of] good faith consideration.” The Court of Appeals thus concluded that “the narrow-tailoring inquiry—like the compelling-interest inquiry—is undertaken with a degree of deference to the Universit[y].” Because “the efforts of the University have been studied, serious, and of high purpose,” the Court of Appeals held that the use of race in the admissions program fell within “a constitution- ally protected zone of discretion.” 12 FISHER v. UNIVERSITY OF TEXAS AT AUSTIN Opinion of the Court These expressions of the controlling standard are at odds with ’s command that “all racial classifica- tions imposed by government ‘must be analyzed by a reviewing court under strict scrutiny.’ ” (quoting Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995)). In the Court approved the plan at issue upon concluding that it was not a quota, was sufficiently flexible, was limited in time, and followed “serious, good faith consideration of workable race-neutral alternatives.” As noted above, see the parties do not challenge, and the Court therefore does not consider, the correctness of that determination. did not hold that good faith would forgive an impermissible consideration of race. It must be remem- bered that “the mere recitation of a ‘benign’ or legitimate purpose for a racial classification is entitled to little or no weight.” Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice. The higher education dynamic does not change the narrow tailoring analysis of strict scrutiny applicable in other contexts. “[T]he analysis and level of scrutiny ap- plied to determine the validity of [a racial] classification do not vary simply because the objective appears acceptable While the validity and importance of the objective may affect the outcome of the analysis, the analysis itself does not change.” Mississippi Univ. for The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifica- tions and affirming the grant of summary judgment on that basis. The Court vacates that judgment, but fairness Cite as: 570 U. S. (2013) |
Justice Kennedy | 2,013 | 4 | majority | Fisher v. University of Texas at Austin | https://www.courtlistener.com/opinion/931125/fisher-v-university-of-texas-at-austin/ | that judgment, but fairness Cite as: 570 U. S. (2013) 13 Opinion of the Court to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis. See Unlike which was decided after trial, this case arises from cross-motions for sum- mary judgment. In this case, as in similar cases, in de- termining whether summary judgment in favor of the University would be appropriate, the Court of Appeals must assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity. Whether this record—and not “simple as- surances of good intention,” at 500—is sufficient is a question for the Court of Appeals in the first instance. * * * Strict scrutiny must not be “ ‘strict in theory, but fatal in fact,’ ” ; see also at 326. But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. In order for judi- cial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that “encompasses a broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though im- portant element.” (opinion of Powell, J.). The judgment of the Court of Appeals is va- cated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 570 U. S. (2013) 1 SCALIA, J., concurring SUPREME COURT OF THE UNITED STATES No. –345 ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY OF TEXAS AT AUSTIN ET AL. |
Justice Scalia | 1,989 | 9 | majority | Flight Attendants v. Zipes | https://www.courtlistener.com/opinion/112314/flight-attendants-v-zipes/ | Section 706(k) of the Civil Rights Act of 1964, 42 U.S. C. 2000e-5(k), provides in relevant part that a "court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity] Commission or the United States, a reasonable attorney's fee as part of the costs." In this case we must determine under what circumstances 706(k) permits a court to award attorney's fees against intervenors who have not been found to have violated the Civil Rights Act or any other federal law. I This controversy began in 1970 when respondents, female flight attendants of Trans World Airlines, brought this class action against TWA claiming that its policy of terminating flight attendants who became mothers constituted sex discrimination that violated Title VII of the Civil Rights Act of 1964, 42 U.S. C. 2000e et seq. Respondents were represented by petitioner's predecessor union, the Air Line Stewards *756 and Stewardesses Association (ALSSA). Soon after the suit was filed, TWA abandoned the challenged policy and entered into a settlement agreement with ALSSA. This agreement was approved by the District Court, but class members dissatisfied with certain of its terms appealed. Discerning a potential conflict between ALSSA's obligations to respondents and its obligations to incumbent flight attendants, the Court of Appeals reversed the District Court's judgment and ordered that ALSSA be replaced as the representative of respondents' class. Air Line Stewards and Stewardesses Assn., Local 550, TWU, On remand the District Court granted summary judgment to respondents on the merits. The Court of Appeals affirmed the District Court's determination that TWA's policy violated Title VII. In re Consolidated Pretrial Proceedings in Airline Cases, However, holding that the timely filing of charges with the Equal Employment Opportunity Commission (EEOC) is a jurisdictional prerequisite to suit in federal court, the court went on to find that over 90% of the respondents' claims were on that ground jurisdictionally barred. Both parties filed petitions for certiorari; at their request we deferred consideration of the petitions pending the outcome of ongoing settlement negotiations. Sub nom. The parties again reached a settlement, in which TWA agreed to establish a $3 million fund to benefit all class members and to credit class members with full company and union "competitive" seniority from the date of termination.[1] *757 At this point petitioner, which had replaced ALSSA as the collective-bargaining agent for TWA's flight attendants, sought permission to intervene in the lawsuit on behalf of incumbent flight attendants not affected by the challenged TWA policy and flight attendants hired since TWA's termination of respondents' employment. Petitioner objected to the proposed settlement on |
Justice Scalia | 1,989 | 9 | majority | Flight Attendants v. Zipes | https://www.courtlistener.com/opinion/112314/flight-attendants-v-zipes/ | of respondents' employment. Petitioner objected to the proposed settlement on two grounds: first, that the District Court lacked jurisdiction to approve equitable relief for the time-barred respondents (designated by the District Court as "Subclass B"); second, that reinstatement of respondents with full retroactive "competitive" seniority would violate the collective-bargaining agreement between petitioner's members and TWA. The District Court permitted petitioner's intervention but rejected its objections, approving the settlement in all respects. The Court of Appeals affirmed. Air Line Stewards and Stewardesses Assn., Local Petitioner then filed a petition for certiorari, raising essentially the same objections to the settlement agreement that it had pressed in the two lower courts. This Court granted the petition and consolidated it with the earlier petition filed by respondents, consideration of which had been deferred. In we agreed with respondents that the timeliness requirement of Title VII, 42 U.S. C. 2000e-5(c), was not jurisdictional and thus that the District Court had jurisdiction to approve the settlement even as to members of Subclass B. We also rejected petitioner's second challenge to the settlement agreement, concluding that reinstatement of all respondents with full competitive seniority was a remedy authorized by Title VII and appropriate in the circumstances of the case. -400. To come, finally, to the aspect of this lengthy litigation giving rise to the issues now before us: Respondents' attorneys petitioned the District Court for an award of attorney's fees against petitioner under 706(k) of the Civil Rights Act *758 of 1964, 42 U.S. C. 2000e-5(k). The District Court held that "[u]nsuccessful Title VII union intervenors are, like unsuccessful Title VII defendants, consistently held responsible for attorneys' fees," Airline Stewards and Stewardesses Assn., Local 550, TWU, and thus awarded respondents a total of $180,915.84 in fees against petitioner in addition to approximately $1.25 million it had earlier awarded against TWA from the settlement fund. A divided panel of the Court of Appeals affirmed. We granted the union's petition for certiorari, II In Alyeska Pipeline Service this Court reaffirmed what has come to be known as the "American Rule." Put simply, "[i]n the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." At issue in this case is one of the congressionally created exceptions to that rule. As part of the Civil Rights Act of 1964, Tit. VII, Congress enacted 706(k), 42 U.S. C. 2000e-5(k), which provides that a federal district court "in its discretion, may allow the prevailing party, other than the [EEOC] or the United States, a reasonable attorney's fee." Although the text of the provision |
Justice Scalia | 1,989 | 9 | majority | Flight Attendants v. Zipes | https://www.courtlistener.com/opinion/112314/flight-attendants-v-zipes/ | a reasonable attorney's fee." Although the text of the provision does not specify any limits upon the district courts' discretion to allow or disallow fees, in a system of laws discretion is rarely without limits. In the case of 706(k) and other federal fee-shifting statutes,[2] just as in the case of *759 discretion regarding appropriate remedies, we have found limits in "the large objectives" of the relevant Act, Albemarle Paper which embrace certain "equitable considerations," Christiansburg Thus, in we held that under 204(b) of the Civil Rights Act of 1964, 42 U.S. C. 2000a-3(b), a prevailing plaintiff should "ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." We thought this constraint on district court discretion necessary to carry out Congress' intention that individuals injured by racial discrimination act as " `private attorney[s] general,' vindicating a policy that Congress considered of the priority." 390 U.S., at See also Albemarle Paper (applying the standard to 706(k)); (applying the standard to 718 of the Emergency School Aid Act, 20 U.S. C. 1617). Similarly, in Christiansburg we held that even though the term "prevailing party" in 706(k) does not distinguish between plaintiffs and defendants, the principle of would not be applied to a prevailing defendant. Unlike the Title VII plaintiff, we reasoned, the Title VII defendant is not " `the chosen instrument of Congress,' " 434 U.S., at quoting at ; and unlike the losing defendant, the losing plaintiff is not "a violator of federal law," 434 U.S., at We also rejected, however, the losing plaintiff's argument that sound exercise of 706(k) discretion would remand the prevailing defendant to the American Rule, providing attorney's fees only if the plaintiff's suit was brought in bad faith. Such an unequal disposition, *760 we thought, "giving the private plaintiff substantial incentives to sue, while foreclosing to the defendant the possibility of recovering his expenses in resisting even a groundless action unless he can show that it was brought in bad faith," would so "distort" the "fair adversary process" that Congress could not lightly be assumed to have intended it. We thus concluded that the prevailing defendant could be awarded fees under 706(k) against the plaintiff whose suit was brought in good faith, but only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation," The dissent contends that construing 706(k) in such fashion as to allow competing rights and equities to be taken into account "ignore[s] its express language," post, at 771, in two ways: first, because "the only party mentioned in 706(k) is `the prevailing party,' " and |
Justice Scalia | 1,989 | 9 | majority | Flight Attendants v. Zipes | https://www.courtlistener.com/opinion/112314/flight-attendants-v-zipes/ | party mentioned in 706(k) is `the prevailing party,' " and thus, "when a district court decides whether to award fees, it must be guided first and foremost by the interests of the prevailing party," This seems to us something less than an "express language" argument and also a non sequitur. To say that only the prevailing party gets fees is not to say that the prevailing party's interests are always first and foremost in determining whether he gets them. In any case, as discussed above, we decided long ago that in some circumstances the interests of the losing party trump those of the prevailing party under 706(k), so that the latter cannot obtain fees. See Christiansburg The second respect in which the dissent contends we ignore the "express language" of the statute is that we fail to give effect to its "hostility to categorical rules for the award of attorney's fees," post, at 771, supposedly enshrined in the language that the court "in its discretion, may allow" (emphasis added) a reasonable attorney's fee. We have already described how the law in general, and the law applied to 706(k) in particular, does not interpret a grant of discretion to eliminate all "categorical *761 rules."[3] In at we held that in absence of special circumstances a district court not merely "may" but must award fees to the prevailing plaintiff; and in Christiansburg we held that unless the plaintiff's action is frivolous a district court cannot award fees to the prevailing Title VII defendant. The prescriptions in those cases are no less "categorical" than the rule we set forth today. Proceeding, then, to interpret the statute in light of the competing equities that Congress normally takes into account, we conclude that district courts should similarly award Title VII attorney's fees against losing intervenors only where the intervenors' action was frivolous, unreasonable, or without foundation. It is of course true that the central purpose of 706(k) is to vindicate the national policy against wrongful discrimination by encouraging victims to make the wrongdoers pay at law assuring that the incentive to such suits will not be reduced by the prospect of attorney's fees that consume the recovery. See at 401-. Assessing fees against blameless intervenors, however, is not essential to that purpose. In every lawsuit in which there is a prevailing Title VII plaintiff there will also be a losing defendant who has committed a legal wrong. That defendant will, under be liable for all of the fees expended by the plaintiff in litigating the claim against him, and that liability alone creates |
Justice Scalia | 1,989 | 9 | majority | Flight Attendants v. Zipes | https://www.courtlistener.com/opinion/112314/flight-attendants-v-zipes/ | litigating the claim against him, and that liability alone creates a substantial added incentive for victims of Title VII violations to sue. In the present case, for example, TWA paid over $1.25 million in fees to respondents' attorneys. Respondents argue that this incentive will be reduced by the potential presence of intervenors *762 whose claims the plaintiff must litigate without prospect of fee compensation. It is not clear to us that that consequence will follow. Our decision in establishes that a party affected by the decree in a Title VII case need not intervene but may attack the decree collaterally in which suit the original Title VII plaintiff defending the decree would have no basis for claiming attorney's fees. Thus, even if we held that fees could routinely be recovered against losing intervenors, Title VII plaintiffs would still face the prospect of litigation without compensation for attorney's fees before the fruits of their victory can be secure. But even if the inability generally to recover fees against intervenors did create some marginal disincentive against Title VII suits, we would still have to weigh that against other considerations, as we did in Christiansburg Foremost among these is the fact that, in contrast to losing Title VII defendants who are held presumptively liable for attorney's fees, losing intervenors like petitioner have not been found to have violated anyone's civil rights. See Christiansburg 434 U. S., at In this case, for example, petitioner became a party to the lawsuit not because it bore any responsibility for the practice alleged to have violated Title VII, but because it sought to protect the bargained-for seniority rights of its employees. Awarding attorney's fees against such an intervenor would further neither the general policy that wrongdoers make whole those whom they have injured nor Title VII's aim of deterring employers from engaging in discriminatory practices. Our cases have emphasized the crucial connection between liability for violation of federal law and liability for attorney's fees under federal fee-shifting statutes. In the plaintiffs had brought suit under 42 U.S. C. 1983 against police officers in their individual capacities, alleging that the officers had violated their constitutional rights. After settling with the officers, *763 they sought attorney's fees from the officers' employer, the Commonwealth of Kentucky, under 42 U.S. C. In rejecting that claim, we stated: "Section does not in so many words define the parties who must bear these costs. Nonetheless, it is clear that the logical place to look for recovery of fees is to the losing party the party legally responsible for relief on the |
Justice Scalia | 1,989 | 9 | majority | Flight Attendants v. Zipes | https://www.courtlistener.com/opinion/112314/flight-attendants-v-zipes/ | party the party legally responsible for relief on the merits. That is the party who must pay the costs of litigation and it is clearly the party who should also bear fee liability under" See also ; ; ("Section simply does not create fee liability where merits liability is nonexistent"); Cf. Supreme Court of (holding that fees were not recoverable against defendants immune from merits liability). We have also distinguished between wrongdoers and the blameless in the related area of constraints upon district courts' discretion to fashion Title VII remedies. See, e. g., Ford Motor ; General Building Contractors Assn., While innocent intervenors raising nor-Title VII claims are not, like Title VII plaintiffs, "the chosen instrument[s] of Congress," Christiansburg at neither are they disfavored participants in Title VII proceedings.[4]*764 An intervenor of the sort before us here is particularly welcome, since we have stressed the necessity of protecting, in Title VII litigation, "the legitimate expectations of employees innocent of any wrongdoing," Even less with regard to an innocent intervenor than with regard to an allegedly law-breaking defendant would Congress have wished to "distort" the adversary process, see Christiansburg by giving the plaintiff a disproportionate advantage with regard to fee entitlement. Moreover, establishing such one-way fee liability against intervenors would foster piece-meal litigation of complex civil rights controversies a result that is strongly disfavored. See Adopting the regime proposed by respondents that those who intervene in a Title VII suit are presumptively liable for fees, while those who take the alternative course of becoming plaintiffs in independent lawsuits attacking provisions of the decree are presumptively shielded from liability would encourage interested parties to await the entry of judgment and collaterally attack remedial schemes. This *765 would serve the interests of no one: not plaintiffs, not defendants, not intervenors. Intervention that is in good faith is by definition not a means of prolonging litigation, but rather of protecting legal rights ranging from contract-based rights, see, e. g., to statutory rights, see, e. g., to constitutional rights, see, e. g., ; which are entitled to no less respect than the rights asserted by plaintiffs in the subject suit. In this case petitioner intervened to assert the collectively bargained contract rights of its incumbent employees, rights that neither respondents nor TWA had any interest in protecting in their settlement agreement. Just this Term we recognized that competitive seniority rights the specific interests asserted by petitioner are among the most important ingredients in flight attendants' collective-bargaining agreements. See Trans World Airlines, -430 While a labor union's good-faith |
Justice Scalia | 1,989 | 9 | majority | Flight Attendants v. Zipes | https://www.courtlistener.com/opinion/112314/flight-attendants-v-zipes/ | See Trans World Airlines, -430 While a labor union's good-faith advocacy of its members' vital interests was not the specific type of conduct 706(k) was intended to encourage, it is certainly not conduct that the statute aimed to deter. Of course, an intervenor may sometimes raise an argument that brings into question not merely the appropriateness of the remedy but the plaintiff's very entitlement to relief. Here, for example, petitioner advanced one argument that would have prevented the District Court's approval of any relief for Subclass B respondents. But that an intervenor can advance the same argument as a defendant does not mean that the two must be treated alike for purposes of fee assessments. The central fact remains that petitioner litigated (and lost) not to avoid liability for violation of the law *766 but to prevent TWA's bargaining away of its members' seniority rights in order to settle with respondents. It was entitled, like any litigant, to pursue that legitimate end through arguments that go to the merits no less than through arguments that go only to the scope of the relief. It would hardly serve the congressional policy in favor of "vigorous" adversary proceedings, Christiansburg 434 U. S., to require intervenors to disguise or avoid their strongest arguments in order to escape liability for attorney's fees. Moreover, it is often quite difficult to separate arguments directed to the appropriate remedy from arguments directed to the existence or extent of past violations, so that making fees turn upon that distinction would violate our admonition that "a request for attorney's fees should not result in a second major litigation." * * * Because the courts below incorrectly presumed that petitioner was liable for attorney's fees to respondents, and accordingly made no inquiry as to whether petitioner's intervention was frivolous, unreasonable, or without foundation, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS took no part in the consideration or decision of this case. JUSTICE BLACKMUN, concurring in the judgment. |
Justice Douglas | 1,975 | 10 | dissenting | Connell Construction Co. v. Plumbers & Steamfitters Local Union No. 100 | https://www.courtlistener.com/opinion/109262/connell-construction-co-v-plumbers-steamfitters-local-union-no-100/ | While I join the opinion of MR. JUSTICE STEWART, I write to emphasize what is, for me, the determinative feature of the case. Throughout this litigation, Connell has maintained only that Local 100 coerced it into signing the subcontracting agreement. With the complaint so drawn, I have no difficulty in concluding that the union's conduct is regulated solely by the labor laws. The question of antitrust immunity would be far different, however, if it were alleged that Local 100 had conspired with mechanical subcontractors to force nonunion subcontractors from the market by entering into exclusionary agreements with general contractors like Connell. An arrangement of that character was condemned in Allen Bradley which held that Congress did not intend "to immunize labor unions who aid and abet manufacturers and traders in violating the Sherman Act," Were such a conspiracy alleged, the multiemployer bargaining agreement between Local 100 and the mechanical subcontractors would unquestionably be relevant. See Mine ; Meat But since Connell has never alleged or attempted to show any conspiracy between Local 100 and the subcontractors, I agree that Connell's remedies, if any, are provided exclusively by the labor laws. MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | The State of Tennessee imposes demanding durational- residency requirements on all individuals and businesses seeking to obtain or renew a license to operate a liquor store. One provision precludes the renewal of a license unless the applicant has resided in the State for 10 con- secutive years. Another provides that a corporation can- not obtain a license unless all of its stockholders are resi- dents. The Court of Appeals for the Sixth Circuit struck down these provisions as blatant violations of the Com- merce Clause, and neither petitioner—an association of Tennessee liquor retailers—nor the State itself defends them in this Court. The Sixth Circuit also invalidated a provision requiring applicants for an initial license to have resided in the State for the prior two years, and petitioner does challenge that decision. But while this requirement is less extreme than the others that the Sixth Circuit found to be uncon- 2 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court stitutional, we now hold that it also violates the Com- merce Clause and is not shielded by of the Twenty-first Amendment. Section 2 was adopted as part of the scheme that ended prohibition on the national level. It gives each State leeway in choosing the alcohol-related public health and safety measures that its citizens find desirable. But is not a license to impose all manner of protectionist restrictions on commerce in alcoholic beverages. Because Tennessee’s 2-year residency requirement for retail license applicants blatantly favors the State’s residents and has little relationship to public health and safety, it is unconstitutional. I A Tennessee, like many other States, requires alcoholic beverages distributed in the State to pass through a speci- fied three-tiered system.1 Acting through the Tennessee Alcoholic Beverage Commission (TABC), the State issues different types of licenses to producers, wholesalers, and retailers of alcoholic beverages. See – 3–201 Producers may sell only to licensed whole- salers; wholesalers may sell only to licensed retailers or other wholesalers; and only licensed retailers may sell to consumers. No person may lawfully partici- pate in the sale of alcohol without the appropriate license. See, e.g., Included in the Tennessee scheme are onerous durational- —————— 1 For purposes of the provisions at issue here, Tennessee law defines “alcoholic beverage[s]” to include “spirits, liquor, wine, high alcohol content beer,” and “any liquid product containing distilled alcohol capable of being consumed by a human being, manufactured or made with distilled alcohol, regardless of alcohol content,” Tenn. Code Ann. This definition excludes “beer,” which is defined and regulated by separate statutory provisions, see 101(b). Cite as: 588 |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | regulated by separate statutory provisions, see 101(b). Cite as: 588 U. S. (2019) 3 Opinion of the Court residency requirements for all persons and compa- nies wishing to operate “retail package stores” that sell alcoholic beverages for off-premises consumption (herein- after liquor stores). See To obtain an ini- tial retail license, an individual must demonstrate that he or she has “been a bona fide resident” of the State for the previous two years. And to renew such a license—which Tennessee law requires after only one year of operation—an individual must show continu- ous residency in the State for a period of 10 consecutive years. The rule for corporations is also extraordinarily restric- tive. A corporation cannot get a retail license unless all of its officers, directors, and owners of capital stock satisfy the durational-residency requirements applicable to indi- viduals. In practice, this means that no corporation whose stock is publicly traded may operate a liquor store in the State. In 2012, the Tennessee attorney general was asked whether the State’s durational-residency requirements violate the Commerce Clause, and his answer was that the requirements constituted “trade restraints and barriers that impermissibly discriminate against interstate com- merce.” App. to Brief in Opposition 11a; see also at 12a ). In light of that opinion, the TABC stopped enforc- ing the requirements against new applicants. See App. 51, ¶9; The Tennessee General Assembly responded by amend- ing the relevant laws to include a statement of legislative intent. Citing the alcohol content of the beverages sold in liquor stores, the Assembly found that protection of “the health, safety and welfare” of Tennesseans called for “a higher degree of oversight, control and accountability for individuals involved in the ownership, management and control” of such outlets. 4 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court After the amendments became law, the attorney gen- eral was again asked about the constitutionality of the durational-residency requirements, but his answer was the same as before. See App. to Brief in Opposition 13a. Consequently, the TABC continued its practice of nonenforcement. B In 2016, respondents Tennessee Fine Wines and Spirits, LLC dba Total Wine Spirits Beer & More (Total Wine) and Affluere Investments, Inc. dba Kimbrough Fine Wine & Spirits (Affluere) applied for licenses to own and operate liquor stores in Tennessee. At the time, neither Total Wine nor Affluere satisfied the durational-residency re- quirements. Total Wine was formed as a Tennessee lim- ited liability company but is owned by residents of Mary- land, Brief for Respondent Total Wine 10; App. 51, ¶4–5, and Affluere was owned |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | Total Wine 10; App. 51, ¶4–5, and Affluere was owned and controlled by two individuals who, by the time their application was considered, had only recently moved to the State, see App. 11–12, 20, 22. TABC staff recommended approval of the applications, but petitioner Tennessee Wine and Spirits Retailers Asso- ciation (the Association)—a trade association of in-state liquor stores—threatened to sue the TABC if it granted them. The TABC’s executive director (a respondent here) filed a declaratory judgment action in state court to settle the question of the residency require- ments’ constitutionality. The case was removed to the United States District Court for the Middle District of Tennessee, and that court, relying on our decision in v. Heald, 544 U.S. 460 concluded that the requirements are unconsti- tutional. The State de- clined to appeal, and Total Wine and Affluere were issued licenses. Cite as: 588 U. S. (2019) 5 Opinion of the Court The Association, however, took the case to the Court of Appeals for the Sixth Circuit, where a divided panel af- firmed. See All three judges acknowl- edged that the Tennessee residency requirements facially discriminate against out-of-state economic interests. See ; (Sutton, J., concurring in part and ing in part). And all three also agreed that neither the 10-year residency requirement for license renewals nor the 100-percent-resident shareholder requirement is constitutional under this Court’s Twenty-first Amendment and dormant Commerce Clause precedents. See at 625–626; The panel divided, however, over the constitutionality of the 2-year residency requirement for individuals seeking initial retail licenses, as well as the provision applying those requirements to officers and directors of corporate applicants. Applying standard dormant Commerce Clause scrutiny, the majority struck down the challenged re- strictions, reasoning that they facially discriminate against interstate commerce and that the interests they are claimed to further can be adequately served through reasonable, nondiscriminatory alternatives. 3– 626. The disagreed, reading of the Twenty-first Amendment to grant States “ ‘virtually’ limitless” authority to regulate the in-state distribution of alcohol, the only exception being for laws that “serve no purpose besides ‘economic protectionism.’ ” ). Applying that highly deferential standard, the would have upheld the 2-year residency requirement, as well as the provision applying that requirement to all officers and directors of corporate applicants. The argued that these provisions help to promote the State’s interests in “responsible consumption” of alcohol and “orderly liquor markets.” 883 F.3d, 6 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court The Association filed a petition for a writ of certiorari challenging the decision on the 2-year residency require- ment for |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | challenging the decision on the 2-year residency require- ment for initial licenses. Tennessee declined to seek certi- orari but filed a letter with the Court expressing agree- ment with the Association’s position.2 We granted certiorari, 585 U. S. in light of the disagree- ment among the Courts of Appeals about how to reconcile our modern Twenty-first Amendment and dormant Com- merce Clause precedents. See (collecting cases). II A The Court of Appeals held that Tennessee’s 2-year residency requirement violates the Commerce Clause, which provides that “[t]he Congress shall have Power [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art. I, cl. 3. “Although the Clause is framed as a positive grant of power to Congress,” Comptroller of Treasury of Md. v. Wynne, 575 U. S. (2015) (slip op., at 5), we have long held that this Clause also prohibits state laws that unduly restrict interstate commerce. See, e.g., ibid.; Phil- ; Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 318–319 (1852); 252 (1829). “This ‘negative’ aspect of the Commerce Clause” prevents the States from adopting protectionist measures and thus preserves a national market for goods and services. New Energy of Ind. v. Limbach, 486 U.S. 269, 273 (1988). This interpretation, generally known as “the dormant —————— 2 See Letter from H. Slatery III, Tenn. Atty. Gen., to S. Harris, Clerk of Court Cite as: 588 U. S. (2019) 7 Opinion of the Court Commerce Clause,” has a long and complicated history. Its roots go back as far as (1824), where Chief Justice Marshall found that a version of the dormant Commerce Clause argument had “great force.” His successor disagreed, see License Cases, but by the latter half of the 19th century the dormant Commerce Clause was firmly established, see, e.g., Case of the State Freight Tax, and it played an important role in the economic history of our Nation. See Cushman, Formalism and Realism in Commerce Clause Jurisprudence, (2000). In recent years, some Members of the Court have au- thored vigorous and thoughtful critiques of this interpre- tation. See, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, (THOMAS, J., ing); Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 259– 265 (Scalia, J., concurring in part and ing in part); cf. post, at 2–3 (GORSUCH, J., ing) (deeming doctrine “peculiar”). But the proposition that the Com- merce Clause by its own force restricts state protectionism is deeply rooted in our case law. And without the dormant Commerce Clause, we would be left |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | And without the dormant Commerce Clause, we would be left with a constitutional scheme that those who framed and ratified the Constitu- tion would surely find surprising. That is so because removing state trade barriers was a principal reason for the adoption of the Constitution. Under the Articles of Confederation, States notoriously obstructed the interstate shipment of goods. “Interference with the arteries of commerce was cutting off the very life- blood of the nation.” M. Farrand, The Framing of the Constitution of the United States 7 The Annapolis Convention of 1786 was convened to address this critical problem, and it culminated in a call for the Philadelphia 8 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court Convention that framed the Constitution in the summer of 1787.3 At that Convention, discussion of the power to regulate interstate commerce was almost uniformly linked to the removal of state trade barriers, see Abel, The Com- merce Clause in the Constitutional Convention and in Contemporary Comment, 470–471 (1941), and when the Constitution was sent to the state conventions, fostering free trade among the States was prominently cited as a reason for ratification. In The Federalist No. 7, Hamilton argued that state protection- ism could lead to conflict among the States, see The Fed- eralist No. 7, pp. 62–63 (C. Rossiter ed. 1961), and in No. 11, he touted the benefits of a free national market, at 88–89. In The Federalist No. 42, Madison sounded a similar theme. at 267–268. In light of this background, it would be strange if the Constitution contained no provision curbing state protec- tionism, and at this point in the Court’s history, no provi- sion other than the Commerce Clause could easily do the job. The only other provisions that the Framers might have thought would fill that role, at least in part, are the Import-Export Clause, Art. I, cl. 2, which generally prohibits a State from “lay[ing] any Imposts or Duties on Imports or Exports,” and the Privileges and Immunities Clause, Art. IV, which provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immuni- ties of Citizens in the several States.” But the Import- Export Clause was long ago held to refer only to interna- tional trade. See 136– 137 (1869). And the Privileges and Immunities Clause has been interpreted not to protect corporations, Western —————— 3 See, e.g., R. Beeman, Plain, Honest Men: The Making of the Ameri- can Constitution 18–20 (2009); D. Stewart, The Summer of 1787: The Men Who Invented the Constitution 9–10 (2007); M. Farrand, The |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | Men Who Invented the Constitution 9–10 (2007); M. Farrand, The Framing of the Constitution of the United States 7–10 Cite as: 588 U. S. (2019) 9 Opinion of the Court & Southern Life Ins. ), and may not guard against certain discrimination scrutinized under the dormant Commerce Clause, see Denning, Why the Privileges and Immunities Clause of Article IV Cannot Replace the Dormant Commerce Clause Doctrine, 88 Minn. L. Rev. 384, 3–7 (2003). So if we accept the Court’s estab- lished interpretation of those provisions, that leaves the Commerce Clause as the primary safeguard against state protectionism.4 It is not surprising, then, that our cases have long em- phasized the connection between the trade barriers that prompted the call for a new Constitution and our dormant Commerce Clause jurisprudence. In Guy v. Baltimore, 100 U.S. 434, 440 for example, the Court wrote that state protectionist measures, “if maintained by this court, would ultimately bring our commerce to that ‘oppressed and degraded state,’ existing at the adoption of the present Constitution, when the helpless, inadequate Confederation —————— 4 Before Woodruff, there was authority suggesting that the Import- Export Clause applied to trade between States. See ; And more recently Woodruff has been questioned. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 624–636 (THOMAS, J., ing). But one way or the other, it would grossly distort the Constitution to hold that it provides no protection against a broad swath of state protectionist measures. Even at the time of the adoption of the Constitution, it would have been asking a lot to require that Congress pass a law striking down every protectionist measure that a State or unit of local government chose to enact. Cf. Friedman & Deacon, A Course Unbroken: The Constitution- al Legitimacy of the Dormant Commerce Clause, 1898–1903 (2011); 3 The Records of the Federal Convention of 1787, p. 549 (M. Farrand ed. 1911) (the Virginia Plan’s proposal of a congres- sional negative was “justly abandoned, as, apart from other objections, it was not practicable among so many States, increasing in number, and enacting, each of them, so many laws”). 10 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court was abandoned and the national government instituted.” More recently, we observed that our dormant Commerce Clause cases reflect a “ ‘central concern of the Framers that was an immediate reason for calling the Constitu- tional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.’ ” ). In light of this history and our established case law, we reiterate that the Commerce Clause by its own force re- stricts state protectionism. B Under our dormant Commerce Clause cases, if a state law discriminates against out-of-state goods or nonresi- dent economic actors, the law can be sustained only on a showing that it is narrowly tailored to “ ‘advanc[e] a legit- imate local purpose.’ ” Department of Revenue of Ky. v. Davis, See also, e.g., Oregon Waste Systems, ; Tennessee’s 2-year durational-residency requirement plainly favors Tennesseans over nonresidents, and neither the Association nor the below defends that re- quirement under the standard that would be triggered if the requirement applied to a person wishing to operate a retail store that sells a commodity other than See Instead, their arguments are based on of the Twenty-first Amendment, to which we will now turn. Cite as: 588 U. S. (2019) 11 Opinion of the Court III A Section 2 of the Twenty-first Amendment provides as follows: “The transportation or importation into any State, Territory, or possession of the United States for deliv- ery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” Although the interpretation of any provision of the Consti- tution must begin with a consideration of the literal mean- ing of that particular provision, reading to prohibit the transportation or importation of alcoholic beverages in violation of any state law5 would lead to absurd results that the provision cannot have been meant to produce. Under the established rule that a later adopted provision takes precedence over an earlier, conflicting provision of equal stature, see, e.g., United States v. Tynen, 11 Wall. 88, 92 (1871); Posadas v. National City Bank, 296 U.S. 497, 503 ; A. Scalia & B. Reading Law 327– 328 (2012); 1A N. Singer & J. Singer, Sutherland on Stat- utory Construction 3:9 (7th ed. 2009), such a reading of would mean that the provision would trump any irrec- oncilable provision of the original Constitution, the Bill of Rights, the Fourteenth Amendment, and every other constitutional provision predating ratification of the Twenty-first Amendment in 1933. This would mean, among other things, that a state law prohibiting the im- —————— 5 As we will explain, followed the wording of the 1913 Webb- Kenyon Act, ch. 90, see 205–206 (1976), and, given this Court’s case law at the time, it went without saying that the only state laws that Congress could protect |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | saying that the only state laws that Congress could protect from constitutional challenge were those that represented the valid exercise of the police power, which was not understood to authorize purely protectionist measures with no bona fide relation to public health or safety. See infra, at 14–15, 18–19. 12 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court portation of alcohol for sale to persons of a particular race, religion, or sex would be immunized from challenge under the Equal Protection Clause. Similarly, if a state law prohibited the importation of alcohol for sale by proprie- tors who had expressed an unpopular point of view on an important public issue, the First Amendment would pro- vide no protection. If a State imposed a duty on the im- portation of foreign wine or spirits, the Import-Export Clause would have to give way. If a state law retroactively made it a crime to have bought or sold imported alcohol under specified conditions, the Ex Post Facto Clause would provide no barrier to conviction. The list goes on. Despite the ostensibly broad text of no one now contends that the provision must be interpreted in this way. Instead, we have held that must be viewed as one part of a unified constitutional scheme. See California Retail Liquor Dealers Assn. v. Midcal Alu, Inc., 445 U.S. 97, 109 ; ; cf. Scalia & at 167–169, 180–182. In attempting to understand how and other constitutional provisions work together, we have looked to history for guidance, and history has taught us that the thrust of is to “constitu- tionaliz[e]” the basic structure of federal-state alcohol regulatory authority that prevailed prior to the adoption of the Eighteenth Amendment. 429 U.S. 190, 206 (1976). We therefore examine that history. B Throughout the 19th century, social problems attributed to alcohol use prompted waves of state regulation, and these measures were often challenged as violations of various provisions of the Federal Constitution. One wave of state regulation occurred during the first half of the century. The country’s early years were a time of notoriously hard drinking, see D. Okrent, Last Call: The Cite as: 588 U. S. (2019) 13 Opinion of the Court Rise and Fall of Prohibition 7 (2010),6 and the problems that this engendered prompted States to enact a variety of regulations, including licensing requirements, age re- strictions, and Sunday-closing laws. See Byse, Alcoholic Beverage Control Before Repeal, 7 Law & Contemp. Prob. 544, 546–551 (1940). Three States’ alcohol licensing laws came before this Court in 1847 in the License Cases, The principal claim in |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | in 1847 in the License Cases, The principal claim in those cases was similar to the one now before us; licensing laws enacted in three States were challenged under the Commerce Clause. The Court unan- imously rejected those claims, but six Justices authored opinions; no opinion commanded a majority; and the gen- eral status of dormant Commerce Clause claims was left uncertain. See 5 C. Swisher, The Taney Period, 1836–64, History of the Supreme Court of the United States 373– 374 (1974). Following the Civil War, the Court considered a steady stream of alcohol-regulation cases. The postwar period saw a great proliferation of saloons,7 and myriad social —————— 6 Between 1780 and 1830, Americans consumed “more alcohol, on an individual basis, than at any other time in the history of the nation,” with per capita consumption double that of the modern era. R. Mendel- son, From Demon to Darling: A Legal History of Wine in America 11 (2009). 7 By 1872, about 100,000 had sprung up across the country, and by the end of the century, that number had climbed to almost 300,000. This increase has been linked to the introduction of the English “tied-house” system. Under the tied-house system, an alcohol producer, usually a brewer, would set up saloonkeepers, providing them with premises and equipment, and the saloonkeepers, in exchange, agreed to sell only that producer’s products and to meet set sales requirements. ; T. Pegram, Battling Demon Rum: The Struggle for a Dry America, 1800–1933, p. 95 (1998). To meet those requirements, saloonkeepers often encouraged irresponsible drinking. The three-tiered distribution model was adopted by States at least in large part to preclude this system. See Arnold’s Wines, Inc. v. Boyle, 571 F.3d 185, 187 (CA2 2009). 14 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court problems were attributed to this development. In re- sponse, many States passed laws restricting the sale of By 1891, six States had banned alcohol produc- tion and sale completely. R. Hamm, Shaping the Eight- eenth Amendment 25 (1995) (Hamm). During this period, state laws regulating the alcohol trade were unsuccessfully challenged in this Court on a variety of constitutional grounds. See, e.g., v. Kansas, (Privileges or Immunities and Due Process Clauses of Fourteenth Amendment); Beer (Contracts Clause); (Privileges or Immunities and Due Process Clauses of Fourteenth Amendment). In those decisions, the Court staunchly affirmed the “right of the States,” in exercising their “po- lice power,” to “protect the health, morals, and safety of their people,” but the Court also cautioned that this objec- tive could be pursued only “by |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | cautioned that this objec- tive could be pursued only “by regulations that do not interfere with the execution of the powers of the general government, or violate rights secured by the Constitution of the United States.” For that reason, the Court continued, “mere pretences” could not sustain a law regulating alcohol; rather, if “a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Dormant Commerce Clause challenges also reached the Court. States that banned the production and sale of alcohol within their borders found that these laws did not stop residents from consuming alcohol shipped in from other States. To curb that traffic, States passed laws regulating or prohibiting the importation of alcohol, and these enactments were quickly challenged. Cite as: 588 U. S. (2019) 15 Opinion of the Court By the late 19th century, the Court was firmly of the view that the Commerce Clause by its own force restricts state regulation of interstate commerce. See v. Chicago & Northwestern R. ; Dormant Commerce Clause cases from that era “advanced two distinct princi- ples,” an understanding of which is critical to gauging the States’ pre-Prohibition power to regulate First, the Court held that the Commerce Clause pre- vented States from discriminating “against the citizens and products of other States,” v. Michigan, 116 U.S. 446, 460 (1886). See also 165 U.S. 58 ; Apply- ing that rule, the Court struck down a discrimina- tory state fee that applied only to those in the business of selling imported 458. Similarly, in Scott, the Court invalidated a law that gave an “unjust preference [to] the products of the enacting State as against similar products of the other States.” 165 U.S., at 101. The Court did not question the States’ use of the police power to regulate the alcohol trade but stressed that such regulation must have a “bona fide” relation to pro- tecting “ ‘the public health, the public morals or the public safety,’ ” (quoting ), and could not encroach upon Congress’s “power to regulate commerce among the several States,” at 458. Second, the Court “held that the Commerce Clause prevented States from passing facially neutral laws that placed an impermissible burden on interstate commerce.” At the time of these deci- sions, the “original-package doctrine” defined the outer limits of Congress’s authority to regulate |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | doctrine” defined the outer limits of Congress’s authority to regulate interstate com- merce. See Under that doctrine, “goods shipped in interstate 16 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court commerce were immune from state regulation while in their original package,” because at that point they had not yet been comingled with the mass of domestic property subject to state jurisdiction. ; see at 477–478 ). Applying this doctrine to state alcohol laws, the Court struck down an Iowa statute that required importers to obtain special certificates, as well as another Iowa law that, with limited exceptions, banned the importation of liquor, These decisions left dry States “in a bind.” See Interstate Commerce in Intoxi- cating Liquors Before the Webb-Kenyon Act, 4 Va. L. Rev. 174 288 (noting “practical nullification of state laws” by original-package decisions). States could ban the production and sale of alcohol within their bor- ders, but those bans “were ineffective because out-of-state liquor was immune from any state regulation as long as it remained in its original package.” at 478. In effect, the Court’s interpretation of the dormant Commerce Clause conferred favored status on out-of-state alcohol, and that hamstrung the dry States’ efforts to enforce local prohibition laws. Representatives of those States and temperance advocates thus turned to Congress, which passed two laws to solve the problem. The first of these was the Wilson Act, enacted in 1890. Ch. 728, 27 U.S. C. Named for Sena- tor James F. Wilson of Iowa, whose home State’s laws had fallen in and the Wilson Act aimed to obviate the problem presented by the “original-package” rule. Dormant Commerce Clause restrictions apply only when Congress has not exercised its Commerce Clause power to regulate the matter at issue, cf. ; at 123–124, and the strategy of those who favored the Wilson Act was for Congress to eliminate Cite as: 588 U. S. (2019) 17 Opinion of the Court the problem that had surfaced in and by regulating the interstate shipment of alcohol, see Hamm 77–80; at 194–195. During the late 19th century and early 20th century, Congress enacted laws that entirely prohibited the transportation of certain goods and persons across state lines, and some but not all of these measures were held to be valid exercises of the commerce power. See Lottery Case, (upholding law prohibiting interstate shipment of lottery tickets); (sus- taining Mann Act prohibition on bringing women across state lines for prostitution); Hammer v. Dagenhart, 247 U.S. 251 (1918) (striking down provision banning inter- state shipment of goods produced by child labor). Unlike these |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | state shipment of goods produced by child labor). Unlike these laws, the Wilson Act did not attempt to ban all interstate shipment of Its goal was more modest: to leave it up to each State to decide whether to admit Its critical provision specified that all alcoholic beverages “transported into any State or Terri- tory” were subject “upon arrival” to the same restrictions imposed by the State “in the exercise of its police powers” over alcohol produced in the State.8 Thus, the Wilson Act mandated equal treatment for alcohol produced within and outside a State, not favorable treatment for local products. See (discussing Scott, 165 U.S., at ). And the only state laws that it attempted to shield were those enacted by a State “in the —————— 8 The provision read as follows: “That all fermented, distilled, or other intoxicating liquors or liquids transported into any State or Territory or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.” Ch. 728, 27 U.S. C. 18 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court exercise of its police powers,” which, as we have seen, applied only to bona fide health and safety measures. See, e.g., (citing 123 U.S., ). Despite Congress’s clear aim, the Wilson Act failed to relieve the dry States’ predicament. In and the Court read the Act’s reference to the “arrival” of alcohol in a State to mean delivery to the consignee, not arrival within the State’s borders. 544 U.S., at 480. The upshot was that residents of dry States could continue to order and receive imported See also Hamm 178. In 1913, Congress tried to patch this hole by passing the Webb-Kenyon Act, ch. 90, 27 U.S. C. The aim of the Webb-Kenyon Act was to give each State a measure of regulatory authority over the importation of alcohol, but this created a drafting problem. There were those who thought that a federal law giving the States this authority would amount to an unconstitutional delegation of Congress’s legislative power over interstate commerce.9 So the Act was framed not as a measure conferring power on the States but as one prohibiting conduct that |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | power on the States but as one prohibiting conduct that violated state law. The Act provided that the shipment of alcohol into a State for use in any manner, “either in the original package or otherwise,” “in violation of any law of such State,” was prohibited.10 This formulation is significant —————— 9 That was the position expressed in an opinion issued by Attorney General Wickersham, 30 Op. Atty. Gen. 88 and President Taft’s veto, which Congress overrode, was based on exactly this ground. 49 Cong. Rec. 4291 (Veto Message of the President). 10 The Act provided: “That the shipment or transportation of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State into any other State which said spirituous, vinous, malted, fermented, or other intoxicating liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law Cite as: 588 U. S. (2019) 19 Opinion of the Court for present purposes because it would provide a model for of the Twenty-first Amendment. The Webb-Kenyon Act attempted to fix the hole in the Wilson Act and thus to “eliminate the regulatory ad- vantage afforded imported liquor,” at 482; see also Clark Distilling but its wording, unlike the Wilson Act’s, did not explicitly mandate equal treat- ment for imported and domestically produced And it referred to “any law of such State,” whereas the Wilson Act referred to “the laws of such State or Territory enacted in the exercise of its police powers.” But de- spite these differences, held, over a strenuous –514 (opinion of THOMAS, J.), that the Webb-Kenyon Act did not purport to authorize States to enact protectionist measures. There is good reason for this holding. As we have noted, the Court’s pre-Webb-Kenyon Act decisions upholding state liquor laws against challenges based on constitutional provisions other than the Commerce Clause had cau- tioned that protectionist laws disguised as exercises of the police power would not escape scrutiny. See at 14– 15.11 The Webb-Kenyon Act, by regulating commerce, could obviate dormant Commerce Clause problems, but it could not override the limitations imposed by these other constitutional provisions and the traditional understand- ing regarding the bounds of the States’ inherent police powers. Therefore the Wilson Act’s reference to laws “enacted in the exercise of [a State’s] police powers,” 26 Stat. 313, merely restated what this Court had already —————— of such State is hereby prohibited.” –700. 11 This principle was also invoked in dormant Commerce Clause cases involving other products. |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | also invoked in dormant Commerce Clause cases involving other products. See, e.g., 319, 323 ; Railroad 20 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court found to be a constitutional necessity, and consequently, there was no need to include such language in the Webb- Kenyon Act. Even without limiting language like that in the Wilson Act, the shelter given by the Webb-Kenyon Act applied only where “the States treated in-state and out-of- state liquor on the same terms.” at 481.12 Following passage of the Webb-Kenyon Act, temperance advocates began the final push for nationwide Prohibition, and with the ratification of the Eighteenth Amendment in 1919, their goal was achieved. The manufacture, sale, transportation, and importation of alcoholic beverages anywhere in the country were prohibited. IV A By 1933, support for Prohibition had substantially diminished but not vanished completely. Thirty-eight state conventions eventually ratified the Twenty-first Amendment, but 10 States either rejected or took no action on the Amendment. Section 1 of the Twenty-first Amendment repealed the Eighteenth Amendment and thus ended nationwide Prohibition, but the provision at issue here, gave each State the option of banning alco- hol if its citizens so chose. —————— 12 Lower court decisions issued between the enactment of the Webb- Kenyon Act and the ratification of the Eighteenth Amendment inter- preted the Act this way. See Evansville Brewing ; Southern Express ; Brennen v. Southern Express 106 S. C. 102, ; Charleston & W. C. R. (Hydrick, J., concurring); Monumental Brewing v. Whitlock, 111 S. C. 198, 97 S.E. 56 (1918). See also Pacific Fruit & Produce v. Martin, 16 F. Supp. 34, –40 ; Friedman, Constitutional Law: State Regulation of Importation of Intoxicating Liquor Under Twenty- first Amendment, 21 Cornell L. Q. 504, 509 Cite as: 588 U. S. (2019) 21 Opinion of the Court As we have previously noted, the text of “closely follow[ed]” the operative language of the Webb-Kenyon Act, and this naturally suggests that was meant to have a similar meaning. –206. The decision to follow that unusual formulation is espe- cially revealing since the drafters of unlike those who framed the Webb-Kenyon Act, had no need to worry that a more straightforward wording might trigger a constitu- tional challenge. Accordingly, we have inferred that was meant to “constitutionaliz[e]” the basic understanding of the extent of the States’ power to regulate alcohol that prevailed before Prohibition. See also And as recognized during that period, the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations. See at 14–15. See also, e.g., Railroad |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | as police-power regulations. See at 14–15. See also, e.g., Railroad (a State “may not, under the cover of exerting its police powers, substan- tially prohibit or burden either foreign or inter-state commerce”). This understanding is supported by the debates on the Amendment in Congress13 and the state ratifying conven- tions. The records of the state conventions provide no evidence that was understood to give States the power to enact protectionist laws,14 “a privilege [the States] had —————— 13 See, e.g., 76 Cong. Rec. 4172 (1933) (statement of Sen. Borah) ( of Twenty-first Amendment would “incorporat[e] [Webb-Kenyon] perma- nently in the Constitution of the United States”); (state- ment of Sen. Fess) (“[T]he second section of the joint resolution is designed to permit the Federal authority to assist the States that want to be dry to remain dry”); (“Section 2 attempts to protect dry states”). 14 See Nielson, No More “Cherry-Picking”: The Real History of the 21st Amendment’s 28 Harv. J. L. & Pub. Pol’y 281, 286, n. 21 (2004). See generally E. Brown, Ratification of the Twenty-first Amendment to the Constitution of the United States; State Convention Records and Laws (1938). 22 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court not enjoyed at any earlier time.” B Although our later cases have recognized that cannot be given an interpretation that overrides all previously adopted constitutional provisions, the Court’s earliest cases interpreting seemed to feint in that direction. In 1936, the Court found that ’s text was “clear” and saw no need to consider whether history supported a more modest interpretation, State Bd. of Equalization of Cal. v. Young’s —an ap- proach even the rejects, see infra, at 24, n. 16; post, at 2.15 The Court read as granting each State plenary “power to forbid all importations which do not comply with the conditions which it prescribes,” Young’s ; see also Ziffrin, Inc. v. Reeves, 308 U.S. 132, –1 including laws that discrimi- —————— 15 The characterizes the Court as a “committee of nine” that has “stray[ed] from the text” of the Twenty-first Amendment and “impose[d] [its] own free-trade rules” on the States. Post, at 8, 15 (opinion of J. GORSUCH). This is empty rhetoric. The itself strays from a blinkered reading of the Amendment. The interprets of the Amendment to mean more than it literally says, arguing that covers the residency requirements at issue even though they are not tied in any way to what the Amendment actually addresses, namely, “the transportation or importation” of alcohol across state lines. See post, at 2, n. 1. And the |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | state lines. See post, at 2, n. 1. And the agrees that cannot be read as broadly as one might think if its language were read in isola- tion and not as part of an integrated constitutional scheme. See post, at 2. The asserts that does not abrogate all previously adopted constitutional provisions, just the dormant Commerce Clause. But the does not say whether it thinks allows the States to adopt alcohol regulations that serve no conceivable purpose other than protectionism. Even the below did not go that far. See n. 18, infra. If gives the States carte blanche to engage in protectionism, we suppose that Tennessee could restrict licenses to persons who can show that their lineal ancestors have lived in the State since 1796 when the State entered the Union. Does the really think that this is what was meant to permit? Cite as: 588 U. S. (2019) 23 Opinion of the Court nated against out-of-state products. See, e.g., Young’s ; v. Joseph Triner Corp., 304 U.S. 401, 403 (1938); Indianapolis Brewing The Court went so far as to assume that the Fourteenth Amendment imposed no barrier to state legislation in the field of alco- hol regulation. See Young’s (“A clas- sification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth”). With subsequent cases, however, the Court saw that cannot be read that way, and it therefore scrutinized state alcohol laws for compliance with many constitutional provisions. See, e.g., 44 Liquormart, ; Larkin v. Grendel’s Den, Inc., (Establishment Clause); ; (Due Process Clause); Department of (Import-Export Clause). The Court also held that does not entirely supersede Congress’s power to regulate commerce. Instead, after evaluating competing federal and state interests, the Court has ruled against state alcohol laws that conflicted with federal regulation of the export of alcohol, Hostetter, –334, federal antitrust law, Midcal Alu- –111, 113–114; Liquor Corp. v. Duffy, and federal regulation of the airwaves, Capital Cities Cable, As for the dormant Commerce Clause, the developments leading to the adoption of the Twenty-first Amendment have convinced us that the aim of was not to give States a free hand to restrict the importation of alcohol for purely protectionist purposes. See at 486–487; 468 U.S., at 24 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court C Although some Justices have argued that shields all state alcohol regulation—including discriminatory laws— from any application of dormant Commerce Clause doc- trine,16 the Court’s modern precedents have repeatedly rejected that view. We have examined whether state alcohol laws that burden interstate commerce serve a State’s |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | state alcohol laws that burden interstate commerce serve a State’s legitimate interests. And protectionism, we have stressed, is not such an interest. Applying that principle, we have invalidated state alco- hol laws aimed at giving a competitive advantage to in- state businesses. The Court’s decision in “pro- vides a particularly telling example.” at 487. There, the Court was confronted with a tax exemp- tion that favored certain in-state alcohol producers. In defending the law, the State argued that even if the dis- criminatory exemption violated “ordinary Commerce Clause principles, it [was] saved by the Twenty-first Amendment.” We rejected that argument and held instead that the relevant question was “whether the principles underlying the Twenty-first Amendment are sufficiently implicated by the [discrimina- —————— 16 See, e.g., v. Heald, (THOMAS, J., ing); 491 U.S. (Rehnquist, C. J., ing); Liquor 479 U.S. 335, 352–353 (O’Connor, J., ing); Imports, (Stevens, J., ing). The rehashes this debate, see post, at 5–8, 14, asserting that the Webb-Kenyon Act, and thus were “understood” to repudiate not only the original-package cases, but also the antidiscrimination rule articulated in cases including But this Court’s modern decisions—not simply the lower court decisions at which the takes aim, see post, at 6, n. 3—establish that those enactments, though no doubt aimed at granting States additional “discretion to calibrate alcohol regulations to local preferences,” post, at 2, did not exempt States from “the nondiscrimination principle of the Commerce Clause.” Cite as: 588 U. S. (2019) 25 Opinion of the Court tory] exemption to outweigh the Commerce Clause principles that would otherwise be offended.” Ultimately, we held that did not save the disputed tax because it clearly aimed “ ‘to promote a local industry’ ” rather than “to promote temperance or to carry out any other purpose of the Twenty-first Amendment.” at The same went for the state law in 491 U.S. which required out-of-state shippers of beer to affirm that their wholesale price for products sold in Connecticut was no higher than the prices they charged to wholesalers in bordering States. Connect- icut argued that the “Twenty-first Amendment sanc- tion[ed]” this law “regardless of its effect on interstate commerce,” but we held that the law violated the Commerce Clause, noting that it “discriminate[d] against brewers and shippers of beer engaged in interstate commerce” without justification “by a valid factor unrelated to economic protectionism,” at 340–341.17 Most recently, in we struck down a set of discriminatory direct-shipment laws that favored in-state wineries over out-of-state competitors. After surveying the history of we affirmed that “the Twenty-first Amendment does not immunize all laws from Commerce |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | “the Twenty-first Amendment does not immunize all laws from Commerce Clause challenge.” We therefore exam- ined whether the challenged laws were reasonably neces- sary to protect the States’ asserted interests in policing underage drinking and facilitating tax collection. at 489–493. Concluding that the answer to that question was no, we invalidated the laws as inconsistent with the —————— 17 Justice Scalia, for his part, thought the “statute’s invalidity [was] fully established by its facial discrimination against interstate com- merce”—discrimination that in his view “eliminate[d] the immunity afforded by the Twenty-first Amendment.” (opin- ion concurring in part and concurring in judgment) (citing –). 26 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court dormant Commerce Clause’s nondiscrimination principle. at 492–493. To summarize, the Court has acknowledged that grants States latitude with respect to the regulation of alcohol, but the Court has repeatedly declined to read as allowing the States to violate the “nondiscrimination principle” that was a central feature of the regulatory regime that the provision was meant to constitutionalize. D The Association resists this reading. Although it con- cedes (as it must under ) that does not give the States the power to discriminate against out-of-state alcohol products and producers, the Association presses the argument, echoed by the that a different rule applies to state laws that regulate in-state alcohol distri- bution. There is no sound basis for this distinction.18 1 The Association’s argument encounters a problem at the outset. The argument concedes that does not shield state laws that discriminate against interstate commerce with respect to the very activity that the provision explicitly addresses—the importation of But at the same time, the Association claims that protects something that ’s text, if read literally, does not cover—laws re- stricting the licensing of domestic retail alcohol stores. That reading is implausible. Surely if granted States the power to discriminate in the field of alcohol regulation, —————— 18 The Association’s argument is more extreme than that of the dis- sent below, which recognized that in-state distribution laws that “serve no purpose besides ‘economic protectionism’ ” remain subject to dormant Commerce Clause scrutiny. (Sutton, J., concurring in part and ing in part) (quoting at ). Cite as: 588 U. S. (2019) 27 Opinion of the Court that power would be at its apex when it comes to regulat- ing the activity to which the provision expressly refers. The Association and the point out that repeatedly spoke of discrimination against out- of-state products and producers, but there is an obvious explanation: The state laws at issue in discrim- inated against out-of-state |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | The state laws at issue in discrim- inated against out-of-state producers. See 883 F.3d, at 621. And never said that its reading of history or its Commerce Clause analysis was limited to discrimi- nation against products or producers. On the contrary, the Court stated that the Clause prohibits state discrimi- nation against all “ ‘out-of-state economic interests,’ ” and noted that the direct-shipment laws in question “contradict[ed]” dormant Commerce Clause principles because they “de- prive[d] citizens of their right to have access to the mar- kets of other States on equal terms.” (emphasis added). also described its analysis as con- sistent with the rule set forth in Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573 and that “ ‘[w]hen a state statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests, we have generally struck down the statute without further inquiry.’ ” (quoting at 579; emphasis added). The Association counters that even if the Court did not explicitly limit its holding to products and producers, the Court implicitly did so when it rejected the argument that its analysis would call into question the constitutionality of state laws setting up three-tiered alcohol distribution systems. See at 488–489. This argument, which the also advances, see post, at 12–13, reads far too much into ’s discussion of the three-tiered model. Although 28 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court spoke approvingly of that basic model, it did not suggest that sanctions every discriminatory feature that a State may incorporate into its three-tiered scheme. At issue in the present case is not the basic three-tiered model of separating producers, wholesalers, and retailers, but the durational-residency requirement that Tennessee has chosen to impose on new applicants for liquor store licenses. Such a requirement is not an essential feature of a three-tiered scheme. Many such schemes do not impose durational-residency requirements—or indeed any resi- dency requirements—on individual or corporate liquor store owners. See, e.g., Brief for State of Illinois et al. as Amici Curiae 24–25, 27 (identifying States that have either “dispos[ed] with the durational aspect of the [resi- dency] requirement” or “d[o] not regulate the residency of the applicant corporation or partnership”). Other three- tiered schemes differ in other ways. See, e.g., at 24–28 (noting variations); FTC, Possible Anticompetitive Barri- ers to E-Commerce: Wine 7–9 (July 2003), https:// wwwftc gov / sites/default/files/documents/reports/possible -anticompetitive-barriers-e-commerce-wine/winereport2_0. pdf (as last visited June 24, 2019) (same). Because we agree with the that, under States “remai[n] free to pursue” their legitimate interests |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | that, under States “remai[n] free to pursue” their legitimate interests in regulating the health and safety risks posed by the alcohol trade, post, at 12, each variation must be judged based on its own features. 2 In support of the argument that the Tennessee scheme is constitutional, the Association and its amici claim that discriminatory distribution laws, including in-state pres- ence and residency requirements, long predate Prohibition and were adopted by many States following ratification of Cite as: 588 U. S. (2019) 29 Opinion of the Court the Twenty-first Amendment.19 Indeed, the Association notes that the 2-year durational-residency requirement now before us dates back to 19 and is consistent with durational-residency regimes adopted by several other States around the same time.20 According to the Associa- tion, that history confirms that was intended to broadly exempt all in-state distribution laws from dormant Com- merce Clause scrutiny. The relies heavily on this same argument. This argument fails for several reasons. Insofar as it relies on state laws enacted shortly after the ratification of the Twenty-first Amendment and this Court’s early deci- sions interpreting it, the Association and the ’s argument does not take into account the overly expansive interpretation of that took hold for a time in the imme- diate aftermath of its adoption. See at 22–23. Thus, some state laws adopted soon after the ratification of the Twenty-first Amendment may have been based on an understanding of that can no longer be defended. It is telling that an argument similar to the one now made by the Association would have dictated a contrary result in since state laws disfavoring imported products were passed during this same period. See, e.g., Young’s 299 U.S., (discriminatory license fee on imported beer); (prohibition on import of certain liquors); Indianapolis Brewing 305 —————— 19 See and n. 6 (THOMAS, J., ing) (licensing schemes adopted by three-tier States following ratification of Twenty-first Amendment discriminated “by requiring in-state residency or physical presence as a condition of obtaining licenses”) (collecting statutes); Brief for Petitioner 33–34 (collecting residency-requirement statutes). See also Brief for State of Illinois et al. as Amici Curiae 7–8 (referencing 19th-century state statutes that required “retailers to reside in-state or to maintain an in-state presence”). 20 See 19 Tenn. Pub. Acts, ch. 49, Brief for Petitioner 34 (collecting durational-residency requirement statutes); Brief for State of Illinois et al. as Amici Curiae 24 (same). 30 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court U. S., at (same). But our later cases have rejected this interpretation of See Insofar as the Association’s argument is based |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | interpretation of See Insofar as the Association’s argument is based on state laws adopted prior to Prohibition, it infers too much from the existence of laws that were never tested in this Court. Had they been tested here, there is no reason to conclude that they would have been sustained. During that time, the Court repeatedly invalidated, on dormant Commerce Clause grounds, a variety of state and local efforts to license those engaged in interstate business,21 and as noted, pre-Prohibition decisions of this Court and the lower courts held that state alcohol laws that discriminat- ed against interstate commerce were unconstitutional, see Contrary to the Association’s contention, not all of these —————— 21 Real Silk Hosiery (license tax on solicitors of orders to be filled by an out-of-state manu- facturer); Shafer v. Farmers Grain of Embden, 197– 201 (license requirement for the purchase of grain shipped immediately out of the State); 669– 670 (1914) (state law requiring a license for catalog sales); Crenshaw v. Arkansas, (state law requiring a foreign corporation actively soliciting sales in State to obtain a license); Dozier v. Alabama, (licensing requirement on the solicitors of photography enlargement services and frames manu- factured out of State); International Textbook v. Pigg, 107–111 (state law requiring an out-of-state educational publish- ing company to pay a license fee for exchanging materials with custom- ers); (ordinance requiring license to solicit orders for out-of-state goods); Norfolk & Western R. v. Sims, –451 (state licensing requirement on express company acting as agent for importer of a sewing machine); (licensing tax on persons engaged in trade on behalf of firms doing business outside the State); 505– 506 (state licensing requirement as applied to agent of out-of- state firm soliciting sales); 282– 283 (1876) (state law requiring payment of license tax by sellers of out- of-state goods). Cite as: 588 U. S. (2019) 31 Opinion of the Court decisions involved discrimination against alcohol produced out of State or alcohol importers. The tax in for example, applied to those engaged in the business of sell- ing imported alcohol within the State. And in concluding that the law violated the Commerce Clause, the Court affirmed that, without the dormant Commerce Clause, there would “be no security against conflicting regulations of different states, each discriminating in favor of its own products and citizens, and against the products and citizens of other states.” at 456–457 So too, the dispensary law in Scott was challenged on the ground that it discriminated “against products of other States and against citizens of other States.” 165 U.S., ; see also at 94. Nor |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | other States.” 165 U.S., ; see also at 94. Nor have States historically enjoyed absolute authority to police alcohol within their borders. As discussed earlier, far from granting the States plenary authority to adopt domestic regulations, the Court’s police-power precedents required an examination of the actual purpose and effect of a challenged law. See, e.g., 123 U.S., (“It does not at all follow that every statute enacted osten- sibly for the promotion” of “the public health, the public morals, or the public safety” is “to be accepted as a legiti- mate exertion of the police powers of the State”); see also 95 U.S., at ; (1876). Cf. H. Black, Intoxicating Liquors p. 40 (1892) (stating that certain 19th-century licensing and residency requirements were valid because their “purpose and effect” was to prevent “the unlawful selling of liquors, and not to discriminate against citizens of other states” ). For these reasons, we reject the Association’s overly broad understanding of That provision allows each State leeway to enact the measures that its citizens be- lieve are appropriate to address the public health and 32 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court safety effects of alcohol use and to serve other legitimate interests, but it does not license the States to adopt protec- tionist measures with no demonstrable connection to those interests. V Having concluded that does not confer limitless authority to regulate the alcohol trade, we now apply the analysis dictated by the provision’s history and our precedents. If we viewed Tennessee’s durational-residency require- ments as a package, it would be hard to avoid the conclu- sion that their overall purpose and effect is protectionist. Indeed, two of those requirements—the 10-year residency requirement for license renewal and the provision that shuts out all publicly traded corporations—are so plainly based on unalloyed protectionism that neither the Associa- tion nor the State is willing to come to their defense. The provision that the Association and the State seek to pre- serve—the 2-year residency requirement for initial license applicants—forms part of that scheme. But we assume that it can be severed from its companion provisions, see –628, and we therefore analyze that provision on its own. Since the 2-year residency requirement discriminates on its face against nonresidents, it could not be sustained if it applied across the board to all those seeking to operate any retail business in the State. Cf. C & A Carbone, Inc. v. Clarkstown, ; But because of we engage in a different inquiry. Recogniz- ing that was adopted to give each State the authority to |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | that was adopted to give each State the authority to address alcohol-related public health and safety issues in accordance with the preferences of its citizens, we ask whether the challenged requirement can be justified as a public health or safety measure or on some other legiti- Cite as: 588 U. S. (2019) 33 Opinion of the Court mate nonprotectionist ground. Section 2 gives the States regulatory authority that they would not otherwise enjoy, but as we pointed out in “mere speculation” or “unsupported assertions” are insufficient to sustain a law that would otherwise violate the Commerce Clause. 544 U.S., 492. Where the predominant effect of a law is protectionism, not the protection of public health or safety, it is not shielded by The provision at issue here expressly discriminates against nonresidents and has at best a highly attenuated relationship to public health or safety. During the course of this litigation, the Association relied almost entirely on the argument that Tennessee’s residency requirements are simply “not subject to Commerce Clause challenge,” and the State itself mounted no independent defense. As a result, the record is devoid of any “concrete evidence” showing that the 2-year residency requirement actually promotes public health or safety; nor is there evidence that nondiscriminatory alternatives would be insufficient to further those interests. ; see 883 F.3d, 5–626. In this Court, the Association has attempted to defend the 2-year residency requirement on public health and safety grounds, but this argument is implausible on its face. The Association claims that the requirement ensures that retailers are “amenable to the direct process of state courts,” Brief for Petitioner 48 (internal quotation marks omitted), but the Association does not explain why this objective could not easily be achieved by ready alterna- tives, such as requiring a nonresident to designate an agent to receive process or to consent to suit in the Ten- nessee courts. See Similarly unpersuasive is the Association’s claim that the 2-year requirement gives the State a better opportu- nity to determine an applicant’s fitness to sell alcohol and 34 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court guards against “undesirable nonresidents” moving into the State for the purpose of operating a liquor store. Brief for Petitioner 10 (internal quotation marks omitted). The State can thoroughly investigate applicants without re- quiring them to reside in the State for two years before obtaining a license. Tennessee law already calls for crimi- nal background checks on all applicants, see Tenn. Code Ann. and more searching checks could be demanded if necessary. As the Fifth Circuit observed in |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | be demanded if necessary. As the Fifth Circuit observed in a similar case, “[i]f [the State] desires to scrutinize its appli- cants thoroughly, as is its right, it can devise nondiscrimi- natory means short of saddling applicants with the ‘bur- den’ of residing” in the State. 11 F.3d, at The 2-year residency requirement, in any event, poorly serves the goal of enabling the State to ensure that only law-abiding and responsible applicants receive licenses. As the Tennessee attorney general explained, if a nonresi- dent moves to the State with the intention of applying for a license once the 2-year period ends, the TABC will not necessarily have any inkling of the future applicant’s intentions until that individual applies for a license, and consequently, the TABC will have no reason to begin an investigation until the 2-year period has ended. App. to Brief in Opposition 17a. And all that the 2-year require- ment demands is residency. A prospective applicant is not obligated during that time “to be educated about liquor sales, submit to inspections, or report to the State.” The 2-year residency requirement is not needed to en- able the State to maintain oversight over liquor store oper- ators. In it was argued that the prohibition on the shipment of wine from out-of-state sources was justi- fied because the State could not adequately monitor the activities of nonresident entities. Citing “improvements in technology,” we found that argument insufficient. 544 U.S., at 492. See also at (“In this age of split-second communications by means of computer Cite as: 588 U. S. (2019) 35 Opinion of the Court networks there is no shortage of less burdensome, yet still suitable, options”). In this case, the argument is even less persuasive since the stores at issue are physically located within the State. For that reason, the State can monitor the stores’ operations through on-site inspections, audits, and the like. See Should the State conclude that a retailer has “fail[ed] to comply with state law,” it may revoke its operating license. 544 U.S., This “provides strong incentives not to sell alcohol” in a way that threatens public health or safety. In addition to citing the State’s interest in regulatory control, the Association argues that the 2-year residency requirement would promote responsible alcohol consump- tion. According to the Association, the requirement makes it more likely that retailers will be familiar with the com- munities served by their stores, and this, it is suggested, will lead to responsible sales practices. Brief for Petitioner 48–49. The idea, it seems, is that a responsible neighbor- hood proprietor will counsel or |
Justice Alito | 2,019 | 8 | majority | Tennessee Wine and Spirits Retailers Assn. v. Thomas | https://www.courtlistener.com/opinion/4632952/tennessee-wine-and-spirits-retailers-assn-v-thomas/ | is that a responsible neighbor- hood proprietor will counsel or cut off sales to patrons who are known to be abusing alcohol, who manifest the effects of alcohol abuse, or who perhaps appear to be purchas- ing too much No evidence has been offered that durational-residency requirements actually foster such sales practices, and in any event, the requirement now before us is very poorly designed to do so. For one thing, it applies to those who hold a license, not to those who actually make sales. For another, it requires residence in the State, not in the community that a store serves. The Association cannot explain why a proprietor who lives in Bristol, Virginia, will be less knowledgeable about the needs of his neighbors right across the border in Bristol, Tennessee, than someone who lives 500 miles away in Memphis. And the rationale is further under- mined by other features of Tennessee law, particularly the lack of durational-residency requirements for owners of 36 TENNESSEE WINE AND SPIRITS RETAILERS ASSN. v. THOMAS Opinion of the Court bars and other establishments that sell alcohol for on- premises consumption. Not only is the 2-year residency requirement ill suited to promote responsible sales and consumption practices (an interest that we recognize as legitimate, contrary to the ’s suggestion, post, at 9, 12, 14), but there are obvious alternatives that better serve that goal without discriminating against nonresidents. State law empowers the relevant authorities to limit both the number of retail licenses and the amount of alcohol that may be sold to an individual. Cf. (permitting local govern- ments to “limit the number of licenses issued within their jurisdictions”); (imposing volume limits on certain sales of alcohol to patrons); Rules of TABC, ch. 0100–01, (same). The State could also mandate more extensive training for managers and employees and could even demand that they demonstrate an adequate connection with and knowledge of the local community. Cf., e.g., Tenn. Code Ann. (requiring managers of liquor stores to obtain permits, satisfy background checks, and undergo “alcohol awareness” training). And the State of course remains free to monitor the practices of retailers and to take action against those who violate the law. Given all this, the Association has fallen far short of showing that the 2-year durational-residency requirement for license applicants is valid. Like the other discrimina- tory residency requirements that the Association is unwill- ing to defend, the predominant effect of the 2-year resi- dency requirement is simply to protect the Association’s members from out-of-state competition. We therefore hold that this provision violates the Commerce Clause and is |
Justice Thomas | 2,011 | 1 | dissenting | Pepper v. United States | https://www.courtlistener.com/opinion/205788/pepper-v-united-states/ | I would affirm the Court of Appeals and uphold Pepper’s sentence. As written, the Federal Sentencing Guidelines do not permit district courts to impose a sentence below the Guidelines range based on the defendant’s postsen tencing rehabilitation.1 See United States Sentencing Commission, Guidelines Manual (Nov. 2010) (USSG). Therefore, I respectfully dissent. In United 258–265 the Court rendered the entire Guidelines scheme advisory, a remedy that was “far broader than necessary to correct constitutional error.” Because there is “no principled way to apply the remedy,” I have explained that it is “best to apply the statute as written, including 18 U.S. C. which makes the Guidelines mandatory,” unless doing so would actually violate the Sixth Amendment. ; see –326 (THOMAS, J., dissenting in part); (THO- MAS, J., dissenting); Irizarry v. United States, 553 U.S. 708, 717 (2008) (THOMAS, J., concurring). I would apply the Guidelines as written in this case —————— 1 I agree with the Court that the law of the case doctrine did not con trol Pepper’s resentencing. See ante, at 29–31. 2 PEPPER v. UNITED STATES THOMAS, J., dissenting because doing so would not violate the Sixth Amendment. The constitutional problem arises only when a judge makes “a finding that raises the sentence beyond the sentence that could have lawfully been imposed by refer ence to facts found by the jury or admitted by the defen dant.” Pepper admitted in his plea agreement to involvement with between 1,500 and 5,000 grams of methamphetamine mixture, which carries a sentence of 10 years to life under 21 U.S. C. United Because Pepper has ad mitted facts that would support a much longer sentence than the 65 months he received, there is no Sixth Amend ment problem in this case. Under a mandatory Guidelines regime, Pepper’s sen tence was proper. The District Court correctly calculated the Guidelines range, incorporated a USSG depar ture and the Government’s motion under Federal Rule of Criminal Procedure 35(b), and settled on a 65-month sentence. Guideline expressly prohibits down ward departures based on “[p]ost-sentencing rehabilitative efforts, even if exceptional.” Nor is there any provision in the Guidelines for the “variance” Pepper seeks, as such variances are creations of the remedy. I would therefore affirm the Court of Appeals’ decision to uphold Pepper’s sentence. Although this outcome would not represent my own policy choice, I am bound by the choices made by Congress and the Federal Sentencing Commission. Like the major ity, I believe that postsentencing rehabilitation can be highly relevant to meaningful resentencing. See ante, at 13–15. In light of Pepper’s success in escaping drug addic |
Justice Powell | 1,978 | 17 | majority | Nixon v. Warner Communications, Inc. | https://www.courtlistener.com/opinion/109830/nixon-v-warner-communications-inc/ | This case presents the question whether the District Court for the District of Columbia should release to respondents certain tapes admitted into evidence at the trial of petitioner's former advisers. Respondents wish to copy the tapes for broadcasting and sale to the public. The Court of Appeals for the District of Columbia Circuit held that the District Court's refusal to permit immediate copying of the tapes was an abuse of discretion. United We granted certiorari, and for the reasons that follow, we reverse. I On July 1, testimony before the Senate Select Committee on Presidential Campaign Activities revealed that petitioner, then President of the United States, had maintained a system for tape recording conversations in the White House Oval Office and in his private office in the Executive Office Building. Hearing on Watergate and Related Activities Before the Senate Select Committee on Presidential Campaign Activities, 93d Cong., 1st Sess., 2074-207 A week later, the Watergate Special Prosecutor issued a subpoena duces tecum directing petitioner to produce before a federal grand jury tape recordings of eight meetings and one telephone conversation recorded in petitioner's offices. When petitioner refused to comply with the subpoena, the District Court for the District of Columbia ordered production of the recordings. In re Subpoena to In November petitioner submitted seven of the nine subpoenaed recordings and informed the Office of the Special Prosecutor that the other two were missing. On March 1, the grand jury indicted seven individuals[1] for, among other things, conspiring to obstruct justice in connection with the investigation of the 1972 burglary of the Democratic National Committee headquarters. In preparation for this trial, styled United[2] the Special Prosecutor, on April 18, issued a second subpoena duces tecum, directing petitioner to produce tape recordings and documents relating to some 4 additional Presidential meetings and conversations. The District Court denied petitioner's motions to quash. United This Court granted certiorari before judgment in the Court of Appeals and affirmed. United In accordance with our decision, the subpoenaed tapes were turned over to the *593 District Court for in camera inspection. The court arranged to copies made of the relevant and admissible portions. It retained one copy and gave the other to the Special Prosecutor.[3] *594 The trial began on October 1, before Judge Sirica. During its course, some 22 hours of taped conversations were played for the jury and the public in the courtroom. The reels of tape containing conversations played for the jury were entered into evidence. The District Court furnished the jurors, reporters, and members of the public in attendance with earphones and with |
Justice Powell | 1,978 | 17 | majority | Nixon v. Warner Communications, Inc. | https://www.courtlistener.com/opinion/109830/nixon-v-warner-communications-inc/ | members of the public in attendance with earphones and with transcripts prepared by the Special Prosecutor. The transcripts were not admitted as evidence, but were widely reprinted in the press. Six weeks after the trial had begun, respondent broadcasters[4] filed a motion before Judge Sirica, seeking permission to copy, broadcast, and sell to the public the portions of the tapes played at trial. Petitioner opposed the application. Because United was consuming all of Judge Sirica's time, this matter was transferred to Judge Gesell. *595 On December 5, Judge Gesell held that a common-law privilege of public access to judicial records permitted respondents to obtain copies of exhibits in the custody of the clerk, including the tapes in question. United Judge Gesell minimized petitioner's opposition to respondents' motion, declaring that neither his alleged property interest in the tapes nor his asserted executive privilege sufficed to prevent release of recordings already publicly aired and available, in transcription, to the world at large. Judge Gesell cautioned, however, against "overcommercialization of the evidence." And because of potential administrative and mechanical difficulties, he prohibited copying until the trial was over. He requested that the parties submit proposals for access and copying procedures that would minimize overcommercialization and administrative inconvenience at that time. In an order of January 8, 1975, Judge Gesell rejected respondents' joint proposals as insufficient. -44. Noting the close of the Mitchell trial, he transferred the matter back to Judge Sirica. On April 4, 1975, Judge Sirica denied without prejudice respondents' petitions for immediate access to the tapes. United Observing that all four men convicted in the Mitchell trial had filed notices of appeal, he declared that their rights could be prejudiced if the petitions were granted. Immediate access to the tapes might "result in the manufacture of permanent phonograph records and tape recordings, perhaps with commentary by journalists or entertainers; marketing of the tapes would probably involve mass merchandising techniques designed to generate excitement in an air of ridicule to stimulate sales." Since release of the transcripts had apprised the public of the tapes' contents, the public's "right to know" did not, in Judge Sirica's view, overcome the need to safeguard the defendants' rights on appeal. -189. Judge Sirica also noted the passage of the Presidential Recordings and Materials Preservation Act *59 (Presidential Recordings Act), note following 44 U.S. C. 2107 (1970 ed., Supp. V),[5] and the duty thereunder of the Administrator of General (Administrator) to submit to Congress regulations governing access to Presidential tapes in general. Under the proposed regulations then before Congress,[] public distribution of copies would be delayed for |
Justice Powell | 1,978 | 17 | majority | Nixon v. Warner Communications, Inc. | https://www.courtlistener.com/opinion/109830/nixon-v-warner-communications-inc/ | before Congress,[] public distribution of copies would be delayed for 4 1/2 years. Although Judge Sirica doubted that the Act covered the copies at issue here, he viewed the proposed regulations as suggesting that immediate release was not of overriding importance. The Court of Appeals reversed. United It stressed the importance of the common-law privilege to inspect and copy judicial records and assigned to petitioner the burden of proving that justice required limitations on the privilege. In the court's view, the mere possibility of prejudice to defendants' rights in the event of a retrial did not outweigh the public's right of access. -123. The court concluded that the District Court had "abused its discretion in allowing those diminished interests in confidentiality to interfere with the public's right to inspect and copy the tapes." It remanded for the development of a plan of release, but noted in apparent contrast to the admonitions of Judge Gessellthat the "court's power to control the uses to which the tapes are put once released is sharply limited by the First Amendment." at 304 n. n. (emphasis in original). We granted certiorari to review this holding that the common-law right of access to judicial records requires the District Court to release the tapes in its custody. *597 II Both petitioner and respondents acknowledge the existence of a common-law right of access to judicial records, but they differ sharply over its scope and the circumstances warranting restrictions of it. An infrequent subject of litigation, its contours not been delineated with any precision. Indeed, no case directly in pointthat is, addressing the applicability of the common-law right to exhibits subpoenaed from third partieshas been cited or discovered. A It is clear that the courts of this country recognize a general right to inspect and copy public records and documents,[7] including judicial records and documents.[8] In contrast to the English practice, see, e. g., Browne v. Cumming, 10 B. & C. 70, 109 Eng. Rep. 377 (K. B. 1829), American decisions generally do not condition enforcement of this right on a proprietary interest in the document or upon a need for it as evidence in a lawsuit. The interest necessary to support the issuance *598 of a writ compelling access has been found, for example, in the citizen's desire to keep a watchful eye on the workings of public agencies, see, e. g., State ex rel. ; State ex rel. Ferry v. Williams, 41 N. J. L. 332, 33-339 (1879), and in a newspaper publisher's intention to publish information concerning the operation of government, see, e. g., State ex |
Justice Powell | 1,978 | 17 | majority | Nixon v. Warner Communications, Inc. | https://www.courtlistener.com/opinion/109830/nixon-v-warner-communications-inc/ | concerning the operation of government, see, e. g., State ex rel. modified on other grounds, But see It is uncontested, however, that the right to inspect and copy judicial records is not absolute. Every court has supervisory power over its own records and files, and access has been denied where court files might become a vehicle for improper purposes. For example, the common-law right of inspection has bowed before the power of a court to insure that its records are not "used to gratify private spite or promote public scandal" through the publication of "the painful and sometimes disgusting details of a divorce case." In re 18 Rawle I. 835, 83, Accord, e. g., See also Similarly, courts refused to permit their files to serve as reservoirs of libelous statements for press consumption, ; see ; ; see also or as sources of business information that might harm a litigant's competitive standing, see, e. g., 5-, ; Flexmir, It is difficult to distill from the relatively few judicial *599 decisions a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate. The few cases that recognized such a right do agree that the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.[9] In any event, we need not undertake to delineate precisely the contours of the common-law right, as we assume, arguendo, that it applies to the tapes at issue here.[10] B Petitioner advances several reasons supporting the exercise of discretion against release of the tapes.[] *00 First, petitioner argues that he has a property interest in the sound of his own voice, an interest that respondents intend to appropriate unfairly.[12] In respondents' view, our decision in upholding the constitutionality of the Presidential Recordings Act, divested petitioner of any property rights in the tapes that could be asserted against the general public. Petitioner insists, however, that respondents' point is not fully responsive to his argument. Petitioner is not asserting a proprietary right to the tapes themselves. He likens his interest to that of a third party whose voice is recorded in the course of a lawful wiretap by police officers and introduced into evidence on tape. In petitioner's view, use of one's voice as evidence in a criminal trial does not give rise to a license for commercial exploitation. Petitioner also maintains that his privacy would be infringed |
Justice Powell | 1,978 | 17 | majority | Nixon v. Warner Communications, Inc. | https://www.courtlistener.com/opinion/109830/nixon-v-warner-communications-inc/ | exploitation. Petitioner also maintains that his privacy would be infringed if aural copies of the tapes were distributed to the public.[13] The Court of Appeals rejected this contention. It reasoned that with the playing of the tapes in the courtroom, the publication of their contents in the form of written transcripts, and the passage of the Presidential Recordings Actin which Congress contemplated ultimate public distribution of aural copiesany realistic expectation of privacy disappeared. 179 U. S. App. D. C., at -124. *01 Furthermore, the court ruled that as Presidential documents the tapes were "impressed with the `public trust'" and not subject to ordinary privacy claims. 551 F.2d, at 124. Respondents add that aural reproduction of actual conversations, reflecting nuances and inflections, is a more accurate means of informing the public about this important historical event than a verbatim written transcript. Petitioner disputes this claim of "accuracy," emphasizing that the tapes required 22 hours to be played. If made available for commercial recordings or broadcast by the electronic media, only fractions of the tapes, necessarily taken out of context, could or would be presented. Nor would there be any safeguard, other than the taste of the marketing medium, against distortion through cutting, erasing, and splicing of tapes. There would be strong motivation to titillate as well as to educate listeners. Petitioner insists that this use would infringe his privacy, resulting in embarrassment and anguish to himself and the other persons who participated in private conversations that they had every reason to believe would remain confidential. Third, petitioner argues that our decision in United authorized only the most limited use of subpoenaed Presidential conversations consistent with the constitutional duty of the judiciary to ensure justice in criminal prosecutions. The Court of Appeals concluded, however, that the thrust of our decision in that case was to protect the confidentiality of Presidential conversations that were neither relevant nor admissible in the criminal proceeding; it did not relate to uses of conversations actually introduced into evidence. Since these conversations were no longer confidential, 179 U. S. App. D. C., -30, 551 F.2d, at 124-125, Presidential privilege no longer afforded any protection. Finally, petitioner argues that it would be improper for the courts to facilitate the commercialization of these White House tapes. The court below rejected this argument, holding *02 it a "question of taste" that could not take precedence over the public's right of access. at 30, 551 F.2d, at 125. Petitioner rejoins that such matters of taste induce courts to deny public access to court files in divorce and libel litigation. See, e. g., |
Justice Powell | 1,978 | 17 | majority | Nixon v. Warner Communications, Inc. | https://www.courtlistener.com/opinion/109830/nixon-v-warner-communications-inc/ | court files in divorce and libel litigation. See, e. g., In re 18 Rawle I. 835, ; 28 App. Div., at 48 N. Y. S. 2d, at 35. Moreover, argues petitioner, widespread publication of the transcripts has satisfied the public's legitimate interests; the marginal gain in information from the broadcast and sale of aural copies is outweighed by the unseemliness of enlisting the court, which obtained these recordings by subpoena for a limited purpose, to serve as the vehicle of their commercial exploitation "at cocktail parties, in comedy acts or dramatic productions, and in every manner that may occur to the enterprising, the imaginative, or the antagonistic recipients of copies." Brief for Petitioner 30. C At this point, we normally would be faced with the task of weighing the interests advanced by the parties in light of the public interest and the duty of the courts.[14] On respondents' side of the scales is the incremental gain in public understanding of an immensely important historical occurrence that arguably would flow from the release of aural copies of these tapes, a gain said to be not inconsequential despite the already widespread dissemination of printed transcripts. Also on respondents' side is the presumptionhowever gaugedin favor of public access to judicial records. On petitioner's side are the arguments identified above, which must be assessed in the context of court custody of the tapes. Underlying each of petitioner's arguments is the crucial fact that respondents require a court's cooperation in furthering their commercial *03 plans. The courtas custodian of tapes obtained by subpoena over the opposition of a sitting President, solely to satisfy "fundamental demands of due process of law in the fair administration of criminal justice," United at 713has a responsibility to exercise an informed discretion as to release of the tapes, with a sensitive appreciation of the circumstances that led to their production. This responsibility does not permit copying upon demand. Otherwise, there would exist a danger that the court could become a partner in the use of the subpoenaed material "to gratify private spite or promote public scandal," In re at 83, with no corresponding assurance of public benefit. We need not decide how the balance would be struck if the case were resolved only on the basis of the facts and arguments reviewed above. There is in this case an additional, unique element that was neither advanced by the parties nor given appropriate consideration by the courts below. In the Presidential Recordings Act, Congress directed the Administrator of General to take custody of petitioner's Presidential tapes and documents. The materials are |
Justice Powell | 1,978 | 17 | majority | Nixon v. Warner Communications, Inc. | https://www.courtlistener.com/opinion/109830/nixon-v-warner-communications-inc/ | custody of petitioner's Presidential tapes and documents. The materials are to be screened by Government archivists so that those private in nature may be returned to petitioner, while those of historical value may be preserved and made available for use in judicial proceedings and, eventually, made accessible to the public. Thus, Congress has created an administrative procedure for processing and releasing to the public, on terms meeting with congressional approval, all of petitioner's Presidential materials of historical interest, including recordings of the conversations at issue here.[15] *04 In we noted two major objects of the Act. First, it created a centralized custodian for the preservation and "orderly processing" of petitioner's historical materials. Second, it mandated protection of the "rights of [petitioner] and other individuals against infringement by the processing itself or, ultimately, by public access to the materials retained." at 43. To these ends, the Act directed the Administrator to formulate regulations that would permit consideration of a number of different factors.[1] Thus, the Act provides for *05 legislative and executive appraisal of the most appropriate means of assuring public access to the material, subject to prescribed safeguards. Because of this congressionally prescribed *0 avenue of public access we need not weigh the parties' competing arguments as though the District Court were the only potential source of information regarding these historical materials. The presence of an alternative means of public access tips the scales in favor of denying Respondents argue that immediate release would serve the policies of the Act. The Executive and Legislative Branches, however, possess superior resources for assessing the proper implementation of public access and the competing rights, if any, of the persons whose voices are recorded on the tapes. These resources are to be brought to bear under the Act, and court release of copies of materials subject to the Act might frustrate the achievement of the legislative goals of orderly processing and protection of the rights of all affected persons. Simply stated, the policies of the Act can best be carried out under the Act itself. Indeed, Judge Siricaas we noted at 595-59referred to the scheme established under the Act in assessing the need for immediate ; cf. United (CA3 194). But because defendants' appeals were pending, he merely denied respondents' petition without prejudice, contemplating reconsideration after exhaustion of all appeals.[17]*07 Thus, he did not to confront the question whether the existence of the Act is, as we hold, a decisive element in the proper exercise of discretion with respect to release of the tapes. We emphasize that we are addressing only the application in |
Justice Powell | 1,978 | 17 | majority | Nixon v. Warner Communications, Inc. | https://www.courtlistener.com/opinion/109830/nixon-v-warner-communications-inc/ | We emphasize that we are addressing only the application in this case of the common-law right of access to judicial records. We do not presume to decide any issues as to the proper exercise of the Administrator's independent duty under the statutory standards. He remains free, subject to congressional disapproval, to design such procedures for public access as he believes will advance the policies of the Act.[18] Questions concerning *08 the constitutionality and statutory validity of any access scheme finally implemented are for future consideration in appropriate proceedings. See -439, 444-44, 450, 455, 42, 44-45, 47; Considering all the circumstances of this concededly singular case, we hold that the common-law right of access to judicial records does not authorize release of the tapes in question from the custody of the District Court. We next consider whether, as respondents claim, the Constitution impels us to reach a different result. III Respondents argue that release of the tapes is required by both the First Amendment guarantee of freedom of the press and the Sixth Amendment guarantee of a public trial. Neither supports respondents' conclusion. A In Cox Broadcasting 420 U.S. 49 this Court held that the First Amendment prevented a State from prohibiting the press from publishing the name of a rape victim where that information had been placed "in the public domain on official court records." Respondents *09 claim that Cox Broadcasting guarantees the press "access" tomeaning the right to copy and publishexhibits and materials displayed in open court. This argument misconceives the holding in Cox Broadcasting. Our decision in that case merely affirmed the right of the press to publish accurately information contained in court records open to the public. Since the press serves as the information-gathering agent of the public, it could not be prevented from reporting what it had learned and what the public was entitled to know. In the instant case, however, there is no claim that the press was precluded from publishing or utilizing as it saw fit the testimony and exhibits filed in evidence. There simply were no restrictions upon press access to, or publication of, any information in the public domain. Indeed, the pressincluding reporters of the electronic mediawas permitted to listen to the tapes and report on what was heard. Reporters also were furnished transcripts of the tapes, which they were free to comment upon and publish. The contents of the tapes were given wide publicity by all elements of the media. There is no question of a truncated flow of information to the public. Thus, the issue presented in this case is |
Justice Powell | 1,978 | 17 | majority | Nixon v. Warner Communications, Inc. | https://www.courtlistener.com/opinion/109830/nixon-v-warner-communications-inc/ | the public. Thus, the issue presented in this case is not whether the press must be permitted access to public information to which the public generally is guaranteed access, but whether these copies of the White House tapesto which the public has never had physical accessmust be made available for copying. Our decision in Cox Broadcasting simply is not applicable. The First Amendment generally grants the press no right to information about a trial superior to that of the general public. "Once beyond the confines of the courthouse, a news-gathering agency may publicize, within wide limits, what its representatives heard and seen in the courtroom. But the line is drawn at the courthouse door; and within, a reporter's constitutional rights are no greater than those of any other member of the public." *10 Cf. ; See also 1-17 B Respondents contend that release of the tapes is required by the Sixth Amendment guarantee of a public trial.[19] They acknowledge that the trial at which these tapes were played was one of the most publicized in history, but argue that public understanding of it remains incomplete in the absence of the ability to listen to the tapes and form judgments as to their meaning based on inflection and emphasis. In the first place, this argument proves too much. The same could be said of the testimony of a live witness, yet there is no constitutional right to such testimony recorded and broadcast. Second, while the guarantee of a public trial, in the words of Mr. Justice Black, is "a safeguard against any attempt to employ our courts as instruments of persecution," In re Oliver, it confers no special benefit on the press. ; at 588- Nor does the Sixth Amendment require that the trialor any part of itbe broadcast live or on tape to the public. The requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they observed. That opportunity abundantly existed here. IV We hold that the Court of Appeals erred in reversing the District Court's decision not to release the tapes in its custody. * We remand the case with directions that an order be entered denying respondents' application with prejudice.[20] So ordered. MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN joins, dissenting in part. Although I agree with the Court that the Presidential Recordings and Materials Preservation Act is dispositive of this case and that the judgment of the Court of Appeals should be reversed, my reasons are somewhat different, for |
Justice Powell | 1,978 | 17 | majority | Nixon v. Warner Communications, Inc. | https://www.courtlistener.com/opinion/109830/nixon-v-warner-communications-inc/ | Appeals should be reversed, my reasons are somewhat different, for I do not agree that the Act does not itself reach the tapes at issue here. It is true that 101 (a) of the Act requires delivery to the Administrator and his retention of only original tape recordings and hence does not reach the tapes involved here. But 101 (b) is differently cast: "(b) (1) Notwithstanding any other law or any agreement or understanding made pursuant to section 2107 of title 44, United States Code, the Administrator shall receive, retain, or make reasonable efforts to obtain, complete possession and control of all papers, documents, memorandums, transcripts, and other objects and materials which constitute the Presidential historical materials of Richard M. covering the period beginning January 20, 199, and ending August 9, "(2) For purposes of this subsection, the term `historical *12 materials' has the meaning given it by section 2101 of title 44, United States Code." "Historical materials" is defined in 44 U.S. C. 2101 as "including books, correspondence, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, motion pictures, sound recordings, and other objects or materials having historical or commemorative value." Obviously, 101 (b) has a far broader sweep than 101 (a). It is not limited to originals but would reach copies as well. Nor is there any question that the tapes sought to be released here contain conversations that occurred during the critical period covered by 101 (b)January 20, 199, to August 9, That the tapes at issue are copies made at a later time does not remove the critical fact that the conversations on these copies, like the conversations on the originals, occurred during the relevant period. Furthermore, if the originals are of historical value, the copies are of equal significance. Otherwise, it is unlikely that there would be such an effort to obtain them. Of course, the Administrator under the Presidential Recordings Act is not compelled to seek out every copy of every document or recording that was itself produced during the specified period of time. But surely he is authorized to receive the tapes at issue in this case and to deal with them under the terms of the statute. It is my view, therefore, that the judgment of the Court of Appeals should be reversed, but that the case should be remanded to the District Court with instructions to deliver the tapes in question to the Administrator forthwith. MR. |
Justice Brennan | 1,988 | 13 | majority | Riley v. National Federation of Blind of NC, Inc. | https://www.courtlistener.com/opinion/112141/riley-v-national-federation-of-blind-of-nc-inc/ | The North Carolina Charitable Solicitations Act governs the solicitation of charitable contributions by professional fundraisers. As relevant here, it defines the prima facie "reasonable fee" that a professional fundraiser may charge as a percentage of the gross revenues solicited; requires professional fundraisers to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations; and requires professional fundraisers to obtain a license before engaging in solicitation. The United States Court of Appeals for the Fourth Circuit held that these aspects of the Act unconstitutionally infringed upon freedom of speech. We affirm. I Responding to a study showing that in the previous five years the State's largest professional fundraisers had retained as fees and costs well over 50% of the gross revenues collected in charitable solicitation drives, North Carolina amended its Charitable Solicitations Act in 1985. As amended, the Act prohibits professional fundraisers from retaining an "unreasonable" or "excessive" fee,[1] a term defined by a three-tiered schedule.[2] A fee up to 20% of the gross *785 receipts collected is deemed reasonable. If the fee retained is between 20% and 35%, the Act deems it unreasonable upon a showing that the solicitation at issue did not involve the "dissemination of information, discussion, or advocacy relating to public issues as directed by the [charitable organization] which is to benefit from the solicitation." Finally, a fee exceeding 35% is presumed unreasonable, but the fundraiser may rebut the presumption by showing that the amount of the fee was necessary either (1) because the solicitation involved the dissemination of information or advocacy on public issues directed by the charity, or (2) because otherwise the charity's ability to raise money or communicate would be significantly *786 diminished. As the State describes the Act, even where a prima facie showing of unreasonableness has been rebutted, the factfinder must still make an ultimate determination, on a case-by-case basis, as to whether the fee was reasonable a showing that the solicitation involved the advocacy or dissemination of information does not alone establish that the total fee was reasonable. See Brief for Appellants 10-11; Reply Brief for Appellants 2-3. The Act also provides that, prior to any appeal for funds, a professional fundraiser must disclose to potential donors: (1) his or her name; (2) the name of the professional solicitor or professional fundraising counsel by whom he or she is employed and the name and address of his or her employer; and (3) the average percentage of gross receipts actually turned over to charities by the fundraiser for all charitable solicitations conducted in North Carolina within the |
Justice Brennan | 1,988 | 13 | majority | Riley v. National Federation of Blind of NC, Inc. | https://www.courtlistener.com/opinion/112141/riley-v-national-federation-of-blind-of-nc-inc/ | for all charitable solicitations conducted in North Carolina within the previous 12 months.[3] Only the third disclosure requirement is challenged here. Finally, professional fundraisers may not solicit without an approved license.[4] In contrast, volunteer fundraisers *787 may solicit immediately upon submitting a license application. N. C. Gen. Stat. 131C-4 A licensing provision had been in effect prior to the 1985 amendments, but the prior law allowed both professional and volunteer fundraisers to solicit as soon as a license application was submitted. A coalition of professional fundraisers, charitable organizations, and potential charitable donors brought suit against various government officials charged with the enforcement of the Act (hereinafter collectively referred to as North Carolina or the State), seeking injunctive and declaratory relief. The District Court for the Eastern District of North Carolina ruled on summary judgment that the foregoing aspects of the Act on their face unconstitutionally infringed upon freedom of speech (it also found the Act constitutional in other respects not before us now), and enjoined enforcement of the unconstitutional provisions. The Court of Appeals for the Fourth Circuit affirmed in a per curiam opinion. (judgment order), and we noted probable jurisdiction, II We turn first to the "reasonable fee" provision. In deciding this issue, we do not write on a blank slate; the Court has heretofore twice considered laws regulating the financial aspects of charitable solicitations. We first examined such a law in There we invalidated a local ordinance requiring charitable solicitors to use, for charitable purposes (defined to exclude funds used toward administrative expenses and the costs of conducting the solicitation), 75% of the funds solicited. We began our analysis by categorizing the type of speech at issue. The village argued that charitable solicitation is akin to a business proposition, and therefore constitutes merely commercial speech. We rejected *788 that approach and squarely held, on the basis of considerable precedent, that charitable solicitations "involve a variety of speech interests that are within the protection of the First Amendment," and therefore have not been dealt with as "purely commercial speech." Applying standard First Amendment analysis, we determined that the ordinance was not narrowly tailored to achieve the village's principal asserted interest: the prevention of fraud. We concluded that some charities, especially those formed primarily to advocate, collect, or disseminate information, would of necessity need to expend more than 25% of the funds collected on administration or fundraising expenses. Yet such an eventuality would not render a solicitation by these charities fraudulent. In short, the prevention of fraud was only "peripherally promoted by the 75-percent requirement and could be sufficiently served |
Justice Brennan | 1,988 | 13 | majority | Riley v. National Federation of Blind of NC, Inc. | https://www.courtlistener.com/opinion/112141/riley-v-national-federation-of-blind-of-nc-inc/ | promoted by the 75-percent requirement and could be sufficiently served by measures less destructive of First Amendment interests." We also observed that the village was free to enforce its already existing fraud laws and to require charities to file financial disclosure reports. and nn. 11-12. We revisited the charitable solicitation field four years later in Secretary of State of a case closer to the present one in that the statute directly regulated contracts between charities and professional fundraisers. Specifically, the statute in question forbade such contracts if, after allowing for a deduction of many of the costs associated with the solicitation, the fundraiser retained more than 25% of the money collected. Although the Secretary was empowered to waive this limitation where it would effectively prevent the charitable organization from raising contributions, we held the law unconstitutional under the force of We rejected the State's argument that restraints on the relationship between the charity and the fundraiser were mere "economic regulations" free of First Amendment implication. Rather, we viewed the law as "a direct restriction on the amount of *789 money a charity can spend on fundraising activity," and therefore "a direct restriction on protected First Amendment activity." and n. 16. Consequently, we subjected the State's statute to exacting First Amendment scrutiny. Again, the State asserted the prevention of fraud as its principal interest, and again we held that the use of a percentage-based test was not narrowly tailored to achieve that goal. In fact, we found that if the statute actually prevented fraud in some cases it would be "little more than fortuitous." An "equally likely" result would be that the law would "restrict First Amendment activity that results in high costs but is itself a part of the charity's goal or that is simply attributable to the fact that the charity's cause proves to be unpopular." As in and we are unpersuaded by the State's argument here that its three-tiered, percentage-based definition of "unreasonable" passes constitutional muster. Our prior cases teach that the solicitation of charitable contributions is protected speech, and that using percentages to decide the legality of the fundraiser's fee is not narrowly tailored to the State's interest in preventing fraud.[5] That much established, unless the State can meaningfully distinguish its statute from those discussed in our precedents, its statute must fall. The State offers two distinctions. First, it asserts a motivating interest not expressed in or : ensuring that the maximum amount of funds reach the charity or, somewhat relatedly, to guarantee that the fee charged charities is not "unreasonable." *790 Second, the State contends that |
Justice Brennan | 1,988 | 13 | majority | Riley v. National Federation of Blind of NC, Inc. | https://www.courtlistener.com/opinion/112141/riley-v-national-federation-of-blind-of-nc-inc/ | charities is not "unreasonable." *790 Second, the State contends that the Act's flexibility more narrowly tailors it to the State's asserted interests than the laws considered in our prior cases. We find both arguments unavailing. The State's additional interest in regulating the fairness of the fee may rest on either of two premises (or both): (1) that charitable organizations are economically unable to negotiate fair or reasonable contracts without governmental assistance; or (2) that charities are incapable of deciding for themselves the most effective way to exercise their First Amendment rights. Accordingly, the State claims the power to establish a single transcendent criterion by which it can bind the charities' speaking decisions. We reject both premises. The first premise, notwithstanding the State's almost talismanic reliance on the mere assertion of it, amounts to little more than a variation of the argument rejected in and that this provision is simply an economic regulation with no First Amendment implication, and therefore must be tested only for rationality. We again reject that argument; this regulation burdens speech, and must be considered accordingly. There is no reason to believe that charities have been thwarted in their attempts to speak or that they consider the contracts in which they enter to be anything less than equitable.[6] Even if such a showing could be made, the State's solution stands in sharp conflict with the First Amendment's command that government regulation of speech must be measured in minimums, not maximums. The State's remaining justification the paternalistic premise that charities' speech must be regulated for their own benefit is equally unsound. The First Amendment mandates *791 that we presume that speakers, not the government, know best both what they want to say and how to say it. See (criticizing State's asserted interest in protecting "the Republican party from undertaking a course of conduct destructive of its own interests," and reiterating that government " `may not interfere [with expressions of First Amendment freedoms] on the ground that [it] view[s] a particular expression as unwise or irrational' ") ); cf. First National Bank of ; Linmark Associates, "The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion." To this end, the government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners; free and robust debate cannot thrive if directed by the government. We perceive no reason to engraft an exception to this settled rule for charities. The |
Justice Brennan | 1,988 | 13 | majority | Riley v. National Federation of Blind of NC, Inc. | https://www.courtlistener.com/opinion/112141/riley-v-national-federation-of-blind-of-nc-inc/ | engraft an exception to this settled rule for charities. The foregoing discussion demonstrates that the State's additional interest cannot justify the regulation. But, alternatively, there are several legitimate reasons why a charity might reject the State's overarching measure of a fundraising drive's legitimacy the percentage of gross receipts remitted to the charity. For example, a charity might choose a particular type of fundraising drive, or a particular solicitor, expecting to receive a large sum as measured by total dollars *792 rather than the percentage of dollars remitted. Or, a solicitation may be designed to sacrifice short-term gains in order to achieve long-term, collateral, or noncash benefits. To illustrate, a charity may choose to engage in the advocacy or dissemination of information during a solicitation, or may seek the introduction of the charity's officers to the philanthropic community during a special event (e. g., an awards dinner). Consequently, even if the State had a valid interest in protecting charities from their own naivete or economic weakness, the Act would not be narrowly tailored to achieve it. The second distinguishing feature the State offers is the flexibility it has built into its Act. The State describes the second of its three-tiered definition of "unreasonable" and "excessive" as imposing no presumption one way or the other as to the reasonableness of the fee, although unreasonableness may be by a showing that the solicitation does not involve the advocacy or dissemination of information on the charity's behalf and at the charity's direction. The State points out that even the third tier's presumption of unreasonableness may be rebutted. It is important to clarify, though, what we mean by "reasonableness" at this juncture. As we have just at 790-791 and this page, the State's generalized interest in unilaterally imposing its notions of fairness on the fundraising contract is both constitutionally invalid and insufficiently related to a percentage-based test. Consequently, what remains is the more particularized interest in guaranteeing that the fundraiser's fee be "reasonable" in the sense that it not be fraudulent. The interest in protecting charities (and the public) from fraud is, of course, a sufficiently substantial interest to justify a narrowly tailored regulation. The question, then, is whether the added flexibility of this regulation is sufficient to tailor the law to this remaining interest. We conclude that it is not. *793 Despite our clear holding in that there is no nexus between the percentage of funds retained by the fundraiser and the likelihood that the solicitation is fraudulent, the State defines, prima facie, an "unreasonable" and "excessive" fee according to the percentage of |
Justice Brennan | 1,988 | 13 | majority | Riley v. National Federation of Blind of NC, Inc. | https://www.courtlistener.com/opinion/112141/riley-v-national-federation-of-blind-of-nc-inc/ | an "unreasonable" and "excessive" fee according to the percentage of total revenues collected. Indeed, the State's test is even more attenuated than the one held invalid in which at least excluded costs and expenses of solicitation from the fee definition. n. 2. Permitting rebuttal cannot supply the missing nexus between the percentages and the State's interest.[7] But this statute suffers from a more fundamental flaw. Even if we agreed that some form of a percentage-based measure could be used, in part, to test for fraud, we could not agree to a measure that requires the speaker to prove "reasonableness" case by case based upon what is at best a loose inference that the fee might be too high. Under the Act, once a prima facie showing of unreasonableness is made, the fundraiser must rebut the showing. Proof that the solicitation involved the advocacy or dissemination of information is not alone sufficient; it is merely a factor that is added to the calculus submitted to the factfinder, who may still decide that the costs incurred or the fundraiser's profit were excessive. Similarly, the Act is impermissibly insensitive to the realities faced by small or unpopular charities, which must often pay more than 35% of the gross receipts collected to the fundraiser due to the difficulty of attracting donors. See Again, the burden is placed on the fundraiser in such cases to rebut the presumption of unreasonableness. According to the State, we need not worry over this burden, as standards for determining "[r]easonable fundraising fees will be judicially defined over the years." Reply Brief for Appellants 6. Speakers, however, cannot be made to *794 wait for "years" before being able to speak with a measure of security. In the interim, fundraisers will be faced with the knowledge that every campaign incurring fees in excess of 35%, and many campaigns with fees between 20% and 35%, will subject them to potential litigation over the "reasonableness" of the fee. And, of course, in every such case the fundraiser must bear the costs of litigation and the risk of a mistaken adverse finding by the factfinder, even if the fundraiser and the charity believe that the fee was in fact fair. This scheme must necessarily chill speech in direct contravention of the First Amendment's dictates. See ; New York Times[8] This chill and uncertainty might well drive professional fundraisers out of North Carolina, or at least encourage them to cease engaging in certain types of fundraising (such as solicitations combined with the advocacy and dissemination of information) or representing certain charities (primarily small or unpopular |
Justice Brennan | 1,988 | 13 | majority | Riley v. National Federation of Blind of NC, Inc. | https://www.courtlistener.com/opinion/112141/riley-v-national-federation-of-blind-of-nc-inc/ | of information) or representing certain charities (primarily small or unpopular ones), all of which will ultimately "reduc[e] the quantity of expression." (16). Whether one views this as a restriction of the charities' ability to speak, and n. 16, or a restriction of the professional fundraisers' ability to speak, the restriction is undoubtedly one on speech, and cannot be countenanced here. *795 In striking down this portion of the Act, we do not suggest that States must sit idly by and allow their citizens to be defrauded. North Carolina has an antifraud law, and we presume that law enforcement officers are ready and able to enforce it. Further North Carolina may constitutionally require fundraisers to disclose certain financial information to the State, as it has since 1981. n. 16. If this is not the most efficient means of preventing fraud, we reaffirm simply and emphatically that the First Amendment does not permit the State to sacrifice speech for efficiency. ; III We turn next to the requirement that professional fundraisers disclose to potential donors, before an appeal for funds, the percentage of charitable contributions collected during the previous 12 months that were actually turned over to charity. Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech. We therefore consider the Act as a content-based regulation of speech. See Miami Herald Publishing (14) The State argues that even if charitable solicitations generally are fully protected, this portion of the Act regulates only commercial speech because it relates only to the professional fundraiser's profit from the solicited contribution. Therefore, the State asks us to apply our more deferential commercial speech principles here. See generally Virginia Pharmacy (16). It is not clear that a professional's speech is necessarily commercial whenever it relates to that person's financial motivation for speaking. Cf. Bigelow v. Virginia, 421 U. S. *796 809, 826 (15) (state labels cannot be dispositive of degree of First Amendment protection). But even assuming, without deciding, that such speech in the abstract is indeed merely "commercial," we do not believe that the speech retains its commercial character when it is inextricably intertwined with otherwise fully protected speech. Our lodestars in deciding what level of scrutiny to apply to a compelled statement must be the nature of the speech taken as a whole and the effect of the compelled statement thereon. This is the teaching of and in which we refused to separate the component parts of charitable solicitations from the fully protected whole. Regulation of a solicitation "must be undertaken with due regard for the reality that |
Justice Brennan | 1,988 | 13 | majority | Riley v. National Federation of Blind of NC, Inc. | https://www.courtlistener.com/opinion/112141/riley-v-national-federation-of-blind-of-nc-inc/ | "must be undertaken with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech and for the reality that without solicitation the flow of such information and advocacy would likely cease." quoted in -960. See also ; -541. Thus, where, as here, the component parts of a single speech are inextricably intertwined, we cannot parcel out the speech, applying one test to one phrase and another test to another phrase. Such an endeavor would be both artificial and impractical. Therefore, we apply our test for fully protected expression.[9] North Carolina asserts that, even so, the First Amendment interest in compelled speech is different than the interest in compelled silence; the State accordingly asks that we apply a deferential test to this part of the Act. There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment *7 guarantees "freedom of speech," a term necessarily comprising the decision of both what to say and what not to say. The constitutional equivalence of compelled speech and compelled silence in the context of fully protected expression was established in Miami Herald Publishing There, the Court considered a Florida statute requiring newspapers to give equal reply space to those they editorially criticize. We unanimously held the law unconstitutional as content regulation of the press, expressly noting the identity between the Florida law and a direct prohibition of speech. "The Florida statute operates as a command in the same sense as a statute or regulation forbidding appellant to publish a specified matter. Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers." at That rule did not rely on the fact that Florida restrained the press, and has been applied to cases involving expression generally. For example, in we held that a person could not be compelled to display the slogan "Live Free or Die." In reaching our conclusion, we relied on the principle that "[t]he right to speak and the right to refrain from speaking are complementary components of the broader concept of `individual freedom of mind,' " as illustrated in 430 U. S., at ). See also Pacific Gas & Electric (characterizing in terms of freedom of speech); Harper & Row Publishers, ; ; West Virginia Board of These cases cannot be distinguished simply because they involved compelled statements of opinion while here we deal with compelled statements of "fact": either form of compulsion *798 burdens protected speech. Thus, |
Justice Brennan | 1,988 | 13 | majority | Riley v. National Federation of Blind of NC, Inc. | https://www.courtlistener.com/opinion/112141/riley-v-national-federation-of-blind-of-nc-inc/ | "fact": either form of compulsion *798 burdens protected speech. Thus, we would not immunize a law requiring a speaker favoring a particular government project to state at the outset of every address the average cost overruns in similar projects, or a law requiring a speaker favoring an incumbent candidate to state during every solicitation that candidate's recent travel budget. Although the foregoing factual information might be relevant to the listener, and, in the latter case, could encourage or discourage the listener from making a political donation, a law compelling its disclosure would clearly and substantially burden the protected speech. We believe, therefore, that North Carolina's content-based regulation is subject to exacting First Amendment scrutiny. The State asserts as its interest the importance of informing donors how the money they contribute is spent in order to dispel the alleged misperception that the money they give to professional fundraisers goes in greater-than-actual proportion to benefit charity. To achieve this goal, the State has adopted a prophylactic rule of compelled speech, applicable to all professional solicitations. We conclude that this interest is not as weighty as the State asserts, and that the means chosen to accomplish it are unduly burdensome and not narrowly tailored. Although we do not wish to denigrate the State's interest in full disclosure, the danger the State posits is not as great as might initially appear. First, the State presumes that the charity derives no benefit from funds collected but not turned over to it. Yet this is not necessarily so. For example, as we have already discussed in greater detail, where the solicitation is combined with the advocacy and dissemination of information, the charity reaps a substantial benefit from the act of solicitation itself. See ; Thus, a significant portion of the fundraiser's "fee" may well go toward achieving the charity's objectives even though it is not remitted to the *799 charity in cash.[10] Second, an unchallenged portion of the disclosure law requires professional fundraisers to disclose their professional status to potential donors, thereby giving notice that at least a portion of the money contributed will be retained.[11] Donors are also undoubtedly aware that solicitations incur costs, to which part of their donation might apply. And, of course, a donor is free to inquire how much of the contribution will be turned over to the charity. Under another North Carolina statute, also unchallenged, fundraisers must disclose this information upon request. N. C. Gen. Stat. 131C-16 Even were that not so, if the solicitor refuses to give the requested information, the potential donor may (and probably would) refuse to |
Justice Brennan | 1,988 | 13 | majority | Riley v. National Federation of Blind of NC, Inc. | https://www.courtlistener.com/opinion/112141/riley-v-national-federation-of-blind-of-nc-inc/ | information, the potential donor may (and probably would) refuse to donate. Moreover, the compelled disclosure will almost certainly hamper the legitimate efforts of professional fundraisers to raise money for the charities they represent. First, this provision necessarily discriminates against small or unpopular charities, which must usually rely on professional fundraisers. Campaigns with high costs and expenses carried out by professional fundraisers must make unfavorable disclosures, with the predictable result that such solicitations will prove unsuccessful. Yet the identical solicitation with its high costs and expenses, if carried out by the employees of a charity or volunteers, results in no compelled disclosure, and therefore greater success. Second, in the context of a *800 verbal solicitation, if the potential donor is unhappy with the disclosed percentage, the fundraiser will not likely be given a chance to explain the figure; the disclosure will be the last words spoken as the donor closes the door or hangs up the phone.[12] Again, the predictable result is that professional fundraisers will be encouraged to quit the State or refrain from engaging in solicitations that result in an unfavorable disclosure. In contrast to the prophylactic, imprecise, and unduly burdensome rule the State has adopted to reduce its alleged donor misperception, more benign and narrowly tailored options are available. For example, as a general rule, the State may itself publish the detailed financial disclosure forms it requires professional fundraisers to file. This procedure would communicate the desired information to the public without burdening a speaker with unwanted speech during the course of a solicitation. Alternatively, the State may vigorously enforce its antifraud laws to prohibit professional fundraisers from obtaining money on false pretenses or by making false statements. These more narrowly tailored rules are in keeping with the First Amendment directive that government not dictate the content of speech absent compelling necessity, and then, only by means precisely tailored. *801 E. g., Consolidated Edison "Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." IV Finally, we address the licensing requirement. This provision requires professional fundraisers to await a determination regarding their license application before engaging in solicitation, while volunteer fundraisers, or those employed by the charity, may solicit immediately upon submitting an application. Given our previous discussion and precedent, it will not do simply to ignore the First Amendment interest of professional fundraisers in speaking. It is well settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because |
Justice Brennan | 1,988 | 13 | majority | Riley v. National Federation of Blind of NC, Inc. | https://www.courtlistener.com/opinion/112141/riley-v-national-federation-of-blind-of-nc-inc/ | is received; a speaker is no less a speaker because he or she is paid to speak. E. g., New York Times -266. And the State's asserted power to license professional fundraisers carries with it (unless properly constrained) the power directly and substantially to affect the speech they utter. Consequently, the statute is subject to First Amendment scrutiny. See[13] *802 Generally, speakers need not obtain a license to speak. However, that rule is not absolute. For example, States may impose valid time, place, or manner restrictions. See North Carolina seeks to come within the exception by alleging a heightened interest in regulating those who solicit money. Even assuming that the State's interest does justify requiring fundraisers to obtain a license before soliciting, such a regulation must provide that the licensor "will, within a specified brief period, either issue a license or go to court." That requirement is not met here, for the Charitable Solicitations Act (as amended) permits a delay without limit. The statute on its face does not purport to require when a determination must be made, nor is there an administrative regulation or interpretation doing so. The State argues, though, that its history of issuing licenses quickly constitutes a practice effectively constraining the licensor's discretion. See We cannot agree. The history to which the State refers relates to the period before the 1985 amendments, at which time professional fundraisers were permitted to solicit as soon as their applications were filed. Then, delay permitted the speaker's speech; now, delay compels the speaker's silence. Under these circumstances, the licensing provision cannot stand.[14] *803 V We hold that the North Carolina Charitable Solicitations Act is unconstitutional in the three respects before us. Accordingly, the judgment of the Court of Appeals is Affirmed. JUSTICE SCALIA, concurring in part and concurring in judgment. We have held the solicitation of money by charities to be fully protected as the dissemination of ideas. See ante, at 787-789; Secretary of State of 9-961 ; It is axiomatic that, although fraudulent misrepresentation of facts can be regulated, cf. New York Times the dissemination of ideas cannot be regulated to prevent it from being unfair or unreasonable, see, e. g., Hustler Magazine, ; Miami Herald Publishing -258 (14); Organization for a Better (11); Kingsley International Pictures (19); Because the opinion of the Court, except for footnote 11, is consistent with this principle, I join all of the opinion with that exception. As to the last two sentences of that footnote, which depart from the case at hand to make a pronouncement upon a situation that is not before |
Justice Brennan | 1,988 | 13 | majority | Riley v. National Federation of Blind of NC, Inc. | https://www.courtlistener.com/opinion/112141/riley-v-national-federation-of-blind-of-nc-inc/ | make a pronouncement upon a situation that is not before us, I do not see how requiring the professional solicitor to disclose his professional status is narrowly tailored to prevent fraud. Where core First Amendment speech is at issue, the State can assess liability for specific instances of deliberate deception, but it cannot impose a prophylactic rule requiring disclosure even where misleading statements are not made. Cf. Landmark Communications, *804 Since donors are assuredly aware that a portion of their donations may go to solicitation costs and other administrative expenses whether the solicitor is a professional, an in-house employee, or even a volunteer it is not misleading in the great mass of cases for a professional solicitor to request donations "for" a specific charity without announcing his professional status. Compensatory employment is, I would judge, the natural order of things, and one would expect volunteer solicitors to announce that status as a selling point. The dictum in footnote 11 represents a departure from our traditional understanding, embodied in the First Amendment, that where the dissemination of ideas is concerned, it is safer to assume that the people are smart enough to get the information they need than to assume that the government is wise or impartial enough to make the judgment for them. JUSTICE STEVENS, concurring in part and dissenting in part. Although I join Parts I, II, and III of the Court's opinion, I agree with THE CHIEF JUSTICE that the licensing provisions in the North Carolina statute do not impose a significant burden on the charities' ability to speak and that there is no evidence suggesting that the State will be dilatory in the processing of license applications. Thus, I respectfully dissent from Part IV of the Court's opinion. |
Justice Douglas | 1,972 | 10 | dissenting | United States v. Generes | https://www.courtlistener.com/opinion/108467/united-states-v-generes/ | The Treasury Regulations 1.166-5 (b) (2), which govern this case, provide that "the character of the debt is to be determined by the relation which the loss resulting from the debt's becoming worthless bears to the trade or business of the taxpayer." The Regulations do not use the words "primary and dominant." They state: "If that relation is a proximate one in the conduct of the trade or business in which the taxpayer is engaged at the time the debt becomes worthless," the debt is deductible. The jury was instructed in the words of the Regulations: "Do you find from a preponderance of the evidence that the signing of the blanket indemnity agreement by Mr. Generes was proximately related to his trade or business *114 of being an employee of the Kelly-Generes Construction Company?" The jury unanimously answered "Yes." There was evidence to support the finding. Generes was an officer of the company and received a salary of $12,000 a year. His job as officer was to obtain the bonding credit needed by the company to perform the jobs on which it bid. To get the bond Generes, the president, and Kelly, the vice-president, were required to sign personally an indemnity agreement. The bond was essential if the company was to operate. Without the bond the company could not obtain business and, if that happened, he as an officer would lose his job. It therefore seems to me that signing the bond had a "proximate" relation to his business as a salaried officer in the sense that it was directly related to the hoped-for success of that business. Whether it was a prudent act is not our concern. Nor is it our concern whether with the benefit of hindsight we can now say that signing the bond entailed risks wholly disproportionate to the stake Generes had in maintaining a job with a $12,000-a-year salary. Obtaining a bond was essential to the corporation; and it was only by keeping the business going that the salaried position of Generes could be made secure. If the Regulations do not meet the desires of the Treasury Department, they can be rewritten. See I protest now what I have repeatedly protested, and that is the use of this Court to iron out ambiguities in the Regulations or in the Act, when the responsible remedy is either a recasting of the Regulations by Treasury or presentation of the problem to the Joint Committee on Internal Revenue Taxation which is a standing committee *115 of the Congress[1] that regularly rewrites the Act and is much abler than |
Justice Rehnquist | 1,981 | 19 | majority | J. Truett Payne Co. v. Chrysler Motors Corp. | https://www.courtlistener.com/opinion/110479/j-truett-payne-co-v-chrysler-motors-corp/ | The question presented in this case is the appropriate measure of damages in a suit brought under 2 (a) of the Clayton Act, as amended by the Robinson-Patman Act.[1] Petitioner, for several decades a Chrysler-Plymouth dealer in Birmingham, Ala., went out of business in 1974. It subsequently brought suit against respondent in the United States District Court for the Northern District of Alabama, alleging that from January 1970 to May 1974 respondent's various "sales incentive" programs violated 2 (a). Under one type of program, respondent assigned to each participating dealer a sales objective and paid to the dealer a bonus on each car sold in excess of that objective. Under another type of program, respondent required each dealer to purchase from it a certain quota of automobiles before it would pay a bonus on the sale of automobiles sold at retail. The amount of the *560 bonus depended on the number of retail sales (or wholesale purchases) made in excess of the dealer's objective, and could amount to several hundred dollars. Respondent set petitioner's objectives higher than those of its competitors, requiring it to sell (or purchase) more automobiles to obtain a bonus than its competitors. To the extent petitioner failed to meet those objectives and to the extent its competitors met their lower objectives, petitioner received fewer bonuses. The net effect of all this, according to petitioner, was that it paid more money for its automobiles than did its competitors. It contended that the amount of the price discrimination the amount of the price difference multiplied by the number of petitioner's purchaseswas $81,248. It also claimed that the going-concern value of the business as of May 1974 ranged between $50,000 and $170,000. Respondent maintained that the sales incentive programs were nondiscriminatory, and that they did not injure petitioner or adversely affect competition. The District Court denied respondent's motion for a directed verdict. The jury returned a verdict against respondent and awarded petitioner $111,247.48 in damages, which the District Court trebled. The Court of Appeals for the Fifth Circuit reversed with instructions to dismiss the complaint. It found that in order to recover treble damages under 4 of the Clayton Act, a plaintiff must prove (1) a violation of the antitrust laws, (2) cognizable injury attributable to the violation, and (3) at least the approximate amount of damage. It found it unnecessary to consider whether petitioner proved that respondent's incentive programs violated 2 (a) because, in its view, petitioner had "failed to introduce substantial evidence of injury attributable to the programs, much less substantial evidence of the amount of such |
Justice Rehnquist | 1,981 | 19 | majority | J. Truett Payne Co. v. Chrysler Motors Corp. | https://www.courtlistener.com/opinion/110479/j-truett-payne-co-v-chrysler-motors-corp/ | programs, much less substantial evidence of the amount of such injury." Rejecting petitioner's theory of "automatic damages." under which mere proof of discrimination establishes the fact and amount of injury, the court held that injury must be proved by more than mere "[c]onclusory statements *561 by the plaintiff, without evidentiary support." The court concluded that the District Court erred in refusing respondent's motion for a directed verdict and in denying its motion for judgment notwithstanding the verdict. We granted certiorari, to review the decision of the Court of Appeals. I Petitioner first contends that once it has proved a price discrimination in violation of 2 (a) it is entitled at a minimum to so-called "automatic damages" in the amount of the price discrimination. Petitioner concedes that in order to recover damages it must establish cognizable injury attributable to an antitrust violation and some approximation of damage. Brief for Petitioner 9. It insists, however, that the jury should be permitted to infer the requisite injury and damage from a showing of a substantial price discrimination. Petitioner notes that this Court has consistently permitted such injury to be inferred in injunctive actions brought to enforce 2 (a), e. g., and argues that private suits for damages under 4 should be treated no differently. We disagree.[2] By its terms 2 (a) is a prophylactic statute which is violated merely upon a showing that "the effect of such discrimination may be substantially to lessen competition." * (Emphasis supplied.) As our cases have recognized, the statute does not "require that the discriminations must in fact have harmed competition." Corn Products Refining ; Section 4 of the Clayton Act, in contrast, is essentially a remedial statute. It provides treble damages to "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws" (Emphasis supplied.) To recover treble damages, then, a plaintiff must make some showing of actual injury attributable to something the antitrust laws were designed to prevent. Perkins v. Standard Oil It must prove more than a violation of 2 (a), since such proof establishes only that injury may result. Our decision here is virtually governed by our reasoning in Brunswick There we rejected the contention that the mere violation of 7 of the Clayton Act, which prohibits mergers which may substantially lessen competition, gives rise to a damages claim under 4. We explained that "to recover damages [under 4] respondents must prove more than that the petitioner violated 7, since such proof establishes only that injury may result." Likewise in this case, proof of a |
Justice Rehnquist | 1,981 | 19 | majority | J. Truett Payne Co. v. Chrysler Motors Corp. | https://www.courtlistener.com/opinion/110479/j-truett-payne-co-v-chrysler-motors-corp/ | injury may result." Likewise in this case, proof of a violation does not mean that a disfavored purchaser has been actually "injured" within the meaning of 4. The legislative history buttresses this view. Both the Patman bill, H. R. 8442, 2 (d), 74th Cong., 1st Sess. (1935), as introduced in the House, and the Robinson bill, S. 3154, 2 (d), 74th Cong., 2d Sess. (1935), as introduced in the Senate, provided that a plaintiff's damages for a violation of 2 (a) shall be presumed to be the amount of the price discrimination. The provision, however, encountered such * strong opposition in both Houses that the House Committee eliminated it from its bill, H. R. Rep. No. 2287, 74th Cong., 2d Sess., 16 (1936), and the Senate Committee modified the provision to authorize presumptive damages in the amount of the discrimination only when plaintiff shows the "fact of damage." S. Rep. No. 1502, 74th Cong., 2d Sess., 8 (1936). The Conference Committee eliminated even that compromise, and 2 (a) was passed in its present form. Congress thus has rejected the very concept which petitioner seeks to have the Court judicially legislate. Gulf Oil Corp. v. Copp Paving[3] II Petitioner next contends that even though it may not be entitled to "automatic damages" upon a showing of a violation of 2 (a), it produced enough evidence of actual injury to survive a motion for a directed verdict. That evidence consisted primarily of the testimony of petitioner's owner, Mr. Payne, and an expert witness, a professor of economics. Payne testified that the price discrimination was one of the causes of the dealership going out of business. In support of that contention, he testified that his salesmen told him that the dealership lost sales to its competitors, and that its market share of retail Chrysler-Plymouth sales in the Birmingham area was 24% in 1970, 27% in 1971, 23% in 1972, and 25% in 1973. Payne contended that it was proper to infer that the 4% drop in 1972 was a result of the incentive programs. *564 He also testified that the discrimination caused him to "force" business so that he could meet his assigned quotas. That is, his desire to make a sale induced him to "overallow" on trade-ins, thus reducing his profits on his used car operation. App. 51-52. Payne adduced evidence showing that his average gross profit on used car sales was below that of his competitors, though that same evidence revealed that his average gross profit on new sales was higher. Neither Payne nor petitioner's expert witness offered documentary evidence as |
Justice Rehnquist | 1,981 | 19 | majority | J. Truett Payne Co. v. Chrysler Motors Corp. | https://www.courtlistener.com/opinion/110479/j-truett-payne-co-v-chrysler-motors-corp/ | Neither Payne nor petitioner's expert witness offered documentary evidence as to the effect of the discrimination on retail prices. Although Payne asserted that his salesmen and customers told him that the dealership was being undersold, he admitted he did not know if his competitors did in fact pass on their lower costs to their customers. Petitioner's expert witness took a somewhat different position. He believed that the discrimination would ultimately cause retail prices to be held at an artificially high level since petitioner's competitors would not reduce their retail prices as much as they would have done if petitioner received an equal bonus from respondent. He also testified that petitioner was harmed by the discrimination even if the favored purchasers did not lower their retail prices, since petitioner in that case would make less money per car.[4] at 1. *565 Even construed most favorably to petitioner, the evidence of injury is weak. Petitioner nevertheless asks us to consider the sufficiency of its evidence in light of our traditional rule excusing antitrust plaintiffs from an unduly rigorous standard of proving antitrust injury. In Zenith Radio for example, the Court discussed at some length the fixing of damages in a case involving market exclusion. We accepted the proposition that damages could be awarded on the basis of plaintiff's estimate of sales it could have made absent the violation: "[D]amage issues in these cases are rarely susceptible of the kind of concrete, detailed proof of injury which is available in other contexts. The Court has repeatedly held that in the absence of more precise proof, the fact-finder may `conclude as a matter of just and reasonable inference from the proof of defendants' wrongful acts and their tendency to injure plaintiffs' business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, *566 that defendants' wrongful acts had caused damage to the plaintiffs.' Bigelow v. RKO Pictures, See also Eastman Kodak v. Southern Photo Materials ; Story Parchment v. Paterson Parchment Paper" In Bigelow v. RKO Radio Pictures, relied on in Zenith, film distributors had conspired to deny the plaintiff theater access to first-run films. The jury awarded damages based on a comparison of plaintiff's actual profits with the contemporaneous profits of a competing theater with access to first-run films. Plaintiff had also adduced evidence comparing his actual profits during the conspiracy with his profits when he had been able to obtain first-runs. The lower court thought the evidence too imprecise to support the award, but we reversed because the evidence was sufficient to |
Justice Rehnquist | 1,981 | 19 | majority | J. Truett Payne Co. v. Chrysler Motors Corp. | https://www.courtlistener.com/opinion/110479/j-truett-payne-co-v-chrysler-motors-corp/ | award, but we reversed because the evidence was sufficient to support a "just and reasonable inference" of damage. We explained: "[A]ny other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of a recovery." 327 U.S., -265. Our willingness to accept a degree of uncertainty in these cases rests in part on the difficulty of ascertaining business damages as compared, for example, to damages resulting from a personal injury or from condemnation of a parcel of land. The vagaries of the marketplace usually deny us sure knowledge of what plaintiff's situation would have been in the absence of the defendant's antitrust violation. But our willingness also rests on the principle articulated in cases such as Bigelow, that it does not "`come with very good grace'" for *567 the wrongdoer to insist upon specific and certain proof of the injury which it has itself inflicted. Hetzel v. Baltimore & Ohio R. Accord, Story Parchment v. Paterson Parchment Paper ("Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts"); Eastman Kodak v. Southern Photo Materials Applying the foregoing principles to this case is not without difficulty. In the first place, it is a close question whether petitioner's evidence would be sufficient to support a jury award even under our relaxed damages rules. In those cases where we have found sufficient evidence to permit a jury to infer antitrust injury and approximate the amount of damages, the evidence was more substantial than the evidence presented here. In Zenith, for example, plaintiff compared its sales in Canada, where it was subject to a violation, with its sales in the United States, where it was not. And in Bigelow, plaintiff adduced evidence not only comparing its profits with a competitor not subject to the violation but also comparing its profits during the time of the violation with the period immediately preceding the violation.[5] *568 But a more fundamental difficulty confronts us in this case. The cases relied upon by petitioner all depend in greater or lesser part on the inequity of |
Justice Rehnquist | 1,981 | 19 | majority | J. Truett Payne Co. v. Chrysler Motors Corp. | https://www.courtlistener.com/opinion/110479/j-truett-payne-co-v-chrysler-motors-corp/ | depend in greater or lesser part on the inequity of a wrongdoer defeating the recovery of damages against him by insisting upon a rigorous standard of proof. In this case, however, we cannot say with assurance that respondent is a "wrongdoer." Because the court below bypassed the issue of liability and went directly to the issue of damages, we simply do not have the benefit of its views as to whether respondent in fact violated 2 (a). Absent such a finding, we decline to apply to this case the lenient damages rules of our previous cases. Had the court below found a violation, we could more confidently consider the adequacy of petitioner's evidence. Accordingly, we think the proper course is to remand the case so that the Court of Appeals may pass upon respondent's contention that the evidence adduced at trial was insufficient to support a finding of violation of the Robinson-Patman Act. We do not ordinarily address for the first time in this Court an issue which the Court of Appeals has not addressed, and we think this would be a poor case in which to depart from that practice. If the court determines on remand that respondent did violate the Act, the court should then consider the sufficiency of petitioner's evidence of injury in light of the cases discussed above. We, of course, intimate no views as to how that issue should be decided. We emphasize that even if there has been a violation of the Robinson-Patman Act, petitioner is not excused from its burden of proving antitrust injury and damages. It is simply that once a violation has been established, that burden is to some extent lightened. *569 For the foregoing reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion. It is so ordered. JUSTICE POWELL, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, dissenting in part. I concur in Part I of the Court's opinion, but simply would affirm the judgment of the Court of Appeals. The Court of Appeals concluded that petitioner "failed to introduce substantial evidence of injury attributable to [respondent's program], much less substantial evidence of the amount of such injury." In Part II of its opinion, the Court today reviews the evidence, vacates the judgment of the Court of Appeals, and remands the case for a resifting of the evidence and determination of whether respondent violated the Clayton Act as amended by the Robinson-Patman Act. The Court identifies no error of fact or law in the judgment of |
Justice Rehnquist | 1,981 | 19 | majority | J. Truett Payne Co. v. Chrysler Motors Corp. | https://www.courtlistener.com/opinion/110479/j-truett-payne-co-v-chrysler-motors-corp/ | no error of fact or law in the judgment of the Court of Appeals, but vacates that judgment only because the Court finds it "unclear" whether there is sufficient evidence. I find no basis for this Court undertaking to second-guess the Court of Appeals as to the sufficiency of evidence. Even if there were some satisfactory reason for us to review the evidence in this relatively uncomplicated case, I think the Court of Appeals was plainly correct in finding petitioner's evidence insufficient to show a competitive injury of the kind that the antitrust laws were enacted to prevent. See Brunswick Section 2 (a) is a prophylactic statute that makes unlawful price discrimination that "may lessen competition." Thus, a court cannot infer from the fact of a violation that defendant's behavior has caused plaintiff any injury. A plaintiff must show, to recover damages for violation of 2 (a), that unlawful discrimination in price allowed a favored competitor to draw sales or profits *570 from him, the unfavored competitor. See Enterprise Industries, v. Texas (CA2), cert. denied, Petitioner's evidence, which the Court concedes to be "weak," ante, at 565, amounts to nothing more than a showing that its market share declined temporarily 4% in 1972. Petitioner presented no substantial evidence that respondent's incentive program caused its market share to shrink. Indeed, over the 4-year period of the challenged programs its market share increased 1%. Rather, petitioner relied on its president's conclusory testimony, which consisted in major part of hearsay statements from petitioner's automobile salesmen. Hypothetical analysis of the "predicted effects" of respondent's program by an economics professor also was relied upon by petitioner to prove the actual cause of injury. One hardly would expect this Court to reject a Court of Appeals judgment that evidence as flimsy as this was insufficient to go to the jury. My concern with the Court's opinion, however, goes beyond its reviewing the evidence. I have understood that in a Robinson-Patman Act case the plaintiff has the burden of proving the fact of antitrust injury by a preponderance of the evidence. See Perkins v. Standard Oil Only when this fact has been proved may a court properly be lenient in the evidence it requires to prove the amount of damages. See Story Parchment v. Paterson Parchment Paper It is not at all apparent that the Court adequately recognizes this distinction. It seems to me that today's remand measurably increases the uncertainty inherent in the generalities of the Robinson-Patman Act. Accordingly, I dissent. |
Justice Breyer | 1,995 | 2 | majority | Heintz v. Jenkins | https://www.courtlistener.com/opinion/117919/heintz-v-jenkins/ | The issue before us is whether the term "debt collector" in the Fair Debt Collection Practices Act, 15 U.S. C. 1692-1692o (1988 ed. and Supp. V), applies to a lawyer who "regularly," through litigation, tries to collect consumer debts. The Court of Appeals for the Seventh Circuit held that it does. We agree with the Seventh Circuit and we affirm its judgment. The Fair Debt Collection Practices Act prohibits "debt collector[s]" from making false or misleading representations and from engaging in various abusive and unfair practices. The Act says, for example, that a "debt collector" may not use violence, obscenity, or repeated annoying phone calls, 15 U.S. C. 1692d; may not falsely represent "the character, amount, or legal status of any debt," 1692e(2)(A); and may not use various "unfair or unconscionable means to collect or attempt to collect" a consumer debt, 1692f. Among other things, the Act sets out rules that a debt collector must follow for "acquiring location information" about the debtor, 1692b; communicating about the debtor (and the *293 debt) with third parties, 1692c(b); and bringing "[l]egal actions," 1692i. The Act imposes upon "debt collector[s]" who violate its provisions (specifically described) "[c]ivil liability" to those whom they, e. g., harass, mislead, or treat unfairly. 1692k. The Act also authorizes the Federal Trade Commission (FTC) to enforce its provisions. 1692l (a). The Act's definition of the term "debt collector" includes a person "who regularly collects or attempts to collect, directly or indirectly, debts owed [to] another." 1692a(6). And, it limits "debt" to consumer debt, i. e., debts "arising out of transaction[s]" that "are primarily for personal, family, or household purposes." 1692a(5). The plaintiff in this case, Darlene Jenkins, borrowed money from the Gainer Bank in order to buy a car. She defaulted on her loan. The bank's law firm then sued Jenkins in state court to recover the balance due. As part of an effort to settle the suit, a lawyer with that law firm, George Heintz, wrote to Jenkins' lawyer. His letter, in listing the amount she owed under the loan agreement, included $4,173 owed for insurance, bought by the bank because she had not kept the car insured as she had promised to do. Jenkins then brought this Fair Debt Collection Practices Act suit against Heintz and his firm. She claimed that Heintz's letter violated the Act's prohibitions against trying to collect an amount not "authorized by the agreement creating the debt," 1692f(1), and against making a "false representation of the amount of any debt," 1692e(2)(A). The loan agreement, she conceded, required her to keep the car |
Justice Breyer | 1,995 | 2 | majority | Heintz v. Jenkins | https://www.courtlistener.com/opinion/117919/heintz-v-jenkins/ | loan agreement, she conceded, required her to keep the car insured "`against loss or damage' " and permitted the bank to buy such insurance to protect the car should she fail to do so. App. to Pet. for Cert. 17. But, she said, the $4,173 substitute policy was not the kind of policy the loan agreement had in mind, for it insured the bank not only against "loss or damage" but also against her failure to repay the bank's car loan. Hence, Heintz's "representation" *294 about the "amount" of her "debt" was "false"; amounted to an effort to collect an "amount" not "authorized" by the loan agreement; and thus violated the Act. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the District Court dismissed Jenkins' Fair Debt Collection lawsuit for failure to state a claim. The court held that the Act does not apply to lawyers engaging in litigation. However, the Court of Appeals for the Seventh Circuit reversed the District Court's judgment, interpreting the Act to apply to litigating lawyers. The Seventh Circuit's view in this respect conflicts with that of the Sixth Circuit. See We granted certiorari to resolve this conflict. And, as we have said, we conclude that the Seventh Circuit is correct. The Act does apply to lawyers engaged in litigation. There are two rather strong reasons for believing that the Act applies to the litigating activities of lawyers. First, the Act defines the "debt collector[s]" to whom it applies as including those who "regularly collec[t] or attemp[t] to collect, directly or indirectly, [consumer] debts owed or due or asserted to be owed or due another." 1692a(6). In ordinary English, a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings is a lawyer who regularly "attempts" to "collect" those consumer debts. See, e. g., Black's Law Dictionary 263 (6th ed. 1990) ("To collect a debt or claim is to obtain payment or liquidation of it, either by personal solicitation or legal proceedings"). Second, in 1977, Congress enacted an earlier version of this statute, which contained an express exemption for lawyers. That exemption said that the term "debt collector" did not include "any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client." Pub. L. 95-109, 803(6)(F), 875. In 1986, however, Congress repealed this exemption in its entirety, Pub. L. 99361, without creating a narrower, litigationrelated, *295 exemption to fill the void. Without more, then, one would think that Congress intended that lawyers be subject to the Act whenever they meet the general |
Justice Breyer | 1,995 | 2 | majority | Heintz v. Jenkins | https://www.courtlistener.com/opinion/117919/heintz-v-jenkins/ | be subject to the Act whenever they meet the general "debt collector" definition. Heintz argues that we should nonetheless read the statute as containing an implied exemption for those debt-collecting activities of lawyers that consist of litigating (including, he assumes, settlement efforts). He relies primarily on three arguments. First, Heintz argues that many of the Act's requirements, if applied directly to litigating activities, will create harmfully anomalous results that Congress simply could not have intended. We address this argument in light of the fact that, when Congress first wrote the Act's substantive provisions, it had for the most part exempted litigating attorneys from the Act's coverage; that, when Congress later repealed the attorney exemption, it did not revisit the wording of these substantive provisions; and that, for these reasons, some awkwardness is understandable. Particularly when read in this light, we find Heintz's argument unconvincing. Many of Heintz's "anomalies" are not particularly anomalous. For example, the Sixth Circuit pointed to 1692e(5), which forbids a "debt collector" to make any "threat to take action that cannot legally be taken." The court reasoned that, were the Act to apply to litigating activities, this provision automatically would make liable any litigating lawyer who brought, and then lost, a claim against a debtor. Green, But, the Act says explicitly that a "debt collector" may not be held liable if he "shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." 1692k(c). Thus, even if we were to assume that the suggested reading of 1692e(5) is correct, we would not find the result so absurd as to warrant implying an exemption for litigating lawyers. In any event, the assumption *296 would seem unnecessary, for we do not see how the fact that a lawsuit turns out ultimately to be unsuccessful could, by itself, make the bringing of it an "action that cannot legally be taken." The remaining significant "anomalies" similarly depend for their persuasive force upon readings that courts seem unlikely to endorse. For example, Heintz's strongest "anomaly" argument focuses upon the Act's provisions governing "[c]ommunication in connection with debt collection." 1692c. One of those provisions requires a "debt collector" not to "communicate further" with a consumer who "notifies" the "debt collector" that he or she "refuses to pay" or wishes the debt collector to "cease further communication." 1692c(c). In light of this provision, asks Heintz, how can an attorney file a lawsuit against (and thereby communicate with) a nonconsenting consumer or file a motion |
Justice Breyer | 1,995 | 2 | majority | Heintz v. Jenkins | https://www.courtlistener.com/opinion/117919/heintz-v-jenkins/ | thereby communicate with) a nonconsenting consumer or file a motion for summary judgment against that consumer? We agree with Heintz that it would be odd if the Act empowered a debt-owing consumer to stop the "communications" inherent in an ordinary lawsuit and thereby cause an ordinary debt-collecting lawsuit to grind to a halt. But, it is not necessary to read 1692c(c) in that wayif only because that provision has exceptions that permit communications "to notify the consumer that the debt collector or creditor may invoke" or "intends to invoke" a "specified remedy" (of a kind "ordinarily invoked by [the] debt collector or creditor"). 1692c(c)(2), (3). Courts can read these exceptions, plausibly, to imply that they authorize the actual invocation of the remedy that the collector "intends to invoke." The language permits such a reading, for an ordinary court-related document does, in fact, "notify" its recipient that the creditor may "invoke" a judicial remedy. Moreover, the interpretation is consistent with the statute's apparent objective of preserving creditors' judicial remedies. We need not authoritatively interpret the Act's conductregulating provisions now, however. Rather, we rest our *297 conclusions upon the fact that it is easier to read 1692c(c) as containing some such additional, implicit, exception than to believe that Congress intended, silently and implicitly, to create a far broader exception, for all litigating attorneys, from the Act itself. Second, Heintz points to a statement of Congressman Frank Annunzio, one of the sponsors of the 1986 amendment that removed from the Act the language creating a blanket exemption for lawyers. Representative Annunzio stated that, despite the exemption's removal, the Act still would not apply to lawyers' litigating activities. Representative Annunzio said that the Act "regulates debt collection, not the practice of law. Congress repealed the attorney exemption to the act, not because of attorney[s'] conduct in the courtroom, but because of their conduct in the backroom. Only collection activities, not legal activities, are covered by the act. The act applies to attorneys when they are collecting debts, not when they are performing tasks of a legal nature. The act only regulates the conduct of debt collectors, it does not prevent creditors, through their attorneys, from pursuing any legal remedies available to them." 132 Cong. Rec. 30842 (1986). This statement, however, does not persuade us. For one thing, the plain language of the Act itself says nothing about retaining the exemption in respect to litigation. The line the statement seeks to draw between "legal" activities and "debt collection" activities was not necessarily apparent to those who debated the legislation, for litigating, at first blush, seems |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.