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Justice Kennedy | 1,992 | 4 | dissenting | Burdick v. Takushi | https://www.courtlistener.com/opinion/112743/burdick-v-takushi/ | adequate electoral choices because Hawaii makes it easy to get on the official ballot. To the contrary, Hawaii's ballot access laws taken as a whole impose a significant impediment to third-party or independent candidacies. The majority suggests that it is easy for new parties to petition for a place on the primary ballot because they must obtain the signatures of only one percent of the State's registered voters. This ignores the difficulty presented by the early deadline for gathering these signatures: 150 days (5 months) before the primary election. Meeting this deadline requires considerable organization at an early stage in the election, a condition difficult for many small parties to meet. See Brief for Socialist Workers Party as Amicus Curiae 10-11, n. 4. If the party petition is unsuccessful or not completed in time, or if a candidate does not wish to be affiliated with a party, he may run as an independent. While the requirements to get on the nonpartisan ballot are not onerous (15 to 25 signatures, 60 days before the primary), the nonpartisan ballot presents voters with a difficult choice. This is because each primary voter can choose only a single ballot *444 for all offices. Hence, a voter who wishes to vote for an independent candidate for one office must forgo the opportunity to vote in an established party primary in every other race. Since there might be no independent candidates for most of the other offices, in practical terms the voter who wants to vote for one independent candidate forfeits the right to participate in the selection of candidates for all other offices. This rule, the very ballot access rule that the Court finds to be curative, in fact presents a substantial disincentive for voters to select the nonpartisan ballot. A voter who wishes to vote for a third-party candidate for only one particular office faces a similar disincentive to select the third party's ballot. The dominance of the Democratic Party magnifies the disincentive because the primary election is dispositive in so many races. In effect, a Hawaii voter who wishes to vote for any independent candidate must choose between doing so and participating in what will be the dispositive election for many offices. This dilemma imposes a substantial burden on voter choice. It explains also why so few independent candidates secure enough primary votes to advance to the general election. As the majority notes, only eight independent candidates have succeeded in advancing to the general election in the past 10 years. That is, less than one independent candidate per year on average has in |
Justice Kennedy | 1,992 | 4 | dissenting | Burdick v. Takushi | https://www.courtlistener.com/opinion/112743/burdick-v-takushi/ | than one independent candidate per year on average has in fact run in a general election in Hawaii. The majority's approval of Hawaii's ban is ironic at a time when the new democracies in foreign countries strive to emerge from an era of sham elections in which the name of the ruling party candidate was the only one on the ballot. Hawaii does not impose as severe a restriction on the right to vote, but it imposes a restriction that has a haunting similarity in its tendency to exact severe penalties for one who does anything but vote the dominant party ballot. Aside from constraints related to ballot access restrictions, the write-in ban limits voter choice in another way. Writein *445 voting can serve as an important safety mechanism in those instances where a late-developing issue arises or where new information is disclosed about a candidate late in the race. In these situations, voters may become disenchanted with the available candidates when it is too late for other candidates to come forward and qualify for the ballot. The prohibition on write-in voting imposes a significant burden on voters, forcing them either to vote for a candidate whom they no longer support or to cast a blank ballot. Write-in voting provides a way out of the quandary, allowing voters to switch their support to candidates who are not on the official ballot. Even if there are other mechanisms to address the problem of late-breaking election developments (unsuitable candidates who win an election can be recalled), allowing write-in voting is the only way to preserve the voters' right to cast a meaningful vote in the general election. With this background, I turn to the legal principles that control this case. At the outset, I agree with the first premise in the majority's legal analysis. The right at stake here is the right to cast a meaningful vote for the candidate of one's choice. Petitioner's right to freedom of expression is not implicated. His argument that the First Amendment confers upon citizens the right to cast a protest vote and to have government officials count and report this vote is not persuasive. As the majority points out, the purpose of casting, counting, and recording votes is to elect public officials, not to serve as a general forum for political expression. I agree as well with the careful statement the Court gives of the test to be applied in this case to determine if the right to vote has been constricted. As the Court phrases it, we must "weigh `the character and magnitude of |
Justice Kennedy | 1,992 | 4 | dissenting | Burdick v. Takushi | https://www.courtlistener.com/opinion/112743/burdick-v-takushi/ | phrases it, we must "weigh `the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate' against `the precise interests put forward by the State as justifications for the burden imposed by its rule,' taking into consideration `the extent to which those interests make it necessary *446 to burden the plaintiff's rights.' " Ante, at 434, quoting I submit the conclusion must be that the write-in ban deprives some voters of any substantial voice in selecting candidates for the entire range of offices at issue in a particular election. As a starting point, it is useful to remember that until the late 1800's, all ballots cast in this country were write-in ballots. The system of state-prepared ballots, also known as the Australian ballot system, was introduced in this country in 1888. See L. E. Fredman, The Australian Ballot: The Story of an American Reform ix Prior to this, voters prepared their own ballots or used preprinted tickets offered by political parties. Since there were no state-imposed restrictions on whose name could appear on a ballot, individuals could always vote for the candidates of their choice. State-prepared ballots were considered to be a progressive reform to reduce fraudulent election practices. The preprinted ballots offered by political parties had often been in distinctive colors so that the party could determine whether one who had sold his vote had used the right ballot. The disadvantage of the new ballot system was that it could operate to constrict voter choice. In recognition of this problem, several early state courts recognized a right to cast write-in votes. See, e. g., ("[I]f the construction contended for by appellee [prohibiting write-in voting] be the correct one, the voter is deprived of the constitutional right of suffrage; he is deprived of the right of exercising his own choice; and where this right is taken away there is nothing left worthy of the name of the right of suffragethe boasted free ballot becomes a delusion"); ; and ("Unless there was such provision to enable the voter, not satisfied to vote any ticket on the ballot, or for any names appearing on it,to make up an entire ticket of his own choice, the election as to him would not be equal, for he would not be able to express his own individual will in his own way"). As these courts recognized, some voters cannot vote for the candidate of their choice without a write-in option. In effect, a write-in ban, in conjunction with other restrictions, can deprive |
Justice Kennedy | 1,992 | 4 | dissenting | Burdick v. Takushi | https://www.courtlistener.com/opinion/112743/burdick-v-takushi/ | a write-in ban, in conjunction with other restrictions, can deprive the voter of the opportunity to cast a meaningful ballot. As a consequence, write-in prohibitions can impose a significant burden on voting rights. See For those who are affected by write-in bans, the infringement on their right to vote for the candidate of their choice is total. The fact that writein candidates are longshots more often than not makes no difference; the right to vote for one's preferred candidate exists regardless of the likelihood that the candidate will be successful. Socialist Labor (SD Ohio) ("A write-in ballot permits a voter to effectively exercise his individual constitutionally protected franchise. The use of write-in ballots does not and should not be dependent on the candidate's chance of success"), aff'd in part, modified in part sub nom. Based on the foregoing reasoning, I cannot accept the majority's presumption that write-in bans are permissible if the State's ballot access laws are otherwise constitutional. The presumption is circular, for it fails to take into account that we must consider the availability of write-in voting, or the lack thereof, as a factor in determining whether a State's ballot access laws considered as a whole are constitutional. *448 ; The effect of the presumption, moreover, is to excuse a State from having to justify or defend any write-in ban. Under the majority's view, a write-in ban only has constitutional implications when the State's ballot access scheme is defective and write-in voting would remedy the defect. This means that the State needs to defend only its ballot access laws, and not the write-in restriction itself. The majority's analysis ignores the inevitable and significant burden a write-in ban imposes upon some individual voters by preventing them from exercising their right to vote in a meaningful manner. The liberality of a State's ballot access laws is one determinant of the extent of the burden imposed by the write-in ban; it is not, though, an automatic excuse for forbidding all write-in voting. In my view, a State that bans write-in voting in some or all elections must justify the burden on individual voters by putting forth the precise interests that are served by the ban. A write-in prohibition should not be presumed valid in the absence of any proffered justification by the State. The standard the Court derives from means at least this. Because Hawaii's write-in ban, when considered in conjunction with the State's ballot access laws, imposes a significant burden on voters such as petitioner, it must put forward the state interests which justify the burden so that we can |
Justice Kennedy | 1,992 | 4 | dissenting | Burdick v. Takushi | https://www.courtlistener.com/opinion/112743/burdick-v-takushi/ | state interests which justify the burden so that we can assess them. I do not think it necessary here to specify the level of scrutiny that should then be applied because, in my view, the State has failed to justify the write-in ban under any level of scrutiny. The interests proffered by the State, some of which are puzzling, are not advanced to any significant degree by the write-in prohibition. I consider each of the interests in turn. The interest that has the best potential for acceptance, in my view, is that of preserving the integrity of party primaries *449 by preventing sore loser candidacies during the general election. As the majority points out, we have acknowledged the State's interest in avoiding party factionalism. A write-in ban does serve this interest to some degree by eliminating one mechanism which could be used by sore loser candidates. But I do not agree that this interest provides "adequate justification" for the ban. Ante, at 439. As an initial matter, the interest can at best justify the write-in prohibition for general elections; it cannot justify Hawaii's complete ban in both the primary and the general election. And with respect to general elections, a write-in ban is a very over inclusive means of addressing the problem; it bars legitimate candidacies as well as undesirable sore loser candidacies. If the State desires to prevent sore loser candidacies, it can implement a narrow provision aimed at that particular problem. The second interest advanced by the State is enforcing its policy of permitting the unopposed victors in certain primaries to be designated as officeholders without having to go through the general election. The majority states that "[t]his would not be possible, absent the write-in voting ban." This makes no sense. As petitioner's counsel acknowledged during oral argument, "[t]o the degree that Hawaii has abolished general elections in these circumstances, there is no occasion to cast a write-in ballot." Tr. of Oral Arg. 14. If anything, the argument cuts the other way because this provision makes it all the more important to allow write-in voting in the primary elections because primaries are often dispositive. Hawaii justifies its write-in ban in primary elections as a way to prevent party raiding. Petitioner argues that this alleged interest is suspect because the State created the party raiding problem in the first place by allowing open primaries. I agree. It is ironic for the State to raise this concern when the risk of party raiding is a feature of the open primary system the State has chosen. The majority *450 suggests that |
Justice Kennedy | 1,992 | 4 | dissenting | Burdick v. Takushi | https://www.courtlistener.com/opinion/112743/burdick-v-takushi/ | system the State has chosen. The majority *450 suggests that write-in voting presents a particular risk of circumventing the primary system because state law requires candidates in party primaries to be members of the party. Again, the majority's argument is not persuasive. If write-in voters mount a campaign for a candidate who does not meet state-law requirements, the candidate would be disqualified from the election. The State also cites its interest in promoting the informed selection of candidates, an interest it claims is advanced by "flushing candidates into the open a reasonable time before the election." Brief for Respondents 44. I think the State has it backwards. The fact that write-in candidates often do not conduct visible campaigns seems to me to make it more likely that voters who go to the trouble of seeking out these candidates and writing in their names are well informed. The state interest may well cut the other way. The State cites interests in combating fraud and enforcing nomination requirements. But the State does not explain how write-in voting presents a risk of fraud in today's polling places. As to the State's interest in making sure that ineligible candidates are not elected, petitioner's counsel pointed out at argument that approximately 20 States require writein candidates to file a declaration of candidacy and verify that they are eligible to hold office a few days before the election. Tr. of Oral Arg. 13. In sum, the State's proffered justifications for the write-in prohibition are not sufficient under any standard to justify the significant impairment of the constitutional rights of voters such as petitioner. I would grant him relief. |
Justice Marshall | 1,976 | 15 | concurring | Beckwith v. United States | https://www.courtlistener.com/opinion/109430/beckwith-v-united-states/ | While the Internal Revenue Service agents in this case did not give petitioner the full warnings prescribed in they did give him the following warning before questioning him: "As a special agent, one of my functions is to investigate the possibility of criminal violations of the Internal Revenue laws, and related offenses. "Under the Fifth Amendment to the Constitution of the United States, I cannot compel you to answer any questions or to submit any information if such answers or information might tend to incriminate *349 you in any way. I also advise you that anything which you say and any information which you submit may be used against you in any criminal proceeding which may be undertaken. I advise you further that you may, if you wish, seek the assistance of an attorney before responding." App. 65-66. Under the circumstances of this case, in which petitioner was not under arrest and the interview took place in a private home where petitioner occasionally stayed, the warning recited above satisfied the requirements of the Fifth Amendment. If this warning had not been given, however, I would not join the judgment of the Court. MR. |
Justice Sotomayor | 2,014 | 24 | concurring | Robers v. United States | https://www.courtlistener.com/opinion/2672526/robers-v-united-states/ | I join the opinion of the Court. I write separately, how- ever, to clarify that I see its analysis as applying only in cases where a victim intends to sell collateral but encoun- ters a reasonable delay in doing so. See ante, at 5–6 (ex- plaining that where a victim “does not intend to sell” collateral, “other provisions of the statute may come into play,” enabling a court “to count, as part of the restitution paid, the value of collateral previously received but not sold”). If a victim chooses to hold collateral rather than to reduce it to cash within a reasonable time, then the victim must bear the risk of any subsequent decline in the value of the collateral, because the defendant is not the proxi- mate cause of that decline. Here, although the banks did not immediately sell the homes they received as collateral, Robers did not ade- quately argue below that their delay reflected a choice to hold the homes as investments.* Such an argument would —————— * Before the District Court, Robers suggested precisely the opposite: that the banks had sold the homes too hastily, at fire-sale prices in a falling market. See App. 35 (“The drop in value could have been due to the housing market itself, or due to the victim’s rush to cut their losses with the properties and take whatever price they could get at a sheriff’s sale, regardless of whether the sale price reflected the fair market value of the property at the time”). Before the Seventh Circuit, Robers did 2 ROBERS v. UNITED STATES SOTOMAYOR, J., concurring likely have been fruitless, because the delay appears consistent with a genuine desire to dispose of the collat- eral. Real property is not a liquid asset, which means that converting it to cash often takes time. See, e.g., 8 F.3d 937, 947 (CA7 2012) (“[R]eal property is not liquid and, absent a huge price discount, cannot be sold immediately”). And indeed, the delays here appear to have resulted from illiquidity. See App. 70 (one of the two homes was placed on the market but did not immediately sell); at 89 (the other attracted no bids at a foreclosure sale). Because such delays are foreseeable, it is fair for Robers to bear their cost: the diminution in the homes’ value. See ante, at 6 (analysis of proximate causation). In other cases, however, a defendant might be able to show that a significant delay in the sale of collateral evinced the victim’s choice to hold it as an investment rather than reducing it to cash. |
Justice Sotomayor | 2,014 | 24 | concurring | Robers v. United States | https://www.courtlistener.com/opinion/2672526/robers-v-united-states/ | it as an investment rather than reducing it to cash. Suppose, for example, that a bank received shares of a public company as collat- eral for a fraudulently obtained loan. “Common stock traded on a national exchange is readily convertible into cash,” (1990), so if the bank waited more than a reasonable time to sell the shares, a district court could infer that the bank was not really trying to sell but instead was holding the shares as investment assets. If the shares declined in value after the bank chose to hold them, it would be wrong for the court to make the defendant bear that loss. As the —————— suggest that the banks should have sold more quickly. See Brief for Appellant in No. 10–3794, p. 35 (“[T]here is no ‘loss causation’ here, because the kind of loss that occurred (due to the market, or to the victims holding the property longer than they should have in a declin- ing market, or to other unknown factors) was not the kind for which the defendant’s acts could have controlled or accounted”). But this argu- ment does not imply that the banks’ delay reflected a choice to hold the homes as investments, only that the banks misjudged the timing of the sales. Cite as: 572 U. S. (2014) 3 SOTOMAYOR, J., concurring Government acknowledged at oral argument, a victim’s choice to hold collateral—rather than selling it in a rea- sonably expeditious manner—breaks the chain of proxi- mate causation. See, e.g., Tr. of Oral Arg. 38–39, 44–45. If the collateral loses value after the victim chooses to hold it, then that “part of the victim’s net los[s]” is “attributable to” the victim’s “independent decisions.” The defendant cannot be regarded as the “proximate cause” of that part of the loss, ib and so cannot be made to bear it. In such cases, I would place on the defendant the bur- den to show—with evidence specific to the market at issue—that a victim delayed unreasonably in selling col- lateral, manifesting a choice to hold the collateral. See 18 U.S. C. (burden to be allocated “as justice re- quires”). Because Robers did not sufficiently argue below that the banks broke the chain of proximate causation by choosing to hold the homes as investments, and because the delay encountered by the banks appears to have been reasonable, it is fair for Robers to bear the cost of that delay. I therefore join the Court in affirming the restitu- tion order |
Justice Marshall | 1,978 | 15 | dissenting | Swisher v. Brady | https://www.courtlistener.com/opinion/109928/swisher-v-brady/ | Appellees are a class of juveniles who, following adjudicatory hearings on charges of criminal conduct, were found nondelinquent by a "master." Because the State has labeled the master's findings as "proposed," the Court today allows the State in effect to appeal those findings to a "judge," who is empowered to reverse the master's findings and convict the juvenile. The Court's holding is at odds with the constitutional prohibition against double jeopardy, made applicable to the by the Due Process Clause of the Fourteenth Amendment, and specifically held to apply to juvenile proceedings in The majority does not purport to retreat from our holding in Breed. Yet the Court reaches a result that it would not countenance were this a criminal prosecution against an adult, for the juvenile defendants here are placed twice in jeopardy just as surely as if an adult defendant, after acquittal in a trial court, were convicted on appeal. In addition to violating the Double Jeopardy Clause, Maryland's scheme raises serious due process questions because the judge making the final adjudication of guilt has not heard the evidence and may reverse the master's findings of nondelinquency based on *220 the judge's review of a cold record. For these reasons, I dissent. I While the first inquiry in any double jeopardy case must be whether jeopardy has attached, see ; I agree with the Court that jeopardy does attach at the master's hearing, ante, at 215 n. 12. In we held that jeopardy attaches "at a proceeding whose object is to determine whether [a juvenile] has committed acts that violate a criminal law." The master's hearing clearly has this as an object. Under Maryland law, the master is empowered to conduct a full "adjudicatory hearing," in order "to determine whether the allegations in the petition are true." Rule 914 (a); Md. Cts. & Jud. Proc. Code Ann. 3-801 (b) ; see Rules 911, 914 (f).[1] And it is at this hearing that the State introduces *221 the evidence on which it seeks to have the determination of guilt or innocence rest. See See also My disagreement with the Court lies in its misapplication of well-settled double jeopardy rules applicable once jeopardy has attached. As the Court itself recognizes, ante, at 214, the Double Jeopardy Clause "unequivocally prohibits a second trial following an acquittal," Just as unequivocally, it prevents the prosecution from seeking review or reversal of a judgment of acquittal on appeal. Kepner v. United And even where the first trial does not end in a final judgment, the "defendant's valued right to have his trial completed by |
Justice Marshall | 1,978 | 15 | dissenting | Swisher v. Brady | https://www.courtlistener.com/opinion/109928/swisher-v-brady/ | the "defendant's valued right to have his trial completed by a particular tribunal," absent a "`manifest necessity'" for terminating the first proceedings, is protected by this quoting United v. Perez, ; see ante, at 214-215. These rules are designed to serve the underlying purposes of the Double Jeopardy Clause, the most fundamental of which is to protect an accused from the governmental harassment and oppression that can so easily arise from the massed power of the State in confrontation with an individual. See Green v. United As the Court recognizes, the Double Jeopardy Clause serves to preclude the State from having "`another opportunity to supply evidence which it failed to muster in the first proceeding'"; to avoid the risk that a defendant, though in fact innocent, may be convicted by a successive decisionmaker; and to prevent the State from unfairly subjecting a defendant "to the embarrassment, expense, and ordeal of a second trial." Ante, *222 at 216. It is against these touchstones of law that the Maryland scheme must be evaluated. A After rejecting the State's chief that jeopardy does not attach in hearings before a masterthe Court reaches its result primarily by ignoring the undisputed fact that state law commits to the master a factfinding function. Admittedly, the Maryland proceedings are somewhat difficult to classify into the customary pigeonholes of double jeopardy analysis, but that is precisely because the State has engaged in a novel redefinition of trial and appellate functions in a quasi-criminal proceeding, intentionally designed to avoid the constraints of the Double Jeopardy [2] While a State is, of course, free to designate a "master," a "judge," or some other officer to conduct juvenile adjudicatory hearings, our Constitution is not so fragile an instrument that its substantive prohibitions may be evaded by formal designations that fail to correspond with the actual functions performed. Viewing the master and judge in terms of their relative functions, I think the appropriate analogy is between a trial judge and an appellate court with unusually broad powers of review. In the cases before us, the masters had made unequivocal findings, on the facts, that the State had not proved its case, and the State sought to have the judge overturn these findings.[3] By ignoring these functional considerations, *223 the Court permits the State to circumvent the protections of the Double Jeopardy Clause by a mere change in the formal definitions of finality. The Court thus makes the linchpin of its holding a formalism that belies our insistence that "courts eschew `label[s]-of-convenience attached to juvenile proceedings,' In re Gault, [,], and that `the |
Justice Marshall | 1,978 | 15 | dissenting | Swisher v. Brady | https://www.courtlistener.com/opinion/109928/swisher-v-brady/ | to juvenile proceedings,' In re Gault, [,], and that `the juvenile process be candidly appraised,' [id.,] at 21." (1) The Court describes the Maryland system as one permitting "the presentation and recording of evidence in the absence of the only officer authorized by the state constitution and by statute to serve as the factfinder and judge." Ante, at 212. It is inaccurate, however, to say that only the judge is "authorized" under Maryland law to act as a factfinder.[4] The master does not simply act as a referee at the hearing, deciding evidentiary questions and creating a record placed before the judge. Rather, Rule 911 directs that, at the end of the disposition hearing (which follows the adjudicatory hearing), the master "transmit to the judge the entire file in the case, together with a written report of his proposed findings of fact, conclusions of law, recommendations and proposed orders with respect to adjudication and disposition." Rule 911 (b).[5] *224 That Maryland contemplates an actual factfinding function for the master is emphasized by the fact that neither the Rule nor the statute requires the "judge" to read the entire record, listen to the tape recording of the adjudicatory hearing, or otherwise expose himself to the full factual record as it was presented to the master. Indeed, the Rule expressly recognizes that the judge may enter his order "based on" the master's findings. Rule 911 (d). The master himself thus serves as a factfinder of first instance; while his findings are only "proposed," they may be accepted by the judge without an independent review of the entire record. *225 (2) In Kepner v. United we held that the Double Jeopardy Clause prohibited an appellate court in the Philippines from reversing a verdict of acquittal rendered by the trial court in a bench trial and entering a verdict of guilty.[6] The Government had argued that, under controlling Spanish law, "[t]he original trial is a unitary and continuous thing, and is not complete until the appellate court has pronounced judgment." Brief for United O. T. 1903, No. 244, p. 39. This Court, however, held that American constitutional law governed and that the Double Jeopardy Clause prohibited the Government from appealing a judgment of acquittal entered by the first trier of facts. In so holding, the Court rejected Mr. Justice Holmes' "continuing jeopardy" -137 an that we have consistently refused to adopt, see, e. g., United v. and to which the State's position here bears an uncomfortable resemblance.[7] *226 There are, of course, differences between Kepner and the instant case. In Kepner the court of |
Justice Marshall | 1,978 | 15 | dissenting | Swisher v. Brady | https://www.courtlistener.com/opinion/109928/swisher-v-brady/ | Kepner and the instant case. In Kepner the court of first instance apparently had authority to enter an adjudication that would be final absent an appeal by either party, whereas here the masters do not have power to enter a final order of acquittal. But as we have repeatedly emphasized, an "acquittal" is not necessarily determined by the form of the order. United v. Martin Linen Supply ; see United v. ; United v. Sisson, As the Kepner Court noted in support of its holding that a bench acquittal could not be appealed, a jury verdict of acquittal, even when not followed by a formal judgment of the trial court, bars further proceedings under the Double Jeopardy Here, while the master does not formally make a final adjudication, in all other respects his proposed finding of nondelinquency is fully equivalent to an acquittal: after a plenary adjudicatory hearing, he makes "a resolution, correct or not, of some or all of the factual elements of the offense charged." United v. Martin Linen Supply at And the State's exception to the master's finding of nondelinquency engenders the same anxiety and burden as would a State's appeal from an adult court's verdict of acquittal. The Court's rationale allows to avoid the Kepner holding by the simple expedient of changing the definitions of finality without changing the functions performed by judges at different levels of decision. The decision today might well be read to hold that the Double Jeopardy Clause is no bar to structuring a juvenile justice system or, for that matter, an *227 adult criminal justice system so as to have several layers of adjudication, none of which is final until the State has exhausted its last appeal.[8] This proliferation of levels at which a defendantjuvenile or adultmust defend himself against an adjudication of guilt is precisely the kind of evil that the Double Jeopardy Clause was designed to forbid. Yet under the Court's rationale, this is seemingly permissible so long as the State takes care to define the lower levels of decision-making as only "proposed" or "tentative" in nature, thereby commingling traditional trial and appellate functions. B Even if the master's findings are not regarded as an acquittal, the Double Jeopardy Clause does more than simply protect acquittals from review on direct appeal. It also protects the defendant's right to go to judgment before a "particular tribunal" once jeopardy has attached, absent a "`manifest necessity'" justifying termination of the first proceeding. 336 U. S., at This rule is designed in part to ensure that the government not be able to bolster |
Justice Marshall | 1,978 | 15 | dissenting | Swisher v. Brady | https://www.courtlistener.com/opinion/109928/swisher-v-brady/ | to ensure that the government not be able to bolster its case by additional evidence or s, once it believes that its evidence has not persuaded the first tribunal. See 434 U. S., at -505, and n. 14. But *228 the Maryland system is structured so as to give the State precisely this type of proscribed opportunity, where it disagrees with the favorable rulings of the first trier of fact. As recognized by the Court, jeopardy attaches at the master's hearing. This hearing is a formal, adjudicatory proceeding at which the State's witnesses testify and are cross-examined; the juvenile may present evidence in his own defense; and the juvenile is entitled to counsel and to remain silent. Presentation of evidence at that proceeding is keyed to the reactions and attitudes of the presiding master, who acts, for purposes of the adjudicatory hearing, as the "particular tribunal." A juvenile who has had such a hearing may justifiably expect that, when the master who has heard all this evidence announces a finding in his favor, it will be final. But a juvenile tried before a master in Maryland is never, as a matter of law, entitled to have his trial "completed" before the master, since his recommendations must be confirmed by the judge and may be ignored by him. Thus, endemic to the Maryland system is a kind of interrupted proceeding which ensures that the defendant cannot get the benefit of the first trier of fact's reaction to the evidence. The system thereby poses a substantial risk that innocent defendants may be found guilty, since it allows the State a second opportunity to persuade a decisionmaker of the juvenile's guilt, after the first trier of fact has concluded that the State has not proved its case. See Unless justified by a "manifest necessity"not present herethe Double Jeopardy Clause condemns such a system. As we wrote in Green v. United 355 U. S., at -188, the "underlying idea" of the Double Jeopardy Clause "is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him *229 to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." For these reasons, I conclude that the Maryland Rule, insofar as it permits a judge to review and set aside a master's findings favorable to the defendant on the facts of the case, violates the Double Jeopardy |
Justice Marshall | 1,978 | 15 | dissenting | Swisher v. Brady | https://www.courtlistener.com/opinion/109928/swisher-v-brady/ | on the facts of the case, violates the Double Jeopardy II As the majority accurately states, the only issue raised in the complaints or focused upon in the parties' briefs was that of double jeopardy. It is argued by amicus, however, that the Maryland system, even if it were found to avoid double jeopardy problems, violates the Due Process Clause by permitting ultimate factfinding by a judge who did not actually conduct the trial.[9] The Court does not reach this issue, apparently believing that it is not properly presented here.[10]*230 See ante, at 212, 213, 216 n. 14, 219. It is thus important to emphasize that the Maryland system and ones like it have not been held constitutional today; the Court's only holding is that such systems are not unconstitutional under the Double Jeopardy It is entirely open to this Court, and lower courts, to find in another case that a system like that in Maryland violates the Due Process In In re Winship, we held that a juvenile accused of a crime may be convicted only upon proof beyond a reasonable doubt, even if he is prosecuted in a juvenile court. The rationale of Winship suggests that the Due Process Clause requires the most reliable procedures to be used in making the reasonable-doubt determination in juvenile proceedings. As we have repeatedly emphasized: "`To experienced lawyers it is commonplace that the outcome of a lawsuitand hence the vindication of legal rightsdepends more often on how the factfinder appraises the facts than on a disputed construction of a statute Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied.'" quoting Over 30 years ago, in we recognized the importance to a reliable factfinding process of hearing live witnesses. The issue there was whether, on a federal habeas corpus petition, a District Judge could utilize a United Commissioner to hold the evidentiary hearing and make recommended findings of fact and conclusions of law. Although our holding that the prisoner had a right to testify and present his evidence before a judge was a statutory one, our reasoning went to the fundamental nature *231 of the kind of factfinding on which many judicial determinations must rest: "One of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony. We cannot say that an appraisal of the truth of the prisoner's oral testimony by a master or commissioner is, in the light of the purpose and |
Justice Marshall | 1,978 | 15 | dissenting | Swisher v. Brady | https://www.courtlistener.com/opinion/109928/swisher-v-brady/ | or commissioner is, in the light of the purpose and object of the proceeding, the equivalent of the judge's own exercise of the function of the trier of the facts." at Four Terms ago, in we adhered to this view, holding that the successor habeas corpus statute also required the district judge personally to conduct evidentiary hearings in habeas corpus cases. We not only disapproved the practice of referring evidentiary hearings to masters, but also held that the judge's listening to an electronic recording of the testimony was no substitute for his personally hearing and observing the witnesses to evaluate their credibility. These decisions arose in the context of habeas corpus proceedings, where the prisoner has the burden of demonstrating that he is being held in violation of the Constitution. In a criminal proceeding, where the issue posed is the threshold one of whether a defendant has been proved guilty of a crime beyond a reasonable doubt, the same considerations surely have at least as much force. Indeed, the need for achieving the most reliable determinations of evidentiary facts, and particularly of credibility, exists a fortiori where the factual determinations must be made beyond a reasonable doubt. As the Maryland courts have held, In re Brown, and as is self-evident from the structure of Rule 911, the master's function at the hearing is, in large part, to assess the credibility of the witnesses. That function simply cannot be replicated by the "judge," acting in his essentially appellate capacity reviewing the record; as amicus cogently notes, "[t]rials-by-transcript can never be more than trials by substantial evidence."[11]*232 It would thus appear that the Maryland system of splitting the hearing of evidence from the final adjudication violates the Due Process It is no answer to this problem that the juvenile defendant may elect to submit additional material to the judge when the State takes an exception to the master's finding. In the first place, the State apparently must agree to the supplementation of the record, and can thus stymie a defendant's efforts to persuade the judge that he is not guilty. See Rule 911 (c). But more importantly, when a juvenile seeks to reopen the proceeding before the judgein order to avoid having a case decided against him on the basis of a cold record in violation of the Due Process Clausehe is being subjected to a second trial of the sort clearly prohibited by the Double Jeopardy The constitutionality of forcing a juvenile to such a choice between fundamental rights is questionable at best. Cf. United v. Jackson, ; North III That |
Justice Marshall | 1,978 | 15 | dissenting | Swisher v. Brady | https://www.courtlistener.com/opinion/109928/swisher-v-brady/ | at best. Cf. United v. Jackson, ; North III That the current Maryland scheme cannot pass constitutional muster does not necessarily mean that the idea of using masters, or some other class of specially trained or selected personnel for juvenile court adjudications, is either unconstitutional or unwise. Using masters to adjudicate the more common charges may save scarce judicial resources for the more difficult cases. It may also aid the ultimate goals of a juvenile justice system by ensuring that the decisionmakers have some familiarity with the special problems of juvenile dispositions. But the State must find a way of implementing this concept without jeopardizing the constitutional rights of juveniles. Whether it does so by endowing masters with the power to make final adjudications or by some other means, *233 matters not. What does matter is that, absent compelling circumstances not present here, the system of juvenile justice in this country must not be permitted to fall below the minimum constitutional standards set for adult criminal proceedings. Accordingly, I dissent. |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | In District of Columbia v. Heller, 554 U. S. (slip op., at 1), the Court answered the question whether a federal enclave’s “prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.” The question we should be answering in this case is whether the Constitution “guarantees individuals a fundamental right,” enforceable against the States, “to possess a functional, personal firearm, including a handgun, within the home.” Com plaint ¶34, App. 23. That is a different—and more diffi cult—inquiry than asking if the Fourteenth Amendment “incorporates” the Second Amendment. The so-called incorporation question was squarely and, in my view, correctly resolved in the late 19th century.1 Before the District Court, petitioners focused their pleadings on the special considerations raised by domestic possession, which they identified as the core of their as serted right. In support of their claim that the city of Chicago’s handgun ban violates the Constitution, they now rely primarily on the Privileges or Immunities Clause of —————— 1 See United ; Presser v. Illinois, ; (1894). This is not to say that I agree with all other aspects of these decisions. 2 MCDONALD v. CHICAGO STEVENS, J., dissenting the Fourteenth Amendment. See Brief for Petitioners 9– They rely secondarily on the Due Process Clause of that Amendment. See at 66–72. Neither submission requires the Court to express an opinion on whether the Fourteenth Amendment places any limit on the power of States to regulate possession, use, or carriage of firearms outside the home. I agree with the plurality’s refusal to accept petitioners’ primary submission. Ante, at 10. Their briefs marshal an impressive amount of historical evidence for their argu ment that the Court interpreted the Privileges or Immuni ties Clause too narrowly in the Slaughter-House Cases, 16 Wall. 36 (1873). But the original meaning of the Clause is not as clear as they suggest2—and not nearly as clear as it would need to be to dislodge 1 years of precedent. The —————— 2 Cf., e.g., Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 3, (finding “some support in the legislative history for no fewer than four interpretations” of the Privileges or Immunities Clause, two of which contradict petitioners’ submission); Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. Civ. Rights L. J. 219, 5–277 (2009) (providing evidence that the Clause was originally conceived of as an antidiscrimination measure, guaranteeing equal rights for black citizens); Rosenthal, The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorpora tion, 18 |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | Original Public Meaning and the Problem of Incorpora tion, 18 J. Contemporary Legal Issues 361 (2009) (detailing reasons to doubt that the Clause was originally understood to apply the Bill of Rights to the States); Hamburger, Privileges or Immunities, Nw. U. L. Rev. (forthcoming 2011), online at http://ssrn.com/abstract=1557870 (as visited June 2010, and available in Clerk of Court’s case file) (arguing that the Clause was meant to ensure freed slaves were af forded “the Privileges and Immunities” specified in Article IV, cl. 1 of the Constitution). Although he urges its elevation in our doctrine, JUSTICE THOMAS has acknowledged that, in seeking to ascertain the original meaning of the Privileges or Immunities Clause, “[l]egal scholars agree on little beyond the conclusion that the Clause does not mean what the Court said it meant in 1873.” Saenz v. Roe, 5 U.S. 489, 522, n. 1 (9) (dissenting opinion); accord, ante, at 10 (plurality opinion). Cite as: 561 U. S. (2010) 3 STEVENS, J., dissenting burden is severe for those who seek radical change in such an established body of constitutional doctrine.3 Moreover, the suggestion that invigorating the Privileges or Immuni ties Clause will reduce judicial discretion, see Reply Brief for Petitioners 22, n. 8, ; Tr. of Oral Arg. 64–, strikes me as implausible, if not exactly backwards. “For the very reason that it has so long remained a clean slate, a revital ized Privileges or Immunities Clause holds special hazards for judges who are mindful that their proper task is not to write their personal views of appropriate public policy into the Constitution.”4 I further agree with the plurality that there are weighty arguments supporting petitioners’ second submission, insofar as it concerns the possession of firearms for lawful self-defense in the home. But these arguments are less compelling than the plurality suggests; they are much less compelling when applied outside the home; and their validity does not depend on the Court’s holding in Heller. For that holding sheds no light on the meaning of the Due Process Clause of the Fourteenth Amendment. Our deci sions construing that Clause to render various procedural guarantees in the Bill of Rights enforceable against the —————— 3 It is no secret that the desire to “displace” major “portions of our equal protection and substantive due process jurisprudence” animates some of the passion that attends this interpretive issue. Saenz, 5 U.S., at 528 (THOMAS, J., dissenting). 4 Wilkinson, The Fourteenth Amendment Privileges or Immunities Clause, 12 Harv. J. L. & Pub. Pol’y 43, 52 Judge Wilkinson’s point is broader than the privileges or immunities debate. As |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | point is broader than the privileges or immunities debate. As he observes, “there may be more structure imposed by provisions subject to generations of elaboration and refinement than by a provision in its pristine state. The fortuities of uneven constitutional development must be respected, not cast aside in the illusion of reordering the landscape anew.” at 51–52; see also Washington v. 521 U.S. 702, 759, n. 6 (7) (Souter, J., concurring in judgment) (ac knowledging that, “[t]o a degree,” the Slaughter-House “decision may have led the Court to look to the Due Process Clause as a source of substantive rights”). 4 MCDONALD v. CHICAGO STEVENS, J., dissenting States likewise tell us little about the meaning of the word “liberty” in the Clause or about the scope of its protection of nonprocedural rights. This is a substantive due process case. I Section 1 of the Fourteenth Amendment decrees that no State shall “deprive any person of life, liberty, or property, without due process of law.” The Court has filled thou sands of pages expounding that spare text. As I read the vast corpus of substantive due process opinions, they confirm several important principles that ought to guide our resolution of this case. The principal opinion’s lengthy summary of our “incorporation” doctrine, see ante, at 5–9, 11–19 (majority opinion), 10–11 and its implicit (and untenable) effort to wall off that doctrine from the rest of our substantive due process jurisprudence, invite a fresh survey of this old terrain. Substantive Content The first, and most basic, principle established by our cases is that the rights protected by the Due Process Clause are not merely procedural in nature. At first glance, this proposition might seem surprising, given that the Clause refers to “process.” But substance and proce dure are often deeply entwined. Upon closer inspection, the text can be read to “impos[e] nothing less than an obligation to give substantive content to the words ‘liberty’ and ‘due process of law,’ ” Washington v. 521 U.S. 702, 764 (7) (Souter, J., concurring in judgment), lest superficially fair procedures be permitted to “destroy the enjoyment” of life, liberty, and property, and the Clause’s prepositional modifier be permitted to swallow its primary command. Procedural guarantees are hollow unless linked to substantive interests; and no Cite as: 561 U. S. (2010) 5 STEVENS, J., dissenting amount of process can legitimize some deprivations. I have yet to see a persuasive argument that the Fram ers of the Fourteenth Amendment thought otherwise. To the contrary, the historical evidence suggests that, at least by the time of the Civil War if |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | at least by the time of the Civil War if not much earlier, the phrase “due process of law” had acquired substantive content as a term of art within the legal community.5 This understanding is consonant with the venerable “notion that governmental authority has implied limits which —————— 5 See, e.g., Ely, The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 Const. Commentary 315, 3– 7 (9) (concluding that founding-era “American statesmen accus tomed to viewing due process through the lens of [Sir Edward] Coke and [William] Blackstone could [not] have failed to understand due process as encompassing substantive as well as procedural terms”); Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L. J. 585, 594 (2009) (arguing “that one widely shared under standing of the Due Process Clause of the Fifth Amendment in the late eighteenth century encompassed judicial recognition and enforcement of unenumerated substantive rights”); Maltz, Fourteenth Amendment Concepts in the Antebellum Era, 317–318 (1988) (explaining that in the antebellum era a “substantial number of states,” as well as antislavery advocates, “imbued their [constitutions’] respective due process clauses with a substantive content”); Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, (19) (“[T]he historical evidence points strongly toward the conclusion that, at least by 8 even if not in 1791, any state legislature voting to ratify a constitutional rule banning government deprivations of ‘life, liberty, or property, without due process of law’ would have understood that ban as having substantive as well as procedural content, given that era’s premise that, to qualify as ‘law,’ an enactment would have to meet substantive requirements of rationality, non-oppressiveness, and evenhandedness”); see also The Third Branch of Liberty, 41 U. Miami L. Rev. 277, 290 (“In view of the number of cases that have given substantive content to the term liberty, the burden of demonstrating that this consistent course of decision was unfaithful to the intent of the Framers is surely a heavy one”). 6 MCDONALD v. CHICAGO STEVENS, J., dissenting preserve private autonomy,”6 a notion which predates the founding and which finds reinforcement in the Constitu tion’s Ninth Amendment, see v. Connecticut, 1 U.S. 479, 486–493 (19) (Gold, J., concurring).7 The Due Process Clause cannot claim to be the source of our basic freedoms—no legal document ever could, see (STEVENS, J., dissenting)—but it stands as one of their foundational guarantors in our law. If text and history are inconclusive on this point, our precedent leaves no doubt: It has been “settled” for |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | our precedent leaves no doubt: It has been “settled” for well over a century that the Due Process Clause “applies to matters of substantive law as well as to matters of proce dure.” (Brandeis, J., concurring). Time and again, we have rec ognized that in the Fourteenth Amendment as well as the Fifth, the “Due Process Clause guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint.” 521 U.S., at 719. “The Clause also includes a substantive component that ‘provides heightened protection against government interfe with certain fundamental rights and liberty interests.’ ” (opinion of O’Connor, J., joined by Rehnquist, C. J., and GINSBURG and BREYER, JJ.) ( 521 U.S., at ). Some of our most enduring precedents, accepted today by virtually everyone, were substantive due process decisions. See, e.g., v. Virginia, 8 U.S. 1, 12 (1967) (recognizing due-process- as well as equal-protection-based right to marry person of another race); —————— 61 L. Tribe, American Constitutional Law p. 5 7 The Ninth Amendment provides: “The enumeration in the Constitu tion, of certain rights, shall not be construed to deny or disparage others retained by the people.” Cite as: 561 U. S. (2010) 7 STEVENS, J., dissenting (outlawing racial segregation in District of Columbia public schools); 534–535 (vindicating right of parents to direct upbringing and education of their children); v. Nebraska, (striking down prohibition on teaching of foreign languages). Liberty The second principle woven through our cases is that substantive due process is fundamentally a matter of personal liberty. For it is the liberty clause of the Four teenth Amendment that grounds our most important holdings in this field. It is the liberty clause that enacts the Constitution’s “promise” that a measure of dignity and self-rule will be afforded to all persons. Planned Parent hood of Southeastern (2). It is the liberty clause that reflects and renews “the origins of the American heritage of freedom [and] the abiding interest in individual liberty that makes certain state intrusions on the citizen’s right to decide how he will live his own life intolerable.” Our substantive due process cases have episodically in voked values such as privacy and equality as well, values that in certain contexts may intersect with or complement a subject’s liberty interests in profound ways. But as I have observed on numerous occasions, “most of the signifi cant [20th-century] cases raising Bill of Rights issues have, in the final analysis, actually interpreted the word ‘liberty’ in the Fourteenth Amendment.”8 It follows that the term “incorporation,” like the term “unenumerated rights,” is something of |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | term “incorporation,” like the term “unenumerated rights,” is something of a misnomer. —————— 8 The Bill of Rights: A Century of Progress, 59 U. Chi. L. Rev. 13, 20 (2); see –; 41 U. Miami L. Rev., 6–289; see also Greene, The So-Called Right to Privacy, 43 U. C. D. L. Rev. 715, 7–731 (2010). 8 MCDONALD v. CHICAGO STEVENS, J., dissenting Whether an asserted substantive due process interest is explicitly named in one of the first eight Amendments to the Constitution or is not mentioned, the underlying in quiry is the same: We must ask whether the interest is “comprised within the term liberty.” Whitney, U.S., at (Brandeis, J., concurring). As the second Justice Harlan has shown, ever since the Court began considering the applicability of the Bill of Rights to the States, “the Court’s usual approach has been to ground the prohibi tions against state action squarely on due process, without intermediate reliance on any of the first eight Amend ments.” (dissent ing opinion); see also Frankfurter, Memorandum on “In corporation” of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment, 78 Harv. L. Rev. 746, 747–750 (19). In the pathmarking case of v. New York, 8 U.S. 2, for example, both the majority and dissent evaluated petitioner’s free speech claim not under the First Amendment but as an aspect of “the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”9 —————— 9 See also (“The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States”). Subsequent decisions repeat edly reaffirmed that persons hold free speech rights against the States on account of the Fourteenth Amendment’s liberty clause, not the First Amendment per se. See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 466 (18); ; ; see also (19) (“The term ‘liberty’ in the Fourteenth Amendment to the Constitution makes the First Amendment applicable to the States”). Classic opin ions written by Justice Cardozo and Justice Frankfurter endorsed the Cite as: 561 U. S. (2010) 9 STEVENS, J., dissenting In his own classic opinion in (concurring in judgment), Justice Harlan memorably distilled these precedents’ lesson: “While the relevant inquiry may |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | memorably distilled these precedents’ lesson: “While the relevant inquiry may be aided by resort to one or more of the provi sions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands on its own bottom.”10 Inclusion in the Bill of Rights is neither necessary nor sufficient for an interest to be judicially enforceable under the Fourteenth Amendment. This Court’s “ ‘selective incorporation’ ” doctrine, ante, at 15, is not simply “related” to substantive due process, ante, at 19; it is a subset thereof. Federal/State Divergence The third precept to emerge from our case law flows from the second: The rights protected against state infringement by the Fourteenth Amendment’s Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights. As drafted, the Bill of —————— same basic approach to “incorporation,” with the Fourteenth Amend ment taken as a distinct source of rights independent from the first eight Amendments. 2–8 (19) (opinion for the Court by Cardozo, J.); 10 See also (“The notion that the ‘due process of law’ guaranteed by the Fourteenth Amendment is shorthand for the first eight amendments of the Constitution has been rejected by this Court again and again, after impressive consid eration. The issue is closed”). Wolf’s holding on the exclusionary rule was overruled by but the principle just quoted has never been disturbed. It is notable that Mapp, the case that launched the modern “doctrine of ad hoc,” “ ‘jot-for jot’ ” incorporation, (Harlan, J., concurring in result), expressly held “that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amend ments.” 367 U.S., at 7 10 MCDONALD v. CHICAGO STEVENS, J., dissenting Rights directly constrained only the Federal Government. See Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 3 (1833). Although the enactment of the Fourteenth Amendment profoundly altered our legal order, it “did not unstitch the basic federalist pattern woven into our consti tutional fabric.” (Harlan, J., concurring in result). Nor, for that matter, did it expressly alter the Bill of Rights. The Con stitution still envisions a system of divided sovereignty, still “establishes a federal republic where local diffes are to be cherished as elements of liberty” in the vast run of cases, National Rifle Assn. of Am. Inc. v. Chicago, 567 F.3d 856, (CA7 2009) (Easterbrook, C. J.), still allo cates a general “police power to the States and the States alone,” |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | general “police power to the States and the States alone,” United States v. Comstock, 560 U. S. (2010) (slip op., at 4) (KENNEDY, J., concurring in judg ment). Elementary considerations of constitutional text and structure suggest there may be legitimate reasons to hold state governments to different standards than the Federal Government in certain areas.11 It is true, as the Court emphasizes, ante, at 15–19, that we have made numerous provisions of the Bill of Rights fully applicable to the States. It is settled, for instance, that the Governor of Alabama has no more power than the President of the United States to authorize unreasonable searches and seizures. (19). But we have never accepted a “total incorporation” theory of the Fourteenth Amendment, whereby the Amendment is deemed to subsume the provisions of the Bill of Rights en masse. See ante, at 15. And we have declined to apply several provisions to the States in any —————— 11 Ican hardly improve upon the many passionate defenses of this position that Justice Harlan penned during his tenure on the Court. See n. 14 (cataloguing opinions). Cite as: 561 U. S. (2010) 11 STEVENS, J., dissenting measure. See, e.g., Minneapolis & St. Louis R. Co. v. Bombolis, 1 U.S. 211 ; (Grand Jury Clause). We have, moreover, resisted a uniform approach to the Sixth Amendment’s criminal jury guarantee, de manding 12-member panels and unanimous verdicts in federal trials, yet not in state trials. See ; 399 U.S. 78. In recent years, the Court has repeatedly de clined to grant certiorari to review that disparity.12 While those denials have no precedential significance, they confirm the proposition that the “incorporation” of a provi sion of the Bill of Rights into the Fourteenth Amendment does not, in itself, mean the provision must have precisely the same meaning in both contexts. It is true, as well, that during the 1960’s the Court decided a number of cases involving procedural rights in which it treated the Due Process Clause as if it trans planted language from the Bill of Rights into the Four teenth Amendment. See, e.g., Benton v. Maryland, 3 U.S. 784, 7 (1969) (Double Jeopardy Clause); Pointer v. Texas, (19) “Jot-for-jot” incorporation was the norm in this expansion ary era. Yet at least one subsequent opinion suggests that these precedents require perfect state/federal congruence only on matters “ ‘at the core’ ” of the relevant constitutional guarantee. ; see also at 52–53 (Powell, J., dissenting). In my judgment, this line of cases is best understood as having concluded that, to ensure a criminal trial satisfies essential |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | having concluded that, to ensure a criminal trial satisfies essential standards of —————— 12 See, e.g., Pet. for Cert. in Bowen v. Oregon, O. T. 2009, No. 08– 1117, p. i, cert. denied, 558 U. S. (2009) (request to overrule Apo daca); Pet. for Cert. in Lee v. Louisiana, O. T. 2008, No. 07–1523, p. i, cert. denied, 555 U. S. (same); Pet. for Cert. in Logan v. Florida, O. T. 2007, No. 07–74, pp. 14–19, cert. denied, 552 U.S. 1189 (request to overrule ). 12 MCDONALD v. CHICAGO STEVENS, J., dissenting fairness, some procedures should be the same in state and federal courts: The need for certainty and uniformity is more pressing, and the margin for error slimmer, when criminal justice is at issue. That principle has little rele vance to the question whether a nonprocedural rule set forth in the Bill of Rights qualifies as an aspect of the lib erty protected by the Fourteenth Amendment. Notwithstanding some overheated dicta in Malloy, 8 U.S., at 10–11, it is therefore an overstatement to say that the Court has “abandoned,” ante, at 16, 17 (majority opinion), 39 a “two-track approach to incorporation,” ante, at The Court moved away from that approach in the area of criminal procedure. But the Second Amendment differs in funda mental respects from its neighboring provisions in the Bill of Rights, as I shall explain in Part V, infra; and if some 1960’s opinions purported to establish a general method of incorporation, that hardly binds us in this case. The Court has not hesitated to cut back on perceived Warren Court excesses in more areas than I can count. I do not mean to deny that there can be significant practical, as well as esthetic, benefits from treating rights symmetrically with regard to the State and Federal Gov ernments. Jot-for-jot incorporation of a provision may entail greater protection of the right at issue and therefore greater freedom for those who hold it; jot-for-jot incorpora tion may also yield greater clarity about the contours of the legal rule. See U.S. 356, 4–8 (Douglas, J., dissenting); Pointer, 0 U.S., at 413–414 (Gold, J., concurring). In a federal ist system such as ours, however, this approach can carry substantial costs. When a federal court insists that state and local authorities follow its dictates on a matter not critical to personal liberty or procedural justice, the latter may be prevented from engaging in the kind of beneficent “experimentation in things social and economic” that Cite as: 561 U. S. (2010) 13 STEVENS, J., dissenting ultimately redounds to the benefit of |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | 13 STEVENS, J., dissenting ultimately redounds to the benefit of all Americans. New State 285 U.S. 2, (Brandeis, J., dissenting). The costs of federal courts’ imposing a uniform national standard may be especially high when the relevant regulatory interests vary signifi cantly across localities, and when the ruling implicates the States’ core police powers. Furthermore, there is a real risk that, by demanding the provisions of the Bill of Rights apply identically to the States, federal courts will cause those provisions to “be watered down in the needless pursuit of uniformity.” When one legal standard must prevail across dozens of jurisdictions with disparate needs and customs, courts will often settle on a relaxed stan dard. This watering-down risk is particularly acute when we move beyond the narrow realm of criminal procedure and into the relatively vast domain of substantive rights. So long as the requirements of fundamental fairness are always and everywhere respected, it is not clear that greater liberty results from the jot-for-jot application of a provision of the Bill of Rights to the States. Indeed, it is far from clear that proponents of an individual right to keep and bear arms ought to celebrate today’s decision.13 —————— 13 The vast majority of States already recognize a right to keep and bear arms in their own constitutions, see Volokh, State Constitutional Rights to Keep and Bear Arms, (cataloguing provisions); Brief for Petitioners 69 (observing that “[t]hese Second Amendment analogs are effective and consequential”), but the States vary widely in their regulatory schemes, their traditions and cultures of firearm use, and their problems relating to gun vio lence. If federal and state courts must harmonize their review of gun control laws under the Second Amendment, the resulting jurisprudence may prove significantly more deferential to those laws than the status quo ante. Once it has been established that a single legal standard must govern nationwide, federal courts will face a profound pressure to reconcile that standard with the diverse interests of the States and 14 MCDONALD v. CHICAGO STEVENS, J., dissenting II So far, I have explained that substantive due process analysis generally requires us to consider the term “lib erty” in the Fourteenth Amendment, and that this inquiry may be informed by but does not depend upon the content of the Bill of Rights. How should a court go about the analysis, then? Our precedents have established, not an exact methodology, but rather a framework for decision making. In this respect, too, the Court’s narrative fails to capture the continuity and flexibility in our doctrine. The basic inquiry was described |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | and flexibility in our doctrine. The basic inquiry was described by Justice Cardozo more than 70 years ago. When confronted with a substan tive due process claim, we must ask whether the allegedly unlawful practice violates values “implicit in the concept of ordered liberty.” 5 (19).14 If the practice in question lacks any “oppres sive and arbitrary” character, if judicial enforcement of the asserted right would not materially contribute to “a fair and enlightened system of justice,” then the claim is un —————— their long history of regulating in this sensitive area. Cf. 399 U.S., at 129–130 (Harlan, J., concurring in result) (noting “ ‘backlash’ ” potential of jot-for-jot incorporation); Grant, Felix Frankfurter: A Dissenting Opinion, (19) (“If the Court will not reduce the requirements of the fourteenth amendment below the federal gloss that now overlays the Bill of Rights, then it will have to reduce that gloss to the point where the states can live with it”). Amici argue persuasively that, post-“incorporation,” federal courts will have little choice but to fix a highly flexible standard of review if they are to avoid leaving federalism and the separation of powers—not to mention gun policy—in shambles. See Brief for Brady Center to Prevent Gun Violence et al. as Amici Curiae (hereinafter Brady Center Brief). 14 Justice Cardozo’s test itself built upon an older line of decisions. See, e.g., Chicago, B. & Q. R. 166 U.S. 2, 2 (discussing “limitations on [state] power, which grow out of the essen tial nature of all free governments [and] implied reservations of indi vidual rights, and which are respected by all governments entitled to the name” (internal quotation marks omitted)). Cite as: 561 U. S. (2010) 15 STEVENS, J., dissenting suitable for substantive due process protection. at 7, 5. Implicit in Justice Cardozo’s test is a recognition that the postulates of liberty have a universal character. Liberty claims that are inseparable from the customs that prevail in a certain region, the idiosyncratic expectations of a certain group, or the personal prefes of their champions, may be valid claims in some sense; but they are not of constitutional stature. Whether conceptualized as a “rational continuum” of legal precepts, 367 U.S., at 543 or a seamless web of moral commitments, the rights embraced by the liberty clause transcend the local and the particular. Justice Cardozo’s test undeniably requires judges to apply their own reasoned judgment, but that does not mean it involves an exercise in abstract philosophy. In addition to other constraints I will soon discuss, see Part III, infra, historical and empirical data of various kinds |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | Part III, infra, historical and empirical data of various kinds ground the analysis. Textual commitments laid down elsewhere in the Constitution, judicial precedents, English common law, legislative and social facts, scientific and professional developments, practices of other civilized societies,15 and, above all else, the “ ‘traditions and con science of our people,’ ” ), are critical variables. They can provide evidence about which rights really are vital to ordered liberty, as well as a spur to judicial action. The Court errs both in its interpretation of and in its suggestion that later cases rendered ’s methodol ogy defunct. Echoing the Court advises that Justice Cardozo’s test will not be satisfied “ ‘if a civilized system could be imagined that would not accord the par —————— 15 See U.S., at 3, n. 3; see also, e.g., ; – 711, and n. 8. 16 MCDONALD v. CHICAGO STEVENS, J., dissenting ticular protection.’ ” Ante, at 12 ( n. 14). does contain some language that could be read to set an inordinate bar to substantive due process recognition, reserving it for practices without which “nei ther liberty nor justice would exist.” U.S., at 3. But in view of Justice Cardozo’s broader analysis, as well as the numerous cases that have upheld liberty claims under the standard, such readings are plainly over readings. We have never applied in such a draco nian manner. Nor, as the Court intimates, see ante, at 16, did mark an irreparable break from swapping out liberty for history. limited its discussion to “par ticular procedural safeguard[s]” in the Bill of Rights relat ing to “criminal processes,” n. 14; it did not purport to set a standard for other types of liberty interests. Even with regard to procedural safeguards, did not jettison the test so much as refine it: The judge is still tasked with evaluating whether a prac tice “is fundamental to ordered liberty,” within the context of the “Anglo-American” system. 391 U.S., at 149–150, n. 14. Several of our most important recent decisions confirm the proposition that substantive due process analysis—from which, once again, “incorpora tion” analysis derives—must not be wholly backward looking. See, e.g., (“[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry” (internal quotation marks omitted)); Michael (garnering only two votes for history-driven meth odology that “consult[s] the most specific tradition avail able”); see also post, at 6–7 (BREYER, J., dissenting) (ex plaining that post- “incorporation” cases continued Cite as: 561 U. S. (2010) 17 STEVENS, J., dissenting to rely on more than history).16 |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | 17 STEVENS, J., dissenting to rely on more than history).16 The Court’s flight from leaves its analysis, careful and scholarly though it is, much too narrow to provide a satisfying answer to this case. The Court hinges its entire decision on one mode of intellectual history, culling se lected pronouncements and enactments from the 18th and 19th centuries to ascertain what Americans thought about firearms. Relying on and the plural ity suggests that only interests that have proved “funda mental from an American perspective,” ante, at 44, or “ ‘deeply rooted in this Nation’s history and tradition,’ ” ante, at 19 ( ), to the Court’s satisfaction, may qualify for incorporation into the Fourteenth Amendment. To the extent the Court’s opin ion could be read to imply that the historical pedigree of a right is the exclusive or dispositive determinant of its status under the Due Process Clause, the opinion is seri ously mistaken. A rigid historical test is inappropriate in this case, most basically, because our substantive due process doctrine has never evaluated substantive rights in purely, or even predominantly, historical terms. When the Court applied many of the procedural guarantees in the Bill of Rights to the States in the 1960’s, it often asked whether the guar antee in question was “fundamental in the context of the criminal processes maintained by the American States.”17 —————— 16 I acknowledge that some have read the Court’s opinion in Glucks as an attempt to move substantive due process analysis, for all purposes, toward an exclusively historical methodology—and thereby to debilitate the doctrine. If that were ever ’s aspiration, Law plainly renounced it. As between and Law, I have little doubt which will prove the more enduring precedent. 17 The Court almost never asked whether the guarantee in question was deeply rooted in founding-era practice. See Brief for Respondent City of Chicago et al. 31, n. 17 (hereinafter Municipal Respondents’ Brief) (noting that only two opinions extensively discussed such his tory). 18 MCDONALD v. CHICAGO STEVENS, J., dissenting n. 14. That inquiry could ex tend back through time, but it was focused not so much on historical conceptions of the guarantee as on its functional significance within the States’ regimes. This contextual ized approach made sense, as the choice to employ any given trial-type procedure means little in the abstract. It is only by inquiring into how that procedure intermeshes with other procedures and practices in a criminal justice system that its relationship to “liberty” and “due process” can be determined. Yet when the Court has used the Due Process Clause to |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | when the Court has used the Due Process Clause to recognize rights distinct from the trial context—rights relating to the primary conduct of free individuals— Justice Cardozo’s test has been our guide. The right to free speech, for instance, has been safeguarded from state infringement not because the States have always honored it, but because it is “essential to free government” and “to the maintenance of democratic institutions”—that is, because the right to free speech is implicit in the concept of ordered liberty. 96 ; see also, e.g., (discuss ing right to marry person of another race); 0, 5–7 (discussing right to be free from arbitrary intrusion by police); (discussing right to distribute printed matter).18 While the verbal formula has varied, the Court has largely been consistent in its liberty-based approach to substantive interests outside of the adjudicatory system. As the question before —————— 18 Cf. 0 U.S. 660, –668 (invalidat ing state statute criminalizing narcotics addiction as “cruel and unusual punishment in violation of the Fourteenth Amendment” based on nature of the alleged “ ‘crime,’ ” without historical analysis); Brief for Respon dent National Rifle Association of America, Inc., et al. 29 (noting that “lynchpin” of incorporation test has always been “the importance of the right in question to ‘liberty’ ” and to our “system of government”). Cite as: 561 U. S. (2010) 19 STEVENS, J., dissenting us indisputably concerns such an interest, the answer cannot be found in a granular inspection of state constitu tions or congressional debates. More fundamentally, a rigid historical methodology is unfaithful to the Constitution’s command. For if it were really the case that the Fourteenth Amendment’s guaran tee of liberty embraces only those rights “so rooted in our history, tradition, and practice as to require special protec tion,” n. 17, then the guar antee would serve little function, save to ratify those rights that state actors have already been according the most extensive protection.19 Cf. (critiquing “circular[ity]” of his toricized test for incorporation). That approach is unfaith ful to the expansive principle Americans laid down when they ratified the Fourteenth Amendment and to the level of generality they chose when they crafted its language; it promises an objectivity it cannot deliver and masks the value judgments that pervade any analysis of what cus toms, defined in what manner, are sufficiently “ ‘rooted’ ”; it countenances the most revolting injustices in the name of continuity,20 for we must never forget that not only slavery but also the subjugation of women and other rank forms of discrimination are part of our history; and it effaces |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | of discrimination are part of our history; and it effaces this Court’s distinctive role in saying what the law is, leaving the development and safekeeping of liberty to majoritarian political processes. It is judicial abdication in —————— 19 I do not mean to denigrate this function, or to imply that only “new rights”—whatever one takes that term to mean—ought to “get in” the substantive due process door. Ante, at 5 (SCALIA, J., concurring). 20 See (Blackmun, J., dissenting) )). 20 MCDONALD v. CHICAGO STEVENS, J., dissenting the guise of judicial modesty. No, the liberty safeguarded by the Fourteenth Amend ment is not merely preservative in nature but rather is a “dynamic concept.” The Bill of Rights: A Century of Progress, Its dyna mism provides a central means through which the Fram ers enabled the Constitution to “endure for ages to come,” a cen tral example of how they “wisely spoke in general lan guage and left to succeeding generations the task of apply ing that language to the unceasingly changing environment in which they would live,” Rehnquist, The Notion of a Living Constitution, “The task of giving concrete meaning to the term ‘liberty,’ ” I have elsewhere explained at some length, “was a part of the work assigned to future generations.” Ste vens, The Third Branch of Liberty, 41 U. Miami L. Rev. 277, 29121 The judge who would outsource the interpretation of “liberty” to historical sentiment has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality.22 —————— 21 JUSTICE KENNEDY has made the point movingly: “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the compo nents of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Law, 539 U.S., at 578–579. 22 Contrary to JUSTICE SCALIA’s suggestion, I emphatically do not believe that “only we judges” can interpret the Fourteenth Amendment, ante, at 4, or any other constitutional provision. All Americans can; all Americans should. I emphatically do believe that we judges must exercise—indeed, cannot help but exercise—our own reasoned judg ment in so doing. JUSTICE SCALIA and I are on common ground in maintaining that courts should be “guided by what |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | ground in maintaining that courts should be “guided by what the American Cite as: 561 U. S. (2010) 21 STEVENS, J., dissenting III At this point a difficult question arises. In considering such a majestic term as “liberty” and applying it to present circumstances, how are we to do justice to its urgent call and its open texture—and to the grant of interpretive discretion the latter embodies—without injecting excessive subjectivity or unduly restricting the States’ “broad lati tude in experimenting with possible solutions to problems of vital local concern,” ? One part of the answer, already discussed, is that we must ground the analysis in historical experience and reasoned judgment, and never on “merely personal and private notions.” 342 U.S. 1, (12). Our precedents place a number of additional constraints on the decisional process. Although “guide posts for responsible decisionmaking in this unchartered area are scarce and open-ended,” (2), significant guideposts do exist.23 —————— people throughout our history have thought.” Where we part ways is in his view that courts should be guided only by historical considerations. There is, moreover, a tension between JUSTICE SCALIA’s concern that “courts have the last word” on constitutional questions, ante, at 3, n. 2, on the one hand, and his touting of the Constitution’s Article V amend ment process, ante, at 3, on the other. The American people can of course reverse this Court’s rulings through that same process. 23 In assessing concerns about the “open-ended[ness]” of this area of law, 503 U.S., at one does well to keep in view the malle ability not only of the Court’s “deeply rooted”/fundamentality standard but also of substantive due process’ constitutional cousin, “equal protection” analysis. Substantive due process is sometimes accused of entailing an insufficiently “restrained methodology.” 521 U.S., at 721. Yet “the word ‘liberty’ in the Due Process Clause seems to provide at least as much meaningful guidance as does the word ‘equal’ in the Equal Protection Clause.” Post, The Supreme Court 2002 Term—Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, And “[i]f the objection 22 MCDONALD v. CHICAGO STEVENS, J., dissenting The most basic is that we have eschewed attempts to provide any all-purpose, top-down, totalizing theory of “liberty.” That project is bound to end in failure or worse. The Framers did not express a clear understand ing of the term to guide us, and the now-repudiated line of cases attests to the dangers of judicial overconfidence in using substantive due process to ad vance a broad theory of the right or the good. See, e.g., In its most durable precedents, the Court |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | good. See, e.g., In its most durable precedents, the Court “has not attempted to define with exactness the liberty guaranteed” by the Four teenth Amendment. 2 U.S., at 399; see also, e.g., Bolling, 347 U. S, at 499. By its very nature, the meaning of liberty cannot be “reduced to any formula; its content cannot be determined by refe to any code.” Yet while “the ‘liberty’ specially protected by the Four teenth Amendment” is “perhaps not capable of being fully clarified,” it is capable of being refined and delimited. We have insisted that only certain types of especially significant personal interests may qualify for especially heightened protection. Ever since “the deviant economic due process cases [were] repudiated,” (Souter, J., concurring in judg —————— is that the text of the [Due Process] Clause warrants providing only protections of process rather than protections of substance,” “it is striking that even those Justices who are most theoretically opposed to substantive due process, like Scalia and Rehnquist, are also nonethe less enthusiastic about applying the equal protection component of the Due Process Clause of the Fifth Amendment to the federal govern ment.” (citing Adarand Constructors, 213–231 (19)). That one eschews a comprehensive theory of liberty does not, pace JUSTICE SCALIA, mean that one lacks “a coherent theory of the Due Process Clause,” ante, at 5. It means that one lacks the hubris to adopt a rigid, context-independent definition of a constitutional guarantee that was deliberately framed in open-ended terms. Cite as: 561 U. S. (2010) 23 STEVENS, J., dissenting ment), our doctrine has steered away from “laws that touch economic problems, business affairs, or social condi tions,” 1 U.S., at 482, and has instead cen tered on “matters relating to marriage, procreation, con traception, family relationships, and child rearing and education,” 4 U.S. 693, These categories are not exclusive. Government action that shocks the conscience, pointlessly infringes settled expectations, trespasses into sensitive private realms or life choices without adequate justification, perpetrates gross injustice, or simply lacks a rational basis will always be vulnerable to judicial invalidation. Nor does the fact that an asserted right falls within one of these categories end the inquiry. More fundamental rights may receive more robust judicial protection, but the strength of the individual’s liberty interests and the State’s regulatory interests must always be assessed and compared. No right is absolute. Rather than seek a categorical understanding of the liberty clause, our precedents have thus elucidated a conceptual core. The clause safeguards, most basically, “the ability independently to define one’s identity,” Roberts v. United States Jaycees, “the individual’s right to |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | identity,” Roberts v. United States Jaycees, “the individual’s right to make certain unusually important decisions that will affect his own, or his family’s, destiny,” and the right to be respected as a human being. Self-determination, bodily integrity, freedom of conscience, intimate relationships, political equality, dignity and respect—these are the central values we have found implicit in the concept of ordered liberty. Another key constraint on substantive due process analysis is respect for the democratic process. If a particu lar liberty interest is already being given careful consid eration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate. When the Court declined to establish a general right to MCDONALD v. CHICAGO STEVENS, J., dissenting physician-assisted suicide, for example, it did so in part because “the States [were] currently engaged in serious, thoughtful examinations of physician-assisted suicide and other similar issues,” rendering judicial intervention both less necessary and potentially more disruptive. Glucks 735. Conversely, we have long appreciated that more “searching” judicial review may be justified when the rights of “discrete and insular minori ties”—groups that may face systematic barriers in the political system—are at stake. United (19). Courts have a “comparative advantage” over the elected branches on a limited, but significant, range of legal matters. Post, at 8. Recognizing a new liberty right is a momentous step. It takes that right, to a considerable extent, “outside the arena of public debate and legislative action.” 521 U.S., at Sometimes that momentous step must be taken; some fundamental aspects of personhood, dig nity, and the like do not vary from State to State, and demand a baseline level of protection. But sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society provides an important tool for guiding judicial discretion. This sensitivity is an aspect of a deeper principle: the need to approach our work with humility and caution. Because the relevant constitutional language is so “spa cious,” I have emphasized that “[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” 503 U.S., at Many of my colleagues and predecessors have stressed the same point, some with great eloquence. See, e.g., Casey, 505 U.S., at 849; 502– 503 ; –5 ; Adamson v. California, 3 U. S. Cite as: 561 U. S. (2010) STEVENS, J., dissenting 46, 68 Historical study may discipline as well as enrich the analysis. But the inescapable reality is that no serious theory of Section 1 of the Fourteenth Amendment yields clear answers |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | of Section 1 of the Fourteenth Amendment yields clear answers in every case, and “[n]o formula could serve as a substitute, in this area, for judgment and restraint.” 367 U.S., at 542 Several rules of the judicial process help enforce such restraint. In the substantive due process field as in oth ers, the Court has applied both the doctrine of stare de cisis—adhering to precedents, respecting reliance inter ests, prizing stability and order in the law—and the common-law method—taking cases and controversies as they present themselves, proceeding slowly and incremen tally, building on what came before. This restrained methodology was evident even in the heyday of “incorpora tion” during the 1960’s. Although it would have been much easier for the Court simply to declare certain Amendments in the Bill of Rights applicable to the States in toto, the Court took care to parse each Amendment into its component guarantees, evaluating them one by one. This piecemeal approach allowed the Court to scrutinize more closely the right at issue in any given dispute, reduc ing both the risk and the cost of error. Relatedly, rather than evaluate liberty claims on an abstract plane, the Court has “required in substantive due-process cases a ‘careful description’ of the asserted fundamental liberty interest.” 521 U.S., at 721 ( (3); 503 U.S., at ; 497 U.S. 1, (0)). And just as we have required such careful description from the litigants, we have required of ourselves that we “focus on the allega tions in the complaint to determine how petitioner de scribes the constitutional right at stake.” 503 U.S., at ; see also Judicial Restraint, 22 San MCDONALD v. CHICAGO STEVENS, J., dissenting Diego L. Rev. 4, 446–448 (1985). This does not mean that we must define the asserted right at the most specific level, thereby sapping it of a universal valence and a moral force it might otherwise have. It means, simply, that we must pay close attention to the precise liberty interest the litigants have asked us to vindicate. Our holdings should be similarly tailored. Even if the most expansive formulation of a claim does not qualify for substantive due process recognition, particular compo nents of the claim might. Just because there may not be a categorical right to physician-assisted suicide, for exam ple, does not “ ‘foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more particular ized challenge.’ ” n. ( (STEVENS, J., concurring in judg ments)); see also (7) (leaving open “ ‘the possibility that some applica |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | also (7) (leaving open “ ‘the possibility that some applica tions of the [New York prohibition on assisted suicide] may impose an intolerable intrusion on the patient’s free dom’ ”). Even if a State’s interest in regulating a certain matter must be permitted, in the general course, to trump the individual’s countervailing liberty interest, there may —————— The notion that we should define liberty claims at the most specific level available is one of JUSTICE SCALIA’s signal contributions to the theory of substantive due process. See, e.g., Michael ; ante, at 7 By so narrowing the asserted right, this ap proach “loads the dice” against its recognition, Roosevelt, Forget the Fundamentals: Fixing Substantive Due Process, 8 U. Pa. J. Const. L. 983, 1002, n. 73 : When one defines the liberty interest at issue in Law as the freedom to perform specific sex acts, ante, at 2, the interest starts to look less compelling. The Court today does not follow JUSTICE SCALIA’s “particularizing” method, Katzenbach v. Morgan, 4 U.S. 641, 649 (1966), as it relies on general historical refes to keeping and bearing arms, without any close study of the States’ practice of regulating especially dangerous weapons. Cite as: 561 U. S. (2010) 27 STEVENS, J., dissenting still be situations in which the latter “is entitled to consti tutional protection.” (STEVENS, J., concurring in judgments). As this discussion reflects, to acknowledge that the task of construing the liberty clause requires judgment is not to say that it is a license for unbridled judicial lawmaking. To the contrary, only an honest reckoning with our discre tion allows for honest argumentation and meaningful accountability. IV The question in this case, then, is not whether the Sec ond Amendment right to keep and bear arms (whatever that right’s precise contours) applies to the States because the Amendment has been incorporated into the Four teenth Amendment. It has not been. The question, rather, is whether the particular right asserted by peti tioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom. And to answer that question, we need to determine, first, the nature of the right that has been asserted and, second, whether that right is an aspect of Fourteenth Amendment “liberty.” Even accepting the Court’s holding in Heller, it remains entirely possible that the right to keep and bear arms identified in that opinion is not judicially enforceable against the States, or that only part of the right is so enforceable. It is likewise possible for the Court to find —————— In District of Columbia v. Heller, |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | Court to find —————— In District of Columbia v. Heller, 554 U. S. (slip op., at 22), the Court concluded, over my dissent, that the Second Amendment confers “an individual right to keep and bear arms” disconnected from militia service. If that conclusion were wrong, then petitioners’ “incor poration” claim clearly would fail, as they would hold no right against the Federal Government to be free from regulations such as the ones they challenge. Cf. post, at 8. I do not understand petitioners or any of their amici to dispute this point. Yet even if Heller had never been decided—indeed, even if the Second Amendment did not exist—we would still have an obligation to address petitioners’ Fourteenth 28 MCDONALD v. CHICAGO STEVENS, J., dissenting in this case that some part of the Heller right applies to the States, and then to find in later cases that other parts of the right also apply, or apply on different terms. As noted at the outset, the liberty interest petitioners have asserted is the “right to possess a functional, per sonal firearm, including a handgun, within the home.” Complaint ¶34, App. 23. The city of Chicago allows resi dents to keep functional firearms, so long as they are registered, but it generally prohibits the possession of handguns, sawed-off shotguns, machine guns, and short barreled rifles. See Chicago, Ill., Municipal Code 050 (2009).27 Petitioners’ complaint centered on their desire to keep a handgun at their domicile—it refes the “home” in nearly every paragraph, see Complaint ¶¶3– 4, 11–30, 34, 42, 44, 46, App. 17, 19–—as did their supporting declarations, see, e.g., App. 34, 36, 40, 43, 49–52, 54–56. Petitioners now frame the question that confronts us as “[w]hether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.” Brief for Petitioners, p. i. But it is our duty “to focus on the allegations in the complaint to determine how petitioner describes the constitutional right at stake,” 503 U.S., at and the gravamen of this complaint is plainly an appeal to keep a handgun or other firearm of one’s choosing in the home. Petitioners’ framing of their complaint tracks the Court’s ruling in Heller. The majority opinion contained some dicta suggesting the possibility of a more expansive —————— Amendment claim. 27 The village of Oak Park imposes more stringent restrictions that may raise additional complications. See ante, at 2 (majority opinion) ( Oak Park, Ill., Municipal Code (2007), 27–1–1 (2009)). The Court, however, declined to grant certiorari on the |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | (2009)). The Court, however, declined to grant certiorari on the Na tional Rifle Association’s challenge to the Oak Park restrictions. Chicago is the only defendant in this case. Cite as: 561 U. S. (2010) 29 STEVENS, J., dissenting arms-bearing right, one that would travel with the indi vidual to an extent into public places, as “in case of con frontation.” 554 U. S., at (slip op., at 19). But the Heller plaintiff sought only dispensation to keep an oper able firearm in his home for lawful self-defense, see at (slip op., at 2, and n. 2), and the Court’s opinion was bookended by reminders that its holding was limited to that one issue, at (slip op., at 1, 64); accord, ante, at 44 The distinction between the liberty right these petitioners have asserted and the Second Amendment right identified in Heller is therefore evanescent. Both are rooted to the home. Moreover, even if both rights have the logical potential to extend further, upon “future evaluation,” Heller, 554 U. S., at (slip op., at ), it is incumbent upon us, as federal judges contem plating a novel rule that would bind all 50 States, to pro ceed cautiously and to decide only what must be decided. Understood as a plea to keep their preferred type of firearm in the home, petitioners’ argument has real force.28 The decision to keep a loaded handgun in the house is often motivated by the desire to protect life, lib erty, and property. It is comparable, in some ways, to decisions about the education and upbringing of one’s children. For it is the kind of decision that may have profound consequences for every member of the family, and for the world beyond. In considering whether to keep a handgun, heads of households must ask themselves whether the desired safety benefits outweigh the risks of deliberate or accidental misuse that may result in death or serious injury, not only to residents of the home but to —————— 28 To the extent that petitioners contend the city of Chicago’s registra tion requirements for firearm possessors also, and separately, violate the Constitution, that claim borders on the frivolous. Petitioners make no effort to demonstrate that the requirements are unreasonable or that they impose a severe burden on the underlying right they have asserted. 30 MCDONALD v. CHICAGO STEVENS, J., dissenting others as well. Millions of Americans have answered this question in the affirmative, not infrequently because they believe they have an inalienable right to do so—because they consider it an aspect of “the supreme human dignity of being master |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | an aspect of “the supreme human dignity of being master of one’s fate rather than a ward of the State,” Many such decisions have been based, in part, on family traditions and deeply held beliefs that are an aspect of individual autonomy the government may not control.29 Bolstering petitioners’ claim, our law has long recog nized that the home provides a kind of special sanctuary in modern life. See, e.g., U. S. Const., Amdts. 3, 4; Law 567; Payton v. New York, 4 U.S. 573, 585–590 (1980); Stanley v. Georgia, 394 U.S. 557, 5–568 (1969); 1 U.S., at 484–485. Consequently, we have long accorded special defe to the privacy of the home, whether a humble cottage or a magnificent manse. This veneration of the domestic hark ens back to the common law. William Blackstone recog nized a “right of habitation,” 4 Commentaries *223, and opined that “every man’s house is looked upon by the law to be his castle of defence and asylum,” 3 Heller carried forward this legacy, observing that “the need for defense of self, family, and property is most acute” in one’s abode, and celebrating “the right of law abiding, responsible citizens to use arms in defense of hearth and home.” 554 U. S., at (slip op., at 56, ). While the individual’s interest in firearm possession is thus heightened in the home, the State’s corresponding interest in regulation is somewhat weaker. The State —————— 29 Members of my generation, at least, will recall the many passionate statements of this view made by the distinguished actor, Charlton Heston. Cite as: 561 U. S. (2010) 31 STEVENS, J., dissenting generally has a lesser basis for regulating private as com pared to public acts, and firearms kept inside the home generally pose a lesser threat to public welfare as com pared to firearms taken outside. The historical case for regulation is likewise stronger outside the home, as many States have for many years imposed stricter, and less controversial, restrictions on the carriage of arms than on their domestic possession. See, e.g., at (slip op., at 54) (noting that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amend ment or state analogues”); 478–479 (1871) (observing that “almost, if not every one of the States of this Union have [a prohibition on the carry ing of deadly weapons] upon their statute books,” and lambasting claims of a right to carry such weapons as “little short of ridiculous”); Miller, Guns as Smut: Defend ing the Home-Bound Second Amendment, |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | Miller, Guns as Smut: Defend ing the Home-Bound Second Amendment, 109 Colum. L. Rev. 1278, 11–6 (2009). It is significant, as well, that a rule limiting the federal constitutional right to keep and bear arms to the home would be less intrusive on state prerogatives and easier to administer. Having unleashed in Heller a tsunami of legal uncertainty, and thus litigation,30 and now on the cusp of imposing a national rule on the States in this area for the first time in United States history, the Court could at least moderate the confusion, upheaval, and burden on the States by adopting a rule that is clearly and tightly —————— 30 See Municipal Respondents’ Brief 20, n. 11 (stating that at least 156 Second Amendment challenges were brought in time between Heller’s issuance and brief’s filing); Brady Center Brief 3 (stating that over 190 Second Amendment challenges were brought in first 18 months since Heller); Brief for Villages of Winnetka and Skokie, Illi nois, et al. as Amici Curiae 15 (stating that, in wake of Heller, munici palities have “repealed longstanding handgun laws to avoid costly litigation”). MCDONALD v. CHICAGO STEVENS, J., dissenting bounded in scope. In their briefs to this Court, several amici have sought to bolster petitioners’ claim still further by invoking a right to individual self-defense.31 As petitioners note, the Heller majority discussed this subject extensively and remarked that “[t]he inherent right of self-defense has been central to the Second Amendment right.” 554 U. S., at (slip op., at 56). And it is true that if a State were to try to deprive its residents of any reasonable means of defending themselves from imminent physical threats, or to deny persons any ability to assert self-defense in re sponse to criminal prosecution, that might pose a signifi cant constitutional problem. The argument that there is a substantive due process right to be spared such untenable dilemmas is a serious one. —————— 31 See, e.g., Brief for Professors of Philosophy, Criminology, Law, and Other Fields as Amici Curiae; Brief for International Law Enforcement Educators and Trainers Association et al. as Amici Curiae 29–; Brief for 34 California District Attorneys et al. as Amici Curiae 12–31. The argument that this Court should establish any such right, however, faces steep hurdles. All 50 States already recognize self defense as a defense to criminal prosecution, see 2 P. Robinson, Crimi nal Law Defenses p. 96 (1984 and Supp. 2009), so this is hardly an interest to which the democratic process has been insensitive. And the States have always diverged on how exactly to |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | And the States have always diverged on how exactly to implement this interest, so there is wide variety across the Nation in the types and amounts of force that may be used, the necessity of retreat, the rights of aggressors, the availability of the “castle doctrine,” and so forth. See Brief for Oak Park Citizens Committee for Handgun Control as Amicus Curiae 9–21; Brief for American Cities et al. as Amici Curiae 17–19; 2 W. LaFave, Substantive Criminal Law pp. 142–160 Such variation is presumed to be a healthy part of our federalist system, as the States and localities select different rules in light of different priorities, customs, and conditions. As a historical and theoretical matter, moreover, the legal status of self-defense is far more complicated than it might first appear. We have generally understood Fourteenth Amendment “liberty” as some thing one holds against direct state interfe, whereas a personal right of self-defense runs primarily against other individuals; absent Cite as: 561 U. S. (2010) 33 STEVENS, J., dissenting But that is not the case before us. Petitioners have not asked that we establish a constitutional right to individual self-defense; neither their pleadings in the District Court nor their filings in this Court make any such request. Nor do petitioners contend that the city of Chicago—which, recall, allows its residents to keep most rifles and shot guns, and to keep them loaded—has unduly burdened any such right. What petitioners have asked is that we “incor porate” the Second Amendment and thereby establish a constitutional entitlement, enforceable against the States, to keep a handgun in the home. Of course, owning a handgun may be useful for practic ing self-defense. But the right to take a certain type of action is analytically distinct from the right to acquire and utilize specific instrumentalities in furtherance of that action. And while some might favor handguns, it is not —————— government tyranny, it is only when the state has failed to interfere with (violent) private conduct that self-help becomes potentially neces sary. Moreover, it was a basic tenet of founding-era political philosophy that, in entering civil society and gaining “the advantages of mutual commerce” and the protections of the rule of law, one had to relinquish, to a significant degree, “that wild and savage liberty” one possessed in the state of nature. 1 W. Blackstone, Commentaries *; see also, e.g., J. Locke, Second Treatise of Civil Government pp. –64 (in state of nature man has power “to do whatever he thinks fit for the preservation of himself and others,” but this “he gives up when |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | of himself and others,” but this “he gives up when he joins in a particular political society”); (“It is a trite maxim, that man gives up a part of his natural liberty when he enters into civil society, as the price of the blessings of that state: and it may be said, with truth, that this liberty is well exchanged for the advantages which flow from law and justice”). Some strains of founding-era thought took a very narrow view of the right to armed self-defense. See, e.g., Brief of Historians on Early American Legal, Constitutional, and Pennsylvania History as Amici Curiae 6–13 (discussing Whig and Quaker theories). Just because there may be a natural or common-law right to some measure of self defense, it hardly follows that States may not place substantial restric tions on its exercise or that this Court should recognize a constitutional right to the same. 34 MCDONALD v. CHICAGO STEVENS, J., dissenting clear that they are a superior weapon for lawful self defense, and nothing in petitioners’ argument turns on that being the case. The notion that a right of self-defense implies an auxiliary right to own a certain type of firearm presupposes not only controversial judgments about the strength and scope of the (posited) self-defense right, but also controversial assumptions about the likely effects of making that type of firearm more broadly available. It is a very long way from the proposition that the Four teenth Amendment protects a basic individual right of self-defense to the conclusion that a city may not ban handguns.33 In short, while the utility of firearms, and handguns in particular, to the defense of hearth and home is certainly relevant to an assessment of petitioners’ asserted right, there is no freestanding self-defense claim in this case. The question we must decide is whether the interest in keeping in the home a firearm of one’s choosing—a hand gun, for petitioners—is one that is “comprised within the term liberty” in the Fourteenth Amendment. Whitney, U.S., at (Brandeis, J., concurring). —————— 33 The Second Amendment right identified in Heller is likewise clearly distinct from a right to protect oneself. In my view, the Court badly misconstrued the Second Amendment in linking it to the value of personal self-defense above and beyond the functioning of the state militias; as enacted, the Second Amendment was concerned with tyrants and invaders, and paradigmatically with the federal military, not with criminals and intruders. But even still, the Court made clear that self-defense plays a limited role in determining the scope and substance of the Amendment’s guarantee. The |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | determining the scope and substance of the Amendment’s guarantee. The Court struck down the District of Columbia’s handgun ban not because of the utility of hand guns for lawful self-defense, but rather because of their popularity for that purpose. See 554 U. S., at (slip op., at 57–58). And the Court’s common-use gloss on the Second Amendment right, see at (slip op., at 55), as well as its discussion of permissible limitations on the right, at (slip op., at 54–55), had little to do with self-defense. Cite as: 561 U. S. (2010) 35 STEVENS, J., dissenting V While I agree with the Court that our substantive due process cases offer a principled basis for holding that petitioners have a constitutional right to possess a usable fiream in the home, I am ultimately persuaded that a better reading of our case law supports the city of Chicago. I would not foreclose the possibility that a particular plaintiff—say, an elderly widow who lives in a dangerous neighborhood and does not have the strength to operate a long gun—may have a cognizable liberty interest in pos sessing a handgun. But I cannot accept petitioners’ broader submission. A number of factors, taken together, lead me to this conclusion. First, firearms have a fundamentally ambivalent rela tionship to liberty. Just as they can help homeowners defend their families and property from intruders, they can help thugs and insurrectionists murder innocent victims. The threat that firearms will be misused is far from hypothetical, for gun crime has devastated many of our communities. Amici calculate that approximately one million Americans have been wounded or killed by gunfire in the last decade.34 Urban areas such as Chicago suffer disproportionately from this epidemic of violence. Hand guns contribute disproportionately to it. Just as some homeowners may prefer handguns because of their small size, light weight, and ease of operation, some criminals will value them for the same reasons. See Heller, 554 U. S., at (BREYER, J., dissenting) (slip op., at –33). In recent years, handguns were reportedly used in more than four-fifths of firearm murders and more than half of —————— 34 Brady Center Brief 11 (extrapolating from Government statistics); see also Brief for American Public Health Association et al. as Amici Curiae 6–7 (reporting estimated social cost of firearm-related violence of $100 billion per year). 36 MCDONALD v. CHICAGO STEVENS, J., dissenting all murders nationwide.35 Hence, in evaluating an asserted right to be free from particular gun-control regulations, liberty is on both sides of the equation. Guns may be useful for self-defense, as well as for hunting and |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | be useful for self-defense, as well as for hunting and sport, but they also have a unique potential to facilitate death and destruction and thereby to destabilize ordered liberty. Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence. And while granting you the right to own a handgun might make you safer on any given day—assuming the handgun’s marginal contribution to self-defense outweighs its marginal contri bution to the risk of accident, suicide, and criminal mis chief—it may make you and the community you live in less safe overall, owing to the increased number of hand guns in circulation. It is at least reasonable for a democ ratically elected legislature to take such concerns into account in considering what sorts of regulations would best serve the public welfare. The practical impact of various gun-control measures may be highly controversial, but this basic insight should not be. The idea that deadly weapons pose a distinctive threat to the social order—and that reasonable restric tions on their usage therefore impose an acceptable bur den on one’s personal liberty—is as old as the Republic. As THE CHIEF JUSTICE observed just the other day, it is a foundational premise of modern government that the State holds a monopoly on legitimate violence: “A basic step in organizing a civilized society is to take [the] sword out of private hands and turn it over to an organized government, acting on behalf of all the people.” Robertson —————— 35 Bogus, Gun Control and America’s Cities: Public Policy and Poli tics, 1 Albany Govt. L. Rev. 440, 447 (drawing on FBI data); see also Heller, 554 U. S., at (slip op., at 18–19) (BREYER, J., dissenting) (providing additional statistics on handgun violence); Municipal Re spondents’ Brief 13–14 (same). Cite as: 561 U. S. (2010) STEVENS, J., dissenting v. United States ex rel. Watson, ante, at (slip op., at 11) (dissenting opinion). The same holds true for the hand gun. The power a man has in the state of nature “of doing whatsoever he thought fit for the preservation of himself and the rest of mankind, he gives up,” to a significant extent, “to be regulated by laws made by the society.” J. Locke, Second Treatise of Civil Government p. 64 Limiting the federal constitutional right to keep and bear arms to the home complicates the analysis but does not dislodge this conclusion. Even though the Court has long afforded special solicitude for the privacy of the home, we have never understood that principle to “infring[e] upon” |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | home, we have never understood that principle to “infring[e] upon” the authority of the States to proscribe certain inherently dangerous items, for “[i]n such cases, compel ling reasons may exist for overriding the right of the indi vidual to possess those materials.” Stanley, 394 U.S., at 568, n. 11. And, of course, guns that start out in the home may not stay in the home. Even if the government has a weaker basis for restricting domestic possession of fire arms as compared to public carriage—and even if a blan ket, statewide prohibition on domestic possession might therefore be unconstitutional—the line between the two is a porous one. A state or local legislature may determine that a prophylactic ban on an especially portable weapon is necessary to police that line. Second, the right to possess a firearm of one’s choosing is different in kind from the liberty interests we have recognized under the Due Process Clause. Despite the plethora of substantive due process cases that have been decided in the post- century, I have found none that holds, states, or even suggests that the term “liberty” encompasses either the common-law right of self-defense or a right to keep and bear arms. I do not doubt for a moment that many Americans feel deeply passionate about firearms, and see them as critical to their way of life MCDONALD v. CHICAGO STEVENS, J., dissenting as well as to their security. Nevertheless, it does not appear to be the case that the ability to own a handgun, or any particular type of firearm, is critical to leading a life of autonomy, dignity, or political equality: The marketplace offers many tools for self-defense, even if they are imper fect substitutes, and neither petitioners nor their amici make such a contention. Petitioners’ claim is not the kind of substantive interest, accordingly, on which a uniform, judicially enforced national standard is presumptively appropriate.36 Indeed, in some respects the substantive right at issue may be better viewed as a property right. Petitioners wish to acquire certain types of firearms, or to keep certain firearms they have previously acquired. Interests in the possession of chattels have traditionally been viewed as property interests subject to definition and regulation by the States. Cf. Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 560 U. S. (2010) (slip op., at 1) (“Gener ally speaking, state law defines property interests”). —————— 36 JUSTICE SCALIA worries that there is no “objective” way to decide what is essential to a “liberty-filled” existence: Better, then, to ignore such messy considerations as how an interest |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | then, to ignore such messy considerations as how an interest actually affects people’s lives. Ante, at 10. Both the constitutional text and our cases use the term “liberty,” however, and liberty is not a purely objective concept. Substantive due process analysis does not require any “political” judgment, It does require some amount of practical and norma tive judgment. The only way to assess what is essential to fulfilling the Constitution’s guarantee of “liberty,” in the present day, is to provide reasons that apply to the present day. I have provided many; JUSTICE SCALIA and the Court have provided virtually none. JUSTICE SCALIA also misstates my argument when he refers to “the right to keep and bear arms,” without qualification. Ante, at 9. That is what the Second Amendment protects against Federal Government infringement. I have taken pains to show why the Fourteenth Amend ment liberty interest asserted by petitioners—the interest in keeping a firearm of one’s choosing in the home—is not necessarily coextensive with the Second Amendment right. Cite as: 561 U. S. (2010) 39 STEVENS, J., dissenting Under that tradition, Chicago’s ordinance is unexcep tional. The liberty interest asserted by petitioners is also dis similar from those we have recognized in its capacity to undermine the security of others. To be sure, some of the Bill of Rights’ procedural guarantees may place “restric tions on law enforcement” that have “controversial public safety implications.” Ante, at 36 ; see also ante, at 9 But those implica tions are generally quite attenuated. A defendant’s invo cation of his right to remain silent, to confront a witness, or to exclude certain evidence cannot directly cause any threat. The defendant’s liberty interest is constrained by (and is itself a constraint on) the adjudicatory process. The link between handgun ownership and public safety is much tighter. The handgun is itself a tool for crime; the handgun’s bullets are the violence. Similarly, it is undeniable that some may take profound offense at a remark made by the soapbox speaker, the practices of another religion, or a gay couple’s choice to have intimate relations. But that offense is moral, psycho logical, or theological in nature; the actions taken by the —————— It has not escaped my attention that the Due Process Clause refers to “property” as well as “liberty.” Cf. ante, at 2, n. 1, 9–10, n. 6 (opinion of SCALIA, J.). Indeed, in I alone viewed “the critical question” as “whether East Cleveland’s housing ordinance [was] a permissible restriction on appellant’s right to use her own property as she sees fit,” (opinion concurring in judgment). |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | own property as she sees fit,” (opinion concurring in judgment). In that case, unlike in this case, the asserted property right was coextensive with a right to organize one’s family life, and I could find “no precedent” for the ordinance at issue, which “exclude[d] any of an owner’s relatives from the group of persons who may occupy his residence on a permanent basis.” I am open to property claims under the Fourteenth Amendment. This case just involves a weak one. And ever since the Court “incorporated” the more specific property protections of the Takings Clause in 1897, see Chicago, B. & Q. R. Co., 166 U.S. 2, substantive due process doctrine has focused on liberty. 40 MCDONALD v. CHICAGO STEVENS, J., dissenting rights-bearers do not actually threaten the physical safety of any other person. Firearms may be used to kill an other person. If a legislature’s response to dangerous weapons ends up impinging upon the liberty of any indi viduals in pursuit of the greater good, it invariably does so on the basis of more than the majority’s “ ‘own moral code,’ ” Law, ( Casey, 505 U.S., at 850). While specific policies may of course be misguided, gun control is an area in which it “is quite wrong to assume that regulation and liberty occupy mutually exclusive zones—that as one expands, the other must contract.” Third, the experience of other advanced democracies, including those that share our British heritage, undercuts the notion that an expansive right to keep and bear arms is intrinsic to ordered liberty. Many of these countries place restrictions on the possession, use, and carriage of firearms far more onerous than the restrictions found in this Nation. See Municipal Respondents’ Brief 21–23 (discussing laws of England, Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand). That the United States is an international outlier in the per missiveness of its approach to guns does not suggest that our laws are bad laws. It does suggest that this Court may not need to assume responsibility for making our laws still more permissive. Admittedly, these other countries differ from ours in many relevant respects, including their problems with violent crime and the traditional role that firearms have played in their societies. But they are not so different from the United States that we ought to dismiss their experience entirely. Cf. ante, at 34–35 ; ante, at 10–11 The fact that our —————— Cf. Planned Parenthood of Southeastern 913–914 (2) (STEVENS, J., concurring in part and dissenting in part). Cite as: 561 U. S. (2010) 41 STEVENS, J., dissenting oldest |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | as: 561 U. S. (2010) 41 STEVENS, J., dissenting oldest allies have almost uniformly found it appropriate to regulate firearms extensively tends to weaken petitioners’ submission that the right to possess a gun of one’s choos ing is fundamental to a life of liberty. While the “Ameri can perspective” must always be our focus, ante, at 44 it is silly—indeed, arrogant—to think we have nothing to learn about liberty from the billions of people beyond our borders. Fourth, the Second Amendment differs in kind from the Amendments that surround it, with the consequence that its inclusion in the Bill of Rights is not merely unhelpful but positively harmful to petitioners’ claim. Generally, the inclusion of a liberty interest in the Bill of Rights points toward the conclusion that it is of fundamental significance and ought to be enforceable against the States. But the Second Amendment plays a peculiar role within the Bill, as announced by its peculiar opening clause.39 Even accept ing the Heller Court’s view that the Amendment protects an individual right to keep and bear arms disconnected from militia service, it remains undeniable that “the pur pose for which the right was codified” was “to prevent elimination of the militia.” Heller, 554 U. S., at (slip op., at ); see also United 178 (Second Amendment was enacted “[w]ith obvi ous purpose to assure the continuation and render possible the effectiveness of [militia] forces”). It was the States, not private persons, on whose immediate behalf the Second Amendment was adopted. Notwithstanding the Heller Court’s efforts to write the Second Amendment’s preamble out of the Constitution, the Amendment still serves the structural function of protecting the States from en croachment by an overreaching Federal Government. —————— 39 The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” 42 MCDONALD v. CHICAGO STEVENS, J., dissenting The Second Amendment, in other words, “is a federal ism provision,” Elk Grove Unified School (THOMAS, J., concurring in judg ment). It is directed at preserving the autonomy of the sovereign States, and its logic therefore “resists” incorpo ration by a federal court against the States. No one suggests that the Tenth Amendment, which provides that powers not given to the Federal Government remain with “the States,” applies to the States; such a reading would border on incoherent, given that the Tenth Amendment exists (in significant part) to safeguard the vitality of state governance. The Second Amendment is no different.40 The Court is surely correct |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | Second Amendment is no different.40 The Court is surely correct that Americans’ conceptions of the Second Amendment right evolved over time in a more individualistic direction; that Members of the Recon struction Congress were urgently concerned about the safety of the newly freed slaves; and that some Members believed that, following ratification of the Fourteenth Amendment, the Second Amendment would apply to the States. But it is a giant leap from these data points to the conclusion that the Fourteenth Amendment “incorporated” the Second Amendment as a matter of original meaning or postenactment interpretation. Consider, for example, that the text of the Fourteenth Amendment says nothing about the Second Amendment or firearms; that there is substan tial evidence to suggest that, when the Reconstruction Congress enacted measures to ensure newly freed slaves —————— 40 Contrary to JUSTICE SCALIA’s suggestion, this point is perfectly compatible with my opinion for the Court in Elk Grove Unified School Cf. ante, at 11. Like the Court itself, I have never agreed with JUSTICE THOMAS’ view that the Estab lishment Clause is a federalism provision. But I agree with his under lying logic: If a clause in the Bill of Rights exists to safeguard federal ism interests, then it makes little sense to “incorporate” it. JUSTICE SCALIA’s further suggestion that I ought to have revisited the Estab lishment Clause debate in this opinion, ib is simply bizarre. Cite as: 561 U. S. (2010) 43 STEVENS, J., dissenting and Union sympathizers in the South enjoyed the right to possess firearms, it was motivated by antidiscrimination and equality concerns rather than arms-bearing concerns per se;41 that many contemporaneous courts and commen tators did not understand the Fourteenth Amendment to have had an “incorporating” effect; and that the States heavily regulated the right to keep and bear arms both before and after the Amendment’s passage. The Court’s narrative largely elides these facts. The complications they raise show why even the most dogged historical inquiry into the “fundamentality” of the Second Amend ment right (or any other) necessarily entails judicial judgment—and therefore judicial discretion—every step of the way. I accept that the evolution in Americans’ understanding of the Second Amendment may help shed light on the question whether a right to keep and bear arms is com prised within Fourteenth Amendment “liberty.” But the reasons that motivated the Framers to protect the ability of militiamen to keep muskets available for military use when our Nation was in its infancy, or that motivated the Reconstruction Congress to extend full citizenship to the freedmen in the wake of the Civil War, |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | to the freedmen in the wake of the Civil War, have only a limited bearing on the question that confronts the homeowner in a crime-infested metropolis today. The many episodes of —————— 41 See post, at –; Municipal Respondents’ Brief 62–69; Brief for 34 Professional Historians and Legal Historians as Amici Curiae 22– ; Rosenthal, Second Amendment Plumbing After Heller: Of Stan dards of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal Street Gangs, 73–75 (2009). The plurality insists that the Reconstruction-era evidence shows the right to bear arms was regarded as “a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner.” Ante, at 33. That may be so, but it does not resolve the question whether the Fourteenth Amendment’s Due Process Clause was origi nally understood to encompass a right to keep and bear arms, or whether it ought to be so construed now. 44 MCDONALD v. CHICAGO STEVENS, J., dissenting brutal violence against African-Americans that blight our Nation’s history, see ante, at 23–29 (majority opinion); ante, at 41–44, 53–55 (THOMAS, J., concurring in part and concurring in judgment), do not suggest that every Ameri can must be allowed to own whatever type of firearm he or she desires—just that no group of Americans should be systematically and discriminatorily disarmed and left to the mercy of racial terrorists. And the fact that some Americans may have thought or hoped that the Four teenth Amendment would nationalize the Second Amend ment hardly suffices to justify the conclusion that it did. Fifth, although it may be true that Americans’ interest in firearm possession and state-law recognition of that interest are “deeply rooted” in some important senses, ante, at 19 (internal quotation marks omitted), it is equally true that the States have a long and unbroken history of regulating firearms. The idea that States may place substantial restrictions on the right to keep and bear arms short of complete disarmament is, in fact, far more entrenched than the notion that the Federal Constitution protects any such right. Federalism is a far “older and more deeply rooted tradition than is a right to carry,” or to own, “any particular kind of weapon.” (CA7 2009) (Easterbrook, C. J.). From the early days of the Republic, through the Recon struction era, to the present day, States and municipali ties have placed extensive licensing requirements on firearm acquisition, restricted the public carriage of weap ons, and banned altogether the possession of especially dangerous weapons, including handguns. See Heller, 554 U. S., at (BREYER, J., dissenting) (slip op., at |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | 554 U. S., at (BREYER, J., dissenting) (slip op., at 4–7) (reviewing colonial laws); Cornell & DeDino, A Well Regu lated Right: The Early American Origins of Gun Control, 502–516 (reviewing pre- Civil War laws); Brief for 34 Professional Historians and Legal Historians as Amici Curiae 4–22 (reviewing Recon Cite as: 561 U. S. (2010) STEVENS, J., dissenting struction-era laws); Winkler, Scrutinizing the Second Amendment, Mich. L. Rev. 683, 711–712, 716–7 (2007) (reviewing 20th-century laws); see generally post, at 21–31.42 After the 0’s just as before, the state courts almost uniformly upheld these measures: Apart from making clear that all regulations had to be constructed and applied in a nondiscriminatory manner, the Four teenth Amendment hardly made a dent. And let us not forget that this Court did not recognize any non-militia related interests under the Second Amendment until two Terms ago, in Heller. Petitioners do not dispute the city of Chicago’s observation that “[n]o other substantive Bill of Rights protection has been regulated nearly as intru sively” as the right to keep and bear arms. Municipal Respondents’ Brief43 This history of intrusive regulation is not surprising given that the very text of the Second Amendment calls out for regulation,44 and the ability to respond to the social —————— 42 I am unclear what the plurality means when it refers to “the pau city of precedent sustaining bans comparable to those at issue here.” Ante, at 39. There is only one ban at issue here—the city of Chicago’s handgun prohibition—and the municipal respondents cite far more than “one case,” ib from the post-Reconstruction period. See Mu nicipal Respondents’ Brief –30. The evidence adduced by respon dents and their amici easily establishes their contentions that the “consensus in States that recognize a firearms right is that arms possession, even in the home, is subject to interest-balancing,” at ; and that the practice of “[b]anning weapons routinely used for self-defense,” when deemed “necessary for the public welfare,” “has ample historical pedigree,” Petitioners do not even try to challenge these contentions. 43 I agree with JUSTICE SCALIA that a history of regulation hardly proves a right is not “of fundamental character.” Ante, at 12. An unbroken history of extremely intensive, carefully considered regula tion does, however, tend to suggest that it is not. 44 The Heller majority asserted that “the adjective ‘well-regulated’ ” in the Second Amendment’s preamble “implies nothing more than the imposition of proper discipline and training.” 554 U. S., at (slip op., at 23). It is far from clear that this assertion is correct. See, e.g., U. S. 46 MCDONALD |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | this assertion is correct. See, e.g., U. S. 46 MCDONALD v. CHICAGO STEVENS, J., dissenting ills associated with dangerous weapons goes to the very core of the States’ police powers. Our precedent is crystal clear on this latter point. See, e.g., 546 U.S. 3, (“[T]he structure and limitations of federalism allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons” (internal quotation marks omitted)); United States v. Morrison, (“[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindica tion of its victims”); 4 U.S. 2, 7 (“The promotion of safety of persons and property is unquestionably at the core of the State’s police power”); Automobile 351 U.S. 6, (16) (“The dominant interest of the State in preventing violence and property damage cannot be questioned. It is a matter of genuine local con cern”). Compared with today’s ruling, most if not all of this Court’s decisions requiring the States to comply with other provisions in the Bill of Rights did not exact nearly —————— Const., Art. 1, cl. 1; cls. 3, 5, 14; cl. 6; Art. 3, cl. 2; Art. 4, cl. 3; cl. 2 (using “regulate” or “Regulation” in manner suggestive of broad, discretionary governmental authority); Art. 1, cl. 16 (invoking powers of “disciplining” and “training” Militia in manner suggestive of narrower authority); Heller, 554 U. S., at (slip op., at 6–7) (investigating Constitution’s separate refes to “people” as clue to term’s meaning in Second Amendment); cf. Cornell & DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 504 (“The authors of this curious interpre tation of the Second Amendment have constructed a fantasy world where words mean their opposite, and regulation is really anti regulation”). But even if the assertion were correct, the point would remain that the preamble envisions an active state role in overseeing how the right to keep and bear arms is utilized, and in ensuring that it is channeled toward productive ends. Cite as: 561 U. S. (2010) 47 STEVENS, J., dissenting so heavy a toll in terms of state sovereignty. Finally, even apart from the States’ long history of firearms regulation and its location at the core of their police powers, this is a quintessential area in which feder alism ought to be allowed to flourish without this Court’s meddling. Whether or not we can assert a plausible con |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | meddling. Whether or not we can assert a plausible con stitutional basis for intervening, there are powerful rea sons why we should not do so. Across the Nation, States and localities vary signifi cantly in the patterns and problems of gun violence they face, as well as in the traditions and cultures of lawful gun use they claim. Cf. post, at 16–17. The city of Chicago, for example, faces a pressing challenge in combating criminal street gangs. Most rural areas do not. The city of Chicago has a high population density, which increases the poten tial for a gunman to inflict mass terror and casualties. Most rural areas do not. The city of Chicago offers little in the way of hunting opportunities. Residents of rural communities are, one presumes, much more likely to stock the dinner table with game they have personally felled. Given that relevant background conditions diverge so much across jurisdictions, the Court ought to pay particu lar heed to state and local legislatures’ “right to experi ment.” New State 285 U.S., at (Brandeis, J., dissenting). So long as the regulatory measures they have chosen are not “arbitrary, capricious, or unreasonable,” we should be allowing them to “try novel social and economic” policies. It “is more in keeping with our status as a court in a federal system,” under these circumstances, “to avoid imposing a single solution from the top down.” —————— Cf. Heller, 554 U. S., at (slip op., at 19) (BREYER, J., dissenting) (detailing evidence showing that a “disproportionate amount of violent and property crimes occur in urban areas, and urban criminals are more likely than other offenders to use a firearm during the commis sion of a violent crime”). 48 MCDONALD v. CHICAGO STEVENS, J., dissenting It is all the more unwise for this Court to limit experi mentation in an area “where the best solution is far from clear.” United (19) (KENNEDY, J., concurring). Few issues of public policy are subject to such intensive and rapidly developing empirical controversy as gun control. See Heller, 554 U. S., at (slip op., at 20–) (BREYER, J., dissenting). Chicago’s handgun ban, in itself, has divided researchers. Compare Brief for Professors of Criminal Justice as Amici Curiae (arguing that ordinance has been effective at reducing gun violence), with Brief for International Law Enforcement Educators and Trainers Association et al. as Amici Curiae 17– (arguing that ordinance has been a failure).46 Of course, on some matters the Constitution requires that we ignore such pragmatic considerations. But the Constitu tion’s text, history, and structure are not so clear on the |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | text, history, and structure are not so clear on the matter before us—as evidenced by the groundbreaking nature of today’s fractured decision—and this Court lacks both the technical capacity and the localized expertise to assess “the wisdom, need, and propriety” of most gun control measures. 1 U.S., at 482.47 —————— 46 The fact that Chicago’s handgun murder rate may have “actually increased since the ban was enacted,” ante, at 2 (majority opinion), means virtually nothing in itself. Countless factors unrelated to the policy may have contributed to that trend. Without a sophisticated regression analysis, we cannot even begin to speculate as to the efficacy or effects of the handgun ban. Even with such an analysis, we could never be certain as to the determinants of the city’s murder rate. 47 In some sense, it is no doubt true that the “best” solution is elusive for many “serious social problems.” Ante, at 12 Yet few social problems have raised such heated empirical controversy as the problem of gun violence. And few, if any, of the liberty interests we have recognized under the Due Process Clause have raised as many complications for judicial oversight as the interest that is recognized today. See post, at 11–16. I agree with the plurality that for a right to be eligible for substantive due process recognition, there need not be “a ‘popular consensus’ that the right is fundamental.” Ante, at 42. In our remarkably diverse, Cite as: 561 U. S. (2010) 49 STEVENS, J., dissenting Nor will the Court’s intervention bring any clarity to this enormously complex area of law. Quite to the con trary, today’s decision invites an avalanche of litigation that could mire the federal courts in fine-grained determi nations about which state and local regulations comport with the Heller right—the precise contours of which are far from pellucid—under a standard of review we have not even established. See post, at 12–15. The plurality’s “assuranc[e]” that “incorporation does not imperil every law regulating firearms,” ante, at 40, provides only modest comfort. For it is also an admission of just how many different types of regulations are potentially implicated by today’s ruling, and of just how ad hoc the Court’s initial attempt to draw distinctions among them was in Heller. The practical significance of the proposition that “the Second Amendment right is fully applicable to the States,” ante, at 1 (majority opinion), remains to be worked out by this Court over many, many years. Furthermore, and critically, the Court’s imposition of a national standard is still more unwise because the elected branches have shown themselves |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | still more unwise because the elected branches have shown themselves to be perfectly capable of safeguarding the interest in keeping and bearing arms. The strength of a liberty claim must be assessed in con nection with its status in the democratic process. And in this case, no one disputes “that opponents of [gun] control have considerable political power and do not seem to be at a systematic disadvantage in the democratic process,” or that “the widespread commitment to an individual right to own guns operates as a safeguard against excessive or —————— pluralistic society, there will almost never be such uniformity of opin ion. But to the extent that popular consensus is relevant, I do not agree with the Court that the amicus brief filed in this case by numerous state attorneys general constitutes evidence thereof. Ante, at 42–43. It is puzzling that so many state lawmakers have asked us to limit their option to regulate a dangerous item. Cf. post, at 9–10. 50 MCDONALD v. CHICAGO STEVENS, J., dissenting unjustified gun control laws.”48 Sunstein, Second Amendment Minimalism: Heller as 122 Harv. L. Rev. 6, 0 Indeed, there is a good deal of evidence to suggest that, if anything, American lawmakers tend to underregulate guns, relative to the policy views expressed by majorities in opinion polls. See K. Goss, Disarmed: The Missing Movement for Gun Control in America 6 If a particular State or locality has enacted some “improvident” gun-control measures, as petitioners believe Chicago has done, there is no apparent reason to infer that the mistake will not “eventually be rectified by the democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). This is not a case, then, that involves a “special condi tion” that “may call for a correspondingly more searching judicial inquiry.” Carolene n. 4. Neither petitioners nor those most zealously commit ted to their views represent a group or a claim that is liable to receive unfair treatment at the hands of the majority. On the contrary, petitioners’ views are sup ported by powerful participants in the legislative process. Petitioners have given us no reason to believe that the interest in keeping and bearing arms entails any special need for judicial lawmaking, or that federal judges are more qualified to craft appropriate rules than the people’s elected representatives. Having failed to show why their asserted interest is intrinsic to the concept of ordered liberty or vulnerable to maltreatment in the political arena, they have failed to show why “the word liberty in the Fourteenth Amendment” should be “held to prevent the natural outcome of a |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | should be “held to prevent the natural outcome of a dominant opinion” about how to —————— 48 Likewise, no one contends that those interested in personal self defense—every American, presumably—face any particular disadvan tage in the political process. All 50 States recognize self-defense as a defense to criminal prosecution. See n. Cite as: 561 U. S. (2010) 51 STEVENS, J., dissenting deal with the problem of handgun violence in the city of Chicago. (Holmes, J., dissenting). VI The preceding sections have already addressed many of the points made by JUSTICE SCALIA in his concur. But in light of that opinion’s fixation on this one, it is appropriate to say a few words about JUSTICE SCALIA’s broader claim: that his preferred method of substantive due process analysis, a method “that makes the traditions of our people paramount,” ante, at 1, is both more re strained and more facilitative of democracy than the method I have outlined. Colorful as it is, JUSTICE SCALIA’s critique does not have nearly as much force as does his rhetoric. His theory of substantive due process, moreover, comes with its own profound difficulties. Although JUSTICE SCALIA aspires to an “objective,” “neutral” method of substantive due process analysis, ante, at 10, his actual method is nothing of the sort. Un der the “historically focused” approach he advocates, ante, at 13, numerous threshold questions arise before one ever gets to the history. At what level of generality should one frame the liberty interest in question? See n. What does it mean for a right to be “ ‘deeply rooted in this Nation’s history and tradition,’ ” ante, at 3 ( )? By what standard will that proposition be tested? Which types of sources will count, and how will those sources be weighed and aggre gated? There is no objective, neutral answer to these questions. There is not even a theory—at least, JUSTICE SCALIA provides none—of how to go about answering them. Nor is there any escaping it seems. To qualify for substantive due process protection, JUSTICE SCALIA has stated, an asserted liberty right must be not only deeply 52 MCDONALD v. CHICAGO STEVENS, J., dissenting rooted in American tradition, “but it must also be implicit in the concept of ordered liberty.” Law, 539 U.S., at 593, n. 3 (dissenting opinion) (internal quotation marks omitted). Applying the latter, -derived half of that test requires precisely the sort of reasoned judgment—the same multifaceted evaluation of the right’s contours and consequences—that JUSTICE SCALIA mocks in his concur today. So does applying the first half. It is hardly a novel insight that history |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | first half. It is hardly a novel insight that history is not an objective science, and that its use can therefore “point in any direction the judges favor,” ante, at 14 Yet 21 years after the point was brought to his attention by Justice Brennan, JUSTICE SCALIA remains “oblivious to the fact that [the concept of ‘tradition’] can be as malleable and elusive as ‘liberty’ itself.” Michael 491 U.S., at 1 (dissenting opinion). Even when historical analysis is focused on a discrete proposition, such as the original public meaning of the Second Amendment, the evidence often points in different directions. The historian must choose which pieces to credit and which to discount, and then must try to assemble them into a coherent whole. In Heller, JUSTICE SCALIA preferred to rely on sources created much earlier and later in time than the Second Amendment itself, see, e.g., 554 U. S., at (slip op., at 4–5) (consult ing late 19th-century treatises to ascertain how Americans would have read the Amendment’s preamble in 1791); I focused more closely on sources contemporaneous with the Amendment’s drafting and ratification.49 No mechanical —————— 49 See Heller, 554 U. S., at (slip op., at 27) (STEVENS, J., dissent ing) (“Although it gives short shrift to the drafting history of the Second Amendment, the Court dwells at length on four other sources: the 17th century English Bill of Rights; Blackstone’s Commentaries on the Laws of England; postenactment commentary on the Second Amendment; and post-Civil War legislative history”); see also post, at 2–5 (discussing professional historians’ criticisms of Heller). Cite as: 561 U. S. (2010) 53 STEVENS, J., dissenting yardstick can measure which of us was correct, either with respect to the materials we chose to privilege or the in sights we gleaned from them. The malleability and elusiveness of history increase exponentially when we move from a pure question of original meaning, as in Heller, to JUSTICE SCALIA’s theory of substantive due process. At least with the former sort of question, the judge can focus on a single legal provision; the temporal scope of the inquiry is (or should be) rela tively bounded; and there is substantial agreement on what sorts of authorities merit consideration. With JUSTICE SCALIA’s approach to substantive due process, these guideposts all fall away. The judge must canvas the entire landscape of American law as it has evolved through time, and perhaps older laws as well, see, e.g., Law, ), pursuant to a standard (deeply rootedness) that has never been defined. In conducting this rudderless, panoramic tour of American legal history, the judge has |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | rudderless, panoramic tour of American legal history, the judge has more than ample opportunity to “look over the heads of the crowd and pick out [his] friends,” Roper v. Simmons, 543 U.S. 551, 617 (2005) My point is not to criticize judges’ use of history in general or to suggest that it always generates indetermi nate answers; I have already emphasized that historical study can discipline as well as enrich substantive due process analysis. My point is simply that JUSTICE SCALIA’s defense of his method, which holds out objectivity and restraint as its cardinal—and, it seems, only—virtues, is unsatisfying on its own terms. For a limitless number of subjective judgments may be smuggled into his histori cal analysis. Worse, they may be buried in the analysis. At least with my approach, the judge’s cards are laid on the table for all to see, and to critique. The judge must 54 MCDONALD v. CHICAGO STEVENS, J., dissenting exercise judgment, to be sure. When answering a consti tutional question to which the text provides no clear an swer, there is always some amount of discretion; our constitutional system has always depended on judges’ filling in the document’s vast open spaces.50 But there is also transparency. JUSTICE SCALIA’s approach is even less restrained in another sense: It would effect a major break from our case law outside of the “incorporation” area. JUSTICE SCALIA does not seem troubled by the fact that his method is largely inconsistent with the Court’s canonical substantive due process decisions, ranging from and Pierce, in the 0’s, to 1 U.S. 479, in the 1960’s, to Law, in the 2000’s. To the contrary, he seems to embrace this disso nance. My method seeks to synthesize dozens of cases on which the American people have relied for decades. JUSTICE SCALIA’s method seeks to vaporize them. So I am left to wonder, which of us is more faithful to this Nation’s constitutional history? And which of us is more faithful to the values and commitments of the American people, as they stand today? In 1967, when the Court held in Lov ing, 8 U.S. 1, that adults have a liberty-based as well as equality-based right to wed persons of another race, inter racial marriage was hardly “deeply rooted” in American tradition. Racial segregation and subordination were deeply rooted. The Court’s substantive due process hold ing was nonetheless correct—and we should be wary of any interpretive theory that implies, emphatically, that it was not. Which leads me to the final set of points I wish to make: JUSTICE SCALIA’s method invites not only |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | I wish to make: JUSTICE SCALIA’s method invites not only bad history, but also bad constitutional law. As I have already explained, in evaluating a claimed liberty interest (or any constitu —————— 50 Indeed, this is truly one of our most deeply rooted legal traditions. Cite as: 561 U. S. (2010) 55 STEVENS, J., dissenting tional claim for that matter), it makes perfect sense to give history significant weight: JUSTICE SCALIA’s position is closer to my own than he apparently feels comfortable acknowledging. But it makes little sense to give history dispositive weight in every case. And it makes especially little sense to answer questions like whether the right to bear arms is “fundamental” by focusing only on the past, given that both the practical significance and the public understandings of such a right often change as society changes. What if the evidence had shown that, whereas at one time firearm possession contributed substantially to personal liberty and safety, nowadays it contributes noth ing, or even tends to undermine them? Would it still have been reasonable to constitutionalize the right? The concern runs still deeper. Not only can historical views be less than completely clear or informative, but they can also be wrong. Some notions that many Ameri cans deeply believed to be true, at one time, turned out not to be true. Some practices that many Americans believed to be consistent with the Constitution’s guarantees of liberty and equality, at one time, turned out to be incon sistent with them. The fact that we have a written Con stitution does not consign this Nation to a static legal existence. Although we should always “pa[y] a decent regard to the opinions of former times,” it “is not the glory of the people of America” to have “suffered a blind venera tion for antiquity.” The Federalist No. 14, p. 99, 104 (J. Madison). It is not the role of federal judges to be amateur historians. And it is not fidelity to the Constitution to ignore its use of deliberately capacious language, in an effort to transform foundational legal commitments into narrow rules of decision. As for “the democratic process,” ante, at 14, 15, a method that looks exclusively to history can easily do more harm than good. Just consider this case. The net result of JUSTICE SCALIA’s supposedly objective analysis is to vest 56 MCDONALD v. CHICAGO STEVENS, J., dissenting federal judges—ultimately a majority of the judges on this Court—with unprecedented lawmaking powers in an area in which they have no special qualifications, and in which the give-and-take of the political |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | special qualifications, and in which the give-and-take of the political process has functioned effectively for decades. Why this “intrudes much less upon the democratic process,” ante, at 14, than an approach that would defer to the democratic process on the regula tion of firearms is, to say the least, not self-evident. I cannot even tell what, under JUSTICE SCALIA’s view, con stitutes an “intrusion.” It is worth pondering, furthermore, the vision of democ racy that underlies JUSTICE SCALIA’s critique. Because very few of us would welcome a system in which majorities or powerful interest groups always get their way. Under our constitutional scheme, I would have thought that a judicial approach to liberty claims such as the one I have outlined—an approach that investigates both the intrinsic nature of the claimed interest and the practical signifi cance of its judicial enforcement, that is transparent in its reasoning and sincere in its effort to incorporate con straints, that is guided by history but not beholden to it, and that is willing to protect some rights even if they have not already received uniform protection from the elected branches—has the capacity to improve, rather than “[im]peril,” ante, at 15, our democracy. It all depends on judges’ exercising careful, reasoned judgment. As it al ways has, and as it always will. VII The fact that the right to keep and bear arms appears in the Constitution should not obscure the novelty of the Court’s decision to enforce that right against the States. By its terms, the Second Amendment does not apply to the States; read properly, it does not even apply to individuals outside of the militia context. The Second Amendment was adopted to protect the States from federal encroach Cite as: 561 U. S. (2010) 57 STEVENS, J., dissenting ment. And the Fourteenth Amendment has never been understood by the Court to have “incorporated” the entire Bill of Rights. There was nothing foreordained about today’s outcome. Although the Court’s decision in this case might be seen as a mere adjunct to its decision in Heller, the conse quences could prove far more destructive—quite liter ally—to our Nation’s communities and to our constitu tional structure. Thankfully, the Second Amendment right identified in Heller and its newly minted Fourteenth Amendment analogue are limited, at least for now, to the home. But neither the “assurances” provided by the plu rality, ante, at 40, nor the many historical sources cited in its opinion should obscure the reality that today’s ruling marks a dramatic change in our law—or that the Justices who have joined it have brought |
Justice Stevens | 2,010 | 16 | dissenting | McDonald v. Chicago | https://www.courtlistener.com/opinion/149702/mcdonald-v-chicago/ | law—or that the Justices who have joined it have brought to bear an awesome amount of discretion in resolving the legal question pre sented by this case. I would proceed more cautiously. For the reasons set out at length above, I cannot accept either the methodol ogy the Court employs or the conclusions it draws. Al though impressively argued, the majority’s decision to overturn more than a century of Supreme Court precedent and to unsettle a much longer tradition of state practice is not, in my judgment, built “upon respect for the teachings of history, solid recognition of the basic values that under lie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms.” 1 U.S., at 501 (Harlan, J., con curring in judgment). Accordingly, I respectfully dissent. Cite as: 561 U. S. (2010) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 08–1521 OTIS MCDONALD, ET AL., PETITIONERS v. CITY OF CHICAGO, ILLINOIS, ET AL. |
Justice Douglas | 1,973 | 10 | dissenting | Tacon v. Arizona | https://www.courtlistener.com/opinion/108720/tacon-v-arizona/ | Petitioner, while in the Armed Services, was stationed in Arizona and while there was arrested and charged with the unlawful sale of marihuana. That was on February 24, 1969. His counsel asked for a continuance of the trial until April 22, 1969, which was granted. But no trial date was set at that time, one being subsequently set for March 31, 1970. In the meantime, petitioner had been discharged from the Army and left Arizona for New York and gave his attorney his New York address. The attorney sent word by letter on March 3, 1970, that the trial would start March 31 and asked that he return a week early for preparation. Petitioner received that letter March 6 or 7, but had no funds to return. He apparently in good faith tried to raise the money but was *353 not successful. He eventually did succeed and arrived in Arizona April 2. But the trial was over. Petitioner was convicted in absentia and sentenced to not less than five years nor more than five and one-half years. On appeal, the Arizona Supreme Court affirmed. Under Rule 231 of Arizona's Rules of Criminal Procedure, a trial may be conducted in the defendant's absence "if his absence is voluntary." The Arizona Supreme Court held that there had been "a knowing and intelligent waiver of his right to be present at the trial." The federal rule of a knowing and intelligent waiver of his right to confrontation and to be present at the trial of his case, cf. ibid., was the test applied by the Arizona Supreme Court. The Sixth Amendment is applicable to the States by reason of the Fourteenth. ; ; The right "to be confronted with the witnesses against" himthe right of confrontation in the popular sensemeans a "face-to-face" meeting. As stated in 338: "One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial." It is said by the Court that the broad issue of whether a defendant charged with a felony can ever waive his right to be present at trial is not properly before us, since petitioner neglected to plead the issue in this manner before the state courts. The issue which petitioner did raise in the state courts was whether the evidence in the record was sufficient to show that his absence from trial was voluntary, i. e., that he made a knowing and intelligent waiver of his right to be present. The Court disposes of this "related |
Justice Douglas | 1,973 | 10 | dissenting | Tacon v. Arizona | https://www.courtlistener.com/opinion/108720/tacon-v-arizona/ | right to be present. The Court disposes of this "related issue" by holding that it is a factual *354 issue that does not justify the exercise of our jurisdiction. But the question whether a constitutional right has been waived always involves factual matters. "When constitutional rights turn on the resolution of a factual dispute we are duty bound to make an independent examination of the evidence in the record." 4 n. 4 (emphasis added). The question of a knowing and intelligent waiver of this man's federal constitutional right to be present at his trial is far from frivolous. Petitioner was not fleeing the jurisdiction or going into hiding. He knew of the trial date and was trying to raise the necessary funds to travel west. A second letter dated March 18, sent by his attorney, suggested that a guilty plea to a reduced charge might be acceptable. But due to a mail strike petitioner did not receive that letter until April 1, when his trial was over. On March 24 petitioner's counsel sent him a telegram stating that trial would proceed March 31 whether petitioner was present or not. But that telegram was never received even by Western Union in New York. On March 30, petitioner called his lawyer, who told him the court would proceed with the trial even though the accused was absent. Petitioner replied that he would attempt to make it. But, as noted, he did not arrive until April 2. On this record, one cannot say that petitioner had knowingly and intelligently waived his Sixth Amendment right of confrontation. Heretofore, we have never treated the question of waiver cavalierly. We indulge every presumption against the waiver of a constitutional right. We said in a rate case that we "do not presume acquiescence in the loss of fundamental rights." Ohio Bell Tel. I would treat a hapless victim of a criminal marihuana charge equally as I would a corporate victim of an incompetent regulatory commission. * When we decide to dismiss this case, we multiply the burdens of the federal court system. The issue of waiver vel non of the Sixth Amendment right is now ready for decision. When we dismiss, we in effect tell petitioner first to try state habeas corpus and then federal habeas corpus. When indigents had no counsel, these trials were often pregnant with error, and habeas corpus was the normal remedy. But where the issue is exposed on appeal, it should be resolved then and there. When we fail to take that step here, we ask petitioner and his counsel to exhaust |
Justice Douglas | 1,973 | 10 | dissenting | Tacon v. Arizona | https://www.courtlistener.com/opinion/108720/tacon-v-arizona/ | step here, we ask petitioner and his counsel to exhaust themselves during the next five years while they seek a federal determination of their federal right. The law of waiver that governs here was stated by Mr. Justice Black in an earlier case many years ago. He ruled on waiver of counsel; but there is no difference when it comes to waiver of the right of confrontation. "A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." This Court later held that "[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." (emphasis added); see also ; No such showing has been made in the present case. I would reverse the judgment below |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | This case involves an order of the Interstate Commerce Commission, issued under 5 (2) of the Interstate Commerce Act, as amended, 49 U.S. C. 5 (2), authorizing the joint acquisition of a heretofore independent switching railroad at Portland, Oregon, by two of the four line-haul railroads serving that city. Spokane, P. & S. R. Co. and Union Pacific R. Co., 334 I. C. C. 419 (1969). The switching railroad, Peninsula Terminal Co., is of current interest to the carriers because it provides an entrance route to the Rivergate Industrial District, a modern industrial and port complex being developed by the appellant, Port of Portland. The two railroads authorized to acquire Peninsula are the Union Pacific Railway Co. (UP) and the Great Northern Pacific & Burlington Lines, Inc. (Burlington Northern), through its subsidiary, the Spokane, Portland & Seattle Railway Co. (SP&S).[1] The two other line-haul *814 carriers now serving Portlandthe Chicago, Milwaukee, St. Paul & Pacific Railroad Co. (Milwaukee) and the Southern Pacific Transportation Co. (SP) sought to be included as joint purchasers of Peninsula under 5 (2) (b), (c), and (d) of the Act, 49 U.S. C. 5 (2) (b), (c), and (d), and sought trackage rights linking their lines with Peninsula. This appeal arises out of the Commission's denialin disagreement with its hearing examiner's recommendationsof the petitions of Milwaukee and SP. Together with these two railroads, the Port of Portland and the Public Utility Commissioner of Oregon appeal from the decision of the three-judge District Court affirming, without opinion, the Commission's order. The United States joins the appellants in urging that the judgment below be reversed, while the Commission joins Burlington Northern and UP in urging affirmance. Probable jurisdiction was noted. The question whether the Commission applied the correct legal standards is presented against the background of a complex factual situationthough this is not unusual in the case of railway mergers and acquisitions and we find it necessary to go into detail concerning the facts and the proceedings prior to the submission of the case here. I A. The Rivergate Area and Peninsula's Relation to It The developing Rivergate Industrial District occupies nearly 3,000 acres at the tip of the peninsula formed by the confluence of the Columbia and Willamette Rivers. Rivergate's six miles of waterfront will provide docksites for direct deepwater access to the Pacific Ocean. The Port of Portland has expended more than five million dollars of public funds for planning, construction, and development, and it is estimated that ultimate public *815 and private investment in industrial and port facilities at Rivergate will exceed 500 million dollars. |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | and port facilities at Rivergate will exceed 500 million dollars. As conceived by its public developers, the Rivergate complex will be served by a domestic transportation network capable of providing efficient and economical service to and from points throughout the Nation. To achieve this goal, the Port's consultants recommended construction by the Port of an internal rail loop that would connect with existing carriers at the southwestern and eastern corners of Rivergate, thus providing Rivergate industries with direct access to all line-haul carriers serving Portland. At full developmentestimated to be 15 years in the futurerail traffic generated by these industries is expected to reach between 500 and 600 cars per day, with a projected annual volume of five million tons of freight. At present, eight industries[2] occupy about one-tenth of the Rivergate area. Seven of these are located on the west, or Willamette River, side of Rivergate, and are served by tracks owned by the Port of Portland. Outside rail access to this part of Rivergate is provided by tracks extending from UP's Barnes Yard (point 9 on the schematic map appended to this opinion) and connecting with the Port of Portland tracks. Over these external tracks, jointly owned by UP and Burlington Northern, UP provides switching service to the line-haul carriers serving Portland. It is expected that this Barnes Yard route will remain the southwest entrance to Rivergate. *816 The one other Rivergate industrythe poleyard of the Crown Zellerbach Corporation (Point E on the map)is located at the easternmost edge of Rivergate, on the Columbia River. Outside rail access is presently provided by Peninsula, which serves, in addition, 13 industries located just southeast of the Rivergate boundary. Peninsula, organized in 1918 to serve a packinghouse facility long since closed, has a main track extending for only 8,000 feet along the Columbia River. At its easternmost end is the North Portland interchange (point 7 on the map), where Peninsula connects with lines owned by Burlington Northern and UP. Since the lines of these two line-haul carriers do not connect directly with Rivergate in this area, access to the eastern end of the Rivergate District is, at present, solely over Peninsula tracks. Whether Peninsula tracks will remain the sole access to the eastern end of Rivergate is by no means certain. Peninsula suffers from certain physical limitationsits tracks are laid upon sand, its clearances are limited, and the main line is impeded by heavy curvature. Furthermore, the North Portland interchange tracks may have insufficient capacity for the expected Rivergate traffic. Accordingly, an alternate access route to the eastern end of Rivergate |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | an alternate access route to the eastern end of Rivergate is under consideration, that is, a new spur leading directly to Rivergate from the Burlington Northern main north-south tracks.[3] B. The Proposed Purchase of Peninsula All outstanding capital stock of Peninsula is owned by the United Stockyards Corporation. Stockyards R. Co. Control, 254 I. C. C. 207 United is not *817 itself a carrier and has no interest in continuing to operate a railroad independent of its stockyard operation. It has been willing to sell Peninsula at the appraised value of its capital stock, and it has no preference as to the purchaser. On February 28, 1967, United entered into an agreement to sell Peninsula to SP&S and UP.[4] By joint application filed with the Interstate Commerce Commission on July 25, 1967, SP&S and UP sought approval, under 5 (2) of the Interstate Commerce Act,[5] of their contracted purchase of Peninsula *818 from United Stockyards. The application pointed out that the acquisition would enable the applicants to provide rail service to the adjacent Rivergate area over the Peninsula tracks. Peninsula, however, would continue to operate as a separate carrier. No major changes in traffic or revenues were anticipated in the immediate future, though it was anticipated that "within the foreseeable future substantial new traffic and revenues" would be derived from the developing Rivergate area. In response to the above application, Milwaukee and SP filed petitions seeking inclusion in the acquisition of Peninsula as joint and equal owners, pursuant to 5 (2) (b), (c), and (d) of the Act; in addition, they sought the right to use tracks necessary to connect their own lines with Peninsula. The Commission's action on these petitions is the subject of the present appeal. The competing contentions are closely related to the facts of the interconnections between the four line-haul carriers near Rivergate, and to these we now turn. *819 C. Carrier Interconnections and Switching Arrangements (1) The North Portland Interchange At the North Portland interchange (point 7 on the map), where Peninsula connects with Burlington Northern and UP, are four interchange tracks. Two of these are jointly owned by Burlington Northern and UP; the remaining two are owned half by Peninsula, and the other half jointly by Burlington Northern and UP. Only one of these four tracksone of the two jointly owned by Burlington Northern and UPconnects directly to the Burlington Northern double main-line tracks, running to the north across the Columbia River. In addition, the interchange tracks connect to a single UP track, which extends south through a mile-long tunnel to the UP's Albina |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | extends south through a mile-long tunnel to the UP's Albina Yard (point 6 on the map), a distance of 5.2 miles.[6] At the time of the hearing in this case, about 30 cars were handled daily at the North Portland interchange. About 61% of this traffic involved switching between the predecessors of Burlington Northern on the one hand and UP and its subsidiaries on the other. Only the remaining 39% involved switching cars designated to or from industries served by Peninsula.[7] As the only two line-haul carriers connecting *820 directly with Peninsula at North Portland, Burlington Northern and UP provide reciprocal switching to any other line-haul carrier whose cars are designated to or from industries served by Peninsula.[8] (2) The Southern Pacific Connection Although SP is a line-haul carrier serving Portland, its tracks terminate in East Portland (point 5) and at the Hoyt Street Yard on the other side of the Willamette River (point 3). SP cars designated for industries served by Peninsula are generally switched to UP trains at the latter's Albina Yard (point 6) and moved *821 thence to the North Portland interchange, where they are switched by Peninsula itself to their ultimate destination. Alternatively, the cars may be switched to SP&S trains at the Hoyt Street Yard and moved to North Portland over the SP&S mainline. In either case, SP must pay a switching charge to Burlington Northern or to UP (whichever is the switching carrier), and then pay a "rate division" to Peninsula for its switching service.[9] The Peninsula rate division is absorbed by any line-haul carrier subject to it and is thus not passed on to the shipper. The SP&S and UP switching charges may be absorbed by a line-haul carrier if a minimum line-haul revenue per car is exceeded, and SP has done so, except on certain low-rated noncompetitive traffic. SP shared in about 20% of Peninsula's traffic in 1966, and in about 17% in 1967. (3) Milwaukee's Presence in Portland Throughout the proceedings below, Milwaukee was not a line-haul carrier serving Portland. Its own tracks terminate at Longview, Washington, 46 miles north of Portland, and through arrangements with SP&S it shared in only one percent of Peninsula's traffic in 1966 and 1967. However, a basic condition of the Commission's approval of the merger of the Great Northern Railway Co., the Northern Pacific Railway Company, and their affiliates, including SP&S, was that Milwaukee be made an effectively competitive transcontinental carrier by being permitted to enter Portland over the lines of the new company, Burlington Northern.[10] Condition *822 24 (a) of the merger required that |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | Northern.[10] Condition *822 24 (a) of the merger required that Burlington Northern "shall grant to the Milwaukee, upon such fair and reasonable terms as the parties may agree or as determined by this Commission in the event of their inability to agree, trackage rights to operate freight trains over [Burlington Northern] lines between Longview Junction and Portland, including the right to serve on an equal basis all present and future industries at Portland and intermediate points and the use of [Burlington Northern] facilities at Portland necessary for the switching of traffic to other railroads and industries. [Burlington Northern] shall maintain Portland as an open gateway on a reciprocal basis with the Milwaukee to the same extent as with other connecting carriers" 331 I. C. C. 228, 357. Pursuant to Condition 24(a), Milwaukee commenced service to Portland on March 22, 1971.[11] Since that *823 date, it has published rates reflecting single-line service to Portland industries, including those served by Peninsula, by absorbing the relevant switching charges. It has operated its own locomotives over Burlington Northern lines as far south as the Hoyt Street Yard on the western side of the Willamette River (point 3). If Milwaukee is not allowed to switch cars directly to Peninsula at the North Portland interchange, Milwaukee cars designated for industries on Peninsula will be switched to Burlington Northern trains at Vancouver, on the north side of the Columbia (point 8), at the Hoyt Street Yard (point 3), or at the Guild's Lake Yard (point 2), and moved thence to Peninsula.[12] D. Milwaukee and Southern Pacific Pleadings Before the Commission By petition filed August 23, 1967, Milwaukee sought inclusion in the proposed purchase of Peninsula by Burlington Northern (then SP&S) and UP. Section 5 (2) (d) of the Interstate Commerce Act authorizes the Commission to require such inclusion as a prerequisite to its approval of the purchase "upon a finding that such inclusion is consistent with the public interest." After first setting out its impending access to Portland over SP&S lines because of the Northern Lines merger, Milwaukee alleged: "The instant transaction, if approved by the Commission without inclusion of Milwaukee upon the terms stated below, would have the effect of *824 foreclosing Milwaukee direct service to all the industries now or in the future to be located on the lines of Peninsula Terminal Company. With fifty per cent of Peninsula Terminal Company stock in the hands of Union Pacific Railroad Company, not a party to the contract referred to above, Milwaukee will not have any right similar to that sought by applicants herein to operate over |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | similar to that sought by applicants herein to operate over or obtain trackage rights in the lines of Peninsula Terminal Company. Industries on the lines of Peninsula Terminal Company will thus be denied the single-line service of Milwaukee to such points as [various western and midwestern rail centers served by Milwaukee], contrary to the public interest."[13] App. 165. Accordingly, the Milwaukee sought equal inclusion with SP&S and UP in the purchase of Peninsula and, in addition, asked "[t]hat Milwaukee be granted the right to acquire trackage rights over intervening connecting trackage jointly owned by applicants, from SP&S main line to Peninsula Terminal Company's lines upon such reasonable terms and conditions, and for such considerations, as Milwaukee and applicants may negotiate, or, failing such negotiations, upon such *825 terms and conditions and for such consideration as the Commission may find just and reasonable."[14] App. 166. On December 29, 1967, SP&S and the UP filed replies, arguing, inter alia: (1) that even if Condition 24 (a) were implemented, Milwaukee would still not connect with Peninsula because of the intervening North Portland interchange tracks, jointly owned by SP&S, UP, and Peninsula, and trackage rights over these tracks could not be granted to the Milwaukee in this proceeding; and (2) that joint ownership of Peninsula with the Milwaukee could "lead to a cumbersome, confused and divided management with resulting policy stalemates and serious deterioration of service." Milwaukee thereupon filed a supplement to its petition for inclusion, stating that "in light of the replies of applicants herein to the Milwaukee's petition for inclusion, the Milwaukee alleges that the joint application herein is for the purpose of bottling up the Milwaukee at Portland and impair [sic] its ability to provide a competitive service to industries served or to be served by Peninsula Terminal Company contrary to the public interest and the plain intent of the Commission's [report and order in the Northern Lines Merger Case]." App. 182. Accordingly, the Milwaukee added to its earlier petition by requesting: "That applicants be required to grant Milwaukee trackage rights over intervening trackage at North *826 Portland connecting with the yards of Peninsula Terminal Company, both as a condition to participation in ownership of Peninsula Terminal Company and also under Section 3 (5) of the Interstate Commerce Act." App. 183. (Emphasis added.) Whether intentionally or not, by requesting trackage rights under 3 (5), the text of which appears in the margin,[15] Milwaukee divorced the question of access to Peninsula from the question of inclusion in the ownership of Peninsula. Any trackage rights granted in connection with the petition for inclusion |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | trackage rights granted in connection with the petition for inclusion under 5 (2) would be contingent upon SP&S' and UP's deciding to consummate the purchase; trackage rights granted under 3 (5), however, would be independent of the purchase. In the meantime, by an amended petition filed November 29, 1967, SP joined with the Milwaukee in seeking inclusion under 5 (2) (d) as an equal owner of Peninsula. It further requested that UP "be required to grant petitioner bridge trackage rights over [the Union Pacific] main line and terminal trackage between Peninsula Terminal Company *827 and the Southern Pacific-Union Pacific track connection at East Portland, Ore."[16] App. 168. In response to replies that trackage rights to East Portland could not be granted in a 5 (2) proceeding, SP, unlike Milwaukee, initiated separate proceedings under 3 (5) (Dec. 19, 1967). It sought orders requiring SP&S and UP to allow the "common use of Peninsula Terminal Company," together with bridge trackage rights over UP lines to East Portland; additionally (or, presumably, alternatively), it sought the "common use of the terminal facilities of Union Pacific between Peninsula Terminal Company and East Portland, Oregon."[17] E. Proceedings Before the Hearing Examiner The applications, petitions, and replies of the four line-haul carriers were referred to an examiner for hearing upon a consolidated record. The Port of Portland, the Portland Commission of Public Docks, the Public Utility Commissioner of Oregon, and Crown Zellerbach Corporation intervened in favor of Milwaukee and the *828 SP.[18] At the hearings in February and March of 1968, evidence was taken from five shippers in addition to Crown Zellerbach, as well as officers and consultants of the parties and intervenors. On September 9, 1968, nearly a year after the Commission had approved the Northern Lines merger, the hearing examiner issued his report. In the 5 (2) proceeding, he recommended approval of the purchase of Peninsula by Burlington Northern and UP, on condition (1) that SP be included as an equal owner and (2) that Milwaukee be included as an equal owner upon consummation of the Northern Lines merger and upon Milwaukee's commencing operations into Portland.[19] The examiner further recommended that if the purchase were consummated on the above conditions, SP and Milwaukee be granted "the right of access to Peninsula Terminal Company trackage over intervening North Portland interchange tracks, at North Portland, Oreg., presently owned individually or jointly by [Peninsula, SP&S and Northern Pacific, and UP], upon such terms and compensation for use of such intervening *829 trackage mutually agreeable to the interested carriers, or in the event of failure to agree, as the |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | or in the event of failure to agree, as the Commission may fix as just and reasonable, to be ascertained in accordance with the provisions of section 3 (5)" App. 128-129. The examiner found that this right of access "is practicable and would not substantially impair the ability of the owning carriers to handle their business."[20] App. 129. In the separate 3 (5) proceedings initiated by SP, the examiner ordered common use by SP of the tracks and facilities of UP for operation between the connection at East Portland and the tracks of Peninsula at North Portland, conditioned, again, upon compensation to be agreed upon by the parties or "just and reasonable" as fixed by the Commission. In his discussion of the issues, the hearing examiner first announced that he would treat the entire area involved *830 as "one transportation terminal entity." On the subject of inclusion in the purchase of Peninsula, he announced: "Existing disparity in charges and treatment of traffic within the Portland switching area is convincing evidence that the greatest economic advantage for equality of shippers and carriers can be accomplished best by equal access and ownership. The most economical and functionally modern transportation facilities are essential to development of Rivergate and the Port of Portland. Limitation of direct access there to two railroads barring on-line solicitation and the direct development interests of the other railroads serving the Portland area is contrary to an environment of unencumbered development and the establishment of a sound transportation system. [D]irect access to all the carriers will enable shippers to deal directly with originating carriers providing on-line service to many points in areas not served by the two initial applicants. Shippers would benefit from elimination of switching charges assessed on non-competitive traffic where one of the applicants now acts as a switching carrier." App. 120-121. On the subject of the SP's 3 (5) applications, the examiner found that the evidence warranted a conclusion that common use by SP of UP trackage between the North Portland interchange and East Portland was "in the public interest, practicable, and would not substantially impair UP's ability to handle its own business." He noted the "almost incredible 30-hour average transit time required for car movements between Albina Yard and Peninsula, a round-trip distance of about 10.4 miles, including engine changes, car inspection, and car classification at Albina Yard." With *831 respect to the developing Rivergate complex, the examiner was convinced "that access thereto by other line-haul carriers will create greater incentive for improvement of railroad facilities and for elimination of present unsatisfactory conditions in the involved |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | and for elimination of present unsatisfactory conditions in the involved area." App. 124. Nor did the examiner think that joint ownership and access by the four line-haul railroads in Peninsula and the proposed trackage rights to SP would curtail competition. "To the contrary, shippers in the involved area would be afforded free direct access to all the line-haul carriers' services. Among other things, it would place traffic movements between the Portland area, on the one hand, and, on the other, on-line points of carriers in California and States east thereof, on a more competitive basis with movements between those points over the lines of UP and [Burlington Northern] Also, Milwaukee would become more competitive with UP and [Burlington Northern] and their connections in providing service to the north and east of Portland. The authorizations, generally, would result in improved competitive service and the fostering of sound transportation in the involved area." App. 125. Finally, the examiner did not grant SP's apparent application, pursuant to 3 (5), for trackage rights over Peninsula itself. He concluded his discussion with the words: "In event the parties elect not to consummate the purchase [of Peninsula] recommended herein further petitions by these carriers requesting access to and operation over trackage of Peninsula pursuant to *832 section 3 (5) of the Act may be filed. Jurisdiction will be retained for that purpose."[21] App. 127. F. The Decision of the Interstate Commerce Commission Burlington Northern and UP filed exceptions to the hearing examiner's recommendations. They contended, inter alia, (1) that undue emphasis was placed on the future development of Rivergate, (2) that the hearing examiner erroneously held the Portland terminal area to constitute one terminal entity, (3) that the evidence does not support a four-way ownership of Peninsula, either from a general public or a shipper standpoint, (4) that Condition 24 (a) did not grant Milwaukee access to Peninsula, and (5) that neither use of the North Portland interchange tracks by Milwaukee and SP, nor common use by the SP of UP trackage between North Portland and East Portland, was in the public interest.[22] On June 6, 1969, Division 3 of the Interstate Commerce Commission issued its opinion. 334 I. C. C. 419. *833 Though it approved the acquisition of Peninsula by SP&S and UP, it otherwise rejected the hearing examiner's recommendations and denied the petitions and applications filed by Milwaukee and SP. The following conditions were imposed upon the acquisition, "to protect the present routings and interchanges" of Peninsula: "1. Under the control of SP&S and UP, Peninsula shall maintain and keep open all routes and |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | UP, Peninsula shall maintain and keep open all routes and channels of trade via existing junctions and gateways, unless and until otherwise authorized by the Commission; "2. The present neutrality of handling inbound and outbound traffic to and from Peninsula by SP&S and UP shall be continued so as to permit equal opportunity for service to and from all lines reaching Peninsula through SP&S and UP without discrimination as to routing or movement of traffic, and without discrimination in the arrangements of schedules or otherwise; "3. The present traffic and operating relationships existing between Peninsula, on the one hand, and, all lines reaching Peninsula through the lines of SP&S and UP, on the other, shall be continued insofar as such matters are within the control of SP&S and UP; "4. Peninsula, SP&S and/or UP shall accept, handle, and deliver all cars inbound, loaded and empty, without discrimination in promptness or frequency of service irrespective of destination or route of movement; "5. Peninsula, SP&S and/or UP shall not do anything to restrain or curtail the right of industries, now located on Peninsula, to route traffic over any and all existing routes and gateways; *834 "6. Peninsula, SP&S and/or UP shall refrain from closing any existing route or channel of trade with SP or Milwaukee on account of the [authorized purchase of Peninsula], unless and until authorized by this Commission; "7. Consummation of [the authorized purchase of Peninsula] shall constitute assent by the corporate parents of SP&S, the members of their respective systems, and any carrier resulting from consummation of the Northern Lines case, to be bound by these conditions to the same extent that SP&S is bound by these conditions; and "8. Any party or person having an interest in the subject matter may at any future time make application for such modification of the above-stated conditions, or any of them, as may be required in the public interest, and jurisdiction will be retained to reopen the proceeding on our own motion for the same purpose." 334 I. C. C., -437. II A. "Direct Access" As a reading of Part I reveals, there seems to have been a certain amount of confusion below as to whether or not actual operation over the main tracks of Peninsula by any of the four line-haul carriers was at issue in this case. Early in the Commission's discussion of the merits, for example, it said: "[W]e find that since neither SP nor Milwaukee now connect with Peninsula, and have never connected with it in the past, their direct service to Peninsula's industries over the objections |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | past, their direct service to Peninsula's industries over the objections of SP&S and UP would constitute a new operation and an invasion of the joint applicant's territory." 334 I. C. C., (emphasis added). *835 Laying aside the substantive policy involved in this statement, we do not see how the italicized words can refer to anything but physical operation over tracks wholly owned by Peninsula. Yet, as we have already and n. 20, and 832 n. 21, the hearing examiner did not recommend the granting of such trackage rights to Milwaukee and SP; and neither of these two railroads filed exceptions to the hearing examiner's report requesting such rights. As for Burlington Northern and UP, the third condition which the Commission imposed on their purchase of Peninsula ( ) seems to acknowledge that Peninsula will continue to operate as a separate railroad, handling all the switching from industries located upon its lines to the North Portland interchange tracks. This matter was not resolved before this Court. The briefs filed by the appellants and by the United States contain many references to "direct access" by the line-haul carriers to Peninsula and Rivergate, again strongly suggesting physical operation over Peninsula tracks. The Commission argues that physical operation on the part of Burlington Northern and UP is not at issue, because ownership aloneall that these two railroads seekgives no right to operate over the tracks of the purchased railroad. Brief for Interstate Commerce Commission 23 n. 15; Tr. of Oral Arg. 30. Milwaukee denies that it ever sought "to switch cars to Peninsula industries with its own engines and crews," Supplemental Brief for Appellant Milwaukee 34, but no similarly direct statement has been forthcoming from SP. We have set forth but one of the confusionsfactual and proceduralthat plague this case. Such confusions might have been resolved before the case reached us had the three-judge court that initially reviewed these orders written an opinion. *836 B. The Petitions for Inclusion (1) Condition 24 (a) Milwaukee and the United States argued at length before this Court that Condition 24 (a) of the Northern Lines merger by itself requires that Milwaukee be included in the purchase of Peninsula. The Commission considered this point at the very start of its discussion of the merits and stated that Milwaukee's petition for inclusion could not be viewed "as part of the general realignment of western railroad competition resulting from the Commission's approval of the Northern Lines merger. Condition No. 24 is applicable only to Northern Lines trackage and territory. The condition is silent with respect to trackage and territory in |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | condition is silent with respect to trackage and territory in which other carriers, such as UP, have a joint interest and the effect of the condition upon such joint interest and territory was not presented to, nor considered by, the Commission. Furthermore, the purchase of Peninsula by the joint applicants was not within the contemplation of the Commission at the time condition No. 24 was imposed. Accordingly, we consider the petition of Milwaukee under the same public interest criteria as the petition and applications of SP, rather than as a petition to carry out the provisions of condition No. 24.10" 334 I. C. C., at 432. In its footnote 10, however, the Commission said: "Upon completion of litigation in the Northern Lines case and consummation of that merger, Milwaukee may wish to seek relief from the Commission in that proceeding to determine the relationship of condition No. 24, if any, to Peninsula's tracks *837 which would at that time be partially owned by the Northern Lines." This suggestion that the Commission might consider anew the effect of Condition 24 (a) upon jointly owned tracks leaves us in doubt whether at this point it has made a final determination on the applicability of the condition, or simply a determination that the question should be raised in a different proceeding. We do not find it necessary, however, to resolve this doubt and to rule upon the narrow question whether Condition 24 (a) alone requires that Milwaukee be included in the purchase of Peninsula. No one disputes that the condition had one clear meaningthat Milwaukee would be permitted to run its trains into Portland over Burlington Northern-SP&S tracks. The Commission took this as its starting point and went on to discuss the merits of both Milwaukee's and SP's petitions for inclusion. We find, for the reasons that will appear below, that the Commission took too narrow a view of the "public interest" and we are in disagreement with its 5 (2) order. (2) Evaluating the Public Interest As an initial matter, the Commission limited its attention to Peninsula alone, rather than considering the "entire Portland area" as "one transportation terminal entity," as the hearing examiner had. Appellants contend that this very first step was error, but we think it wiser to evaluate the Commission's approach as a whole. A fair summary of the Commission's analysis appears in the last paragraph of its discussion of the petitions for inclusion. There it concludes: "The adverse effect on SP&S and UP, and the shippers dependent upon them for service, of admitting *838 SP and Milwaukee into |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | them for service, of admitting *838 SP and Milwaukee into ownership and control of Peninsula, would outweigh any advantage accruing to SP, Milwaukee, and the Rivergate industries of four-railroad ownership. We cannot find, therefore, that inclusion of SP and Milwaukee in the title proceeding would constitute a just and reasonable term, condition, or modification of the authority requested by the joint applicants." 334 I. C. C., at 435. In the preceding paragraphs, the Commission had summarized the evidence presented by the three shippers located in Rivergate that had supported SP's petition and application; it concluded that this evidence failed to establish that benefits would accrue from four-railroad ownership of Peninsula. No mention was made of evidence that tended to establish that "shippers dependent upon" SP&S and UP would suffer from such ownership. It is apparent, therefore, that the dominant factor in the Commission's analysis, outweighing any advantage accruing to SP and Milwaukee from four-railroad ownership, was the "adverse effect on SP&S and UP"; we must examine now the manner in which the Commission characterized this "adverse effect." First, the Commission said: "[W]e find that since neither SP nor Milwaukee now connect with Peninsula, and have never connected with it in the past, their direct service to Peninsula's industries over the objections of SP&S and UP would constitute a new operation and an invasion of the joint applicant[s'] territory." We have already observed that this passage suggests direct physical operation over the main track of Peninsula, a matter that appears not to be directly at issue in this case. But it may also refer to the trackage *839 rights sought by Milwaukee and SP, as a condition to the purchase, which would permit them to connect directly with Peninsula, so the Commission's further treatment of this point is relevant: "In the past, the Commission has usually held that sound economic conditions in the transportation industry require that a railroad now serving a particular territory should normally be accorded the right to transport all traffic therein which it can handle adequately, efficiently, and economically, before a new operation should be authorized. This conclusion is applicable not only with respect to existing traffic but also with respect to potential traffic See Minneapolis, St. P. & S. S. M. R. Co. Acquisition, 295 I. C. C. 787, 802 [1958], and cases cited therein." This passage appears to announce the principle that in considering petitions for inclusion in proposed purchases or mergers under 5 (2), with accompanying trackage rights, the dominant policy is preservation of the market shares of the railroads already serving the location |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | the market shares of the railroads already serving the location in question, so long as those railroads provide reasonably adequate switching service to other carriers in the area. Whatever doubts we might have, either as to the principle itself or its application to this case, are removed by the critical paragraph that immediately follows the sentences just : "As shown in the appendix, SP shared, through connections and use of joint rates and routes, in only about 20 percent of Peninsula's traffic during 1966, and only about 17 percent during 1967. Milwaukee's share, also via connections and joint rates and routes, amounted to only 1 percent during those years. Permitting SP and Milwaukee to acquire access to, and equal ownership of, Peninsula and *840 therefore participate in its existing traffic on a direct haul basis will, of course, allow those two railroads to increase their share of Peninsula's declining traffic (3,640 loaded cars handled in 1966 and 2,748 handled in 1967). These increased shares of SP and Milwaukee could only be at the expense of the joint applicants and the railway employees whose jobs would be eliminated by the direct service planned by SP and Milwaukee." This discussion strikes us as initially misdirected because it ignores the prospective presence of Milwaukee in this area. In 1966 and 1967, Milwaukee trains were still running no closer to Portland than Longview, Washington, 46 miles away. All through the Commission proceedings, however, it was assumed by all concerned that pursuant to Condition 24 (a) of the Northern Lines merger, Milwaukee would soon be operating directly into Portland over Burlington Northern tracks, as it is today. Granted that Milwaukee had only 1% of Peninsula's traffic in 1966 and 1967, the Commission pointed to no evidence that the Milwaukee share would continue to be this small after affirmance of the Northern Lines merger. The next difficulty with the Commission's approach relates to the potential growth of Peninsula traffic. The raison d'être of this litigation has been the possibility that Peninsula would become the northern access to Rivergate. As we have already noted, this possibility may be remote, given the physical limitations of Peninsula's present facilities. But the Commission nowhere states that the possibility is too speculative to be considered in this litigation. The paragraph we have just then, reads strangely indeed; for if Peninsula becomes the northern route into Rivergate, the estimates we have been given indicate that daily traffic over its line would increase from the 1967 rate of 30 cars per day to over 300 cars per day, assuming that a roughly equal |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | over 300 cars per day, assuming that a roughly equal number *841 of cars go out over each of the northern and southern routes from Rivergate. Yet according to the principle announced by the Commission, the public interest requires that Burlington Northern's and UP's 80% share of this potentially enormous traffic be protected. Such an approach seems to us to fly in the face of the well-settled principle that the Commission is obligated to consider the anticompetitive effects of any 5 (2) transaction. McLean Trucking ; Northern Lines Merger It is not necessary to invoke the precise terms of Condition 24 (a) and decide their applicability to this case, to take cognizance of the fact that prior to the Northern Lines merger, Milwaukee was a weak carrier in the Northern Tier of States. Northern Lines Merger 514-516. Condition 24 (a) was not intended to foreclose consideration of Milwaukee's competitive position vis-à-vis Burlington Northern in any other proceeding. Both Milwaukee and SP were entitled to explicit consideration of their economic positions as compared with that of Burlington Northern and UP or, at least, a clear statement why such an inquiry was not appropriate. Even the one case cited by the Commission in support of its general principle, Minneapolis, St. P. & S. S. M. R. Co. Acquisition, 295 I. C. C. 787, 802 (1958), undercuts the Commission's reasoning. There, the Commission denied applications of other lines for permission to acquire tracks and to undertake new construction in territory traditionally served by the Chicago & North Western Railway Co.; the latter's economic vulnerability made preservation of its exclusive territory important to the public interest. There is no indication in the present case that Burlington Northern and UP are economically vulnerable, or that they in any way need their present share of Peninsula *842 traffic to serve the public interest. We are confronted with two railroads that already control one actual route into Rivergate (via Barnes Yard) and one potential route (any spur leading off the Burlington Northern-SP&S main-line tracks), and that now seek to acquire, for themselves alone, the one remaining route. The Commission's entire discussion of the anticompetitive aspects of this acquisition can be summed up as follows: to the extent that SP and Milwaukee may gain by four-railroad ownership of Peninsula, Burlington Northern and UP will lose; therefore the petitions for inclusion are denied. We do not approve this approach to the case. Despite what we have said about the Commission's apparent reasoning, it does not necessarily follow that the result it reached was incorrect. Given the uncertainty about the |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | result it reached was incorrect. Given the uncertainty about the northern access to Rivergate, and given the apparent fact that physical operation over Peninsula and into Rivergate was not at issue, approval of the purchase by Burlington Northern and UP alone, with the eight attached conditions, may be the result most in the public interest at the present time. We note that the Commission retained jurisdiction over the proceedings. But it is not the role of this Court to arrive at its own determination of the public interest on the facts of this case. Our appellate function in administrative cases is limited to considering whether the announced grounds for the agency decision comport with the applicable legal principles. In this proceedingwhere the record is already confused by ambiguities over what was thought to be at issuewe cannot say that the grounds for the agency decision are consistent with the "public interest" standard found in the Interstate Commerce Act. We must reverse and remand for further proceedings. *843 C. Southern Pacific's 3 (5) Applications We turn to SP's applications for trackage rights which would permit it to run trains directly to Peninsula from East Portland. According to the Commission: "The intent of Congress in enacting section 3 (5) was to provide a method of avoiding the necessity for incurring unnecessary expense in duplicating existing terminal facilities by a railroad entitled to serve a particular territory." 334 I. C. C., at 435. Since SP was "not entitled to serve Peninsula or Rivergate," it went on, "we need not reach the questions of whether common use of the facilities involved would be practicable or would substantially impair the ability of Peninsula and UP to handle their own business." According to the rule applied here, if a railroad is not "entitled to serve" a particular territory, the Commission conclusively presumes that granting 3 (5) rights would not be in the "public interest." Whether or not such a per se rule is permissible under 3 (5) strikes us as a substantial question of statutory construction. For the following reasons, however, we decline to decide this question in the instant case and include these 3 (5) proceedings in our remand to the Commission. First, we note that the two cases cited by the Commission in support of its announced rule, Use of Northern Pacific Tracks at Seattle by Great Northern, 161 I. C. C. 699 (1930), and Seaboard Air Line R. Co.Use of Terminal Facilities of Florida East Coast R. Co., 327 I. C. C. 1 (1965), do not directly present the question at issue, since |
Justice Blackmun | 1,972 | 11 | majority | Port of Portland v. United States | https://www.courtlistener.com/opinion/108614/port-of-portland-v-united-states/ | (1965), do not directly present the question at issue, since in each case the Commission decided that the applying railroad was entitled to serve the area and went on to grant the requested trackage rights. *844 Second, we note that the Commission's brief now defends the ruling below on broader grounds than those that were announced. This leads us to doubt the extent to which the Commission's announced rule is settled ICC law. Third, the question of 3 (5) relief may become moot if the Commission, on remand of the 5 (2) petitions for inclusion, reverses itself and requires trackage rights for SP as a condition for approval of the purchase of Peninsula, and if the purchase is then consummated. Fourth, the 3 (5) applications were considered in close connection with the 5 (2) petitions for inclusion by both the Commission and the hearing examiner. We cannot say with assurance that the Commission would approach the 3 (5) applications in the same way after reconsidering the petitions for inclusion in light of Parts II (A) and (B) of this opinion. The judgment of the District Court is reversed. The case is remanded to the District Court with instructions that it remand to the Interstate Commerce Commission for further proceedings consistent with this opinion. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. [Schematic map follows this page.] |
Justice Stevens | 2,010 | 16 | dissenting | Wood v. Allen | https://www.courtlistener.com/opinion/1742/wood-v-allen/ | There is a world of difference between a decision not to introduce evidence at the guilt phase of a trial and a failure to investigate mitigating evidence that might be admissible at the penalty phase. Wood's experienced counsel made a perfectly sensible decision not to introduce Dr. Kirkland's report into evidence or to call him as a witness. That was a strategic decision based on their judgment that the evidence would do more harm than good. But it does not follow from this single strategic decision that counsel also made a strategic decision to forgo investigating *852 powerful mitigating evidence of Wood's mental deficits for the penalty phase. On the contrary, the only reasonable factual conclusion I can draw from this record is that counsel's decision to do so was the result of inattention and neglect. Because such a decision is the antithesis of a "strategic" choice, I would reverse the decision of the Court of Appeals. Assuming that the Court is correct to decline to consider whether the state court's application of was reasonable, see ante, at 850-851, the question whether the decision itself was the product of a strategy is still before us. The Court may well be correct that the state court reasonably concluded that counsel made a decision not to pursue Dr. Kirkland's report for either guilt or penalty phase purposes, ante, at 849-851, but to reject Wood's claim the state court also had to reasonably conclude that such a decision was borne of strategy. And whether counsel's decision was the product of strategy is a question of fact for purposes of (d)(2).[1] Cf. ; ;[2]Berryman v. Morton, In other words, the Court correctly concludes that the record reasonably supports a finding that counsel decided not to investigate Wood's mental retardation further, but the Court fails to engage with the requisite second question: Does the record reasonably support finding that counsel's decision was a strategic one? The answer to this question is unequivocally no. Before petitioner's trial, his counsel learned that Wood had an "IQ in the borderline range of intellectual functioning," App. 327, and was "functioning, at most," in this borderline range, Wood was "reading on less than a 3rd grade level." His former special education teacher testified during postconviction review that Wood was classified as "educable mentally retarded" by the local school system. In short, Wood has the type of significant mental deficits that we recognize as "inherently mitigating,"[3] *853 Despite the powerful mitigating value of this evidence, "[n]o evidence of Wood's mental retardation was ever presented to the jury." Counsel was clearly aware |
Justice Stevens | 2,010 | 16 | dissenting | Wood v. Allen | https://www.courtlistener.com/opinion/1742/wood-v-allen/ | was ever presented to the jury." Counsel was clearly aware that this evidence existed, but chose not to investigate it beyond the conclusions outlined in Dr. Kirkland's report, App. 283. In the Court's view, the record reasonably supports the state court's conclusion that "counsel made a strategic decision not to inquire further into" Wood's mental deficiencies, ante, at 850. Although I agree with the majority that the failure was the result of a "decision," albeit a hasty one, the Court regrettably fails to consider whether the decision was also "strategic" as a matter of fact. A decision cannot be fairly characterized as "strategic" unless it is a conscious choice between two legitimate and rational alternatives. It must be borne of deliberation and not happenstance, inattention, or neglect. See (concluding that counsel's "failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment"); -691, Moreover, "a cursory investigation" does not "automatically justif[y] a tactical decision with respect to sentencing strategy." Although we afford deference to counsel's strategic decisions, -691, for this deference to apply there must be some evidence that the decision was just that: strategic. The lawyers' duty to conduct a thorough investigation of possible mitigating evidence is well established by our cases, ; ; -523, ; These cases also make clear that counsel's unconsidered decision to fail to discharge that duty cannot be strategic. The only conceivable strategy that might support forgoing counsel's ethical obligations under these circumstances would be a reasoned conclusion that further investigation is futile and thus a waste of valuable time. Cf. (recognizing that counsel's decision to abandon an investigation is entitled to deference "when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful"). There is no evidence in the record to suggest that Wood's counsel reached such a conclusion.[4] See * -1322 On the contrary, the Court recognizes that Wood has pointed to substantial evidence that Trotter, the attorney who had primary responsibility for Wood's penalty phase, believed that further investigation had value, ante, at 849-850. Despite the fact that Trotter had a meager five months of experience as a lawyer when he was appointed to represent Wood, App. 261, even he knew that further investigation into any mental or psychological deficits was in order.[5] In my view, any decision to abandon an investigation into the mitigating evidence signaled by Dr. Kirkland's report was so obviously unreasonable that the decision itself is highly persuasive evidence that counsel did not have any strategy in mind when they did so. I share the view of my dissenting |
Justice Marshall | 1,988 | 15 | dissenting | Murray v. United States | https://www.courtlistener.com/opinion/112136/murray-v-united-states/ | The Court today holds that the "independent source" exception to the exclusionary rule may justify admitting evidence discovered during an illegal warrantless search that is later "rediscovered" by the same team of investigators during a search pursuant to a warrant obtained immediately after the illegal search. I believe the Court's decision, by failing to provide sufficient guarantees that the subsequent search was, in fact, independent of the illegal search, emasculates the Warrant Clause and undermines the deterrence function of the exclusionary rule. I therefore dissent. This Court has stated frequently that the exclusionary rule is principally designed to deter violations of the Fourth Amendment. See, e. g., United ; By excluding evidence discovered in violation of the Fourth Amendment, the rule "compel[s] respect for the constitutional guaranty in the only effectively available way, by removing the incentive to disregard it." at The Court has crafted exceptions to the exclusionary rule when the purposes of the rule are not furthered by the exclusion. As the Court today recognizes, the independent source exception to the exclusionary rule "allows admission of evidence that has been discovered by means wholly independent of any constitutional violation." ; see Silverthorne Lumber The independent source exception, like the inevitable discovery exception, is primarily *545 based on a practical view that under certain circumstances the beneficial deterrent effect that exclusion will have on future constitutional violations is too slight to justify the social cost of excluding probative evidence from a criminal trial. See ; cf. United -909. When the seizure of the evidence at issue is "wholly independent of" the constitutional violation, then exclusion arguably will have no effect on a law enforcement officer's incentive to commit an unlawful search.[1] Given the underlying justification for the independent source exception, any inquiry into the exception's application must keep sight of the practical effect admission will have on the incentives facing law enforcement officers to engage in unlawful conduct. The proper scope of the independent source exception, and guidelines for its application, cannot be divined in a factual vacuum; instead, they must be informed by the nature of the constitutional violation and the deterrent effect of exclusion in particular circumstances. In holding that the independent source exception may apply to the facts of these cases, I believe the Court loses sight of the practical moorings of the independent source exception and creates an affirmative incentive for unconstitutional searches. This holding can find no justification in the purposes underlying both the exclusionary rule and the independent source exception. The factual setting of the instant case is straightforward. Federal Bureau of Investigation |
Justice Marshall | 1,988 | 15 | dissenting | Murray v. United States | https://www.courtlistener.com/opinion/112136/murray-v-united-states/ | of the instant case is straightforward. Federal Bureau of Investigation (FBI) and Drug Enforcement Agency (DEA) agents stopped two vehicles after they *546 left a warehouse and discovered bales of marijuana. DEA Supervisor Garibotto and an assistant United States attorney then returned to the warehouse, which had been under surveillance for several hours. After demands that the warehouse door be opened went unanswered, Supervisor Garibotto forced open the door with a tire iron. A number of agents entered the warehouse. No persons were found inside, but the agents saw numerous bales of marijuana in plain view. Supervisor Garibotto then ordered everyone out of the warehouse. Agents did not reenter the warehouse until a warrant was obtained some eight hours later. The warehouse was kept under surveillance during the interim. It is undisputed that the agents made no effort to obtain a warrant prior to the initial entry. The agents had not begun to prepare a warrant affidavit, and according to FBI Agent Cleary, who supervised the FBI's involvement, they had not even engaged in any discussions of obtaining a warrant. App. 52. The affidavit in support of the warrant obtained after the initial search was prepared by DEA Agent Keaney, who had tactical control over the DEA agents, and who had participated in the initial search of the warehouse. The affidavit did not mention the warrantless search of the warehouse, nor did it cite information obtained from that search. In determining that the challenged evidence was admissible, the Court of Appeals assumed that the initial warrantless entry was not justified by exigent circumstances and that the search therefore violated the Warrant Clause of the Fourth Amendment. Under the circumstances of these cases, the admission of the evidence "reseized" during the second search severely undermines the deterrence function of the exclusionary rule. Indeed, admission in these cases affirmatively encourages illegal searches. The incentives for such illegal conduct are clear. Obtaining a warrant is inconvenient and time consuming. Even when officers have probable cause to support a warrant application, therefore, they have an incentive first *547 to determine whether it is worthwhile to obtain a warrant. Probable cause is much less than certainty, and many "confirmatory" searches will result in the discovery that no evidence is present, thus saving the police the time and trouble of getting a warrant. If contraband is discovered, however, the officers may later seek a warrant to shield the evidence from the taint of the illegal search. The police thus know in advance that they have little to lose and much to gain by forgoing the bother |
Justice Marshall | 1,988 | 15 | dissenting | Murray v. United States | https://www.courtlistener.com/opinion/112136/murray-v-united-states/ | to lose and much to gain by forgoing the bother of obtaining a warrant and undertaking an illegal search. The Court, however, "see[s] the incentives differently." Ante, at 540. Under the Court's view, today's decision does not provide an incentive for unlawful searches, because the officer undertaking the search would know that "his action would add to the normal burden of convincing a magistrate that there is probable cause the much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers' decision to seek a warrant or the magistrate's decision to grant it." The Court, however, provides no hint of why this risk would actually seem significant to the officers. Under the circumstances of these cases, the officers committing the illegal search have both knowledge and control of the factors central to the trial court's determination. First, it is a simple matter, as was done in these cases, to exclude from the warrant application any information gained from the initial entry so that the magistrate's determination of probable cause is not influenced by the prior illegal search. Second, today's decision makes the application of the independent source exception turn entirely on an evaluation of the officers' intent. It normally will be difficult for the trial court to verify, or the defendant to rebut, an assertion by officers that they always intended to obtain a warrant, regardless of the results of the illegal search.[2] The testimony of the officers *548 conducting the illegal search is the only direct evidence of intent, and the defendant will be relegated simply to arguing that the officers should not be believed. Under these circumstances, the litigation risk described by the Court seems hardly a risk at all; it does not significantly dampen the incentive to conduct the initial illegal search.[3] The strong Fourth Amendment interest in eliminating these incentives for illegal entry should cause this Court to scrutinize closely the application of the independent source exception to evidence obtained under the circumstances of the instant cases; respect for the constitutional guarantee requires a rule that does not undermine the deterrence function of the exclusionary rule. When, as here, the same team of investigators is involved in both the first and second search, there is a significant danger that the "independence" of the *549 source will in fact be illusory, and that the initial search will have affected the decision to obtain a warrant notwithstanding the officers' subsequent assertions to the contrary. It is therefore crucial that the factual premise of the exception |
Justice Marshall | 1,988 | 15 | dissenting | Murray v. United States | https://www.courtlistener.com/opinion/112136/murray-v-united-states/ | therefore crucial that the factual premise of the exception complete independence be clearly established before the exception can justify admission of the evidence. I believe the Court's reliance on the intent of the law enforcement officers who conducted the warrantless search provides insufficient guarantees that the subsequent legal search was unaffected by the prior illegal search. To ensure that the source of the evidence is genuinely independent, the basis for a finding that a search was untainted by a prior illegal search must focus, as with the inevitable discovery doctrine, on "demonstrated historical facts capable of ready verification or impeachment." n. 5. In the instant cases, there are no "demonstrated historical facts" capable of supporting a finding that the subsequent warrant search was wholly unaffected by the prior illegal search. The same team of investigators was involved in both searches. The warrant was obtained immediately after the illegal search, and no effort was made to obtain a warrant prior to the discovery of the marijuana during the illegal search. The only evidence available that the warrant search was wholly independent is the testimony of the agents who conducted the illegal search. Under these circumstances, the threat that the subsequent search was tainted by the illegal search is too great to allow for the application of the independent source exception.[4] The Court's *550 contrary holding lends itself to easy abuse, and offers an incentive to bypass the constitutional requirement that probable cause be assessed by a neutral and detached magistrate before the police invade an individual's privacy.[5] The decision in is not to the contrary. In Segura, the Court expressly distinguished between evidence discovered during an initial warrantless entry and evidence that was not discovered until a subsequent legal search. The Court held that under those circumstances, when no information from an illegal search was used in a subsequent warrant application, the warrant provided an independent source for the evidence first uncovered in the second, lawful search. Segura is readily distinguished from the present cases. The admission of evidence first discovered during a legal search does not significantly lessen the deterrence facing the law enforcement officers contemplating an illegal entry so long as the evidence that is seen is excluded. This was clearly the view of Chief Justice Burger, joined by JUSTICE O'CONNOR, when he stated that the Court's ruling would not significantly detract from the deterrent effects of the exclusionary rule because "officers who enter illegally will recognize that whatever evidence they discover as a direct result of the entry may be suppressed, as it was by the |
Justice Marshall | 1,988 | 15 | dissenting | Murray v. United States | https://www.courtlistener.com/opinion/112136/murray-v-united-states/ | the entry may be suppressed, as it was by the Court of Appeals in this case." As I argue above, extending Segura to cover evidence discovered during an initial illegal search will eradicate this remaining deterrence to illegal entry. Moreover, there is less reason to believe that *551 an initial illegal entry was prompted by a desire to determine whether to bother to get a warrant in the first place, and thus was not wholly independent of the second search, if officers understand that evidence they discover during the illegal search will be excluded even if they subsequently return with a warrant. In sum, under circumstances as are presented in these cases, when the very law enforcement officers who participate in an illegal search immediately thereafter obtain a warrant to search the same premises, I believe the evidence discovered during the initial illegal entry must be suppressed. Any other result emasculates the Warrant Clause and provides an intolerable incentive for warrantless searches. I respectfully dissent. |
Justice White | 1,991 | 6 | concurring | Irwin v. Department of Veterans Affairs | https://www.courtlistener.com/opinion/112510/irwin-v-department-of-veterans-affairs/ | Although I agree with the Court that the 30-day period under 2 U.S. C. 2000e-16(c) begins to run when the notice from the Equal Employment Opportunity Commission is delivered either to the claimant or the claimant's attorney, I do not join the portion of the opinion holding that the 30-day time period is subject to equitable tolling, see ante, at 93-96. As the Court recognizes, see ante, at 9, statutory deadlines for suits against the Government, such as the one in this case, are conditions on the Government's waiver of sovereign immunity. See, e. g., United ; United As such, they must be "`strictly observed and exceptions thereto are not to be implied.'" ; see also In my view, the Court has failed to "strictly observe" the terms of the statute at issue in this case. Congress did not expressly provide for equitable tolling of the 30-day filing deadline in 2000e-16(c). The Court, however, holds that like statutes of limitations for suits between private litigants, limitations periods for suits against the Government will now presumptively be subject to equitable tolling. Ante, at 95-96. That holding needlessly reverses at least one of this Court's prior decisions and is in tension with several others. Because of the existence of sovereign immunity, we have traditionally held that the Government's consent to be sued "`cannot be implied but must be unequivocally expressed.'" United That rule applies even where there is a contrary presumption for suits *98 against private defendants. Our decision in Library of 78 U.S. 310 is instructive on this point. There, we held that the Government was not liable under the federal provisions of Title VII for interest. In reaching that conclusion, we reaffirmed the longstanding rule that despite consent to be sued, the Government will not be liable for interest unless there is a separate explicit waiver to that effect. Although the statute in that case provided that the Government was to be liable "the same as a private person" for "costs," including a "reasonable attorney's fee," we stated that "we must construe waivers strictly in favor of the sovereign and not enlarge the waiver `beyond what the language requires.'" It seems to me that the Court in this case, by holding that the time limit in 2000e-16(c) is subject to equitable tolling, has done exactly what Shaw proscribes it has enlarged the waiver in 2000e-16(c) beyond what the language of that section requires.[1] Not only is the Court's holding inconsistent with our traditional approach to cases involving sovereign immunity, it directly overrules a prior decision by this Court, The |
Justice White | 1,991 | 6 | concurring | Irwin v. Department of Veterans Affairs | https://www.courtlistener.com/opinion/112510/irwin-v-department-of-veterans-affairs/ | it directly overrules a prior decision by this Court, The question in was whether war tolled the statute of limitations for claims against the Government filed in the Court of Claims. In arguing for equitable tolling, the plaintiff there relied on a case in which this Court had held that war had tolled a limitations statute for purposes of private causes of action. at *99 275. The Court was not persuaded, stating that "[t]hat case involved private citizens, not the Government. It has no applicability to claims against the sovereign." The Court explained: "To permit the application of the doctrine urged by petitioner would impose the tolling of the statute in every time-limit-consent Act passed by the Congress. Strangely enough, Congress would be required to provide expressly in each statute that the period of limitation was not to be extended by war. But Congress was entitled to assume that the limitation period it prescribed meant just that period and no more. With this intent in mind, Congress has passed specific legislation each time it has seen fit to toll such statutes of limitations because of war. And this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." at 275- As in here Congress "was entitled to assume that the limitation period it prescribed [in 2000e-16(c)] meant just that period and no more." The Court deviates from the above cases because it believes that our decisions concerning time requirements "have not been entirely consistent." Ante, at 9.[2] Even if that belief is well founded, the doctrine of stare decisis demands that we attempt to reconcile our prior decisions rather than *100 hastily overrule some of them.[3] Such an attempt would reveal that 76 U.S. 67 cited by the Court for the alleged inconsistency, see ante, at 9, is not irreconcilable with the cases discussed above. In Bowen, we allowed equitable tolling against the Government because, among other things, the statutory time period there, set forth in 2 U.S. C. 05(g), expressly allowed tolling. Section 05(g) requires that a civil action be filed "within sixty days or within such further time as the Secretary may allow." See 76 U.S., at 72, n. 3 We noted that the provision in that section allowing the Secretary of Health and Human Services to extend the filing deadline expressed Congress' "clear intention to allow tolling in some cases." at 80. Moreover, we observed that the regulations promulgated by the Secretary governing extensions of time under that provision |
Justice White | 1,991 | 6 | concurring | Irwin v. Department of Veterans Affairs | https://www.courtlistener.com/opinion/112510/irwin-v-department-of-veterans-affairs/ | by the Secretary governing extensions of time under that provision were based on equitable concerns of fairness to claimants, further "support[ing] our application of equitable tolling." at 80, n. 12. The statute in this case, unlike the one in Bowen, does not manifest any "clear intention" by Congress to allow tolling and thus should be subject to the rule articulated in Accordingly, I concur in the judgment because I do not believe that equitable tolling is available as a defense to the 30-day filing requirement, and I would not reach the factual issue whether equitable tolling is supported by the circumstances of this case. *101 JUSTICE STEVENS, concurring in part and dissenting in part. While I agree with the Court's conclusion that the filing deadline in 2 U.S. C. 2000e-16(c) is subject to equitable tolling and that the petitioner has failed to establish a basis for tolling in this case, I do not agree that the 30-day limitations period began to run when petitioner's lawyer, rather than petitioner himself, received notice from the EEOC of petitioner's right to file a civil action. The Court is entirely correct that notice to a litigant's attorney is generally considered notice to the litigant after litigation has been commenced. See ante, at 92-93. But the Court overlooks the fact that litigation is usually commenced by service of process on the adverse party himself. Indeed, the Federal Rules of Civil Procedure expressly require service on the opposing litigant. See Fed. Rule Civ. Proc. (d). This case involves a notice that is a condition precedent to the commencement of formal litigation. I therefore believe that Congress intended that this notice, like a summons and complaint, be served on the adverse party, not his representative. The Court contends that reading "the term `receipt' [in 2000e-16(c)] to mean only `actual receipt by the claimant' would render the practice of notification through counsel a meaningless exercise." Ante, at 93. By the same logic, however, reading "receipt," as the Court does, to mean only "receipt by the claimant's representative" renders "a meaningless exercise" the EEOC's practice of notifying the claimant personally, a practice codified in EEOC regulations, see 29 CFR 3.23(a) (1990). Actually, notifying both the claimant and his representative makes sense regardless of which notice begins the ticking of the limitations clock. Dual notification ensures that all persons concerned with the progress of the action are apprised of important developments. Cf. However, a claimant's representative before the *102 EEOC will not necessarily also represent the claimant in the ensuing civil suit; indeed, the representative in the administrative proceedings need |
Justice Burger | 1,975 | 12 | dissenting | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | This case, like Herring v. New York, post, p. 853, announced today, is another example of the judicial tendency to constitutionalize what is thought "good." That effort fails on its own terms here, because there is nothing desirable or useful in permitting every accused person, even the most uneducated and inexperienced, to insist upon conducting his own defense to criminal charges.[1] Moreover, there is no constitutional basis for *837 the Court's holding, and it can only add to the problems of an already malfunctioning criminal justice system. I therefore dissent. I The most striking feature of the Court's opinion is that it devotes so little discussion to the matter which it concedes is the core of the decision, that is, discerning an independent basis in the Constitution for the supposed right to represent oneself in a criminal trial.[2] See ante, at 818-821, and n. Its ultimate assertion that such a right is tucked between the lines of the Sixth Amendment is contradicted by the Amendment's language and its consistent judicial interpretation. As the Court seems to recognize, ante, at 820, the conclusion that the rights guaranteed by the Sixth Amendment are "personal" to an accused reflects nothing more than the obvious fact that it is he who is on trial and therefore has need of a defense.[3] But neither that nearly *838 trivial proposition nor the language of the Amendment, which speaks in uniformly mandatory terms, leads to the further conclusion that the right to counsel is merely supplementary and may be dispensed with at the whim of the accused. Rather, this Court's decisions have consistently included the right to counsel as an integral part of the bundle making up the larger "right to a defense as we know it." For example, in In re Oliver, the Court reversed a summary contempt conviction at the hands of a "one-man grand jury," and had this to say: "We hold that failure to afford the petitioner a reasonable opportunity to defend himself against the charge of false and evasive swearing was a denial of due process of law. A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defensea right to his day in courtare basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel." See also ; The reason for this hardly requires explanation. The fact of the matter is that in all but an extraordinarily small number of cases an accused |
Justice Burger | 1,975 | 12 | dissenting | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | all but an extraordinarily small number of cases an accused will lose whatever defense he may have if he undertakes to conduct the trial himself. The Court's opinion in puts the point eloquently: "Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may *839 be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect." Obviously, these considerations do not vary depending upon whether the accused actively desires to be represented by counsel or wishes to proceed pro se. Nor is it accurate to suggest, as the Court seems to later in its opinion, that the quality of his representation at trial is a matter with which only the accused is legitimately concerned. See ante, at 834. Although we have adopted an adversary system of criminal justice, see the prosecution is more than an ordinary litigant, and the trial judge is not simply an automaton who insures that technical rules are adhered to. Both are charged with the duty of insuring that justice, in the broadest sense of that term, is achieved in every criminal trial. See ; That goal is ill-served, and the integrity of and public confidence in the system are undermined, when an easy conviction is obtained due to the defendant's ill-advised decision to waive counsel. The damage thus inflicted is not mitigated by the lame explanation that the defendant simply availed himself of the "freedom" "to go to jail under his own banner" United States ex rel. *840 The system of criminal justice should not be available as an instrument of self-destruction. In short, both the "spirit and the logic" of the Sixth Amendment are that every person accused of crime shall receive the fullest possible defense; in the vast majority of cases this command can be honored only by means of |
Justice Burger | 1,975 | 12 | dissenting | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | cases this command can be honored only by means of the expressly guaranteed right to counsel, and the trial judge is in the best position to determine whether the accused is capable of conducting his defense. True freedom of choice and society's interest in seeing that justice is achieved can be vindicated only if the trial court retains discretion to reject any attempted waiver of counsel and insist that the accused be tried according to the Constitution. This discretion is as critical an element of basic fairness as a trial judge's discretion to decline to accept a plea of guilty. See II The Court's attempt to support its result by collecting dicta from prior decisions is no more persuasive than its analysis of the Sixth Amendment. Considered in context, the cases upon which the Court relies to "beat its path" either lead it nowhere or point in precisely the opposite direction. In and the defendants had competently waived counsel but later sought to renounce actions taken by them while proceeding pro se. In both cases this Court upheld the convictions, holding that neither an uncounseled waiver of jury trial nor an uncounseled guilty plea is inherently defective under the Constitution. The language which the Court so carefully excises from those opinions relates, not to an affirmative right of self-representation, but to *841 the consequences of waiver.[4] In Adams, for example, Mr. Justice Frankfurter was careful to point out that his reference to a defendant's "correlative right to dispense with a lawyer's help" meant only that "[h]e may waive his Constitutional right to assistance of counsel." See United But, as the Court recognizes, the power to waive a constitutional right does not carry with it the right to insist upon its opposite. Similarly, in Carter the Court's opinion observed that the Constitution "does not require that under all circumstances counsel be forced upon a defendant," citing -175 I, for one, find this statement impossible to square with the Court's present holding that an accused is absolutely entitled to dispense with a lawyer's help under all conditions. Thus, although Adams and Carter support the Court's conclusion that a defendant who represents himself may not thereafter disaffirm his deliberate trial decisions, see ante, at 834-835, n. 46, they provide it no comfort regarding the primary issue in this case.[5] *842 Far more nearly in point is where this Court held that, although the courts of appeals possess the power to command that a prisoner be produced to argue his own appeal, the exercise of that power is a matter of sound judicial discretion. |
Justice Burger | 1,975 | 12 | dissenting | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | of that power is a matter of sound judicial discretion. An examination of the whole of the Court's reasoning on this point is instructive: "The discretionary nature of the power in question grows out of the fact that a prisoner has no absolute right to argue his own appeal or even to be present at the proceedings in an appellate court. The absence of that right is in sharp contrast to his constitutional prerogative of being present in person at each significant stage of a felony prosecution, and to his recognized privilege of conducting his own defense at the trial. Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. Among those so limited is the otherwise unqualified right given by 272 of the Judicial Code, 28 U.S. C. 394 [now 1654], to parties in all the courts of the United States to `plead and manage their own causes personally.' " It barely requires emphasis that this passage contrasts the "constitutional prerogative" to be present at trial with the "recognized privilege" of self-representation, and strongly implies that the latter arises only from the federal statute. It is difficult to imagine a position less consistent with than that taken by the Court today. *843 The Court of Appeals cases relied upon by the Court are likewise dubious authority for its views. Only one of those cases, United even attempted a reasoned analysis of the issue, and the decision in that case was largely based upon the misreading of Adams and Price which the Court perpetuates in its opinion today. See In every other case cited ante, at 817, the Courts of Appeals assumed that the right of self-representation was constitutionally based but found that the right had not been violated and affirmed the conviction under review. It is highly questionable whether such holdings would even establish the law of the Circuits from which they came. In short, what the Court represents as a well-traveled road is in reality a constitutional trail which it is blazing for the first time today, one that has not even been hinted at in our previous decisions. Far from an interpretation of the Sixth Amendment, it is a perversion of the provision to which we gave full meaning in and III Like MR. JUSTICE BLACKMUN, I hesitate to participate in the Court's attempt to use history to take it where legal analysis cannot. Piecing together shreds of English legal history and early state constitutional and statutory provisions, without a full elaboration of |
Justice Burger | 1,975 | 12 | dissenting | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | state constitutional and statutory provisions, without a full elaboration of the context in which they occurred or any evidence that they were relied upon by the drafters of our Federal Constitution, creates more questions than it answers and hardly provides the firm foundation upon which the creation of new constitutional rights should rest. We are well reminded that this Court once employed an exhaustive analysis of English and colonial practices regarding the *844 right to counsel to justify the conclusion that it was fundamental to a fair trial and, less than 10 years later, used essentially the same material to conclude that it was not. Compare 2 U. S., at 60-65, with As if to illustrate this point, the single historical fact cited by the Court which would appear truly relevant to ascertaining the meaning of the Sixth Amendment proves too much. As the Court points out, ante, at 8, 35 of the Judiciary Act of 1789 provided a statutory right to self-representation in federal criminal trials. The text of the Sixth Amendment, which expressly provides only for a right to counsel, was proposed the day after the Judiciary Act was signed. It can hardly be suggested that the Members of the Congress of 1789, then few in number, were unfamiliar with the Amendment's carefully structured language, which had been under discussion since the 17 Constitutional Convention. And it would be most remarkable to suggest, had the right to conduct one's own defense been considered so critical as to require constitutional protection, that it would have been left to implication. Rather, under traditional canons of construction, inclusion of the right in the Judiciary Act and its omission from the constitutional amendment drafted at the same time by many of the same men, supports the conclusion that the omission was intentional. There is no way to reconcile the idea that the Sixth Amendment impliedly guaranteed the right of an accused to conduct his own defense with the contemporaneous action of the Congress in passing a statute explicitly giving that right. If the Sixth Amendment created a right to self-representation it was unnecessary for Congress to enact any statute on the subject at all. *845 In this case, therefore, history ought to lead judges to conclude that the Constitution leaves to the judgment of legislatures, and the flexible process of statutory amendment, the question whether criminal defendants should be permitted to conduct their trials pro se. See And the fact that we have not hinted at a contrary view for 185 years is surely entitled to some weight in the scales.[6] Cf. |
Justice Burger | 1,975 | 12 | dissenting | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | is surely entitled to some weight in the scales.[6] Cf. IV Society has the right to expect that, when courts find new rights implied in the Constitution, their potential effect upon the resources of our criminal justice system will be considered. However, such considerations are conspicuously absent from the Court's opinion in this case. It hardly needs repeating that courts at all levels are already handicapped by the unsupplied demand for competent advocates, with the result that it often takes far longer to complete a given case than experienced counsel would require. If we were to assume that there will be widespread exercise of the newly discovered constitutional right to self-representation, it would almost certainly follow that there will be added congestion in the courts and that the quality of justice will suffer. Moreover, the Court blandly assumes that once an accused has elected to defend himself he will be bound by his choice and not be heard to complain of it later. Ante, at 834-835, n. 46. This assumption ignores the role of appellate review, for the reported cases are replete with instances of a convicted defendant being relieved of a *846 deliberate decision even when made with the advice of counsel. See It is totally unrealistic, therefore, to suggest that an accused will always be held to the consequences of a decision to conduct his own defense. Unless, as may be the case, most persons accused of crime have more wit than to insist upon the dubious benefit that the Court confers today, we can expect that many expensive and good-faith prosecutions will be nullified on appeal for reasons that trial courts are now deprived of the power to prevent.[7] MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. |
per_curiam | 1,974 | 200 | per_curiam | Eaton v. Tulsa | https://www.courtlistener.com/opinion/108991/eaton-v-tulsa/ | In answering a question on cross-examination at his trial, in the Municipal Court of Tulsa, Oklahoma, for violating a municipal ordinance, petitioner referred to an alleged assailant as "chicken shit." In consequence he was prosecuted and convicted under an information that charged him with "direct contempt," in violation of another Tulsa ordinance, "by his insolent behavior during open court and in the presence of [the judge], *698 to wit: by using the language `chicken-shit'" The Oklahoma Court of Criminal Appeals, in an unreported order and opinion, affirmed. This single isolated usage of street vernacular, not directed at the judge or any officer of the court, cannot constitutionally support the conviction of criminal contempt. "The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice." In using the expletive in answering the question on cross-examination "[i]t is not charged that [petitioner] here disobeyed any valid court order, talked loudly, acted boisterously, or attempted to prevent the judge or any other officer of the court from carrying on his court duties." ; see also In re Little, In the circumstances, the use of the expletive thus cannot be held to "constitute an imminent. threat to the administration of justice." In affirming, however, the Court of Criminal Appeals rejected petitioner's contention that the conviction must be taken as resting solely on the use of the expletive. Rather, that court concluded from its examination of the trial record that, in addition to the use of the expletive, petitioner made "discourteous responses" to the trial judge. The court therefore held that the conviction should be affirmed because "[c]oupling defendant's expletive with the discourteous responses, it is this Court's opinion there was sufficient evidence upon which the trial court could find defendant was in direct contempt of court." (Emphasis supplied.) However, the question is not upon what evidence the trial judge could find petitioner guilty but upon what evidence the trial judge did find petitioner guilty. There *699 is no transcript of the contempt proceeding since the proceeding was not stenographically recorded. The trial judge did, however, enter a "Judgment and Sentence," and we read that document clearly to establish that the trial judge rested the conviction upon the use of the expletive only. For the single charge of "insolent behavior" specified in the information was "to wit: by using the language `chicken-shit'" and the Judgment and Sentence, referring expressly to the information, records that petitioner was "duly and legally |
Justice Blackmun | 1,979 | 11 | majority | Thor Power Tool Co. v. Commissioner | https://www.courtlistener.com/opinion/109974/thor-power-tool-co-v-commissioner/ | This case, as it comes to us, presents two federal income tax issues. One has to do with inventory accounting. The other relates to a bad-debt reserve. The Inventory Issue. In 1964, petitioner Thor Power Tool (hereinafter sometimes referred to as the taxpayer), in accord with "generally accepted accounting principles," wrote down what it regarded as excess inventory to Thor's own estimate of the net realizable value of the excess goods. Despite this write-down, Thor continued to hold the goods for sale at original prices. It offset the write-down against 1964 sales and thereby produced a net operating loss for that year; it then asserted that loss as a carryback to 1963 under 172 of the Internal Revenue Code of 1954, 26 U.S. C. 172. The Commissioner of Internal Revenue, maintaining that the write-down did not serve to reflect income clearly for tax purposes, disallowed the offset and the carryback. The Bad-Debt Issue. In 1965, the taxpayer added to its reserve for bad debts and asserted as a deduction, under 166 of the Code, 26 U.S. C. 166 a sum that presupposed a substantially higher charge-off rate than Thor had experienced in immediately preceding years. The Commissioner ruled that the addition was excessive, and determined, pursuant to a formula based on the taxpayer's past experience, *525 what he regarded as a lesser but "reasonable" amount to be added to Thor's reserve. On the taxpayer's petition for redetermination, the Tax in an unreviewed decision by Judge Goffe, upheld the Commissioner's exercise of discretion in both respects. As a consequence, and also because of other adjustments not at issue here, the court redetermined, App. 264, the following deficiencies in Thor's federal income tax: calendar year 1963$494,055.99 calendar year 1965$59,287.48 The United States of Appeals for the Seventh affirmed. We granted certiorari, to consider these important and recurring income tax accounting issues. I The Inventory Issue A Taxpayer is a Delaware corporation with principal place of business in Illinois. It manufactures hand-held power tools, parts and accessories, and rubber products. At its various plants and service branches, Thor maintains inventories of raw materials, work-in-process, finished parts and accessories, and completed tools. At all times relevant, Thor has used, both for financial accounting and for income tax purposes, the "lower of cost or market" method of valuing inventories. App. 23-24. See Treas. Reg. 1.471-2 26 CFR 1.471-2 Thor's tools typically contain from 50 to 200 parts, each of which taxpayer stocks to meet demand for replacements. Because of the difficulty, at the time of manufacture, of predicting the future demand for various parts, taxpayer |
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