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Justice Stevens | 1,987 | 16 | dissenting | Anderson v. Creighton | https://www.courtlistener.com/opinion/111953/anderson-v-creighton/ | First, the probable-cause standard is so vague that it is unfair to expect law enforcement officers to comply with it;[16] second, the reasons for not saddling high government officials with the burdens of litigation apply equally to law enforcement officers;[17] third, there is nothing new in the Court's decision today because "we have previously extended qualified immunity to officials who were alleged to have violated the Fourth Amendment," ante, at 643, and finally, holding police officers to the constitutional standard of reasonableness would "unduly inhibit officials in the discharge of their duties," ante, at 638. None of these arguments on behalf of a double standard of reasonableness is persuasive to me. Unquestionably, there is, and always has been, some uncertainty in the application of the probable-cause standard to particular cases. It is nevertheless a standard that has survived *661 the test of time both in England and in America. See 2 M. Hale, History of the Pleas of the Crown 150 (1847); J. Jolowicz & T. Lewis, Winfield on Tort 579-580 ; Weber, The Birth of Probable Cause, Except in cases in which an officer relies on the fact that a magistrate has issued a warrant, there is no reason to believe that the Court's newly minted standard will provide any more certainty than the constitutional standard. Indeed, it is worth emphasizing that the probable-cause standard itself recognizes the fair leeway that law enforcement officers must have in carrying out their dangerous work. The concept of probable cause leaves room for mistakes, provided always that they are mistakes that could have been made by a reasonable officer. See 1 W. LaFave, Search and Seizure 567 (2d ed. 1987). I find nothing in this Court's new standard that provides the officer with any more guidance than the statement in our opinion in almost four decades ago: "These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy |
Justice Stevens | 1,987 | 16 | dissenting | Anderson v. Creighton | https://www.courtlistener.com/opinion/111953/anderson-v-creighton/ | less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice." The suggestion that every law enforcement officer should be given the same measure of immunity as a Cabinet officer *662 or a senior aide to the President of the United States is not compelling. Testifying in court is a routine part of an officer's job; his or her participation in litigation does not occasion nearly as great a disruption of everyday duties as it would with those of a senior government official. Moreover, the political constraints that deter high government officials from violating the Constitution[18] have only slight, if any, application to police officers, and may actually lead to more, rather than less, vigorous enforcement activity. It is thus quite wrong simply to assume that the considerations that justified the decision in v. Fitzgerald also justify an equally broad rule of immunity for police officers. As we reasoned in : "When a court evaluates police conduct relating to an arrest its guideline is `good faith and probable cause.' In the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices whether the formulation of policy, of legislation, or budgets, or of day-to-day decisions is virtually infinite. [S]ince the options which a chief executive and his principal subordinates must consider are far broader and far more subtle than those made by officials with less responsibility, the range of discretion must be comparably broad." *663 The Court supports its assertion that we have previously extended qualified immunity to officials who are alleged to have violated the Fourth Amendment, ante, at 643, by reference to two cases: which involved a search pursuant to a warrant, and in which the plaintiff relied on a rule of law that was not clearly established at the time of the alleged wrong. Neither of these cases supports the proposition that a warrantless search should be evaluated under a standard less strict than the constitutional standard of reasonableness.[19] Despite its protestations to the contrary, the Court makes new law today. The argument that police officers need special immunity to encourage them to take vigorous enforcement action when they are uncertain about their right to make a forcible entry into a private home has already been accepted in our jurisprudence. We have held that the police act reasonably in entering a house when they have probable cause to believe a fugitive is in the house and exigent circumstances make it impracticable to obtain a warrant. This interpretation of the |
Justice Stevens | 1,987 | 16 | dissenting | Anderson v. Creighton | https://www.courtlistener.com/opinion/111953/anderson-v-creighton/ | it impracticable to obtain a warrant. This interpretation of the Fourth Amendment allows room for police intrusion, without a warrant, on the privacy of even innocent citizens. In we held that police officers would not be liable in an action brought under 42 U.S. C. 1983 "if they acted in good faith and with probable cause" We explained: "Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence *664 of the suspect is later proved. Restatement, Second, Torts 121 (1965); 1 Harper & James, The Law of Torts 3.18, at 277-278 (1956); A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does." Thus, until now the Court has not found intolerable the use of a probable-cause standard to protect the police officer from exposure to liability simply because his reasonable conduct is subsequently shown to have been mistaken. Today, however, the Court counts the law enforcement interest twice[20] and the individual's privacy interest only once. The Court's double-counting approach reflects understandable sympathy for the plight of the officer and an overriding interest in unfettered law enforcement. It ascribes a far lesser importance to the privacy interest of innocent citizens than did the Framers of the Fourth Amendment. The importance of that interest and the possible magnitude of its invasion are both illustrated by the facts of this case.[21] The *665 home of an innocent family was invaded by several officers without a warrant, without the owner's consent, with a substantial show of force, and with blunt expressions of disrespect for the law and for the rights of the family members. *666 As the case comes to us, we must assume that the intrusion violated the Fourth Amendment. See Proceeding on that assumption, I see no reason why the family's interest in the security of its own home should be accorded a lesser weight than the Government's interest in carrying out an invasion that was unlawful.[22] Arguably, if the Government considers it important not to discourage such conduct, it should provide indemnity to its officers. Preferably, however, it should furnish the kind of training for its law enforcement agents that would entirely eliminate the necessity for the Court to distinguish between the conduct that a competent officer considers reasonable and the conduct that the Constitution deems reasonable.[23]*667 "Federal officials will not be liable for mere mistakes in judgment, whether |
Justice Stevens | 1,987 | 16 | dissenting | Anderson v. Creighton | https://www.courtlistener.com/opinion/111953/anderson-v-creighton/ | will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law." On the other hand, surely an innocent family should not bear the entire risk that a trial court, with the benefit of hindsight, will find that a federal agent reasonably believed that he could break into their home equipped with force and arms but without probable cause or a warrant. IV The Court was entirely faithful to the traditions that have been embedded in our law since the adoption of the Bill of Rights when it wrote: "The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home a zone that finds its roots in clear and specific constitutional terms: `The right of the people to be secure in their *668. houses shall not be violated.' That language unequivocally establishes the proposition that `[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' [1961]. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant."[24] The warrant requirement safeguards this bedrock principle of the Fourth Amendment, while the immunity bestowed on a police officer who acts with probable cause permits him to do his job free of constant fear of monetary liability. The Court rests its doctrinally flawed opinion upon a double standard of reasonableness which unjustifiably and unnecessarily upsets the delicate balance between respect for individual privacy and protection of the public servants who enforce our laws. I respectfully dissent. |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | This is an important decision for interpreting the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), et seq. As the Court's careful opinion illustrates, the case is difficult. In my respectful view, however, its decision is incorrect. At the outset, here is a summary of my primary concerns with the majority opinion: To reach its conclusion the Court must weaken the reasoning and diminish the force of the rule against the retroactivity of statutes, a rule of fairness based on respect for expectations; the Court abruptly tells foreign nations this important principle of American law is unavailable to them in our courts; this is so despite the fact that treaties and agreements on the subject of expropriation have been reached against a background of the immunity principles the Court now rejects; as if to mitigate its harsh result, the Court adds that the Executive Branch has inherent power to intervene in cases like this; this, however, is inconsistent with the congressional purpose and design of the FSIA; the suggestion reintroduces, to an even greater degree than before, the same influences the FSIA sought to eliminate from sovereign immunity ; the Court's reasoning implies a problematic answer to a separation-of-powers question that the case does not present and that should be avoided; the ultimate effect of the Court's inviting foreign nations to pressure the Executive is to risk inconsistent results for private citizens who sue, based on changes and nuances in foreign affairs, and to add prospective instability to the most sensitive area of foreign relations. *716 The majority's treatment of our retroactivity principles, its rejection of the considered congressional and Executive judgment behind the FSIA, and its questionable constitutional implications require this respectful dissent. I The FSIA's passage followed 10 years of academic and legislative effort to establish a consistent framework for the determination of sovereign immunity when foreign nations are haled into our courts. See H. R. Rep. No. 94-1487, p. 9 (1976) (hereinafter H. R. Rep.). As we explained in B. V. v. Central Bank of Nigeria, the preceding 30 years had been marked by an emerging or common-law regime in which courts followed the principles set out in the letter from Jack B. Tate, Acting Legal Adviser, U.S. Dept. of State, to Acting U.S. Attorney General Philip B. Perlman (May 19, 1952), reprinted in 26 Dept. State Bull. 984-985 (1952) (hereinafter Tate Letter or Letter). See ante, at 689-690. Even after the Tate Letter, however, courts continued to defer to the Executive's case-specific views on whether immunity was due. See This regime created "considerable uncertainty," H. |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | immunity was due. See This regime created "considerable uncertainty," H. R. Rep., at 9, and a "troublesome" inconsistency in immunity The inconsistency was the predictable result of changes in administrations and shifting political pressures. Congress acted to bring order to this legal uncertainty: "[U]niformity in decision is desirable since a disparate treatment of cases involving foreign governments may have adverse foreign relations consequences." H. R. Rep., at 13. See Congress placed even greater emphasis on the implications that inconsistency had for our citizens, concluding that the Act was needed to "reduc[e] the foreign policy implications of immunity and assur[e] litigants that these often crucial decisions are made on purely legal grounds and under procedures that insure due process." *717 There is no dispute that Congress enacted the FSIA to answer these problems, for the Act's purpose is codified along with its governing provisions. See To this end, the Act provides specific principles by which courts are to decide claims for foreign sovereign immunity. See So structured, the Act sought to implement its objectives by removing the Executive influence from the standard determination of sovereign immunity questions. See H. R. Rep., (under the FSIA "U. S. immunity practice would conform to the practice in virtually every other countrywhere sovereign immunity decisions are made exclusively by the courts and not by a foreign affairs agency"). II A The question is whether the courts, by applying the statutory principles the FSIA announced, will impose a retroactive effect in a case involving conduct that occurred over 50 years ago, and nearly 30 years before the FSIA's enactment. It is our general rule not to apply a statute if its application will impose a retroactive effect on the litigants. See This is not a rule announced for the first time in ; it is an old and well-established principle. "It is a principle in the English common law, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect." ; see The principle stems from fundamental fairness concerns. See *718 The single acknowledged exception to the rule against retroactivity is when the statute itself, by a clear statement, requires it. See )). The FSIA does not meet this exception because it contains no clear statement requiring retroactive effect. The majority concedes this at the outset of its analysis, saying the text of the FSIA "falls short of an `expres[s] prescri[ption of] the statute's proper reach.'" Ante, at 694 (alterations in original) (quoting ). In an awkward twist, however, the Court maintains that the "[Act's] language |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | awkward twist, however, the Court maintains that the "[Act's] language is unambiguous," ante, at 697, and that it "suggests Congress intended courts to resolve all [foreign sovereign immunity] claims `in conformity with the principles set forth' in the Act, regardless of when the underlying conduct occurred," ante, at 697-698. If the statute were in fact this clear, the exception would apply. Nothing in our cases suggests that statutory language might be "unambiguous," yet still "not sufficient to satisfy 's `express command.'" Ante, at 697. If the Court really thinks the statute is unambiguous, it should rest on that premise. In any event, the Court's suggestion that the FSIA does command retroactive application unambiguously is not right. The Court's interpretation of 1602 takes the pertinent "henceforth" language in isolation. See ante, at 697-698. When that language instead is read in the context of the full section, it is quite clear that it does not speak to retroactivity. The section is as follows: "Congress finds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction *719 of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this [statute]." The first two sentences in 1602 describe the Act's intention to replace the former framework for sovereign immunity with a new court-controlled regime. The third sentence, which contains the "henceforth" phrase, serves to make clear that the new regime replaces the old regime from that point on. Compare 1602 ("immunity [claims] should henceforth be decided by [American] courts in conformity with the [Act's] principles") with Webster's Third New International Dictionary 1056 (1976) (defining "henceforth" as "from this point on"). That does not address the topic of retroactivity. If one of the Act's principles were that "the Act shall govern all claims, whenever filed, and involving conduct that occurred whenever in time," the provision would command retroactive application. A statement like this, however, cannot be found in the FSIA. The statute says only that it must be applied "henceforth." That says no more than that the principles immediately apply from the point of |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | than that the principles immediately apply from the point of the Act's effective date on, the same type of command that rejected as grounds for an express command of retroactive application. Cf. As JUSTICE STEVENS noted for the Court in that case: "A statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date." *720 In order for the term "henceforth" to command retroactivity, it would have to be accompanied by reference to specific proceedings or claims (i. e., specific as to when they were commenced, if they are pending, or when they were determined). To confirm this one need only compare the FSIA's isolated use of the term "henceforth" to those statutory provisions that have been interpreted to require retroactive effect. See, e. g., ; See -256 ; n. 8 (citing the following example of a provision containing an express command for retroactive applications: "`[These] sections shall apply to all proceedings pending on or commenced after the date of the enactment of this Act'"). On its own, "henceforth" does not speak with the precision and clarity necessary to command retroactivity. JUSTICE BREYER's suggestion that Congress' intention as to retroactivity can be measured by the fact that the FSIA does not bear the same language as some other statutes and conventions Congress has authored does not change the analysis. See ante, 08 (concurring opinion). To accept that interpretive approach is to abandon our usual insistence on a clear statement. B Because the FSIA does not exempt itself from the usual rule against retroactivity with a clear statement, our cases require that we consider the character of the statute, and of *721 the rights and liabilities it creates, to determine if its application will impose retroactive effect on the parties. See 511 U.S., ("When the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed"). If it does, we must refuse to apply it in that manner. The essential character of the FSIA is jurisdictional. The conclusion that it allows (or denies) jurisdiction follows from the language of the statute. See 1602 (the Act involves "the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts"). By denying immunity in certain classes of cases those in the |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | denying immunity in certain classes of cases those in the Act's succeeding provisionsthe FSIA, in effect, grants jurisdiction over those disputes. The Court as much as admits all this, saying that "the FSIA opens United States courts to plaintiffs with pre-existing claims against foreign states." Ante, at 695. The statute's mechanism of establishing jurisdictional effects (i. e., either allowing jurisdiction or denying it) has important implications for the retroactivity question. On the one hand, jurisdictional statutes, as a class, tend not to impose retroactive effect. As the Court explained in : "Application of a new jurisdictional rule usually `takes away no substantive right but simply changes the tribunal that is to hear the case.' Present law normally governs in such situations because jurisdictional statutes `speak to the power of the court rather than to the rights or obligations of the parties.'" 511 U.S., at 4 On the other hand, there is a subclass of statutes that, though jurisdictional, do impose retroactive effect. These are statutes that confer jurisdiction where before there was none. That is, they altogether create jurisdiction. We explained the distinction in a unanimous opinion in Hughes *722 Aircraft : "Statutes merely addressing which court shall have jurisdiction to entertain a particular cause of action can fairly be said merely to regulate the secondary conduct of litigation and not the underlying primary conduct of the parties. Such statutes affect only where a suit may be brought, not whether it may be brought at all. The amendment, however, does not merely allocate jurisdiction among forums. Rather, it creates jurisdiction where none previously existed; it thus speaks not just to the power of a particular court but to the substantive rights of the parties as well. Such a statute, even though phrased in `jurisdictional' terms, is as much subject to our presumption against retroactivity as any other." The principles of Hughes Aircraft establish that retroactivity analysis of a jurisdictional statute is incomplete unless it asks whether the provision confers jurisdiction where there was none before. Again, this is common ground between the majority and this dissent. The majority recognizes the import of Hughes Aircraft's holding and affirms that courts may not apply statutes that confer jurisdiction over a cause of action for which no jurisdiction existed when the sued-upon conduct occurred. "Such statutes," the majority acknowledges, "`even though phrased in "jurisdictional" terms, [are] as much subject to our presumption against retroactivity as any other[s].'" Ante, at 695 (alterations in original) (quoting Hughes Aircraft, at ). If the FSIA creates new jurisdiction, Hughes Aircraft controls and instructs us not to apply |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | jurisdiction, Hughes Aircraft controls and instructs us not to apply it to cases involving preenactment conduct. On the other hand, if the FSIA did not create new jurisdictionincluding where it in fact stripped previously existing jurisdiction from the courtswe may apply its statutory terms without fear of working any retroactive *723 effect. See ("Although in Hughes Aircraft we recently rejected a presumption favoring retroactivity for jurisdiction-creating statutes, nothing in Hughes disparaged our longstanding practice of applying jurisdiction-ousting statutes to pending cases" (citation omitted)). C To this point, then, I am in agreement with the Court on certain relevant pointsthe FSIA does not contain a clear retroactivity command; the statute is jurisdictional in nature; and jurisdictional statutes impose retroactive effect when they confer jurisdiction where none before existed. Now, however, our paths diverge. For though the majority concedes these critical issues, it does not address the question to which they lead: Does the FSIA confer jurisdiction where before there was none? Rather than asking that obvious question, the Court retreats to non sequitur. After this recitation of the Hughes Aircraft rule and with no causal reasoning from it, the Court concludes: "Thus, 's default rule does not definitively resolve this case." Ante, at 696. It requires a few steps to undertake the analysis the Court omits, but in the end the proper conclusion is that, assuming the court on remand found immunity existed under the pre-FSIA regime, the statute does create jurisdiction where there was none before. The analysis begins with 1948, when the conduct occurred. See in turn quoting at 0)). The parties' expectations were then formed by an emerging or common-law framework *724 governing claims of foreign sovereign immunity in American courts. Parties in 1948 would have expected courts to apply this general law of foreign sovereign immunity in the future, and so to apply whatever rules the courts "discovered" (if one subscribes to Blackstone's view of common law) or "created" (if one subscribes to Holmes') in the intervening time between the party's conduct and its being subject to suit. Compare 1 W. Blackstone, Commentaries *68 ("[T]he only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath been always the custom to observe it"), with Holmes, The Path of the Law, To conduct the analysis, then, we should ask how the jurisdictional effects the FSIA creates compare to those that would govern were the prior regime still in force. There is little dispute that in 1948 foreign sovereigns, and all other litigants, understood foreign sovereign immunity law |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | sovereigns, and all other litigants, understood foreign sovereign immunity law to support three valid expectations. (1) Nations could expect that a baseline rule of sovereign immunity would apply. (2) They could expect that if the Executive made a statement on the issue of sovereign immunity that would be controlling. And (3), they could expect that they would be able to petition the Executive for intervention on their behalf. See National City Bank of -361 ; (summing up the same principles). These three expectations were little different in 1976, before the FSIA was passed. The Tate Letter did announce the policy of restrictive foreign sovereign immunity, and this was an important doctrinal development. The policy, however, *725 was within the second expectation that the Executive could shape the framework for foreign sovereign immunity. Under the second category, a foreign sovereign would have expected its immunity to be controlled by such a statement. The Executive's post-Tate Letter practices and a statement by the Court confirm this is the correct way to understand both the operation of the general law of foreign relations and the expectations it built. After the Tate Letter's issuance, the Executive evaluated suits involving pre-Tate Letter conduct under the Letter's new standard when determining whether to submit suggestions of immunity to the courts. The Court, likewise, seems to have understood the Tate Letter to require this sort of application. In National City Bank of N.Y., the Court suggested that the Letter governed in a case involving pre-1952 conduct, though careful consideration of the question was unnecessary there. The governing weight the Tate Letter had as a statement of Executive policy does not detract from the third expectation foreign sovereigns continued to havethat they could petition the Executive for case-specific statements. Thus, in National City Bank of N.Y. the Court took note that the Government had not submitted a case-specific suggestion as to immunity. See Today, to measure a foreign sovereign's expectation of liability for conduct committed in 1948, the Court should apply the three discussed, interlocking principles of law, which the parties then expected. The Court of Appeals did not address the question in this necessary manner. Rather than determining how the jurisdictional result produced by the FSIA differs from the result a court would reach if it applied the legal principles that governed before the enactment of *726 the FSIA, the court instead asked what the Executive would have done in 1948. See That is not the appropriate way to measure Austria's expectations. It is an unmanageable inquiry; and it usurps the authority the Executive, as it is |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | and it usurps the authority the Executive, as it is constituted today, has under the pre-FSIA regime. In essence, the Court of Appeals wrongly assumed responsibility for the political question, rather than confining its judgment to the legal one. Answering the legal question, in contrast, requires applying the principles noted above: We assume a baseline of sovereign immunity and then look to see if there is any Executive statement on the sovereign immunity issue that displaces the presumption of immunity. There is, of course, at least one Executive statement on the issue that displaces the immunity presumption to some degree. It is the Tate Letter itself. By the Tate Letter the Executive established, as a general rule, that the doctrine of restrictive sovereign immunity would be followed. In general, the doctrine provided immunity for suits involving public acts and denied it for suits involving commercial or private acts. 26 Dept. State Bull., at 984. These principles control, as the Executive has taken no case-specific position in the instant matter. If petitioners' conduct would not be subject to suit under the Tate Letter principles, the FSIA cannot alter that result without imposing retroactive effect, creating new jurisdiction in American courts. Petitioners and the United States, appearing as amicus curiae, argue that the Tate Letter doctrine would grant immunity (i. e., deny jurisdiction) for suits involving expropriation. They say the Tate Letter rules contain no principle that parallels 1605(a)(3), the FSIA's expropriation exception on which respondent relies to establish jurisdiction: *7 "The expropriation exception was a new development in the doctrine of sovereign immunity when the FSIA was enacted. [I]n Victory Transport cert. denied, (1)[,] [t]he court explained that, even under the restrictive theory of sovereign immunity, foreign states continued to enjoy immunity with respect to suits respecting the `nationalization' of property." Brief for United States as Amicus Curiae 12. This argument may be correct in the end; but, it should be noted, the petitioners' reliance on Victory Transport is not conclusive. Victory Transport does not say that nationalizations of property are per se exempt under the restrictive theory of sovereign immunity. The Court of Appeals for the Second Circuit said: "The purpose of the restrictive theory of sovereign immunity is to try to accommodate the interest of individuals doing business with foreign governments in having their legal rights determined by the courts, with the interest of foreign governments in being free to perform certain political acts without undergoing the embarrassment or hindrance of defending the propriety of such acts before foreign courts. Such [immune] acts are generally limited to the following |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | courts. Such [immune] acts are generally limited to the following categories: "(2) legislative acts, such as nationalization." at at 360 As the court's language makes clear, the pertinent category of exempt action is legislative action, of which nationalization was but one example. The expropriation alleged in this case was not a legislative act. Petitioners can still prevail by showing that there would have been no jurisdiction under the pre-FSIA governing *728 principles. That could be established by showing that the conduct at issue was considered a public act under those principles and that the principles contain no expropriation exception similar to that codified in 1605(a)(3), which would deny otherwise available immunity. We need not, and ought not, resolve the question in the first instance. Neither the District Court nor the Court of Appeals has yet addressed it. The issue is complex and would benefit from more specific briefing, arguments, and consideration of the international law sources bearing upon the scope of immunity the Tate Letter announced. I would vacate the judgment of the Court of Appeals and remand for further proceedings to consider the question. D By declaring that this statute is not subject to the usual presumption against retroactivity, and so avoiding the critical issue in this case, the Court puts the force and the validity of our precedent in Hughes Aircraft into serious question. The Court, in rejecting the usual analysis, states three rationales to justify its approach. The arguments neither distinguish this case from Hughes Aircraft nor suffice to explain rejecting the rule against retroactivity. The Court suggests the retroactivity analysis should not apply because the rights at issue are not private rights. See ante, at 696 ("[The] antiretroactivity presumption, while not strictly confined to cases involving private rights, is most helpful in that context"). This is unconvincing. First, the language from on which the Court relies undercuts its position. It confirms, in clear terms, that retroactivity presumptions work equally in favor of governments. Per JUSTICE STEVENS, the Court said: "While the great majority of our decisions relying upon the antiretroactivity presumption have involved intervening statutes burdening private parties, we have applied the presumption in cases involving new monetary *729 obligations that fell only on the government." 511 U.S., at 1, n. 25. Even if 's reference to private rights could be read to establish that retroactivity analysis does not strictly protect governmentand I do not see how that is possible in light of the above-quoted languagethe passage refers to the Federal Government. If the distinction mattered for retroactivity purposes, presumably it would have been on the |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | for retroactivity purposes, presumably it would have been on the basis that Congress, by virtue of authoring the legislation, is itself fully capable of protecting the Federal Government from having its rights degraded by retroactive laws. Private parties, it might be said, do not have the same built-in assurance. Here, of course, the Federal Government is not a party; instead a foreign government is. Foreign governments are as vulnerable as private parties to the disruption caused by retroactive laws. Indeed, foreign sovereigns may have less recourse than private parties to prevent or remedy retroactive legislation, since they cannot hold Congress responsible through the election process. The Court's private-rights argument, therefore, does not sustain its departure from our usual presumption against retroactivity. The majority tries to justify departing from our usual principles in a second way. It argues that the purposes of foreign sovereign immunity are not concerned with allowing "foreign states and their instrumentalities to shape their conduct in reliance on the promise of future immunity." Ante, at 696. JUSTICE BREYER takes the suggestion further. He argues not that foreign sovereign immunity doctrine is not concerned with reliance interests but, even further, that in fact foreign sovereigns have no reliance interests in receiving immunity in our courts. See ante, 09-711. This reasoning overlooks the plain fact that there are reliance interests of vast importance involved, interests surely as important as those stemming from contract rights between two private parties. As the Executive has made *730 clear to us, these interests span a range of time after the conduct, even up to the present day. See Brief for United States as Amicus Curiae 8. For example, at stake may be pertinent treaty rights and international agreements intended to remedy the earlier conduct. These are matters in which the negotiating parties may have acted on a likely assumption of sovereign immunity, as defined and limited by pre-FSIA expectations: "[The] conduct at issue [has been] extensively addressed through treaties, agreements, and separate legislation that were all adopted against the background assumption [of the pre-FSIA foreign sovereign immunity regime]." Lurking in the Court's and JUSTICE BREYER'S contrary suggestions is the implication that the expectations of foreign powers are minor or infrequent. Surely that is not the case. By today's decision the Court opens foreign nations worldwide to vast and potential liability for expropriation claims in regards to conduct that occurred generations ago, including claims that have been the subject of international negotiation and agreement. There are, then, reliance interests of magnitude, which support the usual presumption against retroactivity. In addition, the statement that the |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | usual presumption against retroactivity. In addition, the statement that the purposes of foreign sovereign immunity have not much to do with the presumption against retroactivity carries little weight; the presumption against retroactivity has independent justification. The Court has noted this, saying that the purposes of the underlying substantive law are not conclusive of the retroactivity analysis. "It will frequently be true that retroactive application of a new statute would vindicate its purpose more fully. That consideration, however, is not sufficient to rebut the presumption." -286. As a result, diminished concerns of unfair surprise and upset expectationseven assuming they existeddo not displace the usual presumption. That is why in though "concerns of unfair surprise and upsetting expectations [were] attenuated in the case of intentional employment discrimination, *731 which ha[d] been unlawful for more than a generation," the Court concluded, nevertheless, that it could not give the statute retroactive effect. The Court, lastly, adds in a footnote that the "FSIA differs from the statutory amendment at issue in Hughes Aircraft" because in Hughes Aircraft the jurisdictional limitation attached directly to the cause of action and so ensured that suit could be brought only in accordance with the jurisdictional provision (and any changes to it). Ante, at 695, n. 15. With the FSIA, in contrast, the jurisdictional limitation is not attached to the cause of action. The result, the Court implies, is that even if a pre-FSIA jurisdictional bar applied in American courts, suit on the California cause of action might still have been able to have been brought in foreign courts, and such availability of suit would defeat retroactivity concerns. Ante, at 695-696, n. 15 ("The Act does not purport to limit foreign countries' decisions about what claims against which defendants their courts will entertain"); see ante, 03 (SCALIA, J., concurring). What is of concern in the retroactivity analysis that Hughes Aircraft sets out, however, is the internal integrity of American statutes, not of whether an American law allows suit where before none was allowed elsewhere in the world. This is unsurprising, as the task of canvassing what causes of action foreign countries might have allowed before a new jurisdictional regime made such suits viable in American courts would be a most difficult task to assign American courts. In the end, the majority turns away from our usual retroactivity analysis because "this [is a] sui generis context." Ante, at 696. Having created a new, extra exception that frees it from the usual analysis, it can conclude simply that the usual rule "does not control the outcome in this case." Ante, at 692. |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | not control the outcome in this case." Ante, at 692. The implications of this holding are not entirely clear, for the new exception does not rest on any apparent principle. *732 There is a stark contrast between the Court's analysis and that of the Courts of Appeals that have addressed the question. In this case the Court of Appeals for the Ninth Circuit, like every other Court of Appeals to have considered the question, concluded that the FSIA must be interpreted under the usual retroactivity principles, just like any other statute. See ; Carl Marks & ; The conclusion to which the sui generis rule leads the Court shows the rule lacks a principled basis: "[W]e think it more appropriate, absent contraindications, to defer to the most recent [decision by the political branches on the foreign sovereign immunity question] namely, the FSIA." Ante, at 696. The question, however, is not whether the FSIA governs, but how to interpret the FSIA. The Court seems to think the FSIA implicitly adopts a presumption of retroactivity, though our cases instruct just the opposite. "[I]n Hughes Aircraft we rejected a presumption favoring retroactivity for jurisdiction-creating statutes." Lindh, n. 3 JUSTICE BREYER would supplement the rationale for the Court's deciding the case outside the bounds of our usual mode of retroactivity analysis. He says the Court can take this path because sovereign immunity "is about a defendant's status at the time of suit, not about a defendant's conduct before the suit." Ante, 08. The argument is a variant of that made by respondent. See Brief for Respondent ("Dole Food controls the result in this case"). Respondent's argument fails, of course, because in this case the defendants' status at the time of suit is that of the sovereign, not that of private parties. That distinction alone makes misplaced reliance on Dole Food *733 (holding that a now-private corporation could not assert sovereign immunity in a suit involving events that occurred when the entity was owned by a foreign sovereign). JUSTICE BREYER's further reasoning, however, is unacceptable. When jurisdictional rules are at stake, status and conduct factors will at times intersect. Most assuredly, we would not disown the usual retroactivity principles in a case involving a status-based jurisdictional statute that creates jurisdiction over private litigants where before there was none simply because the creation of jurisdiction turned in part on the status of one of the litigants. JUSTICE BREYER's additional rationale, however, has this very implication. We should not ignore the statutory retroactivity analysis just because the parties and the Court have failed to consider it |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | the parties and the Court have failed to consider it before. See ante, 10 (BREYER, J., concurring) (relying on the fact that in the Court applied the FSIA to a contract that predated the Act). "`[T]his Court has never considered itself bound [by prior sub silentio holdings] when a subsequent case finally brings the jurisdictional issue before us.'" Reliance on the fact that the immunity principles were applied retroactively in the common-law context of the pre-FSIA regime is irrelevant. See ante, 09-710 (BREYER, J., concurring). This case concerns the retroactive effect of enacted statutory law, not of court decisions interpreting the common law. III Today's decision contains another proposition difficult to justify and that itself does considerable damage to the FSIA. Abandoning standard retroactivity principles, the Court attempts to compensate for the harsh results it reaches by inviting case-by-case intervention by the Executive. This does serious harm to the constitutional balance between the political branches. *734 The Court says that the Executive may make suggestions of immunity regarding FSIA and implies that courts should give such suggestions deference. See ante, 02 ("[S]hould the State Department choose to express its opinion on the implications of exercising jurisdiction over particular petitioners in connection with their alleged conduct, that opinion might well be entitled to deference as the considered judgment of the Executive" (footnote omitted)). That invitation would be justified if the Court recognized that the Executive's role was retrospective only, i.e., implicated only in suits involving preenactment conduct and only as a means for resolving the retroactivity analysis. The law that governed before the FSIA's enactment allowed unilateral Executive authority in that regard. The Court's rejection of the analysis, however, removes the possibility of that being the basis for the invitation. The Court instead reaches its conclusion about the Executive's role by reliance on the general constitutional principle that the Executive has a "`"vast share of responsibility for the conduct of our foreign relations."'" Ante, 02 ). This prospective constitutional conclusion, which the Court offers almost as an aside, has fundamental implications for the future of the statute and raises serious separation-of-powers concerns. The question the Court seems inclined to resolvecan the foreign affairs power of the Executive supersede a statutory scheme set forth by Congressis simply not presented by the facts of this case. We would confront the question only if the case involved postenactment conduct and if the Executive had filed a suggestion of immunity, which, by its insistence, superseded the statute's directive. Those circumstances would present a difficult question. Compare U. S. Const., Art. II, 2, with Art. I, |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | Compare U. S. Const., Art. II, 2, with Art. I, 1; 8, cls. 3, 9-11, 18; Art. III, 1; 2, cl. 1. See H. R. Rep., at 12 (setting out the constitutional authority on which Congress relied to *735 enact the FSIA). See generally International Bancorp, The separation-of-powers principles at stake implicate judicial independence, which is compromised by case-by-case, selective of jurisdiction by the Executive. The Court makes a serious mistake, in my view, to address the question when it is not presented. It magnifies this error by proceeding with so little explanation, particularly in light of the strong arguments against its conclusion. The Solicitor General, on behalf of the Executive, agrees that the statute "presents the sole basis for civil litigants to obtain jurisdiction over a foreign state in United States courts." Brief for United States as Amicus Curiae 1. This understanding is supported by the lack of textual support for the contrary position in the Act and by the majority's own assessment of the Act's purposes. The Court's abrupt announcement that the FSIA may well be subject to Executive override undermines the Act's central purpose and structure. As the Court acknowledges, before the Act, "immunity [had been thrown] into some disarray, as `foreign nations often placed diplomatic pressure on the State Department,' and political considerations sometimes led the Department to file `suggestions of immunity in cases where immunity would not have been available under the restrictive theory.'" Ante, at 690 (quoting ). See 16-717. Congress intended the FSIA to replace this old and unsatisfactory methodology of Executive decisionmaking. The President endorsed the objective in full, recommending the bill upon its introduction in Congress, H. R. Rep., at 6, and signing the bill into law upon its presentment. The majority's surprising constitutional conclusion *736 suggests that the FSIA accomplished none of these aims. The Court states that the statute's directives may well be short circuited by the sole directive of the Executive. The Court adds a disclaimer that it "express[es] no opinion on the question whether such deference should be granted [to the Executive] in cases covered by the FSIA." Ante, 02. The disclaimer, however, is inadequate to remedy the harm done by the invitation, for it is belied by the Court's own terms: Executive statements "suggesting that courts decline to exercise jurisdiction in particular cases implicating foreign sovereign immunity might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy." Ante, 01-702 (citing as an example a case in which Executive foreign policy superseded state law). Taking what the |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | which Executive foreign policy superseded state law). Taking what the Court says at face value, the Court does express an opinion on the question: Its opinion is that the Executive statement may well be entitled to deference, and so may well supersede federal law that gives courts jurisdiction. If, as it seems, the Court seeks to free the Executive from the dictates of enacted law because it fears that to do otherwise would consign some litigants to an unfair retroactive application of the law, it adds illogic to the illogic of its own creation. Only application of our traditional analysis guards properly against unfair retroactive effect, "ensur[ing] that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness." Where postenactment conduct is at stake, the majority's approach promises unfortunate disruption. It promises to reintroduce Executive intervention in foreign sovereign immunity to an even greater degree than existed before the FSIA's enactment. Before the Act, foreign nations only tended to need the Executive's protection from the courts' jurisdiction in instances involving private acts. The Tate Letter ensured their public acts would remain immune *737 from suit, even without Executive intervention. Now, there is a potential for Executive intervention in a much larger universe of claims. The FSIA has no public act/private act distinction with respect to certain categories of conduct, such as expropriations. Foreign nations now have incentive to seek Executive override of the Act's jurisdictional rules for both public and private acts in those categories of cases. With the FSIA, Congress tried to settle foreign sovereigns' prospective expectations for being subject to suit in American courts and to ensure fair and evenhanded treatment to our citizens who have claims against foreign sovereigns. See 16-717. This was in keeping with strengthening the Executive's ability to secure negotiated agreements with foreign nations against whom our citizens may have claims. Over time, agreements of this sort have been an important tool for the Executive. See, e. g., Agreement Relating to the Agreement of Oct. 24, 2000, Concerning the Austrian Fund "Reconciliation, Peace and Cooperation," Jan. 23, 2001, U. S.-Aus., (settling claims with Austria); Claims of U. S. Nationals, Nov. 5, U. S.-Yugo., 16 U. S. T. 1, T. I. A. S. No. 5750 (same with Yugoslavia); Settlement of Claims of U. S. Nationals, July 16, 1960, U. S.-Pol., 11 U. S. T. 1953, T. I. A. S. No. 4545 (same with Poland). Uncertain prospective application of our foreign sovereign immunity law may weaken the Executive's ability to secure such agreements by compromising foreign sovereigns' ability to predict |
Justice Kennedy | 2,004 | 4 | dissenting | Republicof Austria v. Altmann | https://www.courtlistener.com/opinion/134749/republicof-austria-v-altmann/ | secure such agreements by compromising foreign sovereigns' ability to predict the liability they face in our courts and so to assess the ultimate costs and benefits of any agreement. See 29-730 (citing Brief for United States as Amicus Curiae). * * * The presumption against retroactivity has comprehended, and always has been intended to comprehend, the wide universe of cases that a court might confront. That includes *738 this one. The Court's departure from precedent should not be overlooked. It has disregarded our "widely held intuitions about how statutes ordinarily operate," at 2, and treated the principles discussed in as if they describe a limited and precise rule that courts should apply only in particularized contexts. Our unanimous rejection of this approach in Hughes Aircraft applies here as well: "To the extent [the Court] contends that only statutes with one of ['s particularly stated] effects are subject to our presumption against retroactivity, [it] simply misreads our opinion in The language upon which [it] relies does not purport to define the outer limit of impermissible retroactivity. Rather, our opinion in like that of Justice Story, merely described that any such effect constituted a sufficient, rather than a necessary, condition for invoking the presumption against retroactivity." The Court's approach further leads to the unprecedented conclusion that Congress' Article I power might well be insufficient to accomplish the central objective of the FSIA. The Court, in addition, injects great prospective uncertainty into our relations with foreign sovereigns. Application of our usual presumption against imposing retroactive effect would leave powerful precedent intact and avoid these difficulties. With respect, I dissent. |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | Before us for review are orders of a three-judge court in the Western District of effectively directing the State not to conduct this year’s elections using districting plans that the court itself adopted some years earlier. The court developed those plans for use in the elections pursuant to our directions in We instructed the three-judge court to start with the plans adopted by the Legislature in but to make adjustments as required by the Con- stitution and the Voting Rights Act. 92–39 After those plans were used in the Legislature enacted them (with only minor modifications) in 2013, and the plans were used again in both 2014 and 201 2 ABBOTT v. PEREZ Opinion of the Court Last year, however, the three-judge court reversed its prior analysis and held that some of the districts in those plans are unlawful. After reviewing the repealed plans, which had never been used, the court found that they were tainted by discriminatory intent and that the 2013 Legislature had not “cured” that “taint.” We now hold that the three-judge court committed a fundamental legal error. It was the challengers’ burden to show that the 2013 Legislature acted with discriminatory intent when it enacted plans that the court itself had produced. The 2013 Legislature was not obligated to show that it had “cured” the unlawful intent that the court attributed to the Legislature. Thus, the essential pillar of the three-judge court’s reasoning was critically flawed. When the congressional and state legislative districts are reviewed under the proper legal standards, all but one of them, we conclude, are lawful. I A The 2010 decennial census revealed that the population of had grown by more than 20% and the State was therefore apportioned four additional seats in the United House of Representatives. C. J. S. 369a.1 To ac- commodate this new allocation and the population changes shown by the census, the Legislature adopted a new con- gressional districting plan, as well as new districting maps for the two houses of the State Legislature. Redistricting is never easy, and the task was especially —————— 1 There are several appendixes in these cases. We use “App.” to refer to the joint appendix filed at the merits stage. We use “C. J. S.” and “H. J. S.” to refer to the appendixes attached to ’s jurisdictional statements in No. 17–586 and No. 17–626, respectively. We use “C. J. S. Findings” and “H. J. S. Findings” to refer to appellees’ supple- mental appendixes in No. 17–586 and No. 17–62 Cite as: 585 U. S. (2018) 3 Opinion of the Court complicated |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | 585 U. S. (2018) 3 Opinion of the Court complicated in in Not only was the Legisla- ture required to draw districts that were substantially equal in population, see 91–392; Rey- ; and to comply with special state-law districting rules,2 but federal law imposed complex and delicately balanced requirements regarding the considera- tion of race. Then, as now, federal law restricted the use of race in making districting decisions. The Equal Protection Clause forbids “racial gerrymandering,” that is, intentionally assigning citizens to a district on the basis of race without sufficient justification. (1993). It also prohibits intentional “vote dilution”— “invidiously minimiz[ing] or cancel[ing] out the voting potential of racial or ethnic minorities.” While the Equal Protection Clause imposes these im- portant restrictions, its application in the field of district- ing is complicated. For one thing, because a voter’s race sometimes correlates closely with political party prefer- ence, see v. Harris, 581 U. S. – (slip op., at 19–20); (2001), it may be very difficult for a court to determine whether a districting decision was based on race or party preference. Here, the three-judge court found that the two factors were virtually indistinguishable.3 At the same time that the Equal Protection Clause —————— 2 See, Tex. Const., Art. III, (Senate), (House). 3 The court found: “[I]t is difficult to differentiate an intent to affect Democrats from an intent to affect minority voters. Making minorities worse off will likely make Democrats worse off, and vice versa.” C. J. S. Findings 467a (citation omitted). “This correlation is so strong that [an expert] assessed whether districts were minority opportunity districts by looking at Democratic results/wins (noting that in minority candidates of choice means Democrats).” 4 ABBOTT v. PEREZ Opinion of the Court restricts the consideration of race in the districting pro- cess, compliance with the Voting Rights Act of 1965, 79 Stat. 437, as amended, 52 U.S. C. et seq. (VRA), pulls in the opposite direction: It often insists that dis- tricts be created precisely because of race. Two provisions of the VRA exert such demands, and in was subject to both. At that time, was covered by of the VRA4 and was thus barred from making any district- ing changes unless it could prove that they did not result in “retrogression” with respect to the ability of racial minorities to elect the candidates of their choice. Alabama Legislative Black Caucus v. Alabama, 575 U. S. (2015) (slip op., ). That showing obviously demanded consideration of race. On top of this, was (and still is) required to com- ply with of the VRA. A |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | is) required to com- ply with of the VRA. A State violates if its district- ing plan provides “ ‘less opportunity’ ” for racial minorities “ ‘to elect representatives of their choice.’ ” League of United Latin American Citizens v. (). In a series of cases tracing back to Thornburg v. we have interpreted this standard to mean that, under certain circumstance, must draw “opportunity” districts in which minority groups form “effective majorit[ies],” Since the Equal Protection Clause restricts considera- tion of race and the VRA demands consideration of race, a legislature attempting to produce a lawful districting plan is vulnerable to “ ‘competing hazards of liability.’ ” Bush v. Vera, In an effort to harmonize these conflicting demands, we have assumed that compliance with the VRA may justify the consideration of race in a way that would not otherwise be allowed. In technical terms, we have assumed that com- plying with the VRA is a compelling state interest, see, —————— 4 See Shelby Cite as: 585 U. S. (2018) 5 Opinion of the Court Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. (slip op., at 13); Shaw v. Hunt, 517 U.S. 899, and that a State’s consideration of race in making a districting decision is narrowly tailored and thus satisfies strict scrutiny if the State has “ ‘good reasons’ ” for believing that its decision is necessary in order to comply with the VRA. at (slip op., ). B Facing this legal obstacle course, the Legislature in adopted new districting plans, but those plans were immediately tied up in litigation and were never used. Several plaintiff groups quickly filed challenges in the District Court for the Western District of argu- ing that some of the districts in the new plans were racial gerrymanders, some were based on intentional vote dilu- tion, and some had the effect of depriving minorities of the equal opportunity to elect the candidates of their choice. This case was assigned to a three-judge court, as required by 28 U.S. C. 284(a). (We will call this court “the court” or simply “the District Court.”) The situation was further complicated by the require- ment that obtain preclearance of its new plans. To do this, filed for a declaratory judgment in the District Court for the District of Columbia. See v. United (We will call this court “the D. C. court.”) By early the D. C. court had not yet issued a decision, and needed usable plans for its rapidly approaching primaries. Accordingly, the court drew up interim plans for that purpose. Perez v. In creating |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | up interim plans for that purpose. Perez v. In creating those plans, the majority of the court thought that it was not “required to give any deference to the Legisla- ture’s enacted ” Instead, it based its plans on what it called “neutral principles that advance 6 ABBOTT v. PEREZ Opinion of the Court the interest of the collective public good.”5 challenged those court-ordered plans in this Court, and we reversed. Noting that “[r]edistricting is ‘pri- marily the duty and responsibility of the State,’ ” we held that the court should have respected the legislative judgments embodied in the plans to the extent al- lowed by the Constitution and the VRA. 92–399. We remanded the case with very specific instructions. The court was told to start with the plans adopted by the Legislature but to modify those plans as needed so as “not to incorporate any legal defects.” With respect to claims under the Constitution or of the VRA, the District Court was told to change a district if the plaintiffs were likely to succeed on the merits of their challenge. And with respect to claims, the court was instructed to make whatever changes were needed to obviate any legal claim that was “not insubstantial.”6 95. Thus, our instructions, in an abundance of cau- tion, demanded changes in the challenged plans without proof that those changes were actually required by either the Constitution or the VRA. On remand, the court ordered additional briefing and heard two more days of argument. App. 29a, 35a– 50a; Order in Civ. No. 11–cv–00360, Doc. No. 61 It issued two opinions, totaling more than 70 pages, and analyzed disputed districts in detail. C. J. S. 367a–423a; —————— 5 Judge Smith dissented, arguing that the majority had produced a “runaway plan” that “award[ed] judgment on the pleadings in favor of one side—a slam-dunk victory for the plaintiffs.” Perez v. 5 F. Supp. 2d 209, 218 6 The court was given more leeway to make changes to districts challenged under because it would have been inappropriate for that court to address the “merits of challenges,” a task committed by statute to the District Court for the District of Columbia. Perez, 565 U.S., Cite as: 585 U. S. (2018) 7 Opinion of the Court H. J. S. 300a–315a. While stressing the preliminary nature of its determinations, see C. J. S. 368a; H. J. S. 314a–315a, the court found that some districts required change and that others were lawful, C. J. S. 367a–423a; H. J. S. 300a–315a. The court then adopted plans for the State’s congressional districts and for |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | then adopted plans for the State’s congressional districts and for both houses of the State Legislature. (The plan for the State Senate is not at issue.) Both the congressional plan and the plan for the House departed significantly from the State’s plans. At least 8 of the 36 congressional districts were markedly altered, and 21 districts in the plan for the House were “substantially” changed. H. J. S. 314a; C. J. S. 397a– 408a. In August the D. C. court denied preclearance of the plans adopted by the Legislature in see v. United so the State conducted the elections under the interim plans devised by the court. At the same time, filed an appeal in this Court contesting the decision of the D. C. court,7 but that appeal ultimately died for two reasons. First, the plans were repealed. The attorney general urged the Legislature to pass new redistricting plans, C. J. S. 429a, and in his view, the “best way to remedy the violations found by the D. C. court” was to “adopt the [ court’s] interim plans as the State’s permanent redistricting maps.” at 432a. Doing so, he said, would “confirm the legislature’s intent” to adopt “a redistricting plan that fully comports with the law.” a. The Governor called a special session to do just that, and the Legislature complied. One of the legislative spon- sors, Senator Seliger, explained that, although “ ‘the —————— 7 Notice of Appeal in v. United Civ. No. 11–cv–1303, Doc. No. 234 8 ABBOTT v. PEREZ Opinion of the Court Legislature remains confident that the legislatively-drawn maps adopted in are fair and legal there remain several outstanding legal questions regarding these maps that undermine the stability and predictability of the electoral process in’ ” n. 40 Counsel for one of the plaintiff groups, the Mexican American Legal Defense and Education Fund (MALDEF), testified in favor of the plans. C. J. S. 436a– 439a. The 2013 Legislature then repealed the plans and enacted the court’s interim plans with just a few minor changes. The federal congressional plan was not altered at all, and only small modifications were made to the plan for the House. C. J. S. Findings 231a– 232a. On the day after the Legislature passed the new plans and the day before the Governor signed them, this Court issued its decision in Shelby 570 U.S. 529 which invalidated the coverage formula in of the Voting Rights Act. Now no longer subject to obtained a vacatur of the D. C. court’s order on –635, and n. 11. With the never-effective plans now repealed and |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | and n. 11. With the never-effective plans now repealed and any preclearance issues overcome by events, the State argued in the court that the plaintiffs’ case against the plans was moot. In September 2013, the court allowed the plaintiffs to amend their complaints to challenge the 2013 plans, but the court held that their challenges to the plans were still alive, reasoning that the repeal of the plans represented the “volun- tary cessation” of allegedly unconstitutional conduct.8 conducted its 2014 and 2016 elections under the plans that had been preliminarily approved by the court and subsequently adopted (with only minor changes) by the Legislature in 2013. But in March and April —————— 8 We express no view on the correctness of this holding. Cite as: 585 U. S. (2018) 9 Opinion of the Court after multiple trials, the court issued a pair of rul- ings on the defunct plans. The court reaffirmed the conclusions it had reached in about defects in the plans, and it went further. Contrary to its earlier decision, it held that Congressional District (CD) 35 is an impermissible racial gerrymander and that CD27 violates of the Voting Rights Act because it has the effect of diluting the electoral opportunities of Latino voters. C. J. S. 181a, 193a–194a. Previously, the court had pro- vided detailed reasons for rejecting the very arguments that it now accepted. at 409a–423a. Similarly, the court held that multiple districts in the plan for the House were the result of intentional vote dilution. These included districts in the counties of Nueces (House District (HD) 32, HD34), Bell (HD54, HD55), and Dallas (HD103, HD104, HD105). H. J. S. 275a–276a.9 In August having ruled on the repealed plans, the court finally turned its attention to the plans then in effect—i.e., the plans that had been devel- oped by the court, adopted by the Legislature in 2013, and used in both the 2014 and 2016 elections. The court inval- idated the districts in those plans that correspond to districts in the plan that it had just held to be unlaw- ful, i.e., CD27, CD35, HD32, HD34, HD54, HD55, HD103, HD104, and HD105. See (No. 17–586) and In reaching these conclusions, the court pointed to the discriminatory intent allegedly harbored by the —————— 9 Judge Smith again dissented, on both mootness and the merits. On mootness, Judge Smith explained that, “[s]ix years later, we are still enveloped in litigation over plans that have never been used and will never be implemented.” C. J. S. 349a. On the merits, Judge Smith argued that the majority erroneously inferred a |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | merits, Judge Smith argued that the majority erroneously inferred a “complex, widespread conspiracy of scheming and plotting, by various legislators and staff, carefully designed to obscure the alleged race-based motive,” when the intent was in fact partisan. H. J. S. 294a; C. J. S. 351a. 10 ABBOTT v. PEREZ Opinion of the Court Legislature, and it attributed this same intent to the 2013 Legislature because it had failed to “engage in a delibera- tive process to ensure that the 2013 plans cured any taint from the plans.” –652; F. Supp. 3d, at 757. The court saw “no indication that the Legislature looked to see whether any discriminatory taint remained in the plans.” 274 F. Supp. 3d, at And it faulted the State because it “did not accept [findings of the D. C. court] and instead appealed to the Supreme Court.” Seeing no evidence that the State had undergone “a change of heart,” the court concluded that the Legisla- ture’s “decision to adopt the [District Court’s] plans” was a “litigation strategy designed to insulate the or 2013 plans from further challenge, regardless of their legal infirmities.” at –650. Finally, summarizing its analysis, the court reiterated that the Legislature’s “discriminatory taint was not removed by the [2013] Legis- lature’s enactment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy.” The court’s decisions about CD35 and all but three of the House districts were based entirely on its finding that the 2013 Legislature had not purged its predecessor’s discriminatory intent. However, the court also held that three districts—CD27, HD32, and HD34— were invalid under of the Voting Rights Act because they had the effect of depriving Latinos of the equal oppor- tunity to elect their candidates of choice. at 682–686; –7. And the court found inde- pendent proof that HD90 was a racial gerryman at 788–794. The court held that violations in all these districts “must be remedied.” 274 F. Supp. 3d, ; see also F. Supp. 3d, at 795 (describing State House district viola- tions that “must be remedied”). Mindful that October 1 Cite as: 585 U. S. (2018) 11 Opinion of the Court was the deadline for the Secretary of State to pro- vide voter registration templates to the State’s counties, App. 380a–381a, the court took steps to bring about prompt remedial action. In two orders issued on August 15 and 24, the attorney general was instructed to advise the court, within three days, “whether the Legisla- |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | to advise the court, within three days, “whether the Legisla- ture intends to take up redistricting in an effort to cure these violations.” 274 F. Supp. 3d, ; F. Supp. 3d, at 795. If the Legislature chose not to do so, the court warned, it would “hold a hearing to consider remedial plans.” After the Governor made clear that the State would not act, the court ordered the parties to pro- ceed with a hearing on the congressional plan on Septem- ber 5, as well as a hearing on the plan for the House on September 274 F. Supp. 3d, ; F. Supp. 3d, at 795; App. 134a–136a; Defendants’ Opposed Motion To Stay Order on Plan C235 Pending Appeal or Final Judg- ment in Civ. No. 11–cv–00360, Doc. 1538, pp. 3–4; De- fendants’ Opposed Motion To Stay Order on Plan H358 Pending Appeal or Final Judgment, Doc. No. 1550, pp. 4–5. applied for stays of both orders, but the District Court denied the applications. App. 134a–136a. then asked this Court to stay the orders, and we granted that relief. After receiving jurisdictional statements, we postponed consideration of jurisdiction and set the cases for consolidated argument. 5 U. S. (2018). II Before reaching the merits of these appeals, we must assure ourselves that we have jurisdiction to review the orders at issue. Appellants claim that the orders amount to injunctions and are therefore appealable to this Court under 28 U.S. C. Appellees disagree, contending that the orders do not qualify as injunctions. We hold that we have jurisdiction because the orders were effectively injunctions in that they barred from using the 12 ABBOTT v. PEREZ Opinion of the Court districting plans now in effect to conduct this year’s elections. A The Judiciary Act of 1789, “established the general principle that only final decisions of the federal district courts would be reviewable on appeal.” v. American Brands, Inc., (emphasis deleted). But because “rigid application of this principle was found to create undue hardship in some cases,” Con- gress created exceptions. Two are relevant here. We have jurisdiction under 28 U.S. C. to hear an appeal from an order of a three-judge district court “grant- ing or denying an interlocutory or permanent injunc- tion.” Similarly, gives the courts of appeals jurisdiction over “[i]nterlocutory orders of the district courts” “granting, continuing, modifying, refusing or dis- solving injunctions,” “except where a direct review may be had in the Supreme Court.” The orders in these cases fall within To be sure, the District Court did not call its orders “injunctions”—in fact, it disclaimed the term, App. |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | call its orders “injunctions”—in fact, it disclaimed the term, App. 134a–136a—but the label attached to an order is not dispositive. We have previously made clear that where an order has the “practi- cal effect” of granting or denying an injunction, it should be treated as such for purposes of appellate jurisdiction. at ; see also Aerospace Corp. v. Mayacamas Corp., We applied this test in holding that an order that declined to enter a consent decree prohibiting certain conduct could be appealed under because it was the practical equivalent of an order denying an in- junction and threatened serious and perhaps irreparable harm if not immediately 450 U.S., at –84, 86–90. This “practical effect” rule serves a valuable purpose. If Cite as: 585 U. S. (2018) 13 Opinion of the Court an interlocutory injunction is improperly granted or de- nied, much harm can occur before the final decision in the district court. Lawful and important conduct may be barred, and unlawful and harmful conduct may be allowed to continue. Recognizing this, Congress authorized inter- locutory appellate review of such orders. But if the avail- ability of interlocutory review depended on the district court’s use of the term “injunction” or some other particu- lar language, Congress’s scheme could be frustrated. The harms that Congress wanted to avoid could occur so long as the district court was careful about its terminology. The “practical effect” inquiry prevents such manipulation. In analogous contexts, we have not allowed district courts to “shield [their] orders from appellate review” by avoiding the label “injunction.” Sampson v. Murray, 415 U.S. 61, 87 (1974). For instance, in Sampson, we held that an order labeled a temporary restraining order (which is not appealable under ) should be treated as a “preliminary injunction” (which is appealable) since the order had the same practical effect as a prelimi- nary injunction. at 86–88. Appellees and the dissent contend that the “practical effect” approach should be confined to but we see no good reason why it should not apply to as well. Appellees note that we “narrowly constru[e]” but we also construe “narrowly,” In addition, the relevant language in the two provisions is nearly identical;10 both provisions serve the same purpose; and we have previously called them “analogous.” Gold- —————— 10 Inrelevant part, applies to “an order granting an inter- locutory injunction.” Section 1292(a)(1) applies to “[i]nterlocutory orders granting injunctions.” Although the similarity is obvious, the dissent perceives some unspecified substantive difference. 14 ABBOTT v. PEREZ Opinion of the Court The provisions are also textually interlocked. Section 1292(a)(1) does not apply where “direct review |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | textually interlocked. Section 1292(a)(1) does not apply where “direct review may be had in the Supreme Court,” i.e., where applies. If the “practical effects” test applied under but not the consequences would be unfortunate and strange. We would have to identify the magic language needed for an order to qualify as an order granting or denying an injunction, and that standard would hardly constitute the sort of “[s]imple” rule that the dissent prizes. See post, at 14 (opinion of SOTOMAYOR, J.). Then, having developed that standard, we would have to apply it in any case in which a party took an appeal to us from an order of a three-judge court that clearly had the practical effect of an injunction. If we concluded that the magic- words test was not met, the order would appear to be appealable to one of the courts of appeals under In the language of that provision, the order would be an “orde[r] of [a] district cour[t] of the United granting [an] injunctio[n].” And because this Court would lack jurisdiction under the appeal would not fall within exception for cases “where a direct review may be had in the Supreme Court.” Hav- ing taken pains to provide for review in this Court, and not in the courts of appeals, of three-judge court orders granting injunctions Congress surely did not intend to produce that result.11 —————— 11 The dissent sees nothing strange about such a result because we held in that we lacked jurisdiction under to hear an appeal from a three-judge court order denying a declaratory judgment. The decision in Donovan was based on the plain language of which says nothing about orders granting or denying declaratory judgments. By contrast, gives us jurisdiction to hear appeals from orders granting or denying injunctions. The same goes for also cited by the dissent. In that case, the District Court issued a declaratory judgment, Cite as: 585 U. S. (2018) 15 Opinion of the Court Appellees argue that an order denying an injunction (the situation in ) and an order granting an injunc- tion (the situation here) should be treated differently, Brief for Appellees in No. 17–586, p. 27, but they offer no convincing reason for doing so. No authority supports their argument. The language of § and 1292(a)(1) makes no such distinction, and we have stated that the “practical effect” analysis applies to the “granting or deny- ing” of injunctions. at In addition, appellees’ suggested distinction would put appellate courts in an awkward position. Suppose that a district court granted an injunction that was narrower than the |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | district court granted an injunction that was narrower than the one requested by the moving party. Would an appellate court (whether this Court or a court of appeals) have jurisdiction to rule on only part of that decision? Suppose the appellate court concluded that the district court was correct in refusing to give the movant all the injunctive relief it sought because the movant’s entire claim was doomed to fail. Would the appellate court be limited to holding only that the lower court properly de- nied the relief that was withheld? The rule advocated by the appellees would needlessly complicate appellate re- view.12 Finally, appellees point in passing to Rule 65(d) of the Federal Rules of Civil Procedure, which requires that an injunction “state its terms specifically” and “describe in —————— not an injunction. Again, the text of says nothing about declara- tory judgments. 12 The inquiry required by the practical effects test is no more difficult when the question is whether an injunction was effectively granted than it is when the question is whether an injunction was effectively denied. Lower courts have had “no problem concluding that [certain orders have] the practical effect of granting an injunction.” I. A. M. Nat. Pension Fund Benefit Plan A v. Industries, Inc., 789 F.2d 21, 24 ; see also Andrew v. American Import Center, 110 A.3d 626, 634 (D. C. 2015) (“[G]ranting a stay pending arbitration does have the ‘practical effect’ of enjoining the party opposing arbitration”). 16 ABBOTT v. PEREZ Opinion of the Court reasonable detail the act or acts restrained or re- quired.” Rules 65(d)(1)(B), (C); see Brief for Appellees in No. 17–586, at 27. But as explained in 399 U.S. 3, we have never suggested that a failure to meet the specificity requirements of Rule 65(d) would “deprive the Court of jurisdiction under ” A contrary holding would be perverse. Rule 65(b) pro- tects the party against which an injunction is issued by requiring clear notice as to what that party must do or refrain from doing. Where a vague injunction does not comply with Rule 65(b), the aggrieved party has a particu- larly strong need for appellate review. It would be odd to hold that there can be no appeal in such a circumstance. For these reasons, we hold that we have jurisdiction under to hear an appeal from an order that has the same practical effect as one granting or denying an injunction. B With these principles settled, we conclude that the orders in these cases qualify as interlocutory injunctions under The text of the orders and |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | as interlocutory injunctions under The text of the orders and the context in which they were issued make this clear. The orders are unequivocal that the current legislative plans “violate and the Fourteenth Amendment” and that these violations “must be remedied.” 274 F. Supp. 3d, ; see also, (“[V]iolations found by this Court in its Order on [the State House plan] now require a remedy”); (“In Bell County, the inten- tional discrimination previously found by the Court must be remedied”); (“In Dallas County, the intentional discrimination previously found by the Court must be remedied”). We do not suggest that this language alone is sufficient to show that the orders had the practical effect of enjoin- Cite as: 585 U. S. (2018) 17 Opinion of the Court ing use of the current plans in this year’s elections, but the court did not stop with these pronouncements. As we have noted, the orders required the attorney general to inform the court within three days whether the Legisla- ture would remedy the violations, and the orders stated that if the Legislature did not intend to adopt new plans, the court would hold remedial hearings. The short time given the Legislature to respond is strong evidence that the three-judge court did not intend to allow the elections to go ahead under the plans it had just condemned. The Legislature was not in session, so in order to take up the task of redistricting, the Governor would have been required to convene a special session— which is no small matter. And, when the Governor de- clined to call a special session, the court moved ahead with its scheduled hearings and invited the parties to continue preparing for them even after this Court administratively stayed the August 15 or The import of these actions is unmistakable: The court intended to have new plans ready for use in this year’s elections. Nothing in the record even hints that the court contemplated the possibility of allowing the elections to proceed under the 2013 plans. What is more, had reason to believe that it would risk deleterious consequences if it defied the court and attempted to conduct the elections under the plans that the court had found to be based on intentional racial dis- crimination. In the very orders at issue, the court inferred discriminatory intent from ’s choice to appeal the D. C. court’s preclearance decision rather than immediately taking steps to bring its plans into compliance with that 274 F. Supp. 3d, at ; see Part III, infra. Reading such an order, had reason to fear that |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | infra. Reading such an order, had reason to fear that if it tried to conduct elections under plans that the court had found to be racially discriminatory, the court would infer an evil motive and perhaps subject the State once again to 18 ABBOTT v. PEREZ Opinion of the Court the strictures of preclearance under of the Voting Rights Act.13 This is a remedy that the plaintiffs hoped to obtain, see, App. 177a, and that the District Court seemed inclined to consider, see C. J. S. 122a–123a (de- clining to declare moot the challenges to the long-since- repealed plans because “there remains the possibility of declaratory and equitable relief under ”). Contending that the orders here do not qualify under appellees analogize this case to Gunn, 399 U.S. 3, but there is no relevant similarity. In Gunn, anti-war protesters were charged with violating a “disturbing- the-peace statute,” and they challenged the constitutionality of the statute in federal court. After the state charges were dismissed, the District Court issued a “discursive” opinion “expressing the view that [the statute was] constitutionally invalid.” 86–387. But the court then refrained from going any further, “pending the next session, special or general, of the legislature, at which time the State of may, if it so desires, enact such disturbing-the-peace statute as will meet constitu- tional requirements.” University Comm. to End War in Viet The defendants appealed to this Court, and at the time of our decision two years later, neither the Legislature nor the District Court had taken any further action. We therefore held that we lacked jurisdiction under The District Court order in that case did not have the same practical effect as an injunction. Indeed, it had no practical effect whatsoever and is thus entirely different —————— 13 Section 3(c) provides that if “the court finds that violations of the fourteenth or fifteenth amendment justifying equitable relief,” the court “shall retain jurisdiction for such period as it may deem appropriate and during such period no voting” practice shall go into effect unless first precleared by the court or the United Attorney General. 52 U.S. C. Cite as: 585 U. S. (2018) 19 Opinion of the Court from the orders now before us.14 Appellees suggest that appellate jurisdiction is lacking in this case because we do not know at this point “what a remedy would entail, who it would affect, and when it would be implemented.” Brief for Appellees in No. 17– 586, at 27. The dissent makes a similar argument with respect to two of the House districts. Post, at 13.15 But the |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | two of the House districts. Post, at 13.15 But the issue here is whether this year’s elections can be held under the plans enacted by the Legislature, not whether any particular remedies would have ultimately been ordered by the District Court. Appellees and the dissent also fret that this Court will be inundated with redistricting appeals if we accept juris- —————— 14 The other authority cited by the dissent is a footnote in v. Chavis, a case that came to us in an exceedingly complicated procedural posture. In the District Court held in August 1969 that Indiana’s legislative districting scheme was unconstitutional, but the court made it clear that it would take no further action for two months. See Chavis v. 305 F. Supp. 1364, 1392 (SD Ind. 1969). The Governor nevertheless appealed to this Court, but by the time we ruled, the Governor had taken another appeal from a later order, entered in December 1969, prohibiting the use of Indiana’s current plans and requiring the use of court-created plans in the 1970 elections. See ; Juris. Statement in v. Chavis, O. T. 1970, No. 92, pp. 1–3. And to further compli- cate matters, by the time we reviewed the case, the Indiana Legislature had enacted new plans. This Court entertained the later appeal and reversed, but the Court dismissed the earlier—and by then, entirely superfluous—appeal, stating that, at the time when it was issued, “no judgment had been entered and no injunction had been granted or denied.” n. 19. But that cursory conclusion has little relevance here, where the District Court’s orders were far more specific, immediate, and likely to demand compliance. 15 While we think it clear that the District Court effectively enjoined the use of these districts as currently configured for this year’s elec- tions, even if the Court had not done so, that would not affect our jurisdiction to review the Court’s order with respect to all other districts. 20 ABBOTT v. PEREZ Opinion of the Court diction here, Brief for Appellees in No. 17–626, p. 34; post, at 14–16, and n. 8, but there is no reason to fear such a flood. Because expressly authorizes “interlocutory” appeals, there is no question that there can be more than one appeal in a case challenging a redistricting District courts sometimes expressly enjoin the use of districting plans before moving on to the remedial phase. See, Whitford v. Gill, No. 3:15–cv–421, Doc. No. 190 ; Harris v. McCrory, No. 1:13–cv– 949, Doc. No. 143 (MDNC, Feb. 5, 2016). But appeals from such orders have not overwhelmed our docket. |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | But appeals from such orders have not overwhelmed our docket. Our holding here will affect only a small category of additional cases.16 It should go without saying that our decision does not mean that a State can always appeal a district court order holding a redistricting plan unlawful. A finding on liabil- ity cannot be appealed unless an injunction is granted or denied, and in some cases a district court may see no need for interlocutory relief. If a plan is found to be unlawful long before the next scheduled election, a court may defer any injunctive relief until the case is completed. And if a plan is found to be unlawful very close to the election date, the only reasonable option may be to use the plan one last time. We appreciate our obligation to heed the limits of our jurisdiction, and we reiterate that must be strictly construed. But it also must be sensibly construed, and here the District Court’s orders, for all intents and pur- poses, constituted injunctions barring the State from conducting this year’s elections pursuant to a statute enacted by the Legislature. Unless that statute is uncon- —————— 16 The dissent cites exactly two cases (Gunn and ) decided during the past half-century in which a party attempted to take an appeal to this Court from a three-judge court order holding a state statute unconstitutional but declining to issue an injunction. Cite as: 585 U. S. (2018) 21 Opinion of the Court stitutional, this would seriously and irreparably harm17 the State, and only an interlocutory appeal can protect that State interest. See at 89–90. As a result, provides jurisdiction. III We now turn to the merits of the appeal. The primary question is whether the court erred when it re- quired the State to show that the 2013 Legislature some- how purged the “taint” that the court attributed to the defunct and never-used plans enacted by a prior legisla- ture in A Whenever a challenger claims that a state law was enacted with discriminatory intent, the burden of proof lies with the challenger, not the State. This rule takes on special significance in districting cases. Redistricting “is primarily the duty and responsibility of the State,” and “[f]ederal-court review of districting legis- lation represents a serious intrusion on the most vital of local functions.” (1995) (internal quotation marks omitted). “[I]n assessing the sufficiency of a challenge to a districting plan,” a court “must be sensitive to the complex interplay of forces that enter a legislature’s redistricting calculus.” at – 91 And the “good faith of [the] |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | calculus.” at – 91 And the “good faith of [the] state legislature must be presumed.” at The allocation of the burden of proof and the presump- tion of legislative good faith are not changed by a finding of past discrimination. “[P]ast discrimination cannot, in —————— 17 The dissent argues that we give “short shrift” to the irreparable harm question, post, at 16, but the inability to enforce its duly enacted plans clearly inflicts irreparable harm on the State, see, Maryland v. King, 22 ABBOTT v. PEREZ Opinion of the Court the manner of original sin, condemn governmental action that is not itself unlawful.” (plu- rality opinion). The “ultimate question remains whether a discriminatory intent has been proved in a given case.” The “historical background” of a legislative enact- ment is “one evidentiary source” relevant to the question of intent. Arlington (1). But we have never suggested that past discrimination flips the evidentiary burden on its head. Neither the District Court nor appellees have pointed to any authority that would justify shifting the burden. The appellees rely primarily on Hunter v. Underwood, 471 U.S. 222 (1985), but that case addressed a very different situation. Hunter involved an equal protection challenge to an article of the Alabama Constitution adopted in 1901 at a constitutional convention avowedly dedicated to the establishment of white supremacy. at 228–230. The article disenfranchised anyone convicted of any crime on a long list that included many minor offenses. at 226– 227. The court below found that the article had been adopted with discriminatory intent, and this Court accepted that conclusion. The article was never re- pealed, but over the years, the list of disqualifying offenses had been pruned, and the State argued that what re- mained was facially constitutional. 2–233. This Court rejected that argument because the amendments did not alter the intent with which the article, including the parts that remained, had been adopted. But the Court specifically declined to address the question whether the then-existing version would have been valid if “[re]enacted today.” In these cases, we do not confront a situation like the one in Hunter. Nor is this a case in which a law originally enacted with discriminatory intent is later reenacted by a different legislature. The 2013 Legislature did not Cite as: 585 U. S. (2018) 23 Opinion of the Court reenact the plan previously passed by its predeces- sor. Nor did it use criteria that arguably carried forward the effects of any discriminatory intent on the part of the Legislature. Instead, it enacted, with only very small changes, plans that had been |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | enacted, with only very small changes, plans that had been developed by the court pursuant to instructions from this Court “not to incorporate any legal defects.” 565 U.S., Under these circumstances, there can be no doubt about what matters: It is the intent of the 2013 Legislature. And it was the plaintiffs’ burden to overcome the presumption of legislative good faith and show that the 2013 Legisla- ture acted with invidious intent. The court contravened these basic principles. Instead of holding the plaintiffs to their burden of over- coming the presumption of good faith and proving discrim- inatory intent, it reversed the burden of proof. It imposed on the State the obligation of proving that the 2013 Legis- lature had experienced a true “change of heart” and had “engage[d] in a deliberative process to ensure that the 2013 plans cured any taint from the plans.” 274 F. Supp. 3d, at The court’s references to the need to “cure” the earlier Legislature’s “taint” cannot be dismissed as stray comments. On the contrary, they were central to the court’s analysis. The court referred repeatedly to the 2013 Legislature’s duty to expiate its predecessor’s bad intent, and when the court summarized its analysis, it drove the point home. It stated: “The discriminatory taint [from the plans] was not removed by the Legislature’s enact- ment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy.”18 —————— 18 The dissent attempts to rehabilitate this statement by focusing on 24 ABBOTT v. PEREZ Opinion of the Court The dissent labors to explain away all these references to the 2013’s Legislature’s supposed duty to purge its predecessor’s allegedly discriminatory intent, but the dissent loses track of its own argument and characterizes the District Court’s reasoning exactly as we have. Indeed, the dissent criticizes us on page 33 of its opinion for saying precisely the same thing that it said 11 pages earlier. On page 33, the dissent states: “[T]he majority quotes the orders as requiring proof that the Legislature “ ‘engage[d] in a deliberative pro- cess to ensure that the 2013 plans cured any taint from the plans.’ ” But the District Court did not put the burden on to make that affirmative showing.” Post, 3 ( in turn 274 F. Supp. 3d, at ; citations omitted). But earlier, the dissent itself describes the District Court’s analysis as follows: “Despite knowing of the discrimination in its maps, ‘the Legislature did not engage in a |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | in its maps, ‘the Legislature did not engage in a deliberative process to ensure that the 2013 plans cured any taint from the plans.’ ” Post, at 22 ( 274 F. Supp. 3d, at ). And this is not just a single slip of the pen. The dissent writes that the District Court was required “to assess how —————— the last part of this sentence, in which the District Court stated that the Legislature “intended [the] taint to be maintained but safe from remedy.” Post, 3–34. In making this argument, the dissent, like the District Court, refuses to heed the presumption of legislative good faith and the allocation of the burden of proving intentional discrimina- tion. We do not dispute that the District Court purportedly found that the 2013 Legislature acted with discriminatory intent. The problem is that, in making that finding, it relied overwhelmingly on what it perceived to be the 2013 Legislature’s duty to show that it had purged the bad intent of its predecessor. Cite as: 585 U. S. (2018) 25 Opinion of the Court the 2013 Legislature addressed the known discrimination that motivated” the districts approved by that Court in Post, 1. The dissent quotes the District Court’s statement that “ ‘there is no indication that the Legisla- ture looked to see whether any discriminatory taint re- mained in the plans.’ ” Post, ( 274 F. Supp. 3d, at ). And there is also this: “ was just ‘not truly interested in fixing any remaining discrimination in [its maps].’ ” Post, at 22 ( 274 F. Supp. 3d, at 651, n. 45). The District Court’s true mode of analysis is so obvious that the dissent cannot help but repeat it. And that approach was fundamentally flawed and demands reversal. While a district court’s finding of fact on the question of discriminatory intent is reviewed for clear error, see whether the court applied the correct burden of proof is a question of law subject to plenary review, U. S. Bank N. A. v. Village at Lakeridge, LLC, 5 U. S. (2018) (slip op., at 5); Highmark Inc. v. Allcare Health Management System, Inc., 572 U. S. (2014) (slip op., at 4). And when a finding of fact is based on the application of an incorrect burden of proof, the finding cannot stand. Bose Corp. v. Consumers Union of United Inc., (“An ap- pellate cour[t has] power to correct errors of law, including those that infect a finding of fact that is predicated on a misunderstanding of the governing rule of law”). B In holding that the District |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | governing rule of law”). B In holding that the District Court disregarded the pre- sumption of legislative good faith and improperly reversed the burden of proof, we do not suggest either that the intent of the Legislature is irrelevant or that the plans enacted in 2013 are unassailable because they were previously adopted on an interim basis by the court. Rather, both the intent of the Legislature and the 26 ABBOTT v. PEREZ Opinion of the Court court’s adoption of the interim plans are relevant to the extent that they naturally give rise to—or tend to refute— inferences regarding the intent of the 2013 Legislature. They must be weighed together with any other direct and circumstantial evidence of that Legislature’s intent. But when all the relevant evidence in the record is taken into account, it is plainly insufficient to prove that the 2013 Legislature acted in bad faith and engaged in intentional discrimination.19 See, Ricci v. DeStefano, 557 U.S. 557, 585 (2009); (1991). There is thus no need for any further prolongation of this already protracted litigation. The only direct evidence brought to our attention sug- gests that the 2013 Legislature’s intent was legitimate. It wanted to bring the litigation about the State’s districting plans to an end as expeditiously as possible. The attorney general advised the Legislature that the best way to do this was to adopt the interim, court-issued plans. The sponsor of the 2013 plans voiced the same objective, and the Legislature then adopted the court-approved plans. On its face, this explanation of the Legislature’s intent is entirely reasonable and certainly legitimate. The Legis- lature had reason to know that any new plans it devised were likely to be attacked by one group of plaintiffs or another. (The plaintiffs’ conflicting positions with regard to some of the districts in the plans now before us bear this out.) Litigating districting cases is expensive and time consuming, and until the districts to be used in the next election are firmly established, a degree of uncertainty clouds the electoral process. Wishing to minimize these effects is understandable and proper. —————— 19 The dissent is simply wrong in claiming over and over that we have not thoroughly examined the record. See post, at 18–19, 26, 27, 30, 34, 42, 4 The dissent seems to think that the repetition of these charges somehow makes them true. It does On the contrary, it betrays the substantive weakness of the dissent’s argument. Cite as: 585 U. S. (2018) 27 Opinion of the Court The court below discounted this direct evidence, but its reasons for |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | court below discounted this direct evidence, but its reasons for doing so are not sound. The court stated that the “strategy” of the 2013 Legislature was to “insulate [the plans] from further challenge, regardless of [the plans’] legal infirmities.” ; see also at 651, n. 45. But there is no evidence that the Legislature’s aim was to gain acceptance of plans that it knew were unlawful.20 Indeed, there is no evidence that the Legisla- ture thought that the plans were invalid—and as we will explain, the Legislature had sound reasons to believe just the opposite.21 The District Court found it significant that the Legisla- ture must have realized that enacting the interim plans would not “end the litigation,” because it knew that at least some plaintiffs would pursue their challenges any- way. But even if, as seems likely, the Legislature did not think that all the plaintiffs would immediately abandon all their claims, it does not follow —————— 20 The dissent and the District Court attach much meaning to the attorney general’s use of the term “insulate” when he advised the Legislature to adopt the District Court’s plans to avoid further legal challenge. Setting aside that the word “insulate” is a common term used to describe minimizing legal concerns, the context of the letter makes clear that the attorney general was trying to make the point that adopting these plans was the best method of obtaining legal compliance, not the start of a grand conspiracy to trick the District Court. Indeed, if his plan was to dupe the District Court, shouting it to the world in a public letter was an odd way to go about it. 21 In any event, the court was simply wrong that be- lieved its plans would be free from any legal challenge. 274 F. Supp. 3d 624, 651 consistently acknowledged that effects claims would continue to be available and responded in detail to those argu- ments in both the District Court and this Court. See Brief for Appel- lants 64; Defendants’ Post-Trial Brief, Doc. No. 1526, p. 53. Moreover, has not argued that intentional discrimination claims are una- vailable; it has instead argued that intent must be assessed with respect to the 2013 Legislature, the Legislature that actually enacted the plans at issue. 28 ABBOTT v. PEREZ Opinion of the Court that the Legislature was insincere in stating that it adopted the court-approved plan with the aim of bringing the litigation to a close. It was reasonable for the Legislature to think that approving the court-approved plans might at least reduce objections and thus |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | the court-approved plans might at least reduce objections and thus simplify and expedite the conclusion of the litigation.22 That MALDEF, counsel for one of the plaintiff groups, testified in favor of the plans is evidence that the Legislature’s objective was reasonable. C. J. S. 436a–439a. Not only does the direct evidence suggest that the 2013 Legislature lacked discriminatory intent, but the circum- stantial evidence points overwhelmingly to the same conclusion. Consider the situation when the Legislature adopted the court-approved interim plans. First, the court had adopted those plans, and no one would claim that the court acted with invidious intent when it did so. Second, the court approved those plans only after reviewing them and modifying them as required to comply with our instructions. Not one of the judges on that court expressed the view that the plans were unlaw- ful. Third, we had directed the court to make changes in response to any claims under the Equal Protec- tion Clause and of the Voting Rights Act if those claims were merely likely to prevail. 565 U.S., And the court was told to accommodate any claim under of the VRA unless it was “insubstantial.” at 395. Fourth, the court had made a careful analysis of all the claims, had provided a detailed examination of individual districts, and had modified many districts. Its —————— 22 The 2013 Legislature had no reason to believe that the District Court would spend four years examining moot plans before reversing its own previous decisions by imputing the intent of the Legisla- ture to the 2013 Legislature. At the very least, the 2013 Legislature had good reason to believe that adopting the court-approved plans would lessen the time, expense, and complexity of further litigation (even if that belief turned out to be wrong). Cite as: 585 U. S. (2018) 29 Opinion of the Court work was anything but slapdash. All these facts gave the Legislature good reason to believe that the court-approved interim plans were legally sound. Is there any evidence from which a contrary inference can reasonably be drawn? Appellees stress the prelimi- nary nature of the court’s approval of the interim plans, and as we have said, that fact is relevant. But in light of our instructions to the court and the care with which the interim plans were developed, the court’s approval still gave the Legislature a sound basis for think- ing that the interim plans satisfied all legal requirements. The court below and the dissent infer bad faith because the Legislature “pushed the redistricting bills through quickly in a special session.” 274 |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | the redistricting bills through quickly in a special session.” 274 F. Supp. 3d, at But we do not see how the brevity of the legislative process can give rise to an inference of bad faith—and certainly not an inference that is strong enough to overcome the presump- tion of legislative good faith (a concept to which the dis- sent pays only the briefest lip service, post, at 21). The “special session” was necessary because the regular ses- sion had ended. As explained, the Legislature had good reason to believe that the interim plans were sound, and the adoption of those already-completed plans did not require a prolonged process. After all, part of the reason for adopting those plans was to avoid the time and ex- pense of starting from scratch and leaving the electoral process in limbo while that occurred.23 The District Court and the dissent also err when they charge that Representative Darby, the chair of the —————— 23 Moreover, in criticizing the Legislature for moving too quickly, the dissent downplays the significant time and effort that went into consid- eration of the 2013 plans. Legislative committees held multiple field hearings in four cities, Tr. 1507 and the legislative actors spent significant time considering the legislation, as well as accepting and rejecting amendments, see, Joint Exh. 17.3, p. S29; Joint Exh. 24.4, p. 21. 30 ABBOTT v. PEREZ Opinion of the Court House Redistricting Committee at the time in question, “ ‘willfully ignored those who pointed out deficiencies’ ” in the plans. Post, at 22 ( n. 45). This accusation is not only misleading, it misses the point. The Legislature adopted the interim plans in large part because they had the preliminary approval of the District Court, and Darby was open about the fact that he wanted to minimize amendments to the plans for that reason. See, Joint Exh. 17.3, pp. S1–S2. That Darby generally hoped to minimize amendments—so that the plans would remain legally compliant—hardly shows that he, or the Legislature, acted with discriminatory intent. In any event, it is misleading to characterize this attitude as “willfu[l] ignor[ance].” The record shows that, al- though Darby hoped to minimize amendments, he did not categorically refuse to consider changes. This is illustrated by his support for an amendment to HD90, which was offered by the then-incumbent, Democrat Lon Burnam, precisely because it fixed an objection raised by the Mexican- American Legal Caucus () that the district’s Latino population was too F. Supp. 3d, at 790.24 The court faulted the 2013 Legislature for failing to take into account the problems with |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | Legislature for failing to take into account the problems with the plans that the D. C. court identified in denying preclearance, but the basis for that criticism is hard to understand. One of the 2013 Legislature’s principal reasons for adopting the court-approved plans was to fix the problems identi- fied by the D. C. court. The attorney general advised the Legislature to adopt the interim plans because he thought that was the “best way to remedy the violations found by —————— 24 The dissent tries to minimize the relevance of this amendment by arguing that it turned HD90 into a racial gerryman See post, n. 12. But again this is misleading. The Legislature adopted changes to HD90 at the behest of minority groups, not out of a desire to discrim- inate. See Part IV–B, infra. That is, Darby was too solicitous of changes with respect to HD90. Cite as: 585 U. S. (2018) 31 Opinion of the Court the D. C. court.” C. J. S. 432a. Chairman Darby similarly stated that the 2013 plans fixed the errors found by the D. C. court, Tr. 1498, 1584–1585 as did Senator Seliger, Joint Exh. 22, p. A–5. There is nothing to suggest that the Legislature pro- ceeded in bad faith—or even that it acted unreasonably— in pursuing this strategy. Recall that we instructed the court, in developing the interim plans, to remedy any claim that was “not insubstantial.” 565 U.S., 95. And that is just what the interim plans, which the Legislature later enacted, attempted to do. For instance, the D. C. court held that the congressional plan had one too few “ability to elect” districts for Latinos, largely because of changes to CD23, 887 F. Supp. 2d, at 156–159; the interim plan (and, by exten- sion, the 2013 plan) amended CD23, C. J. S. 397a–399a. Similarly, in the plan for the House, the D. C. court found retrogression with respect to HD35, HD117, and HD149, at 167–175, and all of those districts were changed in the 2013 plans, H. J. S. 305a–307a, 312a. Although the D. C. court found that the Legisla- ture acted with discriminatory intent in framing the con- gressional plan, that finding was based on evidence about districts that the interim plan later changed. The D. C. court was concerned about the intent reflected in the drawing of CDs 9, 18, and 30, but all those districts were amended by the court. at 159–160; C. J. S. 406a–408a. With respect to the plan for the House, the D. C. court made no intent findings, but its areas of |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | C. court made no intent findings, but its areas of concern were generally addressed by the court and the 2013 plans. Compare (noting evidence of unlawful intent in HD117), with H. J. S. 307a (amending HD117).25 —————— 25 In assessing the significance of the D. C. court’s evaluation of in- tent, it is important not to forget that the burden of proof in a preclear- 32 ABBOTT v. PEREZ Opinion of the Court It is indicative of the District Court’s mistaken approach that it inferred bad faith from ’s decision to take an appeal to this Court from the D. C. court’s decision deny- ing See 274 F. Supp. 3d, at (“Defend- ants did not accept [these findings] and instead appealed to the Supreme Court”). Congress gave the State the right to appeal, and no bad motive can be inferred from its decision to make use of this right—unless of course the State had no reasonable grounds for appeal. Before our decision in Shelby County mooted ’s appeal to this Court from the D. C. court’s preclearance decision, filed a jurisdictional statement claiming that the D. C. court made numerous errors, but the court made no attempt to show that ’s arguments were frivolous. As a final note, appellees assert that the 2013 Legisla- ture should have either defended the plans in litiga- tion or gone back to the drawing board and devised en- tirely new plans, Brief for Appellees in No. 17–626, at 45, but there is no reason why the Legislature’s options should be limited in this way. It was entirely permissible for the Legislature to favor a legitimate option that promised to simplify and reduce the burden of litigation. That the Legislature chose this course is not proof of discriminatory intent. IV Once the court’s intent finding is reversed, there remain only four districts that were invalidated on alter- native grounds. For three of these districts, the District Court relied on the “effects” test of We reverse as to each of these, but we affirm the District Court’s final holding that HD90 is a racial gerryman —————— ance proceeding was on the State. v. United 887 F. Supp. 2d 133, 151 Particularly where race and partisanship can so often be confused, see and n. 3, the burden of proof may be crucial. Cite as: 585 U. S. (2018) 33 Opinion of the Court A To make out a “effects” claim, a plaintiff must estab- lish the three so-called “ fac” These are (1) a geographically compact minority population sufficient to constitute a majority in a single-member district, |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | population sufficient to constitute a majority in a single-member district, (2) polit- ical cohesion among the members of the minority group, and (3) bloc voting by the majority to defeat the minority’s preferred candidate. U.S., at 48–51; 548 U.S., at If a plaintiff makes that showing, it must then go on to prove that, under the totality of the circumstances, the district lines dilute the votes of the members of the minority group. at –42 1 The court held that CD27 violates of the VRA because it has the effect of diluting the votes of Latino voters in Nueces C. J. S. 191a. CD27 is anchored in Nueces County (home to Corpus Christi) and follows the Gulf of Mexico to the northeast before taking a turn inland to the northwest in the direction of Austin. Nueces County contains a Latino population of roughly 200,000 (a little less than one-third the size of an ideal congressional district), and the court held that the Nueces County Lati- nos should have been included in a Latino opportunity district, rather than CD27, which is not such a The court found that an area centered on Nueces County satisfies the factors and that, under the totality of the circumstances, the placement of the Nueces County Latinos in CD27 deprives them of the equal opportunity to elect candidates of their choice. C. J. S. 181a–195a. The problem with this holding is that plaintiffs could not establish a violation of of the VRA without showing that there is a “ ‘possibility of creating more than the existing number of reasonably compact’ ” opportunity districts. And as the court itself found, the geography and demographics of south and 34 ABBOTT v. PEREZ Opinion of the Court west do not permit the creation of any more than the seven Latino opportunity districts that exist under the current and n. 85. Attempting to get around this problem, the court relied on our decision in but it misapplied our holding. In we held that the State should have created six proper Latino opportunity districts but instead drew only Although the State claimed that the plan actually included a sixth opportuni- ty district, that district failed to satisfy the fac- 548 U.S., We held that a “State’s creation of an opportunity district for those without a right offers no excuse for its failure to provide an opportunity district for those with a right.” Here, the court concluded that committed the same violation as in : It created “an opportu- nity district for those without a right” (the Latinos in CD35), while failing |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | those without a right” (the Latinos in CD35), while failing to create such a district “for those with a right” (the Latinos of Nueces County). This holding is based on a flawed analysis of CD35. CD35 lies to the north of CD27 and runs along I–35 from San Antonio up to Austin, the center of Travis In the District Court’s view, the Latinos of CD35 do not have a right because one of the factors, majority bloc voting, is not present. The Court reached this conclusion because the non-Latino voters of Travis County tend to favor the same candidates as the great majority of Latinos. There are two serious problems with the District Court’s analysis. First, the Court took the wrong approach in evaluating the presence of majority bloc voting in CD35. The Court looked at only one, small part of the district, the portion that falls within Travis 274 F. Supp. 3d, at 6; C. J. S. 175a–176a. But Travis County makes up only 21% of the We have made clear that redistricting analysis must take place at the district level. Bethune- Cite as: 585 U. S. (2018) 35 Opinion of the Court Hill, 580 U. S., at (slip op., at 12). In failing to per- form that district-level analysis, the District Court went astray. Second, here, unlike in the 2013 Legislature had “good reasons” to believe that the district at issue (here CD35) was a viable Latino opportunity district that satisfied the fac CD35 was based on a con- cept proposed by MALDEF, C. J. S. Findings 315a–316a, and the Latino Redistricting Task Force (a plaintiff group) argued that the district is mandated by C. J. S. 174a. The only factor disputed by the court was majority bloc voting, and there is ample evidence that this factor is met. Indeed, the court found that majority bloc voting exists throughout the State. C. J. S. Findings 467a. In addition, the District Court extensively analyzed CD35 in and determined that it was likely not a racial gerry- mander and that even if it was, it likely satisfied strict scrutiny. C. J. S. 415a. In other words, the 2013 Legisla- ture justifiably thought that it had placed a viable oppor- tunity district along the I–35 corridor. 2 The District Court similarly erred in holding that HD32 and HD34 violate These districts make up the entirety of Nueces County, which has a population that is almost exactly equal to twice the population of an ideal House (It can fit 2.0295 ideal districts. H. J. S. Findings 91a.) In 2010, Latinos made up |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | H. J. S. Findings 91a.) In 2010, Latinos made up approximately 56% of the voting age population of the county. The 2013 plan created two districts that lie wholly within the county; one, HD34, is a Latino opportunity district, but the other, HD32, is F. Supp. 3d, at 767. Findings made by the court below show that these two districts do not violate of the Voting Rights Act. Under the ultimate question is whether a districting decision dilutes the votes of minority voters, see 36 ABBOTT v. PEREZ Opinion of the Court at –426, and it is hard to see how this standard could be met if the alternative to the districting decision at issue would not enhance the ability of minority voters to elect the candidates of their choice. The only plaintiff that pressed a claim with respect to HD32 and HD34 was F. Supp. 3d, at 767, and as the District Court recognized, that group’s own expert determined that it was not possible to divide Nueces County into more than one performing Latino In his analysis, the expert relied on Nueces County election returns for statewide elections between 2010 and 201 at 775–77 Based on this data, he calculated that when both HD32 and HD34 were maintained as Latino- majority districts, one performed for Latinos in only 7 out of 35 relevant elections, and the other did so in none of the 35 elections. In order to create two performing districts in that area, it was necessary, he found, to break county lines in multiple places, but the District Court held that “breaking the County Line Rule” in the Constitution, see Art. III, to “remove Anglos and incorporate even more Hispanics to improve electoral outcomes goes beyond what requires.” F. Supp. 3d, at 7. So if could not create two performing dis- tricts in Nueces County and did not have to break county lines, the logical result is that did not dilute the Latino vote. The court refused to accept this conclusion, but its rea- sons for doing so cannot stand up. As an initial matter, the court thought that the two districts would have to be redrawn based on its finding regarding the intent of the 2013 Legislature,26 and it therefore deferred a final deci- —————— 26 The District Court also purported to find a violation of the “one person, one vote” principle in Nueces County, 7 ; H. J. S. 254a–255a, but that finding was in actuality a restate- ment of its racial discrimination finding. The population deviations from the ideal are quite small (-0.34% in |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | population deviations from the ideal are quite small (-0.34% in HD32 and 3.29% in HD34, Cite as: 585 U. S. (2018) 37 Opinion of the Court sion on the issue and advised the plaintiffs to consider at the remedial phase of the case whether they preferred to have two districts that might not perform or just one safe at 7. The court’s decision cannot be sustained on this ground, since its finding of discriminatory intent is erroneous. The only other reason provided by the court was the observation that “failed to show” that two majority- Latino districts in Nueces County would not perform. at 782. This observation twisted the burden of proof be- yond recognition. It suggested that a plaintiff might succeed on its claim because its expert failed to show that the necessary factual basis for the claim could not be established.27 Courts cannot find effects violations on —————— at 254a), and the District Court relied solely on the “evidence of the use of race in drawing the lines in Nueces County” to find a one person, one vote violation. at 255a; see also at 254a (“[T]he State intention- ally discriminated against minority voters by overpopulating minority districts and underpopulating Anglo districts”). Even assuming that a court could find a one person, one vote violation on the basis of such a small deviation, cf. 462 U.S. 5, (19) (noting that deviations under 10% are generally insufficient to show invidious discrimination), the District Court erred in relying on its unsound finding regarding racial discrimination. Moreover, plaintiffs rejected any separate one person, one vote claims before the District Court, Tr. 22 and they have not mentioned such a claim as a separate theory in their briefing in this Court. 27 The District Court’s belief that simple Latino majorities in Nueces County might be sufficient to create opportunity districts—and that should have known as much—conflicts with other parts of its With respect to numerous other districts, the District Court chided for focusing on bare numbers and not considering real opportunity to elect. See, C. J. S. 134a (“[T]he court rejects [the] bright-line rule that any HCVAP-majority district is by definition a Latino opportunity district” because it “may still lack real electoral opportunity” (internal quotation marks omitted)); H. J. S. 121a ( “increase[d the Latino population] while simultaneously ensuring that election success rates remained minimally improved”). 38 ABBOTT v. PEREZ Opinion of the Court the basis of uncertainty. In any event, if even the District Court remains unsure how to draw these districts to com- ply with (after six years of litigation, almost |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | to com- ply with (after six years of litigation, almost a dozen trials, and numerous opinions), the Legislature surely had the “ ‘broad discretion’ ” to comply as it reasonably saw fit in 2013, The dissent charges us with ignoring the District Court’s “ ‘intensely local appraisal” ’ of Nueces County, post, at 43, but almost none of the “findings” that the District Court made with respect to HD32 and HD34 referred to present local conditions, and none cast any significant light on the question whether another oppor- tunity district is possible at the present time. For in- stance, what the dissent describes as ’s “long ‘history of voting-related discrimination,’ ” in no way under- mines—or even has any logical bearing on—the conclu- sions reached by ’s expert about whether Latino voters would have a real opportunity to elect the candi- dates of their choice if the county was divided into two districts with narrow majorities of Latino citizens of voting age. The same is true with respect to the District Court’s findings regarding racially polarized voting in the county and Latinos’ “continuing pattern of disadvantage relative to” F. Supp. 3d, at 779 (internal quota- tion marks omitted). Perhaps recognizing as much, both the District Court and the dissent point to the anticipated future growth in the percentage of eligible voters of Latino descent, but the districts now at issue would not necessar- ily be used beyond 2020, after which time the 2020 census would likely require redistricting once again. B HD90 is a district in Tarrant County that, unlike the other districts at issue in this appeal, was not copied from the District Court’s interim plans. Instead, the 2013 Legislature substantially modified the district developed Cite as: 585 U. S. (2018) 39 Opinion of the Court by the District Court, and the District Court held that the 2013 Legislature’s creation is an invalid racial gerryman- F. Supp. 3d, at 794. In drawing HD90, the Legislature was pulled in oppo- site directions by competing groups. In the Legisla- ture, responding to pressure from MALDEF, increased the Latino population of the district in an effort to make it a Latino opportunity H. J. S. Findings 258a–262a. In the process of doing so, the Legislature moved the community of Como, which is predominantly African- American, out of the But Como residents and the member of the House who represented the district, Lon Burnam, objected, and in 2013, the Legislature moved Como back into the F. Supp. 3d, at 788–789. That change was opposed by because it decreased the Latino population below 50%. |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | opposed by because it decreased the Latino population below 50%. App. 398a–399a. So the Legislature moved Latinos into the district to bring the Latino population back above 50%. F. Supp. 3d, at 789–790. In light of these maneuvers, does not dispute that race was the predominant factor in the design of HD90, but it argues that this was permissible because it had “ ‘good reasons to believe’ ” that this was necessary to satisfy of the Voting Rights Act.” Bethune-Hill, 580 U. S., at (slip op., at 14). offers two pieces of evidence to support its claim. The first—that one of the plaintiffs, demanded as much—is insufficient. A group that wants a State to create a district with a particular design may come to have an overly expansive understanding of what demands. So one group’s demands alone cannot be enough. The other item of evidence consists of the results of the Democratic primaries in and 2014. In Repre- sentative Burnham, who was not the Latino candidate of choice, narrowly defeated a Latino challenger by 159 votes. And in 2014, the present representative, Ramon 40 ABBOTT v. PEREZ Opinion of the Court Romero, Jr., beat Burnam by 110 votes. See Brief for Appellants 70. These election returns may be suggestive, but standing alone, they were not enough to give the State good reason to conclude that it had to alter the district’s lines solely on the basis of race. And putting these two evidentiary items together helps, but it is simply too thin a reed to support the drastic decision to draw lines in this way. We have previously rejected proffers of evidence that were at least as strong as ’s here. For example, in 581 U. S., at (slip op., at 11), we analyzed North Carolina’s justification for deliberately moving “African-American voters” into a district to “ensure the district’s racial composition” in the face of its expansion in size. North Carolina argued that its race-based decisions were necessary to comply with but the State could point to “no meaningful legislative inquiry” into “whether a new, enlarged” district, “created without a focus on race, could lead to liability.” at (slip op., at 15). North Carolina pointed to two expert reports on “voting patterns throughout the State,” but we rejected that evi- dence as insufficient. at n. 5 (slip op., at 15, n. 5). Here, has pointed to no actual “legislative inquiry” that would establish the need for its manipulation of the racial makeup of the By contrast, where we have accepted a State’s “good reasons” for using race in drawing district |
Justice Alito | 2,018 | 8 | majority | Abbott v. Perez | https://www.courtlistener.com/opinion/4510531/abbott-v-perez/ | a State’s “good reasons” for using race in drawing district lines, the State made a strong showing of a pre-enactment analysis with justifiable conclusions. In Bethune-Hill, the State estab- lished that the primary mapdrawer “discussed the district with incumbents from other majority-minority districts[,] considered turnout rates, the results of the recent contested primary and general elections,” and the district’s large prison population. 580 U. S., at (slip op., at 15). The State established that it had performed a “functional analysis,” and acted to achieve an “informed bipartisan Cite as: 585 U. S. (2018) 41 Opinion of the Court consensus.” at (slip op., at 14). ’s showing here is not equivalent. Perhaps could have made a stronger showing, but it is the State’s burden to prove narrow tailoring, and it did not do so on the record before us. We hold that HD90 is an impermissible racial gerryman On remand, the District Court will have to consider what if any remedy is appropriate at this time. * * * Except with respect to one House district, we hold that the court below erred in effectively enjoining the use of the districting maps adopted by the Legislature in 2013. We therefore reverse with respect to No. 17–586; reverse in part and affirm in part with respect to No. 17–626; and remand for proceedings consistent with this opinion. It is so ordered. Cite as: 585 U. S. (2018) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES Nos. 17–586 and 17–626 GREG ABBOTT, GOVERNOR OF TEXAS, ET AL., APPELLANTS 17–586 v. SHANNON PEREZ, ET AL. GREG ABBOTT, GOVERNOR OF TEXAS, ET AL., APPELLANTS 17–626 v. SHANNON PEREZ, ET AL. |
Justice White | 1,976 | 6 | concurring | Imbler v. Pachtman | https://www.courtlistener.com/opinion/109387/imbler-v-pachtman/ | I concur in the judgment of the Court and in much of its reasoning. I agree with the Court that the gravamen of the complaint in this case is that the prosecutor knowingly used perjured testimony; and that a prosecutor is absolutely immune from suit for money damages under 42 U.S. C. 1983 for presentation of testimony later determined to have been false, where the presentation of such testimony is alleged to have been unconstitutional solely because the prosecutor did not believe it or should not have believed it to be true. I write, however, because I believe that the Court's opinion may be read as *433 extending to a prosecutor an immunity broader than that to which he was entitled at common law; broader than is necessary to decide this case; and broader than is necessary to protect the judicial process. Most seriously, I disagree with any implication that absolute immunity for prosecutors extends to suits based on claims of unconstitutional suppression of evidence because I believe such a rule would threaten to injure the judicial process and to interfere with Congress' purpose in enacting 42 U.S. C. 1983, without any support in statutory language or history. I Title 42 U.S. C. 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution. shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." As the language itself makes clear, the central purpose of 1983 is to "give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position." The United States Constitution among other things, places substantial limitations upon state action, and the cause of action provided in 42 U.S. C. 1983 is fundamentally one for "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United It is manifest then that all state *434 officials as a class cannot be immune absolutely from damage suits under 42 U.S. C. 1983 and that to extend absolute immunity to any group of state officials is to negate pro tanto the very remedy which it appears Congress sought to create. Thus, as there is no language in 42 U.S. C. 1983 extending any immunity to any state officials, |
Justice White | 1,976 | 6 | concurring | Imbler v. Pachtman | https://www.courtlistener.com/opinion/109387/imbler-v-pachtman/ | U.S. C. 1983 extending any immunity to any state officials, the Court has not extended absolute immunity to such officials in the absence of the most convincing showing that the immunity is necessary. Accordingly, we have declined to construe 1983 to extend absolute immunity from damage suits to a variety of state officials, ; ; ; and this notwithstanding the fact that, at least with respect to high executive officers, absolute immunity from suit for damages would have applied at common law. ; Instead, we have construed the statute to extend only a qualified immunity to these officials, and they may be held liable for unconstitutional conduct absent "good faith." Any other result would "deny much of the promise of 1983." Nonetheless, there are certain absolute immunities so firmly rooted in the common law and supported by such strong policy reasons that the Court has been unwilling to infer that Congress meant to abolish them in enacting 42 U.S. C. 1983. Thus, we have held state legislators to be absolutely immune from liability for damages under 1983 for their legislative acts,[1] and state *435 judges to be absolutely immune from liability for their judicial acts,[2] In justifying absolute immunity for certain officials, both at common law and under 42 U.S. C. 1983, courts have invariably rested their decisions on the proposition that such immunity is necessary to protect the decisionmaking process in which the official is engaged. Thus legislative immunity was justified on the ground that such immunity was essential to protect "freedom of speech and action in the legislature" from the dampening effects of threatened lawsuits. Similarly, absolute immunity for judges was justified on the ground that no matter how high the standard of proof is set, the burden of defending damage suits brought by disappointed litigants would "contribute not to principled and fearless decisionmaking but to intimidation." In the Court stated: "For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence *436 without which no judiciary can be either respectable or useful." See also cases discussed in summarily aff'd, The majority articulates other adverse consequences which may result from permitting suits to be maintained against public officials. Such suits may expose the official to |
Justice White | 1,976 | 6 | concurring | Imbler v. Pachtman | https://www.courtlistener.com/opinion/109387/imbler-v-pachtman/ | against public officials. Such suits may expose the official to an unjust damage award, ante, at 425; such suits will be expensive to defend even if the official prevails and will take the official's time away from his job, ante, at 425; and the liability of a prosecutor for unconstitutional behavior might induce a federal court in a habeas corpus proceeding to deny a valid constitutional claim in order to protect the prosecutor, ante, at 427. However, these adverse consequences are present with respect to suits against policemen, school teachers, and other executives, and have never before been thought sufficient to immunize an official absolutely no matter how outrageous his conduct. Indeed, these reasons are present with respect to suits against all state officials[3] and must necessarily have been rejected by Congress as a basis for absolute immunity under 42 U.S. C. 1983, for its enactment *437 is a clear indication that at least some officials should be accountable in damages for their official acts. Thus, unless the threat of suit is also thought to injure the governmental decisionmaking process, the other unfortunate consequences flowing from damage suits against state officials are sufficient only to extend a qualified immunity to the official in question. Accordingly, the question whether a prosecutor enjoys an absolute immunity from damage suits under 1983, or only a qualified immunity, depends upon whether the common law and reason support the proposition that extending absolute immunity is necessary to protect the judicial process. The public prosecutor's absolute immunity from suit at common law is not so firmly entrenched as a judge's, but it has considerable support. The general rule was, and is, that a prosecutor is absolutely immune from suit for malicious prosecution. 1 F. Harper & F. James. The Law of Torts 4.3, p. 305 n. 7 (1956) (hereafter Harper & James), and cases there cited; ; ; ; ; ; ; ; ; But see Leong The rule, like the rule extending absolute immunity to judges, rests on the proposition that absolute immunity is necessary to protect the judicial process. Absent immunity, " `it would be but human that they [prosecutors] might refrain from presenting to a grand jury or prosecuting a matter which in their judgment called for action; but *438 which a jury might possibly determine otherwise.' " 1 Harper & James 4.3, pp. 305-306, quoting Indeed, in deciding whether or not to prosecute, the prosecutor performs a "quasi-judicial" function. 1 Harper & James 305; 12 F. 2d, Judicial immunity had always been extended to grand jurors with respect to their actions in |
Justice White | 1,976 | 6 | concurring | Imbler v. Pachtman | https://www.courtlistener.com/opinion/109387/imbler-v-pachtman/ | extended to grand jurors with respect to their actions in returning an indictment, and " `the public prosecutor, in deciding whether a particular prosecution shall be instituted performs much the same function as a grand jury.' " quoting The analogy to judicial immunity is a strong one. Moreover, the risk of injury to the judicial process from a rule permitting malicious prosecution suits against prosecutors is real. There is no one to sue the prosecutor for an erroneous decision not to prosecute. If suits for malicious prosecution were permitted,[4] the prosecutor's incentive would always be not to bring charges. Moreover, the "fear of being harassed by a vexatious suit, for acting according to their consciences" would always be the greater "where powerful" men are involved, 1 W. Hawkins, Pleas of the Crown 349 (6the ed. 1787). Accordingly, I agree with the majority that, with respect to suits based on claims that the prosecutor's decision to prosecute was malicious and without probable causeat least where there is no independent allegation that the prosecutor withheld exculpatory information from a grand jury or the court, see Part I, infrathe judicial process is better served by absolute immunity than by any other rule. *439 Public prosecutors were also absolutely immune at common law from suits for defamatory remarks made during and relevant to a judicial proceeding, 1 Harper & James 5.21, 5.22; 12 F. 2d, at 402-403; and this immunity was also based on the policy of protecting the judicial process. Absolute Immunity in Defamation: Judicial Proceedings, 9 Colo. L. Rev. 463 (1909). The immunity was not special to public prosecutors but extended to lawyers accused of making false and defamatory statements, or of eliciting false and defamatory testimony from witnesses; and it applied to suits against witnesses themselves for delivering false and defamatory testimony. 1 Harper & James 5.22, pp. 423-424, and cases there cited; King v. Skinner, Lofft 55, 98 Eng. Rep. 529, 530 (K. B. 1772) (per Lord Mansfield); 12 F. 2d, The reasons for this rule are also substantial. It is precisely the function of a judicial proceeding to determine where the truth lies. The ability of courts, under carefully developed procedures, to separate truth from falsity, and the importance of accurately resolving factual disputes in criminal (and civil) cases are such that those involved in judicial proceedings should be "given every encouragement to make a full disclosure of all pertinent information within their knowledge." 1 Harper & James 5.22, p. 424. For a witness, this means he must be permitted to testify without fear of being sued if his |
Justice White | 1,976 | 6 | concurring | Imbler v. Pachtman | https://www.courtlistener.com/opinion/109387/imbler-v-pachtman/ | permitted to testify without fear of being sued if his testimony is disbelieved. For a lawyer, it means that he must be permitted to call witnesses without fear of being sued if the witness is disbelieved and it is alleged that the lawyer knew or should have known that the witness' testimony was false. Of course, witnesses should not be encouraged to testify falsely nor lawyers encouraged to call witnesses who testify falsely. However, if the risk of having to defend a civil damage suit is added to the deterrent against such *440 conduct already provided by criminal laws against perjury and subornation of perjury, the risk of self-censorship becomes too great. This is particularly so because it is very difficult if not impossible for attorneys to be absolutely certain of the objective truth or falsity of the testimony which they present. A prosecutor faced with a decision whether or not to call a witness whom he believes, but whose credibility he knows will be in doubt and whose testimony may be disbelieved by the jury, should be given every incentive to submit that witness' testimony to the crucible of the judicial process so that the fact finder may consider it, after cross-examination, together with the other evidence in the case to determine where the truth lies. "Absolute privilege has been conceded on obvious grounds of public policy to insure freedom of speech where it is essential that freedom of speech should exist. It is essential to the ends of justice that all persons participating in judicial proceedings (to take a typical class for illustration) should enjoy freedom of speech in the discharge of their public duties or in pursuing their rights, without fear of consequences." 9 Colo. L. Rev., at 469. For the above-stated reasons, I agree with the majority that history and policy support an absolute immunity for prosecutors from suits based solely on claims[5] that they knew or should have known that the testimony of a witness called by the prosecution was false; and I would not attribute to Congress an intention to remove such immunity in enacting 42 U.S. C. 1983. *441 Since the gravamen of the complaint in this case is that the prosecutor knew or should have known that certain testimony of a witness called by him was untrue and sincefor reasons set forth belowthe other allegations in the complaint fail to state a cause of action on any other theory, I concur in the judgment in this case. However, insofar as the majority's opinion implies an absolute immunity from suits for constitutional violations |
Justice White | 1,976 | 6 | concurring | Imbler v. Pachtman | https://www.courtlistener.com/opinion/109387/imbler-v-pachtman/ | opinion implies an absolute immunity from suits for constitutional violations other than those based on the prosecutor's decision to initiate proceedings or his actions in bringing information or argument to the court, I disagree. Most particularly I disagree with any implication that the absolute immunity extends to suits charging unconstitutional suppression of evidence. I There was no absolute immunity at common law for prosecutors other than absolute immunity from suits for malicious prosecution and defamation. There were simply no other causes of action at common law brought against prosecutors for conduct committed in their official capacity.[6] There is, for example, no reported case of a suit at common law against a prosecutor for suppression or nondisclosure of exculpatory evidence. Thus, even if this Court had accepted the proposition, which *442 it has not, that Congress incorporated in 42 U.S. C. 1983 all immunities existing at common law, it would not follow that prosecutors are absolutely immune from suit for all unconstitutional acts committed in the course of doing their jobs. Secondly, it is by no means true that such blanket absolute immunity is necessary or even helpful in protecting the judicial process. It should hardly need stating that, ordinarily, liability in damages for unconstitutional or otherwise illegal conduct has the very desirable effect of deterring such conduct. Indeed, this was precisely the proposition upon which 1983 was enacted. Absent special circumstances, such as those discussed in Part with respect to actions attacking the decision to prosecute or the bringing of evidence or argument to the court, one would expect that the judicial process would be protectedand indeed its integrity enhancedby denial of immunity to prosecutors who engage in unconstitutional conduct. The absolute immunity extended to prosecutors in defamation cases is designed to encourage them to bring information to the court which will resolve the criminal case. That is its single justification. Lest they withhold valuable but questionable evidence or refrain from making valuable but questionable arguments, prosecutors are protected from liability for submitting before the court information later determined to have been false to their knowledge.[7] It would stand this immunity rule on its head, however, to apply it to a suit based on a claim that *443 the prosecutor unconstitutionally withheld information from the court. Immunity from a suit based upon a claim that the prosecutor suppressed or withheld evidence would discourage precisely the disclosure of evidence sought to be encouraged by the rule granting prosecutors immunity from defamation suits. Denial of immunity for unconstitutional withholding of evidence would encourage such disclosure. A prosecutor seeking to protect himself from |
Justice White | 1,976 | 6 | concurring | Imbler v. Pachtman | https://www.courtlistener.com/opinion/109387/imbler-v-pachtman/ | encourage such disclosure. A prosecutor seeking to protect himself from liability for failure to disclose evidence may be induced to disclose more than is required. But, this will hardly injure the judicial process.[8] Indeed, it will help it. Accordingly, lower courts have held that unconstitutional suppression of exculpatory evidence is beyond the scope of "duties constituting an integral part of the judicial process" and have refused to extend absolute immunity to suits based on such claims. (CA6), cert. denied, ; ; Peterson v. Stanczak, 48 F. R. D. 426 (ND Ill. 1969). Contra, Equally important, unlike constitutional violations committed in the courtroomimproper summations, introduction of hearsay evidence in violation of the Confrontation Clause, knowing presentation of false testimony which truly are an "integral part of the judicial process," ante, at 416, the judicial process has no way to prevent or correct the constitutional violation of suppressing evidence. The judicial process will by definition be ignorant of the violation when it occurs; and it is *444 reasonable to suspect that most such violations never surface. It is all the more important, then, to deter such violations by permitting damage actions under 42 U.S. C. 1983 to be maintained in instances where violations do surface. The stakes are high. In a woman was convicted of second-degree murder upon entirely circumstantial evidence. The most incriminating item of evidence was the fact that the jacket worn by the defendant at the time of arrestand some curtains appeared to have bloodstains on them. The defendant denied that the stains were bloodstains but was convicted and subsequently spent a year in jail. Fortunately, in that case, the defendant later found out that an FBI reportof which the prosecutor had knowledge at the time of the trial and the existence of which he instructed a state investigator not to mention during his testimonyconcluded, after testing, that the stains were not bloodstains. On retrial, the defendant was acquitted. She sued the prosecutor and the state investigator under 42 U.S. C. 1983 claiming that the FBI report was unconstitutionally withheld under and obtained a damage award against both after trial. The prosecutor's petition for certiorari is now pending before this Court. cert. pending, No. 75-272. The state investigator's petition, in which he claimed that he had only followed the prosecutor's orders, has been denied. It is apparent that the injury to a defendant which can be caused by an unconstitutional suppression of exculpatory evidence is substantial, particularly if the evidence is never uncovered. It is virtually impossible to identify any injury to the judicial process resulting from a rule |
Justice White | 1,976 | 6 | concurring | Imbler v. Pachtman | https://www.courtlistener.com/opinion/109387/imbler-v-pachtman/ | any injury to the judicial process resulting from a rule permitting suits for such unconstitutional *445 conduct, and it is very easy to identify an injury to the process resulting from a rule which does not permit such suits. Where the reason for the rule extending absolute immunity to prosecutors disappears, it would truly be "monstrous to deny recovery." 177 F. 2d, at 581. IV The complaint in this case, while fundamentally based on the claim that the prosecutor knew or should have known that his witness had testified falsely in certain respects, does contain some allegations that exculpatory evidence and evidence relating to the witness' credibility had been suppressed. Insofar as the complaint is based on allegations of suppression or failure to disclose, the prosecutor should not, for the reasons set forth above, be absolutely immune. However, as the majority notes, the suppression of fingerprint evidence and the alleged suppression of information relating to certain pretrial lineups is not alleged to have been known in fact to the prosecutorit is simply claimed that the suppression is legally chargeable to him. While this may be so as a matter of federal habeas corpus law, it is untrue in a civil damage action. The result of a lie-detector test claimed to have been suppressed was allegedly known to respondent, but it would have been inadmissible at Imbler's trial and is thus not constitutionally required to be disclosed. The alteration of the police artist's composite sketch after Imbler was designated as the defendant is not alleged to have been suppressed and in fact appears not to have been suppressed. The opinion of the California Supreme Court on direct review of Imbler's conviction states that "the picture was modified later, following suggestions of Costello and other witnesses," and that court presumably had before it only the trial record. The other items allegedly suppressed *446 all relate to background information about only one of the three eyewitnesses to testify for the State, and were in large part concededly known to the defense and thus may not be accurately described as suppressed. The single alleged fact not concededly known to the defense which might have been helpful to the defense was that the State's witness had written some bad checks for small amounts and that a criminal charge based on one check was outstanding against him. However, the witness had an extensive criminal record which was known to but not fully used by the defense. Thus, even taken as true, the failure to disclose the check charges is patently insufficient to support a claim of |
Justice Scalia | 2,000 | 9 | dissenting | United States v. Playboy Entertainment Group, Inc. | https://www.courtlistener.com/opinion/118369/united-states-v-playboy-entertainment-group-inc/ | I agree with the principal dissent in this case that 505 of the Telecommunications Act of 1996, Stat. 136, 47 U.S. C. 561 (1994 ed., Supp. III), is supported by a compelling state interest and is narrowly tailored. I write separately to express my view that 505 can be upheld in simpler fashion: by finding that it regulates the business of obscenity. To be sure, 505 and the Federal Communications Commission's implementing regulation, see 47 CFR 76.227 (1999), purport to capture programming that is indecent rather than merely that which is obscene. And I will assume for purposes of this discussion (though it is a highly fanciful assumption) that none of the transmissions at issue independently crosses the boundary we have established for obscenity, see so that the individual programs themselves would enjoy First Amendment protection. In my view, however, that assumption does not put an end to the inquiry. We have recognized that commercial entities which engage in "the sordid business of pandering" by "deliberately emphasiz[ing] the sexually provocative aspects of [their nonobscene products], in order to catch the salaciously disposed," engage in constitutionally unprotected behavior. ; see also FW/ ; ; ; Cf. ("In my opinion, the use to which various materials are putnot just the words and pictures themselvesmust be considered in determining whether or not the materials are obscene"). This is so whether or not the products in which the business traffics independently meet the high hurdle we have established for delineating the obscene, viz., that they contain no "serious literary, artistic, political, or scientific value." Miller, at See We are more permissive of government regulation in these circumstances because it is clear from the context in which exchanges between such businesses and their customers occur that neither the merchant nor the buyer is interested in the work's literary, artistic, political, or scientific value. "The deliberate representation of petitioner's publications as erotically arousing stimulate[s] the reader to accept them as prurient; he looks for titillation, not for saving intellectual content." Thus, a business that "(1) offer[s] Hard core sexual material, (2) as a constant and intentional objective of [its] business, [and] (3) seek[s] to promote it as such" finds no sanctuary in the First Amendment. FW/ Section 505 regulates just this sort of business. Its coverage is limited to programming that "describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards [for cable television]." 47 CFR 76.227(d) (1999) It furthermore applies only to those channels that are "primarily dedicated to sexually-oriented programming." [1] 505(a) It is |
Justice Scalia | 2,000 | 9 | dissenting | United States v. Playboy Entertainment Group, Inc. | https://www.courtlistener.com/opinion/118369/united-states-v-playboy-entertainment-group-inc/ | are "primarily dedicated to sexually-oriented programming." [1] 505(a) It is conceivable, I suppose, that a channel which is primarily dedicated to sex *833 might not hold itself forth as primarily dedicated to sexin which case its productions which contain "serious literary, artistic, political, or scientific value" (if any) would be as entitled to First Amendment protection as the statuary rooms of the National Gallery. But in the competitive world of cable programming, the possibility that a channel devoted to sex would not advertise itself as such is sufficiently remote, and the number of such channels sufficiently small (if not indeed nonexistent), as not to render the provision substantially overbroad.[2] Playboy itself illustrates the type of business 505 is designed to reach. Playboy provides, through its networks Playboy Television, AdulTVision, Adam & Eve, and Spice *834 "virtually 100% sexually explicit adult programming." For example, on its Spice network, Playboy describes its own programming as depicting such activities as "female masturbation/external," "girl/ girl sex," and "oral sex/cunnilingus." 1 Record, Exh. 73, p. TWC00132. As one would expect, given this content, Playboy advertises accordingly, with calls to "Enjoy the sexiest, hottest adult movies in the privacy of your own home." 6 Exh. 136, at 2P009732. An example of the promotion for a particular movie is as follows: "Little miss country girls are aching for a quick roll in the hay! Watch southern hospitality pull out all the stops as these ravin' nymphos tear down the barn and light up the big country sky." 7 Exh. 226, at 2P009187. One may doubt whetheror marvel thatthis sort of embarrassingly juvenile promotion really attracts what Playboy assures us is an "adult" audience. But it is certainly marketing sex.[3] Thus, while I agree with Justice Breyer's childprotection analysis, it leaves me with the same feeling of *835 true-but-inadequate as the conclusion that Al Capone did not accurately report his income. It is not only children who can be protected from occasional uninvited exposure to what appellee calls "adult-oriented programming"; we can all be. Section 505 covers only businesses that engage in the "commercial exploitation of erotica solely for the sake of their prurient appeal," which, as Playboy's own advertisements make plain, is what "adult" programming is all about. In most contexts, contemporary American society has chosen to permit such commercial exploitation. That may be a wise democratic choice, if only because of the difficulty in many contexts (though not this one) of identifying the panderer to sex. It is, however, not a course compelled by the Constitution. Since the Government is entirely free to block these transmissions, |
Justice Brennan | 1,976 | 13 | dissenting | General Elec. Co. v. Gilbert | https://www.courtlistener.com/opinion/109565/general-elec-co-v-gilbert/ | The Court holds today that without violating Title VII of the Civil Rights Act of 196, 2 U.S. C. 2000e et seq., a private employer may adopt a disability plan that compensates employees for all temporary disabilities except one affecting exclusively women, pregnancy. I respectfully dissent. Today's holding not only repudiates the applicable administrative guideline promulgated by the agency charged by Congress *17 with implementation of the Act, but also rejects the unanimous conclusion of all six Courts of Appeals that have addressed this questio See Communications cert. pending, No. 7-1601; vacated on jurisdictional grounds, ; ; ; cert. pending, No. -536; cert. pending, No. -109. I This case is unusual in that it presents a question the resolution of which at first glance turns largely upon the conceptual framework chosen to identify and describe the operational features of the challenged disability program. By directing their focus upon the risks excluded from the otherwise comprehensive program, and upon the purported justifications for such exclusions, the Equal Employment Opportunity Commission, the women plaintiffs, and the lower courts reason that the pregnancy exclusion constitutes a prima facie violation of Title VII. This violation is triggered, they argue, because the omission of pregnancy from the program has the intent and effect of providing that "only women [are subjected] to a substantial risk of total loss of income because of temporary medical disability." Brief for EEOC as Amicus Curiae 12. The Court's framework is diametrically different. It views General Electric's plan as representing a gender-free assignment of risks in accordance with normal actuarial techniques. From this perspective the lone exclusion of pregnancy is not a violation of Title VII insofar as all other disabilities are mutually covered for both sexes. This reasoning relies primarily upon the descriptive statement borrowed from *18 : "There is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not." Ante, at 138. According to the Court, this assertedly neutral sorting process precludes the pregnancy omission from constituting a violation of Title VII. Presumably, it is not self-evident that either conceptual framework is more appropriate than the other, which can only mean that further inquiry is necessary to select the more accurate and realistic analytical approach. At the outset, the soundness of the Court's underlying assumption that the plan is the untainted product of a gender-neutral risk-assignment process can be examined against the historical backdrop of General Electric's employment practices and the existence or nonexistence of gender-free policies governing the inclusion of compensable risks. Secondly, |
Justice Brennan | 1,976 | 13 | dissenting | General Elec. Co. v. Gilbert | https://www.courtlistener.com/opinion/109565/general-elec-co-v-gilbert/ | of gender-free policies governing the inclusion of compensable risks. Secondly, the resulting pattern of risks insured by General Electric can then be evaluated in terms of the broad social objectives promoted by Title VII. I believe that the first inquiry compels the conclusion that the Court's assumption that General Electric engaged in a gender-neutral risk-assignment process is purely fanciful. The second demonstrates that the EEOC's interpretation that the exclusion of pregnancy from a disability insurance plan is incompatible with the overall objectives of Title VII has been unjustifiably rejected. II purports to be the starting point for the Court's analysis. There a state-operated disability insurance system containing a pregnancy exclusion was held not to violate the Equal Protection Clause. Although it quotes primarily from one footnote of that opinion at some length, ante, at 13-135, the Court finally does not grapple with Geduldig on its own terms. Considered most favorably to the Court's view, Geduldig established the proposition that a pregnancy classification *19 standing alone cannot be said to fall into the category of classifications that rest explicitly on "gender as such," 20. Beyond that, Geduldig offers little analysis helpful to decision of this case. Surely it offends common sense to suggest, ante, at 136, that a classification revolving around pregnancy is not, at the minimum, strongly "sex related." See, e. g., Cleveland Board of Indeed, even in the insurance context where neutral actuarial principles were found to have provided a legitimate and independent input into the decisionmaking process, Geduldig's outcome was qualified by the explicit reservation of a case where it could be demonstrated that a pregnancy-centered differentiation is used as a "mere pretext designed to effect an invidious discrimination against the members of one sex." 17 U.S., at 20. Thus, Geduldig itself obliges the Court to determine whether the exclusion of a sex-linked disability from the universe of compensable disabilities was actually the product of neutral, persuasive actuarial considerations, or rather stemmed from a policy that purposefully downgraded women's role in the labor force. In Geduldig, that inquiry coupled with the normal presumption favoring legislative action satisfied the Court that the pregnancy exclusion in fact was prompted by California's legitimate fiscal concerns, and therefore that California did not deny equal protection in effectuating reforms " `one step at a time.' " But the record in this case makes such deference impossible here. Instead, in reaching its conclusion that a showing of purposeful discrimination has not been made, ante, at 136, the Court simply disregards a history of General Electric practices that have served to undercut the employment opportunities |
Justice Brennan | 1,976 | 13 | dissenting | General Elec. Co. v. Gilbert | https://www.courtlistener.com/opinion/109565/general-elec-co-v-gilbert/ | Electric practices that have served to undercut the employment opportunities of women who become pregnant while employed.[1] Moreover, *150 the Court studiously ignores the undisturbed conclusion of the District Court that General Electric's "discriminatory attitude" toward women was "a motivating factor in its policy," and that the pregnancy exclusion was "neutral [neither] on its face" nor "in its intent."[2] Plainly then, the Court's appraisal of General Electric's policy as a neutral process of sorting risks and "not a gender-based discrimination at all," ante, at 136, cannot easily be squared with the historical record in this case. The Court, *151 therefore, proceeds to a discussion of purported neutral criteria that suffice to explain the lone exclusion of pregnancy from the program. The Court argues that pregnancy is not "comparable" to other disabilities since it is a "voluntary" condition rather than a "disease." The fallacy of this argument is that even if "non-voluntariness" and "disease" are to be construed as the operational criteria for inclusion of a disability in General Electric's program, application of these criteria is inconsistent with the Court's gender-neutral interpretation of the company's policy. For example, the characterization of pregnancy as "voluntary"[3] is not a persuasive factor, for as the Court of Appeals correctly noted, "other than for childbirth disability, [General Electric] had never construed its plan as eliminating all so-called `voluntary' disabilities," including sport injuries, attempted suicides, venereal disease, disabilities incurred in the commission of a crime or during a fight, and elective cosmetic surgery. Similarly, the label "disease" rather than "disability" cannot be deemed determinative since General Electric's pregnancy disqualification also excludes the 10% of pregnancies that end in debilitating the 10% of cases where pregnancies are complicated by "diseases" in the intuitive sense of the word, ib and cases where women recovering from childbirth are stricken by severe diseases unrelated to pregnancy.[] *152 Moreover, even the Court's principal argument for the plan's supposed gender neutrality cannot withstand analysis. The central analytical framework relied upon to demonstrate the absence of discrimination is the principle described in Geduldig: "There is no risk from which men are protected and women are not [and] no risk from which women are protected and men are not." 17 U.S., at quoted, ante, at 138. In fostering the impression that it is faced with a mere underinclusive assignment of risks in a gender-neutral fashionthat is, all other disabilities are insured irrespective of genderthe Court's analysis proves to be simplistic and misleading. For although all mutually contractible risks are covered irrespective of gender, but see the plan also insures risks such as prostatectomies, vasectomies, |
Justice Brennan | 1,976 | 13 | dissenting | General Elec. Co. v. Gilbert | https://www.courtlistener.com/opinion/109565/general-elec-co-v-gilbert/ | see the plan also insures risks such as prostatectomies, vasectomies, and circumcisions that are specific to the reproductive system of men and for which there exist no female counterparts covered by the pla Again, pregnancy affords the only disability, sex-specific or otherwise, that is excluded from coverage.[5] Accordingly, the District Court appropriately remarked: *153 "[T]he concern of defendants in reference to pregnancy risks, coupled with the apparent lack of concern regarding the balancing of other statistically sex-linked disabilities, buttresses the Court's conclusion that the discriminatory attitude characterized elsewhere in the Court's findings was in fact a motivating factor in its policy." 3 F. Supp., at If decision of this case, therefore, turns upon acceptance of the Court's view of General Electric's disability plan as a sex-neutral assignment of risks, or plaintiffs' perception of the plan as a sex-conscious process expressive of the secondary status of women in the company's labor force, the history of General Electric's employment practices and the absence of definable gender-neutral sorting criteria under the plan warrant rejection of the Court's view in deference to the plaintiffs'. Indeed, the fact that the Court's frame of reference lends itself to such intentional, sex-laden decisionmaking makes clear the wisdom and propriety of the EEOC's contrary approach to employment disability programs. III Of course, the demonstration of purposeful discrimination is not the only ground for recovery under Title VII. Notwithstanding unexplained and inexplicable implications to the contrary in the majority opinion,[6] this Court, see Washington ; Albemarle Paper ; McDonnell Douglas ; and every Court of Appeals[7] now have firmly settled that a *155 prima facie violation of Title VII, whether under 703 (a) (1) or 703 (a) (2), also is established by demonstrating that a facially neutral classification has the effect of discriminating against members of a defined class. General Electric's disability program has three divisible sets of effects. First, the plan covers all disabilities that mutually afflict both sexes. But see Second, the plan insures against all disabilities that are male-specific or have a predominant impact on males. Finally, all female-specific and female-impacted disabilities are covered, except for the most prevalent, pregnancy. The Court focuses on the first factorthe equal inclusion of mutual risksand therefore understandably can identify no discriminatory effect arising from the pla In contrast, the EEOC and plaintiffs rely upon the unequal exclusion manifested in effects two and three to pinpoint an adverse impact on wome However one defines the profile of risks protected by General Electric, the determinative question must be whether the social policies and aims to be furthered by Title VII and |
Justice Brennan | 1,976 | 13 | dissenting | General Elec. Co. v. Gilbert | https://www.courtlistener.com/opinion/109565/general-elec-co-v-gilbert/ | policies and aims to be furthered by Title VII and filtered through the phrase "to discriminate" contained in 703 (a) (1) fairly forbid an ultimate pattern of coverage that insures all risks except a commonplace one that is applicable to women but not to me As a matter of law and policy, this is a paradigm example of the type of complex economic and social inquiry that Congress wisely left to resolution by the EEOC pursuant to its Title VII mandate. See H. R. Rep. No. 92-238, p. 8 (1972). And, accordingly, prior Title VII decisions have consistently acknowledged the unique persuasiveness of EEOC *156 interpretations in this area. These prior decisions, rather than providing merely that Commission guidelines are "entitled to consideration," as the Court allows, ante, at 11, hold that the EEOC's interpretations should receive "great deference." Albemarle Paper at 31; at 33-3; 00 U.S. 52, 55 Nonetheless, the Court today abandons this standard in order squarely to repudiate the 1972 Commission guideline providing that "[d]isabilities caused or contributed to by pregnancy. are, for all job-related purposes, temporary disabilities. [under] any health or temporary disability insurance or sick leave plan" 29 CFR 160.10 This rejection is attributed to two interrelated events: an 8-year delay between Title VII's enactment and the promulgation of the Commission's guideline, and interim letters by the EEOC's General Counsel expressing the view that pregnancy is not necessarily includable as a compensable disability. Neither event supports the Court's refusal to accord "great deference" to the EEOC's interpretatio It is true, as noted, ante, at 13, that only brief mention of sex discrimination appears in the early legislative history of Title VII. It should not be surprising, therefore, that the EEOC, charged with a fresh and uncharted mandate, candidly acknowledged that further study was required before the contours of sex discrimination as proscribed by Congress could be defined. See 30 Fed. Reg. 1927 (1965). Although proceeding cautiously, the Commission from the outset acknowledged the relationship between sex discrimination and pregnancy, announcing that "policies would have to be devised which afforded female employees reasonable job protection during periods of pregnancy." EEOC First Annual Report to Congress, Fiscal Year 1965-1966, p. 0 (1967). During the succeeding seven years, the EEOC worked to develop a coherent policy toward pregnancy-oriented employment practices *157 both through the pursuit of its normal adjudicatory functions[8] and by engaging in comprehensive studies with such organizations as the President's Citizens' Advisory Council on the Status of Wome See, e. g., Address of Jacqueline G. Gutwillig, Chairwoman, Citizens' Advisory Council, cited in App. 1159. These investigations |
Justice Brennan | 1,976 | 13 | dissenting | General Elec. Co. v. Gilbert | https://www.courtlistener.com/opinion/109565/general-elec-co-v-gilbert/ | Chairwoman, Citizens' Advisory Council, cited in App. 1159. These investigations on the role of pregnancy in the labor market coupled with the Commission's "review. [of] its case decisions on maternity preparatory to issuing formal guidelines," culminated in the 1972 guideline, the agency's first formalized, systematic statement on "employment policies relating to pregnancy and childbirth." Therefore, while some eight years had elapsed prior to the issuance of the 1972 guideline, and earlier opinion letters had refused to impose liability on employers during this period of deliberation, no one can or does deny that the final EEOC determination followed thorough and well-informed consideratio Indeed, realistically viewed, this extended evaluation of an admittedly complex problem and an unwillingness to impose additional, potentially premature costs on employers during the decisionmaking stages ought to be perceived as a practice to be commended. It is bitter irony that the care that preceded promulgation of the 1972 guideline is today condemned by the Court as tardy indecisiveness, its unwillingness irresponsibly to challenge employers' practices during the formative period is labeled as evidence of inconsistency, and this indecisiveness and inconsistency are bootstrapped into reasons for denying the Commission's interpretation its due deference. For me, the 1972 guideline represents a particularly conscientious and reasonable product of EEOC deliberations and, therefore, merits our "great deference." Certainly, I can find *158 no basis for concluding that the guideline is out of step with congressional intent. See Espinoza v. Farah Mfg. 1 U.S. 86, 9 On the contrary, prior to 1972, Congress enacted just such a pregnancy-inclusive rule to govern the distribution of benefits for "sickness" under the Railroad Unemployment Insurance Act, 5 U.S. C. 351 (k) (2). Furthermore, shortly following the announcement of the EEOC's rule, Congress approved and the President signed an essentially identical promulgation by the Department of Health, Education, and Welfare under Title IX of the Education Amendments of 1972, 20 U.S. C. 1681 (a) (1970 ed., Supp. V). See 5 CFR 86.57 Moreover, federal workers subject to the jurisdiction of the Civil Service Commission now are eligible for maternity and pregnancy coverage under their sick leave program. See Federal Personnel Manual, ch. 630, subch. 13, S13-2 These policy formulations are reasonable responses to the uniform testimony of governmental investigations which show that pregnancy exclusions built into disability programs both financially burden women workers and act to break down the continuity of the employment relationship, thereby exacerbating women's comparatively transient role in the labor force. See, e. g., U. S. Dept. of Commerce, Consumer Income ; Women's Bureau, U. S. Dept. of Labor, Underutilization of Women Workers In |
Justice Brennan | 1,976 | 13 | dissenting | General Elec. Co. v. Gilbert | https://www.courtlistener.com/opinion/109565/general-elec-co-v-gilbert/ | U. S. Dept. of Labor, Underutilization of Women Workers In dictating pregnancy coverage under Title VII, the EEOC's guideline merely settled upon a solution now accepted by every other Western industrial country. Dept. of Health, Education, and Welfare, Social Security Programs Throughout the World, 1971, pp. ix, xviii, xix (Research Report No. 0). I find it difficult to comprehend that such a construction can be anything but a "sufficiently reasonable" one to be "accepted by the reviewing courts." 21 U.S. 60, *159 The Court's belief that the concept of discrimination cannot reach disability policies effecting "an additional risk, unique to women" ante, at 139, is plainly out of step with the decision three Terms ago in 1 U.S. 563 interpreting another provision of the Civil Rights Act. There a unanimous Court recognized that discrimination is a social phenomenon encased in a social context and, therefore, unavoidably takes its meaning from the desired end products of the relevant legislative enactment, end products that may demand due consideration to the uniqueness of "disadvantaged" individuals.[9] A realistic understanding of conditions found in today's labor environment warrants taking pregnancy into account in fashioning disability policies. Unlike the hypothetical situations conjectured by the Court, ante, at 139-10, and 17, contemporary disability *160 programs are not creatures of a social or cultural vacuum devoid of stereotypes and signals concerning the pregnant woman employee. Indeed, no one seriously contends that General Electric or other companies actually conceptualized or developed their comprehensive insurance programs disability-by-disability in a strictly sex-neutral fashio[10] Instead, the company has devised a policy that, but for pregnancy, offers protection for all risks, even those that are "unique to" men or heavily male dominated. In light of this social experience, the history of General Electric's employment practices, the otherwise all-inclusive design of its disability program, and the burdened role of the contemporary working woman, the EEOC's construction of sex discrimination under 703 (a) (1) is fully consonant with the ultimate objective of Title VII, "to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered [sexually] stratified job environments to the disadvantage of [women]." McDonnell Douglas 11 U. S., at 800. I would affirm the judgment of the Court of Appeals. MR. |
Justice O'Connor | 1,988 | 14 | majority | Lyng v. Northwest Indian Cemetery Protective Assn. | https://www.courtlistener.com/opinion/112037/lyng-v-northwest-indian-cemetery-protective-assn/ | This case requires us to consider whether the First Amendment's Free Exercise Clause prohibits the Government from permitting timber harvesting in, or constructing a road through, a portion of a National Forest that has traditionally *442 been used for religious purposes by members of three American Indian tribes in northwestern California. We conclude that it does not. I As part of a project to create a paved 75-mile road linking two California towns, Gasquet and Orleans, the United States Forest Service has upgraded 49 miles of previously unpaved roads on federal land. In order to complete this project (the G-O road), the Forest Service must build a 6-mile paved segment through the Chimney Rock section of the Six Rivers National Forest. That section of the forest is situated between two other portions of the road that are already complete. In 1977, the Forest Service issued a draft environmental impact statement that discussed proposals for upgrading an existing unpaved road that runs through the Chimney Rock area. In response to comments on the draft statement, the Forest Service commissioned a study of American Indian cultural and religious sites in the area. The Hoopa Valley Indian Reservation adjoins the Six Rivers National Forest, and the Chimney Rock area has historically been used for religious purposes by Yurok, Karok, and Tolowa Indians. The commissioned study, which was completed in 1979, found that the entire area "is significant as an integral and indispensible part of Indian religious conceptualization and practice." App. 181. Specific sites are used for certain rituals, and "successful use of the [area] is dependent upon and facilitated by certain qualities of the physical environment, the most important of which are privacy, silence, and an undisturbed natural setting." The study concluded that constructing a road along any of the available routes "would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples." Accordingly, the report recommended that the G-O road not be completed. *443 In 1982, the Forest Service decided not to adopt this recommendation, and it prepared a final environmental impact statement for construction of the road. The Regional Forester selected a route that avoided archeological sites and was removed as far as possible from the sites used by contemporary Indians for specific spiritual activities. Alternative routes that would have avoided the Chimney Rock area altogether were rejected because they would have required the acquisition of private land, had serious soil stability problems, and would in any event have traversed areas having ritualistic value |
Justice O'Connor | 1,988 | 14 | majority | Lyng v. Northwest Indian Cemetery Protective Assn. | https://www.courtlistener.com/opinion/112037/lyng-v-northwest-indian-cemetery-protective-assn/ | would in any event have traversed areas having ritualistic value to American Indians. See At about the same time, the Forest Service adopted a management plan allowing for the harvesting of significant amounts of timber in this area of the forest. The management plan provided for one-half mile protective zones around all the religious sites identified in the report that had been commissioned in connection with the G-O road. After exhausting their administrative remedies, respondents an Indian organization, individual Indians, nature organizations and individual members of those organizations, and the State of California challenged both the road-building and timber-harvesting decisions in the United States District Court for the Northern District of California. Respondents claimed that the Forest Service's decisions violated the Free Exercise Clause, the Federal Water Pollution Control Act (FWPCA), as amended, 33 U.S. C. 1251 et seq., the National Environmental Policy Act of 1969 (NEPA), 42 U.S. C. 4321 et seq., several other federal statutes, and governmental trust responsibilities to Indians living on the Hoopa Valley Reservation. After a trial, the District Court issued a permanent injunction prohibiting the Government from constructing the Chimney Rock section of the G-O road or putting the timber-harvesting management plan into effect. See Northwest Indian Cemetery Protective The court found that both actions would violate *444 the Free Exercise Clause because they "would seriously damage the salient visual, aural, and environmental qualities of the high country." The court also found that both proposed actions would violate the FWPCA, and that the environmental impact statements for construction of the road were deficient under the NEPA. Finally, the court concluded that both projects would breach the Government's trust responsibilities to protect water and fishing rights reserved to the Hoopa Valley Indians. While an appeal was pending before the United States Court of Appeals for the Ninth Circuit, Congress enacted the California Wilderness Act of 1984, Stat. 1619. Under that statute, much of the property covered by the Forest Service's management plan is now designated a wilderness area, which means that commercial activities such as timber harvesting are forbidden. The statute exempts a narrow strip of land, coinciding with the Forest Service's proposed route for the remaining segment of the G-O road, from the wilderness designation. The legislative history indicates that this exemption was adopted "to enable the completion of the Gasquet-Orleans Road project if the responsible authorities so decide." S. Rep. No. 98-582, p. 29 The existing unpaved section of road, however, lies within the wilderness area and is therefore now closed to general traffic. A panel of the Ninth Circuit affirmed |
Justice O'Connor | 1,988 | 14 | majority | Lyng v. Northwest Indian Cemetery Protective Assn. | https://www.courtlistener.com/opinion/112037/lyng-v-northwest-indian-cemetery-protective-assn/ | to general traffic. A panel of the Ninth Circuit affirmed in part. Northwest Indian Cemetery Protective The panel unanimously rejected the District Court's conclusion that the Government's proposed actions would breach its trust responsibilities to Indians on the Hoopa Valley Reservation. The panel also vacated the injunction to the extent that it had been rendered moot by the California Wilderness Act, which now prevents timber harvesting in certain areas covered by the District Court's order. The District Court's decision, to the extent that it rested on statutory grounds, was otherwise unanimously affirmed. *445 By a divided decision, the District Court's constitutional ruling was also affirmed. Relying primarily on the Forest Service's own commissioned study, the majority found that construction of the Chimney Rock section of the G-O road would have significant, though largely indirect, adverse effects on Indian religious practices. The majority concluded that the Government had failed to demonstrate a compelling interest in the completion of the road, and that it could have abandoned the road without thereby creating "a religious preserve for a single group in violation of the establishment clause." The majority apparently applied the same analysis to logging operations that might be carried out in portions of the Chimney Rock area not covered by the California Wilderness Act. See The dissenting judge argued that certain of the adverse effects on the Indian respondents' religious practices could be eliminated by less drastic measures than a ban on building the road, and that other actual or suggested adverse effects did not pose a serious threat to the Indians' religious practices. He also concluded that the injunction against timber harvesting needed to be reconsidered in light of the California Wilderness Act: "It is not clear whether the district court would have issued an injunction based upon the development of the remaining small parcels. Accordingly, I would remand to allow the district court to reevaluate its injunction in light of the Act." II We begin by noting that the courts below did not articulate the bases of their decisions with perfect clarity. A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them. See Three *446 Affiliated Tribes of Ft. Berthold ; see also, e. g., ; Gulf Oil ; This principle required the courts below to determine, before addressing the constitutional issue, whether a decision on that question could have entitled respondents to relief beyond that to which they were entitled on their statutory claims. If no additional relief would have been warranted, a constitutional decision would |
Justice O'Connor | 1,988 | 14 | majority | Lyng v. Northwest Indian Cemetery Protective Assn. | https://www.courtlistener.com/opinion/112037/lyng-v-northwest-indian-cemetery-protective-assn/ | additional relief would have been warranted, a constitutional decision would have been unnecessary and therefore inappropriate. Neither the District Court nor the Court of Appeals explained or expressly articulated the necessity for their constitutional holdings. Were we persuaded that those holdings were unnecessary, we could simply vacate the relevant portions of the judgment below without discussing the merits of the constitutional issue. The structure and wording of the District Court's injunctive order, however, suggest that the statutory holdings would not have supported all the relief granted. The order is divided into four sections. Two of those sections deal with a 31,100-acre tract referred to as the Blue Creek Roadless Area. The injunction prohibits the Forest Service from engaging in timber harvesting or road building anywhere on the tract "unless and until" compliance with the NEPA and the FWPCA have been demonstrated. -607. The sections of the injunction dealing with the smaller Chimney Rock area (i. e., the area affected by the First Amendment challenge) are worded differently. The Forest Service is permanently enjoined, without any qualifying language, from constructing the proposed portion of the G-O road "and/or any alternative route" through that area; similarly, the injunction forbids timber harvesting or the construction of logging roads in the Chimney Rock area pursuant to the Forest Service's proposed management plan "or any other land management plan." *447 These differences in wording suggest, without absolutely implying, that an injunction covering the Chimney Rock area would in some way have been conditional, or narrower in scope, if the District Court had not decided the First Amendment issue as it did. Similarly, the silence of the Court of Appeals as to the necessity of reaching the First Amendment issue may have reflected its understanding that the District Court's injunction necessarily rested in part on constitutional grounds. Because it appears reasonably likely that the First Amendment issue was necessary to the decisions below, we believe that it would be inadvisable to vacate and remand without addressing that issue on the merits. This conclusion is strengthened by considerations of judicial economy. The Government, which petitioned for certiorari on the constitutional issue alone, has informed us that it believes it can cure the statutory defects identified below, intends to do so, and will not challenge the adverse statutory rulings. Tr. of Oral Arg. 9-10. In this circumstance, it is difficult to see what principle would be vindicated by sending this case on what would almost certainly be a brief round trip to the courts below. III A The Free Exercise Clause of the First Amendment provides that "Congress |
Justice O'Connor | 1,988 | 14 | majority | Lyng v. Northwest Indian Cemetery Protective Assn. | https://www.courtlistener.com/opinion/112037/lyng-v-northwest-indian-cemetery-protective-assn/ | Free Exercise Clause of the First Amendment provides that "Congress shall make no law prohibiting the free exercise [of religion]." It is undisputed that the Indian respondents' beliefs are sincere and that the Government's proposed actions will have severe adverse effects on the practice of their religion. Those respondents contend that the burden on their religious practices is heavy enough to violate the Free Exercise Clause unless the Government can demonstrate a compelling need to complete the G-O road or to engage in timber harvesting in the Chimney Rock area. We disagree. *448 In we considered a challenge to a federal statute that required the States to use Social Security numbers in administering certain welfare programs. Two applicants for benefits under these programs contended that their religious beliefs prevented them from acceding to the use of a Social Security number for their 2-year-old daughter because the use of a numerical identifier would " `rob the spirit' of [their] daughter and prevent her from attaining greater spiritual power." Similarly, in this case, it is said that disruption of the natural environment caused by the G-O road will diminish the sacredness of the area in question and create distractions that will interfere with "training and ongoing religious experience of individuals using [sites within] the area for personal medicine and growth and as integrated parts of a system of religious belief and practice which correlates ascending degrees of personal power with a geographic hierarchy of power." App. 181. Cf. The Court rejected this kind of challenge in : "The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that [the s] engage in any set form of religious observance, so [they] may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter. ". The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures." 476 U.S., at 6-700. *449 The building of a road or the harvesting of timber on publicly owned land cannot meaningfully be distinguished from the use of a Social Security number in In both cases, the challenged Government action would interfere significantly with private persons' ability to pursue spiritual fulfillment according to their own religious beliefs. In neither case, however, would the affected individuals be coerced by the Government's action into violating |
Justice O'Connor | 1,988 | 14 | majority | Lyng v. Northwest Indian Cemetery Protective Assn. | https://www.courtlistener.com/opinion/112037/lyng-v-northwest-indian-cemetery-protective-assn/ | affected individuals be coerced by the Government's action into violating their religious beliefs; nor would either governmental action penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens. We are asked to distinguish this case from on the ground that the infringement on religious liberty here is "significantly greater," or on the ground that the Government practice in was "purely mechanical" whereas this case involves "a case-by-case substantive determination as to how a particular unit of land will be managed." Brief for Indian Respondents 33-34. Similarly, we are told that this case can be distinguished from because "the government action is not at some physically removed location where it places no restriction on what a practitioner may do." Brief for Respondent State of California 18. The State suggests that the Social Security number in "could be characterized as interfering with 's religious tenets from a subjective point of view, where the government's conduct of `its own internal affairs' was known to him only secondhand and did not interfere with his ability to practice his religion." In this case, however, it is said that the proposed road will "physically destro[y] the environmental conditions and the privacy without which the [religious] practices cannot be conducted." These efforts to distinguish are unavailing. This Court cannot determine the truth of the underlying beliefs that led to the religious objections here or in see and accordingly cannot weigh the adverse effects *450 on the appellees in and compare them with the adverse effects on the Indian respondents. Without the ability to make such comparisons, we cannot say that the one form of incidental interference with an individual's spiritual activities should be subjected to a different constitutional analysis than the other. Respondents insist, nonetheless, that the courts below properly relied on a factual inquiry into the degree to which the Indians' spiritual practices would become ineffectual if the G-O road were built. They rely on several cases in which this Court has sustained free exercise challenges to government programs that interfered with individuals' ability to practice their religion. See ; ; ; Even apart from the inconsistency between and respondents' reading of these cases, their interpretation will not withstand analysis. It is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment. Thus, for example, ineligibility for unemployment benefits, based solely on a refusal to violate the Sabbath, has been analogized to a fine imposed on |
Justice O'Connor | 1,988 | 14 | majority | Lyng v. Northwest Indian Cemetery Protective Assn. | https://www.courtlistener.com/opinion/112037/lyng-v-northwest-indian-cemetery-protective-assn/ | the Sabbath, has been analogized to a fine imposed on Sabbath worship. Sherbert, This does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification *451 for its otherwise lawful actions. The crucial word in the constitutional text is "prohibit": "For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government." Sherbert, Whatever may be the exact line between unconstitutional prohibitions on the free exercise of religion and the legitimate conduct by government of its own affairs, the location of the line cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. The Government does not dispute, and we have no reason to doubt, that the logging and road-building projects at issue in this case could have devastating effects on traditional Indian religious practices. Those practices are intimately and inextricably bound up with the unique features of the Chimney Rock area, which is known to the Indians as the "high country." Individual practitioners use this area for personal spiritual development; some of their activities are believed to be critically important in advancing the welfare of the Tribe, and indeed, of mankind itself. The Indians use this area, as they have used it for a very long time, to conduct a wide variety of specific rituals that aim to accomplish their religious goals. According to their beliefs, the rituals would not be efficacious if conducted at other sites than the ones traditionally used, and too much disturbance of the area's natural state would clearly render any meaningful continuation of traditional practices impossible. To be sure, the Indians themselves were far from unanimous in opposing the G-O road, see App. 180, and it seems less than certain that construction of the road will be so disruptive that it will doom their religion. Nevertheless, we can assume that the threat to the efficacy of at least some religious practices is extremely grave. Even if we assume that we should accept the Ninth Circuit's prediction, according to which the G-O road will "virtually destroy the Indians' ability to practice their religion," *452 795 F. 2d, at 693 (opinion below), the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. However much we might wish that it were otherwise, government simply could |
Justice O'Connor | 1,988 | 14 | majority | Lyng v. Northwest Indian Cemetery Protective Assn. | https://www.courtlistener.com/opinion/112037/lyng-v-northwest-indian-cemetery-protective-assn/ | we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen's religious needs and desires. A broad range of government activities from social welfare programs to foreign aid to conservation projects will always be considered essential to the spiritual well-being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion. The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours. That task, to the extent that it is feasible, is for the legislatures and other institutions. Cf. The Federalist No. 10 (suggesting that the effects of religious factionalism are best restrained through competition among a multiplicity of religious sects). One need not look far beyond the present case to see why the analysis in but not respondents' proposed extension of Sherbert and its progeny, offers a sound reading of the Constitution. Respondents attempt to stress the limits of the religious servitude that they are now seeking to impose on the Chimney Rock area of the Six Rivers National Forest. While defending an injunction against logging operations and the construction of a road, they apparently do not at present object to the area's being used by recreational visitors, other Indians, or forest rangers. Nothing in the principle for which they contend, however, would distinguish this case from another lawsuit in which they (or similarly situated religious objectors) might seek to exclude all human activity but *453 their own from sacred areas of the public lands. The Indian respondents insist that "[p]rivacy during the power quests is required for the practitioners to maintain the purity needed for a successful journey." Brief for Indian Respondents 8 (emphasis added; citation to record omitted). Similarly: "The practices conducted in the high country entail intense meditation and require the practitioner to achieve a profound awareness of the natural environment. Prayer seats are oriented so there is an unobstructed view, and the practitioner must be surrounded by undisturbed naturalness." No disrespect for these practices is implied when one notes that such beliefs could easily require de facto beneficial ownership of some rather spacious |
Justice O'Connor | 1,988 | 14 | majority | Lyng v. Northwest Indian Cemetery Protective Assn. | https://www.courtlistener.com/opinion/112037/lyng-v-northwest-indian-cemetery-protective-assn/ | easily require de facto beneficial ownership of some rather spacious tracts of public property. Even without anticipating future cases, the diminution of the Government's property rights, and the concomitant subsidy of the Indian religion, would in this case be far from trivial: the District Court's order permanently forbade commercial timber harvesting, or the construction of a two-lane road, anywhere within an area covering a full 27 sections (i. e. more than 17,000 acres) of public land. The Constitution does not permit government to discriminate against religions that treat particular physical sites as sacred, and a law prohibiting the Indian respondents from visiting the Chimney Rock area would raise a different set of constitutional questions. Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land. Cf. -727 (distinguishing between the Government's use of information in its possession and the Government's requiring an individual to provide such information). B Nothing in our opinion should be read to encourage governmental insensitivity to the religious needs of any citizen. *454 The Government's rights to the use of its own land, for example, need not and should not discourage it from accommodating religious practices like those engaged in by the Indian respondents. Cf. Sherbert, -423 It is worth emphasizing, therefore, that the Government has taken numerous steps in this very case to minimize the impact that construction of the G-O road will have on the Indians' religious activities. First, the Forest Service commissioned a comprehensive study of the effects that the project would have on the cultural and religious value of the Chimney Rock area. The resulting 423-page report was so sympathetic to the Indians' interests that it has constituted the principal piece of evidence relied on by respondents throughout this litigation. Although the Forest Service did not in the end adopt the report's recommendation that the project be abandoned, many other ameliorative measures were planned. No sites where specific rituals take place were to be disturbed. In fact, a major factor in choosing among alternative routes for the road was the relation of the various routes to religious sites: the route selected by the Regional Forester is, he noted, "the farthest removed from contemporary spiritual sites; thus, the adverse audible intrusions associated with the road would be less than all other alternatives." App. 102. Nor were the Forest Service's concerns limited to "audible intrusions." As the dissenting judge below observed, 10 specific steps were planned to reduce the visual impact of the road |
Justice O'Connor | 1,988 | 14 | majority | Lyng v. Northwest Indian Cemetery Protective Assn. | https://www.courtlistener.com/opinion/112037/lyng-v-northwest-indian-cemetery-protective-assn/ | were planned to reduce the visual impact of the road on the surrounding country. See Except for abandoning its project entirely, and thereby leaving the two existing segments of road to dead-end in the middle of a National Forest, it is difficult to see how the Government could have been more solicitous. Such solicitude accords with "the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions *455 of the American Indian including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." American Indian Religious Freedom Act (AIRFA), Stat. 469, 42 U.S. C. 16. Respondents, however, suggest that AIRFA goes further and in effect enacts their interpretation of the First Amendment into statutory law. Although this contention was rejected by the District Court, they seek to defend the judgment below by arguing that AIRFA authorizes the injunction against completion of the G-O road. This argument is without merit. After reciting several legislative findings, AIRFA "resolves" upon the policy quoted above. A second section of the statute, required an evaluation of federal policies and procedures, in consultation with native religious leaders, of changes necessary to protect and preserve the rights and practices in question. The required report dealing with this evaluation was completed and released in 1979. Reply Brief for Petitioners 2, n. 3. Nowhere in the law is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights. What is obvious from the face of the statute is confirmed by numerous indications in the legislative history. The sponsor of the bill that became AIRFA, Representative Udall, called it "a sense of Congress joint resolution," aimed at ensuring that "the basic right of the Indian people to exercise their traditional religious practices is not infringed without a clear decision on the part of the Congress or the administrators that such religious practices must yield to some higher consideration." 124 Cong. Rec. 21444 (1978). Representative Udall emphasized that the bill would not "confer special religious rights on Indians," would "not change any existing State or Federal law," and in fact "has no teeth in it." *456 C The dissent proposes an approach to the First Amendment that is fundamentally inconsistent with the principles on which our decision rests. Notwithstanding the sympathy that we all must feel for the plight of the Indian respondents, it is plain that the approach taken by the |
Justice O'Connor | 1,988 | 14 | majority | Lyng v. Northwest Indian Cemetery Protective Assn. | https://www.courtlistener.com/opinion/112037/lyng-v-northwest-indian-cemetery-protective-assn/ | respondents, it is plain that the approach taken by the dissent cannot withstand analysis. On the contrary, the path towards which it points us is incompatible with the text of the Constitution, with the precedents of this Court, and with a responsible sense of our own institutional role. The dissent begins by asserting that the "constitutional guarantee we interpret today is directed against any form of government action that frustrates or inhibits religious practice." Post, at 459 The Constitution, however, says no such thing. Rather, it states: "Congress shall make no law prohibiting the free exercise [of religion]." U. S. Const., Amdt. 1 As we explained above, rejected a First Amendment challenge to Government activities that the religious objectors sincerely believed would " ` "rob the spirit" of [their] daughter and prevent her from attaining greater spiritual power.' " See (quoting 476 U. S., ). The dissent now offers to distinguish that case by saying that the Government was acting there "in a purely internal manner," whereas land-use decisions "are likely to have substantial external effects." Post, at 470. Whatever the source or meaning of the dissent's distinction, it has no basis in Robbing the spirit of a child, and preventing her from attaining greater spiritual power, is both a "substantial external effect" and one that is remarkably similar to the injury claimed by respondents in the case before us today. The dissent's reading of would effectively overrule that decision, without providing any compelling justification for doing so. The dissent also misreads The statute at issue in that case prohibited the *457 Amish parents, on pain of criminal prosecution, from providing their children with the kind of education required by the Amish religion. The statute directly compelled the Amish to send their children to public high schools "contrary to the Amish religion and way of life." The Court acknowledged that the statute might be constitutional, despite its coercive nature, if the State could show with sufficient "particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish." The dissent's out-of-context quotations notwithstanding, there is nothing whatsoever in the Yoder opinion to support the proposition that the "impact" on the Amish religion would have been constitutionally problematic if the statute at issue had not been coercive in nature. Cf. post, at 466. Perceiving a "stress point in the longstanding conflict between two disparate cultures," the dissent attacks us for declining to "balanc[e] these competing and potentially irreconcilable interests, choosing instead to turn this difficult task over to the Federal Legislature." Post, at |
Justice O'Connor | 1,988 | 14 | majority | Lyng v. Northwest Indian Cemetery Protective Assn. | https://www.courtlistener.com/opinion/112037/lyng-v-northwest-indian-cemetery-protective-assn/ | this difficult task over to the Federal Legislature." Post, at 473. Seeing the Court as the arbiter, the dissent proposes a legal test under which it would decide which public lands are "central" or "indispensable" to which religions, and by implication which are "dispensable" or "peripheral," and would then decide which government programs are "compelling" enough to justify "infringement of those practices." Post, at 475. We would accordingly be required to weigh the value of every religious belief and practice that is said to be threatened by any government program. Unless a "showing of `centrality,' " post, at 474, is nothing but an assertion of centrality, see post, at 475, the dissent thus offers us the prospect of this Court's holding that some sincerely held religious beliefs and practices are not "central" to certain religions, despite protestations to the contrary from the religious objectors who brought the lawsuit. In other words, the dissent's approach would *458 require us to rule that some religious adherents misunderstand their own religious beliefs. We think such an approach cannot be squared with the Constitution or with our precedents, and that it would cast the Judiciary in a role that we were never intended to play. IV The decision of the court below, according to which the First Amendment precludes the Government from completing the G-O road or from permitting timber harvesting in the Chimney Rock area, is reversed. In order that the District Court's injunction may be reconsidered in light of this holding, and in the light of any other relevant events that may have intervened since the injunction issued, the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of this case. |
Justice Stevens | 2,005 | 16 | majority | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was "projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas." 843 A.2d 00, 07 In assembling the land needed for this project, the city's development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation. The question presented is whether the city's proposed disposition of this property qualifies as a "public use" within the meaning of the Takings Clause of the Fifth Amendment to the Constitution.[1] *473 I The city of New London (hereinafter City) sits at the junction of the Thames River and the Long Island Sound in southeastern Connecticut. Decades of economic decline led a state agency in 1990 to designate the City a "distressed municipality." In 1996, the Federal Government closed the Naval Undersea Warfare Center, which had been located in the Fort Trumbull area of the City and had employed over 1,00 people. In 1998, the City's unemployment rate was nearly double that of the State, and its population of just under 24,000 residents was at its lowest since 1920. These conditions prompted state and local officials to target New London, and particularly its Fort Trumbull area, for economic revitalization. To this end, respondent New London Development Corporation (NLDC), a private nonprofit entity established some years earlier to assist the City in planning economic development, was reactivated. In January 1998, the State authorized a $.3 million bond issue to support the NLDC's planning activities and a $10 million bond issue toward the creation of a Fort Trumbull State Park. In February, the pharmaceutical company Pfizer Inc. announced that it would build a $300 million research facility on a site immediately adjacent to Fort Trumbull; local planners hoped that Pfizer would draw new business to the area, thereby serving as a catalyst to the area's rejuvenation. After receiving initial approval from the city council, the NLDC continued its planning activities and held a series of neighborhood meetings to educate the public about the process. In May, the city council authorized the NLDC to formally submit its plans to the relevant state agencies for review.[2] Upon obtaining state-level approval, the NLDC *474 finalized an integrated development plan focused on 90 acres of the Fort Trumbull area. The Fort Trumbull area is situated on a peninsula that juts into |
Justice Stevens | 2,005 | 16 | majority | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | Trumbull area is situated on a peninsula that juts into the Thames River. The area comprises approximately 11 privately owned properties, as well as the 32 acres of land formerly occupied by the naval facility (Trumbull State Park now occupies 18 of those 32 acres). The development plan encompasses seven parcels. Parcel 1 is designated for a waterfront conference hotel at the center of a "small urban village" that will include restaurants and shopping. This parcel will also have marinas for both recreational and commercial uses. A pedestrian "riverwalk" will originate here and continue down the coast, connecting the waterfront areas of the development. Parcel 2 will be the site of approximately 80 new residences organized into an urban neighborhood and linked by public walkway to the remainder of the development, including the state park. This parcel also includes space reserved for a new U. S. Coast Guard Museum. Parcel 3, which is located immediately north of the Pfizer facility, will contain at least 90,000 square feet of research and development office space. Parcel 4A is a 2.4-acre site that will be used either to support the adjacent state park, by providing parking or retail services for visitors, or to support the nearby marina. Parcel 4B will include a renovated marina, as well as the final stretch of the riverwalk. Parcels 6, and 7 will provide land for office and retail space, parking, and water-dependent commercial uses. App. 109-113. The NLDC intended the development plan to capitalize on the arrival of the Pfizer facility and the new commerce it was expected to attract. In addition to creating jobs, generating tax revenue, and helping to "build momentum for the revitalization of downtown New London," the plan was also designed to make the City more attractive and to create *47 leisure and recreational opportunities on the waterfront and in the park. The city council approved the plan in January 2000, and designated the NLDC as its development agent in charge of implementation. See (200). The city council also authorized the NLDC to purchase property or to acquire property by exercising eminent domain in the City's name. 8-193. The NLDC successfully negotiated the purchase of most of the real estate in the 90-acre area, but its negotiations with petitioners failed. As a consequence, in November 2000, the NLDC initiated the condemnation proceedings that gave rise to this case.[3] II Petitioner Susette Kelo has lived in the Fort Trumbull area since 1997. She has made extensive improvements to her house, which she prizes for its water view. Petitioner Wilhelmina Dery was born in her |
Justice Stevens | 2,005 | 16 | majority | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | its water view. Petitioner Wilhelmina Dery was born in her Fort Trumbull house in 1918 and has lived there her entire life. Her husband Charles (also a petitioner) has lived in the house since they married some 60 years ago. In all, the nine petitioners own 1 properties in Fort Trumbull4 in parcel 3 of the development plan and 11 in parcel 4A. Ten of the parcels are occupied by the owner or a family member; the other five are held as investment properties. There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area. In December 2000, petitioners brought this action in the New London Superior Court. They claimed, among other things, that the taking of their properties would violate the "public use" restriction in the Fifth Amendment. After a 7-day bench trial, the Superior Court granted a permanent restraining order prohibiting the taking of the properties located *476 in parcel 4A (park or marina support). It, however, denied petitioners relief as to the properties located in parcel 3 (office space). App. to Pet. for Cert. 343-30.[4] After the Superior Court ruled, both sides took appeals to the Supreme Court of Connecticut. That court held, over a dissent, that all of the City's proposed takings were valid. It began by upholding the lower court's determination that the takings were authorized by chapter 132, the State's municipal development statute. See Conn. Gen. Stat. 8-186 et seq. (200). That statute expresses a legislative determination that the taking of land, even developed land, as part of an economic development project is a "public use" and in the "public interest." 843 A. 2d, at 1-21. Next, relying on cases such as Hawaii Housing and (194), the court held that such economic development qualified as a valid public use under both the Federal and State 843 A. 2d, at 27. Finally, adhering to its precedents, the court went on to determine, first, whether the takings of the particular properties at issue were "reasonably necessary" to achieving the City's intended public use, 843 A. 2d, at 2-3, and, second, whether the takings were for "reasonably foreseeable needs," 843 A. 2d, at 8-9. The court upheld the trial court's factual findings as to parcel 3, but reversed the trial court as to parcel 4A, agreeing with the City that the intended use of this land was sufficiently *477 definite and had been given "reasonable attention" during the planning process. 843 A. 2d, at 74. The three |
Justice Stevens | 2,005 | 16 | majority | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | the planning process. 843 A. 2d, at 74. The three dissenting justices would have imposed a "heightened" standard of judicial review for takings justified by economic development. Although they agreed that the plan was intended to serve a valid public use, they would have found all the takings unconstitutional because the City had failed to adduce "clear and convincing evidence" that the economic benefits of the plan would in fact come to pass. 843 A. 2d, at 87, 88 We granted certiorari to determine whether a city's decision to take property for the purpose of economic development satisfies the "public use" requirement of the Fifth Amendment. 42 U.S. 96 III Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future "use by the public" is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case. As for the first proposition, the City would no doubt be forbidden from taking petitioners' land for the purpose of conferring a private benefit on a particular private party. See 467 U. S., at 24 ; Missouri Pacific R.[] Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a "carefully considered" development 268 Conn., at 4, 843 A. 2d, at 36. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case.[6] Therefore, as was true of the statute challenged in 467 U. S., at 24, the City's development plan was not adopted "to benefit a particular class of identifiable individuals." On the other hand, this is not a case in which the City is planning to open the condemned landat least not in its entiretyto use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. *479 But although such a projected use would be sufficient to satisfy the public use requirement, this "Court long ago |
Justice Stevens | 2,005 | 16 | majority | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | to satisfy the public use requirement, this "Court long ago rejected any literal requirement that condemned property be put into use for the general public." Indeed, while many state courts in the mid-19th century endorsed "use by the public" as the proper definition of public use, that narrow view steadily eroded over time. Not only was the "use by the public" test difficult to administer (e. g., what proportion of the public need have access to the property? at what price?),[7] but it proved to be impractical given the diverse and always evolving needs of society.[8] Accordingly, *480 when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as "public purpose." See, e. g., Fallbrook Irrigation 18-164 Thus, in a case upholding a mining company's use of an aerial bucket line to transport ore over property it did not own, Justice Holmes' opinion for the Court stressed "the inadequacy of use by the general public as a universal test." 200 U.S. 27, 31[9] We have repeatedly and consistently rejected that narrow test ever since.[10] The disposition of this case therefore turns on the question whether the City's development plan serves a "public purpose." Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field. In (194), this Court upheld a plan targeting a blighted area of Washington, D. C., in which most of the housing for the area's000 inhabitants was beyond repair. Under the plan, the area would be condemned and part of it utilized for the construction of streets, schools, and other public facilities. The remainder of the land would be leased or sold to private parties for the purpose of including the construction of low-cost housing. *481 The owner of a department store located in the area challenged the condemnation, pointing out that his store was not itself blighted and arguing that the creation of a "better balanced, more attractive community" was not a valid public Writing for a unanimous Court, Justice Douglas refused to evaluate this claim in isolation, deferring instead to the legislative and agency judgment that the area "must be planned as a whole" for the plan to be successful. The Court explained that "community programs need not, by force of the Constitution, be on a piecemeal basislot by lot, building by building." at 3. The public use underlying the taking was unequivocally affirmed: "We do not sit to determine whether a particular housing project is |
Justice Stevens | 2,005 | 16 | majority | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way." In Hawaii Housing the Court considered a Hawaii statute whereby fee title was taken from lessors and transferred to lessees (for just compensation) in order to reduce the concentration of land ownership. We unanimously upheld the statute and rejected the Ninth Circuit's view that it was "a naked attempt on the part of the state of Hawaii to take the property of A *482 and transfer it to B solely for B's private use and benefit." at 23 Reaffirming 's deferential approach to legislative judgments in this field, we concluded that the State's purpose of eliminating the "social and economic evils of a land oligopoly" qualified as a valid public -242. Our opinion also rejected the contention that the mere fact that the State immediately transferred the properties to private individuals upon condemnation somehow diminished the public character of the taking. "[I]t is only the taking's purpose, and not its mechanics," we explained, that matters in determining public In that same Term we decided another public use case that arose in a purely economic context. In the Court dealt with provisions of the Federal Insecticide, Fungicide, and Rodenticide Act under which the Environmental Protection Agency could consider the data (including trade secrets) submitted by a prior pesticide applicant in evaluating a subsequent application, so long as the second applicant paid just compensation for the data. We acknowledged that the "most direct beneficiaries" of these provisions were the subsequent applicants, but we nevertheless upheld the statute under and We found sufficient Congress' belief that sparing applicants the cost of time-consuming research eliminated a significant barrier to entry in the pesticide market and thereby enhanced 467 U. S., at 101. Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the |
Justice Stevens | 2,005 | 16 | majority | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the "great respect" that we owe to state legislatures and state courts in discerning local public needs. See 208 U.S. 98, *483 (noting that these needs were likely to vary depending on a State's "resources, the capacity of the soil, the relative importance of industries to the general public welfare, and the long-established methods and habits of the people").[11] For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power. IV Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, includingbut by no means limited tonew jobs and increased tax revenue. As with other exercises in urban planning and development,[12] the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate *484 this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment. To avoid this result, petitioners urge us to adopt a new bright-line rule that economic development does not qualify as a public Putting aside the unpersuasive suggestion that the City's plan will provide only purely economic benefits, neither precedent nor logic supports petitioners' proposal. Promoting economic development is a traditional and long-accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized. In our cases upholding takings that facilitated agriculture and mining, for example, we emphasized the importance of those industries |
Justice Stevens | 2,005 | 16 | majority | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | mining, for example, we emphasized the importance of those industries to the welfare of the States in question, see, e. g., Strickley, 200 U.S. 27; in we endorsed the purpose of transforming a blighted area into a "well-balanced" community through 348 U. S., ;[13] in *48 we upheld the interest in breaking up a land oligopoly that "created artificial deterrents to the normal functioning of the State's residential land market," ; and in Monsanto, we accepted Congress' purpose of eliminating a "significant barrier to entry in the pesticide market," 467 U. S., -101. It would be incongruous to hold that the City's interest in the economic benefits to be derived from the development of the Fort Trumbull area has less of a public character than any of those other interests. Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose. Petitioners contend that using eminent domain for economic development impermissibly blurs the boundary between public and private takings. Again, our cases foreclose this objection. Quite simply, the government's pursuit of a public purpose will often benefit individual private parties. For example, in the forced transfer of property conferred a direct and significant benefit on those lessees who were previously unable to purchase their homes. In Monsanto, we recognized that the "most direct beneficiaries" of the data-sharing provisions were the subsequent pesticide applicants, but benefiting them in this way was necessary to promoting competition in the pesticide 467 U. S.,[14] The owner of the department store in *486 objected to "taking from one businessman for the benefit of another businessman," 348 U. S., referring to the fact that under the plan land would be leased or sold to private developers for[1] Our rejection of that contention has particular relevance to the instant case: "The public end may be as well or better served through an agency of private enterprise than through a department of governmentor so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community projects." -34.[16] It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A's property to *487 citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot,[17] the |
Justice Stevens | 2,005 | 16 | majority | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | raise a suspicion that a private purpose was afoot,[17] the hypothetical cases posited by petitioners can be confronted if and when they arise.[18] They do not warrant the crafting of an artificial restriction on the concept of public [19] Alternatively, petitioners maintain that for takings of this kind we should require a "reasonable certainty" that the expected public benefits will actually accrue. Such a rule, however, would represent an even greater departure from *488 our precedent. "When the legislature's purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takingsno less than debates over the wisdom of other kinds of socioeconomic legislationare not to be carried out in the federal courts." -243.[20] Indeed, earlier this Term we explained why similar practical concerns (among others) undermined the use of the "substantially advances" formula in our regulatory takings doctrine. See 44 U.S. 28, 44 (200) The disadvantages of a heightened form of review are especially pronounced in this type of case. Orderly implementation of a comprehensive plan obviously requires that the legal rights of all interested parties be established before new construction can be commenced. A constitutional rule that required postponement of the judicial approval of every condemnation until the likelihood of success of the plan had been assured would unquestionably impose a significant impediment to the successful consummation of many such plans. Just as we decline to second-guess the City's considered judgments about the efficacy of its development plan, we also decline to second-guess the City's determinations as to what *489 lands it needs to acquire in order to effectuate the project. "It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch." 348 U. S., at 3-36. In affirming the City's authority to take petitioners' properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation.[21] We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose "public use" requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law,[22] while others are expressed in state eminent domain statutes that |
Justice Rehnquist | 1,973 | 19 | dissenting | Almota Farmers Elevator & Whse. Co. v. United States | https://www.courtlistener.com/opinion/108658/almota-farmers-elevator-whse-co-v-united-states/ | Petitioner is entitled to compensation for so much of its private "property" as was taken for public use. *481 The parties concede that petitioner's property interest here taken was the unexpired portion of a 20-year lease on land owned by the Oregon-Washington Railroad & Navigation near Colfax, Washington. The Court recognizes the limited nature of petitioner's interest in the real property taken, but concludes that it was entitled to have its leasehold and improvements valued in such a way as to include the probability that petitioner's 20-year lease would have been renewed by the railroad at its expiration. There is a plausibility about the Court's resounding endorsement of the concept of "fair market value" as the touchstone for valuation, but the result reached by the Court seems to me to be quite at odds with our prior cases. Even in its sharply limited reading of United the Court concedes that the petitioner's expectation of having its lease renewed upon expiration is not itself an interest in property for which it may be compensated. But the Court permits the same practical result to be reached by saying that, at least in the case of improvements, the fair market value may be computed in terms of a willing buyer's expectation that the lease would be renewed. In United the Government acquired by condemnation the use of a structure occupied by tenants in possession under leases for various unexpired terms. The Court held that the measure of damages for condemnation of a leasehold is the value of the tenant's use of the leasehold for the remainder of the agreed term, less the agreed rent. The Court considered the argument, essentially the same raised by petitioner here, that a history of past renewal of the leases to existing tenants creates a compensable expectancy, but held that the right to compensation should be measured solely on the basis of the remainder *482 of the tenant's term under the lease itself. In so deciding, the Court stated: "The fact that some tenants had occupied their leaseholds by mutual consent for long periods of years does not add to their rights. Emery v. Boston Terminal [per Holmes, C. J.]: " `It appeared that the owners had been in the habit of renewing the petitioners' lease from time to time Changeable intentions are not an interest in land, and although no doubt such intentions may have added practically to the value of the petitioners' holding, they could not be taken into account in determining what the respondent should pay. They added nothing to the tenants' legal rights, and |
Justice Rehnquist | 1,973 | 19 | dissenting | Almota Farmers Elevator & Whse. Co. v. United States | https://www.courtlistener.com/opinion/108658/almota-farmers-elevator-whse-co-v-united-states/ | pay. They added nothing to the tenants' legal rights, and legal rights are all that must be paid for. Even if such intentions added to the saleable value of the lease, the addition would represent a speculation on a chance, not a legal right.' " n. 9. The holding in Petty was consistent with a long line of cases to the effect that the Fifth Amendment does not require, on a taking of a property interest, compensation for mere expectancies of profit, or for the frustration of licenses or contractual rights that pertain to the land, but that are not specifically taken and that are not vested property interests. Omnia Commercial v. United States, ; Sinclair Pipe Line v. United States, ; Chicago, M., St. P. & P. R. v. Chicago, R. I. & P. R. cert. denied, While the inquiry as to what property interest is taken by the condemnor and the inquiry as to how that property interest shall be valued are not identical ones, they *483 cannot be divorced without seriously undermining a number of rules dealing with the law of eminent domain that this Court has evolved in a series of decisions through the years. The landowner, after all, is interested, not in the legal terminology used to describe the property taken from him by the condemnor, but in the amount of money he is to be paid for that property. It will cause him little remorse to learn that his hope for a renewal of a lease for a term of years is not a property interest for which the Government must pay, if in the same breath he is told that the lesser legal interest that he owns may be valued to include the hoped-for renewal. The notion of "fair market value" is not a universal formula for determining just compensation under the Fifth Amendment. In United the Court said of market value: "Respondents correctly say that value is to be ascertained as of the date of taking. But they insist that no element which goes to make up value as at that moment is to be discarded or eliminated. We think the proposition is too broadly stated." It is quite apparent that the property on which the owner operates a prosperous retail establishment would command more in an open market sale than the fair value of so much of the enterprise as was "private property" within the meaning of the Fifth Amendment. Yet stands squarely for the proposition that the value added to the property taken by the existence of a going business |
Justice Rehnquist | 1,973 | 19 | dissenting | Almota Farmers Elevator & Whse. Co. v. United States | https://www.courtlistener.com/opinion/108658/almota-farmers-elevator-whse-co-v-united-states/ | the property taken by the existence of a going business is no part of the just compensation for which the Government must pay for taking the property: "No recovery therefor can be had now as for a taking of the business. There is no finding as a fact that the Government took the business, or that what it did was intended as a taking. If the *484 business was destroyed, the destruction was an unintended incident of the taking of land." More recently, in United States ex rel. the Court generalized further: "That which is not `private property' within the meaning of the Fifth Amendment likewise may be a thing of value which is destroyed or impaired by the taking of lands by the United States. But like the business destroyed but not `taken' in the Mitchell case it need not be reflected in the award due the landowner unless Congress so provides." In either Mitchell or Powelson, the result would in all probability have been different had the Court applied the reasoning that it applies in this case. Here, too, the improvements on the property are not desired by the Government for the project in question, but the taking of petitioner's leasehold interest prevents its continuing to have their use for the indefinite future as it had anticipated. The Court says that although its "property" interest would have expired in 7 1/2 years, the market value of that interest may be computed on the basis of expectancies that do not rise to the level of a property interest under the Fifth Amendment. If permissible methods of valuation are to be thus totally set free from the property interest that they purport to value, it is difficult to see why the same standards should not be applied to a going business. Although the Government does not take the going business, and although the business is not itself a "property" interest within the Fifth Amendment, since purchasers on the open market would have paid an added increment of value for the property because a business was located on it, it may well be that such increment of value is *485 properly included in a condemnation award under the Court's holding today. And it will assuredly make no difference to the property owner to learn that destruction of a going business is not compensable, if he be assured that the property concededly taken upon which the business was located may be valued in such a way as to include the amount a purchaser would have paid for the business. The extent to |
Justice Rehnquist | 1,973 | 19 | dissenting | Almota Farmers Elevator & Whse. Co. v. United States | https://www.courtlistener.com/opinion/108658/almota-farmers-elevator-whse-co-v-united-states/ | purchaser would have paid for the business. The extent to which the Court's decision in this case will unsettle condemnation law is obscured by the fact that the parties, motivated no doubt by condemnation lawyers' well-known propensity to enter into factual stipulations that present abstract questions of valuation theory for decision, have stipulated as to amounts to be awarded depending on which party prevails. But the underlying difficulty with petitioner's theory was lucidly demonstrated by the Judge Madden in his opinion for the Court of Appeals in this case, referring to the similar holding of the Court of Appeals for the Tenth Circuit in : "If the law were to go into the business of awarding compensation for an expectancy which never materialized, because the sovereign `took' the subject of the expectancy, should, in e. g., the one year lessees be compensated for the loss of a five year occupancy, a 50 year occupancy, a perpetual occupancy? In our instant case, was the stipulation based upon some actuarial computation such as the prospective life of the buildings and machinery, or the life of the railroad, or upon free-ranging guesswork?" United The Court's conclusion gains no support from its citation of the recognized principle that the Government *486 may not take advantage of any depreciation in the property taken that is attributable to the project itself, United ; United The value of petitioner's property taken could not be diminished by the fact that the river improvement and navigation for which the Government took its property might have had a depressing effect on pre-existing market value. But the Government makes no such contention here. While, under existing principles of constitutional eminent domain law, the value of petitioner's property was not subject to diminution resulting from the effect on market value of the improvement that the Government proposed to construct, it was subject to the hazard of nonrenewal of petitioner's leasehold interest. The fact that the Government has condemned the underlying fee for the same project, and has therefore made the risk of nonrenewal a certainty, undoubtedly diminishes the market value of petitioner's leasehold interest. But the diminution results, not from any depressing effect of the improvement that the Government will construct after having taken the leasehold, but from a materialization of the risk of transfer of ownership of the underlying fee to which its value was always subject. In at least partially cutting loose the notion of "just compensation" from the notion of "private property" that has developed under the Fifth Amendment, the Court departs from the settled doctrine of numerous prior |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | The rule of law requires neutral forums for resolving Courts are designed to provide just that. ut our legal system takes seriously the risk that for certain cases, some neutral forums might be more neutral than others. Or it might appear that way, which is almost as deleterious. For example, a party bringing suit in its own State’s courts might (seem to) enjoy, so to speak, a home court advantage against outsiders. Thus, from 7 Con- gress has opened federal courts to certain disputes be- tween citizens of different States. Plaintiffs, of course, can avail themselves of the federal option in such cases by simply choosing to file a case in federal court. ut since their defendants cannot, the law has always given defend- ants the option to remove (transfer) cases to federal court. Shamrock & Gas The general removal statute, which authorizes removal by “the defendant or the defendants,” thus en- sures that defendants get an equal chance to choose a federal forum. 28 U.S. C. ut defendants cannot remove a case unless it meets certain conditions. Some of those conditions have long made important (and often costly) consumer class actions virtually impossible to remove. Congress, concerned that 2 HOME DEPOT U. S., INC. v. JCKSON LITO, J., dissenting state courts were biased against defendants to such ac- tions, passed a law facilitating their removal. The Class ction Fairness ct of 200 (CF) allows removal of certain class actions “by any defendant.” 28 U.S. C. Our job is not to judge whether Congress’s fears about state-court bias in class actions were warranted or indeed whether CF should allay them. We are to de- termine the scope of the term “defendant” under CF as well as the general removal provision, ll agree that if one party sues another, the latter—the original defendant—is a “defendant” under both removal laws. ut suppose the original defendant then counter- sues, bringing claims against both the plaintiff and a new party. Is this new defendant—the “third-party defend- ant”—also a “defendant” under CF and There are, of course, some differences between original and third-party defendants. One is brought into a case by the first major filing, the other by the second. The one filing is called a complaint, the other a countercomplaint. ut both kinds of parties are defendants to legal claims. Neither chose to be in state court. oth might face bias there, and with it the potential for crippling unjust losses. Yet today’s Court holds that third-party defendants are not “defendants.” It holds that Congress left them unpro- tected under CF and This reads |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | Congress left them unpro- tected under CF and This reads an irrational distinction into both removal laws and flouts their plain meaning, a meaning that context confirms and today’s majority simply ignores. I To appreciate what Congress sought to achieve with CF, consider what Congress failed to accomplish a decade earlier with the Private Securities Litigation Re- form ct of 99 (Reform ct), (codified at U.S. C. and 78u–4). The Reform ct was Cite as: 87 U. S. (209) 3 LITO, J., dissenting “targeted at perceived abuses of the class-action vehicle in litigation involving nationally traded securities,” including spurious lawsuits, “vexatious discovery requests, and ‘manipulation by class action lawyers of the clients whom they purportedly represent.’ ” Merrill Lynch, Pierce, Fen- ner & Smith (quoting H. R. Conf. Rep. No. 04–369, p. 3 (99)). s a result of these abuses, Congress found, companies were often forced to enter “extortionate settlements” in frivolous cases, just to avoid the litigation costs—a burden with scant benefits to 47 U.S., at To curb these inefficiencies, the Reform ct “limit[ed] recoverable damages and attor- ney’s fees, impose[d] new restrictions on the selection of (and compensation awarded to) lead plaintiffs, man- date[d] imposition of sanctions for frivolous litigation, and authorize[d] a stay of discovery pending resolution of any motion to dismiss.” ut “at least some members of the plaintiffs’ bar” found a workaround: They avoided the Reform ct’s limits on federal litigation by “avoid[ing] the federal forum alto- gether” and heading to state court. Once there, they were able to keep defendants from taking them back to federal court (under the rules then in force) simply by naming an in-state defendant. See nd the change in plaintiffs’ strategy was marked: While state- court litigation of such class actions had been “rare” before the Reform ct’s passage, within a decade state courts were handling most such cases, see S. Rep. No. 09–4, p. 4 Some in Congress feared that plaintiffs’ lawyers were able to “ ‘game’ the procedural rules and keep nationwide or multi-state class actions in state courts whose judges have reputations for readily certifying classes and approv- ing settlements without regard to class member interests.” The result, in Congress’s judgment, was that “State and local courts” were keeping issues of “national im- 4 HOME DEPOT U. S., INC. v. JCKSON LITO, J., dissenting portance” out of federal court, “acting in ways that demon- strate[d] bias against out-of-State defendants” and impos- ing burdens that hindered “innovation” and drove up “consumer prices.” (b), So Congress again took action. ut rather than get at the problem by imposing |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | action. ut rather than get at the problem by imposing limits on federal litigation that plaintiffs could sidestep by taking defendants to state court, Congress sought to make it easier for defendants to remove to federal court: thus CF. To grasp how CF changed the procedural landscape for class actions, it helps to review the rules that govern removal in the mine run of cases, and that once limited removal of all class actions as well. Those general rules appear in 28 U.S. C. and 446. Under “any civil action brought in a State court may be removed by the defendant or the defend- ants” as long as federal district courts would have “origi- nal jurisdiction” over the case. Such jurisdiction comes in two varieties. Federal courts have “federal question ju- risdiction” if the case “aris[es] under” federal law—for instance, if the plaintiff alleges violations of a federal stat- ute. ut even when the plaintiff brings only state- law claims—alleging a breach of a contract, for example— federal courts have “diversity jurisdiction” if the amount in controversy exceeds $7,000 and there is complete diversity of parties, meaning that no plaintiff is a citizen of the same State as any defendant. Lincoln Property 46 U.S. While normally allows removal of either kind of case, it bars removal in diversity cases brought in the home State of any defendant. nother subsection of addresses removal of a subset of claims (not an entire action) when a case in- volves some claims that would be removable because they Cite as: 87 U. S. (209) LITO, J., dissenting arise under federal law and others that would not (because they involve state-law claims falling outside both the original and the supplemental jurisdiction of federal courts). In these hybrid cases, (c)(2) allows the federal claims to be removed while the state-law claims are severed and sent back to state court. The procedural rules for removing an action or claim from state to federal court under are set forth in Section 446(b)(2)() requires the consent of all the defendants before an entire case may be re- moved under (If a defendant instead invokes (c)(2), to remove a subset of claims, consent is re- quired only from defendants to the claims that are re- moved.) nd if diversity jurisdiction arises later in litiga- tion—which may occur if, for instance, dismissal of an original defendant creates complete allows removal only within one year of the start of the action in state court. To this general removal regime, CF made several changes specific to class actions. Instead of allowing removal by |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | changes specific to class actions. Instead of allowing removal by “the defendant or the defendants,” see of CF allowed removal by “any defendant” to certain class actions, even when the other defendants do not consent, the case was filed in a defend- ant’s home forum, or the case has been pending in state court for more than a year. See –3. Of course, these changes would be of no use to a class- action defendant hoping to remove if there were no federal jurisdiction over its case. So CF also lowered the barri- ers to diversity jurisdiction. While complete diversity of parties is normally required, CF eliminates that rule —————— Supplemental jurisdiction covers those claims “so related” to federal claims that they are “part of the same case or controversy under rticle I,” 28 U.S. C. in that they “derive from a common nucleus of operative fact.” Mine 6 HOME DEPOT U. S., INC. v. JCKSON LITO, J., dissenting for class actions involving at least 00 members and more than $ million in controversy. In such cases, CF vests district courts with diversity jurisdiction anytime there is minimal diversity—which occurs when at least one plain- tiff and defendant reside in different States. See 28 U.S. C. (d)()(). We were asked to decide whether these loosened re- quirements are best read to allow removal by third-party defendants like Home Depot. The answer is clear when one considers Home Depot’s situation against CF’s language and history. C This case began as a garden-variety debt-collection action: Citibank sued respondent George Jackson in state court seeking payment on his purchase from petitioner Home Depot of a product made by Carolina Water Sys- tems (CWS). Jackson came back with a counterclaim class action that roped in Home Depot and CWS as codefend- ants. (Until then, neither Home Depot nor CWS had been a party.) Citibank then dismissed its claim against Jack- son, and Jackson amended his complaint to remove any mention of Citibank. So now all that remains in this case is Jackson’s class-action counterclaims against Home Depot and CWS. Invoking CF, Home Depot filed a notice of removal; it also moved to realign the parties to make Jackson the plaintiff, and CWS, Home Depot, and Citibank the de- fendants (just before Citibank had dropped out entirely). The District Court denied the motion and remanded the case to state court, holding that Home Depot cannot re- move under CF because CF’s “any defendant” ex- cludes defendants to counterclaim class actions. The Court of ppeals affirmed, citing Circuit precedent that hung on this Court’s decision in |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | citing Circuit precedent that hung on this Court’s decision in Shamrock & Gas We granted certio- Cite as: 87 U. S. (209) 7 LITO, J., dissenting rari to decide whether the lower court’s reading of Sham- rock is correct and whether CF allows third-party defendants like Home Depot to remove an action to federal court. ll agree that the one dispute that now constitutes this lawsuit—Jackson’s class action against Home Depot and CWS—would have been removable under CF had it been present from the start of a case. Is it ineligible for removal just because it was not contained in the filing that launched this lawsuit? Several lower courts think so. In holding as much, they have created what Judge Niemeyer called a “loophole” that only this Court “can now rectify.” Palisades Collec- tions (dis- senting from denial of rehearing en banc). The potential for that “loophole” was first spotted by a civil procedure scholar writing shortly after CF took effect. See Tid- marsh, Finding Room for State Class ctions in a Post- CF World: The Case of the Counterclaim Class ction, The article outlined a “tactic” for plaintiffs to employ if they wanted to thwart a defendant’s attempt to remove a class action to federal court under CF: They could raise their class-action claim as a counterclaim and “hope that CF does not authorize removal.” In a single stroke, the article observed, a defendant’s routine attempt to collect a debt from a single consumer could be leveraged into an unre- movable attack on the defendant’s “credit and lending policies” brought on behalf of a whole class of plaintiffs— all in the very state courts that CF was designed to help class-action defendants avoid. The article is right to call this approach a tactic; it subverts CF’s evident aims. I cannot imagine why a Congress eager to remedy alleged state-court abuses in class actions would have chosen to discriminate between two kinds of defendants, neither of whom had ever chosen 8 HOME DEPOT U. S., INC. v. JCKSON LITO, J., dissenting the allegedly abusive state forum, all based on whether the claim against them had initiated the lawsuit or arisen just one filing later (in the countercomplaint). Of course, what finally matters is the text, and in reading texts we must remember that “no legislation pursues its purposes at all costs,” 2–26 (7) (per curiam); Congress must often strike a balance between competing purposes. ut a good inter- preter also reads a text charitably, not lightly ascribing irrationality to its author; and I can think of no rational purpose for |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | author; and I can think of no rational purpose for this limit on which defendants may remove. Even respondent does not try to defend its rationality, suggesting instead that it simply reflects a legislative compromise. Yet there is no evidence that anyone thought of this potential loophole before CF was enacted, and it is hard to believe that any of CF’s would-be opponents agreed to vote for it in exchange for this way of keeping some cases in state court. The question is whether the uncharitable reading here is inescapable—whether, un- wittingly or despite itself, Congress adopted text that compels this bizarre result. There are different schools of thought about statutory interpretation, but I would have thought this much was common ground: If it is hard to imagine any purpose served by a proposed interpretation of CF, if that read- ing appears nowhere in the statutory or legislative history or our cases on CF, if it makes no sense as a policy matter, it had better purport to reflect the best reading of the text, or any decision embracing it is groundless. In- deed, far from relegating the text to an afterthought, our shared approach to statutory interpretation, “as we always say, begins with the text.” Ross v. lake, 78 U. S. (206) (slip op., at 4) fter all, as we have unanimously declared, a “plain and unambigu- Cite as: 87 U. S. (209) 9 LITO, J., dissenting ous” text “must” be enforced “according to its terms.” 2 (200). nd yet, though the text and key term here is “any defendant,” 28 U.S. C. the majority has not one jot or tittle of analysis on the plain meaning of “defendant.” ny such analysis would have compelled a different result. ccording to legal as well as standard dictionary definitions available in 200, a “defendant” is a “person sued in a civil proceeding,” lack’s Law Dictionary 40 (8th ed. 2004), and the term is “opposed to” (contrasted with) the word “plaintiff,” Webster’s Third New Interna- tional Dictionary 9 (2002) (Webster). See also 4 Oxford English Dictionary 377 (2d ed. 9) (OED) (“[a] person sued in a court of law; the party in a suit who defends; opposed to plaintiff ”). What we have before us is a civil proceeding in which Home Depot is not a plaintiff and is being sued. So Home Depot is a defendant, as that term is ordinarily understood. The fact that Home Depot is considered a “third-party defendant” changes nothing here. See N. C. Rule Civ. Proc. 4(a) (208). djectives like “third-party” “modify nouns—they pick out a |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | 4(a) (208). djectives like “third-party” “modify nouns—they pick out a subset of a category that possesses a certain quality.” Weyerhaeuser v. United States Fish and Wildlife Serv., 86 U. S. (208) (slip op., at 8). They do not “alter the meaning of the word” that they modify. Rimini Street, Inc. v. Oracle US, Inc., 86 U. S. (209) (slip op., at 6). nd so, just as a “ ‘critical habitat’ ” is a habitat, Weyerhaeuser at (slip op., at 9), and “ ‘full costs’ ” are costs, Rimini Street, Inc., at (slip op., at 7), zebra finches are finches and third-party defendants are, well, defendants. If further confirmation were needed, it could be found in CF’s use of the word “any” to modify “defendant.” Unlike the general removal provision, which allows re- moval by “the defendant or the defendants,” 0 HOME DEPOT U. S., INC. v. JCKSON LITO, J., dissenting CF’s authorization extends to “any defendant.” s we have emphasized re- peatedly, “ ‘the word “any” has an expansive meaning, that is, “one or some indiscriminately of whatever kind.” ’ ” v. Federal ureau of Prisons, 29–220 (quoting United (997), in turn quoting Webster’s Third New International Dictionary 97 (976)). In case after case, we have given effect to this expansive sense of “any.” See 44 U.S. 38, (collecting cases). So too here: Contrary to the Court’s analysis, Congress’s use of “any” covers defendants of “whatever kind,” including third-party defendants like petitioner. “In concluding that ‘any’ means not what it says, but rather ‘a subset of any,’ the Court distorts the plain meaning of the statute and de- parts from established principles of statutory construc- tion.” at 39 For these reasons, unless third-party defendants like Home Depot differ in some way that is relevant to removal (as a matter of text, precedent, or common sense),2 they fall within CF’s coverage of “any defendant.” I Respondent and the majority contend that Congress meant to incorporate into CF a specialized sense of “defendant,” derived from its use in the general removal —————— 2 That is true only of counterdefendants—original plaintiffs who are countersued by their original defendant. For one thing, it is hard to say that these plaintiffs fall under the plain meaning of “defendant,” when the word “defendant” is defined in opposition to the word “plaintiff.” See Webster 9; 4 OED 377. Moreover, as original plaintiffs, these parties chose the state forum (unlike original or third-party defend- ants), so it makes less sense to give them a chance to remove the case from that same forum. Finally, our decision in Shamrock |
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