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Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | says that doctors “can, and often do, simply decline to meet with detailers.” Ante, at 20. This fact, while true, is beside the point. Closing the Cite as: 564 U. S. (2011) 21 BREYER, J., dissenting office door entirely has no similar tendency to lower costs (by focusing greater attention upon the comparative ad vantages and disadvantages of generic drug alternatives). And it would not protect the confidentiality of information already released to, say, data miners. In any event, physi cians are unlikely to turn detailers away at the door, for those detailers, whether delivering a balanced or imbal anced message, are nonetheless providers of much useful information. See Manchanda & Honka, The Effects and Role of Direct-to-Physician Marketing in the Pharmaceuti cal Industry: An Integrative Review, 5 Yale J. Health Pol’y L. & Ethics 785, 793–797, 815–816 (2005); Ziegler, Lew, & Singer, The Accuracy of Drug Information from Pharma ceutical Sales Representatives, Forcing doctors to choose between targeted detailing and no detailing at all could therefore jeopardize the State’s interest in promoting public health. The majority also suggests that if the “statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position.” Ante, at 24–25; see also ante, at 17. But the disclosure-permitting exceptions here are quite narrow, and they serve useful, indeed essential purposes. See Compare Vt. Stat. Ann., Tit. 18, (e) with note following 42 U.S. C. p. 1190, and Regardless, this alterna tive is not “a more limited restriction,” Central for it would impose a greater, not a lesser, burden upon the dissemination of information. Respondents’ alternatives are no more helpful. Respon dents suggest that “Vermont can simply inform physicians that pharmaceutical companies use prescription his tory information to communicate with doctors.” Brief for 22 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting Respondent Pharmaceutical Research and Manufacturers of America 48. But how would that help serve the State’s basic purposes? It would not create the “fair balance” of information in pharmaceutical marketing that the State, like the FDA, seeks. Cf. (alternative must be “at least as effective in achieving the legitimate purpose that the statute was enacted to serve”). Respondents also suggest policies requiring use of generic drugs or educat ing doctors about their benefits. Brief for Respondent Pharmaceutical Research and Manufacturers of America 54–55. Such programs have been in effect for some time in Vermont or other States, without indication that they have prevented the imbalanced sales tactics at which Vermont’s statute takes aim. See, Written Statement of Jerry Avorn & Aaron |
Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | takes aim. See, Written Statement of Jerry Avorn & Aaron Kesselheim, CA2 App. 4310; Doc. 414, at 60–61. And in any event, such laws do not help protect prescriber privacy. Vermont has thus developed a record that sufficiently shows that its statute meaningfully furthers substantial state interests. Neither the majority nor respondents suggests any equally effective “more limited” restriction. And the First Amendment harm that Vermont’s statute works is, at most, modest. I consequently conclude that, even if we apply an “intermediate” test such as that in Central this statute is constitutional. IV What about the statute’s third restriction, providing that “[p]harmaceutical manufacturers and pharmaceutical marketers” may not “use prescriber-identifiable informa tion for marketing or promoting a prescription drug unless the prescriber consents”? Vt. Stat. Ann., Tit. 18, In principle, I should not reach this question. That is because respondent pharmaceutical manufacturers, marketers, and data miners seek a de Cite as: 564 U. S. (2011) 23 BREYER, J., dissenting claratory judgment and injunction prohibiting the en forcement of this statute. See 28 U.S. C. App. 49– 128. And they have neither shown nor claimed that they could obtain significant amounts of “prescriber-identifiable information” if the first two prohibitions are valid. If, as I believe, the first two statutory prohibitions (related to selling and disclosing the information) are valid, then the dispute about the validity of the third provision is not “ ‘real and substantial’ ” or “ ‘definite and concrete.’ ” MedImmune, (2007) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240–241 (1937)) (Article III does not permit courts to entertain such disputes). The Court, however, strikes down all three provisions, and so I add that I disagree with the majority as to the constitutionality of the third restriction as well—basically for the reasons I have already set out. The prohibition against pharmaceutical firms using this prescriber identifying information works no more than modest First Amendment harm; the prohibition is justified by the need to ensure unbiased sales presentations, prevent unneces sarily high drug costs, and protect the privacy of prescrib ing physicians. There is no obvious equally effective, more limited alternative. V In sum, I believe that the statute before us satisfies the “intermediate” standards this Court has applied to restric tions on commercial speech. A fortiori it satisfies less demanding standards that are more appropriately applied in this kind of commercial regulatory case—a case where the government seeks typical regulatory ends (lower drug prices, more balanced sales messages) through the use of ordinary regulatory means (limiting the commercial use of data gathered pursuant to a regulatory |
Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | the commercial use of data gathered pursuant to a regulatory mandate). The speech-related consequences here are indirect, incidental, 24 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting and entirely commercial. See at 6–9. The Court reaches its conclusion through the use of important First Amendment categories—“content-based,” “speaker-based,” and “neutral”—but without taking full account of the regulatory context, the nature of the speech effects, the values these First Amendment categories seek to promote, and prior precedent. See at 2–6, 9–13, 17. At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. See, at 7–8, 9–11. At worst, it re awakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue. See Central 447 U.S., at 589 Regardless, whether we apply an ordinary commercial speech standard or a less demanding standard, I believe Vermont’s law is consistent with the First Amendment. And with respect, I dissent |
Justice Thomas | 2,002 | 1 | dissenting | Rush Prudential HMO, Inc. v. Moran | https://www.courtlistener.com/opinion/121159/rush-prudential-hmo-inc-v-moran/ | This Court has repeatedly recognized that ERISA's civil enforcement provision, 50 of the Employee Retirement Income Security Act of 1974 (ERISA), 9 U.S. C. 113, provides the exclusive vehicle for actions asserting a claim for benefits under health plans governed by ERISA, and therefore that state laws that create additional remedies are preempted. See, e. g., Pilot Ins. ; Massachusetts Mut. Ins. Such exclusivity of remedies is necessary to further Congress' interest in establishing a uniform federal law of employee benefits so that employers are encouraged to provide benefits to their employees: "To require plan providers to design their programs in an environment of differing state regulations would complicate the administration of nationwide plans, producing inefficiencies that employers might offset with decreased benefits." FMC 498 U.S. Of course, the "expectations that a federal common law of rights and obligations under ERISA-regulated plans would develop would make little sense if the remedies available to ERISA participants and beneficiaries under 50(a) could be supplemented or supplanted by varying state laws." Pilot Therefore, as the Court concedes, see ante, at 377, even a state law that "regulates insurance" may be pre-empted if it supplements the remedies provided by ERISA, despite ERISA's saving clause, 514(b)()(A), 9 U.S. C. 1144(b)()(A). See[1] Today, however, *389 the Court takes the unprecedented step of allowing respondent Debra Moran to short circuit ERISA's remedial scheme by allowing her claim for benefits to be determined in the first instance through an arbitral-like procedure provided under Illinois law, and by a decisionmaker other than a court. See 15 Ill. Comp. Stat., ch. 15, 4-10 (000). This decision not only conflicts with our precedents, it also eviscerates the uniformity of ERISA remedies Congress deemed integral to the "careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans." Pilot I would reverse the Court of Appeals' judgment and remand for a determination whether Moran was entitled to reimbursement absent the independent review conducted under 4-10. I From the facts of this case one can readily understand why Moran sought recourse under 4-10. Moran is covered by a medical benefits plan sponsored by her husband's employer and governed by ERISA. Petitioner Rush Prudential HMO, Inc., is the employer's health maintenance organization (HMO) provider for the plan. Petitioner's Member Certificate of Coverage (Certificate) details the scope of coverage under the plan and provides petitioner with "the broadest possible discretion" to interpret the terms of the plan and to determine participants' entitlement to benefits. 1 Record, Exh. A, p. 8. The Certificate |
Justice Thomas | 2,002 | 1 | dissenting | Rush Prudential HMO, Inc. v. Moran | https://www.courtlistener.com/opinion/121159/rush-prudential-hmo-inc-v-moran/ | to benefits. 1 Record, Exh. A, p. 8. The Certificate specifically excludes from coverage services that are not "medically necessary." As the Court describes, ante, at 3-36, Moran underwent a nonstandard surgical procedure.[] Prior to *390 Moran's surgery, which was performed by an unaffiliated doctor, petitioner denied coverage for the procedure on at least three separate occasions, concluding that this surgery was not "medically necessary." For the same reason, petitioner denied Moran's request for postsurgery reimbursement in the amount of $94,841.7. Before finally determining that the specific treatment sought by Moran was not "medically necessary," petitioner consulted no fewer than six doctors, reviewed Moran's medical records, and consulted peer-reviewed medical literature.[3] In the course of its review, petitioner informed Moran that "there is no prevailing opinion within the appropriate specialty of the United States medical profession that the procedure proposed [by Moran] is safe and effective for its intended use and that the omission of the procedure would adversely affect [her] medical condition." 1 Record, Exh. E, at Petitioner did agree to cover the standard treatment for Moran's ailment, see n. infra, concluding that peer-reviewed literature "demonstrates that [the standard surgery] is effective therapy in the treatment of [Moran's condition]." 1 Record, Exh. E, at 3. Moran, however, was not satisfied with this option. After exhausting the plan's internal review mechanism, Moran *391 chose to bypass the relief provided by ERISA. She invoked 4-10 of the Illinois HMO Act, which requires HMOs to provide a mechanism for review by an independent physician when the patient's primary care physician and HMO disagree about the medical necessity of a treatment proposed by the primary care physician. See 15 Ill. Comp. Stat., ch. 15, 4-10 (000). While Moran's primary care physician acknowledged that petitioner's affiliated surgeons had not recommended the unconventional surgery and that he was not "an expert in this or any other area of surgery," 1 Record, Exh. C, he nonetheless opined, without explanation, that Moran would be "best served" by having that surgery, Dr. A. Lee Dellon, an unaffiliated physician who served as the independent medical reviewer, concluded that the surgery for which petitioner denied coverage "was appropriate," that it was "the same type of surgery" he would have done, and that Moran "had all of the indications and therefore the medical necessity to carry out" the nonstandard surgery. Appellant's Separate App. (CA7), pp. A4A43.[4] Under 4 10, Dr. Dellon's determination conclusively established Moran's right to benefits under Illinois law. See 15 Ill. Comp. Stat., ch. 15, 4-10 ("In the event that the reviewing physician determines the covered service to |
Justice Thomas | 2,002 | 1 | dissenting | Rush Prudential HMO, Inc. v. Moran | https://www.courtlistener.com/opinion/121159/rush-prudential-hmo-inc-v-moran/ | event that the reviewing physician determines the covered service to be medically necessary, the [HMO] shall provide the covered service" (emphasis added)). 30 F.3d 959, 97-973 (CA7 000). Nevertheless, petitioner again denied benefits, steadfastly maintaining that the unconventional surgery was not medically necessary. While the Court of Appeals recharacterized Moran's claim for reimbursement under 4-10 as a claim for benefits under ERISA 50(a)(1)(B), it reversed the judgment *39 of the District Court based solely on Dr. Dellon's judgment that the surgery was "medically necessary." II Section 514(a)'s broad language provides that ERISA "shall supersede any and all State laws insofar as they relate to any employee benefit plan," except as provided in 514(b). 9 U.S. C. 1144(a). This language demonstrates "Congress's intent to establish the regulation of employee welfare benefit plans `as exclusively a federal concern.' " New York State Conference of Blue Cross & Blue Shield ). It was intended to "ensure that plans and plan sponsors would be subject to a uniform body of benefits law" so as to "minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government" and to prevent "the potential for conflict in substantive law requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction." Ingersoll-Rand 14 See also 53 U.S. 141, (001). To be sure, this broad goal of uniformity is in some tension with the so-called "saving clause," which provides that ERISA does not "exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." 514(b)()(A) of ERISA, 9 U.S. C. 1144(b)()(A). As the Court has suggested on more than one occasion, the pre-emption and saving clauses are almost antithetically broad and "`are not a model of legislative drafting.' " John Hancock Mut. Ins. (quoting Pilot ). But because there is "no solid basis for believing that Congress, when it designed ERISA, intended fundamentally to alter traditional pre-emption analysis," the Court has concluded *393 that federal pre-emption occurs where state law governing insurance "`stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.' " Harris at (quoting 464 U. S., at ). Consequently, the Court until today had consistently held that state laws that seek to supplant or add to the exclusive remedies in 50(a) of ERISA, 9 U.S. C. 113(a), are preempted because they conflict with Congress' objective that rights under ERISA plans are to be enforced under a uniform national system. See, e. g., Ingersoll-Rand at 14-145; Metropolitan Ins. v. Taylor, ; |
Justice Thomas | 2,002 | 1 | dissenting | Rush Prudential HMO, Inc. v. Moran | https://www.courtlistener.com/opinion/121159/rush-prudential-hmo-inc-v-moran/ | e. g., Ingersoll-Rand at 14-145; Metropolitan Ins. v. Taylor, ; Pilot at -57. The Court has explained that 50(a) creates an "interlocking, interrelated, and interdependent remedial scheme," and that a beneficiary who claims that he was wrongfully denied benefits has "a panoply of remedial devices" at his disposal. It is exactly this enforcement scheme that Pilot described as "represent[ing] a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans," 481 U.S., Central to that balance is the development of "a federal common law of rights and obligations under ERISA-regulated plans." In addressing the relationship between ERISA's remedies under 50(a) and a state law regulating insurance, the Court has observed that "[t]he policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA." Thus, while the preeminent federal interest in the uniform administration of employee benefit plans yields in some instances to varying state regulation of the business of insurance, the exclusivity and uniformity of *394 ERISA's enforcement scheme remains paramount. "Congress intended 50(a) to be the exclusive remedy for rights guaranteed under ERISA." Ingersoll-Rand In accordance with ordinary principles of conflict preemption, therefore, even a state law "regulating insurance" will be pre-empted if it provides a separate vehicle to assert a claim for benefits outside of, or in addition to, ERISA's remedial scheme. See, e. g., Pilot (citing ); Harris at (citing at ). III The question for the Court, therefore, is whether 4-10 provides such a vehicle. Without question, Moran had a "panoply of remedial devices," available under 50 of ERISA when petitioner denied her claim for benefits.[5] Section 50(a)(1)(B) of ERISA provided the most obvious remedy: a civil suit to recover benefits due under the terms of the plan. 9 U.S. C. 113(a)(1)(B). But rather than bring such a suit, Moran sought to have her right to benefits determined outside of ERISA's remedial scheme through the arbitral-like mechanism available under 4-10. Section 4-10 cannot be characterized as anything other than an alternative state-law remedy or vehicle for seeking benefits. In the first place, 4-10 comes into play only if the HMO and the claimant dispute the claimant's entitlement to benefits; the purpose of the review is to determine whether a claimant is entitled to benefits. Contrary to the majority's characterization of 4-10 as nothing more than a state law *395 regarding medical standards, ante, |
Justice Thomas | 2,002 | 1 | dissenting | Rush Prudential HMO, Inc. v. Moran | https://www.courtlistener.com/opinion/121159/rush-prudential-hmo-inc-v-moran/ | more than a state law *395 regarding medical standards, ante, at 383-384, it is in fact a binding determination of whether benefits are due: "In the event that the reviewing physician determines the covered service to be medically necessary, the [HMO] shall provide the covered service." 15 Ill. Comp. Stat., ch. 15, 4-10 (000) (emphasis added). Section 4-10 is thus most precisely characterized as an arbitration-like mechanism to settle benefits disputes. See Brief for United States as Amicus Curiae 3 (conceding as much). There is no question that arbitration constitutes an alternative remedy to litigation. See, e. g., Air Line 3 U.S. 866, (18) ; 46 U.S. 151, ; Great American Fed. Sav. & Loan 44 U.S. 366, ; 3 D. Dobbs, Law of Remedies 1.3 (explaining that arbitration "is itself a remedy"). Consequently, although a contractual agreement to arbitratewhich does not constitute a "State law" relating to "any employee benefit plan"is outside 514(a) of ERISA's pre-emptive scope, States may not circumvent ERISA pre-emption by mandating an alternative arbitral-like remedy as a plan term enforceable through an ERISA action. To be sure, the majority is correct that 4-10 does not mirror all procedural and evidentiary aspects of "common arbitration." Ante, at 381-383. But as a binding decision on the merits of the controversy the 4-10 review resembles nothing so closely as arbitration. See generally 1 I. MacNeil, R. Spediel, & T. Stipanowich, Federal Arbitration Law1.1 That the decision of the 4-10 medical reviewer is ultimately enforceable through a suit under 50(a) of ERISA further supports the proposition that it tracks the arbitral remedy. Like the decision of any arbitrator, it is enforceable through a subsequent judicial action, but judicial *396 review of an arbitration award is very limited, as was the Court of Appeals' review in this case. See, e. g., 484 U.S. 9, (quoting Steelworkers v. American Mfg. (19)). Although the Court of Appeals recharacterized Moran's claim for reimbursement under 4-10 as a claim for benefits under 50(a)(1)(B) of ERISA, the Court of Appeals did not interpret the plan terms or purport to analyze whether the plan fiduciary had engaged in the "full and fair review" of Moran's claim for benefits that 503() of ERISA, 9 U.S. C. 1133(), requires. Rather, it rubberstamped the independent medical reviewer's judgment that Moran's surgery was "medically necessary," granting summary judgment to Moran on her claim for benefits solely on that basis. Thus, as Judge Posner aptly noted in his dissent from the denial of rehearing en banc below, 4-10 "establishes a system of appellate review of benefits decisions that is distinct from |
Justice Thomas | 2,002 | 1 | dissenting | Rush Prudential HMO, Inc. v. Moran | https://www.courtlistener.com/opinion/121159/rush-prudential-hmo-inc-v-moran/ | of appellate review of benefits decisions that is distinct from the provision in ERISA for suits in federal court to enforce entitlements conferred by ERISA plans." 30 F.3d, at 973. IV The Court of Appeals attempted to evade the pre-emptive force of ERISA's exclusive remedial scheme primarily by characterizing the alternative enforcement mechanism created by 4-10 as a "contract term" under state law.[6] at 97. The Court saves 4-10 from pre-emption in a somewhat different manner, distinguishing it from an alternative enforcement mechanism because it does not "enlarge the *397 claim beyond the benefits available in any action brought under 113(a)," and characterizing it as "something akin to a mandate for second-opinion practice in order to ensure sound medical judgments." Ante, at 379-380, 384. Neither approach is sound. The Court of Appeals' approach assumes that a State may impose an alternative enforcement mechanism through mandated contract terms even though it could not otherwise impose such an enforcement mechanism on a health plan governed by ERISA. No party cites any authority for that novel proposition, and I am aware of none. Cf. Fort Halifax Packing v. Coyne, 48 U.S. 1, To hold otherwise would be to eviscerate ERISA's comprehensive and exclusive remedial scheme because a claim to benefits under an employee benefits plan could be determined under each State's particular remedial devices so long as they were made contract terms. Such formalist tricks cannot be sufficient to bypass ERISA's exclusive remedies; we should not interpret ERISA in such a way as to destroy it. With respect to the Court's position, Congress' intention that 50(a) be the exclusive remedy for rights guaranteed under ERISA has informed this Court's weighing of the pre-emption and saving clauses. While the Court has previously focused on ERISA's overall enforcement mechanism and remedial scheme, see infra, at 393-394, the Court today ignores the "interlocking, interrelated, and interdependent" nature of that remedial scheme and announces that the relevant inquiry is whether a state regulatory scheme "provides [a] new cause of action" or authorizes a "new form of ultimate relief." Ante, at 379. These newly created principles have no roots in the precedents of this Court. That 4-10 also *398 effectively provides for a second opinion to better ensure sound medical practice is simply irrelevant to the question whether it, in fact, provides a binding mechanism for a participant or beneficiary to pursue a claim for benefits because it is on this latter basis that 4-10 is pre-empted. The Court's attempt to diminish 4-10's effect by characterizing it as one where "the reviewer's determination would presumably replace that of |
Justice Thomas | 2,002 | 1 | dissenting | Rush Prudential HMO, Inc. v. Moran | https://www.courtlistener.com/opinion/121159/rush-prudential-hmo-inc-v-moran/ | one where "the reviewer's determination would presumably replace that of the HMO," ante, at 380 (emphasis added), is puzzling given that the statute makes such a determination conclusive and the Court of Appeals treated it as a binding adjudication. For these same reasons, it is troubling that the Court views the review under 4-10 as nothing more than a practice "of obtaining a second [medical] opinion." Ante, at 383. The independent reviewer may, like most arbitrators, possess special expertise or knowledge in the area subject to arbitration. But while a second medical opinion is nothing more than thatan opiniona determination under 4-10 is a conclusive determination with respect to the award of benefits. And the Court's reference to 530 U.S. 11 (000), as support for its Alice in Wonderland-like claim that the 4-10 proceeding is "far removed from any notion of an enforcement scheme," ante, at 383, is equally perplexing, given that the treatment is long over and the issue presented is purely an eligibility decision with respect to reimbursement.[7] *3 As we held in Metropolitan Ins. v. Massachusetts, 471 U.S. 74 a State may, of course, require that employee health plans provide certain substantive benefits. See Indeed, were a State to require that insurance companies provide all "medically necessary care" or even that it must provide a second opinion before denying benefits, I have little doubt that such substantive requirements would withstand ERISA's pre-emptive force. But recourse to those benefits, like all others, could be sought only through an action under 50 and not, as is the case here, through an arbitration-like remedial device. Section 4-10 does not, in any event, purport to extend a new substantive benefit. Rather, it merely sets up a procedure to conclusively determine whether the HMO's decision to deny benefits was correct when the parties disagree, a task that lies within the exclusive province of the courts through an action under 50(a). By contrast, a state law regulating insurance that merely affects whether a plan participant or beneficiary may pursue the remedies available under ERISA's remedial scheme, such as California's notice-prejudice rule, is not pre-empted because it has nothing to do with 50(a)'s exclusive enforcement scheme. In UNUM Ins. of 6 U.S. 358 (19), the Court evaluated California's socalled notice-prejudice rule, which provides that an insurer cannot avoid liability in cases where a claim is not filed in a timely fashion absent proof that the insurer was actually prejudiced because of the delay. In holding that it was not pre-empted, the Court did not suggest that this rule provided a substantive plan term. The |
Justice Thomas | 2,002 | 1 | dissenting | Rush Prudential HMO, Inc. v. Moran | https://www.courtlistener.com/opinion/121159/rush-prudential-hmo-inc-v-moran/ | suggest that this rule provided a substantive plan term. The Court expressly declined to address the Solicitor General's argument that the saving clause saves even state law "conferring causes of action or affecting remedies that regulate insurance." See While *400 a law may "effectively creat[e] a mandatory contract term," and even provide the rule of decision with respect to whether a claim is out of time, and thus whether benefits will ultimately be received, such laws do not create an alternative enforcement mechanism with respect to recovery of plan benefits. They merely allow the participant to proceed via ERISA's enforcement scheme. To my mind, neither Metropolitan nor UNUM addresses, let alone purports to answer, the question before us today. * * * Section 4-10 constitutes an arbitral-like state remedy through which plan members may seek to resolve conclusively a disputed right to benefits. Some 40 other States have similar laws, though these vary as to applicability, procedures, standards, deadlines, and consequences of independent review. See Brief for Respondent State of Illinois 1, (citing state independent review statutes); see also Kaiser Family Foundation, K. Politz, J. Crowley, K. Lucia, & E. Bangit, Assessing State External Review Programs and the Effects of Pending Federal Patients' Rights Legislation (May 00) (comparing state program features). Allowing disparate state laws that provide inconsistent external review requirements to govern a participant's or beneficiary's claim to benefits under an employee benefit plan is wholly destructive of Congress' expressly stated goal of uniformity in this area. Moreover, it is inimical to a scheme for furthering and protecting the "careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans," given that the development of a federal common law under ERISA-regulated plans has consistently been deemed central to that balance.[8]Pilot 481 U. S., 56. While *401 it is true that disuniformity is the inevitable result of the congressional decision to save local insurance regulation, this does not answer the altogether different question before the Court today, which is whether a state law "regulating insurance" nonetheless provides a separate vehicle to assert a claim for benefits outside of, or in addition to, ERISA's remedial scheme. See, e. g., (citing ); Harris 510 U. S., at (citing 464 U. S., at ). If it does, the exclusivity and uniformity of ERISA's enforcement scheme must remain paramount and the state law is pre-empted in accordance with ordinary principles of conflict pre-emption.[9] *40 For the reasons noted by the Court, independent review provisions may sound very appealing. Efforts to expand |
Justice Thomas | 2,002 | 1 | dissenting | Rush Prudential HMO, Inc. v. Moran | https://www.courtlistener.com/opinion/121159/rush-prudential-hmo-inc-v-moran/ | independent review provisions may sound very appealing. Efforts to expand the variety of remedies available to aggrieved beneficiaries beyond those set forth in ERISA are obviously designed to increase the chances that patients will be able to receive treatments they desire, and most of us are naturally sympathetic to those suffering from illness who seek further options. Nevertheless, the Court would do well to remember that no employer is required to provide any health benefit plan under ERISA and that the entire advent of managed care, and the genesis of HMOs, stemmed from spiraling health costs. To the extent that independent review provisions such as 4-10 make it more likely that HMOs will have to subsidize beneficiaries' treatments of choice, they undermine the ability of HMOs to control costs, which, in turn, undermines the ability of employers to provide health care coverage for employees. As a consequence, independent review provisions could create a disincentive to the formation of employee health benefit plans, a problem that Congress addressed by making ERISA's remedial scheme exclusive and uniform. While it may well be the case that the advantages of allowing States to implement independent review requirements as a supplement to the remedies currently provided under ERISA outweigh this drawback, this is a judgment that, pursuant to ERISA, must be made by Congress. I respectfully dissent. |
Justice Scalia | 2,015 | 9 | majority | EEOC v. Abercrombie & Fitch Stores, Inc. | https://www.courtlistener.com/opinion/2804675/eeoc-v-abercrombie-fitch-stores-inc/ | Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. The ques- tion presented is whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation. I We summarize the facts in the light most favorable to the Equal Employment Opportunity Commission (EEOC), against whom the Tenth Circuit granted summary judg- ment. Respondent Abercrombie & Fitch Stores, Inc., operates several lines of clothing stores, each with its own “style.” Consistent with the image Abercrombie seeks to project for each store, the company imposes a Look Policy that governs its employees’ dress. The Look Policy prohib- its “caps”—a term the Policy does not define—as too in- formal for Abercrombie’s desired image. Samantha Elauf is a practicing Muslim who, consistent 2 EEOC v. ABERCROMBIE & FITCH STORES, INC. Opinion of the Court with her understanding of her religion’s requirements, wears a headscarf. She applied for a position in an Aber- crombie store, and was interviewed by Heather Cooke, the store’s assistant manager. Using Abercrombie’s ordinary system for evaluating applicants, Cooke gave Elauf a rating that qualified her to be hired; Cooke was concerned, however, that Elauf ’s headscarf would conflict with the store’s Look Policy. Cooke sought the store manager’s guidance to clarify whether the headscarf was a forbidden “cap.” When this yielded no answer, Cooke turned to Randall Johnson, the district manager. Cooke informed Johnson that she be- lieved Elauf wore her headscarf because of her faith. Johnson told Cooke that Elauf ’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf. The EEOC sued Abercrombie on Elauf ’s behalf, claim- ing that its refusal to hire Elauf violated Title VII. The District Court granted the EEOC summary judgment on the issue of liability, (ND Okla. 2011), held a trial on damages, and awarded $20,000. The Tenth Circuit reversed and awarded Abercrombie sum- mary judgment. It concluded that ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the appli- cant (or employee) provides the employer with actual knowledge of his need for an accommodation. We granted certiorari. 573 U. S. (2014). II Title VII of the Civil Rights Act of 1964 as amended, prohibits two categories of employment prac- tices. It is unlawful for an employer: “(1) to fail or refuse to hire or to discharge any indi- Cite as: |
Justice Scalia | 2,015 | 9 | majority | EEOC v. Abercrombie & Fitch Stores, Inc. | https://www.courtlistener.com/opinion/2804675/eeoc-v-abercrombie-fitch-stores-inc/ | refuse to hire or to discharge any indi- Cite as: 575 U. S. (2015) 3 Opinion of the Court vidual, or otherwise to discriminate against any indi- vidual with respect to his compensation, terms, condi- tions, or privileges of employment, because of such in- dividual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or ap- plicants for employment in any way which would de- prive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S. C. These two proscriptions, often referred to as the “dis- parate treatment” (or “intentional discrimination”) provi- sion and the “disparate impact” provision, are the only causes of action under Title VII. The word “religion” is defined to “includ[e] all aspects of religious observance and practice, as well as belief, unless an employer demon- strates that he is unable to reasonably accommodate to” a “religious observance or practice without undue hardship on the conduct of the employer’s business.” j).1 Abercrombie’s primary argument is that an applicant cannot show disparate treatment without first showing that an employer has “actual knowledge” of the applicant’s need for an accommodation. We disagree. Instead, an applicant need only show that his need for an accommoda- tion was a motivating factor in the employer’s decision.2 —————— 1 For brevity’s sake, we will in the balance of this opinion usually omit reference to the j) “undue hardship” defense to the accom- modation requirement, discussing the requirement as though it is absolute. 2 The concurrence mysteriously concludes that it is not the plaintiff ’s burden to prove failure to accommodate. Post, at 5. But of course that is the plaintiff’s burden, if failure to hire “because of” the plaintiff’s “religious practice” is the gravamen of the complaint. Failing to hire for 4 EEOC v. ABERCROMBIE & FITCH STORES, INC. Opinion of the Court The disparate-treatment provision forbids employers to: (1) “fail to hire” an applicant (2) “because of ” (3) “such individual’s religion” (which includes his religious practice). Here, of course, Abercrombie (1) failed to hire Elauf. The parties concede that (if Elauf sincerely believes that her religion so requires) Elauf ’s wearing of a head- scarf is (3) a “religious practice.” All that remains is whether she was not hired (2) “because of ” her religious practice. The term “because of ” appears frequently in antidis- crimination laws. It typically imports, at a minimum, the traditional standard of but-for causation. University of Tex. Southwestern |
Justice Scalia | 2,015 | 9 | majority | EEOC v. Abercrombie & Fitch Stores, Inc. | https://www.courtlistener.com/opinion/2804675/eeoc-v-abercrombie-fitch-stores-inc/ | the traditional standard of but-for causation. University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. Title VII relaxes this standard, however, to pro- hibit even making a protected characteristic a “motivating factor” in an employment decision. 42 U.S. C. 2(m). “Because of ” in 2(a)(1) links the forbidden consideration to each of the verbs preceding it; an individ- ual’s actual religious practice may not be a motivating factor in failing to hire, in refusing to hire, and so on. It is significant that 2(a)(1) does not impose a knowledge requirement. As Abercrombie acknowledges, some antidiscrimination statutes do. For example, the Americans with Disabilities Act of 1990 defines discrimi- —————— that reason is synonymous with refusing to accommodate the religious practice. To accuse the employer of the one is to accuse him of the other. If he is willing to “accommodate”—which means nothing more than allowing the plaintiff to engage in her religious practice despite the employer’s normal rules to the contrary—adverse action “because of” the religious practice is not shown. “The clause that begins with the word ‘unless,’” as the concurrence describes it, ibid., has no function except to place upon the employer the burden of establishing an “undue hardship” defense. The concurrence provides no example, not even an unrealistic hypothetical one, of a claim of failure to hire because of religious practice that does not say the employer refused to permit (“failed to accommodate”) the religious practice. In the nature of things, there cannot be one. Cite as: 575 U. S. (2015) 5 Opinion of the Court nation to include an employer’s failure to make “reason- able accommodations to the known physical or mental limitations” of an applicant. (emphasis added). Title VII contains no such limitation. Instead, the intentional discrimination provision prohib- its certain motives, regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed. Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightfor- ward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox |
Justice Scalia | 2,015 | 9 | majority | EEOC v. Abercrombie & Fitch Stores, Inc. | https://www.courtlistener.com/opinion/2804675/eeoc-v-abercrombie-fitch-stores-inc/ | for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospec- tive accommodation is a motivating factor in his decision, the employer violates Title VII. Abercrombie urges this Court to adopt the Tenth Cir- cuit’s rule “allocat[ing] the burden of raising a religious conflict.” Brief for Respondent 46. This would require the employer to have actual knowledge of a conflict between an applicant’s religious practice and a work rule. The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desir- able result. That is Congress’s province. We construe Title VII’s silence as exactly that: silence. Its disparate- 6 EEOC v. ABERCROMBIE & FITCH STORES, INC. Opinion of the Court treatment provision prohibits actions taken with the motive of avoiding the need for accommodating a religious practice. A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability.3 Abercrombie argues in the alternative that a claim based on a failure to accommodate an applicant’s religious practice must be raised as a disparate-impact claim, not a disparate-treatment claim. We think not. That might have been true if Congress had limited the meaning of “religion” in Title VII to religious belief—so that discrimi- nating against a particular religious practice would not be disparate treatment though it might have disparate im- pact. In fact, however, Congress defined “religion,” for Title VII’s purposes, as “includ[ing] all aspects of religious observance and practice, as well as belief.” 42 U.S. C. j). Thus, religious practice is one of the protected characteristics that cannot be accorded disparate treat- ment and must be accommodated. Nor does the statute limit disparate-treatment claims to only those employer policies that treat religious practices less favorably than similar secular practices. Abercrom- bie’s argument that a neutral policy cannot constitute “intentional discrimination” may make sense in other contexts. But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored —————— 3 While a knowledge requirement cannot be added to the motive re- quirement, it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious |
Justice Scalia | 2,015 | 9 | majority | EEOC v. Abercrombie & Fitch Stores, Inc. | https://www.courtlistener.com/opinion/2804675/eeoc-v-abercrombie-fitch-stores-inc/ | least suspects that the practice in question is a religious practice—i.e., that he cannot discriminate “because of” a “religious practice” unless he knows or suspects it to be a religious practice. That issue is not presented in this case, since Abercrombie knew—or at least suspected—that the scarf was worn for religious reasons. The question has therefore not been discussed by either side, in brief or oral argument. It seems to us inappropriate to resolve this unargued point by way of dictum, as the concurrence would do. Cite as: 575 U. S. (2015) 7 Opinion of the Court treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no- headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious practice,” it is no response that the sub- sequent “fail[ure] to hire” was due to an otherwise- neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation. * * * The Tenth Circuit misinterpreted Title VII’s require- ments in granting summary judgment. We reverse its judgment and remand the case for further consideration consistent with this opinion. It is so ordered. Cite as: 575 U. S. (2015) 1 ALITO, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 14–86 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER v. ABERCROMBIE & FITCH STORES, INC. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT [June 1, 2015] JUSTICE ALITO, concurring in the judgment. |
Justice Ginsburg | 2,016 | 5 | majority | United States v. Bryant | https://www.courtlistener.com/opinion/3212620/united-states-v-bryant/ | In response to the high incidence of domestic violence against Native American women, Congress, in 2005, en- acted 18 U.S. C. which targets serial offenders. Section 117(a) makes it a federal crime for any person to “commi[t] a domestic assault within Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.” See Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA Reauthorization Act), Pub. L. 109–162, 909, 3084.1 Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions, he was sentenced to terms of imprisonment, none of them exceeding one year’s dura- tion. His tribal-court convictions do not count for purposes, Bryant maintains, because he was uncounseled —————— 1 “Indian country” is defined in 18 U.S. C. to encompass all land within any Indian reservation under federal jurisdiction, all dependent Indian communities, and all Indian allotments, the Indian titles to which have not been extinguished. 2 UNITED STATES v. BRYANT Opinion of the Court in those proceedings. The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed coun- sel in any case in which a term of imprisonment is im- posed. But the Sixth Amendment does not apply to tribal-court proceedings. See Plains Commerce The Indian Civil Rights Act of 1968 (ICRA), Pub. L. 90–284, 82 Stat. 77, 25 U.S. C. et seq., which governs criminal pro- ceedings in tribal courts, requires appointed counsel only when a sentence of more than one year’s imprisonment is imposed. Bryant’s tribal-court convictions, it is undisputed, were valid when entered. This case pre- sents the question whether those convictions, though uncounseled, rank as predicate offenses within the com- pass of Our answer is yes. Bryant’s tribal-court convictions did not violate the Sixth Amendment when obtained, and they retain their validity when invoked in a prosecution. That proceeding generates no Sixth Amendment defect where none previously existed. I A “[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” 151 Cong. Rec. 9061 (2005) (remarks of Sen. McCain). According to the Centers for Disease Control and Prevention, as many as 46% of American Indian and Alaska Native women have been victims of physical violence by an intimate partner. Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, M. Black et al., National Intimate Partner and Sexual Violence Survey 2010 Summary Report 40 (Table 4.3), online at http://www.cdc.gov/ ViolencePrevention/pdf/NISVS_report2010-a.pdf (all Internet Cite as: 579 U. S. (2016) |
Justice Ginsburg | 2,016 | 5 | majority | United States v. Bryant | https://www.courtlistener.com/opinion/3212620/united-states-v-bryant/ | http://www.cdc.gov/ ViolencePrevention/pdf/NISVS_report2010-a.pdf (all Internet Cite as: 579 U. S. (2016) 3 Opinion of the Court materials as last visited June 9, 2016). American Indian and Alaska Native women “are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general.” Dept. of Justice, Attorney General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence, Ending Violence So Children Can Thrive 38 (Nov. 2014), online at https:// www.justice.gov /sites /default/files/defendingchildhood/ pages/attachments/2015/03/23/ending_violence_so_children_ can_thrive.pdf. American Indian women experience battery “at a rate of 23.2 per 1,000, compared with 8 per 1,000 among Caucasian women,” and they “experience 7 sexual assaults per 1,000, compared with 4 per 1,000 among Black Americans, 3 per 1,000 among Caucasians, 2 per 1,000 among Hispanic women, and 1 per 1,000 among Asian women.” VAWA Reauthorization Act, As this Court has noted, domestic abusers exhibit high rates of recidivism, and their violence “often escalates in severity over time.” United States v. Castleman, U. S. (2014) (slip op., at 2). Nationwide, over 75% of female victims of intimate partner violence have been previously victimized by the same offender, Dept. of Jus- tice, Bureau of Justice Statistics, S. Catalano, Intimate Partner Violence 1993–2010, p. 4 (rev. 2015) (Figure 4), online at http://www.bjs.gov/content/pub/pdf/ipv9310.pdf, often multiple times, Dept. of Justice, National Institute of Justice, P. Tjaden & N. Thoennes, Extent, Nature, and Consequences of Intimate Partner Violence, p. iv (2000), online at https://www.ncjrs.gov/pdffiles1/nij/181867.pdf (“[W]omen who were physically assaulted by an intimate partner averaged 6.9 physical assaults by the same part- ner.”). Incidents of repeating, escalating abuse more than occasionally culminate in a fatal attack. See VAWA Reau- thorization Act, –3078 (“[D]uring the period 1979 through 1992, homicide was the third leading 4 UNITED STATES v. BRYANT Opinion of the Court cause of death of Indian females aged 15 to 34, and 75 percent were killed by family members or acquaintances.”). The “complex patchwork of federal, state, and tribal law” governing Indian country, Duro v. Reina, 495 U.S. 676, 680, n. 1 (1990), has made it difficult to stem the tide of domestic violence experienced by Native American women. Although tribal courts may enforce the tribe’s criminal laws against Indian defendants, Congress has curbed tribal courts’ sentencing authority. At the time of ’s passage, ICRA limited sentences in tribal court to a maximum of one year’s imprisonment. 25 U.S. C. (2006 ed.).2 Congress has since expanded tribal courts’ sentencing authority, allowing them to im- pose up to three years’ imprisonment, contingent on adop- tion of additional procedural safeguards. – 2280 (codified at 25 U.S. |
Justice Ginsburg | 2,016 | 5 | majority | United States v. Bryant | https://www.courtlistener.com/opinion/3212620/united-states-v-bryant/ | of additional procedural safeguards. – 2280 (codified at 25 U.S. C. (C), (c)).3 To date, however, few tribes have employed this enhanced sentencing authority. See Tribal Law and Policy Inst., Implementation Chart: VAWA Enhanced Jurisdiction and TLOA Enhanced Sentencing, online at http://www.tribal-institute.org/ download/VAWA/VAWAImplementationChart.pdf.4 —————— 2 Until 1986, ICRA permitted sentences of imprisonment up to only six months. See –146. 3 Among the additional safeguards attending longer sentences is the unqualified right of an indigent defendant to appointed counsel. 25 U.S. C. (2). 4 Tribal governments generally lack criminal jurisdiction over non- Indians who commit crimes in Indian country. See Oliphant v. Suquamish Tribe, In the Violence Against Women Reauthorization Act of 2013, Congress amended ICRA to author- ize tribal courts to “exercise special domestic violence criminal jurisdic- tion” over certain domestic violence offenses committed by a non-Indian against an Indian. Pub. L. 113–4, –122 (codified at 25 U.S. C. Tribal courts’ exercise of this jurisdiction requires procedural safeguards similar to those required for imposing on Indian defendants sentences in excess of one year, including the unqualified right of an indigent defendant to appointed counsel. See We express no view on the validity of those provisions. Cite as: 579 U. S. (2016) 5 Opinion of the Court States are unable or unwilling to fill the enforcement gap. Most States lack jurisdiction over crimes committed in Indian country against Indian victims. See United In 3, Con- gress increased the potential for state action by giving six States “jurisdiction over specified areas of Indian country within the States and provid[ing] for the [voluntary] as- sumption of jurisdiction by other States.” California v. Cabazon Band of Mission Indians, (1987) (footnote omitted). See Act of Aug. 15, 3, Pub. L. 280, (codified, as amended, at 18 U.S. C. and 25 U.S. C. 1360). States so empowered may apply their own criminal laws to “offenses committed by or against Indians within all Indian country within the State.” Cabazon Band of Mission Indians, 480 U.S., at ; see 18 U.S. C. (a). Even when capable of exercising jurisdiction, however, States have not de- voted their limited criminal justice resources to crimes com- mitted in Indian country. Jimenez & Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 Am. U. L. Rev. 1627, 1636–16 (1998); Tribal Law and Policy Inst., S. Deer, C. Goldberg, H. Valdez Singleton, & M. White Eagle, Final Report: Focus Group on Public Law 280 and the Sexual Assault of Native Women 7–8 (2007), online at http://www.tribal-institute.org/download/Final %20280%20FG%20Report.pdf. That leaves the Federal Government. Although federal law generally governs in Indian country, Congress |
Justice Ginsburg | 2,016 | 5 | majority | United States v. Bryant | https://www.courtlistener.com/opinion/3212620/united-states-v-bryant/ | Government. Although federal law generally governs in Indian country, Congress has long excluded from federal-court jurisdiction crimes com- mitted by an Indian against another Indian. 18 U.S. C. see Ex parte Crow Dog, (requiring “a clear expression of the intention of Congress” to confer federal jurisdiction over crimes committed by an Indian against another Indian). In the Major Crimes Act, Congress authorized federal jurisdiction over enumerated grave criminal offenses when both perpetrator and victim 6 UNITED STATES v. BRYANT Opinion of the Court are Indians, including murder, manslaughter, and felony assault. At the time of ’s enactment, felony assault subject to federal prosecution required “serious bodily injury,” (2006 ed.), meaning “a substan- tial risk of death,” “extreme physical pain,” “protracted and obvious disfigurement,” or “protracted loss or impair- ment of the function of a bodily member, organ, or mental faculty.” (incorporated through In short, when was before Congress, Indian perpe- trators of domestic violence “escape[d] felony charges until they seriously injure[d] or kill[ed] someone.” 151 Cong. Rec. 9062 (2005) (remarks of Sen. McCain). As a result of the limitations on tribal, state, and federal jurisdiction in Indian country, serial domestic violence offenders, prior to the enactment of faced at most a year’s imprisonment per offense—a sentence insufficient to deter repeated and escalating abuse. To ratchet up the punishment of serial offenders, Congress created the federal felony offense of domestic assault in Indian coun- try by a habitual offender. (2012 ed.); see No. 12– 30177 (CA9, July 6, 2015), App. to Pet. for Cert. 41a (Ow- ens, J., dissenting from denial of rehearing en banc) (“Tai- lored to the unique problems that American Indian and Alaska Native Tribes face, provides felony- level punishment for serial domestic violence offenders, and it represents the first true effort to remove these recidivists from the communities that they repeatedly —————— 5 Congress has since expanded the definition of felony assault to in- clude “[a]ssault resulting in substantial bodily injury to a spouse[,] intimate partner, [or] dating partner” and “[a]ssault of a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate.” Violence Against Women Reau- thorization Act of 2013, (codified at 18 U.S. C. (8)). The “substantial bodily injury” requirement remains difficult to satisfy, as it requires “a temporary but substantial disfig- urement” or “a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty.” Cite as: 579 U. S. (2016) 7 Opinion of the Court terrorize.”). The section provides in pertinent part: “Any person who commits a domestic assault within Indian country |
Justice Ginsburg | 2,016 | 5 | majority | United States v. Bryant | https://www.courtlistener.com/opinion/3212620/united-states-v-bryant/ | “Any person who commits a domestic assault within Indian country and who has a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for offenses that would be, if subject to Federal jurisdiction any assault, sex- ual abuse, or serious violent felony against a spouse or intimate partner shall be fined imprisoned for a term of not more than 5 years, or both” (1).6 Having two prior convictions for domestic violence crimes—including tribal-court convictions—is thus a predicate of the new B This case requires us to determine whether ’s inclusion of tribal-court convictions is compatible with the Sixth Amendment’s right to counsel. The Sixth Amend- ment to the U. S. Constitution guarantees a criminal defendant in state or federal court “the Assistance of Counsel for his defence.” See Gideon v. Wainwright, 2 U.S. 335, 339 (1963). This right, we have held, requires appointment of counsel for indigent defendants whenever a sentence of imprisonment is imposed. Argersinger v. Hamlin, But an indigent defend- ant has no constitutional right to appointed counsel if his conviction results in a fine or other noncustodial punish- ment. 440 U.S., at “As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by —————— 6 Section 117(a) has since been amended to include as qualifying pred- icate offenses, in addition to intimate-partner crimes, “assault, sexual abuse, [and] serious violent felony” offenses committed “against a child of or in the care of the person committing the domestic assault.” 18 U.S. C. (Supp. II 2014). 8 UNITED STATES v. BRYANT Opinion of the Court those constitutional provisions framed specifically as limitations on federal or state authority.” Santa Clara The Bill of Rights, including the Sixth Amendment right to counsel, therefore, does not apply in tribal-court proceedings. See Plains Commerce 554 U.S., at In ICRA, however, Congress accorded a range of proce- dural safeguards to tribal-court defendants “similar, but not identical, to those contained in the Bill of Rights and the Fourteenth Amendment.” ; see at 62–63 (ICRA “modified the safeguards of the Bill of Rights to fit the unique political, cultural, and economic needs of tribal governments”). In addition to other enumerated protections, ICRA guarantees “due process of law,” 25 U.S. C. and allows tribal- court defendants to seek habeas corpus review in federal court to test the legality of their imprisonment, The right to counsel under ICRA is not coextensive with the Sixth Amendment right. If a tribal court imposes a sentence in excess of one year, ICRA requires the court to accord the defendant “the right |
Justice Ginsburg | 2,016 | 5 | majority | United States v. Bryant | https://www.courtlistener.com/opinion/3212620/united-states-v-bryant/ | ICRA requires the court to accord the defendant “the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution,” including appointment of counsel for an indigent defendant at the tribe’s expense. (2). If the sentence imposed is no greater than one year, however, the tribal court must allow a defendant only the opportunity to obtain counsel “at his own expense.” In tribal court, therefore, unlike in federal or state court, a sentence of imprisonment up to one year may be imposed without according indigent defendants the right to appointed counsel. The question here presented: Is it permissible to use uncounseled tribal-court convictions—obtained in full compliance with ICRA—to establish the prior-crimes predicate of ? It is undisputed that a conviction obtained in violation of a defendant’s Sixth Amendment Cite as: 579 U. S. (2016) 9 Opinion of the Court right to counsel cannot be used in a subsequent proceeding “either to support guilt or enhance punishment for another ” In Burgett, we held that an uncounseled felony conviction obtained in state court in violation of the right to counsel could not be used in a subsequent proceeding to prove the prior-felony element of a recidivist statute. To permit such use of a constitutionally infirm conviction, we ex- plained, would cause “the accused in effect [to] suffe[r] anew from the [prior] deprivation of [his] Sixth Amend- ment right.” ; see United 404 U.S. 443, (invalid, uncounseled prior convictions could not be relied upon at sentencing to impose a longer term of imprisonment for a subsequent conviction); cf. (plurality opinion) (“use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant’s credibility deprives him of due process of law” because the prior convictions “lac[k] reliability”). In we stated an important limitation on the principle recognized in Burgett. In the case under review, Nichols pleaded guilty to a federal felony drug Several years earlier, unrepresented by counsel, he had been convicted of driving under the influence (DUI), a state-law misdemeanor, and fined $250 but not impris- oned. Nichols’ DUI conviction, under the then- mandatory Sentencing Guidelines, effectively elevated by about two years the sentencing range for Nichols’ federal drug We rejected Nichols’ contention that, as his later sentence for the federal drug offense involved imprisonment, use of his uncounseled DUI conviction to elevate that sentence violated the Sixth Amendment. at 746–. “[C]onsistent with the Sixth and Fourteenth Amendments of the Constitution,” we held, “an uncoun- seled misdemeanor conviction, valid under because 10 UNITED STATES v. BRYANT Opinion of the Court no prison term was imposed, |
Justice Ginsburg | 2,016 | 5 | majority | United States v. Bryant | https://www.courtlistener.com/opinion/3212620/united-states-v-bryant/ | BRYANT Opinion of the Court no prison term was imposed, is also valid when used to enhance punishment at a subsequent ” at 748–749. C Respondent Bryant’s conduct is illustrative of the do- mestic violence problem existing in Indian country. Dur- ing the period relevant to this case, Bryant, an enrolled member of the Northern Cheyenne Tribe, lived on that Tribe’s reservation in Montana. He has a record of over 100 tribal-court convictions, including several misdemeanor convictions for domestic assault. Specifically, between 1997 and 2007, Bryant pleaded guilty on at least five occasions in Northern Cheyenne Tribal Court to commit- ting domestic abuse in violation of the Northern Cheyenne Tribal Code. On one occasion, Bryant hit his live-in girl- friend on the head with a beer bottle and attempted to strangle her. On another, Bryant beat a different girl- friend, kneeing her in the face, breaking her nose, and leaving her bruised and bloodied. For most of Bryant’s repeated brutal acts of domestic violence, the Tribal Court sentenced him to terms of im- prisonment, never exceeding one year. When convicted of these offenses, Bryant was indigent and was not appointed counsel. Because of his short prison terms, Bryant acknowledges, the prior tribal-court proceedings complied with ICRA, and his convictions were therefore valid when entered. Bryant has never challenged his tribal-court convictions in federal court under ICRA’s habeas corpus provision. In Bryant was arrested yet again for assaulting women. In February of that year, Bryant attacked his then girlfriend, dragging her off the bed, pulling her hair, and repeatedly punching and kicking her. During an interview with law enforcement officers, Bryant admitted that he had physically assaulted this woman five or six Cite as: 579 U. S. (2016) 11 Opinion of the Court times. Three months later, he assaulted another woman with whom he was then living, waking her by yelling that he could not find his truck keys and then choking her until she almost lost consciousness. Bryant later stated that he had assaulted this victim on three separate occasions during the two months they dated. Based on the assaults, a federal grand jury in Montana indicted Bryant on two counts of domestic as- sault by a habitual offender, in violation of Bry- ant was represented in federal court by appointed counsel. Contending that the Sixth Amendment precluded use of his prior, uncounseled, tribal-court misdemeanor convic- tions to satisfy ’s predicate-offense element, Bryant moved to dismiss the indictment. The District Court denied the motion, App. to Pet. for Cert. 32a, and Bryant entered a conditional guilty plea, reserving the right |
Justice Ginsburg | 2,016 | 5 | majority | United States v. Bryant | https://www.courtlistener.com/opinion/3212620/united-states-v-bryant/ | and Bryant entered a conditional guilty plea, reserving the right to appeal that decision. Bryant was sentenced to concurrent terms of 46 months’ imprisonment on each count, to be followed by three years of supervised release. The Court of Appeals for the Ninth Circuit reversed the conviction and directed dismissal of the indictment. 769 F.3d 671 (2014). Bryant’s tribal-court convictions were not themselves constitutionally infirm, the Ninth Circuit comprehended, because “the Sixth Amendment right to appointed counsel does not apply in tribal court proceed- ings.” But, the court continued, had the con- victions been obtained in state or federal court, they would have violated the Sixth Amendment because Bryant had received sentences of imprisonment although he lacked the aid of appointed counsel. Adhering to its prior deci- sion in United7 —————— 7 In United the Ninth Circuit proscribed the use of an uncounseled tribal-court guilty plea as evi- dence of guilt in a subsequent federal prosecution arising out of the same incident. Use of the plea was impermissible, the Court of Appeals reasoned, “because the tribal court guilty plea was made under circum- 12 UNITED STATES v. BRYANT Opinion of the Court the Court of Appeals held that, subject to narrow excep- tions not relevant here, “tribal court convictions may be used in subsequent [federal] prosecutions only if the tribal court guarantees a right to counsel that is, at minimum, coextensive with the Sixth Amendment right.” 769 F.3d, at 677. Rejecting the Government’s argument that our decision in Nichols required the opposite result, the Ninth Circuit concluded that Nichols applies only when the prior conviction did comport with the Sixth Amendment, i.e., when no sentence of imprisonment was imposed for the prior –678. Judge Watford concurred, agreeing that Ant controlled the outcome of this case, but urging reexamination of Ant in light of This Court’s deci- sion in Nichols, Judge Watford wrote, “undermines the notion that uncounseled convictions are, as a categorical matter, too unreliable to be used as a basis for imposing a prison sentence in a subsequent case.” The Court of Appeals declined to rehear the case en banc over vigorous dissents by Judges Owens and O’Scannlain. In disallowing the use of an uncounseled tribal-court conviction to establish a prior domestic violence conviction within ’s compass, the Ninth Circuit created a Circuit split. The Eighth and Tenth Circuits have both held that tribal-court “convictions, valid at their inception, and not alleged to be otherwise unreliable, may be used to prove the elements of United ; see United To resolve this disagreement, we granted certiorari, 577 U. S. (2016), |
Justice Ginsburg | 2,016 | 5 | majority | United States v. Bryant | https://www.courtlistener.com/opinion/3212620/united-states-v-bryant/ | resolve this disagreement, we granted certiorari, 577 U. S. (2016), and now reverse. —————— stances which would have violated the United States Constitution were it applicable to tribal proceedings.” Cite as: 579 U. S. (2016) 13 Opinion of the Court II Bryant’s tribal-court convictions, he recognizes, in- fringed no constitutional right because the Sixth Amend- ment does not apply to tribal-court proceedings. Brief for Respondent 5. Those prior convictions complied with ICRA, he concedes, and therefore were valid when en- tered. But, had his convictions occurred in state or federal court, Bryant observes, Argersinger and would have rendered them invalid because he was sentenced to incar- ceration without representation by court-appointed coun- sel. Essentially, Bryant urges us to treat tribal-court convictions, for purposes, as though they had been entered by a federal or state court. We next explain why we decline to do so. As earlier recounted, we held in Nichols that “an un- counseled misdemeanor conviction, valid under because no prison term was imposed, is also valid when used to enhance punishment at a subsequent ” –749. “Enhancement statutes,” we rea- soned, “do not change the penalty imposed for the earlier conviction”; rather, repeat-offender laws “penaliz[e] only the last offense committed by the defendant.” ; see United 553 U.S. 7, (“When a defendant is given a higher sentence under a recidivism statute 100% of the punishment is for the offense of None is for the prior convictions or the defendant’s ‘status as a recidivist.’ ”). Nichols thus instructs that convictions valid when entered—that is, those that, when rendered, did not violate the Constitu- tion—retain that status when invoked in a subsequent proceeding. Nichols’ reasoning steers the result here. Bryant’s 46- month sentence for violating punishes his most recent acts of domestic assault, not his prior crimes prose- cuted in tribal court. Bryant was denied no right to coun- sel in tribal court, and his Sixth Amendment right was 14 UNITED STATES v. BRYANT Opinion of the Court honored in federal court, when he was “adjudicated guilty of the felony offense for which he was imprisoned.” Ala- It would be “odd to say that a conviction untainted by a violation of the Sixth Amendment triggers a violation of that same amendment when it’s used in a subsequent case where the defendant’s right to appointed counsel is fully respected.”8 Bryant acknowledges that had he been punished only by fines in his tribal-court proceedings, Nichols would have allowed reliance on his uncounseled convictions to satisfy ’s prior-crimes predicate. Brief for Respondent 50. We see no cause to distinguish for purposes be- tween |
Justice Ginsburg | 2,016 | 5 | majority | United States v. Bryant | https://www.courtlistener.com/opinion/3212620/united-states-v-bryant/ | We see no cause to distinguish for purposes be- tween valid but uncounseled convictions resulting in a fine and valid but uncounseled convictions resulting in impris- onment not exceeding one year. “Both Nichols’s and Bry- ant’s uncounseled convictions ‘comport’ with the Sixth Amendment, and for the same reason: the Sixth Amend- ment right to appointed counsel did not apply to either ” App. to Pet. for Cert. 50a (O’Scannlain, J., dissenting from denial of rehearing en banc). In keeping with Nichols, we resist creating a “hybrid” category of tribal-court convictions, “good for the punish- ment actually imposed but not available for sentence —————— 8 True, as Bryant points out, we based our decision in Nichols v. United States, in part on the “less exact- ing” nature of sentencing, compared with the heightened burden of proof required for determining guilt. But, in describing the rule we adopted, we said that it encompasses both “criminal history provisions,” applica- ble at sentencing, and “recidivist statutes,” of which is one. Moreover, Nichols’ two primary rationales—the validity of the prior conviction and the sentence’s punishment of “only the last of- fense”—do not rely on a distinction between guilt adjudication and sentencing. Indeed, it is the validity of the prior conviction that distin- guishes Nichols from United in which we found impermissible the use at sentencing of an invalid, uncounseled prior Cite as: 579 U. S. (2016) 15 Opinion of the Court enhancement in a later prosecution.” Nichols indicates that use of Bryant’s uncounseled tribal- court convictions in his prosecution did not “trans- form his prior, valid, tribal court convictions into new, invalid, federal ones.” App. to Pet. for Cert. 50a (opinion of O’Scannlain, J.). Our decision in Burgett, which prohibited the subse- quent use of a conviction obtained in violation of the right to counsel, does not aid Bryant. Reliance on an invalid conviction, Burgett reasoned, would cause the accused to “suffe[r] anew from the deprivation of [his] Sixth Amend- ment right.” 389 U.S., at Because a defendant convicted in tribal court suffers no Sixth Amendment violation in the first instance, “[u]se of tribal convictions in a subsequent prosecution cannot violate [the Sixth Amendment] ‘anew.’ ” Bryant observes that reliability concerns underlie our right-to-counsel decisions and urges that those concerns remain even if the Sixth Amendment itself does not shel- ter him. and Nichols, however, counter the argu- ment that uncounseled misdemeanor convictions are categorically unreliable, either in their own right or for use in a subsequent proceeding. Bryant’s recognition that a tribal-court conviction resulting in a fine would qualify as a predicate offense, we |
Justice Ginsburg | 2,016 | 5 | majority | United States v. Bryant | https://www.courtlistener.com/opinion/3212620/united-states-v-bryant/ | in a fine would qualify as a predicate offense, we further note, diminishes the force of his reliability-based argument. There is no reason to suppose that tribal-court proceedings are less reliable when a sentence of a year’s imprisonment is im- posed than when the punishment is merely a fine. No evidentiary or procedural variation turns on the sanc- tion—fine only or a year in prison—ultimately imposed. Bryant also invokes the Due Process Clause of the Fifth Amendment in support of his assertion that tribal-court judgments should not be used as predicate offenses. But, as earlier observed, ICRA itself requires tribes to ensure “due process of law,” and it accords defend- 16 UNITED STATES v. BRYANT Opinion of the Court ants specific procedural safeguards resembling those contained in the Bill of Rights and the Fourteenth Amendment. See Further, ICRA makes habeas review in federal court available to persons incar- cerated pursuant to a tribal-court judgment. By that means, a prisoner may challenge the fundamental fairness of the proceedings in tribal court. Proceedings in compliance with ICRA, Congress determined, and we agree, sufficiently ensure the reliability of tribal-court convictions. Therefore, the use of those convictions in a federal prosecution does not violate a defendant’s right to due process. See 647 F.3d, at ; cf. State v. Spotted Eagle, 316 Mont. 0, 8–9, 1245–1246 (2003) (principles of comity support recognizing uncounseled tribal-court convictions that complied with ICRA). * * * Because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a prosecution does not violate the Constitution. We accordingly reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 579 U. S. (2016) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES No. 15–420 UNITED STATES, PETITIONER v. MICHAEL BRYANT, JR. |
per_curiam | 1,980 | 200 | per_curiam | Thompson v. United States | https://www.courtlistener.com/opinion/110167/thompson-v-united-states/ | The Department of Justice has a firmly established policy, known as the "Petite" policy, under which United Attorneys are forbidden to prosecute any person for allegedly criminal behavior if the alleged criminality was an ingredient of a previous state prosecution against that person. An exception is made only if the federal prosecution is specifically authorized in advance by the Department itself, upon a finding that the prosecution will serve "compelling interests of federal law enforcement."[1] *249 In this case the Solicitor General has advised us that this established Department policy was violated. Accordingly, he urges the Court "to permit the effectuation of the government's policy against successive prosecutions by granting the petition, vacating the judgment of the court of appeals, and remanding the case to the district court with instructions to grant the government's motion to dismiss the indictment." In 1978, the petitioner was brought to trial in a Kentucky court on a charge of armed burglary, and was convicted by a jury of a lesser included offense. He was then prosecuted and convicted in a Federal District Court on a charge of unlawfully possessing a firearma charge that grew out of the same criminal transaction that had been the basis of the Kentucky prosecution. This federal conviction was affirmed by the Court of Appeals for the Sixth Circuit, which accepted the Government's then position that the "Petite" policy had not been violated.[2] The Solicitor General now concedes that the United Attorney did not obtain the authorization required under the established Department policy before bringing the federal prosecution. Moreover, "after careful review" of whether to grant nunc pro tunc authorization, the Solicitor General has concluded that "petitioner's prosecution for unlawfully possessing a firearm was not supported by an independent compelling federal interest not satisfied by the state prosecution for armed burglary." Ever since the Justice Department established the "Petite" policy in 1959, the Court has consistently responded to requests by the Government in cases such as this by granting certiorari and vacating the judgments. See, e. g., ; ; ; ; ; ; ; ; ; This practice, which rests on the power of the Court to "afford relief which is `just under the circumstances,' 28 U.S. C. 2106," is not unique to violations of the "Petite" policy. The Court has also consistently vacated the judgments in other cases which the Solicitor General has represented were in violation of other Justice Department policies. See, e. g., Blucher v. United ; Nunley v. United ; Margraf v. United ; Robison v. United ; Redmond v. United The instant case differs from |
per_curiam | 1,980 | 200 | per_curiam | Thompson v. United States | https://www.courtlistener.com/opinion/110167/thompson-v-united-states/ | United ; Redmond v. United The instant case differs from this long line of decisions only in that here the Government mistakenly, and successfully, represented to the Court of Appeals that Justice Department policy had not been violated. Because of this circumstance, we do not accept the Solicitor General's suggestion. Rather, in response to his suggestion and upon an independent examination of the record, we grant leave to proceed in forma pauperis and certiorari, vacate the judgment, and remand the case to the Court of Appeals for reconsideration in light of the Government's present position. This course is one that the Court has frequently taken when, as here, the Government has changed its position while a criminal case is pending on *251 petition for certiorari. See, e. g., Garner v. United It is so ordered. THE CHIEF JUSTICE and MR. JUSTICE WHITE dissent. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE REHNQUIST joins, dissents for the reason that in this case the United already has presented the "Petite" policy issue to the Court of Appeals and that court has passed upon the issue adversely to the Government's present position. |
Justice White | 1,992 | 6 | majority | Jacobson v. United States | https://www.courtlistener.com/opinion/112720/jacobson-v-united-states/ | On September 24, 1987, petitioner Keith Jacobson was indicted for violating a provision of the Child Protection Act of 1984 (Act), Stat. 204, which criminalizes the knowing receipt through the mails of a "visual depiction [that] involves the use of a minor engaging in sexually explicit conduct" 18 U.S. C. 2252(a)(2)(A). Petitioner defended on the ground that the Government entrapped him into committing the crime through a series of communications from undercover agents that spanned the 26 months preceding his arrest. Petitioner was found guilty after a jury trial. The Court of Appeals affirmed his conviction, holding that the Government had carried its burden of proving beyond reasonable doubt that petitioner was predisposed to break the law and hence was not entrapped. Because the Government overstepped the line between setting a trap for the "unwary innocent" and the "unwary criminal," and as a matter of law failed to establish that petitioner was independently predisposed to commit the crime for which he was arrested, we reverse the Court of Appeals' judgment affirming his conviction. I In February 1984, petitioner, a 56-year-old veteranturned-farmer who supported his elderly father in Nebraska, ordered two magazines and a brochure from a California adult bookstore. The magazines, entitled Bare Boys I and Bare Boys II, contained photographs of nude preteen and *543 teenage boys. The contents of the magazines startled petitioner, who testified that he had expected to receive photographs of "young men 18 years or older." Tr. 425. On cross-examination, he explained his response to the magazines: "[PROSECUTOR]: [Y]ou were shocked and surprised that there were pictures of very young boys without clothes on, is that correct? "[JACOBSON]: Yes, I was. "[PROSECUTOR]: Were you offended? "[JACOBSON]: I was not offended because I thought these were a nudist type publication. Many of the pictures were out in a rural or outdoor setting. There wasI didn't draw any sexual connotation or connection with that." The young men depicted in the magazines were not engaged in sexual activity, and petitioner's receipt of the magazines was legal under both federal and Nebraska law. Within three months, the law with respect to child pornography changed; Congress passed the Act illegalizing the receipt through the mails of sexually explicit depictions of children. In the very month that the new provision became law, postal inspectors found petitioner's name on the mailing list of the California bookstore that had mailed him Bare Boys I and II. There followed over the next 2 12 years repeated efforts by two Government agencies, through five fictitious organizations and a bogus pen pal, to explore petitioner's willingness |
Justice White | 1,992 | 6 | majority | Jacobson v. United States | https://www.courtlistener.com/opinion/112720/jacobson-v-united-states/ | organizations and a bogus pen pal, to explore petitioner's willingness to break the new law by ordering sexually explicit photographs of children through the mail. The Government began its efforts in January 1985 when a postal inspector sent petitioner a letter supposedly from the American Hedonist Society, which in fact was a fictitious organization. The letter included a membership application and stated the Society's doctrine: that members had the *544 "right to read what we desire, the right to discuss similar interests with those who share our philosophy, and finally that we have the right to seek pleasure without restrictions being placed on us by outdated puritan morality." Record, Government Exhibit 7. Petitioner enrolled in the organization and returned a sexual attitude questionnaire that asked him to rank on a scale of one to four his enjoyment of various sexual materials, with one being "really enjoy," two being "enjoy," three being "somewhat enjoy," and four being "do not enjoy." Petitioner ranked the entry "[p]re-teen sex" as a two, but indicated that he was opposed to pedophilia. For a time, the Government left petitioner alone. But then a new "prohibited mailing specialist" in the Postal Service found petitioner's name in a file, Tr. 328-331, and in May 1986, petitioner received a solicitation from a second fictitious consumer research company, "Midlands Data Research," seeking a response from those who "believe in the joys of sex and the complete awareness of those lusty and youthful lads and lasses of the neophite [sic] age." Record, Government Exhibit 8. The letter never explained whether "neophite" referred to minors or young adults. Petitioner responded: "Please feel free to send me more information, I am interested in teenage sexuality. Please keep my name confidential." Petitioner then heard from yet another Government creation, "Heartland Institute for a New Tomorrow" (HINT), which proclaimed that it was "an organization founded to protect and promote sexual freedom and freedom of choice. We believe that arbitrarily imposed legislative sanctions restricting your sexual freedom should be rescinded through the legislative process." Defendant's Exhibit 102. The letter also enclosed a second survey. Petitioner indicated that his interest in "[p]reteen sex-homosexual" material was above average, but not high. In response to another question, petitioner wrote: "Not only sexual expression but freedom of the press is under attack. We must be ever vigilant *545 to counter attack right wing fundamentalists who are determined to curtail our freedoms." Government Exhibit 9. HINT replied, portraying itself as a lobbying organization seeking to repeal "all statutes which regulate sexual activities, except those laws which deal with violent behavior, such |
Justice White | 1,992 | 6 | majority | Jacobson v. United States | https://www.courtlistener.com/opinion/112720/jacobson-v-united-states/ | activities, except those laws which deal with violent behavior, such as rape. HINT is also lobbying to eliminate any legal definition of `the age of consent.' " Defendant's Exhibit 113. These lobbying efforts were to be funded by sales from a catalog to be published in the future "offering the sale of various items which we believe you will find to be both interesting and stimulating." HINT also provided computer matching of group members with similar survey responses; and, although petitioner was supplied with a list of potential "pen pals," he did not initiate any correspondence. Nevertheless, the Government's "prohibited mailing specialist" began writing to petitioner, using the pseudonym "Carl Long." The letters employed a tactic known as "mirroring," which the inspector described as "reflect[ing] whatever the interests are of the person we are writing to." Tr. 342. Petitioner responded at first, indicating that his interest was primarily in "male-male items." Record, Government Exhibit 9A. Inspector "Long" wrote back: "My interests too are primarily male-male items. Are you satisfied with the type of VCR tapes available? Personally, I like the amateur stuff better if its [sic] well produced as it can get more kinky and also seems more real. I think the actors enjoy it more." Government Exhibit 13. Petitioner responded: "As far as my likes are concerned, I like good looking young guys (in their late teens and early 20's) doing their thing together." Government Exhibit 14. Petitioner's letters to "Long" made no reference to child pornography. After writing two letters, petitioner discontinued the correspondence. *546 By March 1987, 34 months had passed since the Government obtained petitioner's name from the mailing list of the California bookstore, and 26 months had passed since the Postal Service had commenced its mailings to petitioner. Although petitioner had responded to surveys and letters, the Government had no evidence that petitioner had ever intentionally possessed or been exposed to child pornography. The Postal Service had not checked petitioner's mail to determine whether he was receiving questionable mailings from personsother than the Governmentinvolved in the child pornography industry. Tr. 348. At this point, a second Government agency, the Customs Service, included petitioner in its own child pornography sting, "Operation Borderline," after receiving his name on lists submitted by the Postal Service. Using the name of a fictitious Canadian company called "Produit Outaouais," the Customs Service mailed petitioner a brochure advertising photographs of young boys engaging in sex. Record, Government Exhibit 22. Petitioner placed an order that was never filled. Government Exhibit 24. The Postal Service also continued its efforts in the Jacobson case, writing |
Justice White | 1,992 | 6 | majority | Jacobson v. United States | https://www.courtlistener.com/opinion/112720/jacobson-v-united-states/ | Service also continued its efforts in the Jacobson case, writing to petitioner as the "Far Eastern Trading Company Ltd." The letter began: "As many of you know, much hysterical nonsense has appeared in the American media concerning `pornography' and what must be done to stop it from coming across your borders. This brief letter does not allow us to give much comments; however, why is your government spending millions of dollars to exercise international censorship while tons of drugs, which makes yours the world's most crime ridden country are passed through easily." Government Exhibit 1. The letter went on to say: "[W]e have devised a method of getting these to you without prying eyes of U. S. Customs seizing your *547 mail. After consultations with American solicitors, we have been advised that once we have posted our material through your system, it cannot be opened for any inspection without authorization of a judge." The letter invited petitioner to send for more information. It also asked petitioner to sign an affirmation that he was "not a law enforcement officer or agent of the U. S. Government acting in an undercover capacity for the purpose of entrapping Far Eastern Trading Company, its agents or customers." Petitioner responded. A catalog was sent, Government Exhibit 2, and petitioner ordered Boys Who Love Boys, Government Exhibit 3, a pornographic magazine depicting young boys engaged in various sexual activities. Petitioner was arrested after a controlled delivery of a photocopy of the magazine. When petitioner was asked at trial why he placed such an order, he explained that the Government had succeeded in piquing his curiosity: "Well, the statement was made of all the trouble and the hysteria over pornography and I wanted to see what the material was. It didn't describe theI didn't know for sure what kind of sexual action they were referring to in the Canadian letter." Tr. 427-428. In petitioner's home, the Government found the Bare Boys magazines and materials that the Government had sent to him in the course of its protracted investigation, but no other materials that would indicate that petitioner collected, or was actively interested in, child pornography. Petitioner was indicted for violating 18 U.S. C. 2252(a) (2)(A). The trial court instructed the jury on the petitioner's entrapment defense,[1] petitioner was convicted, and a divided *548 Court of Appeals for the Eighth Circuit, sitting en banc, affirmed, concluding that "Jacobson was not entrapped as a matter of law." We granted certiorari. II There can be no dispute about the evils of child pornography or the difficulties that laws and law |
Justice White | 1,992 | 6 | majority | Jacobson v. United States | https://www.courtlistener.com/opinion/112720/jacobson-v-united-states/ | of child pornography or the difficulties that laws and law enforcement have encountered in eliminating it. See generally ; New Likewise, there can be no dispute that the Government may use undercover agents to enforce the law. "It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises." ; 356 U. S., at ; United In their zeal to enforce the law, however, Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. ; at Where the Government has induced an *549 individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents. United[2] Thus, an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs and, if the offer is accepted, make an arrest on the spot or later. In *550 such a typical case, or in a more elaborate "sting" operation involving government-sponsored fencing where the defendant is simply provided with the opportunity to commit a crime, the entrapment defense is of little use because the ready commission of the criminal act amply demonstrates the defendant's predisposition. See United States v. Had the agents in this case simply offered petitioner the opportunity to order child pornography through the mails, and petitionerwho must be presumed to know the lawhad promptly availed himself of this criminal opportunity, it is unlikely that his entrapment defense would have warranted a jury instruction. But that is not what happened here. By the time petitioner finally placed his order, he had already been the target of 26 months of repeated mailings and communications from Government agents and fictitious organizations. Therefore, although he had become predisposed to break the law by May 1987, it is our view that the Government did not prove that this predisposition was independent and not the product of the attention that the Government had directed at petitioner since January 1985. ; 356 U. S., at The prosecution's evidence of predisposition falls into two categories: evidence developed prior to the Postal Service's mail campaign, and that developed during the course of the investigation. The |
Justice White | 1,992 | 6 | majority | Jacobson v. United States | https://www.courtlistener.com/opinion/112720/jacobson-v-united-states/ | and that developed during the course of the investigation. The sole piece of preinvestigation evidence is petitioner's 1984 order and receipt of the Bare Boys magazines. But this is scant if any proof of petitioner's predisposition to commit an illegal act, the criminal character of which a defendant is presumed to know. It may indicate a predisposition to view sexually oriented photographs that are responsive to his sexual tastes; but evidence that merely indicates a generic inclination to act within a broad range, not all of which is criminal, is of little probative value in establishing predisposition. *551 Furthermore, petitioner was acting within the law at the time he received these magazines. Receipt through the mails of sexually explicit depictions of children for noncommercial use did not become illegal under federal law until May 1984, and Nebraska had no law that forbade petitioner's possession of such material until 1988. Neb. Rev. Stat. 28 813.01 (1989). Evidence of predisposition to do what once was lawful is not, by itself, sufficient to show predisposition to do what is now illegal, for there is a common understanding that most people obey the law even when they disapprove of it. This obedience may reflect a generalized respect for legality or the fear of prosecution, but for whatever reason, the law's prohibitions are matters of consequence. Hence, the fact that petitioner legally ordered and received the Bare Boys magazines does little to further the Government's burden of proving that petitioner was predisposed to commit a criminal act. This is particularly true given petitioner's unchallenged testimony that he did not know until they arrived that the magazines would depict minors. The prosecution's evidence gathered during the investigation also fails to carry the Government's burden. Petitioner's responses to the many communications prior to the ultimate criminal act were at most indicative of certain personal inclinations, including a predisposition to view photographs of preteen sex and a willingness to promote a given agenda by supporting lobbying organizations. Even so, petitioner's responses hardly support an inference that he would commit the crime of receiving child pornography through the mails.[3] Furthermore, a person's inclinations and "fantasies are *552 his own and beyond the reach of government" Paris Adult Theatre ; 565-5 On the other hand, the strong arguable inference is that, by waving the banner of individual rights and disparaging the legitimacy and constitutionality of efforts to restrict the availability of sexually explicit materials, the Government not only excited petitioner's interest in sexually explicit materials banned by law but also exerted substantial pressure on petitioner to obtain and read such |
Justice White | 1,992 | 6 | majority | Jacobson v. United States | https://www.courtlistener.com/opinion/112720/jacobson-v-united-states/ | exerted substantial pressure on petitioner to obtain and read such material as part of a fight against censorship and the infringement of individual rights. For instance, HINT described itself as "an organization founded to protect and promote sexual freedom and freedom of choice" and stated that "the most appropriate means to accomplish [its] objectives is to promote honest dialogue among concerned individuals and to continue its lobbying efforts with State Legislators." Record, Defendant's Exhibit 113. These lobbying efforts were to be financed through catalog sales. Mailings from the equally fictitious American Hedonist Society, Government Exhibit 7, and the correspondence from the nonexistent Carl Long, Defendant's Exhibit 5, endorsed these themes. Similarly, the two solicitations in the spring of 1987 raised the spectre of censorship while suggesting that petitioner ought to be allowed to do what he had been solicited to do. The mailing from the Customs Service referred to "the worldwide ban and intense enforcement on this type of material," observed that "what was legal and commonplace is now an `underground' and secretive service," and emphasized that "[t]his environment forces us to take extreme measures" to ensure delivery. Government Exhibit 22. The Postal Service solicitation described the concern about child pornography as "hysterical nonsense," decried "international censorship," and assured petitioner, based on consultation with "American solicitors," that an order that had been posted could not be opened for inspection without authorization *553 of a judge. Government Exhibit 1. It further asked petitioner to affirm that he was not a Government agent attempting to entrap the mail order company or its customers. In these particulars, both Government solicitations suggested that receiving this material was something that petitioner ought to be allowed to do. Petitioner's ready response to these solicitations cannot be enough to establish beyond reasonable doubt that he was predisposed, prior to the Government acts intended to create predisposition, to commit the crime of receiving child pornography through the mails. See The evidence that petitioner was ready and willing to commit the offense came only after the Government had devoted 2 12 years to convincing him that he had or should have the right to engage in the very behavior proscribed by law. Rational jurors could not say beyond a reasonable doubt that petitioner possessed the requisite predisposition prior to the Government's investigation and that it existed independent of the Government's many and varied approaches to petitioner. As was explained in where entrapment was found as a matter of law, "the Government [may not] pla[y] on the weaknesses of an innocent party and beguil[e] him into committing crimes which he |
Justice White | 1,992 | 6 | majority | Jacobson v. United States | https://www.courtlistener.com/opinion/112720/jacobson-v-united-states/ | innocent party and beguil[e] him into committing crimes which he otherwise would not have attempted." Law enforcement officials go too far when they "implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." 287 U. S., Like the Court, we are "unable to conclude that it was the intention of the Congress in enacting this statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them." When the Government's quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if *554 left to his own devices, likely would have never run afoul of the law, the courts should intervene. Because we conclude that this is such a case and that the prosecution failed, as a matter of law, to adduce evidence to support the jury verdict that petitioner was predisposed, independent of the Government's acts and beyond a reasonable doubt, to violate the law by receiving child pornography through the mails, we reverse the Court of Appeals' judgment affirming the conviction of Keith Jacobson. It is so ordered. |
Justice Brennan | 1,989 | 13 | dissenting | Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Jr. U. | https://www.courtlistener.com/opinion/112212/volt-info-sciences-inc-v-bd-of-trustees-of-leland-stanford-jr-u/ | The litigants in this case were parties to a construction contract which contained a clause obligating them to arbitrate disputes and making that obligation specifically enforceable. The contract also incorporated provisions of a standard form contract prepared by the American Institute of Architects and endorsed by the Associated General Contractors of America; among these general provisions was 7.1.1: "The *480 Contract shall be governed by the law of the place where the Project is located."[1] When a dispute arose between the parties, Volt invoked the arbitration clause, while Stanford attempted to avoid it (apparently because the dispute also involved two other contractors with whom Stanford had no arbitration agreements). The Federal Arbitration Act (FAA), 9 U.S. C. 1 et seq., requires courts to enforce arbitration agreements in contracts involving interstate commerce. See ante, at 474. The California courts nonetheless rejected Volt's petition to compel arbitration in reliance on a provision of state law that, in the circumstances presented, permitted a court to stay arbitration pending the conclusion of related litigation. Volt, not surprisingly, suggested that the Supremacy Clause compelled a different result. The California Court of Appeal found, however, that the parties had agreed that their contract would be governed solely by the law of the State of California, to the exclusion of federal law.[2] In reaching this *481 conclusion the court relied on no extrinsic evidence of the parties' intent, but solely on the language of the form contract that the " `law of the place where the project is located' " would govern. App. 66-67.[3] This Court now declines to review that holding, which denies effect to an important federal statute, apparently because it finds no question of federal law involved. I can accept neither the state court's unusual interpretation of the parties' contract, nor this Court's unwillingness to review it. I would reverse the judgment of the California Court of Appeal.[4] I Contrary to the Court's view, the state court's construction of the choice-of-law clause is reviewable for two independent reasons. A The Court's decision not to review the state court's interpretation of the choice-of-law clause appears to be based on the principle that "the interpretation of private contracts is ordinarily a question of state law, which this Court does *482 not sit to review." Ante, at 474. I have no quarrel with the general proposition that the interpretation of contracts is a matter of state law. By ending its analysis at that level of generality, however, the Court overlooks well-established precedent to the effect that, in order to guard against arbitrary denials of federal claims, a |
Justice Brennan | 1,989 | 13 | dissenting | Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Jr. U. | https://www.courtlistener.com/opinion/112212/volt-info-sciences-inc-v-bd-of-trustees-of-leland-stanford-jr-u/ | order to guard against arbitrary denials of federal claims, a state court's construction of a contract in such a way as to preclude enforcement of a federal right is not immune from review in this Court as to its "adequacy." Many of our cases that so hold involve, understandably enough, claims under the Contract Clause. In for example, petitioners alleged that the city had unconstitutionally impaired their rights contained in a contract deeding them certain submerged lands in the city harbor. Chief Justice Taft stated the issue for the Court as follows: "The questions we have here to determine are, first, was there a contract, second, what was its proper construction and effect, and, third, was its obligation impaired by subsequent legislation as enforced by the state court? These questions we must answer independently of the conclusion of [the state] court. Of course we should give all proper weight to its judgment, but we can not perform our duty to enforce the guaranty of the Federal Constitution as to the inviolability of contracts by state legislative action unless we give the questions independent consideration." Similarly, in Indiana ex rel. the question was whether the State's repeal of a teacher tenure law had impaired petitioner's contract of employment. We reversed the judgment of the State Supreme Court, notwithstanding that it rested on the state ground that petitioner had had no contractual right to continued employment: "On such a question, one primarily of state law, we accord respectful consideration and great weight to the views of the State's highest court but, in order that the constitutional *483 mandate may not become a dead letter, we are bound to decide for ourselves whether a contract was made, what are its terms and conditions, and whether the State has, by later legislation, impaired its obligation." See also ; Irving Trust The issue has not arisen solely in cases brought under the Contract Clause. Memphis Gas was a Commerce Clause case where appellant's constitutional challenge to a state tax was dependent on a particular interpretation of a contract under which appellant operated. While we sustained the Tennessee court's construction of that contract (and thus did not reach the federal issue), we emphasized that the "meaning and effect of the contract" were "local questions conclusively settled by the decision of the state court save only as this Court, in the performance of its duty to safeguard an asserted constitutional right, may inquire whether the decision of the state question rests upon a fair or substantial basis." Indeed, our ability to review state-law decisions in such circumstances |
Justice Brennan | 1,989 | 13 | dissenting | Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Jr. U. | https://www.courtlistener.com/opinion/112212/volt-info-sciences-inc-v-bd-of-trustees-of-leland-stanford-jr-u/ | Indeed, our ability to review state-law decisions in such circumstances is not limited to the interpretation of contracts. In we noted the "necessary and well settled rule that the exercise of jurisdiction by this court to protect constitutional rights cannot be declined when it is plain that the fair result of a decision is to deny the rights. It is well known that this court will decide for itself whether a contract was made as well as whether the obligation of the contract has been impaired. But that is merely an illustration of a more general rule." We accordingly reversed the state court's dismissal, on grounds of "prolixity," of petitioner's motion to quash an *484 indictment returned against him by a grand jury from which all blacks had been excluded.[5] While in this case the federal right at issue is a statutory, not a constitutional, one, the principle under which we review the antecedent question of state law is the same. Where "the existence or the application of a federal right turns on a logically antecedent finding on a matter of state law, it is essential to the Court's performance of its function that it exercise an ancillary jurisdiction to consider the state question. Federal rights could otherwise be nullified by the manipulation of state law." The Appellate Jurisdiction of the Supreme Court: Reflections on the Law and the Logistics of Direct Review, See also Hill, The Inadequate State Ground, No less than in the cited cases, the right of the instant parties to have their arbitration agreement enforced pursuant to the FAA could readily be circumvented by a state-court construction of their contract as having intended to exclude the applicability of federal law. It is therefore essential that, while according due deference to the decision of the state court, we independently determine whether we "clearly would have judged the issue differently if [we] were the state's highest court." at[6] *485 B Arbitration is, of course, "a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." I agree with the Court that "the FAA does not require parties to arbitrate when they have not agreed to do so." Ante, at 478. Since the FAA merely requires enforcement of what the parties have agreed to, moreover, they are free if they wish to write an agreement to arbitrate outside the coverage of the FAA. Such an agreement would permit a state rule, otherwise pre-empted by the FAA, to govern their arbitration. The substantive question in this case |
Justice Brennan | 1,989 | 13 | dissenting | Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Jr. U. | https://www.courtlistener.com/opinion/112212/volt-info-sciences-inc-v-bd-of-trustees-of-leland-stanford-jr-u/ | to govern their arbitration. The substantive question in this case is whether or not they have done so. And that question, we have made clear in the past, is a matter of federal law. Not only does the FAA require the enforcement of arbitration agreements, but we have held that it also establishes substantive federal law that must be consulted in determining whether (or to what extent) a given contract provides for arbitration. We have stated this most clearly in Moses H. Memorial : "Section 2 [of the FAA] is a congressional declaration of a liberal federal policy favoring arbitration agreements, *486 notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act. [T]he Courts of Appeals have consistently concluded that questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration. We agree. The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability." More recently, in Mitsubishi Motors we stated that a court should determine whether the parties agreed to arbitrate a dispute "by applying the `federal substantive law of arbitrability.' " quoting Moses H. See also Southland The Court recognizes the relevance of the Moses H. principle but finds it unoffended by the Court of Appeal's decision, which, the Court suggests, merely determines what set of procedural rules will apply. Ante, at 476.[7] I agree fully with the Court that "the federal policy is simply to ensure the enforceability, according to their terms, of private agreements to arbitrate," ibid., but I disagree emphatically *487 with its conclusion that that policy is not frustrated here. Applying the California procedural rule, which stays arbitration while litigation of the same issue goes forward, means simply that the parties' dispute will be litigated rather than arbitrated. Thus, interpreting the parties' agreement to say that the California procedural rules apply rather than the FAA, where the parties arguably had no such intent, implicates the Moses H. principle no less than would an interpretation of the parties' contract that erroneously denied the existence of an agreement to arbitrate.[8] While appearing to recognize that the state court's interpretation of the contract does raise a question of federal law, the Court nonetheless refuses to |
Justice Brennan | 1,989 | 13 | dissenting | Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Jr. U. | https://www.courtlistener.com/opinion/112212/volt-info-sciences-inc-v-bd-of-trustees-of-leland-stanford-jr-u/ | a question of federal law, the Court nonetheless refuses to determine whether the state court misconstrued that agreement. There is no warrant for failing to do so. The FAA requires that a court determining a question of arbitrability not stop with the application of state-law rules for construing the parties' intentions, but that it also take account of the command of federal law that "those intentions [be] generously construed as to issues of arbitrability." Mitsubishi Motors, Thus, the decision below is based on both state and federal law, which are thoroughly intertwined. In such circumstances the state-court judgment cannot be said to rest on an "adequate and independent state ground" so as to bar review by this Court. See Enterprise Irrigation With a proper application of federal law in this case, the state court's judgment might have been different, and our review is therefore not barred. Cf. II Construed with deference to the opinion of the California Court of Appeal, yet "with a healthy regard for the federal policy favoring arbitration," Moses H. 460 U. S., it is clear that the choice-of-law clause cannot bear the interpretation the California court assigned to it. Construction of a contractual provision is, of course, a matter of discerning the parties' intent. It is important to recall, in the first place, that in this case there is no extrinsic evidence of their intent. We must therefore rely on the contract itself. But the provision of the contract at issue here was not one that these parties drafted themselves. Rather, they incorporated portions of a standard form contract commonly used in the construction industry. That makes it most unlikely that their intent was in any way at variance with the purposes for which choice-of-law clauses are commonly written and the manner in which they are generally interpreted. It seems to me beyond dispute that the normal purpose of such choice-of-law clauses is to determine that the law of one State rather than that of another State will be applicable; they simply do not speak to any interaction between state and federal law. A cursory glance at standard conflicts texts confirms this observation: they contain no reference at all to the relation between federal and state law in their discussions of contractual choice-of-law clauses. See, e. g., *489 R. Weintraub, Commentary on the Conflict of Laws 7.3C (2d ed. 1980); E. Scoles & P. Hay, Conflict of Laws 632-652 ; R. Leflar, L. McDougal, & R. Felix, American Conflicts Law 147 (4th ed. 1986). The same is true of standard codifications. See Uniform Commercial Code 1-105(1) |
Justice Brennan | 1,989 | 13 | dissenting | Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Jr. U. | https://www.courtlistener.com/opinion/112212/volt-info-sciences-inc-v-bd-of-trustees-of-leland-stanford-jr-u/ | is true of standard codifications. See Uniform Commercial Code 1-105(1) (1978); Restatement (Second) of Conflict of Laws 187 (1971). Indeed the Restatement of Conflicts notes expressly that it does not deal with "the ever-present problem of determining the respective spheres of authority of the law and courts of the nation and of the member States." 2, Comment c. Decisions of this Court fully bear out the impression that choice-of-law clauses do not speak to any state-federal issue. On at least two occasions we have been called upon to determine the applicability vel non of the FAA to contracts containing choice-of-law clauses similar to that at issue here. Despite adverting to the choice-of-law clauses in other contexts in our opinions, we ascribed no significance whatever to them in connection with the applicability of the FAA. ;[9] The great weight of lower court authority similarly rejects the notion that a choice-of-law clause renders the FAA inapplicable.[10]* Choice-of-law clauses simply have never been used for the purpose of dealing with the relationship between state and federal law. There is no basis whatever for believing that the parties in this case intended their choice-of-law clause to do so. Moreover, the literal language of the contract "the law of the place" gives no indication of any intention to apply only state law and exclude other law that would normally be applicable to something taking place at that location. By settled principles of federal supremacy, the law of any place in the United States includes federal law. See ; As the dissenting judge below noted, "under California law, federal law governs matters cognizable in California courts upon which the United States has definitively spoken." App. 82 (opinion *491 of Capaccioli, J.). Thus, "the mere choice of California law is not a selection of California law over federal law" In the absence of any evidence to the contrary it must be assumed that this is what the parties meant by "the law of the place where the Project is located." Indeed, this is precisely what we said when we once previously confronted virtually the same question. In Fidelity Federal Savings & Loan a contract provision stated: "This Deed of Trust shall be governed by the law of the jurisdiction in which the Property is located." Rejecting the contention that the parties thereby had agreed to be bound solely by local law, we held: "Paragraph 15 provides that the deed is to be governed by the `law of the jurisdiction' in which the property is located; but the `law of the jurisdiction' includes federal as well |
Justice Brennan | 1,989 | 13 | dissenting | Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Jr. U. | https://www.courtlistener.com/opinion/112212/volt-info-sciences-inc-v-bd-of-trustees-of-leland-stanford-jr-u/ | but the `law of the jurisdiction' includes federal as well as state law." We should similarly conclude here that the choice-of-law clause was not intended to make federal law inapplicable to this contract. III Most commercial contracts written in this country contain choice-of-law clauses, similar to the one in the Stanford-Volt contract, specifying which State's law is to govern the interpretation of the contract. See Scoles & Hay, Conflict of Laws, at 632-633 ("Party autonomy means that the parties are free to select the law governing their contract, subject to certain limitations. They will usually do so by means of an express choice-of-law clause in their written contract"). Were every state court to construe such clauses as an expression of the parties' intent to exclude the application of federal law, as has the California Court of Appeal in this case, the result would be to render the Federal Arbitration Act a virtual nullity as to presently existing contracts. I cannot believe that the parties to contracts intend such consequences to flow from their insertion of a standard choice-of-law *492 clause. Even less can I agree that we are powerless to review decisions of state courts that effectively nullify a vital piece of federal legislation. I respectfully dissent. |
Justice Marshall | 1,970 | 15 | majority | Choctaw Nation v. Oklahoma | https://www.courtlistener.com/opinion/108130/choctaw-nation-v-oklahoma/ | These cases involve a dispute over the title to land underlying the navigable portion of parts of the Arkansas River in the State of Oklahoma. As a practical matter, what is at stake is the ownership of the minerals beneath the river bed and of the dry land created by navigation projects that are narrowing and deepening the river channel. In December 1966, petitioner Cherokee Nation brought suit in the United District Court for the Eastern District of Oklahoma against the State of Oklahoma and various corporations to which the State had leased oil and gas and other mineral rights. In its complaint, the Cherokee Nation sought both to recover the royalties derived from the leases and to prevent future interference with its property rights, claiming that it had been since 1835 the absolute fee owner of certain land below the mean high water level of the Arkansas River. Subsequently, petitioners Choctaw and Chickasaw Nations sought and were granted leave to intervene in the case in order to present their claims that part of the river bed belongs to them. After pre-trial proceedings in the District Court, a judgment on the pleadings was entered against petitioners and in favor of the State. The District Court held that land grants made to petitioners by the United *622 conveyed no rights to the bed of the navigable portion of the Arkansas River. The court thus held that title to the river bed remained in the United until 1907, when it passed to the State upon Oklahoma's admission to the Union. On appeal, the United Court of Appeals for the Tenth Circuit affirmed the judgment of the District Court. We granted certiorari, to consider petitioners' claims that they received title to the land in question by treaties with the United in 1830 and 1835. I At the outset, we note that these cases require us to pass upon the effect of treaties that were entered into nearly a century and a half ago. As background, it is necessary briefly to relate the circumstances by which petitioners received large grants of land by treaty from the United The history behind these treaties goes back at least to the period immediately after the Revolutionary War and prior to the adoption of the Constitutiona time when petitioners and other Indian Nations occupied much of what are today the southern and southeastern parts of the United In 1785, in the Treaty of Hopewell, November 28, 1785, the United entered into a treaty of peace and friendship with the Cherokee Indians which established the boundaries of the Cherokee |
Justice Marshall | 1,970 | 15 | majority | Choctaw Nation v. Oklahoma | https://www.courtlistener.com/opinion/108130/choctaw-nation-v-oklahoma/ | the Cherokee Indians which established the boundaries of the Cherokee Nation and in which the Indians acknowledged themselves to be under the protection of the United The next year, a similar treaty was concluded between the Choctaws and the United Treaty of Hopewell, January 3, 1786, In following years, the United entered into a number of additional treaties with both the Cherokees *623 and Choctaws.[1] By means of these treaties, the United purchased large areas of land from the Indians to provide room for the increasing numbers of new settlers who were encroaching upon Indian lands during their westward migrations. Although the Indians were not considered to own the fee title to the land on which they lived, they did have the right to the exclusive use and occupancy of the land a right that could be ceded only to the United[2] Moreover, the Indians continued to live on the land not ceded under their own laws and way of life, and their rights to those lands were "solemnly" guaranteed by the United Treaty of Holston, July 2, 1791, 40; see Indian Intercourse Act of 1802, Even while it was making this solemn guarantee, however, the United adopted a policy aimed at completely extinguishing these Indian Nations' rights to their native lands. The United had acquired a large western territory in 1803 by the Louisiana Purchase, and it was soon proposed that the Indians be relocated on new lands west of the Mississippi.[3] For a time, it seemed that the westward removal of the Indians might be readily accomplished. In the Treaty of July 8, 1817, the Cherokee Nation agreed to trade part of its lands in Georgia for a large amount *624 of land in the Arkansas Territory. See also Treaty of February 27, 1819, Thereafter, a number of the Cherokees left their eastern lands and traveled west. Three years later, in the Treaty of Doak's Stand, October 18, 1820, 0, the Choctaw Nation agreed to exchange approximately half of its remaining Mississippi lands for a large tract of land in the Arkansas Territory and an even larger one farther west. Before the United could relocate the Indians on these new lands, however, at least part of the land that had been set aside in the Arkansas Territory was already settled. It was apparent that the westward removal had not been aimed far enough west to escape the new nation's expansion. By the Treaty of January 20, 1825, the Choctaws were persuaded to cede back to the United the eastern portion of the land given them in the Treaty |
Justice Marshall | 1,970 | 15 | majority | Choctaw Nation v. Oklahoma | https://www.courtlistener.com/opinion/108130/choctaw-nation-v-oklahoma/ | eastern portion of the land given them in the Treaty of Doak's Stand. Similarly, the Cherokees who had voluntarily moved to Arkansas agreed to move againfarther west to a new tract of land, "a permanent home, and which shall, under the most solemn guarantee of the United be, and remain, theirs forever." Treaty of May 6, 1828, The prospect of the voluntary removal of the Indians to land west of the Mississippi soon disappeared. For the most part, the Choctaws and the Cherokees who had not already left their eastern lands refused to give up the land that had long been their home. The abortive attempt to set aside Arkansas Territory land for the Indians justifiably made many of them doubt that the United would protect them in their new lands. But at the same time the Indians were deciding to remain, the new settlers' expansion and desire for their lands increased. In Georgia, the state legislature, tired of waiting for the United to fulfill its *625 promise to extinguish Indian rights to Georgia lands,[4] asserted jurisdiction over the Cherokees and prepared to distribute the Cherokee lands. Mississippi soon followed suit, abolishing tribal government and extending its laws to Choctaw territory. A clash between the obligation of the United to protect Indian property rights on the one hand and the policy of forcing their relinquishment on the other was inevitable. With the passage of the Indian Removal Act of 1830, it became apparent that policy, not obligation, would prevail. In spite of the promises to protect the Indians' land and sovereignty, it was clear that the United was unable or unwilling to prevent the and their citizens from violating Indian rights. Thus faced with the prospect of losing both their lands and way of life, the Choctaws agreed in 1830 to leave Mississippi and to move to new lands west of the Arkansas Territory. As a guarantee that they would not again be forced to move, the United promised to convey the land to the Choctaw Nation in fee simple "to inure to them while they shall exist as a nation and live on it." In addition, the United pledged itself to secure to the Choctaws the "jurisdiction and government of all the persons and property that may be within their limits west, so that no Territory or State shall ever have a right to pass laws for the government of the Choctaw Nation and that no part of the land granted to them shall ever be embraced in any Territory or State." Treaty of Dancing Rabbit Creek, Sept. 27, |
Justice Marshall | 1,970 | 15 | majority | Choctaw Nation v. Oklahoma | https://www.courtlistener.com/opinion/108130/choctaw-nation-v-oklahoma/ | Territory or State." Treaty of Dancing Rabbit Creek, Sept. 27, 1830, -334. The Cherokees were at first determined to retain the Georgia lands on which they had by that time settled *626 down, establishing farms and towns.[5] However, after a time, they, too, were forced to leave. In the Treaty of New Echota, December 29, 1835, the Cherokees who had remained in the East agreed to leave their lands and to join the Cherokees who had already moved west of the Mississippi. Once again, the United assured the Indians that they would not be forced to move from their new lands: a patent would issue to convey those lands in fee simple, and they would never be embraced within the boundaries of any State or Territory. The United thus succeeded in its efforts to remove the Indians from their eastern lands. In exchange, by the Treaty of Dancing Rabbit Creek with the Choctaws in 1830 and the Treaty of New Echota with the Cherokees in 1835, the United granted a vast area of its western territory to the two Indian Nations. The land thus granted to the Choctaws encompassed what is today approximately the southern third of the State of Oklahoma; to the north, the Cherokees received title to a tract of land in the eastern part of the remainder of the State with a perpetual outlet to and other rights in land farther west. Although by later treaties other Indian tribes were settled on parts of the land originally included in these grants, and the Chickasaw Nation was granted an undivided one-fourth interest in the remainder of the Choctaw land, see Treaty of January 17, 1837, ; Treaty of June 22, 18, the fee *627 simple title to a vast tract of land continued to be held by the petitioner Indian Nations for well over half a century. Then, again due in large part to the pressure of settlers who were encroaching on Indian lands,[6] Congress acted to change the arrangement. By 16 of the Act of March 3, 13, a commission was created to negotiate with the Indian tribes that had been located in Oklahoma on the allotment of land to their individual members in preparation for the final dissolution of the tribes. Thereafter, the Indiansincluding the Choctaws, Chickasaws, and Cherokeesagreed to the allotment of their lands and the termination of tribal affairs. See Act of June 28, 18, ; Act of July 1, 1902, Finally, Congress provided for the disposition of all petitioners' lands with the provision that any remaining tribal property "be held in trust by |
Justice Marshall | 1,970 | 15 | majority | Choctaw Nation v. Oklahoma | https://www.courtlistener.com/opinion/108130/choctaw-nation-v-oklahoma/ | that any remaining tribal property "be held in trust by the United for the use and benefit of the Indians." Act of April 26, 1906, 27, The way was thus paved for Oklahoma's admission to the Union "on an equal footing with the original" conditioned on its disclaimer of all right and title to lands "owned or held by any Indian, tribe, or nation." Act of June 16, 1906, 3, 4, 271. According to petitioners, they received title to the bed of the Arkansas River by treaty and patent from the United Because the land was not individually allotted or otherwise disposed of pursuant to the 1906 Act, title remained in petitioners or passed to the United to be held in trust for them. The State, on the other hand, claims that petitioners never received title to the land. The courts below held in favor of the State, thus disposing of the case since it was undisputed *628 that if title remained in the United it passed to Oklahoma upon admission to the Union as an incident of statehood. The sole question for review then is whether the treaty grants from the United conveyed title to the bed of the Arkansas River to the Cherokee and Choctaw Nations. II We move then to the construction and effect of the treaties between petitioners and the United At the outset, the State argues that the bed of the Arkansas River was not included in the grants to petitioners even by the accepted standards of ordinary conveyancing since to a skilled draftsman "the land descriptions in the treaties, standing alone, actually exclude the river beds." Part of the Arkansas River here in question is surrounded on both sides by land granted to the Cherokees, and with regard to it the argument is at the least strained. There is no explicit exclusion of the river bed in the 1835 Treaty of New Echota; in fact, there is no reference at all to the river from "a point where a stone is placed opposite the east or lower bank of Grand river at its junction with the Arkansas" to its junction with the Canadian. See As we read the Cherokee treaties and the patent issued thereunder by the President, the Cherokee Nation was granted one undivided tract of land described merely by exterior metes and bounds. That portion of the Arkansas River between its junctions with the Grand and Canadian Rivers lies completely within those metes and bounds, and all of the land inside those boundaries including the river bed seems clearly encompassed within the |
Justice Marshall | 1,970 | 15 | majority | Choctaw Nation v. Oklahoma | https://www.courtlistener.com/opinion/108130/choctaw-nation-v-oklahoma/ | boundaries including the river bed seems clearly encompassed within the grant. Below its confluence with the Canadian, the Arkansas River forms the boundary between the land granted to the Cherokees to the north and the Choctaws to the south, and the treaties do explicitly refer to this portion *629 of the river. In the Treaty of Doak's Stand in 1820, petitioner Choctaw Nation was granted all the land within the following boundaries: "Beginning on the Arkansas River, where the lower boundary line of the Cherokees strikes the same; thence up the Arkansas to the Canadian Fork, and up the same to its source; thence due South to the Red River; thence down Red River, three miles below the mouth of Little River, which empties itself into Red River on the north side; thence a direct line to the beginning." 1. (Emphasis added.) Ten years later, this grant was superseded by the Treaty of Dancing Rabbit Creek, which "varied the description a little and provided for a special patent," : "beginning near Fort Smith where the Arkansas boundary crosses the Arkansas River, running thence to the source of the Canadian fork; if in the limits of the United or to those limits; thence due south to Red River, and down Red River to the west boundary of the Territory of Arkansas; thence north along that line to the beginning." (Emphasis added.) And the patent issued to the Choctaw Nation in 1842 by President Tyler merely repeated the language of this latter treaty. The Choctaw treaties preceded any grant to the Cherokee Nation; and, under them, petitioners Choctaw and Chickasaw Nations claim the entire bed of the Arkansas River between its confluence with the Canadian River and the Oklahoma-Arkansas border. The Cherokees, however, also have a claim to this part of the river, based on the language setting out the southern border of the *630 land granted them in the Treaty of New Echota: From a point on the Canadian River, "thence down the Canadian to the Arkansas; thence down the Arkansas to that point on the Arkansas where the eastern Choctaw boundary strikes said river" (Emphasis added.) Moreover, they point to the patent issued them by President Van Buren in 1838, which described the southern boundary of their lands as follows: "down the Canadian river on its north bank to its junction with Arkansas river; thence down the main channel of Arkansas river to the western boundary of the State of Arkansas at the northern extremity of the eastern boundary of the lands of the Choctaws on the south bank of |
Justice Marshall | 1,970 | 15 | majority | Choctaw Nation v. Oklahoma | https://www.courtlistener.com/opinion/108130/choctaw-nation-v-oklahoma/ | the lands of the Choctaws on the south bank of Arkansas river" (Emphasis added.) According to the Cherokee Nation, the United thereby conveyed to it the north half of the Arkansas River from its junction with the Canadian to the eastern Oklahoma border. Petitioners thus are in disagreement about the effect of the words in the treaties and patents with regard to this lower portion of the river.[7] That disagreement, however, does nothing to make convincing even the State's argument that this part of the river bed was excluded from the grants as a matter of conveyancing law. About all that can be said about the treaties from the standpoint of a skilled draftsman is that they were not skillfully drafted. More important is the fact that these treaties are not to be considered as exercises in ordinary conveyancing. The Indian Nations did not seek out the United and agree upon an exchange of lands in an arm's-length transaction. *631 Rather, treaties were imposed upon them and they had no choice but to consent. As a consequence, this Court has often held that treaties with the Indians must be interpreted as they would have understood them, see, e. g., and any doubtful expressions in them should be resolved in the Indians' favor. See Alaska Pacific Indeed, the Treaty of Dancing Rabbit Creek itself provides that "in the construction of this Treaty wherever well founded doubt shall arise, it shall be construed most favourably towards the Choctaws." Applying these principles here, we conclude that the entire Arkansas River below its confluence with the Grand River was within the metes and bounds of the treaty grants to petitioners. The State argues that the treaty terms "up the Arkansas" and "down the Arkansas" should be read to mean "along the bank of the Arkansas River." However, the United was competent to say the "north side" or "bank" of the Arkansas River when that was what it meant, as it had in the 1817 grant to the Cherokees in the Arkansas Territory. See Even more damaging to the State's argument is the contemporaneous interpretation of the treaty language by the President as reflected in the specific language of the Cherokee patent, "down the Canadian river on its north bank to its junction with Arkansas river; thence down the main channel of Arkansas river."[8]*632 (Emphasis added.) According to the State, the italicized part of this description should be read to mean "down the north bank of the main branch of the Arkansas River." However, not only does this reading itself seem to include part of |
Justice Marshall | 1,970 | 15 | majority | Choctaw Nation v. Oklahoma | https://www.courtlistener.com/opinion/108130/choctaw-nation-v-oklahoma/ | only does this reading itself seem to include part of the river bedthat underlying the "secondary" branchesbut it also conflicts with this Court's interpretation of the term in Brewer-Elliott Oil & Gas The facts involved in Brewer-Elliott were essentially similar to those of the present cases. There the United had established a reservation for the Osage Indians which was bounded on one side by "the main channel of the Arkansas river." The United brought suit to establish the Indians' right to the river bed and the oil reserves beneath it, and the State of Oklahoma intervened to claim that the river bed had passed to it at statehood. The case came *633 here after the Court of Appeals had held that "whether the river was navigable or non-navigable, the United as the owner of the territory through which the Arkansas flowed before statehood, had the right to dispose of the river bed, and had done so, to the Osages." This Court held that in the region in question the Arkansas River was nonnavigable and that "the title of the Osages as granted certainly included the bed of the river as far as the main channel, because the words of the grant expressly carry the title to that line." (Emphasis added.) The question whether it would have been beyond the power of the United to make the grant had the river been navigable was reserved for future decision. In the present cases, there is no question that the Arkansas River is navigable below its junction with the Grand River.[9] However, we do not understand the State to argue the question reserved in Brewer-Elliott. Indeed, it seems well settled that the United can dispose of lands underlying navigable waters just as it can dispose of other public lands. See (14). Rather, the question is whether the United intended to convey title to the river bed to petitioners. See Alaska Pacific ; Moore v. United ; cf. Donnelly v. United 2 Turning then to that question, we think it clear, as did the Court of Appeals, that the parties to the treaties *634 and patents did not pause specifically to provide for the ownership of the river bed. According to the Stateeven if the river bed was within the bounds of the grants to petitionerswe need look no further because "disposals by the United during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain." United v. Holt State Bank, Even were we limited to the |
Justice Marshall | 1,970 | 15 | majority | Choctaw Nation v. Oklahoma | https://www.courtlistener.com/opinion/108130/choctaw-nation-v-oklahoma/ | v. Holt State Bank, Even were we limited to the treaties and patents alone, the most specific language of those instruments is identical to that which we said "expressly" conveyed title to the river bed in Brewer-Elliott. However, nothing in the Holt State Bank case or in the policy underlying its rule of construction (see ) requires that courts blind themselves to the circumstances of the grant in determining the intent of the grantor. Indeed, the court in Holt State Bank itself examined the circumstances in detail and concluded "the reservation was not intended to effect such a disposal." We think that the similar conclusion of the Court of Appeals in this case was in error, given the circumstances of the treaty grants and the counter-vailing rule of construction that well-founded doubt should be resolved in petitioners' favor. Together, petitioners were granted fee simple title to a vast tract of land through which the Arkansas River winds its course. The natural inference from those grants is that all the land within their metes and bounds was conveyed, including the banks and bed of rivers. To the extent that the documents speak to the question, they are consistent with and tend to confirm this natural reading. Certainly there was no express exclusion of the bed of the Arkansas River by the United as there was to other land within the grants. *635 As a practical matter, reservation of the river bed would have meant that petitioners were not entitled to enter upon and take sand and gravel or other minerals from the shallow parts of the river or islands formed when the water was low. In many respects however, the Indians were promised virtually complete sovereignty over their new lands. See Atlantic & Pacific R. (17). We do not believe that petitioners would have considered that they could have been precluded from exercising these basic ownership rights to the river bed, and we think it very unlikely that the United intended otherwise. Nor do we believe that the United would intend that it rather than petitioners have title to the dry bed left from avulsive changes of the river's course, which as the District Court noted are common in this area. Indeed, the United seems to have had no present interest in retaining title to the river bed at all; it had all it was concerned with in its navigational easement via the constitutional power over commerce. Cf. Finally, it must be remembered that the United accompanied its grants to petitioners with the promise that "no part of the land granted |
Justice Thomas | 2,015 | 1 | majority | Reed v. Town of Gilbert | https://www.courtlistener.com/opinion/2809763/reed-v-town-of-gilbert/ | The town of Gilbert, Arizona (or Town), has adopted a comprehensive code governing the manner in which people may display outdoor signs. Gilbert, Ariz., Land Develop- ment Code (Sign Code or Code), ch. 1, (2005).1 The Sign Code identifies various categories of signs based on the type of information they convey, then subjects each category to different restrictions. One of the categories is “Temporary Directional Signs Relating to a Qualifying Event,” loosely defined as signs directing the public to a meeting of a nonprofit group. (P). The Code imposes more stringent restrictions on these signs than it does on signs conveying other messages. We hold that these provisions are content-based regulations of speech that cannot survive strict scrutiny. —————— 1 The Town’s Sign Code is available online at http://www.gilbertaz.gov/ departments / development - service / planning - development / land - development-code (as visited June 16, 2015, and available in Clerk of Court’s case file). 2 REED v. TOWN OF GILBERT Opinion of the Court I A The Sign Code prohibits the display of outdoor signs anywhere within the Town without a permit, but it then exempts 23 categories of signs from that requirement. These exemptions include everything from bazaar signs to flying banners. Three categories of exempt signs are particularly relevant here. The first is “Ideological Sign[s].” This category includes any “sign communicating a message or ideas for noncom- mercial purposes that is not a Construction Sign, Direc- tional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency.” Sign Code, Glossary of General Terms (Glossary), p. 23 (em- phasis deleted). Of the three categories discussed here, the Code treats ideological signs most favorably, allowing them to be up to 20 square feet in area and to be placed in all “zoning districts” without time limits. (J). The second category is “Political Sign[s].” This includes any “temporary sign designed to influence the outcome of an election called by a public body.” Glossary 23.2 The Code treats these signs less favorably than ideological signs. The Code allows the placement of political signs up to 16 square feet on residential property and up to 32 square feet on nonresidential property, undeveloped mu- nicipal property, and “rights-of-way.” (I).3 These signs may be displayed up to days before a primary election and up to 15 days following a general election. —————— 2 A “Temporary Sign” is a “sign not permanently attached to the ground, a wall or a building, and not designed or intended for perma- nent display.” Glossary |
Justice Thomas | 2,015 | 1 | majority | Reed v. Town of Gilbert | https://www.courtlistener.com/opinion/2809763/reed-v-town-of-gilbert/ | and not designed or intended for perma- nent display.” Glossary 25. 3 The Code defines “Right-of-Way” as a “strip of publicly owned land occupied by or planned for a street, utilities, landscaping, sidewalks, trails, and similar facilities.” Cite as: 576 U. S. (2015) 3 Opinion of the Court The third category is “Temporary Directional Signs Relating to a Qualifying Event.” This includes any “Tem- porary Sign intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event.’ ” Glossary 25 (emphasis deleted). A “qualifying event” is defined as any “assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, commu- nity service, educational, or other similar non-profit organ- ization.” The Code treats temporary directional signs even less favorably than political signs.4 Temporary directional signs may be no larger than six square feet. (P). They may be placed on private property or on a public right-of-way, but no more than four signs may be placed on a single property at any time. And, they may be displayed no more than 12 hours before the “quali- fying event” and no more than 1 hour afterward. B Petitioners Good News Community Church (Church) and its pastor, Clyde Reed, wish to advertise the time and location of their Sunday church services. The Church is a small, cash-strapped entity that owns no building, so it holds its services at elementary schools or other locations in or near the Town. In order to inform the public about its services, which are held in a variety of different loca- —————— 4 The Sign Code has been amended twice during the pendency of this case. When litigation began in 2007, the Code defined the signs at issue as “Religious Assembly Temporary Direction Signs.” App. 75. The Code entirely prohibited placement of those signs in the public right-of-way, and it forbade posting them in any location for more than two hours before the religious assembly or more than one hour after- ward. at 75–76. In 2008, the Town redefined the category as “Temporary Directional Signs Related to a Qualifying Event,” and it expanded the time limit to 12 hours before and 1 hour after the “quali- fying event.” In 2011, the Town amended the Code to authorize placement of temporary directional signs in the public right-of-way. 4 REED v. TOWN OF GILBERT Opinion of the Court tions, the Church began placing 15 to 20 temporary signs around the Town, frequently in the public right-of-way abutting the street. The signs typically displayed the Church’s name, along with the time and location of the upcoming service. Church |
Justice Thomas | 2,015 | 1 | majority | Reed v. Town of Gilbert | https://www.courtlistener.com/opinion/2809763/reed-v-town-of-gilbert/ | with the time and location of the upcoming service. Church members would post the signs early in the day on Saturday and then remove them around midday on Sunday. The display of these signs requires little money and manpower, and thus has proved to be an economical and effective way for the Church to let the community know where its services are being held each week. This practice caught the attention of the Town’s Sign Code compliance manager, who twice cited the Church for violating the Code. The first citation noted that the Church exceeded the time limits for displaying its tempo- rary directional signs. The second citation referred to the same problem, along with the Church’s failure to include the date of the event on the signs. Town officials even confiscated one of the Church’s signs, which Reed had to retrieve from the municipal offices. Reed contacted the Sign Code Compliance Department in an attempt to reach an accommodation. His efforts proved unsuccessful. The Town’s Code compliance man- ager informed the Church that there would be “no leni- ency under the Code” and promised to punish any future violations. Shortly thereafter, petitioners filed a complaint in the States District Court for the District of Arizona, arguing that the Sign Code abridged their freedom of speech in violation of the First and Fourteenth Amend- ments. The District Court denied the petitioners’ motion for a preliminary injunction. The Court of Appeals for the Ninth Circuit affirmed, holding that the Sign Code’s provi- sion regulating temporary directional signs did not regu- late speech on the basis of content. (2009). It reasoned that, even though an enforcement Cite as: 576 U. S. (2015) 5 Opinion of the Court officer would have to read the sign to determine what provisions of the Sign Code applied to it, the “ ‘kind of cursory examination’ ” that would be necessary for an officer to classify it as a temporary directional sign was “not akin to an officer synthesizing the expressive content of the sign.” It then remanded for the District Court to determine in the first instance whether the Sign Code’s distinctions among temporary directional signs, political signs, and ideological signs nevertheless consti- tuted a content-based regulation of speech. On remand, the District Court granted summary judg- ment in favor of the Town. The Court of Appeals again affirmed, holding that the Code’s sign categories were content The court concluded that “the distinc- tions between Temporary Directional Signs, Ideological Signs, and Political Signs are based on objective fac- tors relevant to Gilbert’s creation of the specific |
Justice Thomas | 2,015 | 1 | majority | Reed v. Town of Gilbert | https://www.courtlistener.com/opinion/2809763/reed-v-town-of-gilbert/ | objective fac- tors relevant to Gilbert’s creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign.” (CA9 2013). Relying on this Court’s decision in the Court of Appeals concluded that the Sign Code is content –1072. As the court explained, “Gilbert did not adopt its regula- tion of speech because it disagreed with the message conveyed” and its “interests in regulat[ing] temporary signs are unrelated to the content of the sign.” Accord- ingly, the court believed that the Code was “content- neutral as that term [has been] defined by the Supreme Court.” In light of that determination, it applied a lower level of scrutiny to the Sign Code and concluded that the law did not violate the First Amend- ment. at 1073–1076. We granted certiorari, 573 U. S. (2014), and now reverse. 6 REED v. TOWN OF GILBERT Opinion of the Court II A The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws “abridging the freedom of speech.” U. S. Const., Amdt. 1. Under that Clause, a government, including a municipal government vested with state authority, “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Content-based laws—those that target speech based on its communica- tive content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. R. A. V. v. St. Paul, 3 ; Simon & Government regulation of speech is content based if a law applies to particular speech because of the topic dis- cussed or the idea or message E.g., v. IMS Health, Inc., 564 U. S. – (2011) (slip op., at 8–9); ; Mosley, at This commonsense meaning of the phrase “content based” requires a court to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys. at (slip op., at 8). Some facial distinctions based on a mes- sage are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regu- lated speech by its function or purpose. Both are distinc- tions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny. Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech: laws that cannot be “ ‘justified without reference to Cite as: 576 U. S. (2015) 7 Opinion of the Court the content of the |
Justice Thomas | 2,015 | 1 | majority | Reed v. Town of Gilbert | https://www.courtlistener.com/opinion/2809763/reed-v-town-of-gilbert/ | (2015) 7 Opinion of the Court the content of the regulated speech,’ ” or that were adopted by the government “because of disagreement with the message [the speech] conveys,” Those laws, like those that are content based on their face, must also satisfy strict scrutiny. B The Town’s Sign Code is content based on its face. It defines “Temporary Directional Signs” on the basis of whether a sign conveys the message of directing the public to church or some other “qualifying event.” Glossary 25. It defines “Political Signs” on the basis of whether a sign’s message is “designed to influence the outcome of an elec- tion.” And it defines “Ideological Signs” on the basis of whether a sign “communicat[es] a message or ideas” that do not fit within the Code’s other categories. It then subjects each of these categories to different restrictions. The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. If a sign informs its reader of the time and place a book club will discuss John Locke’s Two Trea- tises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government. More to the point, the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny. 8 REED v. TOWN OF GILBERT Opinion of the Court C In reaching the contrary conclusion, the Court of Ap- peals offered several theories to explain why the Town’s Sign Code should be deemed content None is persuasive. 1 The Court of Appeals first determined that the Sign Code was content neutral because the Town “did not adopt its regulation of speech [based on] disagree[ment] with the message conveyed,” and its justifications for regulating temporary directional signs were “unrelated to the content of the sign.” –1072. In its brief to this Court, the States similarly contends that a sign regulation is content neutral—even if it expressly draws distinctions based on the sign’s communicative content—if those distinctions can be “ ‘justified without reference to the content of the regulated speech.’ ” Brief for States as Amicus Curiae 20, |
Justice Thomas | 2,015 | 1 | majority | Reed v. Town of Gilbert | https://www.courtlistener.com/opinion/2809763/reed-v-town-of-gilbert/ | regulated speech.’ ” Brief for States as Amicus Curiae 20, 24 (quoting at ; emphasis deleted). But this analysis skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. We have thus made clear that “ ‘[i]llicit legislative intent is not the sine qua non of a violation of the First Amendment,’ ” and a party opposing the government “need adduce ‘no evidence of an improper censorial motive.’ ” Simon & Although “a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary.” Broadcasting System, In other words, an Cite as: 576 U. S. (2015) 9 Opinion of the Court innocuous justification cannot transform a facially content- based law into one that is content That is why we have repeatedly considered whether a law is content neutral on its face before turning to the law’s justification or purpose. See, e.g., at – (slip op., at 8–9) (statute was content based “on its face,” and there was also evidence of an impermissible legislative motive); States v. Eichman, 496 U.S. 310, 315 (1990) (“Although the [statute] contains no ex- plicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government’s asserted interest is related to the suppression of free ex- pression” (internal quotation marks omitted)); Members of City Council of Los Angeles v. Taxpayers for 466 U.S. 789, 804 (1984) (“The text of the ordinance is neu- tral,” and “there is not even a hint of bias or censorship in the City’s enactment or enforcement of this ordinance”); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984) (requiring that a facially content-neutral ban on camping must be “justified without reference to the content of the regulated speech”); (noting that the statute “on its face deals with conduct having no connection with speech,” but examining whether the “the governmental interest is unrelated to the suppression of free expres- sion”). Because strict scrutiny applies either when a law is content based on its face or when the purpose and justi- fication for the law are content based, a court must evalu- ate each question before it concludes that the law is con- tent neutral and thus subject to a lower level of scrutiny. The Court of Appeals and the States misunder- stand our decision |
Justice Thomas | 2,015 | 1 | majority | Reed v. Town of Gilbert | https://www.courtlistener.com/opinion/2809763/reed-v-town-of-gilbert/ | Court of Appeals and the States misunder- stand our decision in as suggesting that a govern- ment’s purpose is relevant even when a law is content based on its face. That is incorrect. had nothing to say about facially content-based restrictions because it involved a facially content-neutral ban on the use, in a 10 REED v. TOWN OF GILBERT Opinion of the Court city-owned music venue, of sound amplification systems not provided by the and n. 2. In that context, we looked to governmental motive, including whether the government had regulated speech “because of disagreement” with its message, and whether the regula- tion was “ ‘justified without reference to the content of the speech.’ ” at But ’s framework “applies only if a statute is content ” (KENNEDY, J., dissenting). Its rules thus operate “to pro- tect speech,” not “to restrict it.” The First Amendment requires no less. Innocent mo- tives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws—i.e., the “abridg[ement] of speech”—rather than merely the mo- tives of those who enacted them. U. S. Const., Amdt. 1. “ ‘The vice of content-based legislation is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.’ ” at 743 (SCALIA, J., dissenting). For instance, in the Court encountered a State’s attempt to use a statute prohibiting “ ‘improper solicitation’ ” by attorneys to outlaw litigation-related speech of the National Association for the Advancement of Colored People. Although Button predated our more recent formulations of strict scrutiny, the Court rightly rejected the State’s claim that its interest in the “regulation of professional conduct” rendered the statute consistent with the First Amend- ment, observing that “it is no answer to say that the purpose of these regulations was merely to insure high professional standards and not to curtail free expression.” –439. Likewise, one could easily imagine a Sign Code compliance manager who disliked the Church’s Cite as: 576 U. S. (2015) 11 Opinion of the Court substantive teachings deploying the Sign Code to make it more difficult for the Church to inform the public of the location of its services. Accordingly, we have repeatedly “rejected the argument that ‘discriminatory treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas.’ ” Discovery 507 U.S., at We do so again today. 2 The Court of Appeals next |
Justice Thomas | 2,015 | 1 | majority | Reed v. Town of Gilbert | https://www.courtlistener.com/opinion/2809763/reed-v-town-of-gilbert/ | do so again today. 2 The Court of Appeals next reasoned that the Sign Code was content neutral because it “does not mention any idea or viewpoint, let alone single one out for differential treatment.” It reasoned that, for the purpose of the Code provisions, “[i]t makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted.” 707 F.3d, at The Town seizes on this reasoning, insisting that “con- tent based” is a term of art that “should be applied flexi- bly” with the goal of protecting “viewpoints and ideas from government censorship or favoritism.” Brief for Respond- ents 22. In the Town’s view, a sign regulation that “does not censor or favor particular viewpoints or ideas” cannot be content based. The Sign Code allegedly passes this test because its treatment of temporary directional signs does not raise any concerns that the government is “endorsing or suppressing ‘ideas or viewpoints,’ ” and the provisions for political signs and ideological signs “are neutral as to particular ideas or viewpoints” within those categories. This analysis conflates two distinct but related limita- tions that the First Amendment places on government regulation of speech. Government discrimination among viewpoints—or the regulation of speech based on “the specific motivating ideology or the opinion or perspective of the speaker”—is a “more blatant” and “egregious form of 12 REED v. TOWN OF GILBERT Opinion of the Court content discrimination.” (19). But it is well established that “[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” Consolidated Edison Co. of N. Thus, a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter. For example, a law banning the use of sound trucks for politi- cal speech—and only political speech—would be a content- based regulation, even if it imposed no limits on the politi- cal viewpoints that could be See Discovery The Town’s Sign Code likewise singles out specific subject matter for differential treat- ment, even if it does not target viewpoints within that subject matter. Ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given more favorable treatment than messages announcing an assembly of like- minded individuals. That is a paradigmatic example of content-based discrimination. 3 Finally, the Court of Appeals characterized the Sign Code’s distinctions as turning on “ ‘the content-neutral elements of who is speaking through the sign and whether and when an event |
Justice Thomas | 2,015 | 1 | majority | Reed v. Town of Gilbert | https://www.courtlistener.com/opinion/2809763/reed-v-town-of-gilbert/ | speaking through the sign and whether and when an event is occurring.’ ” 707 F.3d, at That analysis is mistaken on both factual and legal grounds. To start, the Sign Code’s distinctions are not speaker based. The restrictions for political, ideological, and tem- porary event signs apply equally no matter who sponsors them. If a local business, for example, sought to put up Cite as: 576 U. S. (2015) 13 Opinion of the Court signs advertising the Church’s meetings, those signs would be subject to the same limitations as such signs placed by the Church. And if Reed had decided to dis- play signs in support of a particular candidate, he could have made those signs far larger—and kept them up for far longer—than signs inviting people to attend his church services. If the Code’s distinctions were truly speaker based, both types of signs would receive the same treatment. In any case, the fact that a distinction is speaker based does not, as the Court of Appeals seemed to believe, auto- matically render the distinction content Because “[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content,” Citi- zens 340 (2010), we have insisted that “laws favoring some speakers over others demand strict scrutiny when the legislature’s speaker preference reflects a content prefer- ence,” Thus, a law limiting the content of newspapers, but only newspapers, could not evade strict scrutiny simply because it could be character- ized as speaker based. Likewise, a content-based law that restricted the political speech of all corporations would not become content neutral just because it singled out corpo- rations as a class of speakers. See Citizens at 340–341. Characterizing a distinction as speaker based is only the beginning—not the end—of the inquiry. Nor do the Sign Code’s distinctions hinge on “whether and when an event is occurring.” The Code does not per- mit citizens to post signs on any topic whatsoever within a set period leading up to an election, for example. Instead, come election time, it requires Town officials to determine whether a sign is “designed to influence the outcome of an election” (and thus “political”) or merely “communicating a message or ideas for noncommercial purposes” (and thus “ideological”). Glossary 24. That obvious content-based 14 REED v. TOWN OF GILBERT Opinion of the Court inquiry does not evade strict scrutiny review simply be- cause an event (i.e., an election) is involved. And, just as with speaker-based laws, the fact that a distinction is event based does not render it content neu- tral. The Court of |
Justice Thomas | 2,015 | 1 | majority | Reed v. Town of Gilbert | https://www.courtlistener.com/opinion/2809763/reed-v-town-of-gilbert/ | does not render it content neu- tral. The Court of Appeals cited no precedent from this Court supporting its novel theory of an exception from the content-neutrality requirement for event-based laws. As we have explained, a speech regulation is content based if the law applies to particular speech because of the topic discussed or the idea or message A regulation that targets a sign because it conveys an idea about a specific event is no less content based than a regulation that targets a sign because it conveys some other idea. Here, the Code singles out signs bearing a particular message: the time and location of a specific event. This type of ordinance may seem like a perfectly rational way to regulate signs, but a clear and firm rule governing content neutrality is an essential means of protecting the freedom of speech, even if laws that might seem “entirely reasonable” will sometimes be “struck down because of their content-based nature.” City of Ladue v. Gilleo, III Because the Town’s Sign Code imposes content-based restrictions on speech, those provisions can stand only if they survive strict scrutiny, “ ‘which requires the Govern- ment to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest,’ ” Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S. (2011) (slip op., at 8) (quoting Citizens ). Thus, it is the Town’s burden to demonstrate that the Code’s differentiation between temporary directional signs and other types of signs, such as political signs and ideological signs, furthers a compelling governmental interest and is narrowly tai- Cite as: 576 U. S. (2015) 15 Opinion of the Court lored to that end. See The Town cannot do so. It has offered only two govern- mental interests in support of the distinctions the Sign Code draws: preserving the Town’s aesthetic appeal and traffic safety. Assuming for the sake of argument that those are compelling governmental interests, the Code’s distinctions fail as hopelessly underinclusive. Starting with the preservation of aesthetics, temporary directional signs are “no greater an eyesore,” Discovery than ideological or political ones. Yet the Code allows unlimited proliferation of larger ideological signs while strictly limiting the number, size, and duration of smaller directional ones. The Town can- not claim that placing strict limits on temporary direc- tional signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem. The Town similarly has not shown that limiting tempo- rary directional signs is necessary to eliminate threats to |
Justice Thomas | 2,015 | 1 | majority | Reed v. Town of Gilbert | https://www.courtlistener.com/opinion/2809763/reed-v-town-of-gilbert/ | tempo- rary directional signs is necessary to eliminate threats to traffic safety, but that limiting other types of signs is not. The Town has offered no reason to believe that directional signs pose a greater threat to safety than do ideological or political signs. If anything, a sharply worded ideological sign seems more likely to distract a driver than a sign directing the public to a nearby church meeting. In light of this underinclusiveness, the Town has not met its burden to prove that its Sign Code is narrowly tailored to further a compelling government interest. Because a “ ‘law cannot be regarded as protecting an inter- est of the highest order, and thus as justifying a re- striction on truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited,’ ” Republican Party of (2002), the Sign Code fails strict scrutiny. 16 REED v. TOWN OF GILBERT Opinion of the Court IV Our decision today will not prevent governments from enacting effective sign laws. The Town asserts that an “ ‘absolutist’ ” content-neutrality rule would render “virtu- ally all distinctions in sign laws subject to strict scru- tiny,” Brief for Respondents 34–35, but that is not the case. Not “all distinctions” are subject to strict scrutiny, only content-based ones are. Laws that are content neutral are instead subject to lesser scrutiny. See Clark, 468 U.S., at 2. The Town has ample content-neutral options available to resolve problems with safety and aesthetics. For exam- ple, its current Code regulates many aspects of signs that have nothing to do with a sign’s message: size, building materials, lighting, moving parts, and portability. See, e.g., (R). And on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner. See Taxpayers for (upholding content-neutral ban against posting signs on public property). Indeed, some lower courts have long held that similar content-based sign laws receive strict scrutiny, but there is no evidence that towns in those jurisdictions have suffered catastrophic effects. See, e.g., Solantic, 1264– 1269 (CA11 2005) (sign categories similar to the town of Gilbert’s were content based and subject to strict scru- tiny); 59– (CA1 1985) (law banning political signs but not commercial signs was content based and subject to strict scrutiny). We acknowledge that a city might reasonably view the general regulation of signs as necessary because signs “take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.” City of |
Justice Thomas | 2,015 | 1 | majority | Reed v. Town of Gilbert | https://www.courtlistener.com/opinion/2809763/reed-v-town-of-gilbert/ | pose other problems that legitimately call for regulation.” City of Ladue, 512 U.S., at 48. At the same time, the presence of certain Cite as: 576 U. S. (2015) 17 Opinion of the Court signs may be essential, both for vehicles and pedestrians, to guide traffic or to identify hazards and ensure safety. A sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passen- gers—such as warning signs marking hazards on private property, signs directing traffic, or street numbers associ- ated with private houses—well might survive strict scru- tiny. The signs at issue in this case, including political and ideological signs and signs for events, are far removed from those purposes. As discussed above, they are facially content based and are neither justified by traditional safety concerns nor narrowly tailored. * * * We reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion. It is so ordered. Cite as: 576 U. S. (2015) 1 ALITO, J., concurring SUPREME COURT OF THE UNITED STATES No. 13–502 CLYDE REED, ET AL., PETITIONERS v. TOWN OF GILBERT, ARIZONA, ET AL. |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | I join JUSTICE O'CONNOR's opinion. It is not surprising that citizens who are troubled by gerrymandering turn first to the courts for redress. De Tocqueville, that perceptive commentator on our country, observed that "[s]carcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate." 1 A. De Tocqueville, Democracy in America 330 (H. Reeve trans. 191). What I question is the Court's urge *144 to craft a judicial remedy for this perceived "injustice." In my view, the Framers of the Constitution envisioned quite a different scheme. They placed responsibility for correction of such flaws in the people, relying on them to influence their elected representatives. As Justice Frankfurter wrote when the Court entered this political arena: "The Framers carefully and with deliberate forethought refused so to enthrone the judiciary. In this situation, as in others of like nature, appeal for relief does not belong here. Appeal must be to an informed, civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people's representatives. In any event there is nothing judicially more unseemly nor more self-defeating than for this Court to make in terrorem pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope." JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in the judgment. Today the Court holds that claims of political gerrymandering lodged by members of one of the political parties that make up our two-party system are justiciable under the Equal Protection Clause of the Fourteenth Amendment. Nothing in our precedents compels us to take this step, and there is every reason not to do so. I would hold that the partisan gerrymandering claims of major political parties raise a nonjusticiable political question that the judiciary should leave to the legislative branch as the Framers of the Constitution unquestionably intended. Accordingly, I would reverse the District Court's judgment on the grounds that appellees' claim is nonjusticiable. There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed *145 enormously to sound and effective government. The preservation and health of our political institutions, state and federal, depends to no small extent on the continued vitality of our two-party system, which permits both stability and measured change. The opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | a critical and traditional part of politics in the United States, and one that plays no small role in fostering active participation in the political parties at every level. Thus, the legislative business of apportionment is fundamentally a political affair, and challenges to the manner in which an apportionment has been carried out by the very parties that are responsible for this process present a political question in the truest sense of the term. To turn these matters over to the federal judiciary is to inject the courts into the most heated partisan issues. It is predictable that the courts will respond by moving away from the nebulous standard a plurality of the Court fashions today and toward some form of rough proportional representation for all political groups. The consequences of this shift will be as immense as they are unfortunate. I do not believe, and the Court offers not a shred of evidence to suggest, that the Framers of the Constitution intended the judicial power to encompass the making of such fundamental choices about how this Nation is to be governed. Nor do I believe that the proportional representation towards which the Court's expansion of equal protection doctrine will lead is consistent with our history, our traditions, or our political institutions. The Court pays little heed to these considerations, which should inform any sensible jurisprudence of Article III and of the Equal Protection Clause. The Court's reflexive application of precedent ignores the maxim that "[p]articularly in dealing with claims under broad provisions of the Constitution, which derive content by an interpretative process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave *14 rise to them, must not be applied out of context in disregard of variant controlling facts." In cases such as this one, which may profoundly affect the governance of this Nation, it is not enough to cite precedent: we should examine it for possible limits, and if they are lacking, for possible flaws. I Appellees are Indiana Democrats who claim that Indiana's 1981 state apportionment discriminates against Democrats on a statewide basis by diluting their votes, thereby depriving them of "their proportionate share of political influence." The Court, relying principally on and the line of racial gerrymandering cases including and holds that appellees' "purely political equal protection claim," ante, at 119, does not present a political question and is therefore justiciable. Specifically, the Court holds that the fact that a vote dilution claim "is submitted by a political group, rather than a racial group, does |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | by a political group, rather than a racial group, does not distinguish it in terms of justiciability." Ante, at 125. A plurality of the Court recognizes, however, that "[i]nviting attack on minor departures from some supposed norm would too much embroil the judiciary in second-guessing what has consistently been referred to as a political task for the legislature, a task that should not be monitored too closely unless the express or tacit goal is to effect its removal from legislative halls." Ante, at 133. Accordingly, although the plurality's analysis is generally modeled on the racial gerrymandering cases, the plurality would require a somewhat different threshold showing that the apportionment has discriminatory effects: "unconstitutional discrimination occurs only when the electoral system is arranged in a *147 manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole." Ante, at 132. The step taken today is a momentous one, which if followed in the future can only lead to political instability and judicial malaise. If members of the major political parties are protected by the Equal Protection Clause from dilution of their voting strength, then members of every identifiable group that possesses distinctive interests and tends to vote on the basis of those interests should be able to bring similar claims. Federal courts will have no alternative but to attempt to recreate the complex process of legislative apportionment in the context of adversary litigation in order to reconcile the competing claims of political, religious, ethnic, racial, occupational, and socioeconomic groups. Even if there were some way of limiting such claims to organized political parties, the fact remains that the losing party or the losing group of legislators in every reapportionment will now be invited to fight the battle anew in federal court. Apportionment is so important to legislators and political parties that the burden of proof the plurality places on political gerrymandering plaintiffs is unlikely to deter the routine lodging of such complaints. Notwithstanding the plurality's threshold requirement of discriminatory effects, the Court's holding that political gerrymandering claims are justiciable has opened the door to pervasive and unwarranted judicial superintendence of the legislative task of apportionment. There is simply no clear stopping point to prevent the gradual evolution of a requirement of roughly proportional representation for every cohesive political group. In my view, this enterprise is flawed from its inception. The Equal Protection Clause does not supply judicially manageable standards for resolving purely political gerrymandering claims, and no group right to an equal share of political power was ever intended by the Framers |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | share of political power was ever intended by the Framers of the Fourteenth Amendment. The Court rests its case on precedent, but *148 the cases on which the Court relies do not require that we take this next and most far-reaching step into the "political thicket." reaffirmed that a lawsuit will be held to involve a political question where there is "a lack of judicially discoverable and manageable standards for resolving it," or where "the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion" is apparent. The Court first found a workable constitutional standard for applying the Equal Protection Clause to state legislative districting in But until today the Court has not extended the principles of and to test a legislative districting plan on grounds of partisan political gerrymandering. Indeed, one year after the Court was unanimous in summarily affirming a judgment determining that a political gerrymandering challenge was nonjusticiable; as Justice Harlan pointed out, the Court's action constituted a rejection of "contentions that partisan `gerrymandering' may be subject to federal constitutional attack under the Fourteenth Amendment." WMCA, The question raised again today, 21 years later, is whether a court can apply the familiar "[j]udicial standards under the Equal Protection Clause," 39 U. S., at 22, without being forced to make a nonjudicial policy determination or to resort to a standard that is not judicially manageable. In order to answer that question, it is necessary to interpret the Equal Protection Clause. As Justice Harlan pointed out in his dissent in "[t]he suggestion. that courts lack standards by which to decide such cases as this, is relevant not only to the question of `justiciability,' but also, and perhaps more fundamentally, to the determination whether any cognizable constitutional claim has been asserted in this case." *149 itself involved just such an initial interpretation of the Equal Protection Clause: the Court in effect ruled that an arbitrary and capricious discrimination against individual voters with respect to the weight of their votes would state a cognizable claim under the Equal Protection Clause. See at 22; That threshold determination about the reach and meaning of the Equal Protection Clause was the basis for the Court's holding that the complaint of the Tennessee voters was justiciable. Even this "arbitrary and capricious" standard threatened to prove unmanageable, but the difficulty was pretermitted when a relatively simple and judicially manageable requirement of population equality among districts was adopted the following Term in See Bickel, The Supreme Court and Reapportionment, in Reapportionment in the 1970's pp. 57, 4 does not require that we |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | the 1970's pp. 57, 4 does not require that we hold that the right asserted in this case is similarly within the intendment of the Equal Protection Clause and determinable under the standards developed to enforce that Clause. The right asserted in was an individual right to a vote whose weight was not arbitrarily subjected to "debasement," 39 U.S., at 194. The rights asserted in this case are group rights to an equal share of political power and representation, and the "arbitrary and capricious" standard discussed in cannot serve as the basis for recognizing such rights. Indeed, the Court today does not rely on such a standard. Instead, the Court justifies the extension of vote dilution claims to mainstream political groups with the pronouncement that "Reynolds surely indicates the justiciability of claims going to the adequacy of representation in state legislatures." Ante, at 124. But Reynolds makes plain that the one person, one vote principle safeguards the individual's right to vote, not the interests of political groups: "To the extent that a citizen's right to vote is debased, he is that much less a citizen. The fact that an individual lives here or *150 there is not a legitimate reason for overweighting or diluting the efficacy of his " 377 U.S., at 57. For that reason, "an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State." at 58. Thus, the right guaranteed by the Equal Protection Clause as interpreted in Reynolds is "the right of each voter to `have his vote weighted equally with those of all other citizens.' " 44 U.S. 55, In the case of mainstream political groups, the Court has not accepted the argument that an "asserted entitlement to group representation," 44 U. S., at 77, can be traced to the one person, one vote principle: "It is, of course, true that the right of a person to vote on an equal basis with other voters draws much of its significance from the political associations that its exercise reflects, but it is an altogether different matter to conclude that political groups themselves have an independent constitutional claim to representation. And the Court's decisions hold squarely that they do not." at -79 ; ; and ). Where representation is apportioned substantially on a population basis, it is "obvious that nobody's vote has been `diluted' in the sense in which that word was used in the Reynolds case." at Thus, the individual's right to vote does |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | Reynolds case." at Thus, the individual's right to vote does not imply that political groups have a right to be free from discriminatory impairment of their group voting strength. Treating the vote dilution claims of political groups as cognizable would effectively collapse the "fundamental distinction between state action that inhibits an individual's right to vote and state action that affects the political strength of various groups that compete for leadership *151 in a democratically governed community." Nor do this Court's racial gerrymandering cases require the recognition of any such group right outside the context of racial discrimination. As Justice Frankfurter observed: "The cases involving Negro disfranchisement are no exception to the principle of avoiding federal judicial intervention into matters of state government in the absence of an explicit and clear constitutional imperative. For here the controlling command of Supreme Law is plain and unequivocal. An end of discrimination against the Negro was the compelling motive of the Civil War Amendments. The Fifteenth expresses this in terms, and it is no less true of the Equal Protection Clause of the Fourteenth. Slaughter-House Cases, 1 Wall. 3, 7-72; 30-307; 273 U.S. 53," 39 U. S., at 5- In my view, where a racial minority group is characterized by "the traditional indicia of suspectness" and is vulnerable to exclusion from the political process, San Antonio Independent School ; see also 415 U.S. 31, individual voters who belong to that group enjoy some measure of protection against intentional dilution of their group voting strength by means of racial gerrymandering. As a matter of past history and present reality, there is a direct and immediate relationship between the racial minority's group voting strength in a particular community and the individual rights of its members to vote and to participate in the political process. In these circumstances, the stronger nexus between individual rights and group interests, and the greater warrant the Equal Protection Clause gives the federal courts to intervene for protection against racial discrimination, suffice to render racial gerrymandering claims justiciable. Even so, the individual's right is infringed only if the racial minority *152 group can prove that it has "essentially been shut out of the political process." Ante, at 139. Clearly, members of the Democratic and Republican Parties cannot claim that they are a discrete and insular group vulnerable to exclusion from the political process by some dominant group: these political parties are the dominant groups, and the Court has offered no reason to believe that they are incapable of fending for themselves through the political process. Indeed, there is good reason to think |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | the political process. Indeed, there is good reason to think that political gerrymandering is a self-limiting enterprise. See B. Cain, The Reapportionment Puzzle 151-159 In order to gerrymander, the legislative majority must weaken some of its safe seats, thus exposing its own incumbents to greater risks of defeat risks they may refuse to accept past a certain point. Similarly, an overambitious gerrymander can lead to disaster for the legislative majority: because it has created more seats in which it hopes to win relatively narrow victories, the same swing in overall voting strength will tend to cost the legislative majority more and more seats as the gerrymander becomes more ambitious. More generally, each major party presumably has ample weapons at its disposal to conduct the partisan struggle that often leads to a partisan apportionment, but also often leads to a bipartisan one. There is no proof before us that political gerrymandering is an evil that cannot be checked or cured by the people or by the parties themselves. Absent such proof, I see no basis for concluding that there is a need, let alone a constitutional basis, for judicial intervention. The plurality agrees that it would be unwise to "embroil the judiciary in second-guessing what has consistently been referred to as a political task for the legislature." Ante, at 133. Moreover, the plurality is willing to presume that elected candidates will not ignore the interests of voters for the losing candidate, and it correctly observes that "the power to influence the political process is not limited to winning *153 elections." Ante, at 132. But these propositions support my position that the costs of judicial intervention will be severe and that political gerrymandering simply does not cause intolerable harm to the ability of major political groups to advance their interests. Moreover, the new group right created by today's decision is particularly unjustifiable in the context of the claim here, which is founded on a supposed diminution of the statewide voting influence of a political group. None of the elections for the Indiana Legislature are statewide. Voters in each district elect their representatives from that district. To treat the loss of candidates nominated by the party of a voter's choice as a harm to the individual voter, when that voter cannot vote for such candidates and is not represented by them in any direct sense, clearly exceeds the limits of the Equal Protection Clause. On the Court's reasoning, members of a political party in one State should be able to challenge a congressional districting plan adopted in any other State, on |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | a congressional districting plan adopted in any other State, on the grounds that their party is unfairly represented in that State's congressional delegation, thus injuring them as members of the national party. The Court's reliance on is insufficient to overcome these objections to a general group right to equal political representation. Although Gaffney treated a political gerrymandering claim as justiciable, the opinion's observation that "districting inevitably has and is intended to have substantial political consequences," and its reluctance to undertake "the impossible task of extirpating politics from what are the essentially political processes of the sovereign States," would equally support a holding that whatever harms political gerrymandering may sometimes occasion should be tolerated as inextricably associated with the legislative business of redistricting. In addition, since Gaffney rejected the challenge to bipartisan gerrymandering out of hand, the Court simply did not confront the difficulties in framing a *154 manageable standard for adjudicating such claims. Accordingly, Gaffney should not bar a full consideration of those difficulties here. Furthermore, the Court fails to explain why a bipartisan gerrymander which is what was approved in Gaffney affects individuals any differently than a partisan gerrymander, which the Court makes vulnerable to constitutional challenge today. In Gaffney, Connecticut, as part of a bipartisan effort, had drawn up a plan intended to "provide a rough sort of proportional representation," for the two major political parties. The Court declined to invalidate this plan, which undertook "not to minimize or eliminate the political strength of any group or party, but to recognize it," ib and suggested that "judicial interest should be at its lowest ebb when a State purports fairly to allocate political power to the parties in accordance with their voting strength and, within quite tolerable limits, succeeds in doing so." A bipartisan gerrymander employs the same technique, and has the same effect on individual voters, as does a partisan gerrymander. In each instance, groups of individuals are assigned to districts with an eye towards promoting the ends of a political party and its incumbent legislators. Some groups within each party will lose any chance to elect a representative who belongs to their party, because they have been assigned to a district in which the opposing party holds an overwhelming advantage. Independent voters may lose any chance to influence the outcome of elections in their district, if one party has a sufficiently strong majority. As the plurality acknowledges, the scheme upheld in Gaffney tended to "deny safe district minorities any realistic chance to elect their own representatives." Ante, at 131. If this bipartisan arrangement between two |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | representatives." Ante, at 131. If this bipartisan arrangement between two groups of self-interested legislators is constitutionally permissible, as I believe and as the Court held in Gaffney, then in terms of the rights of individuals it should be equally permissible for a legislative majority *155 to employ the same means to pursue its own interests over the opposition of the other party. The Court's determination to treat the claims of mainstream political parties as justiciable thus emerges as precisely the sort of "initial policy determination of a kind clearly for nonjudicial discretion" that recognized as characteristic of political The Court has in effect decided that it is constitutionally acceptable for both parties to "waste" the votes of individuals through a bipartisan gerrymander, so long as the parties themselves are not deprived of their group voting strength to an extent that will exceed the plurality's threshold requirement. This choice confers greater rights on powerful political groups than on individuals; that cannot be the meaning of the Equal Protection Clause. II The standard the plurality proposes exemplifies the intractable difficulties in deriving a judicially manageable standard from the Equal Protection Clause for adjudicating political gerrymandering claims. The plurality rejects any standard that would require drawing "district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be," ante, at 130, and states that "unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole." Ante, at 132. In my view, this standard will over time either prove unmanageable and arbitrary or else evolve towards some loose form of proportionality. Cf. Shapiro, Gerrymandering, Unfairness, and the Supreme Court, 252-25 Either outcome would be calamitous for the federal courts, for the States, and for our two-party system. *15 Vote dilution analysis is far less manageable when extended to major political parties than if confined to racial minority groups. First, an increase in the number of competing claims to equal group representation will make judicial review of apportionment vastly more complex. Designing an apportionment plan that does not impair or degrade the voting strength of several groups is more difficult than designing a plan that does not have such an effect on one group for the simple reason that, as the number of criteria the plan must meet increases, the number of solutions that will satisfy those criteria will decrease. Even where it is not impossible to reconcile the |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | decrease. Even where it is not impossible to reconcile the competing claims of political, racial, and other groups, the predictable result will be greater judicial intrusion into the apportionment process. Second, while membership in a racial group is an immutable characteristic, voters can and often do move from one party to the other or support candidates from both parties. Consequently, the difficulty of measuring voting strength is heightened in the case of a major political party. It is difficult enough to measure "a voter's or a group of voters' influence on the political process as a whole," ante, at 132, when the group is a racial minority in a particular district or community. When the group is a major political party the difficulty is greater, and the constitutional basis for intervening far more tenuous. Moreover, any such intervention is likely to move in the direction of proportional representation for political parties. This is clear by analogy to the problem that arises in racial gerrymandering cases: "in order to decide whether an electoral system has made it harder for minority voters to elect the candidates they prefer, a court must have an idea in mind of how hard it `should' be for minority voters to elect their preferred candidates under an acceptable system." Thornburg v. Gingles, ante, at 88 (O'CONNOR, J., concurring in judgment). Any such norm must make some reference, even if only a loose one, to the relation between the racial *157 minority group's share of the electorate and its share of the elected representatives. In order to implement the plurality's standard, it will thus be necessary for courts to adopt an analogous norm, in order to assess whether the voting strength of a political party has been "degraded" by an apportionment, either on a statewide basis or in particular districts. Absent any such norm, the inquiry the plurality proposes would be so standardless as to make the adjudication of political gerrymandering claims impossible. Implicit in the plurality's opinion today is at least some use of simple proportionality as the standard for measuring the normal representational entitlements of a political party. That is why the plurality can say that "a history (actual or projected) of disproportionate results," together with proof of "the denial of fair representation" and of "lack of political power," will constitute an equal protection violation. Ante, at 139. To be sure, the plurality has qualified its use of a standard of proportional representation in a variety of ways so as to avoid a requirement of proportional representation. The question is whether these qualifications are |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | of proportional representation. The question is whether these qualifications are likely to be enduring in the face of the tremendous political pressures that courts will confront when called on to decide political gerrymandering claims. Because the most easily measured indicia of political power relate solely to winning and losing elections, there is a grave risk that the plurality's various attempts to qualify and condition the group right the Court has created will gradually pale in importance. What is likely to remain is a loose form of proportionality, under which some deviations from proportionality are permissible, but any significant, persistent deviations from proportionality are suspect. Courts will be forced to look for some form of "undue" disproportionality with respect to electoral success if political gerrymandering claims are justiciable, because otherwise they will find their decisions turning on imponderables such as whether the legislators of one party have fairly represented the voters of the other. *158 Of course, in one sense a requirement of proportional representation, whether loose or absolute, is judicially manageable. If this Court were to declare that the Equal Protection Clause required proportional representation within certain fixed tolerances, I have no doubt that district courts would be able to apply this edict. The flaw in such a pronouncement, however, would be the use of the Equal Protection Clause as the vehicle for making a fundamental policy choice that is contrary to the intent of its Framers and to the traditions of this Republic. The political question doctrine as articulated in rightly requires that we refrain from making such policy choices in order to evade what would otherwise be a lack of judicially manageable standards. See Unfortunately, a drift towards proportional representation is apparent even in the plurality opinion. Although at times the plurality seems to require that the political party be "essentially shut out of the political process" before a constitutional violation will be found, ante, at 139, the plurality's explanation of the deficiencies in the District Court's approach focuses not on access to the political process as a whole, but entirely on statewide electoral success. Thus, the critical inquiry appears to be into whether the complaining political party could be expected to regain control of the state legislature in the next few elections if backed by a majority of voters. Ante, at 135-13. As an aid in this inquiry, courts must apparently also ask "by what percentage the statewide vote" for the complaining political party would have to increase to control the legislature or one of its Houses. Under the plurality's approach, where it is shown that under |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | Under the plurality's approach, where it is shown that under a challenged apportionment plan one party will consistently fail to gain control of the legislature even if it wins a majority of the votes, a court would be justified in finding the "threshold showing" met, at which point "the legislation would be examined for valid underpinnings." Ante, at 141. *159 It may fairly be doubted that this last step is anything more than a formality, except perhaps in the case of bipartisan gerrymanders that have proved unexpectedly favorable to one party. Consequently, although the plurality criticizes JUSTICE POWELL for effectively concluding that "disproportionate election results alone are a sufficient effect to support a finding of a constitutional violation," ante, at 142, the plurality itself arrives at the conclusion that foreseeable, disproportionate long-term election results suffice to prove a constitutional violation. Thus, the plurality opinion ultimately rests on a political preference for proportionality not an outright claim that proportional results are required, but a conviction that the greater the departure from proportionality, the more suspect an apportionment plan becomes. This preference for proportionality is in serious tension with essential features of state legislative elections. Districting itself represents a middle ground between winner-take-all statewide elections and proportional representation for political parties. If there is a constitutional preference for proportionality, the legitimacy of districting itself is called into question: the voting strength of less evenly distributed groups will invariably be diminished by districting as compared to at-large proportional systems for electing representatives. Moreover, one implication of the districting system is that voters cast votes for candidates in their districts, not for a statewide slate of legislative candidates put forward by the parties. Consequently, efforts to determine party voting strength presuppose a norm that does not exist statewide elections for representatives along party lines. The plurality's theory is also internally inconsistent. The plurality recognizes that, given a normal dispersion of party strength and winner-take-all, district-based elections, it is likely that even a narrow statewide preference for one party will give that party a disproportionately large majority in the legislature. Ante, at 130. The plurality is prepared to tolerate *10 this effect, because not to do so would spell the end of district-based elections, or require reverse gerrymandering to ensure greater proportionality for the minority party. But this means that the plurality would extend greater protection to a party that can command a majority of the statewide vote than to a party that cannot: the explanation, once again, is that the plurality has made a political judgment in this instance, that district-based |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | made a political judgment in this instance, that district-based elections must be taken as a given. Because a statewide majority for a party's candidates will frequently result only if the "winning" party attracts independent voters and voters from the other party, under the plurality's approach a great deal will turn on whether the support of these voters is included as part of the party's voting strength. The plurality would reserve this question, but, however it is ultimately answered, anomalies will result. To measure a party's voting strength by including voters who only occasionally vote for that party's candidates is arbitrary; to ignore the role these voters play will be to further discriminate against parties that do not command a permanent majority of the electorate in a given State. I would avoid the difficulties generated by the plurality's efforts to confine the effects of a generalized group right to equal representation by not recognizing such a right in the first instance. To allow district courts to strike down apportionment plans on the basis of their prognostications as to the outcome of future elections or future apportionments invites "findings" on matters as to which neither judges nor anyone else can have any confidence. Once it is conceded that "a group's electoral power is not unconstitutionally diminished by the simple fact of an apportionment scheme that makes winning elections more difficult," ante, at 132, the virtual impossibility of reliably predicting how difficult it will be to win an election in 2, or 4, or 10 years should, in my view, weigh in favor of holding such challenges nonjusticiable. Racial gerrymandering should remain justiciable, for the harms it engenders *11 run counter to the central thrust of the Fourteenth Amendment. But no such justification can be given for judicial intervention on behalf of mainstream political parties, and the risks such intervention poses to our political institutions are unacceptable. "Political affiliation is the keystone of the political trade. Race, ideally, is not." United Jewish Organizations of Williamsburgh, n. 1 JUSTICE POWELL, with whom JUSTICE STEVENS joins, concurring in part and dissenting in part. This case presents the question whether a state legislature violates the Equal Protection Clause by adopting a redistricting plan designed solely to preserve the power of the dominant political party, when the plan follows the doctrine of "one person, one vote" but ignores all other neutral factors relevant to the fairness of redistricting.[1] In answering this question, the plurality expresses the view, with which I agree, that a partisan political gerrymander violates the Equal Protection Clause only on proof of "both |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | violates the Equal Protection Clause only on proof of "both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group." Ante, at 127. The plurality acknowledges that the record in this case supports a finding that the challenged redistricting plan was adopted for the purpose of discriminating against Democratic voters. The plurality argues, however, *12 that appellees failed to establish that their voting strength was diluted statewide despite uncontradicted proof that certain key districts were grotesquely gerrymandered to enhance the election prospects of Republican candidates. This argument appears to rest solely on the ground that the legislature accomplished its gerrymander consistent with "one person, one vote," in the sense that the legislature designed voting districts of approximately equal population and erected no direct barriers to Democratic voters' exercise of the franchise. Since the essence of a gerrymandering claim is that the members of a political party as a group have been denied their right to "fair and effective representation," 55 I believe that the claim cannot be tested solely by reference to "one person, one " Rather, a number of other relevant neutral factors must be considered. Because the plurality ignores such factors and fails to enunciate standards by which to determine whether a legislature has enacted an unconstitutional gerrymander, I dissent. I The facts are exhaustively described in the District Court's opinion and may be briefly restated here. In 1981, the Republican Party controlled both houses of the Indiana General Assembly, and its candidate held the Governor's seat. Pursuant to the requirements of the State Constitution, the General Assembly undertook legislative redistricting based on 1980 census data. A Conference Committee, all of whose members were Republicans, was assigned the task of drawing district maps with the assistance of a private computer firm. The information fed into the computer primarily concerned the political complexion of the State's precincts. The redistricting process was conducted in secret. Democratic legislators were not afforded any participation in designing the district maps that were adopted. There were no hearings where members of the public were invited to express *13 their views. The Republican Committee revealed its proposed redistricting plan two days before the end of the legislative session, and the Democrats hurriedly presented an alternative On the last day of the session, the Republican plan was adopted by party line vote in both Houses of the General Assembly. The Governor signed the plan into law. In 1982 and elections were held under the new redistricting Prior to the 1982 election, this lawsuit was commenced by appellees, a group of Indiana |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | this lawsuit was commenced by appellees, a group of Indiana Democrats who claimed that the plan constitutes a partisan political gerrymander designed to disenfranchise Democratic voters in violation of the Equal Protection Clause of the Fourteenth Amendment.[2] Since trial was completed after the 1982 election, appellees relied in part on the disparity between votes cast for Democratic legislative candidates in that election and seats captured by Democrats. The case was heard by a three-judge panel in the District Court for the Southern District of The District Court, over the dissent of Judge Pell, made extensive findings of fact and determined that appellees had established an unconstitutional partisan gerrymander. 03 F. Supp. 1479 The *14 Court today reverses the District Court, without concluding that any of its findings was clearly erroneous. II A Gerrymandering is "the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes." 394 U.S. 52, (199)[3] As JUSTICE STEVENS correctly observed, gerrymandering violates the Equal Protection Clause only when the redistricting plan serves "no purpose other than to favor one segment whether racial, ethnic, religious, economic, or political that may occupy a position of strength at a particular time, or to disadvantage a politically weak segment of the community." 42 U.S. 725, The term "gerrymandering," however, is also used loosely to describe the common practice of the party in power to choose the redistricting plan that gives it an advantage at the polls. An intent to discriminate in this sense may be present whenever redistricting occurs. See ; 4 F.2d 830, (CA7) (Stevens, J., dissenting), cert. denied, Moreover, since legislative *15 bodies rarely reflect accurately the popular voting strength of the principal political parties, the effect of any particular redistricting may be perceived as unfair. See -754. Consequently, only a sensitive and searching inquiry can distinguish gerrymandering in the "loose" sense from gerrymandering that amounts to unconstitutional discrimination. Because it is difficult to develop and apply standards that will identify the unconstitutional gerrymander, courts may seek to avoid their responsibility to enforce the Equal Protection Clause by finding that a claim of gerrymandering is nonjusticiable. I agree with the Court that such a course is mistaken, and that the allegations in this case raise a justiciable issue.[4] Moreover, I am convinced that appropriate judicial standards can and should be developed. Justice Fortas' definition of unconstitutional gerrymandering properly focuses on whether the boundaries of the voting districts have been distorted deliberately and arbitrarily to achieve illegitimate ends. at Under this definition, the merits of a gerrymandering claim must be determined by |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | the merits of a gerrymandering claim must be determined by reference to the configurations of the districts, the observance of political subdivision lines, and other criteria that have independent relevance to the fairness of redistricting. See In this case, the District Court examined the redistricting in light of such factors and found, among other facts, that the boundaries of a number of districts were deliberately distorted to deprive Democratic voters of an equal opportunity to participate in the State's legislative processes. The plurality makes no reference to any of these findings of fact. It rejects the District Court's *1 ultimate conclusion with no explanation of the respects in which appellees' proof fell short of establishing discriminatory effect. A brief review of the Court's jurisprudence in the context of another kind of challenge to redistricting, a claim of malapportionment, demonstrates the pressing need for the Court to enunciate standards to guide legislators who redistrict and judges who determine the constitutionality of the legislative effort. B The Equal Protection Clause guarantees citizens that their State will govern them impartially. See at In the context of redistricting, that guarantee is of critical importance because the franchise provides most citizens their only voice in the legislative process. 377 U. S., at 51-52, 55-5. Since the contours of a voting district powerfully may affect citizens' ability to exercise influence through their vote, district lines should be determined in accordance with neutral and legitimate criteria. When deciding where those lines will fall, the State should treat its voters as standing in the same position, regardless of their political beliefs or party affiliation. ; The first cases in which this Court entertained equal protection challenges to redistricting involved allegations that state legislatures had refused to redesign States' voting districts to eliminate gross population disparities among those districts. E. g., ; The Court's decision in illustrates two concepts that are vitally important in evaluating an equal protection challenge to redistricting. First, the Court recognized that equal protection encompasses a guarantee of equal representation, requiring a State to seek to achieve through redistricting "fair and effective representation for all citizens." at * 55-5; see 412 U. S., at The concept of "representation" necessarily applies to groups: groups of voters elect representatives, individual voters do not. Gross population disparities violate the mandate of equal representation by denying voters residing in heavily populated districts, as a group, the opportunity to elect the number of representatives to which their voting strength otherwise would entitle them. While population disparities do dilute the weight of individual votes, their discriminatory effect is felt only when |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | of individual votes, their discriminatory effect is felt only when those individual votes are combined. Thus, the fact that individual voters in heavily populated districts are free to cast their ballot has no bearing on a claim of malapportionment. Second, at the same time that it announced the principle of "one person, one vote" to compel States to eliminate gross disparities among district populations, the Court plainly recognized that redistricting should be based on a number of neutral criteria, of which districts of equal population was only one. identified several of the factors that should guide a legislature engaged in redistricting. For example, the Court observed that districts should be compact and cover contiguous territory, precisely because the alternative, "[i]ndiscriminate districting," would be "an open invitation to partisan gerrymandering." 377 U.S., at 5-579. Similarly, a State properly could choose to give "independent representation" to established political subdivisions. Adherence to community boundaries, the Court reasoned, would both "deter the possibilities of gerrymandering," and allow communities to have a voice in the legislature that directly controls their local interests. See also 325-32 Thus, contemplated that "one person, one vote" would be only one among several neutral factors that serve the constitutional mandate of fair and effective representation. *18 See at -749. It was not itself to be the only goal of redistricting.[5] A standard that judges the constitutionality of a districting plan solely by reference to the doctrine of "one person, one vote" may cause two detrimental results.[] First, as a perceived way to avoid litigation, legislative bodies may place undue emphasis on mathematical exactitude, subordinating or ignoring entirely other criteria that bear directly on the fairness of redistricting. See 42 U. S., ; ; Second, as this case illustrates, and as anticipated, exclusive or primary reliance on "one person, one vote" can betray the constitutional promise of fair and effective representation by enabling a legislature to engage intentionally in clearly discriminatory gerrymandering. See (199) *19 C In light of the foregoing principles, I believe that the plurality's opinion is seriously flawed in several respects. First, apparently to avoid the forceful evidence that some district lines indisputably were designed to and did discriminate against Democrats, the plurality describes appellees' claim as alleging that "Democratic voters over the State as a whole, not Democratic voters in particular districts, have been subjected to unconstitutional discrimination." Ante, at 127. This characterization is not inconsistent with appellees' proof, and the District Court's finding, of statewide discriminatory effect resulting from "individual districting" that "exemplif[ies] this discrimination." If Democratic voters in a number of critical districts are the |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | Democratic voters in a number of critical districts are the focus of unconstitutional discrimination, as the District Court found, the effect of that discrimination will be felt over the State as a whole. The plurality also erroneously characterizes the harm members of the losing party suffer as a group when they are deprived, through deliberate and arbitrary distortion of district boundaries, of the opportunity to elect representatives of their choosing.[7] It may be, as the plurality suggests, that *0 representatives will not "entirely ignore the interests" of opposition voters. Ante, at 132. But it defies political reality to suppose that members of a losing party have as much political influence over state government as do members of the victorious party. Even the most conscientious state legislators do not disregard opportunities to reward persons or groups who were active supporters in their election campaigns. Similarly, no one doubts that partisan considerations play a major role in the passage of legislation and the appointment of state officers. Not surprisingly, therefore, the District Court expressly found that "[c]ontrol of the General Assembly is crucial" to members of the major political parties in 03 F. Supp., at 1483.[8] In light of those findings, I cannot accept the plurality's apparent conclusion that loss of this "crucial" position is constitutionally insignificant as long as the losers are not "entirely ignored" by the winners. The plurality relies almost exclusively on the "one person, one vote" standard to reject appellees' convincing proof that the redistricting plan had a seriously discriminatory effect on their voting strength in particular districts. The plurality properly describes the claim in this case as a denial of fair and effective "representation," ante, at 124, but it does not provide any explanation of how complying with "one person, one *1 vote" deters or identifies a gerrymander that unconstitutionally discriminates against a cognizable group of voters. While that standard affords some protection to the voting rights of individuals, "it protects groups only indirectly at best," 42 U. S., at 752 even when the group's identity is determined solely by reference to the fact that its members reside in a particular voting district. "One person, one vote" alone does not protect the voting rights of a group made up of persons affiliated with a particular political party who seek to achieve representation through their combined voting strength. Thus, the facts that the legislature permitted each Democratic voter to cast his or her one vote, erected no direct barriers to Democratic voters' exercise of the franchise, and drew districts of equal population, are irrelevant to a claim that |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | districts of equal population, are irrelevant to a claim that district lines were drawn for the purpose and with the effect of substantially debasing the strength of votes cast by Democrats as a group.[9] The final and most basic flaw in the plurality's opinion is its failure to enunciate any standard that affords guidance to legislatures and courts.[10] Legislators and judges are left to *2 wonder whether compliance with "one person, one vote" completely insulates a partisan gerrymander from constitutional scrutiny, or whether a fairer but as yet undefined standard applies. The failure to articulate clear doctrine in this area *3 places the plurality in the curious position of inviting further litigation even as it appears to signal the "constitutional green light"[11] to would-be gerrymanderers. III In JUSTICE STEVENS, echoing the decision in described factors that I believe properly should guide both legislators who redistrict and judges who test redistricting plans against constitutional 42 U.S., -71. The most important of these factors are the shapes of voting districts and adherence to established political subdivision boundaries.[12] Other relevant considerations include the nature of the legislative procedures by which the apportionment law was adopted and legislative history reflecting contemporaneous legislative goals. To make out a case of unconstitutional partisan gerrymandering, the plaintiff should be required to offer proof concerning these factors, which bear directly on the fairness of a redistricting plan, as well as evidence concerning population disparities and statistics tending to show vote dilution. No one factor should be dispositive.[13] *4 In this case, appellees offered convincing proof of the ease with which mapmakers, consistent with the "one person, one vote" standard, may design a districting plan that purposefully discriminates against political opponents as well as racial minorities. Computer technology now enables gerrymanderers to achieve their purpose while adhering perfectly to the requirement that districts be of equal population. Relying on the factors correctly described by JUSTICE STEVENS in the District Court carefully reviewed appellees' evidence and found that the redistricting law was intended to and did unconstitutionally discriminate against Democrats as a group. We have held that a district court's ultimate determination that a redistricting plan was "being maintained for discriminatory purposes," as well as its "subsidiary findings of fact," may not be set aside by a reviewing court unless they are clearly erroneous. 22-23 ; see, e. g., 79-770 The plurality ignores these precedents.[14] The plurality also disregards the various factors discussed by the District Court as adequate indicia of unconstitutional gerrymandering. *5 A A court should look first to the legislative process by which the challenged plan was |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | to the legislative process by which the challenged plan was adopted. Here, the District Court found that the procedures used in redistricting Indiana were carefully designed to exclude Democrats from participating in the legislative process. In February 1981, both Houses of the General Assembly passed reapportionment bills with no substantive content and referred them to the other chamber where conflicting amendments were made. The purpose of this process was to send "vehicle bills" to a Conference Committee whose task was to apportion representation. Four conferees and four advisers served on the Committee. The conferees, all Republicans, were responsible for designing the voting districts and were entitled to vote on the result of their own efforts. The advisers, Democrats, were excluded from the mapmaking process and were given no Committee 03 F. Supp., at 1483. The legislative process consisted of nothing more than the majority party's private application of computer technology to mapmaking. The Republican State Committee engaged the services of a computer firm to aid the conferees in their task. According to the Conference Committee Chairman, the only data used in the computer program were precinct population, race of precinct citizens, precinct political complexion, and statewide party voting trends. Access to the mapmaking process was strictly limited. No member of the Democratic Party and no member of the public was provided with any of the information used in or generated by the computer program. When questioned about the lack of minority party participation in the redistricting process, the Chairman of the Conference Committee stated that the Democrats would "have the privilege to offer a minority map. But I will advise you in advance that it will not be accepted." * Republicans promised to hold public hearings on redistricting. No hearing was held during the mapmaking process, the only time during which voters' views could be expected to influence their legislators. Two days before the end of the General Assembly's regular session, during the first and only public hearing on reapportionment, the Conference Committee revealed for the first time the result of its mapmaking effort. This timing gave the Democrats but 40 hours in which to review the districting of more than 4,000 precincts. On the last day of the session, April 30, 1981, the Conference Committee report was introduced for a vote and was adopted by party line vote in both Houses of the General Assembly.[15] B Next, the District Court found that the maps "conspicuously ignore[d] traditional political subdivisions, with no concern for any adherence to principles of community interest." The court carefully described how the mapmakers carved up |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | interest." The court carefully described how the mapmakers carved up counties, cities, and even townships in their effort to draw lines beneficial to the majority party. Many districts meander through several counties, picking up a number of townships from each.[1] The District Court explained why this failure to honor county boundaries could be expected to have a detrimental impact on citizens' exercise of their In Indiana, the county government is the seat of local affairs. The redistricting dissects counties into strange shapes lacking in common interests, on one occasion even placing the seat of one county in a voting district *7 composed of townships from other counties. ; see House Districts 45, 4, infra. Under these conditions, the District Court expressly found that "the potential for voter disillusion and nonparticipation is great," as voters are forced to focus their political activities in artificial electoral 03 F. Supp., Intelligent voters, regardless of party affiliation, resent this sort of political manipulation of the electorate for no public purpose. Deposition testimony of the Chairman of the Conference Committee revealed that the mapmakers gave no consideration to the interests of communities. In the Chairman's view, the concept of honoring community interests meant only that mapmakers should refuse to divide a small, suburban community. The shapes of the voting districts and the manner in which the districts divide established communities, from the county to the township level, illustrate that community interests were ignored by appellants. As the District Court observed, for example, "it is difficult to conceive the interests shared by blacks in Washington Township and white suburbanites in Hamilton and Boone Counties, or the shared interest of Allen and Noble County farmers with residents of downtown Fort Wayne." C In addition to the foregoing findings that apply to both the House and Senate plans, the District Court also noted the substantial evidence that appellants were motivated solely by partisan considerations. There is no evidence that the public interest in a fair electoral process was given any consideration by appellants. Indeed, as noted above, the mapmakers' partisan goals were made explicitly clear by contemporaneous statements of Republican leaders who openly acknowledged that their goal was to disadvantage Democratic voters. As one Republican House member concisely put it, "[t]he name of the game is to keep *1 us in power."[] NAACP Plaintiffs' Exhibit 232 (Indianapolis Star, Mar. 22, 1981, section 2, p. 3). When the plan was completed, Republican leaders announced that the House map was designed to yield 5 "safe" Republican seats and 30 Democratic seats, with the remainder being "tossups." NAACP Plaintiffs' Exhibit 242 |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | seats, with the remainder being "tossups." NAACP Plaintiffs' Exhibit 242 (Post-Tribune, Gary, Ind., Apr. 29, 1981, p. 1). Republicans expected that their Senate map would regularly produce 30 Republican seats and 8 to 10 Democratic seats so that Republicans would maintain their grip on the Senate even if Democrats won the remaining seats. NAACP Plaintiffs' Exhibit 241 (Post-Tribune, Gary, Ind., Apr. 29, 1981, p. 1). In short, the record unequivocally demonstrates that in 1981 the Republican-dominated General Assembly deliberately sought to design a redistricting plan under which members of the Democratic Party would be deprived of a fair opportunity to win control of the General Assembly at least until 1991, the date of the next redistricting. IV A I turn now to the District Court's findings with respect particularly to the gerrymandering of the House districts. The court found that the plan contained voting districts whose irrational shapes called for justification. E. g., House Districts 20, 22, 25, 45, 4, 48, 2, 70, 73. The findings concerning the district configurations reflect the panel's familiarity with Indiana geography and the particular characteristics of the State's political subdivisions. As the District Court noted, the voter confusion generated by irrational district *9 boundaries is exacerbated in this case by the fact that the lines in the House plan were drawn independently of those in the Senate 03 F. Supp., -1485. When the Senate voting districts are overlaid on the House districts, the potential for voter confusion becomes readily apparent as lines and districts intersect in a crazy quilt.[18] The District Court carefully considered the multimember districts contained in the House plan and found that they were intentionally employed to minimize Democratic voting power. This Court has expressly recognized that "[a] districting plan may create multimember districts perfectly acceptable under equal population standards, but invidiously discriminatory because they are employed `to minimize or cancel out the voting strength of racial or political elements of the voting population.' " 412 U. S., ).[19] In this case, invidious purpose may be inferred from the mapmakers' selection of areas to be divided into multimember districts. These districts appear in some areas where they had been used previously and not in others, in some urban areas and not in others, and in some areas where *180 their use required combining rural townships with urban areas from another county.[20] The only discernible pattern is the appearance of these districts in areas where their winner-take-all aspects can best be employed to debase Democratic voting strength. The District Court determined that the multimember districts diluted Democratic voting strength by "stacking" Democrats |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | the multimember districts diluted Democratic voting strength by "stacking" Democrats into districts "where their majority would be overwhelming" and by fragmenting populations of Democratic voters among other districts where their voting strength would be 03 F. Supp., at 1488-1489, 1494. For example, the mapmakers split Fort Wayne, a city with a demonstrated tendency to vote for Democratic candidates, and associated each of the halves with areas from outlying counties whose residents had a pattern of voting for Republican candidates. ; see House Districts 19, 20. Similarly, the redistricting of Marion County presents a clear example of dilution of Democrats' voting strength through the use of multimember districts. Though population figures entitled the county to elect exactly 14 House members, the mapmakers decided to tack on portions of two neighboring counties in order artificially to create a population base entitled to elect 15 representatives. Then, they carved that artificial geographical unit into five three-member districts whose irregular shapes were designed to fence Democrats into one heavily Democratic district and scatter pockets of Democratic strength among the other four districts. 1489; see House Districts 48, 49, 50, 51, 52.[21] *181 Appellees further demonstrated through a statistical showing that the House plan debased the effectiveness of their votes. In 1982, all 100 House seats were up for election. *182 Democratic candidates received about 51.9 percent of the vote, and Republican candidates received about 48.1 percent. Forty-three Democratic representatives were elected; 57 Republicans were elected.[22] Appellees offered startling statistics with respect to House results in Marion and Allen Counties, two areas in which multimember districts were used. In these counties, Democratic candidates earned 4.3 percent of the vote, but won only 3 of 21 House seats. As the District Court observed, "such a disparity speaks for itself."[23] B Since half of the Senate membership is up for election every two years, the only election results under the challenged plan available at trial related to 25 of the 50 Senate seats. Those results showed that, of the seats up for election in 1982, Democrats were elected to 13 seats and Republicans to 12. Democratic candidates earned about 53.1 percent of the vote, and Republicans received about 4.9 percent. At trial, it was appellees' contention that most of the Senate seats won by Democrats in 1982 were "safe" Democratic seats so that their party's success at the polls in that year was fully consistent with the statewide Republican gerrymander. This contention is borne out by the results of the Senate election. In that election, Democratic candidates received 42.3 percent of the vote, and Republicans 57.7 *183 |
Justice Burger | 1,986 | 12 | concurring | Davis v. Bandemer | https://www.courtlistener.com/opinion/111737/davis-v-bandemer/ | received 42.3 percent of the vote, and Republicans 57.7 *183 percent. Yet, of the 25 Senate positions up for election, only 7 were captured by Democrats.[24] *184 C The District Court found, and I agree, that appellants failed to justify the discriminatory impact of the plan by showing that the plan had a rational basis in permissible neutral criteria. Appellants' primary justification was that the plan comports with the principle of "one person, one " Their plan did adhere to that objective, with population deviations between House districts of 1.05 percent and between Senate districts of 1.15 percent. But reliance on "one person, one vote" does not sufficiently explain or justify the discrimination the plan inflicted on Democratic voters as a group. The District Court expressly found that the irregular district shapes could not be justified on the basis of population distribution. Nor does adherence to "one person, one vote" excuse the mapmakers' failure to honor established political or community boundaries. It does not excuse the irrational use of multimember districts, with their devastating impact on the voting strength of Democrats. The only other justification offered by appellants, for which the District Court found some support as a contemporaneous goal, was that the mapmakers sought to maintain "the black representation in the General Assembly that existed prior to the new districting " But the court further determined that the impact of the redistricting fell most harshly on black voters who predominantly are Democrats. None of these critical findings was found by the plurality today to be clearly erroneous. V In conclusion, I want to make clear the limits of the standard that I believe the Equal Protection Clause imposes on legislators engaged in redistricting. Traditionally, the determination of electoral districts within a State has been a matter left to the legislative branch of the state government. Apart from the doctrine of separation of powers and the federal system prescribed by the Constitution, federal *185 judges are ill equipped generally to review legislative decisions respecting redistricting. As the Court's opinion makes clear, however, our precedents hold that a colorable claim of discriminatory gerrymandering presents a justiciable controversy under the Equal Protection Clause. Federal courts in exercising their duty to adjudicate such claims should impose a heavy burden of proof on those who allege that a redistricting plan violates the Constitution. In light of and their progeny, including such comparatively recent decisions as this case presents a paradigm example of unconstitutional discrimination against the members of a political party that happened to be out of power. The well-grounded findings of the District |
Justice White | 1,983 | 6 | concurring | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | In my view, the question regarding modification of the exclusionary rule framed in our order of November 29, 1982, is properly before us and should be addressed. I continue to believe that the exclusionary rule is an inappropriate remedy where law enforcement officials act in the reasonable belief that a search and seizure was consistent with the Fourth Amendment a position I set forth in In this case, it was fully reasonable for the Bloomingdale, Ill., police to believe that their search of respondents' house and automobile comported with the Fourth Amendment as the search was conducted pursuant to a judicially issued warrant. The *247 exclusion of probative evidence where the constable has not blundered not only sets the criminal free but also fails to serve any constitutional interest in securing compliance with the important requirements of the Fourth Amendment. On this basis, I concur in the Court's judgment that the decision of the Supreme Court must be reversed. I The Court declines to address the exclusionary rule question because the courts were not invited to modify the rule in the first instance. The Court's refusal to face this important question cannot be ascribed to jurisdictional limitations. I fully agree that the statute which gives us jurisdiction in this cause, 28 U.S. C. 1257(3), prevents us from deciding federal constitutional claims raised here for the first time on review of state-court decisions. But it is equally well established that " `[n]o particular form of words or phrases is essential, but only that the claim of invalidity and the ground therefor be brought to the attention of the state court with fair precision and in due time.' " Notwithstanding the select and controversial instances in which the Court has reversed a state-court decision for "plain error,"[1] we have consistently dismissed for want of jurisdiction where the federal claim asserted in this Court was not raised below. But this obviously is not such a case. As the Court points out, "[i]t is clear in this case that respondents expressly raised, at every level of the judicial system, the claim that the Fourth Amendment had been violated by the actions of the *248 police and that the evidence seized by the officers should be excluded from their trial." Ante, at 220. Until today, we have not required more. We have never suggested that the jurisdictional stipulations of 1257 require that all arguments on behalf of, let alone in opposition to, a federal claim be raised and decided below.[2] See R. Stern & E. Gressman, Supreme Court Practice 230 distinguished the raising of |
Justice White | 1,983 | 6 | concurring | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | E. Gressman, Supreme Court Practice 230 distinguished the raising of constitutional claims and the making of arguments in support of or in opposition to those claims. "If the question were only an enlargement of the one mentioned in the assignment of errors, or if it were so connected with it in substance as to form but another ground or reason for alleging the invalidity of the personal judgment, we should have no hesitation in holding the assignment sufficient to permit the question to be now raised and argued. "Parties are not confined here to the same arguments which were advanced in the courts below upon a Federal question there discussed."[3] *249 Under Dewey, which the Court hails as the "fullest treatment of the subject," ante, at 219, the exclusionary rule issue is but another argument pertaining to the Fourth Amendment question squarely presented in the courts. The presentation and decision of respondents' Fourth Amendment claim fully embraces the argument that due to the nature of the alleged Fourth Amendment violation, the seized evidence should not be excluded. Our decisions concerning the scope of the exclusionary rule cannot be divorced from the Fourth Amendment; they rest on the relationship of Fourth Amendment interests to the objectives of the criminal justice system. See, e. g., United ;[4] Similarly, the issues surrounding a proposed good-faith modification are intricately and inseverably tied to the nature of the Fourth Amendment violation: the degree of probable cause, the presence of a warrant, and the clarity of previously announced Fourth Amendment principles all inform the *250 good-faith issue. The Court's own holding that the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis" for concluding that probable cause existed, ante, at 244-245, is itself but a variation on the good-faith theme. See Brief for Petitioner on Reargument 4-26. As a jurisdictional requirement, I have no doubt that the exclusionary rule question is before us as an indivisible element of the claim that the Constitution requires exclusion of certain evidence seized in violation of the Fourth Amendment. As a prudential matter, I am unmoved by the Court's lengthy discourse as to why it must avoid the question. First, the Court turns on its head the axiom that " `due regard for the appropriate relationship of this Court to state courts,' McGoldrick v. Compagnie Generale -435, demands that those courts be given an opportunity to consider the constitutionality of the actions of state officials," ante, at 221. This statement, written to explain why a state statute should not be struck down on |
Justice White | 1,983 | 6 | concurring | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | why a state statute should not be struck down on federal grounds not raised in the state courts,[5] hardly applies when the question is whether a rule of federal law articulated by this Court should now be narrowed to reduce the scope of federal intrusion into the State's administration of criminal justice. Insofar as modifications of the federal exclusionary *251 rule are concerned, the courts are bound by this Court's pronouncements. Cf. I see little point in requiring a litigant to request a state court to overrule or modify one of this Court's precedents. Far from encouraging the stability of our precedents, the Court's proposed practice could well undercut stare decisis. Either the presentation of such issues to the lower courts will be a completely futile gesture or the lower courts are now invited to depart from this Court's decisions whenever they conclude such a modification is in order.[6] The Court correctly notes that may choose to pursue a different course with respect to the state exclusionary rule. If this Court were to formulate a "good-faith" exception to the federal exclusionary rule, the Supreme Court would be free to consider on remand whether the state exclusionary rule should be modified accordingly. The possibility that it might have relied upon the state exclusionary rule had the "good-faith" question been posed does not constitute independent and adequate state grounds. "The possibility that the state court might have reached the same conclusion if it had decided the question purely as a matter of state law does not create an adequate and independent state ground that relieves this Court of the necessity of considering the federal question." United Air Lines, ; (19); C. Wright, The Law of Federal Courts 107, pp. 747-748 (4th ed. 1983). Nor does having the state court first decide whether the federal exclusionary rule should be modified and presentation of the federal question does not insure that the equivalent state-law issue will be *252 raised or decided[7] avoid the unnecessary decision of a federal question. The Court still must reach a federal question to decide the instant case. Thus, in today's opinion, the Court eschews modification of the exclusionary rule in favor of interring the test established by and Nor is the exclusionary rule question avoided it is simply deferred until "another day." It also appears that the Court, in disposing of the case, does not strictly follow its own prudential advice. The Supreme Court found not only a violation of the Fourth Amendment but also of Article I, 6, of the Constitution, which also provides assurance |
Justice White | 1,983 | 6 | concurring | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | Article I, 6, of the Constitution, which also provides assurance against unreasonable searches and seizures. Taking the Court's new prudential standards on their own terms, the courts should be given the opportunity to consider in the first instance whether a "totality of the circumstances" test should replace the more precise rules of and The Supreme Court may decide to retain the established test for purposes of the State Constitution just as easily as it could decide to retain an unmodified exclusionary rule.[8] Finally, the Court correctly notes that a fully developed record is helpful if not indispensable for the decision of many issues. I too resist the decision of a constitutional question *253 when such guidance is necessary, but the question of whether the exclusionary rule should be modified is an issue of law which obviously goes far beyond and depends little on the subjective good faith of the police officers that searched the Gateses' property. Moreover, the case comes here with a fully developed record as to the actions of the Bloomingdale, Ill., police. If further factual development of whether the officers in this case acted in good faith were important, that issue should logically be considered on remand, following this Court's statement of the proper legal standards.[9] The Court's straining to avoid coming to grips with the exclusionary rule issue today may be hard for the country to understand particularly given earlier statements by some Members of the Court.[10] The question has been fully briefed and argued by the parties and amici curiae, including the United States.[11] The issue is central to the enforcement of law and the administration of justice throughout the Nation. The Court of Appeals for the second largest Federal Circuit *254 has already adopted such an exception, United cert. denied, and the new Eleventh Circuit is presumably bound by its decision. Several Members of this Court have for some time expressed the need to consider modifying the exclusionary rule, ante, at 224, and Congress as well has been active in exploring the question. See The Exclusionary Rule Bills, Hearings on S. 101, S. 751, and S. 1995 before the Subcommittee on Criminal Law of the Senate Committee on the Judiciary, 97th Cong., 1st and 2d Sess. At least one State has already enacted a good-faith exception. Colo. Rev. Stat. 16-3-308 Of course, if there is a jurisdictional barrier to deciding the issue, none of these considerations are relevant. But if no such procedural obstacle exists, I see it as our responsibility to end the uncertainty and decide whether the rule will be modified. |
Justice White | 1,983 | 6 | concurring | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | the uncertainty and decide whether the rule will be modified. The question of whether probable cause existed for the issuance of a warrant and whether the evidence seized must be excluded in this case should follow our reconsideration of the framework by which such issues, as they arise from the Fourth Amendment, are to be handled. II A The exclusionary rule is a remedy adopted by this Court to effectuate the Fourth Amendment right of citizens "to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures" Although early opinions suggested that the Constitution required exclusion of all illegally obtained evidence, the exclusionary rule "has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons." Because of the inherent trustworthiness of seized tangible evidence and the resulting social costs from its loss through suppression, application *255 of the exclusionary rule has been carefully "restricted to those areas where its remedial objectives are thought most efficaciously served." United Even at criminal trials the exclusionary rule has not been applied indiscriminately to ban all illegally obtained evidence without regard to the costs and benefits of doing so. Infra, at 256-257. These developments, born of years of experience with the exclusionary rule in operation, forcefully suggest that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment. This evolvement in the understanding of the proper scope of the exclusionary rule embraces several lines of cases. First, standing to invoke the exclusionary rule has been limited to situations where the government seeks to use such evidence against the victim of the unlawful search. ; ; Wong ; Second, the rule has not been applied in proceedings other than the trial itself. In United the Court refused to extend the rule to grand jury proceedings. "Any incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best. We therefore decline to embrace a view that would achieve a speculative and undoubtedly minimal advance in the deterrence of police misconduct at the expense of substantially impeding the role of the grand jury." -352. Similarly, in United the exclusionary rule was not extended to forbid the use in federal civil proceedings of evidence illegally seized by state officials, since the likelihood of deterring unlawful police conduct was not sufficient to outweigh the social costs imposed by the exclusion. *256 Third, even at a criminal trial, the |
Justice White | 1,983 | 6 | concurring | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | the exclusion. *256 Third, even at a criminal trial, the same analysis has led us to conclude that the costs of excluding probative evidence outweighed the deterrence benefits in several circumstances. We have refused to prohibit the use of illegally seized evidence for the purpose of impeaching a defendant who testifies in his own behalf. United ; We have also declined to adopt a "per se or `but for' rule" that would make inadmissible any evidence which comes to light through a chain of causation that began with an illegal arrest. And we have held that testimony of a live witness may be admitted, notwithstanding that the testimony was derived from a concededly unconstitutional search. United Nor is exclusion required when law enforcement agents act in good-faith reliance upon a statute or ordinance that is subsequently held to be unconstitutional. United ;[12] Cf. United A similar balancing approach is employed in our decisions limiting the scope of the exclusionary remedy for Fifth Amendment violations, ; ; and our cases considering whether Fourth Amendment decisions should be applied retroactively, United ; ; ; But see United These cases reflect that the exclusion of evidence is not a personal constitutional right but a remedy, which, like all remedies, must be sensitive to the costs and benefits of its imposition. The trend and direction of our exclusionary rule decisions indicate not a lesser concern with safeguarding the Fourth Amendment but a fuller appreciation of the high costs incurred when probative, reliable evidence is barred because of investigative error. The primary cost, of course, is that the exclusionary rule interferes with the truthseeking function of a criminal trial by barring relevant and trustworthy evidence.[13] We will never know how many guilty defendants go free as a result of the rule's operation. But any rule of evidence that denies the jury access to clearly probative and reliable evidence must bear a heavy burden of justification, *258 and must be carefully limited to the circumstances in which it will pay its way by deterring official lawlessness. I do not presume that modification of the exclusionary rule will, by itself, significantly reduce the crime rate but that is no excuse for indiscriminate application of the rule. The suppression doctrine entails other costs as well. It would be surprising if the suppression of evidence garnered in good faith, but by means later found to violate the Fourth Amendment, did not deter legitimate as well as unlawful police activities. To the extent the rule operates to discourage police from reasonable and proper investigative actions, it hinders the solution |
Justice White | 1,983 | 6 | concurring | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | from reasonable and proper investigative actions, it hinders the solution and even the prevention of crime. A tremendous burden is also placed on the state and federal judicial systems. One study reveals that one-third of federal defendants going to trial file Fourth Amendment suppression motions, and 70% to 90% of these involve formal hearings. General Accounting Office, Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions 10 The rule also exacts a heavy price in undermining public confidence in the reasonableness of the standards that govern the criminal justice system. "[A]lthough the [exclusionary] rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and the administration of justice." -491. As JUSTICE POWELL observed in at 490: "The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice." For these reasons, "application of the [exclusionary] rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." United States *259 v. 414 U. S., at[14] The reasoning of our recent cases strongly suggests that there is insufficient justification to suppress evidence at a criminal trial which was seized in the reasonable belief that the Fourth Amendment was not violated. The deterrent effect of the exclusionary rule has never been established by empirical evidence, despite *260 repeated attempts. United -453; But accepting that the rule deters some police misconduct, it is apparent as a matter of logic that there is little if any deterrence when the rule is invoked to suppress evidence obtained by a police officer acting in the reasonable belief that his conduct did not violate the Fourth Amendment. As we initially observed in and reiterated in United : " `The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.' " The Court in continued, at 542: "If |
Justice White | 1,983 | 6 | concurring | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | its force.' " The Court in continued, at 542: "If the purpose of the exclusionary rule is to deter unlawful police conduct then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." See also United The deterrent value of the exclusionary sanction is most effective when officers engage in searches and seizures under circumstances "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." -611 On the *261 other hand, when officers perform their tasks in the good-faith belief that their action comported with constitutional requirements, the deterrent function of the exclusionary rule is so minimal, if not nonexistent, that the balance clearly favors the rule's modification.[15] *262 B There are several types of Fourth Amendment violations that may be said to fall under the rubric of "good faith." "[T]here will be those occasions where the trial or appellate court will disagree on the issue of probable cause, no matter how reasonable the grounds for arrest appeared to the officer and though reasonable men could easily differ on the question. It also happens that after the events at issue have occurred, the law may change, dramatically or ever so slightly, but in any event sufficiently to require the trial judge to hold that there was not probable cause to make the arrest and to seize the evidence offered by the prosecution." -540 The argument for a good-faith exception is strongest, however, when law enforcement officers have reasonably relied on a judicially issued search warrant. This Court has never set forth a rationale for applying the exclusionary rule to suppress evidence obtained pursuant to a search warrant; it has simply done so without considering whether Fourth Amendment interests will be advanced. It is my view that they generally will not be. When officers have dutifully obtained a search warrant from a judge or magistrate, and execute the warrant as directed by its terms, exclusion of the evidence thus obtained cannot be expected to deter future reliance on such warrants. The warrant is prima facie proof that the officers acted reasonably in conducting the search or seizure; "[o]nce the warrant issues, there is literally nothing more that the policeman can do in seeking to comply with the law."[16] AS JUSTICE STEVENS *263 put it in writing for the Court in United : "[A] warrant issued by a magistrate normally suffices to establish" that a law enforcement officer |
Justice White | 1,983 | 6 | concurring | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | magistrate normally suffices to establish" that a law enforcement officer has "acted in good faith in conducting the search." Nevertheless, the warrant may be invalidated because of a technical defect or because, as in this case, the judge issued a warrant on information later determined to fall short of probable cause. Excluding evidence for these reasons can have no possible deterrent effect on future police conduct, unless it is to make officers less willing to do their duty. Indeed, applying the exclusionary rule to warrant searches may well reduce incentives for police to utilize the preferred warrant procedure when a warrantless search may be permissible under one of the established exceptions to the warrant requirement. See ante, at 236; and n. 3 ; P. Johnson, New Approaches to Enforcing the Fourth Amendment 11 See also United ; United Opponents of the proposed "reasonable belief" exception suggest that such a modification would allow magistrates and judges to flout the probable-cause requirements in issuing warrants. This is a novel concept: the exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of magistrates and judges. Magistrates must be neutral and detached from law enforcement operations and I would not presume that a modification of the exclusionary rule will lead magistrates to abdicate their responsibility to apply the law.[17] In any event, I would apply the exclusionary *264 rule when it is plainly evident that a magistrate or judge had no business issuing a warrant. See, e. g., ; Similarly, the good-faith exception would not apply if the material presented to the magistrate or judge is false or misleading, or so clearly lacking in probable cause that no well-trained officer could reasonably have thought that a warrant should issue. Another objection is that a reasonable-belief exception will encompass all searches and seizures on the frontier of the Fourth Amendment and that such cases will escape review on the question of whether the officer's action was permissible, denying needed guidance from the courts and freezing Fourth Amendment law in its present state. These fears are unjustified. The premise of the argument is that a court must first decide the reasonable-belief issue before turning to the question of whether a Fourth Amendment violation has occurred. I see no need for such an inflexible practice. When a Fourth Amendment case presents a novel question of law whose resolution is necessary to guide future action by law enforcement officers and magistrates, there is sufficient reason for the Court to decide the violation issue before turning to the good-faith question. Indeed, it may |
Justice White | 1,983 | 6 | concurring | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | issue before turning to the good-faith question. Indeed, it may be difficult to *265 determine whether the officers acted reasonably until the Fourth Amendment issue is resolved.[18] In other circumstances, however, a suppression motion poses no Fourth Amendment question of broad import the issue is simply whether the facts in a given case amounted to probable cause in these cases, it would be prudent for a reviewing court to immediately turn to the question of whether the officers acted in good faith. Upon finding that they had, there would generally be no need to consider the probable-cause question. I doubt that our Fourth Amendment jurisprudence would suffer thereby. It is not entirely clear to me that the law in this area has benefited from the constant pressure of fully litigated suppression motions. The result usually has been that initially bright-line rules have disappeared in a sea of ever-finer distinctions. Moreover, there is much to be said for having Fourth Amendment jurisprudence *266 evolve in part, albeit perhaps at a slower pace, in other settings.[19] Finally, it is contended that a good-faith exception will be difficult to apply in practice. This concern appears grounded in the assumption that courts would inquire into the subjective belief of the law enforcement officers involved. I would eschew such investigations. "[S]ending state and federal courts on an expedition into the minds of police officers would produce a grave and fruitless misallocation of judicial resources." Moreover, "[s]ubjective intent alone does not make otherwise lawful conduct illegal or unconstitutional." Just last Term, we modified the qualified immunity public officials enjoy in suits seeking damages against federal officials for alleged deprivations of constitutional rights, eliminating the subjective component of the standard. See Although *2 searches pursuant to a warrant will rarely require any deep inquiry into reasonableness, I would measure the reasonableness of a particular search or seizure only by objective standards. Even for warrantless searches, the requirement should be no more difficult to apply than the closely related good-faith test which governs civil suits under 42 U.S. C. 1983. In addition, the burden will likely be offset by the reduction in the number of cases which will require elongated considerations of the probable-cause question, and will be greatly outweighed by the advantages in limiting the bite of the exclusionary rule to the field in which it is most likely to have its intended effects. III Since a majority of the Court deems it inappropriate to address the good-faith issue, I briefly address the question that the Court does reach whether the warrant authorizing the |
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