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Justice White | 1,983 | 6 | concurring | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | the Court does reach whether the warrant authorizing the search and seizure of respondents' car and home was constitutionally valid. Abandoning the "two-pronged test" of and the Court upholds the validity of the warrant under a new "totality of the circumstances" approach. Although I agree that the warrant should be upheld, I reach this conclusion in accordance with the - framework. A For present purposes, the - rules can be summed up as follows. First, an affidavit based on an informant's tip, standing alone, cannot provide probable cause for issuance of a warrant unless the tip includes information that apprises the magistrate of the informant's basis for concluding that the contraband is where he claims it is (the "basis of knowledge" prong), and the affiant informs the magistrate of his basis for believing that the informant is credible (the "veracity" prong). ; *268[20] Second, if a tip fails under either or both of the two prongs, probable cause may yet be established by independent police investigatory work that corroborates the tip to such an extent that it supports "both the inference that the informer was generally trustworthy and that he made his charge on the basis of information obtained in a reliable way." In instances where the officers rely on corroboration, the ultimate question is whether the corroborated tip "is as trustworthy as a tip which would pass 's tests without independent corroboration." In the present case, it is undisputed that the anonymous tip, by itself, did not furnish probable cause. The question is whether those portions of the affidavit describing the results of the police investigation of the respondents, when considered in light of the tip, "would permit the suspicions engendered by the informant's report to ripen into a judgment that a crime was probably being committed." The Supreme Court concluded that the corroboration was insufficient to permit such a ripening. The court reasoned as follows: "[T]he nature of the corroborating evidence in this case would satisfy neither the `basis of knowledge' nor the * `veracity' prong of Looking to the affidavit submitted as support for Detective Mader's request that a search warrant issue, we note that the corroborative evidence here was only of clearly innocent activity. Mader's independent investigation revealed only that Lance and Sue Gates lived on Greenway Drive; that Lance Gates booked passage on a flight to Florida; that upon arriving he entered a room registered to his wife; and that he and his wife left the hotel together by car. The corroboration of innocent activity is insufficient to support a finding of probable cause." |
Justice White | 1,983 | 6 | concurring | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | activity is insufficient to support a finding of probable cause." In my view, the lower court's characterization of the Gateses' activity here as totally "innocent" is dubious. In fact, the behavior was quite suspicious. I agree with the Court, ante, at 243, that Lance Gates' flight to West Palm Beach, an area known to be a source of narcotics, the brief overnight stay in a motel, and apparent immediate return north, suggest a pattern that trained law enforcement officers have recognized as indicative of illicit drug-dealing activity.[21] Even, however, had the corroboration related only to completely innocuous activities, this fact alone would not preclude the issuance of a valid warrant. The critical issue is not whether the activities, observed by the police are innocent or suspicious. Instead, the proper focus should be on whether the actions of the suspects, whatever their nature, give rise to an inference that the informant is credible and that he obtained his information in a reliable manner. Thus, in an informant stated on September 7 that Draper would be carrying narcotics when he arrived by train in Denver on the morning of September 8 or September 9. The informant also provided the police with a detailed physical description *270 of the clothes Draper would be wearing when he alighted from the train. The police observed Draper leaving a train on the morning of September 9, and he was wearing the precise clothing described by the informant. The Court held that the police had probable cause to arrest Draper at this point, even though the police had seen nothing more than the totally innocent act of a man getting off a train carrying a briefcase. As we later explained in the important point was that the corroboration showed both that the informant was credible, i. e., that he "had not been fabricating his report out of whole cloth," 393 U. S., and that he had an adequate basis of knowledge for his allegations, "since the report was of the sort which in common experience may be recognized as having been obtained in a reliable way." -418. The fact that the informant was able to predict, two days in advance, the exact clothing Draper would be wearing dispelled the possibility that his tip was just based on rumor or "an offhand remark heard at a neighborhood bar." Probably Draper had planned in advance to wear these specific clothes so that an accomplice could identify him. A clear inference could therefore be drawn that the informant was either involved in the criminal scheme himself or that he otherwise |
Justice White | 1,983 | 6 | concurring | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | involved in the criminal scheme himself or that he otherwise had access to reliable, inside information.[22] *271 As in Draper, the police investigation in the present case satisfactorily demonstrated that the informant's tip was as trustworthy as one that would alone satisfy the tests. The tip predicted that Sue Gates would drive to Florida, that Lance Gates would fly there a few days after May 3, and that Lance would then drive the car back. After the police corroborated these facts,[23] the judge could reasonably have inferred, as he apparently did, that the informant, who had specific knowledge of these unusual travel plans, did not make up his story and that he obtained his information in a reliable way. It is theoretically possible, as respondents insist, that the tip could have been supplied by a "vindictive travel agent" and that the Gateses' activities, although unusual, might not have been unlawful.[24] But and like our other cases, do not require that certain guilt be established before a warrant may properly be issued. "[O]nly the probability, and not a prima facie showing, *272 of criminal activity is the standard of probable cause." at 419 ). I therefore conclude that the judgment of the Supreme Court invalidating the warrant must be reversed. B The Court agrees that the warrant was valid, but, in the process of reaching this conclusion, it overrules the - tests and replaces them with a "totality of the circumstances" standard. As shown above, it is not at all necessary to overrule - in order to reverse the judgment below. Therefore, because I am inclined to believe that, when applied properly, the - rules play an appropriate role in probable-cause determinations, and because the Court's holding may foretell an evisceration of the probable-cause standard, I do not join the Court's holding. The Court reasons, ante, at 233, that the "veracity" and "basis of knowledge" tests are not independent, and that a deficiency as to one can be compensated for by a strong showing as to the other. Thus, a finding of probable cause may be based on a tip from an informant "known for the unusual reliability of his predictions" or from "an unquestionably honest citizen," even if the report fails thoroughly to set forth the basis upon which the information was obtained. If this is so, then it must follow a fortiori that "the affidavit of an officer, known by the magistrate to be honest and experienced, stating that [contraband] is located in a certain building" must be acceptable. It would be "quixotic" if a similar statement from an |
Justice White | 1,983 | 6 | concurring | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | It would be "quixotic" if a similar statement from an honest informant, but not one from an honest officer, could furnish probable cause. But we have repeatedly held that the unsupported assertion or belief of an officer does not satisfy the probable-cause requirement. See, e. g., 564- *273 ; (10);[25] Thus, this portion of today's holding can be read as implicitly rejecting the teachings of these prior holdings. The Court may not intend so drastic a result. Indeed, the Court expressly reaffirms, ante, at 239, the validity of cases such as Nathanson that have held that, no matter how reliable the affiant-officer may be, a warrant should not be issued unless the affidavit discloses supporting facts and circumstances. The Court limits these cases to situations involving affidavits containing only "bare conclusions" and holds that, if an affidavit contains anything more, it should be left to the issuing magistrate to decide, based solely on "practical[ity]" and "common sense," whether there is a fair probability that contraband will be found in a particular place. Ante, at 238-239. Thus, as I read the majority opinion, it appears that the question whether the probable-cause standard is to be diluted is left to the common-sense judgments of issuing magistrates. I am reluctant to approve any standard that does not expressly require, as a prerequisite to issuance of a warrant, some showing of facts from which an inference may be drawn that the informant is credible and that his information was obtained in a reliable way. The Court is correctly concerned with the fact that some lower courts have been applying - in an unduly rigid manner.[26] I believe, however, that with clarification of the rule of corroborating *274A information, the lower courts are fully able to properly interpret - and avoid such unduly rigid applications. I may be wrong; it ultimately may prove to be the case that the only profitable instruction we can provide to magistrates is to rely on common sense. But the question whether a particular anonymous tip provides the basis for issuance of a warrant will often be a difficult one, and I would at least attempt to provide more precise guidance by clarifying - and the relationship of those cases with Draper before totally abdicating our responsibility in this area. Hence, I do not join the Court's opinion rejecting the - rules. |
Justice Douglas | 1,973 | 10 | dissenting | NAACP v. New York | https://www.courtlistener.com/opinion/108847/naacp-v-new-york/ | When two mighty political agencies such as the Department of Justice in Washington, D. C., and the Attorney General of New York in Albany agree that there is no racial discrimination in voting in three New York counties although the historic record[1] suggests it, it *370 is time to take a careful look and not let this litigation be ended by an agreement between friendly political allies. The Voting Rights Act Amendments of 1970 were specifically aimed at New Yorkparticularly Bronx, Kings, and New York Counties. It was pointed out in the debates that under the earlier Act these counties were not included, that while in the 1964 election more than 50% of the voters were registered and more than 50% voted, in the 1968 election 50% were not registered or voting. 116 Cong. Rec. 6654, 6659. It was pointed out that New York's literacy requirement was enacted with the view of discriminating on the basis of race. New York blacks were illiterate because their education, if any, had been in second-class schools elsewhere. It was emphasized that wherever the blacks had been educated it was unconstitutional to discriminate against them on the basis of race even though illiterate. The use of literacy tests in New York tended to deter blacks from registering, it was said. And it was pointed out that literacy tests had a greater impact on blacks and other minorities than on any white because literacy was higher among whites. In the face of this history, the United States did not call one witness or submit a single document or make even a feeble protest to New York's claim that it was lily-white. The United States has no defense to offer. The desultory way in which the United States acted is illustrated by the fact that although the Act requires *371 the District Court to retain jurisdiction of the cause for five years, 42 U.S. C. 1973b (a), the United States did not even make the request. It capitulated completely. And yet the blacks, the Americans of Puerto Rican ancestry, and other minorities victimized by illiteracy tests clamor in their way for representation. Only NAACP offers it in this case. The investigation made by the Department of Justice has all the earmarks of a whitewash. The Attorney General had testified before Congress:[2] "[I]t is clear that Negro voting in most Deep South Counties subjected to both literacy test suspension and on-scene enrollment by Federal registrars is now higher than Negro vote participation in the ghettos of the two Northern citiesNew York and Los Angeleswhere literacy tests are |
Justice Douglas | 1,973 | 10 | dissenting | NAACP v. New York | https://www.courtlistener.com/opinion/108847/naacp-v-new-york/ | two Northern citiesNew York and Los Angeleswhere literacy tests are still in use. In non-literacy test Northern jurisdictions like Chicago, Cleveland and Philadelphia, Negro registration and voting ratios are higher than in Los Angeles and (especially) New York." Yet, none of these assertions were given the District Court nor was any attempt made to develop evidence along these lines. This suit by the State of New York to get an exemption for the three counties started on December 3, 1971. On March 10, 1972, the United States filed its answer and on March 17, 1972, New York moved for summary judgment. On March 21, 1972, NAACP was advised by the Department of Justice that the latter would oppose New York's motion for summary judgment. Out of the blue the Department of Justice on April 4, 1972, consented to the entry of a decree exempting the three New *372 York counties from the Act. The motion to intervene was promptly filed April 7, 1972. The answer filed by NAACP on April 7, 1972, alleges that the literacy test administered by New York deterred minorities from registering, that it was administered by whites, that social gerrymandering was so widespread and successful that minorities were discouraged from voting, and that New York produced illiterate blacks through operating inferior black schoolsinferior in educational facilities, inferior in teachers, and inferior in expenditures per capita. It is assumed, of course, that the United States adequately represents the public interest in cases of this sort. But on the face of this record of transactions that the United States has approved or does not contest, it is clear that it does not adequately represent the public interest. Intervention as of right under Rule 24 (a) (2) should therefore be allowed. See Cascade Natural Gas Here it is plainly evident that the United States is an eager and willing partner with its allies in New York to foreclose inquiry into barriers to minority voting. What the facts may produce, no one knows. All that is requested is a hearing on the merits. The fresh air of publicity that only a fair and full trial in court can produce should be allowed to ventilate a case that has all the earmarks of a cozy arrangement to suppress the factsevidence which, if proved, would be adequate as a basis for relief in a case from the South. See Gaston This evidence, if proved, should be equally adequate in the North. MR. |
Justice O'Connor | 1,983 | 14 | majority | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | [] This case presents the question of a State's power to impose a special tax on the press and, by enacting exemptions, to limit its effect to only a few newspapers. *577 I Since 1967, Minnesota has imposed a sales tax on most sales of goods for a price in excess of a nominal sum.[1] Act of June 1, 1967, ch. 32, Art. XIII, 2, 2179, codified at Minn. Stat. 297A.02 In general, the tax applies only to retail sales. An exemption for industrial and agricultural users shields from the tax sales of components to be used in the production of goods that will themselves be sold at retail. 297A.25(1)(h). As part of this general system of taxation and in support of the sales tax, see Minn. Code of Agency Rules, Tax S & U 300 Minnesota also enacted a tax on the "privilege of using, storing or consuming in Minnesota tangible personal property." This use tax applies to any nonexempt tangible personal property unless the sales tax was paid on the sales price. Minn. Stat. 297A.14 Like the classic use tax, this use tax protects the State's sales tax by eliminating the residents' incentive to travel to States with lower sales taxes to buy goods rather than buying them in Minnesota. 297A.14, 297A.24. The appellant, Minneapolis Star & Tribune "Star Tribune," is the publisher of a morning newspaper and an evening newspaper in Minneapolis. From 1967 until 1971, it enjoyed an exemption from the sales and use tax provided by Minnesota for periodic publications. codified at Minn. Stat. 297A.25(1)(i) In 1971, however, while leaving the exemption from the sales tax in place, the legislature amended the scheme to impose a "use tax" on the cost of paper and ink products consumed in the production of a publication. Act of Oct. 31, 1971, ch. 31, Art. I, 5, 2565, codified *578 with modifications at Minn. Stat. 297A.14, 297A.25(1)(i) Ink and paper used in publications became the only items subject to the use tax that were components of goods to be sold at retail. In 1974, the legislature again amended the statute, this time to exempt the first $100,000 worth of ink and paper consumed by a publication in any calendar year, in effect giving each publication an annual tax credit of $4,000. Act of May 24, 1973, ch. 650, Art. XIII, 1, 17, codified at Minn. Stat. 297A.14[2] Publications remained exempt from the sales tax, 2, After the enactment of the $100,000 exemption, 11 publishers, producing 14 of the 388 paid circulation newspapers in the State, incurred a tax liability |
Justice O'Connor | 1,983 | 14 | majority | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | paid circulation newspapers in the State, incurred a tax liability in 1974. Star Tribune was one of the 11, and, of the $893,355 collected, it paid $608,4, or roughly two-thirds of the total revenue raised by the tax. *579 See In 1975, 13 publishers, producing 16 out of 374 paid circulation papers, paid a tax. That year, Star Tribune again bore roughly two-thirds of the total receipts from the use tax on ink and paper. and n. 5. Star Tribune instituted this action to seek a refund of the use taxes it paid from January 1, 1974, to May 31, 1975. It challenged the imposition of the use tax on ink and paper used in publications as a violation of the guarantees of freedom of the press and equal protection in the First and Fourteenth Amendments. The Minnesota Supreme Court upheld the tax against the federal constitutional challenge. We noted probable jurisdiction, and we now reverse. II Star Tribune argues that we must strike this tax on the authority of Although there are similarities between the two cases, we agree with the State that is not controlling. In the State of Louisiana imposed a license tax of 2% of the gross receipts from the sale of advertising on all newspapers with a weekly circulation above 20,000. Out of at least 124 publishers in the State, only 13 were subject to the tax. After noting that the tax was "single in kind" and that keying the tax to circulation curtailed the flow of information, this Court held the tax invalid as an abridgment of the freedom of the press. Both the brief and the argument of the publishers in this Court emphasized the events leading up to the tax and the contemporary political climate in Louisiana. See Argument for Appellees, ; Brief for Appellees, O. T. 1936, No. 303, pp. 8-9, 30. All but one of the large papers subject to the tax had "ganged up" on Senator Huey Long, and a circular distributed by Long and the Governor to each member of the state legislature *580 described "lying newspapers" as conducting "a vicious campaign" and the tax as "a tax on lying, 2c [sic] a lie." Although the Court's opinion did not describe this history, it stated "[the tax] is bad because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information," an explanation that suggests that the motivation of the legislature may have been significant. Our |
Justice O'Connor | 1,983 | 14 | majority | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | the motivation of the legislature may have been significant. Our subsequent cases have not been consistent in their reading of on this point. Compare United with (suggesting that purpose was relevant in ); Pittsburgh Press Commentators have generally viewed as dependent on the improper censorial goals of the legislature. See T. Emerson, The System of Freedom of Expression 419 (1970); L. Tribe, American Constitutional Law 592, n. 8, 724, n. 10 We think that the result in may have been attributable in part to the perception on the part of the Court that the State imposed the tax with an intent to penalize a selected group of newspapers. In the case currently before us, however, there is no legislative history[3] and no indication, apart from the structure of the tax itself, of any impermissible or censorial motive on the part of the legislature. We cannot resolve the case by simple citation to Instead, we must analyze the problem anew under the general principles of the First Amendment. *581 III Clearly, the First Amendment does not prohibit all regulation of the press. It is beyond dispute that the States and the Federal Government can subject newspapers to generally applicable economic regulations without creating constitutional problems. See, e. g., Citizen Publishing ; Lorain Journal ; ; Oklahoma Press Publishing ; ; Associated ; Associated ; see also Minnesota, however, has not chosen to apply its general sales and use tax to newspapers. Instead, it has created a special tax that applies only to certain publications protected by the First Amendment. Although the State argues now that the tax on paper and ink is part of the general scheme of taxation, the use tax provision, quoted in n. 2, is facially discriminatory, singling out publications for treatment that is, to our knowledge, unique in Minnesota tax law. Minnesota's treatment of publications differs from that of other enterprises in at least two important respects:[4] it imposes a use tax that does not serve the function of protecting the sales tax, and it taxes an intermediate transaction rather than the ultimate retail sale. A use tax ordinarily serves to complement the sales tax by eliminating the incentive to make major purchases in States with lower sales taxes; it requires *582 the resident who shops out-of-state to pay a use tax equal to the sales tax savings. E. g., National Geographic ; P. Hartman, Federal Limitations on State and Local Taxation 10:1, 10:5 ; Warren & Schlesinger, Sales and Use Taxes: Interstate Commerce Pays Its Way, Minnesota designed its overall use tax scheme to serve this |
Justice O'Connor | 1,983 | 14 | majority | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | Minnesota designed its overall use tax scheme to serve this function. As the regulations state, "[t]he `use tax' is a compensating or complementary tax." Minn. Code of Agency Rules, Tax S & U 300 ; see Minn. Stat. 297A.24 Thus, in general, items exempt from the sales tax are not subject to the use tax, for, in the event of a sales tax exemption, there is no "complementary function" for a use tax to serve. See DeLuxe Check Printers, N.W.2d 341, But the use tax on ink and paper serves no such complementary function; it applies to all uses, whether or not the taxpayer purchased the ink and paper instate, and it applies to items exempt from the sales tax. Further, the ordinary rule in Minnesota, as discussed above, is to tax only the ultimate, or retail, sale rather than the use of components like ink and paper. "The statutory scheme is to devise a unitary tax which exempts intermediate transactions and imposes it only on sales when the finished product is purchased by the ultimate user." Standard Packaging Publishers, however, are taxed on their purchase of components, even though they will eventually sell their publications at retail. By creating this special use tax, which, to our knowledge, is without parallel in the State's tax scheme, Minnesota has singled out the press for special treatment. We then must determine whether the First Amendment permits such special taxation. A tax that burdens rights protected by the First Amendment cannot stand unless the burden is necessary to achieve an overriding governmental interest. See, *583 e. g., United Any tax that the press must pay, of course, imposes some "burden." But, as we have observed, see this Court has long upheld economic regulation of the press. The cases approving such economic regulation, however, emphasized the general applicability of the challenged regulation to all business, e. g., Oklahoma Press Publishing ; ; Associated at[5] suggesting that a regulation that singled out the press might place a heavier burden of justification on the State, and we now conclude that the special problems created by differential treatment do indeed impose such a burden. There is substantial evidence that differential taxation of the press would have troubled the Framers of the First Amendment.[6] The role of the press in mobilizing sentiment *584 in favor of independence was critical to the Revolution. When the Constitution was proposed without an explicit guarantee of freedom of the press, the Antifederalists objected. Proponents of the Constitution, relying on the principle of enumerated powers, responded that such a guarantee was unnecessary because |
Justice O'Connor | 1,983 | 14 | majority | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | enumerated powers, responded that such a guarantee was unnecessary because the Constitution granted Congress no power to control the press. The remarks of Richard Henry Lee are typical of the rejoinders of the Antifederalists: "I confess I do not see in what cases the congress can, with any pretence of right, make a law to suppress the freedom of the press; though I am not clear, that congress is restrained from laying any duties whatever on printing, and from laying duties particularly heavy on certain pieces printed" R. Lee, Observation Leading to a Fair Examination of the System of Government, Letter IV, reprinted in 1 B. The Bill of Rights: A Documentary History 466, 474 (1971). See also A Review of the Constitution Proposed by the Late Convention by a Federal Republican, reprinted in 3 H. Storing, The Complete Anti-Federalist 65, 81-82 ; M. Smith, Address to the People of New York on the Necessity of Amendments to the Constitution, reprinted in 1 B. ; cf. The Federalist No. 84, p. 440, and n. 1 (A. Hamilton) (M. Beloff ed. 1948) (recognizing and attempting to refute the argument). The concerns voiced by the Antifederalists led to the adoption of the Bill of Rights. See 1 B. *585 The fears of the Antifederalists were well founded. A power to tax differentially, as opposed to a power to tax generally, gives a government a powerful weapon against the taxpayer selected. When the State imposes a generally applicable tax, there is little cause for concern. We need not fear that a government will destroy a selected group of taxpayers by burdensome taxation if it must impose the same burden on the rest of its constituency. See Railway Express Agency, When the State singles out the press, though, the political constraints that prevent a legislature from passing crippling taxes of general applicability are weakened, and the threat of burdensome taxes becomes acute. That threat can operate as effectively as a censor to check critical comment by the press, undercutting the basic assumption of our political system that the press will often serve as an important restraint on government. See generally Stewart, "Or of the Press," 26 Hastings L. J. 1, 4 (1975). "[A]n untrammeled press [is] a vital source of public information," and an informed public is the essence of working democracy. Further, differential treatment, unless justified by some special characteristic of the press, suggests that the goal of the regulation is not unrelated to suppression of expression, and such a goal is presumptively unconstitutional. See, e. g., Police Department of ; cf. Differential |
Justice O'Connor | 1,983 | 14 | majority | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | unconstitutional. See, e. g., Police Department of ; cf. Differential taxation of the press, then, places such a burden on the interests protected by the First Amendment that we cannot countenance such treatment unless the State asserts a counterbalancing interest of compelling importance that it cannot achieve without differential taxation.[7] *586 IV The main interest asserted by Minnesota in this case is the raising of revenue. Of course that interest is critical to any government. Standing alone, however, it cannot justify the special treatment of the press, for an alternative means of achieving the same interest without raising concerns under the First Amendment is clearly available: the State could raise the revenue by taxing businesses generally,[8] avoiding the censorial threat implicit in a tax that singles out the press. Addressing the concern with differential treatment, Minnesota invites us to look beyond the form of the tax to its substance. The tax is, according to the State, merely a substitute for the sales tax, which, as a generally applicable tax, would be constitutional as applied to the press.[9] There are *587 two fatal flaws in this reasoning. First, the State has offered no explanation of why it chose to use a substitute for the sales tax rather than the sales tax itself. The court below speculated that the State might have been concerned that collection of a tax on such small transactions would be That suggestion is unpersuasive, for sales of other low-priced goods are not exempt, see n. 1, supra.[10] If the real goal of this tax is to duplicate *588 the sales tax, it is difficult to see why the State did not achieve that goal by the obvious and effective expedient of applying the sales tax. Further, even assuming that the legislature did have valid reasons for substituting another tax for the sales tax, we are not persuaded that this tax does serve as a substitute. The State asserts that this scheme actually favors the press over other businesses, because the same rate of tax is applied, but, for the press, the rate applies to the cost of components rather than to the sales price. We would be hesitant to fashion a rule that automatically allowed the State to single out the press for a different method of taxation as long as the effective burden was no different from that on other taxpayers or the burden on the press was lighter than that on other businesses. One reason for this reluctance is that the very selection of the press for special treatment threatens the press not only with |
Justice O'Connor | 1,983 | 14 | majority | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | press for special treatment threatens the press not only with the current differential treatment, but also with the possibility of subsequent differentially more burdensome treatment. Thus, even without actually imposing an extra burden on the press, the government might be able to achieve censorial effects, for "[t]he threat of sanctions may deter [the] exercise [of First Amendment rights] almost as potently as the actual application of sanctions." (19).[11] *589 A second reason to avoid the proposed rule is that courts as institutions are poorly equipped to evaluate with precision the relative burdens of various methods of taxation.[12] The *590 complexities of factual economic proof always present a certain potential for error, and courts have little familiarity with the process of evaluating the relative economic burden of taxes. In sum, the possibility of error inherent in the proposed rule poses too great a threat to concerns at the heart of the First Amendment, and we cannot tolerate that possibility.[13] Minnesota, therefore, has offered no adequate justification for the special treatment of newspapers.[14] *591 V Minnesota's ink and paper tax violates the First Amendment not only because it singles out the press, but also because it targets a small group of newspapers. The effect of the $100,000 exemption enacted in 1974 is that only a handful of publishers pay any tax at all, and even fewer pay any significant amount of tax.[15] The State explains this exemption as part of a policy favoring an "equitable" tax system, although there are no comparable exemptions for small enterprises outside the press. Again, there is no legislative history supporting the State's view of the purpose of the amendment. Whatever the motive of the legislature in this *592 case, we think that recognizing a power in the State not only to single out the press but also to tailor the tax so that it singles out a few members of the press presents such a potential for abuse that no interest suggested by Minnesota can justify the scheme. It has asserted no interest other than its desire to have an "equitable" tax system. The current system, it explains, promotes equity because it places the burden on large publications that impose more social costs than do smaller publications and that are more likely to be able to bear the burden of the tax. Even if we were willing to accept the premise that large businesses are more profitable and therefore better able to bear the burden of the tax, the State's commitment to this "equity" is questionable, for the concern has not led the State to grant |
Justice O'Connor | 1,983 | 14 | majority | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | for the concern has not led the State to grant benefits to small businesses in general.[16] And when the exemption selects such a narrowly defined group to bear the full burden of the tax, the tax begins to resemble more a penalty for a few of the largest newspapers than an attempt to favor struggling smaller enterprises. VI We need not and do not impugn the motives of the Minnesota Legislature in passing the ink and paper tax. Illicit legislative intent is not the sine qua non of a violation of the First Amendment. See ; ; We have long recognized that even regulations aimed at proper governmental concerns can restrict unduly the exercise of rights protected by the First Amendment. E. g., A tax that singles out the press, or that targets individual publications within the press, places a *593 heavy burden on the State to justify its action. Since Minnesota has offered no satisfactory justification for its tax on the use of ink and paper, the tax violates the First Amendment,[17] and the judgment below is Reversed. JUSTICE WHITE, concurring in part and dissenting in part. This case is not difficult. The exemption for the first $100,000 of paper and ink limits the burden of the Minnesota tax to only a few papers. This feature alone is sufficient reason to invalidate the Minnesota tax and reverse the judgment of the Minnesota Supreme Court. The Court recognizes that Minnesota's tax violates the First Amendment for this reason, and I subscribe to Part V of the Court's opinion and concur in the judgment. Having found fully sufficient grounds for decision, the Court need go no further. The question whether Minnesota or another State may impose a use tax on paper and ink that is not targeted on a small group of newspapers could be left for another day. The Court, however, undertakes the task today. The crux of the issue is whether Minnesota has justified imposing a use tax on paper and ink in lieu of applying its general sales tax to publications. The Court concludes that the State has offered no satisfactory explanation for selecting a substitute for a sales tax. Ante, at 587. If this is so, that could be the end of the matter, and the Minnesota tax would be invalid for a second reason. The Court nevertheless moves on to opine that the State could not impose such a tax even if "the effective burden was no different from that on other taxpayers or the burden on the press was lighter than that on other businesses." |
Justice O'Connor | 1,983 | 14 | majority | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | on the press was lighter than that on other businesses." *594 Ante, at 588. The fear is that the government might use the tax as a threatened sanction to achieve a censorial purpose. As JUSTICE REHNQUIST demonstrates, post, at 601-602, the proposition that the government threatens the First Amendment by favoring the press is most questionable, but for the sake of argument, I let it pass. Despite having struck down the tax for three separate reasons, the Court is still not finished. "A second reason" to eschew inquiry into the relative burden of taxation is presented. The Court submits that "courts as institutions are poorly equipped to evaluate with precision the relative burdens of various methods of taxation," ante, at 589, except, it seems, in cases involving the sovereign immunity of the United States. Why this is so is not made clear, and I do not agree that the courts are so incompetent to evaluate the burdens of taxation that we must decline the task in this case. The Court acknowledges that in cases involving state taxation of the Federal Government and those with whom it does business, the Court has compared the burden of two different taxes. Ante, at 589, n. 12. See, e. g., United ; United It is not apparent to me why we are able to determine whether a State has imposed the economic incidence of a tax in a discriminatory fashion upon the Federal Government, but incompetent to determine whether a tax imposes discriminatory treatment upon the press. The Court's rationale that these are a unique set of cases which nevertheless "force us" to assume a duty we are incompetent to perform is wholly unsatisfactory. If convinced of its inherent incapacity for tax analysis, the Court could have taken the path chosen today and simply prohibited the States from imposing a compensatory "equivalent" economic burden on those who deal with the Federal Government. It has not done so. Moreover, the Court frequently has examined without complaint the actual effect of a tax in determining whether the State has imposed an impermissible burden on interstate *595 commerce or run afoul of the Due Process Clause.[1] In a number of cases concerning railroad taxes, for example, the Court considered the tax burden to decide whether it was the equivalent of a property tax or an invalid tax on interstate commerce.[2] The Court has compared the burden of use taxes on competing products from sister States with that of sales taxes on products sold in-state to decide whether the former constituted discrimination against interstate commerce. Henneford |
Justice O'Connor | 1,983 | 14 | majority | Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue | https://www.courtlistener.com/opinion/110894/minneapolis-star-tribune-co-v-minnesota-commr-of-revenue/ | decide whether the former constituted discrimination against interstate commerce. Henneford v. Silas Mason[3] We have also measured tax burdens in our cases considering whether state tax formulas are so out of proportion *596 to the amount of in-state business as to violate due process. See, e. g., Moorman Mfg. v. Bair, ; Hans Rees' Sons, In sum, the Court's professed inability to determine when a tax poses an actual threat to constitutional principles is a novel concept, and one belied by the lessons of our experience. There may be cases, I recognize, where the Court cannot confidently ascertain whether a differential method of taxation imposes a greater burden upon the press than a generally applicable tax. In these circumstances, I too may be unwilling to entrust freedom of the press to uncertain economic proof. But, as JUSTICE REHNQUIST clearly shows, post, at 597-598, this is not such a case. Since it is plainly evident that Minneapolis Star is not disadvantaged and is almost certainly benefited by a use tax vis-a-vis a sales tax, I cannot agree that the First Amendment forbids a State to choose one method of taxation over another. |
Justice Ginsburg | 2,001 | 5 | dissenting | Palazzolo v. Rhode Island | https://www.courtlistener.com/opinion/118459/palazzolo-v-rhode-island/ | A regulatory takings claim is not ripe for adjudication, this Court has held, until the agency administering the regulations at issue, proceeding in good faith, "has arrived at a final, definitive position regarding how it will apply [those *646 regulations] to the particular land in question." Williamson Regional Planning Absent such a final decision, a court cannot "kno[w] the nature and extent of permitted development" under the regulations, and therefore cannot say "how far the regulation[s] g[o]," as regulatory takings law requires. Sommer & Therefore, even when a landowner seeks and is denied permission to develop property, if the denial does not demonstrate the effective impact of the regulations on the land, the denial does not represent the "final decision" requisite to generate a ripe dispute. Williamson illustrates how a highly ambitious application may not ripen a takings claim. The landowner in that case proposed a 159-home When that large proposal was denied, the owner complained that the State had appropriated "all beneficial use of its property." ; see also This Court concluded, however, that the landowner's claim was not ripe, for the denial of the massive development left "open the possibility that some development [would] be permitted." "Rejection of exceedingly grandiose development plans," the Court observed, "does not logically imply that less ambitious plans will receive similarly unfavorable reviews." As presented to the Rhode Island Supreme Court, Anthony Palazzolo's case was a close analogue to Palazzolo's land has two components. Approximately 18 acres are wetlands that sustain a rich but delicate ecosystem. See Additional acres are less environmentally sensitive "" (The number of upland acres remains in doubt, see ib because Palazzolo has never submitted "an accurate or detailed survey" of his property, see Tr. 190 (June 18-19, 1997).) Rhode Island's administrative agency with ultimate permitting authority *647 over the wetlands, the Coastal Resources Management Council (CRMC), bars residential development of the wetlands, but not the Although Palazzolo submitted several applications to develop his property, those applications uniformly sought permission to fill most or all of the wetlands portion of the property. None aimed to develop only the [1] Upon denial of the last of Palazzolo's applications, Palazzolo filed suit claiming that Rhode Island had taken his property by refusing "to allow any development." App. 45 (Complaint ¶ 17). As the Rhode Island Supreme Court saw the case, Palazzolo's claim was not ripe for several reasons, among them, that Palazzolo had not sought permission for "development only of the upland portion of the parcel." The Rhode Island court emphasized the "undisputed evidence in the record that it would be |
Justice Ginsburg | 2,001 | 5 | dissenting | Palazzolo v. Rhode Island | https://www.courtlistener.com/opinion/118459/palazzolo-v-rhode-island/ | the "undisputed evidence in the record that it would be possible to build at least one single-family home on the existing upland area, with no need for additional fill." Today, the Court rejects the Rhode Island court's determination that the case is unripe, finding no "uncertainty as to *648 the [uplands'] permitted use." Ante, at 622. The Court's conclusion is, in my view, both inaccurate and inequitable. It is inaccurate because the record is ambiguous. And it is inequitable because, given the claim asserted by Palazzolo in the Rhode Island courts, the State had no cause to pursue further inquiry into potential upland development. But Palazzolo presses other claims here, and at his behest, the Court not only entertains them, but also turns the State's legitimate defense against the claim Palazzolo originally stated into a weapon against the State. I would reject Palazzolo's bait-and-switch ploy and affirm the judgment of the Rhode Island Supreme Court. * * * Where physical occupation of land is not at issue, the Court's cases identify two basic forms of regulatory Ante, at 617. In the Court held that, subject to "certain qualifications," ante, at 617, 629, denial of "all economically beneficial or productive use of land" constitutes a However, if a regulation does not leave the property "economically idle," to establish the alleged taking the landowner may pursue the multifactor inquiry set out in Penn Central Transp. Like the landowner in Palazzolo sought federal constitutional relief only under a straightforward application of See ante, at 615-616; App. 45 (Complaint ¶ 17) ("As a direct and proximate result of the Defendants' refusal to allow any development of the property, there has been a taking" ); Plaintiff's Post Trial Memorandum in No. 88-0297 (Super. Ct., R. I.), p. 6 ("[T]his Court need not look beyond the case as its very lucid and precise standards will determine whether a taking has occurred."); ("[T]here is NO USE for the property whatsoever. Not one scintilla of evidence was proffered *649 by the State to prove, intimate or even suggest a theoretical possibility of any use for this propertynever mind a beneficial use. Not once did the State claim that there is, in fact, some use available for the Palazzolo parcel."); Brief of Appellant in No. 98-0333, pp. 5, 7, 9-10 (hereinafter Brief of Appellant) (restating, verbatim, assertions of Post Trial Memorandum quoted above). Responding to Palazzolo's claim, the State urged as a sufficient defense this now uncontested point: CRMC "would [have been] happy to have [Palazzolo] situate a home" on the uplands, "thus allowing [him] to realize 200,000 dollars." |
Justice Ginsburg | 2,001 | 5 | dissenting | Palazzolo v. Rhode Island | https://www.courtlistener.com/opinion/118459/palazzolo-v-rhode-island/ | on the uplands, "thus allowing [him] to realize 200,000 dollars." State's Post-Trial Memorandum in No. 88-0297 (Super. Ct., R. I.), p. 81; see also Brief of Appellees in No. 98-0333A, p. 25 (hereinafter Brief of Appellees) (Palazzolo "never even applied for the realistic alternative of using the entire parcel as a single unitary home-site"). The State did present some evidence at trial that more than one lot could be developed. See infra, at 653-654. And, in a supplemental post-trial memorandum addressing a then new Rhode Island Supreme Court decision, the State briefly urged that Palazzolo's claims would fail even under Penn Central. See ante, at 624. The evidence of additional uses and the post-trial argument directed to Penn Central, however, were underdeveloped and unnecessary, for Palazzolo himself, in his pleadings and at trial, pressed only a based claim that he had been denied all economically viable use of his property. Once the State demonstrated that an "economically beneficial" development was genuinely plausible, the State had established the analogy to : The record now showed "valuable use might still be made of the land." 477 U.S., ; see Brief of Appellees 24-25 (relying on ). The prospect of real development shown by the State warranted a ripeness dismissal of Palazzolo's complaint. Addressing the State's defense in terms, Palazzolo insisted that his land had "no use as a result of *650 CRMC's application of its regulations." Brief of Appellant 11. The Rhode Island Supreme Court rejected Palazzolo's argument, identifying in the record evidence that Palazzolo could build at least one home on the The court therefore concluded that Palazzolo's failure to seek permission for "development only of the upland portion of the parcel" meant that Palazzolo could not "maintain a claim that the CRMC ha[d] deprived him of all beneficial use of the property." It is true that the Rhode Island courts, in the course of ruling for the State, briefly touched base with Penn Central. Cf. ante, at 624. The critical point, however, underplayed by the Court, is that Palazzolo never raised or argued the Penn Central issue in the state system: not in his complaint; not in his trial court submissions; noteven after the trial court touched on the Penn Central issuein his briefing on appeal. The state high court decision, raising and quickly disposing of the matter, unquestionably permits us to consider the Penn Central issue. See But the ruling below does not change the reality essential here: Palazzolo litigated his takings claim, and it was incumbent on the State to defend against that claim, only under If Palazzolo's |
Justice Ginsburg | 2,001 | 5 | dissenting | Palazzolo v. Rhode Island | https://www.courtlistener.com/opinion/118459/palazzolo-v-rhode-island/ | State to defend against that claim, only under If Palazzolo's arguments in this Court had tracked his arguments in the state courts, his petition for certiorari would have argued simply that the Rhode Island courts got it wrong in failing to see that his land had "no use" at all because of CRMC's rules. Brief of Appellant 11. This Court likely would not have granted certiorari to review the application of and to the facts of Palazzolo's case. However, aided by new counsel, Palazzolo sought and in the exercise of this Court's discretion obtainedreview of two contentions he did not advance below. The first assertion is that the state regulations take the property under Penn Central. See Pet. for Cert. 20; Brief for Petitioner 47-50. The second argument is that the regulations *651 amount to a taking under an expanded rendition of covering cases in which a landowner is left with property retaining only a "few crumbs of value." Ante, at 631 (quoting Brief for Petitioner 37); Pet. for Cert. 20-22. Again, it bears repetition, Palazzolo never claimed in the courts below that, if the State were correct that his land could be used for a residence, a taking nonetheless occurred.[2] In support of his new claims, Palazzolo has conceded the very point on which the State properly relied to resist the simple claim presented below: that Palazzolo can obtain approval for one house of substantial economic value. Palazzolo does not merely accept the argument that the State advanced below. He now contends that the evidence proffered by the State in the Rhode Island courts supports the claims he presents here, by demonstrating that only one house would be approved. See Brief for Petitioner 13 ("[T]he uncontradicted evidence was that CRMC would not deny [Palazzolo] permission to build one single-family home on the small upland portion of his property." (emphasis deleted)); Pet. for Cert. 15 (the extent of development permitted on the land is "perfectly clear: one single-family home and nothing more"). As a logical matter, Palazzolo's argument does not stand up. The State's submissions in the Rhode Island courts hardly establish that Palazzolo could obtain approval for only one house of value. By showing that Palazzolo could have obtained approval for a $200,000 house (rather than, say, two houses worth $400,000), the State's submissions established only a floor, not a ceiling, on the value of permissible *652 development. For a floor value was all the State needed to defeat Palazzolo's simple claim. Furthermore, Palazzolo's argument is unfair: The argument transforms the State's legitimate defense to the only claim Palazzolo |
Justice Ginsburg | 2,001 | 5 | dissenting | Palazzolo v. Rhode Island | https://www.courtlistener.com/opinion/118459/palazzolo-v-rhode-island/ | transforms the State's legitimate defense to the only claim Palazzolo stated below into offensive support for other claims he states for the first time here. Casting away fairness (and fairness to a State, no less), the Court indulges Palazzolo's bait-and-switch maneuver. The Court concludes that "there is no genuine ambiguity in the record as to the extent of permitted development on the " Ante, at 623. Two theories are offered to support this conclusion. First, the Court asserts, it is "too late in the day" for the State to contend the uplands give the property more than $200,000 in value; Palazzolo "stated" in his petition for certiorari that the property has "an estimated worth of $200,000," and the State cited that contention "as fact" in its Brief in Opposition. Ante, at 622. But in the cited pages of its Brief in Opposition, the State simply said it "would" approve a "single home" worth $200,000. Brief in Opposition 4, 19. That statement does not foreclose the possibility that the State would also approve another home, adding further value to the property. To be sure, the Brief in Opposition did overlook Palazzolo's change in his theory of the case, a change that, had it been asserted earlier, could have rendered insufficient the evidence the State intelligently emphasized below. But the State's failure to appreciate that Palazzolo had moved the pea to a different shell hardly merits the Court's waiver finding. The only precedent cited for the waiver, a footnote in is not remotely on point. Ante, at 622. The landowner in had invoked a "finding" of fact by the state court, and this Court deemed the State's challenge to that finding waived because the challenge was not timely raised. -1022, n. 9. There is nothing extraordinary about this Court's deciding a case on the findings made by a *653 state court. Here, however, the "fact" this Court has stopped the State from contestingthat the property has value of only $200,000was never found by any court. That valuation was simply asserted, inaccurately, see infra this page and 654, in Palazzolo's petition for certiorari. This Court's waiver ruling thus amounts to an unsavory invitation to unscrupulous litigants: Change your theory and misrepresent the record in your petition for certiorari; if the respondent fails to note your machinations, you have created a different record on which this Court will review the case. The Court bolsters its waiver finding by asserting that the $200,000 figure is "well founded" in the record. Ante, at 623. But, as earlier observed, an absence of multiple valuation possibilities in the |
Justice Ginsburg | 2,001 | 5 | dissenting | Palazzolo v. Rhode Island | https://www.courtlistener.com/opinion/118459/palazzolo-v-rhode-island/ | earlier observed, an absence of multiple valuation possibilities in the record cannot be held against the State, for proof of more than the $200,000 development was unnecessary to defend against the claim singularly pleaded below. And in any event, the record does not warrant the Court's conclusion. The Court acknowledges "testimony at trial suggesting the existence of an additional upland parcel elsewhere on the property" on which a second house might be built. Ante, at 623. The Court discounts that prospect, however, on the ground that development of the additional parcel would require a new road forbidden under CRMC's regulations. Yet the one witness on whose testimony the Court relies, Steven M. Clarke, himself concluded that it would be "realistic to apply for" development at more than one location. Tr. 612 (June 25-26, 1997). Clarke added that a state official, Russell Chateauneuf, "gave [Clarke] supporting information saying that [multiple applications] made sense." The conclusions of Clarke and Chateauneuf are confirmed by the testimony of CRMC's executive director, Grover Fugate, who agreed with Palazzolo's counsel during cross-examination that Palazzolo might be able to build "on two, perhaps three, perhaps four of the lots." ; see also Tr. of Oral Arg. 27 ("[T]here *654 is uncertainty as to what additional upland there is and how many other houses can be built."). The ambiguities in the record thus are substantial. They persist in part because their resolution was not required to address the claim Palazzolo presented below, and in part because Palazzolo failed ever to submit an accurate survey of his property. Under the circumstances, I would not step into the role of supreme topographical fact finder to resolve ambiguities in Palazzolo's favor. Instead, I would look to, and rely on, the opinion of the state court whose decision we now review. That opinion states: "There was undisputed evidence in the record that it would be possible to build at least one single-family home on the existing upland area." This Court cites nothing to warrant amendment of that finding.[3] * * * In sum, as I see this case, we still do not know "the nature and extent of permitted development" under the regulation in question, I would therefore affirm the Rhode Island Supreme Court's judgment. |
Justice Marshall | 1,974 | 15 | dissenting | Richardson v. Ramirez | https://www.courtlistener.com/opinion/109083/richardson-v-ramirez/ | The Court today holds that a State may strip ex-felons who have fully paid their debt to society of their fundamental right to vote without running afoul of the Fourteenth Amendment. This result is, in my view, based on an unsound historical analysis which already has been rejected by this Court. In straining to reach that result, I believe that the Court has also disregarded important limitations on its jurisdiction. For these reasons, I respectfully dissent. I A brief retracing of the procedural history of this case is necessary to a full understanding of my views. Each of the respondents, the plaintiffs below,[] had been convicted *57 of a felony unrelated to voting and had fully served his term of incarceration and parole. Each applied to register to vote in his respective countyRamirez in San Luis Obispo County, Lee in Monterey County, and Gill in Stanislaus County. All three were refused registration because, under applicable provisions of the California Constitution, "no person convicted of any infamous crime shall ever exercise the privileges of an elector."[2] The three named plaintiffs filed a petition for a writ of mandate in the California Supreme Court, invoking its original jurisdiction. Plaintiffs challenged the State's disenfranchisement of ex-felons as being violative of the Equal Protection Clause of the Fourteenth Amendment and sought issuance of a peremptory writ of mandate to compel their registration. The complaint labeled the suit as brought "individually and on behalf of all other persons who are ineligible to register to vote in California solely by reason of a conviction of a felony other than an election code felony" and who had fully served their terms of incarceration and parole. The complaint named, as defendants, the election officials who had refused to register them, "individually and as representatives of the class of all other County Clerks and Registrars of Voters who have the duty of determining for their respective counties whether any ex-felon will be denied the right to vote." *58 The three named election officials did not contest the action and represented to the state court that they would permit the named plaintiffs and all similarly situated ex-felons in their counties to register and to vote. The representative of the Secretary of State of California, also named as a defendant, has similarly agreed not to contest the suit.[3] At this point in the litigation all of the named plaintiffs had been voluntarily afforded the relief they were seeking by the election officials in their respective counties. Subsequently, the petitioner in this Court, Viola Richardson, as County Clerk of Mendocino County, filed |
Justice Marshall | 1,974 | 15 | dissenting | Richardson v. Ramirez | https://www.courtlistener.com/opinion/109083/richardson-v-ramirez/ | Court, Viola Richardson, as County Clerk of Mendocino County, filed a motion to intervene in the proceedings before the California Supreme Court. She indicated to the court that she was being sued in a separate action in a lower state court by an ex-felon seeking to register in her county and that the decision in this case would be dispositive of the legal issue in that controversy. The State Supreme Court ordered Richardson added as a named defendant in the instant action, but did not name the ex-felon suing her as a plaintiff or named class representative herein. In its opinion, the California Supreme Court found the case not to be moot and took the opportunity to address the merits of the Fourteenth Amendment issue. It indicated that, in its view, the ex-felon disenfranchisement provision of the California Constitution and its implementing statutes violated the Equal Protection Clause. The state court did not, however, afford the plaintiffs the relief they sought. The court denied the peremptory writ of mandate. Although the California Supreme Court did not issue a writ ordering Richardson to register either the ex-felon *59 suing her or any other potential elector in her county, she sought review of the state court's decision by way of writ of certiorari in this Court. The election officials in the named plaintiffs' counties did not seek review and the Secretary of State filed a memorandum opposing review by this Court. A There are a number of reasons why I do not believe this case is properly before us at this time. First, I am persuaded that the judgment of the California Supreme Court rests on an adequate and independent state ground. "This Court from the time of its foundation has adhered to the principle that it will not review judgments of state courts that rest on adequate and independent state grounds. Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion." Plaintiffs sought, from the California Supreme Court, a writ of mandate compelling their registration. The state court denied that relief. The entirety of the judgment of that court is as follows: "The alternative writ, having served its purpose, is discharged, and the petition for peremptory writ is denied."[4] *60 |
Justice Marshall | 1,974 | 15 | dissenting | Richardson v. Ramirez | https://www.courtlistener.com/opinion/109083/richardson-v-ramirez/ | discharged, and the petition for peremptory writ is denied."[4] *60 The accompanying opinion indicates that the California court did not consider the case before it to be moot and that, in its view, the plaintiffs' assertion that the disenfranchisement provisions were unconstitutional was well taken. Since the court nonetheless denied plaintiffs the relief they sought, we can only conclude that it did so on independent state law grounds. Cf. For example, a writ of mandate being discretionary, the state court may have declined its issuance simply because the named plaintiffs had already been registered and mandate relief seemed unnecessary.[5] There is certainly no indication that the decision to deny the writ was based on the state court's view on any federal question. This Court creates an interesting anomaly by purporting to reverse the judgment of the California court. Since that court denied a writ of mandate to compel the registration of ex-felons, the only disposition consistent with this Court's view that the California disenfranchisement provisions are constitutional would be to affirm the judgment below. By reversing, the Court apparently directs the issuance of the peremptory writ. This anomaly demonstrates that this is a classic example of a case where "the same judgment would be rendered by the state court after we corrected its views of federal laws," ; hence we can but offer an advisory opinion here. Whether we agree or disagree with the state court's view of the constitutionality of the challenged provisions, the judgment of the state court will necessarily remain to deny the writ of mandate. The Court is aware of this problem and purports to resolve it by speculating that the California court may *6 have afforded plaintiffs declaratory relief. Such speculation is totally unfounded. Neither the opinion nor the judgment of the court below even mentions declaratory relief. The plaintiffs did not seek a declaratory judgment. The California Constitution on its face appears to bar the State Supreme Court from issuing a declaratory judgment in an original proceeding such as the one before us, since it limits that court's original jurisdiction to "proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition." Calif. Const., Art. 6, 0 (Supp. 974). Exclusive jurisdiction for suits seeking declaratory relief is vested, by statute, in the State Superior Courts.[6] This Court's basis for construing the judgment of the court below as affording declaratory relief is its argument that because the California Supreme Court is the highest court of the State, its observations on the constitutionality of the challenged disenfranchisement provisions are apt to be heeded by state |
Justice Marshall | 1,974 | 15 | dissenting | Richardson v. Ramirez | https://www.courtlistener.com/opinion/109083/richardson-v-ramirez/ | challenged disenfranchisement provisions are apt to be heeded by state officials. It is true that the opinion of the California court did indicate a view on the merits of the plaintiffs' constitutional claim. But this Court's power "is to correct wrong judgments, not to revise opinions." One could always argue that where a state court had commented on a matter of federal law, state officials would heed those comments. To say that such comments are a "declaration of federal law" reviewable by this Court is a rationale that would reach every case in which the state court decision rests on adequate *62 state grounds, rendering that doctrine a virtual nullity. The Court also cites two cases for the proposition that the California Supreme Court can issue a declaratory judgment in an original proceeding. But, on closer inspection, the cases cited by the Court, ante, at 4 n. 3, merely demonstrate that California courts, whose jurisdiction is not limited by any equivalent to Art. III, are free to render advisory opinions.[7] There is little doubt *63 that many public officials would heed such an advisory opinion from the California Supreme Court and they would also heed an advisory opinion issued by this Court, but that does not free us from the constitutional limitations on our jurisdiction. Because I believe that the judgment of the California court was based on adequate and independent state grounds, I do not think we have jurisdiction to consider any other issues presented by this case. B Assuming arguendo, that the California Supreme Court did grant a declaratory judgment, I still believe that we are without jurisdiction because no case or controversy is presented. The Court seems willing to concede that the claims of the named plaintiffs may well be moot. Ante, at 36. The Court, however, premises its *64 jurisdiction on the assumption that there is a live controversy between the named petitioner in this Court and the unnamed plaintiff class members in her own county. To reach this conclusion, it is essential for the Court to conclude that this case is, in fact, a class action and that, in the circumstances of this case, it is appropriate to look to unnamed class members to determine whether there is a live controversy. I am forced to point out that one of the crucial premises upon which the Court bases its assumption of jurisdiction the existence of a class actionis highly speculative. I am persuaded that the California court never treated this case as a class action. As the majority notes, the case was titled a class |
Justice Marshall | 1,974 | 15 | dissenting | Richardson v. Ramirez | https://www.courtlistener.com/opinion/109083/richardson-v-ramirez/ | As the majority notes, the case was titled a class action by its originators and the show-cause order merely tracked the language of the complaint. But the California court was, of course, not bound by that designation. In the entirety of its lengthy opinion, the California court does not once refer to this suit as a class action, to respondents as class representatives, to the existence of unnamed parties or to any other indicia of class-action status. Rather, the state court describes the case as simply "a proceeding for writ of mandate brought by three ex-felons to compel respondent election officials to register them as voters." 507 P. 2d, at 346. The opinion proceeds to list the three plaintiffs and, in a footnote, to explain that the only other plaintiffs were the League of Women Voters and three nonprofit organizations which support the interests of ex-felons. The opinion describes the defendants as the election officials of San Luis Obispo, Monterey, and Stanislaus Counties and the Secretary of State "in his capacity [as] chief elections officer of California," and notes that "[u]pon application we ordered the Mendocino County clerk [the petitioner here] joined as an additional party [defendant]." at 202 n. n. This description of the parties *65 plainly indicates that this suit was not treated as a class action by the state court. I think it highly inappropriate that on the basis of nothing but speculation, this case be fashioned into a class action, for the first time, in this Court. C Even assuming that this case is a class action, I still would not agree that it is properly before us. I do not believe that we can look beyond the named class members to find a case or controversy in the circumstances of this case. The Court seems to hold that review is not foreclosed by the possible mootness of the named plaintiffs' claim because, but for the California Supreme Court's decision, unnamed class members would still be subject to the challenged disenfranchisement, hence the case presents, as to unnamed class members, an issue capable of repetition, yet evading review. I disagree. As the Court properly notes, a general rule of justiciability is that one may not represent a class of which he is not a part. Thus, as a general proposition, a federal court will not look to unnamed class members to establish the case-or-controversy requirement of Art. III.[8] But, the "evading review" doctrine of Southern Pacific Terminal 29 U.S. 498, 55 (9), as recently applied in (972), provides a limited exception to the general rule an |
Justice Marshall | 1,974 | 15 | dissenting | Richardson v. Ramirez | https://www.courtlistener.com/opinion/109083/richardson-v-ramirez/ | (972), provides a limited exception to the general rule an exception necessary to insure that judicial review is not foreclosed in cases where intervening events threaten invariably to moot the named plaintiff's claim for relief. *66 The necessity for looking beyond the named class members in this limited category of cases is evidenced by our decision in in which the Court struck down a durational residence requirement for voting. The suit had been brought to compel the registration of the named plaintiff and the members of the class he represented in order that they might participate in an election scheduled for August 6, 970. The Federal Court did not order preliminary relief in time for the August election and, by the time the Court decided the case, the next election was scheduled for November 970. By then, the named plaintiff would have met the challenged three-month requirement. The Court, nonetheless, rejected the State's argument that the controversy over the validity of the three-month requirement was therefore moot. By the time the appeal reached this Court, the only named plaintiff had also satisfied the one-year state residence requirement. We nonetheless reached the merits, observing that "[a]lthough appellee [the only named plaintiff] now can vote, the problem to voters posed by the Tennessee residence requirements is ` "capable of repetition, yet evading review." ' 394 U.S. 84, 86" 405 U.S., at Both this Court and the Court found that, although the named plaintiff had satisfied the challenged residence requirements and would no longer be disenfranchised thereby, the case was not moot. The challenged requirement remained applicable to unnamed class members,[9] and the *67 issue presented was likely to evade review. Obviously the mere passage of a few months would invariably have rendered a challenge to the residence requirements by individual named plaintiffs mootthreatening virtually to foreclose judicial review. A similar situation was presented in 40 U.S. 3 relied on by the California court. We there held that although a woman who was not pregnant at the time the suit was filed did not have standing to challenge the constitutionality of the Texas abortion laws, a continuing controversy over the constitutionality of those laws existed as to a named plaintiff who was pregnant when the suit was filed, even though she may not have been pregnant at later stages of the appeal. We concluded that this case provided a classic example of an issue capable of repetition, yet evading review, hence the termination of the plaintiff's pregnancy while the case was on appeal did not render the case moot even though a woman |
Justice Marshall | 1,974 | 15 | dissenting | Richardson v. Ramirez | https://www.courtlistener.com/opinion/109083/richardson-v-ramirez/ | did not render the case moot even though a woman whose pregnancy has ended is no more affected by the abortion laws than one who was not pregnant at the time the suit was filed. "[T]he human gestation period is so short that pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, appellate review will be effectively denied." at 25. There are two common threads running through these casesin each the challenged statute would continue to be applied, but the named plaintiff's claim would inevitably mature into mootness pending resolution of the lawsuit. In Roe, the termination of pregnancy, in the passage of the residence requirement period, and in other voting cases, the occurrence of an election,[0] deprived *68 the named plaintiff of a continuing controversy over the application of the challenged statute. In each instance, the mere passage of time threatened to insulate a constitutional deprivation from judicial review, and it is that danger which served as the rationale for rejecting suggestions of mootness. Where an invalid statute would thus continue to be applied simply because judicial review of a live controversy involving the named plaintiff was invariably foreclosedthe issue would be capable of repetition yet evading review. Accordingly, the Southern Pacific doctrine requires the satisfaction of two tests in order to provide an answer to a suggestion of mootness. First, the claimed deprivation must, in fact, be "capable of repetition." This element is satisfied where, even though the named plaintiff's immediate controversy has been mooted by intervening events, either he or unnamed class members may continue to suffer the alleged constitutional deprivation in the future. The case before us clearly satisfies this first element of the Southern Pacific doctrine test. Since the California court declined to order any county clerk to *69 register ex-felons, presumably the challenged disenfranchisement provisions could continue to be applied to unnamed class members in counties other than those in which the named plaintiffs reside.[] Second, the issue presented must be likely to evade review, but for invocation of the Southern Pacific doctrine. It is on the "evading review" element that the Court's analysis fails. Because the claim raised in this case concerns not a time-related but rather a status-based deprivation, there is no issue evading review and no reason to look beyond the named plaintiffs.[2] This is *70 not a situation where, by the time a case reaches this Court, it will always be too late to grant the named plaintiff relief. If and when an ex-felon is refused access to the voting |
Justice Marshall | 1,974 | 15 | dissenting | Richardson v. Ramirez | https://www.courtlistener.com/opinion/109083/richardson-v-ramirez/ | and when an ex-felon is refused access to the voting rolls because of his past criminal record, an intervening election will not moot his claim for relief and the status giving rise to his disenfranchisement will not inevitably terminate pending review. There are clearly ways in which a challenge to the California disenfranchisement provisions could reach this Court. The California Supreme Court has not issued a writ of mandate compelling the registration of any ex-felon.[3] If such a potential voter is, in fact, refused registration, a controversy suitable for resolution by this Court will be presented. The suit brought against petitioner Richardson, by an ex-felon resident of her own county, raising the same issues as those presented by this case, is presently pending in a California intermediate appellate court.[4] In that case, petitioner Richardson did, in fact, deny the plaintiff registration because he was an ex-felon. Once that case completes its passage through the state courts, it could well serve as a vehicle for our review of the California disenfranchisement provisions. *7 That is, of course, but one example of how the issue presented here could properly reach this Court. This case does not therefore benefit from the Southern Pacific doctrine's authority to look to unnamed class members to establish a case or controversy. That the California Supreme Court appears to have found the plaintiffs' claims not to be moot does not detract from this conclusion since "[e]ven in cases arising in the state courts, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction." North 404 U.S. 2, (97). Thus, unlike the Court, I am persuaded that we can look only to the named plaintiffs to satisfy the case-or-controversy requirement of Art. III. D The named plaintiffs here were registered only because the clerks in their counties had voluntarily abandoned an allegedly illegal practice of disenfranchising ex-felons, and we have said that "[m]ere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave `[t]he defendant free to return to his old ways.'. [But a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United 393 U.S. 99, (8); accord, United (953). Accordingly, whether the named plaintiffs have a live controversy with the clerks in their own counties would depend on the likelihood of future disenfranchisement.[5] But we need not consider that question here because *72 none of the election officials in the named plaintiffs' counties sought |
Justice Marshall | 1,974 | 15 | dissenting | Richardson v. Ramirez | https://www.courtlistener.com/opinion/109083/richardson-v-ramirez/ | of the election officials in the named plaintiffs' counties sought review in this Court and none is now before us. The sole petitioner before this Court is Viola Richardson. None of the named plaintiffs are residents of her county. While those named plaintiffs may or may not have a live controversy with the clerks in their own counties, they surely do not have one with petitioner Richardson. While Richardson may well have a live controversy with ex-felons in her own county over the validity of the disenfranchisement laws, those ex-felons are not before this Court, and she has no dispute with the named plaintiffs. In sum, there is no controversy between the parties before this Court. Petitioner Richardson seeks to use the named plaintiffs' controversy with their own county clerks as a vehicle for this Court to issue an advisory opinion on the issue presented by the suit brought against her by an ex-felon in her own county. Such a decision would violate the " `oldest and most consistent thread in the federal law of justiciability that the federal courts will not give advisory opinions.' " (8). II Since the Court nevertheless reaches the merits of the constitutionality of California's disenfranchisement of ex-felons, I find it necessary to register my dissent on the merits as well. The Court construes 2 of the Fourteenth Amendment as an express authorization for the States to disenfranchise former felons. Section 2 does except disenfranchisement for "participation in rebellion, or other crime" from the operation of its penalty provision. As the Court notes, however, there is little independent legislative history as to the crucial words "or *73 other crime"; the proposed 2 went to a joint committee containing only the phrase "participation in rebellion" and emerged with "or other crime" inexplicably tacked on.[6] In its exhaustive review of the lengthy legislative history of the Fourteenth Amendment, the Court has come upon only one explanatory reference for the "other crimes" provisiona reference which is unilluminating at best.[7] The historical purpose for 2 itself is, however, relatively clear and in my view, dispositive of this case. The Republicans who controlled the 39th Congress were concerned that the additional congressional representation of the Southern States which would result from the abolition of slavery might weaken their own political dominance.[8] There were two alternatives availableeither to limit southern representation, which was unacceptable on a long-term basis,[9] or to insure that southern Negroes, sympathetic to the Republican cause, would be enfranchised; but an explicit grant of suffrage to Negroes was thought politically unpalatable at the time.[20] Section 2 of the |
Justice Marshall | 1,974 | 15 | dissenting | Richardson v. Ramirez | https://www.courtlistener.com/opinion/109083/richardson-v-ramirez/ | thought politically unpalatable at the time.[20] Section 2 of the Fourteenth Amendment was the resultant compromise. *74 It put Southern States to a choiceenfranchise Negro voters or lose congressional representation.[2] The political motivation behind 2 was a limited one. It had little to do with the purposes of the rest of the Fourteenth Amendment. As one noted commentator explained: " `It became a part of the Fourteenth Amendment largely through the accident of political exigency rather than through the relation which it bore to the other sections of the Amendment.' "[22] "[I]t seems quite impossible to conclude that there was a clear and deliberate understanding in the House that 2 was the sole source of national authority to protect voting rights, or that it expressly recognized the states' power to deny or abridge the right to vote."[23] It is clear that 2 was not intended and should not be construed to be a limitation on the other sections of the Fourteenth Amendment. Section 2 provides a special remedyreduced representationto cure a particular form of electoral abusethe disenfranchisement of Negroes. There is no indication that the framers of the provisions intended that special penalty to be the exclusive remedy for all forms of electoral discrimination. This Court has repeatedly rejected that rationale. See (4); (5). Rather, a discrimination to which the penalty provision of 2 is inapplicable must still be judged against the Equal Protection Clause of to determine whether judicial or congressional remedies should be invoked. *75 That conclusion is compelled by this Court's holding in 400 U.S. 2 (970). Although 2 excepts from its terms denial of the franchise not only to ex-felons but also to persons under 2 years of age, we held that the Congress, under 5, had the power to implement the Equal Protection Clause by lowering the voting age to 8 in federal elections. As MR. JUSTICE BRENNAN, joined by MR. JUSTICE WHITE, as well as myself, there observed, 2 was intended as no more "than a remedy supplementary, and in some conceivable circumstances indispensable, to other congressional and judicial remedies available under and 5." The Court's references to congressional enactments contemporaneous to the adoption of the Fourteenth Amendment, such as the Reconstruction Act and the readmission statutes, are inapposite. They do not explain the purpose for the adoption of 2 of the Fourteenth Amendment. They merely indicate that disenfranchisement for participation in crime was not uncommon in the States at the time of the adoption of the Amendment. Hence, not surprisingly, that form of disenfranchisement was excepted from the application of the special penalty |
Justice Marshall | 1,974 | 15 | dissenting | Richardson v. Ramirez | https://www.courtlistener.com/opinion/109083/richardson-v-ramirez/ | disenfranchisement was excepted from the application of the special penalty provision of 2. But because Congress chose to exempt one form of electoral discrimination from the reduction-of-representation remedy provided by 2 does not necessarily imply congressional approval of this disenfranchisement.[24] By providing a special remedy for disenfranchisement *76 of a particular class of voters in 2, Congress did not approve all election discriminations to which the 2 remedy was inapplicable, and such discriminations thus are not forever immunized from evolving standards of equal protection scrutiny. Cf. U.S. 68, 638-639 There is no basis for concluding that Congress intended by 2 to freeze the meaning of other clauses of the Fourteenth Amendment to the conception of voting rights prevalent at the time of the adoption of the Amendment. In fact, one form of disenfranchisement one-year durational residence requirements specifically authorized by the Reconstruction Act, one of the contemporaneous enactments upon which the Court relies to show the intendment of the framers of the Fourteenth Amendment, has already been declared unconstitutional by this Court in (972). Disenfranchisement for participation in crime, like durational residence requirements, was common at the time of the adoption of the Fourteenth Amendment. But "constitutional concepts of equal protection are not immutably frozen like insects trapped in Devonian amber." 469 F.2d 222, 226 (CA9 972). We have repeatedly observed: "[T]he Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed *77 to be the limits of fundamental rights." (6). Accordingly, neither the fact that several States had ex-felon disenfranchisement laws at the time of the adoption of the Fourteenth Amendment, nor that such disenfranchisement was specifically excepted from the special remedy of 2, can serve to insulate such disenfranchisement from equal protection scrutiny. III In my view, the disenfranchisement of ex-felons must be measured against the requirements of the Equal Protection Clause of of the Fourteenth Amendment. That analysis properly begins with the observation that because the right to vote "is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government," voting is a "fundamental" right. As we observed in at 336: "There is no need to repeat now the labors undertaken in earlier cases to analyze [the] right to vote and to explain in detail the judicial role in reviewing state statutes that selectively distribute the |
Justice Marshall | 1,974 | 15 | dissenting | Richardson v. Ramirez | https://www.courtlistener.com/opinion/109083/richardson-v-ramirez/ | judicial role in reviewing state statutes that selectively distribute the franchise. In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. See, e. g., 398 U.S. 49, 42-422, 426 (970); 395 U.S. 62, ; 395 U.S. 70, ; (6); (5); *78 We concluded: "[I]f a challenged statute grants the right to vote to some citizens and denies the franchise to others, `the Court must determine whether the exclusions are necessary to promote a compelling state interest.' " (Emphasis in original.) To determine that the compelling-state-interest test applies to the challenged classification is, however, to settle only a threshold question. "Compelling state interest" is merely a shorthand description of the difficult process of balancing individual and state interests that the Court must embark upon when faced with a classification touching on fundamental rights. Our other equal protection cases give content to the nature of that balance. The State has the heavy burden of showing, first, that the challenged disenfranchisement is necessary to a legitimate and substantial state interest; second, that the classification is drawn with precisionthat it does not exclude too many people who should not and need not be excluded; and, third, that there are no other reasonable ways to achieve the State's goal with a lesser burden on the constitutionally protected interest. E. g., ; 395 U.S. 62, ; see 40 U.S. 752, ; cf. Memorial 45 U.S. 250 (974); 37 U.S. 45, (3); (0). I think it clear that the State has not met its burden of justifying the blanket disenfranchisement of former felons presented by this case. There is certainly no basis for asserting that ex-felons have any less interest in the democratic process than any other citizen. Like everyone else, their daily lives are deeply affected and changed by the decisions of government. See As the Secretary of State of California observed in his *79 memorandum to the Court in support of respondents in this case: "It is doubtful whether the state can demonstrate either a compelling or rational policy interest in denying former felons the right to vote. The individuals involved in the present case are persons who have fully paid their debt to society. They are as much affected by the actions of government as any other citizens, and have as much of a right to participate in governmental decision-making. Furthermore, the denial of the right to vote to such persons is a hindrance to the efforts of society to rehabilitate former felons |
Justice Marshall | 1,974 | 15 | dissenting | Richardson v. Ramirez | https://www.courtlistener.com/opinion/109083/richardson-v-ramirez/ | hindrance to the efforts of society to rehabilitate former felons and convert them into law-abiding and productive citizens."[25] It is argued that disenfranchisement is necessary to prevent vote frauds. Although the State has a legitimate and, in fact, compelling interest in preventing election fraud, the challenged provision is not sustainable on that ground. First, the disenfranchisement provisions are patently both overinclusive and underinclusive. The provision is not limited to those who have demonstrated a marked propensity for abusing the ballot by violating election Rather, it encompasses all former felons and there has been no showing that ex-felons generally are any more likely to abuse the ballot than the remainder of the population. See 469 F. 2d. at 225. In contrast, many of those convicted of violating election laws are treated as misdemeanants and are not barred from voting at all. It seems clear that the classification here is not tailored to achieve its articulated goal, since it crudely excludes large numbers of otherwise qualified voters. See v. Union Free *80 School at ; 395 U.S. 70, Moreover, there are means available for the State to prevent voting fraud which are far less burdensome on the constitutionally protected right to vote. As we said in the State "has at its disposal a variety of criminal laws that are more than adequate to detect and deter whatever fraud may be feared." Cf. (5); 308 U.S. 47, 64 (939). The California court's catalogue of that State's penal sanctions for election fraud surely demonstrates that there are adequate alternatives to disenfranchisement. "Today the Elections Code punishes at least 76 different acts as felonies, in 33 separate sections; at least 60 additional acts are punished as misdemeanors, in 40 separate sections; and 4 more acts are declared to be felony-misdemeanors. Among this plethora of offenses we take particular note, in the present connection, of the felony sanctions against fraudulent registrations ( 220), buying and selling of votes ( 2000-2008), intimidating voters by threat or bribery ( 2930-2935), voting twice, or fraudulently voting without being entitled to do so, or impersonating another voter ( 03, 29430-2943), fraud or forgery in casting absentee ballots ( 4690-4692), tampering with voting machines ( 5280) or ballot boxes ( 7090-7092), forging or altering election returns ( 2900-2903), and so interfering `with the officers holding an election or conducting a canvass, or with the voters lawfully exercising their rights of voting at an election, as to prevent the election or canvass from being fairly held and lawfully conducted' ( 7093)." 9 Cal. 3d, at *8 25-26, 507 P.2d, at 355-356 (footnotes |
Justice Marshall | 1,974 | 15 | dissenting | Richardson v. Ramirez | https://www.courtlistener.com/opinion/109083/richardson-v-ramirez/ | Cal. 3d, at *8 25-26, 507 P.2d, at 355-356 (footnotes omitted). Given the panoply of criminal offenses available to deter and to punish electoral misconduct, as well as the statutory reforms and technological changes which have transformed the electoral process in the last century, election fraud may no longer be a serious danger.[26] Another asserted purpose is to keep former felons from voting because their likely voting pattern might be subversive of the interests of an orderly society. See 380 F.2d 5, 45 (CA2 7). Support for the argument that electors can be kept from the ballot box for fear they might vote to repeal or emasculate provisions of the criminal code, is drawn primarily from this Court's decisions in 4 U.S. 5 (885), and 33 U.S. 333 (890). In the Court upheld the disenfranchisement of anyone who had ever entered into a bigamous or polygamous marriage and in the Court sanctioned, as a condition to the exercise of franchise, the requirement of an oath that the elector did not "teach, advise, counsel or encourage any person to commit the crime of bigamy or polygamy." The Court's intent was clear"to withdraw all political influence from those who are practically hostile to" the goals of certain criminal ; To the extent and approve the doctrine that citizens can be barred from the ballot box because they would vote to change the existing criminal law, those decisions are surely of minimal continuing precedential value. We have since explicitly held that such "differences of opinion cannot justify excluding [any] group *82 from `the franchise,' " -; see Communist Party of 44 U.S. (974); 398 U.S. 49, (970). "[I]f they are residents, they, as all other qualified residents, have a right to an equal opportunity for political representation. `Fencing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible." See Although, in the last century, this Court may have justified the exclusion of voters from the electoral process for fear that they would vote to change laws considered important by a temporal majority, I have little doubt that we would not countenance such a purpose today. The process of democracy is one of change. Our laws are not frozen into immutable form, they are constantly in the process of revision in response to the needs of a changing society. The public interest, as conceived by a majority of the voting public, is constantly undergoing reexamination. This Court's holding in and that a State may disenfranchise a class of voters to "withdraw all political influence from |
Justice Marshall | 1,974 | 15 | dissenting | Richardson v. Ramirez | https://www.courtlistener.com/opinion/109083/richardson-v-ramirez/ | a class of voters to "withdraw all political influence from those who are practically hostile" to the existing order, strikes at the very heart of the democratic process. A temporal majority could use such a power to preserve inviolate its view of the social order simply by disenfranchising those with different views. Voters who opposed the repeal of prohibition could have disenfranchised those who advocated repeal "to prevent persons from being enabled by their votes to defeat the criminal laws of the country." Today, presumably those who support the legalization of marihuana could be barred *83 from the ballot box for much the same reason. The ballot is the democratic system's coin of the realm. To condition its exercise on support of the established order is to debase that currency beyond recognition. Rather than resurrect and I would expressly disavow any continued adherence to the dangerous notions therein expressed.[27] The public purposes asserted to be served by disenfranchisement have been found wanting in many quarters. When this suit was filed, 23 States allowed ex-felons full access to the ballot. Since that time, four more States have joined their ranks.[28] Shortly after lower federal *84 courts sustained New York's and Florida's disenfranchisement provisions, the legislatures repealed those Congress has recently provided for the restoration of felons' voting rights at the end of sentence or parole in the of Columbia. D. C. Code -02 (7) The National Conference on Uniform State *85 Laws,[29] the American Law Institute,[30] the National Probation and Parole Association,[3] the National Advisory Commission on Criminal Justice Standards and Goals,[32] the President's Commission on Law Enforcement and the Administration of Justice,[33] the California League of Women Voters,[34] the National Democratic Party,[35] and the Secretary of State of California[36] have all strongly endorsed full suffrage rights for former felons. The disenfranchisement of ex-felons had "its origin in the fogs and fictions of feudal jurisprudence and *86 doubtless has been brought forward into modern statutes without fully realizing either the effect of its literal significance or the extent of its infringement upon the spirit of our system of government." 4 Okla. 728, 73, 39 P. 948, (94). I think it clear that measured against the standards of this Court's modern equal protection jurisprudence, the blanket disenfranchisement of ex-felons cannot stand. I respectfully dissent. MR. JUSTICE DOUGLAS, agreeing with Part I-A of this opinion, dissents from a reversal of the judgment below as he cannot say that it does not rest on an independent state ground. See 45 U.S. 304 (DOUGLAS, J., in chambers). |
Justice Brennan | 1,975 | 13 | dissenting | Rose v. Hodges | https://www.courtlistener.com/opinion/2621078/rose-v-hodges/ | I dissent on two grounds: first, because the Court errs in reading the record to include a final holding of the Court of Appeals declaring the commutations to be invalid; *23 and, second, because if there were such a final holding, summary disposition of the question of the validity of the commutationscertainly one of first impression in this Courtis particularly inappropriate.1] That the "commutations" have not been finally declared invalid clearly emerges from the record of the proceedings in the District Court and in the Court of Appeals. The petition for habeas corpus alleged five errors by the state courts. Three ) attacked respondents' convictions, the other two the sentences (invalid jury sentence and unconstitutional commutations). The District Court held that respondents had failed to exhaust state remedies on all of these issues except the alleged invalidity of the jury sentence; accordingly, the District Court issued a show-cause order "solely on the issue that the jury allegedly failed to specify the degree of murder in the verdicts." Hodges v. Rose, No. C-73-442 (WD Tenn., Nov. 15, 1973). The State accordingly filed an answer dealing only with this issue, and the District Court decided only that issue, rejecting respondents' claim on the merits. This question was therefore the only claim that was ripe for appeal; specifically, there was no decision of the District Court on the constitutionality of the commutations that was or could have been the subject of respondents' appeal to the Court of Appeals.2] *24 Nevertheless, it is of course true that the initial opinion of the Sixth Circuit contains the following language: "The] commutation followed by some eight days an order of the Tennessee Court of Criminal Appeals vacating the order imposing the death penalty and remanding the case to the trial court for punishment determination in the light of ], and for the reason that there were therefore no viable death sentences to commute, we hold the purported commutation and the concomitant imposition of committed sic] sentences for terms of 99 years invalid." Hodges v. Rose, No. 74-1461 (CA6, Feb. 25, 1975). (Emphasis added.) The same opinion goes on to affirm the decision on the merits of the only question decided by the District Court, namely, the jury-sentence issue, and then observes that the State had confessed error on the exhaustion point. Accordingly, the judgment was "for further proceedings consistent herewith." This necessarily must have meant that the three constitutional attacks on the convictions *25 should be addressed on the merits by the District Court. The sua sponte comments on the commutations thus made no sense since |
Justice Brennan | 1,975 | 13 | dissenting | Rose v. Hodges | https://www.courtlistener.com/opinion/2621078/rose-v-hodges/ | sponte comments on the commutations thus made no sense since that issue would never arise if the convictions were set aside on any of the three grounds. Not surprisingly, therefore, the State sought rehearing. The State dispositively argued, first, that the Sixth Circuit was precluded from addressing the commutation issue since the District Court had carefully confined its decision on the merits to the validity of the jury sentence. The State argued, second, that there had been no opportunity to argue the commutation question in the District Court and that no record had been made on the issue, and, third, the commutation issue had not been briefed in the Sixth Circuit. Fourth, and finally, the State arguedwhat surely must have been crystal clear that the commutation question would never be reached if respondents prevailed on their challenge to the validity of their convictions. True, as a good lawyer's would, the State's petition for rehearing challenged in any event the soundness of the statement that the commutations were invalid. But the relief sought on rehearing was excision of the language quoted above and remand "to the District Court for consideration of all issues." The Court of Appeals obviously recognized its error. The opinion on rehearing, while not deleting the whole statement, did delete the language emphasized above and left only the factual statement of what had occurred: "The] commutation followed by some eight days an order by the Tennessee Court of Criminal Appeals vacating the order imposing the] death penalty and remanding the case to the trial court] for punishment determination in the light of ]." Hodges v. Rose, No. 74-1461 (CA6, June 10, 1975). Significantly the opinion on rehearing also squarely held *26 that the District Court had erred in finding a failure to exhaust as to the commutation issue. On this record, therefore, the only proper disposition is denial of the petition for certiorari. At the least, we should vacate and remand to the Sixth Circuit for clarification of whether the validity of the commutations was addressed and decided. In any event, summary disposition of the issue of the validity of the commutations is strikingly inappropriate. There is no record in the lower courts on the commutation issue, because the District Court limited the habeas proceeding to the validity of the jury sentence. More importantly, the issue is one of first impression in this Court, and it surely merits briefing and oral argument. For example, I find troublesome the question whether (since there existed no viable death sentences to commute) the Governor's action should be treated as imposing the |
Justice Brennan | 1,975 | 13 | dissenting | Rose v. Hodges | https://www.courtlistener.com/opinion/2621078/rose-v-hodges/ | commute) the Governor's action should be treated as imposing the 99-year sentences without affording respondents constitutionally secured safeguards required when sentences are imposed. If the Governor had not acted, resentencing would have been by a jury at a proceeding highlighted by the usual safeguards, none of which applied to the Governor's action. The question is plainly not insubstantial; in we held that constitutional safeguards (there the right to counsel) applied to the sentencing stage. Was the commutation in this case actually the sentencing stage since no death sentence existed to commute when the Governor acted? Also, the due process dimensions of the right to present evidence relevant to sentencing was left open in If respondents were "sentenced" by the Governor, were they denied due process when not afforded that opportunity, even assuming that the Federal Constitution permits States to adopt executive in preference to *27 judicial sentencing? I agree that the Constitution allows Tennessee to empower the Governor to reduce a death penalty to a term of years without resort to judicial proceedings. But the Court's disposition assumes, without any in-depth analysis, that the instant case involves such "commutations" despite the fact that respondents' death sentences were voided and were therefore nonexistent when the Governor acted. I would deny the petition for certiorari on my view that there is no holding of the Court of Appeals regarding the commutations to be reviewed. In any event, rather than disposing of the case summarily, the Court should grant the petition and set the case for oral argument. |
Justice Marshall | 1,976 | 15 | majority | Oil Workers v. Mobil Oil Corp. | https://www.courtlistener.com/opinion/109480/oil-workers-v-mobil-oil-corp/ | Section 8 (a) (3) of the National Labor Relations Act, as amended, 29 U.S. C. 158 (a) (3), permits employers as a matter of federal law to enter into agreements with unions to establish union or agency shops.[1] Section 14 (b) of the Act, 29 U.S. C. 164 (b), however, allows individual States and Territories to exempt themselves from 8 (a) (3) and to enact so-called "right-to-work" laws prohibiting union or agency shops.[2] We must decide *410 whether, under 14 (b), Texas' right-to-work laws can void an agency-shop agreement covering unlicensed seamen who, while hired in Texas and having a number of other contacts with the State, spend the vast majority of their working hours on the high seas. I Petitioners (hereinafter Union)[3] represent the unlicensed seamen who work on respondent employer's oil tankers. In November 1969 the Union and respondent entered into a collective-bargaining agreement which provided for an agency shop: "For the duration of the Agreement all employees hired shall, as a condition of employment, become members of the Union and/ or in the alternative pay the regular union dues and initiation fees within 31 days from the employment date." App. 281. Almost two years after entering into the agreement, respondent filed suit in the United States District Court for the Eastern District of Texas under 301 of the Labor Management Relations Act, 29 U.S. C. 185, claiming that the agency-shop provision was invalid and unenforceable because it violated Texas' right-to-work laws.[4] Uncontested evidence was presented at trial concerning the relevant locations of various aspects of the relationship *411 between the Union, the respondent, and the seamen. Because this evidence bears heavily on the contentions of the parties, we shall summarize it in some detail. Respondent is a division of Mobil Oil a New York corporation, and operates a fleet of eight oceangoing tankers which transport respondent's petroleum products from Texas to Atlantic coast ports. Respondent is headquartered in Beaumont, Tex., and maintains its personnel records there. Sixty percent of the applications to be unlicensed seamen on respondent's ships are made in Beaumont and 40% in New York. The final hiring decisions are made in Beaumont. Of the 289 unlicensed seamen who are employed to man the tankers, 123 maintain residence in Texas, and 60 in New York.[5] One hundred and fifty-two of the seamen list Beaumont as their shipping porta designation that determines travel allowances to and from a seaman's residenceand the remainder list either New York or Providence, R. I. Seamen can elect to be paid their wages aboard ship, to have their paychecks sent from |
Justice Marshall | 1,976 | 15 | majority | Oil Workers v. Mobil Oil Corp. | https://www.courtlistener.com/opinion/109480/oil-workers-v-mobil-oil-corp/ | their wages aboard ship, to have their paychecks sent from the Beaumont office to designated recipients, or to use a combination of these two schemes. The collective-bargaining agreement whose agency-shop provision is at issue here was negotiated and executed in New York. It was re-executed in Texas. A typical trip by one of respondent's tankers from Beaumont, the Texas port, to Providence or New York, the Atlantic ports, takes from 4 1/2 to 5 days. Loading and unloading in port takes from 18 to 30 hours. No more than 10% to 20% of the seamen's work time is spent within the territorial bounds of Texas. Based on the above evidence, fully reflected in its *412 findings of fact, the District Court concluded that "[t]he acts performed in the State of Texas in the administration and performance of the collective bargaining agreement are such that the State of Texas is intimately concerned with the collective bargaining agreement and with the employees working thereunder." App. 29. Relying on this "intimate concern," the court held that the Texas right-to-work laws were applicable under 14 (b) and that the agency-shop provision was therefore void and unenforceable. A three-member division of the United States Court of Appeals for the Fifth Circuit, one judge dissenting, reversed. The court concluded that the Texas right-to-work laws could not apply since the employees' principal job situs is not in Texas but rather is on the high seas. On rehearing en banc the full court, over the dissent of six of its members, vacated the division opinion and affirmed the judgment of the District Court. The court identified and analyzed the interests that Texas has in the employment relationship at issue, placing special stress on the fact that all final hiring decisions take place in Texas. It held that "the federal labor legislation, the predominance of Texas contacts over any other jurisdiction, and the significant interest which Texas has in applying its right to work law to this employment relationship warrant application of the Texas law and, consequently, invalidation of the agency shop provision." We granted certiorari, and we now reverse. II All parties are agreed that the central inquiry in this case is whether 14 (b) permits the application of Texas' right-to-work laws to the agency-shop provision in the collective-bargaining agreement between the *413 Union and respondent.[6] Only if it is to be so read is the agency-shop provision unenforceable.[7] The parties are similarly agreed that a State can apply its right-to-work laws only with respect to employment relationships with which the State has adequate contact. The crux of |
Justice Marshall | 1,976 | 15 | majority | Oil Workers v. Mobil Oil Corp. | https://www.courtlistener.com/opinion/109480/oil-workers-v-mobil-oil-corp/ | with which the State has adequate contact. The crux of the differences between the parties concerns whether the contacts between Texas and the employment relationship in this case are sufficient to come under 14 (b). The Union, as well as the United States as amicus curiae, argues that the nature of the concerns at which 14 (b) is directed mandates that job situs be the controlling factor in determining the applicability of 14 (b), and that since in this case the employees' principal job situs is on the high seasoutside the territorial bounds of the Statethe agency-shop provision at issue is valid. Respondent contends that "[t]he sufficiency of a state's interest in applying its law is to be determined by looking to the whole employment relationship." Brief for Respondent 15. Giving weight to all the contacts between Texas and the employment relationship, see respondent concludes that Texas can validly apply its right-to-work laws under *414 14 (b). A third approach, the one adopted by the dissenting opinion in this case, is that the location of the hiring process should be determinative of the applicability of a State's right-to-work laws. Under this test, also, Texas' contacts in this case would be sufficient to apply its laws. In light of what we understand Congress' concerns in both 8 (a) (3) and 14 (b) to have been, we conclude that it is the employees' predominant job situs rather than a generalized weighing of factors or the place of hiring that triggers the operation of 14 (b). We hold that under 14 (b), right-to-work laws cannot void agreements permitted by 8 (a) (3) when the situs at which all the employees covered by the agreement perform most of their work is located outside of a State having such laws. Under 8 (3) of the Wagner Act, enacted in 1935, closed shops, union shops, and agency shops were all permitted. But in 1947, in 8 (a) (3), as added by the Taft-Hartley Act, Congress reacted to widespread abuses of closed-shop agreements by banning such arrangements.[8] Union and agency shops were still permitted, however, by 8 (a) (3). That provision makes employment discrimination in favor of or against labor unions an unfair labor practice but contains the following proviso which we have held to apply to agency shops as well as union shops, : "Provided, That nothing in this subchapter or in any other statute of the United States, shall preclude an employer from making an agreement with *415 a labor organization to require as a condition of employment membership therein on or after the thirtieth |
Justice Marshall | 1,976 | 15 | majority | Oil Workers v. Mobil Oil Corp. | https://www.courtlistener.com/opinion/109480/oil-workers-v-mobil-oil-corp/ | condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later" While permitting agency-and union-shop agreements, however, Congress provided certain safeguards for employees who were subject to such agreements. Thus a second proviso to 8 (a) (3) warns: "[N]o employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." Like its decision to ban closed-shop agreements, Congress' decision in 8 (a) (3) to provide these safeguards reflects a concern with compulsory unionism. But, in stark contrast to closed-shop agreements, these safeguards and the agency- or union-shop agreements to which they apply are not focused on the hiring process. Rather, they are directed at conditions that must be fulfilled by an employee only after he is already hired, at least 30 days after he is already working at the jobsite.[9] Moreover, quite apart from the safeguards that it *416 provided, Congress' decision to allow union-security agreements at all reflects its concern that, at least as a matter of federal law, the parties to a collective-bargaining agreement be allowed to provide that there be no employees who are getting the benefits of union representation without paying for them. Again, the focus of this concern is not the hiring process, but rather the benefits to be derived from union representation during the period of employmentwhile the employee is on the job. Thus, the Senate Committee Report on what became the Taft-Hartley Act observed that 8 (a) (3) gives "employers and unions who feel that [union-security] agreements promoted stability by eliminating `free riders' the right to continue such arrangements." S. Rep. No. 105, 80th Cong., 1st Sess., 7 (1947), 1 Leg. Hist. 413. "Congress recognized that in the absence of a union-security provision `many employees sharing the benefits of what unions are able to accomplish by collective bargaining will refuse to pay their share of the cost.' S. Rep. No. 105, 80th Cong., 1st Sess., p. 6, 1 Leg. Hist. L. M. R. A. 412." In short, insofar as it deals with union-security agreements less onerous than the closed-shop agreement, 8 (a) |
Justice Marshall | 1,976 | 15 | majority | Oil Workers v. Mobil Oil Corp. | https://www.courtlistener.com/opinion/109480/oil-workers-v-mobil-oil-corp/ | union-security agreements less onerous than the closed-shop agreement, 8 (a) (3) focuses in both effect and purpose on post-hiring conditions, conditions which have a major impact on the job situs. While 8 (a) (3) articulates a national policy that certain union-security agreements are valid as a matter of federal law, 14 (b) reflects Congress' decision that any *417 State or Territory that wishes to may exempt itself from that policy. Section 14 (b) allows a State or Territory to ban agreements "requiring membership in a labor organization as a condition of employment."[10] We have recognized that with respect to those state laws which 14 (b) permits to be exempted from 8 (a) (3)'s national policy "[t]here is conflict between state and federal law; but it is a conflict sanctioned by Congress with directions to give the right of way to state laws" Retail The question here, of course, is whether Texas' contacts with this employment relationship are adequate to call into play 14 (b)'s mandated deference to state law. Section 14 (b) simply mirrors that part of 8 (a) (3) which focuses on post-hiring conditions of employment. As its language reflects, 14 (b) was designed to make clear that 8 (a) (3) left the States free to pursue "their own more restrictive policies in the matter of union-security agreements." Algoma Plywood Since 8 (a) (3) already prohibits the closed shop, the more restrictive policies that 14 (b) allows the States to enact relate not to the hiring process but rather to conditions that would come into effect only after an individual is hired. It is evident, then, that 14 (b)'s primary concern is with state regulation of the post-hiring employer-employee-union relationship. And the center of the post-hiring relationship is the job situs, the place where the work that is the very raison d'être of the relationship is performed. The centrality of job situs to Congress' concern in 14 (b) is also suggested by the House Committee Report on the bill that contained the substance of what was *418 finally enacted as 14 (b). That report reflects the House's intent that agreements providing for agency or union shops would be valid "only if they are valid under the laws of any State in which they are to be performed." H. R. Rep. No. 245, 80th Cong., 1st Sess., 34 (1947), 1 Leg. Hist. 325. Where an agreement is "performed" may be open to some debate, but we think the most reasonable reading of the phrase is that union-security agreements are "performed" on the job situs. Thus, the import of the House |
Justice Marshall | 1,976 | 15 | majority | Oil Workers v. Mobil Oil Corp. | https://www.courtlistener.com/opinion/109480/oil-workers-v-mobil-oil-corp/ | on the job situs. Thus, the import of the House Report is that the committee viewed what became 14 (b) as allowing a State to ban agreements calling for work to be performed within the State. While the Taft-Hartley Act as finally enacted does not contain the precise wording of the House bill, there is no indication that any language changes were designed to alter this focus on the place of performance. Whether taken separately or together, the place of hiring and the other factors on which respondent reliesthe employees' place of residence, the locale of personnel records, the place at which payroll checks are written, etc.are not nearly as central to the concerns of 14 (b) as the employees' job situs. And, because of this close relationship between 14 (b) and job situs we conclude that 14 (b) does not allow enforcement of right-to-work laws with regard to an employment relationship whose principal job situs is outside of a State having such laws. Two practical considerations bolster our conclusion that the employees' predominant job situs should determine the applicability of a State's right-to-work laws under 14 (b). First, the use of a job situs test will minimize the possibility of patently anomalous extraterritorial applications of any given State's right-to-work laws. Use of a job situs test will insure that the laws of a State with a continuing and current relationship *419 with the employees in question will govern the validity vel non of any union-shop or agency-shop provision. On the other hand, if place of hiring were to be the determinative factor, Texas, for instance, could apply its right-to-work laws to employees who work solely in Connecticut simply because the relevant hiring decisions were madeperhaps many years agoin Texas. We cannot believe that it was Congress' purpose in passing 14 (b) to sanction such a result. A test such as the one adopted by the Court of Appeals that evaluates all of a jurisdiction's employment relationship contacts in order to determine the applicability of its right-to-work laws under 14 (b) might not result in irrational extraterritorial applications. But such a test does suffer the disadvantages of being both less predictable and more difficult of application than a job situs test. Under a job situs test, parties entering a collective-bargaining agreement will easily be able to determine in virtually all situations whether a union-or agency-shop provision is valid. By contrast, bargaining parties would often be left in a state of considerable uncertainty if they were forced to identify and evaluate all the relevant contacts of a jurisdiction in order to |
Justice Marshall | 1,976 | 15 | majority | Oil Workers v. Mobil Oil Corp. | https://www.courtlistener.com/opinion/109480/oil-workers-v-mobil-oil-corp/ | all the relevant contacts of a jurisdiction in order to determine the potential validity of a proposed union-security provision. The unpredictability that such a test would inject into the bargaining relationship, as well as the burdens of litigation that would result from it, make us unwilling to impute to Congress any intent to adopt such a test.[11] *420 III Having concluded that predominant job situs is the controlling factor in determining whether, under 14 (b), a State can apply its right-to-work laws to a given employment relationship, the disposition of this case is clear. Because most of the employees' work is done on the high seas, outside the territorial bounds of the State of Texas, Texas' right-to-work laws cannot govern the validity of the agency-shop provision at issue here. It is immaterial that Texas may have more contacts than any other State with the employment relationship in this case, since there is no reason to conclude under 14 (b) that in every employment situation some State or Territory's law with respect to union-security agreements must be applicable.[12] Federal policy favors permitting such agreements unless a State or Territory with a sufficient interest in the relationship expresses a contrary policy via right-to-work laws. It is therefore fully consistent with national labor policy to conclude, if the predominant job situs is outside the boundary of any State, that no State *421 has a sufficient interest in the employment relationship and that no State's right-to-work laws can apply. Accordingly, the judgment of the Court of Appeals is reversed. So ordered. MR. CHIEF JUSTICE BURGER concurs in the judgment. MR. |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | The Court's majority holds that the Establishment Cla is no bar to Ohio's payment of tuition at private religious elementary and middle under a scheme that systematically provides tax money to support the ' religious missions. The occasion for the legislation thus upheld is the condition of public education in the city of Cleveland. The record indicates that the are failing to serve their objective, and the vouchers in issue here are said to be needed to provide adequate alternatives to them. If there were an exc for giving short shrift to the Establishment Cla, it would probably apply here. But there is no exc. Constitutional limitations are placed on government to preserve constitutional values in hard cases, like these. "[C]onstitutional lines have to be drawn, and on one side of every one of them is an otherwise sympathetic case that provokes impatience with the Constitution and with the line. But constitutional lines are the price of constitutional government." I therefore respectfully dissent. The applicability of the Establishment Cla[1] to public funding of benefits to religious was settled in which inaugurated *687 the modern era of establishment doctrine. The Court stated the principle in words from which there was no dissent: "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion." The Court has never in so many words repudiated this statement, let alone, in so many words, overruled Today, however, the majority holds that the Establishment Cla is not offended by Ohio's Pilot Project Scholarship Program, under which students may be eligible to receive as much as $2,250 in the form of tuition vouchers transferable to religious In the city of Cleveland the overwhelming proportion of large appropriations for voucher money must be spent on religious if it is to be spent at all, and will be spent in amounts that cover almost all of tuition. The money will thus pay for eligible students' instruction not only in secular subjects but in religion as well, in that can fairly be characterized as founded to teach religious doctrine and to imbue teaching in all subjects with a religious dimension.[2] Public tax money will pay at a systemic level for teaching the covenant with Israel and Mosaic law in Jewish the primacy of the Apostle Peter and the Papacy in Catholic the truth of reformed Christianity in Protestant and the revelation to the Prophet in Muslim to speak only of major religious groupings in the Republic. *688 |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | speak only of major religious groupings in the Republic. *688 How can a Court consistently leave on the books and approve the Ohio vouchers? The answer is that it cannot. It is only by ignoring that the majority can claim to rest on traditional law in its invocation of neutral aid provisions and private choice to sanction the Ohio law. It is, moreover, only by ignoring the meaning of neutrality and private choice themselves that the majority can even pretend to rest today's decision on those criteria. I The majority's statements of Establishment Cla doctrine cannot be appreciated without some historical perspective on the Court's announced limitations on government aid to religious education, and its repeated repudiation of limits previously set. My object here is not to give any nuanced exposition of the cases, which I tried to classify in some detail in an opinion, see but to set out the broad doctrinal stages covered in the modern era, and to show that doctrinal bankruptcy has been reached today. Viewed with the necessary generality, the cases can be categorized in three groups. In the period from 1947 to 1968, the basic principle of no aid to religion through school benefits was unquestioned. Thereafter for some 15 years, the Court termed its efforts as attempts to draw a line against aid that would be divertible to support the religious, as distinct from the secular, activity of an institutional beneficiary. Then, starting in 1983, concern with divertibility was gradually lost in favor of approving aid in amounts unlikely to afford substantial benefits to religious when offered evenhandedly without regard to a recipient's religious character, and when channeled to a religious institution only by the genuinely free choice of some private individual. Now, the three stages are succeeded by a fourth, in which the substantial character of government aid is held to have no constitutional significance, and the espod criteria *689 of neutrality in offering aid, and private choice in directing it, are shown to be nothing but examples of verbal formalism. A inaugurated the modern development of Establishment Cla doctrine at the behest of a taxpayer challenging state provision of "tax-raised funds to pay the bus fares of parochial school pupils" on regular city bs as part of a general scheme to reimburse the public-transportation costs of children attending both public and private nonprofit Although the Court split, no Justice disagreed with the basic doctrinal principle already quoted, that "[n]o tax in any amount can be levied to support any religious activities or institutions, whatever form they may adopt to teach religion." |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | or institutions, whatever form they may adopt to teach religion." Nor did any Member of the Court deny the tension between the New Jersey program and the aims of the Establishment Cla. The majority upheld the state law on the strength of rights of religious-school students under the Free Exercise Cla, which was thought to entitle them to free public transportation when offered as a "general government servic[e]" to all schoolchildren, Despite the indirect benefit to religious education, the transportation was simply treated like "ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks," and, most significantly, "state-paid policemen, detailed to protect children going to and from church from the very real hazards of traffic," The dissenters, however, found the benefit to religion too pronounced to survive the general principle of no establishment, no aid, and they described it as running counter to every objective served by the establishment ban: New Jersey's of tax-raised funds forced a taxpayer to "contribut[e] to the propagation of opinions which he disbelieves in so far as religions differ," ; it exposed religious *690 liberty to the threat of dependence on state money, ; and it had already sparked political conflicts with opponents of public funding,[3] The difficulty of drawing a line that preserved the basic principle of no aid was no less obvious some 20 years later in Board of Ed. of Central School Dist. No. which upheld a New York law authorizing local school boards to lend textbooks in secular subjects to children attending religious a result not self-evident from 's "general government services" rationale. The Court relied instead on the theory that the in-kind aid could only be d for secular educational purposes, and found it relevant that "no funds or books are furnished [directly] to parochial and the financial benefit is to parents and children, not to" at 243 244.[4] Justice Black, who wrote led the dissenters. Textbooks, even when "`secular,' realistically will in some way inevitably tend to propagate the religious views of the favored sect," he wrote, and Justice Douglas raised other objections underlying the establishment ban, at -266. Religious would request those books most in keeping with their faiths, and public boards would have final approval power: "If the board of education supinely submits by approving and supplying the sectarian or sectarian-oriented textbooks, the struggle to keep church *691 and state separate has been lost. If the board resists, then the battle line between church and state will have been drawn" The scheme was sure to fuel strife among religions as well: "we can rest |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | to fuel strife among religions as well: "we can rest assured that a contest will be on to provide those books for religious which the dominant religious group concludes best reflect the theocentric or other philosophy of the particular church." Transcending even the sharp disagreement, however, was "the consistency in the way the Justices went about deciding the case Neither side rested on any facile application of the `test' or any simplistic reliance on the generality or evenhandedness of the state law. Disagreement concentrated on the true intent inferrable behind the law, the feasibility of distinguishing in fact between religious and secular teaching in church and the reality or sham of lending books to pupils instead of supplying books to [T]he stress was on the practical significance of the actual benefits received by the" B Allen recognized the reality that "religious pursue two goals, religious instruction and secular education," ; if state aid could be restricted to serve the second, it might be permissible under the Establishment Cla. But in the retrenchment that followed, the Court saw that the two educational functions were so intertwined in religious primary and secondary that aid to secular education could not readily be segregated, and the intrusive monitoring required to enforce the line itself raised Establishment Cla concerns about the entanglement of church and state. See To avoid *692 the entanglement, the Court's focus in the post-Allen cases was on the principle of divertibility, on discerning when ostensibly secular government aid to religious was susceptible to religious s. The greater the risk of diversion to religion (and the monitoring necessary to avoid it), the less legitimate the aid scheme was under the no-aid principle. On the one hand, the Court tried to be practical, and when the aid recipients were not so "pervasively sectarian" that their secular and religious functions were inextricably intertwined, the Court generally upheld aid earmarked for secular See, e. g., ; ; But otherwise the principle of nondivertibility was enforced strictly, with its violation being presumed in most cases, even when state aid seemed secular on its face. Compare, e. g., with ; and with The fact that the Court's suspicion of divertibility reflected a concern with the substance of the no-aid principle is apparent in its rejection of stratagems invented to dodge it. In Committee for Public Ed. & Religious for example, the Court struck down a New York program of tuition grants for poor parents and tax deductions for more affluent ones who sent their children to private The Court dismissed warranties of a "statistical guarantee," that the |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | The Court dismissed warranties of a "statistical guarantee," that the scheme provided at most 15% of the total cost of an education at a religious school, *693 which could presumably be matched to a secular 15% of a child's education at the school. And it rejected the idea that the path of state aid to religious might be dispositive: "far from providing a per se immunity from examination of the substance of the State's program, the fact that aid is disbursed to parents rather than to the is only one among many factors to be considered." The point was that "the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions."[5] thus held that aid to parents through tax deductions was no different from forbidden direct aid to religious for religious s. The focus remained on what the public money bought when it reached the end point of its disbursement. C Like all criteria requiring judicial assessment of risk, divertibility is an invitation to argument, but the object of the arguments provoked has always been a realistic assessment of facts aimed at respecting the principle of no aid. In however, that object began to fade, for Mueller started down the road from realism to formalism. *694 The aid in Mueller was in substance indistinguishable from that in see -397, n. 6, and both were substantively difficult to distinguish from aid directly to religious But the Court upheld the Minnesota tax deductions in Mueller, emphasizing their neutral availability for religious and secular educational expenses and the role of private choice in taking them. at 397 398. The Court relied on the same two principles in approving one student's of a vocational training subsidy for the blind at a religious college, characterizing it as aid to individuals from which religious could derive no "large" benefit: "the full benefits of the program [are not] limited, in large part or in whole, to students at sectarian institutions." School Dist. of Grand overruled in part by clarified that the notions of evenhandedness neutrality and private choice in Mueller did not apply to cases involving direct aid to religious which were still subject to the divertibility test. But in where the substance of the aid was identical to that in public employees teaching remedial secular classes in private the Court rejected the 30-year-old presumption of divertibility, and instead found it sufficient that the aid "supplement[ed]" but did not "supplant" existing educational services, 230. The Court, contrary to viewed the aid as aid "directly to the eligible students no matter where they |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | aid "directly to the eligible students no matter where they choose to attend school." In the 12 years between and the Court decided not only but two other cases emphasizing the form of neutrality and private choice over the substance of aid to religious s, but always in circumstances where any aid to religion was isolated and insubstantial. like Wit- *695 ters, involved one student's choice to spend funds from a general public program at a religious school (to pay for a signlanguage interpreter). As in the Court reasoned that "[d]isabled children, not sectarian [were] the primary beneficiaries ; to the extent sectarian benefit at all they are only incidental beneficiaries." like and involved an individual and insubstantial of neutrally available public funds for a religious purpose (to print an evangelical magazine). To be sure, the aid in was systemic and arguably substantial, but, as I have said, the majority there chose to view it as a bare "supplement." And this was how the controlling opinion described the systemic aid in our most recent case, as aid going merely to a "portion" of the religious ' budgets, The plurality in that case did not feel so uncomfortable about jettisoning substance entirely in favor of form, finding it sufficient that the aid was neutral and that there was virtual private choice, since any aid "first passes through the hands (literally or figuratively) of numerous private citizens who are free to direct the aid elsewhere." But that was only the plurality view. Hence it seems fair to say that it was not until today that substantiality of aid has clearly been rejected as irrelevant by a majority of this Court, just as it has not been until today that a majority, not a plurality, has held purely formal criteria to suffice for scrutinizing aid that ends up in the coffers of religious Today's cases are notable for their stark illustration of the inadequacy of the majority's chosen formal analysis. II Although it has taken half a century since to reach the majority's twin standards of neutrality and *696 free choice, the facts show that, in the majority's hands, even these criteria cannot convincingly legitimize the Ohio scheme. A Consider first the criterion of neutrality. As recently as two Terms ago, a majority of the Court recognized that neutrality conceived of as evenhandedness toward aid recipients had never been treated as alone sufficient to satisfy the Establishment Cla, -839 ; But at least in its limited significance, formal neutrality seemed to serve some purpose. Today, however, the majority employs the neutrality criterion in |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | purpose. Today, however, the majority employs the neutrality criterion in a way that renders it impossible to understand. Neutrality in this sense refers, of course, to evenhandedness in setting eligibility as between potential religious and secular recipients of public money. ; (three senses of "neutrality").[6] Thus, for example, the aid scheme in provided an eligible recipient with a scholarship to be d at any institution within a practically unlimited universe of 474 U.S., ; it did not tend to provide more or less aid depending on which one the scholarship recipient chose, and there was no indication that the maximum scholarship amount would be insufficient at secular *697 Neither did any condition of 's interpreter's subsidy favor religious education. See In order to apply the neutrality test, then, it makes sense to focus on a category of aid that may be directed to religious as well as secular and ask whether the scheme favors a religious direction. Here, one would ask whether the voucher provisions, allowing for as much as $2,250 toward private school tuition (or a grant to a public school in an adjacent district), were written in a way that skewed the scheme toward benefiting religious This, however, is not what the majority asks. The majority looks not to the provisions for tuition vouchers, (West Supp. 2002), but to every provision for educational opportunity: "The program permits the participation of all within the district, [as well as public in adjacent districts], religious or nonreligious." Ante, at 653 (emphasis in original). The majority then finds confirmation that "participation of all " satisfies neutrality by noting that the better part of total state educational expenditure goes to public ante, at 654, thus showing there is no favor of religion. The illogic is patent. If regular, public (which can get no voucher payments) "participate" in a voucher scheme with that can, and public expenditure is still predominantly on public then the majority's reasoning would find neutrality in a scheme of vouchers available for private tuition in districts with no secular private at all. "Neutrality" as the majority employs the term is, literally, verbal and nothing more. This, indeed, is the only way the majority can gloss over the very nonneutral feature of the total scheme covering "all ": public tutors may receive from the State no more than $324 per child to support extra tutoring (that is, the State's 90% of a total amount of $360), App. 166a, whereas the tuition voucher (which *698 turn out to be mostly religious) can receive up to $2,250, at 56a.[7] Why the majority does |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | receive up to $2,250, at 56a.[7] Why the majority does not simply accept the fact that the challenge here is to the more generous voucher scheme and judge its neutrality in relation to religious of voucher money seems very odd. It seems odd, that is, until one recognizes that comparable for applying the criterion of neutrality are also the comparable for applying the other majority criterion, whether the immediate recipients of voucher aid have a genuinely free choice of religious and secular to receive the voucher money. And in applying this second criterion, the consideration of "all " is ostensibly helpful to the majority position. B The majority addresses the issue of choice the same way it addresses neutrality, by asking whether recipients or potential recipients of voucher aid have a choice of public among secular alternatives to religious Again, however, the majority asks the wrong question and misapplies the criterion. The majority has confd choice in spending scholarships with choice from the entire menu of *699 possible educational placements, most of them open to anyone willing to attend a public school. I say "confd" beca the majority's new of the choice criterion, which it frames negatively as "whether Ohio is coercing parents into sending their children to religious" ante, at 655-656, ignores the reason for having a private choice enquiry in the first place. Cases since Mueller have found private choice relevant under a rule that aid to religious can be permissible so long as it first passes through the hands of students or parents.[8] The majority's view that all educational choices are comparable for purposes of choice thus ignores the whole point of the choice test: it is a criterion for deciding whether indirect aid to a religious school is legitimate beca it passes through private hands that can spend or the aid in a secular school. The question is whether the private hand is genuinely free to send the money in either a secular direction or a religious one. The majority now has transformed this question about private choice in channeling aid into a question about selecting from examples of state spending (on education) including direct spending on magnet and community public that goes through no private hands and could never reach a religious school under any circumstance. When the choice test is transformed from where to spend the money to where to go to school, it is cut loose from its very purpose. *700 Defining choice as choice in spending the money or channeling the aid is, moreover, necessary if the choice criterion is to function |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | is, moreover, necessary if the choice criterion is to function as a limiting principle at all. If "choice" is present whenever there is any educational alternative to the religious school to which vouchers can be endorsed, then there will always be a choice and the voucher can always be constitutional, even in a system in which there is not a single private secular school as an alternative to the religious school. See And beca it is unlikely that any participating private religious school will enroll more pupils than the generally available public system, it will be easy to generate numbers suggesting that aid to religion is not the significant intent or effect of the voucher scheme. That is, in fact, just the kind of rhetorical argument that the majority accepts in these cases. In addition to secular private (129 students), the majority considers public with tuition assistance (roughly 1,400 students), magnet (13,000 students), and community (1,900 students), and concludes that fewer than 20% of pupils receive state vouchers to attend religious Ante, at 659. (In fact, the numbers would seem even more favorable to the majority's argument if enrollment in traditional public without tutoring were considered, an alternative the majority thinks relevant to the private choice enquiry, ante, at 655.) Justice O'Connor focs on how much money is spent on each educational option and notes that at most $8.2 million is spent on vouchers for students attending religious ante, at 664 (concurring opinion), which is only 6% of the State's expenditure if one includes separate funding for Cleveland's community ($9.4 million) and magnet ($114.8 million) public The variations show how results may shift when a judge can pick and choose the alternatives to in the comparisons, and they also show what dependably comfortable results the choice criterion *701 will yield if the identification of relevant choices is wide open. If the choice of relevant alternatives is an open one, proponents of voucher aid will always win, beca they will always be able to find a "choice" somewhere that will show the bulk of public spending to be secular. The choice enquiry will be diluted to the point that it can screen out nothing, and the result will always be determined by selecting the alternatives to be treated as choices. Confining the relevant choices to spending choices, on the other hand, is not vulnerable to comparable criticism. Although leaving the selection of alternatives for choice wide open, as the majority would, virtually guarantees the availability of a "choice" that will satisfy the criterion, limiting the choices to spending choices will not |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | the criterion, limiting the choices to spending choices will not guarantee a negative result in every case. There may, after all, be cases in which a voucher recipient will have a real choice, with enough secular private school desks in relation to the number of religious ones, and a voucher amount high enough to meet secular private school tuition levels. See infra, at 704-707. But, even to the extent that choice-to-spend does tend to limit the number of religious funding options that pass muster, the choice criterion has to be understood this way in order, as I have said, for it to function as a limiting principle.[9] Otherwise *702 there is surely no point in requiring the choice to be a true or real or genuine one.[10] *703 It is not, of course, that I think even a genuine choice criterion is up to the task of the Establishment Cla when substantial state funds go to religious teaching; the discussion in Part III, infra, shows that it is not. The point is simply that if the majority wishes to claim that choice is a criterion, it must define choice in a way that can function as a criterion with a practical capacity to screen something out. If, contrary to the majority, we ask the right question about genuine choice to the vouchers, the answer shows that something is influencing choices in a way that aims the money in a religious direction: of 56 private in the district participating in the voucher program 46 of them are religious; 96.6% of all voucher recipients go to religious only 3.4% to nonreligious ones. See App. 281a 286a. Unfortunately for the majority position, there is no explanation for this that suggests the religious direction results simply from free choices by parents. One answer to these statistics, for example, which would be consistent with the genuine choice claimed to be operating, might be that 96.6% of families choosing to avail themselves of vouchers choose to educate their children in of their own religion. This would not, in my view, render the scheme constitutional, but it would speak to the majority's choice criterion. *704 Evidence shows, however, that almost two out of three families using vouchers to send their children to religious did not embrace the religion of those App. to Pet. for Cert. in No. 00-1777, p. 147a.[11] The families made it clear they had not chosen the beca they wished their children to be proselytized in a religion not their own, or in any religion, but beca of educational opportunity.[12] Even so, the fact |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | religion, but beca of educational opportunity.[12] Even so, the fact that some 2,270 students chose to apply their vouchers to of other religions, App. 281a286a, might be consistent with true choice if the students "chose" their religious over a wide array of private nonreligious options, or if it could be shown generally that Ohio's program had no effect on educational choices and thus no impermissible effect of advancing religious education. But both possibilities are contrary to fact. First, even if all existing nonreligious private in Cleveland were willing to accept large numbers of voucher students, only a few more than the 129 currently enrolled in such would be able to attend, as the total enrollment at all nonreligious private in Cleveland for kindergarten through eighth grade is only 510 children, see Brief for California Alliance for Public Schools as Amicus Curiae 15, and there is no indication that these have many open seats.[13] Second, the *705 $2,500 cap that the program places on tuition for participating low-income pupils has the effect of curtailing the participation of nonreligious : "nonreligious with higher tuition (about $4,000) stated that they could afford to accommodate just a few voucher students."[14] By comparison, the average tuition at participating Catholic in Cleveland in 1999-2000 was $1,592, almost $1,000 below the cap.[15] *706 Of course, the obvious fix would be to increase the value of vouchers so that existing nonreligious private and nonCatholic religious would be able to enroll more voucher students, and to provide incentives for educators to create new such given that few presently exist. Private choice, if as robust as that available to the seminarian in would then be "true private choice" under the majority's criterion. But it is simply unrealistic to presume that parents of elementary and middle school students in Cleveland will have a range of secular and religious choices even arguably comparable to the statewide program for vocational and higher education in And to get to that hypothetical point would require that such massive financial support be made available to religion as to disserve every objective of the Establishment Cla even more than the present scheme does. See Part IIIB, infra.[16] *707 There is, in any case, no way to interpret the 96.6% of current voucher money going to religious as reflecting a free and genuine choice by the families that apply for vouchers. The 96.6% reflects, instead, the fact that too few nonreligious school desks are available and few but religious can afford to accept more than a handful of voucher students. And contrary to the majority's assertion, ante, at |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | voucher students. And contrary to the majority's assertion, ante, at 654, public in adjacent districts hardly have a financial incentive to participate in the Ohio voucher program, and none has.[17] For the overwhelming number of children in the voucher scheme, the only alternative to the public is religious. And it is entirely irrelevant that the State did not deliberately design the network of private for the sake of channeling money into religious institutions. The criterion is one of genuinely free choice on the part of the private individuals who choose, and a Hobson's choice is not a choice, whatever the reason for being Hobsonian. III I do not dissent merely beca the majority has misapplied its own law, for even if I assumed arguendo that the *708 majority's formal criteria were satisfied on the facts, today's conclusion would be profoundly at odds with the Constitution. Proof of this is clear on two levels. The first is circumstantial, in the now discarded symptom of violation, the substantial dimension of the aid. The second is direct, in the defiance of every objective supposed to be served by the bar against establishment. A The scale of the aid to religious approved today is unprecedented, both in the number of dollars and in the proportion of systemic school expenditure supported. Each measure has received attention in previous cases. On one hand, the sheer quantity of aid, when delivered to a class of religious primary and secondary was suspect on the theory that the greater the aid, the greater its proportion to a religious school's existing expenditures, and the greater the likelihood that public money was supporting religious as well as secular instruction. As we said in Meek, "it would simply ignore reality to attempt to separate secular educational functions from the predominantly religious role" as the object of aid that comes in "substantial amounts." Cf. 413 U. S., (rejecting argument that tuition assistance covered only 15% of education costs, presumably secular, at religious ). Conversely, the more "attenuated [the] financial benefit that eventually flows to parochial" the more the Court has been willing to find a form of state aid permissible. Mueller,[18] *709 On the other hand, the Court has found the gross amount unhelpful for Establishment Cla analysis when the aid afforded a benefit solely to one individual, however substantial as to him, but only an incidental benefit to the religious school at which the individual chose to spend the State's money. See 474 U. S., ; cf. When neither the design nor the implementation of an aid scheme channels a series of |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | the implementation of an aid scheme channels a series of individual students' subsidies toward religious recipients, the relevant beneficiaries for establishment purposes, the Establishment Cla is unlikely to be implicated. The majority's reliance on the observations of five Members of the Court in as to the irrelevance of substantiality of aid in that case, see ante, at 651, is therefore beside the point in the matter before us, which involves considerable sums of public funds systematically distributed through thousands of students attending religious elementary and middle in the city of Cleveland.[19] *710 The Cleveland voucher program has cost Ohio taxpayers $33 million since its implementation in 1996 ($28 million in voucher payments, $5 million in administrative costs), and its cost was expected to exceed $8 million in the 2001-2002 school year. People for the American Way Foundation, Five Years and Counting: A Closer Look at the Cleveland Voucher Program 1-2 (Sept. 25, 2001) (hereinafter Cleveland Voucher Program) (cited in Brief for National School Boards Association et al. as Amici Curiae 9). These tax-raised funds are on top of the textbooks, reading and math tutors, laboratory equipment, and the like that Ohio provides to private worth roughly $600 per child. Cleveland Voucher Program 2.[20] The gross amounts of public money contributed are symptomatic of the scope of what the taxpayers' money buys for a broad class of religious-school students. In paying for practically the full amount of tuition for thousands of qualifying students,[21] cf. -783 the scholarships purchase everything that tuition purchases, be it instruction in math or indoctrination in faith. The consequences *711 of "substantial" aid hypothesized in Meek are realized here: the majority makes no pretense that substantial amounts of tax money are not systematically underwriting religious practice and indoctrination. B It is virtually superfluous to point out that every objective underlying the prohibition of religious establishment is betrayed by this scheme, but something has to be said about the enormity of the violation. I anticipated these objectives in discussing which cataloged them, the first being respect for freedom of conscience. Jefferson described it as the idea that no one "shall be compelled to support any religious worship, place, or ministry whatsoever," A Bill for Establishing Religious Freedom, in 5 The Founders' Constitution 84 even a "teacher of his own religious persuasion," ib and Madison thought it violated by any "`authority which can force a citizen to contribute three pence of his property for the support of any establishment.' " Memorial and Remonstrance ¶ 3, reprinted in -66. "Any tax to establish religion is antithetical to the command that |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | tax to establish religion is antithetical to the command that the minds of men always be wholly free," (internal quotation marks and citations omitted).[22] Madison's objection to three pence has simply been lost in the majority's formalism. As for the second objective, to save religion from its own corruption, Madison wrote of the "`experience that ecclesiastical *712 establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.' " Memorial and Remonstrance ¶ 7, reprinted in In Madison's time, the manifestations were "pride and indolence in the Clergy; ignorance and servility in the laity[,] in both, superstition, bigotry and persecution," ibid.; in the 21st century, the risk is one of "corrosive secularism" to religious and the specific threat is to the primacy of the ' mission to educate the children of the faithful according to the unaltered precepts of their faith. Even "[t]he favored religion may be compromised as political figures reshape the religion's beliefs for their own purposes; it may be reformed as government largesse brings government regulation." The risk is already being realized. In Ohio, for example, a condition of receiving government money under the program is that participating religious may not "discriminate on the basis ofreligion," (A)(4) (West Supp. 2002), which means the school may not give admission preferences to children who are members of the patron faith; children of a parish are generally consigned to the same admission lotteries as nonbelievers, 3313.977(A)(1)(c)(d). This indeed was the exact object of a 1999 amendment repealing the portion of a predecessor statute that had allowed an admission preference for "[c]hildren whose parents are affiliated with any organization that provides financial support to the school, at the discretion of the school." 3313.977(A)(1)(d) (West 1999). Nor is the State's religious antidiscrimination restriction limited to student admission policies: by its terms, a participating religious school may well be forbidden to choose a member of its own clergy to serve as teacher or principal over a layperson of a different religion claiming *713 equal qualification for the job.[23] Cf. National Catholic Educational Association, Balance Sheet for Catholic Elementary Schools: 2001 Income and Expenses 25 (2001) ("31% of [reporting Catholic elementary and middle] had at least one full-time teacher who was a religious sister"). Indeed, a separate condition that "[t]he school not teach hatred of any person or group on the basis of religion," 3313.976(A)(6) (West Supp. 2002), could be understood (or subsequently broadened) to prohibit religions from teaching traditionally legitimate articles of faith as to the error, sinfulness, or ignorance of others,[24] if they want government money for their |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | ignorance of others,[24] if they want government money for their *714 For perspective on this foot-in-the-door of religious regulation, it is well to remember that the money has barely begun to flow. Prior examples of aid, whether grants through individuals or in-kind assistance, were never significant enough to alter the basic fiscal structure of religious ; state aid was welcome, but not indispensable. See, e. g., ; But given the figures already involved here, there is no question that religious in Ohio are on the way to becoming bigger businesses with budgets enhanced to fit their new stream of tax-raised income. See, e. g., People for the American Way Foundation, A Painful Price 5, 9, 11 (Feb. 14, 2002) (of 91 participating in the Milwaukee program, 75 received voucher payments in excess of tuition, 61 of those were religious and averaged $185,000 worth of overpayment per school, justified in part to "raise low salaries"). The administrators of those same are also no doubt following the politics of a move in the Ohio State Senate to raise the current maximum value of a school voucher from $2,250 to the base amount of current state spending on each public school student ($4,814 for the 2001 fiscal year). See Bloedel, Bill Analysis of S. B. No. 89, 124th Ohio Gen. Assembly, regular session 2001-2002 (Ohio Legislative Service Commission). Ohio, in fact, is merely replicating the experience in Wisconsin, where a similar increase in the value of educational vouchers in Milwaukee has induced the creation of some 23 new private Public Policy Forum, Research Brief, vol. 90, no. 1, p. 3 (Jan. 23, 2002), some of which, we may safely surmise, are religious. New have presumably *715 pegged their financial prospects to the government from the start, and the odds are that increases in government aid will bring the threshold voucher amount closer to the tuition at even more expensive religious When government aid goes up, so does reliance on it; the only thing likely to go down is independence. If Justice Douglas in Allen was concerned with state agencies, influenced by powerful religious groups, choosing the textbooks that parochial would 392 U.S., how much more is there reason to wonder when dependence will become great enough to give the State of Ohio an effective veto over basic decisions on the content of curriculums? A day will come when religious will learn what political leverage can do, just as Ohio's politicians are now getting a lesson in the leverage exercised by religion. Increased voucher spending is not, however, the sole portent of growing regulation |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | spending is not, however, the sole portent of growing regulation of religious practice in the school, for state mandates to moderate religious teaching may well be the most obvious response to the third concern behind the ban on establishment, its inextricable link with social conflict. See ; -11. As appropriations for religious subsidy rise, competition for the money will tap sectarian religion's capacity for discord. "Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here one by numbers alone will benefit most, there another." (Rutledge, J., dissenting). Justice Breyer has addressed this issue in his own dissenting opinion, which I join, and here it is enough to say that the intensity of the expectable friction can be gauged by realizing that the scramble for money will energize not only contending sectarians, but taxpayers who take their liberty of conscience seriously. Religious teaching at taxpayer *716 expense simply cannot be cordoned from taxpayer politics, and every major religion currently espos social positions that provoke intense opposition. Not all taxpaying Protestant citizens, for example, will be content to underwrite the teaching of the Roman Catholic Church condemning the death penalty.[25] Nor will all of America's Muslims acquiesce in paying for the endorsement of the religious Zionism taught in many religious Jewish which combines "a nationalistic sentiment" in support of Israel with a "deeply religious" element.[26] Nor will every secular taxpayer be content to support Muslim views on differential treatment of the sexes,[27] or, for that matter, to fund the espousal of a wife's obligation of obedience to her husband, presumably taught in any adopting the articles of faith of the Southern Baptist Convention.[28] Views like these, and innumerable others, have been safe in the sectarian pulpits and classrooms of this Nation not only beca the Free Exercise Cla protects them directly, but beca the ban on supporting religious establishment has protected free exercise, by keeping it relatively private. With the arrival of vouchers in religious that privacy will go, and along with it will go confidence that religious disagreement will stay moderate. * * * If the divisiveness permitted by today's majority is to be avoided in the short term, it will be avoided only by action *717 of the political branches at the state and national levels. Legislatures not driven to desperation by the problems of public education may be able to see the threat in vouchers negotiable in sectarian Perhaps even cities with problems like Cleveland's will |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | in sectarian Perhaps even cities with problems like Cleveland's will perceive the danger, now that they know a federal court will not save them from it. My own course as a judge on the Court cannot, however, simply be to hope that the political branches will save us from the consequences of the majority's decision. 's statement is still the touchstone of sound law, even though the reality is that in the matter of educational aid the Establishment Cla has largely been read away. True, the majority has not approved vouchers for religious alone, or aid earmarked for religious instruction. But no scheme so clumsy will ever get before us, and in the cases that we may see, like these, the Establishment Cla is largely silenced. I do not have the option to leave it silent, and I hope that a future Court will reconsider today's dramatic departure from basic Establishment Cla principle. Justice Breyer, with whom Justice Stevens and Justice Souter join, dissenting. I join Justice Souter's opinion, and I agree substantially with Justice Stevens. I write separately, however, to emphasize the risk that publicly financed voucher programs pose in terms of religiously based social conflict. I do so beca I believe that the Establishment Cla concern for protecting the Nation's social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher program. And by explaining the nature of the concern, I hope to demonstrate why, in my view, "parental choice" cannot significantly alleviate the constitutional problem. See Part IV, infra. I The First Amendment begins with a prohibition, that "Congress shall make no law respecting an establishment of *718 religion," and a guarantee, that the government shall not prohibit "the free exercise thereof." These Clas embody an understanding, reached in the 17th century after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens, permits those citizens to "worship God in their own way," and allows all families to "teach their children and to form their characters" as they wish. C. Radcliffe, The Law & Its Compass 71 (1960). The Clas reflect the Framers' vision of an American Nation free of the religious strife that had long plagued the nations of Europe. See, e. g., Freund, Public Aid to Parochial Schools, ; B. Kosmin & S. One Nation Under God: Religion in Contemporary American Society 24 (First Amendment designed in "part to prevent the religious wars of Europe from entering the United States"). Whatever the Framers might have thought about particular |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | United States"). Whatever the Framers might have thought about particular 18th-century school funding practices, they undeniably intended an interpretation of the Religion Clas that would implement this basic First Amendment objective. In part for this reason, the Court's 20th-century Establishment Cla casesboth those limiting the practice of religion in public and those limiting the public funding of private religious educationfocd directly upon social conflict, potentially created when government becomes involved in religious education. In the Court held that the Establishment Cla forbids prayer in public elementary and secondary It did so in part beca it recognized the "anguish, hardship and bitter strife that could come when zealous religious groups struggl[e] with one another to obtain the Government's stamp of approval" And it added: "The history of governmentally established religion, both in England and in this country, showed that whenever *719 government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs." See also (striking down school-sanctioned prayer at high school graduation ceremony beca "potential for divisiveness" has "particular relevance" in school environment); School Dist. of Abington (Bible-reading program violated Establishment Cla in part beca it gave rise "to those very divisive influences and inhibitions of freedom" that come with government efforts to impose religious influence on "young impressionable [school] children"). In the Court held that the Establishment Cla forbids state funding, through salary supplements, of religious school teachers. It did so in part beca of the "threat" that this funding would create religious "divisiveness" that would harm "the normal political process." The Court explained: "[P]olitical debate and division are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which [the First Amendment's religious clas were] intended to protect." And in Committee for Public Ed. & Religious the Court struck down a state statute that, much like voucher programs, provided aid for parents whose children attended religious explaining that the "assistance of the sort here involved carries grave potential for continuing political strife over aid to religion." When it decided these 20th-century Establishment Cla cases, the Court did not deny that an American society *720 might have found a less clear-cut church/state separation compatible with social tranquility. Indeed, historians point out that during the early years of the Republic, American including the first public were Protestant in character. Their students recited Protestant prayers, read the King James version of the Bible, and learned Protestant religious ideals. See, |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | version of the Bible, and learned Protestant religious ideals. See, e. g., D. Tyack, Onward Christian Soldiers: Religion in the American Common School, in History and Education 217-226 (P. Nash ed. 1970). Those practices may have wrongly discriminated against members of minority religions, but given the small number of such individuals, the teaching of Protestant religions in did not threaten serious social conflict. See Kosmin & The 20th-century Court was fully aware, however, that immigration and growth had changed American society dramatically since its early years. By 1850, 1.6 million Catholics lived in America, and by 1900 that number rose to 12 million. Jeffries & Ryan, A Political History of the Establishment Cla, There were similar percentage increases in the Jewish population. Kosmin & -46. Not surprisingly, with this increase in numbers, members of nonProtestant religions, particularly Catholics, began to resist the Protestant domination of the public Scholars report that by the mid-19th century religious conflict over matters such as Bible reading "grew intense," as Catholics resisted and Protestants fought back to preserve their domination. Jeffries & Ryan, "Dreading Catholic domination," native Protestants "terrorized Catholics." P. Separation of Church and State 219 (2002). In some States "Catholic students suffered beatings or expulsions for refusing to read from the Protestant Bible, and crowds rioted over whether Catholic children could be *721 released from the classroom during Bible reading." Jeffries & Ryan, 100 Mich. L. Rev., The 20th-century Court was also aware that political efforts to right the wrong of discrimination against religious minorities in primary education had failed; in fact they had exacerbated religious conflict. Catholics sought equal government support for the education of their children in the form of aid for private Catholic But the "Protestant position" on this matter, scholars report, "was that public must be `nonsectarian' (which was usually understood to allow Bible reading and other Protestant observances) and public money must not support `sectarian' (which in practical terms meant Catholic)." And this sentiment played a significant role in creating a movement that sought to amend several state constitutions (often successfully), and to amend the United States Constitution (unsuccessfully) to make certain that government would not help pay for "sectarian" (i. e., Catholic) schooling for children. -305. See also These historical circumstances suggest that the Court, applying the Establishment Cla through the Fourteenth Amendment to 20th-century American society, faced an interpretive dilemma that was in part practical. The Court appreciated the religious diversity of contemporary American society. See It realized that the status quo favored some religions at the expense of others. And it understood the Establishment Cla |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | the expense of others. And it understood the Establishment Cla to prohibit (among other things) any such favoritism. Yet how did the Cla achieve that objective? Did it simply require the government to give each religion an equal chance to introduce religion into the primary a kind of "equal opportunity" approach to the interpretation of the Establishment Cla? Or, did that Cla avoid government favoritism of some religions by insisting upon "separation"that the government achieve *722 equal treatment by removing itself from the business of providing religious education for children? This interpretive choice arose in respect both to religious activities in public and government aid to private education. In both areas the Court concluded that the Establishment Cla required "separation," in part beca an "equal opportunity" approach was not workable. With respect to religious activities in the public how could the Cla require public primary and secondary school teachers, when reading prayers or the Bible, only to treat all religions alike? In many places there were too many religions, too diverse a set of religious practices, too many whose spiritual beliefs denied the virtue of formal religious training. This diversity made it difficult, if not impossible, to devise meaningful forms of "equal treatment" by providing an "equal opportunity" for all to introduce their own religious practices into the public With respect to government aid to private education, did not history show that efforts to obtain equivalent funding for the private education of children whose parents did not hold popular religious beliefs only exacerbated religious strife? As Justice Rutledge recognized: "Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here one [religious sect] by numbers [of adherents] alone will benefit most, there another. This is precisely the history of societies which have had an established religion and dissident groups." The upshot is the development of constitutional doctrine that reads the Establishment Cla as avoiding religious strife, not by providing every religion with an equal opportunity (say, to secure state funding or to pray in the public *723 ), but by drawing fairly clear lines of separation between church and stateat least where the heartland of religious belief, such as primary religious education, is at issue. II The principle underlying these casesavoiding religiously based social conflictremains of great concern. As religiously diverse as America had become when the Court decided its major 20th-century Establishment Cla cases, we are exponentially more diverse today. America boasts more than 55 different religious |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | more diverse today. America boasts more than 55 different religious groups and subgroups with a significant number of members. Graduate Center of the City University of New York, B. Kosmin, E. Mayer, & A. Keysar, American Religious Identification Survey 12-13 (2001). Major religions include, among others, Protestants, Catholics, Jews, Muslims, Buddhists, Hindus, and Sikhs. And several of these major religions contain different subsidiary sects with different religious beliefs. See Lester, Oh, Gods!, The Atlantic Monthly 37 (Feb. 2002). Newer Christian immigrant groups are "expressing their Christianity in languages, customs, and independent churches that are barely recognizable, and often controversial, for Europeanancestry Catholics and Protestants." H. Ebaugh & J. Chafetz, Religion and the New Immigrants: Continuities and Adaptations in Immigrant Congregations 4 (abridged student ed. 2002). Under these modern-day circumstances, how is the "equal opportunity" principle to workwithout risking the "struggle of sect against sect" against which Justice Rutledge warned? School voucher programs finance the religious education of the young. And, if widely adopted, they may well provide billions of dollars that will do so. Why will different religions not become concerned about, and seek to influence, the criteria d to channel this money to religious ? Why will they not want to examine the implementation of the programs that provide this moneyto determine, for example, *724 whether implementation has biased a program toward or against particular sects, or whether recipient religious are adequately fulfilling a program's criteria? If so, just how is the State to resolve the resulting controversies without provoking legitimate fears of the kinds of religious favoritism that, in so religiously diverse a Nation, threaten social dissension? Consider the voucher program here at issue. That program insists that the religious school accept students of all religions. Does that criterion treat fairly groups whose religion forbids them to do so? The program also insists that no participating school "advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion." (A)(6) (West Supp. 2002). And it requires the State to "revoke the registration of any school if, after a hearing, the superintendent determines that the school is in violation" of the program's rules. 3313.976(B). As one amicus argues, "it is difficult to imagine a more divisive activity" than the appointment of state officials as referees to determine whether a particular religious doctrine "teaches hatred or advocates lawlessness." Brief for National Committee for Public Education and Religious Liberty as Amicus Curiae 23. How are state officials to adjudicate claims that one religion or another is advocating, for example, civil |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | that one religion or another is advocating, for example, civil disobedience in response to unjust laws, the of illegal drugs in a religious ceremony, or resort to force to call attention to what it views as an immoral social practice? What kind of public hearing will there be in response to claims that one religion or another is continuing to teach a view of history that casts members of other religions in the worst possible light? How will the public react to government funding for that take controversial religious positions on topics that are of current popular interestsay, the conflict in the Middle East or the war on terrorism? Yet any major funding program *725 for primary religious education will require criteria. And the selection of those criteria, as well as their application, inevitably pose problems that are divisive. Efforts to respond to these problems not only will seriously entangle church and state, see 403 U. S., but also will promote division among religious groups, as one group or another fears (often legitimately) that it will receive unfair treatment at the hands of the government. I recognize that other nations, for example Great Britain and France, have in the past reconciled religious school funding and religious freedom without creating serious strife. Yet British and French societies are religiously more homogeneousand it bears noting that recent waves of immigration have begun to create problems of social division there as well. See, e. g., The Muslims of France, 75 Foreign Affairs 78 (1996) (describing increased religious strife in France, as exemplified by expulsion of teenage girls from school for wearing traditional Muslim scarves); Ahmed, Extreme Prejudice; Muslims in Britain, The Times of London, May 2, 1992, p. 10 (describing religious strife in connection with increased Muslim immigration in Great Britain). In a society as religiously diverse as ours, the Court has recognized that we must rely on the Religion Clas of the First Amendment to protect against religious strife, particularly when what is at issue is an area as central to religious belief as the shaping, through primary education, of the next generation's minds and spirits. See, e. g., Webster, On the Education of Youth in America (1790), in Essays on Education in the Early Republic 43, 53, 59 (F. Rudolph ed. 1965) ("[E]ducation of youth" is "of more consequence than making laws and preaching the gospel, beca it lays the foundation on which both law and gospel rest for success"); Pope Paul VI, Declaration on Christian Education (1965) ("[T]he Catholic school can be such an aid to the fulfillment of the |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | can be such an aid to the fulfillment of the mission of the People of God and to the fostering of dialogue between *726 the Church and mankind, to the benefit of both, it retains even in our present circumstances the utmost importance"). III I concede that the Establishment Cla currently permits States to channel various forms of assistance to religious for example, transportation costs for students, computers, and secular texts. See ; States now certify the nonsectarian educational content of religious school education. See, e. g., New Life Baptist Church Yet the consequence has not been great turmoil. But see, e. g., May, Charter School's Religious Tone; Operation of South Bay Academy Raises Church-State Questions, San Francisco Chronicle, Dec. 17, 2001, p. A1 (describing increased government supervision of charter after complaints that students were "studying Islam in class and praying with their teachers," and Muslim educators complaining of "`post-Sept. 11 anti-Muslim sentiment' "). School voucher programs differ, however, in both kind and degree from aid programs upheld in the past. They differ in kind beca they direct financing to a core function of the church: the teaching of religious truths to young children. For that reason the constitutional demand for "separation" is of particular constitutional concern. See, e. g., ; ("Court has been particularly vigilant in monitoring compliance with the Establishment Cla in elementary and secondary "). Private that participate in Ohio's program, for example, recognize the importance of primary religious education, for they pronounce that their goals are to "communicate the gospel," "provide opportunities to experience a faith community," "provide for growth in prayer," and "provide *727 instruction in religious truths and values." App. 408a, 487a. History suggests, not that such private school teaching of religion is undesirable, but that government funding of this kind of religious endeavor is far more contentious than providing funding for secular textbooks, computers, vocational training, or even funding for adults who wish to obtain a college education at a religious university. See Contrary to Justice O'Connor's opinion, ante, at 665-666 (concurring opinion), history also shows that government involvement in religious primary education is far more divisive than state property tax exemptions for religious institutions or tax deductions for charitable contributions, both of which come far closer to exemplifying the neutrality that distinguishes, for example, fire protection on the one hand from direct monetary assistance on the other. Federal aid to religiously based hospitals, ante, at 666 (O'Connor, J., concurring), is even further removed from education, which lies at the heartland of religious belief. Vouchers also differ in degree. The aid programs recently |
Justice Souter | 2,002 | 20 | second_dissenting | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | belief. Vouchers also differ in degree. The aid programs recently upheld by the Court involved limited amounts of aid to religion. But the majority's analysis here appears to permit a considerable shift of taxpayer dollars from public secular to private religious That fact, combined with the to which these dollars will be put, exacerbates the conflict problem. State aid that takes the form of peripheral secular items, with prohibitions against diversion of funds to religious teaching, holds significantly less potential for social division. In this respect as well, the secular aid upheld in differs dramatically from the present case. Although it was conceivable that minor amounts of money could have, contrary to the statute, found their way to the religious activities of the recipients, see that case is at worst the camel's nose, while the litigation before us is the camel itself. *728 IV I do not believe that the "parental choice" aspect of the voucher program sufficiently offsets the concerns I have mentioned. Parental choice cannot help the taxpayer who does not want to finance the religious education of children. It will not always help the parent who may see little real choice between inadequate nonsectarian public education and adequate education at a school whose religious teachings are contrary to his own. It will not satisfy religious minorities unable to participate beca they are too few in number to support the creation of their own private It will not satisfy groups whose religious beliefs preclude them from participating in a government-sponsored program, and who may well feel ignored as government funds primarily support the education of children in the doctrines of the dominant religions. And it does little to ameliorate the entanglement problems or the related problems of social division that Part II, describes. Consequently, the fact that the parent may choose which school can cash the government's voucher check does not alleviate the Establishment Cla concerns associated with voucher programs. V The Court, in effect, turns the clock back. It adopts, under the name of "neutrality," an interpretation of the Establishment Cla that this Court rejected more than half a century ago. In its view, the parental choice that offers each religious group a kind of equal opportunity to secure government funding overcomes the Establishment Cla concern for social concord. An Court found that "equal opportunity" principle insufficient; it read the Cla as insisting upon greater separation of church and state, at least in respect to primary education. See 413 U. S., In a society composed of many different religious creeds, I fear that this present departure from |
Justice Stevens | 1,983 | 16 | majority | Zant v. Stephens | https://www.courtlistener.com/opinion/110984/zant-v-stephens/ | The question presented is whether respondent's death penalty must be vacated because one of the three statutory aggravating circumstances found by the jury was subsequently held to be invalid by the Supreme Court of Georgia, although the other two aggravating circumstances were specifically upheld. The answer depends on the function of the jury's finding of an aggravating circumstance under Georgia's capital sentencing statute, and on the reasons that the aggravating circumstance at issue in this particular case was found to be in In January 1975 a jury in Bleckley County, Georgia, convicted respondent of the murder of Roy Asbell and sentenced him to death. The evidence received at the guilt phase of his trial, which included his confessions and the testimony of a number of witnesses, described these events: On August 19, 1974, while respondent was serving sentences for several burglary convictions and was also awaiting trial for escape, he again escaped from the Houston County Jail. In the next two days he committed two auto thefts, an armed robbery, and several burglaries. On August 21st, Roy Asbell interrupted respondent and an accomplice in the course of burglarizing the home of Asbell's son in Twiggs County. Respondent *865 beat Asbell, robbed him, and, with the aid of the accomplice, drove him in his own vehicle a short distance into Bleckley County. There they killed Asbell by shooting him twice through the ear at point blank range. At the sentencing phase of the trial the State relied on the evidence adduced at the guilt phase and also established that respondent's prior criminal record included convictions on two counts of armed robbery, five counts of burglary, and one count of murder. Respondent testified that he was "sorry" and knew he deserved to be punished, that his accomplice actually shot Asbell, and that they had both been "pretty high" on drugs. The State requested the jury to impose the death penalty and argued that the evidence established the aggravating circumstances identified in subparagraphs (b)(1), (b)(7), and (b)(9) of the Georgia capital sentencing statute.[1] The trial judge instructed the jury that under the law of Georgia "every person [found] guilty of Murder shall be punished by death or by imprisonment for life, the sentence to be fixed by the jury trying the case." App. 18. He explained that the jury was authorized to consider all of the evidence *866 received during the trial as well as all facts and circumstances presented in extenuation, mitigation, or aggravation during the sentencing proceeding. He then stated: "You may consider any of the following statutory aggravating circumstances which |
Justice Stevens | 1,983 | 16 | majority | Zant v. Stephens | https://www.courtlistener.com/opinion/110984/zant-v-stephens/ | may consider any of the following statutory aggravating circumstances which you find are supported by the evidence. One, the offense of Murder was committed by a person with a prior record of conviction for a Capital felony, or the offense of Murder was committed by a person who has a substantial history of serious assaultive criminal convictions. Two, the offense of Murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim. Three, the offense of Murder was committed by a person who has escaped from the lawful custody of a peace officer or place of lawful confinement. These possible statutory circumstances are stated in writing and will be out with you during your deliberations on the sentencing phase of this case. They are in writing here, and I shall send this out with you. If the jury verdict on sentencing fixes punishment at death by electrocution you shall designate in writing, signed by the foreman, the aggravating circumstances or circumstance which you found to have been proven beyond a reasonable doubt. Unless one or more of these statutory aggravating circumstances are proven beyond a reasonable doubt you will not be authorized to fix punishment at death."[2] The jury followed the court's instruction and imposed the death penalty. It designated in writing that it had found the aggravating circumstances described as "One" and "Three" in the judge's instruction.[3] It made no such finding with respect *867 to "Two."[4] It should be noted that the jury's finding under "One" encompassed both alternatives identified in the judge's instructions and in subsection (b)(1) of the statute that respondent had a prior conviction of a capital felony and that he had a substantial history of serious assaultive convictions. These two alternatives and the finding that the murder was committed by an escapee are described by the parties as the three aggravating circumstances found by the jury, but they may also be viewed as two statutory aggravating circumstances, one of which rested on two grounds. In his direct appeal to the Supreme Court of Georgia respondent did not challenge the sufficiency of the evidence supporting the aggravating circumstances found by the jury. Nor did he argue that there was any infirmity in the statutory definition of those circumstances. While his appeal was pending, however, the Georgia Supreme Court held in that the aggravating circumstance described in the second clause of (b)(1) "a substantial history of serious assaultive criminal convictions" was unconstitutionally vague.[5] Because such a finding had been made |
Justice Stevens | 1,983 | 16 | majority | Zant v. Stephens | https://www.courtlistener.com/opinion/110984/zant-v-stephens/ | was unconstitutionally vague.[5] Because such a finding had been made by the jury in this case, the Georgia Supreme Court, on its own motion, *868 considered whether it impaired respondent's death sentence. It concluded that the two other aggravating circumstances adequately supported the sentence. The state court reaffirmed this conclusion in a subsequent appeal from the denial of state habeas corpus relief.[6] After the Federal District Court had denied a petition for habeas corpus, the United States Court of Appeals for the Fifth Circuit considered two constitutional challenges to respondent's death sentence. That court first rejected his contention that the jury was not adequately instructed that it was permitted to impose life imprisonment rather than the death penalty even if it found an aggravating circumstance.[7] The court then held, however, that the death penalty was invalid because one of the aggravating circumstances found by the jury was later held unconstitutional. The Court of Appeals gave two reasons for that conclusion. First, it read as requiring that a jury verdict based on multiple grounds be set aside if the reviewing court cannot ascertain *869 whether the jury relied on an unconstitutional ground. The court concluded: "It is impossible for a reviewing court to determine satisfactorily that the verdict in this case was not decisively affected by an unconstitutional statutory aggravating circumstance. The jury had the authority to return a life sentence even if it found statutory aggravating circumstances. It is possible that even if the jurors believed that the other aggravating circumstances were established, they would not have recommended the death penalty but for the decision that the offense was committed by one having a substantial history of serious assaultive criminal convictions, an invalid ground." Second, it believed that the presence of the invalid circumstance "made it possible for the jury to consider several prior convictions of [respondent] which otherwise would not have been before it." In a petition for rehearing, the State pointed out that the evidence of respondent's prior convictions would have been admissible at the sentencing hearing even if it had not relied on the invalid circumstance.[8] The Court of Appeals then modified its opinion by deleting its reference to the possibility that the jury had relied on inadmissible evidence. It maintained, however, that the reference in the instructions to the invalid circumstance "may have unduly directed the jury's attention to his prior convictions." The court concluded: "It cannot be determined with the degree of certainty required in capital cases that the instruction did not make a critical difference in the jury's decision to impose the death penalty." |
Justice Stevens | 1,983 | 16 | majority | Zant v. Stephens | https://www.courtlistener.com/opinion/110984/zant-v-stephens/ | difference in the jury's decision to impose the death penalty." *870 We granted Warden Zant's petition for certiorari, The briefs on the merits revealed that different state appellate courts have reached varying conclusions concerning the significance of the invalidation of one of multiple aggravating circumstances considered by a jury in a capital case.[9] Although the Georgia Supreme Court had consistently stated that the failure of one aggravating circumstance does not invalidate a death sentence that is otherwise adequately supported,[10] we concluded that an exposition of the state-law premises for that view would assist in framing the precise federal constitutional issues presented by the Court of Appeals' holding. We therefore sought guidance from the Georgia Supreme Court pursuant to Georgia's statutory certification procedure. Ga. Code 24-4536[11] In its response to our certified question, the Georgia Supreme Court first distinguished Stromberg as a case in which the jury might have relied exclusively on a single invalid ground, noting that the jury in this case had expressly relied on valid and sufficient grounds for its verdict. The court then explained the state-law premises for its treatment of aggravating circumstances by analogizing the entire body of Georgia law governing homicides to a pyramid. It explained: "All cases of homicide of every category are contained within the pyramid. The consequences flowing to the *871 perpetrator increase in severity as the cases proceed from the base to the apex, with the death penalty applying only to those few cases which are contained in the space just beneath the apex. To reach that category a case must pass through three planes of division between the base and the apex. "The first plane of division above the base separates from all homicide cases those which fall into the category of murder. This plane is established by the legislature in statutes defining terms such as murder, voluntary manslaughter, involuntary manslaughter, and justifiable homicide. In deciding whether a given case falls above or below this plane, the function of the trier of facts is limited to finding facts. The plane remains fixed unless moved by legislative act. "The second plane separates from all murder cases those in which the penalty of death is a possible punishment. This plane is established by statutory definitions of aggravating circumstances. The function of the factfinder is again limited to making a determination of whether certain facts have been established. Except where there is treason or aircraft hijacking, a given case may not move above this second plane unless at least one statutory aggravating circumstance exists. Code Ann. 27-2534.1(c). "The third plane separates, from all |
Justice Stevens | 1,983 | 16 | majority | Zant v. Stephens | https://www.courtlistener.com/opinion/110984/zant-v-stephens/ | exists. Code Ann. 27-2534.1(c). "The third plane separates, from all cases in which a penalty of death may be imposed, those cases in which it shall be imposed. There is an absolute discretion in the factfinder to place any given case below the plane and not impose death. The plane itself is established by the factfinder. In establishing the plane, the factfinder considers all evidence in extenuation, mitigation and aggravation of punishment. Code Ann. 27-2503 and 27-2534.1. There is a final limitation on the imposition of the death penalty resting in the automatic appeal procedure: This court determines whether the penalty of death was imposed under the influence of passion, prejudice, *872 or any other arbitrary factor; whether the statutory aggravating circumstances are supported by the evidence; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. Code Ann. 27-2537. Performance of this function may cause this court to remove a case from the death penalty category but can never have the opposite result. "The purpose of the statutory aggravating circumstances is to limit to a large degree, but not completely, the factfinder's discretion. Unless at least one of the ten statutory aggravating circumstances exists, the death penalty may not be imposed in any event. If there exists at least one statutory aggravating circumstance, the death penalty may be imposed but the factfinder has a discretion to decline to do so without giving any reason. ; ; ). In making the decision as to the penalty, the factfinder takes into consideration all circumstances before it from both the guilt-innocence and the sentence phases of the trial. These circumstances relate both to the offense and the defendant. "A case may not pass the second plane into that area in which the death penalty is authorized unless at least one statutory aggravating circumstance is found. However, this plane is passed regardless of the number of statutory aggravating circumstances found, so long as there is at least one. Once beyond this plane, the case enters the area of the factfinder's discretion, in which all the facts and circumstances of the case determine, in terms of our metaphor, whether or not the case passes the third plane and into the area in which the death penalty is imposed." *873 The Georgia Supreme Court then explained why the failure of the second ground of the (b)(1) statutory aggravating circumstance did not invalidate respondent's death sentence. It first noted that the evidence of respondent's prior convictions had been properly received and could properly have been considered by the jury. |
Justice Stevens | 1,983 | 16 | majority | Zant v. Stephens | https://www.courtlistener.com/opinion/110984/zant-v-stephens/ | received and could properly have been considered by the jury. The court expressed the opinion that the mere fact that such evidence was improperly designated "statutory" had an "inconsequential impact" on the jury's death penalty decision. Finally, the court noted that a different result might be reached if the failed circumstance had been supported by evidence not otherwise admissible or if there was reason to believe that, because of the failure, the sentence was imposed under the influence of an arbitrary factor. We are indebted to the Georgia Supreme Court for its helpful response to our certified question. That response makes it clear that we must confront three separate issues in order to decide this case. First, does the limited purpose served by the finding of a statutory aggravating circumstance in Georgia allow the jury a measure of discretion that is forbidden by and subsequent cases? Second, has the rule of been violated? Third, in this case, even though respondent's prior criminal record was properly admitted, does the possibility that the reference to the invalid statutory aggravating circumstance in the judge's instruction affected the jury's deliberations require that the death sentence be set aside? We discuss these issues in turn. I In Georgia, unlike some other States,[] the jury is not instructed to give any special weight to any aggravating circumstance, *874 to consider multiple aggravating circumstances any more significant than a single such circumstance, or to balance aggravating against mitigating circumstances pursuant to any special standard. Thus, in Georgia, the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty. For this reason, respondent argues that Georgia's statutory scheme is invalid under the holding in A fair statement of the consensus expressed by the Court in Furman is that "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." After thus summarizing the central mandate of Furman, the joint opinion in set forth a general exposition of sentencing procedures that would satisfy the concerns of 428 U. S., at -195. But it expressly stated: "We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these *875 general lines would inevitably |
Justice Stevens | 1,983 | 16 | majority | Zant v. Stephens | https://www.courtlistener.com/opinion/110984/zant-v-stephens/ | sentencing system constructed along these *875 general lines would inevitably satisfy the concerns of Furman, for each distinct system must be examined on an individual basis." The opinion then turned to specific consideration of the constitutionality of Georgia's capital sentencing procedures. Georgia's scheme includes two important features which the joint opinion described in its general discussion of sentencing procedures that would guide and channel the exercise of discretion. Georgia has a bifurcated procedure, see and its statute also mandates meaningful appellate review of every death sentence, see The statute does not, however, follow the Model Penal Code's recommendation that the jury's discretion in weighing aggravating and mitigating circumstances against each other should be governed by specific standards. See Instead, as the Georgia Supreme Court has unambiguously advised us, the aggravating circumstance merely performs the function of narrowing the category of persons convicted of murder who are eligible for the death penalty. Respondent argues that the mandate of Furman is violated by a scheme that permits the jury to exercise unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty by statute. But that argument could not be accepted without overruling our specific holding in For the Court approved Georgia's capital sentencing statute even though it clearly did not channel the jury's discretion by enunciating specific standards to guide the jury's consideration of aggravating and mitigating circumstances.[13] *876 The approval of Georgia's capital sentencing procedure rested primarily on two features of the scheme: that the jury was required to find at least one valid statutory aggravating circumstance and to identify it in writing, and that the State Supreme Court reviewed the record of every death penalty proceeding to determine whether the sentence was arbitrary or disproportionate. These elements, the opinion concluded, adequately protected against the wanton and freakish imposition of the death penalty.[14] This conclusion rested, of course, on the fundamental requirement that each statutory aggravating circumstance must satisfy a constitutional standard derived from the principles of Furman itself. For a system *877 "could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur." 428 U.S., n. 46. To avoid this constitutional flaw, an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found |
Justice Stevens | 1,983 | 16 | majority | Zant v. Stephens | https://www.courtlistener.com/opinion/110984/zant-v-stephens/ | more severe sentence on the defendant compared to others found guilty of murder.[15] *878 Thus in the Court struck down an aggravating circumstance that failed to narrow the class of persons eligible for the death penalty. Justice Stewart's opinion for the plurality concluded that the aggravating circumstance described in subsection (b)(7) of the Georgia statute, as construed by the Georgia Supreme Court, failed to create any "inherent restraint on the arbitrary and capricious infliction of the death sentence," because a person of ordinary sensibility could find that almost every murder fit the stated criteria.[] Moreover, the facts of the case itself did not distinguish the murder from any other murder. The plurality concluded that there was "no principled way to distinguish this case, in which the death penalty was imposed, from the many in which it was not." Our cases indicate, then, that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death.[]*879 What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime. See ; ; Roberts ; ; Proffitt v. -252 ;[18] The Georgia scheme provides for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage. We therefore remain convinced, as we were in that the structure of the statute is constitutional. Moreover, the narrowing function has been properly achieved in this case by the two valid aggravating circumstances upheld by the Georgia Supreme Court that respondent had escaped from lawful confinement, and that he had a prior record of conviction for a capital felony. These two findings adequately differentiate this case in an objective, evenhanded, and substantively rational way from the many Georgia murder cases in which the death penalty may not be imposed. Moreover, the Georgia Supreme Court in this case reviewed the death sentence to determine whether it was arbitrary, excessive, or disproportionate.[19]*880 Thus the absence of legislative or court-imposed standards to govern the jury in weighing the significance of either or both of those aggravating circumstances does not render the Georgia capital sentencing statute invalid as applied in this case. II Respondent contends that under the rule of and subsequent cases, the invalidity of one of the statutory aggravating circumstances underlying the jury's |
Justice Stevens | 1,983 | 16 | majority | Zant v. Stephens | https://www.courtlistener.com/opinion/110984/zant-v-stephens/ | of one of the statutory aggravating circumstances underlying the jury's sentencing verdict requires that its entire death sentence be set aside. In order to evaluate this contention, it is necessary to identify two related but different rules that have their source in the Stromberg case. In Stromberg, a member of the Communist Party was convicted of displaying a red flag in violation of the California Penal Code. The California statute prohibited such a display (1) as a "sign, symbol or emblem" of opposition to organized government; (2) as an invitation or stimulus to anarchistic action; or (3) as an aid to seditious propaganda. This Court held that the first clause of the statute was repugnant to the Federal Constitution and found it unnecessary to pass on the validity of the other two clauses because the jury's guilty verdict might have rested exclusively on a conclusion that Stromberg had violated the first. The Court explained: *881 "The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury were instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause." "The first clause of the statute being invalid upon its face, the conviction of the appellant, which so far as the record discloses may have rested upon that clause exclusively, must be set aside." at -370. One rule derived from the Stromberg case is that a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground. The cases in which this rule has been applied all involved general verdicts based on a record that left the reviewing court uncertain as to the actual ground on which the jury's decision rested. See, e. g., ; ; ; This rule does not require that respondent's death sentence be vacated, because the jury did not merely return a general verdict stating that it had found at least one aggravating circumstance. The jury expressly found aggravating circumstances that were valid and legally sufficient to support the death penalty. The second rule |
Justice Stevens | 1,983 | 16 | majority | Zant v. Stephens | https://www.courtlistener.com/opinion/110984/zant-v-stephens/ | legally sufficient to support the death penalty. The second rule derived from the Stromberg case is illustrated by and In *882 those cases we made clear that the reasoning of Stromberg encompasses a situation in which the general verdict on a single-count indictment or information rested on both a constitutional and an unconstitutional ground. In a labor organizer's contempt citation was predicated both upon a speech expressing a general invitation to a group of nonunion workers, which the Court held to be constitutionally protected speech, and upon solicitation of a single individual. The Court declined to consider the State's contention that the judgment could be sustained on the basis of the individual solicitation alone,[20] for the record showed that the penalty had been imposed on account of both solicitations. "The judgment therefore must be affirmed as to both or as to neither." Similarly, in Street, the record that petitioner's conviction on a single-count indictment could have been based on his protected words as well as on his arguably unprotected conduct, flag burning. We stated that, "unless the record negates the possibility that the conviction was based on both alleged violations," the judgment could not be affirmed unless both were The Court's opinion in Street explained: "We take the rationale of Thomas to be that when a single-count indictment or information charges the commission of a crime by virtue of the defendant's having done both a constitutionally protected act and one which may be unprotected, and a guilty verdict ensues without elucidation, there is an unacceptable danger that the trier of fact will have regarded the two acts as `inter-twined' and have rested the conviction on both together. See 323 U.S., at 540-541. There is no comparable *883 hazard when the indictment or information is in several counts and the conviction is explicitly declared to rest on findings of guilt on certain of these counts, for in such instances there is positive evidence that the trier of fact considered each count on its own merits and separately from the others." The rationale of Thomas and Street applies to cases in which there is no uncertainty about the multiple grounds on which a general verdict rests. If, under the instructions to the jury, one way of committing the offense charged is to perform an act protected by the Constitution, the rule of these cases requires that a general verdict of guilt be set aside even if the defendant's unprotected conduct, considered separately, would support the verdict. It is a difficult theoretical question whether the rule of Thomas and Street applies to the |
Justice Stevens | 1,983 | 16 | majority | Zant v. Stephens | https://www.courtlistener.com/opinion/110984/zant-v-stephens/ | whether the rule of Thomas and Street applies to the Georgia death penalty scheme. The jury's imposition of the death sentence after finding more than one aggravating circumstance is not precisely the same as the jury's verdict of guilty on a single-count indictment after finding that the defendant has engaged in more than one type of conduct encompassed by the same criminal charge, because a wider range of considerations enters into the former determination. On the other hand, it is also not precisely the same as the imposition of a single sentence of imprisonment after guilty verdicts on each of several separate counts in a multiple-count indictment,[21] because the qualitatively different sentence of death is imposed only after a channeled sentencing procedure. We need not answer this question here. The second rule derived from Stromberg, embodied in Thomas and Street, applies only in cases in which the State has based its prosecution, *884 at least in part, on a charge that constitutionally protected activity is unlawful. No such charge was made in respondent's sentencing proceeding. In Stromberg, Thomas, and Street, the trial courts' judgments rested, in part, on the fact that the defendant had been found guilty of expressive activity protected by the First Amendment. In contrast, in this case there is no suggestion that any of the aggravating circumstances involved any conduct protected by the First Amendment or by any other provision of the Constitution. Accordingly, even if the Stromberg rules may sometimes apply in the sentencing context, a death sentence supported by at least one valid aggravating circumstance need not be set aside under the second Stromberg rule simply because another aggravating circumstance is "invalid" in the sense that it is insufficient by itself to support the death penalty. In this case, the jury's finding that respondent was a person who has a "substantial history of serious assaultive criminal convictions" did not provide a sufficient basis for imposing the death sentence. But it raised none of the concerns underlying the holdings in Stromberg, Thomas, and Street, for it did not treat constitutionally protected conduct as an aggravating circumstance. III Two themes have been reiterated in our opinions discussing the procedures required by the Constitution in capital sentencing determinations. On the one hand, as the general comments in the joint opinion -195, and as THE CHIEF JUSTICE explicitly noted in there can be "no perfect procedure for deciding in which cases governmental authority should be used to impose death." See also On the other hand, because there is a qualitative difference between death and any other permissible form of |
Justice Stevens | 1,983 | 16 | majority | Zant v. Stephens | https://www.courtlistener.com/opinion/110984/zant-v-stephens/ | qualitative difference between death and any other permissible form of punishment, "there is a corresponding difference in the need for reliability *885 in the determination that death is the appropriate punishment in a specific case." "It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." Gardner v. Thus, although not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state-court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error. Respondent contends that the death sentence was impaired because the judge instructed the jury with regard to an invalid statutory aggravating circumstance, a "substantial history of serious assaultive criminal convictions," for these instructions may have affected the jury's deliberations. In analyzing this contention it is essential to keep in mind the sense in which that aggravating circumstance is "in" It is not invalid because it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected. Georgia has not, for example, sought to characterize the display of a red flag, cf. the expression of unpopular political views, cf. or the request for trial by jury, cf. United as an aggravating circumstance. Nor has Georgia attached the "aggravating" label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant, cf. or to conduct that actually should militate in favor of a lesser penalty, such as perhaps the defendant's mental illness. Cf. Miller v. If the aggravating circumstance at issue in this case had been invalid for reasons such as these, due process of law would require that the jury's decision to impose death be set aside. *886 But the invalid aggravating circumstance found by the jury in this case was struck down in Arnold because the Georgia Supreme Court concluded that it fails to provide an adequate basis for distinguishing a murder case in which the death penalty may be imposed from those cases in which such a penalty may not be imposed. See nn. 5 and The underlying evidence is nevertheless fully admissible at the sentencing phase. As we noted in 428 U. S., at 3, the Georgia statute provides that, at the sentencing hearing, the judge or jury " `shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty |
Justice Stevens | 1,983 | 16 | majority | Zant v. Stephens | https://www.courtlistener.com/opinion/110984/zant-v-stephens/ | record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any prior conviction and pleas: Provided, however, that only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible.' " Ga. Code 27-2503 (1975) (emphasis supplied).[22] We expressly rejected petitioner's objection to the wide scope of evidence and argument allowed at presentence hearings. "We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible *887 when it makes the sentencing decision." -204. See ; see also n. Thus, any evidence on which the jury might have relied in this case to find that respondent had previously been convicted of a substantial number of serious assaultive offenses, as he concedes he had been, was properly adduced at the sentencing hearing and was fully subject to explanation by the defendant.[23] Cf. Gardner v. ; n. 3[24] This case involves a statutory aggravating circumstance, invalidated by the State Supreme Court on grounds of vagueness, whose terms plausibly described aspects of the defendant's background that were properly before the jury and whose accuracy was unchallenged. Hence the erroneous instruction does not implicate *888 our repeated recognition that the "qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed." Although the Court of Appeals acknowledged on rehearing that the evidence was admissible, it expressed the concern that the trial court's instructions "may have unduly directed the jury's attention to his prior conviction." But, assuming that the instruction did induce the jury to place greater emphasis upon the respondent's prior criminal record than it would otherwise have done, the question remains whether that emphasis violated any constitutional right. In answering this question, it is appropriate to compare the instruction that was actually given, see with an instruction on the same subject that would have been unobjectionable. Cf. Nothing in the United States Constitution prohibits a trial judge from instructing a jury that it would be appropriate to take account of a defendant's prior criminal record in making its sentencing determination, see n. even though the defendant's prior history of noncapital convictions |
Justice Stevens | 1,983 | 16 | majority | Zant v. Stephens | https://www.courtlistener.com/opinion/110984/zant-v-stephens/ | n. even though the defendant's prior history of noncapital convictions could not by itself provide sufficient justification for imposing the death sentence. There would have been no constitutional infirmity in an instruction stating, in substance: "If you find beyond a reasonable doubt that the defendant is a person who has previously been convicted of a capital felony, or that he has escaped from lawful confinement, you will be authorized to impose the death sentence, and in deciding whether or not that sentence is appropriate you may consider the remainder of his prior criminal record." The effect the erroneous instruction may have had on the jury is therefore merely a consequence of the statutory label "aggravating circumstance." That label arguably might have caused the jury to give somewhat greater weight to respondent's prior criminal record than it otherwise would have given. But we do not think the Georgia Supreme *889 Court erred in its conclusion that the "mere fact that some of the aggravating circumstances presented were improperly designated `statutory' " had "an inconsequential impact on the jury's decision regarding the death penalty." 250 Ga., The instructions, see did not place particular emphasis on the role of statutory aggravating circumstances in the jury's ultimate decision. Instead the trial court instructed the jury to "consider all of the evidence received in court throughout the trial before you" and to "consider all facts and circumstances presented in extinuation [sic], mitigation and aggravation of punishment as well as such arguments as have been presented for the State and for the Defense." App. 18. More importantly, for the reasons discussed above, any possible impact cannot fairly be regarded as a constitutional defect in the sentencing process.[25] *890 Our decision in this case depends in part on the existence of an important procedural safeguard, the mandatory appellate review of each death sentence by the Georgia Supreme Court to avoid arbitrariness and to assure proportionality.[26] We accept that court's view that the subsequent invalidation of one of several statutory aggravating circumstances does not automatically require reversal of the death penalty, having been assured that a death sentence will be set aside if the invalidation of an aggravating circumstance makes the penalty arbitrary or capricious. 297 S. E. 2d, at 4. The Georgia Supreme Court, in its response to our certified question, expressly stated: "A different result might be reached in a case where evidence was submitted in support of a statutory aggravating circumstance which was not otherwise admissible, and thereafter the circumstance failed." As we noted in -205, we have also been assured that a death sentence |
Justice Stevens | 1,983 | 16 | majority | Zant v. Stephens | https://www.courtlistener.com/opinion/110984/zant-v-stephens/ | -205, we have also been assured that a death sentence will be vacated if it is excessive or substantially disproportionate to the penalties that have been imposed under similar circumstances. Finally, we note that in deciding this case we do not express any opinion concerning the possible significance of a holding that a particular aggravating circumstance is "invalid" under a statutory scheme in which the judge or jury is specifically instructed to weigh statutory aggravating and mitigating circumstances in exercising its discretion whether to impose the death penalty. See n. As we have discussed, see the Constitution does not require a State to adopt specific standards for instructing the jury in its consideration of aggravating and mitigating circumstances, and Georgia has not adopted such a system. *891A Under Georgia's sentencing scheme, and under the trial judge's instructions in this case, no suggestion is made that the presence of more than one aggravating circumstance should be given special weight. Whether or not the jury had concluded that respondent's prior record of criminal convictions merited the label "substantial" or the label "assaultive," the jury was plainly entitled to consider that record, together with all of the other evidence before it, in making its sentencing determination. The judgment of the Court of Appeals is Reversed. *891B JUSTICE WHITE, concurring in part and concurring in the judgment. |
Justice Marshall | 1,984 | 15 | majority | Bernal v. Fainter | https://www.courtlistener.com/opinion/111195/bernal-v-fainter/ | The question posed by this case is whether a statute of the State of Texas violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by denying aliens the opportunity to become notaries public. The Court of Appeals for the Fifth Circuit held that the statute *218 does not offend the Equal Protection Clause. We granted certiorari, and now reverse. I Petitioner, a native of Mexico, is a resident alien who has lived in the United States since 1961. He works as a paralegal for Texas Rural Legal Aid, Inc., helping migrant farmworkers on employment and civil rights matters. In order to administer oaths to these workers and to notarize their statements for use in civil litigation, petitioner applied in 1978 to become a notary public.[1] Under Texas law, notaries public authenticate written instruments, administer oaths, and take out-of-court depositions.[2] The Texas Secretary of State denied petitioner's application because he failed to satisfy the statutory requirement that a notary public be a citizen of the United States. Tex. Rev. Civ. Stat. Ann., Art. 5949(2) (Vernon Supp. 1984) (hereafter Article 5949(2)). After an unsuccessful administrative appeal, petitioner brought suit in the Federal District Court, claiming that the citizenship requirement mandated by Article 5949(2) violated the Federal Constitution.[3] The District Court ruled in favor of petitioner. C. A. No. B-79-147 (SD Tex., Oct. 9, 1981) (mem.). It reviewed the State's citizenship requirement under a *219 strict-scrutiny standard and concluded that the requirement violated the Equal Protection Clause. The District Court also suggested that even under a rational-relationship standard, the state statute would fail to pass constitutional muster because its citizenship requirement "is wholly unrelated to the achievement of any valid state interest." App. to Pet. for Cert. 11a. A divided panel of the Court of Appeals for the Fifth Circuit reversed, concluding that the proper standard for review was the rational-relationship test and that Article 5949(2) satisfied that test because it "bears a rational relationship to the state's interest in the proper and orderly handling of a countless variety of legal documents of importance to the state."[4] II As a general matter, a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny.[5] In order to withstand strict scrutiny, the law must advance a compelling state interest by the least restrictive means available.[6] Applying this principle, *220 we have invalidated an array of state statutes that denied aliens the right to pursue various occupations. In we struck down a state statute barring aliens from employment in permanent positions |
Justice Marshall | 1,984 | 15 | majority | Bernal v. Fainter | https://www.courtlistener.com/opinion/111195/bernal-v-fainter/ | a state statute barring aliens from employment in permanent positions in the competitive class of the state civil service. In In re Griffiths, we nullified a state law excluding aliens from eligibility for membership in the State Bar. And in Examining we voided a state law that excluded aliens from the practice of civil engineering. We have, however, developed a narrow exception to the rule that discrimination based on alienage triggers strict scrutiny. This exception has been labeled the "political function" exception and applies to laws that exclude aliens from positions intimately related to the process of democratic self-government. The contours of the "political function" exception are outlined by our prior decisions. In we held that a State may require police to be citizens because, in performing a fundamental obligation of government, police "are clothed with authority to exercise an almost infinite variety of discretionary powers" often involving the most sensitive areas of daily life. In we held that a State may bar aliens who have not declared their intent to become citizens from teaching in the public schools because teachers, like police, possess a high degree of responsibility and discretion in the fulfillment of a basic governmental obligation. They have direct, day-to-day contact with students, exercise unsupervised discretion over them, act as role models, and influence their students about the government and the political process. Finally, in we held that a State may bar aliens from positions as probation officers because they, like police and teachers, routinely exercise discretionary power, involving a basic governmental function, that places them in a position of direct authority over other individuals. *221 The rationale behind the political-function exception is that within broad boundaries a State may establish its own form of government and limit the right to govern to those who are full-fledged members of the political community. Some public positions are so closely bound up with the formulation and implementation of self-government that the State is permitted to exclude from those positions persons outside the political community, hence persons who have not become part of the process of democratic self-determination. "The exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community's process of political self-definition. Self-government, whether direct or through representatives, begins by defining the scope of the community of the governed and thus of the governors as well: Aliens are by definition those outside of this community." We have therefore lowered our standard of review when evaluating the validity of exclusions that entrust only to citizens important elective and |
Justice Marshall | 1,984 | 15 | majority | Bernal v. Fainter | https://www.courtlistener.com/opinion/111195/bernal-v-fainter/ | of exclusions that entrust only to citizens important elective and nonelective positions whose operations "go to the heart of representative government." "While not retreating from the position that restrictions on lawfully resident aliens that primarily affect economic interests are subject to heightened judicial scrutiny we have concluded that strict scrutiny is out of place when the restriction primarily serves a political function." To determine whether a restriction based on alienage fits within the narrow political-function exception, we devised in Cabell a two-part test. "First, the specificity of the classification will be examined: a classification that is substantially overinclusive or underinclusive tends to undercut the governmental claim that the classification serves legitimate political ends. Second, even if the classification is sufficiently *222 tailored, it may be applied in the particular case only to `persons holding state elective or important nonelective executive, legislative, and judicial positions,' those officers who `participate directly in the formulation, execution, or review of broad public policy' and hence `perform functions that go to the heart of representative government.' " (quoting ).[7] III We now turn to Article 5949(2) to determine whether it satisfies the Cabell test. The statute provides that "[t]o be eligible for appointment as a Notary Public, a person shall be a resident citizen of the United States and of this state" Unlike the statute invalidated in Sugarman, Article 5949(2) does not indiscriminately sweep within its ambit a wide range of offices and occupations but specifies only one particular post with respect to which the State asserts a right to exclude aliens. Clearly, then, the statute is not overinclusive; it applies narrowly to only one category of persons: those wishing to obtain appointments as notaries. Less clear is whether Article 5949(2) is fatally underinclusive. Texas does not require court reporters to be United States citizens even though they perform some of the same services as notaries.[8] Nor does Texas require that its Secretary of State be a citizen,[9] even though he holds the highest appointive position *223 in the State and performs many important functions, including supervision of the licensing of all notaries public.[10] We need not decide this issue, however, because of our decision with respect to the second prong of the Cabell test. In support of the proposition that notaries public fall within that category of officials who perform functions that "go to the heart of representative government," the State emphasizes that notaries are designated as public officers by the Texas Constitution.[11] Texas maintains that this designation indicates that the State views notaries as important officials occupying posts central to the State's definition |
Justice Marshall | 1,984 | 15 | majority | Bernal v. Fainter | https://www.courtlistener.com/opinion/111195/bernal-v-fainter/ | as important officials occupying posts central to the State's definition of itself as a political community. This Court, however, has never deemed the source of a position whether it derives from a State's statute or its Constitution as the dispositive factor in determining whether a State may entrust the position only to citizens. Rather, this Court has always looked to the actual function of the position as the dispositive factor.[12] The *224 focus of our inquiry has been whether a position was such that the officeholder would necessarily exercise broad discretionary power over the formulation or execution of public policies importantly affecting the citizen population power of the sort that a self-governing community could properly entrust only to full-fledged members of that community. As the Court noted in Cabell, in determining whether the function of a particular position brings the position within the narrow ambit of the exception, "the Court will look to the importance of the function as a factor giving substance to the concept of democratic self-government." n. 7. The State maintains that even if the actual function of a post is the touchstone of a proper analysis, Texas notaries public should still be classified among those positions from which aliens can properly be excluded because the duties of Texas notaries entail the performance of functions sufficiently consequential to be deemed "political."[13] The Court of Appeals ably articulated this argument: "With the power to acknowledge instruments such as wills and deeds and leases and mortgages; to take out-of-court depositions; to administer oaths; and the discretion to refuse to perform any of the foregoing acts, notaries public in Texas are involved in countless matters of importance to the day-to-day functioning of state government. The Texas political community depends upon the notary public to insure that those persons executing documents are accurately identified, to refuse to certify any identification that is false or uncertain, and to insist that *225 oaths are properly and accurately administered. Land titles and property succession depend upon the care and integrity of the notary public, as well as the familiarity of the notary with the community, to verify the authenticity of the execution of the documents." We recognize the critical need for a notary's duties to be carried out correctly and with integrity. But a notary's duties, important as they are, hardly implicate responsibilities that go to the heart of representative government. Rather, these duties are essentially clerical and ministerial. In contrast to state troopers, notaries do not routinely exercise the State's monopoly of legitimate coercive force.[14] Nor do notaries routinely exercise |
Justice Marshall | 1,984 | 15 | majority | Bernal v. Fainter | https://www.courtlistener.com/opinion/111195/bernal-v-fainter/ | monopoly of legitimate coercive force.[14] Nor do notaries routinely exercise the wide discretion typically enjoyed by public school teachers when they present materials that educate youth respecting the information and values necessary for the maintenance of a democratic political system. See To be sure, considerable damage could result from the negligent or dishonest performance of a notary's duties. But the same could be said for the duties *226 performed by cashiers, building inspectors, the janitors who clean up the offices of public officials, and numerous other categories of personnel upon whom we depend for careful, honest service. What distinguishes such personnel from those to whom the political-function exception is properly applied is that the latter are invested either with policymaking responsibility or broad discretion in the execution of public policy that requires the routine exercise of authority over individuals. Neither of these characteristics pertains to the functions performed by Texas notaries. The inappropriateness of applying the political-function exception to Texas notaries is further underlined by our decision in In re Griffiths, in which we subjected to strict scrutiny a Connecticut statute that prohibited noncitizens from becoming members of the State Bar. Along with the usual powers and privileges accorded to members of the bar, Connecticut gave to members of its Bar additional authority that encompasses the very duties performed by Texas notaries authority to " `sign writs and subpoenas, take recognizances, administer oaths and take depositions and acknowledgements of deeds.' "[15] In striking down Connecticut's citizenship requirement, we concluded that "[i]t in no way denigrates a lawyer's high responsibilities to observe that [these duties] hardly involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens." If it is improper to apply the political-function exception to a citizenship requirement governing eligibility for membership in a state bar, it would be anomalous to apply the exception to the citizenship requirement that governs eligibility to become a Texas notary. We conclude, then, that *227 the "political function" exception is inapplicable to Article 5949(2) and that the statute is therefore subject to strict judicial scrutiny. IV To satisfy strict scrutiny, the State must show that Article 5949(2) furthers a compelling state interest by the least restrictive means practically available. Respondents maintain that Article 5949(2) serves its "legitimate concern that notaries be reasonably familiar with state law and institutions" and "that notaries may be called upon years later to testify to acts they have performed." Brief for Respondents 24-25. However, both of these asserted justifications utterly fail to meet the stringent requirements of strict scrutiny. There |
Justice Marshall | 1,984 | 15 | majority | Bernal v. Fainter | https://www.courtlistener.com/opinion/111195/bernal-v-fainter/ | fail to meet the stringent requirements of strict scrutiny. There is nothing in the record that indicates that resident aliens, as a class, are so incapable of familiarizing themselves with Texas law as to justify the State's absolute and classwide exclusion. The possibility that some resident aliens are unsuitable for the position cannot justify a wholesale ban against all resident aliens. Furthermore, if the State's concern with ensuring a notary's familiarity with state law were truly "compelling," one would expect the State to give some sort of test actually measuring a person's familiarity with the law. The State, however, administers no such test. To become a notary public in Texas, one is merely required to fill out an application that lists one's name and address and that answers four questions pertaining to one's age, citizenship, residency, and criminal record[16] nothing that reflects the State's asserted interest in ensuring that notaries are familiar with Texas law. Similarly inadequate is the State's purported interest in ensuring the later availability of notaries' testimony. This justification fails because the State fails to advance a factual showing that the unavailability of notaries' testimony presents a real, as opposed to a merely speculative, *228 problem to the State. Without a factual underpinning, the State's asserted interest lacks the weight we have required of interests properly denominated as compelling.[17] V We conclude that Article 5949(2) violates the Fourteenth Amendment of the United States Constitution. Accordingly the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Scalia | 1,994 | 9 | majority | Chicago v. Environmental Defense Fund | https://www.courtlistener.com/opinion/117844/chicago-v-environmental-defense-fund/ | We are called upon to decide whether, pursuant to 3001(i) of the Solid Waste Disposal Act (Resource Conservation and Recovery Act of 1976 (RCRA)), as added, 42 U.S. C. 6921(i), the ash generated by a resource recovery facility's incineration of municipal solid waste is exempt from regulation as a hazardous waste under Subtitle C of RCRA. I Since 1971, petitioner city of Chicago has owned and operated a municipal incinerator, the Northwest Waste-toEnergy Facility, that burns solid waste and recovers energy, leaving a residue of municipal waste combustion (MWC) ash. The facility burns approximately 350,000 tons of solid waste each year and produces energy that is both used within the facility and sold to other entities. The city has disposed of the combustion residue110,000 to 140,000 tons of MWC ash per yearat landfills that are not licensed to accept hazardous wastes. In 1988, respondent Environmental Defense Fund (EDF) filed a complaint against petitioners, the city of Chicago and its mayor, under the citizen suit provisions of RCRA, 42 U.S. C. 6972, alleging that they were violating provisions of RCRA and of implementing regulations issued by the Environmental Protection Agency (EPA). Respondent alleged that the MWC ash generated by the facility was toxic enough to qualify as a "hazardous waste" under EPA's regulations, 40 CFR pt. 261 It was uncontested that, with respect to the ash, petitioners had not adhered to any of the requirements of Subtitle C, the portion of RCRA addressing hazardous wastes. Petitioners contended that *331 RCRA 3001(i), 42 U.S. C. 6921(i), excluded the MWC ash from those requirements. The District Court agreed with that contention, see Environmental Defense Fund, and subsequently granted petitioners' motion for summary judgment. The Court of Appeals reversed, concluding that the "ash generated from the incinerators of municipal resource recovery facilities is subject to regulation as a hazardous waste under Subtitle C of RCRA." Environmental Defense Fund, The city petitioned for a writ of certiorari, and we invited the Solicitor General to present the views of the United States. On September 18, 1992, while that invitation was outstanding, the Administrator of EPA issued a memorandum to EPA Regional Administrators, directing them, in accordance with the agency's view of 3001(i), to treat MWC ash as exempt from hazardous waste regulation under Subtitle C of RCRA. Thereafter, we granted the city's petition, vacated the decision, and remanded the case to the Court of Appeals for the Seventh Circuit for further consideration in light of the memorandum. On remand, the Court of Appeals reinstated its previous opinion, holding that, because the statute's plain language is dispositive, |
Justice Scalia | 1,994 | 9 | majority | Chicago v. Environmental Defense Fund | https://www.courtlistener.com/opinion/117844/chicago-v-environmental-defense-fund/ | opinion, holding that, because the statute's plain language is dispositive, the EPA memorandum did not affect its analysis. Petitioners filed a petition for writ of certiorari, which we granted. II RCRA is a comprehensive environmental statute that empowers EPA to regulate hazardous wastes from cradle to grave, in accordance with the rigorous safeguards and waste management procedures of Subtitle C, 42 U.S. C. 6921 6934. (Nonhazardous wastes are regulated much more loosely under Subtitle D, 42 U.S. C. 6941-6949.) Under *332 the relevant provisions of Subtitle C, EPA has promulgated standards governing hazardous waste generators and transporters, see 42 U.S. C. 6922 and 6923, and owners and operators of hazardous waste treatment, storage, and disposal facilities (TSDF's), see 6924. Pursuant to 6922, EPA has directed hazardous waste generators to comply with handling, recordkeeping, storage, and monitoring requirements, see 40 CFR pt. 262 TSDF's, however, are subject to much more stringent regulation than either generators or transporters, including a 4- to 5-year permitting process, see 42 U.S. C. 6925; 40 CFR pt. 270 ; U. S. Environmental Protection Agency Office of Solid Waste and Emergency Response, The Nation's Hazardous Waste Management Program at a Crossroads, The RCRA Implementation Study 49-50 (July 1990), burdensome financial assurance requirements, stringent design and location standards, and, perhaps most onerous of all, responsibility to take corrective action for releases of hazardous substances and to ensure safe closure of each facility, see 42 U.S. C. 6924; 40 CFR pt. 264 "[The] corrective action requirement is one of the major reasons that generators and transporters work diligently to manage their wastes so as to avoid the need to obtain interim status or a TSD permit." 3 Environmental Law Practice Guide 29.06[3][d] (hereinafter Practice Guide). RCRA does not identify which wastes are hazardous and therefore subject to Subtitle C regulation; it leaves that designation to EPA. 42 U.S. C. 6921(a). When EPA's hazardous waste designations for solid wastes appeared in 1980, see they contained certain exceptions from normal coverage, including an exclusion for "household waste," defined as "any waste material derived from households (including single and multiple residences, hotels and motels)," codified as amended at 40 CFR 261.4(b)(1) Although most household waste is harmless, a small portionsuch as cleaning fluids *333 and batterieswould have qualified as hazardous waste. The regulation declared, however, that "[h]ousehold waste, including household waste that has been collected, transported, stored, treated, disposed, recovered (e. g., refusederived fuel) or reused" is not hazardous waste. Moreover, the preamble to the 1980 regulations stated that "residues remaining after treatment (e. g. incineration, thermal treatment) [of household waste] are |
Justice Scalia | 1,994 | 9 | majority | Chicago v. Environmental Defense Fund | https://www.courtlistener.com/opinion/117844/chicago-v-environmental-defense-fund/ | treatment (e. g. incineration, thermal treatment) [of household waste] are not subject to regulation as a hazardous waste." By reason of these provisions, an incinerator that burned only household waste would not be considered a Subtitle C TSDF, since it processed only nonhazardous (i. e., household) waste, and it would not be considered a Subtitle C generator of hazardous waste and would be free to dispose of its ash in a Subtitle D landfill. The 1980 regulations thus provided what is known as a "waste stream" exemption for household waste, ib i. e., an exemption covering that category of waste from generation through treatment to final disposal of residues. The regulation did not, however, exempt MWC ash from Subtitle C coverage if the incinerator that produced the ash burned anything in addition to household waste, such as what petitioners' facility burns: nonhazardous industrial waste. Thus, a facility like petitioners' would qualify as a Subtitle C hazardous waste generator if the MWC ash it produced was sufficiently toxic, see 40 CFR 261.3, 261.24 though it would still not qualify as a Subtitle C TSDF, since all the waste it took in would be characterized as nonhazardous.) Four years after these regulations were issued, Congress enacted the Hazardous and Solid Waste Amendments of 1984, Stat. 3221, which added to RCRA *334 the "Clarification of Household Waste Exclusion" as 3001(i), 223, The essence of our task in this case is to determine whether, under that provision, the MWC ash generated by petitioners' facilitya facility that would have been considered a Subtitle C generator under the 1980 regulationsis subject to regulation as hazardous waste under Subtitle C. We conclude that it is. Section 3001(i), 42 U.S. C. 6921(i), entitled "Clarification of household waste exclusion," provides: "A resource recovery facility recovering energy from the mass burning of municipal solid waste shall not be deemed to be treating, storing, disposing of, or otherwise managing hazardous wastes for the purposes of regulation under this subchapter, if "(1) such facility "(A) receives and burns only "(i) household waste (from single and multiple dwellings, hotels, motels, and other residential sources), and "(ii) solid waste from commercial or industrial sources that does not contain hazardous waste identified or listed under this section, and "(B) does not accept hazardous wastes identified or listed under this section, and "(2) the owner or operator of such facility has established contractual requirements or other appropriate notification or inspection procedures to assure that hazardous wastes are not received at or burned in such facility." The plain meaning of this language is that so long as |
Justice Scalia | 1,994 | 9 | majority | Chicago v. Environmental Defense Fund | https://www.courtlistener.com/opinion/117844/chicago-v-environmental-defense-fund/ | plain meaning of this language is that so long as a facility recovers energy by incineration of the appropriate wastes, it (the facility ) is not subject to Subtitle C regulation as a facility that treats, stores, disposes of, or manages hazardous waste. The provision quite clearly does not contain any exclusion for the ash itself. Indeed, the waste the facility produces (as opposed to that which it receives) is not even *335 mentioned. There is thus no express support for petitioners' claim of a waste-stream exemption.[1] Petitioners contend, however, that the practical effect of the statutory language is to exempt the ash by virtue of exempting the facility. If, they argue, the facility is not deemed to be treating, storing, or disposing of hazardous waste, then the ash that it treats, stores, or disposes of must itself be considered nonhazardous. There are several problems with this argument. First, as we have explained, the only exemption provided by the terms of the statute is for the facility. It is the facility, not the ash, that "shall not be deemed" to be subject to regulation under Subtitle C. Unlike the preamble to the 1980 regulations, which had been in existence for four years by the time 3001(i) was enacted, 3001(i) does not explicitly exempt MWC ash generated by a resource recovery facility from regulation as a hazardous waste. In light of that difference, and given the statute's express declaration of national policy that "[w]aste that is generated should be treated, stored, or disposed of so as to minimize the present and future threat to human health and the environment," 42 U.S. C. 6902(b), we cannot interpret the statute to permit MWC ash sufficiently toxic to qualify as hazardous to be disposed of in ordinary landfills. Moreover, as the Court of Appeals observed, the statutory language does not even exempt the facility in its capacity as *336 a generator of hazardous waste. RCRA defines "generation" as "the act or process of producing hazardous waste." 42 U.S. C. 6903(6). There can be no question that the creation of ash by incinerating municipal waste constitutes "generation" of hazardous waste ). Yet although 3001(i) states that the exempted facility "shall not be deemed to be treating, storing, disposing of, or otherwise managing hazardous wastes," it significantly omits from the catalog the word "generating. " Petitioners say that because the activities listed as exempt encompass the full scope of the facility's operation, the failure to mention the activity of generating is insignificant. But the statute itself refutes this. Each of the three specific terms used in |
Justice Scalia | 1,994 | 9 | majority | Chicago v. Environmental Defense Fund | https://www.courtlistener.com/opinion/117844/chicago-v-environmental-defense-fund/ | refutes this. Each of the three specific terms used in 3001(i) "treating," "storing," and "disposing of"is separately defined by RCRA, and none covers the production of hazardous waste.[2] The fourth and less specific term ("otherwise managing") is also defined, to mean "collection, source separation, storage, transportation, processing, treatment, recovery, and disposal," 42 U.S. C. 6903(7)just about every hazardous waste-related activity except generation. We *337 think it follows from the carefully constructed text of 3001(i) that while a resource recovery facility's management activities are excluded from Subtitle C regulation, its generation of toxic ash is not. Petitioners appeal to the legislative history of 3001(i), which includes, in the Senate Committee Report, the statement that "[a]ll waste management activities of such a facility, including the generation, transportation, treatment, storage and disposal of waste shall be covered by the exclusion." S. Rep. No. 98-284, p. 61 (1983) (emphasis added). But it is the statute, and not the Committee Report, which is the authoritative expression of the law, and the statute prominently omits reference to generation. As the Court of Appeals cogently put it: "Why should we, then, rely upon a single word in a committee report that did not result in legislation? Simply put, we shouldn't."[3] Petitioners point out that the activity by which they "treat" municipal waste is the very same activity by which they "generate" MWC ash, to wit, incineration. But there is nothing extraordinary about an activity's being exempt for some purposes and nonexempt for others. The incineration here is exempt from TSDF regulation, but subject to regulation as hazardous waste generation. (As we have noted, see the latter is much less onerous.) Our interpretation is confirmed by comparing 3001(i) with another statutory exemption in RCRA. In the Superfund Amendments and Reauthorization Act of 1986, Pub. L. 99-499, 124(b), Congress amended 42 U.S. C. 6921 to provide that an "owner and operator of equipment used to recover methane from a landfill shall not be deemed to be managing, generating, transporting, treating, storing, or disposing of hazardous or liquid wastes within *338 the meaning of" Subtitle C. This provision, in contrast to 3001(i), provides a complete exemption by including the term "generating" in its list of covered activities. "[I]t is generally presumed that Congress acts intentionally and purposely" when it "includes particular language in one section of a statute but omits it in another," Keene We agree with respondents that this provision "shows that Congress knew how to draft a waste stream exemption in RCRA when it wanted to." Brief for Respondents 18. Petitioners contend that our interpretation of 3001(i) turns |
Justice Scalia | 1,994 | 9 | majority | Chicago v. Environmental Defense Fund | https://www.courtlistener.com/opinion/117844/chicago-v-environmental-defense-fund/ | Respondents 18. Petitioners contend that our interpretation of 3001(i) turns the provision into an "empty gesture," Brief for Petitioners 23, since even under the pre-existing regime an incinerator burning household waste and nonhazardous industrial waste was exempt from the Subtitle C TSDF provisions. If 3001(i) did not extend the waste-stream exemption to the product of such a combined household/ nonhazardous-industrial treatment facility, petitioners argue, it did nothing at all. But it is not nothing to codify a household waste exemption that had previously been subject to agency revision; nor is it nothing (though petitioners may value it as less than nothing) to restrict the exemption that the agency previously providedwhich is what the provision here achieved, by withholding all waste-stream exemption for waste processed by resource recovery facilities, even for the waste stream passing through an exclusively household waste facility.[4] *339 We also do not agree with petitioners' contention that our construction renders 3001(i) ineffective for its intended purpose of promoting household/nonhazardous-industrial resource recovery facilities, see 42 U.S. C. 6902(a)(1), (10), (11), by subjecting them "to the potentially enormous expense of managing ash residue as a hazardous waste." Brief for Petitioners 20. It is simply not true that a facility which is (as our interpretation says these facilities are) a hazardous waste "generator" is also deemed to be "managing" hazardous waste under RCRA. Section 3001(i) clearly exempts these facilities from Subtitle C TSDF regulations, thus enabling them to avoid the "full brunt of EPA's enforcement efforts under RCRA." Practice Guide 29.05[1]. * * * RCRA's twin goals of encouraging resource recovery and protecting against contamination sometimes conflict. It is not unusual for legislation to contain diverse purposes that must be reconciled, and the most reliable guide for that task is the enacted text. Here that requires us to reject the Solicitor General's plea for deference to the EPA's interpretation, cf. Chevron U. S. A. which goes beyond the scope of whatever ambiguity 3001(i) contains. See John Hancock Mut. Life Ins. Section 3001(i) simply cannot be read to contain the cost-saving waste-stream exemption petitioners seek.[5] For the foregoing reasons, the judgment of the Court of Appeals for the Seventh Circuit is Affirmed. |
Justice Roberts | 2,006 | 0 | concurring | eBay Inc. v. MERCEXCHANGE, LL | https://www.courtlistener.com/opinion/145655/ebay-inc-v-mercexchange-ll/ | I agree with the Court's holding that "the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases *395 governed by such standards," ante, at 394, and I join the opinion of the Court. That opinion rightly rests on the proposition that "a major departure from the long tradition of equity practice should not be lightly implied." ; see ante, at 391. From at least the early 19th century, courts have granted injunctive relief upon a finding of infringement in the vast majority of patent cases. This "long tradition of equity practice" is not surprising, given the difficulty of protecting a right to exclude through monetary remedies that allow an infringer to use an invention against the patentee's wishes a difficulty that often implicates the first two factors of the traditional four-factor test. This historical practice, as the Court holds, does not entitle a patentee to a permanent injunction or justify a general rule that such injunctions should issue. The Federal Circuit itself so recognized in Roche Products, At the same time, there is a difference between exercising equitable discretion pursuant to the established four-factor test and writing on an entirely clean slate. "Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike." When it comes to discerning and applying those standards, in this area as others, "a page of history is worth a volume of logic." New York Trust |
Justice Rehnquist | 1,985 | 19 | majority | Garcia v. United States | https://www.courtlistener.com/opinion/111287/garcia-v-united-states/ | Petitioners assaulted an undercover United States Secret Service agent with a loaded pistol, in an attempt to rob him of $1,800 of Government "flash money" that the agent was using to buy counterfeit currency from them. They were convicted of violating 18 U.S. C. 2114, which proscribes the assault and robbery of any custodian of "mail matter or of any money or other property of the United States." The United States Court of Appeals for the Eleventh Circuit affirmed petitioners' convictions, over their contention that 2114 is limited to crimes involving the Postal Service. We granted certiorari, to resolve a split in the Circuits concerning the reach of 2114,[1] and we affirm. Agent K. David Holmes of the United States Secret Service posed as someone interested in purchasing counterfeit currency. He met petitioners Jose and Francisco Garcia in a park in Miami, Fla. Petitioners agreed to sell Holmes a large quantity of counterfeit currency, and asked that he show them the genuine currency he intended to give in exchange. He "flashed" the $1,800 of money to which he had been entrusted by the United States, and they showed him a sample of their wares a counterfeit $50 bill. *72 Wrangling over the terms of the agreement began, and Jose Garcia leapt in front of Holmes brandishing a semiautomatic pistol. He pointed the pistol at Holmes, assumed a combat stance, chambered a round into the pistol, and demanded the money. While Holmes slowly raised his hands over his head, three Secret Service agents who had been watching from afar raced to the scene on foot. Jose Garcia dropped the pistol and surrendered, but Francisco Garcia seized the money belonging to the United States and fled. The agents arrested Jose Garcia on the spot, and pursued and later arrested Francisco Garcia as well. Petitioners were convicted in a jury trial of violating 18 U.S. C. 2114 by assaulting a lawful custodian of Government money, Agent Holmes, with intent to "rob, steal, or purloin" the money. That section states in full: "Whoever assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs any such person of mail matter, or of any money, or other property of the United States, shall for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of |
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