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Justice Powell | 1,983 | 17 | majority | Pillsbury Co. v. Conboy | https://www.courtlistener.com/opinion/110821/pillsbury-co-v-conboy/ | immunity, there is no similar justification for compelling a witness to give incriminating testimony for the benefit of a private litigant when the Government has not chosen to grant immunity." Post, at 267. The result of compelling testimony โ whether it is immunized or excluded โ is that the Government's interests, as well as the witness', suffer. Reliance on judicial exclusion of nonimmunized testimony would be inconsistent with the congressional policy of leaving the granting of immunity to the Executive Branch. As the Court stated in compelling a witness to testify in "reliance upon a later objection or motion to suppress would `let the cat out' with no assurance whatever of putting it back." We believe Conboy acted properly in maintaining his silence in the face of the District Court's compulsion order and by testing the validity of his privilege on appeal. IV This Court has emphasized the importance of the private action as a means of furthering the policy goals of certain federal *263 regulatory statutes, including the federal antitrust laws. See, e. g., Perma Life Mufflers, ; United But private civil actions can only supplement, not supplant, the primary responsibility of government. Petitioners' proposed construction of ง 6002 sweeps further than Congress intended and could hinder governmental enforcement of its criminal laws by turning use immunity into a form of transactional immunity for subjects examined in the immunized proceeding. It also puts the deponent in some danger of criminal prosecution unless he receives an assurance of immunity or exclusion that the courts cannot properly give. Silence, on the other hand, preserves the deponent's rights and the Government's interests, as well as the judicial resources that otherwise would be required to make the many difficult judgments that petitioners' interpretation of ง 6002 would require.[23] V We hold that a deponent's civil deposition testimony, closely tracking his prior immunized testimony, is not, without duly authorized assurance of immunity at the time, immunized testimony within the meaning of ง 6002, and therefore *264 may not be compelled over a valid assertion of his Fifth Amendment privilege.[24] The judgment of the Court of Appeals accordingly is Affirmed. |
Justice White | 1,973 | 6 | dissenting | Illinois v. Somerville | https://www.courtlistener.com/opinion/108729/illinois-v-somerville/ | For the purposes of the Double Jeopardy Clause, jeopardy attaches when a criminal trial commences before judge or jury, United ; ; and this point has arrived when a jury has been selected and sworn, even though no evidence has been taken. Clearly, Somerville was placed in jeopardy at his first trial despite the fact that the indictment against him was defective under Illinois law. ; United The question remains, however, whether the facts of this case present one of those circumstances where a trial, once begun, may be aborted over the defendant's objection and the defendant retried *472 without twice being placed in jeopardy contrary to the Constitution. The Court has frequently addressed itself to the general problem of mistrials and the Double Jeopardy Clause, most recently in United We have abjured mechanical, per se rules and have preferred to rely upon the approach first announced in United Under the Perez analysis, a trial court has authority to discharge a jury prior to verdict, and the Double Jeopardy Clause will not prevent retrial, only if the trial court takes "all the circumstances into consideration" and in its "sound discretion" determines that "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." See also United ; ; ; ; Despite the generality of the Perez standard, some guidelines have evolved from past cases, as this Court has reviewed the exercise of trial court discretion in a variety of circumstances. United and for example, make it abundantly clear that trial courts should have constantly in mind the purposes of the Double Jeopardy Clause to protect the defendant from continued exposure to embarrassment, anxiety, expense, and restrictions on his liberty, as well as to preserve his " `valued right to have his trial completed by a particular tribunal.' " United quoting from "[I]n the final analysis, the judge must always temper the decision whether or not to abort the trial *473 by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate." United It was in light of this interest that the Court in Downum reversed a conviction on double jeopardy grounds where a mistrial was declared to permit further efforts to secure the attendance of a key prosecution witness who should have been, but was not, subpoenaed. Although no prosecutorial misconduct other than mere oversight and mistake was claimed or proved, the policies of the Double Jeopardy Clause, |
Justice White | 1,973 | 6 | dissenting | Illinois v. Somerville | https://www.courtlistener.com/opinion/108729/illinois-v-somerville/ | claimed or proved, the policies of the Double Jeopardy Clause, and the interest of the defendant in taking his case to the jury that he had just accepted, were sufficient to raise the double jeopardy barrier to a second trial. Similarly, in a trial was terminated when the trial judge, sua sponte and mistakenly, declared a mistrial, apparently to protect nonparty witnesses from the possibility of self-incrimination. There was no showing of intent by the prosecutor or the judge to harass the defendant or to enhance chances of conviction at a second trial; the defendant was given a complete preview of the Government's case, and no specific prejudice to the defense at a second trial was shown. Noting that the courts "must bear in mind the potential risks of abuse by the defendant of society's unwillingness to unnecessarily subject him to repeated prosecutions," 400 U.S., this Court held that the defendant's interest in submitting his case to the initial jury was itself sufficient to invoke the Double Jeopardy Clause and, as in Downum, to override the Government's concern with enforcing the criminal laws by having another chance to try the defendant for the crime with which he was charged. In neither case was there "manifest necessity" for a mistrial and a double trial of the defendant. *474 Very similar considerations govern this case. Somerville asserts a right to but one trial and to a verdict by the initial jury. A mistrial was directed at the instance of the State, over Somerville's objection, and was occasioned by official error in drafting the indictment error unaccompanied by bad faith, overreaching, or specific prejudice to the defense at a later trial. The State may no more try the defendant a second time in these circumstances than could the United in Downum and Although the exact extent of the emotional and physical harm suffered by Somerville during the period between his first and second trial is open to debate, it cannot be gainsaid that Somerville lost "his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal." United 400 U. S., Downum and over serious dissent, rejected the view that the Double Jeopardy Clause protects only against those mistrials that lend themselves to prosecutorial manipulation and underwrote the independent right of a defendant in a criminal case to have the verdict of the initial jury. Both cases made it quite clear that the discretion of the trial court to declare mistrials is reviewable and that the defendant's right to a verdict by his first jury is |
Justice White | 1,973 | 6 | dissenting | Illinois v. Somerville | https://www.courtlistener.com/opinion/108729/illinois-v-somerville/ | defendant's right to a verdict by his first jury is not to be overridden except for "manifest necessity." There was not, in this case any more than in Downum and "manifest necessity" for the loss of that right. The majority recognizes that "the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one," but finds that interest outweighed by the State's desire to avoid "conducting a second trial after verdict and reversal on appeal [on the basis of a defective indictment], thus wasting time, energy, and money for all concerned." The majority finds paramount the interest of the State in "keeping a verdict of conviction if its evidence persuaded the jury." Such *475 analysis, however, completely ignores the possibility that the defendant might be acquitted by the initial jury. It is, after' all, that possibilitythe chance to "end the dispute then and there with an acquittal," United that makes the right to a trial before a particular tribunal of importance to a defendant. In addition, the majority's balancing gives too little weight to the fundamental place of the Double Jeopardy Clause, and the purposes which it seeks to serve, in "the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial." Apparently the majority finds "manifest necessity" for a mistrial and the retrial of the defendant in "the State's policy of preserving the right of each defendant to insist that a criminal prosecution against him be commenced by the action of a grand jury" and the implementation of that policy in the absence from Illinois procedural rules of any procedure for the amendment of indictments. Conceding the reasonableness of such a policy, it must be remembered that the inability to amend an indictment does not come into play, and a mistrial is not necessitated, unless an error on the part of the State in the framing of the indictment is committed. Only when the indictment is defectiveonly when the State has failed to properly execute its responsibility to frame a proper indictmentdoes the State's procedural framework necessitate a mistrial. Although recognizing that "a criminal trial is, even in the best of circumstances, a complicated affair to manage," ib the Court has not previously thought prosecutorial error sufficient excuse for not applying the Double Jeopardy Clause. In for instance, the Court declared that "unquestionably an important factor to be considered is the need to hold litigants on both sides to standards of responsible professional conduct in the clash of an adversary *476 criminal process," and cautioned, "The |
Justice White | 1,973 | 6 | dissenting | Illinois v. Somerville | https://www.courtlistener.com/opinion/108729/illinois-v-somerville/ | clash of an adversary *476 criminal process," and cautioned, "The trial judge must recognize that lack of preparedness by the Government directly implicates policies underpinning both the double jeopardy provision and the speedy trial guarantee." See also ; Here, the prosecutorial error, not the independent operation of a state procedural rule, necessitated the mistrial. Judged by the standards of Downum and I cannot find, in the words of the majority, an "important countervailing interest of proper judicial administration" in this case; I cannot find "manifest necessity" for a mistrial to compensate for prosecutorial mistake. Finally, the majority notes that "the declaration of a mistrial on the basis of a rule or a defective procedure that would lend itself to prosecutorial manipulation would involve an entirely different question." See United 400 U. S., ; -. Surely there is no evidence of bad faith or overreaching on this record. However, the words of the Court in Ball seem particularly appropriate. "This case, in short, presents the novel and unheard of spectacle, of a public officer, whose business it was to frame a correct bill, openly alleging his own inaccuracy or neglect, as a reason for a second trial, when it is not pretended that the merits were not fairly in issue on the first. If this practice be tolerated, when are trials of the accused to end? If a conviction take place, whether an indictment be good, or otherwise, it is ten to one that judgment passes; for, if he read the bill, it is not probable he will have penetration enough to discern its defects. His counsel, if any be assigned to him, will be content with hearing the substance of the charge without *477 looking farther; and the court will hardly, of its own accord, think it a duty to examine the indictment to detect errors in it. Many hundreds, perhaps, are now in the state prison on erroneous indictments, who, however, have been fairly tried on the merits." -668. I respectfully dissent. MR. |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | 6 n this case, we decide whether Georgia's State Senate redistricting plan should have been precleared under 5 of the Voting Rights Act of 1965, as renumbered and amended, 42 U.S. C. c. Section 5 requires that before a covered jurisdiction's new voting "standard, practice, or procedure" goes into effect, it must be precleared by either the Attorney General of the United or a federal court to ensure that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S. C. c. Whether a voting procedure change should be precleared depends on whether the change "would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." We therefore must decide whether Georgia's State Senate redistricting plan is retrogressive as compared to its previous, benchmark districting 7 * A 8 Over the past decade, the propriety of Georgia's state and congressional districts has been the subject of repeated litigation. n 1991, the Georgia General Assembly began the process of redistricting after the 1990 census. Because Georgia is a covered jurisdiction under 5 of the Voting Rights Act, see Georgia submitted its revised State Senate plan to the United Department of Justice for preclearance. The plan as enacted into law increased the number of majority-minority districts from the previous Senate The Department of Justice nevertheless refused preclearance because of Georgia's failure to maximize the number of majority-minority districts. See After Georgia made changes to the Senate plan in an attempt to satisfy the United ' objections, the State again submitted it to the Department of Justice for preclearance. Again, the Department of Justice refused preclearance because the plan did not contain a sufficient number of majority-minority districts. See at 15. Finally, the United precleared Georgia's third redistricting plan, approving it in the spring of 1992. See at 9 Georgia's 1992 Senate plan was not challenged in court. See ts congressional districting plan, however, was challenged as unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. See n 1995, we held in that Georgia's congressional districting plan was unconstitutional because it engaged in "the very racial stereotyping the Fourteenth Amendment forbids" by making race the "predominant, overriding factor explaining" Georgia's congressional districting 920. And even though it was "safe to say that the congressional plan enacted in the end was required in order to obtain preclearance," this justification did not permit Georgia to engage in racial gerrymandering. See Georgia's State Senate districts served as |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | in racial gerrymandering. See Georgia's State Senate districts served as "building blocks" to create the congressional districting plan found unconstitutional in n. 8 ; see 10 Georgia recognized that after its legislative districts were unconstitutional under the Equal Protection Clause. See 1540. Accordingly, Georgia attempted to cure the perceived constitutional problems with the 1992 State Senate districting plan by passing another plan in 1995. The Department of Justice refused to preclear the 1995 plan, maintaining that it retrogressed from the 1992 plan and that concerned only Georgia's congressional districts, not Georgia's State Senate districts. See -1541. 11 Private litigants subsequently brought an action challenging the constitutionality of the 1995 Senate See The three-judge panel of the District Court reviewing the 1995 Senate plan found that "[i]t is clear that a black maximization policy had become an integral part of the section 5 preclearance process when the Georgia redistricting plans were under review. The net effect of the DOJ's preclearance objection[s] was to require the State of Georgia to increase the number of majority black districts in its redistricting plans, which were already ameliorative plans, beyond any reasonable concept of non-retrogression." The court noted that in we specifically disapproved of the Department of Justice's policy that the maximization of black districts was a part of the 5 retrogression analysis. See ndeed, in we found that the Department of Justice's objections to Georgia's redistricting plans were "driven by its policy of maximizing majority-black districts." And "[i]n utilizing 5 to require to create majority-minority districts wherever possible, the Department of Justice expanded its authority under the statute beyond what Congress intended and we have upheld." 12 The District Court stated that the maximization of majority-minority districts in Georgia "artificially push[ed] the percentage of black voters within some majority black districts as high as possible." 929 F. Supp., The plan that eventually received the Department of Justice's preclearance in 1992 "represented the General Assembly's surrender to the black maximization policy of the DOJ." The court then found that the 1995 plan was an unconstitutional racial gerrymander. See 13 Under court direction, Georgia and the Department of Justice reached a mediated agreement on the constitutionality of the 1995 Senate Georgia passed a new plan in 1997, and the Department of Justice quickly precleared it. The redrawn map resembled to a large degree the 1992 plan that eventually received preclearance from the Department of Justice, with some changes to accommodate the decision of this Court in and of the District Court in All parties here concede that the 1997 plan is the benchmark plan for this |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | that the 1997 plan is the benchmark plan for this litigation because it was in effect at the time of the 2001 redistricting effort. The 1997 plan drew 56 districts, 11 of them with a total black population of over 50%, and 10 of them with a black voting age population of over 50%. See Record, Doc. No. 148, Pl. Exh. 1C (hereinafter Pl. Exh.). The 2000 census revealed that these numbers had increased so that 13 districts had a black population of at least 50%, with the black voting age population exceeding 50% in 12 of those districts. See 14 After the 2000 census, the Georgia General Assembly began the process of redistricting the Senate once again. No party contests that a substantial majority of black voters in Georgia vote Democratic, or that all elected black representatives in the General Assembly are Democrats. The goal of the Democratic leadership—black and white—was to maintain the number of majority-minority districts and increase the number of Democratic Senate seats. See For example, the Director of Georgia's Legislative Redistricting Office, Linda Meggers, testified that the Senate Black Caucus "`wanted to maintain'" the existing majority-minority districts and at the same time "`not waste'" votes. 15 The Vice Chairman of the Senate Reapportionment Committee, Senator Robert Brown, testified about the goals of the redistricting effort. Senator Brown, who is black, chaired the subcommittee that developed the Senate plan at issue here. See Senator Brown believed when he designed the Senate plan that as the black voting age population in a district increased beyond what was necessary, it would "pus[h] the whole thing more towards [the] Republican[s]." Pl. Exh. 20, at 24. And "correspondingly," Senator Brown stated, "the more you diminish the power of African-Americans overall." Senator Charles Walker was the majority leader of the Senate. Senator Walker testified that it was important to attempt to maintain a Democratic majority in the Senate because "we [African-Americans] have a better chance to participate in the political process under the Democratic majority than we would have under a Republican majority." Pl. Exh. 24, at 19. At least 7 of the 11 black members of the Senate could chair committees. See 195 F. Supp. 2d, 16 The plan as designed by Senator Brown's committee kept true to the dual goals of maintaining at least as many majority-minority districts while attempting to increase Democratic strength in the Senate. Part of the Democrats' strategy was not only to maintain the number of majority-minority districts, but to increase the number of so-called "influence" districts, where black voters would be able to exert |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | "influence" districts, where black voters would be able to exert a significant—if not decisive—force in the election process. As the majority leader testified, "in the past, you know, what we would end up doing was packing. You put all blacks in one district and all whites in one district, so what you end up with is [a] black Democratic district and [a] white Republican district. That's not a good strategy. That does not bring the people together, it divides the population. But if you put people together on voting precincts it brings people together." Pl. Exh. 24, at 19. 17 The plan as designed by the Senate "unpacked" the most heavily concentrated majority-minority districts in the benchmark plan, and created a number of new influence districts. The new plan drew 13 districts with a majority-black voting age population, 13 additional districts with a black voting age population of between 30% and 50%, and 4 other districts with a black voting age population of between 25% and 30%. See Pl. Exh. 2C. According to the 2000 census, as compared to the benchmark plan, the new plan reduced by five the number of districts with a black voting age population in excess of 60%. Compare Pl. Exh. 1D with Pl. Exh. 2C. Yet it increased the number of majority-black voting age population districts by one, and it increased the number of districts with a black voting age population of between 25% and 50% by four. As compared to the benchmark plan enacted in 1997, the difference is even larger. Under the old census figures, Georgia had 10 Senate districts with a majority-black voting age population, and 8 Senate districts with a black voting age population of between 30% and 50%. See Pl. Exh. 1C. The new plan thus increased the number of districts with a majority black voting age population by three, and increased the number of districts with a black voting age population of between 30% and 50% by another five. Compare Pl. Exh. 1C with Pl. Exh. 2C. 18 The Senate adopted its new districting plan on August 10, 2001, by a vote of 29 to 26. Ten of the eleven black Senators voted for the The Georgia House of Representatives passed the Senate plan by a vote of 101 to 71. Thirty-three of the thirty-four black Representatives voted for the No Republican in either the House or the Senate voted for the plan, making the votes of the black legislators necessary for passage. See The Governor signed the Senate plan into law on August 24, 2001, and Georgia subsequently |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | plan into law on August 24, 2001, and Georgia subsequently sought to obtain preclearance. B 19 Pursuant to 5 of the Voting Rights Act, a covered jurisdiction like Georgia has the option of either seeking administrative preclearance through the Attorney General of the United or seeking judicial preclearance by instituting an action in the United District Court for the District of Columbia for a declaratory judgment that the voting change comports with 5. 42 U.S. C. c; Georgia chose the latter method, filing suit seeking a declaratory judgment that the State Senate plan does not violate 5. 20 Georgia, which bears the burden of proof in this action, see Pleasant attempted to prove that its Senate plan was not retrogressive either in intent or in effect. t submitted detailed evidence documenting in each district the total population, the total black population, the black voting age population, the percentage of black registered voters, and the overall percentage of Democratic votes (i. e., the overall likelihood that voters in a particular district will vote Democratic), among other things. See ; see Pl. Exhs. 2C, 2D. The State submitted evidence about how each of these statistics compared to the benchmark districts. See ; see Pl. Exhs. 1C, 1D, 1E (revised). 21 Georgia submitted testimony from numerous people who had participated in enacting the Senate plan into law, and from United Congressman John Lewis, who represents the Atlanta area. These witnesses testified that the new Senate plan was designed to increase black voting strength throughout the State as well as to help ensure a continued Democratic majority in the Senate. The State submitted expert testimony that African-American and non-African-American voters have equal chances of electing their preferred candidate when the black voting age population of a district is at 44.3%. Finally, in response to objections raised by the United Georgia submitted more detailed statistical evidence with respect to three proposed Senate districts that the United found objectionable— Districts 2, 12, and 26—and two districts that the intervenors challenged—Districts 15 and 22. 22 The United through the Attorney General, argued in District Court that Georgia's 2001 Senate redistricting plan should not be precleared. t argued that the plan's changes to the boundaries of Districts 2, 12, and 26 unlawfully reduced the ability of black voters to elect candidates of their choice. See Brief for Federal Appellees 8; The United noted that in District 2, the black voting age population dropped from 60.58% to 50.31%; in District 12, the black voting age population dropped from 55.43% to 50.66%; and in District 26, the black voting age |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | to 50.66%; and in District 26, the black voting age population dropped from 62.45% to 50.80%.1 Moreover, in all three of these districts, the percentage of black registered voters dropped to just under 50%. The United submitted expert evidence that voting is racially polarized in Senate Districts 2, 12, and 26. See The United acknowledged that some limited percentage of whites would vote for a black candidate, but maintained that the percentage was not sufficient for black voters to elect their candidate of choice. See The United offered testimony from various witnesses, including lay witnesses living in the three districts, who asserted that the new contours of Districts 2, 12, and 26 would reduce the opportunity for blacks to elect a candidate of their choice in those districts; Senator Regina Thomas of District 2, the only black Senator who voted against the plan; Senator Eric Johnson, the Republican leader of the Senate; and some black legislators who voted for the plan but questioned how the plan would affect black voters. See Vols. 25-27 Record, Doc. No. 177, United Exhs. 707-736 (Depositions). As the District Court stated, "the United ' evidence was extremely limited in scope—focusing only on three contested districts in the State Senate That evidence was not designed to permit the court to assess the overall impact of [the Senate plan]." 23 Pursuant to Federal Rule of Civil Procedure 24, the District Court permitted four African-American citizens of Georgia to intervene. The intervenors identified two other districts—Districts 15 and 22—where they alleged retrogression had occurred. The intervenors "present[ed] little evidence other than proposed alternative plans and an expert report critiquing the State's expert report." 24 A three-judge panel of the District Court held that Georgia's State Senate apportionment violated 5, and was therefore not entitled to preclearance. See Judge Sullivan, joined by Judge Edwards, concluded that Georgia had "not demonstrated by a preponderance of the evidence that the State Senate redistricting plan would not have a retrogressive effect on African American voters" effective exercise of the electoral franchise. The court found that Senate Districts 2, 12, and 26 were retrogressive because in each district, a lesser opportunity existed for the black candidate of choice to win election under the new plan than under the benchmark See The court found that the reductions in black voting age population in Districts 2, 12, and 26 would "diminish African American voting strength in these districts," and that Georgia had "failed to present any evidence" that the retrogression in those districts "will be offset by gains in other districts." 25 Judge Edwards, joined |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | offset by gains in other districts." 25 Judge Edwards, joined by Judge Sullivan, concurred. Judge Edwards emphasized that 5 and 2 are "procedurally and substantively distinct provisions." He therefore rejected Georgia's argument that a plan preserving an equal opportunity for minorities to elect candidates of their choice satisfies 5. Judge Edwards rejected the testimony of the black Georgia politicians who supported the Senate n his view, the testimony did not address whether racial polarization was occurring in Senate Districts 2, 12, and 26. See 26 Judge Oberdorfer dissented. He would have given "greater credence to the political expertise and motivation of Georgia's African-American political leaders and reasonable inferences drawn from their testimony and the voting data and statistics." He noted that this Court has not answered "whether a redistricting plan that preserves or increases the number of districts statewide in which minorities have a fair or reasonable opportunity to elect candidates of choice is entitled to preclearance, or whether every district must remain at or improve on the benchmark probability of victory, even if doing so maintains a minority super-majority far in excess of the level needed for effective exercise of [the] electoral franchise." 27 After the District Court refused to preclear the plan, Georgia enacted another plan, largely similar to the one at issue here, except that it added black voters to Districts 2, 12, and 26. The District Court precleared this See No party has contested the propriety of the District Court's preclearance of the Senate plan as amended. Georgia asserts that it will use the plan as originally enacted if it receives preclearance. 28 We noted probable jurisdiction to consider whether the District Court should have precleared the plan as originally enacted by Georgia in 2001, and now vacate the judgment below. 29 Before addressing the merits of Georgia's preclearance claim, we address the State's argument that the District Court was incorrect in allowing the private litigants to intervene in this lawsuit. Georgia maintains that private parties should not be allowed to intervene in 5 actions because should not be subjected to the political stratagems of intervenors. While the United disagrees with Georgia on the propriety of intervention here, the United argues that this question is moot because the participation of the intervenors did not affect the District Court's ruling on the merits and the intervenors did not appeal the court's ruling. 30 We do not think Georgia's argument is moot. The intervenors did not have to appeal because they were prevailing parties below. Moreover, the District Court addressed the evidence that the intervenors submitted, which is |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | Court addressed the evidence that the intervenors submitted, which is now in front of this Court. The issue whether intervenors are proper parties still has relevance in this Court because they argue here that the District Court correctly found that the Senate plan was retrogressive. 31 The District Court properly found that Federal Rule of Civil Procedure 24 governs intervention in this case. Section 5 permits a State to bring "an action in the United District Court for the District of Columbia for a declaratory judgment." 42 U.S. C. c. Section 5 does not limit in any way the application of the Federal Rules of Civil Procedure to this type of lawsuit, and the statute by its terms does not bar private parties from intervening. n we held that in an action under 5, "[i]ntervention in a federal court suit is governed by Fed. Rule Civ. Proc. 24." 32 To support its argument, Georgia relies on n Morris, we held that in an administrative preclearance action, the decision to object belongs only to the Attorney General and is not judicially reviewable. See But Morris concerned the administrative preclearance process, not the judicial preclearance process. Morris itself recognized the difference between administrative preclearance and judicial preclearance. See 33 Here, the District Court granted the motion to intervene because it found that the intervenors' "analysis of the. Senate redistricting pla[n] identifies interests that are not adequately represented by the existing parties." App. to Juris. Statement 218a. Private parties may intervene in 5 actions assuming they meet the requirements of Rule 24, and the District Court did not abuse its discretion in granting the motion to intervene in this case. See 34 * Section 5 of the Voting Rights Act "has a limited substantive goal: "`to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.'" (quoting 425 U. S., [at ])." Thus, a plan that merely preserves "current minority voting strength" is entitled to 5 preclearance. City of ; ndeed, a voting change with a discriminatory but nonretrogressive purpose or effect does not violate 5. See And "no matter how unconstitutional it may be," a plan that is not retrogressive should be precleared under 5. "[P]reclearance under 5 affirms nothing but the absence of backsliding." 35 Georgia argues that a plan should be precleared under 5 if the plan would satisfy 2 of the Voting Rights Act of 1965, 42 U.S. C. We have, however, "consistently understood" 2 to "combat different evils |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | We have, however, "consistently understood" 2 to "combat different evils and, accordingly, to impose very different duties upon the" For example, while 5 is limited to particular covered jurisdictions, 2 applies to all And the 2 inquiry differs in significant respects from a 5 inquiry. n contrast to 5's retrogression standard, the "essence" of a 2 vote dilution claim is that "a certain electoral law, practice, or structure. cause[s] an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." ; see ; ; 42 U.S. C. (b). Unlike an inquiry under 2, a retrogression inquiry under 5, "by definition, requires a comparison of a jurisdiction's new voting plan with its existing " Bossier Parish at 8. While some parts of the 2 analysis may overlap with the 5 inquiry, the two sections "differ in structure, purpose, and application." 36 n Bossier Parish we specifically held that a violation of 2 is not an independent reason to deny preclearance under 5. See 520 U.S., at The reason for this holding was straightforward: "[R]ecognizing 2 violations as a basis for denying 5 preclearance would inevitably make compliance with 5 contingent upon compliance with 2. Doing so would, for all intents and purposes, replace the standards for 5 with those for 2." 37 Georgia here makes the flip side of the argument that failed in Bossier Parish —compliance with 2 suffices for preclearance under 5. Yet the argument fails here for the same reasons the argument failed in Bossier Parish We refuse to equate a 2 vote dilution inquiry with the 5 retrogression standard. Georgia's argument, like the argument in Bossier Parish would "shift the focus of 5 from nonretrogression to vote dilution, and [would] change the 5 benchmark from a jurisdiction's existing plan to a hypothetical, undiluted " nstead of showing that the Senate plan is nondilutive under 2, Georgia must prove that its plan is nonretrogressive under 5. B 38 Georgia argues that even if compliance with 2 does not automatically result in preclearance under 5, its State Senate plan should be precleared because it does not lead to "a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." at See, e. g., Brief for Appellant 32, 36. While we have never determined the meaning of "effective exercise of the electoral franchise," this case requires us to do so in some detail. First, the United and the District Court correctly acknowledge that in examining whether the new plan is retrogressive, the inquiry must encompass the entire statewide |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | plan is retrogressive, the inquiry must encompass the entire statewide plan as a whole. See ; Tr. of Oral Arg. 28-29. Thus, while the diminution of a minority group's effective exercise of the electoral franchise in one or two districts may be sufficient to show a violation of 5, it is only sufficient if the covered jurisdiction cannot show that the gains in the plan as a whole offset the loss in a particular district. 40 Second, any assessment of the retrogression of a minority group's effective exercise of the electoral franchise depends on an examination of all the relevant circumstances, such as the ability of minority voters to elect their candidate of choice, the extent of the minority group's opportunity to participate in the political process, and the feasibility of creating a nonretrogressive See, e. g., ; Richmond v. United ; -100 "No single statistic provides courts with a shortcut to determine whether" a voting change retrogresses from the benchmark. 0-1021. 41 n assessing the totality of the circumstances, a court should not focus solely on the comparative ability of a minority group to elect a candidate of its choice. While this factor is an important one in the 5 retrogression inquiry, it cannot be dispositive or exclusive. The standard in 5 is simple— whether the new plan "would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." 425 U. S., at 42 The ability of minority voters to elect a candidate of their choice is important but often complex in practice to determine. n order to maximize the electoral success of a minority group, a State may choose to create a certain number of "safe" districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice. See 8 U. S., at 48-49; Alternatively, a State may choose to create a greater number of districts in which it is likely—although perhaps not quite as likely as under the benchmark plan—that minority voters will be able to elect candidates of their choice. See -89 ; cf. Pildes, s Voting-Rights Law Now at War With tself? Social Science and Voting Rights in the 2000s, 80 N. C. L. Rev. 1517 43 Section 5 does not dictate that a State must pick one of these methods of redistricting over another. Either option "will present the minority group with its own array of electoral risks and benefits," and presents "hard choices about what would truly `maximize' minority electoral success." On one hand, a |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | would truly `maximize' minority electoral success." On one hand, a smaller number of safe majority-minority districts may virtually guarantee the election of a minority group's preferred candidate in those districts. Yet even if this concentration of minority voters in a few districts does not constitute the unlawful packing of minority voters, see such a plan risks isolating minority voters from the rest of the State, and risks narrowing political influence to only a fraction of political districts. Cf. -650. And while such districts may result in more "descriptive representation" because the representatives of choice are more likely to mirror the race of the majority of voters in that district, the representation may be limited to fewer areas. See H. The Concept of Representation 60-91 (1967). 44 On the other hand, spreading out minority voters over a greater number of districts creates more districts in which minority voters may have the opportunity to elect a candidate of their choice. Such a strategy has the potential to increase "substantive representation" in more districts, by creating coalitions of voters who together will help to achieve the electoral aspirations of the minority group. See t however, creates the risk that the minority group's preferred candidate may lose. Yet as we stated in 0: 45 "[T]here are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice. Those candidates may not represent perfection to every minority voter, but minority voters are not immune from the obligation to pull, haul, and trade to find common political ground, the virtue of which is not to be slighted in applying a statute meant to hasten the waning of racism in American politics." Section 5 gives the flexibility to choose one theory of effective representation over the other. 46 n addition to the comparative ability of a minority group to elect a candidate of its choice, the other highly relevant factor in a retrogression inquiry is the extent to which a new plan changes the minority group's opportunity to participate in the political process. "`[T]he power to influence the political process is not limited to winning elections.'" ); see ; ; -1012. Thus, a court must examine whether a new plan adds or subtracts "influence districts"—where minority voters may not be able to elect a candidate of choice but can play a substantial, if not decisive, role in the electoral process. Cf. 9, n. 21 ; ; ; 8 U. S., -100 |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | 9, n. 21 ; ; ; 8 U. S., -100 n assessing the comparative weight of these influence districts, it is important to consider "the likelihood that candidates elected without decisive minority support would be willing to take the minority's interests into account." n fact, various studies have suggested that the most effective way to maximize minority voting strength may be to create more influence or coalitional districts. See, e. g., Lublin, Racial Redistricting and African-American Representation: A Critique of "Do Majority-Minority Districts Maximize Substantive Black Representation in Congress?" 93 Am. Pol. Sci. Rev. 183, 185 (1999) (noting that racial redistricting in the early 1990's, which created more majority-minority districts, made Congress "less likely to adopt initiatives supported by blacks"); Cameron, Epstein, & O'Halloran, Do Majority-Minority Districts Maximize Substantive Black Representation in Congress? 90 Am. Pol. Sci. Rev. 4, 808 (concluding that the "[d]istricting schemes that maximize the number of minority representatives do not necessarily maximize substantive minority representation"); C. Black Faces, Black nterests 193-234 ; Pildes, 80 N. C. L. Rev., at 1517; Grofman, Handley, & Lublin, Drawing Effective Minority Districts: A Conceptual Framework and Some Empirical Evidence, N. C. L. Rev. 1383 (2001). 48 Section 5 leaves room for to use these types of influence and coalitional districts. ndeed, the State's choice ultimately may rest on a political choice of whether substantive or descriptive representation is preferable. See ; The State may choose, consistent with 5, that it is better to risk having fewer minority representatives in order to achieve greater overall representation of a minority group by increasing the number of representatives sympathetic to the interests of minority voters. See 99 ; cf. 512 U. S., 0. 49 n addition to influence districts, one other method of assessing the minority group's opportunity to participate in the political process is to examine the comparative position of legislative leadership, influence, and power for representatives of the benchmark majority-minority districts. A legislator, no less than a voter, is "not immune from the obligation to pull, haul, and trade to find common political ground." ndeed, in a representative democracy, the very purpose of voting is to delegate to chosen representatives the power to make and pass laws. The ability to exert more control over that process is at the core of exercising political power. A lawmaker with more legislative influence has more potential to set the agenda, to participate in closed-door meetings, to negotiate from a stronger position, and to shake hands on a deal. Maintaining or increasing legislative positions of power for minority voters' representatives of choice, while not dispositive |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | power for minority voters' representatives of choice, while not dispositive by itself, can show the lack of retrogressive effect under 5. 50 And it is significant, though not dispositive, whether the representatives elected from the very districts created and protected by the Voting Rights Act support the new districting The District Court held that the support of legislators from benchmark majority-minority districts may show retrogressive purpose, but it is not relevant in assessing retrogressive effect. See 195 F. Supp. 2d, ; see post, 03 (SOUTER, J., dissenting). But we think this evidence is relevant for retrogressive effect. As the dissent recognizes, the retrogression inquiry asks how "voters will probably act in the circumstances in which they live." Post, 09. The representatives of districts created to ensure continued minority participation in the political process have some knowledge about how "voters will probably act" and whether the proposed change will decrease minority voters' effective exercise of the electoral franchise. 51 The dissent maintains that standards for determining non-retrogression under 5 that we announce today create a situation where "[i]t is very hard to see anything left of" 5. Post, at 495. But the dissent ignores that the ability of a minority group to elect a candidate of choice remains an integral feature in any 5 analysis. Cf. And the dissent agrees that the addition or subtraction of coalitional districts is relevant to the 5 inquiry. See post, at 492, 504. Yet assessing whether a plan with coalitional districts is retrogressive is just as fact-intensive as whether a plan with both influence and coalitional districts is retrogressive. As JUSTCE SOUTER recognized for the Court in the 2 context, a court or the Department of Justice should assess the totality of circumstances in determining retrogression under 5. See 0-1021. And it is of course true that evidence of racial polarization is one of many factors relevant in assessing whether a minority group is able to elect a candidate of choice or to exert a significant influence in a particular district. See 8 U. S., ; -104 ; see ; 52 The dissent nevertheless asserts that it "cannot be right" that the 5 inquiry goes beyond assessing whether a minority group can elect a candidate of its choice. Post, at 494. But except for the general statement of retrogression in Beer, the dissent cites no law to support its contention that retrogression should focus solely on the ability of a minority group to elect a candidate of choice. As JUSTCE SOUTER himself, writing for the Court in has recognized, the "extent of the opportunities minority |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | Court in has recognized, the "extent of the opportunities minority voters enjoy to participate in the political processes" is an important factor to consider in assessing a 2 vote-dilution inquiry. See -100 n determining how the new districting plan differs from the benchmark plan, the same standard should apply to 5. C 53 The District Court failed to consider all the relevant factors when it examined whether Georgia's Senate plan resulted in a retrogression of black voters' effective exercise of the electoral franchise. First, while the District Court acknowledged the importance of assessing the statewide plan as a whole, the court focused too narrowly on proposed Senate Districts 2, 12, and 26. t did not examine the increases in the black voting age population that occurred in many of the other districts. Second, the District Court did not explore in any meaningful depth any other factor beyond the comparative ability of black voters in the majority-minority districts to elect a candidate of their choice. n doing so, it paid inadequate attention to the support of legislators representing the benchmark majority-minority districts and the maintenance of the legislative influence of those representatives. 54 The District Court correctly recognized that the increase in districts with a substantial minority of black voters is an important factor in the retrogression inquiry. See -78. Nevertheless, it did not adequately apply this consideration to the facts of this case. The District Court ignored the evidence of numerous other districts showing an increase in black voting age population, as well as the other evidence that Georgia decided that a way to increase black voting strength was to adopt a plan that "unpacked" the high concentration of minority voters in the majority-minority districts. ts statement that Georgia did not "presen[t] evidence regarding potential gains in minority voting strength in Senate Districts other than Districts 2, 12 and 26" is therefore clearly erroneous. Like the dissent, we accept the District Court's findings that the reductions in black voting age population in proposed Districts 2, 12, and 26 to just over 50% make it marginally less likely that minority voters can elect a candidate of their choice in those districts, although we note that Georgia introduced evidence showing that approximately one-third of white voters would support a black candidate in those districts, see and that the United ' own expert admitted that the results of statewide elections in Georgia show that "there would be a `very good chance' that African American candidates would win election in the reconstituted districts." ; see Nevertheless, regardless of any racially polarized voting or diminished |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | see Nevertheless, regardless of any racially polarized voting or diminished opportunity for black voters to elect a candidate of their choice in proposed Districts 2, 12, and 26, the District Court's inquiry was too narrow. 55 n the face of Georgia's evidence that the Senate plan as a whole is not retrogressive, the United introduced nothing apart from the evidence that it would be more difficult for minority voters to elect their candidate of choice in Districts 2, 12, and 26. As the District Court stated, the United did not introduce any evidence to rebut Georgia's evidence that the increase in black voting age population in the other districts offsets any decrease in black voting age population in the three contested districts: "[T]he United ' evidence was extremely limited in scope—focusing only on three contested districts in the State Senate " ndeed, the District Court noted that the United ' evidence "was not designed to permit the court to assess the overall impact" of the Senate 56 Given the evidence submitted in this case, we find that Georgia likely met its burden of showing nonretrogression. The increase in black voting age population in the other districts likely offsets any marginal decrease in the black voting age population in the three districts that the District Court found retrogressive. Using the overlay of the 2000 census numbers, Georgia's strategy of "unpacking" minority voters in some districts to create more influence and coalitional districts is apparent. Under the 2000 census numbers, the number of majority black voting age population districts in the new plan increases by one, the number of districts with a black voting age population of between 30% and 50% increases by two, and the number of districts with a black voting age population of between 25% and 30% increases by another 2. See Pl. Exhs. 1D, 2C; see at 0-1. 57 Using the census numbers in effect at the time the benchmark plan was enacted to assess the benchmark plan, the difference is even more striking. Under those figures, the new plan increases from 10 to 13 the number of districts with a majority-black voting age population and increases from 8 to 13 the number of districts with a black voting age population of between 30% and 50%. See Pl. Exhs. 1C, 2C. Thus, the new plan creates 8 new districts—out of 56—where black voters as a group can play a substantial or decisive role in the electoral process. ndeed, under the census figures in use at the time Georgia enacted its benchmark plan, the black voting age population in |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | enacted its benchmark plan, the black voting age population in Districts 2, 12, and 26 does not decrease to the extent indicated by the District Court. District 2 drops from 59.27% black voting age population to 50.31%. District 26 drops from 53.45% black voting age population to 50.80%. And District 12 actually increases, from 46.50% black voting age population to 50.66%. See Pl. Exhs. 1C, 2C.2 And regardless of any potential retrogression in some districts, 5 permits Georgia to offset the decline in those districts with an increase in the black voting age population in other districts. The testimony from those who designed the Senate plan confirms what the statistics suggest—that Georgia's goal was to "unpack" the minority voters from a few districts to increase blacks' effective exercise of the electoral franchise in more districts. See at 469-1. 58 Other evidence supports the implausibility of finding retrogression here. An examination of black voters' opportunities to participate in the political process shows, if anything, an increase in the effective exercise of the electoral franchise. t certainly does not indicate retrogression. The 34 districts in the proposed plan with a black voting age population of above 20% consist almost entirely of districts that have an overall percentage of Democratic votes of above 50%. See Pl. Exh. 2D. The one exception is proposed District 4, with a black voting age population of 30.51% and an overall Democratic percentage of 48.86%. See These statistics make it more likely as a matter of fact that black voters will constitute an effective voting bloc, even if they cannot always elect the candidate of their choice. See 8 U. S., These statistics buttress the testimony of the designers of the plan such as Senator Brown, who stated that the goal of the plan was to maintain or increase black voting strength and relatedly to increase the prospects of Democratic victory. See at 469-0. 59 The testimony of Congressman John Lewis is not so easily dismissed. Congressman Lewis is not a member of the State Senate and thus has less at stake personally in the outcome of this litigation. Congressman Lewis testified that "giving real power to black voters comes from the kind of redistricting efforts the State of Georgia has made," and that the Senate plan "will give real meaning to voting for African Americans" because "you have a greater chance of putting in office people that are going to be responsive." Pl. Exh. 21, at 21-23. Section 5 gives the flexibility to implement the type of plan that Georgia has submitted for preclearance—a plan that increases |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | plan that Georgia has submitted for preclearance—a plan that increases the number of districts with a majority-black voting age population, even if it means that in some of those districts, minority voters will face a somewhat reduced opportunity to elect a candidate of their choice. Cf. 60 The dissent's analysis presumes that we are deciding that Georgia's Senate plan is not retrogressive. See post, 01-508. To the contrary, we hold only that the District Court did not engage in the correct retrogression analysis because it focused too heavily on the ability of the minority group to elect a candidate of its choice in the majority-minority districts. While the District Court engaged in a thorough analysis of the issue, we must remand the case for the District Court to examine the facts using the standard that we announce today. We leave it for the District Court to determine whether Georgia has indeed met its burden of proof. The dissent justifies its conclusion here on the ground that the District Court did not clearly err in its factual determination. But the dissent does not appear to dispute that if the District Court's legal standard was incorrect, the decision below should be vacated. 61 The purpose of the Voting Rights Act is to prevent discrimination in the exercise of the electoral franchise and to foster our transformation to a society that is no longer fixated on race. Cf. 512 U. S., 0; As Congressman Lewis stated: " think that's what the [civil rights] struggle was all about, to create what like to call a truly interracial democracy in the South. n the movement, we would call it creating the beloved community, an all-inclusive community, where we would be able to forget about race and color and see people as people, as human beings, just as citizens." Pl. Exh. 21, at 14. While courts and the Department of Justice should be vigilant in ensuring that neither reduce the effective exercise of the electoral franchise nor discriminate against minority voters, the Voting Rights Act, as properly interpreted, should encourage the transition to a society where race no longer matters: a society where integration and color-blindness are not just qualities to be proud of, but are simple facts of life. See V 62 The District Court is in a better position to reweigh all the facts in the record in the first instance in light of our explication of retrogression. The judgment of the District Court for the District of Columbia, accordingly, is vacated, and the case is remanded for further proceedings consistent with this opinion. |
Justice O'Connor | 2,003 | 14 | majority | Georgia v. Ashcroft, Attorney General | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | case is remanded for further proceedings consistent with this opinion. 63 t is so ordered. Notes: * A brief ofamicus curiae urging affirmance was filed for the Georgia Coalition for the Peoples' Agenda by Laughlin McDonald, Neil Bradley, Barbara R. Arnwine, Thomas J. Henderson, Anita Hodgkiss, Elaine R. Jones, Norman J. Chachkin, and Todd A. Cox. 1 Georgia and the United have submitted slightly different figures regarding the black voting age population of each district. The differing figures depend upon whether the total number of blacks includes those people who self-identify as both black and a member of another minority group, such as Hispanic. Georgia counts this group of people, while the United does not do so. Like the District Court, we consider all the record information, "including total black population, black registration numbers and both [black voting age population] numbers." We focus in particular on Georgia's black voting age population numbers in this case because all parties rely on them to some extent and because Georgia used its own black voting age population numbers when it enacted the Senate Moreover, the United does not count all persons who identify themselves as black. t counts those who say they are black and those who say that they are both black and white, but it does not count those who say they are both black and a member of another minority group. Using the United ' numbers may have more relevance if the case involves a comparison of different minority groups. Cf, ; Here, however, the case involves an examination of only one minority group's effective exercise of the electoral franchise. n such circumstances, we believe it is proper to look at all individuals who identify themselves as black. 2 The dissent summarily rejects any inquiry into the benchmark plan using the census numbers in effect at the time the redistricting plan was passed. Seepost, 06. Yet we think it is relevant to examine how the new plan differs from the benchmark plan as originally enacted by the legislature. The 5 inquiry, after all, revolves around the change from the previous The 1990 census numbers are far from "irrelevant." Rather, examining the benchmark plan with the census numbers in effect at the time the State enacted its plan comports with the one-person, one-vote principle of and its progeny. When the decennial census numbers are released, must redistrict to account for any changes or shifts in population. But before the new census, operate under the legal fiction that even 10 years later, the plans are constitutionally apportioned. After the new enumeration, no |
Justice Thomas | 2,004 | 1 | second_dissenting | Locke v. Davey | https://www.courtlistener.com/opinion/131166/locke-v-davey/ | Because the parties agree that a "degree in theology" means a degree that is "devotional in nature or designed to induce religious faith," Brief for Petitioners 6; Brief for Respondent 8, I assume that this is so for purposes of deciding this case. With this understanding, I join JUSTICE SCALIA'S dissenting opinion. I write separately to note that, in my view, the study of theology does not necessarily implicate religious devotion or faith. The contested statute denies Promise Scholarships to students who pursue "a degree in theology." See (12)(g) (2003) ; Wash. Rev. Code Ann. 28B.10.814 (West 1997) ("No aid shall be awarded to any student who is pursuing a degree in theology"). But the statute itself does not define "theology." And the usual definition of the term "theology" is not limited to devotional studies. "Theology" is defined as "[t]he study of the nature *735 of God and religious truth" and the "rational inquiry into religious questions." American Heritage Dictionary 1794 (4th ed. 2000). See also Webster's Ninth New Collegiate Dictionary 1223 (1991) ("the study of religious faith, practice, and experience" and "the study of God and his relation to the world"). These definitions include the study of theology from a secular perspective as well as from a religious one. Assuming that the State denies Promise Scholarships only to students who pursue a degree in devotional theology, I believe that JUSTICE SCALIA'S application of our precedents is correct. Because neither party contests the validity of these precedents, I join JUSTICE SCALIA'S dissent. |
Justice Rehnquist | 1,980 | 19 | second_dissenting | City of Rome v. United States | https://www.courtlistener.com/opinion/110248/city-of-rome-v-united-states/ | We have only today held that the city of Mobile does not violate the Constitution by maintaining an at-large system of electing city officials unless voters can prove that system is a product of purposeful discrimination. City of Mobile v. Bolden, ante, p. 55. This result is reached even though the black residents of Mobile have demonstrated that racial "bloc" voting has prevented them from electing a black representative to the city government. The Court correctly concluded that a city has no obligation under the Constitution *207 to structure its representative system in a manner that maximizes the black community's ability to elect a black representative. Yet in the instant case, the city of Rome is prevented from instituting precisely the type of structural changes which the Court says Mobile may maintain consistently with the Civil War Amendments, so long as their purpose be legitimate, because Congress has prohibited these changes under the Voting Rights Act as an exercise of its "enforcement" power conferred by those Amendments. It is not necessary to hold that Congress is limited to merely providing a forum in which aggrieved plaintiffs may assert rights under the Civil War Amendments in order to disagree with the Court's decision permitting Congress to straitjacket the city of Rome in this manner. Under 5 of the Fourteenth Amendment and 2 of the Fifteenth Amendment, Congress is granted only the power to "enforce" by "appropriate" legislation the limitations on state action embodied in those Amendments. While the presumption of constitutionality is due to any act of a coordinate branch of the Federal Government or of one of the States, it is this Court which is ultimately responsible for deciding challenges to the exercise of power by those entities. ; United Today's decision is nothing less than a total abdication of that authority, rather than an exercise of the deference due to a coordinate branch of the government. I The facts of this case readily demonstrate the fallacy underlying the Court's determination that congressional prohibition of Rome's conduct can be characterized as enforcement of the Fourteenth or Fifteenth [1] The *208 three-judge District Court entered extensive findings of fact facts which are conspicuously absent from the Court's opinion. The lower court found that Rome has not employed any discriminatory barriers to black voter registration in the past 17 years. Nor has the city employed any other barriers to black voting or black candidacy. Indeed, the court found that white elected officials have encouraged blacks to run for elective posts in Rome, and are "responsive to the needs and interests of the |
Justice Rehnquist | 1,980 | 19 | second_dissenting | City of Rome v. United States | https://www.courtlistener.com/opinion/110248/city-of-rome-v-united-states/ | and are "responsive to the needs and interests of the black community." The city has not discriminated against blacks in the provision of services and has made efforts to upgrade black neighborhoods. It was also established that although a black has never been elected to political office in Rome, a black was appointed to fill a vacancy in an elective post. White candidates vigorously pursue the support of black voters. Several commissioners testified that they spent proportionately more time campaigning in the black community because they "needed that vote to win." The court concluded that "blacks often hold the balance of power in Rome elections." Despite this political climate, the Attorney General refused to approve a number of city annexations and various changes in the electoral process. The city sought to require majority vote for election to the City Commission and Board of Education; to create numbered posts and staggered terms for those elections; and to establish a ward residency requirement for Board of Education elections. In addition, during the years *209 between 1964 and 1973, the city effected 60 annexations. Appellees concede that none of the annexations were sought for discriminatory purposes. All of the electoral changes and 13 of the annexations were opposed by the Attorney General on the grounds that their adoption would lessen the likelihood that blacks would be successful in electing a black city official, assuming racial-bloc voting on the part of both whites and blacks. Each of the changes was considered to be an impermissible "vote-dilution" device. Rome sought judicial relief and the District Court found that the city had met its burden of proving that these electoral changes and annexations were not enacted with the purpose of discriminating against blacks. The changes were nevertheless prohibited because of their perceived disparate effect.[2] II The Court holds today that the city of Rome can constitutionally be compelled to seek congressional approval for most of its governmental changes even though it has not engaged in any discrimination against blacks for at least 17 years. Moreover, the Court also holds that federal approval can be constitutionally denied even after the city has proved that the changes are not purposefully discriminatory. While I agree with MR. JUSTICE POWELL'S conclusion that requiring localities to submit to preclearance is a significant intrusion on local autonomy, it is an even greater intrusion on that autonomy to deny preclearance sought. The facts of this case signal the necessity for this Court to carefully scrutinize the alleged source of congressional power to intrude so deeply in the governmental structure of the municipal corporations |
Justice Rehnquist | 1,980 | 19 | second_dissenting | City of Rome v. United States | https://www.courtlistener.com/opinion/110248/city-of-rome-v-united-states/ | so deeply in the governmental structure of the municipal corporations created by some of the 50 States. Section 2 of the Fifteenth Amendment and 5 of the Fourteenth *210 provide that Congress shall have the power to "enforce" 1 "by appropriate legislation." Congressional power to prohibit the electoral changes proposed by Rome is dependent upon the scope and nature of that power. There are three theories of congressional enforcement power relevant to this case. First, it is clear that if the proposed changes would violate the Constitution, Congress could certainly prohibit their implementation. It has never been seriously maintained, however, that Congress can do no more than the judiciary to enforce the Amendments' commands. Thus, if the electoral changes in issue do not violate the Constitution, as judicially interpreted, it must be determined whether Congress could nevertheless appropriately prohibit these changes under the other two theories of congressional power. Under the second theory, Congress can act remedially to enforce the judicially established substantive prohibitions of the Amendments. If not properly remedial, the exercise of this power could be sustained only if this Court accepts the premise of the third theory that Congress has the authority under its enforcement powers to determine, without more, that electoral changes with a disparate impact on race violate the Constitution, in which case Congress by a legislative Act could effectively amend the Constitution. I think it is apparent that neither of the first two theories for sustaining the exercise of congressional power supports this application of the Voting Rights Act. After our decision in City of Mobile there is little doubt that Rome has not engaged in constitutionally prohibited conduct.[3] I also do not *211 believe that prohibition of these changes can genuinely be characterized as a remedial exercise of congressional enforcement powers. Thus, the result of the Court's holding is that Congress effectively has the power to determine for itself that this conduct violates the Constitution. This result violates previously well-established distinctions between the Judicial Branch and the Legislative or Executive Branches of the Federal Government. See United ; A If the enforcement power is construed as a "remedial" grant of authority, it is this Court's duty to ensure that a challenged congressional Act does no more than "enforce" the limitations on state power established in the Fourteenth and Fifteenth Amendments. The Court has not resolved the question of whether it is an appropriate exercise of remedial power for Congress to prohibit local governments from instituting structural changes in their government, which although not racially motivated, will have the effect of decreasing the ability |
Justice Rehnquist | 1,980 | 19 | second_dissenting | City of Rome v. United States | https://www.courtlistener.com/opinion/110248/city-of-rome-v-united-states/ | racially motivated, will have the effect of decreasing the ability of a black voting bloc to elect a black candidate. This Court has found, as a matter of statutory interpretation, that Congress intended to prohibit governmental changes on the basis of no more than disparate impact under the Voting Rights Act. These cases, however, have never directly presented the constitutional questions implicated by the lower court finding in this case that the city has engaged in no purposeful discrimination in enacting these changes, or otherwise, for almost two decades. See ; City of ; ; Fairley v. Patterson, decided together with In none of these cases was the Court squarely presented with a constitutional challenge to congressional power to prohibit state electoral *212 practices after the locality has disproved the existence of any purposeful discrimination.[4] The cases in which this Court has actually examined the constitutional questions relating to Congress' exercise of its powers to enforce the Fourteenth and Fifteenth Amendments also did not purport to resolve this issue.[5] But the principles which can be distilled from those precedents require the conclusion that the limitations on state power at issue cannot be sustained as a remedial exercise of power. *213 While the Fourteenth and Fifteenth Amendments prohibit only purposeful discrimination, the decisions of this Court have recognized that in some circumstances, congressional prohibition of state or local action which is not purposefully discriminatory may nevertheless be appropriate remedial legislation under the Civil War Amendments. See ; Gaston Those circumstances, however, are not without judicial limits. These decisions indicate that congressional prohibition of some conduct which may not itself violate the Constitution is "appropriate" legislation "to enforce" the Civil War Amendments if that prohibition is necessary to remedy prior constitutional violations by the governmental unit, or if necessary to effectively prevent purposeful discrimination by a governmental unit. In both circumstances, Congress would still be legislating in response to the incidence of state action violative of the Civil War Amendments. These precedents are carefully formulated around a historic tenet of the law that in order to invoke a remedy, there must be a wrong and under a remedial construction of congressional power to enforce the Fourteenth and Fifteenth Amendments, that wrong must amount to a constitutional violation. Only when the wrong is identified can the appropriateness of the remedy be measured. The Court today identifies the constitutional wrong which was the object of this congressional exercise of power as purposeful discrimination by local governments in structuring their political processes in an effort to reduce black voting strength. The Court goes on to |
Justice Rehnquist | 1,980 | 19 | second_dissenting | City of Rome v. United States | https://www.courtlistener.com/opinion/110248/city-of-rome-v-united-states/ | to reduce black voting strength. The Court goes on to hold that the prohibitions imposed in this case represent an "appropriate" means of preventing such constitutional violations. The Court does not rest this conclusion on any finding that this prohibition is necessary to remedy any prior discrimination by the locality. Rather, the Court reasons that prohibition of changes discriminatory *214 in effect prevent the incidence of changes which are discriminatory in purpose: "Congress could rationally have concluded that, because electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination, it was proper to prohibit changes that have a discriminatory impact." Ante, at 177. What the Court explicitly ignores is that in this case the city has proved that these changes are not discriminatory in purpose. Neither reason nor precedent supports the conclusion that here it is "appropriate" for Congress to attempt to prevent purposeful discrimination by prohibiting conduct which a locality proves is not purposeful discrimination. Congress had before it evidence that various governments were enacting electoral changes and annexing territory to prevent the participation of blacks in local government by measures other than outright denial of the franchise.[6] Congress could of course remedy and prevent such purposeful discrimination on the part of local governments. See And given the difficulties of proving that an electoral change or annexation has been undertaken for the purpose of discriminating against blacks, Congress could properly conclude that as a remedial matter it was necessary to place the burden of proving lack of discriminatory purpose on the localities. See South But all of this does not support the conclusion that Congress is acting remedially when it continues the presumption of purposeful discrimination even after the locality has disproved that presumption. Absent other circumstances, it would be a topsy-turvy judicial system which held that electoral changes *215 which have been affirmatively proved to be permissible under the Constitution nonetheless violate the Constitution. The precedent on which the Court relies simply does not support its remedial characterization. Neither nor South legitimizes the use of an irrebuttable presumption that "vote-diluting" changes are motivated by a discriminatory animus. The principal electoral practice in issue in those cases was the use of literacy tests. Yet, the Court simply fails to make any inquiry as to whether the particular electoral practices in issue here are encompassed by the "preventive" remedial rationale invoked in South Carolina and Oregon. The rationale does support congressional prohibition of some electoral practices, but simply has no logical application to the "vote-dilution" devices in issue. In Oregon, |
Justice Rehnquist | 1,980 | 19 | second_dissenting | City of Rome v. United States | https://www.courtlistener.com/opinion/110248/city-of-rome-v-united-states/ | logical application to the "vote-dilution" devices in issue. In Oregon, the Court sustained a nationwide prohibition of literacy tests, thereby extending the more limited suspension approved in South Carolina. By upholding this congressional measure, the Court established that under some circumstances, a congressional remedy may be constitutionally overinclusive by prohibiting some state action which might not be purposefully discriminatory. That possibility does not justify the overinclusiveness countenanced by the Court in this case, however. Oregon by no means held that Congress could simply use discriminatory effect as a proxy for discriminatory purpose, as the Court seems to imply. Instead, the Court opinions identified the factors which rendered this prohibition properly remedial. The Court found the nationwide ban to be an appropriate means of effectively preventing purposeful discrimination in the application of the literacy tests as well as an appropriate means of remedying prior constitutional violations by state and local governments in the administration of education to minorities. The presumption that the literacy tests were either being used to purposefully discriminate, or that the disparate effects of those tests were attributable to discrimination in state-administered *216 education was not very wide of the mark. Various opinions of the Court noted that at the time that Congress enacted the ban, few States were utilizing literacy tests, and the voter registration statistics available within those States suggested that a disparate effect was prevalent. Even if not adopted with a discriminatory purpose, the tests could readily be applied in a discriminatory fashion. Thus a demonstration by the State that it sought to reinstate the tests for legitimate purposes did not eliminate the substantial risk of discrimination in application. Only a ban could effectively prevent the occurrence of purposeful discrimination. The nationwide ban was also found necessary to effectively remedy past constitutional violations. Without the nationwide ban, a voter who was illiterate due to state discrimination in education could be denied the right to vote on the basis of his illiteracy when he moved into a jurisdiction retaining a literacy test for nondiscriminatory purposes. Finally, MR. JUSTICE STEWART found that a uniform prohibition had definite advantages for enforcement and federal relations: it reduced tensions with particular regions, and it relieved the Federal Government from the administrative burden implicated by selective state enforcement. Presumptive prohibition of vote-diluting procedures is not similarly an "appropriate" means of exacting state compliance with the Civil War Amendments. First, these prohibitions are quite unlike the literacy ban, where the disparate effects were traceable to the discrimination of governmental bodies in education even if their present desire to use the tests was |
Justice Rehnquist | 1,980 | 19 | second_dissenting | City of Rome v. United States | https://www.courtlistener.com/opinion/110248/city-of-rome-v-united-states/ | even if their present desire to use the tests was legitimate. See Gaston Any disparate impact associated with the nondiscriminatory electoral changes in issue here results from bloc votingprivate rather than governmental discrimination. *217 It is clear therefore that these prohibitions do not implicate congressional power to devise an effective remedy for prior constitutional violations by local governments. Nor does the Court invoke this aspect of congressional remedial powers. It is also clear that while most States still utilizing literacy tests may have been doing so to discriminate, a similar generalization could not be made about all government structures which have some disparate impact on black voting strength. At the time Congress passed the Act, one study demonstrated that 60% of all cities nationwide had at-large elections for city officials, for example. This form of government was adopted by many cities throughout this century as a reform measure designed to overcome wide-scale corruption in the ward system of government. See Jewell, Local Systems of Representation: Political Consequences and Judicial Choices, Obviously, annexations similarly cannot be presumed to be devoid of legitimate uses. Yet both of these practices are regularly prohibited by the Act in most covered cities. Nor does the prohibition of all practices with a disparate impact enhance congressional prevention of purposeful discrimination. The changes in issue are not, like literacy tests, though fair on their face, subject to discriminatory application by local authorities. See Yick They are either discriminatory from the outset or not. Finally, the advantages supporting the imposition of a nationwide ban are simply not implicated in this case. No added administrative burdens are in issue since Congress has provided the mechanism for preclearance suits in any event, and the burden of proof for this issue is on the locality. And it is certain that the only constitutional wrong implicated purposeful dilutioncan be effectively remedied by prohibiting it where it occurs. For all these reasons, I do not think *2 that the present case is controlled by the result in Oregon. By prohibiting all electoral changes with a disparate impact, Congress has attempted to prevent disparate impactsnot purposeful discrimination. Congress unquestionably has the power to prohibit and remedy state action which intentionally deprives citizens of Fourteenth and Fifteenth Amendment rights. But unless these powers are to be wholly uncanalized, it cannot be appropriate remedial legislation for Congress to prohibit Rome from structuring its government in the manner as its population sees fit absent a finding or unrebutted presumption that Rome has been, or is, intentionally discriminating against its black citizens. Rome has simply committed no constitutional |
Justice Rehnquist | 1,980 | 19 | second_dissenting | City of Rome v. United States | https://www.courtlistener.com/opinion/110248/city-of-rome-v-united-states/ | against its black citizens. Rome has simply committed no constitutional violations, as this Court has defined them. More is at stake than sophistry at its worst in the Court's conclusion that requiring the local government to structure its political system in a manner that most effectively enhances black political strength serves to remedy or prevent constitutional wrongs on the part of the local government. The need to prevent this disparate impact is premised on the assumption that white candidates will not represent black interests, and that States should devise a system encouraging blacks to vote in a bloc for black candidates. The findings in this case alone demonstrate the tenuous nature of these assumptions. The court below expressly found that white officials have ably represented the interests of the black community. Even blacks who testified admitted no dissatisfaction, but expressed only a preference to be represented by officials of their own race. The enforcement provisions of the Civil War Amendments were not premised on the notion that Congress could empower a later generation of blacks to "get even" for wrongs inflicted on their forebears. What is now at stake in the city of Rome is the preference of the black community to be represented by a black. This Court has never elevated such a notion, by no means confined to blacks, to the status of a constitutional right. See This Court concluded in Whitcomb that "[t]he mere fact that one interest group or another concerned with the outcome of elections has found itself outvoted and without legislative seats of its own provides no basis for invoking constitutional remedies where, as here, there is no indication that this segment of the population is being denied access to the political system." The Constitution imposes no obligation on local governments to erect institutional safeguards to ensure the election of a black candidate. Nor do I believe that Congress can do so, absent a finding that this obligation would be necessary to remedy constitutional violations on the part of the local government. It is appropriate to add that even if this Court could find a remedial relationship between the prohibition of all state action with a disparate impact on black voting strength and the incidence of purposeful discrimination, this Court should exercise caution in approving the remedy in issue here absent purposeful dilution. Political theorists can readily differ on the advantages inherent in different governmental structures. As Mr. Justice Harlan noted in his dissent in Fairly v. Patterson, decided together with : "[I]t is not clear to me how a court would go about |
Justice Rehnquist | 1,980 | 19 | second_dissenting | City of Rome v. United States | https://www.courtlistener.com/opinion/110248/city-of-rome-v-united-states/ | not clear to me how a court would go about deciding whether an at-large system is to be preferred over a district system. Under one system, Negroes have some influence in the election of all officers; under the other, minority groups have more influence in the selection of fewer officers." B The result reached by the Court today can be sustained only upon the theory that Congress was empowered to determine that structural changes with a disparate impact on a minority group's ability to elect a candidate of their race *220 violates the Fourteenth or Fifteenth This construction of the Fourteenth Amendment was rejected in the Civil Rights Cases, The Court emphasized that the power conferred was "remedial" only. The Court reasoned that the structure of the Amendment made it clear that it did not "authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers when these are subversive of the fundamental rights specified in the [A]mendment." This interpretation is consonant with the legislative history surrounding the enactment of the [7] This construction has never been refuted by a majority of the Members of this Court. Support for this construction in current years has emerged in South and[8] See also opinion of POWELL, J., ante, at 200-201. In South the Court observed that Congress could not attack evils not comprehended by the Fifteenth In five Members of the Court were unwilling to conclude that Congress had the power to determine that establishing *221 the age limitation for voting at 21 denied equal protection to those between the ages of and 20. The opinion of MR. JUSTICE STEWART in that case, joined by MR. CHIEF JUSTICE BURGER and MR. JUSTICE BLACKMUN, reaffirmed that Congress only has the power under the Fourteenth Amendment to "provide the means of eradicating situations that amount to a violation of the Equal Protection Clause" but not to "determine as a matter of substantive constitutional law what situations fall within the ambit of the clause." Mr. Justice Harlan, in a separate opinion, reiterated his belief that it is the duty of the Court, and not the Congress, to determine when States have exceeded constitutional limitations imposed upon their powers. Cf. ; Mr. Justice Black also was unwilling to accept the broad construction of enforcement powers formulated in the opinion of MR. JUSTICE BRENNAN, joined by JUSTICES WHITE and MARSHALL.[9] The Court today fails to heed this prior precedent. To permit congressional power to prohibit |
Justice Stevens | 2,002 | 16 | dissenting | Great-West Life & Annuity Ins. Co. v. Knudson | https://www.courtlistener.com/opinion/118471/great-west-life-annuity-ins-co-v-knudson/ | In her lucid dissent, which I join, Justice Ginsburg has explained why it is fanciful to assume that in 1974 Congress *222 intended to revive the obsolete distinctions between law and equity as a basis for defining the remedies available in federal court for violations of the terms of a plan under the Employee Retirement Income Security Act of 1974 (ERISA). She has also convincingly argued that the relief sought in the present case is permissible even under the Court's favored test for determining what qualifies as "equitable relief" under 502(a)(3)(B) of ERISA. I add this postscript because I am persuaded that Congress intended the word "enjoin," as used in 502(a)(3)(A), to authorize any appropriate order that prohibits or terminates a violation of an ERISA plan, regardless of whether a precedent for such an order can be found in English Chancery cases. I read the word "other" in 502(a)(3)(B) as having been intended to enlarge, not contract, a federal judge's remedial authority. Consequently, and contrary to the Court's view in I would neither read 502(a)(3)(B) as placing a limitation on a judge's authority under 502(a)(3)(A), nor shackle an analysis of what constitutes "equitable relief" under 502(a)(3)(B) to the sort of historical analysis that the Court has chosen. Nevertheless, Mertens is the law, and an inquiry under 502(a)(3)(B) now entails an analysis of what relief would have been "typically available in equity." 508 U.S., at This does not mean, however, that all inquiries under 502(a)(3) must involve historical analysis, as the Court seems to believe, e. g., ante, at 209-210. In Mertens, our task was to interpret "other appropriate equitable relief" under 502(a)(3)(B), and our holding thus did not extend to the meaning of "to enjoin" in 502(a)(3)(A). As a result, an analysis of tradition is unnecessary with respect to 502(a)(3)(A). Moreover, that section provides a proper basis for federal jurisdiction in the present case, as petitioners brought suit "to enjoin any act or practice which violates the terms of [a] plan." 502(a)(3)(A). *223 Not only is an inclusive reading of 502(a)(3) consonant with the text of the statute, but it accomplishes Congress' goal of providing a federal remedy for violations of the terms of plans governed by ERISA. Contrary to the Court's current reluctance to conclude that wrongs should be remedied,[1] I believe that the historic presumption favoring the provision of remedies for violations of federal rights[2] should inform our construction of the remedial provisions of federal statutes. It is difficult for me to understand why Congress would not have wanted to provide recourse in federal court for the plan |
Justice Stevens | 2,005 | 16 | majority | Smith v. City of Jackson | https://www.courtlistener.com/opinion/142883/smith-v-city-of-jackson/ | Petitioners, police and public safety officers employed by the city of Jackson, Mississippi (hereinafter City), contend that salary increases received in 1999 violated the Age Discrimination in Employment Act of 1967 (ADEA) because they were less generous to officers over the age of 40 than to younger officers. Their suit raises the question whether the "disparate-impact" theory of recovery announced in for cases brought under Title VII of the Civil Rights Act of 1964, is cognizable under the ADEA. Despite the age of the ADEA, it is a question that we have not yet addressed. See Hazen *231 ; I On October 1, 1998, the City adopted a pay plan granting raises to all City employees. The stated purpose of the plan was to "attract and retain qualified people, provide incentive for performance, maintain competitiveness with other public sector agencies and ensure equitable compensation to all employees regardless of age, sex, race and/or disability."[1] On May 1, 1999, a revision of the plan, which was motivated, at least in part, by the City's desire to bring the starting salaries of police officers up to the regional average, granted raises to all police officers and police dispatchers. Those who had less than five years of tenure received proportionately greater raises when compared to their former pay than those with more seniority. Although some officers over the age of 40 had less than five years of service, most of the older officers had more. Petitioners are a group of older officers who filed suit under the ADEA claiming both that the City deliberately discriminated against them because of their age (the "disparate-treatment" claim) and that they were "adversely affected" by the plan because of their age (the "disparate-impact" claim). The District Court granted summary judgment to the City on both claims. The Court of Appeals held that the ruling on the former claim was premature because petitioners were entitled to further discovery on the issue of intent, but it affirmed the dismissal of the disparate-impact claim. Over one judge's dissent, the majority concluded that disparate-impact claims are categorically unavailable under the ADEA. Both the majority and the dissent assumed that the facts alleged by petitioners would entitle them to relief under the reasoning of Griggs. *232 We granted the officers' petition for certiorari, and now hold that the ADEA does authorize recovery in "disparate-impact" cases comparable to Griggs. Because, however, we conclude that petitioners have not set forth a valid disparate-impact claim, we affirm. II During the deliberations that preceded the enactment of the Civil Rights Act of 1964, Congress considered and |
Justice Stevens | 2,005 | 16 | majority | Smith v. City of Jackson | https://www.courtlistener.com/opinion/142883/smith-v-city-of-jackson/ | of the Civil Rights Act of 1964, Congress considered and rejected proposed amendments that would have included older workers among the classes protected from employment discrimination.[2]General Dynamics Land Systems, Congress did, however, request the Secretary of Labor to "make a full and complete study of the factors which might tend to result in discrimination in employment because of age and of the consequences of such discrimination on the economy and individuals affected." 715, The Secretary's report, submitted in response to Congress' request, noted that there was little discrimination arising from dislike or intolerance of older people, but that "arbitrary" discrimination did result from certain age limits. Report of the Secretary of Labor, The Older American Worker: Age Discrimination in Employment 5 (June 1965), reprinted in U. S. Equal Employment Opportunity Commission, Legislative History of the Age Discrimination in Employment Act Doc. No. 5 (hereinafter Wirtz Report). Moreover, the report observed that discriminatory effects resulted from "[i]nstitutional arrangements that indirectly restrict the employment of older workers." In response to that report Congress directed the Secretary to propose remedial legislation, see Fair Labor Standards Amendments of 1966, Pub. L. 89-601, 606, and *233 then acted favorably on his proposal. As enacted in 1967, 4(a)(2) of the ADEA, now codified as 29 U.S. C. 623(a)(2), provided that it shall be unlawful for an employer "to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age" Except for substitution of the word "age" for the words "race, color, religion, sex, or national origin," the language of that provision in the ADEA is identical to that found in 703(a)(2) of the Civil Rights Act of 1964 (Title VII). Other provisions of the ADEA also parallel the earlier statute.[3] Unlike Title VII, however, 4(f)(1) of the ADEA, contains language that significantly narrows its coverage by permitting any "otherwise prohibited" action "where the differentiation is based on reasonable factors other than age" (hereinafter RFOA provision). III In determining whether the ADEA authorizes disparate-impact claims, we begin with the premise that when Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes. We have consistently applied *234 that presumption to language in the ADEA that was "derived in haec verba from Title VII."[4] Our unanimous interpretation of 703(a)(2) of Title VII in Griggs is therefore |
Justice Stevens | 2,005 | 16 | majority | Smith v. City of Jackson | https://www.courtlistener.com/opinion/142883/smith-v-city-of-jackson/ | interpretation of 703(a)(2) of Title VII in Griggs is therefore a precedent of compelling importance. In Griggs, a case decided four years after the enactment of the ADEA, we considered whether 703 of Title VII prohibited an employer "from requiring a high school education or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a longstanding practice of giving preference to whites." -426. Accepting the Court of Appeals' conclusion that the employer had adopted the diploma and test requirements without any intent to discriminate, we held that good faith "does not redeem employment procedures or testing mechanisms that operate as `built-in headwinds' for minority groups and are unrelated to measuring job capability." We explained that Congress had "directed the thrust of the Act to the consequences of employment practices, not simply the motivation." We relied on the fact that history is "filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but *235 Congress has mandated the commonsense proposition that they are not to become masters of reality." And we noted that the Equal Employment Opportunity Commission (EEOC), which had enforcement responsibility, had issued guidelines that accorded with our view. -434. We thus squarely held that 703(a)(2) of Title VII did not require a showing of discriminatory intent.[5] While our opinion in Griggs relied primarily on the purposes of the Act, buttressed by the fact that the EEOC had endorsed the same view, we have subsequently noted that our holding represented the better reading of the statutory text as well. See Neither 703(a)(2) nor the comparable language in the ADEA simply prohibits actions that "limit, segregate, or classify" persons; rather the language prohibits such actions that "deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's" race or age. (quoting 42 *236 U. S. C. 2000e-2(a)(2))). Thus the text focuses on the effects of the action on the employee rather than the motivation for the action of the employer.[6] Griggs, which interpreted the identical text at issue here, thus strongly suggests that a disparate-impact theory should be cognizable under the ADEA.[7] Indeed, for over two decades |
Justice Stevens | 2,005 | 16 | majority | Smith v. City of Jackson | https://www.courtlistener.com/opinion/142883/smith-v-city-of-jackson/ | be cognizable under the ADEA.[7] Indeed, for over two decades *237 after our decision in Griggs, the Courts of Appeals uniformly interpreted the ADEA as authorizing recovery on a "disparate-impact" theory in appropriate cases.[8] It was only after our decision in Hazen that some of those courts concluded that the ADEA did not authorize a disparate-impact theory of liability.[9] Our opinion in Hazen however, did not address or comment on the issue we decide today. In that case, we held that an employee's allegation that he was discharged shortly before his pension would have vested did not state a cause of action under a disparate-treatment theory. The motivating factor was not, we held, the employee's age, but rather his years of service, a factor that the ADEA did not prohibit an employer from considering when terminating *238 an employee.[10] While we noted that disparate treatment "captures the essence of what Congress sought to prohibit in the ADEA," at we were careful to explain that we were not deciding "whether a disparate impact theory of liability is available under the ADEA" In sum, there is nothing in our opinion in Hazen that precludes an interpretation of the ADEA that parallels our holding in Griggs. The Court of Appeals' categorical rejection of disparate-impact liability, like JUSTICE O'CONNOR'S, rested primarily on the RFOA provision and the majority's analysis of legislative history. As we have already explained, we think the history of the enactment of the ADEA, with particular reference to the Wirtz Report, supports the pre-Hazen consensus concerning disparate-impact liability. And Hazen itself contains the response to the concern over the RFOA provision. The RFOA provision provides that it shall not be unlawful for an employer "to take any action otherwise prohibited under subsectio[n] (a). where the differentiation is based on reasonable factors other than age [discrimination]" In most disparate-treatment cases, if an employer in fact acted on a factor other than age, the action would not be prohibited under subsection (a) in the first place. See Hazen In those disparate-treatment cases, such as in Hazen itself, the RFOA provision is simply unnecessary to avoid liability under the ADEA, since there was no prohibited action in the first place. The RFOA provision is not, as JUSTICE O'CONNOR suggests, a "safe harbor from liability," post, at 252 (emphasis deleted), since there would *239 be no liability under 4(a). See Texas Dept. of Community In disparate-impact cases, however, the allegedly "otherwise prohibited" activity is not based on age. )). It is, accordingly, in cases involving disparate-impact claims that the RFOA provision plays its principal role |
Justice Stevens | 2,005 | 16 | majority | Smith v. City of Jackson | https://www.courtlistener.com/opinion/142883/smith-v-city-of-jackson/ | disparate-impact claims that the RFOA provision plays its principal role by precluding liability if the adverse impact was attributable to a nonage factor that was "reasonable." Rather than support an argument that disparate impact is unavailable under the ADEA, the RFOA provision actually supports the contrary conclusion.[11] Finally, we note that both the Department of Labor, which initially drafted the legislation, and the EEOC, which is the agency charged by Congress with responsibility for implementing the statute, 29 U.S. C. 628, have consistently interpreted the ADEA to authorize relief on a disparate-impact theory. The initial regulations, while not mentioning disparate impact by name, nevertheless permitted such claims if the employer relied on a factor that was not related to age. 29 CFR 860.103(f)(1)(i) (1970) See also 1625.7 (setting forth the standards for a disparate-impact claim). The text of the statute, as interpreted in Griggs, the RFOA provision, and the EEOC regulations all support petitioners' view. We therefore conclude that it was error for the Court of Appeals to hold that the disparate-impact theory of liability is categorically unavailable under the ADEA. IV Two textual differences between the ADEA and Title VII make it clear that even though both statutes authorize recovery on a disparate-impact theory, the scope of disparate-impact liability under ADEA is narrower than under Title VII. The first is the RFOA provision, which we have already identified. The second is the amendment to Title VII contained in the Civil Rights Act of 1, One of the purposes of that amendment was to modify the Court's holding in Wards Cove Packing a case in which we narrowly construed the employer's exposure to liability on a disparate-impact theory. See Civil Rights Act of 1, 2, While the relevant 1 amendments expanded the coverage of Title VII, they did not amend the ADEA or speak to the subject of age discrimination. Hence, Wards Cove's pre-1 interpretation of Title VII's identical language remains applicable to the ADEA. Congress' decision to limit the coverage of the ADEA by including the RFOA provision is consistent with the fact that age, unlike race or other classifications protected by Title VII, not uncommonly has relevance to an individual's capacity to engage in certain types of employment. To be sure, Congress recognized that this is not always the case, and that society may perceive those differences to be larger or more consequential than they are in fact. However, as Secretary Wirtz noted in his report, "certain circumstances unquestionably affect older workers more strongly, as a *241 group, than they do younger workers." Wirtz Report 11. Thus, it |
Justice Stevens | 2,005 | 16 | majority | Smith v. City of Jackson | https://www.courtlistener.com/opinion/142883/smith-v-city-of-jackson/ | than they do younger workers." Wirtz Report 11. Thus, it is not surprising that certain employment criteria that are routinely used may be reasonable despite their adverse impact on older workers as a group. Moreover, intentional discrimination on the basis of age has not occurred at the same levels as discrimination against those protected by Title VII. While the ADEA reflects Congress' intent to give older workers employment opportunities whenever possible, the RFOA provision reflects this historical difference. Turning to the case before us, we initially note that petitioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers. They have not identified any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers. As we held in Wards Cove, it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is "`responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.'" (quoting ). Petitioners have failed to do so. Their failure to identify the specific practice being challenged is the sort of omission that could "result in employers being potentially liable for `the myriad of innocent causes that may lead to statistical imbalances'" In this case not only did petitioners thus err by failing to identify the relevant practice, but it is also clear from the record that the City's plan was based on reasonable factors other than age. The plan divided each of five basic positions police officer, master police officer, police sergeant, police lieutenant, and deputy police chief into a series of steps and half-steps. The wage for each range was based on a survey of comparable communities in the Southeast. Employees were then assigned a step (or half-step) within their position that corresponded *242 to the lowest step that would still give the individual a 2% raise. Most of the officers were in the three lowest ranks; in each of those ranks there were officers under age 40 and officers over 40. In none did their age affect their compensation. The few officers in the two highest ranks are all over 40. Their raises, though higher in dollar amount than the raises given to junior officers, represented a smaller percentage of their salaries, which of course are higher than the salaries paid to their juniors. They are members of the class complaining of the "disparate impact" |
Justice Stevens | 2,005 | 16 | majority | Smith v. City of Jackson | https://www.courtlistener.com/opinion/142883/smith-v-city-of-jackson/ | are members of the class complaining of the "disparate impact" of the award. Petitioners' evidence established two principal facts: First, almost two-thirds (66.2%) of the officers under 40 received raises of more than 10% while less than half (45.3%) of those over 40 did.[12] Second, the average percentage increase for the entire class of officers with less than five years of tenure was somewhat higher than the percentage for those with more seniority.[13] Because older officers tended to occupy more senior positions, on average they received smaller increases when measured as a percentage of their salary. The basic explanation for the differential was the City's perceived need to raise the salaries of junior officers to make them competitive with comparable positions in the market. Thus, the disparate impact is attributable to the City's decision to give raises based on seniority and position. Reliance on seniority and rank is unquestionably reasonable given the City's goal of raising employees' salaries to match those in surrounding communities. In sum, we hold that the City's decision to grant a larger raise to lower echelon employees for the purpose of bringing salaries in line with that of surrounding police forces was a decision based on a "reasonable facto[r] other than age" that responded to the City's legitimate goal of retaining police officers. Cf. (CA11 1). *243 While there may have been other reasonable ways for the City to achieve its goals, the one selected was not unreasonable. Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement. Accordingly, while we do not agree with the Court of Appeals' holding that the disparate-impact theory of recovery is never available under the ADEA, we affirm its judgment. It is so ordered. THE CHIEF JUSTICE took no part in the decision of this case. JUSTICE SCALIA, concurring in part and concurring in the judgment. |
Justice Scalia | 2,005 | 9 | dissenting | Spector v. Norwegian Cruise Line Ltd. | https://www.courtlistener.com/opinion/799970/spector-v-norwegian-cruise-line-ltd/ | I respectfully dissent. The plurality correctly recognizes that Congress must clearly express its intent to apply its laws to foreign-flag ships when those laws interfere with the ship's internal order. Its attempt to place Title III of the Americans with Disabilities Act of 1990 (ADA) outside this rule through creative statutory interpretation and piecemeal application of its provisions is unsupported by our case law. Title III plainly affects the internal order of foreign-flag cruise ships, subjecting them to the possibility of conflicting international obligations. I would hold that, since there is no clear statement of coverage, Title III does not apply to foreign-flag cruise ships. I A As the plurality explains, where a law would interfere with the regulation of a ship's internal order, we require a clear statement that Congress intended such a result. See *150 ante, at 129. This rule is predicated on the "rule of international law that the law of the flag state ordinarily governs the internal affairs of a ship," and is designed to avoid "the possibilit[y] of international discord," ; see also The clear-statement rule finds support not only in Benz and but in cases like Cunard S. S. where we held that the National Prohibition Act, forbade foreign-flag ships from carrying or serving alcohol in United States territorial waters. Though we did not say so expressly in that case, prohibiting the carrying and serving of alcohol in United States waters cannot be said to affect the "internal order" of the ship, because it does not in any way affect the operation or functioning of the craft.[1] Similarly, in and Hellenic Lines we did not employ a clear-statement rule in determining whether foreign seamen injured aboard foreign-flag ships could recover under the Jones Act, 46 U.S. C. App. 688. We distinguished these cases in explaining that a clear statement is not required "in different contexts, such as the Jones Act where the pervasive regulation of the internal order of a ship may not be present." 372 U. S., n. 9[2] *151 As the plurality concedes, ante, at 134, the structura modifications that Title III of the ADA requires under its barrier-removal provisions, see 42 U.S. C. 182(b)(2) (A)(iv), 184(b)(2)(C), would plainly affect the ship's "internal order." Rendering exterior cabins handicapped accessible, changing the levels of coamings, and adding public restrooms the types of modifications petitioners request would require alteration of core physical aspects of the ship, some of which relate to safety. (Safety has, under international law, traditionally been the province of a ship's flag state.) This is quite different from prohibiting |
Justice Scalia | 2,005 | 9 | dissenting | Spector v. Norwegian Cruise Line Ltd. | https://www.courtlistener.com/opinion/799970/spector-v-norwegian-cruise-line-ltd/ | a ship's flag state.) This is quite different from prohibiting alcohol in United States waters or imposing tort liability for injuries sustained on foreign ships in port the laws at issue in Cunard and the Jones Act cases. Those restrictions affected the ship only in limited circumstances, and in ways ancillary to its operation at sea. A ship's design and construction, by contrast, are at least as integral to the ship's operation and functioning as the bargaining relationship between shipowner and crew at issue in Benz and Moreover, the structural changes petitioners request would be permanent. Whereas a ship precluded from serving or carrying alcohol in United States waters may certainly carry and serve alcohol on its next trip from Italy to Greece, structural modifications made to comply with American laws cannot readily be removed once the ship leaves our waters and ceases to carry American passengers. This is again much like the situation presented in Benz and where the application of American labor laws would have continued to govern contracts between foreign shipowners and their foreign crews well beyond their time in our waters. The purpose of the "internal order" clear-statement requirement is to avoid casually subjecting oceangoing vessels to laws that pose obvious risks of conflict with the laws of the *152 ship's flag state, the laws of other nations, and international obligations to which the vessels are subject. That structural modifications required under Title III qualify as matters of "internal order" is confirmed by the fact that they may already conflict with the International Convention for the Safety of Life at Sea (SOLAS), Nov. 1, 1974, [1979-1980] 32 U. S. T. 47, T. I. A. S. No. 9700. That treaty, which establishes the safety standards governing the design and maintenance of oceangoing ships, has been ratified by 155 countries. See International Maritime Organization, Summary of Status of Conventions, http://www.imo.org/Conventions/mainframe.asp?topic_id=247 (all Internet materials as visited June 2, 2005, and available in Clerk of Court's case file). The ADA Accessibility Guidelines (ADAAG) Review Advisory Committee the Government body Congress has charged with formulating the Title III barrier-removal guidelines has promulgated rules requiring at least one accessible means of egress to be an elevator, whereas SOLAS, which requires at least two means of escape, does not allow elevators to be one of them. See Passenger Vessel Access Advisory Committee, Final Report: Recommendations for Accessibility Guidelines for Passenger Vehicles, ch. 13, pt. I (Dec. 2000), http://www.access-board.gov/news/pvaac-rept.htm (hereinafter PVAAC Report) (explaining potential conflicts between ADAAG regulations and SOLAS). The ADAAG rules set coaming heights for doors required to be |
Justice Scalia | 2,005 | 9 | dissenting | Spector v. Norwegian Cruise Line Ltd. | https://www.courtlistener.com/opinion/799970/spector-v-norwegian-cruise-line-ltd/ | ADAAG rules set coaming heights for doors required to be accessible at one-half inch; SOLAS sets coaming heights for some exterior doors at three to six inches to ensure that those doors will be watertight. Similar inconsistencies may exist between Title III's structural requirements and the disability laws of other countries. The United Kingdom, for example, is considering the promulgation of rules to govern handicapped accessibility to passenger vehicles, including cruise ships. The rules being considered currently include exact specifications, down to the centimeter, for the height of handrails, beds, and electrical *153 switches, and the width of door openings. See Disabled Persons Transport Advisory Committee, The design of large passenger ships and passenger infrastructure: Guidance on meeting the needs of disabled people (Nov. 2000), http://www.dptac.gov.uk/pubs/guideship/pdf/dptacbroch.pdf. Though many of these regulations may be compatible with Title III, it is easy to imagine conflicts arising, given the detailed nature of ADAAG's regulations. See PVAAC Report, chs. 1-11. As we have previously noted, even this "possibility of international discord" with regard to a seagoing vessel's internal order, 372 U. S., at gives rise to the presumption of noncoverage absent clear statement to the contrary. The Court asserts that Title III would not produce conflicts with the requirements of SOLAS and would not compromise safety concerns. This argument comes at the expense of an expansive en passant interpretation of the exceptions to the barrier-removal requirements of Title III which interpretation will likely have more significant nationwide effects than the Court's holding concerning Title III's application to foreign-flag vessels. Assuming, however, that the argument is even correct,[3] it is entirely beside the point. It has never been a condition for application of the foreign-flag clear-statement rule that an actual conflict with foreign or international law be established any more than that has been a condition for application of the clear-statement rule regarding extraterritorial effect of congressional *154 enactments. The reason to apply the rule here is that the structure of a ship pertains to the ship's internal order, which is a matter presumably left to the flag state unless Congress indicates otherwise. The basis for that presumption of congressional intent is principally (though perhaps not exclusively) that subjecting such matters to the commands of various jurisdictions raises the possibility (not necessarily the certainty) of conflict among jurisdictions and with international treaties. Even if the Court could, by an imaginative interpretation of Title III, demonstrate that in this particular instance there would be no conflict with the laws of other nations or with international treaties,[4] it would remain true that a ship's structure |
Justice Scalia | 2,005 | 9 | dissenting | Spector v. Norwegian Cruise Line Ltd. | https://www.courtlistener.com/opinion/799970/spector-v-norwegian-cruise-line-ltd/ | international treaties,[4] it would remain true that a ship's structure is preeminently part of its internal order; and it would remain true that subjecting ship structure to multiple national requirements invites conflict. That is what triggers application of the clear-statement rule. Safety concerns and specifically safety as related to ship structure are traditionally the responsibility of the flag state. Which is to say they are regarded as part of the ship's internal order. And even if Title III makes ample provision for a safety exception to the barrier-removal requirements, what it considers necessary for safety is not necessarily what other nations or international treaties consider necessary. The foregoing renders quite unnecessary the Court's worry that Title III might require American cruise ships to adhere to Congress's prescription in violation of SOLAS. See ante, at 135-136. If and when that possibility presents itself, the Court remains free to do what it does here: to interpret Title III so as to avoid any conflict. But the availability *155 of such an interpretation has no bearing upon whether the structural features of an oceangoing vessel are part of its internal order. (I must observe, however, that it seems much more plausible that Congress intended to require American cruise ships to adhere to Title III regardless of SOLAS, than that what the Court apparently believes Congress intended Title III to be interpreted with an eye to SOLAS.) In any event, the application of Title III to oceangoing vessels under American flag is not at issue here. I would therefore hold that, because Title III's barrier-removal provisions clearly have the possibility of subjecting foreign-flag ships to conflicting international obligations, no reading of Title III no matter how creative can alter the presumption that Title III does not apply to foreign-flag ships without a clear statement from Congress.[5] B The plurality holds that, even "[i]f Title III did impose a duty that required [foreign-flag] cruise ships to make permanent and significant structural modifications[,] or otherwise interfered with a foreign ship's internal affairs, Title III requirements having nothing to do with internal affairs would continue to apply to domestic and foreign ships alike." Ante, at 137-138. I disagree. Whether or not Title III's prescriptions regarding such matters implicate the "internal order" of the ship, they still relate to the ships' maritime operations and are part of the same Title III.[6] The requirements of that enactment either apply to foreign-flag ships or *156 they do not. It is not within our power to design a statute some of whose provisions apply to |
Justice Scalia | 2,005 | 9 | dissenting | Spector v. Norwegian Cruise Line Ltd. | https://www.courtlistener.com/opinion/799970/spector-v-norwegian-cruise-line-ltd/ | to design a statute some of whose provisions apply to foreign-flag ships and other of whose provisions do not any more than it is within our power to prescribe that the statute applies to foreign-flag cruise ships 60% of whose passengers are United States citizens and does not apply to other foreign-flag cruise ships. The plurality's assertion that those portions of Title III that do not implicate a ship's internal order apply to foreign-flag ships displays a confusion between a principle of interpretation based upon a true-to-fact presumption of congressional intent, and a court-made rule. The plurality seems to forget that it is a matter of determining whether Congress in fact intended that its enactment cover foreign-flag ships. To believe that there was any such intent section-by-section and paragraph-by-paragraph is delusional. Either Congress enacted Title III only with domestic entities (and not foreign-flag ships) in mind, or it intended Title III to apply across-the-board. It could not possibly be the real congressional intent that foreign-flag cruise ships be considered "place[s] of public accommodation" or "specified public transportation" for purposes of certain provisions but not for others. That Congress had separate foreign-flag intent with respect to each requirement and would presumably adopt a clear statement provision-by-provision is utterly implausible. And far from its being the case that this creates "a trap for an unwary Congress," ante, at 139, it is the plurality's disposition that, in piecemeal fashion, applies to foreign-flag ships provisions never enacted with foreign-flag vessels in mind.[7] We recently addressed a similar question *157 in where we explained that a statutory provision must be interpreted consistently from case to case. "It is not at all unusual to give a statut[e] a limiting construction called for by one of the statute's applications, even though other of the statute's applications, standing alone, would not support the same limitation." That principle should apply here. Since some applications of Title III plainly affect the internal order of foreign-flag ships, the absence of a clear statement renders the statute inapplicable even though some applications of the statute, if severed from the rest, would not require clear statement. This does not mean that a clear statement is required whenever a court applies Title III to any entity only that a clear statement is required to apply any part of Title III to foreign-flag ships. and do not dictate otherwise. Raygor held that 28 U.S. C. 1367(d) does not include, in its tolling of the limitations period, claims against States, because it contains no clear statement that States are covered. Jinks |
Justice Scalia | 2,005 | 9 | dissenting | Spector v. Norwegian Cruise Line Ltd. | https://www.courtlistener.com/opinion/799970/spector-v-norwegian-cruise-line-ltd/ | it contains no clear statement that States are covered. Jinks held that 1367(d)'s tolling provision does apply to claims against political subdivisions of States, because no clear-statement requirement applies to those entities. In other words, a clear statement is required to apply 1367(d) to States, just as a clear statement is required to apply Title III to foreign-flag ships. A clear statement is not required to apply 1367(d) to political subdivisions of States, just as a clear statement is not required to apply Title III to domestic ships or other domestic entities. The question in each of these cases is whether the statute at issue covers certain entities, not whether some provisions of a statute cover a given entity. *158 The fine tuning of legislation that the plurality requires would be better left to Congress. To attempt it through the process of case-by-case adjudication is a recipe for endless litigation and confusion. The plurality's resolution of today's case proves the point. It requires this Title III claimant (and every other one who brings a claim against a foreign shipowner) to show that each particular remedy he seeks does not implicate the internal order of the ship. That showing, where structural modification is involved, would not only require the district court to determine what is "readily achievable," ante, at 135-136 (majority opinion), and what would "pose `a significant risk to the health or safety of others,'" ante, at 136 (majority opinion) (quoting 182(b)(3)), but would also require it to determine the obligations imposed by foreign law and international treaties.[8] All this to establish the preliminary point that Title III applies and the claim can proceed to adjudication. If Congress desires to impose this time-consuming and intricate process, it is certainly able to do so though I think it would likely prefer some more manageable solution.[9] But for the plurality *159 to impose it as a novel consequence of the venerable clear-statement rule seems to me unreasonable. I would therefore decline to apply all of Title III to foreign-flag ships without a clear statement from Congress. II As the Court appears to concede, neither the "public accommodation" provision nor the "specified public transportation" provision of Title III clearly covers foreign-flag cruise ships. The former prohibits discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S. C. 182(a). Though Congress gave a seemingly exhaustive list of entities |
Justice Scalia | 2,005 | 9 | dissenting | Spector v. Norwegian Cruise Line Ltd. | https://www.courtlistener.com/opinion/799970/spector-v-norwegian-cruise-line-ltd/ | 182(a). Though Congress gave a seemingly exhaustive list of entities constituting "public accommodation[s]" including inns, hotels, restaurants, theaters, banks, zoos, and laundromats it failed to mention ships, much less foreign-flag ships. See 181(7). Particularly where Congress has provided such detailed specification, this is not a clear statement that foreign-flag ships are covered. Petitioners also claim that, because cruise ships are essentially floating hotels that contain restaurants and other facilities explicitly named in 181(7), they should be covered. While this may support the argument that cruise ships are "public accommodations," it does not support the position that Congress intended to reach foreign-flag cruise ships. The "specified public transportation" provision prohibits discrimination on the basis of disability "in the full and equal *160 enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce." 184(a). The definition of "specified public transportation" includes "transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis." 181(10). "[A]ny other conveyance" clearly covers ships. But even if the statute specifically mentioned ships, that would not be a clear statement that foreign-flag ships are included any more than the reference to "employer" in the NLRA constituted a clear statement that foreign-flag ship employers were covered, see 372 U. S., -. Title III of the ADA stands in contrast to other statutes in which Congress has made clear its intent to extend its laws to foreign ships. For example, the Maritime Drug Law Enforcement Act, 46 U.S. C. App. 1901 et seq., which permits the inspection and apprehension of vessels suspected of possessing controlled substances, applies to "vessel[s] subject to the jurisdiction of the United States," 1903(a), which includes vessels "located within the customs waters of the United States," 1903(c)(1)(D), and "vessel[s] registered in a foreign nation where the flag nation has consented or waived objection" to United States jurisdiction, 1903(c)(1)(C). Section 5 of the Johnson Act, as amended, 15 U.S. C. 1175(a), restricts the use of gambling devices "on a vessel documented under the laws of a foreign country." See also 14 U.S. C. 89(a) (Coast Guard may engage in searches on "waters over which the United States has jurisdiction" of "any vessel subject to the jurisdiction, or to the operation of any law, of the United States"); 18 U.S. C. 2274 (making it unlawful for "the owner, master or person in charge or command of any private vessel, |
Justice Scalia | 2,005 | 9 | dissenting | Spector v. Norwegian Cruise Line Ltd. | https://www.courtlistener.com/opinion/799970/spector-v-norwegian-cruise-line-ltd/ | or person in charge or command of any private vessel, foreign or domestic within the territorial waters of the United States" willfully to cause or *161 permit the destruction or injury of their vessel in certain circumstances). That the Department of Justice and the Department of Transportation the Executive agencies charged with enforcing the ADA appear to have concluded that Congress intended Title III to apply to foreign-flag cruise ships does not change my view. We "accept only those agency interpretations that are reasonable in light of the principles of construction courts normally employ." ARAMCO, (declining to adopt the Equal Employment Opportunity Commission's determination that Title VII applied to employers abroad); see also (same). In light of our longstanding clear-statement rule, it is not reasonable to apply Title III here. I would therefore affirm the Fifth Circuit's judgment that Title III of the ADA does not apply to foreign-flag cruise ships in United States territorial waters. |
Justice Scalia | 1,994 | 9 | majority | US Bancorp Mortgage Co. v. Bonner Mall Partnership | https://www.courtlistener.com/opinion/117879/us-bancorp-mortgage-co-v-bonner-mall-partnership/ | The question in this case is whether appellate courts in the federal system should vacate civil judgments of subordinate courts in cases that are settled after appeal is filed or certiorari sought. I In 1984 and 1985, Northtown Investments built the Bonner Mall in Bonner County, Idaho, with financing from a bank in that State. In 1986, respondent Bonner Mall Partnership (Bonner) acquired the mall, while petitioner U. S. Bancorp Mortgage Co. (Bancorp) acquired the loan and mortgage from the Idaho bank. In 1990, Bonner defaulted on its real estate taxes and Bancorp scheduled a foreclosure sale. The day before the sale, Bonner filed a petition under Chapter 11 of the Bankruptcy Code, 11 U.S. C. 1101 et seq., *20 in the United States Bankruptcy Court for the District of Idaho. It filed a reorganization plan that depended on the "new value exception" to the absolute priority rule.[1] Bancorp moved to suspend the automatic stay of its foreclosure imposed by 11 U.S. C. 362(a), arguing that Bonner's plan was unconfirmable as a matter of law for a number of reasons, including unavailability of the new value exception. The Bankruptcy Court eventually granted the motion, concluding that the new value exception had not survived enactment of the Bankruptcy Code. The court stayed its order pending an appeal by Bonner. The United States District Court for the District of Idaho reversed, In re Bonner Mall Partnership, ; Bancorp took an appeal in turn, but the Court of Appeals for the Ninth Circuit affirmed, In re Bonner Mall Partnership, Bancorp then petitioned for a writ of certiorari. After we granted the petition, and received briefing on the merits, Bancorp and Bonner stipulated to a consensual plan of reorganization, which received the approval of the Bankruptcy Court. The parties agreed that confirmation of the plan constituted a settlement that mooted the case. Bancorp, however, also requested that we exercise our power under 28 U.S. C. 2106 to vacate the judgment of the Court of Appeals. Bonner opposed the motion. We set the vacatur question for briefing and argument. II Respondent questions our power to entertain petitioner's motion to vacate, suggesting that the limitations on the judicial *21 power conferred by Article III, see U. S. Const., Art. III, 1, "may, at least in some cases, prohibit an act of vacatur when no live dispute exists due to a settlement that has rendered a case moot." Brief for Respondent 21 (emphasis in original). The statute that supplies the power of vacatur provides: "The Supreme Court or any other court of appellate jurisdiction may affirm, modify, |
Justice Scalia | 1,994 | 9 | majority | US Bancorp Mortgage Co. v. Bonner Mall Partnership | https://www.courtlistener.com/opinion/117879/us-bancorp-mortgage-co-v-bonner-mall-partnership/ | or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances." 28 U.S. C. 2106. Of course, no statute could authorize a federal court to decide the merits of a legal question not posed in an Article III case or controversy. For that purpose, a case must exist at all the stages of appellate review. ; But reason and authority refute the quite different notion that a federal appellate court may not take any action with regard to a piece of litigation once it has been determined that the requirements of Article III no longer are (or indeed never were) met. That proposition is contradicted whenever an appellate court holds that a district court lacked Article III jurisdiction in the first instance, vacates the decision, and remands with directions to dismiss. In cases that become moot while awaiting review, respondent's logic would hold the Court powerless to award costs, e. g., or even to enter an order of dismissal. Article III does not prescribe such paralysis. "If a judgment has become moot [while awaiting review], this Court may not consider its merits, but may make such disposition of the whole case as justice may require." Walling v. James *22 V. Reuter, Inc., As with other matters of judicial administration and practice "reasonably ancillary to the primary, dispute-deciding function" of the federal courts, Congress may authorize us to enter orders necessary and appropriate to the final disposition of a suit that is before us for review. See ; see also III The leading case on vacatur is United in which the United States sought injunctive and monetary relief for violation of a price control regulation. The damages claim was held in abeyance pending a decision on the injunction. The District Court held that the respondent's prices complied with the regulations and dismissed the complaint. While the United States' appeal was pending, the commodity at issue was decontrolled; at the respondent's request, the case was dismissed as moot, a disposition in which the United States acquiesced. The respondent then obtained dismissal of the damages action on the ground of res judicata, and we took the case to review that ruling. The United States protested the unfairness of according preclusive effect to a decision that it had tried to appeal but could not. We |
Justice Scalia | 1,994 | 9 | majority | US Bancorp Mortgage Co. v. Bonner Mall Partnership | https://www.courtlistener.com/opinion/117879/us-bancorp-mortgage-co-v-bonner-mall-partnership/ | that it had tried to appeal but could not. We saw no such unfairness, reasoning that the United States should have asked the Court of Appeals to vacate the District Court's decision before the appeal was dismissed. We stated that "[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss." We explained that vacatur "clears the path for future relitigation of the issues between the parties and eliminates a judgment, review *23 of which was prevented through happenstance." Finding that the United States had "slept on its rights," we affirmed. The parties in the present case agree that vacatur must be decreed for those judgments whose review is, in the words of Munsingwear, "`prevented through happenstance' "that is to say, where a controversy presented for review has "become moot due to circumstances unattributable to any of the parties." They also agree that vacatur must be granted where mootness results from the unilateral action of the party who prevailed in the lower court. The contested question is whether courts should vacate where mootness results from a settlement. The centerpiece of petitioner's argument is that the Munsingwear procedure has already been held to apply in such cases. Munsingwear `s description of the "established practice" (the argument runs) drew no distinctions between categories of moot cases; opinions in later cases granting vacatur have reiterated the breadth of the rule, see, e. g., Great Western Sugar ; and at least some of those cases specifically involved mootness by reason of settlement, see, e. g., Lake Coal But Munsingwear, and the post-Munsingwear practice, cannot bear the weight of the present case. To begin with, the portion of Justice Douglas' opinion in Munsingwear describing the "established practice" for vacatur was dictum; all that was needful for the decision was (at most) the proposition that vacatur should have been sought, not that it necessarily would have been granted. Moreover, as Munsingwear itself acknowledged, see 3 U.S., n. 2, the "established practice" (in addition to being unconsidered) was not entirely uniform, at least three cases having been dismissed for mootness without vacatur within the four Terms preceding Munsingwear. See, e. g., Schenley Distilling *24 Nor has the post-Munsingwear practice been as uniform as petitioner claims. See, e. g., Allen & ; Minnesota Newspaper Assn., ; St. Luke's Federation of Nurses and Health[2] Of course all of those decisions, |
Justice Scalia | 1,994 | 9 | majority | US Bancorp Mortgage Co. v. Bonner Mall Partnership | https://www.courtlistener.com/opinion/117879/us-bancorp-mortgage-co-v-bonner-mall-partnership/ | of Nurses and Health[2] Of course all of those decisions, both granting vacatur and denying it, were per curiam, with the single exception of in which we declined to vacate. This seems to us a prime occasion for invoking our customary refusal to be bound by dicta, e. g., and our customary skepticism toward per curiam dispositions that lack the reasoned consideration of a full opinion, see Today we examine vacatur once more in the light shed by adversary presentation. The principles that have always been implicit in our treatment of moot cases counsel against extending Munsingwear to settlement. From the beginning we have disposed of moot cases in the manner "`most consonant to justice' in view of the nature and character of the conditions which have caused the case to become moot." United The principal condition to which we have looked is whether the party seeking relief from the judgment below caused the mootness by voluntary action. See ; The reference to "happenstance" in Munsingwear must be understood as an allusion to this equitable tradition of vacatur. A party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment.[3] See at The same is true when mootness results from unilateral action of the party who prevailed below. See Walling ; Where mootness results from settlement, however, the losing party has voluntarily forfeited his legal remedy by the ordinary processes of appeal or certiorari, thereby surrendering his claim to the equitable remedy of vacatur. The judgment is not unreviewable, but simply unreviewed by his own choice. The denial of vacatur is merely one application of the principle that "[a] suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." ). In these respects the case stands no differently than it would if jurisdiction were lacking because the losing party failed to appeal at all. In two state *26 legislators, acting in their capacities as presiding officers of the legislature, appealed from a federal judgment that invalidated a state statute on constitutional grounds. After the jurisdictional statement was filed the legislators lost their posts, and their successors in office withdrew the appeal. Holding that we lacked jurisdiction for want of a proper appellant, we dismissed. The legislators then argued that the judgments should be vacated under Munsingwear. But we denied the request, noting that "[t]his controversy did not become moot due to circumstances unattributable to any of the parties. The controversy ended when the losing |
Justice Scalia | 1,994 | 9 | majority | US Bancorp Mortgage Co. v. Bonner Mall Partnership | https://www.courtlistener.com/opinion/117879/us-bancorp-mortgage-co-v-bonner-mall-partnership/ | any of the parties. The controversy ended when the losing party the [State] Legislaturedeclined to pursue its appeal. Accordingly, the Munsingwear procedure is inapplicable to this case." So, too, here. It is true, of course, that respondent agreed to the settlement that caused the mootness. Petitioner argues that vacatur is therefore fair to respondent, and seeks to distinguish our prior cases on that ground. But that misconceives the emphasis on fault in our decisions. That the parties are jointly responsible for settling may in some sense put them on even footing, but petitioner's case needs more than that. Respondent won below. It is petitioner's burden, as the party seeking relief from the status quo of the appellate judgment, to demonstrate not merely equivalent responsibility for the mootness, but equitable entitlement to the extraordinary remedy of vacatur. Petitioner's voluntary forfeiture of review constitutes a failure of equity that makes the burden decisive, whatever respondent's share in the mooting of the case might have been. As always when federal courts contemplate equitable relief, our holding must also take account of the public interest. "Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur." Izumi Seimitsu Kogyo Kabushiki Congress has prescribed a primary route, by appeal as of right and certiorari, through which parties may seek relief from the legal consequences of judicial judgments. To allow a party who steps off the statutory path to employ the secondary remedy of vacatur as a refined form of collateral attack on the judgment wouldquite apart from any considerations of fairness to the partiesdisturb the orderly operation of the federal judicial system. Munsingwear establishes that the public interest is best served by granting relief when the demands of "orderly procedure," 3 U.S., cannot be honored; we think conversely that the public interest requires those demands to be honored when they can. Petitioner advances two arguments meant to justify vacatur on systemic grounds. The first is that appellate judgments in cases that we have consented to review by writ of certiorari are reversed more often than they are affirmed, are therefore suspect, and should be vacated as a sort of prophylactic against legal error. It seems to us inappropriate, however, to vacate mooted cases, in which we have no constitutional power to decide the merits, on the basis of assumptions about the merits. Second, petitioner suggests that "[v]acating a moot decision, and thereby leaving an issue. temporarily |
Justice Scalia | 1,994 | 9 | majority | US Bancorp Mortgage Co. v. Bonner Mall Partnership | https://www.courtlistener.com/opinion/117879/us-bancorp-mortgage-co-v-bonner-mall-partnership/ | "[v]acating a moot decision, and thereby leaving an issue. temporarily unresolved in a Circuit, can facilitate the ultimate resolution of the issue by encouraging its continued examination and debate." Brief for Petitioner 33. We have found, however, that debate among the courts of appeals sufficiently illuminates the questions that come before us for review. The value of additional intracircuit debate seems to us far outweighed by the benefits that flow to litigants and the public from the resolution of legal questions. A final policy justification urged by petitioner is the facilitation of settlement, with the resulting economies for the federal courts. But while the availability of vacatur may facilitate settlement after the judgment under review has *28 been rendered and certiorari granted (or appeal filed), it may deter settlement at an earlier stage. Some litigants, at least, may think it worthwhile to roll the dice rather than settle in the district court, or in the court of appeals, if, but only if, an unfavorable outcome can be washed away by a settlement-related vacatur. And the judicial economies achieved by settlement at the district-court level are ordinarily much more extensive than those achieved by settlement on appeal. We find it quite impossible to assess the effect of our holding, either way, upon the frequency or systemic value of settlement. Although the case before us involves only a motion to vacate, by reason of settlement, the judgment of a court of appeals (with, of course, the consequential vacation of the underlying judgment of the district court), it is appropriate to discuss the relevance of our holding to motions at the court-of-appeals level for vacatur of district-court judgments. Some opinions have suggested that vacatur motions at that level should be more freely granted, since district-court judgments are subject to review as of right. See, e. g., Manufacturers Hanover Trust Obviously, this factor does not affect the primary basis for our denying vacatur. Whether the appellate court's seizure of the case is the consequence of an appellant's right or of a petitioner's good luck has no bearing upon the lack of equity of a litigant who has voluntarily abandoned review. If the point of the proposed distinction is that district-court judgments, being subject to review as of right, are more likely to be overturned and hence presumptively less valid: We again assert the inappropriateness of disposing of cases, whose merits are beyond judicial power to consider, on the basis of judicial estimates regarding their merits. Moreover, as petitioner's own argument described two paragraphs above points out, the reversal rate for cases in which this |
Justice Scalia | 1,994 | 9 | majority | US Bancorp Mortgage Co. v. Bonner Mall Partnership | https://www.courtlistener.com/opinion/117879/us-bancorp-mortgage-co-v-bonner-mall-partnership/ | points out, the reversal rate for cases in which this Court grants certiorari (a precondition for our vacatur) is over 50%more than double the reversal rate for appeals *29 to the courts of appeals. See Fisch, Rewriting History: The Propriety of Eradicating Prior Decisional Law Through Settlement and Vacatur, (citing studies). We hold that mootness by reason of settlement does not justify vacatur of a judgment under review. This is not to say that vacatur can never be granted when mootness is produced in that fashion. As we have described, the determination is an equitable one, and exceptional circumstances may conceivably counsel in favor of such a course. It should be clear from our discussion, however, that those exceptional circumstances do not include the mere fact that the settlement agreement provides for vacaturwhich neither diminishes the voluntariness of the abandonment of review nor alters any of the policy considerations we have discussed. Of course even in the absence of, or before considering the existence of, extraordinary circumstances, a court of appeals presented with a request for vacatur of a district-court judgment may remand the case with instructions that the district court consider the request, which it may do pursuant to Federal Rule of Civil Procedure 60(b). * * * Petitioner's motion to vacate the judgment of the Court of Appeals for the Ninth Circuit is denied. The case is dismissed as moot. See this Court's Rule 46. It is so ordered. |
Justice Brennan | 1,983 | 13 | dissenting | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | Although I join JUSTICE STEVENS' dissenting opinion and agree with him that the warrant is invalid even under the Court's newly announced "totality of the circumstances" test, see post, at 294-295, and n 8, I write separately to dissent from the Court's unjustified and ill-advised rejection of the two-prong test for evaluating the validity of a warrant based on hearsay announced in and refined in I The Court's current Fourth Amendment jurisprudence, as reflected by today's unfortunate decision, patently disregards Justice Jackson's admonition in : "[Fourth Amendment rights] are not mere second-class rights but belong in the catalog of indispensable freedoms Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart *275 Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government "But the right to be secure against searches and seizures is one of the most difficult to protect Since the officers are themselves the chief invaders, there is no enforcement outside of court" In recognition of the judiciary's role as the only effective guardian of Fourth Amendment rights, this Court has developed over the last half century a set of coherent rules governing a magistrate's consideration of a warrant application and the showings that are necessary to support a finding of probable cause We start with the proposition that a neutral and detached magistrate, and not the police, should determine whether there is probable cause to support the issuance of a warrant In the Court stated: "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent" See also ; ; United v ; ; Jones v United ; Giordenello v United ; United v Lefkowitz, In order to emphasize the magistrate's role as an independent arbiter of probable cause and to insure that searches or seizures are not effected on less than probable cause, the Court has insisted that police officers provide magistrates with the underlying facts and circumstances that support the officers' conclusions In Nathanson |
Justice Brennan | 1,983 | 13 | dissenting | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | facts and circumstances that support the officers' conclusions In Nathanson v United the Court held invalid a search warrant that was based on a customs agent's "mere affirmation of suspicion and belief without any statement of adequate supporting facts" The Court stated: "Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation Mere affirmance of belief or suspicion is not enough" In Giordenello v United the Court reviewed an arrest warrant issued under the Federal Rules of Criminal Procedure based on a complaint sworn to by a Federal Bureau of Narcotics agent [1] Based on the agent's testimony at the suppression hearing, the Court noted that "until the warrant was issued [the agent's] suspicions of petitioner's guilt derived entirely from information given him by law enforcement officers and other persons in Houston, none of whom either appeared before the Commissioner or submitted affidavits" The Court found it unnecessary to decide whether a warrant could be based solely on hearsay information, for the complaint was "defective in not providing a sufficient basis upon which a *277 finding of probable cause could be made" In particular, the complaint contained no affirmative allegation that the agent spoke with personal knowledge nor did it indicate any sources for the agent's conclusion at The Court expressly rejected the argument that these deficiencies could be cured by "the Commissioner's reliance upon a presumption that the complaint was made on the personal knowledge of the complaining officer" As noted, the Court did not decide the hearsay question lurking in Giordenello The use of hearsay to support the issuance of a warrant presents special problems because informants, unlike police officers, are not regarded as presumptively reliable or honest Moreover, the basis for an informant's conclusions is not always clear from an affidavit that merely reports those conclusions If the conclusory allegations of a police officer are insufficient to support a finding of probable cause, surely the conclusory allegations of an informant should a fortiori be insufficient In Jones v United the Court considered "whether an affidavit which sets out personal observations relating to the existence of cause to search is to be deemed insufficient by virtue of the fact that it sets out not the affiant's observations but those of another" The Court held that hearsay information can support the issuance of a warrant "so long as a substantial basis for crediting the hearsay is presented" The Court found that there was a |
Justice Brennan | 1,983 | 13 | dissenting | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | hearsay is presented" The Court found that there was a substantial basis for crediting the hearsay involved in Jones The informant's report was based on the informant's personal knowledge, and the informant previously had provided accurate information Moreover, the informant's story was corroborated by other sources Finally, the defendant was known to the police to be a narcotics user merely made explicit what was implicit in Jones In considering a search warrant based on hearsay, the Court reviewed Nathanson *278 and Giordenello and noted the requirement established by those cases that an officer provide the magistrate with the underlying facts or circumstances that support the officer's conclusion that there is probable cause to justify the issuance of a warrant The Court stated: "The vice in the present affidavit is at least as great as in Nathanson and Giordenello Here, the `mere conclusion' that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant The affidavit here not only `contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,' it does not even contain an `affirmative allegation' that the affiant's unidentified source `spoke with personal knowledge' For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner's possession The magistrate here certainly could not `judge for himself the persuasiveness of the facts relied on to show probable cause' He necessarily accepted `without question' the informant's `suspicion,' `belief' or `mere conclusion' " -114 [2] While recognizing that a warrant may be based on hearsay, the Court established the following standard: "[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded *279 that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed was `credible' or his information `reliable' Otherwise, `the inferences from the facts which lead to the complaint' will be drawn not `by a neutral and detached magistrate,' as the Constitution requires, but instead, by a police officer `engaged in the often competitive enterprise of ferreting out crime' or, as in this case, by an unidentified informant" The Aguilar standard was refined in In Spinelli, the Court reviewed a search warrant based on an affidavit that was "more ample," than the one in The affidavit in Spinelli contained not only a tip from an informant, but also a report of an independent police investigation that allegedly corroborated the informant's 393 US, Under these circumstances, the Court |
Justice Brennan | 1,983 | 13 | dissenting | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | corroborated the informant's 393 US, Under these circumstances, the Court stated that it was "required to delineate the manner in which Aguilar's two-pronged test should be applied " The Court held that the Aguilar test should be applied to the tip, and approved two additional ways of satisfying that test First, the Court suggested that if the tip contained sufficient detail describing the accused's criminal activity it might satisfy Aguilar's basis of knowledge Such detail might assure the magistrate that he is "relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation" Although the tip in the case before it did not meet this standard, "[t]he detail provided by the informant in Draper v United provide[d] a suitable benchmark," ib because "[a] magistrate, when confronted with such detail, could reasonably infer that the informant *280 had gained his information in a reliable way" [3] Second, the Court stated that police corroboration of the details of a tip could provide a basis for satisfying * 393 U S, The Court's opinion is not a model of clarity on this issue since it appears to suggest that corroboration can satisfy both the basis of knowledge and veracity prongs of 393 U S, -418[4] JUSTICE WHITE's concurring opinion, however, points the way to a proper reading of the Court's opinion After reviewing the Court's decision in Draper v United JUSTICE WHITE concluded that "[t]he thrust of Draper is not that the verified facts have independent significance with respect to proof of [another unverified fact]" In his view, "[t]he argument instead relates to the reliability of the source: because an informant is right about some things, he is more probably right about other facts, usually the critical, unverified facts" JUSTICE WHITE then pointed out that prior cases had rejected "the notion that the past *282 reliability of an officer is sufficient reason for believing his current assertions" JUSTICE WHITE went on to state: "Nor would it suffice, I suppose, if a reliable informant states there is gambling equipment in Apartment 607 and then proceeds to describe in detail Apartment 201, a description which is verified before applying for the warrant He was right about 201, but that hardly makes him more believable about the equipment in 607 But what if he states that there are narcotics locked in a safe in Apartment 300, which is described in detail, and the apartment manager verifies everything but the contents of the safe? I doubt that the report about the narcotics is made appreciably |
Justice Brennan | 1,983 | 13 | dissenting | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | doubt that the report about the narcotics is made appreciably more believable by the verification The informant could still have gotten his information concerning the safe from others about whom nothing is known or could have inferred the presence of narcotics from circumstances which a magistrate would find unacceptable" I find this reasoning persuasive Properly understood, therefore, Spinelli stands for the proposition that corroboration of certain details in a tip may be sufficient to satisfy the veracity, but not the basis of knowledge, prong of As noted, Spinelli also suggests that in some limited circumstances considerable detail in an informant's tip may be adequate to satisfy the basis of knowledge prong of [5] *283 Although the rules drawn from the cases above are cast in procedural terms, they advance an important underlying substantive value: Findings of probable cause, and attendant intrusions, should not be authorized unless there is some assurance that the information on which they are based has been obtained in a reliable way by an honest or credible person As applied to police officers, the rules focus on the way in which the information was acquired As applied to informants, the rules focus both on the honesty or credibility of the informant and on the reliability of the way in which the information was acquired Insofar as it is more complicated, an evaluation of affidavits based on hearsay involves a more difficult inquiry This suggests a need to structure the inquiry in an effort to insure greater accuracy The standards announced in Aguilar, as refined by Spinelli, fulfill that need The standards inform the police of what information they have to provide and magistrates of what information they should demand The standards also inform magistrates of the subsidiary findings they must make in order to arrive at an ultimate finding of probable cause Spinelli, properly understood, directs the magistrate's attention to the possibility that the presence of self-verifying detail might satisfy Aguilar's basis of knowledge prong and that corroboration of the details of a tip might satisfy Aguilar's veracity By requiring police to provide certain crucial information to magistrates and by structuring magistrates' probable-cause inquiries, Aguilar and Spinelli assure the magistrate's role as an independent arbiter of probable cause, insure greater accuracy in probable-cause determinations, and advance the substantive value identified above Until today the Court has never squarely addressed the application of the Aguilar and Spinelli standards to tips from anonymous informants Both Aguilar and Spinelli dealt with tips from informants known at least to the police See also, e g, ; United v ; ; McCray |
Justice Brennan | 1,983 | 13 | dissenting | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | See also, e g, ; United v ; ; McCray v Illinois, 386 U S *284 300, 302 (1967); Jones v United -269 And surely there is even more reason to subject anonymous informants' tips to the tests established by Aguilar and Spinelli By definition nothing is known about an anonymous informant's identity, honesty, or reliability One commentator has suggested that anonymous informants should be treated as presumptively unreliable See Comment, Anonymous Tips, Corroboration, and Probable Cause: Reconciling the Spinelli/Draper Dichotomy in Illinois v Gates, See also at stop than a tip from an informant known to the police who had provided information in the past); United v ("We cannot assume that the ordinary law-abiding citizen has qualms about [appearing before a magistrate]") In any event, there certainly is no basis for treating anonymous informants as presumptively reliable Nor is there any basis for assuming that the information provided by an anonymous informant has been obtained in a reliable way If we are unwilling to accept conclusory allegations from the police, who are presumptively reliable, or from informants who are known, at least to the police, there cannot possibly be any rational basis for accepting conclusory allegations from anonymous informants To suggest that anonymous informants' tips are subject to the tests established by Aguilar and Spinelli is not to suggest that they can never provide a basis for a finding of probable cause It is conceivable that police corroboration of the details of the tip might establish the reliability of the informant under Aguilar's veracity prong, as refined in Spinelli, and that the details in the tip might be sufficient to qualify under the "self-verifying detail" test established by Spinelli as a means of satisfying Aguilar's basis of knowledge The Aguilar and Spinelli tests must be applied to anonymous informants' tips, however, if we are to continue to insure *285 that findings of probable cause, and attendant intrusions, are based on information provided by an honest or credible person who has acquired the information in a reliable way[6] In light of the important purposes served by Aguilar and Spinelli, I would not reject the standards they establish If anything, I simply would make more clear that Spinelli, properly understood, does not depart in any fundamental way from the test established by For reasons I shall next state, I do not find persuasive the Court's justifications for rejecting the test established by Aguilar and refined by Spinelli *286 II In rejecting the Aguilar-Spinelli standards, the Court suggests that a "totality-of-the-circumstances approach is far more consistent with our prior treatment of probable |
Justice Brennan | 1,983 | 13 | dissenting | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | is far more consistent with our prior treatment of probable cause than is any rigid demand that specific `tests' be satisfied by every informant's " Ante, at 230-231 In support of this proposition the Court relies on several cases that purportedly reflect this approach, ante, at 230-231, n 6, 232-233, n 7, and on the "practical, nontechnical," ante, at 231, nature of probable cause Only one of the cases cited by the Court in support of its "totality of the circumstances" approach, Jaben v United was decided subsequent to It is by no means inconsistent with [7] The other three cases[8] cited by the Court as supporting its *287 totality-of-the-circumstances approach were decided before In any event, it is apparent from the Court's discussion of them, see ante, at 232-233, n 7, that they are not inconsistent with In addition, one can concede that probable cause is a "practical, nontechnical" concept without betraying the values that Aguilar and Spinelli reflect As noted, see Aguilar and Spinelli require the police to provide magistrates with certain crucial information They also provide structure for magistrates' probable-cause inquiries In so doing, Aguilar and Spinelli preserve the role of magistrates as independent arbiters of probable cause, insure greater accuracy in probable-cause determinations, and advance the substantive value of precluding findings of probable cause, and attendant intrusions, based on anything less than information from an honest or credible person who has acquired his information in a reliable way Neither the standards nor their effects are inconsistent with a "practical, nontechnical" conception of probable cause Once a magistrate has determined that he has information before him that he can reasonably say has been obtained in a reliable way by a credible person, he has ample room to use his common sense and to apply a practical, nontechnical conception of probable cause It also should be emphasized that cases such as Nathanson v United and Giordenello v United directly contradict the Court's suggestion, ante, at 233, that a strong showing on one prong of the Aguilar test should compensate for a deficient showing on the other If the conclusory allegations of a presumptively reliable police officer are insufficient to establish probable cause, there is no conceivable reason why the conclusory allegations of an anonymous informant should not be insufficient as well Moreover, contrary to the Court's implicit suggestion, Aguilar and Spinelli do not stand as an insuperable barrier to the use *288 of even anonymous informants' tips to establish probable cause See It is no justification for rejecting them outright that some courts may have employed an overly |
Justice Brennan | 1,983 | 13 | dissenting | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | them outright that some courts may have employed an overly technical version of the Aguilar-Spinelli standards, see ante, at 234-235, and n 9 The Court also insists that the Aguilar-Spinelli standards must be abandoned because they are inconsistent with the fact that nonlawyers frequently serve as magistrates Ante, at 235-236 To the contrary, the standards help to structure probable-cause inquiries and, properly interpreted, may actually help a nonlawyer magistrate in making a probable-cause determination Moreover, the Aguilar and Spinelli tests are not inconsistent with deference to magistrates' determinations of probable cause Aguilar expressly acknowledged that reviewing courts "will pay substantial deference to judicial determinations of probable cause " 378 US, In Spinelli, the Court noted that it was not retreating from the proposition that magistrates' determinations of probable cause "should be paid great deference by reviewing courts " 393 US, at 419 It is also noteworthy that the language from United v 380 U S, at 108-, which the Court repeatedly quotes, see ante, at 235, 236, and 237, n 10, brackets the following passage, which the Court does not quote: "This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the `underlying circumstances' upon which that belief is based See supra Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not *289 invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner" 380 US, at 108-[9] At the heart of the Court's decision to abandon Aguilar and Spinelli appears to be its belief that "the direction taken by decisions following Spinelli poorly serves `[t]he most basic function of any government': `to provide for the security of the individual and of his property' " Ante, at 237 This conclusion rests on the judgment that Aguilar and Spinelli "seriously imped[e] the task of law enforcement," ante, at 237, and render anonymous tips valueless in police work Surely, the Court overstates its case See But of particular concern to all Americans must be that the Court gives virtually no consideration to the value of insuring that findings of probable cause are based on information that a magistrate can reasonably say has been |
Justice Brennan | 1,983 | 13 | dissenting | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | on information that a magistrate can reasonably say has been obtained in a reliable *290 way by an honest or credible person I share JUSTICE WHITE'S fear that the Court's rejection of Aguilar and Spinelli and its adoption of a new totality-of-the-circumstances test, ante, at 238, "may foretell an evisceration of the probable-cause standard " Ante, at 272 (WHITE, J, concurring in judgment) III The Court's complete failure to provide any persuasive reason for rejecting Aguilar and Spinelli doubtlessly reflects impatience with what it perceives to be "overly technical" rules governing searches and seizures under the Fourth Amendment Words such as "practical," "nontechnical," and "common sense," as used in the Court's opinion, are but code words for an overly permissive attitude towards police practices in derogation of the rights secured by the Fourth Amendment Everyone shares the Court's concern over the horrors of drug trafficking, but under our Constitution only measures consistent with the Fourth Amendment may be employed by government to cure this evil We must be ever mindful of Justice Stewart's admonition in Coolidge v New Hampshire, 403 US 443 : "In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or `extravagant' to some But the values were those of the authors of our fundamental constitutional concepts" In the same vein, Glasser v United 315 US 60 warned that "[s]teps innocently taken may, one by one, lead to the irretrievable impairment of substantial liberties" Rights secured by the Fourth Amendment are particularly difficult to protect because their "advocates are usually criminals" Draper v United 358 U S, at 314 (Douglas, J, dissenting) But the rules "we fashion [are] for the innocent and guilty alike" See also Kolender v Lawson, 461 US 352, 362, n 1 (BRENNAN, J, concurring); 338 U S, at 181 (Jackson, J, dissenting) *291 By replacing Aguilar and Spinelli with a test that provides no assurance that magistrates, rather than the police, or informants, will make determinations of probable cause; imposes no structure on magistrates' probable-cause inquires; and invites the possibility that intrusions may be justified on less than reliable information from an honest or credible person, today's decision threatens to "obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law" 333 U S, at 17 |
Justice Scalia | 1,992 | 9 | dissenting | Norman v. Reed | https://www.courtlistener.com/opinion/112675/norman-v-reed/ | In the absence of an opinion by the Illinois Supreme Court defending its own judgment, and lacking any clear alternative analysis presented by respondents, the Court accepts petitioners' characterization of these cases as involving *297 straightforward application of our decision invalidating a previous version of the Illinois election law, Illinois Bd. of That characterization is in my view wrong, and leads to the wrong result. No proper basis has been established in these cases for interfering with the State of Illinois' arrangement of its elections. Socialist Workers Party involved a challenge to Illinois' then-requirement that, in elections for offices in political subdivisions of the State, new political parties (and independent candidates) had to obtain the signatures of 5% of the number of persons who voted at the previous election for those offices, no matter how high that number might be even though new parties could qualify for statewide elections by gathering only 25,000 signatures. See The Socialist Workers Party objected to having to collect over 60,000 signatures to run a candidate in the Chicago mayoral election. See We held that, although the State had a legitimate interest in ensuring that a party or independent candidate had a "`significant modicum of support,' " there was "no reason" justifying a requirement of greater support for Chicago elections than for statewide elections. The Court contends that the current Illinois law, as interpreted by the Illinois Supreme Court, suffers from the same "constitutional flaw": It "effectively increas[es] the signature requirement applicable to elections for at least some offices in subdivisions with separate districts [because] the failure of a party's organizers to obtain 25,000 signatures for each district in which they run candidates disqualifies the party's candidates in all races within the subdivision." Ante, at 293. Thus, "a prerequisite to establishing a new political party in such multi district subdivisions is some multiple of the number of signatures required of new statewide parties." This analysis serves only to demonstrate why Socialist Workers Party is distinguishable. There is no heightened *298 signature requirement (as there was in Socialist Workers Party ) for any single office; each candidate (and the party) for each district election and each county wide election need obtain no more than 25,000 signatures. What creates "effectively," as the Court says, a sort of heightened signature minimum is the requirement that a new party run a "complete slate," i. e., a candidate in each of the subdivision's districts. By virtue of that requirement, no one can run as a new-party candidate in any district unless there are not only 25,000 signatures for him |
Justice Scalia | 1,992 | 9 | dissenting | Norman v. Reed | https://www.courtlistener.com/opinion/112675/norman-v-reed/ | district unless there are not only 25,000 signatures for him in his own district, but also 25,000 votes for the party's candidate in each of the other districts. Such indirect consequences of a "complete slate" requirement were, of course, not at issue in Socialist Workers Party, which involved a single election for an at-large position. Thus, Socialist Workers Party is not at all dispositive of these cases. It seems clear that the "complete slate" rule advances a legitimate state interest. It is reasonable to require a purported "party," which presumably has policy plans for the political subdivision, to run candidates in all the districts that elect the multimember board governing the subdivision. Otherwise, it is less a "party" than an election committee for one member of the board. The Court ultimately concedes this, and concedes that this state interest was not involved (and therefore not taken into account) in Socialist Workers Party. Ante, at 293-294. It nonetheless argues that this makes no difference, because: (1) Illinois could have achieved its interest in multi district support for the party by requiring that some proportion of the total signatures be from each district, but requiring no more than a 25,000 total, ibid.; and (2) multi district support is not an interest that Illinois considers important, since it "does not require a new party fielding candidates solely for statewide office to apportion its nominating signatures among the various counties or other political subdivisions of the State," ante, at 294. *299 I find neither response persuasive. As to the first: We did not say in Socialist Workers Party that the constitutionally permissible number for qualification in the various political subdivisions of the State had to be some fraction (presumably based on population) of the statewide 25,000 figure; to the contrary, we permitted the State to require in political subdivisions any number up to 25,000. Illinois has simply taken us at our word. Nor does this amount to an irrational failure to "apportion." Illinois' genuine minimum, we must recall, is a percentage (5%) of the votes in the prior election, which of course automatically adjusts for the size of the electoral unit. The 25,000 figure is simply a cap upon that minimum, and it is not at all reasonable to think an "apportionment" of that cap will assure serious voter support. As to the second argument: The fact that Illinois does not require geographic distribution of support for statewide office is irrelevant. Neither does it require geographic distribution, as such, in these Cook County elections. It does not care if all of the support for |
Justice Scalia | 1,992 | 9 | dissenting | Norman v. Reed | https://www.courtlistener.com/opinion/112675/norman-v-reed/ | It does not care if all of the support for the Harold Washington Party, in each district wide election, comes from a single ward just as it does not care, in statewide elections, if all of a new party's support comes from a single county. What the law under challenge here reflects is not concern for geographically distributed support, but concern for serious support in each election; and when some of the elections are not at large but by district, the support must exist within each district. Perhaps there are reasons why Illinois' "complete slate" requirement for political subdivisions is constitutionally invalid. The point might be made, for example, that the absence of any such requirement in statewide elections demonstrates (to take the Court's language erroneously addressed to a different point) that Illinois "deems [the requirement] unimportant," and has no "serious state interest" in it. Ante, at 294. But as American political scientists have known since James Madison pointed it out, see The Federalist No. 10, pp. 62-64 (H. Dawson ed. 1876), the dangers of *300 factionalism decrease as the political unit becomes larger. There is not much chance the State as a whole will be hamstrung by a multitude of so-called "parties," each of which represents the sectional interest of only one or a few districts; there is a real possibility that the Cook County Board will be stalemated by an equal division between "City Party" and "County Party" members. But the litigants here have not addressed whether the "complete slate" requirement is unconstitutional, and I decline to speculate. It must be assumed to be legitimate, in which case there is no basis for saying that 25,000 signatures for each district election (if that is less than 5% of the votes in the prior district election) cannot be demanded. The Court's holding that these cases are simply governed by Socialist Workers Party seems to me quite wrong. I respectfully dissent. |
Justice Brennan | 1,970 | 13 | dissenting | California v. Green | https://www.courtlistener.com/opinion/108189/california-v-green/ | Respondent was convicted of violating California Health and Safety Code 11532 which prohibits furnishing narcotics to a minor. The only issue at his trial was *190 whether he had in fact furnished Porter, a minor, with marihuana. On the direct testimony, it does not appear that he could have been constitutionally convicted, for it seems that there would have been insufficient evidence to sustain a finding of guilt. The State presented three witnesses to prove respondent's guilt: Porter and Officers Wade and Dominguez. As the Court states, Porter testified at trial that "he was uncertain how he obtained the marihuana, primarily because he was at the time on `acid' (LSD), which he had taken 20 minutes before respondent phoned. Porter claimed that he was unable to remember the events that followed the phone call, and that the drugs he had taken prevented his distinguishing fact from fantasy." Ante, at 152. Officer Wade had no personal knowledge of the facts of the alleged offense; he was able only to report the content of an extrajudicial statement that Porter had made to him. Officer Dominguez testified about an incident wholly separate from the alleged offense; his testimony was consistent with the defense account of the facts.[1] Thus, the evidence on which respondent was found guilty consisted of two pretrial statements by Porter. The first was the account given Officer Wade. It was unsworn and not subject to defense cross-examination. Porter's demeanor while making the statement was not observed by the trial factfinder. The statement was made under unreliable circumstancesit was taken four days after Porter's arrest for selling marihuana to an undercover agent and while he was still in custody.[2] No *191 written transcript of the statement was introduced at trial. Officer Wade recounted it simply as he remembered Porter's words.[3] The second statement was given by Porter during respondent's preliminary hearing. It was sworn and subject to cross-examination. Defense counsel, however, did not engage in a searching examination.[4] Again, Porter's demeanor while he made this statement was unobserved by the trial factfinder. The statement was put before this factfinder, of course, when at various points during Porter's direct examination at trial the prosecutor read excerpts from his preliminary hearing testimony. Accordingly, the facts of this case present two questions regarding the application of California Evidence Code 1235: first, whether the Confrontation Clause permits a witness' extrajudicial statement to be admitted at trial as substantive evidence when the witness claims to be unable to remember the events with which his prior statement dealt, and, second, whether the clause permits a witness' preliminary |
Justice Brennan | 1,970 | 13 | dissenting | California v. Green | https://www.courtlistener.com/opinion/108189/california-v-green/ | dealt, and, second, whether the clause permits a witness' preliminary hearing statement, made under oath and subject to cross-examination, to be introduced at trial as substantive evidence when the witness claims to be unable to remember the events with which the statement dealt. In my view, neither statement can be introduced without unconstitutionally restricting the right of the accused to challenge incriminating evidence in the presence of the factfinder who will determine his guilt or innocence. *192 I The Court points out that "the particular vice that gave impetus to the confrontation claim was the practice of trying defendants on `evidence' which consisted solely of ex parte affidavits or depositions secured by the examining magistrates, thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact." Ante, at 156. A face-to-face encounter, of course, is important, not so that the accused can view at trial his accuser's visage, but so that he can directly challenge the accuser's testimony before the factfinder. See 5 J. Wigmore, Evidence 1364, 1365 (3d ed. 1940). We made this clear in where we stressed the necessity of "a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." There is no way to test the recollection and sift the conscience of a witness regarding the facts of an alleged offense if he is unwilling or unable to be questioned about them;[5] defense counsel cannot probe the story of a silent witness and attempt to expose facts that qualify or discredit it. The impetus to truth inherent in the oath sworn by the witness, in the penalty for perjury, and in *193 the serious purpose of the courtroom have no effect on him so far as the facts of the alleged offense are concerned. Nor, obviously, can the factfinder view his demeanor while he recounts the facts. If the witness claims that he is unable to remember the pertinent events, it is true that this assertion can be challenged, and that in making and defending it the witness will be affected by his oath, the penalty for perjury, and the courtroom atmosphere. It is equally true that the trial factfinder can observe and weigh the witness' |
Justice Brennan | 1,970 | 13 | dissenting | California v. Green | https://www.courtlistener.com/opinion/108189/california-v-green/ | that the trial factfinder can observe and weigh the witness' demeanor as he makes and defends such a claim. But a decision by the factfinder that the witness is lying sheds no direct light on the accuracy of any pretrial statement made by him; that statement remains without the support or discredit that can come only from the probing of its factual basis while the witness stands face to face with the accused and the factfinder. If the factfinder decides that the witness is honestly unable to remember the events in question, that conclusion may or may not directly guide the factfinder in assessing the reliability of the pretrial statement. If, for example, the witness were unable to remember the pertinent facts because he was under the influence of drugs at the time they occurred, the factfinder might reasonably disregard any pretrial account of these events given by the witness. This Court has already explicitly held in that the Confrontation Clause forbids the substantive use at trial of a prior extrajudicial statement, when the declarant is present at trial but unwilling to testify about the events with which his prior statement dealt. In Douglas the prosecution introduced the alleged confession of the accused's supposed accomplice, one Loyd, who was unwilling to testify about the pertinent events for fear of self-incrimination. We held that "petitioner's inability to cross-examine Loyd as to the alleged confession plainly denied *194 him the right of cross-examination secured by the Confrontation Clause. Loyd's alleged statement that the petitioner fired the shotgun constituted the only direct evidence that he had done so [E]ffective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but relied on his privilege to refuse to answer." For purposes of the Confrontation Clause, there is no significant difference between a witness who fails to testify about an alleged offense because he is unwilling to do so and a witness whose silence is compelled by an inability to remember. Both are called to the stand to testify. The jury may view the demeanor of each as he indicates why he will not discuss the crucial events. But in neither instance are the purposes of the Confrontation Clause satisfied, because the witness cannot be questioned at trial concerning the pertinent facts. In both cases, if a pretrial statement is introduced for the truth of the facts asserted, the witness becomes simply a conduit for the admission of stale evidence, whose reliability can never be tested before the trial factfinder by cross-examination of the declarant about |
Justice Brennan | 1,970 | 13 | dissenting | California v. Green | https://www.courtlistener.com/opinion/108189/california-v-green/ | before the trial factfinder by cross-examination of the declarant about the operative events, and by observation of his demeanor as he testifies about them. Unlike the court, I see no reason to leave undecided the inadmissibility of Porter's statements to Officer Wade. We have before us the transcript of Porter's trial testimony. He could not remember the operative events. Whether he feigned loss of memory is irrelevant to respondent's confrontation claim. Under Douglas his statement to Officer Wade must be excluded as substantive evidence.[6] *195 II The question remains whether the fact that a pretrial statement was obtained at a preliminary hearing, under oath and subject to cross-examination, distinguishes that statement for confrontation purposes from an extrajudicial statement. I thought that our decision in resolved this issue. In Barber we stated that confrontation at a preliminary hearing cannot compensate for the absence of confrontation at trial, because the nature and objectives of the two proceedings differ significantly. In that case, the prosecution argued that the accused had waived his right to cross-examination at the preliminary hearing. Though we rejected that argument, to put beyond doubt the necessity for confrontation at trial, we stated: "Moreover, we would reach the same result on the facts of this case had petitioner's counsel actually cross-examined [the witness] at the preliminary hearing. The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial."[7] *196 We applied Barber retroactively in a case in which defense counsel did have an opportunity to cross-examine the witness at the preliminary hearing. We held, nonetheless, that "[c]learly, petitioner's inability to cross-examine at trial may have had a significant effect on the `integrity of the fact-finding process.' " Preliminary hearings in California are not atypical in their nature and objectives: "In most California criminal prosecutions the preliminary examination is conducted as a rather perfunctory uncontested proceeding with only one likely denouementan order holding the defendant for trial. Only television lawyers customarily demolish the prosecution in the magistrate's court. The prosecution need show only `probable cause,' a burden vastly lighter than proof beyond a reasonable doubt." It follows that the purposes of the Confrontation Clause cannot be satisfied by a face-to-face encounter at *197 the preliminary hearing. Cross-examination at the hearing pales beside that |
Justice Brennan | 1,970 | 13 | dissenting | California v. Green | https://www.courtlistener.com/opinion/108189/california-v-green/ | the preliminary hearing. Cross-examination at the hearing pales beside that which takes place at trial. This is so for a number of reasons. First, as noted, the objective of the hearing is to establish the presence or absence of probable cause, not guilt or innocence proved beyond a reasonable doubt; thus, if evidence suffices to establish probable cause, defense counsel has little reason at the preliminary hearing to show that it does not conclusively establish guiltor, at least, he had little reason before today's decision. Second, neither defense nor prosecution is eager before trial to disclose its case by extensive examination at the preliminary hearing; thorough questioning of a prosecution witness by defense counsel may easily amount to a grant of gratis discovery to the State. Third, the schedules of neither court nor counsel can easily accommodate lengthy preliminary hearings. Fourth, even were the judge and lawyers not concerned that the proceedings be brief, the defense and prosecution have generally had inadequate time before the hearing to prepare for extensive examination. Finally, though counsel were to engage in extensive questioning, a part of its force would never reach the trial factfinder, who would know the examination only second hand. As the California Supreme Court stated: "[L]ost in a cold reading of the preliminary transcript is the more subtle yet undeniable effect of counsel's rhetorical style, his pauses for emphasis and his variations in tone, as well as his personal rapport with the jurors, as he pursues his cross-examination. For example, while the lawyer `must keep control of himself [t]his does not mean that the cross-examiner never should fight with a witness, raise his voice, or become angry. Forensic indignation, whether expressed physically or verbally, may produce good results in special circumstances.' In addition, counsel may well conduct *198 his cross-examination in a different manner before a committing magistrate than before a trial court or jury. Thus, counsel must always temper his cross-examination to the individual jurors, using their reactions as a guide to the most effective line of questioning. `The cross-examiner must remember that he is a performer and the jurors are his audience. No good performer ignores his audience, and all performances are conducted for the purpose of favorably impressing the audience.' We conclude that experience demonstrates the essentiality of truly contemporaneous cross-examination." -663, 451 P. 2d, at 427. If cross-examination at the preliminary hearing rarely approximates that at trial, observation by the trial factfinder of the witness' demeanor as he gives his prior testimony is virtually nonexistent. Unless the committing magistrate is also the trial factfinder, the demeanor |
Justice Brennan | 1,970 | 13 | dissenting | California v. Green | https://www.courtlistener.com/opinion/108189/california-v-green/ | the committing magistrate is also the trial factfinder, the demeanor purpose of the Confrontation Clause is wholly negated by substituting confrontation at the preliminary hearing for confrontation at trial. And yet, in the words of the California court, "[i]t is because demeanor attitude and manneris a significant factor in weighing testimonial evidence that it is axiomatic the trier of fact, before whom the witness testified and was cross-examined is the sole judge of the credibility of a witness and of the weight to be given his testimony." No such determination of credibility is possible when the witness comes before the trial factfinder by the reading of a cold transcript. It appears, then, that in terms of the purposes of the Confrontation Clause, an equation of face-to-face encounter at the preliminary hearing with confrontation at trial must rest largely on the fact that the witness testified *199 at the hearing under oath, subject to the penalty for perjury, and in a courtroom atmosphere. These factors are not insignificant, but by themselves they fall far short of satisfying the demands of constitutional confrontation. Moreover, the atmosphere and stakes are different in the two proceedings. In the hurried, somewhat pro forma context of the average preliminary hearing, a witness may be more careless in his testimony than in the more measured and searching atmosphere of a trial. Similarly, a man willing to perjure himself when the consequences are simply that the accused will stand trial may be less willing to do so when his lies may condemn the defendant to loss of liberty. In short, it ignores reality to assume that the purposes of the Confrontation Clause are met during a preliminary hearing. Accordingly, to introduce preliminary hearing testimony for the truth of the facts asserted, when the witness is in court and either unwilling or unable to testify regarding the pertinent events, denies the accused his Sixth Amendment right to grapple effectively with incriminating evidence. The Court's ruling, moreover, may have unsettling effects on the nature and objectives of future preliminary hearings. The California Court defined the problem: "Were we to equate preliminary and trial testimony one practical result might be that the preliminary hearing, designed to afford an efficient and speedy means of determining the narrow question of probable cause, would tend to develop into a full-scale trial. This would invite thorough and lengthy cross-examination, with the consequent necessity of delays and continuances to bring in rebuttal and impeachment witnesses, to gather all available evidence, and to assure generally that nothing remained for later challenge. In time this result would prostitute |
Justice Brennan | 1,970 | 13 | dissenting | California v. Green | https://www.courtlistener.com/opinion/108189/california-v-green/ | remained for later challenge. In time this result would prostitute the accepted purpose of preliminary *200 hearings and might place an intolerable burden on the time and resources of the courts of first instance." 451 P. 2d, at 428. Conscientious defense counsel, aware that today's decision has increased the likelihood of the use of preliminary hearing testimony at trial, may well wish to conduct a full-scale, unlimited cross-examination of prosecution witnesses at the hearing. We held in Coleman v. Alabama, ante, p. 1, that an accused has a right to assistance of counsel during a preliminary hearing. And we have made clear that "it is a denial of the accused's constitutional right to a fair trial to force him to trial with such expedition as to deprive him of the effective aid and assistance of counsel." In light of today's decision, may defense counsel be denied requests for delay that are reasonably necessary to enable him to conduct a thorough examination at the preliminary hearing? What limits, if any, may still be placed on the defense's use of the preliminary hearing as a discovery device to extract information from the prosecution that is reasonably necessary, not to a determination of probable cause, but to a rigorous examination of government witnesses? Do the requisites of "effective assistance of counsel" require defense counsel to conduct such an examination?[8] *201 The Court relies heavily on the traditional practice of admitting the prior testimony of a witness who is physically unavailable at trial. It finds no ground for distinguishing between the pretrial declarant who fails to testify at trial because he is not physically present and the pretrial declarant who, though present at trial, fails to testify because he is unwilling or unable to do so. The Court reasons that the "necessity" for the introduction of either declarant's prior statement is "the State's `need' to introduce relevant evidence," and that the testimony's "reliability" rests "on the circumstances under which it was givencircumstances that remain unaffected regardless of whether the witness is present or absent at the later trial." Ante, at 167 n. 16. I disagree. The State, obviously, does need to introduce relevant evidence. But the "necessity" that justifies the admission of pretrial statements is not the prosecution's need to convict, but the factfinder's need to be presented with reliable evidence to aid its determination of guilt or innocence. Whether a witness' assertions are reliable ordinarily has little or no bearing on their admissibility, for they are subject to the corrective influences of his demeanor and cross-examination. If, however, there is no possibility that |
Justice Brennan | 1,970 | 13 | dissenting | California v. Green | https://www.courtlistener.com/opinion/108189/california-v-green/ | demeanor and cross-examination. If, however, there is no possibility that his assertions can be so tested at trial, then their reliability becomes an important factor in deciding whether to permit their presentation to the factfinder. When a probability exists that incriminating pretrial testimony is unreliable, its admission, absent confrontation, will prejudicially distort the factfinding process. The reliability of pretrial testimony, in turn, is not determined simply by the circumstances under which it *202 was given. It is also influenced by subsequent developments. If, for example, prior testimony is later disavowed by the declarant in an extrajudicial but convincing statement, it would be unrealistic to argue at a later trial, from which the declarant was physically absent, that the reliability of his prior testimony was unaffected by the intervening event. The subsequent developments under consideration here are (1) failure to testify at trial because of physical unavailability and (2) failure to testify because of unwillingness to do so or inability to remember. In my view, these developments have very different implications for the reliability of prior testimony. Physical unavailability is generally a neutral factor; in most instances, it does not cast doubt on the witness' earlier assertions. Inability to remember the pertinent events, on the other hand, or unwillingness to testify about them, whether because of feigned loss of memory or fear of self-incrimination, does cast such doubt. Honest inability to remember at trial raises serious question about clarity of memory at the time of the pretrial statement. The deceit inherent in feigned loss of memory lessens confidence in the probity of prior assertions. And fear of self-incrimination at trial suggests that the witness may have shaped prior testimony so as to avoid dangerous consequences for himself. Reliability cannot be assumed simply because a prior statement was made at a preliminary hearing. In sum, I find that Porter's real or pretended lapse of memory about the pertinent events casts serious doubt upon the reliability of his preliminary hearing testimony. It is clear that so long as a witness, such as Porter, cannot or will not testify about these events at trial, the accused remains unable to challenge effectively that witness' prior assertions about them. The probable unreliability of the prior testimony, coupled with the impossibility *203 of its examination during trial, denies the accused his right to probe and attempt to discredit incriminating evidence. Accordingly, I would hold California Evidence Code 1235 in violation of the Confrontation Clause to the extent that it permits the substantive use at trial of prior statements, whether extrajudicial or testimonial, when the declarant is present |
Justice Stewart | 1,976 | 18 | majority | United States v. Bornstein | https://www.courtlistener.com/opinion/109345/united-states-v-bornstein/ | The False Claims Act provides that the United States may recover from a person who presents a false claim or causes a false claim to be presented to it a forfeiture of $2,000 plus an amount equal to double the amount of damages that it sustains by reason of the false claim.[1] This case presents two interpretative problems *306 that arise when the United States sues a subcontractor under the Act on the ground that the subcontractor has caused the prime contractor to present false claims: First, *307 how should the number of $2,000 forfeitures be counted? Second, when the United States has already recovered damages from the prime contractor because of the subcontractor's fraud, what effect does that recovery have upon the Government's right to recover double damages from the subcontractor? I In 1962, the United States entered into a $2,100,000 contract with Model Engineering & Manufacturing Corporation, Inc. (Model), for the provision of radio kits. Each kit was to contain electron tubes that met certain specifications. Model subcontracted with United National Labs (United) to supply these tubes at a price of $32 each. The tubes that United sent to Model under this subcontract were not of the required quality, but were falsely marked by United to indicate that they were. United sent at least 21 boxes of these falsely marked tubes to Model, in three separately invoiced shipments. The radio kits that Model in turn shipped to the United States contained 397 of those falsely marked tubes. Model sent 35 invoices to the Government for the radio kits, and each invoice included claims for payment for the falsely marked tubes that had been supplied to Model by United. After the Government discovered the fraud, it recovered $0.72 per tube from Model and also retained the falsely marked tubes. *308 Subsequently, the Government brought this civil action in a Federal District Court under the False Claims Act against United and two of its owner-officers, the respondents Philip L. Bornstein and Gerald Page.[2] The complaint alleged that United was liable for 35 $2,000 forfeitures one forfeiture for each invoice that it had "caused" Model to submit,[3] and also claimed damages of $16,205.5, consisting of $0.82 per tube for 397 tubes. The trial court agreed that there had been 35 forfeitures, but ruled that before the Government's damages could be doubled, they were to be reduced by the amount of Model's payment to the United States. The court accordingly computed double damages at only $79.0 and awarded the Government a total of $70,079.0. (NJ). On cross-appeals the Court of Appeals agreed |
Justice Stewart | 1,976 | 18 | majority | United States v. Bornstein | https://www.courtlistener.com/opinion/109345/united-states-v-bornstein/ | of $70,079.0. (NJ). On cross-appeals the Court of Appeals agreed with the trial court on the double-damages issue, but concluded that since there had been only one subcontract involved, there should be only one statutory forfeiture. Accordingly, the appellate court held that United was liable for only $2,079.0. (CA3). We granted the Government's petition for certiorari to consider the statutory questions presented. II The Number of Statutory Forfeitures The False Claims Act provides that a person "who *309 shall do or commit any of the acts prohibited by" Rev. Stat. 538 "shall forfeit and pay to the United States the sum of two thousand dollars" Rev. Stat. 390. Section 538 makes it illegal for a person to present or cause to be presented "for payment or approval any claim upon or against the Government of the United States knowing such claim to be false, fictitious, or fraudulent." It is settled that the Act permits recovery of multiple forfeitures and that it gives the United States a cause of action against a subcontractor who causes a prime contractor to submit a false claim to the Government. See United States ex rel. The precise issue presented here is whether the subcontractor should be liable for each claim submitted by its prime contractor or whether it should be liable only for certain identifiable acts that it itself committed.[] The legislative history of the Act offers little guidance on how properly to determine the number of forfeitures. The Act was originally aimed principally at stopping the massive frauds perpetrated by large contractors during the Civil War.[5] There is no indication that Congress *310 gave any thought to the question of how the number of forfeitures should be determined in cases involving subcontractor fraud. But the absence of specific legislative history in no way modifies the conventional judicial duty to give faithful meaning to the language Congress adopted in the light of the evident legislative purpose in enacting the law in question. The respondents defend the decision of the Court of Appeals that held them liable for only one forfeiture. In reaching this conclusion the Court of Appeals relied principally on its earlier decision in United (CA3), where it found that 16 forfeitures were appropriate because 16 contracts were involved. The Rohleder court had relied in turn on this Court's decision in United States ex rel. The case involved several electrical contractors who had collusively bid on 56 Public Works Administration projects. The District Court in had imposed 56 forfeitures, rejecting the defendants' claim that only one forfeiture should have been imposed because there had |
Justice Stewart | 1,976 | 18 | majority | United States v. Bornstein | https://www.courtlistener.com/opinion/109345/united-states-v-bornstein/ | only one forfeiture should have been imposed because there had been only one fraudulent scheme. This Court concluded that the District Court was correct because the incidence of fraud on each separate project was clearly individualized. No party argued in this Court that more than 56 forfeitures should have been imposed, and no statement in the opinion expressly limited the number of impossible forfeitures to the number of contracts involved in a case. simply approved the result reached by the District Court which had found that "in each project there was a single, false, or fraudulent claim." (WD Pa.). *311 The case, therefore, in no way stands for the proposition that the number of forfeitures is inevitably measured by the number of contracts involved in a case. Such an automatic measurement would ignore the plain language of the statute, as the present case itself illustrates. United is liable under the statute only because it engaged in conduct that caused false claims to be submitted to the United States. While it is true that no false claims would have been submitted had United and Model not entered into a contractual relationship, the entry into that relationship did not in itself cause the submission of any false claims. Had United shipped tubes of the required quality to Model, no false claims would have been presented. By the same token, Model was not caused to file a false claim until it received shipments of falsely branded tubes from United. The language of the statute focuses on false claims, not on contracts. See n. That language does not support a conclusion that United is chargeable with only one forfeiture in this case. To equate the number of forfeitures with the number of contracts would in a case such as this result almost always in but a single forfeiture, no matter how many fraudulent acts the subcontractor might have committed. This result would not only be at odds with the statutory language; it would also defeat the statutory purpose.[6] Such a limitation would, in the language of the Government's brief, convert "the Act's forfeiture provision into little more than a $2,000 license for subcontractor fraud." At the other extreme, the Government urges that 35 forfeitures should be assessed, in accord with the position of the District Court, which ruled that "[United's fraudulent] acts caused Model to submit thirty-five false *312 claims, each of which constituted a separate violation justifying a separate forfeiture." The difficulty with this position is that it fails to distinguish between the acts committed by Model and the acts committed by United.[7] |
Justice Stewart | 1,976 | 18 | majority | United States v. Bornstein | https://www.courtlistener.com/opinion/109345/united-states-v-bornstein/ | acts committed by Model and the acts committed by United.[7] The distinction is a critical one, because the statute imposes liability only for the commission of acts which cause false claims to be presented. If United had committed one act which caused Model to file a false claim, it would clearly be liable for a single forfeiture. If, as a result of the same act by United, Model had filed three false claims, United would still have committed only one act that caused the filing of false claims, and thus, under the language of the statute, would again be liable for only one forfeiture. If, on the other hand, United had committed three separate such causative acts, United would be liable for three forfeitures, even if Model had filed only one false claim. The Act, in short, penalizes a person for his own acts, not for the acts of someone else. The Government's claim that United "caused" Model to submit 35 false claims is simply not accurate. While United committed certain acts which caused Model to submit false claims, it did not cause Model to submit any particular number of false claims. The fact that Model chose to submit 35 false claims instead of some other number was, so far as United was concerned, wholly irrelevantcompletely fortuitous and beyond United's knowledge or control. The Government suggests that United assumed the risk that Model might send 35 invoices when United sent the falsely branded tubes to Model. The statute, however, does not penalize United for what Model did. It penalizes United for what it did. The construction given to the statutory *313 language by the District Court is, therefore, no more satisfactory than the interpretation adopted by the Court of Appeals. A correct application of the statutory language requires, rather, that the focus in each case be upon the specific conduct of the person from whom the Government seeks to collect the statutory forfeitures. In the present case United committed three acts which caused Model to submit false claims to the Governmentthe three separately invoiced shipments to Model. If United had not shipped any falsely branded tubes to Model, Model could not have incorporated such tubes into its radio kits and would not have had occasion to submit any false claims to the United States. When, however, United dispatched each shipment of falsely marked tubes to Model, it did so knowing that Model would incorporate the tubes into the radio kits it later shipped to the Government, and that it would ask for payment from the Government on account of those |
Justice Stewart | 1,976 | 18 | majority | United States v. Bornstein | https://www.courtlistener.com/opinion/109345/united-states-v-bornstein/ | ask for payment from the Government on account of those tubes. Thus, United's three shipments of falsely branded tubes to Model caused Model to submit false claims to the United States, and United is thus liable for three $2,000 statutory forfeitures representing the three separate shipments that it made to Model.[8] III Computation of Double Damages In the District Court "[t]he Government established that the per unit cost to replace the [falsely *31 branded] tubes was $0.82." Finding that the Government had already received $0.72 per tube as damages from Model, the court concluded, and the Court of Appeals agreed, that the Government's total statutory damages were $79.0double the 10-cent difference per tube between its replacement costs and the payment already received from Model for the 397 tubes. The Government argues that both courts were wrong, and that its damages under the Act should be calculated by doubling the amount of its original loss and only then deducting Model's payment from that doubled amount.[9] We agree that the Government's damages should be doubled before any compensatory payments are deducted, because that method of computation most faithfully conforms to the language and purpose of the Act.[10] Although there is nothing in the legislative history that specifically bears on the question of how to calculate double damages, past decisions of this Court have reflected a clear understanding that Congress intended the double-damages provision to play an important role in compensating the United States in cases where it has been defrauded. "We think the chief purpose of the [Act's civil penalties] was to provide for restitution to the government of money taken from it by fraud, and that the device of double damages plus a specific sum was chosen to make sure that the government would be made completely whole." United States ex rel. -552. For *315 several different reasons, this make-whole purpose of the Act is best served by doubling the Government's damages before any compensatory payments are deducted. First, this method of computation comports with the congressional judgment that double damages are necessary to compensate the Government completely for the costs, delays, and inconveniences occasioned by fraudulent claims.[11] Second, the rule that damages should be doubled prior to any deductions fixes the liability of the defrauder without reference to the adventitious actions of other persons. The position adopted by the Court of Appeals would mean that two subcontractors who committed *316 similar acts and caused similar damage could be subjected to widely disparate penalties depending upon whether and to what extent their prime contractors had paid the Government in settlement of |
Justice Stewart | 1,976 | 18 | majority | United States v. Bornstein | https://www.courtlistener.com/opinion/109345/united-states-v-bornstein/ | their prime contractors had paid the Government in settlement of the Government's claims against them. Just as fortuitous acts of the prime contractor should not determine the liability of the sub-contractor under the forfeiture provision of the Act, so likewise the prime contractor's fortuitous acts should not determine the liability of the subcontractor under the double-damages provision. Third, the reasoning of the Court of Appeals and the District Court would enable the subcontractor to avoid the Act's double-damages provision by tendering the amount of the undoubled damages at any time prior to judgment. This possibility would make the double-damages provision meaningless. Doubling the Government's actual damages before any deduction is made for payments previously received from any source in mitigation of those damages forecloses such a result.[12] For these reasons we hold that, in computing the double damages authorized by the Act, the Government's actual damages are to be doubled before any subtractions are made for compensatory payments previously received by the Government from any source.[13] This method of *317 computation, which maximizes the deterrent impact of the double-damages provision and fixes the relative rights and liabilities of the respective parties with maximum precision, best comports in our view with the language and purpose of the Act. The judgment is reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE WHITE join, concurring in part and dissenting in part. I join the opinion of the Court with respect to Part III's treatment of the double-damages issue. But the narrow construction of the False Claims Act adopted by the Court in Part II of the opinion, while not repugnant to the face of the statute itself, is by no means the only permissible construction of that language. Because that construction, as applied to the facts of this case, leads to an arbitrary result providing a windfall for those who would seek to defraud the Government, I would construe the statute somewhat differently than does the Court. Instead of concentrating in isolation on the "conduct of the person from whom the Government seeks to collect the statutory *318 forfeitures," as the Court does, I believe that the statute requires inquiry as to the relationship, in terms of proximate cause and foreseeability, between the conduct of such person and the number of false claims actually presented to the Government. Revised Stat. 390 provides that any nonmilitary |
Justice Stewart | 1,976 | 18 | majority | United States v. Bornstein | https://www.courtlistener.com/opinion/109345/united-states-v-bornstein/ | to the Government. Revised Stat. 390 provides that any nonmilitary person "who shall do or commit any of the acts prohibited by any" of the provisions of Rev. Stat. 538 "shall forfeit and pay" $2,000 to the United States. The "act" which is prohibited by the first clause of 538, at issue here, is the "mak[ing] or caus[ing] to be made, or present[ing] or caus[ing] to be presented, for payment any claim against the Government knowing such claim to be false, fictitious, or fraudulent" That which is proscribed, then, is the causing to be presented a false claim against the Government with knowledge of the falsity of the claim. Reading the pertinent portion of the above to impose liability only for the "commission of acts which cause false claims to be presented" (emphasis added), the Court construes this language to require the trier of fact to "focus in each case upon the specific conduct of the person from whom the Government seeks to collect the statutory forfeitures." It then goes on to hold, apparently as a matter of law, that "the three separately invoiced shipments to Model" were the causative "acts" to which forfeiture liability attaches. As may be more readily seen from an examination of the facts of this case, this extremely narrow construction and application produce a result which bears little relationship to the congressional purpose. The stipulated facts reveal a complex and altogether deliberate scheme to palm off cheaper, surplus tubes to the prime contractor, Model. Model had contracted to build radio kits for use by the Army. The specifications *319 for the component parts reflected the Army's understandable desire that military equipment be long lasting and reliable. The radios were to contain new X150G electron tubes bearing markings that, pursuant to the underlying military procurement specifications, showed they were manufactured in a plant whose quality-control standards measured up to certain Government requirements and were "source" inspected and approved by a Government inspector at the plant during manufacturing.[1] As far as the military was concerned (as opposed to commercial buyers), Eimac was the only authorized manufacturer. Tubes made by Eimac at its designated plant, accompanied by the proper "source" inspection and stamped accordingly, were the only ones qualified to receive genuine affixations. These stringent requirements were reflected in Eimac's market price of $0 per tube. Respondents, however, with full awareness of what was required under Model's contract, got themselves caught between that market price and their own promise to deliver some 1,000 tubes at $32 each. Model had already *320 rejected United's first shipment of 120 surplus |
Justice Stewart | 1,976 | 18 | majority | United States v. Bornstein | https://www.courtlistener.com/opinion/109345/united-states-v-bornstein/ | had already *320 rejected United's first shipment of 120 surplus tubes; with none of them bearing the requisite markings, nonconformity was obvious. The only way respondents were going to profit under their contract with Model was to ship electron tubes that had the appearance of being new and genuine JAN-type[2] electron tubes, bearing markings as if they had been produced by Eimac under the strictures of the Government inspection process. To that end, they bought several hundred surplus tubes, at $17.50 each, from a distributor of Eimac and affixed, on each one, the JAN stamp, a "Manufacturer's Qualification Code"[3] (Eimac's) and an "acceptance" date, all of which markings were palpably false and designed to deceive Model. To complete the illusion, respondents sent the falsely stamped tubes to a testing laboratory where, after inspection, 21 packing lists (referencing the serial numbers) were prepared, each stamped, falsely, with a facsimile of a Government inspector's "Eagle" stamp.[] The 21 boxes were then combined in three separate shipments, respondents certifying with each shipment that the tubes conformed to the contract. Duped into accepting the tubes as genuine, Model paid each of the three invoices and incorporated the fraudulent tubes into the radio kits. Model was paid, of course, on 35 separate invoices. Applying its construction of the statutory language to this multifaceted shell game, the Court concludes that the only "acts" which "caused" the submission of false claims were the three separately invoiced shipments, *321 reasoning that but for the shipment of "falsely branded" tubes the radio kits, and in turn Model's claims to the Government, would have been genuine. However, the three invoiced shipments were among a host of fraudulent acts, with respect to each of which it could be said that "but for" that act Model's claims to the Government would have been genuine. Had respondents not falsely marked each of the 300-odd tubes which were actually shipped to Model, or had the 21 packing lists covering them not been falsely stamped, it could equally well be said that Model would have submitted no false claims to the Government respecting the tubes supplied by respondents.[5] Thus, on the basis of "but for" causation, which is all the Court's justification really amounts to, there is no support whatever for picking the number 3 in preference to the number 21, or for picking either of those numbers in preference to the total number of tubes each of which was falsely marked. The only way these various "acts" can be distinguished from one another, so far as causation is concerned, is their proximity in time |
Justice Stewart | 1,976 | 18 | majority | United States v. Bornstein | https://www.courtlistener.com/opinion/109345/united-states-v-bornstein/ | far as causation is concerned, is their proximity in time to the submission of the false claims by Model. The Court's construction of the statute, as applied to these facts, leads to a result which is not only arbitrary but has the effect of allowing those who would defraud the Government to minimize their potential penalties by shipping all of their rotten eggs in one basket. I believe that a somewhat different construction is at least equally consistent with the language and would produce a result far more consistent with the congressional purpose to penalize those who would defraud the Government. *322 The "act" proscribed is causing a false claim to be presented to the Government with knowledge of its falsity. The Court simply counts the number of causative acts irrespective of the number of false claims actually submitted because the latter number is, in the words of the Court, "wholly fortuitous." But the foregoing examination has shown that the Court's preference for focusing on the "acts" of the subcontractor in isolation leads to an equally fortuitous result. I think that Congress intended the trier of fact in cases such as this to consider not only the "act" of the subcontractor, but also the number of false claims which the act or various acts of the subcontractor caused to be submitted. The first clause of 538 by its very terms focuses on protecting the Government not simply from fraud "in the air" but from the presentation for payment of fraudulent claims. The Court notes with approval cases involving prime contractors where the number of imposable forfeitures has turned on the number of false-payment demands made upon the Government. Ante, at 309 n. If a prime contractor utilized an innocent agent to present a single false claim to a Government agency, but in fact the agent proceeded to split that claim up into multiple invoices, it would mock the statute to suggest that the prime contractor could avoid multiple forfeitures by claiming that he was unable to foresee his agent's conduct. The Court's construction does indeed suggest that in that case the prime contractor could cry "fortuity." There is nothing on the face of the statute, however, to indicate congressional intent to treat deceitful prime contractors and subcontractors according to the mechanics of the underlying fraud. Instead, the verbal linkage of "acts," "causes," and "false claim" is couched in general terms pointing to a uniform construction: the number of impossible forfeitures in each case under *323 the first clause is keyed to the number of false claims submitted.[6] The language further |
Justice Stewart | 1,976 | 18 | majority | United States v. Bornstein | https://www.courtlistener.com/opinion/109345/united-states-v-bornstein/ | to the number of false claims submitted.[6] The language further suggests an interpretation in terms of traditional concepts of causation. Such concepts, whether denominated "proximate cause" or "legal" cause, frequently result in the imposition of liability even upon a negligent actor for consequences of which he could not have been absolutely certain at the time he acted, so long as those consequences might reasonably have been foreseen. See W. Prosser, The Law of Torts 2, 3 (th ed. 1971); Restatement (Second) of Torts 35 (1965). I would remand this case to the District Court for assessment of forfeiture liability under this standard. There may well be room for inference on the part of the trier of fact in this case, if not on the present record, on such additional record as could be compiled on remand, that respondent subcontractor knew or had reason to believe that the prime contractor would assemble and forward finished products to the Government at routine and regular intervals. Nor would it be unforeseeable under such a set of circumstances that the prime contractor would regularly invoice the Government for the customary progress payments. I am unwilling to accept the flat conclusion that it was "wholly beyond" the subcontractor's ability to foresee that 35 false claims would be generated by his fraud. Evidence such as the terms of the prime contract, and the subcontract, the sub-contractor's *32 experience in business generally and in Government procurement particularly, and the closeness of the working relationship between the subcontractor and the prime contractor could well be relevant to such an inquiry. But the fact that the subcontractor loses "control" over the actual number of false claims his actions have caused to be submitted to the Government, once the prime contractor has been tricked into paying for fraudulent goods, cannot be of controlling significance if he could have foreseen the number or even the order of magnitude of the claims which would be ultimately submitted by the prime contractor. Given a statute which punishes intentional deception, deception which is abundantly made out on this record, I cannot agree with the Court's sharply restricted test for determining the number of forfeitures for which these respondents are liable. |
Justice Souter | 1,993 | 20 | dissenting | Reves v. Ernst & Young | https://www.courtlistener.com/opinion/112826/reves-v-ernst-young/ | In the word "conduct," the Court today finds a clear congressional mandate to limit RICO liability under 18 U.S. C. 1962(c) to participants in the "operation or management" *187 of a RICO enterprise. Ante, at 177-179. What strikes the Court as clear, however, looks at the very least hazy to me, and I accordingly find the statute's "liberal construction" provision not irrelevant, but dispositive. But even if I were to assume, with the majority, that the word "conduct" clearly imports some degree of direction or control into 1962(c), I would have to say that the majority misapplies its own "operation or management" test to the facts presented here. I therefore respectfully dissent. The word "conduct" occurs twice in 1962(c), first as a verb, then as a noun. "It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." 18 U.S. C. 1962(c). Although the Court is surely correct that the cognates should receive consistent readings, see ante, at 177, and correct again that "context is important" in coming to understand the sense of the terms intended by Congress, ante, at 178, the majority goes astray in quoting only the verb form of "conduct" in its statement of the context for divining a meaning that must fit the noun usage as well. Thus, the majority reaches its pivotal conclusion that "in the context of the phrase `to conduct [an] enterprise's affairs,' the word indicates some degree of direction." To be sure, if the statutory setting is so abbreviated as to limit consideration to the word as a verb, it is plausible to find in it a suggestion of control, as in the phrase "to conduct an orchestra." (Even so, the suggestion is less than emphatic, since even when "conduct" is used as a verb, "[t]he notion of direction or leadership is often obscured or lost; e. g. an investigation is conducted by all those who take *188 part in it." 3 Oxford English Dictionary 691 (2d ed. 1989) (emphasis in original).) In any event, the context is not so limited, and several features of the full subsection at issue support a more inclusive construction of "conduct." The term, when used as a noun, is defined by the majority's chosen dictionary as, for example, "carrying forward" or "carrying out," Webster's Third New International Dictionary 473 (1976), phrases without any implication of direction |
Justice Souter | 1,993 | 20 | dissenting | Reves v. Ernst & Young | https://www.courtlistener.com/opinion/112826/reves-v-ernst-young/ | International Dictionary 473 (1976), phrases without any implication of direction or control. The suggestion of control is diminished further by the fact that 1962(c) covers not just those "employed by" an enterprise, but those merely "associated with" it, as well. And associates (like employees) are prohibited not merely from conducting the affairs of an enterprise through a pattern of racketeering, not merely from participating directly in such unlawful conduct, but even from indirect participation in the conduct of an enterprise's affairs in such a manner. The very breadth of this prohibition renders the majority's reading of "conduct" rather awkward, for it is hard to imagine how the "operation or management" test would leave the statute with the capacity to reach the indirect participation of someone merely associated with an enterprise. I think, then, that this contextual examination shows "conduct" to have a long arm, unlimited by any requirement to prove that the activity includes an element of direction. But at the very least, the full context is enough to defeat the majority's conviction that the more restrictive interpretation of the word "conduct" is clearly the one intended.[1] *189 What, then, if we call it a tie on the contextual analysis? The answer is that Congress has given courts faced with uncertain meaning a clear tiebreaker in RICO's "liberal construction" clause, which directs that the "provisions of this title shall be liberally construed to effectuate its remedial purposes." Pub. L. 91-452, 904(a), note following 18 U.S. C. 1961. We have relied before on this "express admonition" to read RICO provisions broadly, see Sedima, S. P. R. and in this instance, the "liberal construction" clause plays its intended part, directing us to recognize the more inclusive definition of the word "conduct," free of any restricting element of direction or control.[2] Because the Court of Appeals employed a narrower reading, I would reverse. Even if I were to adopt the majority's view of 1962(c), however, I still could not join the judgment, which seems to me unsupportable under the very "operation or management" test the Court announces. If Arthur Young had confined itself in this case to the role traditionally performed by an outside auditor, I could agree with the majority that Arthur Young took no part in the management or operation of the Farmer's Cooperative of Arkansas and Oklahoma, Inc. (Co-op). But the record on summary judgment, viewed *190 most favorably to Reves,[3] shows that Arthur Young created the very financial statements it was hired, and purported, to audit. Most importantly, Reves adduced evidence that Arthur Young took on management responsibilities by |
Justice Souter | 1,993 | 20 | dissenting | Reves v. Ernst & Young | https://www.courtlistener.com/opinion/112826/reves-v-ernst-young/ | adduced evidence that Arthur Young took on management responsibilities by deciding, in the first instance, what value to assign to the Co-op's most important fixed asset, the White Flame gasohol plant, and Arthur Young itself conceded below that the alleged activity went beyond traditional auditing. Because I find, then, that even under the majority's "operation or management" test the Court of Appeals erroneously affirmed the summary judgment for Arthur Young, I would (again) reverse. For our purposes, the line between managing and auditing is fairly clear. In describing the "respective responsibilities of management and auditor," Arthur Young points to the Code of Professional Conduct developed by the American Institute of Certified Public Accountants (AICPA). Brief for Respondent 31. This auditors' code points up management's ultimate responsibility for the content of financial statements: "The financial statements are management's responsibility. The auditor's responsibility is to express an opinion on the financial statements. Management is responsible for adopting sound accounting policies and for establishing and maintaining an internal control structure that will, among other things, record, process, summarize, and report financial data that is consistent with management's assertions embodied in the financial statements. The independent auditor may make *191 suggestions about the form or content of the financial statements or draft them, in whole or in part, based on information from management's accounting system." 1 CCH AICPA Professional Standards, SAS No. 1, 110.02 (1982). In short, management chooses the assertions to appear in financial statements; the auditor "simply expresses an opinion on the client's financial statements." Brief for Respondent 30. These standards leave no doubt that an accountant can in no sense independently audit financial records when he has selected their substance himself. See In re Thomas P. Reynolds Securities, Ltd., Exchange Act Release No. 29689, SEC LEXIS 1855, *6*7 ("A company may, of course, rely on an outside firm to prepare its books of account and financial statements. However, once an accounting firm performs those functions, it has become identified with management and may not perform an audit"). The evidence on summary judgment, read favorably to Reves, indicates that Arthur Young did indeed step out of its auditing shoes and into those of management, in creating the financial record on which the Co-op's solvency was erroneously predicated. The Co-op's 1980 financial statement gave no fixed-asset value for the White Flame gasohol plant (although the statement did say that the Co-op had advanced the plant $4.1 million during 1980, App. in No. (CA8), pp. 291, 295), and there is no indication that a valuation statement occurred anywhere else in the Co-op's records at |
Justice Souter | 1,993 | 20 | dissenting | Reves v. Ernst & Young | https://www.courtlistener.com/opinion/112826/reves-v-ernst-young/ | valuation statement occurred anywhere else in the Co-op's records at that time. When Arthur Young accepted the job of preparing the Co-op's financial statement for 1981, the value to be given the plant was a matter of obvious moment. Instead of declaring the plant's valuation to be the Co-op's responsibility, and instead even of turning to management for more reliable information about the plant's value, Arthur Young basically set out to answer its own questions and to come up with its own figure for White Flame's fixed-asset value. In doing so, *192 it repeatedly made choices calling for the exercise of a judgment that belonged to the Co-op's management in the first instance. Arthur Young realized it could not rely on White Flame's 1980 financial statement, which had been prepared by a convicted felon (who also happened to be the Co-op's former accountant),[4] see Arthur Young & and an internal memo that appears in the record shows that Arthur Young had a number of serious questions about White Flame's cost figures for the plant. See App. in No. Nonetheless, Arthur Young "essentially invented" a cost figure that matched, to the penny, the phoney figure that Kuykendall, White Flame's convicted accountant, had created. App. 138-140. With this "invented" cost figure in hand, Arthur Young then proceeded to decide, again without consulting management, when the Co-op had acquired White Flame. Although the Co-op's 1980 financial statement indicated an acquisition of White Flame in February 1980, as did a local court decree, see App. in No. 1212 1214, Arthur Young "adopted a blatant fictionthat the Co-op [had] owned the entire plant at its inception in May, 1979in order to justify carrying the asset on [the Co-op's] books at its total cost, as if the Co-op had built it from scratch." App. 137. Apparently, the idea that the Co-op had owned the gasohol plant since 1979 was reflected nowhere in the Co-op's books, and Arthur Young was solely *193 responsible for the Co-op's decision to treat the transaction in this manner.[5] Relying on this fiction, the unreality of which it never shared with the Co-op's board of directors,[6] let alone the *194 membership, Arthur Young prepared the Co-op's 1981 financial statement and listed a fixed-asset value of more than $4.5 million for the gasohol plant. App. in No. (CA8), p. 238. Arthur Young listed a similar value for White Flame in the Co-op's financial statement for 1982. By these actions, Arthur Young took on management responsibilities, for it thereby made assertions about the fixed-asset value of White Flame that were derived, not from information |
Justice Souter | 1,993 | 20 | dissenting | Reves v. Ernst & Young | https://www.courtlistener.com/opinion/112826/reves-v-ernst-young/ | value of White Flame that were derived, not from information or any figure provided by the Co-op's management, but from its own financial analysis. Thus, the District Court, after reviewing this evidence, concluded that petitioners could show from the record that Arthur Young had "created the Co-op's financial statements." App. 199. The court also took note of evidence supporting petitioners' allegation that Arthur Young had "participated in the creation of condensed financial statements" that were handed out each year at the annual meeting of the Co-op. Before the Court of Appeals, although Arthur Young disputed petitioners' claim that it had been functioning as the Co-op's de facto chief financial officer, Supplemental Reply Brief on Remand for Appellant in No. (CA8), p. 2, it did not dispute the District Court's conclusion that Reves had presented evidence showing that Arthur Young had created the Co-op's financial statements and had participated in the creation of condensed financial statements. Supplemental Brief on Remand for Appellant in No. (CA8), p. 20. Instead, Arthur Young argued that "[e]ven if, as here, the alleged activity goes beyond traditional auditing, it was neither an integral part of the management of the Co-op's affairs nor part of a dominant, active ownership or managerial role." It was only by ignoring these crucial concessions, and the evidence that obviously prompted them, that the Court of Appeals could describe Arthur Young's involvement with the *195 Co-op as "limited to the audits, meetings with the Board of Directors to explain the audits, and presentations at the annual meetings." And only then could the court have ruled that, "as a matter of law, Arthur Young's involvement with the Co-op did not rise to the level required for a RICO violation," which it described ) as requiring only "some participation in the operation or management of the enterprise itself." But petitioners' evidence and respondent's concessions of activity going beyond outside auditing can neither be ignored nor declared irrelevant. As the Court explains today, "`outsiders' may be liable under 1962(c) if they are `associated with' an enterprise and participate in the conduct of its affairsthat is, participate in the operation or management of the enterprise itself" Ante, at 185 (emphasis in original). Thus, the question here is whether Arthur Young, which was "associated with" the Co-op, "participated" in the Co-op's operation or management. As the Court has noted, "participate" should be read broadly in this context, see ante, at 178 ), since Congress has provided that even "indirect" participation will suffice. Cf. Sedima, S. P. R. 473 U. S., at The evidence petitioners presented in opposing |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | 2 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC THOMAS, J., concurring in judgment The Court reaches the right conclusion: The appointment process for members of the Financial Oversight and Man- agement Board for Puerto Rico (Board) does not violate the Appointments I cannot agree, however, with the ill-defined path that the Court takes to reach this result. I would resolve these cases based on the original public meaning of the phrase “Officers of the United States” in the Appointments I The Appointments Clause provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Min- isters and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” Art. II, cl. 2. The Clause per- mits Congress to vest the appointment of “inferior Officers” in “the President alone,” “the Courts of Law,” or “the Heads of Departments.” As I have previously explained, the original public mean- ing of the phrase “Officers of the United States” includes “all federal civil officials who perform an ongoing, statutory duty.” Lucia v. SEC, 55 U. S. (THOMAS, J., concurring) (slip op., at 2) (Mascott)). At the founding, the term “officer” referred to “anyone who performed a continuous public duty.” 55 U. S., at (slip op., at 3). And the phrase “of the United States” limited the Appointments Clause to “federal” offic- ers. ; see Mascott 471–479. II Territorial officials performing duties created under Ar- ticle IV of the Constitution are not federal officers within Cite as: 590 U. S. (2020) 3 THOMAS, J., concurring in judgment the original meaning of the phrase “Officers of the United States.” Since the founding, this Court has recognized a distinction between Article IV power and the powers of the National Government in Articles I, II, and III. The found- ing generation understood the phrase “Officers of the United States” to refer to officers exercising the powers of the National Government, not officers solely exercising Ar- ticle IV territorial power. Because the Board’s members perform duties pursuant to Article IV, they do not qualify as “Officers of the United States.” A The Territory Clause of Article IV provides Congress the “Power to dispose of and make all needful Rules and Regu- lations respecting the Territory belonging to the United States.” cl. 2. This power is “absolute and undisputed.” Congress has “full and complete legislative authority over the people of the Territories and all the departments |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | over the people of the Territories and all the departments of the territorial gov- ernments.” National 101 U.S. 129, 133 (10). “No one has ever doubted the authority of congress to erect territorial governments within the territory of the United States, under the general language of the clause, ‘to make all needful rules and regulations.’ ” 3 J. Story, Com- mentaries on the Constitution of the United States p. 195 (133). These governments are “the creations, exclu- sively, of [Congress], and subject to its supervision and con- trol.”1 —————— 1 The Court of Appeals attempted to draw a distinction between power exercised pursuant to territorial laws enacted by Congress and power exercised pursuant to territorial laws enacted by a territorial legislature. There is no meaningful distinction in this context. While the legislature of the Territory may establish laws for the Territories, Article IV remains the “ultimate source” of territorial power. Puerto Rico v. Sánchez Valle, 4 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC THOMAS, J., concurring in judgment Because territorial governments “are not organized un- der the Constitution,” they are not “subject to its complex distribution of the powers of government.” Congress may give Territories “a legislative, an executive, and a judi- ciary, with such powers as it has been their will to assign.” 6 Cranch, at And, since the founding, Congress has done so in ways that do not comport with the Constitu- tion’s restrictions on the National Government. For exam- ple, Congress has delegated Article IV legislative authority to territorial officials and legislatures,2 which it could not —————— 579 U. S. (2016) (slip op., at 15) (internal quotation marks omit- ted). Congress is the source of the “entire dominion and sovereignty” of a Territory, and therefore all territorial laws, whether congressionally enacted or territorially en- acted, derive from Article IV, Sánchez Valle, 579 U. S., at (slip op., at 15) (recognizing that the “most immediate source of [the] authority” does not change the nature of the power exercised). 2 See, e.g., Act of Aug. 7, 179, and n. (a) (Northwest Terri- tory); Act of May 26, 1790, ch. 14, ; Act of Apr. 7, 179, (Mississippi); Act of May 7, 100, § 4, (Indiana); Act of Mar. 26, 104, ; Act of Jan. 11, 105, ch. 5, (Michigan); Act of Mar. 2, 105, § 2, (Orleans); Act of Feb. 3, 109, § 4, (Illi- nois); Act of June 4, 112, (Missouri); Act of Mar. 3, 117, (Alabama); Act of Mar. 2, 119, (Arkansas); Act of Mar. 30, 122, ; Act of Mar. 3, |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | Act of Mar. 30, 122, ; Act of Mar. 3, 123, 3 Stat. 751 ; Act of Apr. 20, 136, (Wisconsin); Act of June 12, 13, (Iowa); Act of Aug. 14, 14, 9 Stat. 324 (Oregon); Act of Mar. 3, (Minnesota); Act of Sept. 9, 150, ; Act of Sept. 9, 150, 9 Stat. (Utah); Act of Mar. 2, 153, (Washing); Act of May 30, 154, 22–24, –279, 24–25 (Nebraska and Kansas); Act of Feb. 2, 161, (Colorado); Act of Mar. 2, 161, –211 (Nevada); Act of Mar. 2, 161, (Dakota); Act of Feb. 24, 163, ch. 56, (Arizona); Act of Mar. 3, 163, (Idaho); Act of May 26, 164, 13 Stat. 7 (Montana); Act of July 25, 16, (Wyoming); Act of May 2, 190, (Oklahoma); Act of Apr. 12, 1900, 31 Stat. 2 (Puerto Rico); Act of Apr. 30, 1900, (Hawaii); Act of July 1, 1902, –694 (Philippines); Act of Aug. 24, 1912, (Alaska); Act of June 22, 1936, Cite as: 590 U. S. (2020) 5 THOMAS, J., concurring in judgment do with Article I legislative power. See ; Depart- ment of (THOMAS, J., concurring in judgment). It has established territorial courts that do not comply with Article III. See Baude, Adjudication Outside Article III, 1525–1530 (2020) (analyzing territorial courts in early Territories). The powers vested in territorial governments are distinct from the powers of the National Government. Territorial legislatures exercise the legislative power of the Territory, not Article I legislative power. Cincinnati Soap Co. v. United States, Territorial officials exercise the executive power of the Territory, not Article II executive power. Snow v. United States, 1 Wall. 317, 321–322 (173). And territorial courts exercise the ju- dicial power of the Territory, not the “judicial power of the United States” under Article III. American Ins. ; B Given the distinction between territorial and national powers, the question becomes whether officers exercising Article IV territorial power are officers “of the United States” under the original meaning of the Appointments They are not. Both the text of the Appointments Clause and historical practice support this conclusion. 1 The text of the Appointments Clause indicates that “Of- ficers of the United States” refers to officers exercising the powers of the National Government, not officers exercising territorial power. The Clause applies to the appointment of —————— (Virgin Islands); Act of Aug. 1, 1950, (Guam). 6 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC THOMAS, J., concurring in judgment “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” Art. II, |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | and all other Officers of the United States.” Art. II, cl. 2. Each of the officers specifically mentioned in the Clause—“Ambassadors,” “public Minis- ters,” “Consuls,” and “Judges of the supreme Court”—holds an office that exercises national power. Although not dispositive, this fact suggests that the phrase “and all other Officers of the United States” refers to “other” officers of the National Government. See Beecham v. United States, 511 U.S. 36, 371 (1994) (“That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well”); see A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 195–19 (discussing the “associated-words canon,” known as noscitur a sociis). 2 Historical evidence from the founding era confirms that officers exercising Article IV territorial power are not “Of- ficers of the United States.” The Court acknowledges some of this evidence and surveys the history of appointments in Puerto Rico. Ante, at –14. I, however, would give more weight and focus to the practices of the First Congress, which provide “powerful evidence of the original under- standing of the Constitution.” Comptroller of Treasury of (THOMAS, J., dis- senting) (compiling cases relying on the practices of the First Congress to interpret the Constitution). Before the Constitution’s ratification, the Northwest Or- dinance of 177 set up a territorial government for the Northwest Territory. Act of Aug. 7, 179, n. (a) (reproducing the Northwest Ordinance of 177 enacted by the Continental Congress). This ordinance granted Con- gress the power to appoint the Northwest Territory’s Gov- ernor, secretary, judges, and general militia officers. Cite as: 590 U. S. (2020) 7 THOMAS, J., concurring in judgment And it provided the Governor the power to appoint “magis- trates and other civil officers” of the Territory. In 179, after the ratification of the Constitution, the First Congress amended the Northwest Ordinance “to adapt [it] to the present Constitution of the United States.” One of these amendments provided that “the President shall nominate, and by and with the advice and consent of the Senate, shall appoint all officers which by the said ordinance were to have been appointed by the United States in Congress assembled, and all officers so appointed shall be commissioned by him.” The officers not previously designated for congressional appointment, in- cluding “magistrates and other civil officers,” remained sub- ject to appointment by the Governor. n. (a), and 53. These amendments (and lack thereof ) provide strong evidence that the First Congress understood the distinction between territorial officers and officers of the National Gov- ernment. As the Court |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | and officers of the National Gov- ernment. As the Court recognizes, Congress revised the Northwest Ordinance to require “a Presidential-appointment, Senate- confirmation process for high-level territorial appointees who assumed federal, as well as local, duties.” Ante, at (emphasis added). For example, Congress revised the ap- pointment process for the Governor of the Northwest Terri- tory, who performed duties under the powers of the Na- tional Government in addition to his Article IV territorial duties. The Governor “discharg[ed] the duties of superin- tendent of Indian affairs,” Act of Sept. 11, 179, ch. 13, which required him to execute congressional reg- ulations, manage trade with Indians, and obey instructions received from the Secretary of War with respect to his du- ties as superintendent. See Ordinance for the Regulation of Indian Affairs (Aug. 7, 176); see F. Prucha, Ameri- can Indian Policy in the Formative Years: The Indian Trade and Intercourse Acts 1790–134, p. 36 (1962). The Gover- nor negotiated treaties with Indians on behalf of the United FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC THOMAS, J., concurring in judgment States. See 2 The Papers of George Washing: Presiden- tial Series 196–19 (D. Twohig ed. 197); 33 Journals of the Continental Congress, 1774–179, p. 711 (R. Hill ed. 1936). He even had the power to call on the militia of the States in the President’s name to prevent “incursions of the hostile Indians.” 2 The St. Clair Papers 125 (W. Smith ed. 12). Thus, at least with respect to the Governor, who wielded powers of the National Government, the First Congress ap- pears to have modified the Northwest Ordinance to ensure its compliance with the Appointments In contrast, Congress did not revise the process for ap- pointing “magistrates and other civil officers,” who re- mained subject to appointment by the Governor. n. (a), and 53. The “magistrates and other civil officers” of the Northwest Territory included justices of the peace, clerks of the court, sheriffs, coroners, surveyors, and nota- ries. 3 The Territorial Papers of the United States: The Territory Northwest of the River Ohio, 177–103, pp. 304– 307 (C. Carter ed. 1934). If these officials were exercising a statutory duty under the powers of the National Govern- ment, they would have certainly been considered “Officers of the United States” under the Appointments See Mascott 44–507, –515. “The Founders considered in- dividuals to be officers even if they performed only ministe- rial statutory duties—including recordkeepers, clerks, and tidewaiters (individuals who watched goods land at a cus- tomhouse).” Lucia, 55 U. S., at (THOMAS, J., concur- ring) (slip op., |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | 55 U. S., at (THOMAS, J., concur- ring) (slip op., at 3). But “the powers and duties of magis- trates and other civil officers [were] regulated and defined by the [territorial] assembly,” n. (a), and there- fore were necessarily exercised pursuant to Article IV, see at 3–5. It is evident that the First Congress did not consider these officials to be “Officers of the United States,” because it allowed appointment by an official who is not the “hea[d] of a department.” See United Cite as: 590 U. S. (2020) 9 THOMAS, J., concurring in judgment One cannot plausibly conclude that the First Congress— seeking to “adapt” the Northwest Ordinance to the Consti- tution, —prescribed methods of appointing terri- torial officers that violated the Appointments Ra- ther, the First Congress recognized the distinction between territorial and national powers, see at 6–, and un- derstood that officers performing duties pursuant to only Article IV territorial powers are not officers “of the United States.” For these reasons, I would hold that the original meaning of the phrase “Officers of the United States” does not include territorial officers exercising only powers con- ferred under Article IV. C Under the original meaning of the Appointments Clause, the Board’s members are not “Officers of the United States.” They are territorial officers exercising power granted under Article IV. The Board is “an entity within the territorial govern- ment,” 4 U.S. C. created “pursuant to article IV, section 3 of the Constitution of the United States,” and funded by the Territory, The members of the Board perform duties involving the over- sight of Puerto Rico’s finances and fiscal reform efforts, and the representation of Puerto Rico in debt restructuring proceedings, Because “they do not exercise the national executive power,” “national judi- cial power,” or national legislative power, the Board’s mem- bers are “Article IV executives,” not Officers of the United States under the Appointments See Freytag v. Commissioner, (Scalia, J., concur- ring in part and concurring in judgment) (emphasis de- leted). The Court rightfully acknowledges the territorial nature of the Board’s duties. Ante, at 14–20. But in the process, 10 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC THOMAS, J., concurring in judgment the Court sets up a dichotomy between officers with “pri- marily local versus primarily federal” duties. Ante, at 1 (emphasis deleted). I cannot agree with this amorphous test. As an initial matter, the Court need not decide whether an officer exercising both national and Article IV powers qualifies as an “Officer of the United States.” The Board’s members have responsibility for |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | of the United States.” The Board’s members have responsibility for ongoing statutory duties that are entirely within the scope of Article IV. See ante, at 14–20. Resolving this unnecessary issue is especially problem- atic because the original meaning of the phrase “Officers of the United States” arguably includes all officers exercising the powers of the National Government, even if those offic- ers exercise power vested under Article IV. The Gov- ernor of the Northwest Territory, for example, seems to have performed “primarily local” duties, yet the First Con- gress believed the Governor was an “Officer of the United States” subject to the restrictions of the Appointments at 7–; see ante, at The Court fails to engage with this point. Indeed, it fails to provide any foundation at all for its “primarily local” rule. The only analysis to be found is a conclusory statement that “provides a rough analogy.” Ante, at 19. But drawing a rule from a case that is “no[t] directly on point,” ib without even ana- lyzing the underlying reasoning of that case, is not sound constitutional interpretation. And favoring a tangentially related decision from 1973 over the practices of the First Congress is certainly not “more faithful to the [Appoint- ment] Clause’s original meaning,” ante, at 21. Finally, the Court fails to provide any explanation for what makes an officer’s duties “primarily local.” Ante, at 14–20. Is it the relative importance of the duties? Or is it the number of duties exercised pursuant to each power? And what ratio is required for duties to be primarily local? Cite as: 590 U. S. (2020) 11 THOMAS, J., concurring in judgment The Court’s opinion has no answers and does not even acknowledge the questions. And, regardless of how these questions are resolved, the primarily local test allows Con- gress to evade the requirements of the Appointments Clause by supplementing an officer’s federal duties with sufficient territorial duties, such that they become “primar- ily local,” whatever that means. * * * Today’s decision reaches the right outcome, but it does so in a roundabout way that departs from the original meaning of the Appointments I would hold that the Board’s members are not “Officers of the United States” because they perform ongoing statutory duties under only Article IV. I therefore cannot join the Court’s opinion and concur only in the judgment. Cite as: 590 U. S. (2020) 1 SOTOMAYOR SOTOMAYOR J., concurring J., concurring in judgment SUPREME COURT OF THE UNITED STATES Nos. 1–1334, 1–1475, 1–6, 1–1514 and 1–1521 FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, PETITIONER 1–1334 v. |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, PETITIONER 1–1334 v. AURELIUS INVESTMENT, LLC, ET AL. AURELIUS INVESTMENT, LLC, ET AL., PETITIONERS 1–1475 v. COMMONWEALTH OF PUERTO RICO, ET AL. OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF ALL TITLE III DEBTORS OTHER THAN COFINA, PETITIONER 1–6 v. AURELIUS INVESTMENT, LLC, ET AL. UNITED STATES, PETITIONER 1–1514 v. AURELIUS INVESTMENT, LLC, ET AL. UNIÓN DE TRABAJADORES DE LA INDUSTRIA ELÉCTRICA Y RIEGO, INC., PETITIONER 1–1521 v. FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT [June 1, 2020] JUSTICE SOTOMAYOR, concurring in the judgment. 2 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC SOTOMAYOR, J., concurring in judgment Nearly 60 years ago, the people of Puerto Rico “em- bark[ed] on [a] project of constitutional self-governance” af- ter entering into a compact with the Federal Government. Puerto Rico v. Sánchez Valle, 579 U. S. (2016) (slip op., at 3). At the conclusion of that endeavor, the people of Puerto Rico established, and the United States Congress recognized, a “republican form of government” “pursuant to a constitution of [the Puerto Rican population’s] own adop- tion.” Act of July 3, 1950, ch. 446, § 2, ; see Act of July 3, 1952, One would think the Puerto Rican home rule that resulted from that mutual en- terprise might affect whether officers later installed by the Federal Government are properly considered officers of Puerto Rico rather than “Officers of the United States” sub- ject to the Appointments U. S. Const., Art. II, cl. 2. Yet the parties do not address that weighty issue or any attendant questions it raises. I thus do not resolve those matters here and instead concur in the judgment. I nevertheless write to explain why these unexplored is- sues may well call into doubt the Court’s conclusion that the members of the Financial Oversight and Management Board for Puerto Rico are territorial officers not subject to the “significant structural safeguards” embodied in the Ap- pointments Edmond v. United States, 520 U.S. 651, 659 (1997). Puerto Rico’s compact with the Federal Government and its republican form of government may not alter its status as a Territory. But territorial status should not be wielded as a talismanic opt out of prior con- gressional commitments or constitutional constraints. I A Puerto Rico became a Territory of the United States in 19, pursuant to a treaty concluding the Spanish- American War. After a series of temporary military gov- erning measures, Congress passed the Foraker Act of 1900, |
Justice Thomas | 2,020 | 1 | concurring | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4759389/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | gov- erning measures, Congress passed the Foraker Act of 1900, Cite as: 590 U. S. (2020) 3 SOTOMAYOR, J., concurring in judgment establishing a civil government exercising significant au- thority over Puerto Rico’s internal territorial affairs. Or- ganic Act of 1900, ch. 191, Over time, Congress put in place incremental measures of auomy, such as by granting U. S. citizenship to the island’s inhabitants in 1917 and providing for the popular election of certain terri- torial officials the same year. See Sánchez Valle, 579 U. S., at – (slip op., at 2–3); Organic Act of 1917, ch. 145, Stat. 951. Yet throughout the early years of Puerto Rico’s territorial status, “Congress retained major elements of sovereignty,” and “[i]n cases of conflict, Congressional stat- ute, not Puerto Rico law, would apply no matter how local the subject.” Cordova & Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank N. A., (Breyer, J., for the court). By 1950, however, international and local “pressures for greater auomy,” prompted Congress to pass Public Law 600, a measure “enabl[ing] Puerto Rico to embark on the project of constitutional self-govern- ance,” Sánchez Valle, 579 U. S., at (slip op., at 3). “ ‘[R]ecognizing’ ” and “affirm[ing] the ‘principle of govern- ment by consent,’ ” Public Law 600 “offered the Puerto Ri- can public a ‘compact,’ under which they could ‘organize a government pursuant to a constitution of their own adop- tion.’ ” at (slip op., at 3, 16) (quoting Act of July 3, 1950, ); see 579 U. S., at (slip op., at 3) (Public Law 600 “[d]escrib[ed] itself as ‘in the nature of a compact’ ” (quoting )). Under the terms of the compact, Public Law 600 itself was submitted to the people of Puerto Rico, who voted to approve the law through a popular referendum. See Leibowitz, The Applicability of Federal Law to the Commonwealth of Puerto Rico, 56 Geo. L. J. 219, 222–223 (1967). Delegates were then elected to a constitutional convention to draft a constitution, and in a special referendum, the draft constitution was submitted to 4 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC SOTOMAYOR, J., concurring in judgment the people of Puerto Rico for approval. In 1952, “both Puerto Rico and the United States ratified Puerto Rico’s Constitution.” Sánchez Valle, 579 U. S., at (BREYER, J., dissenting) (slip op., at ). The people of Puerto Rico first approved the draft Constitution in a refer- endum. Congress then approved the draft Constitution with modifications, noting the caveat that it “shall become effective” only when Puerto Rico “declare[s] in |
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