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Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | yielded segregative effects in that innocent district. See, e. ante, at 92 ("But this interdistrict goal [of attracting nonminority students from outside the KCMSD schools] is beyond the scope of the intradistrict violation identified by the District Court" (emphasis deleted)). Today's decision therefore amounts to a redefinition of the terms of Milliken and consequently to a substantial expansion of its limitation on the permissible remedies for prior segregation. But that is not the only prior law affected by today's decision. The Court has not only rewritten Milliken ; it has effectively overruled a subsequent case expressly refusing to constrain remedial equity powers to the extent the Court does today, and holding that courts ordering relief from unconstitutional segregation may, with an appropriate factual predicate, exercise just the authority that the Court today eliminates. Two Terms after Milliken, we decided in a unanimous opinion by Justice Stewart. The District Court in had found that the United States Department of Housing and Urban Development (HUD) and the Chicago Housing Authority (CHA) had maintained a racially segregated system of public housing within the city of Chicago, in violation of various constitutional and statutory provisions. There was no indication that the violation had produced any effects outside the city itself. The issue before us was whether "the remedial order *170 of the federal trial court [might] extend beyond Chicago's territorial boundaries." Thus, while Justice O'Connor suggests that may not have addressed the propriety of a remedy with effects going beyond the district in which the constitutional violation had occurred, ante, at 106, her suggestion cannot be squared with our express understanding of the question we were deciding: "the permissibility in light of Milliken of `inter-district relief for discrimination in public housing in the absence of a finding of an inter-district violation.' " HUD argued that the case should turn on the same principles governing school desegregation orders and that, under Milliken the District Court's order could not look beyond Chicago's city limits, because it was only within those limits that the constitutional violation had been -297. We agreed with HUD that the principles of Milliken apply outside of the school desegregation and n. 11, but squarely rejected its restricted interpretation of those principles and its view of limited equitable authority to remedy segregation. We held that a district court may indeed subject a governmental perpetrator of segregative practices to an order for relief with intended consequences beyond the perpetrator's own subdivision, even in the absence of effects outside that subdivision, so long as the decree does not bind the authorities of other governmental units |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | decree does not bind the authorities of other governmental units that are free of violations and segregative effects: "[Milliken `s] holding that there had to be an interdistrict violation or effect before a federal court could order the crossing of district boundary lines reflected the substantive impact of a consolidation remedy on separate and independent school districts. The District Court's desegregation order in Milliken was held to be an impermissible remedy not because it envisioned relief against a wrongdoer extending beyond the city in which the violation occurred but because it contemplated a *171 judicial decree restructuring the operation of local governmental entities that were not implicated in any constitutional violation." n the face of `s language, the Court claims that it was only because the "`relevant geographic area for purposes of the [plaintiffs'] housing options [was] the Chicago housing market, not the Chicago city limits,' " ante, at 97, quoting that we held that "`a metropolitan area remedy [was] not impermissible as a matter of law,' " ante, at 97, quoting See ante, at 106 (O'Connor, J., concurring). But that was only half the explanation. Requiring a remedy outside the city in the wider metropolitan area was permissible not only because that was the area of the housing market even for people who lived within the city (thus relating the scope of the remedy to the violation suffered by the victims) but because the trial court could order a remedy in that market without binding a governmental unit innocent of the violation and free of its effects. n "reject[ing] the contention that, since HUD's constitutional and statutory violations were committed in Chicago, Milliken precludes an order against HUD that will affect its conduct in the greater metropolitan area," we stated plainly that "[t]he critical distinction between HUD and the suburban school districts in Milliken is that HUD has been found to have violated the Constitution. That violation provided the necessary predicate for the entry of a remedial order against HUD and, indeed, imposed a duty on the District Court to grant appropriate relief." Having found HUD in violation of the Constitution, the District Court was obligated to make "every to employ those methods [necessary] `to achieve the greatest possible degree of [relief], taking into account the practicalities of the situation,' " ib, quoting and the District Court's methods could include subjecting HUD to measures going beyond the *172 geographical or political boundaries of its violation. "Nothing in the Milliken decision suggests a per se rule that federal courts lack authority to order parties found to have violated the Constitution |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | authority to order parties found to have violated the Constitution to undertake remedial s beyond the municipal boundaries of the city where the violation occurred." On its face, the District Court's magnet school concept falls entirely within the scope of equitable authority recognized in n the fact that the CHA and HUD had the authority to operate outside the limits of the city of Chicago meant that an order to fund or build housing beyond those limits would "not necessarily entail coercion of uninvolved governmental units" Here, by the same token, the District Court has not sought to "consolidate or in any way restructure" the SSD's, or, indeed, to subject them to any remedial obligation at all.[7] The District Court's remedial measures go only to the operation and quality of schools within the KCMSD, and the burden of those measures accordingly falls only on the two proven constitutional wrongdoers in this case, the KCMSD and the State. And insofar as the District Court has ordered those violators to undertake measures to increase the KCMSD's attractiveness to students from other districts and thereby to reverse the flight attributable to their prior segregative acts, its orders do not represent an abuse of discretion, but instead appear "wholly commensurate with the `nature and extent of the constitutional violation.' " quoting Milliken 418 U. S., The Court's failure to give its due points up the risks of its approach to this case. The major peril of addressing an important and complex question without adequate *173 notice to the parties is the virtual certainty that briefing and argument will not go to the real point. f respondents had had reason to suspect that the validity of applying the District Court's remedial concept of magnet schools in this case would be the focus of consideration by this Court, they presumably would have devoted significant attention to in their briefin As things stand, the only references to the case in the parties' briefs were two mere passing mentions by the respondents and a footnote by the State implying that was of little relevance here. The State's footnote says that "in there was evidence of suburban discrimination and of the `extra-city impact of [HUD's] intracity discrimination.' " Brief for Petitioners 28, n. 18. That statement, however, is flatly at odds with Justice Stewart's opinion for the Court: "the Court of Appeals surmised that either an interdistrict violation or an interdistrict segregative effect may have been present in this case. There is no support provided for either conclusion. []t is apparent that the Court of Appeals was mistaken in |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | is apparent that the Court of Appeals was mistaken in supposing that the [record contains] evidence of suburban discrimination justifying metropolitan area relief. [And the Court of Appeals's] unsupported speculation falls far short of the demonstration of a `significant segregative effect in another district' discussed in the Milliken opinion." -295, n. 11.[8] *174 After being misrepresented by the State and mentioned only briefly by the other parties, `s holding is now effectively overruled, for the Court's opinion can be viewed as correct only on that assumption. But there is no apparent reason to reverse that decision, which represented the judgment of a unanimous Court, seems to reflect equitable common sense, and has been in the reports for two decades. While would reserve final judgment on `s future until a time when the subject has been given a full hearing, *175 realize that after today's decision there may never be an occasion for any serious examination of f things work out that way, there will doubtless be those who will quote from to describe today's opinion as "transform[ing] Milliken `s principled limitation on the exercise of federal judicial authority into an arbitrary and mechanical shield for those found to have engaged in unconstitutional conduct." respectfully dissent. |
Justice Douglas | 1,973 | 10 | dissenting | Miller v. California | https://www.courtlistener.com/opinion/108838/miller-v-california/ | I Today we leave open the way for California[1] to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today's decision were never the part of any law. The Court has worked hard to define obscenity and concededly has failed. In it ruled that "[o]bscene material is material which deals with sex in a manner appealing to prurient interest." Obscenity, it was said, was rejected by the First Amendment because it is "utterly without redeeming *38 social importance." The presence of a "prurient interest" was to be determined by "contemporary community standards." That test, it has been said, could not be determined by one standard here and another standard there, but "on the basis of a national standard." My Brother STEWART in Jacobellis commented that the difficulty of the Court in giving content to obscenity was that it was "faced with the task of trying to define what may be indefinable." In the Roth test was elaborated to read as follows: "[T]hree elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value." In a publisher was sent to prison, not for the kind of books and periodicals he sold, but for the manner in which the publications were advertised. The "leer of the sensualist" was said to permeate the advertisements. The Court said, "Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity." As Mr. Justice Black said in dissent, ". Ginzburg is now finally and authoritatively condemned to serve five years in prison for distributing printed matter about sex which neither Ginzburg nor anyone else could possibly have known to be criminal." That observation by Mr. Justice Black is underlined by the fact that the Ginzburg decision was five to four. *39 A further refinement was added by where the Court held that "it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors." But even those members of this Court who had created the new and changing standards of "obscenity" could not agree on their application. And so we adopted a per curiam treatment of so-called obscene publications that seemed to pass constitutional muster |
Justice Douglas | 1,973 | 10 | dissenting | Miller v. California | https://www.courtlistener.com/opinion/108838/miller-v-california/ | of so-called obscene publications that seemed to pass constitutional muster under the several constitutional tests which had been formulated. See Some condemn it if its "dominant tendency might be to `deprave or corrupt' a reader."[2] Others look not to the content of the book but to whether it is advertised "`to appeal to the erotic interests of customers.'"[3] Some condemn only "hard-core pornography"; but even then a true definition is lacking. It has indeed been said of that definition, "I could never succeed in [defining it] intelligibly," but "I know it when I see it."[] Today we would add a new three-pronged test: "(a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Those are the standards we ourselves have written into the Constitution.[5] Yet how under these vague tests can *0 we sustain convictions for the sale of an article prior to the time when some court has declared it to be obscene? Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make new definitions. This effort, like the earlier ones, is earnest and well intentioned. The difficulty is that we do not deal with constitutional terms, since "obscenity" is not mentioned in the Constitution or Bill of Rights. And the First Amendment makes no such exception from "the press" which it undertakes to protect nor, as I have said on other occasions, is an exception necessarily implied, for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated "obscene" publications differently from other types of papers, magazines, and books. So there are no constitutional guidelines for deciding what is and what is not "obscene." The Court is at large because we deal with tastes and standards of literature. What shocks me may *1 be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. We deal here with a regime of censorship which, if adopted, should be done by constitutional amendment after full debate by the people. Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the courts. If a constitutional amendment authorized censorship, the censor would probably be an |
Justice Douglas | 1,973 | 10 | dissenting | Miller v. California | https://www.courtlistener.com/opinion/108838/miller-v-california/ | constitutional amendment authorized censorship, the censor would probably be an administrative agency. Then criminal prosecutions could follow as, if, and when publishers defied the censor and sold their literature. Under that regime a publisher would know when he was on dangerous ground. Under the present regime whether the old standards or the new ones are usedthe criminal law becomes a trap. A brand new test would put a publisher behind bars under a new law improvised by the courts after the publication. That was done in Ginzburg and has all the evils of an ex post facto law. My contention is that until a civil proceeding has placed a tract beyond the pale, no criminal prosecution should be sustained. For no more vivid illustration of vague and uncertain laws could be designed than those we have fashioned. As Mr. Justice Harlan has said: "The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's decisions since Roth which have held particular material obscene or not obscene would find himself in utter bewilderment." Interstate Circuit, In we upset a conviction for remaining on property after being asked to leave, while the only unlawful act charged by the statute was entering. We held that the defendants had received no "fair warning, at the time of their conduct" *2 while on the property "that the act for which they now stand convicted was rendered criminal" by the state statute. The same requirement of "fair warning" is due here, as much as in Bouie. The latter involved racial discrimination; the present case involves rights earnestly urged as being protected by the First Amendment. In any casecertainly when constitutional rights are concernedwe should not allow men to go to prison or be fined when they had no "fair warning" that what they did was criminal conduct. II If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscene and review of that finding has been completed, and thereafter a person publishes, shows, or displays that particular book or film, then a vague law has been made specific. There would remain the underlying question whether the First Amendment allows an implied exception in the case of obscenity. I do not think it does[6] and my views *3 on the issue have been stated over and over again.[7] But at least a criminal prosecution brought at that juncture would not violate the time-honored void-for-vagueness test.[8] No such protective procedure has been designed by California in this case. Obscenitywhich even we cannot define with precisionis |
Justice Douglas | 1,973 | 10 | dissenting | Miller v. California | https://www.courtlistener.com/opinion/108838/miller-v-california/ | in this case. Obscenitywhich even we cannot define with precisionis a hodge-podge. To send * men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process. III While the right to know is the corollary of the right to speak or publish, no one can be forced by government to listen to disclosure that he finds offensive. That was the basis of my dissent in Public Utilities where I protested against making streetcar passengers a "captive" audience. There is no "captive audience" problem in these obscenity cases. No one is being compelled to look or to listen. Those who enter newsstands or bookstalls may be offended by what they see. But they are not compelled by the State to frequent those places; and it is only state or governmental action against which the First Amendment, applicable to the States by virtue of the Fourteenth, raises a ban. The idea that the First Amendment permits government to ban publications that are "offensive" to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed "to invite dispute," to induce "a condition of unrest," to "create dissatisfaction with conditions as they are," and even to stir "people to anger." The idea that the First Amendment permits punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for *5 dispensing tranquilizers to the people. Its prime function was to keep debate open to "offensive" as well as to "staid" people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard "offensive" gives authority to government that cuts the very vitals out of the First Amendment.[9] As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendmentand solely because of it speakers and publishers have not been threatened or subdued because their thoughts and ideas may be "offensive" |
Justice Douglas | 1,973 | 10 | dissenting | Miller v. California | https://www.courtlistener.com/opinion/108838/miller-v-california/ | or subdued because their thoughts and ideas may be "offensive" to some. The standard "offensive" is unconstitutional in yet another way. In 02 U.S. 611, we had before us a municipal ordinance that made it a crime for three or more persons to assemble on a street and conduct themselves "in a manner annoying to persons *6 passing by." We struck it down, saying: "If three or more people meet together on a sidewalk or street corner, they must conduct themselves so as not to annoy any police officer or other person who should happen to pass by. In our opinion this ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct. "Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensive normative standard, but rather in the sense that no standard of conduct is specified at all." at 61. How we can deny Ohio the convenience of punishing people who "annoy" others and allow California power to punish people who publish materials "offensive" to some people is difficult to square with constitutional requirements. If there are to be restraints on what is obscene, then a constitutional amendment should be the way of achieving the end. There are societies where religion and mathematics are the only free segments. It would be a dark day for America if that were our destiny. But the people can make it such if they choose to write obscenity into the Constitution and define it. We deal with highly emotional, not rational, questions. To many the Song of Solomon is obscene. I do not think we, the judges, were ever given the constitutional power to make definitions of obscenity. If it is to be defined, let the people debate and decide by a constitutional amendment what they want to ban as obscene and what standards they want the legislatures and the courts to apply. Perhaps the people will decide that the path towards a mature, integrated society requires *7 that all ideas competing for acceptance must have no censor. Perhaps they will decide otherwise. Whatever the choice, the courts will have some guidelines. Now we have none except our own predilections. MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. |
Justice Thomas | 2,014 | 1 | concurring | Lane v. Franks | https://www.courtlistener.com/opinion/2679557/lane-v-franks/ | This case presents the discrete question whether a public employee speaks “as a citizen on a matter of public concern,” when the employee gives “[t]ruthful testimony under oath outside the scope of his ordinary job duties,” ante, at 9. Answering that question requires little more than a straightforward application of There, we held that when a public employee speaks “pursuant to” his official duties, he is not speaking “as a citizen,” and First Amendment protection is – 422. The petitioner in this case did not speak “pursuant to” his ordinary job duties because his responsibilities did not include testifying in court proceedings, see ante, at 8, n. 4, and no party has suggested that he was subpoenaed as a representative of his employer, see Fed. Rule Civ. Proc. 30(b)(6) (requiring subpoenaed organizations to designate witnesses to testify on their behalf). Because petitioner did not testify to “fulfil[l] a [work] responsibil- ity,” he spoke “as a citizen,” not as 2 LANE v. FRANKS THOMAS, J., concurring an employee. We accordingly have no occasion to address the quite different question whether a public employee speaks “as a citizen” when he testifies in the course of his ordinary job responsibilities. See ante, at 8, n. 4. For some public employees—such as police officers, crime scene techni- cians, and laboratory analysts—testifying is a routine and critical part of their employment duties. Others may be called to testify in the context of particular litigation as the designated representatives of their employers. See Fed. Rule Civ. Proc. 30(b)(6). The Court properly leaves the constitutional questions raised by these scenarios for another day |
Justice Burger | 1,975 | 12 | majority | United States v. Wilson | https://www.courtlistener.com/opinion/109248/united-states-v-wilson/ | We granted certiorari to decide whether a district court may impose summary contempt punishment under Fed. Rule Crim. Proc. 42 (a)[1] when a witness who has been granted immunity, refuses on Fifth Amendment grounds to testify. The Court of Appeals held that in such circumstances a judge cannot dispose of the contempt summarily, but must proceed under Rule 42 (b),[2]*311 which calls for disposition only after notice and hearing, and "a reasonable time for the preparation of the defense." I Respondents Wilson and Bryan, along with one Robert Anderson, were charged in separate indictments with separate bank robberies. Respondent Wilson, and Anderson, were charged with armed robbery of a bank in Tuxedo, N. Y. Respondent Bryan, and Anderson, were charged with armed robbery of a bank in Mount Ivy, N. Y. Prior to Anderson's trial both respondents pleaded guilty to charges against them, but neither was immediately given a final sentence. Sentencing of Wilson was deferred, and, pending a presentence report, Bryan was given a provisional 25-year sentence, as required by 18 U.S. C. 4208 (b), (c). At Anderson's trial for the two robberies, respondents were summoned as witnesses for the prosecution. When questioned, however, each refused to testify, contending that his answers might incriminate him. The judge then granted them immunity, 18 U.S. C. 6002-6003,[3]*312 and, relying on ordered them to answer forthwith. He informed them that as long as they did not lie under oath they could not be prosecuted by reason of any testimony, but that if they continued to refuse to answer he would hold them in contempt. Respondents nevertheless persisted in their refusals, and the judge summarily held them in contempt. Counsel for Wilson, who acted for both respondents, argued for lenient sentences; however, trial counsel made no objection to the summary nature of the contempt citation,[4] nor was any claim made that more time was needed to prepare a defense to the contempt citation. Both respondents were then sentenced to six months' imprisonment, consecutive to any sentences imposed for the bank robberies. The judge made it clear that he would consider reducing the contempt sentences, or eliminating them completely, if respondents decided to testify. When counsel pointed out that a presentence study was being prepared on Bryan the judge responded: "I am going to impose the maximum with the deliberate intention of revising that sentence to what might be appropriate in light of the very study that is going to be made." App. 33. The trial proceeded, but without Bryan's testimony the evidence against Anderson on the Mount Ivy robbery was such that at |
Justice Burger | 1,975 | 12 | majority | United States v. Wilson | https://www.courtlistener.com/opinion/109248/united-states-v-wilson/ | Anderson on the Mount Ivy robbery was such that at the end of the Government's case *313 the judge granted Anderson's motion for acquittal. The jury was unable to reach a verdict on the Tuxedo robbery. At a later trial Anderson was convicted of that robbery. Respondents appealed their contempt convictions. The Court of Appeals rejected the claim that their Fifth Amendment rights would have been violated by compelling them to testify after they had been granted immunity, but it accepted their contention that use of the summary contempt power was improper, and it remanded for proceedings under Rule 42 (b). The court reasoned that "[i]f counsel had been given `a reasonable time for the preparation of the defense,' Fed. R. Crim P. Rule 42 (b), she might have marshalled and presented facts in mitigation of the charge."[5] In requiring Rule 42 (b) disposition the Court of *314 Appeals considered itself bound by its own previous decisions, and by this Court's decision in In a previous case the Court of Appeals had held: "Summary disposition is thus available only when immediate punishment is necessary to put an end to acts disrupting the proceedings, such as threats to the judge, disturbances in the courtroom or insolence before the court. It is not a remedy to be used in a case like this where the contempt consists of no more than orderly refusal in the absence of the jury to answer a question on Fifth Amendment grounds" United In another case the Court of Appeals had interpreted the language of our Harris decision to require that "[a]bsent disruptive conduct, which affronts the dignity of the court, a hearing pursuant to Rule 42 (b) is required to explore possible exculpatory or mitigating circumstances." United In the Court of Appeals' view only a disorderly or obstreperous interference with court proceedings provides an occasion for use of the summary contempt power. Because of the importance of this issue in the conduct of criminal trials, and because the view of the Court of Appeals for the Second Circuit apparently conflicts with that of the Court of Appeals for the First Circuit, we granted certiorari. We reverse. II Respondents' refusals to answer, although not delivered disrespectfully, plainly fall within the express language *315 of Rule 42 (a),[6] and constitute contemptuous conduct. Rule 42 (a) was never intended to be limited to situations where a witness uses scurrilous language, or threatens or creates overt physical disorder and thereby disrupts a trial. All that is necessary is that the judge certify that he "saw or heard the conduct constituting |
Justice Burger | 1,975 | 12 | majority | United States v. Wilson | https://www.courtlistener.com/opinion/109248/united-states-v-wilson/ | judge certify that he "saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court." Respondents do not contest that these requirements are met here. Indeed, here each refusal was in the context of a face-to-face encounter between the judge and respondents. See ; The refusals were contemptuous of judicial authority because they were intentional obstructions[7] of court *316 proceedings that literally disrupted the progress of the trial and hence the orderly administration of justice. Respondents' contumacious silence, after a valid grant of immunity followed by an explicit, unambiguous order to testify, impeded the due course of Anderson's trial perhaps more so than violent conduct in the courtroom. Violent disruptions can be cured swiftly by bodily removing the offender from the courtroom, or by physical restraints, see Ex parte Terry, and the trial may proceed. But as this case demonstrates, a contumacious refusal to answer not only frustrates the inquiry but can destroy a prosecution. Here it was a prosecution; the same kind of contumacious conduct could, in another setting, destroy a defendant's ability to establish a case. The face-to-face refusal to comply with the court's order itself constituted an affront to the court,[8] and when that kind of refusal disrupts and frustrates an ongoing proceeding, as it did here, summary contempt must be available to vindicate the authority of the court as well as to provide the recalcitrant witness with some incentive to testify. In re Chiles, Whether such incentive is necessary in a particular *317 case is a matter the Rule wisely leaves to the discretion of the trial court.[9] Our conclusion that summary contempt is available under the circumstances here is supported by the fact that Rule 42 has consistently been recognized to be no more than a restatement of the law existing when the Rule was adopted, ; Notes of the Advisory Committee on Rule 42 (a), 18 U.S. C. App. p. 4513;[10] and the law at that time allowed summary punishment for refusals to testify, ; ; See Ex parte Hudgings, ; and cases cited therein, cf. Ex parte Kearney, ; In re Savin, III The Court of Appeals considered itself bound by language in to hold Rule 42 (a) inapplicable to the facts here. The crucial difference between the cases, however, is that Harris did not deal with a refusal to testify which obstructed an ongoing trial. In Harris a witness before a grand jury had been granted immunity, 18 U.S. C. 6002, and nevertheless refused to answer certain questions. The witness was then brought |
Justice Burger | 1,975 | 12 | majority | United States v. Wilson | https://www.courtlistener.com/opinion/109248/united-states-v-wilson/ | refused to answer certain questions. The witness was then brought before a District Judge and asked the same questions again. When he still refused to answer, the court summarily held him in contempt. We held in that case that summary contempt was inappropriate because there was no compelling reason for an immediate remedy. A grand jury ordinarily deals with many inquiries and cases at one time, and it can rather easily suspend action on any one, and turn to another while proceedings under Rule 42 (b) are completed. We noted in Harris that "swiftness was not a prerequisite of justice Delay necessary for a hearing would not imperil the grand jury proceedings." U.S., at 164. Trial courts, on the contrary, cannot be expected to dart from case to case on their calendars any time a witness who has been granted immunity decides not to answer questions. In a trial, the court, the parties, witnesses, and jurors are assembled in the expectation that it will proceed as scheduled. Here the District Judge pointed out this problem when defense counsel asked for a continuance; he said: "I think we cannot delay this trial. I cannot delay it. I *319 have many other matters that are equally important to the people concerned in those cases which are following."[11] Delay under Rule 42 (b) may be substantial, and all essential participants in the trial may no longer be readily available when a trial reconvenes. In Harris this Court recognized these problems in noting that summary punishment may be necessary where a "refusal [is] an open, serious threat to orderly procedure." U.S., at 165. A refusal to testify during a trial may be such an open, serious threat, and here it plainly constituted a literal "breakdown" in the prosecution's case. IV In an ongoing trial, with the judge, jurors, counsel, and witnesses all waiting, Rule 42 (a) provides an appropriate remedial tool to discourage witnesses from contumacious refusals to comply with lawful orders essential to prevent a breakdown of the proceedings. Where time is not of the essence, however, the provisions of Rule 42 (b) may be more appropriate to deal with contemptuous conduct. We adhere to the principle that only " `[t]he least possible power adequate to the end proposed' " should be used in contempt cases. See As with all power, the authority under Rule 42 (a) to punish summarily can be abused; the courts of appeals, however, can deal with abuses of discretion without restricting the Rule in contradiction of its express terms, and without unduly limiting the power of the trial |
Justice Kennedy | 2,015 | 4 | concurring | Kerry v. Din | https://www.courtlistener.com/opinion/2808292/kerry-v-din/ | The respondent, Fauzia Din, is a citizen and resident of the United States. She asserts that petitioner Govern- ment officials (collectively, Government) violated her own constitutional right to live in this country with her hus- band, an alien now residing in Afghanistan. She contends this violation occurred when the Government, through State Department consular officials, denied her spouse’s immigrant visa application with no explanation other than that the denial was based on 8 U.S. C. the statutory provision prohibiting the issuance of visas to persons who engage in terrorist activities. The plurality is correct that the case must be vacated and remanded. But rather than deciding, as the plurality does, whether Din has a protected liberty interest, my view is that, even assuming she does, the notice she re- ceived regarding her husband’s visa denial satisfied due process. Today’s disposition should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse. The Court need not decide that issue, for this Court’s precedents instruct that, even assuming she has such an interest, the Government satisfied due process when it notified Din’s husband that 2 KERRY v. DIN KENNEDY, J., concurring in judgment his visa was denied under the immigration statute’s ter- rorism bar, See ante, at 2. I The conclusion that Din received all the process to which she was entitled finds its most substantial instruc- tion in the Court’s decision in Kleindienst v. Mandel, 408 U.S. 753 (1972). There, college professors—all of them citizens—had invited Dr. Ernest Mandel, a self-described “ ‘revolutionary Marxist,’ ” to speak at a conference at Stanford University. Yet when Mandel ap- plied for a temporary nonimmigrant visa to enter the country, he was denied. At the time, the immigration laws deemed aliens “who advocate[d] the economic, interna- tional, and governmental doctrines of World communism” ineligible for visas. (1964 ed.). Aliens ineligible under this provision did have one opportunity for recourse: The Attorney General was given discretion to waive the prohibition and grant individual exceptions, allowing the alien to obtain a temporary visa. For Mandel, however, the Attorney General, acting through the Immigration and Naturalization Service (INS), declined to grant a waiver. In a letter regarding this decision, the INS explained Mandel had exceeded the scope and terms of temporary visas on past trips to the United States, which the agency deemed a “ ‘flagrant abuse of the opportunities afforded him to express his views in this country.’ ” The professors who had invited Mandel to speak chal- lenged the INS’ decision, asserting a First |
Justice Kennedy | 2,015 | 4 | concurring | Kerry v. Din | https://www.courtlistener.com/opinion/2808292/kerry-v-din/ | to speak chal- lenged the INS’ decision, asserting a First Amendment right to “ ‘hear his views and engage him in a free and open academic exchange.’ ” They claimed the Attorney General infringed this right when he refused to grant Mandel relief. See The Court declined to balance the First Amendment interest of the professors against “Congress’ ‘plenary Cite as: 576 U. S. (2015) 3 KENNEDY, J., concurring in judgment power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’ ” (citation omit- ted). To do so would require “courts in each case to weigh the strength of the audience’s interest against that of the Government in refusing a [visa] to the particular applicant,” a nuanced and difficult decision Congress had “properly placed in the hands of the Executive.” at 769. Instead, the Court limited its inquiry to the question whether the Government had provided a “facially legiti- mate and bona fide” reason for its action. Finding the Government had proffered such a reason— Mandel’s abuse of past visas—the Court ended its inquiry and found the Attorney General’s action to be lawful. See The Court emphasized it did not address “[w]hat First Amendment or other grounds may be available for attacking an exercise of discretion for which no justifica- tion whatsoever is advanced.” The reasoning and the holding in Mandel control here. That decision was based upon due consideration of the congressional power to make rules for the exclusion of aliens, and the ensuing power to delegate authority to the Attorney General to exercise substantial discretion in that field. Mandel held that an executive officer’s decision denying a visa that burdens a citizen’s own constitutional rights is valid when it is made “on the basis of a facially legitimate and bona fide reason.” Once this standard is met, “courts will neither look behind the exer- cise of that discretion, nor test it by balancing its justifica- tion against” the constitutional interests of citizens the visa denial might implicate. This reasoning has particular force in the area of national security, for which Congress has provided specific statutory directions per- taining to visa applications by noncitizens who seek entry to this country. 4 KERRY v. DIN KENNEDY, J., concurring in judgment II Like the professors who sought an audience with Dr. Mandel, Din claims her constitutional rights were bur- dened by the denial of a visa to a noncitizen, namely her husband. And as in Mandel, the Government provided a reason for the visa denial: It concluded Din’s husband was |
Justice Kennedy | 2,015 | 4 | concurring | Kerry v. Din | https://www.courtlistener.com/opinion/2808292/kerry-v-din/ | reason for the visa denial: It concluded Din’s husband was inadmissible under terrorism bar. Even assuming Din’s rights were burdened directly by the visa denial, the remaining question is whether the reasons given by the Government satisfy Mandel’s “facially legiti- mate and bona fide” standard. I conclude that they do. Here, the consular officer’s determination that Din’s husband was ineligible for a visa was controlled by specific statutory factors. The provisions of estab- lish specific criteria for determining terrorism-related inadmissibility. The consular officer’s citation of that provision suffices to show that the denial rested on a determination that Din’s husband did not satisfy the statute’s requirements. Given Congress’ plenary power to “suppl[y] the conditions of the privilege of entry into the United States,” United States ex rel. it follows that the Gov- ernment’s decision to exclude an alien it determines does not satisfy one or more of those conditions is facially legit- imate under Mandel. The Government’s citation of also indi- cates it relied upon a bona fide factual basis for denying a visa to Berashk. Cf. United Din claims due pro- cess requires she be provided with the facts underlying this determination, arguing Mandel required a similar factual basis. It is true the Attorney General there dis- closed the facts motivating his decision to deny Dr. Man- del a waiver, and that the Court cited those facts as demonstrating “the Attorney General validly exercised the plenary power that Congress delegated to the Executive.” Cite as: 576 U. S. (2015) 5 KENNEDY, J., concurring in judgment But unlike the waiver provision at issue in Mandel, which granted the Attorney General nearly unbridled discretion, specifies discrete factual predicates the consular officer must find to exist before denying a visa. Din, moreover, admits in her Com- plaint that Berashk worked for the Taliban government, App. 27–28, which, even if itself insufficient to support exclusion, provides at least a facial connection to terrorist activity. Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa—which Din has not plausibly alleged with sufficient particularity—Mandel instructs us not to “look behind” the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on encompassed. See 408 U.S., The Government, furthermore, was not required, as Din claims, to point to a more specific provision within To be sure, the statutory provision the consular officer cited covers a broad range of conduct. And Din perhaps more easily could mount a challenge to her husband’s visa denial if she knew the specific subsection on which the consular |
Justice Kennedy | 2,015 | 4 | concurring | Kerry v. Din | https://www.courtlistener.com/opinion/2808292/kerry-v-din/ | if she knew the specific subsection on which the consular officer relied. Congress understood this problem, however. The statute generally requires the Government to provide an alien denied a visa with the “specific provision or provisions of law under which the alien is inadmissible,” but this notice re- quirement does not apply when, as in this case, a visa application is denied due to terrorism or national security concerns. Notably, the Government is not prohibited from offering more details when it sees fit, but the statute expressly refrains from requiring it to do so. Congress evaluated the benefits and burdens of notice in this sensitive area and assigned discretion to the Execu- tive to decide when more detailed disclosure is appropri- ate. This considered judgment gives additional support to the independent conclusion that the notice given was 6 KERRY v. DIN KENNEDY, J., concurring in judgment constitutionally adequate, particularly in light of the national security concerns the terrorism bar addresses. See ; see also And even if Din is correct that sensitive facts could be reviewed by courts in camera, the dangers and difficulties of han- dling such delicate security material further counsel against requiring disclosure in a case such as this. Under Mandel, respect for the political branches’ broad power over the creation and administration of the immigration system extends to determinations of how much infor- mation the Government is obliged to disclose about a consular officer’s denial of a visa to an alien abroad. For these reasons, my conclusion is that the Govern- ment satisfied any obligation it might have had to provide Din with a facially legitimate and bona fide reason for its action when it provided notice that her husband was denied admission to the country under By requiring the Government to provide more, the Court of Appeals erred in adjudicating Din’s constitutional claims. Cite as: 576 U. S. (2015) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 13–1402 JOHN F. KERRY, SECRETARY OF STATE, ET AL., PETITIONERS v. |
Justice Powell | 1,986 | 17 | majority | United States v. Inadi | https://www.courtlistener.com/opinion/111613/united-states-v-inadi/ | This case presents the question whether the Confrontation Clause requires the Government to show that a nontestifying co-conspirator is unavailable to testify, as a condition for admission of that co-conspirator's out-of-court statements. I Following a jury trial in the Eastern District of Pennsylvania, respondent Joseph Inadi was convicted of conspiring to *3 manufacture and distribute methamphetamine, and related offenses. He was sentenced to three years' imprisonment to be followed by a 7-year parole term. The evidence at trial showed that in September 1979, respondent was approached by unindicted co-conspirator Michael McKeon, who was seeking a distribution outlet for methamphetamine. Respondent's role was to supply cash and chemicals for the manufacture of methamphetamine and to be responsible for its distribution. McKeon and another unindicted co-conspirator, William Levan, were to manufacture the substance. In the course of manufacturing and selling methamphetamine, McKeon, Levan, and respondent met with another unindicted co-conspirator, John Lazaro, at an empty house in Cape May, New Jersey. There they extracted additional methamphetamine from the liquid residue of previous batches. In the early morning hours of May 23, 1980, two Cape May police officers, pursuant to a warrant, secretly entered the house and removed a tray covered with drying methamphetamine. With the permission of the issuing Magistrate, the officers delayed returning an inventory, leaving the participants to speculate over what had happened to the missing tray. On May 25, 1980, two Drug Enforcement Administration agents in Philadelphia monitored a meeting between respondent and Lazaro alongside Lazaro's car. At one point one of the agents saw respondent lean into the car. After Lazaro drove off, the agents stopped his car. They searched the car, Lazaro, and a passenger, Marianne Lazaro, but they found nothing and let the Lazaros leave. Marianne Lazaro later recounted that during the search she threw away a clear plastic bag containing white powder that her husband had handed to her after the meeting with respondent. Eight hours after the search, one of the agents returned to the scene of the crime and found a clear plastic bag containing a small quantity of methamphetamine. *390 From May 23 to May 27, 1980, the Cape May County Prosecutor's Office lawfully intercepted and recorded five telephone conversations between various participants in the conspiracy. These taped conversations were played for the jury at trial. The conversations dealt with various aspects of the conspiracy, including planned meetings and speculation about who had taken the missing tray from the house and who had set Lazaro up for the May 25 stop and search. Respondent sought to exclude the recorded statements of Lazaro |
Justice Powell | 1,986 | 17 | majority | United States v. Inadi | https://www.courtlistener.com/opinion/111613/united-states-v-inadi/ | search. Respondent sought to exclude the recorded statements of Lazaro and the other unindicted co-conspirators on the ground that the statements did not satisfy the requirements of Federal Rule of Evidence 801(d)(2)(E), governing admission of co-conspirator declarations.[1] After listening to the tapes the trial court admitted the statements, finding that they were made by conspirators during the course of and in furtherance of the conspiracy, and thereby satisfied Rule 801(d)(2)(E). Respondent also objected to admission of the statements on Confrontation Clause grounds, contending that the statements were inadmissible absent a showing that the declarants were unavailable. The court suggested that the prosecutor bring Lazaro to court in order to demonstrate unavailability. The court also asked defense counsel whether she wanted the prosecution to call Lazaro as a witness, and defense counsel stated that she would discuss the matter with her client. The co-conspirators' statements were admitted, conditioned on the prosecution's commitment to produce Lazaro. The Government subpoenaed Lazaro, but he failed to appear, claiming car trouble. The record does not indicate that the defense made any effort on its own part to secure Lazaro's presence in court. Respondent renewed his Confrontation Clause objections, arguing that the Government had not met its burden of showing *391 that Lazaro was unavailable to testify. The trial court overruled the objection, ruling that Lazaro's statements were admissible because they satisfied the co-conspirator [2] The Court of Appeals for the Third Circuit reversed. The court agreed that the Government had satisfied Rule 801(d)(2)(E), but decided that the Confrontation Clause established an independent requirement that the Government, as a condition to admission of any out-of-court statements, must show the unavailability of the The court derived this "unavailability rule" from The Court of Appeals rejected the Government's contention that did not require a showing of unavailability as to a nontestifying co-conspirator, finding that created a "clear constitutional rule" applicable to out-of-court statements The court found no reason to create a special exception for co-conspirator statements, and therefore ruled Lazaro's statements inadmissible. We granted certiorari, to resolve the question whether the Confrontation Clause requires a showing of unavailability as a condition to admission of the out-of-court statements of a nontestifying co-conspirator, when those statements otherwise satisfy the requirements of Federal Rule of Evidence 801(d)(2)(E).[3] We now reverse. *392 II A The Court of Appeals derived its rule that the Government must demonstrate unavailability from our decision in It quoted as holding that "in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case the prosecution must either produce, |
Justice Powell | 1,986 | 17 | majority | United States v. Inadi | https://www.courtlistener.com/opinion/111613/united-states-v-inadi/ | necessity. In the usual case the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant." The Court of Appeals viewed this language as setting forth a "clear constitutional rule" applicable before any hearsay can be Under this interpretation of no out-of-court statement would be admissible without a showing of unavailability. however, does not stand for such a wholesale revision of the law of evidence, nor does it support such a broad interpretation of the Confrontation Clause. itself disclaimed any intention of proposing a general answer to the many difficult questions arising out of the relationship between the Confrontation Clause and hearsay. "The Court has not sought to `map out a theory of the Confrontation Clause that would determine the validity of all hearsay "exceptions." ' " -65, quoting The Court in remained "[c]onvinced that `no rule will perfectly resolve all possible problems' " and rejected the "invitation to overrule a near-century of jurisprudence" in order to create such a n. 9, quoting Natali, and Chambers: Three Cases in Search of a Theory, 7 Rutgers-Camden L. J. 43, 73 (1975). In addition, the Court specifically noted that a "demonstration of unavailability is not always required." n. 7. In light of these limiting statements, should not be read as an abstract answer to questions not presented in that case, but *393 rather as a resolution of the issue the Court said it was examining: "the constitutional propriety of the introduction in evidence of the preliminary hearing testimony of a witness not produced at the defendant's subsequent state criminal trial."[4] The Confrontation Clause analysis in focuses on those factors that come into play when the prosecution seeks to admit testimony from a prior judicial proceeding in place of live testimony at trial. See Fed. Rule Evid. 804(b)(1). In particular, the Court examined the requirement, found in a long line of Confrontation Clause cases involving prior testimony, that before such statements can be admitted the government must demonstrate that the declarant is unavailable. See ; ;[5] All of the cases cited in for this "unavailability rule" concern prior testimony. In particular, the Court focused on two cases, and that directly "explored the issue of constitutional unavailability." Both cases specifically limited the unavailability requirement to *394 prior testimony. ; must be read consistently with the question it answered, the authority it cited, and its own facts. All of these indicate that simply reaffirmed a longstanding rule, foreshadowed in established in and refined in a line of cases up through that applies unavailability analysis to |
Justice Powell | 1,986 | 17 | majority | United States v. Inadi | https://www.courtlistener.com/opinion/111613/united-states-v-inadi/ | line of cases up through that applies unavailability analysis to prior testimony.[6] cannot fairly be read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable. B There are good reasons why the unavailability rule, developed in cases involving former testimony, is not applicable to co-conspirators' out-of-court statements. Unlike some other exceptions to the hearsay rules, or the exemption from the hearsay definition involved in this case, former testimony often is only a weaker substitute for live testimony. It seldom has independent evidentiary significance of its own, but is intended to replace live testimony. If the declarant is available and the same information can be presented to the trier of fact in the form of live testimony, with full cross-examination and the opportunity to view the demeanor of the declarant, there is little justification for relying on the weaker version. When two versions of the same evidence are available, longstanding principles of the law of hearsay, applicable as well to Confrontation Clause analysis, favor the better evidence. See Graham, The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, But if the declarant is unavailable, no "better" version of the evidence exists, and *395 the former testimony may be admitted as a substitute for live testimony on the same point. Those same principles do not apply to co-conspirator statements. Because they are made while the conspiracy is in progress, such statements provide evidence of the conspiracy's context that cannot be replicated, even if the declarant testifies to the same matters in court. When the Government as here offers the statement of one drug dealer to another in furtherance of an illegal conspiracy, the statement often will derive its significance from the circumstances in which it was made. Conspirators are likely to speak differently when talking to each other in furtherance of their illegal aims than when testifying on the witness stand. Even when the declarant takes the stand, his in-court testimony seldom will reproduce a significant portion of the evidentiary value of his statements during the course of the conspiracy. In addition, the relative positions of the parties will have changed substantially between the time of the statements and the trial. The declarant and the defendant will have changed from partners in an illegal conspiracy to suspects or defendants in a criminal trial, each with information potentially damaging to the other. The declarant himself may be facing indictment or trial, in which case he has little incentive to aid the |
Justice Powell | 1,986 | 17 | majority | United States v. Inadi | https://www.courtlistener.com/opinion/111613/united-states-v-inadi/ | in which case he has little incentive to aid the prosecution, and yet will be equally wary of coming to the aid of his former partners in crime. In that situation, it is extremely unlikely that in-court testimony will recapture the evidentiary significance of statements made when the conspiracy was operating in full force. These points distinguish co-conspirators' statements from the statements involved in and our other prior testimony cases. Those cases rested in part on the strong similarities between the prior judicial proceedings and the trial. No such strong similarities exist between co-conspirator statements and live testimony at trial. To the contrary, co-conspirator statements derive much of their value from the *396 fact that they are made in a context very different from trial, and therefore are usually irreplaceable as substantive evidence. Under these circumstances, "only clear folly would dictate an across-the-board policy of doing without" such statements. Advisory Committee's Introductory Note on the Hearsay Problem, quoted in Westen, The Future of Confrontation, The admission of co-conspirators' declarations into evidence thus actually furthers the "Confrontation Clause's very mission" which is to "advance `the accuracy of the truth-determining process in criminal trials.' " quoting C There appears to be little, if any, benefit to be accomplished by the Court of Appeals' unavailability First, if the declarant either is unavailable, or is available and produced by the prosecution, the statements can be introduced anyway. Thus, the unavailability rule cannot be defended as a constitutional "better evidence" rule, because it does not actually serve to exclude anything, unless the prosecution makes the mistake of not producing an otherwise available witness. Cf. Westen, Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, In this case, for example, out-of-court statements by Michael McKeon and Marianne Lazaro, who testified under immunity, could be introduced based on their testimony in court. The statements of William Levan were admissible because he properly asserted his Fifth Amendment privilege and thereby was unavailable. Second, an unavailability rule is not likely to produce much testimony that adds anything to the "truth-determining process" over and above what would be produced without such a at Some of the available declarants already will have been subpoenaed by the prosecution or *397 the defense, regardless of any Confrontation Clause requirements. Presumably only those declarants that neither side believes will be particularly helpful will not have been subpoenaed as witnesses. There is much to indicate that Lazaro was in that position in this case. Neither the Government nor the defense originally subpoenaed Lazaro as a witness.[7] When he subsequently failed |
Justice Powell | 1,986 | 17 | majority | United States v. Inadi | https://www.courtlistener.com/opinion/111613/united-states-v-inadi/ | originally subpoenaed Lazaro as a witness.[7] When he subsequently failed to show, alleging car trouble, respondent did nothing to secure his testimony. If respondent independently wanted to secure Lazaro's testimony, he had several options available, particularly under Federal Rule of Evidence 806,[8] which provides that if the party against whom a co-conspirator statement has been admitted calls the declarant as a witness, "the party is entitled to examine him on the statement as if under cross-examination." Rule 806 would not require respondent to make the showing necessary to have Lazaro declared a hostile witness, although presumably that option also was available to him. The Compulsory Process Clause would have aided respondent in obtaining the testimony of any of these declarants.[9] If the *398 Government has no desire to call a co-conspirator declarant as a witness, and if the defense has not chosen to subpoena such a declarant, either as a witness favorable to the defense, or as a hostile witness, or for cross-examination under Federal Rule of Evidence 806,[10] then it is difficult to see what, if anything, is gained by a rule that requires the prosecution to make that declarant "available."[11] While the benefits seem slight, the burden imposed by the Court of Appeals' unavailability rule is significant. A constitutional rule requiring a determination of availability every time the prosecution seeks to introduce a co-conspirator's declaration automatically adds another avenue of appellate review in these complex cases. The co-conspirator rule apparently is the most frequently used exception to the hearsay See 4 D. Louisell & C. Mueller, *399 Federal Evidence 427, p. 331[12] A rule that required each invocation of Rule 801(d)(2)(E) to be accompanied by a decision on the declarant's availability would impose a substantial burden on the entire criminal justice system. Moreover, an unavailability rule places a significant practical burden on the prosecution. In every case involving co-conspirator statements, the prosecution would be required to identify with specificity each declarant, locate those declarants, and then endeavor to ensure their continuing availability for trial. Where declarants are incarcerated there is the burden on prison officials and marshals of transporting them to and from the courthouse, as well as the increased risk of escape. For unincarcerated declarants the unavailability rule would require that during the sometimes lengthy period before trial the Government must endeavor to be aware of the whereabouts of the declarant or run the risk of a court determination that its efforts to produce the declarant did not satisfy the test of "good faith." See -77; ; see also United[13] An unavailability rule would impose all of |
Justice Powell | 1,986 | 17 | majority | United States v. Inadi | https://www.courtlistener.com/opinion/111613/united-states-v-inadi/ | see also United[13] An unavailability rule would impose all of these burdens even if neither the prosecution nor the defense wished to examine the declarant at trial. Any marginal protection to the defendant by forcing the government to call as witnesses those co-conspirator declarants who are available, willing to testify, hostile to the defense, and yet not already subpoenaed by the prosecution, when the defendant himself can call and cross-examine such declarants, cannot support an unavailability *400 We hold today that the Confrontation Clause does not embody such a III To some degree, respondent's arguments in this case require us to revisit this Court's resolution of this question in Although involved a state co-conspirator rule instead of Federal Rule of Evidence 801, the state rule actually admitted a broader category of co-conspirator statements. Nevertheless, a plurality of this Court found that the rule did not violate the Confrontation Clause and a fifth Member of the Court, Justice Harlan, reasoned that the Confrontation Clause was not applicable at all. In the plurality stated that "we do not question the validity of the coconspirator exception applied in the federal courts." Upon closer examination today, we continue to affirm the validity of the use of co-conspirator statements, and we decline to require a showing of the declarant's unavailability as a prerequisite to their admission. We accordingly reverse the judgment of the Court of Appeals for the Third Circuit. It is so ordered. |
Justice Rehnquist | 1,977 | 19 | majority | Nashville Gas Co. v. Satty | https://www.courtlistener.com/opinion/109753/nashville-gas-co-v-satty/ | Petitioner requires pregnant employees to take a formal leave of absence. The employee does not receive sick pay while on pregnancy leave. She also loses all accumuled job seniority; as a result, while petitioner tempts to provide the employee with temporary work upon her return, she will be employed in a permanent job position only if no employee presently working for petitioner also applies for the position. The United Stes District Court for the Middle District of Tennessee held th these policies viole Title VII of the Civil *138 Rights Act of 1964, as amended, 42 U.S. C. 2000e et seq. (1970 ed. and Supp. V). The Court of Appeals for the Sixth Circuit affirmed. We granted certiorari, whether the lower courts properly applied Title VII to petitioner's policies respecting pregnancy. Two separe policies are issue in this case. The first is petitioner's practice of giving sick pay to employees disabled by reason of nonoccupional sickness or injury but not to those disabled by pregnancy. The second is petitioner's practice of denying accumuled seniority to female employees returning to work following disability caused by childbirth.[1] We shall discuss them in reverse order. I Petitioner requires an employee who is about to give birth to take a pregnancy leave of indetermine length. Such an employee does not accumule seniority while absent, but *139 instead actually loses any job seniority accrued before the leave commenced. Petitioner will not hold the employee's job open for her awaiting her return from pregnancy leave. An employee who wishes to return to work from such leave will be placed in any open position for which she is qualified and for which no individual currently employed is bidding; before such time as a permanent position becomes available, the company tempts to find temporary work for the employee. If and when the employee acquires a permanent position, she regains previously accumuled seniority for purposes of pension, vacion, and the like, but does not regain it for the purpose of bidding on future job openings. Respondent began work for petitioner on March 24, 1969, as a clerk in its Customer Accounting Department. She commenced mernity leave on December 29, 1972, and gave birth to her child on January 23, 1973. Seven weeks ler she sought re-employment with petitioner. The position th she had previously held had been elimined as a result of bona fide cutbacks in her department. Temporary employment was found for her a lower salary than she had earned prior to taking leave. While holding this temporary employment, respondent unsuccessfully applied for three permanent positions with petitioner. |
Justice Rehnquist | 1,977 | 19 | majority | Nashville Gas Co. v. Satty | https://www.courtlistener.com/opinion/109753/nashville-gas-co-v-satty/ | employment, respondent unsuccessfully applied for three permanent positions with petitioner. Each position was awarded to another employee who had begun to work for petitioner before respondent had returned from leave; if respondent had been credited with the seniority th she had accumuled prior to leave, she would have been awarded any of the positions for which she applied. After the temporary assignment was completed, respondent requested, "due to lack of work and job openings," th petitioner change her stus from mernity leave to terminion in order th she could draw unemployment compension. We conclude th petitioner's policy of denying accumuled seniority to female employees returning from pregnancy leave violes 703 (a) (2) of Title VII, 42 U.S. C. 2000e-2 (a) (2) *140 (1970 ed., Supp. V). Th section declares it to be an unlawful employment practice for an employer to "limit, segrege, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his stus as an employee because of such individual's sex" On its face, petitioner's seniority policy appears to be neutral in its trement of male and female employees.[2] If an employee is forced to take a leave of absence from a job because of disease or any disability other than pregnancy, the employee, whether male or female, retains accumuled seniority and, indeed, continues to accrue seniority while on leave.[3] If the employee takes a leave of absence for any other reason, including pregnancy, accumuled seniority is divested. Petitioner's decision not to tre pregnancy as a disease or disability for purposes of seniority retention is not on its face a discriminory policy. "Pregnancy is, of course, confined to women, but it is in other ways significantly different from the typical covered disease or disability." *141 We have recognized, however, th both intentional discriminion and policies neutral on their face but having a discriminory effect may run afoul of 703 (a) (2). It is beyond dispute th petitioner's policy of depriving employees returning from pregnancy leave of their accumuled seniority acts both to deprive them "of employment opportunities" and to "adversely affect [their] stus as an employee." It is apparent from the previous recition of the events which occurred following respondent's return from pregnancy leave th petitioner's policy denied her specific employment opportunities th she otherwise would have obtained. Even if she had ultimely been able to regain a permanent position with petitioner, she would have felt the effects of a lower seniority level, with its tendant relegion to less desirable and lower |
Justice Rehnquist | 1,977 | 19 | majority | Nashville Gas Co. v. Satty | https://www.courtlistener.com/opinion/109753/nashville-gas-co-v-satty/ | level, with its tendant relegion to less desirable and lower paying jobs, for the remainder of her career with petitioner. In there was no showing th General Electric's policy of compensing for all non-job-reled disabilities except pregnancy favored men over women. No evidence was produced to suggest th men received more benefits from General Electric's disability insurance fund than did women; both men and women were subject generally to the disabilities covered and presumably drew similar amounts from the insurance fund. We therefore upheld the plan under Title VII. "As there is no proof th the package is in fact worth more to men than to women, it is impossible to find any gender-based discriminory effect in this scheme simply because women disabled as a result of pregnancy do not receive benefits; th is to say, gender-based discriminion does not result simply because an employer's disability-benefits plan is less than all-inclusive. For all th appears, pregnancy-reled disabilities constitute an additional risk, unique to women, and the failure to compense them for this risk does not destroy the presumed parity of the benefits, accruing to men and women alike, *142 which results from the facially evenhanded inclusion of risks." -139 Here, by comparison, petitioner has not merely refused to extend to women a benefit th men cannot and do not receive, but has imposed on women a substantial burden th men need not suffer. The distinction between benefits and burdens is more than one of semantics. We held in th 703 (a) (1) did not require th greer economic benefits be paid to one sex or the other "because of their differing roles in `the scheme of human existence,'" n. 17. But th holding does not allow us to read 703 (a) (2) to permit an employer to burden female employees in such a way as to deprive them of employment opportunities because of their different role.[4] *143 Recognition th petitioner's facially neutral seniority system does deprive women of employment opportunities because of their sex does not end the inquiry under 703 (a) (2) of Title VII. If a company's business necessites the adoption of particular leave policies, Title VII does not prohibit the company from applying these policies to all leaves of absence, including pregnancy leaves; Title VII is not violed even though the policies may burden female employees. Griggs, ; But we agree with the District Court in this case th since there was no proof of any business necessity adduced with respect to the policies in question, th court was entitled to "assume no justificion exists."[5] II On |
Justice Rehnquist | 1,977 | 19 | majority | Nashville Gas Co. v. Satty | https://www.courtlistener.com/opinion/109753/nashville-gas-co-v-satty/ | court was entitled to "assume no justificion exists."[5] II On the basis of the evidence presented to the District Court, petitioner's policy of not awarding sick-leave pay to pregnant employees is legally indistinguishable from the disability-insurance program upheld in As in petitioner compenses employees for limited periods of time during which the employee must miss work because of a non-job-reled illness or disability. As in the compension is not extended to pregnancy-reled absences. We emphasized in th exclusions of this kind are not per se violions of Title VII: "[A]n exclusion of pregnancy *144 from a disability-benefits plan providing general coverage is not a gender-based discriminion all." Only if a plaintiff through the presention of other evidence can demonstre th exclusion of pregnancy from the compensed conditions is a mere "`pretex[t] designed to effect an invidious discriminion against the members of one sex or the other'" does Title VII apply. In evidence had been introduced indicing th women drew substantially greer sums than did men from General Electric's disability-insurance program, even though it excluded pregnancy. 130-131, nn. 9 and 10. But our holding did not depend on this evidence. The District Court in expressly declined to find "th the present actuarial value of the coverage was equal as between men and women." 131. We upheld the disability program on the ground "th neither [was] there a finding, nor was there any evidence which would support a finding, th the financial benefits of the Plan `worked to discrimine against any definable group or class in terms of the aggrege risk protection derived by the group or class from the program.'" 138. When confronted by a facially neutral plan, whose only fault is underinclusiveness, the burden is on the plaintiff to show th the plan discrimines on the basis of sex in violion of Title VII. Albemarle Paper ; McDonnell Douglas We again need not decide whether, when confronted by a facially neutral plan, it is necessary to prove intent to establish a prima facie violion of 703 (a) (1). Cf. McDonnell Douglas -806. Griggs held th a violion of 703 (a) (2) can be established by proof of a discriminory effect. But it is difficult to perceive how exclusion of pregnancy from a disability insurance plan or sick-leave compension program "would deprive any individual of employment opportunities" or "otherwise adversely affect his *145 stus as an employee" in violion of 703 (a) (2). The direct effect of the exclusion is merely a loss of income for the period the employee is not work; such an exclusion has no direct effect upon |
Justice Rehnquist | 1,977 | 19 | majority | Nashville Gas Co. v. Satty | https://www.courtlistener.com/opinion/109753/nashville-gas-co-v-satty/ | not work; such an exclusion has no direct effect upon either employment opportunities or job stus. Plaintiff's tack in was brought under 703 (a) (1), which would appear to be the proper section of Title VII under which to analyze questions of sick-leave or disability payments. Respondent failed to prove even a discriminory effect with respect to petitioner's sick-leave plan. She candidly concedes in her brief before this Court th "petitioner's Sick Leave benefit plan is, in and of itself, for all intents and purposes, the same as the Weekly Sickness and Accident Insurance Plan examined in " and th "if the exclusion of sick pay was the only manner in which respondent had been treed differently by petitioner, would control." Brief for Respondent 10. Respondent, however, contends th because petitioner has violed Title VII by its policy respecting seniority following return from pregnancy leave, the sick-leave pay differentiion must also fall. But this conclusion by no means follows from the premise. Respondent herself abandoned tacks on other aspects of petitioner's employment policies following rulings adverse to her by the District Court, a position scarcely consistent with her present one. We of course recognized both in and in th the facial neutrality of an employee benefit plan would not end analysis if it could be shown th "`distinctions involving pregnancy are mere pretexts designed to effect an invidious discriminion against the members of one sex or the other'" 429 U. S., 135. Petitioner's refusal to allow pregnant employees to retain their accumuled seniority may be deemed relevant by the trier of fact in deciding whether petitioner's sick-leave plan was such a pretext. But it most certainly does not require such a finding by a trier of fact, to *146 say nothing of the making of such a finding as an original mter by this Court. The District Court sitting as a trier of fact made no such finding in this case, and we are not advised whether it was requested to or not. The decision of the Court of Appeals was not based on any such finding, but instead embodied generally the same line of reasoning as the Court of Appeals for the Fourth Circuit followed in its opinion in v. General Electric Co., Since we rejected th line of reasoning in our opinion in the judgment of the Court of Appeals with respect to petitioner's sick-pay policies must be vaced. Th court and the District Court are in a better position than we are to know whether respondent adequely preserved in those courts the right to proceed further in |
Justice Rehnquist | 1,977 | 19 | majority | Nashville Gas Co. v. Satty | https://www.courtlistener.com/opinion/109753/nashville-gas-co-v-satty/ | preserved in those courts the right to proceed further in the District Court on the theory which we have just described.[6] Affirmed in part, vaced in part, and remanded. MR. JUSTICE POWELL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, concurring in the result and concurring in part. I join Part I of the opinion of the Court affirming the decision of the Court of Appeals th petitioner's policy denying *147 accumuled seniority for job-bidding purposes to female employees returning from pregnancy leave violes Title VII.[1] I also concur in the result in Part II, for the legal stus under Title VII of petitioner's policy of denying accumuled sick-pay benefits to female employees while on pregnancy leave requires further factual development in light of General Electric I write separely, however, because the Court appears to have constricted unnecessarily the scope of inquiry on remand by holding premurely th respondent has failed to meet her burden of establishing a prima facie case th petitioner's sick-leave policy is discriminory under Title VII. This case was tried in the District Court and reviewed in the Court of Appeals before our decision in The appelle court upheld her claim in accord with the then uniform view of the Courts of Appeals th any disability plan th treed *148 pregnancy differently from other disabilities was per se violive of Title VII.[2] Since respondent had no reason to make the showing of gender-based discriminion required by I would follow our usual practice of vacing the judgment below and remanding to permit the lower court to reconsider its sick-leave ruling in light of our intervening decision. The issue is not simply one of burden of proof, which properly rests with the Title VII plaintiff, Albemarle Paper ; McDonnell Douglas but of a "full opportunity for presention of the relevant facts," Given the meandering course th Title VII adjudicion has taken, final resolution of a lawsuit in this Court often has not been possible because the parties or the lower courts proceeded on wh was ultimely an erroneous theory of the case. Where the mistaken theory is premised on the pre-existing understanding of the law, and where the record as constituted does not foreclose the arguments made necessary by our ruling, I would prefer to remand the controversy and permit the lower courts to pass on the new contentions in light of whever additional evidence is deemed necessary. For example, in Albemarle Paper the Court approved the Court of Appeals' conclusion th the employer had not proved the job reledness of its testing program, but declined |
Justice Rehnquist | 1,977 | 19 | majority | Nashville Gas Co. v. Satty | https://www.courtlistener.com/opinion/109753/nashville-gas-co-v-satty/ | proved the job reledness of its testing program, but declined to permit immedie issuance of an *149 injunction against all use of testing in the plant. The Court thought th a remand to the District Court was indiced in part because "[t]he approprie standard of proof for job reledness has not been clarified until today," and the plaintiffs "have not until today been specifically apprised of their opportunity to present evidence th even valided tests might be a `pretext' for discriminion in light of alternive selection procedures available to the Company." 422 U.S., 436. Similarly, in Teamsters v. United Stes, U.S. 324 we found a remand for further factual development approprie because the Government had employed an erroneous evidentiary approach th precluded sisfaction of its burden of identifying which nonapplicant employees were victims of the employer's unlawful discriminion and thus entitled to a retroactive seniority award. "While it may be true th many of the nonapplicant employees desired and would have applied for line-driver jobs but for their knowledge of the company's policy of discriminion, the Government must carry its burden of proof, with respect to each specific individual, the remedial hearings to be conducted by the District Court on remand." 371.[3] Cf. Here, respondent has abandoned the theory th enabled her to prevail in the District Court and the Court of Appeals. Instead, she urges th her case is distinguishable from : "Respondent submits th because the exclusion of sick pay is only one of the many ways in which female *150 employees who experience pregnancy are treed differently by petitioner, the holding in is not controlling. Upon examinion of the overall manner in which female employees who experience pregnancy are treed by petitioner, it becomes plain th petitioner's policies are much more pervasive than the mere under-inclusiveness of the Sickness and Accident Insurance Plan in" Brief for Respondent 10. At least two distinguishing characteristics are identified by respondent. First, as found by the District Court, only pregnant women are required to take a leave of absence and are denied sick-leave benefits while in all other cases of nonoccupional disability sick-leave benefits are available. Second, the sick-leave policy is necessarily reled to petitioner's discriminory denial of job-bidding seniority to pregnant women on mandory mernity leave, presumably because both policies flow from the premise th a female employee is no longer in active service when she becomes pregnant. Although respondent's theory is not fully articuled, she presents a plausible contention, one not required to have been raised until and not foreclosed by the stipuled evidence of record, see 429 U. |
Justice Rehnquist | 1,977 | 19 | majority | Nashville Gas Co. v. Satty | https://www.courtlistener.com/opinion/109753/nashville-gas-co-v-satty/ | foreclosed by the stipuled evidence of record, see 429 U. S., 130-131, n. 9, and 131 n. 10, or the concurrent findings of the lower courts, see Arlington Heights v. Metropolitan Housing Dev. It is not inconceivable th on remand respondent will be able to show th the combined operion of petitioner's mandory mernity-leave policy[4]*151 and denial of accumuled sick-pay benefits yielded significantly less net compension for petitioner's female employees than for the class of male employees. A number of the former, but not the lter, endured forced absence from work without sick pay or other compension. The parties stipuled th between July 2, 1965, and August 27, petitioner had placed 12 employees on pregnancy leave, and th some of these employees were on leave for periods of two months or more. App. 33. It is possible th these women had not exhausted their sick-pay benefits the time they were compelled to take mernity leave, and th the denial of sick pay for this period of absence resulted in a relive loss of net compension for petitioner's female work force. Petitioner's male employees, on the other hand, are not subject to a mandory leave policy, and are eligible to receive compension in some form for any period of absence from work due to sickness or disability. In short, I would not foreclose the possibility th the facts as developed on remand will support a finding th "the package is in fact worth more to men than to women." 138. If such a finding were made, I would view respondent's case as not barred by[5] In th case, the Court reled: "The District Court noted the evidence introduced during the trial, a good deal of it stipuled, concerning the relive cost to General Electric of providing benefits under the Plan to male and female employees, all of which indiced th, with pregnancy-reled disabilities excluded, the cost of the Plan to General Electric per female employee was least as high as, if not substantially higher than, the cost per male employee." 429 U.S., 130 The District Court also "found th the inclusion of pregnancy-reled disabilities within the scope of the Plan would `increase G. E.'s [disability-benefits plan] costs *152 by an amount which, though large, is this time undeterminable.' 375 F. Supp., 378." 131. While the District Court declined to make an explicit finding th the actuarial value of the coverage was equal between men and women, it may have been referring simply to the quantum and specificity of proof necessary to establish a "business necessity" defense. See v. General Electric Co., |
Justice Stevens | 1,997 | 16 | dissenting | Babbitt v. Youpee | https://www.courtlistener.com/opinion/118078/babbitt-v-youpee/ | Section 207 of the Indian Land Consolidation Act, 25 U.S. C. 2206, did not, in my view, effect an unconstitutional taking of William Youpee's right to make a testamentary disposition of his property. As I explained in the Federal Government, like a State, has a valid interest in removing legal impediments to the productive development of real estate. For this reason, the Court has repeatedly "upheld the power of the State to condition the retention of a property right upon the performance of an act within a limited period of time." Texaco, I remain convinced that "Congress has ample power to require the owners of fractional interests in allotted lands to consolidate their holdings during their lifetimes or to face the risk that their interests will be deemed to be abandoned." Hodel The federal interest in minimizing the fractionated ownership of Indian landsand thereby paving the way to the productive development of their propertyis strong enough to justify the legislative remedy created by 207, provided, of course, that affected owners have adequate notice of the requirements of the law and an adequate opportunity to adjust their affairs to protect against loss. See In my opinion, William Youpee did have such notice and opportunity. With regard to notice, the requirements of 207 are set forth in the United States Code. "Generally, a legislature need do nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply. It is well established that persons owning property within a [jurisdiction] are charged with knowledge of relevant statutory provisions affecting the control or disposition of such property." Texaco, -532. Unlike the landowners in Hodel, Mr. Youpee also had adequate opportunity to comply. *247 More than six years passed from the time 207 was amended until Mr. Youpee died on October 19, 1990 (this period spans more than seven years if we count from the date 207 was originally enacted). During this time, Mr. Youpee could have realized the value of his fractional interests (approximately $1,239) in a variety of ways, including selling the property, giving it to his children as a gift, or putting it in trust for them. I assume that he failed to do so because he was not aware of the requirements of 207. This loss is unfortunate. But I believe Mr. Youpee's failure to pass on his property is the product of inadequate legal advice rather than an unconstitutional defect in the statute.[*] Accordingly, I respectfully dissent. |
Justice Scalia | 2,002 | 9 | majority | Young v. United States | https://www.courtlistener.com/opinion/118486/young-v-united-states/ | A discharge under the Bankruptcy Code does not extinguish certain tax liabilities for which a return was due within three years before the filing of an individual debtor's petition. 11 U.S. C. 523(a)(1)(A), 507(a)(8)(A)(i). We must decide whether this "three-year lookback period" is tolled during the pendency of a prior bankruptcy petition. I Petitioners Cornelius and Suzanne Young failed to include payment with their 1992 income tax return, due and filed on *45 October 15, 1993 (petitioners had obtained an extension of the April 15 deadline). About $15,000 was owing. The Internal Revenue Service (IRS) assessed the tax liability on January 3, 1994, and petitioners made modest monthly payments ($40 to $300) from April 1994 until November 19. On May 1, 1996, they sought protection under Chapter of the Bankruptcy Code in the United States Bankruptcy Court for the District of New Hampshire. The bulk of their tax liability (about $,000, including accrued interest) remained due. Before a reorganization plan was confirmed, however, the Youngs moved on October 23, 1996, to dismiss their Chapter petition, pursuant to 11 U.S. C. 07(b). On March 12, 1997, one day before the Bankruptcy Court dismissed their Chapter petition, the Youngs filed a new petition, this time under Chapter 7. This was a "no asset" petition, meaning that the Youngs had no assets available to satisfy unsecured creditors, including the IRS. A discharge was granted June 17, 1997; the case was closed September 22, 1997. The IRS subsequently demanded payment of the 1992 tax debt. The Youngs refused and petitioned the Bankruptcy Court to reopen their Chapter 7 case and declare the debt discharged. In their view, the debt fell outside the Bankruptcy Code's "three-year lookback period," 523(a)(1)(A), 507(a)(8)(A)(i), and had therefore been discharged, because it pertained to a tax return due on October 15, 1993, more than three years before their Chapter 7 filing on March 12, 1997. The Bankruptcy Court reopened the case but sided with the IRS. Although the Youngs' 1992 income tax return was due more than three years before they filed their Chapter 7 petition, it was due less than three years before they filed their Chapter petition on May 1, 1996. Holding that the "three-year lookback period" is tolled during the pendency of a prior bankruptcy petition, the Bankruptcy Court concluded that the 1992 tax debt had not been discharged. The District Court for the District of New Hampshire and Court *46 of Appeals for the First Circuit agreed. We granted certiorari. II Section 523(a) of the Bankruptcy Code excepts certain individual debts from discharge, including any tax |
Justice Scalia | 2,002 | 9 | majority | Young v. United States | https://www.courtlistener.com/opinion/118486/young-v-united-states/ | Code excepts certain individual debts from discharge, including any tax "of the kind and for the periods specified in section 507(a)(8) of this title, whether or not a claim for such tax was filed or allowed." 523(a)(1)(A). Section 507(a), in turn, describes the priority of certain claims in the distribution of the debtor's assets. Subsection 507(a)(8)(A)(i) gives eighth priority to "allowed unsecured claims of governmental units, only to the extent that such claims are for a tax on or measured by income or gross receipts for a taxable year ending on or before the date of the filing of the petition for which a return, if required, is last due, including extensions, after three years before the date of the filing of the petition" (Emphasis added.) This is commonly known as the "three-year lookback period." If the IRS has a claim for taxes for which the return was due within three years before the bankruptcy petition was filed, the claim enjoys eighth priority under 507(a)(8)(A)(i) and is nondischargeable in bankruptcy under 523(a)(1)(A). The terms of the lookback period appear to create a loophole: Since the Code does not prohibit back-to-back Chapter and Chapter 7 filings (as long as the debtor did not receive a discharge under Chapter see 727(a)(8), (9)), a debtor can render a tax debt dischargeable by first filing a Chapter petition, then voluntarily dismissing the petition when the lookback period for the debt has lapsed, and finally refiling under Chapter 7. During the pendency of the Chapter petition, the automatic stay of 362(a) will prevent the IRS from taking steps to collect the unpaid taxes, and if the Chapter 7 petition is filed after the lookback period has expired, the taxes remaining due will be dischargeable. Petitioners *47 took advantage of this loophole, which, they believe, is permitted by the Bankruptcy Code. We disagree. The three-year lookback period is a limitations period subject to traditional principles of equitable tolling. Since nothing in the Bankruptcy Code precludes equitable tolling of the lookback period, we believe the courts below properly excluded from the three-year limitation the period during which the Youngs' Chapter petition was pending. A The lookback period is a limitations period because it prescribes a period within which certain rights (namely, priority and nondischargeability in bankruptcy) may be enforced. 1 H. Limitations of Actions 1, p. 1 (4th D. Moore ed. 1916). Old tax claimsthose pertaining to returns due more than three years before the debtor filed the bankruptcy petitionbecome dischargeable, so that a bankruptcy decree will relieve the debtor of the obligation to pay. The period |
Justice Scalia | 2,002 | 9 | majority | Young v. United States | https://www.courtlistener.com/opinion/118486/young-v-united-states/ | relieve the debtor of the obligation to pay. The period thus encourages the IRS to protect its rightsby, say, collecting the debt, 26 U.S. C. 6501, 6502 (1994 ed. and Supp. V), or perfecting a tax lien, 6322, 6323(a), (f) (1994 ed.) before three years have elapsed. If the IRS sleeps on its rights, its claim loses priority and the debt becomes dischargeable. Thus, as petitioners concede, the lookback period serves the same "basic policies [furthered by] all limitations provisions: repose, elimination of stale claims, and certainty about a plaintiff's opportunity for recovery and a defendant's potential liabilities." It is true that, unlike most statutes of limitations, the lookback period bars only some, and not all, legal remedies[1] for enforcing the claim (viz., priority and * nondischargeability in bankruptcy); that makes it a more limited statute of limitations, but a statute of limitations nonetheless. Petitioners argue that the lookback period is a substantive component of the Bankruptcy Code, not a procedural limitations period. The lookback period commences on the date the return for the tax debt "is last due," 507(a)(8)(A)(i), not on the date the IRS discovers or assesses the unpaid tax. Thus, the IRS may have less than three years to protect itself against the risk that a debt will become dischargeable in bankruptcy. To illustrate, petitioners offer the following variation on this case: Suppose the Youngs filed their 1992 tax return on October 15, 1993, but had not received (as they received here) an extension of the April 15, 1993, due date. Assume the remaining facts of the case are unchanged: The IRS assessed the tax on January 3, 1994; petitioners filed a Chapter petition on May 1, 1996; that petition was voluntarily dismissed and the Youngs filed a new petition under Chapter 7 on March 12, 1997. In this hypothetical, petitioners argue, their tax debt would have been dischargeable in the first petition under Chapter Over three years would have elapsed between the due date of their return (April 15, 1993) and their Chapter petition (May 1, 1996). But the IRS which may not have discovered the debt until petitioners filed a return on October 15, 1993would have enjoyed less than three years to collect the debt or prevent the debt from becoming dischargeable in bankruptcy (by perfecting a tax lien). The Code even contemplates this possibility, petitioners believe. Section 523(a)(1)(B)(ii) renders a tax debt nondischargeable if it arises from an untimely return filed within two years before a bankruptcy petition. Thus, if petitioners had filed their return on April 30, 1994 (more than two years before |
Justice Scalia | 2,002 | 9 | majority | Young v. United States | https://www.courtlistener.com/opinion/118486/young-v-united-states/ | return on April 30, 1994 (more than two years before their Chapter petition), and if the IRS had been *49 unaware of the debt until the return was filed, the IRS would have had only two years to act before the debt became dischargeable in bankruptcy. For these reasons, petitioners believe the lookback period is not a limitations period, but rather a definition of dischargeable taxes. We disagree. In the sense in which petitioners use the term, all limitations periods are "substantive": They define a subset of claims eligible for certain remedies. And the lookback is not distinctively "substantive" merely because it commences on a date that may precede the date when the IRS discovers its claim. There is nothing unusual about a statute of limitations that commences when the claimant has a complete and present cause of action, whether or not he is aware of it. See 1 C. Corman, Limitation of Actions 6.1, pp. 370, 378 (1991); 2 276c(1), at 1411. As for petitioners' reliance on 523(a)(1)(B)(ii), that section proves, at most, that Congress put different limitations periods on different kinds of tax debts. All tax debts falling within the terms of the three-year lookback period are nondischargeable in bankruptcy. 523(a)(1)(A), 507(a)(8)(A)(i). Even if a tax debt falls outside the terms of the lookback period, it is nonetheless nondischargeable if it pertains to an untimely return filed within two years before the bankruptcy petition. 523(a)(1)(B)(ii). These provisions are complementary; they do not suggest that the lookback period is something other than a limitations period. B It is hornbook law that limitations periods are "customarily subject to `equitable tolling,' " unless tolling would be "inconsistent with the text of the relevant statute," United See also American Pipe & Constr. ; ; Congress must be presumed to draft limitations periods in light of this background *50 principle. Cf. National Private Truck Council, (19); United That is doubly true when it is enacting limitations periods to be applied by bankruptcy courts, which are courts of equity and "appl[y] the principles and rules of equity jurisprudence." 308 U.S. 2, ; see also United 4 U.S. 545, This Court has permitted equitable tolling in situations "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." We have acknowledged, however, that tolling might be appropriate in other cases, see, e. g., Baldwin County Welcome and this, we believe, is one. Cf. 0 U.S. 320, ; 3 |
Justice Scalia | 2,002 | 9 | majority | Young v. United States | https://www.courtlistener.com/opinion/118486/young-v-united-states/ | we believe, is one. Cf. 0 U.S. 320, ; 3 J. Story, Equity Jurisprudence 1974, pp. (14th W. Lyon ed. 1918). The Youngs' Chapter petition erected an automatic stay under 362, which prevented the IRS from taking steps to protect its claim. When the Youngs filed a petition under Chapter 7, the three-year lookback period therefore excluded time during which their Chapter petition was pending. The Youngs' 1992 tax return was due within that three-year period. Hence the lower courts properly held that the tax debt was not discharged when the Youngs were granted a discharge under Chapter 7. Tolling is in our view appropriate regardless of petitioners' intentions when filing back-to-back Chapter and Chapter 7 petitionswhether the Chapter petition was filed in good faith or solely to run down the lookback period. In either case, the IRS was disabled from protecting its claim during the pendency of the Chapter petition, and this period *51 of disability tolled the three-year lookback period when the Youngs filed their Chapter 7 petition. C Petitioners invoke several statutory provisions which they claim display an intent to preclude tolling here. First they point to 523(b), which, they believe, explicitly permits discharge in a Chapter 7 proceeding of certain debts that were nondischargeable (as this tax debt was) in a prior Chapter proceeding. Petitioners misread the provision. Section 523(b) declares that "a debt that was excepted from discharge under subsection (a)(1), (a)(3), or (a)(8) of this sectionin a prior case concerning the debtor is dischargeable in a case under this title unless, by the terms of subsection (a) of this section, such debt is not dischargeable in the case under this title." (Emphasis added.) The phrase "excepted from discharge" in this provision is not synonymous (as petitioners would have it) with "nondischargeable." It envisions a prior bankruptcy proceeding that progressed to the discharge stage, from which discharge a particular debt was actually "excepted." It thus has no application to the present case; and even if it did, the very same arguments in favor of tolling that we have found persuasive with regard to 507 would apply to 523 as well. One might perhaps have expected an explicit tolling provision in 523(b) if that subsection applied only to those debts "excepted from discharge" in the earlier proceeding that were subject to the three-year lookbackbut in fact it also applies to excepted debts (see 523(a)(3)) that were subject to no limitations period. And even the need for tolling as to debts that were subject to the three-year lookback is minimal, since a separate provision of the Code, |
Justice Scalia | 2,002 | 9 | majority | Young v. United States | https://www.courtlistener.com/opinion/118486/young-v-united-states/ | lookback is minimal, since a separate provision of the Code, 727(a)(9), constrains successive discharges under Chapters and 7: Generally speaking, six years must elapse between filing of the *52 two bankruptcy petitions, which would make the need for tolling of the three-year limitation nonexistent. The absence of an explicit tolling provision in 523 therefore suggests nothing. Petitioners point to two provisions of the Code, which, in their view, do contain a tolling provision. Its presence there, and its absence in 507, they argue, displays an intent to preclude equitable tolling of the lookback period. We disagree. Petitioners point first to 108(c), which reads: "Except as provided in section 524 of this title, if applicable nonbankruptcy law fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) 30 days after notice of the termination or expiration of the stay with respect to such claim." Petitioners believe 108(c)(1) contains a tolling provision. The lower courts have split over this issue, compare, e. g., (CA5), cert. denied, (19), with Garbe Iron Works, ; we need not resolve it here. Even assuming petitioners are correct, we would draw no negative inference from the presence of an express tolling provision in 108(c)(1) and the absence of one in 507. It would be quite reasonable for Congress to instruct nonbankruptcy courts (including state courts) to toll nonbankruptcy limitations periods (including state-law limitations periods) while, at the same time, assuming that bankruptcy courts will use their inherent equitable powers to toll the federal limitations periods within the Code. *53 Finally, petitioners point to a tolling provision in 507(a)(8)(A), the same subsection that sets forth the threeyear lookback period. Subsection 507(a)(8)(A) grants eighth priority to tax claims pertaining to returns that were due within the three-year lookback period, 507(a)(8)(A)(i), and to claims that were assessed within 240 days before the debtor's bankruptcy petition, 507(a)(8)(A)(ii). Whereas the three-year lookback period contains no express tolling provision, the 240-day lookback period is tolled "any time plus 30 days during which an offer in compromise with respect to such tax that was made within 240 days after such assessment was pending." 507(a)(8)(A)(ii). Petitioners believe this express tolling provision, appearing in the same subsection as the three-year lookback period, demonstrates a statutory |
Justice Scalia | 2,002 | 9 | majority | Young v. United States | https://www.courtlistener.com/opinion/118486/young-v-united-states/ | same subsection as the three-year lookback period, demonstrates a statutory intent not to toll the three-year lookback period. If anything, 507(a)(8)(A)(ii) demonstrates that the Bankruptcy Code incorporates traditional equitable principles. An "offer in compromise" is a settlement offer submitted by a debtor. When 507(a)(8)(A)(ii) was enacted, it was IRS practicethough no statutory provision required itto stay collection efforts (if the Government's interests would not be jeopardized) during the pendency of an "offer in compromise," 26 CFR 301.7122-1(d)(2) (1978); M. Saltzman, IRS Practice and Procedure ¶ 15.07[1], p. 15-47 (1981).[2] Thus, a court would not have equitably tolled the 240-day lookback period during the pendency of an "offer in compromise," since tolling is inappropriate when a claimant has voluntarily chosen not to protect his rights within the limitations period. See, e. g., 498 U. S., Hence the tolling provision in 507(a)(8)(A)(ii) supplements rather than displaces principles of equitable tolling. *54 * * * We conclude that the lookback period of 11 U.S. C. 507(a)(8)(A)(i) is tolled during the pendency of a prior bankruptcy petition. The judgment of the Court of Appeals for the First Circuit is affirmed. It is so ordered. |
Justice Blackmun | 1,977 | 11 | majority | Smith v. United States | https://www.courtlistener.com/opinion/109663/smith-v-united-states/ | In this Court rejected a plea for a uniform national standard as to what *293 appeals to the prurient interest and as to what is patently offensive; the Court held, instead, that these essentially were questions of fact to be measured by contemporary standards of the community. The instant case presents the issue of the constitutional effect of state law that leaves unregulated the distribution of obscene material to adults, on the determination of contemporary community standards in a prosecution under 18 U.S. C. 1461 for a mailing that is wholly intrastate. The case also raises the question whether 1461 is unconstitutionally vague as applied in these circumstances, and the question whether the trial court, during the voir dire of prospective jurors, correctly refused to ask proffered questions relating to community standards. I Between February and October 1974 petitioner, Jerry Lee Smith, knowingly caused to be mailed various materials from Des Moines, Iowa, to post office box addresses in Mount Ayr and Guthrie Center, two communities in southern Iowa. This was done at the written request of postal inspectors using fictitious names. The materials so mailed were delivered through the United postal system to the respective postmasters serving the addresses. The mailings consisted of (1) issues of "Intrigue" magazine, depicting nude males and females engaged in masturbation, fellatio, cunnilingus, and sexual intercourse; (2) a film entitled "Lovelace," depicting a nude male and a nude female engaged in masturbation and simulated acts of fellatio, cunnilingus, and sexual intercourse; and (3) a film entitled "Terrorized Virgin," depicting two nude males and a nude female engaged in fellatio, cunnilingus, and sexual intercourse. II For many years prior to 1974 the statutes of Iowa made it a misdemeanor to sell or offer to sell or to give away "any obscene, lewd, indecent, lascivious, or filthy book, pamphlet, *294 paper, picture, photograph, writing" or to deposit in any post office within Iowa any article of that kind. Iowa Code 725.5 and 725.6 In 1973, however, the Supreme Court of Iowa, in response to the standards enunciated in unanimously held that a related and companion Iowa statute, 725.3 of the 1973 Code, prohibiting the presentation of any obscene or immoral drama, play, exhibition, or entertainment, was unconstitutionally vague and overbroad.[1]Wedelstedt, at least by implicationand we so assumeinvalidated 725.5 and 725.6 as well. On July 1, 1974, Laws of Iowa 1974, cc. 1267 and 1268, became effective. These specifically repealed 725.3, 725.5, and 725.6 of the 1973 Code. In addition, however, c. 1267 (thereafter codified as the first 10 sections of c. 725 of the Iowa Code) |
Justice Blackmun | 1,977 | 11 | majority | Smith v. United States | https://www.courtlistener.com/opinion/109663/smith-v-united-states/ | first 10 sections of c. 725 of the Iowa Code) defined, among other things, "obscene material," and made it "a public offense" to disseminate obscene material to minors (defined as persons "under the age of eighteen"). Dissemination of obscene material to adults was not made criminal or even proscribed. Section 9[2] of c. 1267 (now 725.9 of the Code) insured that the law would be applied uniformly throughout the State, and that no lesser *295 governmental unit would impose more stringent regulations on obscene In 1976, the Iowa Legislature enacted a "complete revision" of the State's "substantive criminal laws." This is entitled the "Iowa Criminal Code" and is generally effective January 1, 1978. The existing definition of "obscene material" remains unchanged, but a new provision, 2804 of the Criminal Code, Iowa Code Ann. although limited in scope, applies by its terms to adults. It reads: "Any person who knowingly sells or offers for sale material depicting a sex act involving sado-masochistic abuse, excretory functions, a child, or bestiality which the average adult taking the material as a whole in applying contemporary community standards would find that it appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political, or artistic value shall, upon conviction be guilty of a simple misdemeanor." In summary, therefore, we have in Iowa (1) until 1973 state statutes that proscribed generally the dissemination of obscene writings and pictures; (2) the judicial nullification of some of those statutory provisions in that year for reasons of overbreadth and vagueness; (3) the enactment, effective July 1, 1974, of replacement obscenity statutes restricted in their application to dissemination to minors; and (4) the enactment in 1976 of a new Code, effective in 1978, with obscenity provisions, somewhat limited in scope, but not restricted in application to dissemination to minors. Petitioner's mailings, described above and forming the basis of his federal prosecution, took place in 1974, after the theretofore existing Iowa statutes relating to obscene material had been nullified by Wedelstedt, but obviously before the 1976 legislation imposing misdemeanor liability with respect to certain transactions with adults becomes effective. Because *296 there is no contention that the materials petitioner mailed went to any minor, the 1974 legislation has no application to his case. And the 1976 legislation, of course, has no effect on petitioner's criminal liability. Cf. Thus, what petitioner did clearly was not a violation of state law at the time he did it. It is to be observed, also, that there is no suggestion that petitioner's mailings went to |
Justice Blackmun | 1,977 | 11 | majority | Smith v. United States | https://www.courtlistener.com/opinion/109663/smith-v-united-states/ | that there is no suggestion that petitioner's mailings went to any nonconsenting adult or that they were interstate. III Petitioner was indicted on seven counts of violating 18 U.S. C. 1461, which prohibits the mailing of obscene materials.[3] He pleaded not guilty. At the start of his trial petitioner proposed and submitted six questions for voir dire.[4] *297 The court accepted in substance and utilized the first question; this was designed to reveal whether any juror was connected with an organization devoted to regulating or banning obscene materials. The court declined to ask the other five. One of the questions made inquiry as to whether the jurors had any knowledge of contemporary community standards in the Southern District of Iowa with regard to the depiction of sex and nudity. Two sought to isolate the source of the jurors' knowledge and their understanding of those standards. The remaining two would have explored the jurors' knowledge of Iowa law on the subject. At the trial the Government introduced into evidence the actual materials covered by the indictment. It offered nothing else on the issue of obscenity vel non. Petitioner did not testify. Instead, in defense, he introduced numerous sexually explicit materials that were available for purchase at "adult" bookstores in Des Moines and Davenport, Iowa, several advertisements from the Des Moines Register and Tribune, and a copy of what was then c. 725 of the Iowa Code, prohibiting the dissemination of "obscene material" only to minors. At the close of the Government's case, and again at the close of all the evidence, petitioner moved for a directed verdict of acquittal on the grounds, inter alia, that the Iowa obscenity statute, proscribing only the dissemination of obscene materials to minors, set forth the applicable community standard, and that the prosecution had not proved that the materials at issue offended that standard. The District Court denied those motions and submitted the case to the jury. The court instructed the jury that contemporary community standards were set by what is in fact *298 accepted in the community as a whole. In making that determination, the jurors were entitled to draw on their own knowledge of the views of the average person in the community as well as the evidence presented as to the state law on obscenity and as to materials available for purchase. App. 22-23. The jury found petitioner guilty on all seven counts. He was sentenced to concurrent three-year terms of imprisonment, all but three months of which were suspended, and three years' probation. In his motion for a new trial, petitioner again |
Justice Blackmun | 1,977 | 11 | majority | Smith v. United States | https://www.courtlistener.com/opinion/109663/smith-v-united-states/ | probation. In his motion for a new trial, petitioner again asserted that Iowa law defined the community standard in a 1461 prosecution. In denying this motion, the District Court held that 1461 was "a federal law which neither incorporates nor depends upon the laws of the states," App. 33; the federal policy was simply different in this area. Furthermore, the court observed, Iowa's decision not to regulate distribution of obscene material did not mean that the people of Iowa necessarily "approve[d] of the permitted conduct," ibid.; whether they did was a question of fact for the jury. The court rejected petitioner's argument that it was error not to ask the jurors the question about the extent of their knowledge of contemporary community standards. It held that the jurors were entitled to draw on their own knowledge; voir dire on community standards would be no more appropriate than voir dire on the jurors' concept of "reasonableness." The court refused to hold that the Government was required to introduce evidence on a community standard in order to sustain its burden of proof. The materials introduced "can and do speak for themselves." The court did not address petitioner's vagueness point.[5] The United Court of Appeals for the Eighth Circuit, *299 by per curiam opinion, agreed with the District Court that the questions submitted by petitioner on community standards, except for the first, were impermissible, since they concerned the ultimate question of guilt or innocence rather than juror qualification. The court noted, however, that it was not holding that no questions whatsoever could be asked in that area. With respect to the effect of state law, the court held that the issue of offense to contemporary community standards was a federal question, and was to be determined by the jury in a federal prosecution. The court noted the admission of Iowa's obscenity statute into evidence but stated that this was designed to give the jury knowledge of the State's policy on obscenity when it determined the contemporary community standard. The state policy was not controlling, since the determination was for the jury. The conviction, therefore, was affirmed. We granted certiorari in order to review the relationship between state legislation regulating or refusing to regulate the distribution of obscene material, and the determination of contemporary community standards in a federal prosecution. IV The "basic guidelines" for the trier of fact in a state obscenity prosecution were set out in in the form of a three-part test: "(a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals |
Justice Blackmun | 1,977 | 11 | majority | Smith v. United States | https://www.courtlistener.com/opinion/109663/smith-v-united-states/ | would find that the work, taken as a whole, appeals to the prurient interest ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." In two companion cases, the Court held that the Miller standards were equally applicable to federal legislation. United *300 (importation of obscene material, 19 U.S. C. 1305 (a)); United (movement of obscene material in interstate commerce, 18 U.S. C. 1462). In it held, specifically, that the Miller standards applied in a 1461 prosecution. The phrasing of the Miller test makes clear that contemporary community standards take on meaning only when they are considered with reference to the underlying questions of fact that must be resolved in an obscenity case.[6] The test *301 itself shows that appeal to the prurient interest is one such question of fact for the jury to resolve. The Miller opinion indicates that patent offensiveness is to be treated in the same 30. See -105.[7] The fact that the jury must measure patent offensiveness against contemporary community standards does not mean, however, that juror discretion in this area is to go unchecked. Both in Hamling and in the Court noted that part (b) of the Miller test contained a substantive component as well. The kinds of conduct that a jury would be permitted to label as "patently offensive" in a 1461 prosecution are the "hard core" types of conduct suggested by the examples given in Miller.[8] See ; cf. -161. Literary, artistic, political, or scientific value, on the other hand, is not discussed in Miller in terms of contemporary community standards. See generally F. Schauer, The Law of Obscenity 123-124 The issue we must resolve is whether the jury's discretion to determine what appeals to the prurient interest and what is patently offensive is circumscribed in any way by a state statute such as c. 725 of the Iowa Code. Put another way, *302 we must decide whether the jury is entitled to rely on its own knowledge of community standards, or whether a state legislature (or a smaller legislative body) may declare what the community standards shall be, and, if such a declaration has been made, whether it is binding in a federal prosecution under 1461. Obviously, a state legislature would not be able to define contemporary community standards in a vacuum. Rather, community standards simply provide the measure against which the jury decides the questions of appeal to prurient interest and patent |
Justice Blackmun | 1,977 | 11 | majority | Smith v. United States | https://www.courtlistener.com/opinion/109663/smith-v-united-states/ | decides the questions of appeal to prurient interest and patent offensiveness. In the Court recognized the close analogy between the function of "contemporary community standards" in obscenity cases and "reasonableness" in other cases: "A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a `reasonable' person in other areas of the law." -105. It would be just as inappropriate for a legislature to attempt to freeze a jury to one definition of reasonableness as it would be for a legislature to try to define the contemporary community standard of appeal to prurient interest or patent offensiveness, if it were even possible for such a definition to be formulated. This is not to say that state legislatures are completely foreclosed from enacting laws setting substantive limitations for obscenity cases. On the contrary, we have indicated on several occasions that legislation of this kind is permissible. See ; State legislation must still define the kinds of conduct that will be regulated by the State. For example, the Iowa law in effect at the time this prosecution was instituted was to the effect that no conduct aimed at *303 adults was regulated.[9] At the other extreme, a State might seek to regulate all the hard-core pornography that it constitutionally could. The new Iowa law, which will regulate only material "depicting a sex act involving sado-masochistic abuse, excretory functions, a child, or bestiality," provides an example of an intermediate approach. Iowa Criminal Code 2804. If a State wished to adopt a slightly different approach to obscenity regulation, it might impose a geographic limit on the determination of community standards by defining the area from which the jury could be selected in an obscenity case, or by legislating with respect to the instructions that must be given to the jurors in such cases. In addition, the State might add a geographic dimension to its regulation of obscenity through the device of zoning laws. Cf. It is evident that ample room is left for state legislation even though the question of the community standard to apply, when appeal to prurient interest and patent offensiveness are considered, is not one that can be defined legislatively. An even stronger reason for holding that a state law regulating distribution of obscene material cannot define contemporary community standards in the case before us is the simple fact that this is a federal prosecution under 1461. |
Justice Blackmun | 1,977 | 11 | majority | Smith v. United States | https://www.courtlistener.com/opinion/109663/smith-v-united-states/ | simple fact that this is a federal prosecution under 1461. The Court already has held, in Hamling, that the substantive conduct encompassed by 1461 is confined to "the sort of `patently offensive representations or descriptions of that specific "hard core" sexual conduct given as examples in'" The community standards aspects of 1461 likewise present issues of federal law, upon which a state statute such as Iowa's cannot have conclusive *304 effect.[10] The kinds of instructions that should be given to the jury are likewise a federal question. For example, the Court has held that 1461 embodies a requirement that local rather than national standards should be applied.[11], Similarly, obscenity is to be judged according to the average person in the community, rather than the most prudish or the most tolerant. Roth v. United Both of these substantive limitations are passed on to the jury in the form of instructions. *305 The fact that the mailings in this case were wholly intrastate is immaterial for a prosecution under 1461. That statute was one enacted under Congress' postal power, granted in Art. I, 8, cl. 7, of the Constitution, and the Postal Power Clause does not distinguish between interstate and intrastate matters. This Court consistently has upheld Congress' exercise of that power to exclude from the mails materials that are judged to be obscene. See, e. g., Ex parte Jackson, ; Public Clearing ; Roth v. United United v. See also In re Rapier,[12] Our decision that contemporary community standards must be applied by juries in accordance with their own understanding of the tolerance of the average person in their community does not mean, as has been suggested, that obscenity convictions will be virtually unreviewable. We have stressed before that juries must be instructed properly, so that they consider the entire community and not simply their own subjective reactions, or the reactions of a sensitive or of a callous minority. See The type of conduct depicted must fall within the substantive limitations suggested in Miller and adopted in Hamling with respect to 1461. Cf. The work also must lack serious literary, artistic, political, or scientific value before a conviction will be upheld; this determination is particularly amenable to appellate review. Finally, it *306 is always appropriate for the appellate court to review the sufficiency of the evidence. Cf. Ginzburg v. United Petitioner argues that a decision to ignore the Iowa law will have the practical effect of nullifying that law. We do not agree. In the first place, the significance of Iowa's decision in 1974 not to regulate the distribution of obscene |
Justice Blackmun | 1,977 | 11 | majority | Smith v. United States | https://www.courtlistener.com/opinion/109663/smith-v-united-states/ | decision in 1974 not to regulate the distribution of obscene materials to adults is open to question. Iowa may have decided that the resources of its prosecutors' offices should be devoted to matters deemed to have greater priority than the enforcement of obscenity statutes. Such a decision would not mean that Iowa affirmatively desired free distribution of those materials; on the contrary, it would be consistent with a hope or expectation on the State's part that the Federal Government's prosecutions under statutes such as 1461 would be sufficient for the State's purposes. The State might also view distribution over the counter as different from distribution through the mails. It might conclude that it is easier to keep obscene materials out of the hands of minors and unconsenting adults in retail establishments than it is when a letter or package arrives at a private residence. Furthermore, the history of the Iowa law suggests that the State may have left distribution to consenting adults unregulated simply because it was not then able to arrive at a compromise statute for the regulation of obscenity. Arguments similar to petitioner's "nullification" thesis were made in cases that followed Stanley v. In United the question was whether the United constitutionally might prohibit the importation of obscene material that was intended solely for private, personal use and possession. See 19 U.S. C. 1305 (a). Stanley had upheld the individual's right to possess obscene material in the home, and the argument was made that this right would be virtually meaningless if the Government could prevent importation *307 of, and hence access to, the obscene -127. The Court held that Stanley had been based on the privacy of the home, and that it represented a considered line of demarcation in the obscenity area. Consequently, despite the incidental effect that the importation prohibition had on the privacy right to possess obscene material in the home, the Court upheld the statute. A similar result was reached, in the face of similar argument, in United There, 18 U.S. C. 1462, the statute prohibiting knowing transportation of obscene material in interstate commerce, was at issue. The Court held that Stanley did not create a right to receive, transport, or distribute obscene material, even though it had established the right to possess the material in the privacy of the See also United v. In this case, petitioner argues that the Court has recognized the right of to adopt a laissez-faire attitude toward regulation of pornography, and that a holding that 1461 permits a federal prosecution will render the ' right meaningless. See Paris Adult |
Justice Blackmun | 1,977 | 11 | majority | Smith v. United States | https://www.courtlistener.com/opinion/109663/smith-v-united-states/ | prosecution will render the ' right meaningless. See Paris Adult Theatre ; United v. Just as the individual's right to possess obscene material in the privacy of his home, however, did not create a correlative right to receive, transport, or distribute the material, the State's right to abolish all regulation of obscene material does not create a correlative right to force the Federal Government to allow the mails or the channels of interstate or foreign commerce to be used for the purpose of sending obscene material into the permissive State. Even though the State's law is not conclusive with regard to the attitudes of the local community on obscenity, nothing we have said is designed to imply that the Iowa statute should not have been introduced into evidence at petitioner's trial. On the contrary, the local statute on obscenity provides relevant *308 evidence of the mores of the community whose legislative body enacted the law. It is quite appropriate, therefore, for the jury to be told of the law and to give such weight to the expression of the State's policy on distribution as the jury feels it deserves. We hold only that the Iowa statute is not conclusive as to the issues of contemporary community standards for appeal to the prurient interest and patent offensiveness. Those are questions for the jury to decide, in its traditional role as factfinder. United v. Danley, cert. denied, V A. We also reject petitioner's arguments that the prospective jurors should have been asked about their understanding of Iowa's community standards and Iowa law, and that 1461 was unconstitutionally vague as applied to him. The particular inquiries requested by petitioner would not have elicited useful information about the jurors' qualifications to apply contemporary community standards in an objective A request for the jurors' description of their understanding of community standards would have been no more appropriate than a request for a description of the meaning of "reasonableness." Neither term lends itself to precise definition. This is not to preclude other more specific and less conclusory questions for voir dire. For example, it might be helpful to know how long a juror has been a member of the community, how heavily the juror has been involved in the community, and with what organizations having an interest in the regulation of obscenity the juror has been affiliated. The propriety of a particular question is a decision for the trial court to make in the first instance. In this case, however, we cannot say that the District Court abused its discretion in refusing to ask the specific |
Justice Blackmun | 1,977 | 11 | majority | Smith v. United States | https://www.courtlistener.com/opinion/109663/smith-v-united-states/ | Court abused its discretion in refusing to ask the specific questions tendered by petitioner. B. Neither do we find 1461 unconstitutionally vague as applied here. Our construction of the statute flows directly *309 from the decisions in Hamling, Miller, and Roth. As construed in Hamling, the type of conduct covered by the statute can be ascertained with sufficient ease to avoid due process pitfalls. Similarly, the possibility that different juries might reach different conclusions as to the same material does not render the statute unconstitutional. Roth v. United n. 30; n. 9. We find no vagueness defect in the statute attributable to the fact that federal policy with regard to distribution of obscene material through the mail was different from Iowa policy with regard to the intrastate sale of like VI Since the Iowa law on obscenity was introduced into evidence, and the jurors were told that they could consider it as evidence of the community standard, petitioner received everything to which he was entitled. To go further, and to make the state law conclusive on the issues of appeal to prurient interest and patent offensiveness, in a federal prosecution under 1461, would be inconsistent with our prior cases. We hold that those issues are fact questions for the jury, to be judged in light of the jurors' understanding of contemporary community standards. We also hold that 1461 is not unconstitutionally vague as so applied, and that petitioner's proposed voir dire questions were not improperly refused. The judgment of the Court of Appeals is affirmed. It is so ordered. MR. |
Justice Kagan | 2,016 | 3 | majority | Kirtsaeng v. John Wiley & Sons, Inc. | https://www.courtlistener.com/opinion/3213978/kirtsaeng-v-john-wiley-sons-inc/ | Section 505 of the Copyright Act provides that a district court “may award a reasonable attorney’s fee to the prevailing party.” 17 U.S. C. The question pre- sented here is whether a court, in exercising that author- ity, should give substantial weight to the objective reason- ableness of the losing party’s positio The answer, as both decisions below held, is yes—the court should. But the court must also give due consideration to all other circum- stances relevant to granting fees; and it retains discretion, in light of those factors, to make an award even when the losing party advanced a reasonable claim or defense. Because we are not certain that the lower courts here understood the full scope of that discretion, we return the case for further consideration of the prevailing party’s fee applicatio I Petitioner Supap Kirtsaeng, a citizen of Thailand, came to the United States 20 years ago to study math at Cornell University. He quickly figured out that respondent John Wiley & Sons, an academic publishing company, sold 2 KIRTSAENG v. JOHN WILEY & SONS, INC. Opinion of the Court virtually identical English-language textbooks in the two countries—but for far less in Thailand than in the United States. Seeing a ripe opportunity for arbitrage, Kirtsaeng asked family and friends to buy the foreign editions in Thai bookstores and ship them to him in New York. He then resold the textbooks to American students, reim- bursed his Thai suppliers, and pocketed a tidy profit. Wiley sued Kirtsaeng for copyright infringement, claim- ing that his activities violated its exclusive right to dis- tribute the textbooks. See 17 U.S. C. 602(a)(1). Kirtsaeng invoked the “first-sale doctrine” as a defense. That doctrine typically enables the lawful owner of a book (or other work) to resell or otherwise dispose of it as he wishes. See But Wiley contended that the first- sale doctrine did not apply when a book (like those Kirtsaeng sold) was manufactured abroad. At the time, courts were in conflict on that issue. Some thought, as Kirtsaeng did, that the first-sale doctrine permitted the resale of foreign-made books; others main- tained, along with Wiley, that it did not. And this Court, in its first pass at the issue, divided 4 to 4. See Costco Wholesale ( per curiam). In this case, the District Court sided with Wiley; so too did a divided panel of the Court of Appeals for the Second Circuit. See To settle the continuing conflict, this Court granted Kirtsaeng’s petition for certiorari and reversed the Second Circuit in a 6-to-3 decision, thus establishing that the first-sale |
Justice Kagan | 2,016 | 3 | majority | Kirtsaeng v. John Wiley & Sons, Inc. | https://www.courtlistener.com/opinion/3213978/kirtsaeng-v-john-wiley-sons-inc/ | Circuit in a 6-to-3 decision, thus establishing that the first-sale doctrine allows the resale of foreign-made books, just as it does domestic ones. See Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. (2013) (slip op., ). Returning victorious to the District Court, Kirtsaeng invoked to seek more than $2 million in attorney’s fees from Wiley. The court denied his motio Relying on Second Circuit precedent, the court gave “substantial weight” to the “objective reasonableness” of Wiley’s in- Cite as: 579 U. S. (2016) 3 Opinion of the Court fringement claim. See No. 08–cv–07834 (SDNY, Dec. 20, 2013), App. to Pet. for Cert. 18a, In explanation of that approach, the court stated that “the imposition of a fee award against a copyright holder with an objectively reasonable”—although unsuccessful—“lit- igation position will generally not promote the purposes of the Copyright Act.” at 11a (emphasis deleted)). Here, Wiley’s position was reasonable: After all, several Courts of Appeals and three Justices of the Supreme Court had agreed with it. See App. to Pet. for Cert. 12a. And according to the District Court, no other circumstance “overr[o]de” that objective reasonableness, so as to warrant fee-shifting. at 22a. The Court of Appeals affirmed, concluding in a brief sum- mary order that “the district court properly placed ‘sub- stantial weight’ on the reasonableness of [Wiley’s] posi- tion” and committed no abuse of discretion in deciding that other “factors did not outweigh” the reasonableness finding. We granted certiorari, 577 U. S. (2016), to resolve disagreement in the lower courts about how to address an application for attorney’s fees in a copyright case.1 II Section 505 states that a district court “may award a reasonable attorney’s fee to the prevailing party.” It thus authorizes fee-shifting, but without specifying standards that courts should adopt, or guideposts they should use, in —————— 1 Compare, e.g., Matthew & 240 F.3d 116, (giving substantial weight to objective reasonableness), with, e.g., 397–398 (CA4 2003) (endorsing a totality-of-the-circumstances approach, without according special significance to any factor), and with, e.g., Hogan Systems, (presuming that a prevailing party receives fees). 4 KIRTSAENG v. JOHN WILEY & SONS, INC. Opinion of the Court determining when such awards are appropriate. In this Court recognized the broad leeway gives to district courts—but also established several principles and criteria to guide their decisions. See (asking “what standards should inform” the exercise of the trial court’s authority). The statutory language, we stated, “clearly connotes discretion,” and eschews any “precise rule or formula” for awarding fees. Still, we established a pair of restrictions. First, a district court may not “award[ ] |
Justice Kagan | 2,016 | 3 | majority | Kirtsaeng v. John Wiley & Sons, Inc. | https://www.courtlistener.com/opinion/3213978/kirtsaeng-v-john-wiley-sons-inc/ | of restrictions. First, a district court may not “award[ ] attorney’s fees as a matter of course”; rather, a court must make a more particularized, case-by- case assessment. Second, a court may not treat prevailing plaintiffs and prevailing defendants any differently; defendants should be “encouraged to litigate [meritorious copyright defenses] to the same extent that plaintiffs are encouraged to litigate meritorious claims of infringement.” In addition, we noted with approval “several nonexclusive factors” to inform a court’s fee-shifting decisions: “frivolousness, motivation, objective unreasonableness[,] and the need in particular circum- stances to advance considerations of compensation and deterrence.” And we left open the possi- bility of providing further guidance in the future, in re- sponse to (and grounded on) lower courts’ evolving experi- ence. See 34–5; (noting that was not intended to be the end of the matter). The parties here, though sharing some common ground, now dispute what else we should say to district courts. Both Kirtsaeng and Wiley agree—as they must—that grants courts wide latitude to award attorney’s fees based on the totality of circumstances in a case. See Brief for Petitioner 17; Brief for Respondent Yet both reject the position, taken by some Courts of Appeals, see 1, that spelled out the only appropriate limits Cite as: 579 U. S. (2016) 5 Opinion of the Court on judicial discretion—in other words, that each district court should otherwise proceed as it sees fit, assigning whatever weight to whatever factors it chooses. Rather, Kirtsaeng and Wiley both call, in almost identical lan- guage, for “[c]hanneling district court discretion towards the purposes of the Copyright Act.” Brief for Petitioner 16; see Brief for Respondent 21 (“[A]n appellate court [should] channel a district court’s discretion so that it further[s] the goals of the Copyright Act”). (And indeed, as discussed later, both describe those purposes identically. See infra, at 6.) But at that point, the two part ways. Wiley argues that giving substantial weight to the reasonableness of a losing party’s position will best serve the Act’s objectives. See Brief for Respondent 24–. By contrast, Kirtsaeng favors giving special consideration to whether a lawsuit resolved an important and close legal issue and thus “meaningfully clarifie[d]” copyright law. Brief for Peti- tioner 36; see 1–44. We join both parties in seeing a need for some additional guidance respecting the application of In addressing other open-ended fee-shifting statutes, this Court has emphasized that “in a system of laws discretion is rarely without limits.” Flight 758 (1989); see Halo Electronics, Inc. v. Pulse Electronics, Inc., ante, at 8. Without governing standards or princi- ples, such provisions |
Justice Kagan | 2,016 | 3 | majority | Kirtsaeng v. John Wiley & Sons, Inc. | https://www.courtlistener.com/opinion/3213978/kirtsaeng-v-john-wiley-sons-inc/ | at 8. Without governing standards or princi- ples, such provisions threaten to condone judicial “whim” or predilectio ; see also (“[A] motion to [a court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles” (quoting United States v. Burr, (No. 14,692d) (CC Va. 17) (Mar- shall, C. J.))). At the least, utterly freewheeling inquiries often deprive litigants of “the basic principle of justice that like cases should be decided alike,” 546 U.S., at 139—as when, for example, one judge thinks the parties’ “motivation[s]” determinative and another believes the 6 KIRTSAENG v. JOHN WILEY & SONS, INC. Opinion of the Court need for “compensation” trumps all else, 510 U.S., And so too, such unconstrained discre- tion prevents individuals from predicting how fee deci- sions will turn out, and thus from making properly in- formed judgments about whether to litigate. For those reasons, when applying fee-shifting laws with “no explicit limit or condition,” Halo, ante, at 8, we have nonetheless “found limits” in them—and we have done so, just as both parties urge, by looking to “the large objectives of the relevant Act,” (internal quotation marks omitted); see In accord with such precedents, we must consider if either Wiley’s or Kirtsaeng’s proposal well advances the Copyright Act’s goals. Those objectives are well settled. As explained, “copyright law ultimately serves the purpose of enriching the general public through access to creative works.” 510 U.S., ; see U. S. Const., Art. I, cl. 8 (“To promote the Progress of Science and useful Arts”). The statute achieves that end by striking a bal- ance between two subsidiary aims: encouraging and re- warding authors’ creations while also enabling others to build on that work. See 510 U.S., 26. Ac- cordingly, fee awards under should encourage the types of lawsuits that promote those purposes. (That is why, for example, insisted on treating prevailing plaintiffs and prevailing defendants alike—because the one could “further the policies of the Copyright Act every bit as much as” the 510 U.S.,) On that much, both parties agree. Brief for Petitioner 37; Brief for Respondent 29–30. The contested issue is whether giving substantial weight to the objective (un)reasonableness of a losing party’s litigating position—or, alternatively, to a lawsuit’s role in settling significant and uncertain legal issues—will predictably encourage such useful copyright litigatio The objective-reasonableness approach that Wiley fa- vors passes that test because it both encourages parties Cite as: 579 U. S. (2016) 7 Opinion of the Court with strong legal positions to stand on their rights and deters |
Justice Kagan | 2,016 | 3 | majority | Kirtsaeng v. John Wiley & Sons, Inc. | https://www.courtlistener.com/opinion/3213978/kirtsaeng-v-john-wiley-sons-inc/ | strong legal positions to stand on their rights and deters those with weak ones from proceeding with litiga- tio When a litigant—whether plaintiff or defendant—is clearly correct, the likelihood that he will recover fees from the opposing (i.e., unreasonable) party gives him an incen- tive to litigate the case all the way to the end. The holder of a copyright that has obviously been infringed has good reason to bring and maintain a suit even if the damages at stake are small; and likewise, a person defending against a patently meritless copyright claim has every incentive to keep fighting, no matter that attorney’s fees in a pro- tracted suit might be as or more costly than a settlement. Conversely, when a person (again, whether plaintiff or defendant) has an unreasonable litigating position, the likelihood that he will have to pay two sets of fees discour- ages legal actio The copyright holder with no reasonable infringement claim has good reason not to bring suit in the first instance (knowing he cannot force a settlement and will have to proceed to judgment); and the infringer with no reasonable defense has every reason to give in quickly, before each side’s litigation costs mount. All of those results promote the Copyright Act’s purposes, by enhanc- ing the probability that both creators and users (i.e., po- tential plaintiffs and defendants) will enjoy the substan- tive rights the statute provides. By contrast, Kirtsaeng’s proposal would not produce any sure benefits. We accept his premise that litigation of close cases can help ensure that “the boundaries of copy- right law [are] demarcated as clearly as possible,” thus advancing the public interest in creative work. Brief for Petitioner 19 (quoting 510 U.S., ). But we cannot agree that fee-shifting will necessarily, or even usually, encourage parties to litigate those cases to judg- ment. Fee awards are a double-edged sword: They in- crease the reward for a victory—but also enhance the penalty for a defeat. And the hallmark of hard cases is 8 KIRTSAENG v. JOHN WILEY & SONS, INC. Opinion of the Court that no party can be confident if he will win or lose. That means Kirtsaeng’s approach could just as easily discour- age as encourage parties to pursue the kinds of suits that “meaningfully clarif[y]” copyright law. Brief for Petitioner 36. It would (by definition) raise the stakes of such suits; but whether those higher stakes would provide an incen- tive—or instead a disincentive—to litigate hinges on a party’s attitude toward risk. Is the person risk-preferring or risk-averse—a high-roller or a penny-ante type? Only the former |
Justice Kagan | 2,016 | 3 | majority | Kirtsaeng v. John Wiley & Sons, Inc. | https://www.courtlistener.com/opinion/3213978/kirtsaeng-v-john-wiley-sons-inc/ | or risk-averse—a high-roller or a penny-ante type? Only the former would litigate more in Kirtsaeng’s world. See Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. Legal Studies 399, 428 (1973) (fees “make[ ] the expected value of litigation less for risk-averse litigants, which will encourage [them to] settle[ ]”). And Kirtsaeng offers no reason to think that serious gamblers predominate. See, e.g., Texas Industries, 636, 8 (1981) (“Economists disagree over whether business deci- sionmakers[ ] are ‘risk averse’ ”); CIGNA (“[M]ost individuals are risk averse”). So the value of his standard, unlike Wiley’s, is entirely speculative.2 What is more, Wiley’s approach is more administrable —————— 2 This case serves as a good illustratio Imagine you are Kirtsaeng at a key moment in his case—say, when deciding whether to petition this Court for certiorari. And suppose (as Kirtsaeng now wishes) that the prevailing party in a hard and important case—like this one—will probably get a fee award. Does that make you more likely to file, because you will recoup your own fees if you win? Or less likely to file, because you will foot Wiley’s bills if you lose? Here are some answers to choose from (recalling that you cannot confidently predict which way the Court will rule): (A) Six of one, half a dozen of the (B) De- pends if I’m feeling lucky that day. (C) Less likely—this is getting scary; who knows how much money Wiley will spend on Supreme Court lawyers? (D) More likely—the higher the stakes, the greater the rush. Only if lots of people answer (D) will Kirtsaeng’s standard work in the way advertised. Maybe. But then again, maybe not. Cite as: 579 U. S. (2016) 9 Opinion of the Court than Kirtsaeng’s. A district court that has ruled on the merits of a copyright case can easily assess whether the losing party advanced an unreasonable claim or defense. That is closely related to what the court has already done: In deciding any case, a judge cannot help but consider the strength and weakness of each side’s arguments. By contrast, a judge may not know at the conclusion of a suit whether a newly decided issue will have, as Kirtsaeng thinks critical, broad legal significance. The precedent- setting, law-clarifying value of a decision may become apparent only in retrospect—sometimes, not until many years later. And so too a decision’s practical impact (to the extent Kirtsaeng would have courts separately consider that factor). District courts are not accustomed to evaluat- ing in real time either the jurisprudential or the on-the- ground import of |
Justice Kagan | 2,016 | 3 | majority | Kirtsaeng v. John Wiley & Sons, Inc. | https://www.courtlistener.com/opinion/3213978/kirtsaeng-v-john-wiley-sons-inc/ | time either the jurisprudential or the on-the- ground import of their rulings. Exactly how they would do so is uncertain (Kirtsaeng points to no other context in which courts undertake such an analysis), but we fear that the inquiry would implicate our oft-stated concern that an application for attorney’s fees “should not result in a sec- ond major litigatio” ). And we suspect that even at the end of that post-lawsuit lawsuit, the results would typically reflect little more than edu- cated guesses. Contrary to Kirtsaeng’s view, placing substantial weight on objective reasonableness also treats plaintiffs and defendants even-handedly, as commands. No matter which side wins a case, the court must assess whether the other side’s position was (un)reasonable. And of course, both plaintiffs and defendants can (and some- times do) make unreasonable arguments. Kirtsaeng claims that the reasonableness inquiry systematically favors plaintiffs because a losing defendant “will virtually always be found to have done something culpable.” Brief for Petitioner 29 (emphasis in original). But that conflates 10 KIRTSAENG v. JOHN WILEY & SONS, INC. Opinion of the Court two different questions: whether a defendant in fact in- fringed a copyright and whether he made serious argu- ments in defense of his conduct. Courts every day see reasonable defenses that ultimately fail (just as they see reasonable claims that come to nothing); in this context, as in any other, they are capable of distinguishing between those defenses (or claims) and the objectively unreason- able variety. And if some court confuses the issue of liabil- ity with that of reasonableness, its fee award should be reversed for abuse of discretio3 All of that said, objective reasonableness can be only an important factor in assessing fee applications—not the controlling one. As we recognized in con- fers broad discretion on district courts and, in deciding whether to fee-shift, they must take into account a range of considerations beyond the reasonableness of litigating positions. See That means in any given case a court may award fees even though the losing party offered reasonable arguments (or, conversely, deny fees even though the losing party made unreasonable ones). —————— 3 Kirtsaeng also offers statistics meant to show that in practice, even if not in theory, the objective reasonableness inquiry unduly favors plaintiffs; but the Solicitor General as amicus curiae has cast signifi- cant doubt on that claim. According to Kirtsaeng, 86% of winning copyright holders, but only 45% of prevailing defendants, have received fee awards over the last 15 years in the Second Circuit (which, recall, gives substantial weight to objective reasonableness). See Reply Brief 17–18; |
Justice Kagan | 2,016 | 3 | majority | Kirtsaeng v. John Wiley & Sons, Inc. | https://www.courtlistener.com/opinion/3213978/kirtsaeng-v-john-wiley-sons-inc/ | gives substantial weight to objective reasonableness). See Reply Brief 17–18; at 2–3. But first, the Solicitor General represents that the overall numbers are actually 77% and 53%, respectively. See Tr. of Oral Arg. 41. And second, the Solicitor General points out that all these percentages include default judgments, which almost invariably give rise to fee awards—but usually of a very small amount—because the defendant has not shown up to oppose either the suit or the fee applicatio When those cases are taken out, the statistics look fairly similar: 60% for plaintiffs versus 53% for defendants. See 2. And of course, there may be good reasons why copyright plaintiffs and defendants do not make reasonable arguments in perfectly equal proportio Cite as: 579 U. S. (2016) 11 Opinion of the Court For example, a court may order fee-shifting because of a party’s litigation misconduct, whatever the reasonableness of his claims or defenses. See, e.g., Viva Video, Inc. v. Cabrera, Or a court may do so to deter repeated instances of copyright infringement or overaggressive assertions of copyright claims, again even if the losing position was reasonable in a particular case. See, e.g., Bridgeport Music, (awarding fees against a copyright holder who filed hundreds of suits on an over- broad legal theory, including in a subset of cases in which it was objectively reasonable). Although objective reason- ableness carries significant weight, courts must view all the circumstances of a case on their own terms, in light of the Copyright Act’s essential goals. And on that score, Kirtsaeng has raised serious ques- tions about how fee-shifting actually operates in the Sec- ond Circuit. To be sure, the Court of Appeals’ framing of the inquiry resembles our own: It calls for a district court to give “substantial weight” to the reasonableness of a losing party’s litigating positions while also considering other relevant circumstances. See 605 Fed. Appx., 9– 50; Matthew 240 F.3d, at But the Court of Appeals’ language at times suggests that a finding of reasonableness raises a presumption against granting fees, see ; at 2–3—and that goes too far in cabining how a district court must structure its analysis and what it may conclude from its review of relevant factors. Still more, district courts in the Second Circuit appear to have overly learned the Court of Appeals’ lesson, turning “substantial” into more nearly “dispositive” weight. As Kirtsaeng notes, hardly any decisions in that Circuit have granted fees when the losing party raised a reasonable argument (and none have denied fees when the losing party failed to do so). See Reply Brief 15. |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | Russell Bucklew concedes that the State of Missouri lawfully convicted him of murder and a variety of other crimes. He acknowledges that the U. S. Constitution permits a sentence of execution for his crimes. He accepts, too, that the State’s lethal injection protocol is constitu- tional in most applications. But because of his unusual medical condition, he contends the protocol is unconstitu- tional as applied to him. Mr. Bucklew raised this claim for the first time less than two weeks before his scheduled execution. He received a stay of execution and five years to pursue the argument, but in the end neither the district court nor the Eighth Circuit found it supported by the law or evidence. Now, Mr. Bucklew asks us to overturn those judgments. We can discern no lawful basis for doing so. I A In 1996, when Stephanie Ray announced that she wanted to end their relationship, Mr. Bucklew grew violent. He cut her jaw, punched her in the face, and threatened her 2 BUCKLEW v. PRECYTHE Opinion of the Court with a knife. Frightened to remain in the home they had shared, Ms. Ray sought refuge with her children in Mi- chael Sanders’ nearby residence. But then one night Mr. Bucklew invaded that home. Bearing a pistol in each hand, he shot Mr. Sanders in the chest; fired at Mr. Sand- ers’ 6-year-old son (thankfully, he missed); and pistol- whipped Ms. Ray, this time breaking her jaw. Then Mr. Bucklew handcuffed Ms. Ray, drove her to a secluded spot, and raped her at gunpoint. After a trooper spotted Mr. Bucklew, a shootout followed and he was finally arrested. While all this played out, Mr. Sanders bled to death. As a coda, Mr. Bucklew escaped from jail while awaiting trial and attacked Ms. Ray’s mother with a hammer before he could be recaptured. After a decade of litigation, Mr. Bucklew was seemingly out of legal options. A jury had convicted him of murder and other crimes and recommended a death sentence, which the court had imposed. His direct appeal had proved unsuccessful. (Mo. 1998), cert. denied, Separate rounds of state and federal post-conviction proceedings also had failed to yield relief. Bucklew v. State, 38 S.W. 3d 395 (Mo.), cert. denied, ; Bucklew v. Luebbers, (CA8), cert. denied, 549 U.S. 1079 B As it turned out, though, Mr. Bucklew’s case soon be- came caught up in a wave of litigation over lethal injection procedures. Like many States, Missouri has periodically sought to improve its administration of the death penalty. Early in the 20th century, the State replaced hanging |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | penalty. Early in the 20th century, the State replaced hanging with the gas chamber. Later in the century, it authorized the use of lethal injection as an alternative to lethal gas. By the time Mr. Bucklew’s post-conviction proceedings ended, Missouri’s protocol called for lethal injections to be carried Cite as: 587 U. S. (2019) 3 Opinion of the Court out using three drugs: sodium thiopental, pancuronium bromide, and potassium chloride. And by that time, too, various inmates were in the process of challenging the constitutionality of the State’s protocol and others like it around the country. See 457 F.3d 902 ; Note, A New Test for Evaluating Eighth Amendment Challenges to Lethal Injections, 120 Harv. L. Rev. 1301, 1304 (describing flood of lethal injec- tion lawsuits around that “severely constrained states’ ability to carry out executions”); Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L. Rev. 49, 102–116 Ultimately, this Court answered these legal challenges in Addressing Ken- tucky’s similar three-drug protocol, THE CHIEF JUSTICE, joined by JUSTICE ALITO and Justice Kennedy, concluded that a State’s refusal to alter its lethal injection protocol could violate the Eighth Amendment only if an inmate first identified a “feasible, readily implemented” alterna- tive procedure that would “significantly reduce a substan- tial risk of severe pain.” JUSTICE THOMAS, joined by Justice Scalia, thought the protocol passed mus- ter because it was not intended “to add elements of terror, pain, or disgrace to the death penalty.” JUSTICE BREYER reached the same result because he saw no evidence that the protocol created “a significant risk of unnecessary suffering.” And though Justice Stevens objected to the continued use of the death penalty, he agreed that petitioners’ evidence was insufficient. at 87. After this Court decided it denied review in a case seeking to challenge Missouri’s similar lethal injec- tion cert. denied, But that still was not the end of it. Next, Mr. Bucklew and other inmates unsuccessfully challenged Missouri’s protocol in state court, alleging that it had been adopted in 4 BUCKLEW v. PRECYTHE Opinion of the Court contravention of Missouri’s Administrative Procedure Act. Middleton v. Missouri Dept. of Corrections, 278 S.W.3d 193 (Mo.), cert. denied, They also unsuccessfully challenged the protocol in federal court, this time alleging it was pre-empted by various federal statutes. And Mr. Bucklew sought to intervene in yet another law- suit alleging that Missouri’s protocol violated the Eighth Amendment because unqualified personnel might botch its administration. That lawsuit failed too. cert. denied, 561 U.S. 1026 While all this played out, pressure from anti-death- penalty advocates induced |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | all this played out, pressure from anti-death- penalty advocates induced the company that manufac- tured sodium thiopental to stop supplying it for use in executions. As a result, the State was unable to proceed with executions until it could change its lethal injection protocol This it did in prescribing the use of a single drug, the sedative propofol. Soon after that, Mr. Bucklew and other inmates sued to invalidate this new protocol as well, alleging that it would produce excruciat- ing pain and violate the Eighth Amendment on its face. After the State revised the protocol in 2013 to use the sedative pentobarbital instead of propofol, the inmates amended their complaint to allege that pentobarbital would likewise violate the Constitution. C Things came to a head in With its new protocol in place and the necessary drugs now available, the State scheduled Mr. Bucklew’s execution for May 21. But 12 days before the execution Mr. Bucklew filed yet another lawsuit, the one now before us. In this case, he presented an as-applied Eighth Amendment challenge to the State’s new Whether or not it would cause excruciating pain for all prisoners, as his previous lawsuit alleged, Mr. Cite as: 587 U. S. (2019) 5 Opinion of the Court Bucklew now contended that the State’s protocol would cause him severe pain because of his particular medical condition. Mr. Bucklew suffers from a disease called cavernous hemangioma, which causes vascular tumors— clumps of blood vessels—to grow in his head, neck, and throat. His complaint alleged that this condition could prevent the pentobarbital from circulating properly in his body; that the use of a chemical dye to flush the intrave- nous line could cause his blood pressure to spike and his tumors to rupture; and that pentobarbital could interact adversely with his other medications. These latest protocol challenges yielded mixed results. The district court dismissed both the inmates’ facial chal- lenge and Mr. Bucklew’s as-applied challenge. But, at Mr. Bucklew’s request, this Court agreed to stay his execution until the Eighth Circuit could hear his appeal. Bucklew v. Lombardi, Ultimately, the Eighth Circuit affirmed the dismissal of the facial challenge. Zink v. Lombardi, (en banc) (per curiam), cert. denied, 576 U.S. Then, turning to the as- applied challenge and seeking to apply the test set forth by the plurality, the court held that Mr. Bucklew’s complaint failed as a matter of law to identify an alterna- tive procedure that would significantly reduce the risks he alleged would flow from the State’s lethal injection proto- col. Yet, despite this dispositive shortcoming, the court of appeals |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | col. Yet, despite this dispositive shortcoming, the court of appeals decided to give Mr. Bucklew another chance to plead his case. The court stressed that, on remand before the district court, Mr. Bucklew had to identify “at the earliest possible time” a feasible, readily implemented alternative procedure that would address those risks. (en banc). Shortly after the Eighth Circuit issued its judgment, this Court decided Glossip v. Gross, 576 U.S. rejecting a challenge to Oklahoma’s lethal injection proto- 6 BUCKLEW v. PRECYTHE Opinion of the Court col. There, the Court clarified that THE CHIEF JUSTICE’s plurality opinion in was controlling under Marks v. United States, In doing so, it reaf- firmed that an inmate cannot successfully challenge a method of execution under the Eighth Amendment unless he identifies “an alternative that is ‘feasible, readily im- plemented, and in fact significantly reduces a substantial risk of severe pain.’ ” 576 U. S., at – (slip op., – 13). JUSTICE THOMAS, joined by Justice Scalia, reiterated his view that the Eighth Amendment “prohibits only those methods of execution that are deliberately designed to inflict pain,” but he joined the Court’s opinion because it correctly explained why petitioners’ claim failed even under the controlling opinion in Glossip, 576 U. S., at (concurring opinion) (slip op., at 1) (internal quota- tion marks and alterations omitted). D Despite the Eighth Circuit’s express instructions, when Mr. Bucklew returned to the district court in he still refused to identify an alternative procedure that would significantly reduce his alleged risk of pain. Instead, he insisted that inmates should have to carry this burden only in facial, not as-applied, challenges. Finally, after the district court gave him “one last opportunity,” App. 30, Mr. Bucklew filed a fourth amended complaint in which he claimed that execution by “lethal gas” was a feasible and available alternative method that would significantly reduce his risk of pain. Mr. Bucklew later clarified that the lethal gas he had in mind was nitrogen, which neither Missouri nor any other State had ever used to carry out an execution. The district court allowed Mr. Bucklew “extensive dis- covery” on his new proposal. But even at the close of discovery in 2017, the district court still found the proposal lacking and granted Cite as: 587 U. S. (2019) 7 Opinion of the Court the State’s motion for summary judgment. By this point in the proceedings, Mr. Bucklew’s contentions about the pain he might suffer had evolved considerably. He no longer complained about circulation of the drug, the use of dye, or adverse drug interactions. Instead, his main |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | use of dye, or adverse drug interactions. Instead, his main claim now was that he would experience pain during the period after the pentobarbital started to take effect but before it rendered him fully unconscious. According to his expert, Dr. Joel Zivot, while in this semiconscious “twilight stage” Mr. Bucklew would be unable to prevent his tumors from obstructing his breathing, which would make him feel like he was suffocating. Dr. Zivot declined to say how long this twilight stage would last. When pressed, however, he referenced a study on euthanasia in horses. He claimed that the horses in the study had displayed some amount of brain activity, as measured with an electroencephalogram (or EEG), for up to four minutes after they were given a large dose of pentobarbital. Based on Dr. Zivot’s testi- mony, the district court found a triable issue as to whether there was a “substantial risk” that Mr. Bucklew would “experience choking and an inability to breathe for up to four minutes” if he were executed by lethal injection. App. 827. Even so, the court held, Mr. Bucklew’s claim failed because he had produced no evidence that his proposed alternative, execution by nitrogen hypoxia, would signifi- cantly reduce that risk. This time, a panel of the Eighth Circuit affirmed. The panel held that Mr. Bucklew had produced no evidence that the risk of pain he alleged “would be substantially reduced by use of nitrogen hypoxia instead of lethal injec- tion as the method of execution.” Judge Colloton dissented, arguing that the evidence raised a triable issue as to whether nitrogen gas would “render Bucklew insensate more quickly than pentobarbital.” at 1099. The full court denied rehearing en banc over a dissent by Judge Kelly, who maintained that, while pris- 8 BUCKLEW v. PRECYTHE Opinion of the Court oners pursuing facial challenges to a state execution pro- tocol must plead and prove an alternative method of exe- cution under and Glossip, prisoners like Mr. Bucklew who pursue as-applied challenges should not have to bear that burden. On the same day Mr. Bucklew was scheduled to be executed, this Court granted him a second stay of execu- tion. 583 U. S. We then agreed to hear his case to clarify the legal standards that govern an as- applied Eighth Amendment challenge to a State’s method of carrying out a death sentence. U. S. II We begin with Mr. Bucklew’s suggestion that the test for lethal injection protocol challenges announced in and Glossip should govern only facial challenges, not as- applied challenges like his. In evaluating this argument, we |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | as- applied challenges like his. In evaluating this argument, we first examine the original and historical understanding of the Eighth Amendment and our precedent in and Glossip. We then address whether, in light of those au- thorities, it would be appropriate to adopt a different constitutional test for as-applied claims. A The Constitution allows capital punishment. See Glos- sip, 576 U. S., at – (slip op., at 2–4); 553 U. S., at 47. In fact, death was “the standard penalty for all serious crimes” at the time of the founding. S. Banner, The Death Penalty: An American History 23 (2002) (Ban- ner). Nor did the later addition of the Eighth Amendment outlaw the practice. On the contrary—the Fifth Amend- ment, added to the Constitution at the same time as the Eighth, expressly contemplates that a defendant may be tried for a “capital” crime and “deprived of life” as a pen- alty, so long as proper procedures are followed. And the First Congress, which proposed both Amendments, made a Cite as: 587 U. S. (2019) 9 Opinion of the Court number of crimes punishable by death. See Act of Apr. 30, 1790, Of course, that doesn’t mean the Ameri- can people must continue to use the death penalty. The same Constitution that permits States to authorize capital punishment also allows them to outlaw it. But it does mean that the judiciary bears no license to end a debate reserved for the people and their representatives. While the Eighth Amendment doesn’t forbid capital punishment, it does speak to how States may carry out that punishment, prohibiting methods that are “cruel and unusual.” What does this term mean? At the time of the framing, English law still formally tolerated certain pun- ishments even though they had largely fallen into disuse— punishments in which “terror, pain, or disgrace [were] superadded” to the penalty of death. 4 W. Commentaries on the Laws of England 370 (1769). These included such “[d]isgusting” practices as dragging the prisoner to the place of execution, disemboweling, quarter- ing, public dissection, and burning alive, all of which observed “savor[ed] of torture or cruelty.” Methods of execution like these readily qualified as “cruel and unusual,” as a reader at the time of the Eighth Amendment’s adoption would have understood those words. They were undoubtedly “cruel,” a term often de- fined to mean “[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting,” 1 S. Johnson, A Dictionary of the English Language (4th ed. 1773), or “[d]isposed to give pain to others, in body or mind; willing or pleased |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | pain to others, in body or mind; willing or pleased to tor- ment, vex or afflict; inhuman; destitute of pity, compassion or kindness,” 1 N. Webster, An American Dictionary of the English Language (1828). And by the time of the found- ing, these methods had long fallen out of use and so had become “unusual.” 4 ; Banner 76; (THOMAS, J., concurring in judgment); see also Stinneford, The Original Meaning of 10 BUCKLEW v. PRECYTHE Opinion of the Court “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 1770–1771, 1814 (observing that Americans in the late 18th and early 19th centuries described as “unusual” governmental actions that had “fall[en] completely out of usage for a long period of time”). Contemporary evidence confirms that the people who ratified the Eighth Amendment would have understood it in just this way. Patrick Henry, for one, warned that unless the Constitution was amended to prohibit “cruel and unusual punishments,” Congress would be free to inflict “tortures” and “barbarous” punishments. 3 Debates on the Federal Constitution –448 (J. Elliot 2d ed. 1891). Many early commentators likewise described the Eighth Amendment as ruling out “the use of the rack or the stake, or any of those horrid modes of torture devised by human ingenuity for the gratification of fiendish pas- sion.” J. Bayard, A Brief Exposition of the Constitution of the United States 140 (1833); see B. Oliver, The Rights of an American Citizen 186 (1832) (the Eighth Amendment prohibits such “barbarous and cruel punishments” as “[b]reaking on the wheel, flaying alive, rending asunder with horses, maiming, mutilating and scourging to death”). Justice Story even remarked that he thought the prohibition of cruel and unusual punishments likely “un- necessary” because no “free government” would ever au- thorize “atrocious” methods of execution like these. 3 J. Story, Commentaries on the Constitution of the United States p. 750 (1833). Consistent with the Constitution’s original understand- ing, this Court in permitted an execution by firing squad while observing that the Eighth Amendment forbade the gruesome meth- ods of execution described by “and all others in the same line of unnecessary cruelty.” at 135–136. A few years later, the Court upheld a sentence of death by Cite as: 587 U. S. (2019) 11 Opinion of the Court electrocution while observing that, though electrocution was a new mode of punishment and therefore perhaps could be considered “unusual,” it was not “cruel” in the constitutional sense: “[T]he punishment of death is not cruel, within the meaning of that word as used in the Constitution. [Cruelty] implies something inhuman and barbarous, something |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | in the Constitution. [Cruelty] implies something inhuman and barbarous, something more than the mere extin- guishment of life.” In re Kemmler, (1890). It’s instructive, too, to contrast the modes of execution the Eighth Amendment was understood to forbid with those it was understood to permit. At the time of the Amendment’s adoption, the predominant method of execu- tion in this country was hanging. Glossip, 576 U. S., at (slip op., at 2). While hanging was considered more humane than some of the punishments of the Old World, it was no guarantee of a quick and painless death. “Many and perhaps most hangings were evidently painful for the condemned person because they caused death slowly,” and “[w]hether a hanging was painless or painful seems to have been largely a matter of chance.” Banner 48, 170. The force of the drop could break the neck and sever the spinal cord, making death almost instantaneous. But that was hardly assured given the techniques that prevailed at the time. More often it seems the prisoner would die from loss of blood flow to the brain, which could produce uncon- sciousness usually within seconds, or suffocation, which could take several minutes. at 46–47; J. Laurence, The History of Capital Punishment 44–46 (1960); Gard- ner, Executions and Indignities: An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 Ohio St. L. J. 96, 120 (1978). But while hanging could and often did result in significant pain, its use “was virtu- ally never questioned.” Banner 170. Presumably that was because, in contrast to punishments like burning and disemboweling, hanging wasn’t “intended to be painful” 12 BUCKLEW v. PRECYTHE Opinion of the Court and the risk of pain involved was considered “unfortunate but inevitable.” ; see also What does all this tell us about how the Eighth Amendment applies to methods of execution? For one thing, it tells us that the Eighth Amendment does not guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to many people, including most victims of capital crimes. Glossip, 576 U. S., at (slip op., at 4). Instead, what unites the punishments the Eighth Amendment was understood to forbid, and distin- guishes them from those it was understood to allow, is that the former were long disused (unusual) forms of punishment that intensified the sentence of death with a (cruel) “ ‘superadd[ition]’ ” of “ ‘terror, pain, or disgrace.’ ” 553 U. S., ; accord, (THOMAS, J., con- curring in judgment). This Court has yet to hold that a State’s method of execution qualifies as cruel and unusual, and perhaps |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | method of execution qualifies as cruel and unusual, and perhaps understandably so. Far from seeking to superadd terror, pain, or disgrace to their executions, the States have often sought more nearly the opposite, exactly as Justice Story predicted. Through much of the 19th century, States experimented with technological innovations aimed at making hanging less painful. See Banner 170–177. In the 1880s, following the recommendation of a commission tasked with finding “ ‘the most humane and practical method known to modern science of carrying into effect the sentence of death,’ ” the State of New York replaced hanging with electrocution. Glossip, 576 U. S., at (slip op., at 2). Several States followed suit in the “ ‘ “belief that electrocution is less painful and more humane than hang- ing.” ’ ” Other States adopted lethal gas after con- cluding it was “ ‘the most humane [method of execution] known to modern science.’ ” And beginning in the 1970s, the search for less painful modes of execution led many States to switch to lethal injection. at (slip Cite as: 587 U. S. (2019) 13 Opinion of the Court op., at 3); 553 U. S., 62; see also Banner 178– 181, 196–197, 297. Notably, all of these innovations oc- curred not through this Court’s intervention, but through the initiative of the people and their representatives. Still, accepting the possibility that a State might try to carry out an execution in an impermissibly cruel and unusual manner, how can a court determine when a State has crossed the line? THE CHIEF JUSTICE’s opinion in which a majority of the Court held to be controlling in Glossip, supplies critical guidance. It teaches that where (as here) the question in dispute is whether the State’s chosen method of execution cruelly superadds pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason. See Glossip, 576 U. S., at – (slip op., –13); 553 U. S., Glossip left no doubt that this standard governs “all Eighth Amendment method-of-execution claims.” 576 U. S., at (slip op., at 1). In reaching this conclusion, and Glossip recognized that the Eighth Amendment “does not demand the avoid- ance of all risk of pain in carrying out executions.” To the contrary, the Constitution affords a “measure of deference to a State’s choice of execution procedures” and does not authorize courts to serve as “boards of inquiry charged with determining ‘best practices’ for |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | as “boards of inquiry charged with determining ‘best practices’ for executions.” at 51–, and nn. 2–3. The Eighth Amendment does not come into play unless the risk of pain associated with the State’s method is “substantial when compared to a known and available alternative.” Glossip, 576 U. S., at (slip op., at 13); see 553 U. S., at 61. Nor do and Glossip suggest that tradi- tionally accepted methods of execution—such as hanging, the firing squad, electrocution, and lethal injection—are 14 BUCKLEW v. PRECYTHE Opinion of the Court necessarily rendered unconstitutional as soon as an argu- ably more humane method like lethal injection becomes available. There are, the Court recognized, many legiti- mate reasons why a State might choose, consistent with the Eighth Amendment, not to adopt a prisoner’s pre- ferred method of execution. See, e.g., Glossip, 576 U. S., at – (slip op., at 13–14) (a State can’t be faulted for failing to use lethal injection drugs that it’s unable to procure through good-faith efforts); (a State has a legitimate interest in selecting a method it regards as “preserving the dignity of the procedure”); at 66 (ALITO, J., concurring) (a State isn’t required to modify its protocol in ways that would require the in- volvement of “persons whose professional ethics rules or traditions impede their participation”). As we’ve seen, two Members of the Court whose votes were essential to the judgment in Glossip argued that establishing cruelty consistent with the Eighth Amend- ment’s original meaning demands slightly more than the majority opinion there (or the plurality opinion it followed) suggested. Instead of requiring an inmate to establish that a State has unreasonably refused to alter its method of execution to avoid a risk of unnecessary pain, JUSTICE THOMAS and Justice Scalia contended that an inmate must show that the State intended its method to inflict such pain. See Glossip, 576 U. S., at (THOMAS, J., concurring) (slip op., at 1); –107 (THOMAS, J., concurring in judgment). But revisiting that debate isn’t necessary here because, as we’ll see, the State was entitled to summary judgment in this case even under the more forgiving -Glossip test. See Part III, infra. B Before turning to the application of and Glossip, however, we must confront Mr. Bucklew’s argument that a different standard entirely should govern as-applied chal- Cite as: 587 U. S. (2019) Opinion of the Court lenges like his. He admits that and Glossip supply the controlling test in facial challenges to a State’s chosen method of execution. But he suggests that he should not have to prove an alternative method of |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | he should not have to prove an alternative method of execution in his as- applied challenge because “certain categories” of punish- ment are “manifestly cruel without reference to any alternative methods.” Brief for Petitioner 41–42 (internal quotation marks omitted). He points to “ ‘burning at the stake, crucifixion, [and] breaking on the wheel’ ” as exam- ples of “categorically” cruel methods. And, he says, we should use this case to add to the list of “categorically” cruel methods any method that, as applied to a particular inmate, will pose a “substantial and particular risk of grave suffering” due to the inmate’s “unique medical condition.” The first problem with this argument is that it’s fore- closed by precedent. Glossip expressly held that identify- ing an available alternative is “a requirement of all Eighth Amendment method-of-execution claims” alleging cruel pain. 576 U. S., at (slip op., at 1) (emphasis added). And just as binding as this holding is the reasoning under- lying it. Distinguishing between constitutionally permis- sible and impermissible degrees of pain, and Glossip explained, is a necessarily comparative exercise. To decide whether the State has cruelly “superadded” pain to the punishment of death isn’t something that can be accom- plished by examining the State’s proposed method in a vacuum, but only by “compar[ing]” that method with a viable alternative. Glossip, 576 U. S., at (slip op., at 13); see As Mr. Bucklew acknowl- edges when speaking of facial challenges, this comparison “provides the needed metric” to measure whether the State is lawfully carrying out an execution or inflicting “gratuitous” pain. Brief for Petitioner 42–43. Yet it is that very comparison and needed metric Mr. Bucklew would now have us discard. Nor does he offer some per- 16 BUCKLEW v. PRECYTHE Opinion of the Court suasive reason for overturning our precedent. To the contrary, Mr. Bucklew simply repeats the same argument the principal dissent offered and the Court expressly and thoughtfully rejected in Glossip. Just as Mr. Bucklew argues here, the dissent there argued that “certain meth- ods of execution” like “burning at the stake” should be declared “categorically off-limits.” And just as Mr. Buck- lew submits here, the dissent there argued that any other “intolerably painful” method of execution should be added to this list. 576 U. S., at – (SOTOMAYOR, J., dissent- ing) (slip op., at 23–24). Mr. Bucklew’s submission, thus, amounts to no more than a headlong attack on precedent. Mr. Bucklew’s argument fails for another independent reason: It is inconsistent with the original and historical understanding of the Eighth Amendment on which and Glossip rest. As we’ve |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | the Eighth Amendment on which and Glossip rest. As we’ve seen, when it comes to deter- mining whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment “superadds” pain well beyond what’s needed to effectuate a death sentence. And an- swering that question has always involved a comparison with available alternatives, not some abstract exercise in “categorical” classification. At common law, the ancient and barbaric methods of execution Mr. Bucklew cites were understood to be cruel precisely because—by comparison to other available methods—they went so far beyond what was needed to carry out a death sentence that they could only be explained as reflecting the infliction of pain for pain’s sake. Meanwhile, hanging carried with it an acknowledged and substantial risk of pain but was not considered cruel because that risk was thought—by com- parison to other known methods—to involve no more pain than was reasonably necessary to impose a lawful death sentence. See at 9–12. What does the principal dissent have to say about all this? It acknowledges that Glossip’s comparative re- Cite as: 587 U. S. (2019) 17 Opinion of the Court quirement helps prevent facial method-of-execution claims from becoming a “backdoor means to abolish” the death penalty. Post, at 8 (opinion of BREYER, J.). But, the dis- sent assures us, there’s no reason to worry that as-applied method-of-execution challenges might be used that way. This assurance misses the point. As we’ve explained, the alternative-method requirement is compelled by our un- derstanding of the Constitution, not by mere policy concerns. With that, the dissent is left only to rehash the same argument that Mr. Bucklew offers. The dissent insists that some forms of execution are just categorically cruel. Post, at 10–11. At first and like others who have made this argument, the dissent offers little more than intuition to support its conclusion. Ultimately, though, even it bows to the necessity of something firmer. If a “comparator is needed” to assess whether an execution is cruel, the dis- sent tells us, we should compare the pain likely to follow from the use of a lethal injection in this case with the pain-free use of lethal injections in mine-run cases. Post, at 10. But that’s just another way of saying executions must always be carried out painlessly because they can be carried out painlessly most of the time, a standard the Constitution has never required and this Court has re- jected time and time To determine whether the State is cruelly superadding pain, our prece- dents and history require asking whether |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | superadding pain, our prece- dents and history require asking whether the State had some other feasible and readily available method to carry out its lawful sentence that would have significantly re- duced a substantial risk of pain. That Mr. Bucklew and the dissent fail to respect the force of our precedents—or to grapple with the under- standing of the Constitution on which our precedents rest—is more than enough reason to reject their view that as-applied and facial challenges should be treated differ- ently. But it turns out their position on this score suffers 18 BUCKLEW v. PRECYTHE Opinion of the Court from further problems too—problems that neither Mr. Bucklew nor the dissent even attempts to address. Take this one. A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications. So classifying a lawsuit as facial or as- applied affects the extent to which the invalidity of the challenged law must be demonstrated and the correspond- ing “breadth of the remedy,” but it does not speak at all to the substantive rule of law necessary to establish a consti- tutional violation. Citizens Surely it would be strange for the same words of the Constitution to bear entirely different meanings depending only on how broad a remedy the plaintiff chooses to seek. See (“ ‘[T]he substan- tive rule of law is the same for both [facial and as-applied] challenges’ ”); Brooklyn Legal Servs. (the facial/as-applied distinction affects “the extent to which the invalidity of a statute need be demonstrated,” not “the substantive rule of law to be used”). And surely, too, it must count for some- thing that we have found not a single court decision in over 200 years suggesting that the Eighth Amendment’s meaning shifts in this way. To the contrary, our precedent suggests just the opposite. In the related context of an Eighth Amendment challenge to conditions of confine- ment, we have seen “no basis whatever” for applying a different legal standard to “deprivations inflicted upon all prisoners” and those “inflicted upon particular prisoners.” Here’s yet another problem with Mr. Bucklew’s argu- ment: It invites pleading games. The line between facial and as-applied challenges can sometimes prove “amor- phous,” and “not so well defined,” Citizens United, 558 U. S., at Consider an example. Suppose an inmate Cite as: 587 U. S. (2019) 19 Opinion of the Court claims that the State’s lethal injection protocol violates the Eighth Amendment when used to execute anyone with a very common but not quite universal health condition. Should such a claim be |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | not quite universal health condition. Should such a claim be regarded as facial or as-applied? In another context, we sidestepped a debate over how to categorize a comparable claim—one that neither sought “to strike [the challenged law] in all its applications” nor was “limited to plaintiff ’s particular case”—by concluding that “[t]he label is not what matters.” Doe v. Reed, 561 U.S. 186, 194 To hold now, for the first time, that choosing a label changes the meaning of the Constitution would only guarantee a good deal of litigation over labels, with lawyers on each side seeking to classify cases to maximize their tactical advantage. Unless increasing the delay and cost involved in carrying out executions is the point of the exercise, it’s hard to see the benefit in placing so much weight on what can be an abstruse exercise. Finally, the burden Mr. Bucklew must shoulder under the -Glossip test can be overstated. An inmate seek- ing to identify an alternative method of execution is not limited to choosing among those presently authorized by a particular State’s law. Missouri itself seemed to acknowledge as much at oral argument. Tr. of Oral Arg. 65. So, for example, a prisoner may point to a well- established protocol in another State as a potentially viable option. Of course, in a case like that a court would have to inquire into the possibility that one State pos- sessed a legitimate reason for declining to adopt the proto- col of another. See at 13–14. And existing state law might be relevant to determining the proper proce- dural vehicle for the inmate’s claim. See v. McDonough, (if the relief sought in a 42 U.S. C. action would “foreclose the State from implementing the [inmate’s] sentence under present law,” then “recharacterizing a complaint as an action for habeas corpus might be proper”). But the 20 BUCKLEW v. PRECYTHE Opinion of the Court Eighth Amendment is the supreme law of the land, and the comparative assessment it requires can’t be controlled by the State’s choice of which methods to authorize in its statutes. In light of this, we see little likelihood that an inmate facing a serious risk of pain will be unable to iden- tify an available alternative—assuming, of course, that the inmate is more interested in avoiding unnecessary pain than in delaying his execution. III Having (re)confirmed that anyone bringing a method of execution claim alleging the infliction of unconstitution- ally cruel pain must meet the -Glossip test, we can now turn to the question whether Mr. Bucklew is able to sat- isfy that test. |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | whether Mr. Bucklew is able to sat- isfy that test. Has he identified a feasible and readily im- plemented alternative method of execution the State refused to adopt without a legitimate reason, even though it would significantly reduce a substantial risk of severe pain? Because the case comes to us after the entry of summary judgment, this appeal turns on whether Mr. Bucklew has shown a genuine issue of material fact war- ranting a trial. A We begin with the question of a proposed alternative method. Through much of this case and despite many opportunities, Mr. Bucklew refused to identify any alter- native method of execution, choosing instead to stand on his argument that and Glossip’s legal standard doesn’t govern as-applied challenges like his (even after the Eighth Circuit rejected that argument). Only when the district court warned that his continued refusal to abide this Court’s precedents would result in immediate dismissal did Mr. Bucklew finally point to nitrogen hy- poxia. The district court then afforded Mr. Bucklew “exten- sive discovery” to explore the viability of that alternative. Cite as: 587 U. S. (2019) 21 Opinion of the Court 883 F. 3d, at But even after all that, we conclude Mr. Bucklew has failed for two independent reasons to present a triable question on the viability of nitrogen hypoxia as an alternative to the State’s lethal injection First, an inmate must show that his proposed alterna- tive method is not just theoretically “ ‘feasible’ ” but also “ ‘readily implemented.’ ” Glossip, 576 U. S., at – (slip op., –13). This means the inmate’s proposal must be sufficiently detailed to permit a finding that the State could carry it out “relatively easily and reasonably quickly.” (CA8 2017); Mr. Bucklew’s bare- bones proposal falls well short of that standard. He has presented no evidence on essential questions like how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it should be intro- duced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks. Instead of presenting the State with a read- ily implemented alternative method, Mr. Bucklew (and the principal dissent) point to reports from correctional au- thorities in other States indicating that additional study is needed to develop a protocol for execution by nitrogen hypoxia. See App. 697 (Oklahoma grand jury report rec- ommending that the State “retain experts” and conduct “further |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | rec- ommending that the State “retain experts” and conduct “further research” to “determine how to carry out the sentence of death by this method”); (report of Louisiana Dept. of Public Safety & Corrections stating that “[r]esearch is ongoing” to develop a nitrogen hy- poxia protocol). That is a proposal for more research, not the readily implemented alternative that and Glossip require. 22 BUCKLEW v. PRECYTHE Opinion of the Court Second, and relatedly, the State had a “legitimate” reason for declining to switch from its current method of execution as a matter of law. 553 U. S., Rather than point to a proven alternative method, Mr. Bucklew sought the adoption of an entirely new method— one that had “never been used to carry out an execution” and had “no track record of successful use.” McGehee, 854 F. 3d, at But choosing not to be the first to experi- ment with a new method of execution is a legitimate rea- son to reject it. In we observed that “no other State ha[d] adopted” the one-drug protocol the inmates sought and they had “proffered no study showing” their one-drug protocol would be as effective and humane as the State’s existing three-drug Under those circumstances, we held as a matter of law that Kentucky’s refusal to adopt the inmates’ proffered protocol could not “constitute a violation of the Eighth Amend- ment.” The Eighth Amendment prohibits States from dredging up archaic cruel punishments or perhaps inventing new ones, but it does not compel a State to adopt “untried and untested” (and thus unusual in the constitutional sense) methods of execution.1 —————— 1 While this case has been pending, a few States have authorized nitrogen hypoxia as a method of execution. See Ala. Acts no. –353 (allowing condemned inmates to elect execution by nitrogen hypoxia); 2017 Miss. Laws ch. 406, p. 905 (authorizing execution by nitrogen hypoxia only if lethal injection is held unconstitutional or is otherwise unavailable); Okla. Sess. Laws ch. 75, p. 244 (same). In March officials in Oklahoma announced that, due to the unavail- ability of lethal injection drugs, the State would use nitrogen gas for its executions going forward. See Williams, Oklahoma Proposes To Use Nitrogen Gas for Executions by Asphyxiation, N. Y. Times, Mar. p. A22. But Oklahoma has so far been unable to find a manufac- turer willing to sell it a gas delivery device for use in executions. See Clay, State Not Ready for Executions, The Oklahoman, Jan. 27, 2019, p. A1. To date, no one in this case has pointed us to an execution in this country using |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | has pointed us to an execution in this country using nitrogen gas. Cite as: 587 U. S. (2019) 23 Opinion of the Court B Even if a prisoner can carry his burden of showing a readily available alternative, he must still show that it would significantly reduce a substantial risk of severe pain. Glossip, 576 U. S., at (slip op., at 13); 553 U. S., A minor reduction in risk is insufficient; the difference must be clear and considerable. Over the course of this litigation, Mr. Bucklew’s explanation why nitrogen hypoxia meets this standard has evolved signifi- cantly. But neither of the two theories he has advanced in this Court turns out to be supported by record evidence. First, Mr. Bucklew points to several risks that he alleges could result from use of the State’s lethal injection protocol that would not be present if the State used nitrogen gas. For example, he says the execution team might try to insert an IV into one of his peripheral veins, which could cause the vein to rupture; or the team might instead use an allegedly painful “cut-down” procedure to access his femo- ral vein. He also says that he might be forced to lie flat on his back during the execution, which could impair his breathing even before the pentobarbital is administered. And he says the stress from all this could cause his tumors to bleed, further impairing his breathing. These risks, we may assume, would not exist if Mr. Bucklew were exe- cuted by his preferred method of nitrogen hypoxia. The problem with all of these contentions is that they rest on speculation unsupported, if not affirmatively con- tradicted, by the evidence in this case. Nor does the prin- cipal dissent contend otherwise. So, for example, uncon- troverted record evidence indicates that the execution team will have discretion to adjust the gurney to whatever position is in Mr. Bucklew’s best medical interests. 883 F. 3d, at 1092, n. 3; App. 531. Moreover, the State agreed in the district court that it would not try to place an IV in Mr. Bucklew’s compromised peripheral veins. ; see Brief for Appellant in No. 17–30 (CA8), p. 7. And, 24 BUCKLEW v. PRECYTHE Opinion of the Court assuming without granting that using a cut-down would raise issues under the Eighth Amendment—but see Noon- (holding oth- erwise)—the State’s expert, Dr. Michael Antognini, testi- fied without contradiction that it should be possible to place an IV in Mr. Bucklew’s femoral vein without using a cut-down procedure, App. 350. Mr. Bucklew responds by pointing to the warden’s |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | App. 350. Mr. Bucklew responds by pointing to the warden’s testimony that he once saw medi- cal staff perform a cut-down as part of an execution; but there’s no evidence that what the warden saw was an attempt to access a femoral vein, as opposed to some other vein. Moreover, to the extent the record is unclear on any of these issues, Mr. Bucklew had ample opportunity to con- duct discovery and develop a factual record concerning exactly what procedures the State planned to use. He failed to do so—presumably because the thrust of his constitutional claim was that any attempt to execute him via lethal injection would be unconstitutional, regardless of the specific procedures the State might use. As the court of appeals explained: “Having taken the position that any lethal injection procedure would violate the Eighth Amendment,” Mr. Bucklew “made no effort to determine what changes, if any, the [State] would make in applying its lethal injection protocol” to him, and he “never urged the district court to establish a suitable fact-finding procedure to define the as-applied lethal injection protocol [the State] intends to use.” – 1096.2 —————— 2 While the district court allowed discovery on many other matters, Mr. Bucklew protests that it did not permit him to learn the identities of the lethal injection execution team members, to depose them, or to inquire into their qualifications, training, and experience. Like the Eighth Circuit, we see no abuse of discretion in the district court’s discovery rulings. As the district court explained, Mr. Bucklew argues that there is no way he may be constitutionally executed by lethal Cite as: 587 U. S. (2019) 25 Opinion of the Court Second, Mr. Bucklew contends that the lethal injection itself will expose him to a substantial risk of severe pain that could be eliminated by adopting his preferred method. He claims that once the sedative pentobarbital is injected he will “lose the ability to manage” the tumors in his airway and, as a result, will experience a “sense of suffoca- tion” for some period of time before the State’s sedative renders him fully unconscious. Brief for Petitioner 12–13. “It is during this in-between twilight stage,” according to his expert, Dr. Zivot, “that Mr. Bucklew is likely to experi- ence prolonged feelings of suffocation and excruciating pain.” App. 234. Mr. Bucklew admits that similar feelings of suffocation could occur with nitrogen, the only differ- ence being the potential duration of the so-called “twilight stage.” He contends that with nitrogen the stage would last at most 20 to 30 seconds, while with pentobarbital |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | last at most 20 to 30 seconds, while with pentobarbital it could last up to several minutes. But here again the record contains insufficient evidence to permit Mr. Bucklew to avoid summary judgment. For starters, in the courts below Mr. Bucklew maintained he would have trouble managing his airway only if he were forced to lie supine, which (as we’ve explained) the evi- dence shows he won’t be. (The dissenters don’t address this point.) But even indulging his new claim that he will have this difficulty regardless of position, he still has failed to present colorable evidence that nitrogen would significantly reduce his risk of pain. We can assume for argument’s sake that Mr. Bucklew is correct that with nitrogen the twilight stage would last 20 to 30 seconds. The critical question, then, is how long that period might last with pentobarbital. The State’s expert, Dr. Antognini, testified that pentobarbital, too, would render Mr. Buck- —————— injection, even with modifications to the State’s lethal injection proto- col. And in a case like that, discovery into such granular matters as who administers the protocol simply is not relevant. 26 BUCKLEW v. PRECYTHE Opinion of the Court lew fully unconscious and incapable of experiencing pain within 20 to 30 seconds. at 299–301, 432–433. Dr. Zivot disagreed; but when he was asked how long he thought the twilight stage would last with pentobarbital, his testimony was evasive. Eventually, he said his “num- ber would be longer than” 20 to 30 seconds, but he de- clined to say how much longer. Instead, he referenced a study on euthanasia in horses. He said the study found that when horses were given a large dose of pentobarbital (along with other drugs), they exhibited “isoelectric EEG”—a complete absence of detectable brain activity—after to 240 seconds. at 194–196. The district court assumed Dr. Zivot meant that “pain might be felt until measurable brain activity ceases” and that, extrapolating from the horse study, it might take up to four minutes for pentobarbital to “induc[e] a state in which [Mr. Bucklew] could no longer sense that he is choking or unable to breathe.” The district court acknowl- edged, however, that this might be “a generous interpreta- tion of Dr. Zivot’s testimony.” and n. 5. In fact, there’s nothing in the record to suggest that Mr. Bucklew will be capable of experiencing pain for signifi- cantly more than 20 to 30 seconds after being injected with pentobarbital. For one thing, Mr. Bucklew’s lawyer now admits that Dr. Zivot “crossed up the numbers” from the horse study. Tr. of Oral Arg. 7–8, |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | numbers” from the horse study. Tr. of Oral Arg. 7–8, 11–12. The study actually reported that the horses displayed isoelectric EEG between 2 and seconds after infusion of pentobar- bital was completed, with an average time of less than 24 seconds. App. 267. So if anything, the horse study ap- pears to bolster Dr. Antognini’s time estimate. For another thing, everyone now also seems to acknowledge that isoelectric EEG is the wrong measure. Dr. Zivot never claimed the horses were capable of experiencing pain until they reached isoelectric EEG. And Mr. Bucklew’s lawyer now concedes that doctors perform major surgery on hu- Cite as: 587 U. S. (2019) 27 Opinion of the Court man patients with measurable EEG readings, which strongly suggests that Mr. Bucklew will be insensible to pain before reaching isoelectric EEG. Tr. of Oral Arg. 9. Finally, the record evidence even allows the possibility that nitrogen could increase the risk of pain. Because Dr. Zivot declined to testify about the likely effects of nitrogen gas, Mr. Bucklew must rely on Dr. Antognini’s testimony. And while Dr. Antognini did say he thought nitrogen’s “onset of action” could be “relatively fast,” App. 458, he added that the effects of nitrogen could vary depending on exactly how it would be administered—information Mr. Bucklew hadn’t provided. Indeed, he stated that “depend- ing on how it’s used, you might get more suffering from nitrogen gas than you would have” from the State’s cur- rent at 460–461. Of course, the principal dissent maintains that Dr. Zivot’s testimony supports an inference that pentobarbital might cause Mr. Bucklew to suffer for a prolonged period. But its argument rests on a number of mistakes about the record. For example, the dissent points to Dr. Zivot’s remark that, with pentobarbital, “ ‘the period of time between receiving the injection and death could range over a few minutes to many minutes.’ ” Post, at 4, 6 (quoting App. 222). From this, the dissent concludes that Mr. Bucklew may suffer for “up to several minutes.” Post, at 1, 6, 9. But everyone agrees that the relevant question isn’t how long it will take for Mr. Bucklew to die, but how long he will be capable of feeling pain. Seeking to address the problem, the dissent next points to another part of Dr. Zivot’s testimony and says it means Mr. Bucklew could experience pain during the entire time between injection and death. Post, at 6, 13 (quoting App. 222). But the dissent clips the relevant quotation. As the full quotation makes clear, Dr. Zivot claimed that Mr. Bucklew might be |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | makes clear, Dr. Zivot claimed that Mr. Bucklew might be unable to “maintain the integrity of his airway” until he died—but he carefully avoided claiming that Mr. Bucklew 28 BUCKLEW v. PRECYTHE Opinion of the Court would be capable of feeling pain until he died.3 To avoid this problem, the dissent quotes Dr. Zivot’s assertions that pentobarbital might not produce “ ‘rapid unconsciousness’ ” and that Mr. Bucklew’s suffering with pentobarbital could be “ ‘prolonged.’ ” Post, at 4–6, 13 (quoting App. 233–234). But Dr. Zivot’s statements here, too, fail to specify how long Mr. Bucklew is likely to be able to feel pain. The hard fact is that, when Dr. Zivot was finally compelled to offer a view on this question, his only response was to refer to the horse study. –196. The dissent’s effort to suggest that Dr. Zivot “did not rely exclusively or even heavily on that study,” post, at 7, is belied by (among other things) Mr. Bucklew’s own brief in this Court, which asserted that the twilight stage during which he might feel pain could last “between and 240 seconds,” based entirely on a citation of Dr. Zivot’s incorrect testimony about the horse study. Brief for Petitioner 13. In sum, even if execution by nitrogen hypoxia were a feasible and readily implemented alternative to the State’s chosen method, Mr. Bucklew has still failed to present any evidence suggesting that it would significantly reduce his risk of pain. For that reason as well, the State was enti- tled to summary judgment on Mr. Bucklew’s Eighth Amendment claim.4 —————— 3 Here’s the full quotation, with the portion quoted by the dissent underlined: “As a result of his inability to maintain the integrity of his airway for the period of time beginning with the injection of the Pento- barbital solution and ending with Mr. Bucklew’s death several minutes to as long as many minutes later, Mr. Bucklew would be highly likely to experience feelings of ‘air hunger’ and the excruci- ating pain of prolonged suffocation resulting from the complete obstruction of his airway by the large vascular tumor.” App. 222. 4 The State contends that Mr. Bucklew’s claim should fail for yet an- other reason: because, in the State’s view, the evidence does not show that he is very likely to suffer “ ‘severe pain’ ” cognizable under the Cite as: 587 U. S. (2019) 29 Opinion of the Court IV “Both the State and the victims of crime have an im- portant interest in the timely enforcement of a sentence.” Those interests have been frus- trated in |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | of a sentence.” Those interests have been frus- trated in this case. Mr. Bucklew committed his crimes more than two decades ago. He exhausted his appeal and separate state and federal habeas challenges more than a decade ago. Yet since then he has managed to secure delay through lawsuit after lawsuit. He filed his current challenge just days before his scheduled execution. That suit has now carried on for five years and yielded two appeals to the Eighth Circuit, two 11th-hour stays of execution, and plenary consideration in this Court. And despite all this, his suit in the end amounts to little more than an attack on settled precedent, lacking enough evi- dence even to survive summary judgment—and on not just one but many essential legal elements set forth in our case law and required by the Constitution’s original meaning. The people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them deserve better. Even the principal dissent acknowledges that “the long delays that now typically occur between the time an of- fender is sentenced to death and his execution” are “exces- sive.” Post, at 16. The answer is not, as the dissent incon- gruously suggests, to reward those who interpose delay with a decree ending capital punishment by judicial fiat. Post, at 18. Under our Constitution, the question of capi- tal punishment belongs to the people and their represent- atives, not the courts, to resolve. The proper role of courts is to ensure that method-of-execution challenges to law- —————— Eighth Amendment. Glossip v. Gross, 576 U.S. (slip op., at 13) ; emphasis added). We have no need, however, to address that argument because (as explained above) Mr. Bucklew fails even to show that a feasible and readily available alternative could significantly reduce the pain he alleges. 30 BUCKLEW v. PRECYTHE Opinion of the Court fully issued sentences are resolved fairly and expeditiously. Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay. Last-minute stays should be the extreme exception, not the norm, and “the last-minute nature of an application” that “could have been brought” earlier, or “an applicant’s attempt at manipulation,” “may be grounds for denial of a stay.” (internal quotation marks omitted). So, for example, we have vacated a stay entered by a lower court as an abuse of discretion where the in- mate waited to bring an available claim until just 10 days before his scheduled execution for a murder he had com- mitted 24 years earlier. See Dunn v. Ray, 586 U.S. (2019).5 If litigation is allowed |
Justice Gorsuch | 2,019 | 7 | majority | Bucklew v. Precythe | https://www.courtlistener.com/opinion/4605633/bucklew-v-precythe/ | Dunn v. Ray, 586 U.S. (2019).5 If litigation is allowed to proceed, federal courts “can and should” protect settled state judgments from “undue interference” by invoking their “equitable powers” to dismiss or curtail suits that are pursued in a “dilatory” —————— 5 Seeking to relitigate Dunn v. Ray, the principal dissent asserts that that case involved no undue delay because the inmate “brought his claim only five days after he was notified” that the State would not allow his spiritual adviser to be present with him in the execution chamber itself, although it would allow the adviser to be present on the other side of a glass partition. Post, at 17. But a state statute listed “[t]he spiritual adviser of the condemned” as one of numerous individ- uals who would be allowed to “be present at an execution,” many of whom—such as “newspaper reporters,” “relatives or friends of the condemned person,” and “the victim’s immediate family members”— obviously would not be allowed into the chamber itself. Ala. Code §– 18–83 The inmate thus had long been on notice that there was a question whether his adviser would be allowed into the chamber or required to remain on the other side of the glass. Yet although he had been on death row since 1999, and the State had set a date for his execution on November 6, he waited until January 23, 2019—just days before the execution—to ask for clarification. He then brought a claim 10 days before the execution and sought an indefinite stay. This delay implicated the “strong equitable presumption” that no stay should be granted “where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” v. McDonough, Cite as: 587 U. S. (2019) 31 Opinion of the Court fashion or based on “speculative” theories. at – 585. * The judgment of the court of appeals is Affirmed. Cite as: 587 U. S. (2019) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES No. 17–81 RUSSELL BUCKLEW, PETITIONER v. ANNE L. PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT OF CORRECTIONS, ET AL. |
Justice Brennan | 1,983 | 13 | dissenting | Michigan v. Long | https://www.courtlistener.com/opinion/111020/michigan-v-long/ | The Court today holds that "the protective search of the passenger compartment" of the automobile involved in this case "was reasonable under the principles articulated in Terry and other decisions of this Court." Ante, at 1035. I disagree. does not support the Court's conclusion and the reliance on "other decisions" is patently misplaced. Plainly, the Court is simply continuing the process of distorting Terry beyond recognition and forcing it into service as an unlikely weapon against the Fourth Amendment's fundamental requirement that searches and seizures be based on probable cause. See United I, therefore, dissent.[1] *1055 On three occasions this Term I have discussed the limited scope of the exception to the probable-cause requirement created by Terry and its progeny. See ; ; United I will not repeat those discussions here and note only that "Terry, and the cases that followed it, permit only brief investigative stops and extremely limited searches based on reasonable suspicion." However, the Court's opinion compels a detailed review of Terry itself. In Terry, the Court confronted the "quite narrow question" of "whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an" Because the Court was dealing "with an entire rubric of police conduct which historically [had] not been, and as a practical matter could not be, subjected to the warrant procedure," the Court tested the conduct at issue "by the Fourth Amendment's general proscription against unreasonable searches and seizures." In considering the "reasonableness" of the conduct, the Court balanced " `the need to search [or seize] against the invasion which the search [or seizure] entails.' " quoting It deserves emphasis that in discussing the "invasion" at issue, the Court stated that "[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security" -25 Ultimately, the Court concluded that "there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable *1056 cause to the individual for a crime." The Court expressed its holding as follows: "We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior |
Justice Brennan | 1,983 | 13 | dissenting | Michigan v. Long | https://www.courtlistener.com/opinion/111020/michigan-v-long/ | presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." It is clear that Terry authorized only limited searches of the person for weapons. In light of what Terry said, relevant portions of which the Court neglects to quote, the Court's suggestion that "Terry need not be read as restricting the preventive search to the person of the detained suspect," ante, at 1047 can only be described as disingenuous. Nothing in Terry authorized police officers to search a suspect's car based on reasonable suspicion. The Court confirmed this this very Term in United where it described the search authorized by Terry as a "limited search for weapons, or `frisk'" The search at issue in this case is a far cry from a "frisk" and certainly was not "limited."[2] *1057 The Court's reliance on and New as support for its new "area search" rule within the context of a Terry stop is misplaced. In Chimel, the Court addressed the scope of a search incident to a lawful and held invalid the search at issue there because it "went far beyond the petitioner's person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him." Chimel stressed the need to limit the scope of searches incident to and overruled two prior decisions of this Court validating overly broad searches. In the Court considered the scope of a search incident to the lawful custodial of an occupant of an In this "particular and problematic context," the Court held that "when a policeman has made a lawful custodial of the occupant of an automobile, he may, as a contemporaneous incident of that search the passenger compartment of that "[3] The critical distinction between this case and Terry on the one hand, and Chimel and on the other, is that the latter two cases arose within the context of lawful custodial s supported by probable cause.[4] The Court in Terry expressly recognized the difference between a search incident to and the "limited search for weapons," involved in that case. The Court stated: *1058 "[A search incident to ], although justified in |
Justice Brennan | 1,983 | 13 | dissenting | Michigan v. Long | https://www.courtlistener.com/opinion/111020/michigan-v-long/ | stated: *1058 "[A search incident to ], although justified in part by the acknowledged necessity to protect the ing officer from assault with a concealed weapon, is also justified on other grounds, and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a `full' search, even though it remains a serious intrusion. ". An is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person." In United the Court relied on the differences between searches incident to lawful custodial s and Terry "stop-and-frisk" searches to reject an argument that the limitations established in Terry should be applied to a search incident to The Court noted that "Terry clearly recognized the distinction between the two types of searches, and that a different rule governed one than governed the other," and described Terry as involving "stricter standards," than those governing searches incident to The Court went on to state: *1059 "A custodial of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the requires no additional justification. It is the fact of the lawful which establishes the authority to search, and we hold that in the case of a lawful custodial a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that Amendment." See also ("The search incident to is reasonable under the Fourth Amendment because the privacy interest protected by that constitutional guarantee is legitimately abated by the fact of " ); As these cases recognize, there is a vital difference between searches incident to lawful custodial s and Terry protective searches. The Court deliberately ignores |
Justice Brennan | 1,983 | 13 | dissenting | Michigan v. Long | https://www.courtlistener.com/opinion/111020/michigan-v-long/ | custodial s and Terry protective searches. The Court deliberately ignores that difference in relying on principles developed within the context of intrusions supported by probable cause to to construct an "area search" rule within the context of a Terry stop. The Court denies that an "area search" is fundamentally inconsistent with Terry, see ante, at 1052, n. 16, stating: "We have recognized that Terry searches are limited insofar as they may not be conducted in the absence of an articulable suspicion that the intrusion is justified, see e. g., and that they are protective in nature and limited to weapons, see However, neither of these concerns is violated by our decision. To engage in an area search, which is limited to seeking weapons, the officer must have an articulable suspicion that the suspect is potentially dangerous." *1060 This patently is no answer: respondent's argument relates to the scope of the search, not to the standard that justifies it. The Court flouts Terry's holding that Terry searches must be carefully limited in scope. See Indeed, the page in cited by the Court states: "Even assuming arguendo that there were adequate grounds to search Sibron for weapons, the nature and scope of the search conducted by Patrolman Martin were so clearly unrelated to that justification as to render the heroin inadmissible. The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration for arms, Patrolman Martin thrust his hand into Sibron's pocket and took from him envelopes of heroin. His testimony shows that he was looking for narcotics, and he found them. The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception the protection of the officer by disarming a potentially dangerous man." at[5] As this passage makes clear, the scope of a search is determined not only by reference to its purpose, but also by reference to its intrusiveness. Yet the Court today holds that a search of a car (and the containers within it) that is not even occupied by the suspect is only as intrusive as, or perhaps less intrusive than, thrusting a hand into a pocket after an *1061 initial patdown has suggested the presence of concealed objects that might be used |
Justice Brennan | 1,983 | 13 | dissenting | Michigan v. Long | https://www.courtlistener.com/opinion/111020/michigan-v-long/ | suggested the presence of concealed objects that might be used as weapons. The Court suggests no limit on the "area search" it now authorizes. The Court states that a "search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on `specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." Ante, at 1049 Presumably a weapon "may be placed or hidden" anywhere in a car. A weapon also might be hidden in a container in the car. In this case, the Court upholds the officer's search of a leather pouch because it "could have contained a weapon." Ante, at 1050-1051 In addition, the Court's requirement that an officer have a reasonable suspicion that a suspect is armed and dangerous does little to check the initiation of an area search. In this case, the officers saw a hunting knife in the car, see ante, at 1036, 1050, but the Court does not base its holding that the subsequent search was permissible on the ground that possession of the knife may have been illegal under state law. See ante, at 1052-1053, n. 16. An individual can lawfully possess many things that can be used as weapons. A hammer, or a baseball bat, can be used as a very effective weapon. Finally, the Court relies on the following facts to conclude that the officers had a reasonable suspicion that respondent was presently dangerous: the hour was late; the area was rural; respondent had been driving at an excessive speed; he had been involved in an accident; he was not immediately responsive to the officers' questions; and he appeared to be under the influence of some intoxicant. Ante, at 1050. Based on these facts, one might reasonably conclude that respondent was drunk. A drunken driver is indeed dangerous while driving, but not while stopped on the roadside by *1062 the police. Even when an intoxicated person lawfully has in his car an object that could be used as a weapon, it requires imagination to conclude that he is presently dangerous. Even assuming that the facts in this case justified the officers' initial "frisk" of respondent, see ante, at 1035-1036, 1050-1051, and n. 15, they hardly provide adequate justification for a search of a suspect's car and the containers within it. This represents an intrusion not just different in |
Justice Brennan | 1,983 | 13 | dissenting | Michigan v. Long | https://www.courtlistener.com/opinion/111020/michigan-v-long/ | within it. This represents an intrusion not just different in degree, but in kind, from the intrusion sanctioned by Terry. In short, the implications of the Court's decision are frightening. The Court also rejects the Michigan Supreme Court's view that it "was not reasonable for the officers to fear that [respondent] could injure them, because he was effectively under their control during the investigative stop and could not get access to any weapons that might have been located in the " Ante, at 1051. In this regard, the Court states: "[W]e stress that a Terry investigation, such as the one that occurred here, involves a police investigation `at close range,'. when the officer remains particularly vulnerable in part because a full custodial has not been effected, and the officer must make a `quick decision as to how to protect himself and others from possible danger.' In such circumstances, we have not required that officers adopt alternative means to ensure their safety in order to avoid the intrusion involved in a Terry encounter." Ante, at 1052 (footnote omitted; emphasis in original). Putting aside the fact that the search at issue here involved a far more serious intrusion than that "involved in a Terry encounter," see ib and as such might suggest the need for resort to "alternative means," the Court's reasoning is perverse. The Court's argument in essence is that the absence of probable cause to compels the conclusion that a broad search, traditionally associated in scope with a search incident to must be permitted based on reasonable suspicion. But United stated: "It is *1063 scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop." -235. In light of Robinson's observation, today's holding leaves in grave doubt the question of whether the Court's assessment of the relative dangers posed by given confrontations is based on any principled standard. Moreover, the Court's reliance on a "balancing" of the relevant interests to justify its decision, see ante, at 1051, is certainly inappropriate. In the Court stated that "[t]he narrow intrusions involved in [Terry and its progeny] were judged by a balancing test rather than by the general principle that Fourth Amendment seizures must be supported by the `long-prevailing standards' of probable cause, only because these intrusions fell far short of the kind of intrusion associated with an" 2. The intrusion involved in |
Justice Brennan | 1,983 | 13 | dissenting | Michigan v. Long | https://www.courtlistener.com/opinion/111020/michigan-v-long/ | of intrusion associated with an" 2. The intrusion involved in this case is precisely "the kind of intrusion associated with an" There is no justification, therefore, for "balancing" the relevant interests. In sum, today's decision reflects once again the threat to Fourth Amendment values posed by "balancing." See United -719 As Justice Frankfurter stated in United : "To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an `unreasonable search' is forbidden that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and the experience which it embodies and the safeguards afforded by it against the evils to which it was a response." *1064 Hornbook law has been that "the police may not conduct a search unless they first convince a neutral magistrate that there is probable cause to do so." New While under some circumstances the police may search a car without a warrant, see, e. g., "the exception to the warrant requirement established in Carroll applies only to searches of vehicles that are supported by probable cause." United "[T]he Court in Carroll emphasized the importance of the requirement that officers have probable cause to believe that the vehicle contains contraband." See also ("Automobile or no automobile, there must be probable cause for the search" ). Today the Court discards these basic principles and employs the very narrow exception established by Terry "to swallow the general rule that Fourth Amendment [searches of cars] are `reasonable' only if based on probable cause."[6], 3. See also United Today's decision disregards the Court's warning in Almeida-Sanchez: "The needs of law enforcement stand in constant tension with the Constitution's protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards." 413 U.S., 3. Of course, police should not be exposed to unnecessary danger in the performance of their duties. But a search of a car and the containers within it based on nothing more than reasonable suspicion, even under the circumstances present *10 here, cannot be sustained without doing violence to the requirements of the Fourth Amendment. There is no reason in this case why the officers could not have pursued less intrusive, but equally effective, means of insuring their safety.[7] Cf. United ; n. The Court takes a long step |
Justice Brennan | 1,988 | 13 | dissenting | United States v. Owens | https://www.courtlistener.com/opinion/111992/united-states-v-owens/ | In an interview during his month-long hospitalization, in what was apparently a singular moment of lucid recollection, John Foster selected respondent James Owens' photograph from an array of possible suspects and informed FBI Agent Thomas Mansfield that it was respondent who had attacked him with a metal pipe on the morning of April 12, 1982. Had Foster subsequently died from his injuries, there is no doubt that both the Sixth Amendment and the Federal Rules of Evidence would have barred Mansfield from repeating Foster's out-of-court identification at trial. Fortunately, Foster survived the beating; his memory, however, did not, and by the time of respondent's trial he could no longer recall his assailant or explain why he had previously identified respondent as such. This profound memory loss, therefore, rendered Foster no less a conduit for stale and inscrutable evidence than Mansfield would have been, yet the Court nevertheless concludes that because defense counsel was afforded an unrestricted opportunity to cross-examine him, *565 Foster's unadorned reiteration of his earlier statement did not deprive respondent of his constitutional right to confront the witness against him. In my view, the Court today reduces the right of confrontation to a purely procedural protection, and a markedly hollow one at that. Because I believe the Sixth Amendment guarantees criminal defendants the right to engage in cross-examination sufficient to "affor[d] the trier of fact a satisfactory basis for evaluating the truth of [a] prior statement," and because respondent clearly was not afforded such an opportunity here, I dissent. I On April 12, 1982, Foster was brutally assaulted while on duty as a correctional counselor at the federal prison in Lompoc, California. His attacker beat him repeatedly about the head and upper body with a metal pipe, inflicting numerous and permanently disabling injuries, one of which was a profound loss of short-term memory. Foster spent nearly a month in the hospital recuperating from his injuries, much of that time in a state of semiconsciousness. Although numerous people visited him, including his wife who visited daily, Foster remembered none except Agent Mansfield. While he had no recollection of Mansfield's first visit on April 19, he testified that his memory of the interview Mansfield conducted on May 5 was "vivid." App. 28. In particular, he recalled telling Mansfield: "[A]fter I was hit I looked down and saw the blood on the floor, and jammed my finger into Owens' chest, and said, `That's enough of that,' and hit my alarm button." Foster testified that at the time he made these statements, he was certain that his memory was accurate. In addition, |
Justice Brennan | 1,988 | 13 | dissenting | United States v. Owens | https://www.courtlistener.com/opinion/111992/united-states-v-owens/ | he was certain that his memory was accurate. In addition, he recalled choosing respondent's photograph from those Mansfield showed him. There is no dispute, however, that by the time of trial Foster could no longer remember who had assaulted him or even whether he had seen his attacker. *566 Nor could he recall whether any of the prison officials or other persons who visited him in the hospital had ever suggested that respondent had beaten him. A medical expert who testified on behalf of the prosecution explained that Foster's inability to remember most of the details of the assault was attributable to a gradual and selective memory loss caused by his head injuries. II The principal witness against respondent was not the John Foster who took the stand in December 1983 that witness could recall virtually nothing of the events of April 12, 1982, and candidly admitted that he had no idea whether respondent had assaulted him. Instead, respondent's sole accuser was the John Foster who, on May 5, 1982, identified respondent as his attacker. This John Foster, however, did not testify at respondent's trial: the profound memory loss he suffered during the approximately 18 months following his identification prevented him from affirming, explaining, or elaborating upon his out-of-court statement just as surely and completely as his assertion of a testimonial privilege, or his death, would have. Thus, while the Court asserts that defense counsel had "realistic weapons" with which to impugn Foster's prior statement, ante, at 560, it does not and cannot claim that cross-examination could have elicited any information that would have enabled a jury to evaluate the trustworthiness or reliability of the identification. Indeed, although the Court suggests that defense counsel was able to explore Foster's "lack of care and attentiveness," his "bad memory," and the possibility that hospital visitors suggested respondent's name to him, ante, at 559, 560, Foster's memory loss precluded any such inquiries: he simply could not recall whether he had actually seen his assailant or even whether he had had an opportunity to see him, nor could he remember any of his visitors, let alone whether any of them had suggested that respondent had attacked him. Moreover, by the *567 time of trial, Foster was unable to shed any light on the accuracy of his May 1982 recollection of the assault; the most he could state was that on the day of the interview he felt certain that his statements were true. As the court below found, "[c]learly, two of the three dangers surrounding Foster's out-of-court identifications misperception and failure of |
Justice Brennan | 1,988 | 13 | dissenting | United States v. Owens | https://www.courtlistener.com/opinion/111992/united-states-v-owens/ | dangers surrounding Foster's out-of-court identifications misperception and failure of memory could not be mitigated in any way by the only cross-examination of Foster that was available to [respondent]." In short, neither Foster nor the prosecution could demonstrate the basis for Foster's prior identification. Nevertheless, the Court concludes that the Sixth Amendment presents no obstacle to the introduction of such an unsubstantiated out-of-court statement, at least not where the declarant testifies under oath at trial and is subjected to unrestricted cross-examination. According to the Court, the Confrontation Clause is simply a procedural trial right that "guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Ante, at 559 (citations omitted; internal quotation marks omitted; emphasis in original). Although the Court suggests that the result it reaches today follows naturally from our earlier cases, we have never before held that the Confrontation Clause protects nothing more than a defendant's right to question live witnesses, no matter how futile that questioning might be. On the contrary, as the Court's own recitation of our prior case law reveals, we have repeatedly affirmed that the right of confrontation ensures "an opportunity for effective cross-examination." (emphasis added); see also (emphasis added); 399 U. S., *568 at 159 (introduction of out-of-court statement does not violate Confrontation Clause "as long as the defendant is assured of full and effective cross-examination at the time of trial") (emphasis added). While we have rejected the notion that effectiveness should be measured in terms of a defendant's ultimate success, we have never, until today, equated effectiveness with the mere opportunity to pose questions. Rather, consistent with the Confrontation Clause's mission of "advanc[ing] a practical concern for the accuracy of the truth-determining process in criminal trials," we have suggested that the touchstone of effectiveness is whether the cross-examination affords " `the trier of fact a satisfactory basis for evaluating the truth of the prior statement.' " (quoting at ). See also (introduction of prior testimony where the declarant was unavailable at trial did not violate Confrontation Clause where previous cross-examination of declarant "afforded the trier of fact a satisfactory basis for evaluating the truth of the prior statement" (citation omitted; internal quotation marks 408 U.S. 4, *569 (same). Where no opportunity for such cross-examination exists, we have recognized that the Sixth Amendment permits the introduction of out-of-court statements only when they bear sufficient independent "indicia of reliability." at In dispensing with these substantive constitutional requirements today, the Court relies almost exclusively on our decision in a case that |
Justice Brennan | 1,988 | 13 | dissenting | United States v. Owens | https://www.courtlistener.com/opinion/111992/united-states-v-owens/ | relies almost exclusively on our decision in a case that did not involve the introduction of prior statements. concerned an expert witness' inability to remember which of three possible scientific theories he had used in formulating his opinion. Although contended that the witness' forgetfulness made it impossible to impeach the scientific validity of his conclusions, we noted that "an expert who cannot recall the basis for his opinion invites the jury to find that his opinion is as reliable as his memory." While the witness' endorsement of a given scientific theory might have maximized the effectiveness of cross-examination, the Confrontation Clause guarantees only that level of effectiveness necessary to afford the factfinder a satisfactory basis for assessing the validity of the evidence offered. Thus, because the expert's inability to remember the basis for his opinion was self-impeaching, the constitutional guarantee had clearly been satisfied. therefore, worked no change in our Confrontation Clause jurisprudence, yet the Court purports to discern in it a principle under which all live testimony as to a witness' past belief is constitutionally admissible, provided the defendant *570 is afforded an opportunity to question the witness. From this the Court derives the corollary that prior statements as to past belief are equally admissible, again given the requisite opportunity for questioning the declarant at trial. Accordingly, the Court asserts, the Confrontation Clause draws no line "between a forgetful witness' live testimony that he once believed this defendant to be the perpetrator of the crime, and the introduction of the witness' earlier statement to that effect." Ante, at 560. The obvious shortcoming in this reasoning, of course, is that announced no such blanket rule: while the expert's memory lapse in that case was self-impeaching, it does not follow and we have therefore never held that all forgetfulness may be so characterized. Certainly in the present case, Foster's inability in December 1983 to remember the events of April 1982 in no way impugned or otherwise cast doubt upon the accuracy or trustworthiness of his memory in May 1982, particularly in light of the uncontradicted medical testimony explaining that his forgetfulness was the result of the head injuries he sustained. Under our prior cases, then, the constitutional admissibility of Foster's prior statement, and the testimony of the Court's hypothetical witness who cannot recall the basis for his past belief, should depend on whether the memory loss so seriously impedes cross-examination that the factfinder lacks an adequate basis upon which to assess the truth of the proffered evidence. Whatever may be said of the Court's hypothetical, it is clear in |
Justice Brennan | 1,988 | 13 | dissenting | United States v. Owens | https://www.courtlistener.com/opinion/111992/united-states-v-owens/ | be said of the Court's hypothetical, it is clear in the case before us that Foster's near total loss of memory precluded any meaningful examination or assessment of his out-of-court statement and thus should have barred the admission of that statement. To the extent the Court's ruling is motivated by the fear that a contrary result will open the door to countless Confrontation Clause challenges to the admission of out-of-court statements, that fear is groundless. To begin with, cases such as the present one will be rare indeed. More typically, witnesses asserting a memory loss will either not suffer (or *571 claim) a total inability to recollect, or will do so under circumstances that suggest bias or ulterior motive; in either case, given the threshold of "effectiveness" established by our prior decisions, the witness' partial memory or self-interest in claiming a complete memory loss will afford the factfinder an adequate basis upon which to evaluate the reliability and trustworthiness of the out-of-court statement. Even in those relatively few cases where no such basis can be elicited, the prior statement is still admissible if it bears independent "indicia of reliability." Finally, assessments of "effectiveness" for Confrontation Clause purposes are no different than those undertaken by courts in deciding common evidentiary questions, and thus should not prove unduly burdensome.[2] In any event, to the extent such assessments prove inconvenient or troublesome, those burdens flow from our commitment to a Constitution that places a greater value on individual liberty than on efficient judicial administration. III I agree with the Court that the Confrontation Clause does not guarantee defendants the right to confront only those witnesses whose testimony is not marred by forgetfulness, *572 confusion, or evasion, and that the right of confrontation " `is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination.' " Ante, at 558 (quoting ). But as we stressed just last Term, this right to cross-examination "is essentially a `functional' right designed to promote reliability in the truth-finding functions of a criminal trial." 482 U.S. 0, 7 In the present case, respondent Owens was afforded no opportunity to probe and expose the infirmities of Foster's May 5, 1982, recollections, for here cross-examination, the "greatest legal engine ever invented for the discovery of truth," stood as helpless as current medical technology before Foster's profound memory loss. In concluding that respondent's Sixth Amendment rights were satisfied by Foster's mere presence in the courtroom, the Court reduces the right of confrontation to a hollow formalism. Because I believe the Confrontation Clause |
Justice Stevens | 1,977 | 16 | dissenting | Brennan v. Armstrong | https://www.courtlistener.com/opinion/109734/brennan-v-armstrong/ | My concern over the Court's misuse of summary dispositions prompts this dissent. The Court's explanation of its action gives the erroneous impression that the Court of Appeals' decision related to the question of what kind of remedy is appropriate in this case. Quite the contrary, there was no remedy issue before the Court of Appeals, and that court considered no such issue. The District Court concluded in a 60-page opinion that "school authorities engaged in practices with the intent and for the purpose of creating and maintaining a segregated school system, and that such practices had the effect of causing current conditions of segregation in the Milwaukee public schools." Recognizing that "remedial efforts may well be for naught if the determination of liability is ultimately reversed on appeal," Judge Reynolds certified this issue of law for interlocutory appeal. To further ensure appealability, he entered a general order enjoining future racial discrimination and directing the defendants to formulate desegregation plans. App. 140-141. This order did not call for any particular kind of desegregation plan. Thus, *674 when the case reached the Court of Appeals, the only issue before it was the existence of a violation.[1] After a careful review of the evidence, it concluded that the District Court's finding of intentional segregation was not clearly erroneous. This Court now vacates the Court of Appeals judgment and remands for reconsideration in light of two cases. One of those cases[2] is merely a routine application of which was correctly construed by the Court of Appeals.[3] The other case is relevant to the issue of liability, if at all, only because it supports the Court of Appeals.[4] Of course, in formulating a remedy, the District Court will need to consider cases such as Milliken v. Bradley, ante, p. 267, and Dayton Board of Education v. Brinkman, ante, p. 406, if there is any dispute about the proper scope of the remedy. But since no such issue has ever been decided by the Court of Appeals, there is nothing for it to reconsider in light of these cases. These cases certainly provide no justification for vacating the judgment affirming the District Court's conclusion that the petitioners have violated the Constitution. This Court's hasty action will unfortunately lead to unnecessary *675 work by already overburdened Circuit Judges, who have given this case far more study than this Court had time to give it. Nevertheless, it is quite clear that after respectful reconsideration the Court of Appeals remains free to re-enter its original judgment. In my opinion the petition for certiorari should be denied. However, since the |
Justice Stewart | 1,972 | 18 | majority | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | We granted certiorari in this case, as in No. 70-130, United States v. Scotland Neck City of[1]post, p. 484, to consider the circumstances under *453 which a federal court may enjoin state or local officials from carving out a new school district from an existing district that has not yet completed the process of dismantling a system of enforced racial segregation. We did not address ourselves to this rather narrow question in and its companion cases decided last Term,[2] but the problem has confronted other federal courts in one form or another on numerous occasions in recent years.[3] Here, as in Scotland Neck, the Court of Appeals reversed a district court decision enjoining the creation of a new school district. We conclude that the Court of Appeals erred in its interpretation of the legal principles applicable in cases such as these, and that the District Court's order was proper in the circumstances of this case. I The City of Emporia lies near the center of Greensville Virginia, a largely rural area located on the North Carolina border. Until 1967, Emporia was *454 a "town" under Virginia law, which meant that it was a part of the surrounding county for practically all purposes, including the purpose of providing public education for children residing in the county. In 1967, Emporia, apparently dissatisfied with the county's allocation of revenues from the newly enacted state sales tax, successfully sought designation as a "city of the second class."[4] As such, it became politically independent from the surrounding county, and undertook a separate obligation under state law to provide free public schooling to children residing within its borders.[5] To fulfill this responsibility, Emporia at first sought the county's agreement to continue operating the school system on virtually the same basis as before, with Emporia sharing in the administration as well as the financing of the schools.[6] When the county officials refused to enter into an arrangement of this kind, Emporia agreed to a contract whereby the county would continue to educate students residing in the city in exchange for Emporia's payment of a specified share of the total cost of the system. Under this agreement, signed in April 1968, Emporia had a formal voice in the administration of the schools only through its participation *455 in the selection of a superintendent. The city and county were designated as a single school "division" by the State of[7] and this arrangement was still in effect at the time of the District Court's order challenged in this case. This lawsuit began in 1965, when a complaint was filed on |
Justice Stewart | 1,972 | 18 | majority | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | lawsuit began in 1965, when a complaint was filed on behalf of Negro children seeking an end to state-enforced racial segregation in the Greensville school system. Prior to 1965, the elementary and high schools located in Emporia served all white children in the county, while Negro children throughout the county were assigned to a single high school or one of four elementary schools, all but one of which were located outside the Emporia town boundary. In January 1966, the District Court approved a so-called "freedom of choice" plan that had been adopted by the county in April of the previous year. No white students ever attended the Negro schools under this plan, and in the 1968-1969 school year only 98 of the county's 2,510 Negro students attended white schools. The school faculties remained completely segregated. Following our decision in holding that a freedom-of-choice plan was an unacceptable method of desegregation where it failed "to provide meaningful assurance of prompt and effective disestablishment of a dual system," the petitioners filed a motion for further relief. The District Court ordered the county to demonstrate its compliance with the holding in Green, or to submit a plan designed to bring the schools into compliance. After various delays, during which the freedom-of-choice system *456 remained in effect, the county submitted two alternative plans. The first would have preserved the existing system with slight modifications, and the second would have assigned students to schools on the basis of curricular choices or standardized test scores. The District Court promptly rejected the first of these proposals, and took the second under advisement. Meanwhile, the petitioners submitted their own proposal, under which all children enrolled in a particular grade level would be assigned to the same school, thus eliminating any possibility of racial bias in pupil assignments. Following an evidentiary hearing on June 23, 1969, the District Court rejected the county's alternative plan, finding that it would "substitute one segregated school system for another segregated school system." By an order dated June 25, the court ordered the county to implement the plan submitted by the petitioners, referred to by the parties as the "pairing" plan, as of the start of the 1969-1970 school year.[8] Two weeks after the District Court entered its decree, the Emporia City Council sent a letter to the county of Supervisors announcing the city's intention to operate a separate school system beginning in September. The letter stated that an "in-depth study and analysis of the directed school arrangement reflects a totally unacceptable situation to the Citizens and City Council of the City of Emporia." |
Justice Stewart | 1,972 | 18 | majority | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | the Citizens and City Council of the City of Emporia." It asked that the 1968 city-county agreement be terminated by mutual consent, and that title to school property located within Emporia be transferred to the city. The letter further *457 advised that children residing in the county would be permitted to enroll in the city schools on a tuition basis.[9] At no time during this period did the city officials meet with the county council or school board to discuss the implementation of the pairing decree, nor did they inform the District Court of their intentions with respect to the separate school system. The county school board refused either to terminate the existing agreement or to transfer school buildings to Emporia, citing its belief that Emporia's proposed action was "not in the best interest of the children in Greensville" The City Council and the City School nevertheless continued to take steps toward implementing the separate system throughout the month of July. Notices were circulated inviting parents to register their children in the city system, and a request was made to the State of to certify Emporia as a separate school division. This request was tabled by the State at its August meeting, "in light of matters pending in the federal court." According to figures later supplied to the District Court, there were 3,759 children enrolled in the unitary system contemplated by the desegregation decree, of whom 66% were Negro and 34% were white. Had Emporia established a separate school system, 1,123 of these students would have attended the city schools, of whom 48% were white. It is undisputed that the city proposed to operate its own schools on a unitary *458 basis, with all children enrolled in any particular grade attending the same school. On August 1, 1969, the petitioners filed a supplemental complaint naming the members of the Emporia City Council and the City School as additional parties defendant,[10] and seeking to enjoin them from withdrawing Emporia children from the county schools. At the conclusion of a hearing on August 8, the District Court found that the establishment of a separate school system by the city would constitute "an impermissible interference with and frustration of" its order of June 25, and preliminarily enjoined the respondents from taking "any action which would interfere in any manner whatsoever with the implementation of the Court's order heretofore entered." The schools opened in September under the pairing order, while Emporia continued to work out detailed plans and budget estimates for a separate school system in the hope that the District Court would allow |
Justice Stewart | 1,972 | 18 | majority | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | system in the hope that the District Court would allow its implementation during the following school year. At a further hearing in December, the respondents presented an expert witness to testify as to the educational advantages of the proposed city system, and asked that the preliminary injunction be dissolved. On March 2, 1970, the District Court entered a memorandum opinion and order denying the respondents' motion and making the injunction permanent. The *459 Court of Appeals for the Fourth Circuit reversed, but stayed its mandate pending action by this Court on a petition for certiorari, which we granted. Emporia takes the position that since it is a separate political jurisdiction entitled under state law to establish a school system independent of the county, its action may be enjoined only upon a finding either that the state law under which it acted is invalid, that the boundaries of the city are drawn so as to exclude Negroes, or that the disparity of the racial balance of the city and county schools of itself violates the Constitution. As we read its opinion, the District Court made no such findings; nor do we. The constitutional violation that formed the predicate for the District Court's action was the enforcement until 1969 of racial segregation in a public school system of which Emporia had always been a part. That finding has not been challenged, nor has Emporia questioned the propriety of the "pairing" order of June 25, 1969, which was designed to remedy the condition that offended the Constitution. Both before and after it became a city, Emporia educated its children in the county schools. Only when it became clear15 years after our decision in that segregation in the county system was finally to be abolished, did Emporia attempt to take its children out of the county system. Under these circumstances, the power of the District Court to enjoin Emporia's withdrawal from that system need not rest upon an independent constitutional violation. The court's remedial power was invoked on the basis of a finding that the dual school system violated the Constitution, and since the city and the county constituted *460 but one unit for the purpose of student assignments during the entire time that the dual system was maintained, they were properly treated as a single unit for the purpose of dismantling that system. In the issue was whether the school board's adoption of a "freedom of choice" plan constituted adequate compliance with the mandate of (Brown ). We did not hold that a freedom-of-choice plan is of itself unconstitutional. Rather, we decided that |
Justice Stewart | 1,972 | 18 | majority | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | freedom-of-choice plan is of itself unconstitutional. Rather, we decided that any plan is "unacceptable" where it "fails to provide meaningful assurance of prompt and effective disestablishment of a dual system." 391 U.S., In we applied the same principle in rejecting a "free transfer" plan adopted by the school board as a method of desegregation: "We do not hold that `free transfer' can have no place in a desegregation plan. But like `freedom of choice,' if it cannot be shown that such a plan will further rather than delay conversion to a unitary, nonracial, nondiscriminatory school system, it must be held unacceptable." The effect of Emporia's proposal was to erect new boundary lines for the purpose of school attendance in a district where no such lines had previously existed, and where a dual school system had long flourished. Under the principles of Green and Monroe, such a proposal must be judged according to whether it hinders or furthers the process of school desegregation. If the proposal would impede the dismantling of the dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out. The Court of Appeals apparently did not believe this case to be governed by the principles of Green and *461 Monroe.[11] It held that the question whether new school district boundaries should be permitted in areas with a history of state-enforced racial segregation is to be resolved in terms of the "dominant purpose of [the] boundary realignment." "If the creation of a new school district is designed to further the aim of providing quality education and is attended secondarily by a modification of the racial balance, short of resegregation, the federal courts should not interfere. If, however, the primary purpose for creating a new school district is to retain as much of separation of the races as possible, the state has violated its affirmative constitutional duty to end state supported school segregation." Although the District Court had found that "in a sense, race was a factor in the city's decision to secede," the Court of Appeals found that the primary purpose of Emporia's action was "benign," and was not "merely a cover-up" for racial This "dominant purpose" test finds no precedent in our decisions. It is true that where an action by school authorities is motivated by a demonstrated discriminatory purpose, the existence of that purpose may add to the discriminatory effect of the action by intensifying the stigma of implied racial inferiority. And where a school board offers nonracial justifications for a plan that is less effective than |
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