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Justice Stewart | 1,972 | 18 | majority | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | nonracial justifications for a plan that is less effective than other alternatives for dismantling a dual school system, a demonstrated racial purpose may be taken into consideration in determining the weight to be given to the proffered justification. *462 Cf. Green, But as we said in U.S. 217, 225, it "is difficult or impossible for any court to determine the `sole' or `dominant' motivation behind the choices of a group of legislators," and the same may be said of the choices of a school board. In addition, an inquiry into the "dominant" motivation of school authorities is as irrelevant as it is fruitless. The mandate of Brown was to desegregate schools, and we have said that "[t]he measure of any desegregation plan is its effectiveness." Thus, we have focused upon the effectnot the purpose or motivationof a school board's action in determining whether it is a permissible method of dismantling a dual system. The existence of a permissible purpose cannot sustain an action that has an impermissible effect. The reasoning of the Court of Appeals in this case is at odds with that of other federal courts that have held that splinter school districts may not be created "where the effectto say nothing of the purposeof the secession has a substantial adverse effect on desegregation of the county school district." See also ; ; aff'd, 432 F.2d 1; 320 F. Supp. 12, 17. Though the purpose of the new school districts was found to be discriminatory in many of these cases, the courts' holdings rested not on motivation or purpose, but on the effect of the action upon the dismantling of the dual school systems involved. That was the focus of the District Court in this case, and we hold that its approach was proper. *463 I The basis for the District Court's ruling was its conclusion that if Emporia were allowed to establish an independent system, Negroes remaining in the county schools would be deprived of what Brown promised them: a school system in which all vestiges of enforced racial segregation have been eliminated. The District Court noted that the effect of Emporia's withdrawal would be a "substantial increase in the proportion of whites in the schools attended by city residents, and a concomitant decrease in the county schools." In addition, the court found that the departure of the city's students, its leadership, and its financial support, together with the possible loss of teachers to the new system, would diminish the chances that transition to unitary schools in the county would prove "successful." Certainly, desegregation is not achieved by |
Justice Stewart | 1,972 | 18 | majority | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | county would prove "successful." Certainly, desegregation is not achieved by splitting a single school system operating "white schools" and "Negro schools" into two new systems, each operating unitary schools within its borders, where one of the two new systems is, in fact, "white" and the other is, in fact, "Negro." Nor does a court supervising the process of desegregation exercise its remedial discretion responsibly where it approves a plan that, in the hope of providing better "quality education" to some children, has a substantial adverse effect upon the quality of education available to others. In some cases, it may be readily perceived that a proposed subdivision of a school district will produce one or both of these results. In other cases, the likelihood of such results may be less apparent. This case is of the latter kind, but an examination of the record shows that the District Court's conclusions were adequately supported by the evidence. *464 Data submitted to the District Court at its December hearing showed that the school system in operation under the "pairing" plan, including both Emporia and the county, had a racial composition of 34% white and 66% Negro. If Emporia had established its own system, and if total enrollment had remained the same, the city's schools would have been 48% white and 52% Negro, while the county's schools would have been 28% white and 72% Negro. We need not and do not hold that this disparity in the racial composition of the two systems would be a sufficient reason, standing alone, to enjoin the creation of the separate school district. The fact that a school board's desegregation plan leaves some disparity in racial balance among various schools in the system does not alone make that plan unacceptable.[12] We observed in that "[t]he constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole." But there is more to this case than the disparity in racial percentages reflected by the figures supplied by the school board. In the first place, the District Court found that if Emporia were allowed to withdraw from the existing system, it "may be anticipated that the proportion of whites in county schools may drop as those who can register in private academies," while some whites might return to the city schools from the private schools in which they had previously enrolled. Thus, in the judgment of the District Court, the statistical breakdown of the 1969-1970 enrollment figures between city residents and county *465 residents did |
Justice Stewart | 1,972 | 18 | majority | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | enrollment figures between city residents and county *465 residents did not reflect what the situation would have been had Emporia established its own school system. Second, the significance of any racial disparity in this case is enhanced by the fact that the two formerly all-white schools are located within Emporia, while all the schools located in the surrounding county were formerly all-Negro. The record further reflects that the school buildings in Emporia are better equipped and are located on better sites than are those in the county. We noted in that factors such as these may in themselves indicate that enforced racial segregation has been perpetuated: "Independent of student assignment, where it is possible to identify a `white school' or a `Negro school' simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown." Just as racial balance is not required in remedying a dual system, neither are racial ratios the sole consideration to be taken into account in devising a workable remedy. The timing of Emporia's action is a third factor that was properly taken into account by the District Court in assessing the effect of the action upon children remaining in the county schools. While Emporia had long had the right under state law to establish a separate school system, its decision to do so came only upon the basis ofand, as the city officials conceded, in reaction toa court order that prevented the county system from maintaining any longer the segregated system that had lingered for 15 years after Brown I. In the words of Judge Winter, dissenting in the Court *466 of Appeals, "[i]f the establishment of an Emporia school district is not enjoined, the black students in the county will watch as nearly one-half the total number of white students in the county abandon the county schools for a substantially whiter system." The message of this action, coming when it did, cannot have escaped the Negro children in the county. As we noted in Brown I: "To separate [Negro school children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." We think that, under the circumstances, the District Court could rationally have concluded that the same adverse psychological effect was likely to result from Emporia's |
Justice Stewart | 1,972 | 18 | majority | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | same adverse psychological effect was likely to result from Emporia's withdrawal of its children from the Greensville system. The weighing of these factors to determine their effect upon the process of desegregation is a delicate task that is aided by a sensitivity to local conditions, and the judgment is primarily the responsibility of the district judge. See Brown[13] Given the totality of the circumstances, we hold that the District Court was justified in its conclusion that Emporia's establishment of a separate system would actually impede the process of dismantling the existing dual system. *467 IV Against these considerations, Emporia advances arguments that a separate system is necessary to achieve "quality education" for city residents, and that it is unfair in any event to force the city to continue to send its children to schools over which the city, because of the character of its arrangement with the county, has very little control. These arguments are entitled to consideration by a court exercising its equitable discretion where they are directed to the feasibility or practicality of the proposed remedy. See But, as we said in the availability of "more promising courses of action" to dismantle a dual system "at the least places a heavy burden upon the board to explain its preference for an apparently less effective method." 391 U.S., In evaluating Emporia's claims, it must be remembered that the city represents the interests of less than one-third of the students in the system being desegregated. Only the city officials argue that their plan is preferable to the "pairing" plan encompassing the whole of the city-county system. Although the county school board took no position in the District Court either for or against Emporia's action, it had previously adopted a resolution stating its belief that the city's action was not in the best interests of the county children. In terms of Green, it was only the respondentsnot the county school boardwho expressed a "preference for an apparently less effective method" of desegregation. At the final hearing in the District Court, the respondents presented detailed budgetary proposals and other evidence demonstrating that they contemplated a more *468 diverse and more expensive educational program than that to which the city children had been accustomed in the Greensville schools. These plans for the city system were developed after the preliminary injunction was issued in this case. In August 1969, one month before classes were scheduled to open, the city officials were intent upon operating a separate system despite the fact that the city had no buildings under lease, no teachers under contract, and no |
Justice Stewart | 1,972 | 18 | majority | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | no buildings under lease, no teachers under contract, and no specific plans for the operation of the schools. Thus, the persuasiveness of the "quality education" rationale was open to question. More important, however, any increased quality of education provided to city students would, under the circumstances found by the District Court, have been purchased only at the price of a substantial adverse effect upon the viability of the county system. The District Court, with its responsibility to provide an effective remedy for segregation in the entire city-county system, could not properly allow the city to make its part of that system more attractive where such a result would be accomplished at the expense of the children remaining in the county. A more weighty consideration put forth by Emporia is its lack of formal control over the school system under the terms of its contract with the county. This argument is properly addressed to the practicality of the District Court's action. As we said in 402 U. S., at : "Having once found a violation, the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." And in we noted that a desegregation plan cannot be regarded as a proper exercise of a district *469 court's discretion where it is not "reasonable, feasible and workable." 402 U.S., We do not underestimate the deficiencies, from Emporia's standpoint, in the arrangement by which it undertook in 1968 to provide for the education of its children. Direct control over decisions vitally affecting the education of one's children is a need that is strongly felt in our society, and since 1967 the citizens of Emporia have had little of that control. But Emporia did find its arrangement with the county both feasible and practical up until the time of the desegregation decree issued in the summer of 1969. While city officials testified that they were dissatisfied with the terms of the contract prior to that time, they did not attempt to change it. They argued that the arrangement became intolerable when the "pairing" decree was entered, because the county officials who would control the budget of the unitary system lacked the desire to make the unitary system work. The District Court did not accept the contention that a lack of enthusiasm on the part of county leaders would, if Emporia children remained in the system, block a successful transition to unitary schools. The court felt that the "desire of the city leaders, coupled with their obvious leadership ability," would |
Justice Stewart | 1,972 | 18 | majority | Wright v. Council of Emporia | https://www.courtlistener.com/opinion/108587/wright-v-council-of-emporia/ | the city leaders, coupled with their obvious leadership ability," would make itself felt despite the absence of any formal control by the city over the system's budget and operation, and that the city's leadership would be "an important facet in the successful operation of any court-ordered plan." Under these circumstances, we cannot say that the enforced continuation of the single city-county system was not "reasonable, feasible and workable."[14] *470 The District Court explicitly noted in its opinion that its injunction does not have the effect of locking Emporia into its present circumstances for all time. As already noted, our holding today does not rest upon a conclusion that the disparity in racial balance between the city and county schools resulting from separate systems would, absent any other considerations, be unacceptable. The city's creation of a separate school system was enjoined because of the effect it would have had at the time upon the effectiveness of the remedy ordered to dismantle the dual system that had long existed in the area. Once the unitary system has been established and accepted, it may be that Emporia, if it still desired to do so, may establish an independent system without such an adverse effect upon the students remaining in the county, or it may be able to work out a more satisfactory arrangement with the county for joint operation of the existing system. We hold only that a new school district may not be created where its effect would be to impede the process of dismantling a dual system. And in making that essentially factual determination in any particular case, "we must of necessity rely to a large extent, as this Court has for more than 16 years, on the informed judgment of the district courts in the first instance and on courts of appeals." In this case, we believe that the District Court *471 did not abuse its discretion. For these reasons, the judgment of the Court of Appeals is Reversed. MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. |
Justice Rehnquist | 1,986 | 19 | dissenting | Golden State Transit Corp. v. Los Angeles | https://www.courtlistener.com/opinion/111621/golden-state-transit-corp-v-los-angeles/ | The city of Los Angeles refused to renew Golden State's taxicab franchise unless it settled a labor dispute with its drivers. The Court of Appeals for the Ninth Circuit stated that "[n]othing in the record indicates that the City's refusal to renew or extend Golden State's franchise until an agreement was reached and operations resumed was not concerned with transportation." Nonetheless, the Court today holds that "a city cannot condition a franchise renewal in a way that intrudes into the collective-bargaining process." Ante, at 619. The extraordinary breadth of the Court's holding is best illustrated by comparing it to this Court's initial cases involving federal labor pre-emption. In Bethlehem this Court addressed the permissible scope of state regulation of labor disputes by examining New York's so-called Little Wagner Act, under which foremen were permitted to unionize. The status of foremen under the federal Act had been a matter of dispute at the time that New York asserted its right to supervise the organization of a union of foremen at the Bethlehem Company plant in that State. See The State argued that its labor relations machinery could operate at least until similar benefits for foremen were sought by the union under the federal Act. See This Court held that the federal law pre-empted the state law on this point; both dealt with exactly the same subject matter and *621 whether or not they were the same or different with respect to the permissibility of organizing foremen made no difference. If they were the same, the procedures were duplicative. If they were different, they were potentially antagonistic. Six years later, in the Court was presented with a claim of pre-emption under the Taft-Hartley Act, which imposed regulations and duties on labor correlative to the those imposed on management by the Wagner Act. The case involved unionized drivers who had engaged in conduct clearly prohibited by the Taft-Hartley Act, which might have made them subject to a cease-and-desist order by the National Labor Relations Board. See But instead of resorting to the federal agency, the employer successfully sought an injunction against the prohibited picketing from a Pennsylvania state court. See This Court held that state duplication of remedies provided by the National Labor Relations Act was pre-empted even though the state remedy was provided by a court rather than a state labor agency. See 499-501. The opinions in both Bethlehem and observed that Congress had furnished no guidance to the Court as to whether or not state regulation should be pre-empted: "Congress has not seen fit to lay down even the most general |
Justice Rehnquist | 1,986 | 19 | dissenting | Golden State Transit Corp. v. Los Angeles | https://www.courtlistener.com/opinion/111621/golden-state-transit-corp-v-los-angeles/ | not seen fit to lay down even the most general of guides to construction of the Act, as it sometimes does, by saying that its regulation either shall or shall not exclude state action." Bethlehem "The national Labor Management Relations Act, as we have before pointed out, leaves much to the states, though Congress has refrained from telling us how much." The Court stated in both that it was forced simply to divine the will of Congress by implication: *622 "[The] exclusion of state action may be implied from the nature of the legislation and the subject matter although express declaration of such result is wanting." Bethlehem "We must spell out from conflicting indications of congressional will the area in which state action is still permissible." From the acorns of these two very sensible decisions has grown the mighty oak of this Court's labor pre-emption doctrine, which sweeps ever outward though still totally uninformed by any express directive from Congress. The National Labor Relations Board, organized management, and organized labor have vied with each other in urging the Court to sweep into the maw of labor relations law concerns that would have been regarded as totally peripheral to that body of law by the Congresses which enacted the Wagner Act and the Taft-Hartley Act. Today we are told that a city, not seeking to place its weight on one side or the other of the scales of economic warfare, may not condition the renewal of a taxicab franchise on the settlement of a labor dispute. The settlement of that dispute would have enabled the company to put its taxis back on the streets where the franchise presumably contemplated they would be. The Court says that since the Labor Board may not structure an ideal balance of collective-bargaining weapons, the city may not consider the existence of a labor dispute in deciding whether to renew a franchise. See ante, at 619-620. We are further told that because a State may not legislate to provide uninterrupted service to the public by prohibiting a strike of public utility employees, a city may not act upon its views of sound transportation policy to refuse to renew a taxi franchise unless the franchisee settles a labor dispute and returns its cabs to the purpose for which the franchise exists. See ante, at 617-618. Such sweeping generalizations commend themselves neither to common sense nor to whatever hypothetical "intent of Congress" as can be *623 discerned in an area so remote from the core concerns of labor-management relations addressed by federal labor law. Federal pre-emption of state |
Justice Rehnquist | 1,986 | 19 | dissenting | Golden State Transit Corp. v. Los Angeles | https://www.courtlistener.com/opinion/111621/golden-state-transit-corp-v-los-angeles/ | relations addressed by federal labor law. Federal pre-emption of state law is a matter of congressional intent, presumed or expressed. Because Congress cannot foresee the various ways in which state laws might rub up against the operation of federal statutes, the Court in a multitude of cases has held state regulation pre-empted even when Congress has not expressed any intent to pre-empt because of the danger that the existence of federal and state regulations side by side will interfere with the achievement of the objectives of the federal legislation. The entire body of this Court's labor law pre-emption doctrine has been built on a series of implications as to congressional intent in the face of congressional silence, so that we now have an elaborate pre-emption doctrine traceable not to any expression of Congress, but only to statements by this Court in its previous opinions of what Congress must have intended. The Court today doffs its hat to the legislative history of the Wagner Act and comes up with the following three items: "[1] The Senate Report states: `Disputes about wages, hours of work, and other working conditions should continue to be resolved by the play of competitive forces This bill in no respect regulates or even provides for supervision of wages or hours, nor does it establish any form of compulsory arbitration.' "[2] Senator Wagner, sponsor of the NLRA, said that the Board would not usurp the role of free collective action. "[3] Senator Wagner affirm[ed] that the Act encourages `voluntary settlement of industrial disputes.' " Ante, at 617 (citations omitted). These three bits of legislative history furnish absolutely no support for the result the Court reaches today. The observations that the Wagner Act leaves it to the parties to resolve their disputes by the play of competitive forces, that the Labor Board would not usurp the role of free collective *624 action, and that the Act encourages voluntary settlement of industrial disputes, simply do not speak to the question whether a city may condition the renewal of a taxicab franchise on the settlement of a labor dispute. I do not believe that Congress intended the labor law net to be cast this far, and I therefore dissent. |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | I would uphold McCreary and Pulaski Kentucky's (hereinafter Counties) displays of the Ten Commandments. I shall discuss, first, why the Court's oft repeated assertion that the government cannot favor religious practice is false; second, why today's opinion extends the scope of that falsehood even beyond prior cases; and third, why even on the basis of the Court's false assumptions the judgment here is wrong. I A On September 11, 2001, I was attending in Rome, Italy, an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer "God bless America." The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country's loss, sadly observed: "How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address `God bless' It is of course absolutely forbidden." *886 That is one model of the relationship between church and statea model spread across Europe by the armies of Napoleon, and reflected in the Constitution of France, which begins, "France is [a] secular Republic." France Const., Art. 1, in 7 Constitutions of the Countries of the World, p. 1 Religion is to be strictly excluded from the public forum. This is not, and never was, the model adopted by America. George Washington added to the form of Presidential oath prescribed by Art. II, 1, cl. 8, of the Constitution, the concluding words "so help me God." See Blomquist, The Presidential Oath, the American National Interest and a Call for Presiprudence, The Supreme Court under John all opened its sessions with the prayer, "God save the United States and this Honorable Court." 1 C. Warren, The Supreme Court in United States History 46 (rev. ed. 126) (internal quotation marks omitted). The First Congress instituted the practice of beginning its legislative sessions with a prayer. The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate. The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim "a day of |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | proposed it requested the President to proclaim "a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many signal favours of Almighty God." H. R. Jour., 1st Cong., 1st Sess., 123 (1826 ed.); see also Sen. Jour., 1st Sess., 88 (1820 ed.). President Washington offered the first Thanksgiving Proclamation shortly thereafter, devoting November 26, 178, on behalf of the American people "`to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be,'" Van Orden v. Perry, ante, at 687 (plurality opinion) (quoting President Washington's first Thanksgiving Proclamation), thus beginning a tradition of offering gratitude to *887 God that continues today. See[1] The same Congress also reenacted the Northwest Territory Ordinance of 1787, Article III of which provided: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." n. (a). And of course the First Amendment itself accords religion (and no other manner of ) special constitutional protection. These actions of our First President and Congress and the all Court were not idiosyncratic; they reflected the s of the period. Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality. The "fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself." School Dist. of Abington See Underkuffler-Freund, The Separation of the Religious and the Secular: A Foundational Challenge to First-Amendment Theory, President Washington opened his Presidency with a prayer, see Inaugural Addresses of the Presidents of the United States 1, 2 and reminded his fellow citizens at the conclusion of it that "reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle," Farewell Address (176), reprinted in 35 Writings of George Washington 22 (J. Fitzpatrick ed. 140). President John Adams wrote to the Massachusetts Militia, "we have no government *888 armed with power capable of contending with human passions unbridled by morality and religion. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." Letter (Oct. 11, 178), reprinted in Works of John Adams 22 Thomas Jefferson concluded his second inaugural address by inviting his audience to pray: "I shall need, too, the |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | inviting his audience to pray: "I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations." Inaugural Addresses of the Presidents of the United States, at 18, 22-23. James Madison, in his first inaugural address, likewise placed his confidence "in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future." Nor have the views of our people on this matter significantly changed. Presidents continue to conclude the Presidential oath with the words "so help me God." Our legislatures, state and national, continue to open their sessions with prayer led by official chaplains. The sessions of this Court continue to open with the prayer "God save the United States and this Honorable Court." Invocation of the Almighty by our public figures, at all levels of government, *88 remains commonplace. Our coinage bears the motto, "IN GOD WE TRUST." And our Pledge of Allegiance contains the acknowledgment that we are a Nation "under God." As one of our Supreme Court opinions rightly observed, "We are a religious people whose institutions presuppose a Supreme Being." 3 U.S. 306, repeated with approval in ; ; Abington at With all of this reality (and much more) staring it in the face, how can the Court possibly assert that the "`First Amendment mandates governmental neutrality between religion and nonreligion,'" ante, at 860, and that "[m]anifesting a purpose to favor adherence to religion generally," ib is unconstitutional? Who says so? Surely not the words of the Constitution. Surely not the history and traditions that reflect our society's constant understanding of those words. Surely not even the current sense of our society, recently reflected in an Act of Congress adopted unanimously by the Senate and with only five nays in the House of Representatives, see 148 Cong. |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | five nays in the House of Representatives, see 148 Cong. Rec. 120 ; criticizing a Court of Appeals opinion that had held "under God" in the Pledge of Allegiance unconstitutional. See Act of Nov. 13, 1(), 2(a), 3(a), 2058, 2060-2061 (reaffirming the Pledge of Allegiance and the National Motto ("In God We Trust") and stating that the Pledge of Allegiance is "clearly consistent with the text and intent of the Constitution"). Nothing stands behind the Court's assertion that governmental affirmation of the society's in God is unconstitutional except the Court's own say-so, citing as support only the unsubstantiated say-so of earlier Courts going back no further than the mid-20th century. See ante, at 860, citing Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day in turn citing in *80 turn citing Board of Ed. of Central School Dist. No. in turn quoting Abington in turn citing[2] And it is, moreover, a thoroughly discredited say-so. It is discredited, to begin with, because a majority of the Justices on the current Court (including at least one Member of today's majority) have, in separate opinions, repudiated the brain-spun "Lemon test" that embodies the supposed principle of neutrality between religion and irreligion. See Lamb's (collecting criticism of Lemon); Van Orden, ante, at 62-63, 67 (THOMAS, J., concurring); Board of Ed. of Kiryas Joel Village School ; of ; ; see also Committee for Public Ed. and Religious (disparaging "the sisyphean task of trying to patch together the `blurred, indistinct, and variable barrier' described in Lemon"). And it is discredited because the Court has not had the courage (or the foolhardiness) to apply the neutrality principle consistently. What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable *81 requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now thatthumbs up or thumbs downas their personal preferences dictate. Today's opinion forthrightly (or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle. In a revealing footnote, ante, at 85-860, n. 10, the Court acknowledges that the "Establishment Clause doctrine" it purports to be applying "lacks the comfort of categorical absolutes." What the Court means by this lovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not. The footnote goes on to say that "[i]n special instances we have found good reason" to dispense with the principle, but "[n]o such reasons present themselves here." It does |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | principle, but "[n]o such reasons present themselves here." It does not identify all of those "special instances," much less identify the "good reason" for their existence. I have cataloged elsewhere the variety of circumstances in which this Courteven after its embrace of Lemon's stated prohibition of such behaviorhas approved government action "undertaken with the specific intention of improving the position of religion," See at -618. Suffice it to say here that when the government relieves churches from the obligation to pay property taxes, when it allows students to absent themselves from public school to take religious classes, and when it exempts religious organizations from generally applicable prohibitions of religious discrimination, it surely means to bestow a benefit on religious practicebut we have approved it. See ; ; at 308, 3 Indeed, we have even approved (post-Lemon) government-led prayer to God. In the Court upheld the Nebraska State Legislature's practice of paying a chaplain to lead it in prayer at the opening of legislative sessions. The Court explained that "[t]o invoke Divine guidance on a public body entrusted with making the laws is not an `establishment' of religion or a step toward establishment; it is simply a tolerable acknowledgment of s widely held among the people of this country." (Why, one wonders, is not respect for the Ten Commandments a tolerable acknowledgment of s widely held among the people of this country?) The only "good reason" for ignoring the neutrality principle set forth in any of these cases was the antiquity of the practice at issue. See ; That would be a good reason for finding the neutrality principle a mistaken interpretation of the Constitution, but it is hardly a good reason for letting an unconstitutional practice continue. We did not hide behind that reason in which found unconstitutional bicameral state legislatures of a sort that had existed since the beginning of the Republic. And almost monthly, it seems, the Court has not shrunk from invalidating aspects of criminal procedure and penology of similar vintage. See, e. g., ; ; ; What, then, could be the genuine "good reason" for occasionally ignoring the neutrality principle? I suggest it is the instinct for self-preservation, and the recognition that the Court, which "has no influence over either the sword or the purse," The Federalist No. 78, p. 2 (A. Hamilton), cannot go *83 too far down the road of an enforced neutrality that contradicts both historical fact and current practice without losing all that sustains it: the willingness of the people to accept its interpretation of the Constitution as definitive, in preference to |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | its interpretation of the Constitution as definitive, in preference to the contrary interpretation of the democratically elected branches. Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion, today's opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another. See ante, at 868; see also Van Orden, ante, at 717-718 (Stevens, J., dissenting). That is indeed a valid principle where public aid or assistance to religion is concerned, see or where the free exercise of religion is at issue, Church of Lukumi Babalu Aye, ; but it necessarily applies in a more limited sense to public acknowledgment of the Creator. If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all. One cannot say the word "God," or "the Almighty," one cannot offer public supplication or thanksgiving, without contradicting the s of some people that there are many gods, or that God or the gods pay no attention to human affairs. With respect to public acknowledgment of religious it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists. The Thanksgiving Proclamation issued by George Washington at the instance of the First Congress was scrupulously nondenominationalbut it was monotheistic.[3] In v. *84 we said that the fact the particular prayers offered in the Nebraska Legislature were "in the Judeo-Christian tradition," posed no additional problem, because "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or" Historical practices thus demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion. The former is, as put it, "a tolerable acknowledgment of s widely held among the people of this country." The three most popular religions in the United States, Christianity, Judaism, and Islamwhich combined account for 7.7% of all believersare monotheistic. See U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States: 2004-, p. 55 (Table No. 67). All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life. See 13 Encyclopedia of Religion 074 ; The Qur'an 104 Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the populationfrom Christians to Muslimsthat they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.[4] *85 B A few remarks are necessary in response to the criticism of this dissent by the Court, as well as JUSTICE STEVENS' criticism in the related case of Van Orden v. Perry, ante, p. 707. JUSTICE STEVENS' writing is largely devoted to an attack upon a straw man. "[R]eliance on early religious proclamations and statements made by the Founders is problematic," he says, "because those views were not espoused at the Constitutional Convention in 1787 nor enshrined in the Constitution's text." Van Orden, ante, at 724 (dissenting opinion) (footnote omitted). But I have not relied upon (as he and the Court in this case do) mere "proclamations and statements" of the Founders. I have relied primarily upon official acts and official proclamations of the United States or of the component branches of its Government, including the First Congress's beginning of the tradition of legislative prayer to God, its appointment of congressional chaplains, its legislative proposal of a Thanksgiving Proclamation, and its reenactment of the Northwest Territory Ordinance; our first President's issuance of a Thanksgiving Proclamation; and invocation of God at the opening of sessions of the Supreme Court. The only mere "proclamations and statements" of the Founders I have relied upon were statements of Founders who occupied federal office, and spoke in at least a quasi-official capacityWashington's prayer at the opening of his Presidency and his Farewell Address, President John Adams' letter to the Massachusetts Militia, and Jefferson's and Madison's inaugural addresses. The Court and JUSTICE STEVENS, by contrast, appeal to no official or even quasi-official action in support of their view of the Establishment Clauseonly James Madison's Memorial and Remonstrance Against Religious Assessments, written before the Federal Constitution had even been proposed, *86 two letters written by Madison long after he was President, and the quasi-official inaction of Thomas Jefferson in refusing to issue a Thanksgiving Proclamation. See ante, at 878-87; Van Orden, ante, at 724-725 (Stevens, J., dissenting). The Madison Memorial and Remonstrance, dealing as it does with enforced contribution to religion rather than public acknowledgment of God, is irrelevant; one of the letters is utterly ambiguous as to the point at issue here, and should not be read to contradict Madison's statements in his first inaugural address, quoted earlier; even the other letter does not disapprove public acknowledgment of God, unless one posits (what Madison's own actions as President would |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | unless one posits (what Madison's own actions as President would contradict) that reference to God contradicts "the equality of all religious sects." See Letter from James Madison to Edward Livingston (July 10, 1822), in 5 The Founders' Constitution 105-106 And as to Jefferson: The notoriously self-contradicting Jefferson did not choose to have his nonauthorship of a Thanksgiving Proclamation inscribed on his tombstone. What he did have inscribed was his authorship of the Virginia Statute for Religious Freedom, a governmental act which begins "Whereas, Almighty God hath created the mind free." Va. Code Ann. 57-1 It is no answer for JUSTICE STEVENS to say that the understanding that these official and quasi-official actions reflect was not "enshrined in the Constitution's text." Van Orden, ante, at 724 (dissenting opinion). The Establishment Clause, upon which JUSTICE STEVENS would rely, was enshrined in the Constitution's text, and these official actions show what it meant. There were doubtless some who thought it should have a broader meaning, but those views were plainly rejected. JUSTICE STEVENS says that reliance on these actions is "bound to paint a misleading picture," ib but it is hard to see why. What is more probative of the meaning of the Establishment Clause than the actions of *87 the very Congress that proposed it, and of the first President charged with observing it? JUSTICE STEVENS also appeals to the undoubted fact that some in the founding generation thought that the Religion Clauses of the First Amendment should have a narrower meaning, protecting only the Christian religion or perhaps only Protestantism. See Van Orden, ante, at 725-728. I am at a loss to see how this helps his case, except by providing a cloud of obfuscating smoke. (Since most thought the Clause permitted government invocation of monotheism, and some others thought it permitted government invocation of Christianity, he proposes that it be construed not to permit any government invocation of religion at all.) At any rate, those narrower views of the Establishment Clause were as clearly rejected as the more expansive ones. Washington's First Thanksgiving Proclamation is merely an example. All of the actions of Washington and the First Congress upon which I have relied, virtually all Thanksgiving Proclamations throughout our history,[5] and all the other examples of our Government's favoring religion that I have cited, have invoked God, but not Jesus Christ.[6] Rather than relying *88 upon JUSTICE STEVENS' assurance that "[t]he original understanding of the type of `religion' that qualified for constitutional protection under the Establishment Clause likely did not include followers of Judaism and Islam," Van Orden, ante, at |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | include followers of Judaism and Islam," Van Orden, ante, at 728; see also ante, at 880, I would prefer to take the word of George Washington, who, in his famous Letter to the Hebrew Congregation of Newport, Rhode Island, wrote: "All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights." 6 The Papers of George Washington, Presidential Series 285 (D. Twohig ed. 16). The letter concluded, by the way, with an invocation of the one God: "May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy." JUSTICE STEVENS says that if one is serious about following the original understanding of the Establishment Clause, he must repudiate its incorporation into the Fourteenth Amendment, and hold that it does not apply against the States. See Van Orden, ante, at 72-731 (dissenting opinion). This is more smoke. JUSTICE STEVENS did not feel that way last Term, when he joined an opinion insisting upon the original meaning of the Confrontation Clause, but nonetheless applying it against the State of Washington. See The notion that incorporation empties the incorporated provisions of their original meaning has no support in either reason or precedent. *8 JUSTICE STEVENS argues that original meaning should not be the touchstone anyway, but that we should rather "expoun[d] the meaning of constitutional provisions with one eye toward our Nation's history and the other fixed on its democratic aspirations." Van Orden, ante, at 732 (dissenting opinion). This is not the place to debate the merits of the "living Constitution," though I must observe that Justice Stevens' quotation from refutes rather than supports that approach.[7] Even assuming, however, that the meaning of the Constitution ought to change according to "democratic aspirations," why are those aspirations to be found in Justices' notions of what the Establishment Clause ought to mean, rather than in the democratically adopted dispositions of our current society? As I have observed above, numerous provisions of our laws and numerous continuing practices of our people demonstrate that the government's invocation of God (and hence the government's invocation of the Ten Commandments) is unobjectionableincluding a statute enacted by Congress almost unanimously less than three years ago, stating that "under God" in the Pledge of Allegiance is constitutional, see To ignore all this is not to give effect |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | see To ignore all this is not to give effect to "democratic aspirations" but to frustrate them. Finally, I must respond to JUSTICE STEVENS' assertion that I would "marginaliz[e] the systems of more than 7 million Americans" who adhere to religions that are not monotheistic. Van Orden, ante, at 71, n. 18 (dissenting opinion). Surely that is a gross exaggeration. The s of those citizens are entirely protected by the Free Exercise Clause, and by those aspects of the Establishment Clause that do not relate to government acknowledgment of the Creator. Invocation of God despite their s is permitted not because nonmonotheistic religions cease to be religions recognized by the Religion Clauses of the First *00 Amendment, but because governmental invocation of God is not an establishment. JUSTICE STEVENS fails to recognize that in the context of public acknowledgments of God there are legitimate competing interests: On the one hand, the interest of that minority in not feeling "excluded"; but on the other, the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors. Our national tradition has resolved that conflict in favor of the majority.[8] It is not for this Court to change a disposition that accounts, many Americans think, for the phenomenon remarked upon in a quotation attributed to various authors, including Bismarck, but which I prefer to associate with Charles de Gaulle: "God watches over little children, drunkards, and the United States of America." II As bad as the Lemon test is, it is worse for the fact that, since its inception, its seemingly simple mandates have been manipulated to fit whatever result the Court aimed to achieve. Today's opinion is no different. In two respects it modifies Lemon to ratchet up the Court's hostility to religion. First, the Court justifies inquiry into legislative purpose, not as an end itself, but as a means to ascertain the appearance of the government action to an "`objective observer.'" Ante, at 862. Because in the Court's view the true danger to be guarded against is that the objective observer would feel like an "`outside[r]'" or "`not [a] full membe[r] of the political community,'" its inquiry focuses not on *01 the actual purpose of government action, but the "purpose apparent from government action." Ante, at 860. Under this approach, even if a government could show that its actual purpose was not to advance religion, it would presumably violate the Constitution as long as the Court's objective observer would think otherwise. See Capitol Square Review |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | Court's objective observer would think otherwise. See Capitol Square Review and Advisory 5 U.S. 753, (stating that "when the reasonable observer would view a government practice as endorsing religion, it is our duty to hold the practice invalid," even if the law at issue was neutral and the benefit conferred on the religious entity was incidental). I have remarked before that it is an odd jurisprudence that bases the unconstitutionality of a government practice that does not actually advance religion on the hopes of the government that it would do so. See But that oddity pales in comparison to the one invited by today's analysis: the legitimacy of a government action with a wholly secular effect would turn on the misperception of an imaginary observer that the government officials behind the action had the intent to advance religion. Second, the Court replaces Lemon's requirement that the government have "a secular purpose," 403 U. S., at with the heightened requirement that the secular purpose "predominate" over any purpose to advance religion. Ante, at 864-865. The Court treats this extension as a natural outgrowth of the longstanding requirement that the government's secular purpose not be a sham, but simple logic shows the two to be unrelated. If the government's proffered secular purpose is not genuine, then the government has no secular purpose at all. The new demand that secular purpose predominate contradicts Lemon's more limited requirement, and finds no support in our cases. In all but one of the five cases in which this Court has invalidated a government practice on the basis of its purpose to *02 benefit religion, it has first declared that the statute was motivated entirely by the desire to advance religion. See Santa Fe Independent School ; ; (finding that "Kentucky's statute requiring the posting of the Ten Commandments in public school rooms has no secular legislative purpose" ); In the Court did say that the state action was invalid because its "primary" or "preeminent" purpose was to advance a particular religious 53, 54, but that statement was unnecessary to the result, since the Court rejected the State's only proffered secular purpose as a sham. See I have urged that Lemon's purpose prong be abandoned, because (as I have discussed in Part I) even an exclusive purpose to foster or assist religious practice is not necessarily invalidating. But today's extension makes things even worse. By shifting the focus of Lemon's purpose prong from the search for a genuine, secular motivation to the hunt for a predominantly religious purpose, the Court converts what has in the past been |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | purpose, the Court converts what has in the past been a fairly limited inquiry into a rigorous review of the full record.[] Those responsible for the *03 adoption of the Religion Clauses would surely regard it as a bitter irony that the religious values they designed those Clauses to protect have now become so distasteful to this Court that if they constitute anything more than a subordinate motive for government action they will invalidate it. III Even accepting the Court's Lemon-based premises, the displays at issue here were constitutional. A To any person who happened to walk down the hallway of the McCreary or Pulaski Courthouse during the roughly nine months when the Foundations Displays were exhibited, the displays must have seemed unremarkableif indeed they were noticed at all. The walls of both court-houses were already lined with historical documents and other assorted portraits; each Foundations Display was exhibited in the same format as these other displays and nothing in the record suggests that either took steps to give it greater prominence. Entitled "The Foundations of American Law and Government Display," each display consisted of nine equally sized documents: the original version of the Magna Carta, the Declaration of Independence, the Bill of Rights, the Star Spangled Banner, the Mayflower Compact of 1620, a picture of Lady Justice, the National Motto of the United States ("In God We Trust"), the Preamble to the Kentucky Constitution, and the Ten Commandments. The displays did not emphasize any of the nine documents in any way: The frame holding the Ten Commandments was of the same size and had the *04 same appearance as that which held each of the other documents. See Posted with the documents was a plaque, identifying the display, and explaining that it "`contains documents that played a significant role in the foundation of our system of law and government.'" The explanation related to the Ten Commandments was third in the list of nine and did not serve to distinguish it from the other documents. It stated: "`The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country. That influence is clearly seen in the Declaration of Independence, which declared that, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition.'" B On its face, the Foundations Displays manifested |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | legal tradition.'" B On its face, the Foundations Displays manifested the purely secular purpose that the Counties asserted before the District Court: "to display documents that played a significant role in the foundation of our system of law and government." Affidavit of Judge Jimmie Green in Support of Defendants' Opposition to Plaintiffs' Motion for Contempt or, in the Alternative, for Supplemental Preliminary Injunction in Civ. Action No. -507 (ED Ky.), p. 2, ¶ 4, App. 57. That the displays included the Ten Commandments did not transform their apparent secular purpose into one of impermissible advocacy for Judeo-Christian s. Even an isolated display of the Decalogue conveys, at worst, "an equivocal message, perhaps of respect for Judaism, for religion in general, or for law." Allegheny 42 U. S., at But when the Ten Commandments appear alongside other documents of secular significance in a display devoted to the foundations of American law and government, the context communicates that the Ten Commandments are included, not to teach their binding nature as a religious text, but to show their unique contribution to the development of the legal system. See at -653. This is doubly true when the display is introduced by a document that informs passersby that it "`contains documents that played a significant role in the foundation of our system of law and government.'" 354 F. 3d, at The same result follows if the Ten Commandments display is viewed in light of the government practices that this Court has countenanced in the past. The acknowledgment of the contribution that religion in general, and the Ten Commandments in particular, have made to our Nation's legal and governmental heritage is surely no more of a step toward establishment of religion than was the practice of legislative prayer we approved in and it seems to be on par with the inclusion of a crèche or a menorah in a "Holiday" display that incorporates other secular symbols, see -680; Allegheny The parallels between this case and and are sufficiently compelling that they ought to decide this case, even under the Court's misguided Establishment Clause jurisprudence.[10] *06 Acknowledgment of the contribution that religion has made to our Nation's legal and governmental heritage partakes of a centuries-old tradition. Members of this Court have themselves often detailed the degree to which religious pervaded the National Government during the founding era. See ; ; -636 ; -106 ; Display of the Ten Commandments is well within the mainstream of this practice of acknowledgment. Federal, state, and local governments across the Nation have engaged in such display.[11] The Supreme Court Building itself |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | have engaged in such display.[11] The Supreme Court Building itself includes depictions of Moses with the Ten Commandments in the Courtroom and on the east pediment of the building, and symbols of the Ten Commandments "adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom." Van Orden, ante, at 688 (plurality opinion). Similar depictions of the Decalogue appear *07 on public buildings and monuments throughout our Nation's Capital. Ante, at 68. The frequency of these displays testifies to the popular understanding that the Ten Commandments are a foundation of the rule of law, and a symbol of the role that religion played, and continues to play, in our system of government. Perhaps in recognition of the centrality of the Ten Commandments as a widely recognized symbol of religion in public life, the Court is at pains to dispel the impression that its decision will require governments across the country to sandblast the Ten Commandments from the public square. See ante, at 874. The constitutional problem, the Court says, is with the Counties' purpose in erecting the Foundations Displays, not the displays themselves. The Court adds in a footnote: "One consequence of taking account of the purpose underlying past actions is that the same government action may be constitutional if taken in the first instance and unconstitutional if it has a sectarian heritage." Ante, at 866, n. 14. This inconsistency may be explicable in theory, but I suspect that the "objective observer" with whom the Court is so concerned will recognize its absurdity in practice. By virtue of details familiar only to the parties to litigation and their lawyers, McCreary and Pulaski Counties, Kentucky, and Rutherford Tennessee, have been ordered to remove the same display that appears in courthouses from Mercer Kentucky, to Elkhart Indiana. Compare American Civil Liberties Union of Tenn. v. Rutherford with Books v. Elkhart ; American Civil Liberties Union of Ky. v. Mercer (rejecting Establishment Clause challenge to an identical Foundations Display and distinguishing McCreary on the ground *08 that the 's purpose had not been "tainted with any prior history"). Displays erected in silence (and under the direction of good legal advice) are permissible, while those hung after discussion and debate are deemed unconstitutional. Reduction of the Establishment Clause to such minutiae trivializes the Clause's protection against religious establishment; indeed, it may inflame religious passions by making the passing comments of every government official the subject of endless litigation. C In any event, the Court's conclusion that the Counties exhibited the Foundations Displays with |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | Court's conclusion that the Counties exhibited the Foundations Displays with the purpose of promoting religion is doubtful. In the Court's view, the impermissible motive was apparent from the initial displays of the Ten Commandments all by themselves: When that occurs, the Court says, "a religious object is unmistakable." Ante, at Surely that cannot be. If, as discussed above, the Commandments have a proper place in our civic history, even placing them by themselves can be civically motivatedespecially when they are placed, not in a school (as they were in the Stone case upon which the Court places such reliance), but in a courthouse. Cf. Van Orden, ante, at 701 (BREYER, J., concurring in judgment) ("The circumstances surrounding the display's placement on the capitol grounds and its physical setting suggest that the State itself intended the nonreligious aspects of the tablets' message to predominate"). And the fact that at the posting of the exhibit a clergyman was present is unremarkable (clergymen taking particular pride in the role of the Ten Commandments in our civic history); and even more unremarkable the fact that the clergyman "testified to the certainty of the existence of God," ante, at The Court has in the past prohibited government actions that "proselytize or advance any one, or disparage any other, faith or" 463 U. S., or that apply some level of coercion (though I and others have disagreed *0 about the form that coercion must take), see, e. g., ; The passive display of the Ten Commandments, even standing alone, does not begin to do either. What JUSTICE KENNEDY said of the crèche in Allegheny is equally true of the Counties' original Ten Commandments displays: "No one was compelled to observe or participate in any religious ceremony or activity. [T]he count[ies] [did not] contribut[e] significant amounts of tax money to serve the cause of one religious faith. [The Ten Commandments] are purely passive symbols of [the religious foundation for many of our laws and governmental institutions]. Passersby who disagree with the message conveyed by th[e] displays are free to ignore them, or even to turn their backs, just as they are free to do when they disagree with any other form of government speech." Nor is it the case that a solo display of the Ten Commandments advances any one faith. They are assuredly a religious symbol, but they are not so closely associated with a single religious that their display can reasonably be understood as preferring one religious sect over another. The Ten Commandments are recognized by Judaism, Christianity, and Islam alike as divinely given. See |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | by Judaism, Christianity, and Islam alike as divinely given. See 13 Encyclopedia of Religion 074[12] *10 The Court also points to the Counties' second displays, which featured a number of statements in historical documents reflecting a religious influence, and the resolutions that accompanied their erection, as evidence of an impermissible religious purpose.[13] In the Court's view, "[t]he [second] display's unstinting focus on religious passages, show[s] that the Counties were posting the Commandments precisely because of their sectarian content." Ante, at 870. No, all it necessarily shows is that the exhibit was meant to focus upon the historic role of religious in our national life which is entirely permissible. And the same can be said of the resolution. To forbid any government focus upon this aspect of our history is to display what Justice Goldberg called "untutored devotion to the concept of neutrality," Abington that would commit the Court (and the Nation) to a revisionist agenda of secularization. *11 Turning at last to the displays actually at issue in this case, the Court faults the Counties for not repealing the resolution expressing what the Court believes to be an impermissible intent. Under these circumstances, the Court says, "[n]o reasonable observer could swallow the claim that the Counties had cast off the objective so unmistakable in the earlier displays." Ante, at 872. Even were I to accept all that the Court has said before, I would not agree with that assessment. To begin with, of course, it is unlikely that a reasonable observer would even have been aware of the resolutions, so there would be nothing to "cast off." The Court implies that the Counties may have been able to remedy the "taint" from the old resolutions by enacting a new one. See ante, at 871-872. But that action would have been wholly unnecessary in light of the explanation that the Counties included with the displays themselves: A plaque next to the documents informed all who passed by that each display "contains documents that played a significant role in the foundation of our system of law and government." Additionally, there was no reason for the Counties to repeal or repudiate the resolutions adopted with the hanging of the second displays, since they related only to the second displays. After complying with the District Court's order to remove the second displays "immediately," and erecting new displays that in content and by express assertion reflected a different purpose from that identified in the resolutions, the Counties had no reason to believe that their previous resolutions would be deemed to be the basis for their |
Justice Scalia | 2,005 | 9 | dissenting | McCreary County v. American Civil Liberties Union of Ky. | https://www.courtlistener.com/opinion/799993/mccreary-county-v-american-civil-liberties-union-of-ky/ | resolutions would be deemed to be the basis for their actions.[14] After the Counties *12 discovered that the sentiments expressed in the resolutions could be attributed to their most recent displays (in oral argument before this Court), they repudiated them immediately. In sum: The first displays did not necessarily evidence an intent to further religious practice; nor did the second displays, or the resolutions authorizing them; and there is in any event no basis for attributing whatever intent motivated the first and second displays to the third. Given the presumption of regularity that always accompanies our review of official action, see n. the Court has identified no evidence of a purpose to advance religion in a way that is inconsistent with our cases. The Court may well be correct in identifying the third displays as the fruit of a desire to display the Ten Commandments, ante, at 872, but neither our cases nor our history support its assertion that such a desire renders the fruit poisonous. * * * For the foregoing reasons, I would reverse the judgment of the Court of Appeals. |
Justice Stevens | 2,007 | 16 | majority | Office of Senator Mark Dayton v. Hanson | https://www.courtlistener.com/opinion/145732/office-of-senator-mark-dayton-v-hanson/ | Prior to January 3, Mark Dayton represented the State of Minnesota in the United States Senate. Appellee, Brad Hanson, was employed in the Senator's Ft. Snelling office prior to his discharge by the Senator, which he alleges occurred on July 3, 2002. Hanson brought this action for damages against appellant, the Senator's office (Office), invoking the District Court's jurisdiction under the Congressional Accountability Act of 1995 (Act), as amended, et seq. (2000 ed. and Supp. IV), and alleging violations of three other federal statutes.[1] The District Court denied appellant's motion to dismiss the complaint based on a claim of immunity under the Speech or Debate Clause of the Constitution.[2] The Court of Appeals affirmed, the Office invoked our appellate jurisdiction under 412 of the Act, 2 U.S.C. 1412, and we postponed consideration of jurisdiction pending hearing the case on the merits, 549 U.S. S.Ct. L.Ed.2d Because we do not have jurisdiction under 412, we dismiss the appeal. Treating appellant's jurisdictional statement as a petition for a writ of certiorari, we deny the petition. Under 412 of the Act, direct review in this Court is available "from any interlocutory or final judgment, decree, or order of a court upon the constitutionality of any provision" of the statute.[3] Neither the order of the District Court denying appellant's motion to dismiss nor the judgment of the Court of Appeals affirming that order can fairly be characterized as a ruling "upon the constitutionality" of any provision of the Act. The District Court's minute order denying the motion to dismiss does not state any grounds for decision. App. to Pet. for Cert. 59a. Both parties agree that that order cannot, therefore, be characterized as a constitutional holding.[4] The Court of Appeals' opinion rejects appellant's argument that forcing Senator Dayton to defend against the allegations in this case would necessarily *2021 contravene the Speech or Debate Clause, although it leaves open the possibility that the Speech or Debate Clause may limit the scope of the proceedings in some respects. Neither of those holdings qualifies as a ruling on the validity of the Act itself. The Office argues that the Court of Appeals' holding amounts to a ruling that the Act is constitutional "as applied." According to the Office, an "as applied" constitutional holding of that sort satisfies the jurisdictional requirements of 412. We find this reading difficult to reconcile with the statutory scheme. Section 413 of the Act provides that "[t]he authorization to bring judicial proceedings under [the Act] shall not constitute a waiver of sovereign immunity for any other purpose, or of the privileges of |
Justice Stevens | 2,007 | 16 | majority | Office of Senator Mark Dayton v. Hanson | https://www.courtlistener.com/opinion/145732/office-of-senator-mark-dayton-v-hanson/ | immunity for any other purpose, or of the privileges of any Senator or Member of the House of Representatives under [the Speech or Debate Clause] of the Constitution." 2 U.S.C. 1413. This provision demonstrates that Congress did not intend the Act to be interpreted to permit suits that would otherwise be prohibited under the Speech or Debate Clause. Consequently, a court's determination that jurisdiction attaches despite a claim of Speech or Debate Clause immunity is best read as a ruling on the scope of the Act, not its constitutionality. This reading is faithful, moreover, to our established practice of interpreting statutes to avoid constitutional difficulties.[5] See The provision for appellate review is best understood as responding to a congressional concern that if a provision of the statute is declared invalid there is an interest in prompt adjudication by this Court. To extend that review to instances in which the statute itself has not been called into question, giving litigants under the Act preference over litigants in other cases, does not accord with that rationale. This is also consistent with our cases holding that "statutes authorizing appeals are to be strictly construed." Perry Ed. ; see also Nor are there special circumstances that justify the exercise of our discretionary certiorari jurisdiction to review the Court of Appeals' affirmance of the interlocutory order entered by the District Court. Having abandoned its decision in the D.C. Circuit is no longer in obvious conflict with any other Circuit on the application of the Speech or Debate Clause to suits challenging the personnel decisions of Members of Congress. Compare (case below), with Accordingly, the appeal is dismissed for want of jurisdiction and certiorari is denied. We express no opinion on the merits, nor do we decide whether this action became moot upon the expiration of Senator Dayton's term in office. It is so ordered. THE CHIEF JUSTICE took no part in the consideration or decision of this case. |
Justice Ginsburg | 1,999 | 5 | majority | Buckley v. American Constitutional Law Foundation, Inc. | https://www.courtlistener.com/opinion/118254/buckley-v-american-constitutional-law-foundation-inc/ | Colorado allows its citizens to make laws directly through initiatives placed on election ballots. See Colo. Const., Art. V, 1(1), (2); Colo. Rev. Stat. 1-40-101 to 1-40-133 We review in this case three conditions Colorado places on the ballot-initiative process: (1) the requirement that initiative-petition circulators be registered voters, (1) ; (2) the requirement that they wear an identification badge bearing the circulator's name, 1-40-112(2); and (3) the requirement that proponents of an initiative report the names and addresses of all paid circulators and the amount paid to each circulator, 1-40-121. Precedent guides our review. In we struck down Colorado's prohibition of payment for the circulation of ballot-initiative petitions. Petition circulation, we held, is "core political speech," because it involves "interactive communication concerning political change." *187 First Amendment protection for such interaction, we agreed, is "at its zenith." We have also recognized, however, that "there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." ; see ; Taking careful account of these guides, the Court of Appeals for the Tenth Circuit upheld some of the State's regulations, but found the three controls at issue excessively restrictive of political speech, and therefore declared them invalid. American Constitutional Law Foundation, We granted certiorari, and now affirm that judgment. I The complaint in this action was filed in in the United States District Court for the District of Colorado pursuant to 42 U.S. C. 1983; it challenged six of Colorado's many controls on the initiative-petition process. Plaintiffs, now respondents, included American Constitutional Law Foundation, Inc., a nonprofit, public interest organization that supports direct democracy, and several individual participants in Colorado's initiative process. In this opinion we refer to plaintiffs-respondents, collectively, as ACLF.[1]*188 ACLF charged that the following prescriptions of Colorado's law governing initiative petitions violate the First Amendment's freedom of speech guarantee: (1) the requirement that petition circulators be at least 18 years old, (1) ;[2] (2) the further requirement that they be registered voters, ;[3] (3) the limitation of the petition circulation period to six months, 1-40-108;[4] (4) the requirement that petition circulators wear identification badges stating their names, their status as "VOLUNTEER" or "PAID," and if the latter, the name and telephone number of their employer, 1-40-112(2);[5] (5) the requirement that circulators attach to each petition section[6] an affidavit containing, *189 inter alia, the circulator's name and address and a statement that "he or she has read and understands the laws governing the circulation of petitions," 1-40-111(2);[7] and (6) the |
Justice Ginsburg | 1,999 | 5 | majority | Buckley v. American Constitutional Law Foundation, Inc. | https://www.courtlistener.com/opinion/118254/buckley-v-american-constitutional-law-foundation-inc/ | laws governing the circulation of petitions," 1-40-111(2);[7] and (6) the requirements that initiative proponents disclose (a) at the time they file their petition, the name, address, and county of voter registration of all paid circulators, the amount of money proponents paid per petition signature, and the total amount paid to each circulator, and (b) on a monthly basis, the names of the proponents, the name and address of each paid circulator, the name of the proposed ballot measure, and the amount of money paid and owed to each circulator during the month, 1-40-121.[8] *190 The District Court, after a bench trial,[9] struck down the badge requirement and portions of the disclosure requirements, but upheld the age and affidavit requirements and the six-month limit on petition circulation. See American Constitutional Law Foundation, The District Court also found that the registration requirement "limits the number of persons available to circulate and, accordingly, restricts core political speech." Nevertheless, that court upheld the registration requirement. In 1980, the District Court noted, the registration requirement had been adopted by Colorado's voters as a constitutional amendment. See For that reason, the District Court believed, the restriction was "not subject to any level of scrutiny." The Court of Appeals affirmed in part and reversed in part. See That court properly sought guidance from our recent decisions on ballot access, see, e. g., and on handbill distribution, see See 1103. Initiative-petition circulators, the Tenth Circuit recognized, resemble handbill distributors, in that both seek *191 to promote public support for a particular issue or position. See Initiative-petition circulators also resemble candidate-petition signature gatherers, however, for both seek ballot access. In common with the District Court, the Tenth Circuit upheld, as reasonable regulations of the ballot-initiative process, the age restriction, the six-month limit on petition circulation, and the affidavit requirement. See[10] The Court of Appeals struck down the requirement that petition circulators be registered voters, and also held portions of the badge and disclosure requirements invalid as trenching unnecessarily and improperly on political expression. See II As the Tenth Circuit recognized in upholding the age restriction, the six-month limit on circulation, and the affidavit requirement, States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally. See cert. denied, ; Taxpayers United For Assessment[11] We have several times said "no litmus-paper test" will separate valid ballot-access provisions from invalid interactive speech restrictions; we have come upon "no substitute for the hard judgments that must be made." Storer, 415 U. S., at ; see ; -. |
Justice Ginsburg | 1,999 | 5 | majority | Buckley v. American Constitutional Law Foundation, Inc. | https://www.courtlistener.com/opinion/118254/buckley-v-american-constitutional-law-foundation-inc/ | made." Storer, 415 U. S., at ; see ; -. But the First Amendment requires us to be vigilant in making those judgments, to guard against undue hindrances to political conversations and the exchange of ideas. See We therefore detail why we are satisfied that, as in the restrictions in question significantly inhibit communication with voters ab proposed political change, and are not warranted by the state interests (administrative efficiency, fraud detection, informing voters) alleged to justify those restrictions.[12] Our judgment is informed by other means Colorado employs to accomplish its regulatory purposes. III By constitutional amendment in 1980, see Colo. Const., Art. V, 1(6), and corresponding statutory change the next *193 year, see 1981 Colo. Sess. Laws, ch. 56, 4, Colorado added to the requirement that petition circulators be residents, the further requirement that they be registered voters.[13] Registration, Colorado's Attorney General explained at oral argument, demonstrates "commit[ment] to the Colorado law-making process," Tr. of Oral Arg. 10, and facilitates verification of the circulator's residence, see Beyond question, Colorado's registration requirement drastically reduces the number of persons, both volunteer and paid, available to circulate petitions. We must therefore inquire whether the State's concerns warrant the reduction. See 520 U. S., at When this case was before the District Court, registered voters in Colorado numbered approximately 1.9 million. At least 400,000 persons eligible to vote were not registered. See 2 Tr. 159 (testimony of Donetta Davidson, elections official in the Colorado Secretary of State's office);[14][15] *194 Trial testimony complemented the statistical picture. Typical of the submissions, initiative proponent Paul Grant testified: "Trying to circulate an initiative petition, you're drawing on people who are not involved in normal partisan politics for the most part. [L]arge numbers of these people, our natural support, are not registered voters." 1 Tr. 128. As earlier noted, see the District Court found from the statistical and testimonial evidence: "The record does show that the requirement of registration limits the number of persons available to circulate and sign [initiative] petitions and, accordingly, restricts core political speech." 870 F. Supp., Because the requirement's source was a referendum approved by the people of Colorado, however, the District Court deemed the prescription "not subject to any level of [judicial] scrutiny." That misjudgment was corrected by the Tenth Circuit: "The voters may no more violate the United States Constitution by enacting a ballot issue than the general assembly may by enacting legislation." The Tenth Circuit reasoned that the registration requirement placed on Colorado's voter-eligible population produces a speech diminution of the very kind produced by the ban on paid circulators at |
Justice Ginsburg | 1,999 | 5 | majority | Buckley v. American Constitutional Law Foundation, Inc. | https://www.courtlistener.com/opinion/118254/buckley-v-american-constitutional-law-foundation-inc/ | very kind produced by the ban on paid circulators at issue in See We agree. The requirement that circulators be not merely voter eligible, but registered voters, it is scarcely debatable given the uncontested numbers, see and n. 15, decreases the pool of potential circulators as certainly as that pool is decreased by the prohibition of payment to circulators.[16] Both provisions "limi[t] the number of voices who *195 will convey [the initiative proponents'] message" and, consequently, cut down "the size of the audience [proponents] can reach." 486 U. S., 423; see (quoting ); see also In this case, as in the requirement "imposes a burden on political expression that the State has failed to justify." Colorado acknowledges that the registration requirement limits speech, but not severely, the State asserts, because "it is exceptionally easy to register to vote." Reply Brief 5, 6; see Brief for Petitioner 30-31. The ease with which qualified voters may register to vote, however, does not lift the burden on speech at petition circulation time. Of course there are individuals who fail to register of ignorance or apathy. See post, at 219-220 (O'Connor, J., concurring in judgment in part and dissenting in part). But there are also individuals for whom, as the trial record shows, the choice not to register implicates political thought and expression. See 1 Tr. 14 (testimony of ballot-initiative organizer Jack *196 Hawkins). A lead plaintiff in this case, long active in ballot-initiative supporta party no doubt "`able and willing' to convey a political message," cf.post, at 219 (O'Connor, J.,concurring in judgment in part and dissenting in part)testified that his refusal to register is a "form of private and public protest." 1 Tr. 223 (testimony of William Orr, executive director of ACLF). Another initiative proponent similarly stated that some circulators refuse to register because "they don't believe that the political process is responsive to their needs." For these voter-eligible circulators, the ease of registration misses the point.[17] The State's dominant justification appears to be its strong interest in policing lawbreakers among petition circulators. Colorado seeks to ensure that circulators will be amenable to the Secretary of State's subpoena power, which in these matters does not extend beyond the State's borders. See Brief for Petitioner 32. The interest in reaching law violators, however, is served by the requirement, upheld below, that each circulator submit an affidavit setting among several particulars, the "address at which he or she resides, including the street name and number, the city or town, [and] the county." Colo. Rev. Stat. 1-40-111(2) ; see This address attestation, we note, has an |
Justice Ginsburg | 1,999 | 5 | majority | Buckley v. American Constitutional Law Foundation, Inc. | https://www.courtlistener.com/opinion/118254/buckley-v-american-constitutional-law-foundation-inc/ | 1-40-111(2) ; see This address attestation, we note, has an immediacy, and corresponding reliability, that a voter's registration may lack. The attestation is made at the time a petition section is submitted; a voter's registration may lack that currency. *197 ACLF did not challenge Colorado's right to require that all circulators be residents, a requirement that, the Tenth Circuit said, "more precisely achieved" the State's subpoena service Nor was any eligible-to-vote qualification in contest in this lawsuit. Colorado maintains that it is more difficult to determine who is a state resident than it is to determine who is a registered voter. See Tr. of Oral Arg. 10, 14. The force of that argument is diminished, however, by the affidavit attesting to residence that each circulator must submit with each petition section. In sum, assuming that a residence requirement would be upheld as a needful integrity-policing measurea question we, like the Tenth Circuit, see have no occasion to decide because the parties have not placed the matter of residence at issuethe added registration requirement is not warranted. That requirement cuts down the number of message carriers in the ballot-access arena with impelling cause. IV Colorado enacted the provision requiring initiativepetition circulators to wear identification badges in five years after our decision in Colo. Sess. Laws, ch. 183, 1.[18] The Tenth Circuit held the badge requirement invalid insofar as it requires circulators to display their names. See The Court of Appeals did not rule on the constitutionality of other elements of the badge provision, namely, the "requirements that the badge disclose whether the circulator is paid or a volunteer, and if paid, by whom." Nor do we. Evidence presented to the District Court, that court found, "demonstrated that compelling circulators to wear identification *198 badges inhibits participation in the petitioning process." The badge requirement, a veteran ballot-initiative-petition organizer stated, "very definitely limited the number of people willing to work for us and the degree to which those who were willing to work would go in public." 1 Tr. 127 (testimony of Paul Grant).[19] Another witness told of harassment he personally experienced as circulator of a hemp initiative petition. See He also testified to the reluctance of potential circulators to face the recrimination and retaliation that bearers of petitions on "volatile" issues sometimes encounter: "[W]ith their name on a badge, it makes them afraid." 1 Tr. 60 Other petition advocates similarly reported that "potential circulators were not willing to wear personal identification badges." -1002. Colorado urges that the badge enables the public to identify, and the State to apprehend, petition circulators who engage |
Justice Ginsburg | 1,999 | 5 | majority | Buckley v. American Constitutional Law Foundation, Inc. | https://www.courtlistener.com/opinion/118254/buckley-v-american-constitutional-law-foundation-inc/ | identify, and the State to apprehend, petition circulators who engage in misconduct. See Brief for Petitioner 36-37; Reply Brief 17. Here again, the affidavit requirement, unsuccessfully challenged below, see and n. 10, is responsive to the State's concern; as earlier noted, see and n. 7, each petition section must contain, along with the collected signatures of voters, the circulator's name, address, and signature. This notarized submission, available to law enforcers, renders less needful the State's provision for personal names on identification badges. While the affidavit reveals the name of the petition circulator and is a public record, it is tuned to the speaker's interest as well as the State's. Unlike a name badge worn at the time a circulator is soliciting signatures, the affidavit is separated from the moment the circulator speaks. As the Tenth Circuit explained, the name badge requirement "forces circulators *199 to reveal their identities at the same time they deliver their political message," ; it operates when reaction to the circulator's message is immediate and "may be the most intense, emotional, and unreasoned," The affidavit, in contrast, does not expose the circulator to the risk of "heat of the moment" harassment. Our decision in is instructive here. The complainant in challenged an Ohio law that prohibited the distribution of anonymous campaign literature. The writing in question was a handbill urging voters to defeat a ballot issue. Applying "exacting scrutiny" to Ohio's fraud prevention justifications, we held that the ban on anonymous speech violated the First Amendment. See "Circulating a petition is akin to distributing a handbill," the Tenth Circuit observed in the decision now before 120 F.3d, Both involve a one-on-one communication. But the restraint on speech in this case is more severe than was the restraint in Petition circulation is the less fleeting encounter, for the circulator must endeavor to persuade electors to sign the petition. See Tr. of Oral Arg. 21, 25-26. That endeavor, we observed in "of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change." The injury to speech is heightened for the petition circulator because the badge requirement compels personal name identification at the precise moment when the circulator's interest in anonymity is greatest. See For this very reason, the name badge requirement does not qualify for inclusion among the "more limited [election process] identification requirement[s]" to which we alluded in ; see at In contrast, the affidavit requirement upheld by the District Court and Court of Appeals, which must be met only after circulators have completed their conversations |
Justice Ginsburg | 1,999 | 5 | majority | Buckley v. American Constitutional Law Foundation, Inc. | https://www.courtlistener.com/opinion/118254/buckley-v-american-constitutional-law-foundation-inc/ | must be met only after circulators have completed their conversations with electors, exemplifies the type of regulation for which left room.[20] In sum, we conclude, as did the Court of Appeals, that Colorado's current badge requirement discourages participation in the petition circulation process by forcing name identification with sufficient cause. We reiterate this qualification: In its final observation, the Court of Appeals noted that ACLF's "arguments and evidence focus[ed] entirely on [the circulator identification] requirement"; therefore, that court expressed no opinion whether the additional requirementsthat the badge disclose the circulator's paid or volunteer status, and if paid, by whom"would pass constitutional muster standing alone." We similarly confine our decision. *201 V Like the badge requirement, Colorado's disclosure provisions were enacted post- in See Colo. Sess. Laws, ch. 183, 1.[21] The Tenth Circuit trimmed these provisions. Colorado requires ballot-initiative proponents who pay circulators to file both a final report when the initiative petition is submitted to the Secretary of State, and monthly reports during the circulation period. Colo. Rev. Stat. 1 40-121 set The Tenth Circuit invalidated the final report provision only insofar as it compels disclosure of information specific to each paid circulator, in particular, the circulators' names and addresses and the total amount paid to each circulator. See -1105. As modified by the Court of Appeals decision, the final report will reveal the amount paid per petition signature, and thus, effectively, the total amount paid to petition circulators. See The Court of Appeals next addressed Colorado's provision demanding "detailed monthly disclosures." In a concise paragraph, the court rejected compelled disclosure of the name and addresses (residential and business) of each paid circulator, and the amount of money paid and owed to each circulator, during the month in question. See Colo. Rev. Stat. 1-40-121(2)(b), (d) The Court of Appeals identified no infirmity in the required reporting of petition proponents' names, or in the call for disclosure of proposed ballot measures for which paid circulators were engaged. See 1-40-121(2)(a), (c). We express no opinion whether these monthly report prescriptions, standing alone, would survive review. In ruling on Colorado's disclosure requirements for paid circulations, the Court of Appeals looked primarily to our *202 decision in In that decision, we stated that "exacting scrutiny" is necessary when compelled disclosure of campaign-related payments is at issue. See We nevertheless upheld, as substantially related to important governmental interests, the recordkeeping, reporting, and disclosure provisions of the Federal Election Campaign Act of 1971, as amended, 2 U.S. C. 431 et seq. (1970 ed., Supp. IV). See -68, 84. We explained in that disclosure provides the electorate |
Justice Ginsburg | 1,999 | 5 | majority | Buckley v. American Constitutional Law Foundation, Inc. | https://www.courtlistener.com/opinion/118254/buckley-v-american-constitutional-law-foundation-inc/ | -68, 84. We explained in that disclosure provides the electorate with information "as to where political campaign money comes from and how it is spent," thereby aiding electors in evaluating those who seek their vote. We further observed that disclosure requirements "deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity." ; see also Mindful of the Tenth Circuit did not upset Colorado's disclosure requirements "as a whole." But see post, at 233 (Rehnquist, C. J., dissenting). Notably, the Court of Appeals upheld the State's requirements for disclosure of payors, in particular, proponents' names and the total amount they have spent to collect signatures for their petitions. See -1105. In this regard, the State and supporting amici stress the importance of disclosure as a control or check on domination of the initiative process by affluent special interest groups. See Reply Brief 15 ("[T]here are increasingly more initiatives that are the product of large monied interests."); Brief for Council of State Governments et al. as Amici Curiae 3 ("Today the initiative and referendum process is dominated by money and professional firms."). Disclosure of the names of initiative sponsors, and of the amounts they have spent gathering *203 support for their initiatives, responds to that substantial state interest. See ; cf. this Court's Rule 37.6 (requiring disclosure of "every person or entity who made a monetary contribution to the preparation or submission of the brief"). Through the disclosure requirements that remain in place, voters are informed of the source and amount of money spent by proponents to get a measure on the ballot; in other words, voters will be told "who has proposed [a measure]," and "who has provided funds for its circulation." See post, at 224 (O'Connor, J., concurring in judgment in part and dissenting in part). The added benefit of revealing the names of paid circulators and amounts paid to each circulator, the lower courts fairly determined from the record as a whole, is hardly apparent and has not been demonstrated.[22] We note, furthermore, that ballot initiatives do not involve the risk of "quid pro quo" corruption present when money is paid to, or for, candidates. See -428 ); n. 15. In addition, as we stated in "the risk of fraud or corruption, or the appearance thereof, is more remote at the petition stage of an initiative than at the time of balloting." Finally, absent evidence to the contrary, "we are not prepared to assume that a professional circulatorwhose qualifications for similar future assignments may *204 well depend on a |
Justice Ginsburg | 1,999 | 5 | majority | Buckley v. American Constitutional Law Foundation, Inc. | https://www.courtlistener.com/opinion/118254/buckley-v-american-constitutional-law-foundation-inc/ | for similar future assignments may *204 well depend on a reputation for competence and integrity is any more likely to accept false signatures than a volunteer who is motivated entirely by an interest in having the proposition placed on the ballot."[23] In sum, we agree with the Court of Appeals appraisal: Listing paid circulators and their income from circulation "forc[es] paid circulators to surrender the anonymity enjoyed by their volunteer counterparts," ;[24] no more than tenuously related to the substantial interests disclosure serves, Colorado's reporting requirements, to the extent that they target paid circulators, "fai[l] exacting scrutiny," VI Through less problematic measures, Colorado can and does meet the State's substantial interests in regulating the ballot-initiative process. Colorado aims to protect the integrity of the initiative process, specifically, to deter fraud *205 and diminish corruption. See Brief for Petitioner 24, 42, 45; Reply Brief 13, 14, 17. To serve that important interest, as we observed in Colorado retains an arsenal of safeguards. See 486 U. S.,-427; 120 F.3d, 1105; see, e. g., Colo. Rev. Stat. 1-40-130(1)(b) ; 1-40-132(1) (initiative-petition section deemed void if circulator has violated any provision of the laws governing circulation). To inform the public "where [the] money comes from," 424 U. S., we reiterate, the State legitimately requires sponsors of ballot initiatives to disclose who pays petition circulators, and how much. See To ensure grass roots support, Colorado conditions placement of an initiative proposal on the ballot on the proponent's submission of valid signatures representing five percent of the total votes cast for all candidates for Secretary of State at the previous general election. Colo. Const., Art. V, 1(2); Colo. Rev. Stat. 1-40-109(1) ; see 486 U. S., -426; Furthermore, in aid of efficiency, veracity, or clarity, Colorado has provided for an array of process measures not contested here by ACLF. These measures prescribe, inter alia, a single subject per initiative limitation, Colo. Rev. Stat. 1-40-106.5(1)(a) a signature verification method, 1-40-116, a large, plainEnglish notice alerting potential signers of petitions to the law's requirements, 1-40-110(1), and the text of the affidavit to which all circulators must subscribe, 1-40-111(2). * * * For the reasons stated, we conclude that the Tenth Circuit correctly separated necessary or proper ballot-access controls from restrictions that unjustifiably inhibit the circulation of ballot-initiative petitions. Therefore, the judgment of the Court of Appeals is Affirmed. *206 Justice Thomas, concurring in the judgment. |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | In assessing claims of race discrimination, “[c]ontext matters.” In 1972, Congress extended Title VII of the Civil Rights Act of 1964 to cover public employment. At that time, municipal fire departments across the country, including New Haven’s, pervasively discriminated against minori ties. The extension of Title VII to cover jobs in firefighting effected no overnight change. It took decades of persistent effort, advanced by Title VII litigation, to open firefighting posts to members of racial minorities. The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them. New Haven maintains that it refused to certify the test results because it believed, for good cause, that it would be vulnerable to a Title VII disparate-impact suit if it relied on those results. The Court today holds that New 2 RICCI v. DESTEFANO GINSBURG, J., dissenting Haven has not demonstrated “a strong basis in evidence” for its plea. Ante, at 2. In so holding, the Court pretends that “[t]he City rejected the test results solely because the higher scoring candidates were white.” Ante, at 20. That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.1 By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served—as it was in the days of undisguised discrimination—by a fire de partment in which members of racial and ethnic minori ties are rarely seen in command positions. In arriving at its order, the Court barely acknowledges the pathmarking decision in which explained the centrality of the disparate-impact concept to effective enforcement of Title VII. The Court’s order and opinion, I anticipate, will not have staying power. I A The Court’s recitation of the facts leaves out important parts of the story. Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. In extending Title VII to state and local govern ment employers in 1972, Congress took note of a U. S. —————— 1 Never mind the flawed tests New Haven used and the better selec tion methods used elsewhere, JUSTICE ALITO’s concurring opinion urges. Overriding all else, racial politics, fired up by a strident African- American pastor, were at work in New Haven. See ante, at 4–9. Even a detached and disinterested observer, |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | See ante, at 4–9. Even a detached and disinterested observer, however, would have every reason to ask: Why did such racially skewed results occur in New Haven, when better tests likely would have produced less dispropor tionate results? Cite as: 557 U. S. (2009) 3 GINSBURG, J., dissenting Commission on Civil Rights (USCCR) report finding racial discrimination in municipal employment even “more pervasive than in the private sector.” H. R. Rep. No. 92– p. 17 According to the report, overt racism was partly to blame, but so too was a failure on the part of municipal employers to apply merit-based employment principles. In making hiring and promotion decisions, public employers often “rel[ied] on criteria unrelated to job performance,” including nepotism or political patronage. 118 Cong. Rec. 1817 (1972). Such flawed selection meth ods served to entrench preexisting racial hierarchies. The USCCR report singled out police and fire departments for having “[b]arriers to equal employment greater than in any other area of State or local government,” with African-Americans “hold[ing] almost no positions in the officer ranks.” See National Commission on Fire Prevention and Control, America Burning 5 (“Racial minorities are under-represented in the fire de partments in nearly every community in which they live.”). The city of New Haven (City) was no exception. In the early 1970’s, African-Americans and Hispanics composed 30 percent of New Haven’s population, but only 3.6 per cent of the City’s 502 firefighters. The racial disparity in the officer ranks was even more pronounced: “[O]f the 107 officers in the Department only one was black, and he held the lowest rank above private.” Firebird Soc. of New Haven, Inc. v. New Haven Bd. of Fire Comm’rs, 66 F. R. D. 457, 460 Following a lawsuit and settlement agreement, see ib the City initiated efforts to increase minority representa tion in the New Haven Fire Department (Department). Those litigation-induced efforts produced some positive change. New Haven’s population includes a greater pro portion of minorities today than it did in the 1970’s: Nearly 40 percent of the City’s residents are African 4 RICCI v. DESTEFANO GINSBURG, J., dissenting American and more than 20 percent are Hispanic. Among entry-level firefighters, minorities are still underrepre sented, but not starkly so. As of 2003, African-Americans and Hispanics constituted 30 percent and 16 percent of the City’s firefighters, respectively. In supervisory positions, however, significant disparities remain. Overall, the senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Department’s 21 fire captains is African-American. See App. in No. 06–4996–cv (CA2), p. A1588 (hereinafter CA2 App.). |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | App. in No. 06–4996–cv (CA2), p. A1588 (hereinafter CA2 App.). It is against this backdrop of entrenched inequality that the promotion process at issue in this litigation should be assessed. B By order of its charter, New Haven must use competi tive examinations to fill vacancies in fire officer and other civil-service positions. Such examinations, the City’s civil service rules specify, “shall be practical in nature, shall relate to matters which fairly measure the relative fitness and capacity of the applicants to discharge the duties of the position which they seek, and shall take into account character, training, experience, physical and mental fit ness.” at A331. The City may choose among a variety of testing methods, including written and oral exams and “[p]erformance tests to demonstrate skill and ability in performing actual work.” at A332. New Haven, the record indicates, did not closely con sider what sort of “practical” examination would “fairly measure the relative fitness and capacity of the applicants to discharge the duties” of a fire officer. Instead, the City simply adhered to the testing regime outlined in its two decades-old contract with the local firefighters’ union: a written exam, which would account for 60 percent of an applicant’s total score, and an oral exam, which would account for the remaining 40 percent. at A1045. In Cite as: 557 U. S. (2009) 5 GINSBURG, J., dissenting soliciting bids from exam development companies, New Haven made clear that it would entertain only “proposals that include a written component that will be weighted at 60%, and an oral component that will be weighted at 40%.” at A342. Chad Legel, a representative of the winning bidder, Industrial/Organizational Solutions, Inc. (IOS), testified during his deposition that the City never asked whether alternative methods might better measure the qualities of a successful fire officer, including leader ship skills and command presence. See at A522 (“I was under contract and had responsibility only to create the oral interview and the written exam.”). Pursuant to New Haven’s specifications, IOS developed and administered the oral and written exams. The results showed significant racial disparities. On the lieutenant exam, the pass rate for African-American candidates was about one-half the rate for Caucasian candidates; the pass rate for Hispanic candidates was even lower. On the captain exam, both African-American and Hispanic candi dates passed at about half the rate of their Caucasian counterparts. See App. 225–226. More striking still, although nearly half of the 77 lieutenant candidates were African-American or Hispanic, none would have been eligible for promotion to the eight positions then vacant. The highest scoring African-American |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | to the eight positions then vacant. The highest scoring African-American candidate ranked 13th; the top Hispanic candidate was 26th. As for the seven then-vacant captain positions, two Hispanic candi dates would have been eligible, but no African-Americans. The highest scoring African-American candidate ranked 15th. See at 218–219. These stark disparities, the Court acknowledges, suf ficed to state a prima facie case under Title VII’s dispa rate-impact See ante, at 27 (“The pass rates of minorities f[e]ll well below the 80-percent standard set by the [Equal Employment Opportunity Commission (EEOC)] to implement the disparate-impact provision of 6 RICCI v. DESTEFANO GINSBURG, J., dissenting Title VII.”). New Haven thus had cause for concern about the prospect of Title VII litigation and liability. City officials referred the matter to the New Haven Civil Ser vice Board (CSB), the entity responsible for certifying the results of employment exams. Between January and March 2004, the CSB held five public meetings to consider the proper course. At the first meeting, New Haven’s Corporation Counsel, Thomas Ude, described the legal standard governing Title VII disparate impact claims. Statistical imbalances alone, Ude correctly recognized, do not give rise to liability. Instead, presented with a disparity, an employer “has the opportunity and the burden of proving that the test is job-related and consis tent with business necessity.” CA2 App. A724. A Title VII plaintiff may attempt to rebut an employer’s showing of job-relatedness and necessity by identifying alternative selection methods that would have been at least as valid but with “less of an adverse or disparate or discriminatory effect.” See at A738. Accordingly, the CSB Commissioners understood, their principal task was to decide whether they were confident about the reliability of the exams: Had the exams fairly measured the qualities of a successful fire officer despite their disparate results? Might an alternative examination process have identified the most qualified candidates without creating such sig nificant racial imbalances? Seeking a range of input on these questions, the CSB heard from test takers, the test designer, subject-matter experts, City officials, union leaders, and community members. Several candidates for promotion, who did not yet know their exam results, spoke at the CSB’s first two meetings. Some candidates favored certification. The exams, they emphasized, had closely tracked the assigned study materials. Having invested substantial time and money to prepare themselves for the test, they felt it would be unfair to scrap the results. See, e.g., at Cite as: 557 U. S. (2009) 7 GINSBURG, J., dissenting A772–A773, A785–A789. Other firefighters had a different view. A number of the exam questions, they pointed out, |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | view. A number of the exam questions, they pointed out, were not germane to New Haven’s practices and procedures. See, e.g., at A774–A784. At least two candidates opposed to certifica tion noted unequal access to study materials. Some indi viduals, they asserted, had the necessary books even before the syllabus was issued. Others had to invest substantial sums to purchase the materials and “wait a month and a half for some of the books because they were on back-order.” at A858. These disparities, it was suggested, fell at least in part along racial lines. While many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the over whelming majority of minority applicants were “first generation firefighters” without such support networks. See at A857–A861, A886–A887. A representative of the Northeast Region of the Interna tional Association of Black Professional Firefighters, Donald Day, spoke at the second meeting. Statistical disparities, he told the CSB, had been present in the Department’s previous promotional exams. On earlier tests, however, a few minority candidates had fared well enough to earn promotions. at A828. See App. 218–219. Day contrasted New Haven’s experience with that of nearby Bridgeport, where minority firefighters held one-third of lieutenant and captain positions. Bridgeport, Day observed, had once used a testing process similar to New Haven’s, with a written exam accounting for 70 percent of an applicant’s score, an oral exam for 25 per cent, and seniority for the remaining five percent. CA2 App. A830. Bridgeport recognized, however, that the oral component, more so than the written component, ad dressed the sort of “real-life scenarios” fire officers encoun ter on the at A832. Accordingly, that city “changed the relative weights” to give primacy to the oral 8 RICCI v. DESTEFANO GINSBURG, J., dissenting exam. Since that time, Day reported, Bridgeport had seen minorities “fairly represented” in its exam re sults. The CSB’s third meeting featured IOS representative Legel, the leader of the team that had designed and ad ministered the exams for New Haven. Several City offi cials participated in the discussion. Legel described the exam development process in detail. The City, he recounted, had set the “parameters” for the exams, specifi cally, the requirement of written and oral components with a 60/40 weighting. at A923, A974. For security reasons, Department officials had not been permitted to check the content of the questions prior to their admini stration. Instead, IOS retained a senior fire officer from Georgia to review the exams “for content and fidelity to the source material.” at A936. Legel defended the exams as “facially neutral,” |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | material.” at A936. Legel defended the exams as “facially neutral,” and stated that he “would stand by the[ir] validity.” at A962. City officials did not dispute the neutrality of IOS’s work. But, they cau tioned, even if individual exam questions had no intrinsic bias, the selection process as a whole may nevertheless have been deficient. The officials urged the CSB to consult with experts about the “larger picture.” at A1012. At its fourth meeting, CSB solicited the views of three individuals with testing-related expertise. Dr. Christo pher Hornick, an industrial/organizational psychology consultant with 25 years’ experience with police and fire fighter testing, described the exam results as having “relatively high adverse impact.” at A1028. Most of the tests he had developed, Hornick stated, exhibited “significantly and dramatically less adverse impact.” at A1029. Hornick downplayed the notion of “facial neu trality.” It was more important, he advised the CSB, to consider “the broader issue of how your procedures and your rules and the types of tests that you are using are contributing to the adverse impact.” at A1038. Cite as: 557 U. S. (2009) 9 GINSBURG, J., dissenting Specifically, Hornick questioned New Haven’s union prompted 60/40 written/oral examination structure, noting the availability of “different types of testing procedures that are much more valid in terms of identifying the best potential supervisors in [the] fire department.” at A1032. He suggested, for example, “an assessment center process, which is essentially an opportunity for candidates to demonstrate how they would address a particular problem as opposed to just verbally saying it or identifying the correct option on a written test.” at A1039–A1040. Such selection processes, Hornick said, better “identif[y] the best possible people” and “demonstrate dramatically less adverse impacts.” Hornick added: “I’ve spoken to at least 10,000, maybe 15,000 fire fighters in group settings in my consulting practice and I have never one time ever had anyone in the fire service say to me, ‘Well, the person who answers— gets the highest score on a written job knowledge, multiple-guess test makes the best company officer.’ We know that it’s not as valid as other procedures that exist.” at A1033. See at A1042–A (“I think a person’s leader ship skills, their command presence, their interpersonal skills, their management skills, their tactical skills could have been identified and evaluated in a much more appro priate way.”). Hornick described the written test itself as “reasonably good,” at A1041, but he criticized the decision not to allow Department officials to check the content. According to Hornick, this “inevitably” led to “test[ing] for processes and procedures that don’t necessarily |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | led to “test[ing] for processes and procedures that don’t necessarily match up into the department.” at A1034–A1035. He preferred “experts from within the department who have signed confidential ity agreements to make sure that the terminology and equipment that’s being identified from standardized read 10 RICCI v. DESTEFANO GINSBURG, J., dissenting ing sources apply to the department.” at A1035. Asked whether he thought the City should certify the results, Hornick hedged: “There is adverse impact in the test. That will be identified in any proceeding that you have. You will have industrial psychology experts, if it goes to court, on both sides. And it will not be a pretty or comfortable position for anyone to be in.” at A1040– A1041. Perhaps, he suggested, New Haven might certify the results but immediately begin exploring “alternative ways to deal with these issues” in the future. at A1041. The two other witnesses made relatively brief appear ances. Vincent Lewis, a specialist with the Department of Homeland Security and former fire officer in Michigan, believed the exams had generally tested relevant material, although he noted a relatively heavy emphasis on ques tions pertaining to being an “apparatus driver.” He sug gested that this may have disadvantaged test takers “who had not had the training or had not had an opportunity to drive the apparatus.” at A10. He urged the CSB to consider whether candidates had, in fact, enjoyed equal access to the study materials. Janet Helms, a professor of counseling psychology at Boston College, observed that two-thirds of the incumbent fire officers who submitted job analyses to IOS during the exam design phase were Caucasian. Members of different racial groups, Helms told the CSB, sometimes do their jobs in different ways, “often because the experiences that are open to white male firefighters are not open to members of these other under-represented groups.” CA2 App. A1063– A1064. The heavy reliance on job analyses from white firefighters, she suggested, may thus have introduced an element of bias. at A1063. The CSB’s fifth and final meeting began with state ments from City officials recommending against certifica tion. Ude, New Haven’s counsel, repeated the applicable Cite as: 557 U. S. (2009) 11 GINSBURG, J., dissenting disparate-impact standard: “[A] finding of adverse impact is the beginning, not the end, of a review of testing procedures. Where a procedure demonstrates adverse impact, you look to how closely it is related to the job that you’re looking to fill and you look at whether there are other ways to test for those qualities, those traits, those po sitions that are equally |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | those qualities, those traits, those po sitions that are equally valid with less adverse im pact.” at A1100–A1101. New Haven, Ude and other officials asserted, would be vulnerable to Title VII liability under this standard. Even if the exams were “facially neutral,” significant doubts had been raised about whether they properly assessed the key attributes of a successful fire officer. at A1103. See at A1125 (“Upon close reading of the exams, the questions themselves would appear to test a candidate’s ability to memorize textbooks but not necessarily to iden tify solutions to real problems on the fire ground.”). More over, City officials reminded the CSB, Hornick and others had identified better, less discriminatory selection meth ods–such as assessment centers or exams with a more heavily weighted oral component. at A1108–A1109, A1129–A1130. After giving members of the public a final chance to weigh in, the CSB voted on certification, dividing 2 to 2. By rule, the result was noncertification. Voting no, Com missioner Webber stated, “I originally was going to vote to certify. But I’ve heard enough testimony here to give me great doubts about the test itself and some of the procedures. And I believe we can do better.” at A1157. Commissioner Tirado likewise concluded that the “flawed” testing process counseled against certification. at A1158. Chairman Segaloff and Commissioner Caplan voted to certify. According to Segaloff, the testi mony had not “compelled [him] to say this exam was not 12 RICCI v. DESTEFANO GINSBURG, J., dissenting job-related,” and he was unconvinced that alternative selection processes would be “less discriminatory.” at A1159–A1160. Both Segalhoff and Caplan, however, urged the City to undertake civil service reform. at A1150–A1154. C Following the CSB’s vote, petitioners—17 white fire fighters and one Hispanic firefighter, all of whom had high marks on the exams—filed suit in the United States Dis trict Court for the District of Connecticut. They named as defendants—respondents here—the City, several City officials, a local political activist, and the two CSB mem bers who voted against certifying the results. By opposing certification, petitioners alleged, respondents had dis criminated against them in violation of Title VII’s dispa rate-treatment provision and the Fourteenth Amend ment’s Equal Protection Clause. The decision not to certify, respondents answered, was a lawful effort to com ply with Title VII’s disparate-impact provision and thus could not have run afoul of Title VII’s prohibition of dispa rate treatment. Characterizing respondents’ stated ra tionale as a mere pretext, petitioners insisted that New Haven would have had a solid defense to any disparate impact suit. In a decision summarily affirmed by the Court |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | impact suit. In a decision summarily affirmed by the Court of Ap peals, the District Court granted summary judgment for respondents. aff’d, 530 F.3d 87 (CA2 2008) (per curiam). Under Second Circuit precedent, the District Court explained, “the intent to remedy the disparate impact” of a promotional exam “is not equivalent to an intent to discriminate against non minority applicants.” ). Rejecting petitioners’ pretext argument, the court ob served that the exam results were sufficiently skewed “to Cite as: 557 U. S. (2009) 13 GINSBURG, J., dissenting make out a prima facie case of discrimination” under Title VII’s disparate-impact Had New Haven gone forward with certification and been sued by aggrieved minority test takers, the City would have been forced to defend tests that were presumptively invalid. And, as the CSB testimony of Hornick and others indicated, overcoming that presumption would have been no easy task. at 153–156. Given Title VII’s preference for voluntary compliance, the court held, New Haven could lawfully discard the disputed exams even if the City had not definitively “pinpoint[ed]” the source of the disparity and “ha[d] not yet formulated a better selection method.” Respondents were no doubt conscious of race during their decisionmaking process, the court acknowledged, but this did not mean they had engaged in racially disparate treatment. The conclusion they had reached and the action thereupon taken were race-neutral in this sense: “[A]ll the test results were discarded, no one was pro moted, and firefighters of every race will have to partici pate in another selection process to be considered for promotion.” New Haven’s action, which gave no individual a preference, “was ‘simply not analogous to a quota system or a minority set-aside where candidates, on the basis of their race, are not treated uniformly.’ ” at 157 (quoting ). For these and other reasons, the court rejected petitioners’ equal protection claim. II A Title VII became effective in July 1965. Employers responded to the law by eliminating rules and practices that explicitly barred racial minorities from “white” jobs. But removing overtly race-based job classifications did not usher in genuinely equal opportunity. More subtle—and 14 RICCI v. DESTEFANO GINSBURG, J., dissenting sometimes unconscious—forms of discrimination replaced once undisguised restrictions. In this Court responded to that reality and supplied important guidance on Title VII’s mission and scope. Congress, the landmark decision recognized, aimed beyond “disparate treatment”; it targeted “disparate impact” as well. Title VII’s original text, it was plain to the Court, “proscribe[d] not only overt discrimination but practices that are fair in form, but discriminatory in operation.”2 Only by ignoring could one maintain |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | but discriminatory in operation.”2 Only by ignoring could one maintain that inten tionally disparate treatment alone was Title VII’s “origi nal, foundational prohibition,” and disparate impact a mere afterthought. ante, at 21. addressed Duke Power Company’s policy that applicants for positions, save in the company’s labor de partment, be high school graduates and score satisfacto rily on two professionally prepared aptitude tests. “[T]here was no showing of a discriminatory purpose in the adoption of the diploma and test requirements.” 401 U. S., at 428. The policy, however, “operated to render ineligible a markedly disproportionate number of [African- Americans].” At the time of the litigation, in —————— 2 The Court’s disparate-impact analysis rested on two provisions of Title VII: which made it unlawful for an employer “to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or other wise adversely affect his status as an employee, because of such indi vidual’s race, color, religion, sex, or national origin”; and which permitted employers “to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discrimi nate because of race, color, religion, sex or national origin.” v. Duke Power Co., (quoting 42 U.S. C. (h) (1964 ed.)). See – 436 (explaining that authorizes only tests that are “demonstra bly a reasonable measure of job performance”). Cite as: 557 U. S. (2009) 15 GINSBURG, J., dissenting North Carolina, where the Duke Power plant was located, 34 percent of white males, but only 12 percent of African- American males, had high school diplomas. n. 6. African-Americans failed the aptitude tests at a significantly higher rate than whites. Neither re quirement had been “shown to bear a demonstrable rela tionship to successful performance of the jobs for which it was used.” The Court unanimously held that the company’s di ploma and test requirements violated Title VII. “[T]o achieve equality of employment opportunities,” the Court comprehended, Congress “directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” 432. That meant “unnecessary barriers to employment” must fall, even if “neutral on their face” and “neutral in terms of intent.” 431. “The touchstone” for determining whether a test or qualification meets Title VII’s measure, the Court said, is not “good intent or the absence of discriminatory intent”; it is “business necessity.” 432. Matching proce dure to substance, the Court observed, Congress “placed on the employer the burden of showing that any given requirement |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | the employer the burden of showing that any given requirement ha[s] a manifest relationship to the employment in question.” In Albe Paper the Court, again without dissent, elaborated on When an employment test “select[s] applicants for hire or promotion in a racial pattern significantly different from the pool of applicants,” the Court reiterated, the employer must demonstrate a “manifest relationship” between test and Such a showing, the Court cautioned, does not necessarily mean the employer pre vails: “[I]t remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would serve the employer’s legitimate interest in ‘efficient and trustworthy workman 16 RICCI v. DESTEFANO GINSBURG, J., dissenting ship.’ ” Federal trial and appellate courts applied and Albe to disallow a host of hiring and promotion practices that “operate[d] as ‘built in headwinds’ for mi nority groups.” 401 U. S., Practices dis criminatory in effect, courts repeatedly emphasized, could be maintained only upon an employer’s showing of “an overriding and compelling business purpose.” Chrisner v. Complete Auto Transit, Inc., 645 F.2d 12, (CA6 1981).3 That a practice served “legitimate manage ment functions” did not, it was generally understood, suffice to establish business necessity. 840–841 (CA10 1981) (internal quotation marks omitted). Among selection methods cast aside for lack of a “manifest rela tionship” to job performance were a number of written —————— 3 See (“a discriminatory employment practice must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge”); 840– 841 (CA10 1981) (“The term ‘necessity’ connotes that the exclusionary practice must be shown to be of great importance to job performance.”); (“the proper standard for determining whether ‘business necessity’ justifies a practice which has a racially discriminatory result is not whether it is justified by routine business considerations but whether there is a compelling need for the employer to maintain that practice and whether the employer can prove there is no alternative to the chal lenged practice”); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 244, n. 87 (“this doctrine of business necessity connotes an irresistible demand” (internal quotation marks omitted)); United (an exclusionary practice “must not only directly foster safety and efficiency of a plant, but be essential to those goals”); Robinson v. Lorillard Corp., (“The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business.”). Cite as: 557 U. S. (2009) 17 GINSBURG, J., dissenting hiring and promotional examinations for firefighters.4 Moving in a different direction, |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | and promotional examinations for firefighters.4 Moving in a different direction, in Wards Cove Packing a bare majority of this Court significantly modified the -Albe delinea tion of Title VII’s disparate-impact proscription. As to business necessity for a practice that disproportionately excludes members of minority groups, Wards Cove held, the employer bears only the burden of production, not the burden of –660. And in place of the instruction that the challenged practice “must have a manifest relationship to the employment in question,” 401 U. S., Wards Cove said that the prac tice would be permissible as long as it “serve[d], in a sig nificant way, the legitimate employment goals of the employer.” In response to Wards Cove and “a number of [other] recent decisions by the United States Supreme Court that sharply cut back on the scope and effectiveness of [civil rights] laws,” Congress enacted the Civil Rights Act of 1991. H. R. Rep. No. 102–40, pt. 2, p. 2 (1991). Among the 1991 alterations, Congress formally codified the disparate impact component of Title VII. In so amending the stat ute, Congress made plain its intention to restore “the concepts of ‘business necessity’ and ‘job related’ enunciated by the Supreme Court in and in other Supreme Court decisions prior to Wards Cove Packing” Once a complaining party demonstrates that an employment —————— 4 See,e.g., vacated, opinion reinstated, ; Vulcan Pioneers, ; Guardians Assn. of N. Y. City Police ; Ensley Branch of ; Firefighters Inst. for Racial Equality v. St. Louis, ; Boston Chapter, NAACP v. Beecher, 18 RICCI v. DESTEFANO GINSBURG, J., dissenting practice causes a disparate impact, amended Title VII states, the burden is on the employer “to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” 42 U.S. C. If the employer carries that substantial burden, the complainant may respond by identifying “an alternative employment practice” which the employer “refuses to adopt.” (C). B Neither Congress’ enactments nor this Court’s Title VII precedents (including the now-discredited decision in Wards Cove) offer even a hint of “conflict” between an employer’s obligations under the statute’s disparate treatment and disparate-impact provisions. ante, at 20. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending workplace discrimination and promoting genuinely equal opportu nity. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 Yet the Court today sets at odds the statute’s core direc tives. When an employer changes an employment practice in an effort to comply with Title VII’s disparate-impact provision, the Court reasons, it acts |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | with Title VII’s disparate-impact provision, the Court reasons, it acts “because of race”— something Title VII’s disparate-treatment provision, see generally forbids. Ante, at 20. This char acterization of an employer’s compliance-directed action shows little attention to Congress’ design or to the line of cases Congress recognized as pathmarking. “[O]ur task in interpreting separate provisions of a single Act is to give the Act the most harmonious, compre hensive meaning possible in light of the legislative policy and purpose.” (internal quotation marks omitted). A particular phrase need not “extend to the outer limits of its definitional possibilities” if an incon Cite as: 557 U. S. (2009) 19 GINSBURG, J., dissenting gruity would result. Dolan v. Postal Service, 546 U.S. 481, 486 Here, Title VII’s disparate-treatment and disparate-impact proscriptions must be read as complementary. In codifying the and Albe instructions, Congress declared unambiguously that selection criteria operating to the disadvantage of minority group members can be retained only if justified by business necessity.5 In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination “because of” race. A reasonable endeavor to comply with the law and to ensure that qualified candidates of all races have a fair opportunity to compete is simply not what Congress meant to interdict. I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity. (observing that it accords with “clear statutory policy” for employers “to prevent violations” and “make reasonable efforts to discharge their duty” under Title VII). EEOC’s interpretative guidelines are corroborative. “[B]y the enactment of title VII,” the guidelines state, “Congress did not intend to expose those who comply with the Act to charges that they are violating the very statute they are seeking to implement.” (a) (2008). Recognizing EEOC’s “enforcement responsibility” —————— 5 What was the “business necessity” for the tests New Haven used? How could one justify, e.g., the 60/40 written/oral ratio, see at 4– 5, 7–8, under that standard? Neither the Court nor the concurring opinions attempt to defend the ratio. 20 RICCI v. DESTEFANO GINSBURG, J., dissenting under Title VII, we have previously accorded the Commis sion’s position respectful consideration. See, e.g., Albe 422 U. S., ; Yet the Court today does not so much as mention EEOC’s counsel. Our precedents defining the contours of |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | as mention EEOC’s counsel. Our precedents defining the contours of Title VII’s disparate-treatment prohibition further confirm the ab sence of any intra-statutory discord. In we upheld a municipal employer’s voluntary affirmative action plan against a disparate-treatment challenge. Pursuant to the plan, the employer selected a woman for a road-dispatcher position, a job category traditionally regarded as “male.” A male applicant who had a slightly higher interview score brought suit under Title VII. This Court rejected his claim and approved the plan, which allowed consideration of gender as “one of numerous fac tors.” Such consideration, we said, is “fully consistent with Title VII” because plans of that order can aid “in eliminating the vestiges of discrimination in the workplace.” This litigation does not involve affirmative action. But if the voluntary affirmative action at issue in Johnson does not discriminate within the meaning of Title VII, neither does an employer’s reasonable effort to comply with Title VII’s disparate-impact provision by refrain- ing from action of doubtful consistency with business necessity. C To “reconcile” the supposed “conflict” between disparate treatment and disparate impact, the Court offers an enig matic standard. Ante, at 20. Employers may attempt to comply with Title VII’s disparate-impact provision, the Court declares, only where there is a “strong basis in evidence” documenting the necessity of their action. Ante, at 22. The Court’s standard, drawn from inapposite equal Cite as: 557 U. S. (2009) 21 GINSBURG, J., dissenting protection precedents, is not elaborated. One is left to wonder what cases would meet the standard and why the Court is so sure this case does not. 1 In construing Title VII, I note preliminarily, equal protection doctrine is of limited utility. The Equal Protec tion Clause, this Court has held, prohibits only intentional discrimination; it does not have a disparate-impact com ponent. See Personnel Administrator of ; Washington v. Davis, 426 U.S. 229, 239 (1976). Title VII, in contrast, aims to eliminate all forms of employment discrimination, unintentional as well as deliberate. Until today, cf. ante, at 25; ante, p. 1 (SCALIA, J., concurring), this Court has never questioned the constitutionality of the disparate-impact component of Title VII, and for good reason. By instructing employers to avoid needlessly exclusionary selection processes, Title VII’s disparate-impact provision calls for a “race-neutral means to increase minority participation”—something this Court’s equal protection precedents encourage. See Adarand Constructors, 5 U.S. 200, (1995) ). “The very radicalism of holding dispa rate impact doctrine unconstitutional as a matter of equal protection,” moreover, “suggests that only a very uncom promising court would issue such a decision.” Primus, Equal Protection |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | promising court would issue such a decision.” Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493, 585 The cases from which the Court draws its strong-basis in-evidence standard are particularly inapt; they concern the constitutionality of absolute racial preferences. See (plurality opinion) (invalidating a school district’s plan to lay off nonminority teachers while retaining minority teachers with less seniority); – 22 RICCI v. DESTEFANO GINSBURG, J., dissenting (rejecting a set-aside program for minority contractors that operated as “an unyielding racial quota”). An em ployer’s effort to avoid Title VII liability by repudiating a suspect selection method scarcely resembles those cases. Race was not merely a relevant consideration in and ; it was the decisive factor. Observance of Title VII’s disparate-impact provision, in contrast, calls for no racial preference, absolute or otherwise. The very purpose of the provision is to ensure that individuals are hired and promoted based on qualifications manifestly necessary to successful performance of the job in question, qualifica tions that do not screen out members of any race.6 2 The Court’s decision in this litigation underplays a dominant Title VII theme. This Court has repeatedly emphasized that the statute “should not be read to thwart” efforts at voluntary compliance. Johnson, 480 U. S., at 630. Such compliance, we have explained, is “the preferred means of achieving [Title VII’s] objectives.” 5 See (“Dissuading employers from [taking voluntary action] to prevent discrimination in the workplace is di rectly contrary to the purposes underlying Title VII.”); 29 —————— 6 Even in Title VII cases involving race-conscious (or gender conscious) affirmative-action plans, the Court has never proposed a strong-basis-in-evidence standard. In the Court simply examined the municipal employer’s action for reasonableness: “Given the obvious imbalance in the Skilled Craft category, and given the Agency’s commitment to eliminating such imbalances, it was plainly not unreasonable for the Agency to consider as one factor the sex of [applicants] in making its decision.” See Firefighters v. Cleveland, 6 (“Title VII permits employers and unions voluntarily to make use of reasonable race-conscious affirmative action.”). Cite as: 557 U. S. (2009) 23 GINSBURG, J., dissenting CFR The strong-basis-in-evidence standard, however, as barely described in general, and cavalierly applied in this case, makes voluntary compliance a haz ardous venture. As a result of today’s decision, an employer who discards a dubious selection process can anticipate costly disparate treatment litigation in which its chances for success—even for surviving a summary-judgment motion—are highly problematic. Concern about exposure to disparate-impact liability, however well grounded, is insufficient to insulate an employer from attack. Instead, the employer must make |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | insulate an employer from attack. Instead, the employer must make a “strong” showing that (1) its selection method was “not job related and consistent with business necessity,” or (2) that it refused to adopt “an equally valid, less discriminatory alternative.” Ante, at 28. It is hard to see how these requirements differ from demanding that an employer establish “a provable, actual violation” against itself. ante, There is indeed a sharp conflict here, but it is not the false one the Court describes be tween Title VII’s core provisions. It is, instead, the discor dance of the Court’s opinion with the voluntary compli ance ideal. (O’Connor, J., concurring in part and concurring in judgment) (“The imposition of a requirement that public employers make findings that they have engaged in illegal discrimina- tion before they [act] would severely undermine public employers’ incentive to meet voluntarily their civil rights obligations.”).7 —————— 7 Notably,prior decisions applying a strong-basis-in-evidence stan dard have not imposed a burden as heavy as the one the Court imposes today. In the Court found no strong basis in evidence because the City had offered “nothing approaching a prima facie case.” Rich mond v. J. A. Co., The Court did not suggest that anything beyond a prima facie case would have been required. In the context of race-based electoral districting, the Court has indicated that a “strong basis” exists when the “threshold condi 24 RICCI v. DESTEFANO GINSBURG, J., dissenting 3 The Court’s additional justifications for announcing a strong-basis-in-evidence standard are unimpressive. First, discarding the results of tests, the Court suggests, calls for a heightened standard because it “upset[s] an employee’s legitimate expectation.” Ante, at 25. This rationale puts the cart before the horse. The legitimacy of an employee’s expectation depends on the legitimacy of the selection method. If an employer reasonably concludes that an exam fails to identify the most qualified individu als and needlessly shuts out a segment of the applicant pool, Title VII surely does not compel the employer to hire or promote based on the test, however unreliable it may be. Indeed, the statute’s prime objective is to prevent exclusionary practices from “operat[ing] to ‘freeze’ the status quo.” 401 U. S., Second, the Court suggests, anything less than a strong basis-in-evidence standard risks creating “a de facto quota system, in which an employer could discard test re sults with the intent of obtaining the employer’s pre ferred racial balance.” Ante, at 22. Under a reasonable ness standard, however, an employer could not cast aside a selection method based on a statistical disparity alone.8 The employer must have |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | based on a statistical disparity alone.8 The employer must have good cause to believe that the method screens out qualified applicants and would be difficult to justify as grounded in business necessity. —————— tions” for liability are present. 7 U.S. 952, (plurality opinion). 8 Infecting the Court’s entire analysis is its insistence that the City rejected the test results “in sole reliance upon race-based statistics.” Ante, See ante, at 20, 27–28. But as the part of the story the Court leaves out, see at 2–12, so plainly shows—the long history of rank discrimination against African-Americans in the firefighting profession, the multiple flaws in New Haven’s test for promotions— “sole reliance” on statistics certainly is not descriptive of the CSB’s decision. Cite as: 557 U. S. (2009) 25 GINSBURG, J., dissenting Should an employer repeatedly reject test results, it would be fair, I agree, to infer that the employer is simply seek ing a racially balanced outcome and is not genuinely endeavoring to comply with Title VII. D The Court stacks the deck further by denying respon dents any chance to satisfy the newly announced strong basis-in-evidence standard. When this Court formulates a new legal rule, the ordinary course is to remand and allow the lower courts to apply the rule in the first instance. See, e.g., 5 ; I see no good reason why the Court fails to follow that course in this case. Indeed, the sole basis for the Court’s peremptory ruling is the demonstrably false pretension that respondents showed “nothing more” than “a signifi cant statistical disparity.” Ante, at 27–28; see at 24, n. 8. 9 —————— 9 The Court’s refusal to remand for further proceedings deprives respondents of an opportunity to invoke 42 U.S. C. as a shield to liability. Section 2000e–12(b) provides: “In any action or proceeding based on any alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an unlawful em ployment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the [EEOC] Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that (A) after such act or omission, such interpretation or opinion is modified or rescinded or is determined by judicial author ity to be invalid or of no legal effect” Specifically, given the chance, respondents might have called attention to the EEOC guidelines set out in and 1608.4 (2008). |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | to the EEOC guidelines set out in and 1608.4 (2008). The guidelines recognize that employers may “take affirmative action based on an analysis which reveals facts constituting actual or poten tial adverse impact.” If “affirmative action” is in order, so is the lesser step of discarding a dubious selection device. 26 RICCI v. DESTEFANO GINSBURG, J., dissenting III A Applying what I view as the proper standard to the record thus far made, I would hold that New Haven had ample cause to believe its selection process was flawed and not justified by business necessity. Judged by that stan dard, petitioners have not shown that New Haven’s failure to certify the exam results violated Title VII’s disparate treatment 10 The City, all agree, “was faced with a prima facie case of disparate-impact liability,” ante, at 27: The pass rate for minority candidates was half the rate for nonminority candidates, and virtually no minority candidates would have been eligible for promotion had the exam results been certified. Alerted to this stark disparity, the CSB heard expert and lay testimony, presented at public hear ings, in an endeavor to ascertain whether the exams were fair and consistent with business necessity. Its investiga tion revealed grave cause for concern about the exam process itself and the City’s failure to consider alternative selection devices. Chief among the City’s problems was the very nature of the tests for promotion. In choosing to use written and oral exams with a 60/40 weighting, the City simply ad hered to the union’s preference and apparently gave no consideration to whether the weighting was likely to identify the most qualified fire-officer candidates.11 There —————— 10 The lower courts focused on respondents’ “intent” rather than on whether respondents in fact had good cause to act. See 554 F. Supp. 2d 142, 157 Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party. 11 This alone would have posed a substantial problem for New Haven in a disparate-impact suit, particularly in light of the disparate results the City’s scheme had produced in the past. See Under the Cite as: 557 U. S. (2009) 27 GINSBURG, J., dissenting is strong reason to think it was not. Relying heavily on written tests to select fire officers is a questionable practice, to say the least. Successful fire officers, the City’s description of the position makes clear, must have the “[a]bility to lead personnel effectively, |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | makes clear, must have the “[a]bility to lead personnel effectively, maintain discipline, promote harmony, exercise sound judgment, and cooperate with other officials.” CA2 App. A432. These qualities are not well measured by written tests. Testifying before the CSB, Christopher Hornick, an exam-design expert with more than two decades of rele vant experience, was emphatic on this point: Leadership skills, command presence, and the like “could have been identified and evaluated in a much more appropriate way.” at A1042–A. Hornick’s commonsense observation is mirrored in case law and in Title VII’s administrative guidelines. Courts have long criticized written firefighter promotion exams for being “more probative of the test-taker’s ability to recall what a particular text stated on a given topic than of his firefighting or supervisory knowledge and abilities.” —————— Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines), employers must conduct “an investigation of suitable alternative selection procedures.” (B). See Officers for (“be fore utilizing a procedure that has an adverse impact on minorities, the City has an obligation pursuant to the Uniform Guidelines to explore alternative procedures and to implement them if they have less adverse impact and are substantially equally valid”). It is no answer to “pre sume” that the two-decades-old 60/40 formula was adopted for a “ra tional reason” because it “was the result of a union-negotiated collective bargaining agreement.” ante, at 30. That the parties may have been “rational” says nothing about whether their agreed-upon selection process was consistent with business necessity. It is not at all unusual for agreements negotiated between employers and unions to run afoul of Title VII. See, e.g., 497 (an employment practice “is not shielded [from the requirements of Title VII] by the facts that it is the product of collective bargaining and meets the standards of fair representation”). 28 RICCI v. DESTEFANO GINSBURG, J., dissenting Vulcan Pioneers, A fire officer’s job, courts have observed, “involves complex behaviors, good inter personal skills, the ability to make decisions under tre mendous pressure, and a host of other abilities—none of which is easily measured by a written, multiple choice test.” Firefighters Inst. for Racial12 Interpreting the Uniform Guidelines, EEOC and other federal agencies responsible for enforcing equal opportunity employment laws have similarly recognized that, as measures of “interpersonal relations” or “ability to function under danger (e.g., fire fighters),” “[p]encil-and-paper tests generally are not close enough approximations of work behaviors to show content validity.” See 29 CFR Given these unfavorable appraisals, it is unsurprising that most municipal employers do not evaluate their fire —————— 12 See Nash, 837 F. 2d, at 1 (“the examination did |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | See Nash, 837 F. 2d, at 1 (“the examination did not test the one aspect of job performance that differentiated the job of firefighter engineer from fire lieutenant (combat): supervisory skills”); Firefighters Inst. for Racial 2 (“there is no good pen and paper test for evaluating supervisory skills”); Boston Chapter, NAACP, 504 F. 2d, at 1023 (“[T]here is a difference between memorizing fire fighting terminology and being a good fire fighter. If the Boston Red Sox recruited players on the basis of their knowledge of baseball history and vocabulary, the team might acquire [players] who could not bat, pitch or catch.”). 13 (courts must evaluate “the degree to which the nature of the examination procedure approximates the job conditions”). In addition to “content validity,” the Uniform Guidelines discuss “construct validity” and “criterion validity” as means by which an employer might establish the reliability of a selection method. See (B)–(D). Content validity, however, is the only type of validity addressed by the parties and “the only feasible type of validation in these circumstances.” Brief for Industrial-Organizational Psychologists as Amicus Curiae 7, n. 2 (hereinafter I-O Psychologists Brief). Cite as: 557 U. S. (2009) 29 GINSBURG, J., dissenting officer candidates as New Haven does. Although compre hensive statistics are scarce, a 1996 study found that nearly two-thirds of surveyed municipalities used assess ment centers (“simulations of the real world of work”) as part of their promotion processes. P. Lowry, A Survey of the Assessment Center Process in the Public Sector, 25 Public Personnel Management 307, 315 That figure represented a marked increase over the previous decade, see ib so the percentage today may well be even higher. Among municipalities still relying in part on written exams, the median weight assigned to them was 30 percent—half the weight given to New Haven’s written exam. Testimony before the CSB indicated that these alterna tive methods were both more reliable and notably less discriminatory in operation. According to Donald Day of the International Association of Black Professional Fire fighters, nearby Bridgeport saw less skewed results after switching to a selection process that placed primary weight on an oral exam. CA2 App. A830–A832; see –8. And Hornick described assessment centers as “demonstrat[ing] dramatically less adverse impacts” than written exams. CA2 App. A1040.14 Considering the prevalence of these proven alternatives, New Haven was poorly positioned to argue that promotions based on its outmoded and exclusionary selection process qualified as a business necessity. Robinson v. Lorillard Corp., 444 —————— 14 See G. Thornton & D. Rupp, Assessment Centers in Human Resource Management 15 (“Assessment centers predict future success, |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | in Human Resource Management 15 (“Assessment centers predict future success, do not cause adverse impact, and are seen as fair by partici pants.”); W. Cascio & H. Aguinis, Applied Psychology in Human Re source Management 372 (“research has demonstrated that adverse impact is less of a problem in an [assessment center] as compared to an aptitude test”). Firefighters Inst. for Racial Equal ity, 549 F. 2d, at 3 (recommending assessment centers as an alterna tive to written exams). 30 RICCI v. DESTEFANO GINSBURG, J., dissenting F. 2d 791, n. 7 (“It should go without saying that a practice is hardly ‘necessary’ if an alterna tive practice better effectuates its intended purpose or is equally effective but less discriminatory.”).15 Ignoring the conceptual and other defects in New Ha ven’s selection process, the Court describes the exams as “painstaking[ly]” developed to test “relevant” material and on that basis finds no substantial risk of disparate-impact liability. See ante, at 28. Perhaps such reasoning would have sufficed under Wards Cove, which permitted exclu sionary practices as long as they advanced an employer’s “legitimate” But Congress repu diated Wards Cove and reinstated the “business necessity” rule attended by a “manifest relationship” requirement. See 401 U. S., –432. See Like the chess player who tries to win by sweeping the opponent’s pieces off the table, the Court simply shuts from its sight the formidable obstacles New Haven would have faced in defending against a disparate-impact suit. —————— 15 Finding the evidence concerning these alternatives insufficiently developed to “create a genuine issue of fact,” ante, at 32, the Court effectively confirms that an employer cannot prevail under its strong basis-in-evidence standard unless the employer decisively proves a disparate-impact violation against itself. The Court’s specific argu ments are unavailing. First, the Court suggests, changing the oral/written weighting may have violated Title VII’s prohibition on altering test scores. Ante, at 31. No one is arguing, however, that the results of the exams given should have been altered. Rather, the argument is that the City could have availed itself of a better option when it initially decided what selection process to use. Second, with respect to assessment centers, the Court identifies “statements to the CSB indicat[ing] that the Department could not have used [them] for the 2003 examinations.” Ante, at 31–32. The Court comes up with only a single statement on this subject—an offhand remark made by peti tioner Ricci, who hardly qualifies as an expert in testing methods. See ante, at 14. Given the large number of municipalities that regularly use assessment centers, it is impossible to fathom why |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | regularly use assessment centers, it is impossible to fathom why the City, with proper planning, could not have done so as well. Cite as: 557 U. S. (2009) 31 GINSBURG, J., dissenting See Lanning v. Southeastern Pa. Transp. Auth., 181 F.3d 478, 489 (“Judicial application of a standard focusing solely on whether the qualities measured by an exam bear some relationship to the job in question would impermissibly write out the business necessity prong of the Act’s chosen standard.”). That IOS representative Chad Legel and his team may have been diligent in designing the exams says little about the exams’ suitability for selecting fire officers. IOS worked within the City’s constraints. Legel never dis cussed with the City the propriety of the 60/40 weighting and “was not asked to consider the possibility of an as sessment center.” CA2 App. A522. See at A467. The IOS exams, Legel admitted, had not even attempted to assess “command presence”: “[Y]ou would probably be better off with an assessment center if you cared to meas ure that.” at A521. Boston Chapter, NAACP v. Beecher, (“A test fashioned from materials pertaining to the job superfi cially may seem job-related. But what is at issue is whether it demonstrably selects people who will perform better the required on-the-job behaviors.”). In addition to the highly questionable character of the exams and the neglect of available alternatives, the City had other reasons to worry about its vulnerability to dis parate-impact liability. Under the City’s ground rules, IOS was not allowed to show the exams to anyone in the New Haven Fire Department prior to their administra tion. This “precluded [IOS] from being able to engage in [its] normal subject matter expert review process”— something Legel described as “very critical.” CA2 App. A477, A506. As a result, some of the exam questions were confusing or irrelevant, and the exams may have over tested some subject-matter areas while missing others. See, e.g., at A1034–A1035, A10. Testimony before the CSB raised questions concerning unequal access 32 RICCI v. DESTEFANO GINSBURG, J., dissenting to study materials, see at A857–A861, and the poten tial bias introduced by relying principally on job analyses from nonminority fire officers to develop the exams, see at A1063–A1064.16 See 10. The Court criticizes New Haven for failing to obtain a “technical report” from IOS, which, the Court maintains, would have provided “detailed information to establish the validity of the exams.” Ante, at 29. The record does not substantiate this assertion. As Legel testified during his deposition, the technical report merely summarized “the steps that [IOS] took methodologically speaking,” |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | report merely summarized “the steps that [IOS] took methodologically speaking,” and would not have established the exams’ reliability. CA2 App. A461. See at A462 (the report “doesn’t say anything that other documents that already existed wouldn’t say”). In sum, the record solidly establishes that the City had good cause to fear disparate-impact liability. Moreover, the Court supplies no tenable explanation why the evi dence of the tests’ multiple deficiencies does not create at least a triable issue under a strong-basis-in-evidence standard. —————— 16 The I-O Psychologists Brief identifies still other, more technical flaws in the exams that may well have precluded the City from prevail ing in a disparate-impact suit. Notably, the exams were never shown to be suitably precise to allow strict rank ordering of candidates. A difference of one or two points on a multiple-choice exam should not be decisive of an applicant’s promotion chances if that difference bears little relationship to the applicant’s qualifications for the Relat edly, it appears that the line between a passing and failing score did not accurately differentiate between qualified and unqualified candi dates. A number of fire-officer promotional exams have been invali dated on these bases. See, e.g., Guardians Assn., 630 F. 2d, at 105 (“When a cutoff score unrelated to job performance produces disparate racial results, Title VII is violated.”); Vulcan Pioneers, (“[T]he tests here at issue are not appropriate for ranking candidates.”). Cite as: 557 U. S. (2009) 33 GINSBURG, J., dissenting B Concurring in the Court’s opinion, JUSTICE ALITO as serts that summary judgment for respondents would be improper even if the City had good cause for its noncertifi cation decision. A reasonable jury, he maintains, could have found that respondents were not actually motivated by concern about disparate-impact litigation, but instead sought only “to placate a politically important [African- American] constituency.” Ante, at 3. As earlier noted, I would not oppose a remand for further proceedings fair to both sides. See It is the Court that has chosen to short-circuit this litigation based on its pretension that the City has shown, and can show, noth ing more than a statistical disparity. See n. 8, 25. JUSTICE ALITO compounds the Court’s error. Offering a truncated synopsis of the many hours of deliberations undertaken by the CSB, JUSTICE ALITO finds evidence suggesting that respondents’ stated desire to comply with Title VII was insincere, a mere “pretext” for discrimination against white firefighters. Ante, at 2–3. In support of his assertion, JUSTICE ALITO recounts at length the alleged machinations of Rev. Boise Kimber (a local political activist), Mayor John DeStefano, and |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | Boise Kimber (a local political activist), Mayor John DeStefano, and certain members of the mayor’s staff. See ante, at 3–10. Most of the allegations JUSTICE ALITO repeats are drawn from petitioners’ statement of facts they deem undisputed, a statement displaying an adversarial zeal not uncommonly found in such presentations.17 What —————— 17 Some of petitioners’ so-called facts find little support in the record, and many others can scarcely be deemed material. Petitioners allege, for example, that City officials prevented New Haven’s fire chief and assistant chief from sharing their views about the exams with the CSB. App. to Pet. for Cert. in No. 07–1428, p. 228a. None of the materials petitioners cite, however, “suggests” that this proposition is accurate. ante, at 5. In her deposition testimony, City official Karen Dubois- Walton specifically denied that she or her colleagues directed the chief 34 RICCI v. DESTEFANO GINSBURG, J., dissenting cannot credibly be denied, however, is that the decision against certification of the exams was made neither by Kimber nor by the mayor and his staff. The relevant decision was made by the CSB, an unelected, politically insulated body. It is striking that JUSTICE ALITO’s concur rence says hardly a word about the CSB itself, perhaps because there is scant evidence that its motivation was anything other than to comply with Title VII’s disparate impact Notably, petitioners did not even seek to take depositions of the two commissioners who voted against certification. Both submitted uncontested affida vits declaring unequivocally that their votes were “based solely on [their] good faith belief that certification” would have discriminated against minority candidates in viola tion of federal law. CA2 App. A1605, A1611. JUSTICE ALITO discounts these sworn statements, sug gesting that the CSB’s deliberations were tainted by the preferences of Kimber and City officials, whether or not the CSB itself was aware of the taint. Kimber and City officials, JUSTICE ALITO speculates, decided early on to oppose certification and then “engineered” a skewed pres entation to the CSB to achieve their preferred outcome. Ante, —————— and assistant chief not to appear. App. to Pet. for Cert. in No. 07–1428, p. 850a. Moreover, contrary to the insinuations of petitioners and JUSTICE ALITO, the statements made by City officials before the CSB did not emphasize allegations of cheating by test takers. ante, –8. In her deposition, Dubois-Walton acknowledged sharing the cheating allegations not with the CSB, but with a different City commission. App. to Pet. for Cert. in No. 07–1428, p. 837a. JUSTICE ALITO reports that the City’s attorney advised the mayor’s team that the way to convince |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | attorney advised the mayor’s team that the way to convince the CSB not to certify was “to focus on something other than ‘a big discussion re: adverse impact’ law.” Ante, at 8 (quoting App. to Pet. for Cert. in No. 07–1428, p. 458a). This is a misleading abbre viation of the attorney’s advice. Focusing on the exams’ defects and on disparate-impact law is precisely what he recommended. See at 458a–459a. Cite as: 557 U. S. (2009) 35 GINSBURG, J., dissenting As an initial matter, JUSTICE ALITO exaggerates the influence of these actors. The CSB, the record reveals, designed and conducted an inclusive decisionmaking process, in which it heard from numerous individuals on both sides of the certification question. See, e.g., CA2 App. A1090. Kimber and others no doubt used strong words to urge the CSB not to certify the exam results, but the CSB received “pressure” from supporters of certification as well as opponents. ante, at 6. Petitioners, for example, engaged counsel to speak on their behalf before the CSB. Their counsel did not mince words: “[I]f you discard these results,” she warned, “you will get sued. You will force the taxpayers of the city of New Haven into protracted litiga tion.” CA2 App. A816. See at A788. The local firefighters union—an organization required by law to represent all the City’s firefighters—was simi larly outspoken in favor of certification. Discarding the test results, the union’s president told the CSB, would be “totally ridiculous.” at A. He insisted, inaccu rately, that the City was not at risk of disparate-impact liability because the exams were administered pursuant to “a collective bargaining agreement.” at A1137. at 26–27, n. 11. Never mentioned by JUSTICE ALITO in his attempt to show testing expert Christopher Hornick’s alliance with the City, ante, at 8–9, the CSB solicited Hornick’s testimony at the union’s suggestion, not the City’s. CA2 App. A1128. Hornick’s cogent testimony raised substantial doubts about the exams’ reliability. See at 8–10.18 —————— 18 City officials, JUSTICE ALITO reports, sent Hornick newspaper ac counts and other material about the exams prior to his testimony. Ante, at 8. Some of these materials, JUSTICE ALITO intimates, may have given Hornick an inaccurate portrait of the exams. But Hornick’s testimony before the CSB, viewed in full, indicates that Hornick had an accurate understanding of the exam process. Much of Hornick’s analy sis focused on the 60/40 weighting of the written and oral exams, 36 RICCI v. DESTEFANO GINSBURG, J., dissenting There is scant cause to suspect that maneuvering or overheated rhetoric, from either side, prevented the CSB from evenhandedly assessing |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | rhetoric, from either side, prevented the CSB from evenhandedly assessing the reliability of the exams and rendering an independent, good-faith decision on certification. JUSTICE ALITO acknowledges that the CSB had little patience for Kimber’s antics. Ante, at 6–7.19 As to petitioners, Chairman Segaloff—who voted to certify the exam results—dismissed the threats made by their counsel as unhelpful and needlessly “inflammatory.” CA2 App. A821. Regarding the views expressed by City offi cials, the CSB made clear that they were entitled to no special weight. at A1080.20 In any event, JUSTICE ALITO’s analysis contains a more fundamental flaw: It equates political considerations with unlawful As JUSTICE ALITO sees it, if the mayor and his staff were motivated by their desire “to placate a racial constituency,” ante, at 3, then they engaged in unlawful discrimination against petitioners. But JUSTICE ALITO fails to ask a vital question: “[P]lacate” how? That political officials would have politics in mind is hardly extraordinary, and there are many ways in which a politician can attempt to win over a constituency— —————— something that neither the Court nor the concurrences even attempt to defend. It is, moreover, entirely misleading to say that the City later hired union-proposed Hornick as a “rewar[d]” for his testimony. Ante, at 9. 19 To be clear, the Board of Fire Commissioners on which Kimber served is an entity separate from the CSB. Kimber was not a member of the CSB. Kimber, JUSTICE ALITO states, requested a private meeting with the CSB. Ante, at 6. There is not a shred of evidence that a private meeting with Kimber or anyone else took place. 20 JUSTICE ALITO points to evidence that the mayor had decided not to make promotions based on the exams even if the CSB voted to certify the results, going so far as to prepare a press release to that effect. Ante, at 9. If anything, this evidence reinforces the conclusion that the CSB—which made the noncertification decision—remained independ ent and above the political fray. The mayor and his staff needed a contingency plan precisely because they did not control the CSB. Cite as: 557 U. S. (2009) 37 GINSBURG, J., dissenting including a racial constituency—without engaging in unlawful As courts have recognized, “[p]oliticians routinely respond to bad press but it is not a violation of Title VII to take advantage of a situation to gain political favor.” (CA7 2007). The real issue, then, is not whether the mayor and his staff were politically motivated; it is whether their at tempt to score political points was legitimate (i.e., nondis criminatory). Were they seeking |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | political points was legitimate (i.e., nondis criminatory). Were they seeking to exclude white fire fighters from promotion (unlikely, as a fair test would undoubtedly result in the addition of white firefighters to the officer ranks), or did they realize, at least belatedly, that their tests could be toppled in a disparate-impact suit? In the latter case, there is no disparate-treatment violation. JUSTICE ALITO, I recognize, would disagree. In his view, an employer’s action to avoid Title VII disparate impact liability qualifies as a presumptively improper race-based employment decision. See ante, at 2. I reject that construction of Title VII. See at 18–20. As I see it, when employers endeavor to avoid exposure to disparate-impact liability, they do not thereby encounter liability for disparate treatment. Applying this understanding of Title VII, supported by and the long line of decisions following see at 16–17, and nn. 3–4, the District Court found no genuine dispute of material fact. That court noted, par ticularly, the guidance furnished by Second Circuit prece dent. See Petitioners’ allegations that City officials took account of politics, the District Court deter mined, simply “d[id] not suffice” to create an inference of unlawful n. 12. The noncertification decision, even if undertaken “in a political context,” reflected a legitimate “intent not to implement a promotional process based on testing results that had an adverse impact.” 160. Indeed, the 38 RICCI v. DESTEFANO GINSBURG, J., dissenting District Court perceived “a total absence of any evidence of discriminatory animus towards [petitioners].” See (“Nothing in the record in this case suggests that the City defendants or CSB acted ‘because of’ discriminatory animus toward [petitioners] or other non-minority applicants for promotion.”). Perhaps the District Court could have been more expansive in its discussion of these issues, but its conclusions appear entirely consistent with the record before it.21 It is indeed regrettable that the City’s noncertification decision would have required all candidates to go through another selection process. But it would have been more regrettable to rely on flawed exams to shut out candidates who may well have the command presence and other qualities needed to excel as fire officers. Yet that is the choice the Court makes today. It is a choice that breaks the promise of that groups long denied equal oppor tunity would not be held back by tests “fair in form, but discriminatory in operation.” 401 U. S., —————— 21 The District Court, JUSTICE ALITO writes, “all but conceded that a jury could find that the City’s asserted justification was pretextual” by “admitt[ing] that ‘a jury could rationally infer that city officials |
Justice Ginsburg | 2,009 | 5 | dissenting | Ricci v. DeStefano | https://www.courtlistener.com/opinion/145848/ricci-v-destefano/ | “admitt[ing] that ‘a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.’ ” Ante, at 3, 13 (quoting 554 F. Supp. 2d, ). The District Court drew the quoted passage from petitioners’ lower court brief, and used it in reference to a First Amend ment claim not before this Court. In any event, it is not apparent why these alleged political maneuvers suggest an intent to discriminate against petitioners. That City officials may have wanted to please political supporters is entirely consistent with their stated desire to avoid a disparate-impact violation. Ashcroft v. Iqbal, 556 U.S. (2009) (slip op., at 18) (allegations that senior Government officials condoned the arrest and detention of thousands of Arab Muslim men following the September 11 attacks failed to establish even a “plausible inference” of unlawful discrimination sufficient to survive a motion to dismiss). Cite as: 557 U. S. (2009) 39 GINSBURG, J., dissenting * * * This case presents an unfortunate situation, one New Haven might well have avoided had it utilized a better selection process in the first place. But what this case does not present is race-based discrimination in violation of Title VII. I dissent from the Court’s judgment, which rests on the false premise that respondents showed “a significant statistical disparity,” but “nothing more.” See ante, at 27–28 |
per_curiam | 1,991 | 200 | per_curiam | Hunter v. Bryant | https://www.courtlistener.com/opinion/112671/hunter-v-bryant/ | On May 3, 1985, respondent James V. Bryant delivered two photocopies of a handwritten letter to two administrative *225 offices at the University of Southern California. The rambling letter referred to a plot to assassinate President Ronald Reagan by "Mr Image," who was described as "Communist white men within the `National Council of Churches.' " The letter stated that "Mr Image wants to murder President Reagan on his up and coming trip to Germany," that "Mr Image had conspired with a large number of U. S. officials in the plot to murder President Reagan" and others, and that "Mr Image (NCC) still plans on murdering the President on his trip to Germany in May, 1985." See President Reagan was traveling in Germany at the time. A campus police sergeant telephoned the Secret Service, and agent Brian Hunter responded to the call. After reading the letter, agent Hunter interviewed university employees. One identified James Bryant as the man who had delivered the letter and reported that Bryant had "told her `[h]e should have been assassinated in Bonn.' " Another employee said that the man who delivered the letter made statements about "`bloody coups' " and "`assassination,' " and said something about "`across the throat' " while moving his hand horizontally across his throat to simulate a cutting action. Hunter and another Secret Service agent, Jeffrey Jordan, then visited a local address that appeared on the letter. Bryant came to the door and gave the agents permission to enter. He admitted writing and delivering the letter, but refused to identify "Mr. Image" and answered questions about "Mr. Image" in a rambling fashion. Bryant gave Hunter permission to search the apartment, and the agent found the original of the letter. While the search was underway, Jordan continued questioning Bryant, who refused to answer questions about his feelings toward the President or to state whether he intended to harm the President. *226 Hunter and Jordan arrested Bryant for making threats against the President, in violation of 18 U.S. C. 871(a).[*] Bryant was arraigned and held without bond until May 17, 1985, when the criminal complaint was dismissed on the Government's motion. Bryant subsequently sued agents Hunter and Jordan, the United States Department of the Treasury, and the Director of the Secret Service, seeking recovery under the Federal Tort Claims Act and alleging that the agents had violated his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments. See The District Court dismissed all defendants other than agents Hunter and Jordan and all causes of action other than Bryant's Fourth Amendment claims for arrest without |
per_curiam | 1,991 | 200 | per_curiam | Hunter v. Bryant | https://www.courtlistener.com/opinion/112671/hunter-v-bryant/ | action other than Bryant's Fourth Amendment claims for arrest without probable cause and without a warrant. The court denied the agents' motion for summary judgment on qualified immunity grounds. On appeal, a Ninth Circuit panel held that the agents were entitled to qualified immunity for arresting Bryant without a warrant because, at that time, the warrant requirement was not clearly established for situations in which the arrested had consented to the agents' entry into a -724. However, the panel divided on the question whether the agents were entitled to immunity on the claim that they had *227 arrested Bryant without probable cause. The majority concluded that the agents had failed to sustain the burden of establishing qualified immunity because their reason for arresting Bryant their belief that the "Mr. Image" plotting to kill the President in Bryant's letter could be a pseudonym for Bryant was not the most reasonable reading of Bryant's letter: "Even accepting the `alter ego' theory that by warning what Mr. Image was going to do, Mr. Bryant was in fact communicating what he himself planned to do, the letter read in its entirety does not appear to make a threat against the president. Most of the letter does not even talk about President Reagan. A more reasonable in- terpretation of the letter might be that Bryant was try- ing to convince people of the danger Mr. Image and the conspiracy posed rather than that Bryant was speaking through Mr. Image. " Our cases establish that qualified immunity shields agents Hunter and Jordan from suit for damages if "a reasonable officer could have believed [Bryant's arrest] to be lawful, in light of clearly established law and the information the [arresting] officers possessed." Even law enforcement officials who "reasonably but mistakenly conclude that probable cause is present" are entitled to immunity. Moreover, because "[t]he entitlement is an immunity from suit rather than a mere defense to liability," we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation. See ; ; at ; ; The decision of the Ninth Circuit ignores the import of these decisions. The Court of Appeals' confusion is evident *228 from its statement that "[w]hether a reasonable officer could have believed he had probable cause is a question for the trier of fact, and summary judgment based on lack of probable cause is proper only if there is only one reasonable conclusion a jury could reach." This statement of law is wrong for two reasons. First, it routinely places the question of immunity in the hands |
per_curiam | 1,991 | 200 | per_curiam | Hunter v. Bryant | https://www.courtlistener.com/opinion/112671/hunter-v-bryant/ | it routinely places the question of immunity in the hands of the jury. Immunity ordinarily should be decided by the court long before trial. See Second, the court should ask whether the agents acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed five years after the fact. Under settled law, Secret Service Agents Hunter and Jordan are entitled to immunity if a reasonable officer could have believed that probable cause existed to arrest Bryant. Probable cause existed if "at the moment the arrest was made the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing" that Bryant had violated 18 U.S. C. 871. When Agents Hunter and Jordan arrested Bryant, they possessed trustworthy information that Bryant had written a letter containing references to an assassination scheme directed against the President, that Bryant was cognizant of the President's whereabouts, that Bryant had made an oral statement that "`[h]e should have been assassinated in Bonn,' " 903 F.2d, and that Bryant refused to answer questions about whether he intended to harm the President. On the basis of this information, a Magistrate ordered Bryant to be held without bond. These undisputed facts establish that the Secret Service agents are entitled to qualified immunity. Even if we assumed, arguendo, that they (and the magistrate) erred in concluding that probable cause existed to arrest Bryant, the *229 agents nevertheless would be entitled to qualified immunity because their decision was reasonable, even if mistaken. at The qualified immunity standard "gives ample room for mistaken judgments" by protecting "all but the plainly incompetent or those who knowingly violate the law." at 343, This accommodation for reasonable error exists because "officials should not err always on the side of caution" because they fear being sued. Our national experience has taught that this principle is nowhere more important than when the specter of Presidential assassination is raised. The petition for a writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Thomas took no part in the consideration or decision of this case. Justice Scalia, concurring in the judgment. |
Justice Thomas | 1,998 | 1 | second_dissenting | Oubre v. Entergy Operations, Inc. | https://www.courtlistener.com/opinion/118169/oubre-v-entergy-operations-inc/ | The Older Workers Benefit Protection Act (OWBPA), 29 U.S. C. 626(f), imposes certain minimum requirements that waivers of claims under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S. C. 621 et seq., must meet *435 in order to be considered "knowing and voluntary." The Court of Appeals held that petitioner had ratified a release of ADEA claims that did not comply with the OWBPA by retaining the benefits she had received in exchange for the release, even after she had become aware of the defect and had decided to sue respondent. The majority does not suggest that the Court of Appeals was incorrect in concluding that petitioner's conduct was sufficient to constitute ratification of the release. Instead, without so much as acknowledging the long-established principle that a statute "must `speak directly' to the question addressed by the common law" in order to abrogate it, United the Court holds that the OWBPA abrogates both the common-law doctrine of ratification and the doctrine that a party must "tender back" consideration received under a release of legal claims before bringing suit. Because the OWBPA does not address either of these common-law doctrines at all, much less with the clarity necessary to abrogate them, I respectfully dissent. It has long been established that "`[s]tatutes which invade the common law are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.' " United at ). Congress is understood to legislate against a background of common-law principles, Astoria Fed. Sav. & Loan and thus "does not write upon a clean slate," United at As a result, common-law doctrines "`ought not to be deemed to be repealed, unless the language of a statute be clear and explicit for this purpose.' " Norfolk Redevelopment and Housing *436 The only clear and explicit purpose of the OWBPA is to define "knowing and voluntary" in the context of ADEA waivers. Prior to the statute's enactment, the Courts of Appeals had disagreed about the proper standard for determining whether such waivers were knowing and voluntary. Several courts had adopted a "totality of the circumstances" test as a matter of federal waiver law, see, e. g., ; (CA2), cert. denied, ; while others had relied solely on common-law contract principles, see (CA6) (en banc), cert. denied, ; (CA8), cert. denied, In enacting the OWBPA, Congress adopted neither approach, instead setting certain minimum requirements that every release of ADEA rights and claims must meet in order to be deemed knowing and voluntary. I therefore agree with |
Justice Thomas | 1,998 | 1 | second_dissenting | Oubre v. Entergy Operations, Inc. | https://www.courtlistener.com/opinion/118169/oubre-v-entergy-operations-inc/ | to be deemed knowing and voluntary. I therefore agree with the Court that the OWBPA abrogates the common-law definition of a "knowing and voluntary" waiver where ADEA claims are involved. From this rather unremarkable proposition, however, the Court leaps to the conclusion that the OWBPA supplants the common-law doctrines of ratification and tender back. The doctrine of ratification (also known in contract law as affirmation) provides that a party, after discovering a defect in the original release, can make binding that otherwise voidable release either explicitly or by failing timely to return the consideration received. See 1 Restatement (Second) of Contracts 7, Comments d, e (1979); 1 E. Farnsworth, Contracts 4.15, 4.19[1] The tender back doctrine requires, *437 as a condition precedent to suit, that a plaintiff return the consideration received in exchange for a release, on the theory that it is inconsistent to bring suit against the defendant while at the same time retaining the consideration received in exchange for a promise not to bring such a suit. See The OWBPA simply does not speak to ratification. It is certainly not the casenotwithstanding the Court's statement that the OWBPA "governs the effect under federal law of waivers or releases on ADEA claims," ante, at 427that ratification can never apply in the context of ADEA releases. There is no reason to think that releases voidable on nonstatutory grounds such as fraud, duress, or mistake cannot be ratified: The OWBPA merely imposes requirements for knowing and voluntary waivers and is silent regarding fraud, duress, and mistake. Further, the statute makes no mention of whether there can ever be a valid ratification in the more specific instance, presented by this case, of a release of ADEA claims that fails to satisfy the statute's requirements. Instead, the statute merely establishes prerequisites that must be met for a release to be considered knowing and voluntary; the imposition of these statutory requirements says absolutely nothing about whether a release that fails to meet these prerequisites can ever be ratified. Not only does the text of the OWBPA make no mention of ratification, but it also cannot be said that the doctrine is inconsistent with the statute. The majority appears to reason that ratification cannot apply in the ADEA context because releases would be given legal effect where they should have none. As the Court explains, "the release can have no effect on [the employee's] ADEA claim unless it complies with the OWBPA." Or, put another way, because petitioner's release did not comply with the statute, "it is unenforceable against her insofar as it purports to |
Justice Thomas | 1,998 | 1 | second_dissenting | Oubre v. Entergy Operations, Inc. | https://www.courtlistener.com/opinion/118169/oubre-v-entergy-operations-inc/ | "it is unenforceable against her insofar as it purports to waive or release her ADEA claim." Ante, at 428. *438 The Court's concerns, however, appear directed at ratification itself, rather than at its application in the ADEA context. Ratification necessarily applies where a release is unenforceable against one party at its adoption because of some deficiency; the whole point of ratification is to give legal effect to an otherwise voidable release. By defining the requirements that must be met for a release of ADEA claims to be considered knowing and voluntary, the OWBPA merely establishes one of the ways in which a release may be unenforceable at its adoption. The OWBPA does not suggest any reason why a noncomplying release cannot be made binding, despite the original defect, in the same manner as any other voidable release. Nor does ratification conflict with the purpose of the OWBPA. Ratification occurs only when the employee realizes that the release does not comply with the OWBPA and nevertheless assents to be bound. See 12 W. Jaeger, Williston on Contracts 1527 (3d ed. 1970) (ratification may occur only after defect is discovered); 3 Restatement (Second) of Contracts 381 (same). This is surely consistent with the statutory purpose of ensuring that waivers of ADEA claims are knowing and voluntary.[2] The question remains whether the OWBPA imposes requirements that a ratification must meet. Ratification of a voidable release, like the release itself, must be knowing and voluntary. Otherwise, it too is voidable by the innocent party. See 1 85, Comment b. Although the Court does not expressly address this question, it appears that the Court's holding requires, at minimum, that the statutory requirements apply in the ratification context. The OWBPA does not, however, clearly displace the common-law definition of "knowing and voluntary" in the *439 ratification context. The statute itself states that it applies to waivers and is absolutely silent regarding ratification or affirmation. Further, several of the statutory requirements cannot be translated easily into the ratification context. The requirements that an employee be given a period of at least 21 days to consider the agreement, 29 U.S. C. 626(f)(1)(F)(i), and that he have a 7-day period in which to revoke the agreement, 626(f)(1)(G), naturally apply in the context of the original release, but seem superfluous when applied to ratification. For example, when an employee has implicitly ratified the original release by retaining the consideration for several months after discovering its defects, a 21-day waiting period to consider the agreement and a 7-day revocation period have no place. An employee thus may ratify a release that |
Justice Thomas | 1,998 | 1 | second_dissenting | Oubre v. Entergy Operations, Inc. | https://www.courtlistener.com/opinion/118169/oubre-v-entergy-operations-inc/ | no place. An employee thus may ratify a release that fails to comply with the OWBPA. For many of the same reasons that the OWBPA does not abrogate the doctrine of ratification, it also does not abrogate the tender back requirement. Certainly the statute does not supplant the tender back requirement in its entirety. Where a release complies with the statute but is voidable on other grounds (such as fraud), the OWBPA does not relieve an employee of the obligation to return the consideration received before suing his employer; the OWBPA does not even arguably address such a situation. And in the more specific context of a release that fails to comply with the OWBPA, the statute simply says nothing about whether there can ever be an obligation to tender back the consideration before filing suit. Nor is the tender back requirement inconsistent with the OWBPA. Although it does create an additional obligation that would not exist but for the noncomplying release, the doctrine merely puts the employee to a choice between avoiding the release and retaining the benefit of his bargain. After all, this doctrine does not preclude suit but merely acts as a condition precedent to it; the employee need only return the consideration before the statute of limitations period has *440 run. And despite the Court's concern that "[i]n many instances a discharged employee likely will have spent the moneys received and will lack the means to tender their return," ante, at 427; see also ante, at 431 (Breyer, J., concurring),[3] courts have interpreted the tender back doctrine flexibly, such that immediate tender is not always required. See D. Dobbs, Law of Remedies 9.4, p. 622 (1973); If anything, the Court's holding creates a windfall for an employee who may now retain the consideration received from his employer while at the same time filing suit. Finally, it is clear that the statutory requirements have no application to the tender back requirement. The tender back doctrine operates not to make the voidable release binding, as does ratification, but rather precludes a party from simultaneously retaining the benefits of the release and suing to vindicate released claims. See That is, the requirement to tender back is simply a condition precedent to suit; it has nothing to do with whether a waiver was knowing and voluntary. Nothing in the statute even arguably implies that the statutory requirements must be met before this obligation arises. In sum, the OWBPA does not clearly and explicitly abrogate the doctrines of ratification and tender back. Congress, of course, is free to do so. But |
Justice Ginsburg | 2,017 | 5 | majority | Hamer v. Neighborhood Housing Servs. of Chicago | https://www.courtlistener.com/opinion/4441341/hamer-v-neighborhood-housing-servs-of-chicago/ | This case presents a question of time, specifically, time to file a notice of appeal from a district court’s judgment. In this Court clarified that an appeal filing deadline prescribed by statute will be regarded as “,” meaning that late filing of the appeal notice necessitates dismissal of the But a time limit prescribed only in a court-made rule, acknowledged, is not ; it is, instead, a mandatory claim-processing rule subject to forfeiture if not properly raised by the appellee. ; Because the Court of Appeals held a time limit specified in a rule, not in a statute, we vacate that court’s judgment dismissing the I A “Only Congress may determine a lower federal court’s subject-matter jurisdiction.” (“[I]t is axiomatic that the Federal Rules of Civil Procedure do not create or withdraw federal jurisdiction.”). Accordingly, a provision governing the time to appeal in a civil action qualifies as only if Congress sets the time. See –212 (noting “the jurisdic- tional distinction between court-promulgated rules and limits enacted by Congress”); Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941) (noting “the inability of a court, by rule, to extend or restrict the jurisdiction conferred by a stat- ute”). A time limit not prescribed by Congress ranks as a mandatory claim-processing rule, serving “to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” This Court and other forums have sometimes overlooked this distinction, “mischaracteriz[ing] claim-processing rules or elements of a cause of action as limitations, particularly when that characterization was not central to the case, and thus did not require close analysis.” Reed Elsevier, 1 But prevailing precedent makes the distinc- tion critical. Failure to comply with a time prescription, we have maintained, deprives a court of adjudicatory authority over the case, necessitating dismis- sal—a “drastic” result. 562 U.S., at ; )). The defect is not subject to waiver or forfei- ture1 and may be raised at any time in the court of first —————— 1 The terms waiver and forfeiture—though often used interchange- ably by jurists and litigants—are not synonymous. “[F]orfeiture is the failure to make the timely assertion of a right[;] waiver is the ‘inten- Cite as: 583 U. S. (20) 3 Opinion of the Court instance and on direct 540 U.S., at 455.2 In contrast to the ordinary operation of our adver- sarial system, courts are obliged to notice issues and raise them on their own initiative. Mandatory claim-processing rules are less stern. If properly invoked, mandatory claim-processing rules must be enforced, but they may be waived or |
Justice Ginsburg | 2,017 | 5 | majority | Hamer v. Neighborhood Housing Servs. of Chicago | https://www.courtlistener.com/opinion/4441341/hamer-v-neighborhood-housing-servs-of-chicago/ | rules must be enforced, but they may be waived or forfeited. Man- rique v. United States, 581 U. S. (20) (slip op., at 4). “[C]laim-processing rules [ensure] relief to a party properly raising them, but do not compel the same result if the party forfeits them.” Eberhart v. United States, 546 U.S. 12, 19 ( per curiam).3 B Petitioner Charmaine Hamer filed a complaint against respondents Neighborhood Housing Services of Chicago and Fannie Mae alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S. C. et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S. C. et seq. The District Court granted respondents’ motion for summary judgment on September 10, 2015, and entered final judg- ment on September 14, 2015. In the absence of a time extension, Hamer’s notice of appeal would have been due by October 14, 2015. Fed. Rule App. Proc. 4(a)(1)(A). On October 8, 2015, before the October 14 deadline for filing Hamer’s notice of appeal, her attorneys made two —————— tional relinquishment or abandonment of a known right.’ ” United ). 2 Subject-matter jurisdiction cannot be attacked collaterally, however. ). 3 We have reserved whether mandatory claim-processing rules may be subject to equitable exceptions. See 4 HAMER v. NEIGHBORHOOD HOUSING SERVS. OF CHICAGO Opinion of the Court motions.4 First, they sought to withdraw as counsel be- cause of their disagreement with Hamer on pursuit of an Second, they sought a two-month extension of the notice of appeal filing date, so that Hamer would have adequate time to engage new counsel for her App. to Pet. for Cert. 57–59. The District Court granted both motions on the same day and ordered extension of the deadline for Hamer’s notice of appeal from October 14 to December 14, 2015. Respondents did not move for reconsideration or otherwise raise any objection to the length of the extension. In the docketing statement respondents filed in the Court of Appeals, they stated: “The United States Court of Appeals for the Seventh Circuit has jurisdiction over this appeal under 28 U.S. C. in that on December 11, 2015, [Hamer] filed a timely Notice of Appeal from a final judgment of the United States District Court for the Northern District of Illinois that disposed of all of [Hamer’s] claims against [respondents].” Re- spondents’ statement later reiterated: “On December 11, 2015, [Hamer] timely filed a Notice of Appeal” at 64. Nevertheless, the Court of Appeals, on its own ini- tiative, questioned the timeliness of the appeal and in- structed respondents to brief the Respondents did |
Justice Ginsburg | 2,017 | 5 | majority | Hamer v. Neighborhood Housing Servs. of Chicago | https://www.courtlistener.com/opinion/4441341/hamer-v-neighborhood-housing-servs-of-chicago/ | appeal and in- structed respondents to brief the Respondents did so and, for the first time, asserted that the appeal was untimely, citing the relevant Rule confining extensions to 30 days. at 762– (citing Fed. Rule App. Proc. 4(a)(5)(C)). Concluding that it lacked jurisdic- tion to reach the merits, the Court of Appeals dismissed Hamer’s 835 F.3d, at5 We granted certio- —————— 4 Movants were the attorney appointed by the court to represent Hamer and two other attorneys who entered appearances as co-counsel. App. to Pet. for Cert. 57–59. 5 The Court of Appeals incorrectly stated that respondents, answering the Seventh Circuit’s inquiry, asserted that the appeals court “lack[ed] jurisdiction over [Hamer’s] ” 835 F.3d, at In fact, respond- Cite as: 583 U. S. (20) 5 Opinion of the Court rari. 580 U. S. (20). II A Section 2107 of Title 28 of the U. S. Code, as enacted in 1948, allowed extensions of the time to file a notice of appeal, not exceeding 30 days, “upon a showing of excus- able neglect based on failure of a party to learn of the entry of the judgment.” Act of June 25, 1948, 62 Stat. 963.6 Nothing in the statute provided for extension of the time to file a notice of appeal when, as in this case, the judgment loser did receive notice of the entry of judgment. In 1991, Congress broadened the class of persons who could gain extensions to include all prospective appellants who showed “excusable neglect or good cause.” 105 Stat. 1627. In addition, Congress retained a time pre- scription covering appellants who lacked notice of the entry of judgment: “[A] party entitled to notice of the entry of a judgment [who] did not receive such notice from the clerk or any party within 21 days of [the judgment’s] entry” qualifies for a 14-day extension,7 if “no party would be prejudiced [thereby].” In full, now provides: —————— ents maintained that “the timeliness of Hamer’s appeal d[id] not appear to be according to [Circuit] law.” App. to Pet. for Cert. 71 (capitalization and footnote omitted). That was so, respond- ents explained, because “the time limits found [in] Fed. R[ule] App. P[roc.] 4(a)(5)(C) lack a statutory basis.” Even if not respondents continued, the Rule is mandatory and must be observed unless forfeited or waived. 6 As enacted, the pertinent paragraph of provided in full: “The district court, in any such action, suit or proceeding, may extend the time for appeal not exceeding thirty days from the expiration of the original time herein prescribed, upon a showing of excusable neglect based |
Justice Ginsburg | 2,017 | 5 | majority | Hamer v. Neighborhood Housing Servs. of Chicago | https://www.courtlistener.com/opinion/4441341/hamer-v-neighborhood-housing-servs-of-chicago/ | time herein prescribed, upon a showing of excusable neglect based on failure of a party to learn of the entry of the judgment, order or decree.” Act of June 25, 1948, 7 The 14-day prescription cuts back the original limit of 30 days. 6 HAMER v. NEIGHBORHOOD HOUSING SERVS. OF CHICAGO Opinion of the Court “(c) The district court may, upon motion filed not later than 30 days after the expiration of the time other- wise set for bringing appeal, extend the time for ap- peal upon a showing of excusable neglect or good cause. In addition, if the district court finds— “(1) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and “(2) that no party would be prejudiced, “the district court may, upon motion filed within 180 days after entry of the judgment or order or within 14 days after receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for ” In short, current like the provision as initially enacted, specifies the length of an extension for cases in which the appellant lacked notice of the entry of judg- ment.8 For other cases, the statute does not say how long an extension may run. But Federal Rule of Appellate Procedure 4(a)(5)(C) does prescribe a limit: “No extension [of time for filing a notice of appeal] may exceed 30 days after the prescribed time [for filing a notice of appeal] or 14 days after the date [of] the order granting the [extension] motion whichever is later.” Unlike we note, Rule 4(a)(5)(C) limits extensions of time to file a notice of appeal in all circum- stances, not just in cases in which the prospective appel- lant lacked notice of the entry of judgment. —————— 8 The statute describes the 14-day extension permitted in lack-of- notice cases as a “reopening [of] the time for ” The “reopening” period is the functional equivalent of an extension. See Brief for American Academy of Appellate Lawyers as Amicus Curiae 5–6. Cite as: 583 U. S. (20) 7 Opinion of the Court B Although Rule 4(a)(5)(C)’s limit on extensions of time appears nowhere in the text of respondents now contend that Rule 4(a)(5)(C) has a “statutory basis” be- cause once limited extensions (to the extent it did authorize them) to 30 days. Brief for Respondents No matter, respondents submit, that Congress struck the |
Justice Ginsburg | 2,017 | 5 | majority | Hamer v. Neighborhood Housing Servs. of Chicago | https://www.courtlistener.com/opinion/4441341/hamer-v-neighborhood-housing-servs-of-chicago/ | for Respondents No matter, respondents submit, that Congress struck the 30- day limit in 1991 and replaced it with a 14-day limit gov- erning, as the 30-day limit did, only lack-of-notice cases; deleting the 30-day prescription, respondents conjecture, was “probably inadverten[t].” In support of their argument that Congress accidentally failed to impose an all-purpose limit on extensions, respondents observe that the 1991 statute identifies Congress’ aim as the enactment of “certain technical corrections in provisions of law relating to the courts.” They also note the caption of the relevant section of the amending statute: “Conformity with Rules of Appellate Procedure.” at 1627. Because striking the 30-day limit from made the statute less like Rule 4(a)(5)(C), respondents reason, Congress likely erased the relevant paragraph absent- mindedly. Hence, respondents conclude, “there is no reason to interpret the 1991 amendment as stripping Rule 4(a)(5)(C) of its significance.” Brief for Re- spondents 2. Overlooked by respondents, pre-1991 never spoke to extensions for reasons other than lack of notice. In any event, we resist speculating whether Congress acted inad- vertently. See Henson v. Santander Consumer USA Inc., 582 U. S. – (20) (slip op., at 9–10) )); 8 HAMER v. NEIGHBORHOOD HOUSING SERVS. OF CHICAGO Opinion of the Court 334 (“We cannot replace the actual text with specu- lation as to Congress’ intent.”). The rule of decision our precedent shapes is both clear and easy to apply: If a time prescription governing the transfer of adjudicatory author- ity from one Article III court to another appears in a stat- ute, the limitation is ; otherwise, the time specification fits within the claim-processing category, ibid.9 In dismissing Hamer’s appeal for want of jurisdiction, the Court of Appeals relied heavily on our decision in We therefore reiterate what that precedent con- veys. There, petitioner Keith did not receive timely notice of the entry of a postjudgment order and conse- quently failed to file a timely notice of v. Russell, When learned of the postjudgment order, he moved for an exten- sion under Federal Rule of Appellate Procedure 4(a)(6), which implements ’s authorization of extensions in lack-of-notice cases. The District Court granted ’s motion, but inexplicably provided a -day exten- —————— 9 Incases not involving the timebound transfer of adjudicatory authority from one Article III court to another, we have additionally applied a clear-statement rule: “A rule is ‘[i]f the Legisla- ture clearly states that a threshold limitation on a statute’s scope shall count as’ ” ). See also, e.g., (statutory dead- line for filing notice of appeal with Article I tribunal held not jurisdic- tional). “This is |
Justice Ginsburg | 2,017 | 5 | majority | Hamer v. Neighborhood Housing Servs. of Chicago | https://www.courtlistener.com/opinion/4441341/hamer-v-neighborhood-housing-servs-of-chicago/ | with Article I tribunal held not jurisdic- tional). “This is not to say that Congress must incant magic words in order to speak clearly,” however. In determining whether Congress intended a particular provision to be “[w]e consider ‘context, including this Court’s interpretations of similar provisions in many years past,’ as probative of [Congress’ intent].” –154 ). Even so, “in applying th[e] clear statement rule, we have made plain that most [statutory] time bars are non.” United States v. Kwai Fun Wong, 575 U. S. (2015) (slip op., at 6). Cite as: 583 U. S. (20) 9 Opinion of the Court sion, rather than the 14-day extension authorized by 551 U.S., 07. filed his no- tice of appeal within the days allowed by the District Court but outside the 14 days allowed by “Because Congress specifically limited the amount of time by which district courts can extend the notice-of-appeal period in” we explained, the Court of Appeals lacked jurisdiction over ’s tardy 13. Quoting at length, the Court of Appeals in this case reasoned that “[l]ike Rule 4(a)(6), Rule 4(a)(5)(C) is the vehicle by which is employed and it limits a district court’s authority to extend the notice of appeal filing deadline to no more than an additional 30 days.” 835 F.3d, at In conflating Rule 4(a)(5)(C) with the Court of Appeals failed to grasp the distinc- tion our decisions delineate between appeal filing deadlines and mandatory claim-processing rules, and therefore misapplied Several Courts of Appeals,10 including the Court of Appeals in Hamer’s case, have tripped over our statement in that “the taking of an appeal within the pre- scribed time is ‘mandatory and’ ” 551 U.S., 09 ). The “mandatory and ” formulation is a characterization left over from days when we were “less than meticulous” in our use of the term “.” 540 U.S., at 454.11 The statement was correct as applied in —————— 10 See ; 3 Fed. Appx. 136, ; United States v. Hawkins, 11 Indeed, the formulation took flight from a case in which we mistak- enly suggested that a claim-processing rule was “mandatory and” See United 3 U.S. 220, (1960). We have since clarified that “Robinson is correct not because the District Court lacked subject-matter jurisdiction, but because 10 HAMER v. NEIGHBORHOOD HOUSING SERVS. OF CHICAGO Opinion of the Court because, as the Court there explained, the time prescrip- tion at issue in was imposed by Congress. 551 U.S., 09–213. But “mandatory and ” is erroneous and confounding terminology where, as here, the relevant time prescription is absent from the U. S. Code. Because Rule |
Justice Ginsburg | 2,017 | 5 | majority | Hamer v. Neighborhood Housing Servs. of Chicago | https://www.courtlistener.com/opinion/4441341/hamer-v-neighborhood-housing-servs-of-chicago/ | prescription is absent from the U. S. Code. Because Rule 4(a)(5)(C), not limits the length of the extension granted here, the time prescription is not See Youkelsone v. FDIC, 660 F.3d 473, 475 (“Rule 4(a)(5)(C)’s thirty-day limit on the length of any extension ultimately granted appears nowhere in the U. S. Code.”). * * * For the reasons stated, the Court of Appeals erroneously treated as Rule 4(a)(5)(C)’s 30-day limitation on extensions of time to file a notice of We there- fore vacate that court’s judgment and remand the case for further proceedings consistent with this opinion. We note, in this regard, that our decision does not reach issues raised by Hamer, but left unaddressed by the Court of Appeals, including: (1) whether respondents’ failure to raise any objection in the District Court to the overlong time extension, by itself, effected a forfeiture, see Brief for Petitioner 21–22; (2) whether respondents could gain review of the District Court’s time extension only by filing their own appeal notice, see 3–27; and (3) whether equitable considerations may occasion an exception to Rule 4(a)(5)(C)’s time constraint, see 9–43. It is so ordered. —————— district courts must observe the clear limits of the Rules of Criminal Procedure when they are properly invoked.” |
Justice Blackmun | 1,983 | 11 | dissenting | Hillsboro Nat. Bank v. Commissioner | https://www.courtlistener.com/opinion/110886/hillsboro-nat-bank-v-commissioner/ | These consolidated cases present issues concerning the socalled "tax benefit rule" that has been developed in federal income tax law. In No. 81-485, the Court concludes that the rule has no application to the situation presented. In No. 81-90, it concludes that the rule operates to the detriment of the taxpayer with respect to its later tax year. I disagree with both conclusions. I In No. 81-485, the Court interprets 164(e) of the Internal Revenue Code of 1954, 26 U.S. C. 164(e). See ante, at 92-95. It seems to me that the propriety of a 1972 deduction by the Bank under 164(e) depended upon the payment by the Bank of a state tax on its shares. This Court's decision in rendered any such tax nonexistent and any deduction therefore unavailable. I sense no "focus of Congress. on the act of payment rather than on the ultimate use of the funds by the State." Ante, at 94. The focus, instead, is on the payment of a tax. Events proved that there was no tax. The situation, thus, is one for the application, not the nonapplication, of some tax benefit rule. I therefore turn to the question of the application of a proper rule in each of these cases. *42 II The usual rule, as applied to a deduction, appears to be this: Whenever a deduction is claimed, with tax benefit, in a taxpayer's federal return for a particular tax year, but factual developments in a later tax year prove the deduction to have been asserted mistakenly in whole or in part, the deduction, or that part of it which the emerging facts demonstrate as excessive, is to be regarded as income to the taxpayer in the later tax year. With that general concept (despite occasionally expressed theoretical differences between "transactional parity" or "transactional inconsistency," on the one hand, and, on the other, a need for a "recovery") I have no basic disagreement. Regardless of the presence of 111 in the Internal Revenue Code of 1954, 26 U.S. C. 111 (1976 ed. and Supp. V), it is acknowledged that the tax benefit rule is judge-made. See, e. g., 1 J. Mertens, Law of Federal Income Taxation 7.4, p. 114 (J. Doheny rev. ed. 1981); Bittker & Kanner, The Tax Benefit Rule, It came into being, apparently, because of two concerns: (1) a natural reaction against an undeserved and otherwise unrecoverable (by the Government) tax benefit, and (2) a perceived need, because income taxes are payable at regular intervals, to promote the integrity of the annual tax return. Under this approach, if a |
Justice Blackmun | 1,983 | 11 | dissenting | Hillsboro Nat. Bank v. Commissioner | https://www.courtlistener.com/opinion/110886/hillsboro-nat-bank-v-commissioner/ | of the annual tax return. Under this approach, if a deduction is claimed, with some justification, in an earlier tax year, it is to be allowed in that year, even though developments in a later year show that the deduction in the earlier year was undeserved in whole or in part. This impropriety is then counterbalanced (concededly in an imprecise manner, see ante, at 78, n. 10, and 80-81, n. 12) by the inclusion of a reparative item in gross income in the later year. See ;[*] In *424 the Court succinctly phrased it this way: "[A] recovery of an item that has produced an income tax benefit in a prior year is to be added to income in the year of recovery." I have no problem with the rule with respect to its first underlying concern (the rectification of an undeserved tax benefit). When a taxpayer has received an income tax benefit by claiming a deduction that later proves to be incorrect or, in other words, when the premise for the deduction is destroyed, it is only right that the situation be corrected so far as is reasonably possible, and that the taxpayer not profit by the improper deduction. I am troubled, however, by the tendency to carry out the second concern (the integrity of the annual return) to unnecessary and undesirable limits. The rule is not that sacrosanct. In No. 81-485, Hillsboro National Bank, in its 1972 return, took as a deduction the amount of assessed state property taxes the Bank paid that year on its stock held by its shareholders; this deduction, were there such a tax, was authorized by the unusual, but nevertheless specific, provisions of 164(e) of the Code, 26 U.S. C. 164(e). The Bank received a benefit by the deduction, for its net income and federal income tax were reduced accordingly. Similarly, in No. 81-90, Bliss Dairy, Inc., which kept its books and filed its returns on the cash receipts and disbursements method, took a deduction in its return for its fiscal year ended June 0, 197, for cattle feed it had purchased that year. That deduction was claimed as a business expense under 162(a) of the Code, 26 U.S. C. 162(a). The Dairy received a tax benefit, for its net income and federal income tax for fiscal 197 were reduced by the deduction. Thus far, everything is clear and there is no problem. In the Bank's case, however, a subsequent development, namely, the final determination by this Court in 197 in *425 that the 1970 amendment of the Illinois Constitution, prohibiting the imposition |
Justice Blackmun | 1,983 | 11 | dissenting | Hillsboro Nat. Bank v. Commissioner | https://www.courtlistener.com/opinion/110886/hillsboro-nat-bank-v-commissioner/ | the 1970 amendment of the Illinois Constitution, prohibiting the imposition of the state property taxes in question, was valid, eliminated any factual justification for the 1972 deduction. And, in the Dairy's case, a postfiscal year 197 development, namely, the liquidation of the corporation and the distribution of such feed as was unconsumed on June 0, 197, to its shareholders, with their consequent ability to deduct, when the feed thereafter was consumed, the amount of their adjusted basis in that feed, similarly demonstrated the impropriety of the Dairy's fullcost deduction in fiscal 197. I have no difficulty in favoring some kind of "tax benefit" adjustment in favor of the Government for each of these situations. An adjustment should be made, for in each case the beneficial deduction turned out to be improper and undeserved because its factual premise proved to be incorrect. Each taxpayer thus was not entitled to the claimed deduction, or a portion of it, and this nonentitlement should be reflected among its tax obligations. This takes me, however, to the difficulty I encounter with the second concern, that is, the unraveling or rectification of the situation. The Commissioner and the United States in these respective cases insist that the Bank and the Dairy should be regarded as receiving income in the very next tax year when the factual premise for the prior year's deduction proved to be incorrect. I could understand that position, if, in the interim, the bar of a statute of limitations had become effective or if there were some other valid reason why the preceding year's return could not be corrected and additional tax collected. But it seems to me that the better resolution of these two particular cases and others like them and a resolution that should produce little complaint from the taxpayer is to make the necessary adjustment, whenever it can be made, in the tax year for which the deduction was originally claimed. This makes the correction where the correction is due and it makes the amount of net income for each year a true amount and one that accords with the facts, not *426 one that is structured, imprecise, and fictional. This normally would be accomplished either by the taxpayer's filing an amended return for the earlier year, with payment of the resulting additional tax, or by the Commissioner's assertion of a deficiency followed by collection. This actually is the kind of thing that is done all the time, for when a taxpayer's return is audited and a deficiency is asserted due to an overstated deduction, the process equates |
Justice Blackmun | 1,983 | 11 | dissenting | Hillsboro Nat. Bank v. Commissioner | https://www.courtlistener.com/opinion/110886/hillsboro-nat-bank-v-commissioner/ | is asserted due to an overstated deduction, the process equates with the filing of an amended return. The Dairy's case is particularly acute. On July 2, 197, on the second day after the end of its fiscal year, the Dairy adopted a plan of liquidation pursuant to of the Code, 26 U.S. C. That section requires the adoption of a plan of liquidation; the making and filing, within 0 days, of written elections by the qualified electing shareholders; and the effectuation of the distribution in liquidation within a calendar month. (a), (c), and (d). It seems obvious that the Dairy, its management, and its shareholders, by the end of the Dairy's 197 fiscal year on June 0, and certainly well before the filing of its tax return for that fiscal year, all had conceived and developed the July 2, 197, plan of liquidation and were resolved to carry out that plan with the benefits that they felt would be afforded by it. Under these circumstances, we carry the tax benefit rule too far and apply it too strictly when we utilize the unconsumed feed to create income for the Dairy for fiscal 1974 instead of decreasing the deduction for the same feed in fiscal 197. Any concern for the integrity of annual tax reporting should not demand that much. I thus would have the Dairy's returns adjusted in a realistic and factually true manner, rather than in accord with an inflexibly administered tax benefit rule. Much the same is to be said about the Bank's case. The decisive event, this Court's decision in occurred on February 22, 197, within the second month of the Bank's 197 tax year. Indeed, it took place before the Bank's calendar year 1972 return would be overdue. Here again, an accurate *427 return for 1972 should be preferred over inaccurate returns for both 1972 and 197. This, in my view, is the way these two particular tax controversies should be resolved. I see no need for anything more complex in their resolution than what I have outlined. Of course, if a statute of limitations problem existed, or if the facts in some other way prevented reparation to the Government, the cases and their resolution might well be different. I realize that my position is simplistic, but I doubt if the judge-made tax benefit rule really was intended, at its origin, to be regarded as applicable in simple situations of the kind presented in these successive-tax-year cases. So often a judge-made rule, understandably conceived, ultimately is used to carry us further than it should. I would |
Justice Stevens | 1,979 | 16 | dissenting | Dalia v. United States | https://www.courtlistener.com/opinion/110061/dalia-v-united-states/ | At midnight on the night of April 5-6, 73, three persons pried open a window to petitioner's business office and secretly entered the premises. During the next three hours they moved freely about the building, eventually implanting a listening device in the ceiling. Several weeks later, they again broke into the office at night and removed the device. The perpetrators of these break-ins were agents of the Federal Bureau of Investigation. Their office, however, carries with it no general warrant to trespass on private property. Without legislative or judicial sanction, the conduct of these agents was unquestionably "unreasonable" and therefore prohibited by the Fourth Amendment.[1] Moreover, that conduct *263 violated the Criminal Code of the State of New Jersey unless it was duly authorized.[2] The only consideration that arguably might legitimate these "otherwise tortious and possibly criminal" invasions of petitioner's private property,[3] is the fact that a federal judge had entered an order authorizing the agents to use electronic equipment to intercept oral communications at petitioner's office. The order, however, did not describe the kind of equipment to be used and made no reference to an entry, covert or otherwise, into private property. Nor does any statute expressly permit such activity or even authorize a federal judge to enter orders granting federal agents a license to commit criminal trespass. The initial question this case raises, therefore, is whether this kind of power should be read into a statute that does not expressly grant it. In my opinion, there are three reasons, each sufficient by itself, for refusing to do so. First, until Congress has stated otherwise, our duty to protect the rights of the individual should hold sway over the interest in more effective law enforcement. Second, the structural detail of this statute precludes a reading that converts silence into thunder. Third, the legislative history affirmatively demonstrates that Congress never contemplated the situation now before the Court. I "Congress, like this Court, has an obligation to obey the mandate of the Fourth Amendment." But Congress is better equipped than the Judiciary to make the empirical *264 judgment that a previously unauthorized investigative technique represents a "reasonable" accommodation between the privacy interests protected by the Fourth Amendment and effective law enforcement.[4] Throughout our history, therefore, it has been Congress that has taken the lead in granting new authority to invade the citizen's privacy.[5] It is appropriate to accord special deference to Congress whenever it has expressly balanced the need for a new investigatory technique against the undesirable consequences of any intrusion on constitutionally protected interests in privacy. See at -339. But |
Justice Stevens | 1,979 | 16 | dissenting | Dalia v. United States | https://www.courtlistener.com/opinion/110061/dalia-v-united-states/ | on constitutionally protected interests in privacy. See at -339. But no comparable deference should be given federal intrusions on privacy that are not expressly authorized by Congress.[6] In my view, a proper respect for Congress' important *265 role in this area, as well as our tradition of interpreting statutes to avoid constitutional issues,[7] compels this conclusion. The Court does not share this view. For this is the third time in as many years that it has condoned a serious intrusion on privacy that was not explicitly authorized by statute and that admittedly raised a substantial constitutional question. In United the Court upheld an Executive regulation authorizing postal inspectors to open private letters without probable cause to believe they contained contraband.[8] In United the Court upheld orders authorizing the surreptitious pen-register surveillance of an individual and directing a private company to lend its assistance in that endeavor. Again, no explicit statutory authority existed for either order, despite Congress' otherwise comprehensive treatment of wire surveillance in Title III of the Omnibus Crime Control and Safe Streets Act of 68 (Title III).[9] *266 Today the Court has gone even further in finding an implicit grant of Executive power in Title III. That Title "does not refer explicitly to covert entry" of any kind, much less to entries that are tortious or criminal. Ante, at 249. Nevertheless, the Court holds that Congress, without having said so explicitly, has authorized the agents of a national police force in carrying out a surveillance order to break into private premises[10] in violation of state law. Moreover, the Court finds in the silent statute an open-ended authorization to effect such illegal entries without an explicit judicial determination that there is probable cause to believe they are necessary or even appropriate. In my judgment, it is most unrealistic to assume that Congress granted such broad and controversial authority to the Executive without making its intention to do so unmistakably plain. This is the paradigm case in which "the exact words of the statute provide the surest guide to determining Congress' intent."[11] I would not enlarge the coverage of the statute beyond its plain meaning. II The Court's conclusion that the statute implicitly authorizes breaking and entering is especially anomalous because the statutory scheme in all other respects is exhaustive and explicit.[12]*267 "It simply does not make sense"[13] to conclude that Congresshaving minutely detailed (1) the process that "[t]he Attorney General, or any Assistant Attorney General specially designated by the Attorney General" must follow in authorizing federal police officers to seek an electronic surveillance order,[14] (2) the limited number of |
Justice Stevens | 1,979 | 16 | dissenting | Dalia v. United States | https://www.courtlistener.com/opinion/110061/dalia-v-united-states/ | seek an electronic surveillance order,[14] (2) the limited number of suspected offenses that will justify such an order,[15] (3) the showing that must be made to "a Federal judge" before he issues the order,[16] (4) the *268 standard the judge must apply in approving, and the format he must follow in preparing, the order,[17] (5) the time frame of execution and the manner of execution with respect to *269 minimizing the interception of communications not likely to involve criminal activity,[] and even having more recently specified (6) certain "unobtrusive" means by which those *270 orders might be carried out without the awareness of the suspect[]was content to leave national police officers with unbounded authority to carry out the resulting orders in any unspecified and obtrusive fashion they chose "subject of course to constitutional limitations." Ante, at 250.[20] *271 In my view, it is the opposite conclusion that is true to the statutory structure. For "one simply cannot assume that Congress," see ante, at 252, wished to erect various procedural barriers against poor judgment on the part of the Attorney General and his subordinates in seeking, and on the part of federal district judges in issuing, eavesdropping orders only to commit their execution, even through illegal means, entirely to "the judgment and moderation of officers whose own interests and records are often at stake in the search." (Jackson, J., dissenting). The detailed timing and minimization restrictions on the executing officer, see n. as well as the 70 amendment to Title III concerning "unobtrusive" execution, see n. lead inescapably to the conclusion that Congress withheld authority to trespass on private property except through the limited means expressly dealt with in the statute.[21] III Only one relevant conclusion can be drawn from a review of the entire legislative history of Title III. The legislators never even considered the possibility that they were passing a statute that would authorize federal agents to break into private premises without any finding of necessity by a neutral and detached magistrate. A The meager legislative remarks that are said to demonstrate that Title III's supporters implicitly endorsed breaking and *272 entering in order to install listening devices actually provide no support for that conclusion. The reference to "judicial warrants authorizing [police] to hide bugs in the premises of criminal suspects," see ante, at 251 n. 12, was a comment by an opponent of the bill on investigative techniques that he believed this Court had ruled illegal in[22] Since neither he, nor any supporter of the bill, suggested that those techniques would be authorized by Title III, his comment |
Justice Stevens | 1,979 | 16 | dissenting | Dalia v. United States | https://www.courtlistener.com/opinion/110061/dalia-v-united-states/ | those techniques would be authorized by Title III, his comment is hardly indicative of a legislative endorsement of such practices. Moreover, there is a marked difference between the judicially warranted "hid[ing of] bugs in the premises of criminal suspects" and a forcible entry that has not been expressly authorized by any judge. The difference between subterfuge and forcible trespass should not be ignored. That difference explains why the Court's reliance on two statements by proponents of Title III that emphasize the technological limitations on "bugs" and "taps" is misplaced. The proponents believed these limitations would discourage the frequent use and abuse of electronic surveillance. Thus, in answer to repeated charges that passage of Title III would recreate Hitler's Germany or anticipate Orwell's "84," Senator Tydings, in a passage partially quoted by the Court, ante, at 252, argued: "Contrary to what we have heard, electronic surveillance is not a lazy way to conduct an investigation. It *273 will not be used wholesale as a substitute for physical investigation. "The reason[s] for such sparing use are simple. First, electronic surveillance is really useful only in conspiratorial activities. "Second, surveillance is very difficult to use. Tape must be installed on telephones and wires strung. Bugs are difficult to install in many places since surreptitious entry is often impossible. Often, more than one entry is necessary to adjust equipment. "Third, monitoring this equipment requires the expenditure of a great amount of law enforcement's time." 114 Cong. Rec. 12988-12989 (68) (emphasis added).[23] Read in context, this and like commentary are inconsistent with, rather than an endorsement of, unauthorized break-ins. For although it is of course true that surreptitious entry is often "impossible" when it must be accomplished without violating the law, surreptitious entry is by no means impossible (indeed, it is hardly "difficult") if it may be effected by whatever means the policeunhampered by the provisions of the criminal lawcan bring to their disposal. Despite the Court's understanding of it, I read Senator Tydings' remark as only one of many expressions by Title III's supporters of their belief that authorized electronic surveillance would be "carefully circumscribed," and "rigidly controlled," not only by technology but also by "strict court supervision," the "strictest guidelines," at 16076 *274 (Rep. Harsha), and "an elaborate system of checks and safeguards."[24] Even the opponents of Title III, in parading before Congress the various invasions of privacy that they felt would accompany the passage of the statute, never once referred to breaking and entering private property. E. g., ; ; That they omitted such references while decrying far less aggravated invasions is |
Justice Stevens | 1,979 | 16 | dissenting | Dalia v. United States | https://www.courtlistener.com/opinion/110061/dalia-v-united-states/ | omitted such references while decrying far less aggravated invasions is strong evidence that they, at least, never thought about the issue that this case raises.[25] And since the sponsors of the legislation expressly stated that they had specified "every possible constitutional safeguard for the rights of individual privacy," at *275 14469 (Sen. McClellan),[26] their omission of any significant reference to these aggravated intrusions surely demonstrates that they did not consider this issue either. In sum, as far as my research reveals, during the debates on Title III neither the proponents nor the opponents of the bill directly or indirectly expressed the view that the statute would authorize uninvited forcible trespasses by police officers as a means of implanting a listening device. B Because the drafters of Title III made "indiscriminate reference. to the types of surveillance this Court reviewed" in prior cases, ante, at 251, the Court draws the conclusion that Congress meant to authorize all "types of surveillance" discussed in those cases. The premise does not support the conclusion. Many of those cases, including the two specifically cited by the Court,[27] held that the police conduct involved was unlawful. Rather than endorsing all of the techniques discussed in those cases, Congress was quite clearly trying to avoid the incidents of unconstitutionality those cases had *276 identified.[28] Moreover, in drafting Title III, the Senate Judiciary Committee did more than merely isolate and exclude from the bill the illegal elements of the police activity involved in those cases. Thus, the Chairman of the Committee, in answer to a colleague's question whether Title III was drafted in conformity with the Fourth Amendment, stated: "Completely so, let me say to my friend. Completely so, and it is even more restrictive. We have gone to every length which is proper, we think, to protect people's privacy." 114 Cong. Rec. 14470 (68). It is of greater importance, however, that although Congress was concerned with the "types of surveillance" involved in our prior cases, none of the congressional references to those cases discussed the type of entry made to effectuate the surveillance. Not a word in any of those pre-68 opinions, save one, described an illegal entry or even implied that such an entry had occurred. Those opinions instead described situations in which a listening device had been surreptitiously placed: against an office wall in order to hear conversations in the next office, ; on the person of a federal agent who recorded a conversation in the defendant's laundry, On ; in a cabaret, ; in a law office, ; against a spike inserted under a |
Justice Stevens | 1,979 | 16 | dissenting | Dalia v. United States | https://www.courtlistener.com/opinion/110061/dalia-v-united-states/ | a law office, ; against a spike inserted under a party wall, ; on the outside of a public telephone booth, ; and inside a private office, It is, of course, true that the conduct in each cited case was surreptitious, but there is a vast difference between detective work that is merely clandestine and work that involves breaking and entering into private property. Before the decisions in Katz and Berger, the former technique was considered to be lawful, warrant or *277 no warrant,[29] whereas the latter was considered unlawful.[30] The fact that Congress was prepared to enact a statute authorizing practices previously thought to be lawful surely does not justify the conclusion that it was equally prepared to authorize conduct that had always been made unlawful by the criminal laws of the various States. was the only pre-68 case in which this Court had actually confronted the implantation of an electronic listening device by way of a "trespass, and probably a burglary, for which any unofficial person should be, and probably would be, severely punished."[31] The plurality of four, speaking through Mr. Justice Jackson, had this to say about the police conduct in that case: "That officers of the law would break and enter a home, secrete such a device even in a bedroom, and listen to the conversations of the occupants for over a month would be incredible if it were not admitted. Few police measures have come to our attention that more flagrantly, deliberately, and persistently violated the fundamental *278 principle declared by the Fourth Amendment" No Member of the Court disagreed with this assessment, although a majority refused to overturn the conviction because the exclusionary rule did not then apply to the States. While it is true, as the Court points out, ante, at 247, that four Members of the Irvine Court adverted to the lack of a "search warrant or other process" to support the entry, 347 U.S., it is also true that no Justice condoned a break-in absent some court order explicitly contemplating physical entry on the premises. Under any reading of the case, it cannot be taken as condoning official trespass and burglary absent specific authorization. More importantly, the fact that Congress cited Irvine, without comment or explanation, when it was considering Title III cannot fairly be interpreted as an endorsement of the questionable police behavior that had been condemned so thunderously by Mr. Justice Jackson 14 years earlier. My respect for the lawmaking process forecloses the inference that Congress authorized burglarious conduct by such stealthy legislative history. IV Because it is not |
Justice Stevens | 1,979 | 16 | dissenting | Dalia v. United States | https://www.courtlistener.com/opinion/110061/dalia-v-united-states/ | by such stealthy legislative history. IV Because it is not supported by either the text of the statute or the scraps of relevant legislative history,[33] I fear that the *279 Court's holding may reflect an unarticulated presumption that national police officers have the power to carry out a surveillance order by whatever means may be necessary unless explicitly prohibited by the statute or by the Constitution. But surely the presumption should run the other way. Congressional silence should not be construed to authorize the Executive to violate state criminal laws or to encroach upon constitutionally protected privacy interests. Before confronting the serious constitutional issues raised by the Court's reading of Title III,[34] we should insist upon an unambiguous statement by Congress that this sort of police conduct may be authorized by a court and that a specific showing of necessity, or at least probable cause, must precede such an authorization. Without a legislative mandate that is both explicit and specific, I would presume that this flagrant invasion of the citizen's privacy is prohibited. Cf. United -179 ; United[35] I respectfully dissent. |
Justice Powell | 1,987 | 17 | dissenting | Pleasant Grove v. United States | https://www.courtlistener.com/opinion/111793/pleasant-grove-v-united-states/ | The Court today affirms the decision of the District Court, holding that a city can act with a purpose to "den[y] or abridg[e]" black voting rights, 42 U.S. C. 1973c, even when the city's actions can have no present effect on the voting rights of any black individual and any future effect on black voting rights is purely speculative. Because the Court's finding of a violation of the Voting Rights Act is inconsistent with the language and purpose of the Act, I dissent. *473 I Before examining the decision in this case, it is appropriate to restate the principles articulated in this Court's decisions under 5 of the Voting Rights Act. We have consistently noted: "The language of 5 clearly provides that it applies only to proposed changes in voting procedures." See In the Court first found that a proposed annexation could constitute a "change" in voting procedures covered by 5. It explained the reason for this holding: "[Section] 5 was designed to cover changes having a potential for racial discrimination in voting, and such potential inheres in a change in the composition of the electorate affected by an annexation." See Port ("Perkins held that changes in the boundary lines of a city by annexations that enlarge the number of eligible voters are events covered by 5") Thus, this Court's decisions establish that preclearance under 5 is required when and only when an annexation changes the previous "voting procedures" by altering the number or racial composition of the municipal voters. We also have defined the type of change in voting procedures that violates the Voting Rights Act: " `[T]he purpose of 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the franchise.' " (quoting ). An annexation can have such a retrogressive effect on the voting rights of blacks by "dilut[ing] the weight of the votes of the voters to whom the franchise was limited before the annexation." But the Court's inquiry has not terminated with a finding that a *474 proposed annexation "reduc[es] the relative political strength of the minority race in the enlarged city as compared with what it was before the annexation." City of Richmond v. United An annexation that dilutes the minority vote "is not a statutory violation as long as the post-annexation electoral system fairly recognizes the minority's political potential." While this Court's decisions have made clear that a voting-procedure change must lack both discriminatory purpose and effect to survive |
Justice Powell | 1,987 | 17 | dissenting | Pleasant Grove v. United States | https://www.courtlistener.com/opinion/111793/pleasant-grove-v-united-states/ | change must lack both discriminatory purpose and effect to survive 5 scrutiny, City of Rome v. United the Court has always recognized that a discriminatory purpose within the meaning of 5 must relate to voting. This Court's broad statement respecting discriminatory purpose under 5 must be read in context: "An official action, whether an annexation or otherwise, taken for the purpose of discriminating against Negroes on account of their race has no legitimacy at all under our Constitution or under the statute. Section 5 forbids voting changes taken with the purpose of denying the vote on the grounds of race or color. Congress surely has the power to prevent such gross racial slurs, the only point of which is `to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights.'" City of Richmond v. United at Thus, the previous decisions of this Court make explicitly clear that for a city to have a discriminatory purpose within the meaning of the Voting Rights Act, it must intend its action to have a retrogressive effect on the voting rights of blacks. at II The Court today affirms a finding that in annexing the two parcels of land at issue, the city had the purpose, prohibited by the Voting Rights Act, "of denying or abridging the right *475 to vote on account of race or color." 42 U.S. C. 1973c. Because the actions challenged in this case could not have had any effect on minority voting rights, much less a retrogressive effect, it is clear that the city of Pleasant Grove could not have acted with such an intent respecting either of the annexations at issue in this case. A When the Glasgow Addition was annexed in 1969, it contained only one family of 12 white voters. Now, more than 15 years later, this 40-acre tract still contains only one family that currently numbers 20 white voters. Of course, one can say that the addition of a handful of white voters to a community of some 7,000 white residents "enlarge[d] the number of eligible voters." Port at The same could be said if an annexation added only one white voter. But a finding that either annexation was motivated by its anticipated effect on voting rights is out of touch with reality. The "dilution" of any resident's voting rights from an annexation such as the Glasgow Addition 20 votes in a city of 7,000 residents could not constitute a retrogression in voting rights under the Act. No showing has been made and indeed none could be made |
Justice Powell | 1,987 | 17 | dissenting | Pleasant Grove v. United States | https://www.courtlistener.com/opinion/111793/pleasant-grove-v-united-states/ | been made and indeed none could be made that a change of this number of white voters over a 15-year period has had any effect on voting rights. Nor has the annexation in any way "change[d] the composition of the electorate." The city was composed solely of white voters before and after the annexation of the Glasgow Addition. The annexation therefore could not have had any effect whatsoever on minority voting rights, and the city could not have acted with a purpose to dilute the voting rights of black municipal voters. The Court attempts to avoid this conclusion by finding that a retrogression in voting rights, for the purpose of ascertaining discriminatory motivation, can be gauged by the effect of the annexation on some hypothetical future black municipal *476 voters. According to this speculative reasoning, if one assumes that some hypothetical black voters will move into Pleasant Grove in the future, and if one further assumes that the racial composition of the Glasgow Addition will remain unchanged, the hypothetical black voters will find their voting strength diluted from what it would have been absent the annexation.[1] But such speculation in finding a discriminatory purpose on the part of a state actor is illogical and unprecedented. Although we have stated that 5 reaches changes with the "potential for racial discrimination in voting," 400 U. S., the "potential" refers to present and concrete effects, not effects based only on speculation as to what might happen at some time in the future. Under 5, the Court consistently has looked to the effect of a voting change on the present minority residents of the relevant political subdivision. See City of Richmond v. United at[2] Where an annexation's effect on voting rights is *477 purely hypothetical, an inference that the city acted with a motivation related to voting rights is unsupportable. B The Western Addition, annexed in 1979, is a parcel of vacant land. Its annexation did not and could not in any way "change the composition of the electorate." It did not even "enlarge the number of eligible voters." Port 459 U. S., at Thus, it is difficult to see how the Court justifies applying 5 preclearance procedures at all. But even if one assumes that the 5 procedures apply, this annexation could not have been motivated by a discriminatory purpose proscribed by the Voting Rights Act. There is no basis for imputing an intent to deny or abridge the voting rights of blacks when a community of white citizens annexes completely vacant land. The annexation did not exclude or include a |
Justice Powell | 1,987 | 17 | dissenting | Pleasant Grove v. United States | https://www.courtlistener.com/opinion/111793/pleasant-grove-v-united-states/ | vacant land. The annexation did not exclude or include a single voter in Pleasant Grove. Nor could the annexation have been intended to have a retrogressive effect on black voting rights when there were no black voters in the city and no voters, white or black, in the Western Addition. The Court again relies on future hypothetical black voters to find that the city acted with a "purpose of denying the vote on the grounds of race or color." City of Richmond v. United 422 U. S., at Under the same reasoning employed to invalidate the annexation of the Glasgow Addition, the Court relies on its speculation that if the Western Addition became populated with whites and if black voters moved into the city at some time in the future, their vote would be less effective than it would have been had the annexation not occurred. But the Court's theory is even more speculative when applied to the annexation of the vacant Western Addition. There is no way for the city to ensure that black individuals do not move into the Western Addition. The Fourteenth Amendment and various civil rights laws prohibit racially discriminatory state action, and fair *478 housing laws prevent private action that would discourage black individuals from moving into the area. The District Court's conclusion that the Western Addition "is likely to be developed for use by white persons only," is sheer speculation. Whites as well as blacks lawfully can move into this area, and not even the prescience of federal courts can predict the extent to which this will occur or whether there ever will be any denial or dilution of the voting rights of blacks.[3] C The Court seeks support for its finding that the city acted with discriminatory motivation in the fact that it has declined in the past to annex three predominantly black communities.[4] In his dissent from the decision of the District Court, Judge MacKinnon persuasively pointed out that the city's economic justification for its annexation policy is plausible. Even if one agreed with the District Court's view that the economic justification was flawed, this would not support the conclusion that the city acted in this case with a discriminatory motivation prohibited by the Voting Rights Act. The Government concedes that a failure to annex is not a voting-procedure "change" covered by 5. See Brief for United 21, n. 12. Nothing in the legislative history of 5 or in any decision *479 of this Court is to the contrary. The only possible relevance of the failure to annex is to the city's |
Justice Powell | 1,987 | 17 | dissenting | Pleasant Grove v. United States | https://www.courtlistener.com/opinion/111793/pleasant-grove-v-united-states/ | relevance of the failure to annex is to the city's intent respecting the annexations that did occur. The desire of the city to annex a vacant parcel of land and a parcel inhabited by one white family, combined with the failure to annex black communities, is relevant if at all only if the motivation inferred fairly can be said to relate to voting. Even if the city desired to exclude persons from the city because of their race, the annexations at issue could not possibly deny, abridge, or in any way effect a retrogression in any black individual's municipal voting rights. The Court's holding that the city nevertheless intended to impair black voting rights is without justification. III As Judge MacKinnon noted in his dissent from the District Court's opinion: "There may, in fact, be actionable constitutional violations occurring in the City." But the possible existence of discriminatory intent and conduct unrelated to voting does not justify finding the city liable under the Voting Rights Act. We normally presume that state actors respect the guarantees of the Constitution, and we require an individual who alleges otherwise to prove the existence of purposeful discrimination. See Arlington ; The Voting Rights Act shifts the burden of proof to the state actor to prove the absence of discriminatory purpose. This Court upheld this unusual intrusion by the Act on state sovereignty specifically because its procedures were rationally related to the Fifteenth Amendment's guarantee respecting the right to vote. South This shift in the burden of proof is justified only when the challenged conduct relates to voting. Here, the Court finds the city's conduct in fact related to voting when such a relationship cannot rationally exist. *480 In sum, the Court's reading of the Voting Rights Act divorces the Act from its constitutional justification protecting voting rights and represents an extension of the Act beyond even its "broadest possible scope," Accordingly, I dissent. |
Justice Brennan | 1,972 | 13 | majority | Eisenstadt v. Baird | https://www.courtlistener.com/opinion/108489/eisenstadt-v-baird/ | Appellee William was convicted at a bench trial in the Massachusetts Superior Court under Massachusetts Laws Ann., c. 272, first, for exhibiting contraceptive articles in the course of delivering a lecture on contraception to a group of students at Boston University and, second, for giving a young woman a package of Emko vaginal foam at the close of his address.[1] The Massachusetts Supreme Judicial Court unanimously set aside the conviction for exhibiting contraceptives on the ground that it violated 's First Amendment rights, but by a four-to-three vote sustained the conviction for giving away the foam. subsequently filed a petition for a federal writ of habeas corpus, which the District Court dismissed. On appeal, however, the Court of Appeals for the First Circuit vacated the dismissal and remanded the action with directions to grant the writ discharging This appeal by the Sheriff of Suffolk County, Massachusetts, followed, and we noted probable jurisdiction. We affirm. Massachusetts Laws Ann., c. 272, under which was convicted, provides a maximum five-year term of imprisonment for "whoever gives away any drug, medicine, instrument or article whatever *441 for the prevention of conception," except as authorized in A. Under A, "[a] registered physician may administer to or prescribe for any married person drugs or articles intended for the prevention of pregnancy or conception. [And a] registered pharmacist actually engaged in the business of pharmacy may furnish such drugs or articles to any married person presenting a prescription from a registered physician."[2] As interpreted by the State Supreme Judicial *442 Court, these provisions make it a felony for anyone, other than a registered physician or pharmacist acting in accordance with the terms of A, to dispense any article with the intention that it be used for the prevention of conception. The statutory scheme distinguishes among three distinct classes of distributeesfirst, married persons may obtain contraceptives to prevent pregnancy, but only from doctors or druggists on prescription; second, single persons may not obtain contraceptives from anyone to prevent pregnancy; and, third, married or single persons may obtain contraceptives from anyone to prevent, not pregnancy, but the spread of disease. This construction of state law is, of course, binding on us. E. g., The legislative purposes that the statute is meant to serve are not altogether clear. In the Supreme Judicial Court noted only the State's interest in protecting the health of its citizens: "[T]he prohibition in" the court declared, "is directly related to" the State's goal of "preventing the distribution of articles designed to prevent conception which may have undesirable, if not dangerous, physical consequences." In a subsequent |
Justice Brennan | 1,972 | 13 | majority | Eisenstadt v. Baird | https://www.courtlistener.com/opinion/108489/eisenstadt-v-baird/ | have undesirable, if not dangerous, physical consequences." In a subsequent decision, the court, however, found "a second and more compelling ground for upholding the statute"namely, to protect morals through "regulating the private sexual lives of single persons."[] The Court of Appeals, for reasons that will *44 appear, did not consider the promotion of health or the protection of morals through the deterrence of fornication to be the legislative aim. Instead, the court concluded that the statutory goal was to limit contraception in and of itselfa purpose that the court held conflicted "with fundamental human rights" under where this Court struck down 's prohibition against the use of contraceptives as an unconstitutional infringement of the right of marital -1402. We agree that the goals of deterring premarital sex and regulating the distribution of potentially harmful articles cannot reasonably be regarded as legislative aims of and A. And we hold that the statute, viewed as a prohibition on contraception per se, violates the rights of single persons under the Equal Protection Clause of the Fourteenth Amendment. I We address at the outset appellant's contention that does not have standing to assert the rights of unmarried persons denied access to contraceptives because he was neither an authorized distributor under A nor a single person unable to obtain contraceptives. There can be no question, of course, that has sufficient interest in challenging the statute's validity to satisfy the "case or controversy" requirement of Article III of the Constitution.[4] Appellant's argument, however, is that *444 this case is governed by the Court's self-imposed rules of restraint, first, that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional," United and, second, the "closely related corollary that a litigant may only assert his own constitutional rights or immunities," Here, appellant contends that 's conviction rests on the restriction in A on permissible distributors and that that restriction serves a valid health interest independent of the limitation on authorized distributees. Appellant urges, therefore, that 's action in giving away the foam fell squarely within the conduct that the legislature meant and had power to prohibit and that should not be allowed to attack the statute in its application to potential recipients. In any event, appellant concludes, since was not himself a single person denied access to contraceptives, he should not be heard to assert their rights. We cannot agree. The Court of Appeals held that |
Justice Brennan | 1,972 | 13 | majority | Eisenstadt v. Baird | https://www.courtlistener.com/opinion/108489/eisenstadt-v-baird/ | rights. We cannot agree. The Court of Appeals held that the statute under which was convicted is not a health measure. If that view is correct, we do not see how may be prevented, because he was neither a doctor nor a druggist, from attacking the statute in its alleged discriminatory application to potential distributees. We think, too, that our self-imposed rule against the assertion of third-party rights must be relaxed in this case just as in There the Executive Director of the Planned Parenthood League of and a licensed physician who had prescribed contraceptives for married persons and been convicted as accessories to the crime of using contraceptives were held to have standing to raise the constitutional rights of the patients with whom they had a professional relationship. *445 Appellant here argues that the absence of a professional or aiding-and-abetting relationship distinguishes this case from Yet, as the Court's discussion of prior authority in indicates, the doctor-patient and accessory-principal relationships are not the only circumstances in which one person has been found to have standing to assert the rights of another. Indeed, in a seller of land was entitled to defend against an action for damages for breach of a racially restrictive covenant on the ground that enforcement of the covenant violated the equal protection rights of prospective non-Caucasian purchasers. The relationship there between the defendant and those whose rights he sought to assert was not simply the fortuitous connection between a vendor and potential vendees, but the relationship between one who acted to protect the rights of a minority and the minority itself. Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L. J. 599, 61 (19). And so here the relationship between and those whose rights he seeks to assert is not simply that between a distributor and potential distributees, but that between an advocate of the rights of persons to obtain contraceptives and those desirous of doing so. The very point of 's giving away the vaginal foam was to challenge the Massachusetts statute that limited access to contraceptives. In any event, more important than the nature of the relationship between the litigant and those whose rights he seeks to assert is the impact of the litigation on the third-party interests.[5] In the *446 Court stated: "The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them." A similar situation obtains here. Enforcement of the Massachusetts statute will |
Justice Brennan | 1,972 | 13 | majority | Eisenstadt v. Baird | https://www.courtlistener.com/opinion/108489/eisenstadt-v-baird/ | similar situation obtains here. Enforcement of the Massachusetts statute will materially impair the ability of single persons to obtain contraceptives. In fact, the case for according standing to assert third-party rights is stronger in this regard here than in because unmarried persons denied access to contraceptives in Massachusetts, unlike the users of contraceptives in are not themselves subject to prosecution and, to that extent, are denied a forum in which to assert their own rights. Cf. ; [6] The Massachusetts statute, unlike the law considered in prohibits, not use, but distribution. For the foregoing reasons we hold that who is now in a position, and plainly has an adequate incentive, to assert the rights of unmarried persons denied access to contraceptives, has standing to do so. We turn to the merits. II The basic principles governing application of the Equal Protection Clause of the Fourteenth Amendment are familiar. AS THE CHIEF JUSTICE only recently explained in : "In applying that clause, this Court has consistently recognized that the Fourteenth Amendment *447 does not deny to States the power to treat different classes of persons in different ways. ; ; Railway Express ; The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification `must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' Royster Guano" The question for our determination in this case is whether there is some ground of difference that rationally explains the different treatment accorded married and unmarried persons under Massachusetts Laws Ann., c. 272, and A.[7] For the reasons that follow, we conclude that no such ground exists. First. Section stems from Mass. Stat. 1879, c. 159, 1, which prohibited, without exception, distribution of articles intended to be used as contraceptives. In the Massachusetts Supreme Judicial Court explained that the law's "plain purpose is to protect purity, to preserve chastity, to encourage continence and self restraint, to defend the sanctity of the home, and thus to engender in the State and nation a virile and virtuous race of men and women." Although the State clearly abandoned that purpose with the enactment of A, at least insofar as the illicit sexual activities of married persons are concerned, see n. the court reiterated in that the object of the |
Justice Brennan | 1,972 | 13 | majority | Eisenstadt v. Baird | https://www.courtlistener.com/opinion/108489/eisenstadt-v-baird/ | n. the court reiterated in that the object of the legislation is to discourage premarital sexual intercourse. Conceding that the State could, consistently with the Equal Protection Clause, regard the problems of extramarital and premarital sexual relations as "[e]vils of different dimensions and proportions, requiring different remedies," 48 U.S. 48, we cannot agree that the deterrence of premarital sex may reasonably be regarded as the purpose of the Massachusetts law. It would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for fornication, which is a misdemeanor under Massachusetts Laws Ann., c. 272, 18. Aside from the scheme of values that assumption would attribute to the State, it is abundantly clear that the effect of the ban on distribution of contraceptives to unmarried persons has at best a marginal relation to the proffered objective. What Mr. Justice Goldberg said in concerning the effect of 's prohibition on the use of contraceptives in discouraging extramarital sexual relations, is equally applicable here. "The rationality of this justification is dubious, particularly in light of the admitted widespread availability to all persons in the State of unmarried as well as married, of birth-control devices for the *449 prevention of disease, as distinguished from the prevention of conception." See also at 505- Like 's laws, and A do not at all regulate the distribution of contraceptives when they are to be used to prevent, not pregnancy, but the spread of disease. 07 Mass. 7, cited with approval in 55 Mass., at 754, Nor, in making contraceptives available to married persons without regard to their intended use, does Massachusetts attempt to deter married persons from engaging in illicit sexual relations with unmarried persons. Even on the assumption that the fear of pregnancy operates as a deterrent to fornication, the Massachusetts statute is thus so riddled with exceptions that deterrence of premarital sex cannot reasonably be regarded as its aim. Moreover, and A on their face have a dubious relation to the State's criminal prohibition on fornication. As the Court of Appeals explained, "Fornication is a misdemeanor [in Massachusetts], entailing a thirty dollar fine, or three months in jail. Massachusetts Laws Ann. c. 272 18. Violation of the present statute is a felony, punishable by five years in prison. We find it hard to believe that the legislature adopted a statute carrying a five-year penalty for its possible, obviously by no means fully effective, deterrence of the commission of a ninety-day misdemeanor." Even conceding the legislature a full measure of discretion in fashioning means to prevent fornication, |
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