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Justice Burger | 1,971 | 12 | majority | Tilton v. Richardson | https://www.courtlistener.com/opinion/108381/tilton-v-richardson/ | This appeal presets importat costitutioal questios as to federal aid for church-related colleges ad uiversities uder Title I of the Higher Educatio Facilities Act of 1963, as ameded, 20 U.S. C. 711-721 (1964 ed. ad Supp. V), which provides costructio grats for buildigs ad facilities used *675 exclusively for secular educatioal purposes. We must determie first whether the Act authorizes aid to such church-related istitutios, ad, if so, whether the Act violates either the Establishmet or Free Exercise Clauses of the First Amedmet. I The Higher Educatio Facilities Act was passed i 1963 i respose to a strog atiowide demad for the expasio of college ad uiversity facilities to meet the sharply risig umber of youg people demadig higher educatio. The Act authorizes federal grats ad loas to "istitutios of higher educatio" for the costructio of a wide variety of "academic facilities." But 751 (a) (2) (1964 ed., Supp. V) expressly excludes "ay facility used or to be used for sectaria istructio or as a place for religious worship, or ay facility which is used or to be used primarily i coectio with ay part of the program of a school or departmet of diviity" The Act is admiistered by the Uited States Commissioer of Educatio. He advises colleges ad uiversities applyig for fuds that uder the Act o part of the project may be used for sectaria istructio, religious worship, or the programs of a diviity school. The Commissioer requires applicats to provide assuraces that these restrictios will be respected. The Uited States retais a 20-year iterest i ay facility costructed with Title I fuds. If, durig this period, the recipiet violates the statutory coditios, the Uited States is etitled to recover a amout equal to the proportio of its preset value that the federal grat bore to the origial cost of the facility. Durig the 20-year period, the statutory restrictios are eforced by the Office of Educatio primarily by way of o-site ispectios. *676 Appellats are citizes ad taxpayers of the Uited States ad residets of Coecticut. They brought this suit for ijuctive relief agaist the officials who admiister the Act. Four church-related colleges ad uiversities i Coecticut receivig federal costructio grats uder Title I were also amed as defedats. Federal fuds were used for five projects at these four istitutios: (1) a library buildig at Sacred Heart Uiversity; (2) a music, drama, ad arts buildig at Ahurst College; (3) a sciece buildig at Fairfield Uiversity; (4) a library buildig at Fairfield; ad (5) a laguage laboratory at Albertus Magus College. A three-judge federal court was coveed uder |
Justice Burger | 1,971 | 12 | majority | Tilton v. Richardson | https://www.courtlistener.com/opinion/108381/tilton-v-richardson/ | Albertus Magus College. A three-judge federal court was coveed uder 28 U.S. C. 2282 ad 2284. Appellats attempted to show that the four recipiet istitutios were "sectaria" by itroducig evidece of their relatios with religious authorities, the cotet of their curricula, ad other idicia of their religious character. The sposorship of these istitutios by religious orgaizatios is ot disputed. Appellee colleges itroduced testimoy that they had fully complied with the statutory coditios ad that their religious affiliatio i o way iterfered with the performace of their secular educatioal fuctios. The District Court ruled that Title I authorized grats to church-related colleges ad uiversities. It also sustaied the costitutioality of the Act, fidig that it had either the purpose or the effect of promotig religio. II We are satisfied that Cogress iteded the Act to iclude all colleges ad uiversities regardless of ay affiliatio with or sposorship by a religious body. Cogress defied "istitutios of higher educatio," which are eligible to receive aid uder the Act, i broad ad *677 iclusive terms. Certai istitutios, for example, istitutios that are either public or oprofit, are expressly excluded, ad the Act expressly prohibits use of the facilities for religious purposes. But the Act makes o referece to religious affiliatio or oaffiliatio. Uder these circumstaces "istitutios of higher educatio" must be take to iclude church-related colleges ad uiversities. This iterpretatio is fully supported by the legislative history. Although there was extesive debate o the wisdom ad costitutioality of aid to istitutios affiliated with religious orgaizatios, Cogress clearly icluded them i the program. The sposors of the Act so stated, 109 Cog. Rec. 19218 (remarks of Se. Morse); ; ad amedmets aimed at the exclusio of church-related istitutios were defeated. III Numerous cases cosidered by the Court have oted the iteral tesio i the First Amedmet betwee the Establishmet Clause ad the Free Exercise Clause. is the most recet decisio seekig to defie the boudaries of the eutral area betwee these two provisios withi which the legislature may legitimately act. There, as i other decisios, the Court treated the three mai cocers agaist which the Establishmet Clause sought to protect: "sposorship, fiacial support, ad active ivolvemet of the sovereig i religious activity." Every aalysis must begi with the cadid ackowledgmet that there is o sigle costitutioal caliper that ca be used to measure the precise degree to which these three factors are preset or abset. Istead, our *678 aalysis i this area must begi with a cosideratio of the cumulative criteria developed over may years ad applyig to a wide rage of govermetal actio challeged |
Justice Burger | 1,971 | 12 | majority | Tilton v. Richardson | https://www.courtlistener.com/opinion/108381/tilton-v-richardson/ | ad applyig to a wide rage of govermetal actio challeged as violative of the Establishmet Clause. There are always risks i treatig criteria discussed by the Court from time to time as "tests" i ay limitig sese of that term. Costitutioal adjudicatio does ot led itself to the absolutes of the physical scieces or mathematics. The stadards should rather be viewed as guidelies with which to idetify istaces i which the objectives of the Religio Clauses have bee impaired. Ad, as we have oted i Lemo v. Kurtzma ad Earley v. DiCeso, ate, at 612, cador compels the ackowledgmet that we ca oly dimly perceive the boudaries of permissible govermet activity i this sesitive area of costitutioal adjudicatio. Agaist this backgroud we cosider four questios: First, does the Act reflect a secular legislative purpose? Secod, is the primary effect of the Act to advace or ihibit religio? Third, does the admiistratio of the Act foster a excessive govermet etaglemet with religio? Fourth, does the implemetatio of the Act ihibit the free exercise of religio? (a) The stated legislative purpose appears i the preamble where Cogress foud ad declared that "the security ad welfare of the Uited States require that this ad future geeratios of America youth be assured ample opportuity for the fullest developmet of their itellectual capacities, ad that this opportuity will be jeopardized uless the Natio's colleges ad uiversities are ecouraged ad assisted i their efforts to accommodate rapidly growig umbers of youth who aspire to a higher educatio." 20 U.S. C. 701. *679 This expresses a legitimate secular objective etirely appropriate for govermetal actio. The simplistic argumet that every form of fiacial aid to church-sposored activity violates the Religio Clauses was rejected log ago i There a federal costructio grat to a hospital operated by a religious order was upheld. Here the Act is challeged o the groud that its primary effect is to aid the religious purposes of church-related colleges ad uiversities. Costructio grats surely aid these istitutios i the sese that the costructio of buildigs will assist them to perform their various fuctios. But bus trasportatio, textbooks, ad tax exemptios all gave aid i the sese that religious bodies would otherwise have bee forced to fid other sources from which to fiace these services. Yet all of these forms of govermetal assistace have bee upheld. ; Board of ; See also The crucial questio is ot whether some beefit accrues to a religious istitutio as a cosequece of the legislative program, but whether its pricipal or primary effect advaces religio. A possibility always exists, of |
Justice Burger | 1,971 | 12 | majority | Tilton v. Richardson | https://www.courtlistener.com/opinion/108381/tilton-v-richardson/ | or primary effect advaces religio. A possibility always exists, of course, that the legitimate objectives of ay law or legislative program may be subverted by coscious desig or lax eforcemet. There is othig ew i this argumet. But judicial cocer about these possibilities caot, stadig aloe, warrat strikig dow a statute as ucostitutioal. The Act itself was carefully drafted to esure that the federally subsidized facilities would be devoted to the secular ad ot the religious fuctio of the recipiet istitutios. It authorizes grats ad loas oly for academic facilities that will be used for defied secular purposes ad expressly prohibits their use for religious *680 istructio, traiig, or worship. These restrictios have bee eforced i the Act's actual admiistratio, ad the record shows that some church-related istitutios have bee required to disgorge beefits for failure to obey them. Fially, this record fully supports the fidigs of the District Court that oe of the four church-related istitutios i this case has violated the statutory restrictios. The istitutios preseted evidece that there had bee o religious services or worship i the federally fiaced facilities, that there are o religious symbols or plaques i or o them, ad that they had bee used solely for oreligious purposes. O this record, therefore, these buildigs are idistiguishable from a typical state uiversity facility. Appellats preseted o evidece to the cotrary. Appellats istead rely o the argumet that govermet may ot subsidize ay activities of a istitutio of higher learig that i some of its programs teaches religious doctries. This argumet rests o Everso where the majority stated that the Establishmet Clause barred ay "tax levied to support ay religious istitutios whatever form they may adopt to teach or practice religio." I Alle, however, it was recogized that the Court had fashioed criteria uder which a aalysis of a statute's purpose ad effect was determiative as to whether religio was beig advaced by govermet actio. ; Abigto School Uder this cocept appellats' positio depeds o the validity of the propositio that religio so permeates the secular educatio provided by church-related colleges ad uiversities that their religious ad secular educatioal fuctios are i fact iseparable. The argumet that govermet grats would thus ievitably advace *681 religio did ot escape the otice of Cogress. It was carefully ad thoughtfully debated, 109 Cog. Rec. 19474-19475, but was foud upersuasive. It was also cosidered by this Court i Alle. There the Court refused to assume that religiosity i parochial elemetary ad secodary schools ecessarily permeates the secular educatio that they provide. This record, similarly, provides o basis for ay |
Justice Burger | 1,971 | 12 | majority | Tilton v. Richardson | https://www.courtlistener.com/opinion/108381/tilton-v-richardson/ | they provide. This record, similarly, provides o basis for ay such assumptio here. Two of the five federally fiaced buildigs ivolved i this case are libraries. The District Court foud that o classes had bee coducted i either of these facilities ad that o restrictios were imposed by the istitutios o the books that they acquired. There is o evidece to the cotrary. The third buildig was a laguage laboratory at Albertus Magus College. The evidece showed that this facility was used solely to assist studets with their prouciatio i moder foreig laguagesa use which would seem peculiarly urelated ad uadaptable to religious idoctriatio. Federal grats were also used to build a sciece buildig at Fairfield Uiversity ad a music, drama, ad arts buildig at Ahurst College. There is o evidece that religio seeps ito the use of ay of these facilities. Ideed, the parties stipulated i the District Court that courses at these istitutios are taught accordig to the academic requiremets itrisic to the subject matter ad the idividual teacher's cocept of professioal stadards. Although appellats itroduced several istitutioal documets that stated certai religious restrictios o what could be taught, other evidece showed that these restrictios were ot i fact eforced ad that the schools were characterized by a atmosphere of academic freedom rather tha religious idoctriatio. All four istitutios, for example, subscribe to the 1940 Statemet of Priciples o Academic *682 Freedom ad Teure edorsed by the America Associatio of Uiversity Professors ad the Associatio of America Colleges. Rather tha focus o the four defedat colleges ad uiversities ivolved i this case, however, appellats seek to shift our attetio to a "composite profile" that they have costructed of the "typical sectaria" istitutio of higher educatio. We are told that such a "composite" istitutio imposes religious restrictios o admissios, requires attedace at religious activities, compels obediece to the doctries ad dogmas of the faith, requires istructio i theology ad doctrie, ad does everythig it ca to propagate a particular religio. Perhaps some church-related schools fit the patter that appellats describe. Ideed, some colleges have bee declared ieligible for aid by the authorities that admiister the Act. But appellats do ot coted that these four istitutios fall withi this category. Idividual projects ca be properly evaluated if ad whe challeges arise with respect to particular recipiets ad some evidece is the preseted to show that the istitutio does i fact possess these characteristics. We caot, however, strike dow a Act of Cogress o the basis of a hypothetical "profile." (b) Although we reject appellats' broad costitutioal argumets we do perceive |
Justice Burger | 1,971 | 12 | majority | Tilton v. Richardson | https://www.courtlistener.com/opinion/108381/tilton-v-richardson/ | Although we reject appellats' broad costitutioal argumets we do perceive a aspect i which the statute's eforcemet provisios are iadequate to esure that the impact of the federal aid will ot advace religio. If a recipiet istitutio violates ay of the statutory restrictios o the use of a federally fiaced facility, 754 (b) (2) permits the Govermet to recover a amout equal to the proportio of the facility's preset value that the federal grat bore to its origial cost. *683 This remedy, however, is available to the Govermet oly if the statutory coditios are violated "withi twety years after completio of costructio." This 20-year period is termed by the statute as "the period of Federal iterest" ad reflects Cogress' fidig that after 20 years "the public beefit accruig to the Uited States" from the use of the federally fiaced facility "will equal or exceed i value" the amout of the federal grat. 20 U.S. C. 754 (a). Uder 754 (b) (2), therefore, a recipiet istitutio's obligatio ot to use the facility for sectaria istructio or religious worship would appear to expire at the ed of 20 years. We ote, for example, that uder 718 (b) (7) (C) (1964 ed., Supp. V), a istitutio applyig for a federal grat is oly required to provide assuraces that the facility will ot be used for sectaria istructio or religious worship "durig at least the period of the Federal iterest therei (as defied i sectio 754 of this title)." Limitig the prohibitio for religious use of the structure to 20 years obviously opes the facility to use for ay purpose at the ed of that period. It caot be assumed that a substatial structure has o value after that period ad hece the urestricted use of a valuable property is i effect a cotributio of some value to a religious body. Cogress did ot base the 20-year provisio o ay cotrary coclusio. If, at the ed of 20 years, the buildig is, for example, coverted ito a chapel or otherwise used to promote religious iterests, the origial federal grat will i part have the effect of advacig religio. To this extet the Act therefore trespasses o the Religio Clauses. The restrictive obligatios of a recipiet istitutio uder 751 (a) (2) caot, compatibly with the Religio Clauses, expire while the buildig has substatial value. This circumstace does ot require us to *684 ivalidate the etire Act, however. "The cardial priciple of statutory costructio is to save ad ot to destroy." NLRB v. Joes & Laughli Steel Corp., I Champli Rfg. Co. v. Commissio, the Court |
Justice Burger | 1,971 | 12 | majority | Tilton v. Richardson | https://www.courtlistener.com/opinion/108381/tilton-v-richardson/ | Steel Corp., I Champli Rfg. Co. v. Commissio, the Court oted "The ucostitutioality of a part of a Act does ot ecessarily defeat the validity of its remaiig provisios. Uless it is evidet that the legislature would ot have eacted those provisios which are withi its power, idepedetly of that which is ot, the ivalid part may be dropped if what is left is fully operative as a law." Nor does the absece of a express severability provisio i the Act dictate the demise of the etire statute. E. g., Uited States v. Jackso, 585 27 We have foud othig i the statute or its objectives itimatig that Cogress cosidered the 20-year provisio essetial to the statutory program as a whole. I view of the broad ad importat goals that Cogress iteded this legislatio to serve, there is o basis for assumig that the Act would have failed of passage without this provisio; or will its excisio impair either the operatio or admiistratio of the Act i ay sigificat respect.[1] IV We ext tur to the questio of whether excessive etaglemets characterize the relatioship betwee govermet ad church uder the Act. Our decisio today i *685 Lemo v. Kurtzma ad Robiso v. DiCeso has discussed ad applied this idepedet measure of costitutioality uder the Religio Clauses. There we cocluded that excessive etaglemets betwee govermet ad religio were fostered by Pesylvaia ad Rhode Islad statutory programs uder which state aid was provided to parochial elemetary ad secodary schools. Here, however, three factors substatially dimiish the extet ad the potetial dager of the etaglemet. I DiCeso the District Court foud that the parochial schools i Rhode Islad were "a itegral part of the religious missio of the Catholic Church." There, the record fully supported the coclusio that the iculcatio of religious values was a substatial if ot the domiat purpose of the istitutios. The Pesylvaia case was decided o the pleadigs, ad hece we accepted as true the allegatios that the parochial schools i that State shared the same characteristics. Appellats' complait here cotais similar allegatios. But they were deied by the aswers, ad there was extesive evidece itroduced o the subject. Although the District Court made o fidigs with respect to the religious character of the four istitutios of higher learig, we are ot required to accept the allegatios as true uder these circumstaces, particularly where, as here, appellats themselves do ot coted that these four istitutios are "sectaria." There are geerally sigificat differeces betwee the religious aspects of church-related istitutios of higher learig ad parochial elemetary ad secodary schools.[2] The |
Justice Burger | 1,971 | 12 | majority | Tilton v. Richardson | https://www.courtlistener.com/opinion/108381/tilton-v-richardson/ | of higher learig ad parochial elemetary ad secodary schools.[2] The "affirmative if ot domiat policy" of the istructio i pre-college church schools is "to assure future *686 adherets to a particular faith by havig cotrol of their total educatio at a early age."[3] There is substace to the cotetio that college studets are less impressioable ad less susceptible to religious idoctriatio.[4] Commo observatio would seem to support that view, ad Cogress may well have etertaied it. The skepticism of the college studet is ot a icosiderable barrier to ay attempt or tedecy to subvert the cogressioal objectives ad limitatios. Furthermore, by their very ature, college ad postgraduate courses ted to limit the opportuities for sectaria ifluece by virtue of their ow iteral disciplies. May church-related colleges ad uiversities are characterized by a high degree of academic freedom[5] ad seek to evoke free ad critical resposes from their studets. The record here would ot support a coclusio that ay of these four istitutios departed from this geeral patter. All four schools are govered by Catholic religious orgaizatios, ad the faculties ad studet bodies at each are predomiatly Catholic. Nevertheless, the evidece shows that o-Catholics were admitted as studets ad give faculty appoitmets. Not oe of these four istitutios requires its studets to atted religious services. Although all four schools require their studets to take theology courses, the parties stipulated that these courses are taught accordig to the academic requiremets of the subject matter ad the teacher's cocept of professioal stadards. The parties also stipulated that the courses covered a rage of huma religious *687 experieces ad are ot limited to courses about the Roma Catholic religio. The schools itroduced evidece that they made o attempt to idoctriate studets or to proselytize. Ideed, some of the required theology courses at Albertus Magus ad Sacred Heart are taught by rabbis. Fially, as we have oted, these four schools subscribe to a well-established set of priciples of academic freedom, ad othig i this record shows that these priciples are ot i fact followed. I short, the evidece shows istitutios with admittedly religious fuctios but whose predomiat higher educatio missio is to provide their studets with a secular educatio. Sice religious idoctriatio is ot a substatial purpose or activity of these church-related colleges ad uiversities, there is less likelihood tha i primary ad secodary schools that religio will permeate the area of secular educatio. This reduces the risk that govermet aid will i fact serve to support religious activities. Correspodigly, the ecessity for itesive govermet surveillace is dimiished ad the resultig etaglemets betwee govermet ad |
Justice Burger | 1,971 | 12 | majority | Tilton v. Richardson | https://www.courtlistener.com/opinion/108381/tilton-v-richardson/ | surveillace is dimiished ad the resultig etaglemets betwee govermet ad religio lesseed. Such ispectio as may be ecessary to ascertai that the facilities are devoted to secular educatio is miimal ad ideed hardly more tha the ispectios that States impose over all private schools withi the reach of compulsory educatio laws. The etaglemet betwee church ad state is also lesseed here by the oideological character of the aid that the Govermet provides. Our cases from Everso to Alle have permitted church-related schools to receive govermet aid i the form of secular, eutral, or o-ideological services, facilities, or materials that are supplied to all studets regardless of the affiliatio of the school that they atted. I Lemo ad DiCeso, however, the state programs subsidized teachers, either directly or idirectly. Sice teachers are ot ecessarily *688 religiously eutral, greater govermetal surveillace would be required to guaratee that state salary aid would ot i fact subsidize religious istructio. There we foud the resultig etaglemet excessive. Here, o the other had, the Govermet provides facilities that are themselves religiously eutral. The risks of Govermet aid to religio ad the correspodig eed for surveillace are therefore reduced. Fially, govermet etaglemets with religio are reduced by the circumstace that, ulike the direct ad cotiuig paymets uder the Pesylvaia program, ad all the icidets of regulatio ad surveillace, the Govermet aid here is a oe-time, sigle-purpose costructio grat. There are o cotiuig fiacial relatioships or depedecies, o aual audits, ad o govermet aalysis of a istitutio's expeditures o secular as distiguished from religious activities. Ispectio as to use is a miimal cotact. No oe of these three factors stadig aloe is ecessarily cotrollig; cumulatively all of them shape a arrow ad limited relatioship with govermet which ivolves fewer ad less sigificat cotacts tha the two state schemes before us i Lemo ad DiCeso. The relatioship therefore has less potetial for realizig the substative evils agaist which the Religio Clauses were iteded to protect. We thik that cumulatively these three factors also substatially lesse the potetial for divisive religious fragmetatio i the political area. This coclusio is admittedly difficult to documet, but either have appellats poited to ay cotiuig religious aggravatio o this matter i the political processes. Possibly this ca be explaied by the character ad diversity of the recipiet colleges ad uiversities ad the absece of ay itimate cotiuig relatioship or depedecy betwee govermet ad religiously affiliated istitutios. The *689 potetial for divisiveess iheret i the essetially local problems of primary ad secodary schools is sigificatly less with respect to a college or uiversity whose studet |
Justice Burger | 1,971 | 12 | majority | Tilton v. Richardson | https://www.courtlistener.com/opinion/108381/tilton-v-richardson/ | less with respect to a college or uiversity whose studet costituecy is ot local but diverse ad widely dispersed. V Fially, we must cosider whether the implemetatio of the Act ihibits the free exercise of religio i violatio of the First Amedmet. Appellats claim that the Free Exercise Clause is violated because they are compelled to pay taxes, the proceeds of which i part fiace grats uder the Act. Appellats, however, are uable to idetify ay coercio directed at the practice or exercise of their religious beliefs. Board of Their share of the cost of the grats uder the Act is ot fudametally distiguishable from the impact of the tax exemptio sustaied i Walz or the provisio of textbooks upheld i Alle. We coclude that the Act does ot violate the Religio Clauses of the First Amedmet except that part of 754 (b) (2) providig a 20-year limitatio o the religious use restrictios cotaied i 751 (a) (2). We remad to the District Court with directios to eter a judgmet cosistet with this opiio. Vacated ad remaded. [For separate opiio of MR. JUSTICE BRENNAN, see ate, p. 642.] [For opiio of MR. JUSTICE WHITE, cocurrig i the judgmet, see ate, p. 661.] MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK ad MR. JUSTICE MARSHALL cocur, dissetig i part. The correct costitutioal priciple for this case was stated by Presidet Keedy i 1961 whe questioed as *690 to his policy respectig aid to private ad parochial schools:[1] "[T]he Costitutio clearly prohibits aid to the school, to parochial schools. I do't thik there is ay doubt of that. "The Everso case, which is probably the most celebrated case, provided oly by a 5 to 4 decisio was it possible for a local commuity to provide bus rides to opublic school childre. But all through the majority ad miority statemets o that particular questio there was a very clear prohibitio agaist aid to the school direct. The Supreme Court made its decisio i the Everso case by determiig that the aid was to the child, ot to the school. Aid to the school isthere is't ay room for debate o that subject. It is prohibited by the Costitutio, ad the Supreme Court has made that very clear. Ad therefore there would be o possibility of our recommedig it." Taxpayer appellats brought this suit challegig the validity of certai expeditures, made by the Departmet of Health, Educatio, ad Welfare, for the costructio of (1) a library at Sacred Heart Uiversity, (2) a music, drama, ad arts buildig at Ahurst College, (3) a library ad |
Justice Burger | 1,971 | 12 | majority | Tilton v. Richardson | https://www.courtlistener.com/opinion/108381/tilton-v-richardson/ | ad arts buildig at Ahurst College, (3) a library ad a sciece buildig at Fairfield Uiversity, ad (4) a laboratory at Albertus Magus College. The complait alleged that all of these istitutios were cotrolled by religious orders ad the Roma Catholic Diocese of Bridgeport, Co., ad that if the fuds for costructio were authorized by Title I of the Higher Educatio Facilities Act of 1963, as ameded, 20 U.S. C. 711-721 (1964 ed. ad Supp. V), the that statute was ucostitutioal because it violated the *691 Establishmet Clause. A three-judge District Court was coveed ad rejected appellats' claims. Title I of the Higher Educatio Facilities Act of 1963 authorizes grats ad loas up to 50% of the cost for the costructio of udergraduate academic facilities i both public ad private colleges ad uiversities. A project is eligible if costructio will result "i a urgetly eeded substatial expasio of the istitutio's studet erollmet capacity, capacity to provide eeded health care to studets or persoel of the istitutio, or capacity to carry out extesio ad cotiuig educatio programs o the campus of such istitutio." 20 U.S. C. 7 (1964 ed., Supp. V). The Commissioer of Educatio is authorized to prescribe basic criteria ad is istructed to "give special cosideratio to expasio of udergraduate erollmet capacity." 20 U.S. C. 717 (1964 ed., Supp. V). Academic facilities are "structures suitable for use as classrooms, laboratories, libraries, ad related facilities ecessary or appropriate for istructio of studets, or for research programs." Specifically excluded are facilities "used or to be used for sectaria istructio or as a place for religious worship" or ay facilities used "primarily i coectio with ay part of the program of a school or departmet of diviity." 20 U.S. C. 751 (a) (1964 ed., Supp. V). The Uited States retais a 20-year iterest i the facilities ad should a facility be used other tha as a academic facility the the Uited States is etitled to recover a amout equal to the proportio of preset value which the federal grat bore to the origial cost of the facility. 20 U.S. C. 754 (b). Accordig to a stipulatio etered below, durig the 20 years the Office of Educatio attempts to isure that facilities are used i the maer required by the Act primarily by o-site ispectios. At the ed of the 20-year period the federal iterest i the facility ceases ad *692 the college may use it as it pleases. See 20 U.S. C. 754 (a). The public purpose i secular educatio is, to be sure, furthered by the program. Yet the sectaria purpose |
Justice Burger | 1,971 | 12 | majority | Tilton v. Richardson | https://www.courtlistener.com/opinion/108381/tilton-v-richardson/ | be sure, furthered by the program. Yet the sectaria purpose is aided by makig the parochial school system viable. The purpose is to icrease "studet erollmet" ad the studets obviously aimed at are those of the particular faith ow fiaced by taxpayers' moey. Parochial schools are ot beamed at agostics, atheists, or those of a competig sect. The more sophisticated istitutios may admit miorities; but the domiat religious character is ot chaged. The reversio of the facility to the parochial school[2] at the ed of 20 years is a outright grat, measurable by the preset discouted worth of the facility. A gift of taxpayers' fuds i that amout would plaily be ucostitutioal. The Court properly bars it eve though disguised i the form of a reversioary iterest. See Lae v. Wilso, 7 U.S. 268, But the ivalidatio of this oe clause caot cure the costitutioal ifirmities of the statute as a whole. The Federal Govermet is givig religious schools a block grat to build certai facilities. The fact that moey is *693 give oce at the begiig of a program rather tha apportioed aually as i Lemo ad DiCeso is without costitutioal sigificace. The First Amedmet bars establishmet of a religio. Ad as I oted today i Lemo ad DiCeso, this bar has bee cosistetly iterpreted from through Torcaso v. Watkis, 493 as meaig: "No tax i ay amout, large or small, ca be levied to support ay religious activities or istitutios, whatever they may be called, or whatever form they may adopt to teach or practice religio." Thus it is hardly impressive that rather tha givig a smaller amout of moey aually over a log period of years, Cogress istead gives a large amout all at oce. The plurality's distictio is i effect that small violatios of the First Amedmet over a period of years are ucostitutioal (see Lemo ad DiCeso) while a huge violatio occurrig oly oce is de miimis. I caot agree with such sophistry. What I have said i Lemo ad i the DiCeso cases decided today is relevat here. The facilities fiaced by taxpayers' fuds are ot to be used for "sectaria" purposes. Religious teachig ad secular teachig are so emeshed i parochial schools that oly the strictest supervisio ad surveillace would isure compliace with the coditio. Parochial schools may require religious exercises, eve i the classroom. A parochial school operates o oe budget. Moey ot spet for oe purpose becomes available for other purposes. Thus the fact that there are o religious observaces i federally fiaced facilities is ot cotrollig because required religious observaces |
Justice Burger | 1,971 | 12 | majority | Tilton v. Richardson | https://www.courtlistener.com/opinion/108381/tilton-v-richardson/ | federally fiaced facilities is ot cotrollig because required religious observaces will take place i other buildigs. Our decisio i Egel v. Vitale, held that a requiremet of a prayer i public schools violated the Establishmet Clause. Oce these schools become federally fuded they become boud by federal stadards *694 (Ivahoe Irrig. Dist. v. McCracke, 357 U.S. ; Rosado v. Wyma, (cocurrig opiio); Simkis v. Moses H. Coe Memorial Hosp., ) ad accordigly adherece to Egel would require a ed to required religious exercises. That kid of surveillace ad cotrol will certaily be oboxious to the church authorities ad if doe will radically chage the character of the parochial school. Yet if that surveillace is ot searchig ad cotiuous, this federal fiacig is oboxious uder the Establishmet ad Free Exercise Clauses for the reasos stated i the compaio cases. I other words, surveillace creates a etaglemet of govermet ad religio which the First Amedmet was desiged to avoid. Yet after today's decisio there will be a requiremet of surveillace which will last for the useful life of the buildig ad as we have previously oted, "[it] is hardly lack of due process for the Govermet to regulate that which it subsidizes." Wickard v. Filbur, The price of the subsidy uder the Act is violatio of the Free Exercise Clause. Could a course i the History of Methodism be taught i a federally fiaced buildig? Would a religiously slated versio of the Reformatio or Quebec politics uder Duplessis be permissible? How ca the Govermet kow what is taught i the federally fiaced buildig without a cotiuous auditig of classroom istructio? Yet both the Free Exercise Clause ad academic freedom are violated whe the Govermet aget must be preset to determie whether the course cotet is satisfactory. As I said i the Lemo ad DiCeso cases, a parochial school is a uitary istitutio with subtle bledig of sectaria ad secular istructio. Thus the practices of religious schools are i o way affected by the miimal requiremet that the govermet fiaced facility may *695 ot "be used for sectaria istructio or as a place for religious worship." Moey saved from oe item i the budget is free to be used elsewhere. By coductig religious services i aother buildig, the school hasret freea buildig for osectaria use. This is ot called Establishmet simply because the govermet retais a cotiuig iterest i the buildig for its useful life, eve though the religious schools eed ever pay a cet for the use of the buildig. Much is made of the eed for public aid to church schools |
Justice Burger | 1,971 | 12 | majority | Tilton v. Richardson | https://www.courtlistener.com/opinion/108381/tilton-v-richardson/ | made of the eed for public aid to church schools i light of their pressig fiscal problems. Dr. Eugee C. Blake of the Presbyteria Church, however, wrote i 1959:[3] "Whe oe remembers that churches pay o iheritace tax (churches do ot die), that churches may ow ad operate busiess ad be exempt from the 52 percet corporate icome tax, ad that real property used for church purposes (which i some states are most geerously costrued) is tax exempt, it is ot ureasoable to prophesy that with reasoably prudet maagemet, the churches ought to be able to cotrol the whole ecoomy of the atio withi the predictable future. That the growig wealth ad property of the churches was partially resposible for revolutioary expropriatios of church property i Eglad i the sixteeth cetury, i Frace i the eighteeth cetury, i Italy i the ieteeth cetury, ad i Mexico, Russia, Czechoslovakia ad Hugary (to ame a few examples) i the twetieth cetury, seems self-evidet. A govermet with moutig tax problems caot be expected to keep its hads off the wealth of a rich church forever. That such a revolutio is always *696 accompaied by aticlericalism ad atheism should ot be surprisig." The moutig wealth of the churches[4] makes iroic their icessat demads o the public treasury. I said i my disset i 714: "The religiously used real estate of the churches today costitutes a vast domai. See M. Larso & C. Lowell, The Churches: Their Riches, Reveues, ad Immuities (1969). Their assets total over $141 billio ad their aual icome at least $22 billio. Ad the extet to which they are feedig from the public trough i a variety of forms is alarmig. c. 10." See A. Balk, The Religio Busiess ; 20 Church ad State 8 (1967). It is almost ubelievable that we have made the radical departure from Madiso's Remostrace[5] memorialized i today's decisio. *697 I disset ot because of ay lack of respect for parochial schools but out of a feelig of despair that the respect which through history has bee accorded the First Amedmet is this day lost. It should be remembered that i this case we deal with federal grats ad with the commad that "Cogress shall make o law respectig a establishmet of religio, or prohibitig the free exercise thereof." The millio-dollar grats sustaied today put Madiso's miserable "three pece" to shame. But he eve thought, as I do, that eve a small amout comig out of the pocket of tax-payers ad goig ito the coffers of a church was ot i keepig with our costitutioal ideal. |
Justice Stevens | 1,983 | 16 | second_dissenting | Autry v. Estelle | https://www.courtlistener.com/opinion/111041/autry-v-estelle/ | Last year the applicant's death sentence was affirmed by the Texas Court of Criminal Appeals. On January 14, 1983, the United States District Court for the Eastern District of Texas denied the applicant's first petition for a writ of habeas corpus pursuant to 28 U.S. C. 2254 after holding an evidentiary hearing. On June 17, 1983, after full briefing and argument, the United States Court of Appeals for the Fifth Circuit issued a carefully prepared 16-page opinion affirming the District Court's denial of the petition. Rehearing was denied on August 4, 1983, and on September 1, 1983, Texas authorities scheduled the applicant to be executed on October 5, 1983. He has applied for a stay of execution pending filing and disposition of a petition for a writ of certiorari. The Texas Attorney General does not oppose the stay application. The time in which the applicant may file a petition for a writ of certiorari in this Court will not expire until November 2, 1983 four weeks after his scheduled execution. Thus, unless a stay is granted, the applicant will be executed before the applicant's time for petitioning this Court for a writ of certiorari expires. The stay application makes it clear that the applicant's claims are not frivolous. Moreover, since this is the applicant's first federal habeas corpus proceeding, we are not confronted with the prospect of indefinite delay of execution which exists when an applicant has burdened the judicial system with successive federal petitions. On the other hand, on the basis of the papers that have been filed to date, I must acknowledge that I am presently of the opinion that this applicant will be unable to establish that a writ of certiorari should issue. My opinion, however, is necessarily tentative because the stay application contains only a synopsis of the arguments that counsel intends to make in a certiorari petition that has yet to be filed. The decision to grant or to deny a stay pending the filing of a petition for a writ of certiorari depends on our assessment of the likelihood that such a petition will be granted and a balancing *5 of the relative hardships of the parties. When a denial of a stay merely subjects the applicant to a continuing harm pending our decision on a subsequently filed certiorari petition, it is appropriate to deny the application unless the applicant demonstrates a likelihood that his petition will be granted. If it transpires that our tentative assessment of his case was incorrect, that error can be corrected by granting the subsequently filed certiorari petition, |
Justice Stevens | 1,983 | 16 | second_dissenting | Autry v. Estelle | https://www.courtlistener.com/opinion/111041/autry-v-estelle/ | can be corrected by granting the subsequently filed certiorari petition, though naturally nothing can eliminate the interim harm the applicant suffered. In the instant case, however, a decision on the application is a final decision on the certiorari question a decision to deny the stay renders a petition moot. The impact of our decision is therefore in no sense tentative, but our assessment of the case can only be a tentative one because it is based on probability rather than actuality. Accordingly, a preliminary negative evaluation of the certiorari question should not be the end of our analysis; we should also balance the relative hardships on the parties. I would strike that balance in favor of any applicant raising a nonfrivolous challenge to his capital conviction in his first federal habeas proceeding. In such a case, the importance of fully informed consideration of the certiorari question predominates over the interests of the State in expeditious execution of its judgment. In one sense, the practical question that is raised by this stay application is whether the Court should give habeas petitioners on death row the same time to prepare and file certiorari petitions that other litigants receive. Unless the claims are frivolous, I believe that the overriding interest in the evenhanded administration of justice would be served by according an individual raising his first federal habeas challenge to his capital conviction the same opportunity to seek review in this Court as is accorded to other individuals. The practice adopted by the majority effectively confers upon state authorities the power to dictate the period in which these federal habeas petitioners may seek review in *6 this Court by scheduling an execution prior to the expiration of the period for filing a certiorari petition. Shortening the period allowed for filing a petition on such an ad hoc basis injects uncertainty and disparity into the review procedure, adds to the burdens of counsel, distorts the deliberative process within this Court, and increases the risk of error. Procedural shortcuts are always dangerous.[*] Greater surely not lesser care should be taken to avoid the risk of error when its consequences are irreversible. I respectfully dissent. |
Justice Blackmun | 1,989 | 11 | dissenting | Green v. Bock Laundry MacHine Co. | https://www.courtlistener.com/opinion/112264/green-v-bock-laundry-machine-co/ | Federal Rule of Evidence 609(a) has attracted much attention during its relatively short life. This is due in no small part to its poor and inartful drafting. See, e. g., 10 J. Moore & H. Bendix, Moore's Federal Practice 609.14[4], p. V-148 (2d ed. 1988); Foster, Rule 609(a) in the Civil Context: A Recommendation for Reform, 57 Ford. L. Rev. 1, 4 (1988); Younger, Three Essays on Character and Credibility under the Federal Rules of Evidence, ; Savikas, New Concepts in Impeachment: Rule 609(a), Federal Rules of Evidence, 57 Chicago Bar Rec. 76 (1975). As noted by the majority, ante, at 510-511, the Rule's use of the word "defendant" creates inescapable ambiguity. The majority concludes that Rule 609(a)(1) cannot mean what it says on its face. Ante, at 511. I fully agree. I fail to see, however, why we are required to solve this riddle of statutory interpretation by reading the inadvertent word "defendant" to mean "criminal defendant." I am persuaded that a better interpretation of the Rule would allow the trial court to consider the risk of prejudice faced by any party, not just a criminal defendant. Applying the balancing provisions of Rule 609(a)(1) to all parties would have prevented the admission of unnecessary and inflammatory *531 evidence in this case and would prevent other similar unjust results until Rule 609(a) is repaired, as it must be. The result the Court reaches today, in contrast, endorses "the irrationality and unfairness," ante, at 524, of denying the trial court the ability to weigh the risk of prejudice to any party before admitting evidence of a prior felony for purposes of impeachment. A The majority's lengthy recounting of the legislative history of Rule 609, ante, at 513-514, demonstrates why almost all that history is entitled to very little weight. Because the proposed rule changed so often and finally was enacted as a compromise between the House and the Senate much of the commentary cited by the majority concerns versions different from the Rule Congress finally enacted. The only item of legislative history that focuses on the Rule as enacted is the Report of the Conference Committee, H. R. Conf. Rep. No. 93-1597 (1974). Admittedly, language in the Report supports the majority's position: the Report mirrors the Rule in emphasizing the prejudicial effect on the defendant, and also uses the word "convict" to describe the potential outcome. But the Report's draftsmanship is no better than the Rule's, and the Report's plain language is no more reliable an indicator of Congress' intent than is the plain language of the Rule itself. |
Justice Blackmun | 1,989 | 11 | dissenting | Green v. Bock Laundry MacHine Co. | https://www.courtlistener.com/opinion/112264/green-v-bock-laundry-machine-co/ | intent than is the plain language of the Rule itself. Because the slipshod drafting of Rule 609(a)(1) demonstrates that clarity of language was not the Conference's forte, I prefer to rely on the underlying reasoning of the Report, rather than on its unfortunate choice of words, in ascertaining the Rule's proper scope. The Report's treatment of the Rule's discretionary standard consists of a single paragraph. After noting that the Conference was concerned with prejudice to a defendant, the Report, states: "The danger of prejudice to a witness other than the defendant (such as injury to the witness' reputation in his community) was considered and rejected by the Conference *532 as an element to be weighed in determining admissibility. It was the judgment of the Conference that the danger of prejudice to a nondefendant witness is outweighed by the need for the trier of fact to have as much relevant evidence on the issue of credibility as possible. Such evidence should only be excluded where it presents a danger of improperly influencing the outcome of the trial by persuading the trier of fact to convict the defendant on the basis of his prior criminal record." The Report indicates that the Conference determined that any felony conviction has sufficient relevance to a witness' credibility to be admitted, even if the felony had nothing directly to do with truthfulness or honesty. In dealing with the question of undue prejudice, however, the Conference drew a line: it distinguished between two types of prejudice, only one of which it permitted the trial court to consider. As the Conference observed, admitting a prior conviction will always "prejudice" a witness, who, of course, would prefer that the conviction not be revealed to the public. The Report makes clear, however, that this kind of prejudice to the witness' life outside the courtroom is not to be considered in the judicial balancing required by Rule 609(a)(1). Rather, the kind of prejudice the court is instructed to be concerned with is prejudice which "presents a danger of improperly influencing the outcome of the trial." Congress' solution to that kind of prejudice was to require judicial supervision: the conviction may be admitted only if "the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant." Rule 609(a)(1). Although the Conference expressed its concern in terms of the effect on a criminal defendant, the potential for prejudice to the outcome at trial exists in any type of litigation, whether criminal or civil, and threatens all parties to the litigation. The Report and the Rule are |
Justice Blackmun | 1,989 | 11 | dissenting | Green v. Bock Laundry MacHine Co. | https://www.courtlistener.com/opinion/112264/green-v-bock-laundry-machine-co/ | parties to the litigation. The Report and the Rule are best read as expressing Congress' preference for judicial balancing whenever there is a chance that justice shall be denied a party because *533 of the unduly prejudicial nature of a witness' past conviction for a crime that has no direct bearing on the witness' truthfulness. In short, the reasoning of the Report suggests that by "prejudice to the defendant," Congress meant "prejudice to a party," as opposed to the prejudicial effect of the revelation of a prior conviction to the witness' own reputation. B It may be correct, as JUSTICE SCALIA notes in his opinion concurring in the judgment, that interpreting "prejudicial effect to the defendant" to include only "prejudicial effect to [a] criminal defendant," and not prejudicial effect to other categories of litigants as well, does the "least violence to the text," ante, at 529, if what we mean by "violence" is the interpolation of excess words or the deletion of existing words. But the reading endorsed by JUSTICE SCALIA and the majority does violence to the logic of the only rationale Members of Congress offered for the Rule they adopted. Certainly the possibility that admission of a witness' past conviction will improperly determine the outcome at trial is troubling when the witness' testimony is in support of a criminal defendant. The potential, however, is no less real for other litigants. Unlike JUSTICE SCALIA, I do not approach the Rules of Evidence, which by their terms govern both civil and criminal proceedings, with the presumption that their general provisions should be read to "provid[e] special protection to defendants in criminal cases." Rather, the Rules themselves specify that they "shall be construed to secure fairness in administration to the end that the truth may be ascertained and proceedings justly determined" in all cases. Rule 102. The majority's result does not achieve that end. C The interpretation the majority adopts today, which limits the word "defendant" to mean less than it appears to mean on its face, creates an additional danger: the Rule as so interpreted *534 is a trap for the unwary. As noted by the majority, the "Rule's plain language commands weighing of prejudice to a defendant in a civil trial as well as in a criminal trial." Ante, at 509. One of the primary purposes for enacting a set of evidentiary rules is to present precise answers to frequently posed questions. "A codification should be so wrought that it supplies answers to a lawyer's questions simpler, more comprehensible, and more easily found than those the lawyer could discover |
Justice Blackmun | 1,989 | 11 | dissenting | Green v. Bock Laundry MacHine Co. | https://www.courtlistener.com/opinion/112264/green-v-bock-laundry-machine-co/ | and more easily found than those the lawyer could discover without the codification." Younger, Introduction, Symposium: The Federal Rules of Evidence, Relying on the plain language of Rule 609(a)(1), an attorney representing a civil defendant might well instruct his client's witness to take the stand, believing that a judge would pass upon the question whether "the probative value of admitting" the evidence of his prior conviction "outweighs its prejudicial effect." Yet under the majority's view, reliance on the plain language of the Rule would have been error on counsel's part. Now every lawyer who takes Rule 609(a) at face value will commit the same error, until the language of the Rule is changed. While in theory it is easy to presume that every busy practicing attorney keeps abreast of every single one of this Court's decisions, in the "real world" this obviously is not the case. The implications of the majority's opinion today require every lawyer who relies upon a Federal Rule of Evidence, or a Federal Rule of Criminal, Civil, or Appellate Procedure, to look beyond the plain language of the Rule in order to determine whether this Court, or some court controlling within the jurisdiction, has adopted an interpretation that takes away the protection the plain language of the Rule provides. D As I see it, therefore, our choice is between two interpretations of Rule 609(a)(1), neither of which is completely consistent with the Rule's plain language. The majority's interpretation takes protection away from litigants i. e., civil *535 defendants who would have every reason to believe themselves entitled to the judicial balancing offered by the Rule. The alternative interpretation which I favor also departs somewhat from the plain language, but does so by extending the protection of judicial supervision to a larger class of litigants i. e., to all parties. Neither result is compelled by the statutory language or the legislative history, but for me the choice between them is an easy one. I find it proper, as a general matter and under the dictates of Rule 102, to construe the Rule so as to avoid "unnecessary hardship," see and to produce a sensible result. See, e. g., sources listed by the Court, ante, at 512-513, n. 11. This case should have been decided on the basis of whether the Bock Laundry Machine Company designed and sold a dangerously defective machine without providing adequate warnings. The fact that Paul Green was a convicted felon, in a work-release program at a county prison, has little, if anything, to do with these issues. We |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | This case presents two questions under the federal labor laws: first, whether the National Labor Relations Board ( or Board) has exclusive jurisdiction over a union member's claims that his union both breached its duty of fair representation and violated the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), U.S. C. 401 et seq. (1982 ed.), by discriminating against him in job referrals made by the union hiring hall; and second, whether the union's alleged refusal to refer him to employment through the hiring hall as a result of his political opposition to the union's leadership gives rise to a claim under 101(a)(5) and 609 of the LMRDA, U.S. C. 411(a)(5), 5 (1982 ed.). The Court of Appeals for the Sixth Circuit held that petitioner's suit fell within the exclusive jurisdiction of the Board and that petitioner had failed to state a claim *71 under the LMRDA. We reverse the Court of Appeals' decision as to jurisdiction, but we affirm its holding that petitioner did not state a claim under LMRDA 101(a)(5) and 609. I Petitioner L. Breininger was at all relevant times a member of respondent, Local Union No. 6 of the Sheet Metal Workers International Association. Pursuant to a multiemployer collective-bargaining agreement, respondent operates a hiring hall through which it refers both members and nonmembers of the union for construction work. Respondent maintains an out-of-work list of individuals who wish to be referred to jobs. When an employer contacts respondent for workers, he may request certain persons by name. If he does not, the union begins at the top of the list and attempts to telephone in order each worker listed until it has satisfied the employer's request. The hiring hall is not the exclusive source of employment for sheet metal workers; they are free to seek employment through other mechanisms, and employers are not restricted to hiring only those persons recommended by the union.[1] Respondent also maintains a job referral list under the Specialty Agreement, a separate collective-bargaining agreement negotiated to cover work on siding, decking, and metal buildings. Petitioner alleges that respondent refused to honor specific employer requests for his services and passed him over in making job referrals. He also contends that respondent refused to process his internal union grievances regarding *72 these matters. Petitioner's first amended complaint contained two counts. First, he asserted a violation of the duty of fair representation, contending that respondent, "in its representation of [petitioner], has acted arbitrarily, discriminatorily, and/or in bad faith and/or without reason or cause." First Amended Complaint ¶ 13. Second, petitioner alleged that his union, "in |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | Complaint ¶ 13. Second, petitioner alleged that his union, "in making job referrals, has favored a faction of members who have been known to support the present business manager," as "part of widespread, improper discipline for political opposition in violation of U.S. C. [ 411(a)(5)] and U.S. C. 5." Respondent, in other words, "acting by and through its present business manager and its present business agent [has] `otherwise disciplined' " petitioner within the meaning of LMRDA 101(a)(5) and 609. The District Court held that it lacked jurisdiction to entertain petitioner's suit because "discrimination in hiring hall referrals constitutes an unfair labor practice," and "[t]he has exclusive jurisdiction over discrimination in hiring hall referrals." No. C 83-6 p. 6, reprinted in App. to Pet. for Cert. A9. The District Court determined that adjudicating petitioner's claims "would involve interfe[r]ing with the 's exclusive jurisdiction." App. to Pet. for Cert. A10. The Court of Appeals affirmed in a brief per curiam opinion. With respect to the fair representation claim, the court noted that "[c]ircuit courts have consistently held that fair representation claims must be brought before the Board" and that "if the employee fails to affirmatively allege that his employer breached the collective bargaining agreement, which [petitioner] failed to do in the case at bar, he cannot prevail." In regard to the LMRDA count, the Court of Appeals found that "[d]iscrimination in the referral system, because it does not breach the employee's union membership rights, does not constitute `discipline' within the meaning of LMRDA" and * that "[h]iring hall referrals are not a function of union membership since referrals are available to nonmembers as well as members." We granted certiorari. II A We have long recognized that a labor organization has a statutory duty of fair representation under the National Labor Relations Act (NLRA), as amended, U.S. C. 151 et seq. (1982 ed.), "to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." ; see also In Miranda Fuel 140 N. L. R. B. enf. denied, the determined that violations of the duty of fair representation might also be unfair labor practices under 8(b) of the NLRA, as amended, U.S. C. 158(b) (1982 ed.).[2] The Board held that the right of employees under 7 of the NLRA, as amended, U.S. C. 157, to form, join, or assist labor organizations, or to refrain from such activities, "is a statutory limitation on statutory bargaining representatives, and that Section 8(b)(1)(A) of the Act *74 accordingly prohibits labor organizations, |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | Section 8(b)(1)(A) of the Act *74 accordingly prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any employee upon considerations or classifications which are irrelevant, invidious, or unfair." 140 N. L. R. B., at 185. In addition, the Board reasoned that "a statutory bargaining representative and an employer also respectively violate Section 8(b)(2) and 8(a)(3) when, for arbitrary or irrelevant reasons or upon the basis of an unfair classification, the union attempts to cause or does cause an employer to derogate the employment status of an employee." While petitioner alleged a breach of the duty of fair representation, his claim might relate to conduct that under Miranda Fuel also constitutes an unfair labor practice. And, as a general matter, neither state nor federal courts possess jurisdiction over claims based on activity that is "arguably" subject to 7 or 8 of the NLRA. See San Diego Building Trades Nevertheless, the District Court was not deprived of jurisdiction. In we held that Garmon's pre-emption rule does not extend to suits alleging a breach of the duty of fair representation. Our decision in was premised on several factors. First, we noted that courts developed and elaborated the duty of fair representation before the Board even acquired statutory jurisdiction over union activities. Indeed, fair representation claims often involve matters "not normally within the Board's unfair labor practice jurisdiction," which is typically aimed at "effectuating the policies of the federal labor laws, not [redressing] the wrong done the individual employee," We therefore doubted whether "the Board brings substantially greater expertise to bear on these problems than do the courts." Another consideration in for finding the fair representation claim judicially cognizable was the General Counsel's unreviewable discretion to refuse to institute unfair labor practice proceedings. "[T]he General Counsel will refuse to bring complaints on behalf *75 of injured employees when the injury complained of is `insubstantial.' " The right of the individual employee to be made whole is "[o]f paramount importance," and "[t]he existence of even a small group of cases in which the Board would be unwilling or unable to remedy a union's breach of duty would frustrate the basic purposes underlying the duty of fair representation doctrine," Consequently, we were unwilling to assume that Congress intended to deny employees their traditional fair representation remedies when it enacted 8(b) as part of the Labor Management Relations Act, 1947 (LMRA). As JUSTICE WHITE described last Term in : "As we understood our inquiry, it was whether Congress, in enacting 8(b) in 1947, had intended to oust the courts of their role |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | 1947, had intended to oust the courts of their role enforcing the duty of fair representation implied under the NLRA. We held that the `tardy assumption' of jurisdiction by the was insufficient reason to abandon our prior cases, such as Syres [v. Oil Workers, ]." That a breach of the duty of fair representation might also be an unfair labor practice is thus not enough to deprive a federal court of jurisdiction over the fair representation claim. See Communications We decline to create an exception to the rule for fair representation complaints arising out of the operation of union hiring halls. Although the Board has had numerous opportunities to apply the NLRA to hiring hall policies,[3] we *76 reject the notion that the ought to possess exclusive jurisdiction over fair representation complaints in the hiring hall context because it has had experience with hiring halls in the past.[4] As an initial matter, we have never suggested that the rule contains exceptions based on the subject matter of the fair representation claim presented, the relative expertise of the in the particular area of labor law involved, or any other factor. We are unwilling to begin the process of carving out exceptions now, especially since we *77 see no limiting principle to such an approach. Most fair representation cases require great sensitivity to the tradeoffs between the interests of the bargaining unit as a whole and the rights of individuals.[5] Furthermore, we have never indicated that "experience" or "expertise" deprives a court of jurisdiction over a fair representation claim. The Board has developed an unfair labor practice jurisprudence in many areas traditionally encompassed by the duty of fair representation. The Board, for example, repeatedly has applied the Miranda Fuel doctrine in cases involving racial discrimination. See International Brotherhood of Painters, Local 6 (W. J. Siebenoller, Jr., Paint ), 205 N. L. R. B. 651, 652 (19); Houston Maritime Assn., Inc. (Longshoremen Local 1351), 168 N. L. R. B. 615, 616-617 enf. denied, ; Cargo Handlers, Inc. (Longshoremen Local 1191), 159 N. L. R. B. 321, 322-327 ; United Rubber Workers, Local No. 12 (Business League of Gadsden), 150 N. L. R. B. 312, 314-315 enf'd, cert. denied, ; Automobile Workers, Local 453 (Maremont Corp.), 149 N. L. R. B. 482, 483-484 ; Longshoremen, Local 1367 (Galveston Maritime Assn., Inc.), 148 N. L. R. B. 897, 897-900 enf'd, cert. denied, ; Independent Metal Workers, Local No. 1 (Hughes Tool ), 147 N. L. R. B. 15, 1574 ; see also Handy Andy, Inc., 228 N. L. R. B. 447, 455-456 In addition, the |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | 228 N. L. R. B. 447, 455-456 In addition, the Board has found gender discrimination by unions to be an unfair labor practice. See Wolf Trap Foundation for the Performing Arts, 287 N. L. R. B. 1040 127 LRRM 11, 1130 ; Olympic S. S. 233 N. L. R. B. 1178, 1189 ; Glass Bottle Blowers Assn., *78 Local (Owens-Illinois, Inc.), 210 N. L. R. B. 943, 943-944 enf'd, ; Pacific Maritime Assn. (Longshoremen and Warehousemen, Local 52), 209 N. L. R. B. 519, 519-520 (Member Jenkins, concurring). In short, "[a] cursory review of Board volumes following Miranda Fuel discloses numerous cases in which the Board has found the duty of fair representation breached where the union's conduct was motivated by an employee's lack of union membership, strifes resulting from intraunion politics, and racial or gender considerations." United States Postal Service, 272 N. L. R. B. 93, 104. Adopting a rule that expertise bars federal jurisdiction would remove an unacceptably large number of fair representation claims from federal courts. Respondent calls to our attention language in some of our decisions recognizing that "[t]he problems inherent in the operation of union hiring halls are difficult and complex, and point up the importance of limiting initial competence to adjudicate such matters to a single expert federal agency." Journeymen and For this reason, respondent contends that "[w]hether a hiring hall practice is discriminatory and therefore violative of federal law is a determination Congress has entrusted to the Board." The cases cited by respondent, however, focus not on whether unions have administered properly out-of-work lists as required by their duty of fair representation, but rather on whether exclusive hiring halls have encouraged union membership impermissibly as forbidden by 8(b). Such exclusive arrangements are not illegal per se under federal labor law, but rather are illegal only if they in fact result in discrimination prohibited by the NLRA. See ; see also Woelke & Romero Framing, We have found state law pre-empted on the ground that "Board approval *79 of various hiring hall practices would be meaningless if state courts could declare those procedures violative of the contractual rights implicit between a member and his union." These state-law claims frequently involve tort, contract, and other substantive areas of law that have developed quite independently of federal labor law. Cf. ; Electrical ; Allis-Chalmers ; The duty of fair representation is different. It has "judicially evolved," Motor Coach as part of federal labor law predating the prohibition against unfair labor practices by unions in the 1947 LMRA. It is an essential means of enforcing fully |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | 1947 LMRA. It is an essential means of enforcing fully the important principle that "no individual union member may suffer invidious, hostile treatment at the hands of the majority of his coworkers." ; see also United Parcel Service, The duty of fair representation, unlike state tort and contract law, is part of federal labor policy. Our "refusal to limit judicial competence to rectify a breach of the duty of fair representation rests upon our judgment that such actions cannot, in the vast majority of situations where they occur, give rise to actual conflict with the operative realities of federal labor policy." at ; see also - ("A primary justification for the pre-emption doctrine the need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the administrative agency created by Congress for that purpose is not applicable to cases involving alleged *80 breaches of the union's duty of fair representation"). We therefore decline to interpret the state-law pre-emption cases as establishing a principle that hiring halls are somehow so different from other union activities that fair representation claims are not cognizable outside of the The Court of Appeals below also held that if an employee fails to allege that his employer breached the collective-bargaining agreement, then he cannot prevail in a fair representation suit against his union. See This is a misstatement of existing law. In we identified an "intensely practical consideratio[n]," of having the same entity adjudicate a joint claim against both the employer and the union when a wrongfully discharged employee who has not obtained relief through any exclusive grievance and arbitration procedures provided in the collective-bargaining agreement brings a breach-of-contract action against the employer pursuant to (a) of the LMRA, U.S. C. 185(a) (1982 ed.). We noted that where the union has control of the grievance and arbitration system, the employee-plaintiff's failure to exhaust his contractual remedies may be excused if the union has wrongfully refused to process his claim and thus breached its duty of fair representation. See -186. "[T]he wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as a bargaining agent breached its duty of fair representation in its handling of the employee's grievance." Our reasoning in in no way implies, however, that a fair representation action requires a concomitant claim against an employer for breach of contract. Indeed, the earliest fair representation suits involved claims |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | of contract. Indeed, the earliest fair representation suits involved claims against unions for breach of the duty in negotiating a collective-bargaining agreement, a context in which no breach-of-contract action against an employer is possible. See Ford Motor ; Even after a collective-bargaining agreement has been signed, we have never required a fair representation plaintiff to allege that his employer breached the agreement in order to prevail. See, e. g., Communications 487 U. S., 43; "[A]n action seeking damages for injury inflicted by a breach of a union's duty of fair representation [is] judicially cognizable in any event, that is, even if the conduct complained of [is] arguably protected or prohibited by the National Labor Relations Act and whether or not the lawsuit [is] bottomed on a collective agreement." Motor Coach at 9 Respondent argues that the concern in that suits against the employer and union be heard together in the same forum is applicable to the hiring hall situation, because any action by petitioner against an employer would be premised not on but rather on the contention that the employer had knowledge of the union conduct violating 8(b)(1)(A) and acted on that knowledge in making an employment decision.[6] The employer would thereby violate *82 NLRA 8(a)(3), U.S. C. 158(a)(3), see Wallace and be held jointly and severally liable with the union, but only in a suit before the Board.[7] In the hiring hall environment, permitting courts to hear fair representation claims against the union would create the danger of bifurcated proceedings before a court and the The absence of a claim, according to respondent, requires that we hold that the possesses exclusive jurisdiction over petitioner's fair representation suit. This argument misinterprets our reasoning in Because a plaintiff must as a matter of logic prevail on his unfair representation allegation against the union in order to excuse his failure to exhaust contractual remedies before he can litigate the merits of his claim against his employer, we found it "obvious that the courts will be compelled to pass upon whether there has been a breach of the duty of fair representation in the context of many breach-of-contract actions." Moreover, because the union's breach may have enhanced or contributed to the employee's injury, permitting fair representation suits to be heard in court facilitates the fashioning of a remedy. We concluded that it made little sense to prevent courts from adjudicating fair representation claims. The situation in the instant case is entirely different. In the hiring hall context, the Board may bring a claim alleging a violation of 8(b)(1)(A) against the union, and a |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | alleging a violation of 8(b)(1)(A) against the union, and a parallel suit against the employer under 8(a)(3), without implicating the duty of fair representation at all. Or, as in the instant case, an employee may bring a claim solely against the union based on its wrongful refusal to refer him for work. While in *83 an allegation that the union had breached its duty of fair representation was a necessary component of the claim against the employer, the converse is not true here: a suit against the union need not be accompanied by an allegation that an employer breached the contract, since whatever the employer's liability, the employee would still retain a legal claim against the union. The fact that an employee may bring his fair representation claim in federal court in order to join it with a claim does not mean that he must bring the fair representation claim before the Board in order to "join" it with a hypothetical unfair labor practice case against the employer that was never actually filed. Federal courts have jurisdiction to hear fair representation suits whether or not they are accompanied by claims against employers. We have always assumed that independent federal jurisdiction exists over fair representation claims because the duty is implied from the grant of exclusive representation status, and the claims therefore "arise under" the NLRA. See, e. g., Lower courts that have addressed the issue have uniformly found that 28 U.S. C. 1337(a), which provides federal jurisdiction for, inter alia, "any civil action or proceeding arising under any Act of Congress regulating commerce," creates federal jurisdiction over fair representation claims, because we held in Capital Service, that the NLRA is an "Act of Congress regulating commerce." See ; ; cert. denied, ; ; ; De (CA1), cert. denied, 400 * ; ; see also We agree with this reasoning. Because federal-court jurisdiction exists over a fair representation claim regardless of whether it is accompanied by a breach-of-contract claim against an employer under[8] and because a fair representation claim is a separate cause of action from any possible suit against the employer, we decline to adopt a rule that exclusive jurisdiction lies in the over any fair representation suit whose hypothetical accompanying claim against the employer might be raised before the Board. The concerns that animated our decision in are equally present in the instant case. The Court of Appeals erred in holding that the District Court was without jurisdiction to hear petitioner's fair representation claim. B Respondent contends that even if jurisdiction in federal court is proper, petitioner has failed |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | if jurisdiction in federal court is proper, petitioner has failed to allege a fair representation claim for two reasons. *85 1 First, respondent notes that we have interpreted NLRA 8(a)(3) to forbid employer discrimination in hiring only when it is intended to discriminate on a union-related basis. See, e. g., Respondent maintains that symmetry requires us to interpret 8(b) (2) as forbidding only discrimination based on union-related criteria and not any other form of maladministration of a union job referral system.[9] Respondent contends that under this standard it committed no unfair labor practice in this case. The LMRA, according to respondent, reflects a purposeful *86 congressional decision to limit the scope of 8(b)(2) to instances where a union discriminates solely on the basis of union membership or lack thereof. This decision would be negated if the duty of fair representation were construed as extending further than the unfair labor practice provisions of the NLRA. We need not decide the appropriate scope of 8(b)(1)(A) and 8(b)(2) because we reject the proposition that the duty of fair representation should be defined in terms of what is an unfair labor practice. Respondent's argument rests on a false syllogism: (a) because Miranda Fuel 140 N. L. R. B. enf. denied, establishes that a breach of the duty of fair representation is also an unfair labor practice, and (b) the conduct in this case was not an unfair labor practice, therefore (c) it must not have been a breach of the duty of fair representation either. The flaw in the syllogism is that there is no reason to equate breaches of the duty of fair representation with unfair labor practices, especially in an effort to narrow the former category. The 's rationale in Miranda Fuel was precisely the opposite; the Board determined that breaches of the duty of fair representation were also unfair labor practices in an effort to broaden, not restrict, the remedies available to union members. See 140 N. L. R. B. at 184-186.[10] Pegging the duty of fair representation to the Board's definition of unfair labor practices would make the two redundant, despite their different purposes, and would eliminate some of the prime virtues of the duty of fair representation flexibility and adaptability. See 386 U. S., The duty of fair representation is not intended to mirror the contours of 8(b); rather, it arises independently from *87 the grant under 9(a) of the NLRA, U.S. C. 159(a) (1982 ed.), of the union's exclusive power to represent all employees in a particular bargaining unit. It serves as a "bulwark to prevent arbitrary |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | bargaining unit. It serves as a "bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law." ; see also Respondent's argument assumes that enactment of the LMRA in 1947 somehow limited a union's duty of fair representation according to the unfair labor practices specified in 8(b). We have never adopted such a view, and we decline to do so today. 2 Second, respondent insists that petitioner has failed to state a claim because in the hiring hall setting a union is acting essentially as an employer in matching up job requests with available personnel. Because a union does not "represent" the employees as a bargaining agent in such a situation, respondent argues that it should be relieved entirely of its duty of fair representation.[11] We cannot accept this proposed analogy. Only because of its status as a Board-certified bargaining representative *88 and by virtue of the power granted to it by the collective-bargaining agreement does a union gain the ability to refer workers for employment through a hiring hall. Together with this authority comes the responsibility to exercise it in a nonarbitrary and nondiscriminatory fashion, because the members of the bargaining unit have entrusted the union with the task of representing them. That the particular function of job referral resembles a task that an employer might perform is of no consequence. The key is that the union is administering a provision of the contract, something that we have always held is subject to the duty of fair representation. "The undoubted broad authority of the union as exclusive bargaining agent in the negotiation and administration of a collective bargaining contract is accompanied by a responsibility of equal scope, the responsibility and duty of fair representation." See Communications 487 U. S., 39; ; see also Electrical -862; In for example, we held that a union has a duty of fair representation in grievance arbitration, despite the fact that NLRA 9(a) expressly reserves the right of "any individual employee or group of employees to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect." The union in exercised power over grievances because the contract so provided, not because the NLRA required such an arrangement. Hence, the observation that a contract might provide for the operation of a hiring hall directly by a consortium of interested employers rather than a union is irrelevant; the same |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | interested employers rather than a union is irrelevant; the same might have been said about the system for processing grievances in In *89 short, a union does not shed its duty of fair representation merely because it is allocating job openings among competing applicants, something that might be seen as similar to what an employer does. The union's assumption in the hiring hall of what respondent believes is an "employer's" role in no way renders the duty of fair representation inapplicable. When management administers job rights outside the hiring hall setting, arbitrary or discriminatory acts are apt to provoke a strong reaction through the grievance mechanism. In the union hiring hall, however, there is no balance of power. If respondent is correct that in a hiring hall the union has assumed the mantle of employer, then the individual employee stands alone against a single entity: the joint union/employer. An improperly functioning hiring hall thus resembles a closed shop, " `with all of the abuses possible under such an arrangement, including discrimination against employees, prospective employees, members of union minority groups, and operation of a closed union.' " ; see also Note, Unilateral Union Control of Hiring Halls: The Wrong and the Remedy, 70 Yale L. J. 661, 674 In sum, if a union does wield additional power in a hiring hall by assuming the employer's role, its responsibility to exercise that power fairly increases rather than decreases. That has been the logic of our duty of fair representation cases since[12] *90 We reject respondent's contention that petitioner's complaint fails to state a fair representation claim. III The Court of Appeals rejected petitioner's LMRDA claim on the ground that petitioner had failed to show that he was "otherwise disciplined" within the meaning of LMRDA 101(a)(5) and 609, U.S. C. 411(a)(5) and 5 (1982 ed.). These provisions make it unlawful for a union to "fin[e], suspen[d], expe[l], or otherwise disciplin[e]" any of its members for exercising rights secured under the LMRDA.[13] The Court of Appeals reasoned that because "[h]iring hall referrals are available to nonmembers as well as to members," and the hiring hall was not an exclusive source of employment for sheet metal workers, petitioner did not suffer discrimination on the basis of rights he held by virtue of his membership in the union. We affirm the Court of Appeals' conclusion, although we do not adopt its reasoning.[14] In we held that removal from appointive union employment is not within the scope of 609's prohibitions, because that section was "meant to refer only to punitive actions diminishing membership rights, and not |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | refer only to punitive actions diminishing membership rights, and not to termination of a member's status as an appointed union employee." *91 Petitioner, joined by the United States as amicus curiae, argues that the Court of Appeals misapplied our reasoning in because Congress could not have intended to prohibit a union from expelling a member of the rank-and-file from a members-only hall for his political opposition to the union leadership, but to permit the leadership to impose the same sanction if the hiring hall included a few token nonmembers as well. Either way, the purpose of the Act would hardly be served if a union were able to coerce its members into obedience by threatening them with a loss of job referrals. Under the reading urged by the United States, held only that the LMRDA does not protect the positions and perquisites enjoyed exclusively by union leaders; it did not narrow the protections available to "nonpolicymaking employees, that is, rank-and-file member-employees." We need not decide the precise import of the language and reasoning of however, because we find that by using the phrase "otherwise discipline," Congress did not intend to include all acts that deterred the exercise of rights protected under the LMRDA, but rather meant instead to denote only punishment authorized by the union as a collective entity to enforce its rules. "Discipline is the criminal law of union government." Summers, The Law of Union Discipline, 70 Yale L. J. 175, 178 (1960). The term refers only to actions "undertaken under color of the union's right to control the member's conduct in order to protect the interests of the union or its membership." F.2d 912, Our construction of the statute is buttressed by its structure. First, the specifically enumerated types of discipline fine, expulsion, and suspension imply some sort of established disciplinary process rather than ad hoc retaliation *92 by individual union officers.[15] See 2A C. Sands, Sutherland on Statutory Construction 47.17, p. 166 (ejusdem generis). Second, 101(a)(5) includes procedural protections "written specific charges" served before discipline is imposed, "a reasonable time" in which to prepare a defense, and a "full and fair hearing" that would not apply to instances of unofficial, sub rosa discrimination. These protections contemplate imposition of discipline through the type of procedure we encountered in The fact that 101(a)(5) does not prohibit union discipline altogether, but rather seeks to provide "safeguards against improper disciplinary action," indicates that "discipline" refers to punishment that a union can impose by virtue of its own authority over its members. A hiring hall could hardly be |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | authority over its members. A hiring hall could hardly be expected to provide a hearing before every decision not to refer an individual to a job. The legislative history supports this interpretation of "discipline." Early drafts of 101(a)(5), for example, contained elaborate lists of "due process protections," such as the presumption of innocence, venue restrictions, the right to counsel, the right to confront and cross-examine witnesses, and *93 other guarantees typically found in the criminal context.[16] Congress envisioned that "discipline" would entail the imposition of punishment by a union acting in its official capacity. See 105 Cong. Rec. 5812 (remarks of Sen. McClellan) (referring to "safeguards against improper disciplinary action" as procedures that must be followed before a union member can be "expelled or punished," "tried," or "suspend[ed]" by the union); (noting that discipline may be imposed only on "the usual reasonable constitutional basis upon which [criminal] charges might be brought"). A forerunner of 101(a)(5) in the Senate provided criminal penalties for both improper "discipline" by "any labor organization, its officers, agents, representatives, or employees" and the use by "any person of force or violence, or economic reprisal or threat thereof, to restrain, coerce, or intimidate, or attempt to restrain, coerce, or intimidate any member of a labor organization for the purpose of interfering with or preventing the exercising by such member of any right to which he is entitled under the provisions of this Act." S. 1555, as reported, 86th Cong., 1st Sess., 53 ; see also S. Rep. No. 187, 86th Cong., 1st Sess., 53-54, 94 ; 105 Cong. Rec. 15120 (comments of Sen. Goldwater). Although S. 1555 was not passed in this form by the Senate,[17] the fact that even in an earlier bill improper discipline by a labor organization was listed separately from economic coercion by any person shows that the *94 Senate believed that the two were distinct, and that it did not intend to include the type of unauthorized "economic reprisals" suffered by petitioner in the instant case in its definition of "discipline." The bipartisan compromise bill introduced by Representatives Landrum and Griffin, which amended S. 1555 after its passage by the Senate, substituted civil remedies for the criminal penalties. Representative Griffin explained that the bill covered only the "denial of rights through union discipline," 105 Cong. Rec. 13091 an apparent reference to penalties imposed by the union in its official capacity as a labor organization. Discipline "must be done in the name of or on behalf of the union as an organizational entity." Etelson & Smith, Union Discipline Under the Landrum-Griffin Act, In |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | Etelson & Smith, Union Discipline Under the Landrum-Griffin Act, In the instant case, petitioner alleged only that the union business manager and business agent failed to refer him for employment because he supported one of their political rivals. He did not allege acts by the union amounting to "discipline" within the meaning of the statute. According to his complaint, he was the victim of the personal vendettas of two union officers. The opprobrium of the union as an entity, however, was not visited upon petitioner. He was not punished by any tribunal, nor was he the subject of any proceedings convened by respondent. In sum, petitioner has not alleged a violation of 101(a)(5) and 609, and the Court of Appeals correctly dismissed his claim under the LMRDA.[18] *95 IV We express no view regarding the merits of petitioner's claim. We hold only that the Court of Appeals erred when it determined that the District Court lacked jurisdiction over the suit, but that the Court of Appeals correctly found that petitioner failed to state a claim under 101(a)(5) and 609 of the LMRDA. We remand the cause for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, with whom JUSTICE SCALIA joins, concurring in part and dissenting in part. When school officials inflict corporal punishment on a schoolchild, we speak of the child being "disciplined."[1] A prison inmate who is summarily deprived of "good time" credits is also subjected to "discipline."[2] So too is the soldier who as a result of misconduct is required by a superior to perform additional duties.[3] In none of these cases is the discipline imposed by a "tribunal" or as a result of a "proceeding convened by" the disciplinary official. Ante, at 94. Rather, what distinguishes the punishment as "discipline" is that it is imposed by one in control with a view to correcting behavior that is considered to be deviant. The Court today holds, however, that a union member who is deprived of work referrals as a result of his intraunion political activities, conduct deemed by the union to be deviant, is nonetheless not being *96 subjected to discipline. Although I join the Court's analysis and disposition of petitioner's duty of fair representation claim in Parts I and II of its opinion, I cannot join this restrictive interpretation of the LMRDA. Title I of the LMRDA, the "Bill of Rights" of labor organizations, "was the product of congressional concern with widespread abuses of power by union leadership." These took at least two forms. First, many unions were run autocratically and did not |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | forms. First, many unions were run autocratically and did not accord their members the right of self-governance. See Sheet Metal ; Accordingly, Congress decreed that union members would have equal voting rights and the freedom of speech and assembly and provided in 102, U.S. C. 412 (1982 ed.), a means of enforcing these rights through a civil cause of action in federal court. Second, there was evidence that unions imposed discipline on their members in violation of their members' civil rights or without adequate procedural safeguards.[4] See (emphasis deleted); 243- The provisions which address these concerns, *97 LRMDA 101(a)(5)[5] and 609,[6] U.S. C. 411(a)(5), 5 (1982 ed.), are written in expansive language. They respectively prohibit the imposition of discipline by any labor "organization or any officer thereof," 411(a)(5), and "any labor organization, or any officer, agent, shop steward, or other representative of a labor organization, or any employee thereof." 5. And they refer not only to fines, suspension, and expulsion, the usual sanctions imposed by a union, but also to unspecified means by which the union "otherwise discipline[s]" its members. As a matter of plain language, "discipline" constitutes "punishment by one in authority with a view to correction or training." Webster's Third New International Dictionary 644 ; see also Random House Dictionary of the English Language 562 ("punishment inflicted by way of correction and training"); 4 Oxford English Dictionary 5 (same). Union discipline is thus punishment imposed by the union or its officers "to control the member's conduct in order to protect the interests of the union or its membership." F.2d 912, It easily includes the use of a hiring hall system by one who is charged with administering it to punish a member for his political opposition. Indeed, the express *98 reference in the Act to "fines," a form of discipline that traditionally was not imposed after a trial, suggests that Congress intended the Act to reach discipline that is both informal and affects only a member's economic rights. Moreover, as a matter of the statute's purpose and policy, it would make little sense to exclude the abuse of a hiring hall to deprive a member of job referrals from the type of discipline against which the union member is protected. Congress intended the LMRDA to prevent unions from exercising control over their membership through measures that did not provide adequate procedural protection. "[I]nterference with employment rights constitute[s] a powerful tool by which union leaders [can] control union affairs, often in violation of workers' membership rights." ; see also Etelson & Smith, Union Discipline Under the Landrum-Griffin Act, It |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | Etelson & Smith, Union Discipline Under the Landrum-Griffin Act, It is inconceivable that a statute written so broadly would not include such sanctions within its compass. The Court nonetheless concludes that the denial of hiring hall referrals is not properly attributable to the union and does not constitute discipline within the meaning of the LMRDA. The Court errs in its construction of petitioner's complaint and in its interpretation of the LMRDA. At this pleading stage, petitioner's allegations must be accepted as true and his complaint may be dismissed "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." ; Petitioner alleges "that in failing to refer him for employment the defendant, acting by and through its present business manager, David Williams, *99 and its present business agent, Michael Duffy, have `otherwise disciplined' plaintiff." The union's abuse of the hiring hall system is further said to have "been part of widespread, improper discipline for political opposition." App. to Pet. for Cert. A-21. The Court elsewhere acknowledges that "the ability to refer workers for employment through a hiring hall" is a power of the union granted it by the collective-bargaining agreement, ante, at 88, and it properly concludes that petitioner's allegations are sufficient to support the imposition of liability upon the union for breaching its duty of fair representation. Petitioner's allegation that the union's officers used their union-granted authority over the hiring hall to punish him for his union activities should also be sufficient to support the claim that punishment was imposed "under color of" the union's right to control its membership and that the "opprobrium of the union as an entity" was "visited upon petitioner." Ante, at 94. The Court states that the discriminatory use of the hiring hall to punish petitioner does not constitute discipline because it is not an "established disciplinary process" or imposed by "any tribunal" or as the result of "any proceeding." Ante, at 91, 94. But, as Congress was well aware,[7] discipline can be imposed informally as well as formally and pursuant to unwritten practices similar to those petitioner has alleged as well as to a formal established policy. The language and structure of the Act do not evince any intention to restrict its coverage to sanctions that are imposed by tribunals *100 or as the result of proceedings. That Congress specified detailed procedures to be followed in disciplinary proceedings does not mean that no procedures need be followed when discipline is imposed without any proceeding whatsoever. Nor does the legislative history, |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | imposed without any proceeding whatsoever. Nor does the legislative history, which reflects Congress' intention to prevent a wide range of arbitrary union action, support such a crabbed reading.[8] By holding that the informally imposed sanctions alleged here are not covered by the LMRDA, the Court ironically deprives union members of the protection of the Act's procedural safeguards at a time when they are most needed when the union or its officers act so secretly and so informally that the member receives no advance notice, no opportunity to be heard, and no explanation for the union's action. This construction of the labor organization's "Bill of Rights" is perverse and cannot have been intended by Congress. Finally, this case is not controlled, as the Court of Appeals concluded, by our decision in In that case, we held that removal from appointive union employment did not constitute discipline within the meaning of 609. ; see also Sheet Metal n. 5. We stated that "it was rank-and-file union members not union officers or employees, as such whom Congress sought to protect," 456 U.S., and that "Congress [did not] inten[d] to establish a system of job security or tenure for appointed union employees," In his brief for the United States as *101 Amicus Curiae, the Solicitor General has cogently explained why is not controlling: "The question presented by this case is far different. Here, participation in the Union's job referral program is a benefit enjoyed by all members of the Union within the bargaining unit, and the issue is whether withdrawal of the benefit can be deemed `discipline' even though that benefit may also be extended to non-members of the Union. 's emphasis on the distinction between union members and union leaders does not apply to this situation. In fact, the court of appeals' reliance on language in that drew that distinction turns the Court's approach on its head. 's conclusion that the Act did not protect the positions and perquisites enjoyed only by union leaders was surely not intended to narrow the class of benefits, enjoyed by the rank-and-file, that cannot be withdrawn in retaliation for the exercise of protected rights. "The court of appeals implicitly acknowledged (see Pet. App. A3) that participation in a job referral system limited to union members would be a part of `a union member's rights or status as a member of the union' (456 U. S. ). The fact that non-members may be included within the system should not alter that characterization. In either case, when a union member's removal from or demotion on an |
Justice Brennan | 1,989 | 13 | majority | Breininger v. Sheet Metal Workers | https://www.courtlistener.com/opinion/112340/breininger-v-sheet-metal-workers/ | when a union member's removal from or demotion on an out-of-work list is based upon a violation of a union rule or policy, or political opposition to the union's leadership, the removal or demotion can fairly be characterized as a punitive action taken against the member as a member that sets him apart from other members of the rank-and-file. See -438. Moreover, such an action bears enough similarity to the specific disciplinary actions referred to in Section 609 to fall within the residual category of *102 sanctions encompassed by the phrase `otherwise disciplined' that are subject to that provision."[9] Today the Court correctly refuses to adopt the Court of Appeals' reasoning, but its rationale is just as flawed as that of the Court of Appeals. Retaliation effected through a union job referral system is a form of discipline even if the system is used by nonmembers as well as members and even if the sanction is the result of an ex parte, ad hoc, unrecorded decision by the union. I respectfully dissent from the Court's disposition of petitioner's claim under the Labor-Management Reporting and Disclosure Act of 1959. |
Justice White | 1,982 | 6 | majority | Rogers v. Lodge | https://www.courtlistener.com/opinion/110790/rogers-v-lodge/ | The issue in this case is whether the at-large system of elections in Burke County, Ga., violates the Fourteenth Amendment rights of Burke County's black citizens. I Burke County is a large, predominately rural county located in eastern Georgia. Eight hundred and thirty-one square miles in area,[1] it is approximately two-thirds the size of the State of Rhode Island. According to the 1980 census, Burke County had a total population of 19,349, of whom 10,385, or 53.6%, were black.[2] The average age of blacks *615 living there is lower than the average age of whites and therefore whites constitute a slight majority of the voting age population. As of 6,373 persons were registered to vote in Burke County, of whom 38% were black.[3] The Burke County Board of Commissioners governs the county. It was created in 1911, see -311, and consists of five members elected at large to concurrent 4-year terms by all qualified voters in the county. The county has never been divided into districts, either for the purpose of imposing a residency requirement on candidates or for the purpose of requiring candidates to be elected by voters residing in a district. In order to be nominated or elected, a candidate must receive a majority of the votes cast in the primary or general election, and a runoff must be held if no candidate receives a majority in the first primary or general election. Ga. Code 34-1513 Each candidate must run for a specific seat on the Board, Ga. Code 34-1015 and a voter may vote only once for any candidate. No Negro has ever been elected to the Burke County Board of Commissioners. Appellees, eight black citizens of Burke County, filed this suit in in the United States District Court for the Southern District of Georgia. The suit was brought on behalf of all black citizens in Burke County. The class was certified in 1977. The complaint alleged that the county's system of at-large elections violates appellees' First, Thirteenth, Fourteenth, and Fifteenth Amendment rights, as well as their rights under 42 U.S. C. 1971, and 1983, by diluting the voting power of black citizens. Following a bench trial at which both sides introduced extensive evidence, the court issued an order on September 29, stating that appellees were entitled to prevail and ordering that Burke County be *616 divided into five districts for purposes of electing County Commissioners. App. to Juris. Statement 62a. The court later issued detailed findings of fact and conclusions of law in which it stated that while the present method of electing County Commissioners was |
Justice White | 1,982 | 6 | majority | Rogers v. Lodge | https://www.courtlistener.com/opinion/110790/rogers-v-lodge/ | that while the present method of electing County Commissioners was "racially neutral when adopted, [it] is being maintained for invidious purposes" in violation of appellees' Fourteenth and Fifteenth Amendment rights. at 71a, 96a. The Court of Appeals affirmed. It stated that while the proceedings in the District Court took place prior to the decision in the District Court correctly anticipated Mobile and required appellees to prove that the at-large voting system was maintained for a discriminatory -1376. The Court of Appeals also held that the District Court's findings were not clearly erroneous, and that its conclusion that the at-large system was maintained for invidious purposes was "virtually mandated by the overwhelming proof." We noted probable jurisdiction, and now affirm.[4] II At-large voting schemes and multimember districts tend to minimize the voting strength of minority groups by permitting the political majority to elect all representatives of the district. A distinct minority, whether it be a racial, ethnic, economic, or political group, may be unable to elect any representatives in an at-large election, yet may be able to elect several representatives if the political unit is divided into single-member districts. The minority's voting power in a multimember district is particularly diluted when bloc voting occurs and ballots are cast along strict majority-minority lines. While multimember districts have been challenged for *617 "their winner-take-all aspects, their tendency to submerge minorities and to overrepresent the winning party," this Court has repeatedly held that they are not unconstitutional per se. ; ; The Court has recognized, however, that multimember districts violate the Fourteenth Amendment if "conceived or operated as purposeful devices to further racial discrimination" by minimizing, cancelling out or diluting the voting strength of racial elements in the voting population. See also at Cases charging that multimember districts unconstitutionally dilute the voting strength of racial minorities are thus subject to the standard of proof generally applicable to Equal Protection Clause cases. and Arlington made it clear that in order for the Equal Protection Clause to be violated, "the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory " Neither case involved voting dilution, but in both cases the Court observed that the requirement that racially discriminatory purpose or intent be proved applies to voting cases by relying upon, among others, a districting case, to illustrate that a showing of discriminatory intent has long been required in all types of equal protection cases charging racial discrimination. Arlington ;[5] *618 Arlington and both rejected the notion that a law is invalid under the Equal Protection Clause simply |
Justice White | 1,982 | 6 | majority | Rogers v. Lodge | https://www.courtlistener.com/opinion/110790/rogers-v-lodge/ | a law is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than another. Arlington ; However, both cases recognized that discriminatory intent need not be proved by direct evidence. "Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another." Thus determining the existence of a discriminatory purpose "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Arlington In the Court was called upon to apply these principles to the at-large election system in Mobile, Ala. Mobile is governed by three commissioners who exercise all legislative, executive, and administrative power in the Each candidate for the City Commission runs for one of three numbered posts in an at-large election and can only be elected by a majority vote. Plaintiffs brought a class action on behalf of all Negro citizens of Mobile alleging that the at-large scheme diluted their voting strength in violation of several statutory and constitutional provisions. The District Court concluded that the at-large system "violates the constitutional rights of the plaintiffs by improperly restricting their access to the political process," v. Mobile, and ordered that the commission form of government be replaced by a mayor and a nine-member City Council elected from single-member districts. The Court of Appeals affirmed. This Court reversed. Justice Stewart, writing for himself and three other Justices, noted that to prevail in their contention that the at-large voting system violates the Equal Protection Clause of the Fourteenth Amendment, plaintiffs had to prove the *619 system was "`conceived or operated as [a] purposeful devic[e] to further racial discrimination.'" 446 U.S., quoting[6] Such a requirement "is simply one aspect of the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment," 446 U.S., and is consistent with that Another Justice agreed with the standard of proof recognized by the plurality. The plurality went on to conclude that the District Court had failed to comply with this standard. The District Court had analyzed plaintiffs' claims in light of the standard which had been set forth in aff'd on other grounds sub nom. East Carroll Parish School[7]Zimmer set out a list of factors[8] gleaned from *620 and that a court should consider in assessing the constitutionality of at-large and multimember district voting schemes. Under Zimmer, voting dilution is established "upon proof of the existence of an |
Justice White | 1,982 | 6 | majority | Rogers v. Lodge | https://www.courtlistener.com/opinion/110790/rogers-v-lodge/ | dilution is established "upon proof of the existence of an aggregate of these factors." The plurality in Mobile was of the view that Zimmer was "decided upon the misunderstanding that it is not necessary to show a discriminatory purpose in order to prove a violation of the Equal Protection Clause that proof of a discriminatory effect is sufficient." The plurality observed that while "the presence of the indicia relied on in Zimmer may afford some evidence of a discriminatory purpose," the mere existence of those criteria is not a substitute for a finding of discriminatory The District Court's standard in Mobile was likewise flawed. Finally, the plurality concluded that the evidence upon which the lower courts had relied was "insufficient to prove an unconstitutionally discriminatory purpose in the present case." JUSTICE STEVENS rejected the intentional discrimination standard but concluded that the proof failed to satisfy the legal standard that in his view was the applicable rule. He therefore concurred in the judgment of reversal. Four other Justices, however, thought the evidence sufficient to satisfy the purposeful discrimination standard. One of them, JUSTICE BLACKMUN, nevertheless concurred in the Court's judgment because he believed an erroneous remedy had been imposed. Because the District Court in the present case employed the evidentiary factors outlined in Zimmer, it is urged that *621 its judgment is infirm for the same reasons that led to the reversal in Mobile. We do not agree. First, and fundamentally, we are unconvinced that the District Court in this case applied the wrong legal standard. Not only was the District Court's decision rendered a considerable time after and Arlington but the trial judge also had the benefit of where the Court of Appeals for the Fifth Circuit assessed the impact of and Arlington and held that "a showing of racially motivated discrimination is a necessary element in an equal protection voting dilution claim" The court stated that "[t]he ultimate issue in a case alleging unconstitutional dilution of the votes of a racial group is whether the districting plan under attack exists because it was intended to diminish or dilute the political efficacy of that group." The Court of Appeals also explained that although the evidentiary factors outlined in Zimmer were important considerations in arriving at the ultimate conclusion of discriminatory intent, the plaintiff is not limited to those factors. "The task before the fact finder is to determine, under all the relevant facts, in whose favor the `aggregate' of the evidence preponderates. This determination is peculiarly dependent upon the facts of each case." The District Court referred to and |
Justice White | 1,982 | 6 | majority | Rogers v. Lodge | https://www.courtlistener.com/opinion/110790/rogers-v-lodge/ | facts of each case." The District Court referred to and demonstrated its understanding of the controlling standard by observing that a determination of discriminatory intent is "a requisite to a finding of unconstitutional vote dilution" under the Fourteenth and Fifteenth Amendments. App. to Juris. Statement 68a. Furthermore, while recognizing that the evidentiary factors identified in Zimmer were to be considered, the District Court was aware that it was "not limited in its determination only to the Zimmer factors" but could consider other relevant factors as well. App. to Juris. Statement 70a. The District Court then proceeded to deal with what it considered to *622 be the relevant proof and concluded that the at-large scheme of electing commissioners, "although racially neutral when adopted, is being maintained for invidious purposes." at 71a. That system "while neutral in origin has been subverted to invidious purposes." at 90a. For the most part, the District Court dealt with the evidence in terms of the factors set out in Zimmer and its progeny, but as the Court of Appeals stated: "Judge Alaimo employed the constitutionally required standard [and] did not treat the Zimmer criteria as absolute, but rather considered them only to the extent they were relevant to the question of discriminatory intent." Although a tenable argument can be made to the contrary, we are not inclined to disagree with the Court of Appeals' conclusion that the District Court applied the proper legal standard. III A We are also unconvinced that we should disturb the District Court's finding that the at-large system in Burke County was being maintained for the invidious purpose of diluting the voting strength of the black population. In -770, we stated that we were not inclined to overturn the District Court's factual findings, "representing as they do a blend of history and an intensely local appraisal of the design and impact of the Bexar County multimember district in the light of past and present reality, political and otherwise." See also Columbus Board of Our recent decision in emphasizes the deference Federal Rule of Civil Procedure 52 requires reviewing courts to give a trial court's findings of fact. "Rule 52(a) broadly requires that findings of fact not be set aside unless *623 clearly erroneous. It does not make exceptions or purport to exclude certain categories of factual findings" The Court held that the issue of whether the differential impact of a seniority system resulted from an intent to discriminate on racial grounds "is a pure question of fact, subject to Rule 52(a)'s clearly-erroneous standard." The Swint Court also noted that issues of intent |
Justice White | 1,982 | 6 | majority | Rogers v. Lodge | https://www.courtlistener.com/opinion/110790/rogers-v-lodge/ | standard." The Swint Court also noted that issues of intent are commonly treated as factual matters. We are of the view that the same clearly-erroneous standard applies to the trial court's finding in this case that the at-large system in Burke County is being maintained for discriminatory purposes, as well as to the court's subsidiary findings of fact. The Court of Appeals did not hold any of the District Court's findings of fact to be clearly erroneous, and this Court has frequently noted its reluctance to disturb findings of fact concurred in by two lower courts. See, e. g., ; ; Graver Tank & Mfg. We agree with the Court of Appeals that on the record before us, none of the factual findings are clearly erroneous. B The District Court found that blacks have always made up a substantial majority of the population in Burke County, App. to Juris. Statement 66a, n. 3, but that they are a distinct minority of the registered voters. at 71a-72a. There was also overwhelming evidence of bloc voting along racial lines. at 72a-73a. Hence, although there had been black candidates, no black had ever been elected to the Burke County Commission. These facts bear heavily on the issue of purposeful discrimination. Voting along racial lines allows those elected to ignore black interests without fear of political consequences, and without bloc voting the minority candidates would not lose elections solely because of their race. Because it is sensible to expect that at least some *624 blacks would have been elected in Burke County, the fact that none have ever been elected is important evidence of purposeful exclusion. See Under our cases, however, such facts are insufficient in themselves to prove purposeful discrimination absent other evidence such as proof that blacks have less opportunity to participate in the political processes and to elect candidates of their choice. United Jewish ; at -766; 403 U. S., -150. See also 446 U. S., Both the District Court and the Court of Appeals thought the supporting proof in this case was sufficient to support an inference of intentional discrimination. The supporting evidence was organized primarily around the factors which had deemed relevant to the issue of intentional discrimination. These factors were primarily those suggested in The District Court began by determining the impact of past discrimination on the ability of blacks to participate effectively in the political process. Past discrimination was found to contribute to low black voter registration because, prior to the Voting Rights Act of 1965, blacks had been denied access to the political process by means |
Justice White | 1,982 | 6 | majority | Rogers v. Lodge | https://www.courtlistener.com/opinion/110790/rogers-v-lodge/ | had been denied access to the political process by means such as literacy tests, poll taxes, and white primaries. The result was that "Black suffrage in Burke County was virtually non-existent." App. to Juris. Statement 71a. Black voter registration in Burke County has increased following the Voting Rights Act to the point that some 38% of blacks eligible to vote are registered to do so. at 72a. On that basis the District Court inferred that "past discrimination has had an adverse effect on black voter registration which lingers to this date." Past discrimination against blacks in education also had the same effect. Not only did Burke County schools discriminate against blacks as recently as 1969, but also some schools *625 still remain essentially segregated and blacks as a group have completed less formal education than whites. at 74a. The District Court found further evidence of exclusion from the political process. Past discrimination had prevented blacks from effectively participating in Democratic Party affairs and in primary elections. Until this lawsuit was filed, there had never been a black member of the County Executive Committee of the Democratic Party. There were also property ownership requirements that made it difficult for blacks to serve as chief registrar in the county. There had been discrimination in the selection of grand jurors, the hiring of county employees, and in the appointments to boards and committees which oversee the county government. at 74a-76a. The District Court thus concluded that historical discrimination had restricted the present opportunity of blacks effectively to participate in the political process. Evidence of historical discrimination is relevant to drawing an inference of purposeful discrimination, particularly in cases such as this one where the evidence shows that discriminatory practices were commonly utilized, that they were abandoned when enjoined by courts or made illegal by civil rights legislation, and that they were replaced by laws and practices which, though neutral on their face, serve to maintain the status quo. Extensive evidence was cited by the District Court to support its finding that elected officials of Burke County have been unresponsive and insensitive to the needs of the black community,[9] which increases the likelihood that the political process was not equally open to blacks. This evidence ranged from the effects of past discrimination which still *626 haunt the county courthouse to the infrequent appointment of blacks to county boards and committees; the overtly discriminatory pattern of paving county roads; the reluctance of the county to remedy black complaints, which forced blacks to take legal action to obtain school and grand jury desegregation; and the role |
Justice White | 1,982 | 6 | majority | Rogers v. Lodge | https://www.courtlistener.com/opinion/110790/rogers-v-lodge/ | to obtain school and grand jury desegregation; and the role played by the County Commissioners in the incorporation of an all-white private school to which they donated public funds for the purchase of band uniforms. at 77a-82a. The District Court also considered the depressed socio-economic status of Burke County blacks. It found that proportionately more blacks than whites have incomes below the poverty level. at 83a. Nearly 53% of all black families living in Burke County had incomes equal to or less than three-fourths of a poverty-level income. Not only have blacks completed less formal education than whites, but also the education they have received "was qualitatively inferior to a marked degree." at 84a. Blacks tend to receive less pay than whites, even for similar work, and they tend to be employed in menial jobs more often than whites. at 85a. Seventy-three percent of houses occupied by blacks lacked all or some plumbing facilities; only 16% of white-occupied houses suffered the same deficiency. The District Court concluded that the depressed socio-economic status of blacks results in part from "the lingering effects of past discrimination." Although finding that the state policy behind the at-large electoral system in Burke County was "neutral in origin," the District Court concluded that the policy "has been subverted to invidious purposes." at 90a. As a practical matter, maintenance of the state statute providing for at-large elections in Burke County is determined by Burke County's state representatives, for the legislature defers to their wishes on matters of purely local application. The court found that Burke County's state representatives "have retained a system which has minimized the ability of Burke County Blacks to participate in the political system." *627 The trial court considered, in addition, several factors which this Court has indicated enhance the tendency of multimember districts to minimize the voting strength of racial minorities. See -144. It found that the sheer geographic size of the county, which is nearly two-thirds the size of Rhode Island, "has made it more difficult for Blacks to get to polling places or to campaign for office." App. to Juris. Statement 91a. The court concluded, as a matter of law, that the size of the county tends to impair the access of blacks to the political process. at 92a. The majority vote requirement, Ga. Code 34-1513 was found "to submerge the will of the minority" and thus "deny the minority's access to the system." App. to Juris. Statement 92a. The court also found the requirement that candidates run for specific seats, Ga. Code 34-1015 enhances appellees' lack of access because it |
Justice White | 1,982 | 6 | majority | Rogers v. Lodge | https://www.courtlistener.com/opinion/110790/rogers-v-lodge/ | Ga. Code 34-1015 enhances appellees' lack of access because it prevents a cohesive political group from concentrating on a single candidate. Because Burke County has no residency requirement, "[a]ll candidates could reside in Waynesboro, or in `lilly-white' [sic] neighborhoods. To that extent, the denial of access becomes enhanced." App. to Juris. Statement 93a. None of the District Court's findings underlying its ultimate finding of intentional discrimination appears to us to be clearly erroneous; and as we have said, we decline to overturn the essential finding of the District Court, agreed to by the Court of Appeals, that the at-large system in Burke County has been maintained for the purpose of denying blacks equal access to the political processes in the county. As in the District Court's findings were "sufficient to sustain [its] judgment. and, on this record, we have no reason to disturb them." IV We also find no reason to overturn the relief ordered by the District Court. Neither the District Court nor the Court of Appeals discerned any special circumstances that would militate *628 against utilizing single-member districts. Where "a constitutional violation has been found, the remedy does not `exceed' the violation if the remedy is tailored to cure the `condition that offends the Constitution.'" quoting[10] The judgment of the Court of Appeals is Affirmed. |
Justice Stevens | 2,000 | 16 | dissenting | Smith v. Robbins | https://www.courtlistener.com/opinion/118332/smith-v-robbins/ | While I join Justice Souter's cogent dissent without qualification, I write separately to emphasize two points that are obscured by the Court's somewhat meandering explanation of its sharp departure from settled law. First, despite its failure to say so directly, the Court has effectively overruled both and Second, its unexplained rejection of the reasoning underlying our decision in see ante, at 272-273, illustrates the extent of today's majority's disregard for accepted precedent. To make my first point it is only necessary to quote the Court's new standard for determining whether a State's appellate procedure affords adequate review for indigent defendants: "A State's procedure provides such review so long as it reasonably ensures that an indigent's appeal will be resolved in a way that is related to the merit of that appeal." Ante, at 276-277. The California procedure reviewed in and the Ohio procedure reviewed in both found inadequate by this Courtwould easily have satisfied that standard. Yet the Court today accepts California's current procedure because *290 it "requires both counsel and the court to find the appeal to be lacking in arguable issues." Ante, at 280. But in defense of its position in California relied heavily on those very same requirements, i. e., "the additional feature of the [State's] system where the court also reads the full record." Brief for Respondent in O. T. 1966, No. 98, pp. 30-31; see also Our decision held, however, that this "additional feature" was insufficient to safeguard the indigent appellant's rights. To make my second point I shall draw on my own experience as a practicing lawyer and as a judge. On a good many occasions I have found that the task of writing out the reasons that support an initial opinion on a question of law whether for the purpose of giving advice to my client or for the purpose of explaining my vote as an appellate judge leads to a conclusion that was not previously apparent. Colleagues who shared that view of the importance of giving reasons, as opposed to merely announcing conclusions, joined the opinions that I authored in and[1] In its casual rejection of the reasoning in the Court simply ignores this portion of the opinion: "Wisconsin's Rule merely requires that the attorney go one step further. Instead of relying on an unexplained assumption that the attorney has discovered law or facts that completely refute the arguments identified in the *291 brief, the Wisconsin court requires additional evidence of counsel's diligence. This requirement furthers the same interests that are served by the minimum requirements of Because counsel may discover |
Justice Stevens | 2,000 | 16 | dissenting | Smith v. Robbins | https://www.courtlistener.com/opinion/118332/smith-v-robbins/ | served by the minimum requirements of Because counsel may discover previously unrecognized aspects of the law in the process of preparing a written explanation for his or her conclusion, the discussion requirement provides an additional safeguard against mistaken conclusions by counsel that the strongest arguments he or she can find are frivolous. Just like the references to favorable aspects of the record required by the discussion requirement may forestall some motions to withdraw and will assist the court in passing on the soundness of the lawyer's conclusion that the appeal is frivolous." ; see also -82. In short, "simply putting pen to paper can often shed new light on what may at first appear to be an open-and-shut issue." For this reason, the Court is quite wrong to say that requiring counsel to articulate reasons for its conclusion results in "less effective advocacy." Ante, at 272.[2] An appellate court that employed a law clerk to review the trial transcripts in all indigent appeals in search of arguable error could be reasonably sure that it had resolved all of those appeals "in a way that is related" to their merits. It would not, however, provide the indigent appellant with anything approaching representation by a paid attorney. Like *292 California's so-called Wende procedure, it would violate the "principle of substantial equality" that was described in and and has been a part of our law for decades. ; |
Justice Stewart | 1,974 | 18 | majority | Scherk v. Alberto-Culver Co. | https://www.courtlistener.com/opinion/109066/scherk-v-alberto-culver-co/ | Alberto-Culver Co., the respondent, is an American company incorporated in Delaware with its principal office in Illinois. It manufactures and distributes toiletries and hair products in this country and abroad. During the 1960's Alberto-Culver decided to expand its overseas operations, and as part of this program it approached the petitioner Fritz Scherk, a German citizen residing at the time of trial in Switzerland. Scherk was the owner of three interrelated business entities, organized under the laws of Germany and Liechtenstein, that were engaged in the manufacture of toiletries and the licensing of trademarks for such toiletries. An initial contact with Scherk was made by a representative of Alberto-Culver in Germany in June 1967, and negotiations followed at further meetings in both Europe and the United States during 1967 and 1968. In February 1969 a contract was signed in Vienna, Austria, which provided for the transfer of the ownership of Scherk's enterprises to Alberto-Culver, along with all rights held by these enterprises to trademarks in cosmetic goods. The contract contained a number of express warranties whereby Scherk guaranteed the sole and unencumbered ownership of these trademarks. In addition, the contract contained an arbitration clause providing that "any controversy or claim [that] shall arise out of this agreement or the breach thereof" would be referred to arbitration before the International Chamber of Commerce in Paris, France, and that "[t]he laws of the State of Illinois, U. S. A. shall apply to and govern this agreement, its interpretation and performance."[1] *509 The closing of the transaction took place in Geneva, Switzerland, in June 1969. Nearly one year later Alberto-Culver allegedly discovered that the trademark rights purchased under the contract were subject to substantial encumbrances that threatened to give others superior rights to the trademarks and to restrict or preclude Alberto-Culver's use of them. Alberto-Culver thereupon tendered back to Scherk the property that had been transferred to it and offered to rescind the contract. Upon Scherk's refusal, Alberto-Culver commenced this action for damages and other relief in a Federal District Court in Illinois, contending that Scherk's fraudulent representations concerning the status of the trademark rights constituted violations of 10 (b) of the Securities Exchange Act of 1934, 15 U.S. C. 78j (b), and Rule 10b-5 promulgated thereunder, 17 CFR 240.-10b-5. In response, Scherk filed a motion to dismiss the action for want of personal and subject-matter jurisdiction as well as on the basis of forum non conveniens, or, alternatively, to stay the action pending arbitration in Paris pursuant to the agreement of the parties. Alberto-Culver, *510 in turn, opposed this motion and sought a |
Justice Stewart | 1,974 | 18 | majority | Scherk v. Alberto-Culver Co. | https://www.courtlistener.com/opinion/109066/scherk-v-alberto-culver-co/ | Alberto-Culver, *510 in turn, opposed this motion and sought a preliminary injunction restraining the prosecution of arbitration proceedings.[2] On December 2, 1971, the District Court denied Scherk's motion to dismiss, and, on January 14, 1972, it granted a preliminary order enjoining Scherk from proceeding with arbitration. In taking these actions the court relied entirely on this Court's decision in which held that an agreement to arbitrate could not preclude a buyer of a security from seeking a judicial remedy under the Securities Act of 1933, in view of the language of 14 of that Act, barring "[a]ny condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter." 15 U.S. C. 77n.[3] The Court of Appeals for the Seventh Circuit, with one judge dissenting, affirmed, upon what it considered the controlling authority of the Wilko decision. Because of the importance of the question presented we granted Scherk's petition for a writ of certiorari. I The United States Arbitration Act, now 9 U.S. C. 1 et seq., reversing centuries of judicial hostility to arbitration agreements,[4] was designed to allow parties to avoid *511 "the costliness and delays of litigation," and to place arbitration agreements "upon the same footing as other contracts." H. R. Rep. No. 96, 68th Cong., 1st Sess., 1, 2 (1924); see also S. Rep. No. 536, 68th Cong., 1st Sess. (1924). Accordingly, the Act provides that an arbitration agreement such as is here involved "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S. C. 2.[5] The Act also provides in 3 for a stay of proceedings in a case where a court is satisfied that the issue before it is arbitrable under the agreement, and 4 of the Act directs a federal court to order parties to proceed to arbitration if there has been a "failure, neglect, or refusal" of any party to honor an agreement to arbitrate. In this Court acknowledged that the Act reflects a legislative recognition of the "desirability of arbitration as an alternative to the complications of litigation." but nonetheless declined to apply the Act's provisions. That case involved an agreement between Anthony Wilko and Hayden, Stone & Co., a large brokerage firm, under which Wilko agreed to purchase on margin a number of shares of a corporation's common stock. Wilko alleged that his purchase of the stock was induced by false representations *512 on the part of the defendant concerning the value of the shares, and he brought suit |
Justice Stewart | 1,974 | 18 | majority | Scherk v. Alberto-Culver Co. | https://www.courtlistener.com/opinion/109066/scherk-v-alberto-culver-co/ | concerning the value of the shares, and he brought suit for damages under 12 (2) of the Securities Act of 1933, 15 U.S. C. 77l. The defendant responded that Wilko had agreed to submit all controversies arising out of the purchase to arbitration, and that this agreement, contained in a written margin contract between the parties, should be given full effect under the Arbitration Act. The Court found that "[t]wo policies, not easily reconcilable, are involved in this case." On the one hand, the Arbitration Act stressed "the need for avoiding the delay and expense of litigation," and directed that such agreements be "valid, irrevocable, and enforceable" in federal courts. On the other hand, the Securities Act of 1933 was "[d]esigned to protect investors" and to require "issuers, underwriters, and dealers to make full and fair disclosure of the character of securities sold in interstate and foreign commerce and to prevent fraud in their sale," by creating "a special right to recover for misrepresentation" In particular, the Court noted that 14 of the Securities Act, 15 U.S. C. 77n, provides: "Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter or of the rules and regulations of the Commission shall be void." The Court ruled that an agreement to arbitrate "is a `stipulation,' and [that] the right to select the judicial forum is the kind of `provision' that cannot be waived under 14 of the Securities Act."[6] -435. *513 Thus, Wilko's advance agreement to arbitrate any disputes subsequently arising out of his contract to purchase the securities was unenforceable under the terms of 14 of the Securities Act of 1933. Alberto-Culver, relying on this precedent, contends that the District Court and Court of Appeals were correct in holding that its agreement to arbitrate disputes arising under the contract with Scherk is similarly unenforceable in view of its contentions that Scherk's conduct constituted violations of the Securities Exchange Act of 1934 and rules promulgated thereunder. For the reasons that follow, we reject this contention and hold that the provisions of the Arbitration Act cannot be ignored in this case. At the outset, a colorable argument could be made that even the semantic reasoning of the Wilko opinion does not control the case before us. Wilko concerned a suit brought under 12 (2) of the Securities Act of 1933, which provides a defrauded purchaser with the "special right" of a private remedy for civil There is no statutory counterpart of 12 (2) in the Securities Exchange Act of 1934, and neither 10 |
Justice Stewart | 1,974 | 18 | majority | Scherk v. Alberto-Culver Co. | https://www.courtlistener.com/opinion/109066/scherk-v-alberto-culver-co/ | in the Securities Exchange Act of 1934, and neither 10 (b) of that Act nor Rule 10b-5 speaks of a private remedy to redress violations of the kind alleged here. While federal case law has established that 10 (b) and Rule 10b-5 create an implied private cause of action, see *514 6 L. Loss, Securities Regulation 3869-3873 (1969) and cases cited therein; cf. J. I. Case the Act itself does not establish the "special right" that the Court in Wilko found significant. Furthermore, while both the Securities Act of 1933 and the Securities Exchange Act of 1934 contain sections barring waiver of compliance with any "provision" of the respective Acts,[7] certain of the "provisions" of the 1933 Act that the Court held could not be waived by Wilko's agreement to arbitrate find no counterpart in the 1934 Act. In particular, the Court in Wilko noted that the jurisdictional provision of the 1933 Act, 15 U.S. C. 77v, allowed a plaintiff to bring suit "in any court of competent jurisdiction federal or stateand removal from a state court is prohibited." The analogous provision of the 1934 Act, by contrast, provides for suit only in the federal district courts that have "exclusive jurisdiction," 15 U.S. C. 78aa, thus significantly restricting the plaintiff's choice of forum.[8] *515 Accepting the premise, however, that the operative portions of the language of the 1933 Act relied upon in Wilko are contained in the Securities Exchange Act of 1934, the respondent's reliance on Wilko in this case ignores the significant and, we find, crucial differences between the agreement involved in Wilko and the one signed by the parties here. Alberto-Culver's contract to purchase the business entities belonging to Scherk was a truly international agreement. Alberto-Culver is an American corporation with its principal place of business and the vast bulk of its activity in this country, while Scherk is a citizen of Germany whose companies were organized under the laws of Germany and Liechtenstein. The negotiations leading to the signing of the contract in Austria and to the closing in Switzerland took place in the United States, England, and Germany, and involved consultations with legal and trademark experts from each of those countries and from Liechtenstein. Finally, and most significantly, the subject matter of the contract concerned the sale of business enterprises organized under the laws of and primarily situated in European countries, whose activities were largely, if not entirely, directed to European markets. Such a contract involves considerations and policies significantly different from those found controlling in Wilko. In Wilko, quite apart from the arbitration provision, there |
Justice Stewart | 1,974 | 18 | majority | Scherk v. Alberto-Culver Co. | https://www.courtlistener.com/opinion/109066/scherk-v-alberto-culver-co/ | Wilko. In Wilko, quite apart from the arbitration provision, there was no question but that the laws of the United States generally, and the federal securities laws in particular, would govern disputes arising out of the stock-purchase agreement. The parties, the negotiations, and the subject matter of the contract were all *516 situated in this country, and no credible claim could have been entertained that any international conflict-of-laws problems would arise. In this case, by contrast, in the absence of the arbitration provision considerable uncertainty existed at the time of the agreement, and still exists, concerning the law applicable to the resolution of disputes arising out of the contract.[9] Such uncertainty will almost inevitably exist with respect to any contract touching two or more countries, each with its own substantive laws and conflict-of-laws rules. A contractual provision specifying in advance the forum in which disputes shall be litigated and the law to be applied is, therefore, an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction. Furthermore, such a provision obviates the danger that a dispute under the agreement might be submitted to a forum hostile to the interests of one of the parties or unfamiliar with the problem area involved.[10] A parochial refusal by the courts of one country to enforce an international arbitration agreement would not only frustrate these purposes, but would invite *517 unseemly and mutually destructive jockeying by the parties to secure tactical litigation advantages. In the present case, for example, it is not inconceivable that if Scherk had anticipated that Alberto-Culver would be able in this country to enjoin resort to arbitration he might have sought an order in France or some other country enjoining Alberto-Culver from proceeding with its litigation in the United States. Whatever recognition the courts of this country might ultimately have granted to the order of the foreign court, the dicey atmosphere of such a legal no-man's-land would surely damage the fabric of international commerce and trade, and imperil the willingness and ability of businessmen to enter into international commercial agreements.[11] The exception to the clear provisions of the Arbitration Act carved out by Wilko is simply inapposite to a case such as the one before us. In Wilko the Court reasoned *518 that "[w]hen the security buyer, prior to any violation of the Securities Act, waives his right to sue in courts, he gives up more than would a participant in other business transactions. The security buyer has a wider choice of courts and venue. He thus surrenders one of the advantages the |
Justice Stewart | 1,974 | 18 | majority | Scherk v. Alberto-Culver Co. | https://www.courtlistener.com/opinion/109066/scherk-v-alberto-culver-co/ | and venue. He thus surrenders one of the advantages the Act gives him" In the context of an international contract, however, these advantages become chimerical since, as indicated above, an opposing party may by speedy resort to a foreign court block or hinder access to the American court of the purchaser's choice.[12] Two Terms ago in The we rejected the doctrine that a forum-selection clause of a contract, although voluntarily adopted by the parties, will not be respected in a suit brought in the United States " `unless the selected state would provide a more convenient forum than the state in which suit is brought.' " Rather, we concluded that a "forum clause should control absent a strong showing that it should be set aside." We noted that "much uncertainty and possibly great inconvenience to both parties could arise if a suit could be maintained in any jurisdiction in which an accident might occur or if jurisdiction were left to any place [where personal or in rem jurisdiction might be established]. The elimination of all such uncertainties by agreeing in advance on a forum acceptable to both parties is an indispensable element in international trade, commerce, and contracting." *519 An agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of forum-selection clause that posits not only the situs of suit but also the procedure to be used in resolving the dispute.[13] The invalidation of such an agreement in the case before us would not only allow the respondent to repudiate its solemn promise but would, as well, reflect a "parochial concept that all disputes must be resolved under our laws and in our courts. We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts."[14] For all these reasons we hold that the agreement of the parties in this case to arbitrate any dispute arising out of their international commercial transaction is to be *520 respected and enforced by the federal courts in accord with the explicit provisions of the Arbitration Act.[15] Accordingly, the judgment of the Court of Appeals is *521 reversed and the case is remanded to that court with directions to remand to the District Court for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. |
Justice Scalia | 2,011 | 9 | majority | Bruesewitz v. Wyeth LLC | https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/ | We consider whether a preemption provision enacted in the National Childhood Vaccine Injury Act of (NCVIA)1 bars state-law design-defect claims against vaccine manufacturers. I A For the last 66 years, vaccines have been subject to the same federal premarket approval process as prescription drugs, and compensation for vaccine-related injuries has been left largely to the States.2 Under that regime, the elimination of communicable diseases through vaccination became “one of the greatest achievements” of public health in the 20th century.3 But in the 1970’s and 1980’s vac —————— 1 42U. S. C. 2 See P. Hutt, R. Merrill, & L. Grossman, Food and Drug Law 912– 913, 1458 (3d ed. 2007). 3 Centers for Disease Control, Achievements in Public Health, 1900– 1999: Impact of Vaccines Universally Recommended for Children, 48 Morbidity and Mortality Weekly Report 243, 247 (Apr. 2, 1999). 2 BRUESEWITZ v. WYETH LLC Opinion of the Court cines became, one might say, victims of their own success. They had been so effective in preventing infectious dis eases that the public became much less alarmed at the threat of those diseases,4 and much more concerned with the risk of injury from the vaccines themselves.5 Much of the concern centered around vaccines against diphtheria, tetanus, and pertussis (DTP), which were blamed for children’s disabilities and developmental de lays. This led to a massive increase in vaccine-related tort litigation. Whereas between 1978 and 1981 only nine product-liability suits were filed against DTP manufactur ers, by the mid-1980’s the suits numbered more than 200 each year.6 This destabilized the DTP vaccine market, causing two of the three domestic manufacturers to with draw; and the remaining manufacturer, Lederle Laborato ries, estimated that its potential tort liability exceeded its annual sales by a factor of 200.7 Vaccine shortages arose when Lederle had production problems in8 Despite the large number of suits, there were many complaints that obtaining compensation for legitimate vaccine-inflicted injuries was too costly and difficult.9 A —————— 4 See Immunization Against Infectious Disease, 200 Sci ence 902, 906 (1978). 5 See National Vaccine Advisory Committee, A Comprehensive Re view of Federal Vaccine Safety Programs and Public Health Activities 2–3 (hereinafter NVAC), http://www.hhs.gov/nvpo/nvac/ documents/vaccine-safety-review.pdf (as visited Feb. 18, 2011, and available in Clerk of Court’s case file). 6 See Sing & Willian, Supplying Vaccines: An Overview of the Market and Regulatory Context, in Supplying Vaccines: An Economic Analysis of Critical Issues 45, 51–52 7 See 8 See Centers for Disease Control, Diptheria-Tetanus-Pertussis Vac cine Shortage, 33 Morbidity and Mortality Weekly Report 695–696 9 See Apolinsky & Van Detta, Rethinking Liability for Vaccine Injury, 19 |
Justice Scalia | 2,011 | 9 | majority | Bruesewitz v. Wyeth LLC | https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/ | Apolinsky & Van Detta, Rethinking Liability for Vaccine Injury, 19 Cornell J. L. & Pub. Pol’y 537, 550–551 (2010); T. Burke, Lawyers, Cite as: 562 U. S. (2011) 3 Opinion of the Court significant number of parents were already declining vaccination for their children,10 and concerns about com pensation threatened to depress vaccination rates even further.11 This was a source of concern to public health officials, since vaccines are effective in preventing out breaks of disease only if a large percentage of the popula tion is vaccinated.12 To stabilize the vaccine market and facilitate compensa tion, Congress enacted the NCVIA in The Act estab lishes a no-fault compensation program “designed to work faster and with greater ease than the civil tort system.” A per son injured by a vaccine, or his legal guardian, may file a petition for compensation in the United States Court of Federal Claims, naming the Secretary of Health and Human Services as the respondent.13 A special master then makes an informal adjudication of the petition within (except for two limited exceptions) 240 days.14 The Court of Federal Claims must review objections to the special master’s decision and enter final judgment under a simi larly tight statutory deadline.15 At that point, a claimant has two options: to accept the court’s judgment and forgo a traditional tort suit for damages, or to reject the judgment and seek tort relief from the vaccine manufacturer.16 Fast, informal adjudication is made possible by the Act’s Vaccine Injury Table, which lists the vaccines covered under the Act; describes each vaccine’s compensable, —————— Lawsuits, and Legal Rights: The Battle over Litigation in American Society 146 10 11 See Hagan, 45 Food Drug Cosm. L. J. 477, 479 (1990). 12 See R. Merrill, Introduction to Epidemiology 65–68 (2010). 13 See 42 U.S. C. 14 See 15 See (g). 16 See 4 BRUESEWITZ v. WYETH LLC Opinion of the Court adverse side effects; and indicates how soon after vaccina tion those side effects should first manifest themselves.17 Claimants who show that a listed injury first manifested itself at the appropriate time are prima facie entitled to compensation.18 No showing of causation is necessary; the Secretary bears the burden of disproving causation.19 A claimant may also recover for unlisted side effects, and for listed side effects that occur at times other than those specified in the Table, but for those the claimant must prove causation.20 Unlike in tort suits, claimants under the Act are not required to show that the administered vaccine was defectively manufactured, labeled, or de signed. Successful claimants receive compensation for medical, rehabilitation, |
Justice Scalia | 2,011 | 9 | majority | Bruesewitz v. Wyeth LLC | https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/ | or de signed. Successful claimants receive compensation for medical, rehabilitation, counseling, special education, and voca tional training expenses; diminished earning capacity; pain and suffering; and $250,000 for vaccine-related deaths.21 Attorney’s fees are provided, not only for suc cessful cases, but even for unsuccessful claims that are not frivolous.22 These awards are paid out of a fund created by an excise tax on each vaccine dose. The quid pro quo for this, designed to stabilize the vaccine market, was the provision of significant tort liability protections for vaccine manufacturers. The Act requires claimants to seek relief through the compensation program before filing suit for more than $1,000.24 Manu facturers are generally immunized from liability for fail —————— 17 See (current Vaccine Injury Table). 18 See 42 U.S. C. 300aa–13(a)(1)(A). 19 See 20 See 21 See 22 See See 26 U.S. C. 9510. 24 See 42 U.S. C. Cite as: 562 U. S. (2011) 5 Opinion of the Court ure to warn if they have complied with all regulatory requirements (including but not limited to warning re quirements) and have given the warning either to the claimant or the claimant’s physician.25 They are immu nized from liability for punitive damages absent failure to comply with regulatory requirements, “fraud,” “intentional and wrongful withholding of information,” or other “crimi nal or illegal activity.”26 And most relevant to the present case, the Act expressly eliminates liability for a vaccine’s unavoidable, adverse side effects: “No vaccine manufacturer shall be liable in a civil ac tion for damages arising from a vaccine-related injury or death associated with the administration of a vac cine after October 1, if the injury or death re sulted from side effects that were unavoidable even though the vaccine was properly prepared and was ac companied by proper directions and warnings.”27 B The vaccine at issue here is a DTP vaccine manufac tured by Lederle Laboratories. It first received federal approval in 1948 and received supplemental approvals in 1953 and 1970. Respondent Wyeth purchased Lederle in 1994 and stopped manufacturing the vaccine in 1998. Hannah Bruesewitz was born on October 20, 1991. Her pediatrician administered doses of the DTP vaccine ac cording to the Center for Disease Control’s recommended childhood immunization schedule. Within 24 hours of her April 1992 vaccination, Hannah started to experience —————— 25 See (c). The immunity does not apply if the plain tiff establishes by clear and convincing evidence that the manufacturer was negligent, or was guilty of fraud, intentional and wrongful with holding of information, or other unlawful activity. See 22(b)(2), 300aa–(d)(2). 26 27 6 BRUESEWITZ v. WYETH |
Justice Scalia | 2,011 | 9 | majority | Bruesewitz v. Wyeth LLC | https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/ | activity. See 22(b)(2), 300aa–(d)(2). 26 27 6 BRUESEWITZ v. WYETH LLC Opinion of the Court seizures.28 She suffered over 100 seizures during the next month, and her doctors eventually diagnosed her with “residual seizure disorder” and “developmental delay.”29 Hannah, now a teenager, is still diagnosed with both conditions. In April 1995, Hannah’s parents, Russell and Robalee Bruesewitz, filed a vaccine injury petition in the United States Court of Federal Claims, alleging that Hannah suffered from on-Table residual seizure disorder and encephalopathy injuries.30 A Special Master denied their claims on various grounds, though they were awarded $126,800 in attorney’s fees and costs. The Bruesewitzes elected to reject the unfavorable judgment, and in October 2005 filed this lawsuit in Pennsylvania state court. Their complaint alleged (as relevant here) that defective design of Lederle’s DTP vaccine caused Hannah’s disabilities, and that Lederle was subject to strict liability, and liability for negligent design, under Pennsylvania common law.31 Wyeth removed the suit to the United States District Court for the Eastern District of Pennsylvania, which granted Wyeth summary judgment on the strict-liability and negligence design-defect claims, holding that the Pennsylvania law providing those causes of action was preempted by 42 U.S. C. 32 The United States Court of Appeals for the Third Circuit affirmed.33 We granted certiorari. 559 U. S. (2010). —————— 28 See 29 30 See 31 See The complaint also made claims based upon failure to warn and defective manufacture. These are no longer at issue. 32 See at 7–8. 33 Cite as: 562 U. S. (2011) 7 Opinion of the Court II A We set forth again the statutory text at issue: “No vaccine manufacturer shall be liable in a civil ac tion for damages arising from a vaccine-related injury or death associated with the administration of a vac cine after October 1, if the injury or death re sulted from side effects that were unavoidable even though the vaccine was properly prepared and was ac companied by proper directions and warnings.”34 The “even though” clause clarifies the word that precedes it. It delineates the preventative measures that a vaccine manufacturer must have taken for a side-effect to be con sidered “unavoidable” under the statute. Provided that there was proper manufacture and warning, any remain ing side effects, including those resulting from design defects, are deemed to have been unavoidable. State-law design-defect claims are therefore preempted. If a manufacturer could be held liable for failure to use a different design, the word “unavoidable” would do no work. A side effect of a vaccine could always have been avoidable by use of a |
Justice Scalia | 2,011 | 9 | majority | Bruesewitz v. Wyeth LLC | https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/ | vaccine could always have been avoidable by use of a differently designed vaccine not containing the harmful element. The language of the provision thus suggests that the design of the vaccine is a given, not subject to question in the tort action. What the statute establishes as a complete defense must be un avoidability (given safe manufacture and warning) with respect to the particular design. Which plainly implies that the design itself is not open to question.35 —————— 34 42U. S. C. 35 The dissent advocates for another possibility: “[A] side effect is ‘unavoidable’ where there is no feasible alternative design that would eliminate the side effect of the vaccine without compromising its cost and utility.” Post, at 15 (opinion of SOTOMAYOR, J.). The dissent makes no effort to ground that position in the text of 8 BRUESEWITZ v. WYETH LLC Opinion of the Court A further textual indication leads to the same conclu sion. Products-liability law establishes a classic and well known triumvirate of grounds for liability: defective manufacture, inadequate directions or warnings, and defective design.36 If all three were intended to be pre served, it would be strange to mention specifically only two, and leave the third to implication. It would have been much easier (and much more natural) to provide that manufacturers would be liable for “defective manufacture, defective directions or warning, and defective design.” It seems that the statute fails to mention design-defect liability “by deliberate choice, not inadvertence.” Barn Ex pressio unius, exclusio alterius. B The dissent’s principal textual argument is mistaken. We agree with its premise that “ ‘side effects that were unavoidable’ must refer to side effects caused by a vac cine’s design.”37 We do not comprehend, however, the second step of its reasoning, which is that the use of the conditional term “if” in the introductory phrase “if the injury or death resulted from side effects that were un avoidable” “plainly implies that some side effects stem ming from a vaccine’s design are ‘unavoidable,’ while —————— We doubt that Congress would introduce such an amorphous test by implication when it otherwise micromanages vaccine manufacturers. See infra, at 13–14. We have no idea how much more expensive an alternative design can be before it “compromis[es]” a vaccine’s cost or how much efficacy an alternative design can sacrifice to improve safety. Neither does the dissent. And neither will the judges who must rule on motions to dismiss, motions for summary judgment, and motions for judgment as a matter of law. Which means that the test would proba bly have no real-world effect. 36 W. |
Justice Scalia | 2,011 | 9 | majority | Bruesewitz v. Wyeth LLC | https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/ | test would proba bly have no real-world effect. 36 W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 695 ; Restatement (Third) of Torts (1999). 37 Post, at 3. Cite as: 562 U. S. (2011) 9 Opinion of the Court others are avoidable.”38 That is not so. The “if ” clause makes total sense whether the design to which “unavoid able” refers is (as the dissent believes) any feasible design (making the side effects of the design used for the vaccine at issue avoidable), or (as we believe) the particular design used for the vaccine at issue (making its side effects un avoidable). Under the latter view, the condition estab lished by the “if” clause is that the vaccine have been properly labeled and manufactured; and under the former, that it have been properly designed, labeled, and manufac tured. Neither view renders the “if ” clause a nullity. Which of the two variants must be preferred is addressed by our textual analysis, and is in no way determined by the “if ” clause. Petitioners’ and the dissent’s textual argument also rests upon the proposition that the word “unavoidable” in is a term of art that incorporates com ment k to Restatement (Second) of Torts (1963– 1964). The Restatement generally holds a manufacturer strictly liable for harm to person or property caused by “any product in a defective condition unreasonably dan gerous to the user.”40 Comment k exempts from this strict-liability rule “unavoidably unsafe products.” An unavoidably unsafe product is defined by a hodge-podge of criteria and a few examples, such as the Pasteur rabies vaccine and experimental pharmaceuticals. Despite this lack of clarity, petitioners seize upon one phrase in the comment k analysis, and assert that by a majority of courts had made this a sine qua non requirement for an “unavoidably unsafe product”: a case-specific showing that the product was “quite incapable of being made safer for —————— 38 See Brief for Petitioners 29. 40 Restatement p. 347. 10 BRUESEWITZ v. WYETH LLC Opinion of the Court [its] intended use.”41 We have no need to consider the finer points of comment k. Whatever consistent judicial gloss that comment may have been given in there is no reason to believe that was invoking it. The comment creates a special category of “unavoidably unsafe products,” while the statute refers to “side effects that were unavoidable.” That the latter uses the adjective “unavoidable” and the former the adverb “unavoidably” does not establish that Congress had comment k in mind. “Unavoidable” is hardly a rarely used |
Justice Scalia | 2,011 | 9 | majority | Bruesewitz v. Wyeth LLC | https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/ | comment k in mind. “Unavoidable” is hardly a rarely used word. Even the cases petitioners cite as putting a definitive gloss on comment k use the precise phrase “unavoidably unsafe product”;42 none attaches special significance to the term “unavoidable” standing alone. The textual problems with petitioners’ interpretation do —————— 41 Comment k, p. 353; Petitioners cite, inter alia, 828–830, 463–464 (1985); Belle Bonfils Memorial Blood 122 (Colo. 1983). Though it is not pertinent to our analysis, we point out that a large number of courts disagreed with that reading of comment k, and took it to say that manufacturers did not face strict liability for side effects of properly manufactured prescription drugs that were accompanied by adequate warnings. See, e.g., Brown v. Superior Court, 227 Cal. Rptr. 768, 772–775 (officially depublished), aff’d 44 Cal. 3d 1049, ; (Okla. 1982); 1303– 1304 ; 90–91 (CA2 1980) (applying N. Y. law); Wolfgruber v. Upjohn Co., 72 A.D. 2d 59, 61, 4 N. Y. S. 2d 95, 96 (1979); ; 42 See, e.g., 9 Kan. 279, 13 ; ; Belle Bonfils Memo rial Blood at 121–1; Cassisi v. Maytag Co., 6 So. 2d 1140, 1144, n. 4, 1146 (Fla. App. 1981); Racer v. Utterman, 629 S.W.2d 387, 3 (Mo. App. 1981). Cite as: 562 U. S. (2011) 11 Opinion of the Court not end there. The phrase “even though” in the clause “even though the vaccine was properly prepared and [labeled]” is meant to signal the unexpected: unavoidable side effects persist despite best manufacturing and label ing practices.43 But petitioners’ reading eliminates any opposition between the “even though” clause—called a concessive subordinate clause by grammarians—and the word “unavoidable.”44 Their reading makes preemption turn equally on unavoidability, proper preparation, and proper labeling. Thus, the dissent twice refers to the requirements of proper preparation and proper labeling as “two additional prerequisites” for preemption independent of unavoidability.45 The primary textual justification for the dissent’s position depends on that independence.46 But linking independent ideas is the job of a coordinating junction like “and,” not a subordinating junction like “even though.”47 —————— 43 The dissent’s assertion that we treat “even though” as a synonym for “because” misses the subtle distinction between “because” and “despite.” See post, at 17, n. 14. “Even though” is a close cousin of the latter. See Webster’s New International Dictionary 709, 2631 (2d ed. 1957). The statement “the car accident was unavoidable despite his quick reflexes” indicates that quick reflexes could not avoid the acci dent, and leaves open two unstated possibilities: (1) that other, un stated means of avoiding the accident besides quick |
Justice Scalia | 2,011 | 9 | majority | Bruesewitz v. Wyeth LLC | https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/ | other, un stated means of avoiding the accident besides quick reflexes existed, but came up short as well; or (2) that quick reflexes were the only possible way to avoid the accident. Our interpretation of 22(b)(1) explains why we think Congress meant the latter in this context. (Incidentally, the statement “the car accident was unavoidable because of his quick reflexes” makes no sense.) 44 See W. Follett, Modern American Usage: A Guide 61 (1966). 45 Post, at 9, 17. 46 Post, at 3–5. 47 The dissent responds that these “additional prerequisites” act “in a concessive, subordinating fashion,” post, at 17, n. 14 (internal quotation marks and brackets omitted). But that is no more true of the dissent’s conjunctive interpretation of the present text than it is of all provisions that set forth additional requirements—meaning that we could elimi nate “even though” from our English lexicon, its function being entirely 12 BRUESEWITZ v. WYETH LLC Opinion of the Court Petitioners and the dissent contend that the interpreta tion we propose would render part of superfluous: Congress could have more tersely and more clearly preempted design-defect claims by barring liability “if the vaccine was properly prepared and was accom panied by proper directions and warnings.” The interven ing passage (“the injury or death resulted from side effects that were unavoidable even though”) is unnecessary. True enough. But the rule against giving a portion of text an interpretation which renders it superfluous does not pre scribe that a passage which could have been more terse does not mean what it says. The rule applies only if ver bosity and prolixity can be eliminated by giving the offend ing passage, or the remainder of the text, a competing interpretation. That is not the case here.48 To be sure, petitioners’ and the dissent’s interpretation gives inde pendent meaning to the intervening passage (the supposed meaning of comment k); but it does so only at the expense of rendering the remainder of the provision superfluous. Since a vaccine is not “quite incapable of being made safer for [its] intended use” if manufacturing defects could have been eliminated or better warnings provided, the entire “even though” clause is a useless appendage.49 It would suffice to say “if the injury or death resulted from side effects that were unavoidable”—full stop. —————— performed by “and.” No, we think “even though” has a distinctive concessive, subordinating role to play. 48 Because the dissent has a superfluity problem of its own, its reli ance on is mis placed. See (adopting an interpretation that was “the only one that makes sense of |
Justice Scalia | 2,011 | 9 | majority | Bruesewitz v. Wyeth LLC | https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/ | interpretation that was “the only one that makes sense of each phrase” in the relevant statute). 49 That is true regardless of whether incorporates comment k. See Restatement Comment k, pp. 353, 354 (noting that “unavoidably unsafe products” are exempt from strict liability “with the qualification that they are properly prepared and marketed, and proper warning is given”). Cite as: 562 U. S. (2011) 13 Opinion of the Court III The structure of the NCVIA and of vaccine regulation in general reinforces what the text of sug gests. A vaccine’s license spells out the manufacturing method that must be followed and the directions and warnings that must accompany the product.50 Manufac turers ordinarily must obtain the Food and Drug Admini stration’s (FDA) approval before modifying either.51 De viations from the license thus provide objective evidence of manufacturing defects or inadequate warnings. Further objective evidence comes from the FDA’s regulations— more than 90 of them52—that pervasively regulate the manufacturing process, down to the requirements for plumbing and ventilation systems at each manufacturing facility.53 Material noncompliance with any one of them, or with any other FDA regulation, could cost the manufac turer its regulatory-compliance defense.54 Design defects, in contrast, do not merit a single men tion in the NCVIA or the FDA’s regulations. Indeed, the FDA has never even spelled out in regulations the criteria it uses to decide whether a vaccine is safe and effective for its intended use.55 And the decision is surely not an easy one. Drug manufacturers often could trade a little less efficacy for a little more safety, but the safest design is not always the best one. Striking the right balance between safety and efficacy is especially difficult with respect to vaccines, which affect public as well as individual health. Yet the Act, which in every other respect micromanages manufacturers, is silent on how to evaluate competing designs. Are manufacturers liable only for failing to em —————— 50 See 42 U.S. C. 62(a), ( j); (a), 314.105(b) (2010). 51 See 52 See §11.1 et seq., 600.10–600.15, 600.21–600.22, 820.1 et seq. 53 See §11.46, 211.48. 54 See 42 U.S. C. 22(b)(2). 55 Hutt, Merrill, & Grossman, Food and Drug Law, at 685, 891. 14 BRUESEWITZ v. WYETH LLC Opinion of the Court ploy an alternative design that the FDA has approved for distribution (an approval it takes years to obtain56)? Or does it suffice that a vaccine design has been approved in other countries? Or could there be liability for failure to use a design that exists only in a lab? Neither the Act nor the FDA |
Justice Scalia | 2,011 | 9 | majority | Bruesewitz v. Wyeth LLC | https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/ | only in a lab? Neither the Act nor the FDA regulations provide an answer, leaving the uni verse of alternative designs to be limited only by an ex pert’s imagination. Jurors, of course, often decide similar questions with little guidance, and we do not suggest that the absence of guidance alone suggests preemption. But the lack of guidance for design defects combined with the exten- sive guidance for the two grounds of liability specifically mentioned in the Act strongly suggests that design defects were not mentioned because they are not a basis for liability. The mandates contained in the Act lead to the same conclusion. Design-defect torts, broadly speaking, have two beneficial effects: (1) prompting the development of improved designs, and (2) providing compensation for inflicted injuries. The NCVIA provides other means for achieving both effects. We have already discussed the Act’s generous compensation scheme. And the Act pro vides many means of improving vaccine design. It directs the Secretary of Health and Human Services to promote “the development of childhood vaccines that result in fewer and less serious adverse reactions.”57 It establishes a National Vaccine Program, whose Director is “to achieve optimal prevention of human infectious diseases and to achieve optimal prevention against adverse reactions.”58 The Program is to set priorities for federal vaccine re search, and to coordinate federal vaccine safety and effi —————— 56 See Sing & William, Supplying Vaccines, at 66–67. 57 42 U.S. C. 27(a)(1). 58 1. Cite as: 562 U. S. (2011) 15 Opinion of the Court cacy testing.59 The Act requires vaccine manufacturers and health-care providers to report adverse side effects,60 and provides for monitoring of vaccine safety through a collaboration with eight managed-care organizations.61 And of course whenever the FDA concludes that a vaccine is unsafe, it may revoke the license.62 These provisions for federal agency improvement of vaccine design, and for federally prescribed compensation, once again suggest that ’s silence regard ing design-defect liability was not inadvertent. It instead reflects a sensible choice to leave complex epidemiological judgments about vaccine design to the FDA and the Na tional Vaccine Program rather than juries.63 And finally, the Act’s structural quid pro quo leads to the same conclusion: The vaccine manufacturers fund from their sales an informal, efficient compensation pro gram for vaccine injuries;64 in exchange they avoid costly tort litigation and the occasional disproportionate jury verdict.65 But design-defect allegations are the most speculative and difficult type of products liability claim to —————— 59 See 2(a)(1)–(3), 300aa–3. 60 See 25(b). 61 See NVAC 18–19. 62 See (b)(1)(vi) (2010). 63 The dissent quotes just |
Justice Scalia | 2,011 | 9 | majority | Bruesewitz v. Wyeth LLC | https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/ | 18–19. 62 See (b)(1)(vi) (2010). 63 The dissent quotes just part of this sentence, to make it appear that we believe complex epidemiological judgments ought to be assigned in that fashion. See post, at 26. We do not state our preference, but merely note that it is Congress’s expressed preference—and in order to preclude the argument that it is absurd to think Congress enacted such a thing, we assert that the choice is reasonable and express some of the reasons why. Leaving it to the jury may (or may not) be reasonable as well; we express no view. 64 See 42 U.S. C. Pub. L. 99–660, §3(a), 100 Stat. 3784. The dissent’s unsupported speculation that demand in the vaccine market is inelastic, see post, at 24, n. 22, sheds no light on whether Congress regarded the tax as a quid pro quo, most Members of Congress being neither professional economists nor law-and-economics scholars. 65 See 42 U.S. C. 11(a)(2), 300aa–22. 16 BRUESEWITZ v. WYETH LLC Opinion of the Court litigate. Taxing vaccine manufacturers’ product to fund the compensation program, while leaving their liability for design defect virtually unaltered, would hardly coax manufacturers back into the market. The dissent believes the Act’s mandates are irrelevant because they do not spur innovation in precisely the same way as state-law tort systems.66 That is a novel sugges tion. Although we previously have expressed doubt that Congress would quietly preempt product-liability claims without providing a federal substitute, see Medtronic, Inc. v. Lohr, we have never suggested we would be skeptical of preemp tion unless the congressional substitute operated like the tort system. We decline to adopt that stance today. The dissent’s belief that the FDA and the National Vaccine Program cannot alone spur adequate vaccine innovation is probably questionable, but surely beside the point. IV Since our interpretation of is the only interpretation supported by the text and structure of the NCVIA, even those of us who believe legislative history is a legitimate tool of statutory interpretation have no need to resort to it. In any case, the dissent’s contention that it would contradict our conclusion is mistaken. The dissent’s legislative history relies on the following syllogism: A House Committee Report states that “sets forth the principle contained in Comment k of Section 402A of the Restatement of Torts (Second);”67 in comment k was “commonly under stood” to require a case-specific showing that “no feasible alternative design” existed; Congress therefore must have intended to require that showing.68 The —————— 66 See post, at 21–24. 67 H.R. Rep. No. 99–908, pt. 1, p. 25 (hereinafter |
Justice Scalia | 2,011 | 9 | majority | Bruesewitz v. Wyeth LLC | https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/ | 67 H.R. Rep. No. 99–908, pt. 1, p. 25 (hereinafter Report). 68 Post, at 7–8. Cite as: 562 U. S. (2011) 17 Opinion of the Court syllogism ignores unhelpful statements in the Report and relies upon a term of art that did not exist in Immediately after the language quoted by the dissent, the Report notes the difficulty a jury would have in faithfully assessing whether a feasible alternative design exists when an innocent “young child, often badly injured or killed” is the plaintiff.69 Eliminating that concern is why the Report’s authors “strongly believ[e] that Com ment k is appropriate and necessary as the policy for civil actions seeking damages in tort.”70 The dissent’s interpre tation of and its version of “the principle in Comment K” adopted by the Report leave that concern unaddressed. The dissent buries another unfavorable piece of legisla tive history. Because the Report believes that 22(b)(1) should incorporate “the principle in Comment K” and because the Act provides a generous no-fault compen sation scheme, the Report counsels injured parties who cannot prove a manufacturing or labeling defect to “pursue recompense in the compensation system, not the tort system.”71 That counsel echoes our interpretation of Not to worry, the dissent retorts, a Committee Report by a later Congress “authoritative[ly]” vindicates its interpre tation.72 Post-enactment legislative history (a contradic tion in terms) is not a legitimate tool of statutory interpre tation. See 8 —————— 69 Report, at 26; see (“[E]ven if the defendant manufacturer may have made as safe a vaccine as anyone reasonably could expect, a court or jury undoubtedly will find it difficult to rule in favor of the ‘innocent’ manufacturer if the equally ‘innocent’ child has to bear the risk of loss with no other possibility of recompense”). 70 71 72 Post, at 12. This is a courageous adverb since we have previously held that the only authoritative source of statutory meaning is the text that has passed through the Article I process. See Exxon Mobil Corp. v. Allapattah Services, Inc., 18 BRUESEWITZ v. WYETH LLC Opinion of the Court (1999); United 281– 282 (1947). Real (pre-enactment) legislative history is persuasive to some because it is thought to shed light on what legislators understood an ambiguous statutory text to mean when they voted to enact it into law. See Exxon Mobil But post-enactment legislative history by defini tion “could have had no effect on the congressional vote,” District of It does not matter that did not take effect until the later Congress passed the excise tax that funds the compensation scheme,73 and that the supposedly |
Justice Scalia | 2,011 | 9 | majority | Bruesewitz v. Wyeth LLC | https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/ | tax that funds the compensation scheme,73 and that the supposedly dispositive Committee Report is attached to that funding legislation.74 Those who voted on the relevant statutory language were not necessarily the same persons who crafted the statements in the later Committee Report; or if they were did not necessarily have the same views at that earlier time; and no one voting at that earlier time could possibly have been informed by those later statements. Permitting the legislative history of subsequent funding legislation to alter the meaning of a statute would set a dangerous precedent. Many provisions of federal law depend on appropriations or include sunset provisions;75 they cannot be made the device for unenacted statutory revision. That brings us to the second flaw in the dissent’s syllo gism: Comment k did not have a “commonly understood meaning”76 in the mid-1980’s. Some courts thought it required a case-specific showing that a product was “un avoidably unsafe”; many others thought it categorically exempted certain types of products from strict liability.77 —————— 73 Pub. L. 99–960, §3(a), 74 H. R. Rep. No. 100–1, pt. 1, p. 701 (1987). 75 See, e.g., Pub. L. 104–208, 403(a), –655 to 3009–656, 3009–659 to 3009–662, as amended, note following 8 U.S. C. (2006 ed., Supp. III) (E-Verify program expires Sept. 30, 2012). 76 Post, at 8. 77 See n. post, at 7–8, n. 5. Cite as: 562 U. S. (2011) 19 Opinion of the Court When “all (or nearly all) of the” relevant judicial decisions have given a term or concept a consistent judicial gloss, we presume Congress intended the term or concept to have that meaning when it incorporated it into a later-enacted statute. Merck & Co. v. Reynolds, 559 U. S. (2010) (SCALIA, J., concurring in part and concurring in judg ment) (slip op., at 5). The consistent gloss represents the public understanding of the term. We cannot make the same assumption when widespread disagreement exists among the lower courts. We must make do with giving the term its most plausible meaning using the traditional tools of statutory interpretation. That is what we have done today. * * * For the foregoing reasons, we hold that the National Childhood Vaccine Injury Act preempts all design-defect claims against vaccine manufacturers brought by plain tiffs who seek compensation for injury or death caused by vaccine side effects. The judgment of the Court of Appeals is affirmed. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 562 U. S. (2011) 1 BREYER, J., concurring SUPREME COURT OF THE |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | Petitioners are aliens designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba. There are others detained there, also aliens, who are not parties to this suit. Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. 9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of (DTA), that provides certain procedures for review of the detainees' status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore 7 of the Military Commissions Act of (MCA), 28 U.S.C.A. 2241(e) operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court. Under the Authorization for Use of Military Force (AUMF), 2(a), note following 0 U.S.C. 141 (0 ed., Supp. V), the President is authorized "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." n five Members of the Court recognized that detention of individuals who fought against the United States in Afghanistan "for the *2241 duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the `necessary and appropriate force' Congress has authorized the President to use." (plurality opinion of O'Connor, J.), (THOMAS, J., dissenting). After the Deputy Secretary of Defense established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at Guantanamo were "enemy combatants," as the Department defines that term. See App. to Pet. for Cert. in No. 06-119, p. 81a. A later memorandum established procedures to implement the CSRTs. See App. to Pet. for Cert. in No. 06-1196, p. 147. The Government maintains these procedures were designed to comply with the due process requirements identified by the plurality in See Brief for Respondents nterpreting the AUMF, the Department of Defense ordered the detention of these petitioners, and they were transferred |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | ordered the detention of these petitioners, and they were transferred to Guantanamo. Some of these individuals were apprehended on the battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia. All are foreign nationals, but none is a citizen of a nation now at war with the United States. Each denies he is a member of the al Qaeda terrorist network that carried out the September 11 attacks or of the Taliban regime that provided sanctuary for al Qaeda. Each petitioner appeared before a separate CSRT; was determined to be an enemy combatant; and has sought a writ of habeas corpus in the United States District Court for the District of Columbia. The first actions commenced in February The District Court ordered the cases dismissed for lack of jurisdiction because the naval station is outside the sovereign territory of the United States. See The Court of Appeals for the District of Columbia Circuit affirmed. See Al We granted certiorari and reversed, holding that 28 U.S.C. 2241 extended statutory habeas corpus jurisdiction to Guantanamo. See The constitutional issue presented in the instant cases was not reached in After petitioners' cases were consolidated and entertained in two separate proceedings. n the first set of cases, Judge Richard J. Leon granted the Government's motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas corpus action. n the second set of cases Judge Joyce Hens Green reached the opposite conclusion, holding the detainees had rights under the Due Process Clause of the Fifth Amendment. See ; n re Guantanamo Detainee Cases, While appeals were pending from the District Court decisions, Congress passed the DTA. Subsection (e) of 0 of the DTA amended 28 U.S.C. 2241 to provide that "no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." Section 0 further provides that the Court of Appeals for the District of Columbia Circuit shall have "exclusive" jurisdiction to review decisions of the CSRTs. n the Court held this provision did *2242 not apply to cases (like petitioners') pending when the DTA was enacted. Congress responded by passing the MCA, U.S.C.A. 948a et seq. which again amended 2241. The text of the statutory amendment is discussed below. See Part infra. (Four Members of the majority noted that "[n]othing prevent[ed] the President from returning to Congress to seek the authority he believes necessary." (BREYER, J., concurring). |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | to seek the authority he believes necessary." (BREYER, J., concurring). The authority to which the concurring opinion referred was the authority to "create military commissions of the kind at issue" in the case. Nothing in that opinion can be construed as an invitation for Congress to suspend the writ.) Petitioners' cases were consolidated on appeal, and the parties filed supplemental briefs in light of our decision in The Court of Appeals' ruling, is the subject of our present review and today's decision. The Court of Appeals concluded that MCA 7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners' habeas corpus applications, ; that petitioners are not entitled to the privilege of the writ or the protections of the Suspension Clause, ; and, as a result, that it was unnecessary to consider whether Congress provided an adequate and effective substitute for habeas corpus in the DTA. We granted certiorari. 1 U.S. As a threshold matter, we must decide whether MCA 7 denies the federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment. We hold the statute does deny that jurisdiction, so that, if the statute is valid, petitioners' cases must be dismissed. As amended by the terms of the MCA, 28 U.S.C.A. 2241(e) now provides: "(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. "(2) Except as provided in [ 0(e)(2) and (e)(3) of the DTA] no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." Section 7(b) of the MCA provides the effective date for the amendment of 2241(e). t states: "The amendment made by [MCA 7(a)] shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | or conditions of detention of an alien detained by the United States since September 11," There is little doubt that the effective date provision applies to habeas corpus actions. Those actions, by definition, are cases "which relate to detention." See Black's Law Dictionary 728 (defining habeas corpus as "[a] writ employed *2 to bring a person before a court, most frequently to ensure that the party's imprisonment or detention is not illegal"). Petitioners argue, nevertheless, that MCA 7(b) is not a sufficiently clear statement of congressional intent to strip the federal courts of jurisdiction in pending cases. See Ex parte Yerger, We disagree. Their argument is as follows: Section 2241(e)(1) refers to "a writ of habeas corpus." The next paragraph, 2241(e)(2), refers to "any other action relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who [has] been properly detained as an enemy combatant or is awaiting such determination." There are two separate paragraphs, the argument continues, so there must be two distinct classes of cases. And the effective date subsection, MCA 7(b), it is said, refers only to the second class of cases, for it largely repeats the language of 2241(e)(2) by referring to "cases which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States." Petitioners' textual argument would have more force were it not for the phrase "other action" in 2241(e)(2). The phrase cannot be understood without referring back to the paragraph that precedes it, 2241(e)(1), which explicitly mentions the term "writ of habeas corpus." The structure of the two paragraphs implies that habeas actions are a type of action "relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained. as an enemy combatant." Pending habeas actions, then, are in the category of cases subject to the statute's jurisdictional bar. We acknowledge, moreover, the litigation history that prompted Congress to enact the MCA. n the Court found it unnecessary to address the petitioner's Suspension Clause arguments but noted the relevance of the clear statement rule in deciding whether Congress intended to reach pending habeas corpus cases. See (Congress should "not be presumed to have effected such denial [of habeas relief] absent an unmistakably clear statement to the contrary"). This interpretive rule facilitates a dialogue between Congress and the Court. Cf. ; H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 9-12 (W. Eskridge & P. Frickey eds.1994). |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | Application of Law 9-12 (W. Eskridge & P. Frickey eds.1994). f the Court invokes a clear statement rule to advise that certain statutory interpretations are favored in order to avoid constitutional difficulties, Congress can make an informed legislative choice either to amend the statute or to retain its existing text. f Congress amends, its intent must be respected even if a difficult constitutional question is presented. The usual presumption is that Members of Congress, in accord with their oath of office, considered the constitutional issue and determined the amended statute to be a lawful one; and the Judiciary, in light of that determination, proceeds to its own independent judgment on the constitutional question when required to do so in a proper case. f this ongoing dialogue between and among the branches of Government is to be respected, we cannot ignore that the MCA was a direct response to 's holding that the DTA's jurisdiction-stripping provision had no application to pending cases. The Court of Appeals was correct to take note of the legislative history when construing the statute, see n. 2 (citing relevant floor statements); *22 and we agree with its conclusion that the MCA deprives the federal courts of jurisdiction to entertain the habeas corpus actions now before us. n deciding the constitutional questions now presented we must determine whether petitioners are barred from seeking the writ or invoking the protections of the Suspension Clause either because of their status, i.e., petitioners' designation by the Executive Branch as enemy combatants, or their physical location, i.e., their presence at Guantanamo Bay. The Government contends that noncitizens designated as enemy combatants and detained in territory located outside our Nation's borders have no constitutional rights and no privilege of habeas corpus. Petitioners contend they do have cognizable constitutional rights and that Congress, in seeking to eliminate recourse to habeas corpus as a means to assert those rights, acted in violation of the Suspension Clause. We begin with a brief account of the history and origins of the writ. Our account proceeds from two propositions. First, protection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights. n the system conceived by the Framers the writ had a centrality that must inform proper interpretation of the Suspension Clause. Second, to the extent there were settled precedents or legal commentaries in 1789 regarding the extraterritorial scope of the writ or its application to enemy aliens, those authorities can be instructive for the present cases. A The Framers |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | can be instructive for the present cases. A The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system. Magna Carta decreed that no man would be imprisoned contrary to the law of the land. Art. 39, in Sources of Our Liberties 17 (R. Perry & J. Cooper eds. 199) ("No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land"). mportant as the principle was, the Barons at Runnymede prescribed no specific legal process to enforce it. Holdsworth tells us, however, that gradually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled. 9 W. Holdsworth, A History of English Law 112 (1926) (hereinafter Holdsworth). The development was painstaking, even by the centuries-long measures of English constitutional history. The writ was known and used in some form at least as early as the reign of Edward Yet at the outset it was used to protect not the rights of citizens but those of the King and his courts. The early courts were considered agents of the Crown, designed to assist the King in the exercise of his power. See J. Baker, An ntroduction to English Legal History 38-39 Thus the writ, while it would become part of the foundation of liberty for the King's subjects, was in its earliest use a mechanism for securing compliance with the King's laws. See Halliday & White, The Suspension Clause: English Text, mperial Contexts, and American *224 mplications, 94 Va. L.Rev. (forthcoming 8) (hereinafter Halliday & White) (manuscript, at 11, online at http://papers. ssrn.com/sol3 /papers.cfm?abstract_id=0822 (all nternet materials as visited June 9, 8, and available in Clerk of Court's case file) (noting that "conceptually the writ arose from a theory of power rather than a theory of liberty")). Over time it became clear that by issuing the writ of habeas corpus common-law courts sought to enforce the King's prerogative to inquire into the authority of a jailer to hold a prisoner. See M. Hale, Prerogatives of the King 229 ; 2 |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | See M. Hale, Prerogatives of the King 229 ; 2 J. Story, Commentaries on the Constitution of the United States 1341, p. 7 (3d ed. 188) (noting that the writ ran "into all parts of the king's dominions; for it is said, that the king is entitled, at all times, to have an account, why the liberty of any of his subjects is restrained"). Even so, from an early date it was understood that the King, too, was subject to the law. As the writers said of Magna Carta, "it means this, that the king is and shall be below the law." 1 F. Pollock & F. Maitland, History of English Law 173 (2d ed.1909); see also 2 Bracton On the Laws and Customs of England 33 ("The king must not be under man but under God and under the law, because law makes the king"). And, by the 1600's, the writ was deemed less an instrument of the King's power and more a restraint upon it. See Habeas Corpus for ConvictsConstitutional Right or Legislative Grace, 40 Calif. L.Rev. 336 (noting that by this point the writ was "the appropriate process for checking illegal imprisonment by public officials"). Still, the writ proved to be an imperfect check. Even when the importance of the writ was well understood in England, habeas relief often was denied by the courts or suspended by Parliament. Denial or suspension occurred in times of political unrest, to the anguish of the imprisoned and the outrage of those in sympathy with them. A notable example from this period was Darnel's Case, 3 How. St. Tr. 1 (K.B.17). The events giving rise to the case began when, in a display of the Stuart penchant for authoritarian excess, Charles demanded that Darnel and at least four others lend him money. Upon their refusal, they were imprisoned. The prisoners sought a writ of habeas corpus; and the King filed a return in the form of a warrant signed by the Attorney General. The court held this was a sufficient answer and justified the subjects' continued imprisonment. There was an immediate outcry of protest. The House of Commons promptly passed the Petition of Right, 3 Car. 1, ch. 1 (17), Statutes of the Realm 24 which condemned executive "imprison[ment] without any cause" shown, and declared that "no freeman in any such manner as is before mencioned [shall] be imprisoned or deteined." Yet a full legislative response was long delayed. The King soon began to abuse his authority again, and Parliament was dissolved. See W. Hall & R. Albion, A History of |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | dissolved. See W. Hall & R. Albion, A History of England and the British Empire 328 (hereinafter Hall & Albion). When Parliament reconvened in it sought to secure access to the writ by statute. The Act of 16 Car. 1, ch. Statutes of the Realm, at 1, expressly authorized use of the writ to test the legality of commitment by command or warrant of the King or the Privy Council. Civil strife and the nterregnum soon followed, and not until 1679 did Parliament try once more to secure the writ, this time through the Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, The Act, which later *2246 would be described by Blackstone as the "stable bulwark of our liberties," 1 W. Blackstone, Commentaries *137 (hereinafter Blackstone), established procedures for issuing the writ; and it was the model upon which the habeas statutes of the 13 American Colonies were based, see This history was known to the Framers. t no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers' inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. See ; cf. Youngstown Sheet & Tube ("[T]he Constitution diffuses power the better to secure liberty"); ("Liberty is always at stake when one or more of the branches seek to transgress the separation of powers"). Because the Constitution's separation-of-powers structure, like the substantive guarantees of the Fifth and Fourteenth Amendments, see Yick protects persons as well as citizens, foreign nationals who have the privilege of litigating in our courts can seek to enforce separation-of-powers principles, see, e.g., That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or nvasion the public Safety may require it." Art. 9, cl. 2; see Amar, Of Sovereignty and Federalism, The word "privilege" was used, perhaps, to avoid mentioning some rights to the exclusion of others. (ndeed, the only mention of the term "right" in the Constitution, as ratified, is in its clause giving Congress the power to protect the rights of authors and inventors. See Art. 8, cl. 8.) Surviving accounts of the ratification debates provide additional evidence that the Framers deemed the writ to be an essential mechanism in |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | Framers deemed the writ to be an essential mechanism in the separation-of-powers scheme. n a critical exchange with Patrick Henry at the Virginia ratifying convention Edmund Randolph referred to the Suspension Clause as an "exception" to the "power given to Congress to regulate courts." See 3 Debates in the Several State Conventions on the Adoption of the Federal Constitution 460- (J. Elliot 2d ed. 1876) (hereinafter Elliot's Debates). A resolution passed by the New York ratifying convention made clear its understanding that the Clause not only protects against arbitrary suspensions of the writ but also guarantees an affirmative right to judicial inquiry into the causes of detention. See Resolution of the New York Ratifying Convention (July 26, 1788), in 1 Elliot's Debates 328 (noting the convention's understanding "[t]hat every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof if unlawful; *2247 and that such inquiry or removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus"). Alexander Hamilton likewise explained that by providing the detainee a judicial forum to challenge detention, the writ preserves limited government. As he explained in The Federalist No. 84: "[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone are well worthy of recital: `To bereave a man of life or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.' And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls `the BULWARK of the British Constitution.'" C. iter ed., p. 12 (1961) (quoting 1 Blackstone *, 4 ). Post-1789 habeas developments in England, though not bearing upon the Framers' intent, do verify their foresight. Those later events would underscore the need for structural barriers against arbitrary suspensions of the writ. Just as the writ had been vulnerable to executive and parliamentary encroachment on both sides of the Atlantic before the American Revolution, despite the Habeas Corpus Act of 1679, the writ was suspended with frequency in England |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | of 1679, the writ was suspended with frequency in England during times of political unrest after 1789. Parliament suspended the writ for much of the period from 1792 to 1801, resulting in rampant arbitrary imprisonment. See Hall & Albion 0. Even as late as World War at least one prominent English jurist complained that the Defence of the Realm Act, 1914, 4 & Geo. ch. 29(1)(a), effectively had suspended the privilege of habeas corpus for any person suspected of "communicating with the enemy." See King v. Halliday, [1917] A.C. 260, 299 (Lord Shaw, dissenting); see generally A. Simpson, n the Highest Degree Odious: Detention Without Trial in Wartime Britain 6-7, 24-2 n our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. t ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the "delicate balance of governance" that is itself the surest safeguard of liberty. See (plurality opinion). The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account. See ; cf. n re Jackson, ("The important fact to be observed in regard to the mode of procedure upon this [habeas] writ is, that it is directed to, and served upon, not the person confined, but his jailer"). The separation-of-powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause. *2248 B The broad historical narrative of the writ and its function is central to our analysis, but we seek guidance as well from founding-era authorities addressing the specific question before us: whether foreign nationals, apprehended and detained in distant countries during a time of serious threats to our Nation's security, may assert the privilege of the writ and seek its protection. The Court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ. See But the analysis may begin with precedents as of 1789, for the Court has said that "at the absolute minimum" the Clause protects the writ as it existed when the Constitution was drafted and ratified. To support their arguments, the parties in these cases have examined historical sources to construct a view of the commonlaw writ as it existed in 1789as have amici whose expertise in legal history the Court has relied |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | amici whose expertise in legal history the Court has relied upon in the past. See Brief for Legal Historians as Amici Curiae; see also St. The Government argues the common-law writ ran only to those territories over which the Crown was sovereign. See Brief for Respondents 27. Petitioners argue that jurisdiction followed the King's officers. See Brief for Petitioner Boumediene et al. 11. Diligent search by all parties reveals no certain conclusions. n none of the cases cited do we find that a common-law court would or would not have granted, or refused to hear for lack of jurisdiction, a petition for a writ of habeas corpus brought by a prisoner deemed an enemy combatant, under a standard like the one the Department of Defense has used in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control. We know that at common law a petitioner's status as an alien was not a categorical bar to habeas corpus relief. See, e.g., Sommersett's Case, 20 How. St. Tr. 1, 80-82 (2) (ordering an African slave freed upon finding the custodian's return insufficient); see generally Khera v. Secretary of State for the Home Dept., [4] A.C. 74, 111 ("Habeas corpus protection is often expressed as limited to `British subjects.' s it really limited to British nationals? Suffice it to say that the case law has given an emphatic `no' to the question"). We know as well that common-law courts entertained habeas petitions brought by enemy aliens detained in England"entertained" at least in the sense that the courts held hearings to determine the threshold question of entitlement to the writ. See Case of Three Spanish 2 Black. W. 1324, 96 Eng. Rep. 77 (C.P. 9); King v. 2 Burr. 76, 97 Eng. Rep. 1 (K.B.1); Du Castro's Case, Fort. 19, 92 Eng. Rep. 816 (K.B.7). n and the Spanish ' case, the courts denied relief to the petitioners. Whether the holdings in these cases were jurisdictional or based upon the courts' ruling that the petitioners were detained lawfully as prisoners of war is unclear. See Spanish 96 Eng. Rep., at 776; 97 Eng. Rep., at 2. n Du Castro's Case, the court granted relief, but that case is not analogous to petitioners' because the prisoner there appears to have been detained in England. See Halliday & White 27, n. 72. To the extent these authorities suggest the common-law courts abstained altogether from matters involving prisoners of war, there was greater justification for doing so in the context of *2249 declared wars with other |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | so in the context of *2249 declared wars with other nation states. Judicial intervention might have complicated the military's ability to negotiate exchange of prisoners with the enemy, a wartime practice well known to the Framers. See Resolution of Mar. 30, 8, Journals of the Continental Congress 4-1789, p. 29 (W. Ford ed.1908) (directing General Washington not to exchange prisoners with the British unless the enemy agreed to exempt citizens from capture). We find the evidence as to the geographic scope of the writ at common law informative, but, again, not dispositive. Petitioners argue the site of their detention is analogous to two territories outside of England to which the writ did run: the so-called "exempt jurisdictions," like the Channel slands; and (in former times) ndia. There are critical differences between these places and Guantanamo, however. As the Court noted in -482, and nn. 11-12, common-law courts granted habeas corpus relief to prisoners detained in the exempt jurisdictions. But these areas, while not in theory part of the realm of England, were nonetheless under the Crown's control. See 2 H. Hallam, Constitutional History of England: From the Accession of Henry V to the Death of George pp. 2-3 (reprint 9). And there is some indication that these jurisdictions were considered sovereign territory. King v. 2 Burr. 834, 84, 8, 97 Eng. Rep. 87, 99 (K.B.1) (describing one of the exempt jurisdictions, Berwick-upon-Tweed, as under the "sovereign jurisdiction" and "subjection of the Crown of England"). Because the United States does not maintain formal sovereignty over Guantanamo Bay, see Part V, infra, the naval station there and the exempt jurisdictions discussed in the English authorities are not similarly situated. Petitioners and their amici further rely on cases in which British courts in ndia granted writs of habeas corpus to noncitizens detained in territory over which the Moghul Emperor retained formal sovereignty and control. See ; Brief for Legal Historians as Amici Curiae 12-13. The analogy to the present cases breaks down, however, because of the geographic location of the courts in the ndian example. The Supreme Court of Judicature (the British Court) sat in Calcutta; but no federal court sits at Guantanamo. The Supreme Court of Judicature was, moreover, a special court set up by Parliament to monitor certain conduct during the British Raj. See Regulating Act of 3, 13 Geo. 3, 13-14. That it had the power to issue the writ in nonsovereign territory does not prove that common-law courts sitting in England had the same power. f petitioners were to have the better of the argument on this point, we |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | have the better of the argument on this point, we would need some demonstration of a consistent practice of common-law courts sitting in England and entertaining petitions brought by alien prisoners detained abroad. We find little support for this conclusion. The Government argues, in turn, that Guantanamo is more closely analogous to Scotland and Hanover, territories that were not part of England but nonetheless controlled by the English monarch (in his separate capacities as King of Scotland and Elector of Hanover). See 2 Burr., 97 Eng. Rep., at 600. Lord Mansfield can be cited for the proposition that, at the time of the founding, English courts lacked the "power" to issue the writ to Scotland and Hanover, territories Lord Mansfield referred to as "foreign." But what matters for our purposes is why common-law courts lacked this power. *220 Given the English Crown's delicate and complicated relationships with Scotland and Hanover in the 1700's, we cannot disregard the possibility that the common-law courts' refusal to issue the writ to these places was motivated not by formal legal constructs but by what we would think of as prudential concerns. This appears to have been the case with regard to other British territories where the writ did not run. See 2 R. Chambers, A Course of Lectures on English Law 1767-3, p. 8 (T. Curley ed.6) (quoting the view of Lord Mansfield in that "[n]otwithstanding the power which the judges have, yet where they cannot judge of the cause, or give relief upon it, they would not think proper to interpose; and therefore in the case of imprisonments in Guernsey, Jersey, Minorca, or the plantations, the most usual way is to complain to the king in Council" (internal quotation marks omitted)). And after the Act of Union in 1707, through which the kingdoms of England and Scotland were merged politically, Queen Anne and her successors, in their new capacity as sovereign of Great Britain, ruled the entire island as one kingdom. Accordingly, by the time Lord Mansfield penned his opinion in in 1, Scotland was no longer a "foreign" country vis-á-vis Englandat least not in the sense in which Cuba is a foreign country vis-á-vis the United States. Scotland remained "foreign" in Lord Mansfield's day in at least one important respect, however. Even after the Act of Union, Scotland (like Hanover) continued to maintain its own laws and court system. See 1 Blackstone *98, *9. Under these circumstances prudential considerations would have weighed heavily when courts sitting in England received habeas petitions from Scotland or the Electorate. Common-law decisions withholding the writ from |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | Scotland or the Electorate. Common-law decisions withholding the writ from prisoners detained in these places easily could be explained as efforts to avoid either or both of two embarrassments: conflict with the judgments of another court of competent jurisdiction; or the practical inability, by reason of distance, of the English courts to enforce their judgments outside their territorial jurisdiction. Cf. L.Ed.2d (opinion of the Court) (recognizing that "`prudential concerns' such as comity and the orderly administration of criminal justice" affect the appropriate exercise of habeas jurisdiction). By the mid-19th century, British courts could issue the writ to Canada, notwithstanding the fact that Canadian courts also had the power to do so. See 9 Holdsworth 124 (citing Ex parte Anderson, 3 El. and El. 487 (1861)). This might be seen as evidence that the existence of a separate court system was no barrier to the running of the common-law writ. The Canada of the 1800's, however, was in many respects more analogous to the exempt jurisdictions or to reland, where the writ ran, than to Scotland or Hanover in the 1700's, where it did not. Unlike Scotland and Hanover, Canada followed English law. See B. Laskin, The British Tradition in Canadian Law 0-1 n the end a categorical or formal conception of sovereignty does not provide a comprehensive or altogether satisfactory explanation for the general understanding that prevailed when Lord Mansfield considered issuance of the writ outside England. n 1 the writ did not run to Scotland but did run to reland, even though, at that point, Scotland and England had merged under the rule of a single sovereign, whereas the Crowns of Great Britain and reland remained separate (at least in theory). See 97 Eng. Rep., 600; 1 Blackstone *0-1. But there was at least one major *221 difference between Scotland's and reland's relationship with England during this period that might explain why the writ ran to reland but not to Scotland. English law did not generally apply in Scotland (even after the Act of Union) but it did apply in reland. Blackstone put it as follows: "[A]s Scotland and England are now one and the same kingdom, and yet differ in their municipal laws; so England and reland are, on the other hand, distinct kingdoms, and yet in general agree in their laws." This distinction, and not formal notions of sovereignty, may well explain why the writ did not run to Scotland (and Hanover) but would run to reland. The prudential barriers that may have prevented the English courts from issuing the writ to Scotland and Hanover are not |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | from issuing the writ to Scotland and Hanover are not relevant here. We have no reason to believe an order from a federal court would be disobeyed at Guantanamo. No Cuban court has jurisdiction to hear these petitioners' claims, and no law other than the laws of the United States applies at the naval station. The modern-day relations between the United States and Guantanamo thus differ in important respects from the 18th-century relations between England and the kingdoms of Scotland and Hanover. This is reason enough for us to discount the relevance of the Government's analogy. Each side in the present matter argues that the very lack of a precedent on point supports its position. The Government points out there is no evidence that a court sitting in England granted habeas relief to an enemy alien detained abroad; petitioners respond there is no evidence that a court refused to do so for lack of jurisdiction. Both arguments are premised, however, upon the assumption that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before us. There are reasons to doubt both assumptions. Recent scholarship points to the inherent shortcomings in the historical record. See Halliday & White 14-1 (noting that most reports of 18th-century habeas proceedings were not printed). And given the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have confronted cases with close parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on point. Cf. (noting evidence concerning the circumstances surrounding the adoption of the Fourteenth Amendment, discussed in the parties' briefs and uncovered through the Court's own investigation, "convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive"); (arguing constitutional adjudication should not be based upon evidence that is "too episodic, too meager, to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution"). V Drawing from its position that at common law the writ ran only to territories over which the Crown was sovereign, the Government says the Suspension Clause affords petitioners no rights because the United States does not claim sovereignty over the place of detention. Guantanamo Bay is not formally part of the United States. See DTA 0(g), And under the terms of *222 the lease between the United States and Cuba, Cuba retains "ultimate |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | lease between the United States and Cuba, Cuba retains "ultimate sovereignty" over the territory while the United States exercises "complete jurisdiction and control." See Lease of Lands for Coaling and Naval Stations, Feb. U.S.-Cuba, Art. T.S. No. 418 (hereinafter Lease Agreement); Under the terms of the 1934 Treaty, however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the Lease Agreement or the United States abandons the base. See Treaty Defining with Cuba, May 29, 1934, U.S.-Cuba, Art. T.S. No. 866. The United States contends, nevertheless, that Guantanamo is not within its sovereign control. This was the Government's position well before the events of September 11, See, e.g., Brief for Petitioners in Sale v. Haitian Centers Council, nc., O.T., No. 92-3, p. 31 (arguing that Guantanamo is territory "outside the United States"). And in other contexts the Court has held that questions of sovereignty are for the political branches to decide. See Vermilya-Brown ; see also ; Even if this were a treaty interpretation case that did not involve a political question, the President's construction of the lease agreement would be entitled to great respect. See Sumitomo Shoji America, 2 S. Ct. 2, We therefore do not question the Government's position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory. As commentators have noted, "`[s]overeignty' is a term used in many senses and is much abused." See 1 Restatement (Third) of Foreign Law of the United States Comment b, p. 94 (6). When we have stated that sovereignty is a political question, we have referred not to sovereignty in the general, colloquial sense, meaning the exercise of dominion or power, see Webster's New nternational Dictionary 2406 (2d ed.1934) ("sovereignty," definition 3), but sovereignty in the narrow, legal sense of the term, meaning a claim of right, see 1 Restatement (Third) of Foreign Comment b, at 94 (noting that sovereignty "implies a state's lawful control over its territory generally to the exclusion of other states, authority to govern in that territory, and authority to apply law there"). ndeed, it is not altogether uncommon for a territory to be under the de jure sovereignty of one nation, while under the plenary control, or practical sovereignty, of another. This condition can occur when the territory is seized during war, as Guantanamo was during the Spanish-American |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | is seized during war, as Guantanamo was during the Spanish-American War. See, e.g., ; King v. Earl of Crewe ex parte Sekgome, [19] 2 K.B. 76, 603-604 (C.A.) (opinion of Williams, L.J.) (arguing that the Bechuanaland Protectorate in South Africa was "under His Majesty's dominion in the *223 sense of power and jurisdiction, but is not under his dominion in the sense of territorial dominion"). Accordingly, for purposes of our analysis, we accept the Government's position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory. See ; (KENNEDY, J., concurring in judgment). Were we to hold that the present cases turn on the political question doctrine, we would be required first to accept the Government's premise that de jure sovereignty is the touchstone of habeas corpus jurisdiction. This premise, however, is unfounded. For the reasons indicated above, the history of common-law habeas corpus provides scant support for this proposition; and, for the reasons indicated below, that position would be inconsistent with our precedents and contrary to fundamental separation-of-powers principles. A The Court has discussed the issue of the Constitution's extraterritorial application on many occasions. These decisions undermine the Government's argument that, at least as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends. The Framers foresaw that the United States would expand and acquire new territories. See American ns. Article V, 3, cl. 1, grants Congress the power to admit new States. Clause 2 of the same section grants Congress the "Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Save for a few notable (and notorious) exceptions, e.g., Dred throughout most of our history there was little need to explore the outer boundaries of the Constitution's geographic reach. When Congress exercised its power to create new territories, it guaranteed constitutional protections to the inhabitants by statute. See, e.g., An Act: to establish a Territorial Government for Utah, ; Rev. Stat. ("The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized Territories, and in every Territory hereafter organized as elsewhere within the United States"); see generally Burnett, Untied States: American Expansion and Territorial Deannexation, 72 U. Chi. L.Rev. 797, 82-827 n particular, there was no need to test |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | 797, 82-827 n particular, there was no need to test the limits of the Suspension Clause because, as early as 1789, Congress extended the writ to the Territories. See Act of Aug. 7, 1789, Fundamental questions regarding the Constitution's geographic scope first arose at the dawn of the 20th century when the Nation acquired noncontiguous Territories: Puerto Rico, Guam, and the Philippines ceded to the United States by Spain at the conclusion of the Spanish-American War and Hawaiiannexed by the United States in 1898. At this point Congress chose to discontinue its previous practice *224 of extending constitutional rights to the territories by statute. See, e.g., An Act Temporarily to provide for the administration of the affairs of civil government in the Philippine slands, and for other purposes, (noting that Rev. Stat. did not apply to the Philippines). n a series of opinions later known as the nsular Cases, the Court addressed whether the Constitution, by its own force, applies in any territory that is not a State. See De ; ; ; ; ; The Court held that the Constitution has independent force in these territories, a force not contingent upon acts of legislative grace. Yet it took note of the difficulties inherent in that position. Prior to their cession to the United States, the former Spanish colonies operated under a civil-law system, without experience in the various aspects of the Anglo-American legal tradition, for instance the use of grand and petit juries. At least with regard to the Philippines, a complete transformation of the prevailing legal culture would have been not only disruptive but also unnecessary, as the United States intended to grant independence to that Territory. See An Act To declare the purpose of the people of the United States as to the future political status of the people of the Philippine slands, and to provide a more autonomous government for those islands (Jones Act), (noting that "it was never the intention of the people of the United States in the incipiency of the War with Spain to make it a war of conquest or for territorial aggrandizement" and that "it is, as it has always been, the purpose of the people of the United States to withdraw their sovereignty over the Philippine slands and to recognize their independence as soon as a stable government can be established therein"). The Court thus was reluctant to risk the uncertainty and instability that could result from a rule that displaced altogether the existing legal systems in these newly acquired Territories. See ("t is obvious that in the annexation of |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | Territories. See ("t is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws and customs of the people, and from differences of soil, climate and production."). These considerations resulted in the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories. See ("Until Congress shall see fit to incorporate territory ceded by treaty into the United States, the territory is to be governed under the power existing in Congress to make laws for such territories and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation"); (White, J., concurring) ("[T]he determination of what particular provision of the Constitution is applicable, generally speaking, in all cases, involves an inquiry into the situation of the territory and its relations to the United States"). As the Court later made clear, "the real issue in the nsular Cases was not whether the Constitution extended to the Philippines or Porto Rico when we went there, but which of its provisions were applicable by way of limitation *22 upon the exercise of executive and legislative power in dealing with new conditions and requirements." t may well be that over time the ties between the United States and any of its unincorporated Territories strengthen in ways that are of constitutional significance. Cf. ("Whatever the validity of the [nsular Cases] in the particular historical context in which they were decided, those cases are clearly not authority for questioning the application of the Fourth Amendmentor any other provision of the Bill of Rightsto the Commonwealth of Puerto Rico in the 1970's"). But, as early as in the Court took for granted that even in unincorporated Territories the Government of the United States was bound to provide to noncitizen inhabitants "guaranties of certain fundamental personal rights declared in the Constitution." 28 U.S., at Yet noting the inherent practical difficulties of enforcing all constitutional provisions "always and everywhere," at the Court devised in the nsular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed. This century-old doctrine informs our analysis in the present matter. Practical considerations likewise influenced the Court's analysis a half-century later in The petitioners there, spouses of American servicemen, lived on American military bases in England and Japan. They were charged with crimes committed in those countries and tried before military courts, consistent with executive agreements the United States had entered into with the British and |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | the United States had entered into with the British and Japanese governments. and nn. 29-30, (plurality opinion). Because the petitioners were not themselves military personnel, they argued they were entitled to trial by jury. Justice Black, writing for the plurality, contrasted the cases before him with the nsular Cases, which involved territories "with wholly dissimilar traditions and institutions" that Congress intended to govern only "temporarily." Justice Frankfurter argued that the "specific circumstances of each particular case" are relevant in determining the geographic scope of the Constitution. (opinion concurring in result). And Justice Harlan, who had joined an opinion reaching the opposite result in the case in the previous Term, was most explicit in rejecting a "rigid and abstract rule" for determining where constitutional guarantees extend. (opinion concurring in result). He read the nsular Cases to teach that whether a constitutional provision has extraterritorial effect depends upon the "particular circumstances, the practical necessities, and the possible alternatives which Congress had before it" and, in particular, whether judicial enforcement of the provision would be "impracticable and anomalous." (applying the "impracticable and *22 anomalous" extraterritoriality test in the Fourth Amendment context). That the petitioners in were American citizens was a key factor in the case and was central to the plurality's conclusion that the Fifth and Sixth Amendments apply to American civilians tried outside the United States. But practical considerations, related not to the petitioners' citizenship but to the place of their confinement and trial, were relevant to each Member of the majority. And to Justices Harlan and Frankfurter (whose votes were necessary to the Court's disposition) these considerations were the decisive factors in the case. ndeed the majority splintered on this very point. The key disagreement between the plurality and the concurring Justices in was over the continued precedential value of the Court's previous opinion in n re which the Court understood as holding that under some circumstances Americans abroad have no right to indictment and trial by jury. The petitioner in was a sailor serving on an American merchant vessel in Japanese waters who was tried before an American consular tribunal for the murder of a fellow crewman. 479, The Court held that the petitioner, who was a British subject, had no rights under the Fifth and Sixth Amendments. at The petitioner's citizenship played no role in the disposition of the case, however. The Court assumed (consistent with the maritime custom of the time) that had all the rights of a similarly situated American citizen. (noting that was "under the protection and subject to the laws of the United States equally |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | and subject to the laws of the United States equally with the seaman who was native born"). The Justices in therefore properly understood as standing for the proposition that, at least in some circumstances, the jury provisions of the Fifth and Sixth Amendments have no application to American citizens tried by American authorities abroad. See -12, (plurality opinion) (describing as holding that "constitutional protections applied `only to citizens and others within the United States and not to residents or temporary sojourners abroad'" (quoting at )); 34 U.S., at (noting that the consular tribunals upheld in "w[ere] based on long-established custom and they were justified as the best possible means for securing justice for the few Americans present in [foreign] countries"); (Harlan, J., concurring in result) ("what and the nsular Cases hold is that the particular local setting, the practical necessities, and the possible alternatives are relevant to a question of judgment, namely, whether jury trial should be deemed a necessary condition of the exercise of Congress' power to provide for the trial of Americans overseas"). The plurality doubted that was rightly decided, precisely because it believed the opinion was insufficiently protective of the rights of American citizens. See -12, ; see also (Clark, J., dissenting) "). But Justices Harlan and Frankfurter, while willing to hold that the American citizen petitioners in the cases before them were entitled to the protections of Fifth and Sixth Amendments, were unwilling to overturn 34 U.S., at ; *227 (Harlan, J., concurring in result). nstead, the two concurring Justices distinguished from the cases before them, not on the basis of the citizenship of the petitioners, but on practical considerations that made jury trial a more feasible option for them than it was for the petitioner in f citizenship had been the only relevant factor in the case, it would have been necessary for the Court to overturn something Justices Harlan and Frankfurter were unwilling to do. See (noting that had not been overruled). Practical considerations weighed heavily as well in where the Court addressed whether habeas corpus jurisdiction extended to enemy aliens who had been convicted of violating the laws of war. The prisoners were detained at Landsberg Prison in Germany during the Allied Powers' postwar occupation. The Court stressed the difficulties of ordering the Government to produce the prisoners in a habeas corpus proceeding. t "would require allocation of shipping space, guarding personnel, billeting and rations" and would damage the prestige of military commanders at a sensitive time. n considering these factors the Court sought to balance the constraints of military occupation with constitutional |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | sought to balance the constraints of military occupation with constitutional necessities. ; see U.S., at (discussing the factors relevant to 's constitutional holding); U.S., at 486, (KENNEDY, J., concurring in judgment) (same). True, the Court in denied access to the writ, and it noted the prisoners "at no relevant time were within any territory over which the United States is sovereign, and [that] the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States." The Government seizes upon this language as proof positive that the Court adopted a formalistic, sovereignty-based test for determining the reach of the Suspension Clause. See Brief for Respondents 18-20. We reject this reading for three reasons. First, we do not accept the idea that the above-quoted passage from is the only authoritative language in the opinion and that all the rest is dicta. The Court's further determinations, based on practical considerations, were integral to Part of its opinion and came before the decision announced its holding. See 339 U.S., 1, Second, because the United States lacked both de jure sovereignty and plenary control over Landsberg Prison, see infra, at 228-229, it is far from clear that the Court used the term sovereignty only in the narrow technical sense and not to connote the degree of control the military asserted over the facility. See The Justices who decided would have understood sovereignty as a multifaceted concept. See Black's Law Dictionary 18 (4th ed.191) (defining "sovereignty" as "[t]he supreme, absolute, and uncontrollable power by which any independent state is governed"; "the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation"; and "[t]he power to do everything in a state without accountability"); Ballentine's Law Dictionary with Pronunciations 1216 (defining "sovereignty" as "[t]hat public authority which commands in civil society, and orders and directs what each citizen is *228 to perform to obtain the end of its institution"). n its principal brief in the Government advocated a bright-line test for determining the scope of the writ, similar to the one it advocates in these cases. See Brief for Petitioners in O.T.1949, No. 306, pp. 74-7. Yet the Court mentioned the concept of territorial sovereignty only twice in its opinion. See That the Court devoted a significant portion of Part to a discussion of practical barriers to the running of the writ suggests that the Court was not concerned exclusively with the formal legal status of Landsberg Prison but also with the objective degree of control |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | Landsberg Prison but also with the objective degree of control the United States asserted over it. Even if we assume the Court considered the United States' lack of formal legal sovereignty over Landsberg Prison as the decisive factor in that case, its holding is not inconsistent with a functional approach to questions of extraterritoriality. The formal legal status of a given territory affects, at least to some extent, the political branches' control over that territory. De jure sovereignty is a factor that bears upon which constitutional guarantees apply there. Third, if the Government's reading of were correct, the opinion would have marked not only a change in, but a complete repudiation of, the nsular Cases' (and later 's) functional approach to questions of extraterritoriality. We cannot accept the Government's view. Nothing in says that de jure sovereignty is or has ever been the only relevant consideration in determining the geographic reach of the Constitution or of habeas corpus. Were that the case, there would be considerable tension between on the one hand, and the nsular Cases and on the other. Our cases need not be read to conflict in this manner. A constricted reading of overlooks what we see as a common thread uniting the nsular Cases, and : the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism. B The Government's formal sovereignty-based test raises troubling separation-of-powers concerns as well. The political history of Guantanamo illustrates the deficiencies of this approach. The United States has maintained complete and uninterrupted control of the bay for over 0 years. At the close of the Spanish-American War, Spain ceded control over the entire island of Cuba to the United States and specifically "relinquishe[d] all claim[s] of sovereignty and title." See Treaty of Paris, Dec. 1898, U.S.-Spain, Art. T.S. No. 343. From the date the treaty with Spain was signed until the Cuban Republic was established on May 20, 1902, the United States governed the territory "in trust" for the benefit of the Cuban people. 4 L. Ed. 8 ; H. Thomas, Cuba or The Pursuit of Freedom 436, 460 And although it recognized, by entering into the Lease Agreement, that Cuba retained "ultimate sovereignty" over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the *229 political branches to govern without legal constraint. Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited" but are subject "to such restrictions as are expressed in the Constitution." Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court's recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain. C As we recognized in U.S., ; (KENNEDY, J., concurring in judgment), the outlines of a framework for determining the reach of the Suspension Clause are suggested by the factors the Court relied upon in n addition to the practical concerns discussed above, the Court found relevant that each petitioner: "(a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States." Based on this language from and the reasoning in our other extraterritoriality opinions, we conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ. Applying this framework, we note at the onset that the status of these detainees is a matter of dispute. The petitioners, like those in are not American citizens. But the petitioners in did not contest, it seems, the Court's assertion that they were "enemy alien[s]." n the instant cases, by contrast, the detainees deny they are enemy combatants. They have been afforded some process in CSRT proceedings to determine their status; but, unlike in there has been no trial by military commission for violations of the laws of war. The difference is not trivial. The records from the trials suggest that, well before the petitioners brought their case to this Court, there had been a rigorous adversarial process to test the legality of their *2260 detention. The petitioners were charged by a bill of particulars that made detailed factual allegations against them. See 14 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 8- (1949) (reprint 1997). To rebut the accusations, they were entitled to representation by counsel, allowed to introduce evidence on their own behalf, and permitted to cross-examine the prosecution's witnesses. See Memorandum by Command of Lt. Gen. Wedemeyer, Jan. 21, (establishing "Regulations Governing the Trial of War Criminals" in the China Theater), in Tr. of Record in O.T.1949, No. 306, pp. 34-40. n comparison the procedural protections afforded to the detainees in the CSRT hearings are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review. Although the detainee is assigned a "Personal Representative" to assist him during CSRT proceedings, the Secretary of the Navy's memorandum makes clear that person is not the detainee's lawyer or even his "advocate." See App. to Pet. for Cert. in No. 06-1196, 172. The Government's evidence is accorded a presumption of validity. The detainee is allowed to present "reasonably available" evidence, but his ability to rebut the Government's evidence against him is limited by the circumstances of his confinement and his lack of counsel at this stage. And although the detainee can seek review of his status determination in the Court of Appeals, that review process cannot cure all defects in the earlier proceedings. See Part V, infra. As to the second factor relevant to this analysis, the detainees here are similarly situated to the petitioners in that the sites of their apprehension |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | to the petitioners in that the sites of their apprehension and detention are technically outside the sovereign territory of the United States. As noted earlier, this is a factor that weighs against finding they have rights under the Suspension Clause. But there are critical differences between Landsberg Prison, circa and the United States Naval Station at Guantanamo Bay in 8. Unlike its present control over the naval station, the United States' control over the prison in Germany was neither absolute nor indefinite. Like all parts of occupied Germany, the prison was under the jurisdiction of the combined Allied Forces. See Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority with Respect to Germany, June 194, U.S.-U.S.S. R.-U. K.-Fr., 60 Stat. 19, T.A.S. No. 120. The United States was therefore answerable to its Allies for all activities occurring there. Cf. (military tribunal set up by Gen. Douglas MacArthur, acting as "the agent of the Allied Powers," was not a "tribunal of the United States"). The Allies had not planned a long-term occupation of Germany, nor did they intend to displace all German institutions even during the period of occupation. See Agreements Respecting Basic Principles for Merger of the Three Western German Zones of Occupation, and Other Matters, Apr. 8, 1949, U.S.-U. K.-Fr., Art. 1, T.A.S. No.6 (establishing a governing framework "[d]uring the period in which it is necessary that the occupation continue" and expressing the desire "that the German people shall enjoy self-government to the maximum possible degree consistent with such occupation"). The Court's holding in was thus consistent with the nsular Cases, where it had held there was no need to extend full constitutional protections to territories the United *2261 States did not intend to govern indefinitely. Guantanamo Bay, on the other hand, is no transient possession. n every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the United States. See ; (KENNEDY, J., concurring in judgment). As to the third factor, we recognize, as the Court did in that there are costs to holding the Suspension Clause applicable in a case of military detention abroad. Habeas corpus proceedings may require expenditure of funds by the Government and may divert the attention of military personnel from other pressing tasks. While we are sensitive to these concerns, we do not find them dispositive. Compliance with any judicial process requires some incremental expenditure of resources. Yet civilian courts and the Armed Forces have functioned along side each other at various points in our history. See, e.g., ; Ex parte The Government presents no credible |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | See, e.g., ; Ex parte The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees' claims. And in light of the plenary control the United States asserts over the base, none are apparent to us. The situation in was far different, given the historical context and nature of the military's mission in post-War Germany. When hostilities in the European Theater came to an end, the United States became responsible for an occupation zone encompassing over 7,000 square miles with a population of 18 million. See Letter from President Truman to Secretary of State Byrnes, (Nov. 28, 194), in 8 Documents on American Foreign 27 ; Pollock, A Territorial Pattern for the Military Occupation of Germany, 38 Am. Pol. Sci. Rev. 970, 97 (19). n addition to supervising massive reconstruction and aid efforts the American forces stationed in Germany faced potential security threats from a defeated enemy. n retrospect the post-War occupation may seem uneventful. But at the time was decided, the Court was right to be concerned about judicial interference with the military's efforts to contain "enemy elements, guerilla fighters, and `were-wolves.'" 339 U.S., 4, Similar threats are not apparent here; nor does the Government argue that they are. The United States Naval Station at Guantanamo Bay consists of 4 square miles of land and water. The base has been used, at various points, to house migrants and refugees temporarily. At present, however, other than the detainees themselves, the only long-term residents are American military personnel, their families, and a small number of workers. See History of Guantanamo Bay online at https://www.cnic. navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/ gtmohistgeneral. The detainees have been deemed enemies of the United States. At present, dangerous as they may be if released, they are contained in a secure prison facility located on an isolated and heavily fortified military base. There is no indication, furthermore, that adjudicating a habeas corpus petition would cause friction with the host government. No Cuban court has jurisdiction over American military personnel at Guantanamo or the enemy combatants detained there. While obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention *22 facility were located in an active theater of war, arguments that issuing the writ would be "impracticable or anomalous" would have more weight. See (Harlan, J., concurring in result). Under the facts presented here, however, there are few practical barriers to |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | facts presented here, however, there are few practical barriers to the running of the writ. To the extent barriers arise, habeas corpus procedures likely can be modified to address them. See Part V-B, infra. t is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding. We hold that Art. 9, cl. 2, of the Constitution has full effect at Guantanamo Bay. f the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. Cf. U.S., at ("[]ndefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ"). This Court may not impose a de facto suspension by abstaining from these controversies. See n. 16, )). The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention. V n light of this holding the question becomes whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus. The Government submits there has been compliance with the Suspension Clause because the DTA review process in the Court of Appeals, see DTA 0(e), provides an adequate substitute. Congress has granted that court jurisdiction to consider "(i) whether the status determination of the [CSRT] was consistent with the standards and procedures specified by the Secretary of Defense and (ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States." 0(e)(2)(C), The Court of Appeals, having decided that |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | United States." 0(e)(2)(C), The Court of Appeals, having decided that the writ does not run to the detainees in any event, found it unnecessary to consider whether an adequate substitute has been provided. n the ordinary course we would remand to the Court of Appeals to consider this question in the first instance. See t is well settled, however, that the Court's practice of declining to address issues left unresolved in earlier proceedings is not an inflexible rule. Departure from the rule is appropriate in "exceptional" circumstances. See Cooper ndustries, ; The gravity of the separation-of-powers issues raised by these cases and the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional. The parties before us have addressed the adequacy issue. While we would have found it informative to consider the reasoning of the Court of Appeals on this point, we must weigh that against the harms petitioners may endure from additional delay. And, given there are few precedents addressing what features an adequate substitute for habeas corpus must contain, in all likelihood a remand simply would delay ultimate resolution of the issue by this Court. We do have the benefit of the Court of Appeals' construction of key provisions of the DTA. When we granted certiorari in these cases, we noted "it would be of material assistance to consult any decision" in the parallel DTA review proceedings pending in the Court of Appeals, specifically any rulings in the matter of Although the Court of Appeals has yet to complete a DTA review proceeding, the three-judge panel in Bismullah has issued an interim order giving guidance as to what evidence can be made part of the record on review and what access the detainees can have to counsel and to classified information. See (C.A.D.C.) (Bismullah ), reh'g denied, (Bismullah ). n that matter the full court denied the Government's motion for rehearing en banc, see (C.A.D.C.8) (Bismullah ). The order denying rehearing was accompanied by five separate statements from members of the court, which offer differing views as to scope of the judicial review Congress intended these detainees to have. Under the circumstances we believe the costs of further delay substantially outweigh any benefits of remanding to the Court of Appeals to consider the issue it did not address in these cases. A Our case law does not contain extensive discussion of standards defining suspension of the writ or of circumstances under which suspension has occurred. This simply confirms the care Congress has taken throughout our Nation's |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | simply confirms the care Congress has taken throughout our Nation's history to preserve the writ and its function. ndeed, most of the major legislative enactments pertaining to habeas corpus have acted not to contract the writ's protection but to expand it or to hasten resolution of prisoners' claims. See, e.g., Habeas Corpus Act of ch. 28, 1, (current version codified at 28 U.S.C. 2241 (0 ed. and Supp. V) (extending the federal writ to state prisoners)); Cf. (interpreting the All Writs Act, 28 U.S.C. 161, to allow discovery in habeas corpus proceedings); -6, (interpreting the then-existing version of 2241 to allow petitioner to proceed with his habeas corpus action, even though he had not yet begun to serve his sentence). There are exceptions, of course. Title of the Antiterrorism and Effective Death *22 Penalty Act of (AEDPA), 6, contains certain gatekeeping provisions that restrict a prisoner's ability to bring new and repetitive claims in "second or successive" habeas corpus actions. We upheld these provisions against a Suspension Clause challenge in 6-6, The provisions at issue in however, did not constitute a substantial departure from common-law habeas procedures. The provisions, for the most part, codified the longstanding abuse-of-the-writ doctrine. at 6, ; see also AEDPA applies, moreover, to federal, postconviction review after criminal proceedings in state court have taken place. As of this point, cases discussing the implementation of that statute give little helpful instruction (save perhaps by contrast) for the instant cases, where no trial has been held. The two leading cases addressing habeas substitutes, and United likewise provide little guidance here. The statutes at issue were attempts to streamline habeas corpus relief, not to cut it back. The statute discussed in was 28 U.S.C. 22. t replaced traditional habeas corpus for federal prisoners (at least in the first instance) with a process that allowed the prisoner to file a motion with the sentencing court on the ground that his sentence was, inter alia, "`imposed in violation of the Constitution or laws of the United States.'" n. 1, The purpose and effect of the statute was not to restrict access to the writ but to make postconviction proceedings more efficient. t directed claims not to the court that had territorial jurisdiction over the place of the petitioner's confinement but to the sentencing court, a court already familiar with the facts of the case. As the Court explained "Section 22 was passed at the instance of the Judicial Conference to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. Nowhere in the history of |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | jurisdiction of the federal courts. Nowhere in the history of Section 22 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum." See also (noting that 22 provides a remedy in the sentencing court that is "exactly commensurate" with the pre-existing federal habeas corpus remedy). The statute in D.C.Code Ann. -1(g) applied to prisoners in custody under sentence of the Superior Court of the District of Columbia. Before enactment of the District of Columbia Court Reform and Criminal Procedure Act of 1970 (D.C. Court Reform Act), 84 Stat. those prisoners could file habeas petitions in the United States District Court for the District of Columbia. The Act, which was patterned on 22, substituted a new collateral process in the Superior Court for the pre-existing habeas corpus procedure in the District Court. See 430 U.S., at -378, But, again, the purpose and effect of the statute was to expedite consideration of the prisoner's claims, not to delay or frustrate it. See (noting that the purpose of the D.C. Court *226 Reform Act was to "alleviate" administrative burdens on the District Court). That the statutes in and were designed to strengthen, rather than dilute, the writ's protections was evident, furthermore, from this significant fact: Neither statute eliminated traditional habeas corpus relief. n both cases the statute at issue had a saving clause, providing that a writ of habeas corpus would be available if the alternative process proved inadequate or ineffective. ; The Court placed explicit reliance upon these provisions in upholding the statutes against constitutional challenges. See (noting that the provision "avoid[ed] any serious question about the constitutionality of the statute"); (noting that, because habeas remained available as a last resort, it was unnecessary to "reach constitutional questions"). Unlike in and here we confront statutes, the DTA and the MCA, that were intended to circumscribe habeas review. Congress' purpose is evident not only from the unequivocal nature of MCA 7's jurisdiction-stripping language, 28 U.S.C.A. 2241(e)(1) but also from a comparison of the DTA to the statutes at issue in and When interpreting a statute, we examine related provisions in other parts of the U.S.Code. See, e.g., West Virginia Univ. Hospitals, ; ; see generally W. Eskridge, P. Frickey, & E. Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 39 When Congress has intended to replace traditional habeas corpus with habeas-like substitutes, as was the |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | replace traditional habeas corpus with habeas-like substitutes, as was the case in and it has granted to the courts broad remedial powers to secure the historic office of the writ. n the 22 context, for example, Congress has granted to the reviewing court power to "determine the issues and make findings of fact and conclusions of law" with respect to whether "the judgment [of conviction] was rendered without jurisdiction, or the sentence imposed was not authorized by law or otherwise open to collateral attack." 28 U.S.C.A. 22(b) (Supp.8). The D.C. Court Reform Act, the statute upheld in contained a similar provision. -1(g), n contrast the DTA's jurisdictional grant is quite limited. The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the "standards and procedures specified by the Secretary of Defense" and whether those standards and procedures are lawful. DTA 0(e)(2)(C), f Congress had envisioned DTA review as coextensive with traditional habeas corpus, it would not have drafted the statute in this manner. nstead, it would have used language similar to what it used in the statutes at issue in and Cf. U.S. 16, )). Unlike in and moreover, there has *2266 been no effort to preserve habeas corpus review as an avenue of last resort. No saving clause exists in either the MCA or the DTA. And MCA 7 eliminates habeas review for these petitioners. The differences between the DTA and the habeas statute that would govern in MCA 7's absence, 28 U.S.C. 2241 (0 ed. and Supp. V), are likewise telling. n 2241 (0 ed.) Congress confirmed the authority of "any justice" or "circuit judge" to issue the writ. Cf. -661, (interpreting Title of AEDPA to not strip from this Court the power to entertain original habeas corpus petitions). That statute accommodates the necessity for factfinding that will arise in some cases by allowing the appellate judge or Justice to transfer the case to a district court of competent jurisdiction, whose institutional capacity for factfinding is superior to his or her own. See 28 U.S.C. 2241(b). By granting the Court of Appeals "exclusive" jurisdiction over petitioners' cases, see DTA 0(e)(2)(A), Congress has foreclosed that option. This choice indicates Congress intended the Court of Appeals to have a more limited role in enemy combatant status determinations than a district court has in habeas corpus proceedings. The DTA should be interpreted to accord some latitude to the Court of Appeals to fashion procedures necessary to make its review function a meaningful one, but, if congressional |
Subsets and Splits