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Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | make its review function a meaningful one, but, if congressional intent is to be respected, the procedures adopted cannot be as extensive or as protective of the rights of the detainees as they would be in a 2241 proceeding. Otherwise there would have been no, or very little, purpose for enacting the DTA. To the extent any doubt remains about Congress' intent, the legislative history confirms what the plain text strongly suggests: n passing the DTA Congress did not intend to create a process that differs from traditional habeas corpus process in name only. t intended to create a more limited procedure. See, e.g., 11 Cong. Rec. S14263 (statement of Sen. Graham) (noting that the DTA "extinguish[es] these habeas and other actions in order to effect a transfer of jurisdiction over these cases to the DC Circuit Court" and agreeing that the bill "create[s] in their place a very limited judicial review of certain military administrative decisions"); at S14268 (statement of Sen. Kyl) ("t is important to note that the limited judicial review authorized by paragraphs 2 and 3 of subsection (e) [of DTA 0] are not habeas-corpus review. t is a limited judicial review of its own nature"). t is against this background that we must interpret the DTA and assess its adequacy as a substitute for habeas corpus. The present cases thus test the limits of the Suspension Clause in ways that and did not. B We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus. We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to "the erroneous application or interpretation" of relevant law. St. ; R. Hurd, Treatise on the *2267 Right of Personal Liberty, and On the Writ of Habeas Corpus and the Practice Connected with t: With a View of the Law of Extradition of Fugitives 222 (2d ed. 1876) ("t cannot be denied where `a probable ground is shown that the party is imprisoned without just cause, and therefore, hath a right to be delivered,' for the writ then becomes a `writ of right, which may not be denied but ought to be granted to every man that is committed or detained in prison or otherwise restrained of his liberty'"). But see These are the easily identified attributes of any constitutionally adequate habeas corpus proceeding. But, depending on the circumstances, more may be required. ndeed, common-law habeas corpus was, above all, an adaptable remedy. ts precise application |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | corpus was, above all, an adaptable remedy. ts precise application and scope changed depending upon the circumstances. See 3 Blackstone *131 (describing habeas as "the great and efficacious writ, in all manner of illegal confinement"); see also ; 371 U.S. 6, t appears the common-law habeas court's role was most extensive in cases of pretrial and noncriminal detention, where there had been little or no previous judicial review of the cause for detention. Notably, the black-letter rule that prisoners could not controvert facts in the jailer's return was not followed (or at least not with consistency) in such cases. Hurd, ; Oakes, Legal History in the High CourtHabeas Corpus, Mich. L.Rev. 41, 47 (1966) ("[W]hen a prisoner applied for habeas corpus before indictment or trial, some courts examined the written depositions on which he had been arrested or committed, and others even heard oral testimony to determine whether the evidence was sufficient to justifying holding him for trial" (footnotes omitted)); Fallon & Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, Harv. L.Rev.2029, 22 ("[T]he early practice was not consistent: courts occasionally permitted factual inquiries when no other opportunity for judicial review existed"). There is evidence from 19th-century American sources indicating that, even in States that accorded strong res judicata effect to prior adjudications, habeas courts in this country routinely allowed prisoners to introduce exculpatory evidence that was either unknown or previously unavailable to the prisoner. See, e.g., Ex parte Pattison, 1 ; Ex parte Foster, Tex. Ct.App. 4 (1879) (construing the State's habeas statute to allow for the introduction of new evidence "where important testimony has been obtained, which, though not newly discovered, or which, though known to [the petitioner], it was not in his power to produce at the former hearing; [and] where the evidence was newly discovered"); ("f in custody on criminal process before indictment, the prisoner has an absolute right to demand that the original depositions be looked into to see whether any crime is in fact imputed to him, and the inquiry will by no means be confined to the return. *2268 Facts out of the return may be gone into to ascertain whether the committing magistrate may not have arrived at an illogical conclusion upon the evidence given before him"); see generally (hereinafter Church) (noting that habeas courts would "hear evidence anew if justice require it"). Justice McLean, on Circuit in 18, expressed his view that a habeas court should consider a prior judgment conclusive "where there was clearly jurisdiction and a full and fair hearing; but that it might not be |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | full and fair hearing; but that it might not be so considered when any of these requisites were wanting." Ex parte Robinson, (No. 11,93) (CC Ohio 18). To illustrate the circumstances in which the prior adjudication did not bind the habeas court, he gave the example of a case in which "[s]everal unimpeached witnesses" provided new evidence to exculpate the prisoner. The idea that the necessary scope of habeas review in part depends upon the rigor of any earlier proceedings accords with our test for procedural adequacy in the due process context. See 424 U.S. This principle has an established foundation in habeas corpus jurisprudence as well, as Chief Justice Marshall's opinion in Ex parte demonstrates. Like the petitioner in sought a writ of habeas corpus after being imprisoned pursuant to a judgment of a District of Columbia court. n holding that the judgment stood on "high ground," the Chief Justice emphasized the character of the court that rendered the original judgment, noting it was a "court of record, having general jurisdiction over criminal cases." n contrast to "inferior" tribunals of limited jurisdiction, ib courts of record had broad remedial powers, which gave the habeas court greater confidence in the judgment's validity. See generally Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L.Rev. 961, 982-983 Accordingly, where relief is sought from a sentence that resulted from the judgment of a court of record, as was the case in and indeed in most federal habeas cases, considerable deference is owed to the court that ordered confinement. See 3 U.S. 3, (noting that a federal habeas court should accept a state court's factual findings unless "a vital flaw be found in the process of ascertaining such facts in the State court"). Likewise in those cases the prisoner should exhaust adequate alternative remedies before filing for the writ in federal court. See Ex parte Royall, Both aspects of federal habeas corpus review are justified because it can be assumed that, in the usual course, a court of record provides defendants with a fair, adversary proceeding. n cases involving state convictions this framework also respects federalism; and in federal cases it has added justification because the prisoner already has had a chance to seek review of his conviction in a federal forum through a direct appeal. The present cases fall outside these categories, however; for here the detention is by executive order. *2269 Where a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | a court, the need for collateral review is most pressing. A criminal conviction in the usual course occurs after a judicial hearing before a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence. These dynamics are not inherent in executive detention orders or executive review procedures. n this context the need for habeas corpus is more urgent. The intended duration of the detention and the reasons for it bear upon the precise scope of the inquiry. Habeas corpus proceedings need not resemble a criminal trial, even when the detention is by executive order. But the writ must be effective. The habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive's power to detain. To determine the necessary scope of habeas corpus review, therefore, we must assess the CSRT process, the mechanism through which petitioners' designation as enemy combatants became final. Whether one characterizes the CSRT process as direct review of the Executive's battlefield determination that the detainee is an enemy combatantas the parties have and as we door as the first step in the collateral review of a battlefield determination makes no difference in a proper analysis of whether the procedures Congress put in place are an adequate substitute for habeas corpus. What matters is the sum total of procedural protections afforded to the detainee at all stages, direct and collateral. Petitioners identify what they see as myriad deficiencies in the CSRTs. The most relevant for our purposes are the constraints upon the detainee's ability to rebut the factual basis for the Government's assertion that he is an enemy combatant. As already noted, see Part at the CSRT stage the detainee has limited means to find or present evidence to challenge the Government's case against him. He does not have the assistance of counsel and may not be aware of the most critical allegations that the Government relied upon to order his detention. See App. to Pet. for Cert. in No. 06-1196, at 1, ¶ F(8) (noting that the detainee can access only the "unclassified portion of the Government nformation"). The detainee can confront witnesses that testify during the CSRT proceedings. at 1, ¶ g (8). But given that there are in effect no limits on the admission of hearsay evidencethe only requirement is that the tribunal deem the evidence "relevant and helpful," ib ¶ g (9)the detainee's opportunity to question witnesses is likely to be more theoretical than real. The Government defends the CSRT process, arguing that it was designed to conform to |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | CSRT process, arguing that it was designed to conform to the procedures suggested by the plurality in See U.S., at 38, Setting aside the fact that the relevant language in did not garner a majority of the Court, it does not control the matter at hand. None of the parties in argued there had been a suspension of the writ. Nor could they. The 2241 habeas corpus process remained in place, Accordingly, the plurality concentrated on whether the Executive had the authority to detain and, if so, what rights the detainee had under the Due Process Clause. True, there are places in the plurality opinion where it is difficult to tell where its extrapolation of 2241 ends and its analysis of the petitioner's Due Process rights begins. But the Court had no occasion to define the necessary scope of habeas review, for Suspension Clause purposes, in the context of enemy combatant detentions. The closest the plurality came to doing so was in discussing whether, in *2270 light of separation-of-powers concerns, 2241 should be construed to forbid the District Court from inquiring beyond the affidavit 's custodian provided in answer to the detainee's habeas petition. The plurality answered this question with an emphatic "no." (labeling this argument as "extreme"); Even if we were to assume that the CSRTs satisfy due process standards, it would not end our inquiry. Habeas corpus is a collateral process that exists, in Justice Holmes' words, to "cu[t] through all forms and g[o] to the very tissue of the structure. t comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell." 7 U.S. 309, Even when the procedures authorizing detention are structurally sound, the Suspension Clause remains applicable and the writ relevant. See 2 Chambers, Course of Lectures on English Law 1767-3, at 6 ("Liberty may be violated either by arbitrary imprisonment without law or the appearance of law, or by a lawful magistrate for an unlawful reason"). This is so, as and make clear, even where the prisoner is detained after a criminal trial conducted in full accordance with the protections of the Bill of Rights. Were this not the case, there would have been no reason for the Court to inquire into the adequacy of substitute habeas procedures in and That the prisoners were detained pursuant to the most rigorous proceedings imaginable, a full criminal trial, would have been enough to render any habeas substitute acceptable per se. Although we make no judgment as |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | substitute acceptable per se. Although we make no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal's findings of fact. This is a risk inherent in any process that, in the words of the former Chief Judge of the Court of Appeals, is "closed and accusatorial." See Bismullah And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore. For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government's evidence against the detainee. t also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. Federal habeas petitioners long have had the means to supplement the record on review, even in the postconviction habeas setting. See overruled in part by 112 S. Ct. 171, Here that opportunity is constitutionally required. Consistent with the historic function and province of the writ, habeas corpus review may be more circumscribed if the underlying detention proceedings are more thorough than they were here. n two habeas cases involving enemy aliens tried for war crimes, n re and Ex parte for example, this Court limited its review to determining whether the Executive had legal authority to try the petitioners by military commission. See ("[O]n application for habeas corpus we are not concerned with the guilt or innocence of the petitioners. We consider here only the lawful power of the commission to try the petitioner for the offense charged"); at 2, ("We are not here concerned with any question of the guilt or innocence of petitioners"). Military courts are not courts of record. See ; Church 13. And the procedures used to try General have been sharply criticized by Members of this Court. See 48 U.S., at 617, ; (Rutledge, J., dissenting). We need not revisit these cases, however. For on their own terms, the proceedings in and like those in had an adversarial structure that is lacking here. See at (noting that General was represented by six military lawyers and that "[t]hroughout the proceedings defense counsel demonstrated their professional skill |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | that "[t]hroughout the proceedings defense counsel demonstrated their professional skill and resourcefulness and their proper zeal for the defense with which they were charged"); at -24, ; Exec. Order No. 918, 7 Fed.Reg. 3 The extent of the showing required of the Government in these cases is a matter to be determined. We need not explore it further at this stage. We do hold that when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner's release. C We now consider whether the DTA allows the Court of Appeals to conduct a proceeding meeting these standards. "[W]e are obligated to construe the statute to avoid [constitutional] problems" if it is "`fairly possible'" to do so. St. 33 U.S., at ). There are limits to this principle, however. The canon of constitutional avoidance does not supplant traditional modes of statutory interpretation. See 43 U.S. 371, 38, 12 S. Ct. 716, We cannot ignore the text and purpose of a statute in order to save it. The DTA does not explicitly empower the Court of Appeals to order the applicant in a DTA review proceeding released should the court find that the standards and procedures used at his CSRT hearing were insufficient to justify detention. This is troubling. Yet, for present purposes, we can assume congressional silence permits a constitutionally required remedy. n that case it would be possible to hold that a remedy of release is impliedly provided for. The DTA might be read, furthermore, to allow the petitioners to assert most, if not all, of the legal claims they seek to advance, including their most basic claim: that the President has no authority under the AUMF to detain them indefinitely. (Whether the President has such authority turns on whether the AUMF *2272 authorizesand the Constitution permitsthe indefinite detention of "enemy combatants" as the Department of Defense defines that term. Thus a challenge to the President's authority to detain is, in essence, a challenge to the Department's definition of enemy combatant, a "standard" used by the CSRTs in petitioners' cases.) At oral argument, the Solicitor General urged us to adopt both these constructions, if doing so would allow MCA 7 to remain intact. See Tr. of Oral Arg. 37, 3. The absence of a release remedy and specific language allowing AUMF challenges are not the only constitutional infirmities from which the statute potentially suffers, however. |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | only constitutional infirmities from which the statute potentially suffers, however. The more difficult question is whether the DTA permits the Court of Appeals to make requisite findings of fact. The DTA enables petitioners to request "review" of their CSRT determination in the Court of Appeals, DTA 0(e)(2)(B)(i), ; but the "Scope of Review" provision confines the Court of Appeals' role to reviewing whether the CSRT followed the "standards and procedures" issued by the Department of Defense and assessing whether those "standards and procedures" are lawful. 0(e)(C), Among these standards is "the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence allowing a rebuttable presumption in favor of the Government's evidence." 0(e)(C)(i), Assuming the DTA can be construed to allow the Court of Appeals to review or correct the CSRT's factual determinations, as opposed to merely certifying that the tribunal applied the correct standard of proof, we see no way to construe the statute to allow what is also constitutionally required in this context: an opportunity for the detainee to present relevant exculpatory evidence that was not made part of the record in the earlier proceedings. On its face the statute allows the Court of Appeals to consider no evidence outside the CSRT record. n the parallel litigation, however, the Court of Appeals determined that the DTA allows it to order the production of all "`reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant,'" regardless of whether this evidence was put before the CSRT. See Bismullah 01 F.3d, at 180. The Government, see Pet. for Cert. pending in Gates v. Bismullah, No. 07-4 (hereinafter Bismullah Pet.), with support from five members of the Court of Appeals, see Bismullah 14 F.3d, at 1299 ; (same); (same), disagrees with this interpretation. For present purposes, however, we can assume that the Court of Appeals was correct that the DTA allows introduction and consideration of relevant exculpatory evidence that was "reasonably available" to the Government at the time of the CSRT but not made part of the record. Even so, the DTA review proceeding falls short of being a constitutionally adequate substitute, for the detainee still would have no opportunity to present evidence discovered after the CSRT proceedings concluded. Under the DTA the Court of Appeals has the power to review CSRT determinations by assessing the legality of standards and procedures. This implies the power to inquire into what happened at the CSRT hearing and, perhaps, to remedy certain deficiencies |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | at the CSRT hearing and, perhaps, to remedy certain deficiencies in that proceeding. But should the Court of Appeals determine that the CSRT followed appropriate and lawful standards and procedures, it will *2273 have reached the limits of its jurisdiction. There is no language in the DTA that can be construed to allow the Court of Appeals to admit and consider newly discovered evidence that could not have been made part of the CSRT record because it was unavailable to either the Government or the detainee when the CSRT made its findings. This evidence, however, may be critical to the detainee's argument that he is not an enemy combatant and there is no cause to detain him. This is not a remote hypothetical. One of the petitioners, Mohamed Nechla, requested at his CSRT hearing that the Government contact his employer. The petitioner claimed the employer would corroborate Nechla's contention he had no affiliation with al Qaeda. Although the CSRT determined this testimony would be relevant, it also found the witness was not reasonably available to testify at the time of the hearing. Petitioner's counsel, however, now represents the witness is available to be heard. See Brief for Boumediene Petitioners f a detainee can present reasonably available evidence demonstrating there is no basis for his continued detention, he must have the opportunity to present this evidence to a habeas corpus court. Even under the Court of Appeals' generous construction of the DTA, however, the evidence identified by Nechla would be inadmissible in a DTA review proceeding. The role of an Article court in the exercise of its habeas corpus function cannot be circumscribed in this manner. By foreclosing consideration of evidence not presented or reasonably available to the detainee at the CSRT proceedings, the DTA disadvantages the detainee by limiting the scope of collateral review to a record that may not be accurate or complete. n other contexts, e.g., in post-trial habeas cases where the prisoner already has had a full and fair opportunity to develop the factual predicate of his claims, similar limitations on the scope of habeas review may be appropriate. See 29 U.S. S. Ct. 1479, 146 L. Ed. 2d 43 (0) (noting that 224 "does not equate prisoners who exercise diligence in pursuing their claims with those who do not"). n this context, however, where the underlying detention proceedings lack the necessary adversarial character, the detainee cannot be held responsible for all deficiencies in the record. The Government does not make the alternative argument that the DTA allows for the introduction of previously unavailable exculpatory evidence on |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | allows for the introduction of previously unavailable exculpatory evidence on appeal. t does point out, however, that if a detainee obtains such evidence, he can request that the Deputy Secretary of Defense convene a new CSRT. See Supp. Brief for Respondents 4. Whatever the merits of this procedure, it is an insufficient replacement for the factual review these detainees are entitled to receive through habeas corpus. The Deputy Secretary's determination whether to initiate new proceedings is wholly a discretionary one. See Dept. of Defense, Office for the Administrative Review of the Detention of Enemy Combatants, nstruction 1.1, Procedure for Review of "New Evidence" Relating to Enemy Combatant (EC) Status ¶ (d) (nstruction 1.1) ("The decision to convene a CSRT to reconsider the basis of the detainee's [enemy combatant] status in light of `new evidence' is a matter vested in the unreviewable discretion of the [Deputy Secretary of Defense]"). And we see no way to construe the DTA to allow a detainee to challenge the Deputy Secretary's decision not to open a new CSRT pursuant to nstruction 1.1. Congress directed the Secretary of Defense to devise procedures for considering new evidence, see DTA 0(a)(3), but the detainee has no *2274 mechanism for ensuring that those procedures are followed. DTA 0(e)(2)(C), makes clear that the Court of Appeals' jurisdiction is "limited to consideration of whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense. and whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States." DTA 0(e)(2)(A), ib further narrows the Court of Appeals' jurisdiction to reviewing "any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant." The Deputy Secretary's determination whether to convene a new CSRT is not a "status determination of the Combatant Status Review Tribunal," much less a "final decision" of that body. We do not imply DTA review would be a constitutionally sufficient replacement for habeas corpus but for these limitations on the detainee's ability to present exculpatory evidence. For even if it were possible, as a textual matter, to read into the statute each of the necessary procedures we have identified, we could not overlook the cumulative effect of our doing so. To hold that the detainees at Guantanamo may, under the DTA, challenge the President's legal authority to detain them, contest the CSRT's findings of fact, supplement the record on review with exculpatory evidence, and request |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | supplement the record on review with exculpatory evidence, and request an order of release would come close to reinstating the 2241 habeas corpus process Congress sought to deny them. The language of the statute, read in light of Congress' reasons for enacting it, cannot bear this interpretation. Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas corpus. Although we do not hold that an adequate substitute must duplicate 2241 in all respects, it suffices that the Government has not established that the detainees' access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus. MCA 7 thus effects an unconstitutional suspension of the writ. n view of our holding we need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement. V A n light of our conclusion that there is no jurisdictional bar to the District Court's entertaining petitioners' claims the question remains whether there are prudential barriers to habeas corpus review under these circumstances. The Government argues petitioners must seek review of their CSRT determinations in the Court of Appeals before they can proceed with their habeas corpus actions in the District Court. As noted earlier, in other contexts and for prudential reasons this Court has required exhaustion of alternative remedies before a prisoner can seek federal habeas relief. Most of these cases were brought by prisoners in state custody, e.g., Ex parte Royall, and thus involved federalism concerns that are not relevant here. But we have extended this rule to require defendants in courts-martial to exhaust their military appeals before proceeding with a federal habeas corpus action. See U.S., 8, The real risks, the real threats, of terrorist attacks are constant and not likely soon to abate. The ways to disrupt our life and laws are so many and unforeseen *227 that the Court should not attempt even some general catalogue of crises that might occur. Certain principles are apparent, however. Practical considerations and exigent circumstances inform the definition and reach of the law's writs, including habeas corpus. The cases and our tradition reflect this precept. n cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. f and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time. Domestic exigencies, furthermore, might also impose such onerous burdens on the Government that here, too, the Judicial Branch would be required to devise sensible rules for staying habeas corpus proceedings until the Government can comply with its requirements in a responsible way. Cf. Ex parte ("f, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course"). Here, as is true with detainees apprehended abroad, a relevant consideration in determining the courts' role is whether there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power. The cases before us, however, do not involve detainees who have been held for a short period of time while awaiting their CSRT determinations. Were that the case, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. These qualifications no longer pertain here. n some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. And there has been no showing that the Executive faces such onerous burdens that it cannot respond to habeas corpus actions. To require these detainees to complete DTA review before proceeding with their habeas corpus actions would be to require additional months, if not years, of delay. The first DTA review applications were filed over a year ago, but no decisions on the merits have been issued. While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing. Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA 7, 28 U.S.C.A. 2241(e) Accordingly, both the DTA and the CSRT process remain intact. Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene *2276 the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee's status before a court entertains that detainee's habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant's habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status. B Although we hold that the DTA is not an adequate and effective substitute for habeas corpus, it does not follow that a habeas corpus court may disregard the dangers the detention in these cases was intended to prevent. and stand for the proposition that the Suspension Clause does not resist innovation in the field of habeas corpus. Certain accommodations can be made to reduce the burden habeas corpus proceedings will place on the military without impermissibly diluting the protections of the writ. n the DTA Congress sought to consolidate review of petitioners' claims in the Court of Appeals. Channeling future cases to one district court would no doubt reduce administrative burdens on the Government. This is a legitimate objective that might be advanced even without an amendment to 2241. f, in a future case, a detainee files a habeas petition in another judicial district in which a proper respondent can be served, see U.S. 426, 43-436, 19 L. Ed. 2d 13 the Government can move for change of venue to the court that will hear these petitioners' cases, the United States District Court for the District of Columbia. See 28 U.S.C. 1404(a); 4 U.S. 499, n. 1, 93 S. Ct. 11, 3 L. Ed. 2d 3 Another of Congress' reasons for vesting exclusive jurisdiction in the Court of Appeals, perhaps, was to avoid the widespread dissemination of classified information. The Government has raised similar concerns here and elsewhere. See Brief for Respondents -; Bismullah Pet. 30. We make no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise during the course of the detainees' habeas corpus proceedings. We recognize, however, that the Government has |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | habeas corpus proceedings. We recognize, however, that the Government has a legitimate interest in protecting sources and methods of intelligence gathering; and we expect that the District Court will use its discretion to accommodate this interest to the greatest extent possible. Cf. United 34 U.S. 1, 73 S. Ct. 28, These and the other remaining questions are within the expertise and competence of the District Court to address in the first instance. * * * n considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. See United 7 S. Ct. 216, 81 L. Ed. 2 Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation *2277 and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security. Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation's present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. t is from these principles that the judicial authority to consider petitions for habeas corpus relief derives. Our opinion does not undermine the Executive's powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek. Because our Nation's past military conflicts have been of limited duration, it has |
Justice Kennedy | 2,008 | 4 | majority | Boumediene v. Bush | https://www.courtlistener.com/opinion/145795/boumediene-v-bush/ | past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. f, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism. Cf. (BREYER, J., concurring) ("[J]udicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determinethrough democratic meanshow best to do so"). t bears repeating that our opinion does not address the content of the law that governs petitioners' detention. That is a matter yet to be determined. We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law. The determination by the Court of Appeals that the Suspension Clause and its protections are inapplicable to petitioners was in error. The judgment of the Court of Appeals is reversed. The cases are remanded to the Court of Appeals with instructions that it remand the cases to the District Court for proceedings consistent with this opinion. t is so ordered. |
Justice Kennedy | 2,000 | 4 | concurring | Florida v. JL | https://www.courtlistener.com/opinion/118352/florida-v-jl/ | On the record created at the suppression hearing, the Court's decision is correct. The Court says all that is necessary to resolve this case, and I join the opinion in all respects. It might be noted, however, that there are many indicia of reliability respecting anonymous tips that we have yet to explore in our cases. When a police officer testifies that a suspect aroused the officer's suspicion, and so justifies a stop and frisk, the courts can weigh the officer's credibility and admit evidence seized pursuant to the frisk even if no one, aside from the officer and defendant themselves, was present or observed the seizure. *275 An anonymous telephone tip without more is different, however; for even if the officer's testimony about receipt of the tip is found credible, there is a second layer of inquiry respecting the reliability of the informant that cannot be pursued. If the telephone call is truly anonymous, the informant has not placed his credibility at risk and can lie with impunity. The reviewing court cannot judge the credibility of the informant and the risk of fabrication becomes unacceptable. On this record, then, the Court is correct in holding that the telephone tip did not justify the arresting officer's immediate stop and frisk of respondent. There was testimony that an anonymous tip came in by a telephone call and nothing more. The record does not show whether some notation or other documentation of the call was made either by a voice recording or tracing the call to a telephone number. The prosecution recounted just the tip itself and the later verification of the presence of the three young men in the circumstances the Court describes. It seems appropriate to observe that a tip might be anonymous in some sense yet have certain other features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action. One such feature, as the Court recognizes, is that the tip predicts future conduct of the alleged criminal. There may be others. For example, if an unnamed caller with a voice which sounds the same each time tells police on two successive nights about criminal activity which in fact occurs each night, a similar call on the third night ought not be treated automatically like the tip in the case now before us. In the instance supposed, there would be a plausible argument that experience cures some of the uncertainty surrounding the anonymity, justifying a proportionate police response. In today's case, however, the State provides us |
Justice Kennedy | 2,000 | 4 | concurring | Florida v. JL | https://www.courtlistener.com/opinion/118352/florida-v-jl/ | police response. In today's case, however, the State provides us with no data about the reliability of anonymous tips. Nor do we know whether the dispatcher or arresting officer had any *276 objective reason to believe that this tip had some particular indicia of reliability. If an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip. An instance where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response may be when an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring. This too seems to be different from the tip in the present case. See United Instant caller identification is widely available to police, and, if anonymous tips are proving unreliable and distracting to police, squad cars can be sent within seconds to the location of the telephone used by the informant. Voice recording of telephone tips might, in appropriate cases, be used by police to locate the caller. It is unlawful to make false reports to the police, e. g., (16) (Supp. 2000); (1994), and the ability of the police to trace the identity of anonymous telephone informants may be a factor which lends reliability to what, years earlier, might have been considered unreliable anonymous tips. These matters, of course, must await discussion in other cases, where the issues are presented by the record. |
per_curiam | 1,976 | 200 | per_curiam | McCarthy v. Philadelphia Civil Serv. Comm'n | https://www.courtlistener.com/opinion/109399/mccarthy-v-philadelphia-civil-serv-commn/ | After 16 years of service, appellant's employment in the Philadelphia Fire Department was terminated because he moved his permanent residence from Philadelphia to New Jersey in contravention of a municipal regulation requiring employees of the city of Philadelphia to be residents of the city. He challenges the constitutionality of the regulation and the authorizing ordinances[1] as violative of his federally protected right of interstate travel. The regulation was sustained by the Commonwealth Court of Pennsylvania[2] and review was denied by the Pennsylvania Supreme Court.[3] His timely appeal is here pursuant to 28 U.S. C. 1257 (2). The Michigan Supreme Court held that Detroit's similar *646 requirement for police officers was not irrational and did not violate the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment.[4] We dismissed the appeal from that judgment because no substantial federal question was presented. Detroit Police Officers We have therefore held that this kind of ordinance is not irrational. ; see We have not, however, specifically addressed the contention made by appellant in this case that his constitutionally recognized right to travel interstate as defined in ; ; and Memorial is impaired. Each of those cases involved a statutory requirement of residence in the State for at least one year before becoming eligible either to vote, as in or to receive welfare benefits, as in and Memorial[5] Neither in those cases, nor in any others, have we questioned the validity of a condition placed upon municipal employment that a person be a resident at the time of his application.[6] In this case appellant claims a constitutional right to be employed by the city of Philadelphia *647 while he is living elsewhere.[7] There is no support in our cases for such a claim. We have previously differentiated between a requirement of continuing residency and a requirement of prior residency of a given duration. Thus in we stated: "The residence requirement and the one-year waiting-period requirement are distinct and independent prerequisites." And in Memorial quoting at 342 n. 13, the Court explained that and did not question " `the validity of appropriately defined and uniformly applied bona fide residence requirements.' " This case involves that kind of bona fide continuing-residence requirement. The judgment of the Commonwealth Court of Pennsylvania is therefore affirmed. THE CHIEF JUSTICE, MR. JUSTICE BRENNAN, and MR. JUSTICE BLACKMUN would note probable jurisdiction and set the case for argument. |
Justice Rehnquist | 1,998 | 19 | majority | Buchanan v. Angelone | https://www.courtlistener.com/opinion/118164/buchanan-v-angelone/ | This case calls on us to decide whether the Eighth Amendment requires that a capital jury be instructed on the concept of mitigating evidence generally, or on particular statutory mitigating factors. We hold it does not. *271 On the afternoon of September 15, 1987, Douglas Buchanan murdered his father, stepmother, and two younger brothers. Buchanan was convicted of the capital murder of more than one person as part of the same act or transaction by a jury in the Circuit Court of Amherst County, Virginia. See (7) A separate sentencing hearing was held, in which the prosecutor sought the death penalty on the basis of Virginia's aggravating factor that the crime was vile. See (1995). In his opening statement in this proceeding, the prosecutor told the jury that he would be asking for the death penalty based on vileness. He conceded that Buchanan had had a troubled childhood and informed the jury that it would have to balance the things in petitioner's favor against the crimes he had committed. App. 25-27. Defense counsel outlined the mitigating evidence he would present and told the jury that he was asking that petitioner not be executed based on that evidence. For two days, the jury heard evidence from seven defense witnesses and eight prosecution witnesses. Buchanan's witnesses recounted his mother's early death from breast cancer, his father's subsequent remarriage, and his parents' attempts to prevent him from seeing his maternal relatives. A psychiatrist also testified that Buchanan was under extreme emotional disturbance at the time of the crime, based largely on stress caused by the manner in which the family had dealt with and reacted to his mother's death. Two mental health experts testified for the prosecution. They agreed generally with the factual events of petitioner's life but not with their effect on his commission of the crimes. In closing argument, the prosecutor told the jury that "even if you find that there was that vileness you do not have to return the death sentence. I will not suggest that to you." While admitting the existence of mitigating evidence, and agreeing that the jury had to weigh that *272 evidence against petitioner's conduct, the prosecutor argued that the circumstances warranted the death penalty. -44, 57-58. Defense counsel also explained the concept of mitigation and noted that "practically any factor can be considered in mitigation." He discussed at length petitioner's lack of prior criminal activity, his extreme mental or emotional disturbance at the time of the offense, his significantly impaired capacity to appreciate the criminality of his conduct or to conform his conduct to |
Justice Rehnquist | 1,998 | 19 | majority | Buchanan v. Angelone | https://www.courtlistener.com/opinion/118164/buchanan-v-angelone/ | criminality of his conduct or to conform his conduct to the law's requirements, and his youth. Counsel argued that these four mitigating factors, recognized in the Virginia Code, mitigated Buchanan's offense. The Commonwealth and Buchanan agreed that the court should instruct the jury with Virginia's pattern capital sentencing instruction.[1] That instruction told the jury that before it could fix the penalty at death, the Commonwealth first must prove beyond a reasonable doubt that the conduct was vile. The instruction next stated that if the jury found that condition met, "then you may fix the punishment of the Defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment *273 of the Defendant at life imprisonment." The instruction then stated that if the jury did not find the condition met, the jury must impose a life sentence. This instruction was given without objection. Buchanan requested several additional jury instructions. He proposed four instructions on particular mitigating factorsno significant history of prior criminal activity; extreme mental or emotional disturbance; significantly impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the law's requirements; and his age. These four factors are listedas facts in mitigation of the offense in the Virginia Code.[2] Each of Buchanan's proposed instructions stated that if the jury found the factor to exist, "then that is a fact which mitigates against imposing the death penalty, and you shall consider that fact in deciding whether to impose a sentence of death or life imprisonment."[3] Buchanan also proposed an instruction stating that, "[i]n addition to the mitigating factors specified in other instructions, you shall consider the circumstances surrounding the offense, the history and background of [Buchanan,] and any other facts in mitigation of the offense." The court refused to give these instructions, relying on Virginia case law holding that it was not proper to *274 give instructions singling out certain mitigating factors to the sentencing jury. -40. The jury was instructed that once it reached a decision on its two options, imposing a life sentence or imposing the death penalty, the foreman should sign the corresponding verdict form. The death penalty verdict form stated that the jury had unanimously found petitioner's conduct to be vile and that "having considered the evidence in mitigation of the offense," it unanimously fixed his punishment at death. When the jury returned with a verdict for the death penalty, the court read the verdict form and polled each juror on his agreement with the verdict. The court, after |
Justice Rehnquist | 1,998 | 19 | majority | Buchanan v. Angelone | https://www.courtlistener.com/opinion/118164/buchanan-v-angelone/ | juror on his agreement with the verdict. The court, after a statutorily mandated sentencing hearing, see (1995), subsequently imposed the sentence fixed by the jury. On direct appeal, the Virginia Supreme Court reviewed Buchanan's sentence for proportionality, see110.2 and affirmed his conviction and death sentence. cert. denied sub nom. Petitioner then sought federal habeas relief. The District Court denied the petition. The Court of Appeals for the Fourth Circuit affirmed. That court recognized that the Eighth Amendment requires that a capital sentencing jury's discretion be "`guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty' " in order to eliminate arbitrariness and capriciousness. ). However, relying on our decision in and on its own precedent, the court concluded that the Eighth Amendment does not require States to adopt specific standards for instructing juries on mitigating 103 F.3d, It therefore held that by allowing the jury to consider all relevant mitigating evidence, Virginia's sentencing procedure satisfied the Eighth *275 Amendment requirement of individualized sentencing in capital cases. -348. We granted certiorari, and now affirm. Petitioner contends that the trial court violated his Eighth and Fourteenth Amendment rights to be free from arbitrary and capricious imposition of the death penalty when it failed to provide the jury with express guidance on the concept of mitigation, and to instruct the jury on particular statutorily defined mitigating factors. This lack of guidance, it is argued, renders his sentence constitutionally unacceptable. Petitioner initially recognizes, as he must, that our cases have distinguished between two different aspects of the capital sentencing process, the eligibility phase and the selection phase. In the eligibility phase, the jury narrows the class of defendants eligible for the death penalty, often through consideration of aggravating In the selection phase, the jury determines whether to impose a death sentence on an eligible defendant. Petitioner concedes that it is only the selection phase that is at stake in his case. He argues, however, that our decisions indicate that the jury at the selection phase must both have discretion to make an individualized determination and have that discretion limited and channeled. See, e. g., He further argues that the Eighth Amendment therefore requires the court to instruct the jury on its obligation and authority to consider mitigating evidence, and on particular mitigating factors deemed relevant by the State. No such rule has ever been adopted by this Court. While petitioner appropriately recognizes the distinction between the eligibility and selection phases, he fails to distinguish the differing constitutional treatment we have accorded those two |
Justice Rehnquist | 1,998 | 19 | majority | Buchanan v. Angelone | https://www.courtlistener.com/opinion/118164/buchanan-v-angelone/ | distinguish the differing constitutional treatment we have accorded those two aspects of capital sentencing. It is in regard to the eligibility phase that we have stressed the need for channeling and limiting the jury's discretion to ensure that the death *276 penalty is a proportionate punishment and therefore not arbitrary or capricious in its imposition. In contrast, in the selection phase, we have emphasized the need for a broad inquiry into all relevant mitigating evidence to allow an individualized determination. at -973; ; ; In the selection phase, our cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. ; ; However, the state may shape and structure the jury's consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence. ; ; Our consistent concern has been that restrictions on the jury's sentencing determination not preclude the jury from being able to give effect to mitigating evidence. Thus, in we held that the standard for determining whether jury instructions satisfy these principles was "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." ; see also But we have never gone further and held that the state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence. And indeed, our decisions suggest that complete jury discretion is constitutionally permissible. See ; *277 (rejecting the argument that a scheme permitting the jury to exercise "unbridled discretion" in determining whether to impose the death penalty after it has found the defendant eligible is unconstitutional, and noting that accepting that argument would require the Court to overrule ). The jury instruction here did not violate these constitutional principles. The instruction did not foreclose the jury's consideration of any mitigating evidence. By directing the jury to base its decision on "all the evidence," the instruction afforded jurors an opportunity to consider mitigating evidence. The instruction informed the jurors that if they found the aggravating factor proved beyond a reasonable doubt then they "may fix" the penalty at death, but directed that if they believed that all the evidence justified a lesser sentence then they "shall" impose a life sentence. The jury was thus allowed to impose a life sentence even if it found the aggravating factor proved. Moreover, in contrast to the Texas special issues scheme in question in the instructions here did not constrain the manner in which the jury |
Justice Rehnquist | 1,998 | 19 | majority | Buchanan v. Angelone | https://www.courtlistener.com/opinion/118164/buchanan-v-angelone/ | here did not constrain the manner in which the jury was able to give effect to mitigation.[4] *278 Even were we to entertain some doubt as to the clarity of the instructions, the entire context in which the instructions were given expressly informed the jury that it could consider mitigating evidence. In Boyde, we considered the validity of an instruction listing 11 factors that the jury was to consider in determining punishment, including a catchall factor allowing consideration of "`[a]ny other circumstance which extenuates the gravity of the crime.' " -374. We expressly noted that even were the instruction at all unclear, "the context of the proceedings would have led reasonable jurors to believe that evidence of petitioner's background and character could be considered in mitigation." We found it unlikely that reasonable jurors would believe that the court's instructions transformed four days of defense testimony on the defendant's background and character "`into a virtual charade.' " ). Similarly, here, there were two days of testimony relating to petitioner's family background and mental and emotional problems. It is not likely that the jury would disregard this extensive testimony in making its decision, particularly given the instruction to consider "all the evidence." Further buttressing this conclusion are the extensive arguments of both defense counsel and the prosecutor on the mitigating evidence and the effect it should be given in the sentencing determination. The parties in effect agreed that there was substantial mitigating evidence and that the jury had to *279 weigh that evidence against petitioner's conduct in making a discretionary decision on the appropriate penalty. In this context, "there is not a reasonable likelihood that the jurors in petitioner's case understood the challenged instructions to preclude consideration of relevant mitigating evidence offered by petitioner." Boyde, ; see also The absence of an instruction on the concept of mitigation and of instructions on particular statutorily defined mitigating factors did not violate the Eighth and Fourteenth Amendments to the United States Constitution. The judgment of the Court of Appeals is Affirmed. |
Justice Breyer | 1,997 | 2 | majority | Young v. Fordice | https://www.courtlistener.com/opinion/118099/young-v-fordice/ | The questio before us is whether 5 of the Votig Rights Act of 1965, as ameded, 42 U.S. C. 1973c ( 5), requires preclearace of certai chages that Mississippi made i its voter registratio procedureschages that Mississippi made i order to comply with the Natioal Voter Registratio Act of 1993. We hold that 5 does require preclearace. I A The Natioal Voter Registratio Act Cogress eacted the Natioal Voter Registratio Act of 1993 (NVRA), 42 U.S. C. 1973gg et seq., to take effect for like Mississippi o Jauary 1, 1995. The NVRA requires to provide simplified systems for registerig to vote i federal electios, i. e., electios for federal officials, such as the Presidet, cogressioal Represetatives, ad Uited Seators. The must provide a system for voter registratio by mail, 1973gg4, a system for voter registratio at various state offices (icludig those that provide "public assistace" ad those that provide services to people with disabilities), 1973gg5, ad, particularly importat, a system for voter registratio o a driver's licese applicatio, 1973gg3. The NVRA specifies *276 various details about how these systems must work, icludig, for example, the type of iformatio that ca require o a voter registratio form. 1973gg3(c)(2), 1973gg7(b). It also imposes requiremets about just whe, ad how, may remove people from the federal voter rolls. 1973gg6(a)(3), (4). The NVRA adds that it does ot "supersede, restrict or limit the applicatio of the Votig Rights Act of 1965," ad that it does ot "authoriz[e] or requir[e] coduct that is prohibited by the Votig Rights Act of 1965." 1973gg9(d). The Votig Rights Act Sectio 5 of the Votig Rights Act of 1965 (VRA), amog other thigs, prohibits a State with a specified history of votig discrimiatio, such as Mississippi, from "eact[ig] or seek[ig] to admiister ay practic[e], or procedure with respect to votig differet from that i force or effect o November 1, 1964," uless ad util the State obtais preclearace from the Uited Attorey Geeral (Attorey Geeral) or the Uited District Court for the District of Columbia. 1973c. Preclearace is, i effect, a determiatio that the chage "does ot have the purpose ad will ot have the effect of deyig or abridgig the right to vote o accout of race or color." I the laguage of 5 jurisprudece, this determiatio ivolves a determiatio that the chage is ot retrogressive. ; 28 CFR 51.54(a) B The case before us cocers three differet Mississippi votig registratio systems: The first system, which we shall call the "Old System," is that used by Mississippi before it tried to comply with the NVRA. The secod system, |
Justice Breyer | 1,997 | 2 | majority | Young v. Fordice | https://www.courtlistener.com/opinion/118099/young-v-fordice/ | it tried to comply with the NVRA. The secod system, the "Provisioal Pla," is a system aimed at NVRA compliace, which Mississippi tried to implemet for about six weeks betwee Jauary 1, 1995, ad February 10, 1995. The third *277 system, the "New System," is the system that Mississippi put ito place after February 10, 1995, i a further effort to comply with the NVRA. We shall briefly explai the relevat features of each system. The Old System. Before 1995, Mississippi admiistered a votig registratio system, which, like the systems of most provided for a sigle registratio that allowed the registrat to vote i both federal electios ad state electios (i. e., electios for state ad local offices). Uder Mississippi law, a citize could register to vote either by appearig persoally at a couty or muicipal clerk's office or at other locatios (such as pollig places) that the clerk or his deputy visited to register people to vote. Miss. Code A. 23-15-35, 23-15-37, 23-15-39(6) (1990). Mississippi citizes could also register by obtaiig a mail-i registratio form available at driver's licese agecies, public schools, ad public libraries, amog other places, ad mailig it back to the clerk. Miss. Code A. 23-15-47(2)(a) The law set forth various details, requirig, for example, that a mail-i applicatio cotai the ame ad address of the voter ad that it be attested to by a witess, State law also allowed couty registratio officials to purge voters from the rolls if they had ot voted i four years. Miss. Code A. 23-15-159 (1990). The Provisioal Pla. I late 1994, the Mississippi secretary of state, with the help of a NVRA implemetatio committee, prepared a series of voter registratio chages desiged to esure compliace with the NVRA. The ew voter registratio applicatio that was icorporated ito the driver's licese form, for example, did ot require that the registrat repeat his or her address, or did it require a attestig witess. The secretary of state provided iformatio ad istructios about those chages to voter registratio officials ad state agecy persoel throughout the *278 State. The secretary of state ad the implemetig committee assumedad recommededthat the Mississippi Legislature would chage state law isofar as that law might prevet a valid registratio uder the NVRA's provisios from coutig as a valid registratio for a state or local electio. Ad, o that assumptio, at least oe official i the secretary of state's office told state electio officials to place the ame of ay ew valid applicat uder the NVRA o a list that would permit him or her to vote i state, |
Justice Breyer | 1,997 | 2 | majority | Young v. Fordice | https://www.courtlistener.com/opinion/118099/young-v-fordice/ | that would permit him or her to vote i state, as well as i federal, electios. Usig this Provisioal Pla, at least some Mississippi officials registered as may as 4,000 voters betwee Jauary 1, 1995, ad February 10, 1995. O Jauary 25, however, the state legislature tabled a bill that would have made NVRA registratios valid for all electios i Mississippi (by, for example, allowig applicats at driver's licese ad other agecies to register o the spot, without havig to mail i the applicatio themselves, App. 86, by elimiatig the attestig witess sigature o the mail-i applicatio, compare with Miss. Code A. 23-15-47(3) ad by elimiatig the optioal 4-year purge of ovotig registrats, replacig it with other methods for maitaiig upto-date voter rolls, App. 87-92, 103). Because of the legislature's failure to chage the Old System's requiremets for state electio registratio, the state attorey geeral cocluded that Provisioal Pla registratios that did ot meet Old System requiremets would ot work, uder state law, as registratio for state electios. State officials otified voter registratio officials throughout the State; ad they, i tur, were asked to help otify the 4,000 registrats that they were ot registered to vote i state or local electios. The New System. O February 10, 1995, Mississippi bega to use what we shall call the New System. That system cosists of the chages that its Provisioal Pla set forthbut as applied oly to registratio for federal electios. Mississippi maitais the Old System as the oly *279 method for registratio for state electios, ad as oe set of methods to register for federal electios. See App. to Juris. Statemet 21a. All other we are told, have modified their voter registratio rules so that NVRA registratio registers voters for both federal ad state electios. Brief for Uited as Amicus Curiae 4. C This case arises out of efforts by Mississippi to preclear, uder 5 of the VRA, chages that it made to comply with the NVRA. I December 1994, Mississippi submitted to the Uited Attorey Geeral a list of NVRAimplemetig chages that it the iteded to make. That submissio essetially described what we have called the Provisioal Pla. The submissio cotaied umerous admiistrative chages described i two booklets called The Natioal Voter Registratio Act, App. 26-43, ad the Mississippi Agecy Voter Registratio Procedures Maual, It also icluded the proposed state legislatio ecessary to make the Provisioal Pla work for state electios as well. Mississippi requested preclearace. O February 1, 1995, the Departmet of Justice wrote to Mississippi that the Attorey Geeral did "ot iterpose ay objectio to the specified chages" |
Justice Breyer | 1,997 | 2 | majority | Young v. Fordice | https://www.courtlistener.com/opinion/118099/young-v-fordice/ | Geeral did "ot iterpose ay objectio to the specified chages" thereby preclearig Mississippi's submitted chages. App. to Juris. Statemet 17a. As we poited out above, however, o Jauary 25, about oe week before the Attorey Geeral precleared the proposed chages, the state legislature had tabled the proposed legislatio eeded to make those chages effective for state electios. O February 10, 10 days after the Departmet precleared the proposed chages, Mississippi officials wrote to voter registratio officials aroud the State, tellig them that it "appears ulikely that the Legislature will" revive the tabled bill; that the Provisioal Pla's registratio would therefore ot work for state electios; that they should *280 writeor help the secretary of state writeto tell those who had registered uder that system that they were ot registered to vote i state electios; that they should make certai future registrats uderstad that they would eed to register separately to be eligible to vote i state, as well as federal, electios; ad that they should develop a system for distiguishig betwee NVRA ad other voters. at 20a23a. O February 16, about two weeks after the Departmet of Justice set its preclearace letter, the Departmet wrote aother letter to Mississippi, which made clear that the Departmet did ot believe its earlier preclearace had precleared what it ow saw as a ew pla. The Departmet asked the State to submit what it called this ew "dual registratio ad voter purge system" for preclearace. at 24a. The Departmet added: "I this regard, we ote that while, o February 1, 1995, the Attorey Geeral grated Sectio 5 preclearace to procedures istituted by the state to implemet the NVRA, that submissio did ot seek preclearace for a dual registratio ad purge system ad, ideed, we uderstad that the decisio to istitute such a system was ot made util after February 1." at 24a25a. Mississippi, perhaps believig that the February 1 preclearace sufficed, made o further preclearace submissios. D O April 20, 1995, four private citizes (appellats) brought this lawsuit before a three-judge District Court. They claimed that Mississippi ad its officials had implemeted chages i its registratio system without preclearace i violatio of 5. The Uited which is a amicus curiae here, brought a similar lawsuit, ad the two actios were cosolidated. The three-judge District Court grated Mississippi's motio for summary judgmet. It cosidered the plaitiffs' *281 basic claim, amely, that the differeces betwee the Provisioal Pla ad the New System amouted to a chage i the admiistratio of Mississippi's votig registratio practice, which chage had ot bee precleared. The court rejected this argumet o |
Justice Breyer | 1,997 | 2 | majority | Young v. Fordice | https://www.courtlistener.com/opinion/118099/young-v-fordice/ | had ot bee precleared. The court rejected this argumet o the groud that the Provisioal Pla was a misapplicatio of state law, ever ratified by the State. Sice the differeces betwee the New System ad the Provisioal Pla were attributable to the State's attempt to correct this misapplicatio of state law, the court held, those differeces were ot chages subject to preclearace. The court also cosidered a differet questio, amely, whether the New System differed from the Old System; ad whether Mississippi had precleared all the chages that the New System made i the Old. The court held that the Departmet had (o February 1) precleared the admiistrative chages eeded to implemet the NVRA. The court also held that Mississippi did ot eed to preclear its failure to pass a law that would have permitted NVRA registratio to cout for state, as well as for federal, electios, as the distictio betwee state ad federal electios was due to the NVRA's ow provisios, ot to the State's chages i votig practices. The private plaitiffs appealed, ad we oted probable jurisdictio. We ow reverse. II Sectio 5 of the VRA requires Mississippi to preclear "ay. practic[e] or procedure with respect to votig differet from that i force or effect o November 1, 1964." 42 U.S. C. 1973c. The statute's date of November 1, 1964, ofte, as here, is ot directly relevat, for differeces oce precleared ormally eed ot be cleared agai. They become part of the baselie stadard for purposes of determiig whether a State has "eact[ed]" or is "seek[ig] to admiister" a "practice or procedure" that is "differet" eough itself to require preclearace. ("To determie whether there have bee chages with respect to votig, we must compare the challeged practices with those i existece before they were adopted. Abset relevat iterveig chages, the Act requires us to use practices i existece o November 1, 1964, as our stadard of compariso"). Regardless, oe of the parties asks us to look further back i time tha 1994, whe the Old System was last i effect. The appellats ask us to cosider whether Mississippi's New System amouts to a forbidde effort to implemet uprecleared chages either (a) because the New System is "differet from" the post-1994 Provisioal Pla or (b) because it is "differet from" the 1994 Old System. We shall cosider each of these claims i tur. A First, the appellats ad the Govermet argue that the Provisioal Pla, because it was precleared by the Attorey Geeral, became part of the baselie agaist which to judge whether a future chage must be precleared. |
Justice Breyer | 1,997 | 2 | majority | Young v. Fordice | https://www.courtlistener.com/opinion/118099/young-v-fordice/ | which to judge whether a future chage must be precleared. They add that the New System differs sigificatly from the Provisioal Pla, particularly i its effect o registratio for state electios. They coclude that Mississippi had to preclear the New System isofar as it differed from the Provisioal Pla. The District Court rejected this argumet o the groud that the Provisioal Pla practices ad procedures ever became part of Mississippi's votig-related practices or procedures, but istead simply amouted to a temporary misapplicatio of state law. We, too, believe that the Provisioal Pla, i the statute's words, was ever "i force or effect." 42 U.S. C. 1973c. The District Court rested its coclusio upo the fact that Mississippi did ot chage its state law so as to make the Provisioal Pla's "uitary" registratio system lawful ad that either the Goveror or the legislature or the state attorey geeral ratified the Provisioal Pla. The appellats *283 argue that the simple fact that a votig practice is ulawful uder state law does ot show, etirely by itself, that the practice was ever "i force or effect." We agree. A State, after all, might maitai i effect for may years a pla that techically, or i oe respect or aother, violated some provisio of state law. Cf. ; City of But that is ot the situatio here. I this case, those seekig to admiister the Provisioal Pla did ot ited to admiister a ulawful pla. They expected it to become lawful. They abadoed the Provisioal Pla as soo as its ulawfuless became apparet, i. e., as soo as it became clear that the legislature would ot pass the laws eeded to make it lawful. Moreover, all these evets took place withi the space of a few weeks. The pla was used to register voters for oly 41 days, ad oly about a third of the State's voter registratio officials had begu to use it. Further, the State held o electios prior to its abadomet of the Provisioal Pla, or were ay electios immiet. These circumstaces take together lead us to coclude that the Provisioal Pla was ot "i force or effect"; hece it did ot become part of the baselie agaist which we are to judge whether future chage occurred. B We oetheless agree with the appellats ad the Govermet that the New System icluded chages that must be, but have ot bee, precleared. That is because the New System cotais "practices ad procedures" that are sigificatly "differet from" the Old Systemthe system that was *284 i effect i 1994. Ad the State has |
Justice Breyer | 1,997 | 2 | majority | Young v. Fordice | https://www.courtlistener.com/opinion/118099/young-v-fordice/ | was *284 i effect i 1994. Ad the State has ot precleared those differeces. This Court has made clear that mior, as well as major, chages require preclearace. ; ; See also 28 CFR 51.12 This is true eve where, as here, the chages are made i a effort to comply with federal law, so log as those chages reflect policy choices made by state or local officials. (requirig State to preclear chages made i a effort to comply with 2 of the VRA, 42 U.S. C. 1973); (requirig preclearace of votig chages submitted to a federal court because the VRA "requires that wheever a covered jurisdictio submits a proposal reflectig the policy choices of the elected represetatives of the people o matter what costraits have limited the choices available to themthe preclearace requiremet of the Votig Rights Act is applicable"); ; Hampto Couty Electio Comm', (requirig preclearace of chage i electio date although chage was made i a effort to comply with 5). Moreover, the NVRA does ot forbid applicatio of the VRA's requiremets. To the cotrary, it says "[]othig i this subchapter authorizes or requires coduct that is prohibited by the" VRA. 42 U.S. C. 1973gg9(d)(2). Ad it adds that "either the rights ad remedies established by this sectio or ay other provisio of this subchapter shall supersede, restrict, or limit the applicatio of the" VRA. 1973gg9(d)(1). *285 Nor does it matter for the preclearace requiremet whether the chage works i favor of, works agaist, or is eutral i its impact upo the ability of miorities to vote. See geerally City of (requirig preclearace of a chage but fidig the chage oretrogressive). It is chage that ivokes the preclearace process; evaluatio of that chage cocers the merits of whether the chage should i fact be precleared. See at -25; at 555, 19, 558-559. That is so because preclearace is a process aimed at preservig the status quo util the Attorey Geeral or the courts have a opportuity to evaluate a proposed chage. See McCai v. Lybrad, (Without 5, eve successful atidiscrimiatio lawsuits might "merely resul[t] i a chage i methods of discrimiatio"); South Carolia v. Katzebach, ; (explaiig how the VRA could attack the problems of goig from oe discrimiatory system to aother, by shiftig "the advatage of time ad iertia" to the potetial victims of that discrimiatio). I this case, the New System cotais umerous examples of ew, sigificatly differet admiistrative practicespractices that are ot purely miisterial, but reflect the exercise of policy choice ad discretio by Mississippi officials. The system, for example, ivolves ewly revised writte |
Justice Breyer | 1,997 | 2 | majority | Young v. Fordice | https://www.courtlistener.com/opinion/118099/young-v-fordice/ | Mississippi officials. The system, for example, ivolves ewly revised writte materials cotaiig sigificat, ad sigificatly differet, registratio istructios; ew reportig requiremets for local electios officials; ew ad detailed istructios about what kid of assistace state agecy persoel should offer potetial NVRA registrats, which state agecies will be NVRA registratio agecies, ad how ad i what form registratio material is to be forwarded to those who maitai the votig rolls; ad other similar matters. Isofar as they embody discretioary decisios that have a potetial for discrimiatory impact, they are appropriate matters for review uder 5's preclearace process. *286 I sayig this, we recogize that the NVRA imposes certai madates o describig those madates i detail. The NVRA says, for example, that the state driver's licese applicatios must also serve as voter registratio applicatios ad that a decisio ot to register will remai cofidetial. 42 U.S. C. 1973gg3(a)(1), (c)(2)(D)(ii). It says that caot force driver's licese applicatios to submit the same iformatio twice (o licese applicatios ad agai o registratio forms). 1973gg3(c)(2)(A). Noetheless, implemetatio of the NVRA is ot purely miisterial. The NVRA still leaves room for policy choice. The NVRA does ot list, for example, all the other iformatio the State mayor may otprovide or request. Ad a decisio about that other iformatiosay, whether or ot to tell the applicat that registratio couts oly for federal electiosmakes Mississippi's chages to the New System the kid of discretioary, omiisterial chages that call for federal VRA review. Hece, Mississippi must preclear those chages. C We shall cosider Mississippi's two importat argumets to the cotrary. 1 The first set of argumets cocers the effect of the Attorey Geeral's preclearace letter. Mississippi poits out that the Departmet of Justice wrote to the State o February 1, 1995, that the Attorey Geeral did "ot iterpose ay objectio" to its NVRA chages. App. to Juris. Statemet 17a. Hece, says Mississippi, the Attorey Geeral has already precleared its efforts to comply. The submissio that the Attorey Geeral approved, however, assumed that Mississippi's admiistrative chages would permit NVRA registrats to vote i both state ad federal electios. The submissio icluded a pamphlet etitled The Natioal Voter Registratio Act, App. 26-43, which *287 set forth what Mississippi's submissio letter called the State's "pla to admiistratively implemet NVRA o Jauary 1, 1995," The submissio icluded legislative chages; ideed, Mississippi eclosed i the packet the proposed legislatio that would have made a sigle NVRA registratio valid for both federal ad state electios. The submissio also icluded forms to be provided NVRA registrats, forms that, by their lack of specificity, probably would have |
Justice Breyer | 1,997 | 2 | majority | Young v. Fordice | https://www.courtlistener.com/opinion/118099/young-v-fordice/ | forms that, by their lack of specificity, probably would have led those votersad the Attorey Geeralto believe that NVRA registratio permitted them to vote i all electios. These formsperfectly uderstadable o the "sigle registratio" assumptiomight well mislead if they caot i fact be used to register for state electios. Cf. City of -132 (requirig city to submit "etire system" because "[t]he possible discrimiatory purpose or effect of the [chages], admittedly subject to 5, caot be determied i isolatio from the `pre-existig' elemets"). Furthermore, the submissio icluded o istructios to voter registratio officials about treatig NVRA registrats differetly from other voters ad provided for o otice to NVRA registrats that they could ot vote i state electios. Mississippi replies that, as a matter of logic, oe could read its submissio, with its explicit idicatio that the state legislatio was proposed, but ot yet eacted, as a request for approval of the admiistrative chages whether or ot the state legislature passed the bill. It tries to derive further support for its claim by poitig to Departmet of Justice regulatios that say that the Attorey Geeral will ot preclear ueacted legislatio. 28 CFR 51., 51.35 As a matter of pure logic, Mississippi is correct. Oe could logically uderstad the preclearace i the way the State suggests. But still, that is ot the oly way to uderstad it. At a miimum, its submissio was ambiguous as to whether (1) it sought approval o the assumptio that the *288 state legislature would eact the bill, or (2) it sought approval whether or ot the state legislature would eact the bill. Although there is oe referece to the possibility of a "dual registratio system" i the absece of legislatio, App. 72, the submissio simply did ot specify what would happe if the legislature did ot pass the bill, ad it thereby created ambiguity about whether the practices ad procedures described i the submissio would be implemeted regardless of what the legislature did. The VRA permits the Attorey Geeral to resolve such ambiguities agaist the submittig State. McCai, 255-257 (burde is o the State to submit a complete ad uambiguous descriptio of proposed chages); (relyig o "presumptio that ay ambiguity i the scope of the preclearace request must be costrued agaist the [State]" (iteral quotatio marks ad citatios omitted)). See also 28 CFR 51.26(d), 51.27(c) (requirig preclearace submissios to explai chages clearly ad i detail). Hece, the Attorey Geeral could read her approval of the submitted pla as a approval of a pla that rested o the assumptio that the proposed chages would be valid for all |
Justice Breyer | 1,997 | 2 | majority | Young v. Fordice | https://www.courtlistener.com/opinion/118099/young-v-fordice/ | assumptio that the proposed chages would be valid for all electios, ot a pla i which NVRA registratio does ot qualify the registrat to vote i state electios. We fid othig i the Attorey Geeral's regulatios that forces a cotrary coclusio. Mississippi adds that the Attorey Geeralif faced with a ambiguitycould have sought more iformatio to clarify the situatio, to determie what would happe if the legislature failed to pass the bill, for example. Ad the Attorey Geeral could the have withheld her approval oce she foud out what would likely occur. Agai, Mississippi is right as to what the Attorey Geeral might have doe. See 51.37(a) (Attorey Geeral may request more iformatio about submissios). Ideed, the Uited "ackowledge[s]" that with "the beefit of hidsight, such a request might have bee preferable" to preclearig the submissio. *289 Brief for Uited as Amicus Curiae 27, 14. Still, the law does ot require the Attorey Geeral, i these circumstaces, to obtai more iformatio. at (The Attorey Geeral is uder o duty to ivestigate votig chages). See also McCai, (Cogress "`ackowledged ad aticipated [the] iability of the Justice Departmetgive limited resourcesto ivestigate idepedetly all chages' " (quotig 10)). Ad the issue, of course, is ot whether she should or should ot have issued a preclearace letter o February 1, 1995, but rather what it was that she precleared. Her failure to seek added iformatio makes it more likely, ot less likely, that she iteded to preclear what she took to be the atural import of the earlier submissio, amely, a proposal for a sigle state/federal registratio system. Fially, Mississippi argues that the Attorey Geeral i fact kew, o February 1, 1995, whe she issued the preclearace letter that the state legislature would ot eact the proposed bill. Ad it adds that the Attorey Geeral oetheless approved the submissio i order to have i place a precleared uitary system that would serve as a bechmark for measurig whether subsequet chages are retrogressive, thereby permittig the Attorey Geeral to argue that 5 prohibited as retrogressive the dual system which she kew would likely emerge because the legislatio failed. I fact, the record is ot clear about just what the Departmet of Justice did or did ot kow (e. g., whether tablig the bill meat killig it; whether state electio law defiitely had to be chaged). But i ay evet, the short aswer to the argumet is that Mississippi's descriptio of the Departmet's motive, if true, would refute its claim that the Attorey Geeral iteded to preclear a dual system. Ideed, oly two weeks after the |
Justice Breyer | 1,997 | 2 | majority | Young v. Fordice | https://www.courtlistener.com/opinion/118099/young-v-fordice/ | preclear a dual system. Ideed, oly two weeks after the February 1 preclearace, the Attorey Geeral wrote to Mississippi statig explicitly her view that its submissio had ot sought "preclearace for a *290 dual registratio ad purge system." App. to Juris. Statemet 25a. See McCai, (relyig o "such after-the-fact Justice Departmet statemets i determiig whether a particular chage was actually precleared"). Regardless, the law ordiarily permits the Attorey Geeral to rest a decisio to preclear or ot to preclear upo the submissio itself. at ; Uited v. Sheffield Bd. of Comm'rs, Tyig preclearace to a particular set of writte documets themselves helps to avoid the kids of argumets about meaig ad itet that Mississippi raises hereargumets that, were they frequetly to arise, could delay expeditious decisiomakig as to the may thousads of requests for clearace that the Departmet of Justice receives each year. See at I sum, we coclude that the Departmet of Justice, o February 1, did ot preclear the New System. 2 Fially, Mississippi argues that the NVRA, because it specifically applies oly to registratio for federal electios, 42 U.S. C. 1973gg2(a), automatically authorizes it to maitai separate votig procedures; hece 5 caot be used to force it to implemet the NVRA for all electios. If Mississippi meas that the NVRA does ot forbid two systems ad that 5 of the VRA does ot categoricallywithout more forbid a State to maitai a dual system, we agree. The decisio to adopt the NVRA federal registratio system is ot, by itself, a chage for the purposes of 5, for the State has o choice but to do so. Ad of course, a State's retetio of a prior system for state electios, by itself, is ot a chage. It is the discretioary elemets of the ew federal system that the State must preclear. The problem for Mississippi is that preclearace typically requires examiatio of discretioary chages i cotexta cotext that icludes history, purpose, ad practical effect. See City of Lockhart v. *291 Uited ("The possible discrimiatory purpose or effect of the [chages], admittedly subject to 5, caot be determied i isolatio from the `pre-existig' elemets of the coucil"). The appellats ad the Govermet argue that i cotext ad i light of their practical effects, the particular chages ad the way i which Mississippi admiisters them could have the "purpose [or] effect of deyig or abridgig the right to vote o accout of race or color." 42 U.S. C. 1973c. We caot say whether or ot that is so, for that is a argumet about the merits. The questio here is "preclearace," |
per_curiam | 1,977 | 200 | per_curiam | Morales v. Turman | https://www.courtlistener.com/opinion/109619/morales-v-turman/ | The motion of American Orthopsychiatric Association et al. for leave to file a brief as amici curiae is granted. This case from the United Court of Appeals for the Fifth Circuit involves the proper scope of three-judge-court jurisdiction under 28 U.S. C. 2281.[*] Petitioners brought suit challenging allegedly unconstitutional punitive and inhumane conditions in Texas institutions housing juvenile delinquents, and the failure to provide juveniles with *323 the rehabilitation or treatment that justified their confinement. A single District Judge determined that the juveniles' constitutional rights had been violated, and ordered the parties to submit a curative plan. The Court of Appeals vacated the District Court's decision on the ground that a three-judge court should have been convened in accordance with 2281. The appellate court reasoned that the challenged, unwritten practices of the juvenile institutions administered by the Texas Youth Council were revealed during trial to be statewide in impact and that therefore they were equivalent to a statute with statewide applicability within the meaning of 2281. Under the Court of Appeals' analysis, the necessity of convening a three-judge court was thus not properly apparent until considerable factual development of the breadth and content of the Texas Youth Council's administrative practices had taken place. In construing 2281, this Court has concluded that the three-judge court procedure is brought into play in any "suit which seeks to interpose the Constitution against enforcement of a state policy, whether such policy is defined in a state constitution or in an ordinary statute or through the delegated legislation of an `administrative board or commission.'" We have never, however, considered the generalized, unwritten practices of administration to be equivalent to the "delegated legislation" of an administrative board. In fact that approach was specifically rejected in involving a challenge brought in a single-judge court to the Rhode Island prison system's unwritten rule forbidding counsel at disciplinary hearings. In rejecting the argument that a three-judge court was necessary to resolve that challenge, we noted that the complaint did not meet the threshold requirements of 2281 jurisdiction; it "did not mention or challenge any rule or regulation of the *324 Authority; nor did it seek an injunction against the enforcement of any identified rule." n. 2. That description applies equally to the complaint in this case. The ruling in Baxter merely reflected the consistent recognition that the three-judge court procedure is not "a measure of broad social policy to be construed with great liberality, but an enactment technical in the strict sense of the term and to be applied as such." at ; see also The Court of Appeals' |
Justice Scalia | 1,999 | 9 | concurring | Minnesota v. Carter | https://www.courtlistener.com/opinion/118249/minnesota-v-carter/ | I join the opinion of the Court because I believe it accurately applies our recent case law, including I write separately to express my view that that case lawlike the submissions of the parties in this casegives short shrift to the text of the Fourth Amendment, and to the well and long understood meaning of that text. Specifically, it leaps to apply the fuzzy standard of "legitimate expectation of privacy"a consideration that *92 is often relevant to whether a search or seizure covered by the Fourth Amendment is "unreasonable"to the threshold question whether a search or seizure covered by the Fourth Amendment has occurred. If that latter question is addressed first and analyzed under the text of the Constitution as traditionally understood, the present case is not remotely difficult. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" U. S. Const., Amdt. 4 It must be acknowledged that the phrase "their houses" in this provision is, in isolation, ambiguous. It could mean "their respective houses," so that the protection extends to each person only in his own house. But it could also mean "their respective and each other's houses," so that each person would be protected even when visiting the house of someone else. As today's opinion for the Court suggests, however, ante, at 88-90, it is not linguistically possible to give the provision the latter, expansive interpretation with respect to "houses" without giving it the same interpretation with respect to the nouns that are parallel to "houses""persons, papers, and effects"which would give me a constitutional right not to have your person unreasonably searched. This is so absurd that it has to my knowledge never been contemplated. The obvious meaning of the provision is that each person has the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects. The founding-era materials that I have examined confirm that this was the understood meaning. (Strangely, these materials went unmentioned by the State and its amici unmentioned even in the State's reply brief, even though respondents had thrown down the gauntlet: "In briefs totaling over 100 pages, the State of Minnesota, the amici 26 attorneys general, and the Solicitor General of the United States of America have not mentioned one word about the history *93 and purposes of the Fourth Amendment or the intent of the framers of that amendment." Brief for Respondents 12, n. 4.) Like most of the provisions of the Bill of Rights, the Fourth Amendment |
Justice Scalia | 1,999 | 9 | concurring | Minnesota v. Carter | https://www.courtlistener.com/opinion/118249/minnesota-v-carter/ | the provisions of the Bill of Rights, the Fourth Amendment was derived from provisions already existing in state constitutions. Of the four of those provisions that contained language similar to that of the Fourth Amendment,[1] two used the same ambiguous "their" terminology. See Pa. Const., Art. X (1776) ("That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure"); Vt. Const., ch. I, XI (1777) ("That the people have a right to hold themselves, their houses, papers, and possessions free from search or seizure."). The other two, however, avoided the ambiguity by using the singular instead of the plural. See Mass. Const., pt. I, Art. XIV (1780) ("Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions"); N. H. Const., XIX (1784) ("Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions"). The New York Convention that ratified the Constitution proposed an amendment that would have given every freeman "a right to be secure from all unreasonable searches and seizures of his person his papers or his property," 4 B. Schwartz, The Roots of the Bill of Rights 913 (1980) (reproducing New York proposed amendments, 1778) (emphases added), and the Declaration of Rights that the North Carolina Convention demanded prior to its ratification contained a similar provision protecting a freeman's right against "unreasonable searches and seizures of his person, his papers and property," (emphases added). There is no indication anyone believed *94 that the Massachusetts, New Hampshire, New York, and North Carolina texts, by using the word "his" rather than "their," narrowed the protections contained in the Pennsylvania and Vermont Constitutions. That "their houses" was understood to mean "their respective houses" would have been clear to anyone who knew the English and early American law of arrest and trespass that underlay the Fourth Amendment. The people's protection against unreasonable search and seizure in their "houses" was drawn from the English common-law maxim, "A man's home is his castle." As far back as Semayne's Case of 1604, the leading English case for that proposition (and a case cited by Coke in his discussion of the proposition that Magna Carta outlawed general warrants based on mere surmise, 4 E. Coke, Institutes 176-177 (1797)), the King's Bench proclaimed that "the house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his |
Justice Scalia | 1,999 | 9 | concurring | Minnesota v. Carter | https://www.courtlistener.com/opinion/118249/minnesota-v-carter/ | not extend to protect any person who flies to his house." 5 Co. Rep. 91a, 93a, 77 Eng. Rep. 194, 198 (K. B.). Thus Cooley, in discussing Blackstone's statement that a bailiff could not break into a house to conduct an arrest because "every man's house is looked upon by the law to be his castle," 3 W. Blackstone, Commentaries on the Laws of England 288 (1768), added the explanation: "[I]t is the defendant's own dwelling which by law is said to be his castle; for if he be in the house of another, the bailiff or sheriff may break and enter it to effect his purpose." 3 W. Blackstone, Commentaries on the Laws of England 287, n. 5 (T. Cooley 2d rev. ed. 1872). See also Johnson v. Leigh, 6 Taunt. 246, 248, 128 Eng. Rep. 1029, 1030 (C. P. 1815) ("[I]n many cases the door of a third person may be broken where that of the Defendant himself cannot; for though every man's house is his own castle, it is not the castle of another man").[2] *95 Of course this is not to say that the Fourth Amendment protects only the Lord of the Manor who holds his estate in fee simple. People call a house "their" home when legal title *96 is in the bank, when they rent it, and even when they merely occupy it rent freeso long as they actually live there. That this is the criterion of the people's protection against government intrusion into "their" houses is established by the leading American case of which held it a trespass for the sheriff to break into a dwelling to capture a boarder who lived there. The court reasoned that the "inviolability of dwelling-houses" described by Foster, Hale, and Coke extends to "the occupier or any of his family who have their domicile or ordinary residence there," including "a boarder or a servant" "who have made the house their home." But, it added, "the house shall not be made a sanctuary" for one such as "a stranger, or perhaps a visitor," who "upon a pursuit, take[s] refuge in the house of another," for "the house is not his castle; and the officer may break open the doors or windows in order to execute his process." Thus, in deciding the question presented today we write upon a slate that is far from clean. The text of the Fourth Amendment, the common-law background against which it was adopted, and the understandings consistently displayed after its adoption make the answer clear. We were right to hold in that the |
Justice Scalia | 1,999 | 9 | concurring | Minnesota v. Carter | https://www.courtlistener.com/opinion/118249/minnesota-v-carter/ | answer clear. We were right to hold in that the Fourth Amendment protects an apartment tenant against an unreasonable search of his dwelling, even though he is only a leaseholder. And we were right to hold in that an unreasonable search of a grandmother's house violated her resident grandson's Fourth Amendment rights because the area searched "was his home," We went to the absolute limit of what text and tradition permit in when we protected a mere overnight guest against an unreasonable *97 search of his hosts' apartment. But whereas it is plausible to regard a person's overnight lodging as at least his "temporary" residence, it is entirely impossible to give that characterization to an apartment that he uses to package cocaine. Respondents here were not searched in "their hous[e]" under any interpretation of the phrase that bears the remotest relationship to the well-understood meaning of the Fourth Amendment. The dissent believes that "[o]ur obligation to produce coherent results" requires that we ignore this clear text and 4-century-old tradition, and apply instead the notoriously unhelpful test adopted in a "benchmar[k]" decision that is 31 years old. Post, at 110, citing In my view, the only thing the past three decades have established about the Katz test (which has come to mean the test enunciated by Justice Harlan's separate concurrence in Katz, see ) is that, unsurprisingly, those "actual (subjective) expectation[s] of privacy" "that society is prepared to recognize as `reasonable,' " bear an uncanny resemblance to those expectations of privacy that this Court considers reasonable. When that self-indulgent test is employed (as the dissent would employ it here) to determine whether a "search or seizure" within the meaning of the Constitution has occurred (as opposed to whether that "search or seizure" is an "unreasonable" one), it has no plausible foundation in the text of the Fourth Amendment. That provision did not guarantee some generalized "right of privacy" and leave it to this Court to determine which particular manifestations of the value of privacy "society is prepared to recognize as `reasonable.' " Rather, it enumerated ("persons, houses, papers, and effects") the objects of privacy protection to which the Constitution would extend, leaving further expansion to the good *98 judgment, not of this Court, but of the people through their representatives in the legislature.[3] The dissent may be correct that a person invited into someone else's house to engage in a common business (even common monkey business, so to speak) ought to be protected against government searches of the room in which that business is conducted; and that persons invited in to |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | Pursuant to a well-publicized plan, a group of lawyers agreed not to represent indigent criminal defendants in the District of Columbia Superior Court until the District of Columbia government increased the lawyers' compensation. The questions presented are whether the lawyers' concerted conduct violated of the Federal Trade Commission Act and, if so, whether it was nevertheless protected by the First Amendment to the Constitution.[1] I The burden of providing competent counsel to indigent defendants in the District of Columbia is substantial. During 1982, court-appointed counsel represented the defendant in approximately 2,000 cases. In the most serious felony cases, representation was generally provided by full-time employees of the District's Public Defender System (PDS). Less serious felony and misdemeanor cases constituted about *41 8 percent of the total caseload. In these cases, lawyers in private practice were appointed and compensated pursuant to the District of Columbia Criminal Justice Act (CJA).[2] Although over 1,200 lawyers have registered for CJA appointments, relatively few actually apply for such work on a regular basis. In 1982, most appointments went to approximately 100 lawyers who are described as "CJA regulars." These lawyers derive almost all of their income from representing indigents.[3] In 1982, the total fees paid to CJA lawyers amounted to $4,79,72. In 1974, the District created a Joint Committee on Judicial Administration with authority to establish rates of compensation for CJA lawyers not exceeding the rates established by the federal Criminal Justice Act of 1964. After 1970, the federal Act provided for fees of $30 per hour for court time and $20 per hour for out-of-court time. See codified at 18 U.S. 6A (1970 ed.). These rates accordingly capped the rates payable to the District's CJA lawyers, and could not be exceeded absent amendment to either the federal statute or the District Code. Bar organizations began as early as 197 to express concern about the low fees paid to CJA lawyers. Beginning in 1982, respondents, the Superior Court Trial Lawyers Association (SCTLA) and its officers, and other bar groups sought to persuade the District to increase CJA rates to at least $3 per hour. Despite what appeared to be uniform support for the bill, it did not pass. It is also true, however, that nothing *4 in the record indicates that the low fees caused any actual shortage of CJA lawyers or denied effective representation to defendants. In early August 1983, in a meeting with officers of SCTLA, the Mayor expressed his sympathy but firmly indicated that no money was available to fund an increase. The events giving rise to this litigation then ensued. At |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | The events giving rise to this litigation then ensued. At an SCTLA meeting, the CJA lawyers voted to form a "strike committee." The eight members of that committee promptly met and informally agreed "that the only viable way of getting an increase in fees was to stop signing up to take new CJA appointments, and that the boycott should aim for a $4 out-of-court and $ in-court rate schedule." In re Superior Court Trial Lawyers 107 F. T. 10, 38 On August 11, 1983, about 100 CJA lawyers met and resolved not to accept any new cases after September 6 if legislation providing for an increase in their fees had not passed by that date. Immediately following the meeting, they prepared (and most of them signed) a petition stating: "We, the undersigned private criminal lawyers practicing in the Superior Court of the District of Columbia, agree that unless we are granted a substantial increase in our hourly rate we will cease accepting new appointments under the Criminal Justice Act." 272 U. S. App. D. 272, 276, On September 6, 1983, about 90 percent[4] of the CJA regulars refused to accept any new assignments. Thereafter, SCTLA arranged a series of events to attract the attention of the news media and to obtain additional support. These events were well publicized and did engender favorable editorial comment, but the Administrative Law Judge (ALJ) found that "there is no credible evidence that the District's *417 eventual capitulation to the demands of the CJA lawyers was made in response to public pressure, or, for that matter, that this publicity campaign actually engendered any significant measure of public pressure." 107 F. T. at 43.[] As the participating CJA lawyers had anticipated, their refusal to take new assignments had a severe impact on the District's criminal justice system. The massive flow of new cases did not abate,[6] and the need for prompt investigation and preparation did not ease. As the ALJ found, "there was no one to replace the CJA regulars, and makeshift measures were totally inadequate. A few days after the September 6 deadline, PDS was swamped with cases. The handful of CJA regulars who continued to take cases were soon overloaded. The overall response of the uptown lawyers to the PDS call for help was feeble, reflecting their universal distaste for criminal law, their special aversion for compelled indigency representation, the near epidemic siege of self-doubt about their ability to handle cases in this field, and their underlying support for the demands of the CJA lawyers. Most of the law student volunteers initially observed the |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | lawyers. Most of the law student volunteers initially observed the boycott, and later all law student volunteers were limited (as they usually are) to a relatively few minor misdemeanors." *418 Within 10 days, the key figures in the District's criminal justice system "became convinced that the system was on the brink of collapse because of the refusal of CJA lawyers to take on new cases." On September 1, they hand-delivered a letter to the Mayor describing why the situation was expected to "reach a crisis point" by early the next week and urging the immediate enactment of a bill increasing all CJA rates to $3 per hour. The Mayor promptly met with members of the strike committee and offered to support an immediate temporary increase to the $3 level as well as a subsequent permanent increase to $4 an hour for out-of-court time and $ for in-court time. At noon on September 19, 1983, over 100 CJA lawyers attended an SCTLA meeting and voted to accept the $3 offer and end the boycott. The city council's Judiciary Committee convened at 2 o'clock that afternoon. The committee recommended legislation increasing CJA fees to $3, and the council unanimously passed the bill on September 20. On September 21, the CJA regulars began to accept new assignments and the crisis subsided. II The Federal Trade Commission (FTC) filed a complaint against SCTLA and four of its officers (respondents) alleging that they had "entered into an agreement among themselves and with other lawyers to restrain trade by refusing to compete for or accept new appointments under the CJA program beginning on September 6, 1983, unless and until the District of Columbia increased the fees offered under the CJA program." The complaint alleged that virtually all of the attorneys who regularly compete for or accept new appointments under the CJA program had joined the agreement. The FTC characterized respondents' conduct as "a conspiracy to fix prices and to conduct a boycott" and concluded that they were engaged in "unfair methods of competition *419 in violation of Section of the Federal Trade Commission Act."[7] After a 3-week hearing, the ALJ found that the facts alleged in the complaint had been proved, and rejected each of respondents' three legal defenses that the boycott was adequately justified by the public interest in obtaining better legal representation for indigent defendants; that as a method of petitioning for legislative change it was exempt from the antitrust laws under our decision in Eastern Railroad Presidents ; and that it was a form of political action protected by the First Amendment |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | a form of political action protected by the First Amendment under our decision in The ALJ nevertheless concluded that the complaint should be dismissed because the District officials, who presumably represented the victim of the boycott, recognized that its net effect was beneficial. The increase in fees would attract more CJA lawyers, enabling them to reduce their caseloads and provide better representation for their clients. "I see no point," he concluded, "in striving resolutely for an antitrust triumph in this sensitive area when the particular case can be disposed of on a more pragmatic basis there was no harm done." 107 F. T. at 61. The ALJ's pragmatic moderation found no favor with the FT Like the ALJ, the FTC rejected each of respondents' defenses. It held that their "coercive, concerted refusal to deal" had the "purpose and effect of raising prices" and was illegal per se. Unlike the ALJ, the FTC refused to conclude that the boycott was harmless, noting that the "boycott forced the city government to increase the CJA fees from a level that had been sufficient to obtain an adequate supply of CJA lawyers to a level satisfactory to the respondents. *420 The city must, as a result of the boycott, spend an additional $4 million to $ million a year to obtain legal services for indigents. We find that these are substantial anticompetitive effects resulting from the respondents' conduct." Finally, the FTC determined that the record did not support the ALJ's conclusion that the District supported the boycott. The FTC also held that such support would not in any event excuse respondents' antitrust violations. Accordingly, it entered a cease-and-desist order "to prohibit the respondents from initiating another boycott whenever they become dissatisfied with the results or pace of the city's legislative process." The Court of Appeals vacated the FTC order and remanded for a determination whether respondents possessed "significant market power." The court began its analysis by recognizing that absent any special First Amendment protection, the boycott "constituted a classic restraint of trade within the meaning of Section 1 of the Sherman Act."[8] 272 U. S. App. D. at The Court of Appeals was not persuaded by respondents' reliance on Claiborne or Noerr, or by their argument that the boycott was justified because it was designed to improve the quality of representation for indigent defendants. It concluded, however, that "the SCTLA boycott did contain an element of expression warranting First Amendment protection." 272 U. S. App. D. at It *421 noted that boycotts have historically been used as a dramatic means of expression and |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | historically been used as a dramatic means of expression and that respondents intended to convey a political message to the public at large. It therefore concluded that under United a restriction on this form of expression could not be justified unless it is no greater than is essential to an important governmental interest. This test, the court reasoned, could not be satisfied by the application of an otherwise appropriate per se rule, but instead required the enforcement agency to "prove rather than presume that the evil against which the Sherman Act is directed looms in the conduct it condemns." 272 U. S. App. D. at Because of our concern about the implications of the Court of Appeals' unique holding, we granted the FTC's petition for certiorari as well as respondents' cross-petition. We consider first the cross-petition, which contends that respondents' boycott is outside the scope of the Sherman Act or is immunized from antitrust regulation by the First Amendment. We then turn to the FTC's petition. III Reasonable lawyers may differ about the wisdom of this enforcement proceeding. The dissent from the decision to file the complaint so demonstrates. So, too, do the creative conclusions of the ALJ and the Court of Appeals. Respondents' boycott may well have served a cause that was worthwhile and unpopular. We may assume that the preboycott rates were unreasonably low, and that the increase has produced better legal representation for indigent defendants. Moreover, given that neither indigent criminal defendants nor the lawyers who represent them command any special appeal with the electorate, we may also assume that without the boycott there would have been no increase in District CJA fees at least until the Congress amended the federal statute. These assumptions do not control the case, for it is *422 not our task to pass upon the social utility or political wisdom of price-fixing agreements. As the ALJ, the FTC, and the Court of Appeals all agreed, respondents' boycott "constituted a classic restraint of trade within the meaning of Section 1 of the Sherman Act." 272 U. S. App. D. at As such, it also violated the prohibition against unfair methods of competition in of the FTC Act. See Prior to the boycott CJA lawyers were in competition with one another, each deciding independently whether and how often to offer to provide services to the District at CJA rates.[9] The agreement among the *423 CJA lawyers was designed to obtain higher prices for their services and was implemented by a concerted refusal to serve an important customer in the market for legal services and, |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | an important customer in the market for legal services and, indeed, the only customer in the market for the particular services that CJA regulars offered. "This constriction of supply is the essence of `price-fixing,' whether it be accomplished by agreeing upon a price, which will decrease the quantity demanded, or by agreeing upon an output, which will increase the price offered." 272 U. S. App. D. at The horizontal arrangement among these competitors was unquestionably a "naked restraint" on price and output. See National Collegiate Athletic It is, of course, true that the city purchases respondents' services because it has a constitutional duty to provide representation to indigent defendants. It is likewise true that the quality of representation may improve when rates are increased. Yet neither of these facts is an acceptable justification for an otherwise unlawful restraint of trade. As we have remarked before, the "Sherman Act reflects a legislative judgment that ultimately competition will produce not only lower prices, but also better goods and services." National of Professional This judgment "recognizes that all elements of a bargain quality, service, safety, and durability and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers." *424 That is equally so when the quality of legal advocacy, rather than engineering design, is at issue. The social justifications proffered for respondents' restraint of trade thus do not make it any less unlawful. The statutory policy underlying the Sherman Act "precludes inquiry into the question whether competition is good or bad." Respondents' argument, like that made by the petitioners in Professional Engineers, ultimately asks us to find that their boycott is permissible because the price it seeks to set is reasonable. But it was settled shortly after the Sherman Act was passed that it "is no excuse that the prices fixed are themselves reasonable. See, e. g., United ; United" Catalano, Respondents' agreement is not outside the coverage of the Sherman Act simply because its objective was the enactment of favorable legislation. Our decision in Noerr in no way detracts from this conclusion. In Noerr, we "considered whether the Sherman Act prohibited a publicity campaign waged by railroads" and "designed to foster the adoption of laws destructive of the trucking business, to create an atmosphere of distaste for truckers among the general public, and to impair the relationships existing between truckers and their customers." Claiborne Interpreting the Sherman Act in the light of the First Amendment's Petition Clause, the Court noted that "at least insofar as the railroads' campaign was directed toward obtaining governmental |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | insofar as the railroads' campaign was directed toward obtaining governmental action, its legality was not at all affected by any anticompetitive purpose it may have had." -140. It of course remains true that "no violation of the Act can be predicated upon mere attempts to influence the passage or enforcement of laws," even if the defendants' sole purpose is to impose a restraint upon the trade of their competitors, But in the Noerr case the alleged *42 restraint of trade was the intended consequence of public action; in this case the boycott was the means by which respondents sought to obtain favorable legislation. The restraint of trade that was implemented while the boycott lasted would have had precisely the same anticompetitive consequences during that period even if no legislation had been enacted. In Noerr, the desired legislation would have created the restraint on the truckers' competition; in this case the emergency legislative response to the boycott put an end to the restraint. Indeed, respondents' theory of Noerr was largely disposed of by our opinion in Allied Tube & Conduit We held that the Noerr doctrine does not extend to "every concerted effort that is genuinely intended to influence governmental action." We explained: "If all such conduct were immunized then, for example, competitors would be free to enter into horizontal price agreements as long as they wished to propose that price as an appropriate level for governmental ratemaking or price supports. But see Horizontal conspiracies or boycotts designed to exact higher prices or other economic advantages from the government would be immunized on the ground that they are genuinely intended to influence the government to agree to the conspirators' terms. But see Firms could claim immunity for boycotts or horizontal output restrictions on the ground that they are intended to dramatize the plight of their industry and spur legislative action." IV SCTLA argues that if its conduct would otherwise be prohibited by the Sherman Act and the Federal Trade Commission Act, it is nonetheless protected by the First Amendment rights recognized in *4 That case arose after black citizens boycotted white merchants in Claiborne County, Mississippi. The white merchants sued under state law to recover losses from the boycott. We found that the "right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution " We accordingly held that "the nonviolent elements of petitioners' activities are entitled to the protection of the First Amendment." SCTLA contends that |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | to the protection of the First Amendment." SCTLA contends that because it, like the boycotters in Claiborne sought to vindicate constitutional rights, it should enjoy a similar First Amendment protection. It is, of course, clear that the association's efforts to publicize the boycott, to explain the merits of its cause, and to lobby District officials to enact favorable legislation like similar activities in Claiborne were activities that were fully protected by the First Amendment. But nothing in the FTC's order would curtail such activities, and nothing in the FTC's reasoning condemned any of those activities. The activity that the FTC order prohibits is a concerted refusal by CJA lawyers to accept any further assignments until they receive an increase in their compensation; the undenied objective of their boycott was an economic advantage for those who agreed to participate. It is true that the Claiborne case also involved a boycott. That boycott, however, differs in a decisive respect. Those who joined the Claiborne boycott sought no special advantage for themselves. They were black citizens in Port Gibson, Mississippi, who had been the victims of political, social, and economic discrimination for many years. They sought only the equal respect and equal treatment to which they were constitutionally entitled. They struggled "to change a social order that had consistently treated them as second class citizens." As we observed, the campaign was not *427 intended "to destroy legitimate competition." Equality and freedom are preconditions of the free market, and not commodities to be haggled over within it. The same cannot be said of attorney's fees. As we recently pointed out, our reasoning in Claiborne is not applicable to a boycott conducted by business competitors who "stand to profit financially from a lessening of competition in the boycotted market." Allied Tube & Conduit[10] No matter how altruistic the motives of respondents may have been, it is undisputed that their immediate objective was to increase the price that they would be paid for their services. Such an economic boycott is well within the category that was expressly distinguished in the Claiborne opinion 48 U.S., -91.[11] *428 Only after recognizing the well-settled validity of prohibitions against various economic boycotts did we conclude in Claiborne that "peaceful, political activity such as that found in the [Mississippi] boycott" are entitled to constitutional protection.[12] We reaffirmed the government's "power to regulate [such] economic activity." -913. This conclusion applies with special force when a clear objective of the boycott is to economically advantage the participants. V Respondents' concerted action in refusing to accept further CJA assignments until their fees |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | in refusing to accept further CJA assignments until their fees were increased was thus a plain violation of the antitrust laws. The exceptions derived from Noerr and Claiborne have no application to respondents' boycott. For these reasons we reject the arguments made by respondents in the cross-petition. The Court of Appeals, however, crafted a new exception to the per se rules, and it is this exception which provoked the *429 FTC's petition to this Court. The Court of Appeals derived its exception from United In that case O'Brien had burned his Selective Service registration certificate on the steps of the South Boston Courthouse. He did so before a sizable crowd and with the purpose of advocating his antiwar beliefs. We affirmed his conviction. We held that the governmental interest in regulating the "nonspeech element" of his conduct adequately justified the incidental restriction on First Amendment freedoms.[13] Specifically, we concluded that the statute's incidental restriction on O'Brien's freedom of expression was no greater than necessary to further the Government's interest in requiring registrants to have valid certificates continually available. However, the Court of Appeals held that, in light of O'Brien, the expressive component of respondents' boycott compelled courts to apply the antitrust laws "prudently and with sensitivity," 272 U. S. App. D. at 279-, -234, with a "special solicitude for the First Amendment rights" of respondents. The Court of Appeals concluded that the governmental interest in prohibiting boycotts is not sufficient to justify a restriction on the communicative element of the boycott unless the FTC can prove, and not merely presume, that the boycotters have market power. Because the Court of Appeals imposed this special requirement upon the government, it ruled that per se antitrust *430 analysis was inapplicable to boycotts having an expressive component. There are at least two critical flaws in the Court of Appeals' antitrust analysis: it exaggerates the significance of the expressive component in respondents' boycott and it denigrates the importance of the rule of law that respondents violated. Implicit in the conclusion of the Court of Appeals are unstated assumptions that most economic boycotts do not have an expressive component, and that the categorical prohibitions against price fixing and boycotts are merely rules of "administrative convenience" that do not serve any substantial governmental interest unless the price-fixing competitors actually possess market power. It would not much matter to the outcome of this case if these flawed assumptions were sound. O'Brien would offer respondents no protection even if their boycott were uniquely expressive and even if the purpose of the per se rules were purely that of |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | purpose of the per se rules were purely that of administrative efficiency. We have recognized that the government's interest in adhering to a uniform rule may sometimes satisfy the O'Brien test even if making an exception to the rule in a particular case might cause no serious damage. United The administrative efficiency interests in antitrust regulation are unusually compelling. The per se rules avoid "the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable." Northern Pacific R. If small parties "were allowed to prove lack of market power, all parties would have that right, thus introducing the enormous complexities of market definition *431 into every price-fixing case." R. Bork, The Antitrust Paradox 9 For these reasons, it is at least possible that the Claiborne doctrine, which itself rests in part upon O'Brien,[14] exhausts O'Brien's application to the antitrust statutes. In any event, however, we cannot accept the Court of Appeals' characterization of this boycott or the antitrust laws. Every concerted refusal to do business with a potential customer or supplier has an expressive component. At one level, the competitors must exchange their views about their objectives and the means of obtaining them. The most blatant, naked price-fixing agreement is a product of communication, but that is surely not a reason for viewing it with special solicitude. At another level, after the terms of the boycotters' demands have been agreed upon, they must be communicated to its target: "[W]e will not do business until you do what we ask." That expressive component of the boycott conducted by these respondents is surely not unique. On the contrary, it is the hallmark of every effective boycott. At a third level, the boycotters may communicate with third parties to enlist public support for their objectives; to the extent that the boycott is newsworthy, it will facilitate the expression of the boycotters' ideas. But this level of expression is not an element of the boycott. Publicity may be generated by any other activity that is sufficiently newsworthy. Some activities, including the boycott here, may be newsworthy precisely for the reasons that they are prohibited: the harms they produce are matters of public concern. Certainly that is no reason for removing the prohibition. In sum, there is thus nothing unique about the "expressive component" of respondents' boycott. A rule that requires courts to apply the antitrust laws "prudently and with sensitivity" whenever an economic boycott has an "expressive component" |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | with sensitivity" whenever an economic boycott has an "expressive component" would create a gaping hole in the fabric of those *432 laws. Respondents' boycott thus has no special characteristics meriting an exemption from the per se rules of antitrust law. Equally important is the second error implicit in respondents' claim to immunity from the per se rules. In its opinion, the Court of Appeals assumed that the antitrust laws permit, but do not require, the condemnation of price fixing and boycotts without proof of market power.[1] The opinion further assumed that the per se rule prohibiting such activity "is only a rule of `administrative convenience and efficiency,' not a statutory command." 272 U. S. App. D. at 29, 86 F.2d, at This statement contains two errors. The per se *433 rules are, of course, the product of judicial interpretations of the Sherman Act, but the rules nevertheless have the same force and effect as any other statutory commands. Moreover, while the per se rule against price fixing and boycotts is indeed justified in part by "administrative convenience," the Court of Appeals erred in describing the prohibition as justified only by such concerns. The per se rules also reflect a longstanding judgment that the prohibited practices by their nature have "a substantial potential for impact on competition." Jefferson Parish Hospital District No. As we explained in Professional Engineers, the rule of reason in antitrust law generates "two complementary categories of antitrust analysis. In the first category are agreements whose nature and necessary effect are so plainly anticompetitive that no elaborate study of the industry is needed to establish their illegality they are `illegal per se.' In the second category are agreements whose competitive effect can only be evaluated by analyzing the facts peculiar to the business, the history of the restraint, and the reasons why it was imposed." 43 U.S., at 692. "Once experience with a particular kind of restraint enables the Court to predict with confidence that the rule of reason will condemn it, it has applied a conclusive presumption that the restraint is unreasonable." 47 U.S. 332, The per se rules in antitrust law serve purposes analogous to per se restrictions upon, for example, stunt flying in congested areas or speeding. Laws prohibiting stunt flying or setting speed limits are justified by the State's interest in protecting human life and property. Perhaps most violations of such rules actually cause no harm. No doubt many experienced drivers and pilots can operate much more safely, even at prohibited speeds, than the average citizen. *434 If the especially skilled drivers and |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | the average citizen. *434 If the especially skilled drivers and pilots were to paint messages on their cars, or attach streamers to their planes, their conduct would have an expressive component. High speeds and unusual maneuvers would help to draw attention to their messages. Yet the laws may nonetheless be enforced against these skilled persons without proof that their conduct was actually harmful or dangerous. In part, the justification for these per se rules is rooted in administrative convenience. They are also supported, however, by the observation that every speeder and every stunt pilot poses some threat to the community. An unpredictable event may overwhelm the skills of the best driver or pilot, even if the proposed course of action was entirely prudent when initiated. A bad driver going slowly may be more dangerous that a good driver going quickly, but a good driver who obeys the law is safer still. So it is with boycotts and price fixing.[] Every such horizontal arrangement among competitors poses some threat to the free market. A small participant in the market is, obviously, less likely to cause persistent damage than a large participant. Other participants in the market may act quickly and effectively to take the small participant's place. For reasons including market inertia and information failures, however, a small conspirator may be able to impede competition *43 over some period of time.[17] Given an appropriate set of circumstances and some luck, the period can be long enough to inflict real injury upon particular consumers or competitors.[18] As Justice Douglas observed in an oft-quoted footnote to his United 310 U.S. 10 opinion: "Price-fixing agreements may or may not be aimed at complete elimination of price competition. The group making those agreements may or may not have power to control the market. But the fact that the group cannot control the market prices does not necessarily mean that the agreement as to prices has no utility to the members of the combination. The effectiveness of price-fixing agreements is dependent on many factors, such as competitive tactics, position in the industry, the formula underlying pricing policies. Whatever economic justification particular price-fixing agreements may be thought to have, the law does not permit an inquiry into their reasonableness. They are all banned because of their actual or potential threat to the central nervous system of the economy." at 22-2, n. 9. See also County Medical 47 U. S., at 31, and n. 23. Of course, some boycotts and some price-fixing agreements are more pernicious than others; some are only partly successful, and some may only succeed |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | some are only partly successful, and some may only succeed when they are buttressed by other causative factors, such as political influence. But *436A an assumption that, absent proof of market power, the boycott disclosed by this record was totally harmless when overwhelming testimony demonstrated that it almost produced a crisis in the administration of criminal justice in the District and when it achieved its economic goal is flatly inconsistent with the clear course of our antitrust jurisprudence. Conspirators need not achieve the dimensions of a monopoly, or even a degree of market power any greater than that already disclosed by this record, to warrant condemnation under the antitrust laws. VI The judgment of the Court of Appeals is accordingly reversed insofar as that court held the per se rules inapplicable to the lawyers' boycott.[19] The case is remanded for further proceedings consistent with this opinion.[20] It is so ordered. *436B JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part. The Court holds today that a boycott by the Superior Court Trial Lawyers Association (SCTLA or Trial Lawyers), whose members collectively refused to represent indigent *437 criminal defendants without greater compensation, constituted conduct that was neither clearly outside the scope of the Sherman Act nor automatically immunized from antitrust regulation by the First Amendment. With this much I agree.[1] In Part V of its opinion, however, the Court maintains that under the per se rule the Federal Trade Commission (FTC or Commission) could find the boycott illegal because it might have implicated some of the concerns underlying the antitrust laws. I cannot countenance this reasoning, which upon examination reduces to the Court's assertion that since the government may prohibit airplane stunt flying and reckless automobile driving as categorically harmful, see ante, at 433-434, it may also subject expressive political boycotts to a presumption of illegality without even inquiring as to whether they actually cause any of the harms that the antitrust laws are designed to prevent. This non sequitur cannot justify the significant restriction on First Amendment freedoms that the majority's rule entails. Because I believe that the majority's decision is insensitive to the venerable tradition of expressive boycotts as an important means of political communication, I respectfully dissent from Part V of the Court's opinion. I The Petition and Free Speech Clauses of the First Amendment guarantee citizens the right to communicate with the government, and when a group persuades the government to adopt a particular policy through the force of its ideas and the power of its message, no antitrust liability |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | ideas and the power of its message, no antitrust liability can attach. "There are, of course, some activities, legal if engaged in by one, yet illegal if performed in concert with others, but political expression is not one of them." Citizens Against Rent * Control/Coalition for Fair 44 U.S. 290, But a group's effort to use market power to coerce the government through economic means may subject the participants to antitrust liability. In any particular case, it may be difficult to untangle these two effects by determining whether political or economic power was brought to bear on the government. The Court of Appeals thoughtfully analyzed this problem and concluded, I believe correctly, that there could be no antitrust violation absent a showing that the boycotters possessed some degree of market power that is, the ability to raise prices profitably through economic means or, more generally, the capacity to act other than as would an actor in a perfectly competitive market. The court reasoned that "[w]hen the government seeks to regulate an economic boycott with an expressive component its condemnation without proof that the boycott could in fact be anticompetitive ignores the command of [United States v.] O'Brien that restrictions on activity protected by the First Amendment be `no greater than is essential' to preserve competition from the sclerotic effects of combination." 272 U. S. App. D. 272, 29, ) (emphasis in original). The concurring judge added that if the participants wielded no market power, "the boycott must have succeeded out of persuasion and been a political activity." 272 U. S. App. D. at 86 F.2d, at 24 This approach is quite sensible, and I would affirm the Court of Appeals' decision to remand the case to the FTC for a showing of market power. A The issue in this case is not whether boycotts may ever be punished under of the Federal Trade Commission Act, 1 U.S. 4(a)(1), consistent with the First Amendment; rather, the issue is how the government may determine which boycotts are illegal. Two well-established premises *439 lead to the ineluctable conclusion that when applying the antitrust laws to a particular expressive boycott, the government may not presume an antitrust violation under the per se rule, but must instead apply the more searching, case-specific rule of reason. First, the per se rule is a presumption of illegality.[2] As JUSTICE STEVENS has written: "The costs of judging business practices under the rule of reason, however, have been reduced by the recognition of per se rules. Once experience with a particular kind of restraint enables the Court to |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | with a particular kind of restraint enables the Court to predict with confidence that the rule of reason will condemn it, it has applied a conclusive presumption that the restraint is unreasonable. As in every rule of general application, the match between the presumed and the actual is imperfect. For the sake of business certainty and litigation efficiency, *440 we have tolerated the invalidation of some agreements that a fullblown inquiry might have proved to be reasonable." 47 U.S. 332, 343- We have freely admitted that conduct condemned under the per se rule sometimes would be permissible if subjected merely to rule-of-reason analysis. See at n. ; Continental T. V., v. GTE Sylvania 0, n. ; United States v. Topco Associates, 40 U.S. 96, Second, the government may not in a First Amendment case apply a broad presumption that certain categories of speech are harmful without engaging in a more particularized examination.[3] As the Court of Appeals perceptively reasoned, "the evidentiary shortcut to antitrust condemnation without proof of market power is inappropriate as applied to a boycott that served, in part, to make a statement on a matter of public debate." 272 U. S. App. D. at "Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals"; rather, government must ensure that, even when its regulation is not content based, the restriction narrowly "focuses on the source of the evils the [State] seeks to eliminate." This is *441 what it means for a law to be "narrowly tailored" to the State's interest. See Board of Trustees of State Univ. of N. ; 48 "Broad prophylactic rules in the area of free expression are suspect." 371 U.S. 41, In 37 U.S. 13 for example, we invalidated a state program under which taxpayers applying for a certain tax exemption bore the burden of proving that they did not advocate the overthrow of the United States Government. We held that the presumption against the taxpayer was unconstitutional because the State had "no such compelling interest at stake as to justify a short-cut procedure which must inevitably result in suppressing protected speech." at 29. More recently, we determined that the First Amendment prohibits a State from imposing liability on a newspaper for the publication of embarrassing but truthful information based on a "negligence per se" theory. See The Florida 491 U.S. 24 In language applicable to the instant case, we rejected "the broad sweep" of a standard where "liability follows automatically from publication," and we instead required "case-by-case findings" |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | follows automatically from publication," and we instead required "case-by-case findings" of harm. at 39. Similarly, I would hold in this case that the FTC cannot ignore the particular factual circumstances before it by employing a presumption of illegality in the guise of the per se rule. B The Court's approach today is all the more inappropriate because the success of the Trial Lawyers' boycott could have been attributable to the persuasiveness of its message rather than any coercive economic force. When a boycott seeks to generate public support for the passage of legislation, it may operate on a political rather than economic level, especially when the government is the target. Here, the demand for lawyers' services under the Criminal Justice Act (CJA) is *442 created by the command of the Sixth Amendment. How that demand is satisfied is determined by the political decisions of the Mayor, city council, and, because of the unique status of the District of Columbia, the Federal Government as well. As the FTC recognized, see In re Superior Court Trial Lawyers 107 F. T. 10, 72-74 a typical boycott functions by transforming its participants into a single monopolistic entity that restricts supply and increases price. See, e. g., 49 ; National Collegiate Athletic 109- The boycott in this case was completely different: it may have persuaded the consumer of the Trial Lawyers' services the District government to raise the price it paid by altering the political preferences of District officials. Prior to the boycott, these officials perceived that at a time of fiscal austerity, a pay raise for lawyers who represented criminal defendants was not likely to be well received by the voters, whatever the merits of the issue. The SCTLA campaign drew public attention to the lawyers' plight and generated enough sympathy among city residents to convince District officials, many of whom were already favorably inclined toward the Trial Lawyers' cause, that they could augment CJA compensation rates without risking their political futures. Applying the per se rule to such a complex situation ignores the possibility that the boycott achieved its goal through a politically driven increase in demand for improved quality of representation, rather than by a cartel-like restriction in supply. The Court of Appeals concluded that "it [was] possible that, lacking any market power, [the Trial Lawyers] procured a rate increase by changing public attitudes through the publicity attending the boycott," 272 U. S. App. D. 86 F.2d, at 21, or that "the publicity surrounding the boycott may have served to dissipate any public opposition that a substantial raise for lawyers |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | dissipate any public opposition that a substantial raise for lawyers who represent indigent *443 defendants had previously encountered." [4] The majority is able to reach the contrary conclusion only by disregarding the long history of attempts to raise defense lawyers' compensation levels in the District and the virtually unanimous support the Trial Lawyers enjoyed among members of the bar, the judiciary, and, indeed, officials of the city government. As the Court appears to recognize, see ante, at 421, preboycott rates were unreasonably low. City officials hardly could have reached a different conclusion. After 1970, the CJA set fees at $30 per hour for court time and $20 per hour for out-of-court time, and, despite a 147 percent increase in the Consumer Price Index, compensation remained at those levels until the boycott in 1983. Calculated in terms of 1970 dollars, at the time of the boycott CJA lawyers earned approximately $7.80 per hour for out-of-court time and $11.70 for in-court time. In contrast, in 1983 the typical billing rate for private attorneys in major metropolitan areas with 11 to 20 years of experience was $123 per hour, and the rate for those with less than two years of experience was $64 per hour. See App. in No. 86- (CADC), pp. 678-679, 807. Even attorneys receiving compensation under the Equal Access to Justice Act, 28 U.S. 2412(d)(2)(A)(ii) (1982 ed.), obtained fees of $7 per hour, with the possibility of upward adjustments to still larger sums. The Chairperson of the Judicial Conference Committee to Implement the Criminal Justice Act testified before Congress that "generally, the present Criminal Justice Act compensation rates do not even *444 cover the appointed attorney's office overhead expenses related to time devoted to representation of defendants under the Act." Criminal Justice Act: Hearings on H. R. 3233 before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 98th Cong., 1st Sess., 22 (statement of Hon. Thomas J. MacBride). David B. Isbell, then District of Columbia Bar president, warned that "unrealistic and unreasonable compensation rates have hampered the D. CJA program in attracting and retaining significant numbers of qualified criminal defense counsel." The legal community became concerned about the low level of CJA fees as early as 197. The Report on the Criminal Defense Services in the District of Columbia by the Joint Committee of the Judicial Conference of the District of Columbia Circuit and the District of Columbia Bar (Austern-Rezneck Report) concluded that the prevailing rates "drove talented attorneys out of CJA practice, and encouraged those who remained to do |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | of CJA practice, and encouraged those who remained to do a less than adequate job on their cases." 272 U. S. App. D. at 27, 86 F.2d, at 229. The Austern-Rezneck Report recommended that CJA lawyers be paid $40 per hour for time spent in or out of court, subject to a ceiling of $800 for a misdemeanor case and $1,000 for a felony case. The Report characterized this increase as " `the absolute minimum necessary to attract and hold good criminal lawyers and assure their ability to render effective representation to their clients.' " In March 1982, the District of Columbia Court System Study Committee of the District of Columbia Bar issued the Horsky Report, which recommended the identical pay increase. See Senate Committee on Governmental Affairs, Senate Print No. 98-34, 98th Cong., 1st Sess. 69 Legislation increasing the hourly rate to $0 was then introduced in the District of Columbia Council, but the bill died in committee in 1982 without a hearing. *44 In September 1982, SCTLA officials began a lobbying effort to increase CJA compensation levels. They met with Chief Judge Moultrie of the District of Columbia Superior Court, Herbert Reid, who was counsel to the Mayor, and Wiley Branton, then Dean of Howard University Law School. Chief Judge Moultrie told SCTLA representatives that he thought they deserved more money, but he declined to provide them any public support on the ground that if an increase were implemented, his court might be called upon to decide its legality. See 272 U. S. App. D. at 27, 86 F.2d, at 229. Reid informed them that the Mayor was sympathetic to their cause but would not support legislation without the urging of Chief Judge Moultrie. Dean Branton advised that the SCTLA should do " `something dramatic to attract attention in order to get any relief.' " In March 1983, District of Columbia Council Chairman David Clarke introduced a new, less ambitious bill increasing CJA lawyers' pay to $3 per hour. A wide variety of groups testified in favor of the bill at a hearing held by the city council's Judiciary Committee, reflecting an overwhelming consensus on the need to increase CJA rates.[] No one testified against the bill, though the Executive Office of the District of Columbia Courts worried about how to fund it. The Court of Appeals concluded that "Mayor Barry and other important city officials were sympathetic to the boycotters' goals and may even have been supportive of the boycott itself," n. 3, 86 F.2d, at 21, n. 3, and that certain statements by the Mayor could |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | n. 3, and that certain statements by the Mayor could be interpreted "as encouraging the [Trial Lawyers] to stage a demonstration of their political *446 muscle so that a rate increase could more easily be justified to the public." at 298, n. 3, 86 F.2d, at 22, n. 3. Taken together, these facts strongly suggest that the Trial Lawyers' campaign persuaded the city to increase CJA compensation levels by creating a favorable climate in which supportive District officials could vote for a raise without public opposition, even though the lawyers lacked the ability to exert economic pressure. As the court below expressly found, the facts at the very least do not exclude the possibility that the SCTLA succeeded due to political rather than economic power. See 86 F.2d, at 21. The majority today permits the FTC to find an expressive boycott to violate the antitrust laws, without even requiring a showing that the participants possessed market power or that their conduct triggered any anticompetitive effects. I believe that the First Amendment forecloses such an approach. II A The majority concludes that the Trial Lawyers' boycott may be enjoined without any showing of market power because "the government's interest in adhering to a uniform rule may sometimes satisfy the O'Brien test even if making an exception to the rule in a particular case might cause no serious damage." Ante, at 430 ) (emphasis added). The Court draws an analogy between the per se rule in antitrust law and categorical proscriptions against airplane stunt flying and reckless automobile driving. See ante, at 433-434. This analogy is flawed. It is beyond peradventure that sometimes no exception need be made to a neutral rule of general applicability not aimed at the content of speech; "the arrest of a newscaster for a traffic violation," for example, does not offend the First Amendment. Arcara v. Cloud Books, U.S. 697, Neither do restrictions *447 on stunt flying and reckless driving usually raise First Amendment concerns.[6] But ever since we have held that even when the government seeks to address harms entirely unconnected with the content of speech, it must leave open ample alternative channels for effective communication. See Rock Against -803; -484; ; Metromedia, v. San Diego, 43 U.S. 490, 2 ; Heffron v. International for Krishna Consciousness, 42 U.S. 640, Although sometimes such content-neutral regulations with incidental effects on speech leave open sufficient room for effective communication, application of the per se rule to expressive boycotts does not. The role of boycotts in political speech is too central, and the effective alternative avenues open to the |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | too central, and the effective alternative avenues open to the Trial Lawyers were too few, to permit the FTC to invoke the per se rule in this case. Expressive boycotts have been a principal means of political communication since the birth of the Republic. As the Court of Appeals recognized, "boycotts have historically been used as a dramatic means of communicating anger or disapproval and of mobilizing sympathy for the boycotters' cause." 272 U. S. App. D. at From the colonists' protest of the Stamp and Townsend Acts to the Montgomery bus boycott and the National Organization for Women's campaign to encourage ratification of the Equal Rights Amendment, boycotts have played a central role in our Nation's political discourse. In recent years there have *448 been boycotts of supermarkets, meat, grapes, iced tea in cans, soft drinks, lettuce, chocolate, tuna, plastic wrap, textiles, slacks, animal skins and furs, and products of Mexico, Japan, South Africa, and the Soviet Union. See Missouri v. National Organization for Women, 1304, n. (CA8), cert. denied, ; Note, Like soapbox oratory in the streets and parks, political boycotts are a traditional means of "communicating thoughts between citizens" and "discussing public questions." 1 Any restrictions on such boycotts must be scrutinized with special care in light of their historic importance as a mode of expression. Cf. Perry Education 4 The Court observes that all boycotts have "an expressive component" in the sense that participants must communicate their plans among themselves and to their target. Ante, at 431. The Court reasons that this expressive feature alone does not render boycotts immune from scrutiny under the per se rule. Otherwise, the rule could never be applied to any boycotts or to most price-fixing schemes. On this point I concur with the majority. But while some boycotts may not present First Amendment concerns, when a particular boycott appears to operate on a political rather than economic level, I believe that it cannot be condemned under the per se rule.[7] The Court disagrees and maintains that communication *449 of ideas to the public is a function not of a boycott itself but rather of media coverage, interviews, and other activities ancillary to the boycott and not prohibited by the antitrust laws. See ante, at 4. The Court also notes that other avenues of speech are open, because "[p]ublicity may be generated by any other activity that is sufficiently newsworthy." Ante, at 431. These views are flawed. First, we have already recognized that an expressive boycott necessarily involves "constitutionally protected activity." That case, in which we held that a civil rights |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | That case, in which we held that a civil rights boycott was political expression, forecloses the Court's approach today. In Claiborne JUSTICE STEVENS observed that "[t]he established elements of speech, assembly, association, and petition, `though not identical, are inseparable' " when combined in an expressive boycott. I am surprised that he now finds that the Trial Lawyers' boycott was not protected speech. In this case, as in Claiborne "[t]hrough the exercise of the[ir] First Amendment rights, petitioners sought to bring about political, social, and economic change." The Court contends that the SCTLA's motivation differed from that of the boycotters in Claiborne see ante, at 4-427, because the former sought to supplement its members' own salaries rather than to remedy racial injustice. Even if true, the different purposes of the speech can hardly render the Trial Lawyers' boycott any less expressive. Next, although the Court is correct that the media coverage of the boycott was substantial,[8] see ante, at 414, this *40 does not support the majority's argument that the boycott itself was not expressive. Indeed, that the SCTLA strove so mightily to communicate with the public and the government is an indication that it relied more on its ability to win public sympathy and persuade government officials politically than on its power to coerce the city economically. But media coverage is not the only, or even the principal, reason why the boycott was entitled to First Amendment protection. The refusal of the Trial Lawyers to accept appointments by itself communicated a powerful idea: CJA compensation rates had deteriorated so much, relatively speaking, that the lawyers were willing to forgo their livelihoods rather than return to work. By sacrificing income that they actually desired, and thus inflicting hardship on themselves as well as on the city, the lawyers demonstrated the intensity of their feelings and the depth of their commitment. The passive nonviolence of King and Gandhi are proof that the resolute acceptance of pain may communicate dedication and righteousness more eloquently than mere words ever could. A boycott, like a hunger strike, conveys an emotional message that is absent in a letter to the editor, a conversation with the mayor, or even a protest march. Cf. 403 U.S. 1, In this respect, an expressive *41 boycott is a special form of political communication. Dean Branton's advice to the Trial Lawyers that they should do "something dramatic to attract attention" was sage indeed. Another reason why expressive boycotts are irreplaceable as a means of communication is that they are essential to the "poorly financed causes of little people." It |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | essential to the "poorly financed causes of little people." It is no accident that boycotts have been used by the American colonists to throw off the British yoke and by the oppressed to assert their civil rights. See Claiborne Such groups cannot use established organizational techniques to advance their political interests, and boycotts are often the only effective route available to them. B Underlying the majority opinion are apprehensions that the Trial Lawyers' boycott was really no different from any other, and that requiring the FTC to apply a rule-of-reason analysis in this case will lead to the demise of the per se rule in the boycott area. I do not share the majority's fears. The boycott before us today is readily distinguishable from those with which the antitrust laws are concerned, on the very ground suggested by the majority: the Trial Lawyers intended to and in fact did "communicate with third parties to enlist public support for their objectives." Ante, at 431. As we have seen, in all likelihood the boycott succeeded not due to any market power wielded by the lawyers but rather because they were able to persuade the District government through political means. Other boycotts may involve no expressive features and instead operate solely on an economic level. Very few economically coercive boycotts seek notoriety both because they seek to escape detection and because they have no wider audience beyond the participants and the target. Furthermore, as the Court of Appeals noted, there may be significant differences between boycotts aimed at the government and those aimed at private parties. See 272 U. S. *42 App. D. at The government has options open to it that private parties do not; in this suit, for example, the boycott was aimed at a legislative body with the power to terminate it at any time by requiring all members of the District Bar to represent defendants pro bono. If a boycott against the government achieves its goal, it likely owes its success to political rather than market power. The Court's concern for the vitality of the per se rule, moreover, is misplaced, in light of the fact that we have been willing to apply rule-of-reason analysis in a growing number of group-boycott cases. See, e. g., Indiana Federation of 476 U. S., at 48-49; Northwest Wholesale Stationers, v. Pacific Stationery & Printing Co., -298 ; National Collegiate Athletic ; Broadcast Music, v. Columbia Broadcasting System,[9] We have recognized that "there is *43 often no bright line separating per se from Rule of Reason analysis. Per se rules may require considerable |
Justice Stevens | 1,990 | 16 | majority | FTC v. Superior Court Trial Lawyers Assn. | https://www.courtlistener.com/opinion/112356/ftc-v-superior-court-trial-lawyers-assn/ | Rule of Reason analysis. Per se rules may require considerable inquiry into market conditions before the evidence justifies a presumption of anticompetitive conduct." National Collegiate Athletic at 104, n. In short, the conclusion that per se analysis is inappropriate in this boycott case would not preclude its application in many others, nor would it create insurmountable difficulties for antitrust enforcement. The plainly expressive nature of the Trial Lawyers' campaign distinguishes it from boycotts that are the intended subjects of the antitrust laws. I respectfully dissent. JUSTICE BLACKMUN, concurring in part and dissenting in part. Like JUSTICE BRENNAN, I, too, join Parts I, II, III, and IV of the Court's opinion. But, while I agree with the reasoning of JUSTICE BRENNAN's dissent, I write separately to express my doubt whether a remand for findings of fact concerning the market power of the Superior Court Trial Lawyers Association (SCTLA or Trial Lawyers) would be warranted in the unique circumstances of this litigation. As JUSTICE BRENNAN notes, the Trial Lawyers' boycott was aimed at the District's courts and legislature, governmental bodies that had the power to terminate the boycott at any time by requiring any or all members of the District Bar including the members of SCTLA to represent indigent defendants pro bono. Attorneys are not merely participants in a competitive market for legal services; they are officers of the court. Their duty to serve the public by representing indigent defendants is not only a matter of conscience, but is also enforceable by the government's power to order such representation, either as a condition of practicing law in the District or on pain of contempt. See 287 U.S. 4, ; see also United States v. Accetturo, 842 F. 2d *44 1408, 1412-1413 ; 84 F.2d 0, 3[*] The Trial Lawyers' boycott thus was a dramatic gesture not fortified by any real economic power. They could not have coerced the District to meet their demands by brute economic force, i. e., by constricting the supply of legal services to drive up the price. Instead, the Trial Lawyers' boycott put the government in a position where it had to make a political choice between exercising its power to break the boycott or agreeing to a rate increase. The factors relevant to this choice were political, not economic: that forcing the lawyers to stop the boycott would have been unpopular, because, as it turned out, public opinion supported the boycott; and that the District officials themselves may not have genuinely opposed the rate increase, and may have welcomed the appearance of a politically expedient |
Justice Scalia | 1,997 | 9 | concurring | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | I join the Court's opinion, which thoroughly explains why the Ohio tax scheme at issue in this case does not facially discriminate against interstate commerce. I write separately to note my continuing adherence to the view that the so-called "negative" Commerce Clause is an unjustified judicial invention, not to be expanded beyond its existing domain. "The historical record provides no grounds for reading the Commerce Clause to be other than what it saysan authorization for Congress to regulate Commerce." Tyler Pipe Industries, I have previously stated that I will enforce on stare decisis grounds a "negative" self-executing Commerce Clause in two situations: (1) against a state law that facially discriminates against interstate commerce, and (2) against a state law that is indistinguishable from a type of law previously held unconstitutional by this Court. West Lynn Creamery, ; Intel Containers Int'l (collecting cases). Although petitioner contends that Ohio facially discriminates against interstate commerce with respect to natural gas sales, its argument is based on a novel premise: that private marketers engaged in the sale of natural gas are similarly situated to public utility companies. Nothing in this Court's negative Commerce Clause jurisprudence compels that conclusion. To hold that States must tax gas sales by these two types of entities equally would broaden the negative Commerce Clause beyond its existing scope, and intrude on a regulatory sphere traditionally occupied by Congress and the States. |
per_curiam | 1,980 | 200 | per_curiam | Allied Chemical Corp. v. Daiflon, Inc. | https://www.courtlistener.com/opinion/110354/allied-chemical-corp-v-daiflon-inc/ | Respondent, Daiflon, Inc., is a small importer of refrigerant gas that brought an antitrust suit against all domestic manufacturers of the gas. Petitioner E. I. du Pont de Nemours & Co. was accused of monopolizing the industry in violation of 2 of the Sherman Act, 15 U.S. C. 2. All petitioners were accused of conspiring to drive respondent out of business in violation of 1 of the Sherman Act, 15 U.S. C. 1. After a 4-week trial, the jury returned a verdict for the respondent and awarded $2.5 million in damages. In a subsequent oral order, the trial court denied petitioners' motion for a judgment notwithstanding the verdict, but granted a motion for new trial. The trial court acknowledged in its oral order that it had erred during trial in certain of its evidentiary rulings and that the evidence did not support the amount of the jury award. *34 Respondent then filed a petition for a writ of mandamus with the Court of Appeals for the Tenth Circuit requesting that it instruct the trial court to reinstate the jury verdict. The Court of Appeals, without a transcript of the trial proceedings before it,[1] issued a writ of mandamus directing the trial court to restore the jury verdict as to liability but permitting the trial court to proceed with a new trial on damages. Daiflon, Petitioners seek review of this action of the Court of Appeals by their petition for certiorari with this Court. An order granting a new trial is interlocutory in nature and therefore not immediately appealable. The question presented by this petition is therefore whether a litigant may obtain a review of an order concededly not appealable by way of mandamus. If such review were permissible, then the additional question would be presented as to whether the facts in this particular case warrant the issuance of the writ. It is not disputed that the remedy of mandamus is a drastic one, to be invoked only in extraordinary situations. ; Bankers Life & Cas. (13); Ex parte Fahey, On direct appeal from a final decision, a court of appeals has broad authority to "modify, vacate, set aside or reverse" an order of a district court, and it may direct such further action on remand "as may be just under the circumstances." 28 U.S. C. 2106. By contrast, under the All Writs Act, 28 U.S. C. 1651 (a), courts of appeals may issue a writ of mandamus only when "necessary or appropriate in aid of their respective jurisdictions." *35 Although a simple showing of error may suffice to obtain a |
per_curiam | 1,980 | 200 | per_curiam | Allied Chemical Corp. v. Daiflon, Inc. | https://www.courtlistener.com/opinion/110354/allied-chemical-corp-v-daiflon-inc/ | a simple showing of error may suffice to obtain a reversal on direct appeal, to issue a writ of mandamus under such circumstances "would undermine the settled limitations upon the power of an appellate court to review interlocutory orders." This Court has recognized that the writ of mandamus "has traditionally been used in the federal courts only `to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.'" at quoting Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy. at The reasons for this Court's chary authorization of mandamus as an extraordinary remedy have often been explained. See Kerr v. United District Court, 4 U.S. 394, Its use has the unfortunate consequence of making a district court judge a litigant, and it indisputably contributes to piecemeal appellate litigation. It has been Congress' determination since the Judiciary Act of 1789 that as a general rule appellate review should be postponed until after final judgment has been rendered by the trial court. A judicial readiness to issue the writ of mandamus in anything less than an extraordinary situation would "run the real risk of defeating the very policies sought to be furthered by that judgment of Congress." In order to insure that the writ will issue only in extraordinary circumstances, this Court has required that a party seeking issuance have no other adequate means to attain the relief he desires, ibid.; at and that he satisfy the "burden of showing that [his] right to issuance of the writ is `clear and indisputable.'" Bankers Life & Cas. quoting United v. *36 Duell, In short, our cases have answered the question as to the availability of mandamus in situations such as this with the refrain: "What never? Well, hardly ever!" A trial court's ordering of a new trial rarely, if ever, will justify the issuance of a writ of mandamus. On the contrary, such an order is not an uncommon feature of any trial which goes to verdict. A litigant is free to seek review of the propriety of such an order an direct appeal after a final judgment has been entered. Consequently, it cannot be said that the litigant "has no other adequate means to seek the relief he desires." The authority to grant a new trial, moreover, is confided almost entirely to the exercise of discretion on the part of the trial court. Where a matter is committed to discretion, it cannot be said that |
Justice Brennan | 1,982 | 13 | concurring | Alfred L. Snapp & Son, Inc. v. Puerto Rico Ex Rel. Barez | https://www.courtlistener.com/opinion/110789/alfred-l-snapp-son-inc-v-puerto-rico-ex-rel-barez/ | As the Court notes, ante, at 603, n. 12, the question whether a State can bring a parens patriae action within the original jurisdiction of this Court may well turn on considerations quite different from those implicated where the State *611 seeks to press a parens patriae claim in the district courts. The Framers, in establishing original jurisdiction in this Court for suits "in which a State shall be a Party," Art. III, 2, cl. 2, and Congress, in implementing the grant of original jurisdiction with respect to suits between States, 28 U.S. C. 1251(a) (1976 ed., Supp. IV), may well have conceived of a somewhat narrower category of cases as presenting issues appropriate for initial determination in this Court than the full range of cases to which a State may have an interest cognizable by a federal court. The institutional limits on the Court's ability to accommodate such suits accentuates the need for more restrictive access to the original docket. In addition, because the judicial power of the United States does not extend to suits "commenced or prosecuted against one of the United States by Citizens of another State," U. S. Const., Amdt. 11, where one State brings a suit parens patriae against another State, a more circumspect inquiry may be required in order to ensure that the provisions of the Eleventh Amendment are not being too easily circumvented by the device of the State's bringing suit on behalf of some private party. Of course, none of the concerns that might counsel for a restrictive approach to the question of parens patriae standing is present in this case. In cases such as the present one, I can discern no basis either in the Constitution or in policy for denying a State the opportunity to vindicate the federal rights of its citizens. At the very least, the prerogative of a State to bring suits in federal court should be commensurate with the ability of private organizations. A private organization may bring suit to vindicate its own concrete interest in performing those activities for which it was formed. E. g., Havens Realty ;[1]Arlington Heights ; See also Gladstone, Cf. Sierra[2] There is no doubt that Puerto Rico's interest in this litigation compares favorably to interests of the private organizations, and municipality, in the cases cited above. More significantly, a State is no ordinary litigant. As a sovereign entity, a State is entitled to assess its needs, and decide which concerns of its citizens warrant its protection and intervention. I know of nothing except the Constitution or overriding federal law |
Justice Rehnquist | 1,982 | 19 | majority | Smith v. Phillips | https://www.courtlistener.com/opinion/110645/smith-v-phillips/ | Respondent was convicted in November 1974 by a New York state-court jury on two counts of murder and one count of attempted murder. After trial, respondent moved to vacate his conviction pursuant to 330.30 of the N. Y. Crim. Proc. Law (McKinney 1971) (CPL),[1] and a hearing on his motion *211 was held pursuant to CPL 330.40.[2] The hearing was held before the justice who presided at respondent's trial, and the motion to vacate was denied by him in an opinion concluding "beyond a reasonable doubt" that the events giving rise to the motion did not influence the verdict. The Appellate Division of the Supreme Court, First Judicial Department, affirmed the conviction without opinion. The New York Court of Appeals denied leave to appeal. Some four years after the denial of leave to appeal by the Court of Appeals, respondent sought federal habeas relief in the United States District Court for the Southern District of New York on the same ground which had been asserted in the state post-trial hearing. The District Court granted the writ, and the United States Court of Appeals for the Second Circuit affirmed on a somewhat different ground. We granted certiorari to consider the important questions of federal constitutional law in relation to federal habeas proceedings raised by these decisions. We now reverse. *212 I A Respondent's original motion to vacate his conviction was based on the fact that a juror in respondent's case, one John Dana Smith, submitted during the trial an application for employment as a major felony investigator in the District Attorney's Office.[3] Smith had learned of the position from a friend who had contacts within the office and who had inquired on Smith's behalf without mentioning Smith's name or the fact that he was a juror in respondent's trial. When Smith's application was received by the office, his name was placed on a list of applicants but he was not then contacted and was not known by the office to be a juror in respondent's trial. During later inquiry about the status of Smith's application, the friend mentioned that Smith was a juror in respondent's case. The attorney to whom the friend disclosed this fact promptly informed his superior, and his superior in turn informed the Assistant District Attorney in charge of hiring investigators. The following day, more than one week before the end of respondent's trial, the assistant informed the two attorneys actually prosecuting respondent that one of the jurors had applied to the office for employment as an investigator. The two prosecuting attorneys conferred about the application but concluded |
Justice Rehnquist | 1,982 | 19 | majority | Smith v. Phillips | https://www.courtlistener.com/opinion/110645/smith-v-phillips/ | The two prosecuting attorneys conferred about the application but concluded that, in view of Smith's statements during voir dire,[4] there was no need to inform the trial court or defense *213 counsel of the application. They did instruct attorneys in the office not to contact Smith until after the trial had ended, and took steps to insure that they would learn no information about Smith that had not been revealed during voir dire. When the jury retired to deliberate on November 20th, three alternate jurors were available to substitute for Smith, and neither the trial court nor the defense counsel knew of his application. The jury returned its verdict on November 21st. The District Attorney first learned of Smith's application on December 4th. Five days later, after an investigation to verify the information, he informed the trial court and defense counsel of the application and the fact that its existence was known to attorneys in his office at some time before the conclusion of the trial. Respondent's attorney then moved to set aside the verdict. At the hearing before the trial judge, Justice Harold Birns, the prosecuting attorneys explained their decision not to disclose the application and Smith explained that he had seen nothing improper in submitting the application during the trial. Justice Birns, "[f]rom all the evidence adduced" at the hearing, 384 N. Y. S. 2d, at 912, found that "Smith's letter was indeed an indiscretion" but that it "in no way reflected a premature conclusion as to the [respondent's] guilt, or prejudice against the [respondent], or an inability to consider the guilt or innocence of the [respondent] *214 solely on the evidence." 384 N. Y. S. 2d, at 915. With respect to the conduct of the prosecuting attorneys, Justice Birns found "no evidence" suggesting "a sinister or dishonest motive with respect to Mr. Smith's letter of application." 384 N. Y. S. 2d, at 910. B In his application for federal habeas relief, respondent contended that he had been denied due process of law under the Fourteenth Amendment to the United States Constitution by Smith's conduct. The District Court found insufficient evidence to demonstrate that Smith was actually Nonetheless, the court imputed bias to Smith because "the average man in Smith's position would believe that the verdict of the jury would directly affect the evaluation of his job application." Accordingly, the court ordered respondent released unless the State granted him a new trial within 90 days. The United States Court of Appeals for the Second Circuit affirmed by a divided vote. The court noted that "it is at best |
Justice Rehnquist | 1,982 | 19 | majority | Smith v. Phillips | https://www.courtlistener.com/opinion/110645/smith-v-phillips/ | divided vote. The court noted that "it is at best difficult and perhaps impossible to learn from a juror's own testimony after the verdict whether he was in fact `impartial,' " but the court did not consider whether Smith was actually or impliedly Rather, the Court of Appeals affirmed respondent's release simply because "the failure of the prosecutors to disclose their knowledge denied [respondent] due process." The court explained: "To condone the withholding by the prosecutor of information casting substantial doubt as to the impartiality of a juror, such as the fact that he has applied to the prosecutor for employment, would not be fair to a defendant and would ill serve to maintain public confidence in the judicial process."[5] *215 II In argument before this Court, respondent has relied primarily on reasoning adopted by the District Court.[6] He contends that a court cannot possibly ascertain the impartiality of a juror by relying solely upon the testimony of the juror in question. Given the human propensity for self-justification, respondent argues, the law must impute bias to jurors in Smith's position. We disagree. This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias. For example, in a juror in a federal criminal trial was approached by someone offering money in exchange for a favorable verdict. An FBI agent was assigned to investigate the attempted bribe, and the agent's report was reviewed by the trial judge and the prosecutor without disclosure to defense counsel. When they learned of the incident after trial, the defense attorneys moved that the verdict be vacated, alleging that "they would have moved for a mistrial and requested that the juror in question be replaced by an alternate juror" had the incident been disclosed to them during trial. This Court recognized the seriousness not only of the attempted bribe, which it characterized as "presumptively prejudicial," but also of the undisclosed investigation, which was "bound to impress the juror and [was] very apt to do so *216 unduly." Despite this recognition, and a conviction that "[t]he integrity of jury proceedings must not be jeopardized by unauthorized invasions,' ibid., the Court did not require a new trial like that ordered in this case. Rather, the Court instructed the trial judge to "determine the circumstances, the impact thereof upon the juror, and whether or not [they were] prejudicial, in a hearing with all interested parties permitted to participate." In other words, the Court ordered precisely the remedy which was accorded by Justice Birns in |
Justice Rehnquist | 1,982 | 19 | majority | Smith v. Phillips | https://www.courtlistener.com/opinion/110645/smith-v-phillips/ | precisely the remedy which was accorded by Justice Birns in this case. Even before the decision in Remmer, this Court confronted allegations of implied juror bias in Dennis was convicted of criminal contempt for failure to appear before the Committee on Un-American Activities of the House of Representatives. He argued that the jury which convicted him, composed primarily of employees of the United States Government, was inherently biased because such employees were subject to Executive Order No. 9835, 3 CFR 627 (1943-1948 Comp.), which provided for their discharge upon reasonable grounds for belief that they were disloyal to the Government. Dennis contended that such employees would not risk the charge of disloyalty or the termination of their employment which might result from a vote for acquittal. The Court rejected this claim of implied bias, noting that Dennis was "free to show the existence of actual bias" but had failed to do so. The Court thus concluded: "A holding of implied bias to disqualify jurors because of their relationship with the Government is no longer permissible. Preservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury." See also ; United Our decision last Term in also treated a claim of implied juror bias. Appellants in Chandler were convicted of various theft crimes at a *217 jury trial which was partially televised under a new Canon of Judicial Ethics promulgated by the Supreme Court. They claimed that the unusual publicity and sensational courtroom atmosphere created by televising the proceedings would influence the jurors and preclude a fair trial. Consistent with our previous decisions, we held that "the appropriate safeguard against such prejudice is the defendant's right to demonstrate that the media's coverage of his case be it printed or broadcast compromised the ability of the particular jury that heard the case to adjudicate fairly." Because the appellants did "not [attempt] to show with any specificity that the presence of cameras impaired the ability of the jurors to decide the case on only the evidence before them," we refused to set aside their conviction. These cases demonstrate that due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and |
Justice Rehnquist | 1,982 | 19 | majority | Smith v. Phillips | https://www.courtlistener.com/opinion/110645/smith-v-phillips/ | affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may properly be made at a hearing like that ordered in Remmer and held in this case.[7] *218 The District Court and the Court of Appeals disregarded this doctrine: they held that a post-trial hearing comporting with our decisions in Remmer and other cases prosecuted in the federal courts was constitutionally insufficient in a state court under the Due Process Clause of the Fourteenth Amendment. It seems to us to follow "as the night the day" that if in the federal system a post-trial hearing such as that conducted here is sufficient to decide allegations of juror partiality, the Due Process Clause of the Fourteenth Amendment cannot possibly require more of a state court system.[8] Of equal importance, this case is a federal habeas action in which Justice Birns' findings are presumptively correct under 28 U.S. C. 2254(d). We held last Term that federal courts in such proceedings must not disturb the findings of state courts unless the federal habeas court articulates some basis for disarming such findings of the statutory presumption that they are correct and may be overcome only by convincing evidence. Here neither the District Court nor the Court of Appeals took issue with the findings of Justice Birns. III As already noted, the Court of Appeals did not rely upon the District Court's imputation of bias. Indeed, it did not even reach the question of juror bias, holding instead that the prosecutors' failure to disclose Smith's application, without more, violated respondent's right to due process of law. Respondent contends that the Court of Appeals thereby correctly *219 preserved "the appearance of justice." Brief for Respondent 7. This contention, too, runs contrary to our decided cases. Past decisions of this Court demonstrate that the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. In for example, the prosecutor failed to disclose an admission by a participant in the murder which corroborated the defendant's version of the crime. The Court held that a prosecutor's suppression of requested evidence "violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Applying this standard, the Court found the undisclosed admission to be relevant to punishment and thus ordered |
Justice Rehnquist | 1,982 | 19 | majority | Smith v. Phillips | https://www.courtlistener.com/opinion/110645/smith-v-phillips/ | undisclosed admission to be relevant to punishment and thus ordered that the defendant be resentenced. Since the admission was not material to guilt, however, the Court concluded that the trial itself complied with the requirements of due process despite the prosecutor's wrongful suppression.[9] The Court thus recognized that the aim of due process "is not punishment of society for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused." This principle was reaffirmed in United There, we held that a prosecutor must disclose unrequested evidence which would create a reasonable doubt of guilt that did not otherwise exist. Consistent *220 with Brady, we focused not upon the prosecutor's failure to disclose, but upon the effect of nondisclosure on the trial: "Nor do we believe the constitutional obligation [to disclose unrequested information] is measured by the moral culpability, or willfulness, of the prosecutor. If evidence highly probative of innocence is in his file, he should be presumed to recognize its significance even if he has actually overlooked it. Conversely, if evidence actually has no probative significance at all, no purpose would be served by requiring a new trial simply because an inept prosecutor incorrectly believed he was suppressing a fact that would be vital to the defense. If the suppression of the evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor."[10] In light of this principle, it is evident that the Court of Appeals erred when it concluded that prosecutorial misconduct alone requires a new trial. We do not condone the conduct of the prosecutors in this case. Nonetheless, as demonstrated in Part II of this opinion, Smith's conduct did not impair his ability to render an impartial verdict. The trial judge expressly so 87 Misc. 2d, 384 N. Y. S. 2d, at 915. *221 Therefore, the prosecutors' failure to disclose Smith's job application, although requiring a post-trial hearing on juror bias, did not deprive respondent of the fair trial guaranteed by the Due Process Clause. IV A federally issued writ of habeas corpus, of course, reaches only convictions obtained in violation of some provision of the United States Constitution. As we said in : "Before a federal court may overturn a conviction resulting from a state trial it must be established not merely that the [State's action] is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Absent such a constitutional violation, it was error for the lower courts in this case |
per_curiam | 1,975 | 200 | per_curiam | Test v. United States | https://www.courtlistener.com/opinion/109180/test-v-united-states/ | Petitioner was convicted under 21 U.S. C. 841 (a) (1) for distribution of a hallucinogenic drug commonly known as LSD. Prior to trial he filed a motion to dismiss his *29 indictment claiming that the master lists[1] from which his grand jury had been, and petit jury would be, selected systematically excluded disproportionate numbers of people with Spanish surnames, students, and blacks. These exclusions, petitioner alleged, violated both his Sixth Amendment right to an impartial jury and the provisions of the Jury Selection and Service Act of 1968, 28 U.S. C. 1861 et seq. Attached to this motion was an affidavit by petitioner's counsel stating facts that had been disclosed by testimony at a jury challenge in another case, and which petitioner claimed supported his challenge. Also accompanying the motion was another motion requesting permission to inspect and copy the jury lists "pertaining to the grand and petit juries in the instant indictment." Petitioner asserted that inspection was necessary for discovering evidence to buttress his claims. The District Court rejected the jury challenge and denied the motion to inspect the lists. Petitioner renewed his claims before the Court of Appeals for the Tenth Circuit, but that court affirmed his conviction without discussing these issues. We granted certiorari to decide whether the Jury Selection and Service Act required that petitioner be permitted to inspect the jury lists. In its brief and oral argument before this Court, the United States has agreed that petitioner was erroneously denied access to the lists and urges us to remand the case. We also agree with petitioner.[2] Section 1867 (f) of the Act, in relevant part, provides: "The contents of records or papers used by the jury commission or clerk in connection with the jury *30 selection process shall not be disclosed, except as may be necessary in the preparation or presentation of a motion [challenging compliance with selection procedures] under this section The parties in a case shall be allowed to inspect, reproduce, and copy such records or papers at all reasonable times during the preparation and pendency of such a motion." (Emphasis supplied.) This provision makes clear that a litigant[3] has essentially an unqualified right to inspect jury lists.[4] It grants access in order to aid parties in the "preparation" of motions challenging jury-selection procedures. Indeed, without inspection, a party almost invariably would be unable to determine whether he has a potentially meritorious jury challenge. Thus, an unqualified right to inspection is required not only by the plain text of the statute, but also by the statute's overall purpose of insuring "grand and petit |
Justice Breyer | 2,002 | 2 | majority | Howsam v. Dean Witter Reynolds, Inc. | https://www.courtlistener.com/opinion/122248/howsam-v-dean-witter-reynolds-inc/ | This case focuses upon an arbitration rule of the National Association of Securities Dealers (NASD). The rule states that no dispute "shall be eligible for submission to arbitration where six (6) years have elapsed from the occurrence or event giving rise to the dispute." NASD Code of Arbitration Procedure 10304 (1984) (NASD Code or Code). We must decide whether a court or an NASD arbitrator should apply the rule to the underlying controversy. We conclude that the matter is for the arbitrator. I The underlying controversy arises out of investment advice that Dean Witter Reynolds, Inc. (Dean Witter), provided its client, Karen Howsam, when, some time between 1986 and 1994, it recommended that she buy and hold interests in four limited partnerships. Howsam says that Dean Witter misrepresented the virtues of the partnerships. The resulting controversy falls within their standard Client Service Agreement's arbitration clause, which provides: "[A]ll controversies concerning or arising from any account any transaction or the construction, performance or breach of any agreement between us shall be determined by arbitration before any self-regulatory organization or exchange of which Dean Witter is a member." App. 6-7. *82 The agreement also provides that Howsam can select the arbitration forum. And Howsam chose arbitration before the NASD. To obtain NASD arbitration, Howsam signed the NASD's Uniform Submission Agreement. That agreement specified that the "present matter in controversy" was submitted for arbitration "in accordance with" the NASD's "Code of Arbitration Procedure." And that Code contains the provision at issue here, a provision stating that no dispute "shall be eligible for submission where six (6) years have elapsed from the occurrence or event giving rise to the dispute." NASD Code 10304. After the Uniform Submission Agreement was executed, Dean Witter filed this lawsuit in Federal District Court. It asked the court to declare that the dispute was "ineligible for arbitration" because it was more than six years old. App. 45. And it sought an injunction that would prohibit Howsam from proceeding in arbitration. The District Court dismissed the action on the ground that the NASD arbitrator, not the court, should interpret and apply the NASD rule. The Court of Appeals for the Tenth Circuit, however, reversed. In its view, application of the NASD rule presented a question of the underlying dispute's "arbitrability"; and the presumption is that a court, not an arbitrator, will ordinarily decide an "arbitrability" question. See, e. g., First of Chicago, The Courts of Appeals have reached different conclusions about whether a court or an arbitrator primarily should interpret and apply this particular NASD rule. Compare, e. g., (holding |
Justice Breyer | 2,002 | 2 | majority | Howsam v. Dean Witter Reynolds, Inc. | https://www.courtlistener.com/opinion/122248/howsam-v-dean-witter-reynolds-inc/ | and apply this particular NASD rule. Compare, e. g., (holding that the question is for the court); J. E. Liss & with PaineWebber (holding that NASD 15, currently 10304, is presumptively for the arbitrator); Smith Barney Shearson, We *83 granted Howsam's petition for certiorari to resolve this disagreement. And we now hold that the matter is for the arbitrator. This Court has determined that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." ; see also First Although the Court has also long recognized and enforced a "liberal federal policy favoring arbitration agreements," Moses H. Cone Memorial it has made clear that there is an exception to this policy: The question whether the parties have submitted a particular dispute to arbitration, i. e., the "question of arbitrability," is "an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise." AT&T ; First We must decide here whether application of the NASD time limit provision falls into the scope of this last-mentioned interpretive rule. Linguistically speaking, one might call any potentially dispositive gateway question a "question of arbitrability," for its answer will determine whether the underlying controversy will proceed to arbitration on the merits. The Court's case law, however, makes clear that, for purposes of applying the interpretive rule, the phrase "question of arbitrability" has a far more limited scope. See The Court has found the phrase applicable in the kind of narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter, where they are not likely to have thought that they had agreed that an arbitrator would do so, and, consequently, where reference of the gateway dispute to the court avoids the risk of *84 forcing parties to arbitrate a matter that they may well not have agreed to arbitrate. Thus, a gateway dispute about whether the parties are bound by a given arbitration clause raises a "question of arbitrability" for a court to decide. See ; John & Sons, Similarly, a disagreement about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy is for the court. See, e. g., AT&T ; At the same time the Court has found the phrase "question of arbitrability" not applicable in other kinds of general circumstance where parties would likely expect that an arbitrator would decide the gateway matter. Thus "`procedural' questions which grow out of the dispute and bear on its final disposition" are presumptively not for the judge, |
Justice Breyer | 2,002 | 2 | majority | Howsam v. Dean Witter Reynolds, Inc. | https://www.courtlistener.com/opinion/122248/howsam-v-dean-witter-reynolds-inc/ | on its final disposition" are presumptively not for the judge, but for an arbitrator, to decide. John So, too, the presumption is that the arbitrator should decide "allegation[s] of waiver, delay, or a like defense to arbitrability." Moses H. Cone Memorial Hospital, -25. Indeed, the Revised Uniform Arbitration Act of (RUAA), seeking to "incorporate *85 the holdings of the vast majority of state courts and the law that has developed under the [Federal Arbitration Act]," states that an "arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled." RUAA 6(c), and comment 2, 7 U. L. A. 12-13 (Supp. 2002). And the comments add that "in the absence of an agreement to the contrary, issues of substantive arbitrability are for a court to decide and issues of procedural arbitrability, i. e., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide." 6, comment 2, 7 U. L. A., at 13 Following this precedent, we find that the applicability of the NASD time limit rule is a matter presumptively for the arbitrator, not for the judge. The time limit rule closely resembles the gateway questions that this Court has found not to be "questions of arbitrability." E. g., Moses H. Cone Memorial Hospital, -25 Such a dispute seems an "aspec[t] of the [controversy] which called the grievance procedures into play." John Moreover, the NASD arbitrators, comparatively more expert about the meaning of their own rule, are comparatively better able to interpret and to apply it. In the absence of any statement to the contrary in the arbitration agreement, it is reasonable to infer that the parties intended the agreement to reflect that understanding. Cf. First 514 U. S., -945. And for the law to assume an expectation that aligns (1) decisionmaker with (2) comparative expertise will help better to secure a fair and expeditious resolution of the underlying controversya goal of arbitration systems and judicial systems alike. We consequently conclude that the NASD's time limit rule falls within the class of gateway procedural disputes that do not present what our cases have called "questions of arbitrability." *86 And the strong pro-court presumption as to the parties' likely intent does not apply. I Dean Witter argues that, in any event, i. e., even without an antiarbitration presumption, we should interpret the contracts between the parties here as calling for judicial determination of the time limit matter. Howsam's execution of a Uniform Submission Agreement with the NASD in 1997 effectively incorporated the NASD Code |
Justice Breyer | 2,002 | 2 | majority | Howsam v. Dean Witter Reynolds, Inc. | https://www.courtlistener.com/opinion/122248/howsam-v-dean-witter-reynolds-inc/ | with the NASD in 1997 effectively incorporated the NASD Code into the parties' agreement. Dean Witter notes the Code's time limit rule uses the word "eligible." That word, in Dean Witter's view, indicates the parties' intent for the time limit rule to be resolved by the court prior to arbitration. We do not see how that is so. For the reasons stated in Part parties to an arbitration contract would normally expect a forum-based decisionmaker to decide forum-specific procedural gateway matters. And any temptation here to place special antiarbitration weight on the appearance of the word "eligible" in the NASD Code rule is counterbalanced by a different NASD rule; that rule states that "arbitrators shall be empowered to interpret and determine the applicability of all provisions under this Code." NASD Code 10324. Consequently, without the help of a special arbitration-disfavoring presumption, we cannot conclude that the parties intended to have a court, rather than an arbitrator, interpret and apply the NASD time limit rule. And as we held in Part that presumption does not apply. IV For these reasons, the judgment of the Tenth Circuit is Reversed. JUSTICE O'CONNOR took no part in the consideration or decision of this case. *87 JUSTICE THOMAS, concurring in the judgment. |
Justice Harlan | 1,970 | 22 | concurring | Schacht v. United States | https://www.courtlistener.com/opinion/108149/schacht-v-united-states/ | I join Part I of the Court's opinion. With respect to Part II, I agree with the Court's rejection of the Government's "jurisdictional" contention premised on the untimely filing of the petition for certiorari. In my view, however, that contention deserves fuller consideration than has been accorded it in the Court's opinion. I The Court's opinion does not fully come to grips with the Solicitor General's position. The Court rejects the argument that untimeliness under Rule 22 (2) should be given jurisdictional effect by stating, in part, that the Rule "contains no language that calls for so harsh an interpretation." In this regard, however, the time limitation found in Rule 22 (2) is no different from those established by statute;[1] neither makes explicit reference to waivers of the limitation. In the absence of language providing for waiver, we have without exception treated the statutory limitations as jurisdictional.[2] The Solicitor General asks why we should not do the same under our Rule. This issue, i. e., why we treat time requirements *66 under our Rule differently from the requirements imposed by statute, is hardly acknowledged in the Court's opinion. Moreover, although it is true that and held that the Court could waive untimeliness under our Rule, neither opinion explained why this is so. The Solicitor General does not belittle those two cases merely because each dealt with the problem in a footnote, but rather urges that they are inconclusive because neither gave reasons for the conclusion.[3] II My own analysis of the issue presented here begins with an examination of the statutory authority for Rule 22 (2). This is found in what is now 18 U.S. C. 3772,[4] a provision authorizing this Court to prescribe *67 post-verdict rules of practice and procedure in criminal cases. Section 3772 specifically delegates to this Court the power to promulgate rules prescribing "the times for and manner of taking appeals [to the Courts of Appeals] and applying for writs of certiorari" While the legislative history of this provision evinces a congressional concern over undue delays in the disposition of criminal cases,[5] the broad terms of the statutory language, as well as what was written in the committee reports,[6] convince me that Congress' purpose was to give this Court the freedom to decide what time limits should apply. Under the unqualified delegation found in 3772, I have no doubts concerning this Court's authority to promulgate a rule that required certiorari petitions to be filed within 30 days of the judgment below but that expressly provided that this requirement could be waived for good cause shown, in |
Justice Harlan | 1,970 | 22 | concurring | Schacht v. United States | https://www.courtlistener.com/opinion/108149/schacht-v-united-states/ | this requirement could be waived for good cause shown, in order to avoid unfairness in extraordinary cases. I also think the Court might promulgate a rule that expressly provided that untimeliness could not be waived even for "excusable neglect"in other words a "jurisdictional rule."[7] *68 Rule 22 (2), as promulgated, contains no express provision allowing for waiver. It is clear from prior decisions that the Court has interpreted the rule to allow for such a waiver, however.[8] So interpreted, I find Rule 22 (2) no less authorized under 18 U.S. C. 3772 than would be a rule that by its terms provided expressly for the possibility of a waiver. Nor do I find it at all anomalous that this Court on occasion waives the time limitations imposed by its own Rules and yet treats time requirements imposed by statute as jurisdictional. As a matter of statutory interpretation, the Court has not presumed the right to extend time limits specified in statutes where there is no indication of a congressional purpose to authorize the Court to do so. Because we cannot "waive" congressional enactments, the statutory time limits are treated as jurisdictional. On the other hand, for the time requirement of Rule 22 (2), established under a broad statutory delegation, it is appropriate to apply the "general principle" that " `[i]t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it,' " American Farm quoting from III Although I therefore conclude that this Court possesses the discretion to waive the time requirements of Rule *69 22 (2), it must be recognized that such requirements are essential to an orderly appellate process. Consequently, I believe our discretion must be exercised sparingly, and only when an adequate reason exists to excuse noncompliance with our Rules. In the present case, I agree with the Court that petitioner has adequately explained why he failed to meet our time requirements. On this basis I concur in Part II of the Court's opinion. MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE STEWART join, concurring in the result. I agree that Congress cannot constitutionally distinguish between those theatrical performances that do and those that do not "tend to discredit" the military, in authorizing persons not on active duty to wear a uniform. I do not agree, however, with the Court's conclusion that as a matter of law petitioner must be found to have been engaged in |
Justice Harlan | 1,970 | 22 | concurring | Schacht v. United States | https://www.courtlistener.com/opinion/108149/schacht-v-united-states/ | law petitioner must be found to have been engaged in a "theatrical production" within the meaning of 10 U.S. C. 772 (f). That issue, it seems to me, is properly left to the determination of the jury. The United States has argued that the exception for "theatrical productions" must be limited to performances in a setting equivalent to a playhouse or theater where observers will necessarily be aware that they are watching a make-believe performance. Under this interpretation, the Government suggests, petitioner must be found as a matter of law not to have been engaged in a "theatrical production"; hence, his conviction for unauthorized wearing of the uniform is lawful without regard to the validity of the "tend to discredit" proviso to 772 (f). The Court, on the other hand, while refusing to assay a definition of the statutory language, flatly declares that under any interpretation, Congress could not possibly have meant to exclude petitioner's "street skit" from the class of "theatrical productions." Neither extreme, in my view, is correct. The critical question *70 in deciding what is to count as a "theatrical production" ought to be whether or not, considering all the circumstances of the performance, an ordinary observer would have thought he was seeing a fictitious portrayal rather than a piece of reality. And, although the judge's instructions here did not precisely reflect this interpretation, this question seems eminently suited to resolution by the jury. Under proper instructions, then, a jury could have concluded that no theatrical production was involved, in which case the verdict should be sustained. However, the judge's instructions also permitted conviction on a finding that petitioner was engaged in a theatrical production, but that the production tended to discredit the military. See App. 51-54. Since the general verdict does not disclose which of these findingsonly one of which can constitutionally entail conviction was the actual finding, the conviction must of course be reversed. I thus join the judgment of reversal but find it neither necessary nor correct to hold that petitioner's "theatrics" perforce amounted to a "theatrical production." |
Justice White | 1,983 | 6 | majority | Barefoot v. Estelle | https://www.courtlistener.com/opinion/111017/barefoot-v-estelle/ | We have two questions before us in this case: whether the District Court erred on the merits in rejecting the petition for habeas corpus filed by petitioner, and whether the Court of Appeals for the Fifth Circuit correctly denied a stay of execution of the death penalty pending appeal of the District Court's judgment. I On November 14, 19, petitioner was convicted of the capital murder of a police officer in Bell County, Tex. A separate sentencing hearing before the same jury was then held to determine whether the death penalty should be imposed. Under Tex. Code Crim. Proc. Ann., Art. 37.071[1] two special questions were to be submitted to the *884 jury: whether the conduct causing death was "committed deliberately and with reasonable expectation that the death of the deceased or another would result"; and whether "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." The State introduced into evidence petitioner's prior convictions and his reputation for lawlessness. The State also called two psychiatrists, John Holbrook and James Grigson, who, in response to hypothetical questions, testified that petitioner would probably commit further acts of violence and represent a continuing threat to society. The jury answered both of the questions put to them in the affirmative, a result which required the imposition of the death penalty. On appeal to the Texas Court of Criminal Appeals, petitioner urged, among other submissions, that the use of psychiatrists at the punishment hearing to make predictions *885 about petitioner's future conduct was unconstitutional because psychiatrists, individually and as a class, are not competent to predict future dangerousness. Hence, their predictions are so likely to produce erroneous sentences that their use violated the Eighth and Fourteenth Amendments. It was also urged, in any event, that permitting answers to hypothetical questions by psychiatrists who had not personally examined petitioner was constitutional error. The court rejected all of these contentions and affirmed the conviction and sentence on March 12, 1980, ; rehearing was denied on April 30, 1980. Petitioner's execution was scheduled for September 17, 1980. On July 29, this Court granted a stay of execution pending the filing and disposition of a petition for certiorari, which was filed and then denied on June 29, 1981. Petitioner's execution was again scheduled by the state courts, this time for October 13, 1981. An application for habeas corpus to the Texas Court of Criminal Appeals was denied on October 7, 1981, whereafter a petition for habeas corpus was filed in the United States District Court for the |
Justice White | 1,983 | 6 | majority | Barefoot v. Estelle | https://www.courtlistener.com/opinion/111017/barefoot-v-estelle/ | was filed in the United States District Court for the Western District of Texas. Among other issues, petitioner raised the same claims with respect to the use of psychiatric testimony that he had presented to the state courts. The District Court stayed petitioner's execution pending action on the petition. An evidentiary hearing was held on July 28, at which petitioner was represented by competent counsel. On November 9, the District Court filed its findings and conclusions, rejecting each of the several grounds asserted by petitioner. The writ was accordingly denied; also, the stay of petitioner's death sentence was vacated. The District Court, however, granted petitioner's motion to proceed in forma pauperis and issued a certificate of probable cause pursuant to 28 U.S. C. 2253, which provides that an appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a state court "unless the justice or judge who *886 rendered the order or a circuit justice or judge issues a certificate of probable cause." Notice of appeal was filed on November 24, At this point, the Texas courts set January 25, as the new execution date. A petition for habeas corpus and motion for stay of execution were then denied by the Texas Court of Criminal Appeals on December 21, and another motion for stay of execution was denied by the same court on January 11, On January 14, petitioner moved the Court of Appeals for the Fifth Circuit to stay his execution pending consideration of his appeal from the denial of his petition for habeas corpus. On January 17, the parties were notified to present briefs and oral argument to the court on January 19. The case was heard on January 19, and, on January 20, the Court of Appeals issued an opinion and judgment denying the stay. The court's opinion recited that the court had studied the briefs and record filed and had heard oral argument at which petitioner's attorney was allowed unlimited time to discuss any matter germane to the case. The Court of Appeals was of the view that by giving the parties unlimited opportunity to brief and argue the merits as they saw fit, the requirements set forth in this Court's cases, such as and were satisfied. As the court understood those cases, when a certificate of probable cause is issued by the district court, the court of appeals must give the parties an opportunity to address the merits. In its view, the parties had been |
Justice White | 1,983 | 6 | majority | Barefoot v. Estelle | https://www.courtlistener.com/opinion/111017/barefoot-v-estelle/ | address the merits. In its view, the parties had been given "an unlimited opportunity to make their contentions upon the underlying merits by briefs and oral argument." The Court of Appeals then proceeded to address the merits of the psychiatric testimony issue, together with new claims not presented to the District Court, that the state court had no jurisdiction to resentence petitioner and that newly discovered evidence warranted *887 a new trial. Each of the grounds was discussed by the court and rejected. The court concluded that since the petition had no substantial merit, a stay should be denied. Petitioner then filed an application for stay of execution with the Circuit Justice for the Fifth Circuit, who referred the matter to the Court. On January 24, the Court stayed petitioner's execution and, treating the application for stay as a petition for writ of certiorari before judgment, granted certiorari. The parties were directed to brief and argue "the question presented by the application, namely, the appropriate standard for granting or denying a stay of execution pending disposition of an appeal by a federal court of appeals by a death-sentenced federal habeas corpus petitioner, and also the issues on appeal before the United States Court of Appeals for the Fifth Circuit." The case was briefed and orally argued here, and we now affirm the judgment of the District Court. II With respect to the procedures followed by the Court of Appeals in refusing to stay petitioner's death sentence, it must be remembered that direct appeal is the primary avenue for review of a conviction or sentence, and death penalty cases are no exception. When the process of direct review which, if a federal question is involved, includes the right to petition this Court for a writ of certiorari comes to an end, a presumption of finality and legality attaches to the conviction and sentence. The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials. Even less is federal habeas a means by which a defendant is entitled to delay an execution indefinitely. The procedures adopted to facilitate the orderly consideration and disposition of habeas petitions are not legal entitlements that a defendant has a right to pursue irrespective of the contribution these procedures make toward *888 uncovering constitutional error. "It is natural that counsel for the condemned in a capital case should lay hold of every ground which, in their judgment, might tend to the advantage of their client, but |
Justice White | 1,983 | 6 | majority | Barefoot v. Estelle | https://www.courtlistener.com/opinion/111017/barefoot-v-estelle/ | judgment, might tend to the advantage of their client, but the administration of justice ought not to be interfered with on mere pretexts." Furthermore, unlike a term of years, a death sentence cannot begin to be carried out by the State while substantial legal issues remain outstanding. Accordingly, federal courts must isolate the exceptional cases where constitutional error requires retrial or resentencing as certainly and swiftly as orderly procedures will permit. They need not, and should not, however, fail to give nonfrivolous claims of constitutional error the careful attention that they deserve. For these reasons, we granted certiorari before judgment to determine whether the Court of Appeals erred in refusing to stay petitioner's death sentence. A Petitioner urges that the Court of Appeals improperly denied a stay of execution while failing to act finally on his appeal. He suggests the possibility of remanding the case to the Court of Appeals without reaching the merits of the District Court's judgment. The heart of petitioner's submission is that the Court of Appeals, unless it believes the case to be entirely frivolous, was obligated to decide the appeal on its merits in the usual course and must, in a death case, stay the execution pending such disposition. The State responds that the Court of Appeals reached and decided the merits of the issues presented in the course of denying the stay and that petitioner had ample opportunity to address the merits. We have previously held that "if an appellant persuades an appropriate tribunal that probable cause for an appeal exists, he must then be afforded an opportunity to address the underlying merits." See Carafas v. *889 These decisions indicate that if a court of appeals is unable to resolve the merits of an appeal before the scheduled date of execution, the petitioner is entitled to a stay of execution to permit due consideration of the merits. But we have also held that the requirement of a decision on the merits "does not prevent the courts of appeals from adopting appropriate summary procedures for final disposition of such cases." 391 U. S., See In Garrison, after examining our prior holdings, we concluded: "[N]othing [in these cases] prevents the courts of appeals from considering the questions of probable cause and the merits together, and nothing said there or here necessarily requires full briefing in every instance in which a certificate is granted. We hold only that where an appeal possesses sufficient merit to warrant a certificate, the appellant must be afforded adequate opportunity to address the merits, and that if a summary procedure is adopted |
Justice White | 1,983 | 6 | majority | Barefoot v. Estelle | https://www.courtlistener.com/opinion/111017/barefoot-v-estelle/ | the merits, and that if a summary procedure is adopted the appellant must be informed, by rule or otherwise, that his opportunity will be limited." 391 U.S., We emphasized, ib that there must be ample evidence that in disposing of the appeal, the merits have been addressed, but that nothing in the cases or the applicable rules prevents a court of appeals from adopting summary procedures in such cases. On the surface, it is not clear whether the Fifth Circuit's recent practice of requiring a showing of some prospect of success on the merits before issuing a stay of execution, ; comports with these requirements. Approving the execution of a defendant before his appeal is decided on the merits would clearly be improper under Garrison, Nowakowski, and Carafas. However, a practice of deciding the merits of an appeal, when possible, *890 together with the application for a stay, is not inconsistent with our cases. It appears clear that the Court of Appeals in this case pursued the latter course. The Court of Appeals was fully aware of our precedents and ruled that their requirements were fully satisfied. After quoting from Garrison, the Court of Appeals said: "Our actions here fall under this language. Petitioner's motion is directed solely to the merits. The parties have been also afforded an unlimited opportunity to make their contentions upon the underlying merits and oral argument. This opinion demonstrates the reasons for our decision." In a section of its opinion entitled "Merits of Appeal: Psychiatric Testimony on Dangerousness," the Court of Appeals then proceeded to address that issue and reject petitioner's contentions. The course pursued by the Court of Appeals in this case was within the bounds of our prior decisions. In connection with acting on the stay, the parties were directed to file briefs and to present oral argument. In light of the Fifth Circuit's announced practice, it was clear that whether a stay would be granted depended on the probability of success on the merits. The parties addressed the merits and were given unlimited time to present argument. We do not agree that petitioner and his attorneys were prejudiced in their preparation of the appeal. The primary issue presented had been briefed and argued throughout the proceedings in the state courts and rebriefed and reargued in the District Court's habeas corpus proceeding. From the time the District Court ruled on the petition on November 9, petitioner had 71 days in which to prepare the briefs and arguments which were presented to the Fifth Circuit on January 19, *891 Although the Court of Appeals |
Justice White | 1,983 | 6 | majority | Barefoot v. Estelle | https://www.courtlistener.com/opinion/111017/barefoot-v-estelle/ | Circuit on January 19, *891 Although the Court of Appeals did not formally affirm the judgment of the District Court, there is no question that the Court of Appeals ruled on the merits of the appeal, as its concluding statements demonstrate: "This Court has had the benefit of the full trial court record except for a few exhibits unimportant to our considerations. We have read the arguments and materials filed by the parties. The petitioner is represented here, as he has been throughout the habeas corpus proceedings in state and federal courts, by a competent attorney experienced in this area of the law. We have heard full arguments in open court. Finding no patent substantial merit, or semblance thereof, to petitioner's constitutional objections, we must conclude and order that the motion for stay should be DENIED." -600. It would have been advisable, once the court had addressed the merits and arrived at these conclusions, to verify the obvious by expressly affirming the judgment of the District Court, as well as to deny the stay. The court's failure to do so, however, does not conflict with Garrison and related cases. Indeed, in Garrison itself, the Court noted that "[i]n an effort to determine whether the merits had been addressed. this Court solicited further submissions from the parties in this case." 391 U.S., n. 2. If a formal decision on the merits were required, this inquiry would have been pointless. Moreover, the Court of Appeals cannot be faulted for not formally affirming the judgment of the District Court since this Court, over the dissent of three Justices arguing as petitioner does here, refused to stay an execution in a case where the Court of Appeals followed very similar procedures.[2] *892 Although the Court of Appeals moved swiftly to decide the stay, this does not mean that its treatment of the merits was cursory or inadequate. On the contrary, the court's resolution of the primary issue on appeal, the admission of psychiatric testimony on dangerousness, reflects careful consideration. For these reasons, to remand to the Court of Appeals for verification that the judgment of the District Court was affirmed would be an unwarranted exaltation of form over substance. B That the Court of Appeals' handling of this case was tolerable under our precedents is not to suggest that its course should be accepted as the norm or as the preferred procedure. It is a matter of public record that an increasing number of death-sentenced petitioners are entering the appellate stages of the federal habeas process. The fair and efficient consideration of these appeals |
Justice White | 1,983 | 6 | majority | Barefoot v. Estelle | https://www.courtlistener.com/opinion/111017/barefoot-v-estelle/ | habeas process. The fair and efficient consideration of these appeals requires proper procedures for the handling of applications for stays of executions and demands procedures that allow a decision on the merits of an appeal accompanying the denial of a stay. The development of these procedures is primarily a function of the courts of appeals and the rulemaking processes of the federal courts, but the following general guidelines can be set forth. First. Congress established the requirement that a prisoner obtain a certificate of probable cause to appeal in order to prevent frivolous appeals from delaying the States' ability to impose sentences, including death sentences.[3] The primary *893 means of separating meritorious from frivolous appeals should be the decision to grant or withhold a certificate of probable cause. It is generally agreed that "probable cause requires something more than the absence of frivolity and that the standard is a higher one than the `good faith' requirement of 1915." Blackmun, Allowance of In Forma Pauperis Appeals in 2255 and Habeas Corpus Cases, 43 F. R. D. 343, 352 We agree with the weight of opinion in the Courts of Appeals that a certificate of probable cause requires petitioner to make a "substantial showing of the denial of [a] federal right." cert. denied, See also ;[4] In a capital case, the nature of the penalty is a proper consideration in determining whether to issue a certificate of probable cause, but the severity of the penalty does not in itself suffice to warrant the automatic issuing of a certificate. Second. When a certificate of probable cause is issued by the district court, as it was in this case, or later by the court of appeals, petitioner must then be afforded an opportunity to address the merits, and the court of appeals is obligated to decide the merits of the appeal. Accordingly, a court of appeals, where necessary to prevent the case from becoming *894 moot by the petitioner's execution, should grant a stay of execution pending disposition of an appeal when a condemned prisoner obtains a certificate of probable cause on his initial habeas appeal. Third. As our earlier cases have indicated, a court of appeals may adopt expedited procedures in resolving the merits of habeas appeals, notwithstanding the issuance of a certificate of probable cause. If a circuit chooses to follow this course, it would be advisable to promulgate a local rule stating the manner in which such cases will be handled and informing counsel that the merits of an appeal may be decided upon the motion for a stay. Even without |
Justice White | 1,983 | 6 | majority | Barefoot v. Estelle | https://www.courtlistener.com/opinion/111017/barefoot-v-estelle/ | be decided upon the motion for a stay. Even without special procedures, it is entirely appropriate that an appeal which is "frivolous and entirely without merit" be dismissed after the hearing on a motion for a stay. See, e. g., Local Rule 20, Court of Appeals for the Fifth Circuit. We caution that the issuance of a certificate of probable cause generally should indicate that an appeal is not legally frivolous, and that a court of appeals should be confident that petitioner's claim is squarely foreclosed by statute, rule, or authoritative court decision, or is lacking any factual basis in the record of the case, before dismissing it as frivolous. If an appeal is not frivolous, a court of appeals may still choose to expedite briefing and hearing the merits of all or of selected cases in which a stay of a death sentence has been requested, provided that counsel has adequate opportunity to address the merits and knows that he is expected to do so. If appropriate notice is provided, argument on the merits may be heard at the same time the motion for a stay is considered, and the court may thereafter render a single opinion deciding both the merits and the motion, unless exigencies of time preclude a considered decision on the merits, in which case the motion for a stay must be granted. In choosing the procedures to be used, the courts should consider whether the delay that is avoided by summary procedures warrants departing from the normal, untruncated processes of appellate *895 review. In instances where expedition of the briefing and argument schedule is not ordered, a court of appeals may nevertheless choose to advance capital cases on the docket so that the decision of these appeals is not delayed by the weight of other business. Fourth. Second and successive federal habeas corpus petitions present a different issue. "To the extent that these involve the danger that a condemned inmate might attempt to use repeated petitions and appeals as a mere delaying tactic, the State has a quite legitimate interest in preventing such abuses of the writ." Brief for NAACP Legal Defense and Educational Fund, Inc., as Amicus Curiae 40-41. Title 28 U.S. C. 2254 Rule 9(b) states that "a second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief [or if] the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." See ; Advisory Committee Note to Rule 9(b), 28 U.S. C., p. |
Justice White | 1,983 | 6 | majority | Barefoot v. Estelle | https://www.courtlistener.com/opinion/111017/barefoot-v-estelle/ | Advisory Committee Note to Rule 9(b), 28 U.S. C., p. 273. Even where it cannot be concluded that a petition should be dismissed under Rule 9(b), it would be proper for the district court to expedite consideration of the petition. The granting of a stay should reflect the presence of substantial grounds upon which relief might be granted. Fifth. Stays of execution are not automatic pending the filing and consideration of a petition for a writ of certiorari from this Court to the court of appeals that has denied a writ of habeas corpus. It is well established that there " `must be a reasonable probability that four Members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction; there must be a significant possibility of reversal of the lower court's decision; and there must be a likelihood that irreparable harm will result if that decision is not stayed.' " ). Applications for stays of death sentences are expected to contain the information and materials necessary to make a careful assessment of the merits of the issue and so reliably to determine whether plenary review and a stay are warranted. A stay of execution should first be sought from the court of appeals, and this Court generally places considerable weight on the decision reached by the courts of appeals in these circumstances. III Petitioner's merits submission is that his death sentence must be set aside because the Constitution of the United States barred the testimony of the two psychiatrists who testified against him at the punishment hearing. There are several aspects to this claim. First, it is urged that psychiatrists, individually and as a group, are incompetent to predict with an acceptable degree of reliability that a particular criminal will commit other crimes in the future and so represent a danger to the community. Second, it is said that in any event, psychiatrists should not be permitted to testify about future dangerousness in response to hypothetical questions and without having examined the defendant personally. Third, it is argued that in the particular circumstances of this case, the testimony of the psychiatrists was so unreliable that the sentence should be set aside. As indicated below, we reject each of these arguments. A The suggestion that no psychiatrist's testimony may be presented with respect to a defendant's future dangerousness is somewhat like asking us to disinvent the wheel. In the first place, it is contrary to our cases. If the likelihood of a defendant's committing further crimes is a constitutionally acceptable |
Justice White | 1,983 | 6 | majority | Barefoot v. Estelle | https://www.courtlistener.com/opinion/111017/barefoot-v-estelle/ | of a defendant's committing further crimes is a constitutionally acceptable criterion for imposing the death penalty, which it is, and if it is not impossible for even a lay person sensibly to arrive at that conclusion, *897 it makes little sense, if any, to submit that psychiatrists, out of the entire universe of persons who might have an opinion on the issue, would know so little about the subject that they should not be permitted to testify. In Jurek, seven Justices rejected the claim that it was impossible to predict future behavior and that dangerousness was therefore an invalid consideration in imposing the death penalty. JUSTICES Stewart, POWELL, and STEVENS responded directly to the argument, at 274-276: "It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge's prediction of the defendant's future conduct. Any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities. The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice. What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced." Although there was only lay testimony with respect to dangerousness in Jurek, there was no suggestion by the Court that the testimony of doctors would be inadmissable. To the contrary, the joint opinion announcing the judgment said that the jury should be presented with all of the relevant information. Furthermore, in v. Smith, in the face of a submission very similar to that presented in this case with respect to psychiatric testimony, we approvingly repeated the above quotation from Jurek and went on to say that we were in "no sense disapproving the use of psychiatric testimony bearing on future dangerousness." See also California v. Ramos, post, at 1005-1006, 1009-1010, n. 23; (desirable to allow open and far-ranging argument that places as much information as possible before the jury). Acceptance of petitioner's position that expert testimony |
Justice White | 1,983 | 6 | majority | Barefoot v. Estelle | https://www.courtlistener.com/opinion/111017/barefoot-v-estelle/ | before the jury). Acceptance of petitioner's position that expert testimony about future dangerousness is far too unreliable to be admissible would immediately call into question those other contexts in which predictions of future behavior are constantly made. For example, in we held that a nondangerous mental hospital patient could not be held in confinement against his will. Later, speaking about the requirements for civil commitments, we said: "There may be factual issues in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists." 441 U.S. 4, In the second place, the rules of evidence generally extant at the federal and state levels anticipate that relevant, unprivileged evidence should be admitted and its weight left to the factfinder, who would have the benefit of cross-examination and contrary evidence by the opposing party. Psychiatric testimony predicting dangerousness may be countered not only as erroneous in a particular case but also as generally so unreliable that it should be ignored. If the jury may make up its mind about future dangerousness unaided by psychiatric testimony, jurors should not be barred from hearing the *899 views of the State's psychiatrists along with opposing views of the defendant's doctors.[5] Third, petitioner's view mirrors the position expressed in the amicus brief of the American Psychiatric Association (APA). As indicated above, however, the same view was presented and rejected in v. Smith. We are no more convinced now that the view of the APA should be converted into a constitutional rule barring an entire category of expert testimony.[6] We are not persuaded that such testimony is almost entirely unreliable and that the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings. The amicus does not suggest that there are not other views held by members of the Association or of the profession generally. Indeed, as this case and others indicate, there are those doctors who are quite willing to testify at the sentencing hearing, who think, and will say, that they know what they are talking about, and who expressly disagree with the Association's point of view.[7] Furthermore, their *900 qualifications as experts are regularly accepted by the courts. If they are so obviously wrong and should be discredited, there should be no insuperable problem in doing so by calling *901 members of the Association who are |
Justice White | 1,983 | 6 | majority | Barefoot v. Estelle | https://www.courtlistener.com/opinion/111017/barefoot-v-estelle/ | so by calling *901 members of the Association who are of that view and who confidently assert that opinion in their amicus brief. Neither petitioner nor the Association suggests that psychiatrists are always wrong with respect to future dangerousness, only most of the time. Yet the submission is that this category of testimony should be excised entirely from all trials. We are unconvinced, however, at least as of now, that the adversary process cannot be trusted to sort out the reliable from the unreliable evidence and opinion about future dangerousness, particularly when the convicted felon has the opportunity to present his own side of the case. We are unaware of and have not been cited to any case, federal or state, that has adopted the categorical views of the Association.[8] Certainly it was presented and rejected at every *902 stage of the present proceeding. After listening to the two schools of thought testify not only generally but also about the petitioner and his criminal record, the District Court found: "The majority of psychiatric experts agree that where there is a pattern of repetitive assaultive and violent conduct, the accuracy of psychiatric predictions of future dangerousness dramatically rises. The accuracy of this conclusion is reaffirmed by the expert medical testimony in this case at the evidentiary hearing. It would appear that Petitioner's complaint is not the diagnosis and prediction made by Drs. Holbrook and Grigson at the punishment phase of his trial, but that Dr. Grigson expressed extreme certainty in his diagnosis and prediction. In any event, the differences among the experts were quantitative, not qualitative. The differences in opinion go to the weight [of the evidence] and not the admissibility of such testimony. Such disputes are within the province of the jury to resolve. Indeed, it is a fundamental premise of our entire system of criminal jurisprudence that the purpose of the jury is to sort out the true testimony from the false, the important matters from the unimportant matters, and, when called upon to do so, to give greater credence to one party's expert witnesses than another's. Such matters occur routinely in the American judicial system, both civil and criminal." App. 13-14 (footnote omitted). *903 We agree with the District Court, as well as with the Court of Appeals' judges who dealt with the merits of the issue and agreed with the District Court in this respect. B Whatever the decision may be about the use of psychiatric testimony, in general, on the issue of future dangerousness, petitioner urges that such testimony must be based on personal examination of |
Justice White | 1,983 | 6 | majority | Barefoot v. Estelle | https://www.courtlistener.com/opinion/111017/barefoot-v-estelle/ | that such testimony must be based on personal examination of the defendant and may not be given in response to hypothetical questions. We disagree. Expert testimony, whether in the form of an opinion based on hypothetical questions or otherwise, is commonly admitted as evidence where it might help the factfinder do its assigned job. As the Court said long ago in Spring (79): "Men who have made questions of skill or science the object of their particular study, says Phillips, are competent to give their opinions in evidence. Such opinions ought, in general, to be deduced from facts that are not disputed, or from facts given in evidence; but the author proceeds to say that they need not be founded upon their own personal knowledge of such facts, but may be founded upon the statement of facts proved in the case. Medical men, for example, may give their opinions not only as to the state of a patient they may have visited, or as to the cause of the death of a person whose body they have examined, or as to the nature of the instruments which caused the wounds they have examined, but also in cases where they have not themselves seen the patient, and have only heard the symptoms and particulars of his state detailed by other witnesses at the trial. Judicial tribunals have in many instances held that medical works are not admissible, but they everywhere hold that men skilled in science, art, or particular trades may give their opinions as witnesses in matters pertaining to their professional calling." *904 See also (73); (87); (97). Today, in the federal system, Federal Rules of Evidence 702-706 provide for the testimony of experts. The Advisory Committee Notes touch on the particular objections to hypothetical questions, but none of these caveats lends any support to petitioner's constitutional arguments. Furthermore, the Texas Court of Criminal Appeals could find no fault with the mode of examining the two psychiatrists under Texas law: "The trial court did not err by permitting the doctors to testify on the basis of the hypothetical question. The use of hypothetical questions in the examination of expert witnesses is a well-established practice. 2 C. McCormick and R. Ray, Texas Evidence, 1402 (2d ed. 1956). That the experts had not examined appellant went to the weight of their testimony, not to its admissibility." Like the Court of Criminal Appeals, the District Court, and the Court of Appeals, we reject petitioner's constitutional arguments against the use of hypothetical questions. Although cases such as this involve the death penalty, we perceive |
Justice White | 1,983 | 6 | majority | Barefoot v. Estelle | https://www.courtlistener.com/opinion/111017/barefoot-v-estelle/ | cases such as this involve the death penalty, we perceive no constitutional barrier to applying the ordinary rules of evidence governing the use of expert testimony. C As we understand petitioner, he contends that even if the use of hypothetical questions in predicting future dangerousness is acceptable as a general rule, the use made of them in his case violated his right to due process of law. For example, petitioner insists that the doctors should not have been permitted to give an opinion on the ultimate issue before the jury, particularly when the hypothetical questions *905 were phrased in terms of petitioner's own conduct;[9] that the hypothetical questions referred to controverted facts;[10] and that the answers to the questions were so positive as to be assertions of fact and not opinion.[11] These claims of misuse of the hypothetical questions, as well as others, were rejected by the Texas courts, and neither the District Court nor the Court of Appeals found any constitutional infirmity in the application of the Texas Rules of Evidence in this particular case. We agree. IV In sum, we affirm the judgment of the District Court. There is no doubt that the psychiatric testimony increased the likelihood that petitioner would be sentenced to death, but this fact does not make that evidence inadmissible, any more than it would with respect to other relevant evidence *906A against any defendant in a criminal case. At bottom, to agree with petitioner's basic position would seriously undermine and in effect overrule Petitioner conceded as much at oral argument. Tr. of Oral Arg. 23-25. We are not inclined, however, to overturn the decision in that case. The judgment of the District Court is Affirmed. *906B JUSTICE STEVENS, concurring in the judgment. |
Justice Stevens | 1,987 | 16 | dissenting | Citicorp Industrial Credit, Inc. v. Brock | https://www.courtlistener.com/opinion/111932/citicorp-industrial-credit-inc-v-brock/ | The statute that the Court construes today was enacted during the Great Depression. Although business failures were an everyday occurrence in 1938, nothing in the language or history of the Fair Labor Standards Act (FLSA or Act) suggests that Congress intended that Act to address the unfortunate situation that arises when an employer is unable to pay his employees for the final days of work that produced the inventory at hand when the plant was forced to close. Indeed, if there is one conclusion that both parties before us, and every court that has ever considered this matter, agree upon, it is that Congress did not "actually conside[r] application of the `hot goods' provision to secured creditors when it enacted the FLSA." Ante, at 34-35. This historical fact carries much weight in this case. The subjects of bankruptcy and secured transactions constitute discrete bodies of law, which are generally governed by the Federal Bankruptcy Code and by state law, respectively.[1] Instead of interpreting *41 Congress' silence as evincing intent to invade these areas with an Act whose purposes do not fit nicely into these contexts,[2] I would interpret Congress' utter silence as showing that Congress never intended to apply the FLSA to these unique areas of the law.[3] See *42 Even were I not confident in that conclusion, however, I certainly believe that the arguments in favor of petitioner's construction are substantial enough to warrant our adherence to settled precedent. During the 28 years from the enactment of the FLSA through it appears that no Secretary of Labor ever sought an injunction against the sale of "hot goods" in circumstances such as these. See When a Secretary did attempt to use the statute in this novel way, the Court of Appeals for the Second Circuit summarily rejected his interpretation, explaining: "We believe that there was no Congressional intent that concerns in [the creditor's] position be within 15. The purpose of forcing payment of wages should not apply to the creditor who advanced funds long before the default in wages, and who merely forecloses his lien, at least where the value of the goods acquired does not exceed the debt left unpaid. Since [the creditor] is not giving present consideration, it can neither force [the employer] to make payment nor withhold wages from its payment and pay the wage earners itself. It already provided [the employer] with cash, part of which no doubt went for wages that were paid. Since the only reason to give effect to 15 would be to force [the creditor] to pay the wages, 15 ought not |
Justice Stevens | 1,987 | 16 | dissenting | Citicorp Industrial Credit, Inc. v. Brock | https://www.courtlistener.com/opinion/111932/citicorp-industrial-credit-inc-v-brock/ | force [the creditor] to pay the wages, 15 ought not apply to it, in a backhanded way of attacking its secured position. "The Secretary stresses the point that when the Congress desired to protect bona fide purchasers from the strict wording of the Act it found it easy to do so by *43 amending the Act with appropriate safeguards. This would indeed be persuasive if there were indications that the present problem of the foreclosing secured creditor had been brought to the attention of the Congress. The argument loses force because this was apparently never done, and the Secretary's present contention is much weakened by the fact that since the enactment of the Act in 1938 neither he nor his predecessors appear to have so read the Act, in spite of the myriad of instances in which similar security titles must have been enforced." at I would have subscribed to this reasoning in and certainly do now. In the more than 20 years since the Second Circuit's decision, its construction of the statute has not been called into question by the courts that have addressed the issue, except in the decisions now on review. See Shultz v. Factors, Inc., 65 CCH LC ¶ 32,487 (CA4 1971); Dunlop v. Sportsmasters, Inc., 77 CCH LC ¶ 33,293 (ED Tenn. 1975). Given the Secretary's practice prior to the Powell Knitting decision, the judicial acceptance of that decision, and the fact that Congress has not seen fit to amend the statute in light of these decisions,[4] I believe that the Powell Knitting construction should be retained until Congress rejects it. See Commissioner v. Fink, post, at 102-103 ; Shearson/American Express I respectfully dissent. |
Justice Scalia | 2,000 | 9 | concurring | Erie v. Pap's AM | https://www.courtlistener.com/opinion/118353/erie-v-paps-am/ | I In my view, the case before us here is moot. The Court concludes that it is not because respondent could resume its nude dancing operations in the future, and because petitioners have suffered an ongoing, redressable harm consisting of the state court's invalidation of their public nudity ordinance. As to the first point: Petitioners do not dispute that Kandyland no longer exists; the building in which it was located has been sold to a real estate developer, and the premises are currently being used as a comedy club. We have a sworn affidavit from respondent's sole shareholder, Nick Panos, to the effect that Pap's "operates no active business," and is "a `shell' corporation." More to the point, Panos swears that neither Pap's nor Panos "employ[s] any individuals involved in the nude dancing business," "maintain[s] any contacts in the adult entertainment business," "has any current interest in any establishment providing nude dancing," or "has any intention to own or operate a nude dancing establishment in the future."[1] App. to Reply to Brief in Opposition to Motion to Dismiss 7-8. *303 Petitioners do not contest these representations, but offer in response only that Pap's could very easily get back into the nude dancing business. The Court adopts petitioners' line, concluding that because respondent is still incorporated in Pennsylvania, it "could again decide to operate a nude dancing establishment in Erie." Ante, at 287. That plainly does not suffice under our cases. The test for mootness we have applied in voluntary-termination cases is not whether the action originally giving rise to the controversy could not conceivably reoccur, but whether it is "absolutely clear that the behavior could not reasonably be expected to recur. " United Here I think that test is met. According to Panos' uncontested sworn affidavit, Pap's ceased doing business at Kandyland, and the premises were sold to an independent developer, in 1998 the year before the petition for certiorari in this case was filed. It strains credulity to suppose that the 72-year-old Mr. Panos shut down his going business after securing his victory in the Pennsylvania Supreme Court, and before the city's petition for certiorari was even filed, in order to increase his chances of preserving his judgment in the statistically unlikely event that a (not yet filed) petition might be granted. Given the timing of these events, given the fact that respondent has no existing interest in nude dancing (or in any other business), given Panos' sworn representation that he does not intend to investthrough Pap's or otherwisein any nude dancing business, and given Panos' advanced *304 age,[2] |
Justice Scalia | 2,000 | 9 | concurring | Erie v. Pap's AM | https://www.courtlistener.com/opinion/118353/erie-v-paps-am/ | any nude dancing business, and given Panos' advanced *304 age,[2] it seems to me that there is "no reasonable expectation, " even if there remains a theoretical possibility, that Pap's will resume nude dancing operations in the future.[3] The situation here is indistinguishable from that which obtained in Arizonans for Official where the plaintiff-respondent, a state employee who had sued to enjoin enforcement of an amendment to the Arizona Constitution making English that State's official language, had resigned her public-sector employment. We held the case moot and, since the mootness was attributable to the "`unilateral action of the party who prevailed in the lower court,' " we followed our usual practice of vacating the favorable judgment respondent had obtained in the *305 Court of Appeals. ). The rub here is that this case comes to us on writ of certiorari to a state court, so that our lack of jurisdiction over the case also entails, according to our recent jurisprudence, a lack of jurisdiction to direct a vacatur. See ASARCO The consequences of that limitation on our power are in this case significant: A dismissal for mootness caused by respondent's unilateral action would leave petitioners subject to an ongoing legal disability, and a large one at that. Because the Pennsylvania Supreme Court severed the public nudity provision from the ordinance, thus rendering it inoperative, the city would be prevented from enforcing its public nudity prohibition not only against respondent, should it decide to resume operations in the future, and not only against other nude dancing establishments, but against anyone who appears nude in public, regardless of the "expressiveness" of his conduct or his purpose in engaging in it. That is an unfortunate consequence (which could be avoided, of course, if the Pennsylvania Supreme Court chose to vacate its judgments in cases that become moot during appeal). But it is not a consequence that authorizes us to entertain a suit the Constitution places beyond our power. And leaving in effect erroneous state determinations regarding the Federal Constitution is, after all, not unusual. It would have occurred here, even without the intervening mootness, if we had denied certiorari. And until the 1914 revision of the Judicial Code, it occurred whenever a state court erroneously sustained a federal constitutional challenge, since we did not even have statutory jurisdiction to entertain an appeal. Compare Judiciary Act of 9, ch. 20, 25, -87, with Act of Dec. 1914, ch. 2, In any event, the short of the matter is that we have no power to suspend the fundamental precepts that federal courts "are limited by |
Justice Scalia | 2,000 | 9 | concurring | Erie v. Pap's AM | https://www.courtlistener.com/opinion/118353/erie-v-paps-am/ | suspend the fundamental precepts that federal courts "are limited by the case-or-controversy requirement *306 of Art. III to adjudication of actual disputes between adverse parties," and that this limitation applies "at all stages of review," ) (internal quotation marks omitted). Which brings me to the Court's second reason for holding that this case is still alive: The Court concludes that because petitioners have an "ongoing injury" caused by the state court's invalidation of its duly enacted public nudity provision, our ability to hear the case and reverse the judgment below is itself "sufficient to prevent the case from being moot." Ante, at 288. Although the Court does not cite any authority for the proposition that the burden of an adverse decision below suffices to keep a case alive, it is evidently relying upon our decision in ASARCO, which held that Article III's standing requirements were satisfied on writ of certiorari to a state court even though there would have been no Article III standing for the action producing the state judgment on which certiorari was sought. We assumed jurisdiction in the case because we concluded that the party seeking to invoke the federal judicial power had standing to challenge the adverse judgment entered against them by the state court. Because that judgment, if left undisturbed, would "caus[e] direct, specific, and concrete injury to the parties who petition for our review," ASARCO, 490 U. S., at 6-624, and because a decision by this Court to reverse the State Supreme Court would clearly redress that injury, we concluded that the original plaintiffs' lack of standing was not fatal to our jurisdiction, I dissented on this point in ASARCO, see and remain of the view that it was incorrectly decided. But ASARCO at least did not purport to hold that the constitutional standing requirements of injury, causation, and redressability may be satisfied solely by *307 reference to the lower court's adverse judgment. It was careful to notehowever illogical that might have been, see at 635that the parties "remain[ed] adverse," and that jurisdiction was proper only so long as the "requisites of a case or controversy are also met," Today the Court would appear to drop even this fig leaf.[4] In concluding that the injury to Erie is "sufficient" to keep this case alive, the Court performs the neat trick of identifying a "case or controversy" that has only one interested party. II For the reasons set forth above, I would dismiss this case for want of jurisdiction. Because the Court resolves the threshold mootness question differently and proceeds to address the merits, I |
Justice Scalia | 2,000 | 9 | concurring | Erie v. Pap's AM | https://www.courtlistener.com/opinion/118353/erie-v-paps-am/ | mootness question differently and proceeds to address the merits, I will do so briefly as well. I agree that the decision of the Pennsylvania Supreme Court must be reversed, but disagree with the mode of analysis the Court has applied. The city of Erie self-consciously modeled its ordinance on the public nudity statute we upheld against constitutional challenge in calculating (one would have supposed reasonably) that the courts of Pennsylvania would consider themselves bound by our judgment on a question of federal constitutional law. In I voted to uphold the challenged Indiana statute "not because it survives some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not *308 subject to First Amendment scrutiny at all." Erie's ordinance, too, by its terms prohibits not merely nude dancing, but the act irrespective of whether it is engaged in for expressive purposesof going nude in public. The facts that a preamble to the ordinance explains that its purpose, in part, is to "limi[t] a recent increase in nude live entertainment," App. to Pet. for Cert. 42a, that city council members in supporting the ordinance commented to that effect, see post, at 329-330, and n. 16 (Stevens, J., dissenting), and that the ordinance includes in the definition of nudity the exposure of devices simulating that condition, see post, at 331, neither make the law any less general in its reach nor demonstrate that what the municipal authorities really find objectionable is expression rather than public nakedness. As far as appears (and as seems overwhelmingly likely), the preamble, the councilmembers' comments, and the chosen definition of the prohibited conduct simply reflect the fact that Erie had recently been having a public nudity problem not with streakers, sunbathers, or hot dog vendors, see but with lap dancers. There is no basis for the contention that the ordinance does not apply to nudity in theatrical productions such as Equus or Hair. Its text contains no such limitation. It was stipulated in the trial court that no effort was made to enforce the ordinance against a production of Equus involving nudity that was being staged in Erie at the time the ordinance became effective. App. 84. Notwithstanding Justice Stevens' assertion to the contrary, however, see post, at 328, neither in the stipulation, nor elsewhere in the record, does it appear that the city was aware of the nudityand before this Court counsel for the city attributed nonenforcement not to a general exception for theatrical productions, but to the fact that no one had complained. |
Subsets and Splits